Court filing

Defendants' motion to dismiss brief — Heights Apartments v. Walz

Filed October 16, 2020 in Heights Apartments v. Walz; one of 14 filings from this case.

Record facts

Court	U.S. District Court for the District of Minnesota
Filed	2020-10-16

Full text

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Heights Apartments, LLC, and Walnut
Trails, LLLP,

Plaintiffs,

Tim Walz, in his individual and his official
capacity as Governor of the State of
Minnesota, and Keith Ellison, in his
individual and his official capacity as
Attorney General of the State of Minnesota,
and John Doe,

Defendants.

Court File No. 20-CV-02051 (NEB/BRT)

DEFENDANTS’ MEMORANDUM
IN SUPPORT OF MOTION TO
DISMISS COMPLAINT

INTRODUCTION

With this case, Plaintiffs Heights Apartments and Walnut Trails (“Landlords” or
“Plaintiffs”) seek to dislodge a crucial piece of Minnesota’s response to the COVID-19
puzzle: a temporary limitation on state court evictions. Through a series of emergency
executive orders, Governor Tim Walz (“Governor”) has limited the spread of COVID-19
by limiting landlords’ ability to summarily displace their tenants, with exceptions
designed to balance the interests of landlords and tenants. Such measures have allowed
tenants to quarantine, adhere to social distancing guidelines, and stay out of settings that
increase the risk of infection. Plaintiffs’ arguments fail under controlling case law,
however, and have been rejected by every court to have considered them. Further, the
Court lacks jurisdiction over some aspects of Plaintiffs’ Complaint because Defendants

are immune from those claims, and should abstain from reaching issues of purely state
law. Because each of Plaintiffs’ claims fails as a matter of law, this Court should dismiss
the Complaint in its entirety and with prejudice.
FACTS1
I.

THE COVID-19 PANDEMIC.
COVID-19 is an infectious disease caused by a newly discovered coronavirus that
spreads rapidly through respiratory transmission. (Goodwin Decl., Ex. 1.) COVID-19 is
spread from person-to-person contact through respiratory droplets that are produced when
an infected person coughs, sneezes, or talks. (Id., Ex. 2.) Many experts believe that
COVID-19 is also spread through airborne transmission caused by the dissemination of
aerosols that remain infectious when suspended in air over long distances and time. (Id.,
Exs. 3, 4, 21.) Asymptomatic individuals may carry and spread the virus and there is
currently no known vaccine or effective treatment, making response efforts complex and
daunting. (Id., Exs. 4.)
On March 11, 2020, the World Health Organization declared COVID-19 a global
pandemic. (Id., Ex. 23.) As of October 15, 2020, 117106 Minnesotans have tested
positive for COVID-19 and 2,199 have died. (Id. ¶ 7.) The virus has claimed over

1 The factual background is taken from the Complaint, the EOs and documents embraced
by the Complaint, and matters of public record. These materials are properly considered
on a motion to dismiss. See Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931
n.3 (8th Cir. 2012); Little Gem Life Sciences, LLC v. Orphan Med., Inc., 537 F.3d 913,
916 (8th Cir. 2008); Fed. R. Civ. P. 65. For the Court’s convenience, the relevant
documents are attached to the Declaration of Michael Goodwin (“Goodwin Decl.”). The
Goodwin Declaration was submitted in connection with Defendants’ opposition to
Plaintiff’s Motion for a Temporary Injunction. (ECF Doc. 13.)

216,025 lives in the United States since January 24, 2020. (Id. ¶ 8.) Minnesota is
currently experiencing a surge in cases, reporting a record high of 1,500 newly confirmed
cases on Saturday, October 11. (Id., Ex. 5, 18.) And while infection counts in Minnesota
continue to set records, they pale in comparison to neighboring states, which one
University of Minnesota epidemiologist described as “houses on fire.” (Id.)
Public health professionals anticipate that COVID-19 will persist in Minnesota—
with intermittent infection rate fluctuations—for the foreseeable future. (Id., Ex. 8 at 6.)
Because of the deadly and ongoing threat presented by COVID-19, federal, state, and
local officials have taken steps to avoid an exponential infection rate increase that could
overwhelm medical providers and ultimately result in a higher rate of death for sickened
Minnesotans.
II.
MINNESOTA’S RESPONSE TO COVID-19.
In response to the COVID-19 public health crisis, Governor Tim Walz declared a
peacetime emergency on March 13, 2020. Emergency Executive Order (“EO”) 20-01.2
That same day, the President declared a National Emergency, and—for the first time in
history—the President has approved major disaster declarations in all 50 states.
(Goodwin Decl., Exs. 6, 9.) Minnesota has engaged in a comprehensive plan to combat
COVID-19 that includes slowing the spread of the disease, protecting the capacity of the
state’s medical system to respond to the disease, and ensuring the continued operation of

2 All of Minnesota’s Emergency Executive Orders regarding COVID-19 are available
online at www.leg.state.mn.us/lrl/execorders/eoresults?gov=44.

critical sectors to protect the public’s access to necessary services and supplies. See EOs
20-02 through 20-92. The Governor has extended the peacetime emergency each thirty
days since March, and that emergency can be terminated by the Legislature. Minn. Stat.
12.31, subd. 2(b).
III.
COVID-19 AND HOUSING STABILITY
Like the federal government and many state governments, Minnesota has
temporarily limited the ability of property owners to evict tenants. Under state law,
eviction is “a summary court proceeding to remove a tenant or occupant from or
otherwise recover possession of real property” pursuant to a statutory procedure. Minn.
Stat. § 504B.001, subd. 4.
On March 13, the Minnesota Judicial Branch suspended housing court hearings for
unpaid rent and unlawful detainers. (Goodwin Decl. Ex. 20.) Ten days later, Governor
Tim Walz issued Emergency Executive Order 20-14.3 Recognizing the economic
consequences of the pandemic as well as the connection between housing stability and
control of community spread of the virus, Executive Order 20-14 temporary limited the
circumstances in which property owners can terminate residential leases or use the
statutory eviction procedure. Noting similar measures by the federal government and 24
other states, the Governor stated:
Public health and safety are promoted by stabilizing households which,
through no fault of their own, may suddenly have the inability to afford

3 Emergency Executive Order 20-73 amended Executive Order 20-14. Both EO 20-14 and 20-73
were rescinded when EO 20-79 became effective. EO 20-14, 20-73, and 20-79 are collectively
referred to as the “Challenged Orders.”

rent. Providing a temporary moratorium on eviction actions allows these
households to remain stably housed as they safeguard the health of
themselves, their families, and other Minnesotans.

EO 20-14, p. 2. EO 20-14 excepted evictions cases in which the tenant “seriously
endangered the safety of other residents” and for violations of Minnesota Statutes §
504B.171, subd. 1, which provides that a tenant loses the right to possession of the
property by engaging in illegal activity related to drugs, firearms, prostitution, or stolen
goods on the property. Executive Order 20-14 specifically provided that it did not affect
a tenant’s continuing obligation to pay rent. Id. On June 5, 2020, the Governor issued
Executive Order 20-73 to clarify the application of EO 20-14 “to situations where a
tenant seriously endangers the safety of others who are not residents.” EO 20-73, p. 1.
On July 14, 2020, Governor Walz issued Emergency Executive Order 20-79,
which rescinded EO 20-14 and EO 20-73, and which took effect on August 4, 2020.
Emergency Executive Order 20-79 created additional exceptions to the eviction
moratorium, including an exception for when a tenant violates a lease by “significantly
damag[ing] the property.” On the same day, the Governor released $100 million in rental
assistance to assist both landlords and tenants in meeting financial obligations. Id. Local
officials have supported the Governor’s actions related to housing stability and
encouraged the Governor to strengthen protections for tenants. (Ex. 23.)
The federal government has recognized that housing instability likely contributes
to spread of the virus. The federal Coronavirus Aid, Relief, and Economic Security Act,
P.L. 116-136, (“CARES Act”) imposed a 120-day moratorium on most eviction
proceedings against residential tenants who live in properties that participate in federal

housing assistance programs or are subject to federally-backed loans. The CARES Act
moratorium expired on July 24, 2020. Then, on September 1, 2020, the Centers for
Disease Control issued an emergency order banning on evictions nationwide (“CDC
Moratorium”). Temporary Halt in Residential Evictions To Prevent the Further Spread
of COVID-19, 85 Fed. Reg. 55295 (Sept. 4, 2020) (“CDC Moratorium”). The CDC
Moratorium is effective until December 31, 2020, and applies “to any property leased for
residential purposes.” 85 Fed. Reg. 55293, 55297. To be protected by the CDC
Moratorium, a tenant must submit a declaration that states, among other things, that the
individual meets income guidelines, has used best efforts to obtain housing assistance and
make at least partial rent payments, and would be rendered homeless if evicted. Id. at
55293. The CDC Moratorium is in effect “in any State or U.S. territory in which there are
documented cases of COVID–19 that provides a level of public-health protections below
the requirements listed in this Order.” 85 Fed. Reg. 55296.
There is evidence that these measures have been effective in controlling spread of
the virus. In issuing the emergency order, the CDC noted that the CARES Act
Moratorium and state moratoria had likely contributed to lower infection rates:
The Federal moratorium, however, did not reach all renters. Many renters
who fell outside the scope of the Federal moratorium were protected under
State and local moratoria. In the absence of State and local protections, as
many as 30–40 million people in America could be at risk of eviction. A
wave of evictions on that scale would be unprecedented in modern times.
A large portion of those who are evicted may move into close quarters in
shared housing or, as discussed below, become homeless, thus contributing
to the spread of COVID–19.

CDC Moratorium, 85 Fed. Reg. 55295 (Sept. 4, 2020). Eviction rates in Minnesota for
the six months in which the Challenged Orders have been in effect are a fraction of what
they otherwise would have been. (Goodwin Decl. Ex. 17). This has reduced the strain on
programs such as homeless shelters, which has allowed the shelters to remain within their
capacity and use their limited resources to protect the health of the populations they
already serve. Data from elsewhere shows that infection rates in such settings are
substantially higher than in Minnesota. (Goodwin Decl. ¶28.) In Iowa, for example, the
positivity rate for clients of homeless shelters is nearly 70 percent, compared to just over
seven percent in Minnesota. (Id.)
Plaintiffs filed this lawsuit on September 24, 2020. (ECF Doc. 1.) Plaintiffs own
rental housing in Minnesota. (Compl. ¶¶3-4.) Plaintiff Walnut Trails claims that ten
percent of the units in its 168-unit complex have not paid on time in the last six months.
(Johnson Aff. ¶7.) Plaintiff Heights Apartments claims that tenants in four of the
seventeen units it recently purchased have caused disturbances to other residents and
would normally have been subject to lease termination. (Cullen Aff. ¶¶5-10.) Heights
claims to be unable to terminate the leases of these tenants because of the Challenged
Orders. (Id. ¶10.) However, Plaintiffs’ Complaint fails to state any cognizable claim and
should be dismissed.
ARGUMENT
I.

RULE 12 STANDARDS.
Defendants bring this motion for lack of subject-matter jurisdiction and failure to
state a claim under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Where, as

here, a Rule 12(b)(1) motion raises a facial challenge “the factual allegations concerning
jurisdiction are presumed to be true and the motion is successful if the plaintiff fails to
allege an element necessary for subject matter jurisdiction.” Titus v. Sullivan, 4 F.3d 590,
593 (8th Cir. 1993).
Under Rule 12(b)(6), a motion to dismiss must be granted where the complaint
does not allege “enough facts to state a claim for relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court must accept as true the
factual allegations in the complaint and draw all reasonable inferences in plaintiffs’ favor.
Blankenship v. USA Truck, Inc., 601 F.3d 852, 858 (8th Cir. 2010). Legal conclusions,
however, may be disregarded. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12(b)(6)
also authorizes dismissal “on the basis of a dispositive issue of law.” Neitzke v. Williams,
490 U.S. 319, 326 (1989).
Under these standards, Plaintiff’s Complaint should be dismissed. First, the Court
lacks jurisdiction over Plaintiffs’ official capacity claims, and over Count VI of the
Complaint. Alternatively, because Plaintiffs’ Count VI raises issues of state law, the
Court should abstain from hearing the state law claim. Finally, all of Plaintiff’s claims
fail as a matter of law and should be dismissed.
II.
THE COURT LACKS JURISDICTION OVER COUNT VI OF PLAINTIFFS’
COMPLAINT, AND OVER PLAINTIFFS’ OFFICIAL CAPACITY CLAIMS.
Count VI of Plaintiff’s Complaint should be dismissed because Defendants are
entitled to immunity. See Hagen v. Sisseton-Wahpeton Cmty. Coll., 205 F.3d 1040, 1043
(8th Cir. 2000) (“[I]mmunity is a jurisdictional question.”). Alternatively the Court

should abstain from hearing Plaintiffs’ claims under R.R. Comm’n of Tex. v. Pullman Co.,
312 U.S. 496 (1941).
Subject-matter jurisdiction is a threshold requirement which must be assured in
every federal case. Kronholm v. F.D.I.C., 915 F.2d 1171, 1174 (8th Cir. 1990). “If the
asserted basis of federal jurisdiction is patently meritless, then dismissal for lack of
jurisdiction is appropriate.” Biscanin v. Merrill Lynch & Co., Inc., 407 F.3d 905, 907
(8th Cir. 2005).
A. Defendants are immune from claims alleging violation of Minnesota law.

Count VI of Plaintiff’s Complaint alleges that the Governor was without authority
under state law to issue the Challenged Orders. (Compl. ¶74-81.) The Court lacks
jurisdiction over this state law question. Plaintiff is also just plain wrong.
First, the Eleventh Amendment does not allow a federal court to grant “relief
against state officials on the basis of state law.” Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 106 (1984). In other words, the Pennhurst doctrine bars
“a claim that state officials violated state law in carrying out their official
responsibilities,” In re Abbott, 956 F.3d 696, 720-21 (5th Cir. 2020), because “it is
difficult to think of a greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state law.” Pennhurst,
465 U.S. at 104.
Applying Pennhurst in a case challenging a different executive order, a federal
district court in the District of Minnesota recently determined that it “lack[ed] jurisdiction
to resolve plaintiffs’ claims that [the executive order] violates the Minnesota

Constitution.” Minnesota Voters All. v. Walz, No. 20-CV-1688 (PJS/ECW), 2020 WL
5869425, at *7 (D. Minn. Oct. 2, 2020). Numerous federal courts throughout the country
have rejected similar attempts by plaintiffs to seek redress from federal courts for
grievances grounded in the application of state law. See, e.g., Elim Romanian
Pentecostal Church v. Pritzker, 962 F.3d 341, 344 (7th Cir. 2020); PCG-SP Venture I
LLC v. Newsom, No. EDCV20-1138, 2020 WL 4344631, at *11 (C.D. Cal. June 23,
2020); Hartman v. Acton, No. 2:20-cv-1952, 2020 WL 1932896, at *3 (S.D. Ohio Apr.
21, 2020). This is a state law claim against state officials over which this Court lacks
jurisdiction. See Elmsford Apartment Assocs., LLC v. Cuomo, No. 20-cv-4062, 2020 WL
3498456, at *6 (S.D.N.Y. June 29, 2020) (finding no jurisdiction over claim that
governor “abused [his] power” in responding to the COVID-19 emergency and therefore
improperly asked the court “to police the boundaries of [state law]”); see also
Auracle Homes, LLC v. Lamont, -- F. Supp. 3d. --, 2020 WL 4558682 (D. Conn. Aug. 7,
2020) (same). This Court should do the same.
Count VI of the Complaint also fails because Plaintiffs are incorrect that the
Challenged Orders violate Article 3, §1 of the Minnesota Constitution, which establishes
separation of powers. Under the Minnesota Emergency Management Act, the Governor
has authority to declare a “peacetime emergency” and “to make, amend, and rescind the
necessary orders and rules to carry out the provisions of [Chapter 12].” Minn. Stat. §§
12.31, subd. 2; 12.21, subd. 3(1). Discretionary authority delegated by the legislature
satisfies separation of powers and does not amount to a delegation of pure legislative
power, when the law furnishes “a reasonably clear policy or standard” for the executive

branch to implement. City of Richfield v. Local No. 1215, Int’l Ass’n of Fire Fighters,
276 N.W.2d 42, 45 (Minn. 1979). As a district court judge in Ramsey County recently
determined, the Minnesota Emergency Management Act “provides clear standards for the
Governor’s exercise of this authority.” Order and Memorandum, Free Minnesota Small
Business Coalition, et al. v. Walz, Case No. 62-CV-20-3507, p. 29. And nothing in the
Challenged Orders “adjudicates upon the rights of persons or property, and to that end
declares, construes and applies the law,” and is therefore not an exercise of judicial
power. State v. M.D.T., 831 N.W.2d 276, 285 (Minn. 2013). Thus, the Governor was not
“wield[ing] the powers granted under the Minnesota Constitution to the Legislative and
Judicial Branches” in issuing the Challenged Orders, but rather was exercising his
statutory authority under the Minnesota Emergency Management Act. (Compl. ¶76.)
B. Plaintiff’s claims against Defendants in their official capacities are barred by
the Eleventh Amendment.

A second fatal flaw in Plaintiffs’ Complaint is that Defendants are immune from
suit. “The Eleventh Amendment establishes a general prohibition of suits in federal court
by a citizen of a state against his state or an officer or agency of that state.” 281 Care
Comm. v. Arneson, 638 F.3d 621 (8th Cir. 2011). Eleventh Amendment immunity
applies to official-capacity claims against individuals. See Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 71 (1989). No exception applies to allow Plaintiffs’ official-capacity
claims against the Governor or the Attorney General.
Defendants are state officials sued in their individual and official capacities (Doc.
1, ¶¶ 5-6), and each is immune from suit unless Plaintiffs’ claims fit within a recognized

exception. In Ex parte Young, the Supreme Court established a limited exception to
Eleventh Amendment immunity, allowing suit against a state official for prospective
injunctive relief where: (1) the official has “some connection with the enforcement” of
the challenged law; and (2) the official threatens and is “about to commence
proceedings” to enforce the statute. 209 U.S. 123, 156–57 (1908). The Ex parte Young
exception “does not apply when the defendant official has neither enforced nor threatened
to enforce the statute challenged as unconstitutional.” 281 Care Comm, 766 F.3d at 797.
Plaintiffs are not entitled to sue the State Defendants for prospective injunctive relief
under Ex parte Young.
a.
The Governor is immune.
The Governor is not connected to enforcement of the EOs. The responsibility for
prosecuting crimes in Minnesota has been “delegate[d] . . . to the offices of county
attorneys and city attorneys.” State v. Lemmer, 736 N.W.2d at 661–62. Although the
Governor has some criminal authority to prompt prosecutions by the Attorney General,
see Minn. Stat. §8.01, that authority is merely a “safety-valve alternative[] for use in
extreme cases of prosecutorial inaction,” State ex rel. Wild v. Otis, 257 N.W.2d 361, 365
(Minn. 1977).
Even if the Governor’s limited criminal authority were a sufficient connection
with the enforcement of EO 20-79, the Governor is still immune from suit because he has
neither threatened Plaintiffs with nor is about to commence enforcement proceedings.
Plaintiffs do not allege otherwise. Since there is no risk of enforcement action by the
Governor, Plaintiffs’ claims do not satisfy Ex parte Young. See Advanced Auto Transp.,

Inc. v. Pawlenty, No. 10-159, 2010 WL 2265159, at *3 (D. Minn. June 2, 2010)
(Governor immune because plaintiffs did not allege the Governor had “threatened a suit
or [is] about to commence proceedings against [the plaintiff]”).
b.
The Attorney General is immune.
The Attorney General is also immune. Although the Attorney General does have
civil enforcement authority pursuant to Minnesota Statutes 8.31, Plaintiffs do not allege
that the Attorney General has either threatened Plaintiffs with, or is about to commence,
enforcement proceedings. Thus, the Attorney General is immune and Plaintiffs’ official
claims against him must be dismissed.
III.
ALTERNATIVELY, THE COURT SHOULD ABSTAIN FROM EXERCISING
SUBJECT-MATTER JURISDICTION OVER THIS STATE LAW DISPUTE.

Even if this Court finds that Pennhurst does not bar Plaintiffs’ claims and that
Defendants are not immune under the Ex Parte Young doctrine, principles of federalism
dictate that this Court should abstain from at least the state law claims, if not the entire
matter.
A. The Court should abstain under Pullman.
Pullman abstention applies to actions to enjoin state officers from enforcing an
allegedly unconstitutional state law. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S.
496 (1941). “[T]he purpose of Pullman abstention in such cases is to avoid resolving the
federal question by encouraging a state-law determination that may moot the federal
controversy.” San Remo Hotel, L.P. v. City & Cnty. of San Francisco, Cal., 545 U.S.
323, 349 (2005). Thus, in situations “[w]here resolution of the federal constitutional

question is dependent upon, or may be materially altered by, the determination of an
uncertain issue of state law, abstention may be proper in order to avoid unnecessary
friction in federal[-]state relations, interference with important state functions, tentative
decisions on questions of state law, and premature constitutional adjudication.” Harman
v. Forssenius, 380 U.S. 528, 534 (1965).
Pullman abstention requires: (1) an unsettled issue of state law, and (2) “a
possibility that the state law determination will moot the federal constitutional question
raised.” Nat’l City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1126 (8th Cir. 1982). Both
conditions are met here. First, Plaintiffs’ Complaint raises novel questions regarding the
scope of the Governor’s authority during a public-health emergency. (Compl. ¶74-81.)
These are important questions of state law that had not been considered by Minnesota
courts before 2020, but are at issue in pending state court actions challenging EOs. In
particular, four state court proceedings raise similar issues:
• In Free Minnesota Small Business Coalition v. Walz, Court File No.
62-CV-20-3507 (Ramsey Cnty. Dist. Ct.) (attached as Goodwin Decl., Ex.
39.), plaintiffs sought to enjoin enforcement of the EOs on two of the same
bases raised here: the non-delegation doctrine and “legislative veto”. The
district court granted the Governor’s motion to dismiss on September 1,
2020. The plaintiffs appealed the district court’s order on September 10,
2020. (Goodwin Decl., ¶ 10.)
• In Ellison v. Schiffler et al, Case No. 73-CV-20-3556, the Stearns County
District Court has counter-claims before it that raise similar issues of the

Governor’s authority to declare a peacetime emergency and issue executive
orders with enhanced criminal penalties. That court already ruled on a
motion for temporary injunction and heard the authority issues again on a
motion to dismiss on August 28, 2020. (Id., Ex. 11-12.)
• In Buzzell v. Walz, 62-CV-20-3623 (Ramsey County Dist. Ct), the court
dismissed claims that plaintiff was entitled to compensation under the
Takings Clause of the Minnesota Constitution because of restrictions
imposed by Emergency Executive Orders 20-04, 20-48, 20-62, and 20-63.
(Order and Memorandum, Buzzell v. Walz, 62-CV-20-3623 (Ramsey
County Dist. Ct Oct. 9, 2020), p. 4-7) (Goodwin Decl. Ex. 16). Plaintiff’s
appeal period has not expired.
• Finally, the Chief Justice of the Minnesota Supreme Court has thrice
dismissed proposed recall petitions on issues of the Governor’s emergency
authority. (Id., Exs. 13-15.)
Second, resolution of the state constitutional question could substantially alter or
limit the nature of this Court’s inquiry with respect to Plaintiffs’ federal claims. For
example, if the state courts hold that the Governor lacked authority to issue the EOs, such
a ruling would obviate entirely the need for this Court to enjoin enforcement of the EO on
the basis that they violate Plaintiffs’ constitutional rights. See, e.g., Doe v. McCulloch,
835 F.3d 785, 788 (8th Cir. 2016). Under these circumstances, the Court should abstain
from exercising jurisdiction pending the conclusion of the state court proceedings. See

Growe v. Emison, 507 U.S. 25, 32 n.1 (1993).4
B. The principles of Colorado River also support abstention from
deciding Plaintiffs’ state law claims.

“Colorado River permits federal courts to decline to exercise jurisdiction over
cases where parallel state court litigation is pending, meaning that there is a substantial
likelihood that the state proceeding will fully dispose of the claims presented in the
federal court.” Spectra Commc’ns Grp., LLC v. City of Cameron, Mo., 806 F.3d 1113,
1121 (8th Cir. 2015).
A threshold determination is whether the federal and state proceedings are parallel.
Proceedings are parallel when there is “a substantial likelihood that the state proceedings
will fully dispose of the claims presented in the federal court.” Cottrell v. Duke, 737 F.3d
1238, 1245 (8th Cir. 2013). Considerations include “the sources of law, remedies sought,
elements of proof, review on appeal, and events giving rise to each cause of action.”
Fru-Con Constr. Corp. v. Controlled Air, Inc., 574 F.3d 527, 537 (8th Cir. 2009).
Here, Free Minnesota raises similar issues regarding the Governor’s authority to
issue the EOs that Plaintiffs challenge here in Count VI. Count VI and Free Minnesota
arise out of the same events (the Governor’s issuance of EOs in response to COVID-19),

4 Alternatively, this Court could stay remaining claims under its “inherent
powers.” Kreditverein Der Bank Austria Creditanstalt Fur Niederosterreich Und
Bergenland v. Nejezchelba, 477 F.3d 942, 945 (8th Cir. 2007) (recognizing the inherent
powers of a district court); Garcia v. Target Corp., 276 F. Supp. 3d 921, 924 (D. Minn.
2016) (listing factors to consider in connection with a motion for a stay); Kemp v. Tyson
Foods Group, Inc., 19 F. Supp. 2d 961, 964 (D. Minn. 1998) (considering factors and
granting a stay); see also Casiano-Montenez v. State Ins. Fund Corp., 707 F.3d 124, 128-
29 (1st Cir. 2013) (staying all proceedings when Pullman abstention applied to one claim
out of "[c]onsiderations of federalism, comity, and sound judicial administration").

the same statutes and law (the Minnesota Constitution, U.S. Constitution, and Minnesota
Emergency Management Act), and seek the same relief (enjoining enforcement of one or
more EOs).
After establishing that the matters are parallel, courts look at several factors to
assess whether abstention is appropriate, including whether maintaining separate actions
may result in piecemeal litigation, the relative progress made in the cases, whether state
or federal law controls, and the adequacy of the state forum to protect the federal
plaintiff’s rights. See Spectra Commc’ns Grp., 806 F.3d at 1121.
Those factors all weigh in favor of abstention from deciding Plaintiffs’ state law
claims. The “predominant factor”—the risk of piecemeal litigation—is present because
there is a risk that this Court’s decision would conflict with the state court decisions
regarding the Governor’s authority to issue the EOs and create uncertainty regarding the
enforceability of the EOs. The relative progress factor also weighs in favor of abstention,
because the state court actions are further along. Judge Gilligan of the Ramsey County
District Court granted the Governor’s motion to dismiss in Free Minnesota, and that case
is now before the Minnesota Supreme Court. (Goodwin Decl., Ex. 10.)
Perhaps most importantly, abstention is warranted because Plaintiffs’ claims raise
novel issues of state law and there is no indication that state courts are an inadequate
forum to address these uniquely state-law issues. See, e.g., Godfrey v. Branstad,
56 F. Supp. 3d 976, 985-86 (S.D. Iowa 2014) (existence of state-law issues weighed
“heavily in favor” of abstention where “Iowa courts have a particularly important
interest in the outcome of this action because it requires a determination of an important

state law issue regarding . . . the powers of the current and future Governors”).
Throughout this pandemic, federal courts have properly deferred to state courts
where plaintiffs go beyond constitutional challenges and challenge the very authority
of a governor to act under state law. See Midwest Inst. of Health, PLLC v. Whitmer,
No. 1:20-cv-414, 2020 WL 3248785, at *3 (W.D. Mich. June 16, 2020) (declining to
“interpret a novel question of state law for the first time—particularly a question of
state law that might affect every citizen in the state of Michigan”); Open Our Oregon v.
Brown, No. 6:20-cv-773, 2020 WL 2542861, at *3 (D. Or. May 19, 2020) (declining
to exercise supplemental jurisdiction where “the Oregon Supreme Court will soon rule
on the novel issue of state law”).
In short, Plaintiffs ask this federal Court to wade into issues of first impression
impacting the state law authority of the state’s highest executive to act in times of
emergency at a time when numerous Minnesota state courts are reviewing identical
issues. The Court should decline that invitation and abstain from exercising jurisdiction
over Plaintiffs’ Count VI.
IV.
ALL OF PLAINTIFFS’ CLAIMS FAIL AS A MATTER OF LAW.
Plaintiffs Counts under the Contracts Clause and the First, Fifth, and Fourteenth
Amendments of the United States Constitution each fail as a matter of law. First,
precedent requires this Court to analyze each of these claims under the framework of
Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905), a case the Plaintiffs failed to even
cite in their motion for a preliminary injunction. The claims in Plaintiffs’ complaint have
been rejected by each court to have considered them, and this Court should join those

courts in finding the claims raised by Plaintiffs to be without merit.5
A.
The Challenged Orders easily survive under the Jacobson Framework.
“The Constitution does not compel courts to turn a blind eye to the realities of the
COVID-19 crisis.” Cassell v. Snyders, 20 C 50153, 2020 WL 2112374, at *6 (N.D. Ill.
May 3, 2020). Thus, requests to declare invalid executive orders issued during a public
health crisis are not evaluated under “traditional tiers of constitutional scrutiny.” Id.
Instead, courts give significant deference to emergency measures instituted during such
crises under the standard from Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905). See S.
Bay United Pentecostal Church v. Newsom, 590 U.S. __, 140 S. Ct. 1613, 1614 (2020)
(Roberts, C.J., concurring). “[T]he majority of courts across the country have relied
on Jacobson’s framework to analyze emergency public health measures enacted to
combat the spread of COVID-19.” Lewis v. Walz., No. CV 20-1212 (DWF/HB), 2020
WL 5820549, at *4 n 5 (D. Minn. Sept. 30, 2020).
Jacobson “requires courts to examine whether a measure adopted to address a
public-health crisis has a ‘real or substantial relation’ to the crisis and, assuming that it
has such a relation, whether it is ‘beyond all question, a plain, palpable invasion’ of a
constitutional right.” Minnesota Voters All. v. Walz, No. 20-CV-1688 (PJS/ECW), 2020

5 Plaintiffs plead each constitutional violation as a separate count against the Governor,
and then add a fifth count for “Section 1983 Claims” that merely incorporates the
constitutional claims. (Compl. ¶70-73). Count V should be dismissed for the same
reasons as Counts I-IV. Further, Count VII purports to state a separate claim for
“Declaratory and Injunctive Relief,” but the claim is redundant of its other claims.
(Compl. ¶82-86.) “A redundant declaratory judgment claim is not a proper declaratory
judgment claim and should be dismissed.” Mille Lacs Band of Chippewa Indians v. State
of Minn., 152 F.R.D. 580, 582 (D. Minn. 1993).

WL 5869425, at *12 (D. Minn. Oct. 2, 2020) (quoting Jacobson, 197 U.S. at 31). Just
weeks into this crisis, the Eighth Circuit confirmed that Jacobson applies to emergency
orders issued to combat COVID-19. It described Jacobson as “the Supreme Court’s
framework for reviewing constitutional challenges to state actions taken in response to a
public health crisis.” In re Rutledge, 956 F.3d 1018, 1027 (8th Cir. 2020). Rutledge then
outlined the Jacobson test and its high level of deference to state policy makers as
follows:
[W]hen faced with a society-threatening epidemic, a state may implement
emergency measures that curtail constitutional rights so long as the
measures have at least some “real or substantial relation” to the public
health crisis and are not “beyond all question, a plain, palpable invasion of
rights secured by the fundamental law.” Courts may ask whether the state’s
emergency measures lack basic exceptions for “extreme cases,” and
whether the measures are pretextual—that is, arbitrary or oppressive. At
the same time, however, courts may not second-guess the wisdom or
efficacy of the measures.
Id. at 1028 (8th Cir. 2020) (quoting approvingly In re Abbott, 954 F.3d 772, 784-85
(5th Cir. 2020), which quoted Jacobson). Because the Challenged Orders are the same
sort of emergency measures at issue in Jacobson and Rutledge, precedent requires the
Court to analyze their constitutionality using the Jacobson test. Minnesota Voters All. v.
Walz, 2020 WL 5869425, at *12; Lewis, 2020 WL 5820549, at *4.
Application of Jacobson is dispositive and demonstrates that Plaintiffs’ claims
cannot succeed. Plaintiffs do not even cite Jacobson in arguing that the Challenged
Orders violate their constitutional rights.

1.
The Challenged Orders have a real and substantial relation to
protecting public health.
Courts across the country have concluded that “[t]he COVID-19 pandemic
constitutes the sort of public health crisis—or epidemic of disease which threatens the
safety of [a community’s] members—contemplated by the Jacobson court.” Minnesota
Voters All., 2020 WL 5869425, at *12. See also Amato, 2020 WL 2542788 at *10; see
Spell v. Edwards, No. 20-00282, 2020 WL 2509078, at *4 (M.D. La. May 15, 2020). At
least four court federal courts have recognized that eviction moratoria are an effective
means of controlling the spread of COVID-19 because such measures “keep tenants in
place” and allow for social distancing. Baptiste v. Kennealy, No. 1:20-CV-11335-MLW,
2020 WL 5751572, at *25 (D. Mass. Sept. 25, 2020) (Applying Jacobson to deny
preliminary injunction regarding Massachusetts’ eviction moratorium). See also HAPCO
v. City of Philadelphia, No. CV 20-3300, 2020 WL 5095496, at *9 (E.D. Pa. Aug. 28,
2020) (recognizing the city had a “significant and legitimate purpose” in enacting
eviction moratorium due to economic circumstances caused by pandemic); Auracle
Homes, LLC v. Lamont, No. 3:20-CV-00829 (VAB), 2020 WL 4558682, at *21 (D.
Conn. Aug. 7, 2020) (finding executive order prohibiting evictions did not violate
constitutional rights of landlords); Elmsford Apartment Assocs., 2020 WL 3498456, at
*14. Finally, in issuing a nationwide ban on evictions, the CDC noted that state and
federal restrictions on evictions had likely prevented an eviction wave that would have
decreased the efficacy of social distancing measures and forced people into either
congregate settings or homelessness. CDC Moratorium, 85 Fed. Reg. 55295. The

Challenged Orders have a “real and substantial relationship to public health.”
In addition to completely ignoring the Jacobson framework, Plaintiff’s argument
that the Challenged Orders are “unconstitutionally arbitrary” misses the point. (Pl. Mem.
at p. 17.) Plaintiffs argue that the Challenged Orders are arbitrary because they protect
tenants “whose tenancy might be justifiably terminated for reasons wholly unrelated to
the pandemic.” (Pl. Mem. at p. 27.) The Challenged Orders, however, are not just
intended to protect individuals who are experiencing economic hardship because of the
pandemic. The Challenged Orders have the effect of allowing tenants to shelter and
adhere to social distancing guidelines, whatever their economic circumstances. This is an
important purpose in and of itself, as it reduces the likelihood that individuals would need
to seek shelter with friends or in homeless shelters, thereby increasing the risk of
transmission of the disease to others. Overall, the Challenged Orders are one of many
measures to control the spread of the virus, a goal that courts throughout the country have
acknowledged as being related to public health. Plaintiffs do not seriously argue
otherwise. Thus, the Challenged Orders have a demonstrable relationship to public
health.
2.
The Challenged Orders do not plainly or palpably infringe upon
any fundamental rights.
There is no basis to conclude that the Challenged Orders plainly or palpably
invade Plaintiffs’ fundamental rights. “[F]or the court to have the authority to intervene in
the State’s response to the public health crisis, the [challenged regulation] must, ‘beyond
all question,’ violate” a fundamental right of the plaintiff. Rutledge, 956 F.3d at 1030.

“Jacobson instructs that all constitutional rights may be reasonably restricted to combat a
public health emergency.” Lewis, 2020 WL 5820549, at *4 (quoting In re Abbott, 954
F.3d 772, 786 (5th Cir. 2020) (emphasis in original)).
The Challenged Orders do not invade Plaintiffs’ fundamental rights. First, none of
the rights identified by Plaintiffs are fundamental. The only interests identified by
Plaintiffs are business interests. The United States Supreme Court has repeatedly held
that there is no fundamental right to own a business or to work in a particular profession.
Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Envtl. Prot., 560 U.S. 702, 721
(2010) (“The liberties protected by substantive due process do not include economic
liberties.”); Henry, 2020 WL 2479447, at *7 (“Time and again, the Supreme Court has
determined that there is no fundamental right to a job, or right to work”). And there is no
constitutional right whatsoever to evict tenants. Baptiste, 2020 WL 5751572, at *26.
Second, and more importantly, the Challenged Orders do not infringe on the rights
that Plaintiffs identify. The rights identified by Plaintiffs are discussed in turn.
A. The Challenged Orders do not infringe on Plaintiffs’ rights under the Petition
Clause

The Challenged Orders do not infringe on Plaintiffs’ First Amendment rights
under the Petition Clause. The right of access to courts is burdened when state officials
take systemic action to frustrate a plaintiff or class of plaintiffs from preparing and filing
lawsuits. Christopher v. Harbury, 536 U.S. 403, 413 (2002). “[T]he right is ancillary to
the underlying claim, without which a plaintiff cannot have suffered injury by being shut
out of court.” Christopher, 536 U.S. at 415. To succeed on such a claim, the plaintiff

must show that the state action “hindered his efforts to pursue a legal claim.” Lewis v.
Casey, 518 U.S. 343, 351 (1996).

The constitutional right of access to the courts, however, does not confer a right to
bring a particular cause of action or to bring an action at a preferred time. Elmsford, 2020
WL 3498456, at *17. Delay in obtaining one’s preferred remedy does not infringe on
one’s right to access the courts. See Sosna v. Iowa, 419 U.S. 393, 410, 95 S. Ct. 553, 563
(1975). “In a nutshell, while there is a constitutional right to court access, there is no
complementary constitutional right to receive or be eligible for a particular form of
relief.” Baptiste, 2020 WL 5751572, at *25 (citing Suffolk Cnty. Jail, 129 F.3d at 160).

The Challenged Orders temporarily limit Plaintiff’s ability to bring a statutory
cause of action to recover possession of the premises. Executive Order 20-14 authorized
evictions in cases of substantial endangerment and violations of Minnesota Statutes §
504B.171, and Executive Order 20-79 further expanded the grounds upon which leases
could be terminated. As Plaintiffs acknowledge, they can still sue their tenants to obtain
a money judgment for any debt. (Pl. Mem. 9-11.) “Plaintiffs can still sue their tenants
for arrearages through a breach of contract action in the New York Supreme Court – and
the fact that is not their preferred remedy is of no moment.” Elmsford, 2020 WL
3498456, at *16 (noting the availability of suits for tenant debts in rejecting access to
courts claim). Every court to have considered such a challenge to a COVID eviction
moratorium has rejected it. E.g., Baptiste, 2020 WL 5751572, at *25; Auracle Homes,
2020 WL 4558682. This Court should join those courts in rejecting the claim that the
Challenged Orders infringe on Plaintiff’s right of access to the court, and dismiss

Plaintiff’s First Amendment Claim.
B. The Challenged Orders do not violate the Contracts Clause.

To prove an unconstitutional contract impairment, Plaintiffs must first show that
the Challenged Orders substantially impaired a contractual obligation they can enforce.
Sveen v. Melin, ––– U.S. ––––, 138 S.Ct. 1815, 1821-22 (2018); Energy Reserves Group,
Inc. v. Kansas Power and Light Co., 459 U.S. 400, 411 (1983). If such a substantial
impairment exists, the state law is nevertheless constitutional if it serves “a significant
and legitimate public purpose” and is “of a character appropriate to the public purpose
justifying [the legislation’s] adoption.” Sveen, 138 S.Ct. at 1821-22 (citation omitted).
“[T]he implied contractual rights conferred by state laws, including judicial remedies
such as eviction, may be the subject of a Contracts Clause claim ‘only when those laws
affect the validity, construction, and enforcement of contracts.’” Elmsford, 2020 WL
3498456, at *14 (S.D.N.Y. June 29, 2020) (quoting Gen. Motors Corp. v. Romein, 503
U.S. 181, 189 (1992)).

Here, even if rights under the Contracts Clause are fundamental rights,6 the
Challenged Orders do not substantially impair Plaintiff’s contractual rights. To determine
whether a law “substantially impairs” contract rights the court considers “the extent to
which the law undermines the contractual bargain, interferes with a party’s reasonable
expectations, and prevents the party from safeguarding or reinstating his rights.” Sveen,
138 S. Ct. at 1822. The Challenged Orders do not affect a tenant’s obligation to pay rent

6 Plaintiffs cite no case establishing that the Contracts Clause creates fundamental rights.

or change any other term of the lease. “As the tenants are still bound to their contracts,
the contractual bargain is not undermined and landlord rights are safeguarded.” HAPCO
v. City of Philadelphia, No. CV 20-3300, 2020 WL 5095496, at *8 (E.D. Pa. Aug. 28,
2020). In fact, the only contractual or statutory right it affects at all is the landlord’s right
to recover possession of the premises, and that right is only affected temporarily. “The
eviction moratorium does not eliminate the suite of contractual remedies available to the
Plaintiffs; it merely postpones the date on which landlords may commence summary
proceedings against their tenants.” Elmsford, 2020 WL 3498456 at *15. As the courts in
Elmsford and HAPCO found, Plaintiffs cannot show the Challenged Orders substantially
impair their residential leases. The Contracts Clause claim therefore fails as a matter of
law.

The analysis could end there, as Plaintiff’s failure to establish a substantial
impairment is fatal to its Contracts Clause claim. But the Challenged Orders
unquestionably serve a “significant and legitimate purpose” and are designed to meet that
purpose. The relevant inquiry is “whether the state law is drawn in an ‘appropriate’ and
‘reasonable’ way to advance ‘a significant and legitimate public purpose.’” Sveen, 138 S.
Ct. at 1822. Controlling the spread of COVID-19 is unquestionably a significant and
legitimate purpose. Rutledge, 956 F.3d 1018, 1027; HAPCO, 2020 WL 5095496 at *9
(City had a “significant and legitimate purpose” for imposing eviction moratorium). The
Challenged Orders serve that purpose by protecting housing security, which provides
individuals with a place to shelter if they are ill, a means of socially distancing, and
reduction in the likelihood that they will be forced into homelessness or congregate

housing. The Challenged Orders also are one measure to control the spread of a deadly
disease in the population at large. The Contracts Clause claim should be dismissed.
C. Plaintiffs’ property has not been taken as a matter of law.

Plaintiffs’ takings claim has at least two fatal defects. First, contrary to Plaintiffs’
arguments, there has been no physical taking as a matter of law. Second, government
exercises of police powers to prevent harm do not give rise to regulatory takings under
Penn Central.
1. The Challenged Orders do not effect physical takings.
First, contrary to Plaintiffs’ argument, the Challenged Orders have not resulted in
a physical taking of their property. “The government effects a physical taking only where
it requires the landowner to submit to the physical occupation of his land.” Yee v. City of
Escondido, 503 U.S. 519, 527 (1992) (emphasis in original). “The Supreme Court has
ruled that a state does not commit a physical taking when it restricts the circumstances in
which tenants may be evicted.” Elmsford Apartment Assocs., LLC v. Cuomo, No. 20-CV-
4062 (CM), 2020 WL 3498456, at *7 (S.D.N.Y. June 29, 2020) (citing Yee, 503 U.S. at
527). Plaintiffs chose to purchase their properties for the express purpose of renting
them, and any restriction on their right to evict tenants is only temporary. It therefore is
not a physical taking as a matter of law. Baptiste, 2020 WL 5751572, at *20.
2. The Challenged Orders are not regulatory takings
Similarly, the Challenged Orders do not amount to a regulatory taking. Federal
analyze regulatory takings under the three-part Penn Central test. Under Penn Central, a
court considering a takings claim must review: (1) the economic impact of the regulation

on the person suffering the loss; (2) the extent to which the regulation interferes with
distinct investment backed expectations; and (3) the character of the government action to
assess whether the complained of action effected a taking of private property for public
use. Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978). “Because of
the ad-hoc nature of regulatory takings analysis, facial challenges brought under the
Takings Clause ‘face an uphill battle ... made especially steep” when the parties seeking
relief “have not claimed ... that [government action] makes it commercially
impracticable’ for them to continue business operations on their property.” Elmsford
Apartment Assocs., LLC, 2020 WL 3498456, at *9 (citing Keystone Bituminous Coal
Ass'n v. DeBenedictis, 480 U.S. 470, 495–96 (1987)).
First, the Supreme Court has repeatedly made clear that the Takings analysis
focuses on the “parcel as a whole.” Keystone Bituminous Coal Ass’n v. DeBenedictis, 480
U.S. 470, 517 n 5 (1987) (quoting Penn Central). But both Plaintiffs focus their takings
claim on a subset of their property – that which is occupied by tenants who are not paying
rent. Plaintiff Heights complains that an five of the seventeen units it recently purchased
are not “regularly” paying rent. (Compl. ¶ 30.) Plaintiff Walnut Trails states that 10
percent of the units in a 168-unit complex have not paid “regularly or on time” since
March. (Compl. ¶39.) But in addition to being vague, neither of these claims alleges
sufficient economic impact as a matter of law to satisfy the first prong of the Penn
Central test. Elmsford, 2020 WL 3498456, at *10 (rejecting takings claim because
“vague” allegations that a subset of tenants are not paying is not enough to be a taking
under the first prong of Penn Central).

Plaintiffs fair no better under the second prong of Penn Central. “[R]easonable
investment-backed expectations cannot operate apart from ‘public programs adjusting the
benefits and burdens of economic life to promote the common good.’” Auracle Homes,
2020 WL 4558682, at *15 (quoting Penn Central, 438 U.S. at 124). See also Elmsford,
2020 WL 3498456, at *11-12 (S.D.N.Y. June 29, 2020). As in Auracle Homes and
Elmsford, residential rental property in Minnesota is governed by a complex regulatory
scheme that includes restrictions on the unfettered ability to conduct business free from
government oversight. See Minn. Stat. Ch. 504B. The temporary restrictions of the
Challenged Orders do not, therefore, interfere with Plaintiffs’ reasonable, investment-
backed expectations.
Finally, the third factor of the Penn Central test is dispositive and fatal to
Plaintiffs’ takings claim. Where “‘the health, safety, morals, or general welfare’ would
be promoted by prohibiting particular contemplated uses of land,” there is no Fifth
Amendment Taking. Penn Cent., 438 U.S. at 125; Baptiste, 2020 WL 5751572, at *22
(temporary eviction moratorium was a “public program adjusting the benefits and
burdens of economic life to promote the common good” and therefore not a Penn Central
taking as a matter of law). Here, as conceded by Plaintiffs, the Challenged Orders have a
clear purpose to prevent harm to the public. (Pl. Mem. at p. 16.) This third factor of the
Penn Central analysis carries even greater weight in light of Jacobson, which affords
elected officials substantial latitude to protect public health. Jacobson, 197 U.S. at 25.
The allegations in Plaintiffs’ Complaint do not satisfy any part of the Penn Central
test. The claim therefore fails as a matter of law and should be dismissed.

D. Plaintiff’s Substantive Due Process claim fails as a matter of law.

Plaintiffs claim a Due Process violation based on “the amalgam of violations
already complained of,” an argument that the Supreme Court has rejected time and time
again. (Compl. Count IV; Pl. Mem. at 25.) “Where a particular Amendment provides an
explicit textual source of constitutional protection’ against a particular sort of government
behavior, that Amendment, not the more generalized notion of substantive due process,
must be the guide for analyzing these claims.” Stop the Beach Renourishment, Inc., 560
U.S. at 721 (internal quotations omitted). As discussed above, there is no “amalgam” of
constitutional violations, and even if there was, Plaintiffs cite no authority that would
allow them to aggregate the constitutional violations into “a Due Process violation greater
than the sum of its parts.” (Pl. Mem. at p. 25.) Such a result would be inconsistent with
decades of Supreme Court precedent. Stop the Beach Renourishment, Inc., 560 U.S. at
721.

Moreover, Plaintiffs are required to identify a liberty or property interest that
Defendants have infringed upon. “Merely labeling a governmental action as arbitrary and
capricious, in the absence of the deprivation of life, liberty, or property, will not support
substantive due process claim.” Singleton v. Cecil, 176 F.3d 419, 424 (8th Cir. 1999)
(affirming dismissal of substantive due process claim because of failure to identify a
liberty interest). Plaintiffs have not identified a protected interest different from that
which they have discussed above. “[T]he Due Process Clause cannot do the work of the
Takings Clause.” Auracle Homes, 2020 WL 4558682 at *19 (requiring landlords to
identify a property interest independent of that identified in their takings claim to pursue

substantive due process claim related to eviction moratorium). Therefore, there is no
likelihood of success on their substantive due process claim.
***
For all of the foregoing reasons, the Challenged Orders are well within the State’s
authority under Jacobson. Because Plaintiffs have not demonstrated that any of their
fundamental rights are plainly violated by the Challenged Orders, the court “may not
second-guess the wisdom or efficacy of the measures,” In re Rutledge, 2020 WL
1933122, at *5, and Plaintiffs cannot succeed on their claims as a matter of law.
B.
EVEN WITHOUT JACOBSON, THE ORDER IS CONSTITUTIONAL
Assuming arguendo that the deferential Jacobson standard does not apply, none of
Plaintiffs’ constitutional claims are cognizable and therefore not likely to succeed.
As explained supra, the United States Supreme Court has repeatedly held that there is no
fundamental right to own a business or to work in a particular profession, nor is there a
fundamental right to evict. Supra p. 23. As discussed above, Complaint identifies only
business and economic interests. (Compl. ¶27.) To the extent the court finds Jacobson
inapposite, Plaintiffs’ claims are subject to rational basis review. “Because all that must
be shown is any reasonably conceivable state of facts that could provide a rational basis
for the classification, it is not necessary to wait for further factual development.” Carter
v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004) (dismissing Equal Protection claim)
(internal quotations and citations omitted).
Under a federal constitution rational basis analysis, courts do not second guess the
wisdom of a law, nor do they require that distinctions among unprotected classes be

precisely tailored. See, e.g., Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307,
316 (1976); Stiles v. Blunt, 912 F.2d 260, 267 (8th Cir.1990). Further, whether the
identified legitimate state interests were actually considered in establishing the
prohibition is irrelevant. See Flemming v. Nestor, 363 U.S. 603, 612 (1960). Likewise,
whether a state actor “was unwise in not choosing a means more precisely related to its
primary purpose is irrelevant.” See Vance v. Bradley, 440 U.S. 93, 109 (1979) citing
Califano v. Jobst, 434 U.S. 47, 56–58 (1977). Here, the Challenged Orders are supported
by more than a rational basis. As the Governor explained in issuing Executive Order 20-
14, public health is promoted by stabilizing households. Losing shelter has the effect of
decreasing individuals’ ability to comply with other orders and increases the risk that
individuals will get sick. This, in turn, increases community spread of the virus.
Plaintiffs identify a number of policy choices they believe would have been more
prudent, but identify no authority requiring the Governor to adopt them. (Pl Mem. p. 16-
17.) Because the Challenged Orders are supported by a rational basis, Plaintiffs’
constitutional claims fail as a matter of law even without the Jacobson analysis.

CONCLUSION
As discussed in Defendant’s opposition to Plaintiffs’ motion for injunctive relief,
Defendants understand that the measures necessitated by the pandemic have not been
easy or painless. Plaintiffs’ Complaint, however, presents a number of jurisdictional
issues and simply fails to state a claim for which relief can be granted. For the foregoing
reasons, Defendants respectfully request that Plaintiffs’ complaint be dismissed in its
entirety and with prejudice.

Dated: October 16, 2020
Respectfully submitted,

KEITH ELLISON
Attorney General
State of Minnesota

/s/ Michael Goodwin
LIZ KRAMER (#0325089)
Solicitor General

MICHAEL GOODWIN (#0390244)
Assistant Attorney General

445 Minnesota Street, Suite 1100
St. Paul, Minnesota 55101-2128
liz.kramer@ag.state.mn.us
(651) 757-1010 (Voice)
michael.goodwin@ag.state.mn.us
(651) 757-1456 (Voice)

Attorneys For Defendants
Tim Walz and Keith Ellison

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Defendants' motion to dismiss brief — Heights Apartments v. Walz

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