As Legislature battles over Gov. Tim Walz's powers, courts refuse to reject his authority

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Stephen Montemayor, Star Tribune
·6 min read
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The fight over Gov. Tim Walz's emergency powers is still permeating the 2021 Minnesota legislative session, yet more than a dozen state and federal judges have broadly backed his actions.

In refusing to reverse statewide mask mandates, eviction moratoriums and business restrictions, judges are carving out new precedents for executive power amid the pandemic that has killed nearly 7,000 Minnesotans over the last year.

"There's legislative guardrails but there's also court guardrails and we've won every single case because we stayed closed to the law and common sense," said Attorney General Keith Ellison, whose office has defended Walz in court. "And now we have case law to support what we already suspected the governor's powers were during a peacetime emergency."

Republican lawmakers have spent much of the pandemic arguing that the DFL governor is circumventing the legislative branch. At least one 2022 challenger — Chaska physician and former state Sen. Scott Jensen — is making opposition to Walz's COVID-19 response a top campaign pitch.

The political opposition is in stark contrast with findings by at least 15 state and federal judges that Walz has not exceeded his constitutional authority to respond to crises.

After starting with limited legal clarity on how to respond to a pandemic, the Walz administration and Ellison's office have a clean slate defending court challenges. To date, judges at all levels have been unwilling to second-guess Walz's authority.

"The courts for the most part have given the governor pretty broad leeway to be able to act and have really not imposed too many constraints upon him," said David Schultz, a political science professor at Hamline University.

Several judges ruling on Walz's orders have looked to a 1905 U.S. Supreme Court case that affirmed a Massachusetts prosecution of a man who refused vaccination against smallpox.

That court said states could impose measures that infringe on constitutional rights during a public health emergency: "Liberty secured by the Constitution does not import an absolute right … to be, at all times and in all circumstances, wholly freed from restraint."

Ellison agrees with the ruling, but said its age underscored the extraordinary uncertainty provoked by the COVID-19 pandemic. In the early weeks of responding to its spread, state officials had a limited legal blueprint for imposing orders that closed businesses and requiring mask wearing.

"We were fearful of the possibility that [Walz] didn't have that power because if he didn't then the governor couldn't protect people from a lethal disease," said Ellison, speaking one year after his mother died because of COVID-19 complications. "But it is clear now that he does."

Minnesota's Emergency Powers Act dates to the 1950s and has been used by governors to respond to weather disasters, the Interstate 35W bridge collapse and even the search for Jacob Wetterling.

Nothing has tested the law quite like COVID-19.

The statute lets the governor declare an initial state of emergency for five days. An initial 30-day extension needs signoff by an Executive Council that includes the lieutenant governor, attorney general, state auditor and secretary of state. Further extensions require the Legislature to be in session.

A majority vote from both houses of the Legislature can end the emergency. The GOP-led Senate has voted multiple times to terminate, but similar attempts have not advanced in the DFL-controlled House.

Ellison said his office has spent $425,000 so far defending Walz's orders in court. In many cases, lawsuits seeking to remove Walz's powers took aim at the law itself.

Minneapolis attorney Erick Kaardal, a frequent litigant against the government, is trying to undo the emergency powers statute because he believes it includes an unlawful "legislative veto" and because Walz violated the state's separation of powers.

Representing a group of small businesses, Kaardal recently argued before a state Court of Appeals panel after his suit failed in Ramsey County last fall.

Walz supported Kaardal's earlier plea to speed up arguments in the case to "clarify a governor's authority to respond to an emergency." The Supreme Court refused. But Justice Gordon Moore, the only state high court appointee of Walz's term so far, joined Justice Paul Thissen in a dissent that called the debate over Walz's executive authority "urgent and of statewide importance."

"This is too important not to be clear," Kaardal said.

Senate Majority Leader Paul Gazelka, R-East Gull Lake, said he has tallied efforts to curb emergency powers in at least 40 states. It is evidence, to him, that executive authority has gone too far nationwide.

But with judges unwilling to reverse the emergency orders, any remedy must come from the divided Legislature.

"It reaffirms that we need to continue to add pressure to remove the emergency powers and get back to normal," he said.

House Speaker Melissa Hortman, DFL-Brooklyn Park, said that the breadth of cases pointing to the Legislature's role on emergency declarations deflates GOP arguments that Walz's orders "removes the voice of the Legislature."

"That is not in fact true," Hortman said. "The Democratic House of Representatives, led by a female speaker, has made the decision 17 times whether to side with the opposition or the governor and we've decided 17 times to side with the governor."

Supreme Court Chief Justice Lorie Skjerven Gildea also dismissed three recall attempts last year, finding each time that no allegation proved "malfeasance" by Walz.

Minnesota judges are starting to cite each other's work in their own rulings upholding Walz's decisions, reflecting the growing body of new case law.

Last fall, U.S. District Judge Patrick Schiltz dismissed a challenge to Walz's mask mandate filed by the conservative Minnesota Voters Alliance activist group. Ramsey County Judge John Guthmann cited Schiltz when tossing out a similar case this month, repeating that the First Amendment does not grant the right to put "at risk the lives and health" of others.

Judges keeping Walz's powers in place include both Democratic and Republican appointees. Schiltz was appointed to the federal bench by Republican President George W. Bush. Guthmann was appointed by former GOP Gov. Tim Pawlenty.

U.S. District Judge Eric Tostrud, a Donald Trump appointee, also recently refused to grant an exemption to the mask mandate sought by a group of youth athletes and parents, writing that the "appropriate audience for their argument and objections are Minnesota's political branches," not in court.

When Dakota County Judge Jerome Abrams found Lakeville's Alibi Drinkery in contempt of court after it reopened amid a temporary ban on indoor dining last year, the Pawlenty appointee contemplated the balance communities must strike between preserving liberty and community safety.

"COVID-19 has presented us with a historic challenge," Abrams wrote. "Testing the limits of our ability to survive the disease as well as endure the restrictions necessary to fight it."

Stephen Montemayor • 612-673-1755