Judge hears arguments in lawsuit against Walz over emergency powers

Erick Kaardal, legal representative for the Free Small Business Association, said Walz' 79 executive orders and emergency powers were based on unconstitutional grounds. Liz Kramer, the state's solicitor general and Walz' representative, said the association's case was a dangerous "untested legal theory."


Gov. Tim Walz’s emergency executive powers will be put to the test after the Ramsey County District Court convened a virtual hearing Thursday, July 16, to hear arguments in a lawsuit by the Free Minnesota Small Business Coalition against the administration.

The lawsuit looks to undo all 79 of the governor’s executive orders and strip authority from him to enact more.

These were brought into question with regard to Walz’s handling of the coronavirus crisis, which has killed nearly 140,000 Americans, caused the worst economic crash since the Great Depression and continues to surge stateside. Economic fallout from the pandemic has led to widespread closures, layoffs and free-falling profits across the state, much of which has been shouldered by small businesses considered non-essential.

Minneapolis attorney Erick Kaardal makes his opening arguments during a hearing Thursday, July 16, in the Ramsey County District Court. The Free Minnesota Small Business Coalition, which Kaardal represents, along with affiliated petitioners, has filed a lawsuit against Gov. Tim Walz in the interest of rolling back the governor's emergency executive orders since March 13 and stripping him of the authority enact more during the current peacetime crisis. Screenshot / Gabriel Lagarde


The hearing was presided over by Judge Thomas Gilligan and the hearing drew upwards of 500 participants through the course of the morning.

Petitioners are asking for a writ from the court that would nullify Walz’s executive orders during the COVID-19 crisis and strip the governor of the ability to enact more. The defense said the petitioners have no grounds in legal precedent or state statute, characterizing the lawsuit as an “untested legal theory.”

The Coalition’s counsel, Erick Kaardal, a Minneapolis attorney, argued Walz is overstepping his authority, violating the Legislative process and civil liberties of Minnesotans with his executive declarations. In his argument, Kaardal said Walz overstepped state statutes pertaining to emergency powers, the nondelegation doctrine (which restricts the Legislature from delegating its authority to other institutions) and what constitutes “acts of nature,” civic rights, separation of powers and boundaries of executive authority.

“My arguments are the government doesn't have the authority, under these statutes, to do what the governor is doing because of the (Minnesota) Constitution,” Kaardal said during the hearing. “We're not arguing the content of the executive orders. … Arguments only relate to the governor's legal authority.”

In turn, the administration rested its defense in Solicitor General Liz Kramer. The defense argued there are no grounds for stripping a governor of his emergency powers if there’s a clear and identifiable emergency that threatens Minnesotan lives and looks to overwhelm local governments, when authority has been granted to him by the Legislature, and when executive orders do not exceed guideline limitations laid out in state statutes 12.21 and 12.31.

“I want to start by noting that the petitioners seek sweeping relief. In this case, they seek to void all the governor's emergency orders that have been issued today,” Kramer said during the hearing. “Places like churches and bars and restaurants could reopen at 100% capacity, and it would mean that when the second wave of this virus hits … the government would be powerless to do basic things like limit elective surgeries and serve (personal protection equipment) and close the schools.”

“This flies in the face of common sense,” she added. “It flies in the face of public health recommendations. And it flies in the face of Minnesota law.”


Minnesota Solicitor General Liz Kramer makes her opening arguments during a hearing Thursday, July 16, in the Ramsey County District Court. The Free Minnesota Small Business Association, along with affiliated petitioners, filed a lawsuit against Gov. Tim Walz in the interest of rolling back the governor's emergency executive orders since March 13 and stripping him of the authority enact more during the current peacetime crisis. Screenshot / Gabriel Lagarde

Kaardal said Walz’s emergency powers were unconstitutional as they didn’t meet a series of procedural safeguards, or standards set to ensure the Legislature didn’t surrender too much power and, thereby, render the executive a dictatorial role. Peacetime emergencies should be carefully considered, he said. For example, one consideration would be what constitutes an “act of nature,” which are typically short-term natural disasters over a few days, he noted, not extended emergencies over the course of months. Another consideration, he said, would be whether the governor has just cause or the authority to severely restrict and punish civil liberties like traveling and patronizing businesses.

These considerations were not taken into account, Kaardal said, while lawmakers and people of Minnesota couldn’t know how far Walz would take these measures until it was too late and they had little recourse. The state Legislature — which grants the governor emergency powers — voted to extend Walz’s emergency powers every 30 days since the initial vote on March 13, although recent votes have largely fallen along party lines and the Republican-controlled Senate voted to remove Walz’s emergency powers.

“Administrative executive officials are reminded of their obligation to check if they have the authority to do what they're doing,” Kaardal noted. “And so the quo warranto is an opportunity for the court to say, ‘Well look, you gotta check.’ Every administrative action has to be rooted in laws via constitutional law.”

Gilligan questioned Kaardal whether these standards could be satisfactorily defined and assessed in the midst of rapidly developing public disasters — the exact and specific scenarios, he noted, where the state Legislature does not violate the nondelegation doctrine when it temporarily cedes power to the chief executive.

“How would that conceivably work in an emergency situation?” he said. “Because, obviously, in an ideal world, we are methodical about things. ... But in a situation where we're dealing with a tornado, a flood, a terrorist or an act of nature, isn't it a situation where the Legislature recognized that it wouldn't be nimble enough to do this, and that the emergency powers should be imbued in the governor?”

Furthermore, Gilligan said he was deeply concerned with the idea his court could be forced to “referee” disputes between the executive branch and the state Legislature, or between the state’s government and its people, when members of the democratically elected Minnesota House and Senate can choose to rescind Walz’s emergency powers every 30 days.

Kramer said Kaardal’s case largely rests in complaints with how the statutes were written — codified provisions, she noted, the petitioners may disagree with — but that argument does not indicate Walz stepped out of bounds or is exercising illegitimate authority during a crisis.


“There are legitimate disagreements about the best course of action to take to protect the lives and health of Minnesotans in the context of COVID-19,” Kramer said, “but there is not a legitimate basis to say that the governor is without power to make those decisions.”

At the conclusion of the hearing, Gilligan said he would review the arguments presented, consider memorandums submitted by both sides, as well as cases of legal precedence. Then, he said, he would issue a decision as soon as possible.

Petitioners involved in the lawsuit against Walz include the Free Minnesota Small Business Coalition; state Reps. Steve Drazkowski, Jeremy Munson, Cal Bahr, Tim Miller, Jeff Backer, Mary Franson, Glenn Gruenhagen, Erick Lucero, Joe McDonald and Shane Mekeland; state Sens. Mike Goggin, Scott Jensen and Andrew Mathews; and businesses including Southwest School of Dance, Trev’s Kitchen, Prestige Gymnastics, Yoga by Blisstopia, Title Boxing Club Coon Rapids, Title Boxing Club Arden Hills, Title Boxing Club Rogers, Duffy’s Bar and Grill, Flaherty’s Arden Bowl Inc. and Three Rivers Fitness.

GABRIEL LAGARDE may be reached at or 218-855-5859. Follow at .

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