In this webcast screen grab, Gov. Tim Walz gives a pandemic update during a Nov. 11, 2020, press conference.


Court of Appeals rules against rural eatery that claimed pandemic discrimination


An executive order did not violate a rural restaurant’s constitutional equal protections, even though eateries on Indian reservations weren’t subjected to the same COVID-19 restrictions.

That is the Minnesota Court of Appeals’ unanimous, non-precedential ruling Tuesday. The opinion affirms a civil contempt judgment and temporary injunction against Southwest School of Dance, L.L.C., doing business as the Havens Garden restaurant in Lynd, Minn.

Appellants’ attorney Nathan Hansen said his clients are considering a writ of certiorari petition to the Minnesota Supreme Court. “This will be an important issue, if there are subsequent lockdown orders this fall, as Australia is currently experiencing,” Hansen said in an email.

The appellate panel affirmed December 2020 findings from Ramsey County District Court Assistant Chief Judge Sara Grewing. In doing so, judges rejected arguments that a November 2020 executive order from Gov. Tim Walz discriminated “in favor of tribal restaurants.”

As Court of Appeals’ Judge Carol Hooten writes:

“Applying rational-basis review, we conclude that the distinction between restaurants on tribal and non-tribal land in [Emergency Executive Order] 20-99 does not violate the United States and Minnesota Constitutions’ guarantees of equal protection. Therefore, the District Court did not err by issuing a temporary injunction against appellant and finding appellant in constructive civil contempt.”

Judges Diane B. Bratvold and Francis J. Connolly joined in the Court of Appeals’ opinion.

Ramsey County District Court Assistant Chief Judge Sara Grewing

Ramsey County District Court Assistant Chief Judge Sara Grewing

District Court order

On Dec. 16, 2020, Grewing ruled that the Lynd eatery violated Emergency Executive Order 20-99, issued at a time when confirmed COVID-19 cases and deaths were surging. Walz’s Nov. 18, 2020, order blocked restaurants and bars from serving on-premises for four weeks, though they could continue takeout and delivery services.

Walz’s order exempted activities by tribal members inside Indian reservations, though it said pandemic restrictions might be imposed by tribal authorities.

On Nov. 23, 2020, Southwest Health and Human Services, a six-county licensing authority, queried Havens Garden about its advertised Nov. 27 open-mic night, where food and drink would be served on site. Officials warned the event would violate the governor’s order.

It went forward, anyway, and health inspectors visiting the restaurant saw between 80 and 100 people gathered inside that night.

On Dec. 9, Havens Garden was ordered to halt operations. It refused. Instead, a Facebook video announced it would defy the governor and stay open.

That’s when Commissioner Jan Malcolm’s state Health Department got involved by filing a civil complaint and moving for a restraining order and injunction. Malcolm asked the District Court for an order forcing the restaurant to comply with Walz’s emergency order, which had the full effect of law.

The District Court granted the temporary restraining order on Dec. 12, but the restaurant remained defiant. In her Dec. 16 temporary injunction order, Grewing wrote:

“Defendant’s purported rationale for its non-compliance appears to be that it does not believe Executive Order 20-99 is valid or constitutional. … The defendant’s answer simply asserts that the plaintiff is violating its constitutional rights because the governor has not shut down bars and restaurants on tribal land in Minnesota.”

She ordered the restaurant to close and certify compliance within one hour. According to Tuesday’s Court of Appeals ruling, there is no evidence that order was followed.

The state then asked Grewing’s court for a show-cause order explaining why Havens Garden shouldn’t be held in contempt. At a Dec. 18, 2020, hearing on that motion, the appellant informed Grewing it would not comply with her court or with the governor, because the executive order was “unlawful and unconstitutional.”

The District Court then found Havens Garden in constructive civil contempt and ordered it to pay a $250 fine for each day it violated the court’s order, starting on Dec. 19. Grewing said she would vacate her order as soon as the business certified compliance.

It never happened, Hooten writes for the Court of Appeals:

“There is nothing in the record indicating that appellant has certified or demonstrated compliance with the District Court’s Dec. 12, 16, and 18 orders. Appellant now appeals the District Court’s civil contempt judgment and the underlying temporary injunction.”


‘You’re missing the mark’

On appeal, attorney Hansen offered the same argument heard by Grewing—that the governor’s order violated his client’s equal protections by treating tribes differently.

At oral arguments, Hooten noted that Indian tribes are sovereign entities granted the right by Congress to self-govern. “You’re not denying that?” she asked Hansen. “Your honor, respectfully,” Hansen replied. “I think you’re missing the mark here.”

He said his case was grounded in 25 U.S. Code § 231. That federal law permits states to inspect health and educational conditions and to enforce quarantine regulations on reservations. The same law allows states to require compulsory schooling for Indian children.

“Mr. Hansen, are you suggesting that Section 231 requires the state to do this?” Judge Bratvold asked. “Or that it’s authorized to do this?”

“Well, sure,” Hansen said, “but if it’s authorized, it’s a violation of equal protection to not do so.”

At points, Hansen seemed to call into question whether—given the governor’s tribal exemption—a serious health crisis was really happening at the time of the November order. “If you have a public health emergency and it’s killing everybody, you shut it down,” he told the court. “There’s no rational reason in the world why you would continue to have these operate when people are dying.”

In an email to Session/Law, the lawyer expressed the point more forcefully.

Writes Hansen:

“The ruling illustrates that the pandemic was not as serious as it was sold to the public by the Walz administration. Bars and restaurants on Indian reservations were specifically excluded from the governor’s shutdown orders—and they were packed.”

In the event, judges didn’t pursue that topic as a line of inquiry. But Bratvold did point out that the U.S. Supreme Court’s Morton v. Mancari ruling presented Hansen’s side with a problem.

“What do you suggest that we do with that legal authority, which appears to indicate that the state and the national government will recognize tribal sovereignty as not an equal-protection issue?” she asked.

The 1974 Mancari ruling found that treating Indians preferentially in some circumstances was not racially discriminatory or a due-process violation, because it served the legitimate interest of tribal self-government.

“It’s a legitimate governmental interest, but only under ordinary circumstances,” Hansen told the court. “These are not ordinary circumstances.”

Circumstances were anything but ordinary in November 2020. According to state Department of Health figures, 2,623 Minnesotans died in the pandemic’s early months between March and November 2020. By the time Walz’s EO 20-99 expired on Dec. 18, there were 5,314 total COVID-19 deaths statewide. By Jan. 1, 2021, the number was 5,914 deaths.

As the graphic below indicates, confirmed COVID-19 cases also spiked to record levels around the time of the order.

This Department of Health graphic shows COVID-19 cases in Minnesota spiking in November 2020. (Minnesota Department of Health graphic)


‘Very large red herring’

Assistant Attorney General Kaitrin C. Vohs, arguing for Malcolm, pointed out that Hansen’s § 231 argument was not raised at District Court. Courts typically don’t entertain new arguments during appellate review.

“The equal-protection argument was raised, but based on an entirely different law,” she said. “So it’s an entirely different legal theory that appellant raises on appeal.”

At District Court, Havens Garden argued the state had authority to regulate tribal bars through Public Law 280, and failing to do so violated equal protections. Passed by Congress in 1953, Public Law 280 gave six states, including Minnesota, added criminal and civil jurisdiction over tribal lands.

Grewing rejected the argument. During Court of Appeals oral arguments, Judge Connolly asked Vohs whether, by introducing 25 U.S. Code § 231 on appeal, appellants were approaching the court with “unclean hands.”

“Essentially, yes, your honor,” Vohs said. “So the tribal jurisdiction question—although it’s an interesting question—it’s not relevant to this case. It’s essentially a very large red herring that this court need not consider.”

On rebuttal, Hansen said both laws fit his common theme of constitutional rights violations. “Not citing to that specific statute should not be fatal to this argument,” the attorney said. “We have it all here. It’s well-briefed.”

Hooten was skeptical. “You’re hanging your whole argument on that statute, which you never raised below. So the District Court never had a chance to even deal with it.”


Court of Appeals Judge Carol Hooten

Court of Appeals Judge Carol Hooten

‘No different result’

In Tuesday’s opinion, Hooten relegates appellants’ “whole argument” to a footnote.

The court need not consider whether § 231 authorized the governor to exercise tribal jurisdiction during a state emergency, that footnote says. Nor need it entertain a parallel argument with respect to Minn. Stat. § 12.32. Appellant, the footnote says, “failed to raise these arguments to the District Court and therefore forfeited them on appeal.”

The court did, however, consider several other key issues raised by appellants.

Hansen maintained the court must apply a “similarly situated test”—a legal standard that “all similarly situated individuals shall be treated alike.” He also argued that rational-basis scrutiny applies and by that measure Walz’s order cannot be enforced.

Hooten disagreed on the first point. The similarly-situated test isn’t required here, she writes, because U.S. Supreme Court caselaw consistently rejects the notion that laws treating tribal members as a distinct class violate equal protections.

She agreed the rational-basis test applies, but not that it cuts Hansen’s way. She found it requires the court to uphold the executive order as long any special treatment that it provides “can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians.”

Such ties are detectable: Walz’s order protects and promotes tribal sovereignty, fosters tribes’ public health self-governance and fulfills Minnesota’s “unique obligations toward Indians,” the court found.

Concludes Hooten:

“Thus, under rational-basis review of EEO No. 20-99, our state constitution mandates no different result than the United States Constitution.”

‘Can of worms’

Not everything went the state’s way. The court denied the state Attorney General’s motion to dismiss the appeal as moot. Keith Ellison’s office, representing Malcolm, filed that motion post-argument on grounds that the executive order no longer was in effect.

The court declined to find mootness, reasoning that the appellant might have won relief on appeal—for instance, the court could have reversed the contempt judgment.

Meanwhile, a possible revocation of appellant’s food and beverage license is pending before the Office of Administrative Hearings, and the order’s constitutionality is challenged there. Thus, the District Court’s rulings could have collateral effects, so the case is not moot.

Hansen shared his thoughts about the pending OAH administrative action in his email to Session/Law.

“The administrative action is an attempted end-run by Attorney General Ellison and the Walz administration so they can be in a more favorable forum,” he wrote.

Apparently anticipating an appeal, Hansen’s clients remained defiant as ever after Tuesday’s ruling. In an unsigned social media post, someone from the restaurant wrote that the Court of Appeals’ decision will “open up a huge can of worms.”

Session/Law logo by Kirk Anderson