Free Minnesota Small Business Coalition, et al. v. Tim Walz, Governor of Minnesota. A20-0641,...

May 26, 2020 STATE OF MINNESOTA IN COURT OF APPEALS Free Minnesota Small Business Coalition, et al., Petitioners, vs. Tim Walz, Governor of Minnesota, Respondent.

ORDER A20-0641 Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and Rodenberg, Judge.

BASED ON THE FILE, RECORD, AND PROCEEDINGS, AND FOR THE FOLLOWING REASONS: Petitioners, Free Minnesota Small Business Coalition and seven individual businesses, filed a petition for declaratory judgment seeking to challenge four emergency executive orders (EEOs) issued by the governor during March and April 2020 in response to the COVID-19 pandemic. This court questioned whether the EEOs are subject to this court's jurisdiction to review the validity of administrative rules under Minn. Stat. § 14.44 (2018), and directed the parties to file informal memoranda addressed to the jurisdiction issue.

Under Minn. Stat. § 14.44: The validity of any rule may be determined upon the petition for a declaratory judgment thereon, addressed to the court of appeals, when it appears that the rule, or its threatened application, interferes with or impairs, or threatens to interfere with or impair the legal rights or privileges of the petitioner.

Section 14.44 is part of the Minnesota Administrative Procedure Act (MAPA), Minn. Stat. §§ 14.001-.69 (2018). Under MAPA, a "rule" is defined as "every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure." Minn. Stat. § 14.02, subd. 4. Only formally promulgated rules may be challenged in an action under Minn. Stat. § 14.44.

Minn. Ass'n of Homes for the Aging v. Dep't of Human Servs., 385 N.W.2d 65, 69 (Minn. App. 1986).

The EEOs were issued pursuant to the governor's authority under the Minnesota Emergency Management Act of 1995, Minn. Stat.§§ 12.01-.61 (2018). Petitioners assert that the EEOs are statements of general applicability and future effect and are therefore subject to review under Minn. Stat.§ 14.44. However, MAPA expressly excepts from its application "emergency powers in sections 12.31 to 12.37." Minn. Stat. § 14.03, subd. 1.

And, consistent with the exception in MAPA, Minn. Stat.§ 12.21, subd. 3(a), authorizes the governor to "make, amend, and rescind the necessary orders and rules to carry out the provisions of this chapter ... without complying with sections 14.001 to 14.69" Thus, the EEOs were neither required to be formally promulgated under MAP A nor were they so promulgated. Accordingly, the EEOs are not subject to review by this court under Minn. Stat. § 14.44. For this reason, we dismiss the petition without reaching petitioners' argument that the EEOs violate equal-protection rights.

IT IS HEREBY ORDERED: The petition for declaratory judgment is dismissed.

Dated: May 26, 2020 BY THE COURT Francis J. Connolly Presiding Judge