Drake Snell, et. al., Appellants,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0626

Drake Snell, et. al.,
Appellants,

vs.

Tim Walz, Governor of Minnesota, in his official capacity, et al.,
Respondents.

Filed December 6, 2021
Appeal dismissed
Larkin, Judge

Ramsey County District Court
File No. 62-CV-20-4498

Douglas P. Seaton, James V. F. Dickey, Upper Midwest Law Center, Golden Valley,
Minnesota (for appellants)

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Jacob Campion, Alec
Sloan, Assistant Attorneys General, St. Paul, Minnesota (for respondents)

Jennifer L. Olson, Best & Flanagan LLP, Minneapolis, Minnesota (for amicus curiae
Minnesota Public Health Association)

Considered and decided by Ross, Presiding Judge; Larkin, Judge; and Klaphake,
Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellants challenge the dismissal of their action seeking to preclude enforcement
of a statewide mask mandate issued during the COVID -19 pandemic. We dismiss the
appeal as moot.
FACTS
On March 13, 2020, Minnesota Governor Tim Walz declared a “peacetime
emergency” based on the COVID -19 pandemic, deeming it “an act of nature.” Emerg.
Exec. Order No. 2 0-01, Declaring a Peacetime Emergency & Coordinating Minnesota’s
Strategy to Protect Minnesotans from COVID -19 (Mar. 13, 2020). Under the Minnesota
Emergency Management Act of 1996 (MEMA), Minn. Stat. §§ 12.01-.61 (2020), the
governor is authorized to promulgate certain orders with the “full force and effect of law”
during a “peacetime emergency.” Minn. Stat. §§ 12.21, .32.
On July 22, 2020, the governor issued Emergency Executive Order 20-81 (hereafter,
the “mask mandate ” or “mandate” ), which required most Minnesotans to wear face
coverings in certain places, for example, “in indoor businesses and indoor public settings.”
Emerg. Exec. Order No. 2 0-81, Requiring Minnesotans to Wear a Face Covering in
Certain Settings to Prevent the Spread of COVID-19 (July 22, 2020). The mandate was to
remain in effect until it was rescinded or until the peacetime emergency was terminated .
Id. The mandate required businesses to make “reasonable efforts” to ensure customers
wore face coverings , and it contained enforcement provisions making violations by an
individual a petty misdemeanor and violations by a business a misdemeanor. Id.
Appellants are various Minnesota residents, businesses, and churches . In August
2020, appellants filed an action in district court, challenging the mask mandate. The named
defendants included the governor and the attorney general.
Appellants challenged the mask mandate on several grounds. They claimed that it
conflicted with Minn. Stat. § 609.735 (2020), which criminalizes concealing one’s identity,
and they argued that if the mandate supersede d the criminal statute , it violated the
Minnesota Constitution’s separation-of-powers requirement. They also claimed that
MEMA is an unauthorized delegation of legislative power. They asserted that section
12.31 of MEMA does not authorize the governor “to invoke emergency powers for public
health purposes.”1 And they argued that the mandate violates the First Amendment and is
unconstitutionally vague.
In October 2020, respondents moved the district court to dismiss appellants’ action.
In March 2021, the district court granted that motion , rejecting appellants’ legal theories
on the merits.
On May 6, 2021, the governor announced his intent to rescind various executive
orders. Emerg. Exec. Order No. 2 1-21, Safely Sunsetting COVID -19 Public Health
Restrictions (May 6, 2021). On May 13, 2021, appellants filed their notice of appeal of the
district court’s order dismissing their action. On May 14, 2021, the governor issued an
executive order lifting “face-covering requirements in most settings.” Emerg. Exec. Order

1 Section 12.31, subdivision 2, regards the declaration of a peacetime emergency and states
in relevant part, “A peacetime declaration of emergency may be declared only when an act
of nature . . . endangers life and property and local government resources are inadequate to
handle the situation.”
No. 21-23, Amending Emergency Executive Orders 20-51, 20-81, 21-11, and 21-21 (May
14, 2021). On June 29, 2021, he announced that he would end the peacetime emergency.
And on June 30, 2021, the governor signed a bill terminating the peacetime emergency as
of July 1, 2021. 2021 Minn. Laws 1st Spec. Sess. ch. 12.
DECISION
Appellants challenge the district court’s refusal to preclude enforcement of the
governor’s mask mandate. R espondents counter that this case is moot because the
governor has rescinded the mask mandate and terminated the peacetime emergency.
“An appeal should be dismissed as moot when a decision on the merits is no longer
necessary or an award of effective relief is no longer p ossible.” Dean v. City of Winona ,
868 N.W.2d 1, 5 (Minn. 2015). A justiciable, real controversy must exist for a claim to be
brought before this court. State v. Colsch, 284 N.W.2d 839, 841 (Minn. 1979).
Justiciability issues may be raised at any time. See In re Schmidt, 443 N.W.2d 824, 826
(Minn. 1989) (“As a constitutional prerequisite to the exercise of jurisdiction, we must
consider the mootness question even if ignored by the parties.”). It is well established that
an appellate court will decide only actual controversies and will not issue advisory opinions
or decide cases just to establish precedent. Id. Justiciability is an issue of law, which we
review de novo. McCaughtry v. City of Red Wing, 808 N.W.2d 331, 337 (Minn. 2011).
The mootness doctrine is a flexible doctrine and not a mechanical rule. Jasper v.
Comm’r of Pub. Safety, 642 N.W.2d 435, 439 (Minn. 2002). Minnesota courts recognize
two discretionary exceptions to the general rule that moot actions must be dismissed.
Dean, 868 N.W.2d at 5. First, a court may decline to dismiss a moot action if the issues
“are likely to reoccur, but also would continue to evade judicial review.” Id. And second,
a court has “the discretion to consider a case that is technically moot when the case is
functionally justiciable and presents an important question of statewide significance that
should be decided immediately.” Id. at 6 (quotations omitted).
Appellants acknowledge that the mask mandate has ended, but they argue that a live
controversy remains because the governor maintains the power to reimpose face -covering
requirements. Appellants therefore assert that the exceptions to the mootness doctrine
apply. We examine each exception in turn.
Capable of Repetition While Evading Review
We first consider whether th e issues in this c ase are capable of repetition while
evading review . This two -pronged exception applies “wh en there is a reasonable
expectation that a complaining party would be subjected to the same action again and the
duration of the challenged action is too short to be fully litigated before it ceases or
expires.” Id. at 5.
As to the first prong of the exception, appellants argue that a reasonable expectation
exists that the mask mandate will be reimposed because the governor has shown a
“willingness to subject the people of Minnesota to broad restrictions” and could “at any
point” declare another peacetime emergenc y. Appellants point to the rise of the Delta
variant of COVID-19 as a potential catalyst for another mask mandate. Yet , despite the
pervasiveness of the Delta variant and the governor’s “willingness” to impose restrictions,
the governor has not reimposed a mask mandate. And appellants do not identify any
actions taken by the governor that portend a second mask mandate. Thus, appellants fail
to establish that the circumstances of this case create a “reasonable expectation” that
another mask mandate will be imposed.
The second prong of the exception has traditionally been satisfied when the issues,
by their character, are “too short to be fully litigated prior to [their] cessation or expiration.”
Dean, 868 N.W.2d at 5 (quotation omitted) ; see State v. Bro oks, 604 N.W.2d 345, 348
(Minn. 2000) (“Most pretrial bail issues are, by definition, short-lived and failure to decide
this issue could have a continuing adverse impact on those defendants who are unable to
post cash only bail.”). Issues have been found to evade review if they “involve disputes of
an inherently limited duration, such as prior restraints on speech and short -term mental-
health confinement orders.” Dean, 868 N.W.2d at 5 (citations omitted).
The issues here stem from the governor’s use of pe acetime-emergency powers in
relation to a pandemic, which is a rare occurrence compared to the type of circumstances
that typically give rise to issues that evade review. See, e.g., Brooks, 604 N.W.2d at 348
(applying the exception to a pretrial-bail issue); State ex rel. Doe v. Madonna, 295 N.W.2d
356, 360-61 (Minn. 1980) (applying the exception to three-day hold orders for mentally ill
individuals); see also Dean , 868 N.W.2d at 5 (discussing length of hold orders in
Madonna). Moreover, the duration of the challenged peacetime emergency indicates that
appellants’ issues are not of a duration that are, by definition, “short-lived.” Brooks, 604
N.W.2d at 348. Again, the governor declared a peacetime emergency in March 2020, and
the peacetime emergency ended July 1, 2021. The duration of the peacetime emergency is
simply not comparable to the durations of the short-term orders that traditionally have
justified application of the exception for issues that are capable of repetition while evading
review. For those reasons, we decline to apply that exception here.
Functionally Justiciable Question of Statewide Significance
The second mootness exception provides discretion to hear a moot case that is
functionally justiciable and presents an issue of statewide significance “that should be
decided immediately.” Dean, 868 N.W.2d at 6 (quotation omitted). Courts “apply this
exception narrowly.” Id.
“A case is functionally justiciable if the record contains the raw material (including
effective presentation of both sides of the issues raised) traditionally associated with
effective judicial decision-making.” Id. (quotation omitted). The issues here are primarily
legal in nature, and the parties have appropriately briefed th em. Thus, the case is
functionally justiciable.
As to whether a case presents an urgent question of statewide significance , the
supreme court has looked at its prior cases in determining whether to utilize the “narrowly”
applied exception. Id. at 6-7 (summarizing cases applying exception) . For example, i n
State v. Rud, the supreme court considered whether a defendant accused of criminal sexual
conduct could compel child witnesses to testify at an omnibus hearing. 359 N.W.2d 573,
575 (Minn. 1984) . Even though there was no longer a live controversy , the Rud court
determined that the case was functionally justiciable and of statewide significance, noting
that a failure to decide the issues presented “could have a continuing adverse impact in
other criminal trials.” Id. at 576.
In another case, In re Guardianship of Tschumy , the supreme court determined
whether a court-appointed guardian may consent to ending life support for an incapacitated
ward, despite the issue being technically moot because the ward had died. 853 N.W.2d
728, 731-33, 741 (Minn. 2014). The supreme court addressed the issue because it
implicated the state’s power “to protect infants and other persons lacking the physical and
mental capacity to protect themselves.” Id. at 740 (quotation omitted). The Tschumy court
noted that there were more than 12,000 wards in Minnesota under state supervision and
that a decision was necessary to “clarify for the guardians and their wards the scope of the
guardians’ authority to make one of life’s most fundamental decisions.” Id.
In other cases, the supreme court has declined to apply the exception. For example,
in Dean, the supreme court did not apply the exception because the issue presented—a
challenge to a city’s rental ordinance —did “not present the urgency or significance that
underpinned . . . Rud, and Tschumy.” 868 N.W.2d at 3, 7.
The supreme court also declined to apply the exception in Limmer v. Swanson, even
though both requirements of the mootness exception were present . 806 N.W.2d 838, 839
(Minn. 2011). In that case , t he question presented was whether the judiciary could
authorize certain expenditures by the executive branch in the absence of legislative
appropriations. Id. at 838. While the case was pending, the legislature passed , and the
governor signed into law , appropriations bills. Id. at 838-39. The supreme court agreed
that it had the authority to decide the case. Id. at 839. But the court declined to exercise
that authority, explaining:
The petition asks us to resolve fundamental
constitutional questions about the relative powers of the three
branches of our government. We generally do not decide
important constitutional questions unless it is necessary to do
so. The constitutional questions posed by this case are
currently moot and will not arise again unless the legislative
and executive br anches fail to agree on a budget to fund a
future biennium. In addition, the legislative and executive
branches have the ability to put mechanisms in place that
would ensure that the district court is not again called upon to
authorize expenditures by exe cutive branch agencies in the
absence of legislative appropriations, even if a budget impasse
were to occur. Resolution of these budget issues by the other
branches through the political process is preferable to our
issuance of an advisory opinion adjudic ating separation of
powers issues that are not currently active and may not arise in
the future.

Id. at 839 (quotation and citation omitted).

Here, the issue s presented are very important to a significant number of people.
However, they are not as significant as the life -or-death decision at issue in Tschumy, and
they lack the urgency of the issue in Rud. Unlike the circumstances in those cases, there is
no indication that the expired mask mandate impacts any individual or any pending
criminal case. Instead, th e circumstances here are more like those in Limmer in that
appellants’ arguments present constitutional questions involving the balance of power
between the three branches of Minnesota’s government. For example, appellants argue
that MEMA violates the Minnesota Constitution’s separation of powers principle. The
supreme court is reluctant to resolve such questions unless it is necessary to so do. See id.
This court is influenced by that reluctance, and we are not persuaded that it is appropriate
to set it aside in this case. Thus, we decline to apply the second mootness exception.

Voluntary Cessation
Appellants also argue that we should consider the merits of their challenge under
the voluntary-cessation doctrine. Under that doctrine, “a defendant’s voluntary cessation
of a challenged practice ordinarily does not deprive a federal court of its power to determine
the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Env ’t Servs., Inc., 528
U.S. 167, 169 -70 (2000). The doctrine has be en recognized by federal courts, but it has
not been recognized by the Minnesota Supreme Court or this court.
Appellants cite to Tandon v. Newsom , 141 S. Ct. 1294 (2021) for the proposition
that “requests for injunctive relief against orders which have been modified or rescinded
are still reviewable.” In Tandon, the Supreme Court, without analysis, held that “ even if
the government withdraws or modifies a COVID restriction in the course of litigation, that
does not necessarily moot the case.” 141 S. Ct. at 1297. The Supreme Court further stated,
“[S]o long as a case is not moot, litigants otherwise entitled to emergency injunctive relief
remain entitled to such relief where the applicants remain under a constant threat that
government officials will use t heir power to reinstate the challenged restrictions. ” Id.
(quotation omitted). The undeveloped exception in Tandon has been interpreted as a
reference to the voluntary-cessation doctrine. Boston Bit Labs, Inc. v. Baker, 11 F.4th 3, 9
(1st Cir. 2021); see also Calvary Chapel of Bangor v. Mills , ___ F. Supp. 3d __ _, ___,
2021 WL 2292795 , at *13 n.24 (D. M e. June 4, 2021) (stating that Tandon “merely
recognizes and reiterates the voluntary cessation exception to the mootness doctrine”).
Appellants’ briefing regarding application of the voluntary-cessation doctrine is
cursory. Appellants do not explain the doctrine or the policy underlying it. But appellants
acknowledge that this court refused to adopt the doctrine in In re Merrill Lynch Mortg.
Invs. Tr. Mortg. Loan Asset-Backed Certificates. No. A18-1554, 2019 WL 2079819, at *3
(Minn. App. May 13, 2019), rev. granted (Minn. Aug. 6, 2019) and appeal dismissed
(Minn. Apr. 30, 2020) . Appellants point out that the supreme court granted review in
Merrill Lynch and assert that “a decision should be forthcoming on that issue.” Appellants
are incorrect. A lthough review was initially granted in Merrill Lynch , the appeal was
subsequently dismissed by joint stipulation of the parties.
Without the aid of a decision from the supreme court contradicting this court’s
approach in Merrill Lynch, appellants “simply note that the doctrine should apply here”
and that the governor’s “voluntary cessation of the mask mandate is part and parcel of the
‘evading review’ nature of this matter.” Appellants repeatedly circle back to the
recognized exception for issues that are capable of repetition while evading review ,
arguing, “[s]imply put, [r]espondents’ conduct is capable of repetition, yet evading review,
and their voluntary cessation of their illegal conduct should not allow them to escape”
judicial review.
Because we have decided not to apply the exception for issues that are capable of
repetition while evading review , appellants’ reliance on that exception as support for
application of the voluntary -cessation doctrine is unavailing. And appellants have not
otherwise established that it is appropriate to apply the voluntary-cessation doctrine for the
first time in this case. We therefore decline to do so.

Conclusion
Because the peacetime emergency and mask mandate have ended, this case no
longer presents a live controversy. And because neither of the recognized discretionary
exceptions to the mootness doctrine applies, we dismiss this appeal as moot.
Appeal dismissed.