A Minot cosmetologist’s effort to limit the governor’s authority to close businesses through executive order during an emergency has been rebuffed by the North Dakota Supreme Court.
In an opinion handed down Thursday morning, the court said Governor Doug Burgum, “did not exceed the statutory authority delegated to him” and that the cosmetologist failed to adequately support her challenge to the constitutionality of the executive order that closed, among other businesses, her hair salon during the pandemic.
On March 19, 2020, Governor Burgum issued an executive order that closed certain business establishments in North Dakota, limited physical access to other business establishments in North Dakota, directed state agencies and offices to regulate staffing, and limited access to the North
Dakota State Capitol by appointment only.
On March 27, 2020, the governor ammended the executive order to also include the closure of salons and ordering licensed cosmetologists to cease operations.
The order was later extended to run through April 20, 2020.
On April 14, 2020, Kari Riggin, a licensed cosmetologist, was operating a hair salon at Somerset Court, an assisted living facility, in Minot, in violation of the governor’s executive order. She was cited and charged with violating the order, an infraction.
Riggin challenged the order in district court, which denied her motion to dismiss the citation. The district court ruled the governor held sole responsibility for managing disasters and emergencies and does so through the use of executive order.
Riggin then appealed to the North Dakota Supreme Court, challenging the governor’s executive order on three points:
- The governor exceeded the statutory authority delegated to him
- The executive order was unconstitutional because it restricted her right to conduct business, engage in employment and earn a living
- The executive order was unconstitutional because it violated the sepraration of powers between the legislative and executive branches
But the North Dakota Supreme Court, in a unanimous opinion, shot down each of the arguments, finding the governor did not exceed the statutory authority delegated to him, that the North Dakota Century Code properly delegates police power related to disasters and emergencies to the governor and doesn’t violate the separation of powers between the two branches of government.
The court also said Riggin failed to adequately support her challenge that the order deprived her of her constitutional right to conduct business and earn a living.
Riggin’s attorney, Lynn Boughey, Mandan, said, “We have the option of appealing this to the United States Supreme Court in regards to the application of the United States Constitution to the issues we raised. Based on the US Supreme Court’s recent rulings, I believe that it is quite possible that the United States Supreme Court will have a different opinion as to whether the government can entirely take away someone’s livelihood, particularly when there are least restrictive alternatives available, as was the case here.”
Boughey said, bottom line, there’s a “strong likelihood” that they will appeal to the U.S. Supreme Court.