Minnesota Constitutional Debate: Can the Governor Legally Shut Down Businesses Amid COVID Pandemic?

POLK COUNTY, MN (trfnews.i234.me) A hearing was held Friday afternoon in Polk County District Court at Crookston regarding an order by the Attorney General’s Office that requires the Boardwalk Bar and Grill in East Grand Forks to stop indoor service in defiance of the Governor’s Executive Order. The issue during Friday’s hearing was whether the Constitution gives the Governor authority to issue that shutdown order.
jane moss the owner of the east grand forks bar and grill who defied governor wall’s executive shutdown order last week got her day in court on this friday afternoon the judge was here in polk county district court everyone else participated via zoom conference i just want to tell you at the front end because i haven’t had an opportunity to fully review all the briefing that it would be my intent to issue a brief order today extending the temporary restraining order until i can issue a full opinion in this matter i don’t want there to be any question about what’s happening but i also don’t want you to think that if i file a brief order tonight that i’ve made a decision i just want to make sure that the record is clear about the status of that restraining order pending pending my final or my order written order with respect to this and so you know these are really uh considerable issues and again you’ve done a great job briefing them but i won’t be announcing a decision at the end of today’s oral arguments and i want to be clear on the status going forward with that mr plug and cool i’m going to turn to you first for your oral argument on behalf of the state of minnesota thank you thank you your honor and and may have pleased the court minnesota including polk county is currently being ravaged by the covet 19 pandemic in november and december minnesota has been sadly recording record numbers of new positive cases hospitalizations icu admissions and deaths just a few days ago on december 16th minnesota reported one of the highest daily death reports during the pandemic reporting that 92 individuals had died from the virus across the country over 300 000 people have died hulk county has not been immune from this deadly virus in polk county as of today over 3 000 people have tested positive and 43 people have died there is no dispute that covet 19 is a highly transmissible and deadly disease that threatens the health and safety of minnesotans through its contact tracing efforts data tracking and study of the scientific literature the minnesota department of health has been able to identify settings which include bars and restaurants that present high levels of risk and are more likely to result in the easy transmission of copit19 as epidemiologist richard danila’s affidavit states mdh’s contact tracing investigation show that apart from long-term care facilities bars and restaurants as well as the other settings that were required to temporarily close to the public under executive order 2099 are most frequently associated with cobit 19 outbreaks in minnesota as dr danila explains bars and restaurants pose an extremely high risk for covet 19 transmission because they allow people from different households to congregate together for extended periods of time in close proximity to one another and eat and drink and often talk without face coverings for extended periods of interaction in fact one study dr danilla cites showed that an infectious individual transmitted covid19 to at least 18 other persons at a bar in the course of a single night and only four of those 18 individuals reported even being in close contact with that individual at the bar and mdh has already determined through its own investigation that at least 448 covid19 outbreaks have occurred at minnesota bars and restaurants mdh has tied at least 4 145 unique positive covid 19 cases to the outbreaks and dr danilla explains in his affidavit that this is just the tip of the iceberg those were the direct transmission cases that mdh was able to tie and there are likely very many more secondary transmission cases resulting from those outbreaks equipped with this scientific information and data the governor issued executive order 2099 which made the difficult yet rational policy decisions to temper temporarily restrict conduct at the highest risk areas for covant transmission known to the state and that included temporarily prohibiting on-premises dining at minnesota bars and restaurants through december 18 2020. importantly executive order 2099 allows and encourages bars to continue to provide to go and take out services the governor also recently issued executive order 20-103 which extended these indoor on-premises dining restrictions through january 10 2021 but it continues to um encourage to go and take out services and also permits outdoor on-premises consumption of food and beverages if povet 19 safety protocols are followed that includes six feet of social distancing 50 capacity not to exceed 100 people no more than four customers per table and close and and requiring the skeletons to close by 10 pm it’s undisputed that executive order 2099 has a legitimate goal of slowing and preventing the spread of the deadly covet 19 virus despite the kovid 19 pandemic defendant opened its bar restaurant to on-premises dining on december 9th 2020 and despite repeated warnings continue to provide on-premises dining to customers necessitating the state to bring this action to civilly enforce executive order 2099 and seek emergency injunctive relief which the court correctly granted on december 11th today uh with the state’s argument i i want to address two main issues first i’d like to briefly touch on the correct standard applicable to granting the state’s tro and temporary injunction request and then second i’d like to focus on the three constitutional arguments that defendant has raised in opposition uh in its opposition papers which are separation of powers equal protection thinking so first just to briefly touch on the appropriate standard the court of appeals in cross-country bank which we cite in our opening memorandum and i believe also in our reply recognize that because section 8.31 explicitly authorizes the attorney general to obtain injunctive relief to enjoying unlawful business practices the attorney general in that case was seeking a temporary injunction did not need to make a showing under the dahlberg factors also in state of minnesota school of business and that citation is 899 west second 467 the minnesota supreme court similarly recognized that the state is entitled to a statutory injunction under section 8.31 meaning there was need to analyze the dahlberg factors as we explained in our reply brief in this case executive order 2099 which has the full force and effective law during the peacetime emergency makes bar restaurant providing on-premises dining temporarily and unlawful business practice thus the attorney general can obtain a temporary injunction via its statutory enforcement authority under section 8.31 and the district court correctly applied that analysis when it granted the tro so that is the correct analysis but in any event the state has also briefed the dahlberg factors it briefed them in its opening memorandum and addressed them again on reply and the state has explained that it is equally entitled to the same temporary injunctive relief under the dahlberg factors as it is under the statutory injunction standard um so unless there’s any questions about that i’d like to next turn then to the defendant’s um uh constitutional arguments go ahead [Music] and again these these constitutional arguments um today uh essentially relate to the likelihood of success on the merits standard uh under the dollar factors so taking defendants arguments one at a time the first being separation of powers as exhibit one to the affidavit i submitted that was the free minnesota small business coalition case this same separation of powers non-delegation issue was raised it was extensively analyzed by the court and rejected um and i would submit that the court should find that case to be extremely persuasive with respect to this argument being raised by defendants here in that case a coalition of small businesses which included restaurants argued that the governor’s executive orders temporarily closing them for on-premises dining earlier in the summer or spring violated the separation of power principles of non-delegation and the ramsey county district court conducted an extensive analysis and rejected that argument the the court noted the levy dumont case which provides that the legislature may delegate power when it provides a reasonably clear policy or standard of action and that that policy or standard can be expressed in very broad and general terms here chapter 12 which is the emergency management act does not violate separation power principles because it made the basic policy choices that provided adequate standards to guide and restrain the governor’s emergency powers for example it prescribes six specific conditions for when an emergency can be invoked it prescribes and establishes a time period for the governor’s exercise of specific duties it requires review and approval by the executive council so all the other independently elected constitutional officers in the state and it gives the legislature the ability to override the governor’s declaration whether it is in or out of session for all these reasons chapter 12 does not offend separation of power principles and because it provides the governor with the authority and it provides the governor with the authority to make the necessary orders to carry out the provisions of chapter 12. um in our initial filing we provided the uh decisions of the stearns county district court in the state v schiffler case which was uh another enforcement action brought by the attorney general’s office against the bar restaurant in stearns county that similar to defendant here was threatening to open in violation of the on-premises dining prohibition that previously existed in the ring summer and um in that case again these authority arguments were raised and the different court recognized that the governor had the authority to uh issue the executive orders restricting on-premises dining pursuant to chapter 12. with respect to uh defendant’s criminal uh the criminal sanction portion of uh defendants separation powers argument um really that argument is irrelevant to the case here today the the state has brought this case civilly and is seeking to enforce executive order 2099 civilly not criminally and so those arguments really have no bearing on the remedies the state is seeking to enforce here in any event the this same argument was raised in the schiffler case as we noted in our briefing and rejected and as we stated in our reply even if the defendants prevailed on this argument the correct remedy would be to strike the criminal penalties not uh and that would have no bearing again on this case because it’s a simple enforcement action um with respect then to uh the defendant’s remaining constitutional arguments which are equal protection and takings um the first thing the state would like to address is the fact that both of these claims need to be evaluated under first and foremost the jacobson framework which we provide in our opening memorandum this framework has been applied by minnesota courts the 8th circuit in rutledge and courts across the country when evaluating executive orders to issue that would have been issued to protect public health and safety during the covet pandemic under jacobson courts are to give significant deference to the emergency measures instituted during a public health crisis and should only find them unconstitutional if they have no real or substantial relationship to the object of protecting public health or safety or beyond all question a plain palpable invasion of rights secured by the fundamental law and rutledge points out you’re honored a circuit decision that under the standards courts are not to second guess the wisdom or efficacy of the policy choices states make in crafting emergency public health measures so this is a deferential standard and defendants come nowhere near uh meeting the threshold that needs to meet under jacobson jacobson to show that executive order 2099 is unconstitutional first there’s there’s no dispute that executive order 2099 has a real and substantial relationship to protecting public health entity from the community transmission of covet 19. moreover defendant has not identified any fundamental right that has been plainly and palpably invaded beyond all question uh and again the same argument was made in the schiffler case and rejected the continued operation of a business as the schiffler court found is not a constitutionally protected fundamental right uh similar to for example the free exercise of religion um the supreme court has long held that the regulation of economic affairs does not infringe fundamental rights within the meaning of the 14th amendment and defendants uh appear to acknowledge this on page nine of their brief they note that economic regulations when discussing their equal protection claim are reviewed not under heightened or strict scrutiny because some suspect class or uh fundamental right is that issue here but under the rational basis test and where they state that in that in their brief that portion of their brief is correct the appropriate standard even setting jacobson aside for their equal protection claim is the rational basis standard overview and turning then to to equal protection and and even if you put aside jacobson then the correct standard to apply even under normal constitutional uh standards of review here is the rational basis test and that is the standard that was applied in the schiffler case uh as well as most recently in the state the southwest school of dance case as well which uh the state attached as exhibit three to my affidavit uh filed last night um again the court should find these decisions highly persuasive uh to its analysis here um under the rational basis test the state must show that executive order 2099’s temporary restrictions on on-premises dining at bars restaurants is a rational means of achieving the legitimate policy goal of slowing and preventing the spread of covenant 19. and and actually to correct that the conduct of the state is presumed constitutional under this test and in fact the defendants must show that that that’s not the case that it’s not a rational uh means of achieving a legitimate uh policy goal uh and i would direct the court to the fletcher properties incorporated versus city of minneapolis case it’s cited in our reply brief uh it’s 9 47 northwest second one this was a decision issued by the minnesota supreme court in 2020 and does a really nice job of summarizing and explaining the current state of the rational basis test under minnesota law here the rational basis test has been easily met there is no dispute that it is a legitimate policy goal of the state to slow and prevent the spread of coping 19. and as already described the governor’s temporary restrictions on bars restaurants are rational uh the department of health through its contact tracing efforts and analysis has identified that bars and restaurants are one of the most high-risk settings in minnesota for the easy transmission of copic 19. again there’s been at least 448 outbreaks at bars and restaurants in minnesota resulting in thousands of covet 19 cases mr plaguencle you know that that’s one of the arguments that mr tanek is raising on behalf of boardwalk is that it’s not been this isn’t rational if you can go to walmart you can go to other stores you can go to the liquor store other places like that why can’t you also go to a restaurant and i know you’ve talked a little bit your argument i just here now about the rationality of that but i think you know if you can speak specifically to those examples and the difference between those locations and a restaurant what is your argument in that regard absolutely your honor um i can take some of them one by one so with respect to retail settings for example these would be retail stores or convenience stores or grocery stores the governor himself explains the rational basis in the executive order on page three he explains that these settings are lower risk based on the data he has from the department of health uh he says this is the quote from page three of the executive order we see relatively fewer outbreaks in retail settings which generally involve brief masked transient interactions that pose lower transmission risk and that’s the reason for for the difference your honor that is different than the risk posed again by sitting at a bar restaurant for a long period of time in close contact with others you cannot be masked while you’re eating and drinking and so there is an increased risk in that setting that is not present in retail settings and that’s laid out in the executive order itself uh with respect to um some other establishments that the defendants mentioned are personal care establishments like tattoo parlors or salons and again the executive order itself explains the rational basis distinction between those and bars and restaurants i can quote from page three of the order again outbreaks in cases trades to personal care establishments have also been minimal since those establishments reopened personal care typically involves one-on-one interactions as opposed to interactions with multiple persons and healthcare-like precautions like the requirement to wear a face shield over a face covering in many situations reducing the need to restrict these settings during this dial back so again what mdh is seeing in the data from these other settings is different than what it’s been seeing at bars and restaurants and the risks are far greater based on everything all the data and information that the governor has from the department of health that bars and restaurants place a far greater risk for public health and safety than some of these other settings with respect to uh the defendants also discuss native american reservations uh and again as we pointed out in our brief that argument was just recently rejected this week by the ramsey county district court who noted that uh a sovereign nation that’s entitled to self-self-determination or federal law is not similarly situated to bars restaurants in in the rest of minnesota and the governor’s desire to respect the sovereignty of tribes to regulate the bars and restaurants over which they have jurisdiction is he had a rational basis to distinguish them from other bar restaurants in throughout the state what about restaurants at airports mr plaguing cool there are different rules for those uh and talk with me about that so that argument was also raised in the schiffler case and rejected so i would direct the court to the schiffler case and the the difference for uh the treatment of bars and restaurants in airports and elsewhere is that as the stearns county court held restaurants and bars located in secured zones of airports only serve patrons who lack the capacity to choose other restaurants and um i think we mentioned this in our reply brief that essentially they these are travelers who are traveling potentially across the country and have limited options for food they can’t uh easily leave the airport uh in between connecting flights and so they’re they’re not free to choose other dining options that the general public can so there’s a rational distinction between uh folks traveling and are that are with behind the secured tone of airports and other part restaurants and again even if the court disagreed with that rational distinction uh the appropriate remedy here would be to strike that exemption from executive order 2099 not to invalidate the entirety of the order as the defendants seem to to seek um [Music] your honor any other questions about no you continue on uh on on your argument i’m not sure if you had anything more to say on the on the equal protection uh matter but one sorry your honor go ahead one one other point i did want to raise on equal protection is that the defendants are inappropriately uh in the state’s view pointing to the recent supreme court’s decision in the archdiocese case we’ve tried to argue that uh heightened knee essentially strict scrutiny because the court applied strict scrutiny in that case should apply here but that case is wholly distinguishable from the case at bar the court applied strict scrutiny in the archdiocese case because the fundamental right for freedom of exp freedom of religion was at issue in that case in this case there is no such fundamental rounded issue and so um trying to uh morph what should be a rational basis analysis uh into strict scrutiny by citation to that case which is wholly distinguishable from the facts we have here uh the court should not entertain that and really should should disregard that case but this is not the correct standard to apply in this case the last claim i want to address today is the takings claim um kind of the first thing to point out is again this this claim has already been brought repeatedly and rejected by minnesota records it was rejected in the state state v shiffler case which did an extent analysis was also rejected in the bazel case which i have attached as exhibit five to the affidavit i filed last night and um again the court should find these decisions highly persuasive to its analysis the state was somewhat confused by what argument the defendants were making here they seemed to at times state that this was the regulatory taking and at other times state it was a categorical taking um first it’s clear that this is not a categorical taking um and that’s because the defendant has not denied all economically beneficial uses of its entire property um that’s the standard for categorical taking and it’s just not present here um even the temporary restrictions that then put in place which again are just temporary um still permit um take out and to go orders um and the executive order that’s about to take effect um will allow outdoor on-premises dining and so again there’s no um good faith argument that all economically beneficial use of the entire property has been taken here so that what where that leaves you is that is the regulatory taking analysis which is under the penn central standard and um here the dispositive uh factor of that three-factor test is the character of the governmental action and um the case uh that the state is cited in its reply brief um that is helpful on that point your honor is the zeeman case z-men v city of minneapolis um and essentially what that case says is that when the health safety and morals of the general welfare would be promoted by a particular contemplated use of land courts will not find a taking and the zeeman case says when the regulation at issue is a regulation to protect public health and safety that third factor is the paramount factor the court must consider here what executive order 2099 does is require that defendant temporarily not put their property to a dangerous use which is on-premises dining to protect the public health and safety i don’t think defendants dispute that the purpose of executive order 29 is to protect public health and safety and under this well-established case law that means there is no taking requiring just compensation um so for that reason again the takings analysis has been rejected by multiple minnesota courts on that basis and this court should do the same so with respect to all three of defendants constitutional claims the state is likely to prevail on the merits of those and as we’ve briefed the state is uh all the other dahlberg factors also favor the state here which uh militate toward the court granting temporary injunctive relief in the state’s favor the last thing i’d like to say your honor is that the attorney general’s office the state takes no joy in having to bring an action like this and the state understands it’s a difficult time for businesses right now but choosing to reopen for on-premises dining in violation of executive order 2099 is dangerous to the public health and safety and it’s unlawful the purpose of executive order 2099 is to protect the public’s health and safety and the state respectfully requests that the court grant a temporary injunction to ensure that defendants comply in the future executive order 2099 and uh soon to be effective executive order 20-103 um and and just one more point your honor i know you mentioned issuing a uh or extending the tro um and that that’s in the course prerogative i would just like to point out that uh the injunctive relief of the tro presently in fact in effect provides that and i can read it to you it’s uh paragraph three on page six defendants shall fully comply with executive order 2099 and any future executive orders issued by the governor approved by the executive council filed in the office of the secretary of state in accordance with minnesota statutes chapter 12 that apply to restaurants and or bars and uh executive order 20-103 has been approved by the executive council and filed in the office of the secretary of state um so i just wanted to point that out to your honor and so you’re pointing that out just uh as a way of saying that you don’t think an order is necessary today that based upon that language and also the language at the end on page seven uh that this order remains in effect until further order of the court would be sufficient that’s how i read the order your honor okay okay all right now there was an issue that mr tanek raised about a trial do you want to defer any argument on that until i’ve had given mr tanek an opportunity to address uh the restraining order injunctive relief and his uh request i’m happy to address that now your honor the state opposes that request and as we indicated in our reply brief view it to be premature and inappropriate the state does need to conduct discovery in this case to among other things determine this the full scope of uh violations that existed here uh there were numerous days when uh the defendant was operating um uh in violation of executive executive order 2099. in addition discovery is needed with respect to some of the remedies the state is seeking in the case which include equitable remedies of restitution or discouragement as well as civil penalties and the civil penalties are based on a four factor test under the al pioneer uh court of appeals decision and uh for example one of those factors is the good or bad faith of the defendant and so the state would needs to do discovery uh before it would be prepared uh for trial in this matter thank you uh for your argument mr plug and cool mr tanek before i turn to you for your argument uh mr plein cool’s reading of uh the current um order that was signed by judge harbit um with that that language and paragraph three on page six as well as the language at the end of um on paragraph six in the next page that that would be sufficient as far as sorry i just turned my volume up really loud um that would be sufficient uh and his reading is of that that order remains in place until i issue the next written order do you agree with that well we think the uh temporary man you are okay uh we think the uh temporary restraining order which was entered in an ex-party basis should be dissolved as soon as possible uh if you want to your honor enter in order to hold things in place pending your final your ultimate determination that would i think probably be preferable to relying upon the ex party order and i will turn to you for your argument uh uh here this afternoon go ahead mr tanek thank you very much man please the court and council my name is marshall titanic i’m one of the attorneys representing boardwalk board and group boardwalk byron grill along with michael vancello my colleague um i want to point out at the outset that we recognize by we are referring to boardwalk bar and grill and council recognize the nature and severity of the current pandemic the covet uh affliction uh situation we recognize it we don’t dispute it we don’t in any way minimize it on a personal note i have had clients colleagues friends and close family members afflicted by this terrible disease we are in no way minimizing it or indicating that it’s not a real and serious problem but an even greater problem is the deprivation of the rights of my client and other similarly situated institutions bars and restaurants who are suffering greatly under the governor’s orders not only are they suffering great economic harm but they’re suffering of deprivation of their constitutional rights which can and should be remedied by this court consistent with the appropriate public health and safety needs of the community as the court is aware uh from our briefings and maybe personally the the the facility here is a family-owned business it’s been an existence for about 11 and a half years serves a large segment of the community in east grand forks it is a restaurant a bar and an events center uh there is significant competition right across the border in north dakota and grand forks are the facilities located in east grand forks right across the border is grand forks north dakota some 300 yards away from less than three blocks away from where my clients located uh there are unrestricted there’s unrestricted access in north dakota to bars and restaurants like this we think that’s significant in so far as it goes in large part to the the balance of harm suffered by our client we’re not saying that necessarily minnesota has to conform to north dakota law or north dakota law has to conform to minnesota law but i think the fact that we are dealing with a border town and a border facility has some different complexion uh and different considerations that come into play and perhaps the facility located for instance brainerd or saint cloud or even the twin cities where i reside i think that ought to be taken into account and i will point to that during the course of my arguments let me ask you on that do you think that that rises you know i’m not sure if you’re quite uh raising a commerce clause issue there or just in a more general uh way uh kind of the issues you know with the river and this and the close proximity between them it’s a good question your honor and uh i guess to uh kind of to use a phrase at borders against up against the commerce clause argument but we are not making a constitutional commerce clause argument as such at in this proceeding i point that out just to note that it has a significant impact on the burden uh uh and the onus that’s visited upon broadway board and grill and plays a role in the analysis of the balancing harm factor so we’re not saying that it’s absolutely unconstitutional to do it because of north dakota but we are saying that it is a consider that in looking at the situation looking at that harm that’s visited upon this facility the fact that the competitors 300 yards away are able to uh engage in unrestricted business has a significant economic impact on this particular business um but that’s a good question the one that i pondered uh at some length before putting together our argument for today but the debit there are devastating effects you’re honored here pointing them out in our in our briefing uh some 20 employees apparently have already lost their jobs about 80 percent of the staff has been laid off obviously they go into the large unemployment pool they draw unemployment benefits hopefully maybe an extension of unemployment benefits they become trained on the state our business itself has suffered damages and lots of business since the first lockdown of approaching 250 000 that’s a quarter of a million dollars that’s a lot of money for anybody but it’s a real lot of money for a small business and more is in store that’s up to the time of this lockdown um and not and not only under the employees suffer here but the business suffers uh insofar as it has this significant loss of income probably puts another brick of going out of business but the state suffers as well in terms of lost income taxes from the employees who aren’t working plus having a shallow employment benefit to those unemployed workers and of course the loss of sales tax and income tax revenue is uh harm to the state it may be a drop in the bucket but it’s certainly a consideration that is reflective of the economic harm caused not only to the pla to the boardwalk borrowing grill and its owners and its employees but to the state of minnesota as well and this is all exacerbated by the fact that the uh being so close to the border they’re facing this intense competition that is um thriving as a result of the lockdown here in minnesota uh the the bar and grill that i represent the boardwalk has it has since the initial lockdown way back in march when kovic first came upon us has been abiding by all the protocols it has engaged in uh it is abided by the capacity limits it is engaged in strict masking requirements it has engaged in social distancing it has developed and implemented a coveted prevention plan so it’s done everything the right way it’s been a good corporate citizen it’s followed the rules some others have not some others haven’t been under the rules some in minnesota as we know have flaunted those rules and indeed as i’ve pointed out across the border they haven’t followed those rules because they haven’t had those rules in place so uh the boardwalk has been at a disadvantage in having to follow those rules but it has followed those rules and uh the continuation of this lockdown though threatens its very existence and that of its employees uh we have a number of arguments that we’ve set forth before the court this morning i will just briefly summarize them you know the court had an opportunity to review our our principal brief yesterday thank you for the kind comments about it your honor um and it’s a tough issue there’s no question about it these are tough times and it’s a tough legal issue i think the state’s position is well briefed and well are well articulated and we get it and we’re not saying that somehow the state is engaged in a bad faith they’re reckless effort you know nor are we arguing in any way that the governor those people enforcing the rules are uh are are vegal or malicious or we all think that they’re trying to do the best thing the way the best thing that they can do so we’re not we’re not appealing in any way the motives of the people who the governor or anyone enforcing the these regulations what we are saying is that the court ought to take a real close look at the validity of this measure as it affects at least my client inferentially others as well one of the reasons that this that the governor’s locked down ordered the executive order uh 2099 and it’s now been extended i think there’s a different number to the one he entered the other day but 2099 is the one that issued today your honor and that lockdown order is in our view outside the purview of the governor’s authority and we briefed that and i’m not going to reiterate our briefing other than to point out the highlights are that the governor’s authority to enter to engage in the lockdown is set forth the emergency management act that’s made instead section 1231. it provides for a fi it gives a five-day period in which the governor can impose borders in an emergency situation and it can be extended for 30 days with legislative approval and thereafter or other period of time with legislative approval um it’s not my it’s not my promise to pass upon the quality of laws but it’s a pretty good law that synth it says the governor can act in an emergency basis for five days and then the legislature can essentially confirm or ratify that action for another 30 days and and thereafter if further restrictions are necessary our government meaning the the governor and the legislature must reach some agreement on what those restrictions if any ought to be in this case as is well known your honor there has been no legislative approval at all the legislature has not approved what the governor has done now that raises some political questions but we’re not here to talk politics we’re here to talk law and the legal aspect of the legislature’s inability or failure if you will to extend the governor’s initial five-day order is essentially uh puts the governor in position of being essentially ultravirus he lacks the authority to do what he’s doing the statute tells him what he can do the statute sets out a fairly clear-cut blueprint of what he can do and when he can do it and what approval he has to have to do it and he has not complied with that there simply is no right under minnesota law for the governor unilaterally to enter into these kind of orders without any kind of legislative approval it can be called ultra virus i guess in the corporate sense if this were a corporate law case when it’s not as a as a matter of law or constitutional law is a blatant violation of separation of powers that should not be countenanced by this court or any court for that matter so we maintain your honor as a threshold matter because the governor lacks the statutory or other authority to enter into this lockdown at this point at this time it is invalid and not applicable to uh our client board or margin perhaps inferentially to anyone else and otherwise as well uh but so so as a threshold matter we maintain that this corporate candidate should decide the governor lacks authority therefore the injunction conjunctive relief is not only inappropriate but unlawful however moving on beyond that your honor if the court were to conclude that there is authority for the governor to undertake this action we recognize that some courts have held that there’s been no binding authoritative decision by any of the minnesota court of appeals or the supreme court we recognize that there are some district court decisions it doesn’t mean they’re right there they are what they are and then you can take them into account probably the closest case that’s reached it’s a tribunal appellate tribunal is the wisconsin case and although there are some different factors in the wisconsin case that we point out in our brief recite the wisconsin case uh the wisconsin case came to the recognition that the governor there lacked the authority to engage in to enter into a lockdown there’s some different statutes there some different considerations but the point is the court in the wisconsin case focused on the authority the basis for the gubernatorial authority and came to the conclusion that the governor lacked that authority we think this court can reach that same result not under wisconsin law but under minnesota law so there is if not precedent at least some guidance that this court has to make that kind of determination of the lack of the governor’s authority however let me ask you a question in that regard about the authority piece when i was taking a look at your brief yeah i think you had indicated so and acknowledge that the governor has the uh has utilized peacetime emergency provisions that he’s allowed to do but where he overstepped that was by creating and or enforcing laws and that that should be uh something that is left to the legislature but i guess my question to you is then what would the point be of uh having these peacetime emergency powers if there wasn’t an ability then to uh enforce or create and i know i know that mr plaguencle’s argument is you know some of these penalties like the criminal penalty is not what we’re talking about here but generally my question is if he doesn’t have the authority to put in some of those enforcement provisions what good is having the emergency power sure first of all there could be criminal implications here because if someone if if an injunction is issued and someone violates the injunction they could be subject to criminal contempt and other criminal proceedings as well so i think it’s misnomers say this case does not have any criminal implications uh even though it’s cast right now in a civil context but to specifically address your your good question your honor uh we point out that the governor has the authority to enter into to enter an order like this in peacetime emergency which he did for five days after that he needs the legislative approval the law requires legislative approval it does not delegate to the executive branch sole complete and exclusive authority to make those decisions so we’re not we’re not saying that appropriate orders can’t be entered nor enforced what we are saying is that the legislature by by setting up the process in 1231 has provided a blueprint a path so for achieving that objective the governor has strayed from that path in fact he took a few steps on the path and then jumped off the path and decided he’d build his own highway roadway and that’s what’s improper here so there’s no question that if there is power to enter into an order there’s power to enforce it but the question is was there power to enter into this kind of extension beyond without legislative approval thank you and we maintain that the case can and should be resolved on that basis however if the court were to determine that the authority is present on the governor’s part notwithstanding the lack of legislative approval then we do believe that the the dahlberg brothers test is the appropriate standard here the state has asked you to dispense with the dahlberg brothers analysis which is of course aware is a typical standard process for assessing and adjudicating conjunctive relief but the state maintains that because this action is brought under eight uh mensthat section 8.31 the attorney general statute that that overrides or overcomes the dahlberg factors that’s wrong your honor the state’s arguments is simply put is if the governor is doing something that is pursuant to if the governor is acting pursuant to some kind of claimed authority the court can’t inquire into it at all well that would end that would result in the governor being able to do anything he wants under the pretense that he’s enforcing some kind of law or some kind of order or some kind of protocol but that’s not the case the case law under 831 that uh dispenses with the dahlberg brothers which is pretty uh which is pretty rare involve situations where the attorney general is enforcing a particular consumer protection statute that’s the general thrust of those cases in order to activate 8.31 as the measuring rod in this case there has to be some underlying statute that the attorney general is seeking to enforce that’s not the case here the attorney general is seeking to enforce a non-statutory executive order issued by the governor and there’s no case law that indicates that we’re aware that by virtue of by virtue of the governor issuing some non-statutory order that’s outside the bounds of a statute and not restricted by a statute the court must accept that and essentially rubber stamp that without any dahlberg brothers analysis the dauber brothers analysis is essentially a balancing test a five-part balancing test and it’s the time-honored way to assess injunctive relief we think it can and should be utilized here under those five factors in dahlberg under the five factors in dahlberg uh the temporary injunctive contemporary the temporary restraining order should be dissolved and the temporary and temporary junction should be denied as a as an initial matter a pre-dauber question is whether there is irreparable injury and there is irreparable injury here but the irreparable injury is imposed upon the boardwalk bar and grill which is been tiring and will todd are probably out of business if this if it’s not allowed to uh open for business especially during this holiday time of the year this is the it’s most advantageous time to be open the highest profitability time to be open and without having the opportunity to be open through the holidays he probably will based upon its past history not be able to to survive at all so there is irreparable harm the harm is to the boardwalk bar grill not necessarily the state the first so that factor is a satisfied here the first of the other five factors under goldberg is the relationship of the parties and in this case has been a good relationship the bar and grill has existed for 11 and a half years it’s been a good corporate system it’s paid taxes it’s paid sales taxes income taxes employed lots of folks and the state has benefited from that by having a facility serving customers but more significant the state has benefited economically by the taxes paid by employees who earn an income and by the business itself who pays taxes which pays taxes and sales taxes so the relationship is one that ought to be continued and allowed to thrive rather than to essentially dilute that business and put it out of business the balance of harm we maintain weighs in favor of the the boardwalk bar and grill we recognize that the very term balance suggests that there’s considerations on both sides so this isn’t an open and shut easy case as as i’ve already indicated but in balancing the relative hardships of the parties we think that the weight of those balance comes in favor of denying injunctive relief i’ve already pointed out the economic and other harm that the business will suffer and it’s not temporary harm it’s probably long-lasting and permanent harm as far as the state it’s its alleged harm is much less there’s all kinds of other facilities that are allowed to be open i’ll get into that when we talk about equal protection ranging from tattoo parlors to to uh cafeterias uh private cafeterias for that matter restaurants public restaurants and airports and so on and so forth and it it this the suggestion that somehow allowing this particular facility to remain open uh is going to cause serious and substantial harm the state of minnesota i think is um uh highly exaggerated uh under on the record here again we do not minimize in any way the uh the the nature of the pandemic the gravity of it and the fact that there have been significant and and numerous cases in right here in polk county but we do say that the harm suffered by this business outweigh economically and otherwise and to its employees outweighs whatever minimal harm might occur even if the bar is allowed to open and we don’t know what that is it’s pretty speculative there’s no indication in the record that the bar’s operation in the past the restaurants operate in the past has caused or created any particular specific harm to anybody all that’s been presented to you is what we’ve all heard right about for the last nine months is this possibility that particular facilities are more prone more risky than other facilities we kind of know what they are we know that people shouldn’t group together whether it’s in a football stadium or in a movie theater or in any kind of public setting we know that generally that’s going to raise the risk of transmitting this disease compared to everybody staying home and no one going out of their house but uh trying to make gradations between uh allowing people to go to walmart and allowing people to go to beauty shops and and uh tattoo parlors and the like and then comparing them to this one particular restaurant in in east grand forks uh probably tilts the balance in the wrong way this particular restaurant which is the focus of this case hasn’t caused harm to anyone and there’s no indication that it’s being open would in any way extend further uh spreading of the disease if i’m hearing your argument correctly then i know you know that the state has presented uh some scientific abstracts and uh research indicating that there’s a greater transmission of covid in a restaurant setting and you believe that that scientific information is not applicable to the boardwalk i’m not going to i’m not going to argue with science your honor we do know it in our uh letter that we submitted to you earlier today which you haven’t had a chance to read that it’s a very short letter we don’t dispute science but what we point out is that there are other more effective ways to deal with those with those apparently with those claimed heightened risks probably the best way to deal with them is by capacity limitations which the state has done in the past with different gradations of how many people can be in a facility or not but a complete lockdown across the board uh is not the most effective uh or rational way to deal with whatever perceived or actual scientific risk there are in a people in a closed facility that’s why the cdc in its recommendation from the outset has recommended capacity limitations as an appropriate and suitable way to deal with increased risks of people being close together and assembling together and congregating in restaurants and bars the cdc has taken that position since day one that rather than a complete one-size-fits-all lockdown a more effective way is to do capacity limits and that’s what the state was doing earlier in the in this particular restaurant abided by that up to the 50 capacity limit and there’s no indication that that caused or created any harm there’s no indication that anyone has been afflicted because they’ve attended or been at this restaurant with a 50 capacity limit now one can quarrel with well what should the capacity limits be should they be 50 or 60 percent or or whatever and that’s not our province here as lawyers nor your province judge to make that determination but the point is that there is a method that there is a method in a way that that can be done in a way that preserves the essence of the economic interest of the restaurant along with protecting the public interest and we point and we cite your honor in this in our brief this morning i call it a brief it’s actually a short letter brief don’t get too worried about it it’s only two and a half pages okay i just opened it up i decided it’s only two and a half pages so it is a brief brief oh yes but we cite scientific academic authority from no lesson institution in northwestern university which did a study along with my alma mater i’ll put a plug in for stanford university and those institutions issued a study that that focuses upon that doesn’t deny at restaurants and any other close assembly of people can they can impose it can create a risk of spreading the disease but it does focus on ways to uh minimize or halt that pro prospect and capacity limits are the way to go according to those academic studies so as in most things um science most things of a scientific nature including the uh risk factors are not without dispute so to answer your question which i think i’m trying to do but is that we don’t dispute the science we say there’s other ways to deal with this scientific concerns and academic institutions and scientific institutions have recognized that and that kind of leads into the equal protection argument the success of the merits factor in the dahlberg that’s where equal protection comes in so the third factor under dahlberg is of course aware is the success on the marriage it’s considered the most important factor but i find it in various injunctive cases i’m in on either side it’s often a difficult one to assess because you’re trying to predict essentially the outcome of a of a lawsuit in this case one week into the case and like predicting the outcome of a football game after watching the first quarter perhaps of the football game you don’t know who’s going to win or lose just by looking at the first quarter but you have to at least make as the question isn’t necessarily who is going to win but there is a but is there a reasonable likelihood that injunctive relief will not be granted that’s the way i think to look at the likelihood of success in the marriage in fact it’s not an assurance of who’s going to win but it’s a question of balancing likelihood in this case there are at least two reasons in addition to the lack of authority there are two constitutional reasons that we’ve put before the court where we think that that the boardwalk is has a likelihood uh not insurance obviously but a reasonable likelihood of being able to prevail in this case depending upon how the facts and issues ultimately turn out in full-blown litigation the equal protection argument is the most important argument we believe and one that ought to be given serious attention we point the uh we point out that the standard is the rational basis test here it’s an economic regulation uh it’s not just subject to strict scrutiny but under the ra even under the rational basis test which we all know is is pretty relaxed a pretty relaxed standard nevertheless if one takes a close look at this rather than just kind of looking at it from 50 000 feet so to speak there are real serious deficiencies in the reasonableness or rationality of this order a flat out everybody has to close regardless of where you are regardless of your size regardless of your ability to conform to these other protocols of social distancing and masking and capacity limits and it’s almost inexplicable i guess anyone can explain anything but it’s very it’s inexplicable rationally to distinguish between tattoo parlors and beauty salons which are allowed to be open and this restaurant which is now i know the state has said well the difference is from what the difference between a walmart for instance in a restaurant isn’t a restaurant people are sitting together for an extended period of time and they don’t have the masks on while they’re eating and drinking whereas at walmart you’re kind of walking through aisles and you’re not in close contact with the same people all that time and you have your mask on and that’s true that’s true there’s some differences but there but nevertheless there are some similarities as well it is the case that people oftentimes will be grouping together and congregating together with other people at a retail facility like walmart i was in my local costco the other day and i was standing in line there for 40 minutes i timed it and i was next to a lot of people during those 40 minutes there’s a lot of close contact in retail facilities uh as there is in restaurants as well you can even be closer to people for a longer period of time when you’re in a retail establishment as you are in a restaurant but that’s just the retail stores there’s also the the current lockdown does not apply to these other facilities like tattoos shops and beauty shops and so on and so forth where there’s immediate close contact between people for a long period of time and even if they have masks on during that period of time that doesn’t that doesn’t solve the problem of close social uh close social relationships so being in a restaurant with four people at a table with social distancing with other appropriate protocols can be safer than being face to face within five to within five inches of stomach giving you a tattoo or a given or a beauty salon so those kind of differences are really not rational but there’s even a greater reason why the more significant reason why the rational basis test fails here and that’s because other restaurants are allowed to be open under the governor’s order you mentioned that before your honor and i just want to um address that for a moment the the facility governor’s order allows restaurants at airports to be open i’ve heard that you’ve heard the argument about why that should be because travelers can’t get out of the airport when they’re changing planes and therefore they have to be allowed to eat on premises so they have some place to eat well maybe so maybe not uh travelers could bring their own food if they’re just making a a a stopover and changing planes they can’t bring their own food they don’t have to eat a restaurant firstly secondly the the the having restaurants open at airports isn’t limited to travelers extreme changing planes that applies to people are coming to an airport to get on a plane it applies to people who are arriving here to at their destination and going home it applies to people who are with travelers guests visitors it applies to anybody so under the governor’s order people can go eat at restaurants and drink at bars if there are airport facilities that makes no sense from a rational basis standpoint compared to the boardwalk which has these significant protocols in effect it’s not and it’s not just airports also the governor’s order doesn’t expense to restaurants and reservations and indeed the governor does that the state has authority to make that kind of regulation if it wants i know the argument has made your honor that well because of the sovereign immunity the state can’t affect resp reservation business that’s not so euron the state does have authority over certain activities that occur on an indian reservation notwithstanding sovereign immunity the state the thompson case is notable that’s a supreme court case from this year in which the authority over this of state over reservation activities now that was a criminal law case but the authority of state of the state over of the state over activities that occur in a reservation is it was recognized in state p thompson that’s a minnesota supreme court case uh it’s number 18-0545 i don’t think we’ve cited it so i’ll give you the number 18-0545 i believe the site is 937 northwest 2nd 418 it was decided in january of this year and it held the pr it was still for the proposition that the state’s authority over criminal uh duis extend to reservation activities granted that’s it’s different than the this case but it stands for the proposition that the state does not have to honor or recognize sovereign immunity when it is engaged in activity for health and safety purposes so by the same token the governor could have in this case extended that reservation and that restriction to reservations he didn’t so there’s another place where people can go eat and drink and cavort without any restrictions as they can in airports and there’s more this law does not apply to school cafeterias now we know some schools are open some aren’t remote learning hybrids and all that but nevertheless there’s eating that goes on in schools and in school cafeterias it may be somewhat of a lesser issue here with the holidays coming on and school being out for the holidays but nonetheless food and food can be served in in school cafeterias if the risks were so high for people gathering together to eat in facilities then that ought to be the school cafeterias ought to be on the governor’s list but they’re not and yet another deviation from a rational uh classification furthermore there are large businesses mainly although some smaller ones perhaps too that have private cafeterias on premises uh many of the larger companies uh have had do have private cafeterias um uh general mills i know does uh many of the fortune 500 companies and even insurance companies and others uh have private cafeterias right in their premises as to somehow some government buildings as well um and there but those restaurants are not restricted in those areas so here we have kind of a patchwork of not only are there irrational distinctions between types of businesses restaurants versus tattoo parlors versus business beauty salons and retail shops place there’s also internal inconsistency and irrationality allowing some restaurants to be open and not allowing others to be open i think these issues are heightened your honor by the supreme court decision in the archdiocese the roman catholic archdiocese case versus cuomo both sides cited it there’s been a fair amount of discussion about that in the last couple weeks in the in in the regular media uh we recognize that of course that that was a first amendment religious freedom case this one isn’t say what you will about restaurants and bars but it doesn’t have any religious connotations that i’m aware of but we’re not arguing that this is that there’s some religious freedom here involved but we we point to that case because in that case the grommet of that case wasn’t just a religious freedom case the court recognized the inconsistencies and irrationalities and the classifications by the city of the governor of new york the restrictions had it were irrational because some places that could be open pose as greater risk as those that were restricted so the fact that it came up in a religious context nevertheless uh was not it wasn’t based solely on first classic first amendment religious freedom issues it was based upon selective selectivity within religious institutions versus non-religious institutions they’re put another way it’s the equal component it’s the equal protection component of the first amendment by treating similar institutions differently and treating different institutions similarly the restrictions in that case violated any rational basis and that was pointed out in the in the concurrence in particular by justice uh by justices kavanaugh and gorsuch the key phrase that emerges out of that case and really provides the underlying rationale for the decision because it was a uh the decision was the fact that the restrictions in the new york case uh were not quote narrowly tailored there were two there was a broad it was a broad bus approach it was over broad it was over inclusive and what the court said there is the restrictions in that case were constitutionally infirmed not solely because they affected religious institutions but because they were not narrowly tailored in a way that took into account lesser alternatives and that’s true that’s true in our case as well your honor there are a number of lesser alternatives that can address the real and serious and substantial public health problems posed by covenant one of those is one we’ve already mentioned having some kind of capacity limits and which is predicated upon not only what the cdc centrifugal disease control has done but also these academic studies that are cited in our reply brief today having those ask you a question about that because uh you i would imagine the state or at least the questions that i have when we’re talking about this is while there may be other options that are different and that that boardwalk would prefer isn’t it the burden on boardwalk to prove that the that the gradations or differences that are in place right now are not rationally related to a a legitimate government purpose and so it’s not that there might be better or alternative provisions or one that would be more tolerable to boardwalk it’s we have these differences in place right now are they or are they not rationally related to a legitimate government purpose right as i’ve indicated just a moment a few moments ago they aren’t rationally related because you have some restaurants are allowed to be open with no restrictions other restaurants are not allowed to be open and has subject to total restrictions but aren’t you asking me they’re the same to consider the same thing that gradations of allowing 25 occupancy allowing these different things are are are kind of the same example now but what we’re saying your honor is that there is no rational basis for this particular order the way it’s structured it allows retailers and retail box stores and other any retail business to be open it allows tattoo parlors and beauty salons to be open doesn’t allow restaurants to be open that’s one type of irrationality but a more serious one is that this executive order allows restaurants to be open at airports in schools in private cafeterias and the like without allowing restaurants to be open like my client that’s an there’s no rational basis for making that distinction so we’re pointing out that the governor here has created an irrational patchwork that does not make sense then we say because it’s irrational one looks to other alternatives are there other alternatives is can this be more narrowly tailored and we say that it can be because the scientific and academic authorities recognize that there’s another way to do this without making that kind of a rational distinction and that’s through some kind of capacity limits indeed the council quoted from the governor in his presentation and i’m going to quote from the governor too but i’m just going to quote two words from the governor in announcing the extension of the lockdown which is that issue here the governor said he’s the governor said this is quote not fair unquote well that’s right and that’s the epitome that that’s a quintessential recognition of an equal protection problem that’s really what equal protection is all about fairness and we recognize perfection isn’t the goal here but at least treating ins similarly situated institutions uh similarly requires some degree of fairness the governor himself has said it’s not fair let me push you on that just a little bit because that’s not the legal standard the legal standard is what is not what’s fair for me to consider under equal protection is is there a rational basis it’s not what is is this fair i think we would all agree that this situation is unfair to everyone uh in varying degrees but that’s not the legal analysis the legal standard isn’t fairness but but but rationality as a component of being rational is being fair if something is now admittedly unfair then one can one looks at whether it’s rational or not if you say this is i’m setting up a system here that’s not fair that connotes that there’s some irrationality in the process so the governor’s recognition that this is not fair is i think a telling admission it’s not conclusive it’s not determinative but it’s suggestive that the that the the lock down restriction deviates from a rational uh irrational edit that separates uh institutions on a rational basis to say something’s not fair means it’s not rational because it can’t be rational if it’s unfair so while we’re not saying this legal standard is fair or unfair because that’s not your job to decide we are saying that when when a when an institution promulgates a rule it’s in in states that the rule is not fair that raises some real red flags as to whether the rule is rational or not and we maintain it’s not there’s a second reason why the the the plan that the boardwalk has a has a likelihood of prevailing and that’s the due process oh i i that’s the due process argument it’s contained in our legal brief i don’t want to dwell on too much but essentially this is a this is a deprivation of property which is income to this institution and uh the government the government can’t take away someone’s income without having simply on a rubric for public health and safety if that were the case there’d be no need for the fifth amendment and the due process clause in this case in cases like it when the government when the government shuts down a business it effectively takes away that business’s economic base and when it does that there’s a violation of due process so we maintain that there’s a legitimate and viable due process claim here and that adds to the likelihood of the boardwalk being prevailing on the merits of this case there are two other uh considerations that come under the dahlberg brothers standard ones of public interest i’ve addressed that before the public has an interest in keeping them people employed allowing them to thrive allowing them to be economically sufficient and the state has an interest in that as well there’s a public interest in seeing that the businesses like the boardwalk don’t go under there’s a public interest in seeing if they may they can derive revenue to pay their sales to pay sales taxes and pay income taxes the state actually benefits from this facility being open so the public interest cuts in favor of denial of injunctive relief the governor has as we all know as of i think was yesterday announced the extension of the lockdown through the early part of january but he has allowed restaurants uh including the boardwalk to um to uh function out outdoors well thank you very much but that doesn’t help here very much in minnesota i think it’s a matter of judicial notice that it gets real cold in minnesota in late december and early january and that might be a good alternative talking about less restrictive alternatives your honor that might be an appropriate alternative if we’re in arizona or florida but we’re not and allowing businesses to restaurants like the boardwalk to remain open for outside dining it’s just it’s illusory in fact it might even be more detrimental to public health uh and people uh sitting outside uh shivering in temperatures well below freezing and perhaps even plunging to to at or below zero uh if that comes up so that doesn’t salvage the sub this uh lockdown order lastly your honor the last uh gaubert brothers factor is administrative uh feasibility in this case a denial of injunction imposing injunctive relief would not be that it would not would pose some administrative problems here one would have to from time to time patrol that see if there’s compliance with the directive or not trying to put out whatever fires occur and it it creates some burden for the court before everybody else however denying injunctive relief with the caveat that this business continued to abide by all appropriate protocols as it has in the past social distancing masking capacity limits and preventive nature matters of that kind would uh not pose any administrative burdens on anybody and would be would facilitate a smooth operation of this business so we maintain you around the dahlberg factory by and large cut in favor of the uh boardwalk in this case and war and denial of injunctive relief in summer your honor we think that the governor lacks authority to enter in to make this order and we think that the balance of factors under dahlberg if applicable uh cut against injunctive relief we would ask therefore that the court dissolved the temporary restraining order deny the injunction and dismiss philosophy thank you thank you mr tanek i’ll just say uh i’m not sure i’m going to ask mr plaguin cool if he has anything further he wants to argue today i’m getting some background noise on your end i don’t know um where it’s coming from but if you will okay thank you i’m just going to take a break here until he comes back mr playing excuse me excuse me ronnie there is a another legal proceeding going on at this remote facility yes thank you all right mr plague and cool you’ve heard mr uh tanek’s argument do you have any uh um summary argument and response go ahead thank you your honor yeah i do have a few things um first uh you know i was pleased to hear uh mr tanek uh state that the rational basis test does apply uh to the defendant’s equal protection claim that the state agrees with that the rational basis test is the correct standard and for that reason the court uh should really once it has a chance to review the the letter filed this morning by the defendants should really disregard that letter it’s arguing for you know less restrictive means narrow narrow terror narrowly tailored uh different restrictions uh that are strict scrutiny arguments that are inapplicable to the rational basis test and so again the the archdiocese case applied strict scrutiny because that was a first amendment free exercise of religion case and is completely distinguishable from the case at bar and and really what the defendants are arguing for um is not only the wrong standard but exactly what the rutledge case uh instructs courts should not do in these circumstances they’re asking this court to second guess the wisdom and efficacy of public health emergency measures that the governor has put in place to deal with the global pandemic and that is not the function of the court uh as the court noted what your role is is to determine is executive order 2099’s restrictions on bars and restaurants uh nationally related to a legitimate public purpose and um you know i don’t think there’s disagreement on the public purpose and with respect to uh rationally related i would again point the court to the fletcher uh decision that was recently issued by the minnesota supreme court again that’s 947 northwest second one and um for example at page 29 through i believe 30 near the end of the opinion the court talks about um over-inclusive and under-inclusive and states that under the rational basis test legislation does not need to be perfect and quote when the basic classification is rationally based uneven effects upon particular groups within a class are ordinarily of no constitutional concern um the calculus of effects the manage a particular law reverberates in society is a legislative and not a judicial responsibility um again your honor the executive order 2099’s restrictions are rational and that is the extent of the courts that the court needs to engage in with respect to analysis here um obviously the defendant believes there should be different policy choices made here that they think there are better policy choices those are legislative questions that the governor in consultation with his experts at the minnesota department of health has had to make they’re difficult decisions uh no doubt during this pandemic but they are rational and they’re supported by the best evidence that the minnesota department of health can provide the governor on a daily basis and so for all those reasons uh the state and for all the reasons stated in our briefing the state respectfully requests that the court enter a temporary injunction in this matter requiring boardwalk to abide by these emergency health restrictions that are in place to protect public health and safety thank you mr tanek any last words tonight this afternoon i should say council said that these are legislative decisions but the legislature hasn’t weighed in at all the statute requires the legislature to be involved in any kind of decisions beyond the first five days and certainly beyond the first 35 days relative to imposition of any kind of directives under the emergency management act the legislature hasn’t been involved that’s why we maintain that the governor lacks authority here so the contention that these are legislative decisions is correct but haven’t occurred here and that’s why the governor’s order is uh invalid thanks for your time council thank you very much again uh for uh your your briefing and your very articulate argument uh today so for now that restraining order against the boardwalk bar and grill uh prohibiting them from doing uh indoor dining and beverage service remains in effect as we wait for uh judge rasmussen’s order we’ll try to get that for you as soon as it’s available i’m Neil Berg reporting for trfnews.i234.me