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Port: State Supreme Court upholds Burgum's executive orders closing businesses during pandemic

Attorney Lynn Boughey, who also represented Bastiat Caucus lawmaker Luke Simons in his aborted legal challenge to his expulsion from the state House of Representatives earlier this year, argued that Burgum's order exceeded his statutory authority and violated Riggins's constitutional rights "to conduct business, engage in employment, and earn a living." Boughey also argued that Burgum's order "violates the separation of powers required between the legislative branch and the executive branch."

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ND Gov. Doug Burgum meets with the Grand Forks Herald editorial board Thursday, May 13, 2021. Photo by Eric Hylden/Grand Forks Herald
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MINOT, N.D. — In April of last year law enforcement officers cited one Kari Riggin for defying an order from Gov. Doug Burgum to shut down businesses, including those providing cosmetology services, during the COVID-19 pandemic.

Riggin operated a salon located in the Somerset Court assisted living facility in Minot owned by right-wing businessman Robert Hale. After receiving a report that her salon continued to operate despite Burgum's order, law enforcement officers visited the facility and found Riggin working with a client. She was cited with an infraction.

Attorney Lynn Boughey, who also represented Bastiat Caucus lawmaker Luke Simons in his aborted legal challenge to his expulsion from the state House of Representatives earlier this year over charges of sexual harassment, argued that Burgum's order exceeded his statutory authority and violated Riggins's constitutional rights "to conduct business, engage in employment, and earn a living." Boughey also argued that Burgum's order "violates the separation of powers required between the legislative branch and the executive branch."

The court disagreed.

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"COVID-19 created circumstances falling within the statutory definitions of both a disaster and an emergency. The legislature expressly included within the definition of disaster an epidemic, which includes COVID-19," the court wrote in a unanimous decision. "The legislature expressly delegated to the governor the power to determine whether the situation was an emergency requiring 'state or state and federal response . . . .' Finally, the legislature included within the delegation of authority the ability of the governor to “[c]ontrol ingress and egress in a designated disaster or emergency area, the movement of persons within the area, and the occupancy of premises therein.”

The court contends that Riggin did not support her constitutional argument against Burgum's order as she did not explain why her business shouldn't be subject to the broad police powers granted to the state, particularly when exercised in a state of emergency.
"Riggin fails to support her argument that E.O. 2020-06.2 is overly broad or vague except for a general reference to a non-binding Legislative Council memorandum that does not include any analysis to the facts presented in this case," the opinion states.

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Attorney Lynn Boughey answers questions from the media during a press conference regarding his client and former Rep. Luke Simons Tuesday in Bismarck. (Jackie Jahfetson/The Dickinson Press)

The justices also found that the emergency powers Burgum was exercising were properly delegated to him by the Legislature, and it's hard to argue with that conclusion.

The steps Burgum, and many other governors across the country, took during the pandemic were extreme. But then, emergency powers were created and delegated to the executive branch for extreme situations, which the COVID-19 pandemic absolutely was.

To comment on this article, visit www.sayanythingblog.com

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Rob Port, founder of SayAnythingBlog.com, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at rport@forumcomm.com .

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at rport@forumcomm.com. Click here to subscribe to his Plain Talk podcast.
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