Somerset Court v. Burgum

FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
MARCH 24, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 58Somerset Court, LLC,
and Kari Riggin, Plaintiffs and Appellants
v.
Doug Burgum, Governor for the
State of North Dakota, in his
official capacity, the North Dakota
Health Department, Dirk Wilke,
North Dakota State Health Officer,
in his official capacity, Defendants and Appellees
No. 20200292
Appeal from the District Court of Burleigh County, South Central Judicial
District, the Honorable Daniel J. Borgen, Judge.
AFFIRMED.
Opinion of the Court by McEvers, Justice.
Lynn M. Boughey, Mandan, ND, for plaintiffs and appellants.
James E. Nicolai, Deputy Solicitor General, Bismarck, ND, for defendants and
appellees.
Somerset Court v. Burgum
No. 20200292
McEvers, Justice.
[¶1] Somerset Court, LLC, and Kari Riggin (“Appellants”) appeal from a
district court judgment dismissing their action seeking a declaratory judgment
regarding the validity of the Governor’s executive orders. Appellants argue
that the executive orders are beyond the Governor’s statutory powers; that the
executive orders involve fundamental rights requiring the application of the
strict scrutiny standard of review; and that a declaratory judgment should
have been issued as a matter of law and enforced by an appropriate writ.
Because Appellants have failed to adequately challenge the district court’s
conclusion the case was moot, we affirm.
I
[¶2] This case began as a challenge to the Governor’s statutory powers in
issuing executive orders during the COVID-19 pandemic relating to the
operations of certain North Dakota businesses.
[¶3] Relevant to this appeal, Executive Orders 2020-06.2, 2020-06.3, and
2020-06.4 essentially closed salons operated by licensed cosmetologists
between March 28, 2020, and May 1, 2020. Executive Order 2020-06.4 provided
that on or after May 1, 2020, businesses were allowed to reopen under
conditions for industry-specific standards, including standards for salons
operated by cosmetologists.
[¶4] In April 2020, Somerset, an assisted living facility with an in-house
salon, and Riggin, a licensed cosmetologist operating the salon as an
independent contractor, sued the Governor, the North Dakota Health
Department, and the North Dakota State Health Officer, seeking declaratory
and injunctive relief. The Appellants assert the executive orders prohibited
Somerset and Riggin from engaging in their business and profession and
placed limitations as to their business and profession. They sought a
declaratory judgment and contend the executive orders went beyond the
Governor’s statutory authority, improperly invaded legislative prerogative,
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and unconstitutionally denied their state and federal constitutional rights to
conduct business, to engage in employment, and to earn a living.
[¶5] Somerset and Riggins moved the district court for summary judgment.
The State opposed their motion and also requested the court to grant summary
judgment in favor of the State defendants. In August 2020, the district court
entered an order, denying the plaintiffs’ requested declaratory judgment and
granting the defendants’ request for dismissal of the action. The court
specifically stated that “[a]ll of the challenged executive orders have since been
superseded and are no longer in effect.” In its order, the court addressed the
merits of the Appellants’ claims, but alternatively concluded the claims were
moot and not justiciable. In September 2020, the district court entered a
judgment of dismissal.
II
[¶6] The Appellants sought a declaratory judgment declaring the relevant
executive orders were prohibited by law. Section 32-23-01, N.D.C.C.,
authorizes courts to enter declaratory judgments. Section 32-23-02, N.D.C.C.,
provides: “Any person . . . whose rights, status, or other legal relations are
affected by a statute . . . may have determined any question of construction or
validity arising under the . . . statute . . . and may obtain a declaration of rights,
status, or other legal relations thereunder.” A court, however, “may refuse to
render or enter a declaratory judgment or decree if such judgment or decree, if
rendered or entered, would not terminate the uncertainty or controversy giving
rise to the proceeding.” N.D.C.C. § 32-23-06.
[¶7] We review summary judgments in declaratory judgment actions under
the same standard as other cases. See Envtl. Driven Solutions, LLC v. Dunn
Cty., 2017 ND 45, ¶ 6, 890 N.W.2d 841; see also N.D.C.C. § 32-23-07 (“All
orders, judgments, and decrees under this chapter may be reviewed as other
orders, judgments, and decrees.”). Summary judgment under N.D.R.Civ.P.
56(c) allows for prompt disposition of any action without a trial “if either
litigant is entitled to judgment as a matter of law and if no dispute exists as to
either the material facts or the inferences to be drawn from undisputed facts,
or if resolving factual disputes will not alter the result.” Hale v. State, 2012 ND
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148, ¶ 14, 818 N.W.2d 684 (quotation omitted). Whether a district court
properly grants a summary judgment motion is a question of law, reviewed de
novo on the record. Id.III
[¶8] The Appellants specifically identified the issues on appeal as the
executive orders at issue are beyond the Governor’s statutory powers; the
executive orders involve fundamental rights requiring the application of the
strict scrutiny standard of review; and declaratory judgment should have been
issued as a matter of law and enforced by an appropriate writ.
[¶9] We need not address the multitude of issues raised by the Appellants,
because the district court’s holding on mootness is dispositive. We have
explained:
It is well established that courts will not give advisory
opinions on abstract legal questions, and an action will be
dismissed if there is no actual controversy left to be determined
and the issues have become moot or academic. An action may
become moot by the occurrence of events that result in a court’s
inability to render effective relief. The fact that a trial court has
decided a moot case does not require us to do the same.
Poochigian v. City of Grand Forks, 2018 ND 144, ¶ 10, 912 N.W.2d 344 (relying
on Gosbee v. Bendish, 512 N.W.2d 450, 452-53 (N.D. 1994)) (cleaned up).
[¶10] Here, the district court denied the Appellants’ request for a declaratory
judgment and granted the State’s request for dismissal of the action. The court
held that the Governor has broad constitutional and statutory authority to
manage an emergency or disaster from beginning to end and the disputed
executive orders did not exceed the Governor’s constitutional or statutory
authority in this case. The court concluded that the Governor and the State
Health Officer were vested with the statutory authority to issue Executive
Orders 2020-06.2, 2020-06.3, and 2020-06.4.
[¶11] As an alternate ground, however, the district court also concluded that
the Appellants’ claims regarding the executive orders are moot and non-
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justiciable because the executive orders have been superseded, Somerset and
Riggin are authorized to open and operate the Somerset Salon, and Riggin is
authorized to provide cosmetology services. The court acknowledged that while
the Governor could reissue the orders at any time, there was no allegation or
basis to conclude the orders would evade review if similar executive orders
were issued in the future.
[¶12] The parties on appeal do not dispute that the challenged executive orders
have been superseded. On appeal, the Appellants have not identified an issue
specifically challenging the district court’s alternate conclusion that their
claims regarding the executive orders are moot. In their brief at paragraph 25,
the Appellants without any citation only generally allude to their claims
regarding the superseded executive orders as not moot, but instead capable of
evading review, stating:
Despite this expiration of the restrictions placed on Somerset and
Kari Riggin, Somerset and Kari Riggin remain subject to the
restrictions in the newest executive order, the specific restrictions
of the ND Smart Restart protocols, as well as any subsequent
executive orders that may be issued by the Governor, thus making
this action not moot but instead capable of evading review because
the Governor could reissue at any time another executive order
that contains the same restrictions as the previous executive order.
[¶13] We have explained that “[a] party waives an issue by not providing
supporting argument and, without supportive reasoning or citations to
relevant authorities, an argument is without merit.” In re J.J.T., 2018 ND 165,
¶ 29, 915 N.W.2d 106 (quoting Riemers v. City of Grand Forks, 2006 ND 224,
¶ 9, 723 N.W.2d 518). “A party abandons an argument by failing to raise it in
the party’s appellate brief.” O’Keeffe v. O’Keeffe, 2020 ND 201, ¶ 14, 948 N.W.2d
848; see also Bearce v. Yellowstone Energy Dev., LLC, 2019 ND 89, ¶ 29, 924
N.W.2d 791; Gowan v. Ward Cty. Comm’n, 2009 ND 72, ¶ 11, 764 N.W.2d 425.
We have declined to conduct a de novo review of issues when a party relies on
bare assertions and fails to provide any supportive reasoning or citations to
legal authority. See Riemers, at ¶¶ 9-10 (declining to conduct a de novo review
of an alleged due process violation).
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[¶14] While the Appellants have challenged the district court’s conclusion that
the executive orders did not exceed the Governor’s constitutional or statutory
authority, they have not adequately challenged the court’s alternate conclusion
that their claims are moot. Because they have not sufficiently developed any
argument regarding mootness supported with legal authority, we conclude
they have abandoned their opposition to the court’s determination of mootness.
See, e.g., J.J.T., 2018 ND 165, ¶ 29. We therefore deem it unnecessary for this
Court to consider the Appellants’ issues concerning the Governor’s
constitutional and statutory authority to issue the superseded executive
orders. We affirm the district court’s judgment dismissing Appellants’ claims
as moot.
IV
[¶15] We have considered the remaining issues, including the Appellants’
motion for an expedited ruling in this matter, and conclude they are either
without merit or unnecessary to our decision. The judgment is affirmed.
[¶16] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
M. Jason McCarthy, D.J.
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[¶17] The Honorable M. Jason McCarthy, D.J., sitting in place of Tufte, J.,
disqualified.
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