'There's a lot at stake here': Minnesota Supreme Court agrees to hear challenge to governor's pandemic emergency powers

[MUSIC PLAYING] CATHY WURZER: The State Supreme Court will ponder this question. Did the governor's emergency powers during COVID-19 violate the state constitution? That question is officially headed back to the state's highest court. The State Court of Appeals sided with Walz back in July. Now, the Supreme Court has agreed to review the case. For more context on this issue, Jason Marisam is on the line. He's an associate professor of law at Mitchell Hamline School of Law in the Twin Cities. Professor, welcome back.

JASON MARISAM: Hi, Cathy. Happy to be here.

CATHY WURZER: So this case was a lawsuit filed by a group of residents and businesses and churches who thought that the governor's mask mandate was unconstitutional. Give us the legal argument behind that.

JASON MARISAM: Yeah, so what's left of this case is really a pretty important question of whether the governor's peacetime emergency powers covers pandemic emergencies. Now, some might be thinking, Hey, why are we talking about this now, right? The governor hasn't had an emergency order on COVID for over two years. The mask mandates are long gone.

Well, what the Supreme Court, the Minnesota Supreme Court has said is, yeah, we know most of these issues around COVID, they're moot. There's no live dispute anymore that the court needs to decide. But the court has said, we think there's this issue of whether the governor's peacetime emergency powers, whether they cover pandemics. And that's big enough, important enough that we should resolve this now so that the next time we find ourselves in this situation where there's a pandemic, that there's certainty and no doubt on whether the governor's emergency powers apply. So that's what the court's going to do.

CATHY WURZER: Got it. Now, in July, the Court of Appeals ruled, as I mentioned, that the governor did not exceed his authority when he declared this peacetime emergency. This case has gone being batted back and forth between the high court, the appeals court. What's been going on with that?

JASON MARISAM: Yeah, so it did. You're right, Cathy. It went all the way up to the Supreme Court. And there was a whole bunch of issues the first time it went up, including like, hey, does the governor have the power to have this mask mandate among others.

And the court said, OK, we're done with this COVID. It's. Over it's moot. It's not live. But let's have the Court of Appeals take the first crack at addressing this question about whether the governor's emergency powers in this statute, the Emergency Management Act covers pandemics. And so they sent it back down to the Court of Appeals. And the court said, yeah, we think it does.

Now, here's the thing that it's super important question. And if you're a law nerd, here's the issue that gets you excited. It's really about interpreting this text from the statute that says, the governor has peacetime emergency powers over acts of nature. And so it's a question of what is acts of nature mean.

Clearly, that's things like tornadoes and floods. Is it pandemics? And the Court of Appeals said, yeah, we think it's a broad enough definition-- acts of nature are broad enough that it covers pandemics and that Governor Walz was within his authority when he declared emergency powers during the pandemic. So now, the Supreme Court will answer that question. And, again, the idea here is to say if we ever find ourselves, unfortunately in this situation again, we want there to be certainty so there isn't any fight right off the bat about what the scope of the governor's powers are.

CATHY WURZER: And if I'm not mistaken, didn't the plaintiffs also argue that the-- I'm going to maybe mess this up-- the Minnesota Emergency Management Act, which I believe was in 1996, weren't they arguing that that was an unconstitutional surrender of legislative power to the governor? Did the Court of Appeals rule--

JASON MARISAM: That's right.

CATHY WURZER: --on that?

JASON MARISAM: No, so they did make that argument. And this just gets sort of into wonky procedural stuff. That argument was made. And the Court of Appeals said, we don't think that issue is live anymore. We think when the Supreme Court sent this back to us, they just wanted us to address the scope of the governor's peacetime emergency powers.

But the Supreme Court could say something different. So that question could be-- it'll be briefed probably at the Minnesota Supreme Court. And they'll do whatever they want to.

CATHY WURZER: Now, we should--

JASON MARISAM: It is still a live issue.

CATHY WURZER: OK, it's still a live issue. So we should note, by the way, that you were an assistant attorney general under Attorney General Keith Ellison. What's the state's argument in all this?

JASON MARISAM: Well, all along-- and I will be clear that I didn't work directly on this case or ones that were directly on point in this when I was there, although I did work on other COVID-related matters. From this textual argument-- I mean, so there are two main big picture arguments.

I mean, first, you have this idea that, hey, in an emergency, we need a chief executive who can act quickly. And that's what the Emergency Management Act does. It gives the governor the power to respond to these emergencies quickly. You can't wait for legislative action if there's a massive disaster. And the state needs to act quickly.

And that's what the initial premise is here. And so there's that constitutional authority in the background. And then you get into this nitty gritty textual argument about whether pandemics are covered under these acts of nature. I mean, clearly, everyone agrees, tornadoes, floods, earthquakes, those are acts of nature. But how about a pandemic?

One argument that was thrown out there in the case, they said, hey, if we can show that COVID originated in a lab that, makes it seem like it's not an act of nature. And the Court of Appeals rejected that and said, we're not going to get into that. We think that pandemics under our broad definition of acts of nature are covered, and the governor can respond to them.

CATHY WURZER: It'll be interesting, won't it, to see what the Supreme Court comes up with in this ruling. I mean, if the high court were to decide against the governor, my gosh, that might change executive powers certainly and the governor's ability to respond to emergencies in the future.

JASON MARISAM: Absolutely. No, there's a lot at stake here. Now, one benefit of doing this now as opposed to right in the middle of the heat of the emergency is that if the legislature disagrees, they can change the statute. And there's time for that. So whatever the court does, they don't necessarily need to be the last word. If it's a question of what the statute means, the legislature, if they want to, could come in to clarify that.

I'll add one more thing that's a little interesting here is the newest Supreme Court Justice Karl Procaccini was general counsel for Governor Walz. And it seems like he's going to be recusing himself. He didn't take part in the granting the petition to review this case. And my guess is that he wouldn't also take part in hearing and ruling on it, generally.

CATHY WURZER: Oh, yes, of course. Thanks for bringing that up. We appreciate it. Say, by the way, for folks always want to know this, and it's always hard to determine, when might we expect a ruling on this?

JASON MARISAM: Gosh, well, the first that come out with a briefing schedule-- and the parties would need to get their briefs in. After the first brief, there's going to be 30 days till the next brief and then more briefing. Then there'll be an oral argument that's set. After the argument, the court could come out with it at any time. But I would expect on a big issue like this, it would take several months for them to draft the opinion. So it's not right around the corner that an opinion would be coming down.

CATHY WURZER: All right. Excellent context here, professor. Thank you so much.

JASON MARISAM: Absolutely, my pleasure.

CATHY WURZER: Jason Marisam is an associate professor of law at Mitchell Hamline School of Law.