Plaintiffs' reply in support of preliminary injunction — Heights Apartments v. Walz

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UNITED STATES DISTRICT COURT 
 
DISTRICT OF MINNESOTA 
 
Heights Apartments, LLC, and Walnut 
Trails, LLLP, 
Plaintiffs, 
v. 
Tim Walz, in his official capacity as 
Governor of the State of Minnesota, and 
Keith Ellison, in his official capacity as 
Attorney General of the State of 
Minnesota, and John Doe, 
Defendants. 
 
Case No. 20-cv-2021 NEB-BRT
REPLY MEMORANDUM OF LAW IN 
SUPPORT OF PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION 
 
 
Introduction 
Through the first third of their brief addressing the factual basis of the situation 
before the Court, Defendants lay out a convincing argument that Minnesota is in the midst 
of a pandemic and that the government must do something to prevent its further spread. In 
their legal argument, however, Defendants do nothing to properly frame Defendants’ 
interest or address whether the EOs at issue are the appropriate response, and little to 
address whether they are constitutional. Rather, as previewed by Plaintiffs in their principal 
brief, Defendants have merely argued that there is a Pandemic. 
The question before the Court is not whether there is a Pandemic (there certainly 
is), nor even whether the government should take steps to protect its citizens in response 

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(it certainly should). The question before the Court is whether this action, as opposed to 
the myriad of steps Defendants could have taken, passes constitutional muster. It does not. 
Argument 
 
Defendants raise three arguments for why a preliminary injunction should not be 
granted in this matter. First, they argue that the Court lacks subject-matter jurisdiction on 
the basis that (1) the CDC Moratorium makes any relief moot, and (2) that the Governor 
and the Attorney General are not closely enough connected to the EOs they issued for this 
Court to grant the requested relief. (Def. Br., 8–12.) Next, they argue that Plaintiffs have 
no likelihood on the merits, claiming the EOs at issue do not infringe on Plaintiffs’ 
constitutional rights. (Id. at 12–27.) Finally, they argue that none of the Dataphase factors 
support the injunction, claiming that Plaintiffs have suffered no irreparable harm while 
promising grave harm to Minnesota without these EOs. (Id. at 27–30.) 
I. 
The Court Has Subject-Matter Jurisdiction Over Plaintiffs’ Claims 
 
Defendants first argue that even if this Court should grant the relief sought, it would 
not grant any relief to Plaintiffs in light of the CDC moratorium. Additionally, they argue 
that Defendants are immune from suit regarding the EOs they signed and enforced. Neither 
claim has merit. 
A. Plaintiffs Have Standing When They Seek Meaningful Relief 
Defendants’ first argue “Plaintiffs lack standing to seek a preliminary injunction 
because the order that they seek is unlikely to remedy the injury of which they complain.” 
(Def. Br., 9.) This is because “were the Court to enter such an order, the CDC moratorium 
would take effect, which would likely prevent Plaintiffs from evicting many of their tenants 

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(at least in cases of nonpayment).” (Id.) This argument badly misreads Plaintiffs’ request, 
the CDC moratorium, and Defendants’ own EOs. 
 
The EOs at issue and the CDC moratorium are substantially different in ways which 
are critical and explicit in Plaintiffs’ request for relief. Specifically, the CDC moratorium 
is substantially different in (1) who is a “covered person” subject to its protections, (2) the 
requirements necessary to invoke its protections, and (3) the ability of the courts to review 
whether eviction is appropriate under each order. Compare Temporary Halt in Residential 
Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292, 55293 (“CDC 
moratorium”); with the challenged EOs. Some of these differences are summarized below. 
Protections From Eviction Under CDC Moratorium vs. EOs at Issue 
Factual Situation 
CDC 
MN EOs 
Tenant who cannot pay full rent but makes good-faith efforts to 
make partial payments, seek assistance, and communicate with 
property owner 
Yes 
Yes 
Tenant who violates building code, health ordinance, or other 
health and safety regulation, including occupancy limits 
No 
Yes 
Tenant who harasses other tenants, interferes with management, 
or fails to follow other rules of tenancy unrelated to COVID-19 
No 
Yes 
Fully-employed, single tenant making $125,000/year who 
chooses not to pay rent 
No 
Yes 
Tenant who cannot pay full rent and chooses not to seek 
government assistance 
No 
Yes 
Tenant who cannot pay full rent and chooses not to make any 
partial payments or communicate with the property owner 
No 
Yes 
Tenant who cannot make full payments but for whom other 
reasonable housing options are available 
No 
Yes 
 
Importantly, as noted above, one critical difference between the CDC moratorium 
and the EOs at issue is that the CDC’s directive still allows the property owner to seek 
relief in the judicial branch; the EOs at issue do not. (Compare 85 Fed. Reg. at 55293 

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(defining “evict” as “remove or cause the removal of a covered person from a residential 
property”); accord Centers for Disease Control, HHS/CDC Temporary Halt in Residential 
Evictions to Prevent the Further Spread of COVID-19, Frequently Asked Questions, at 6  
(available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-moratoria-
order-faqs.pdf, last accessed Oct. 18, 2020) (“This Order does not preclude a landlord from 
challenging the truthfulness of a tenant’s declaration in any state or municipal court”); with 
EO 20–79, at 2 (“The ability of property owners, mortgage holders, or other persons 
entitled to recover residential premises to file an eviction action . . . is suspended”) 
(emphasis added). In other words, while the CDC balances protections for tenants with 
protections for property owners and allows for a judge to determine whether eviction is 
appropriate, the EOs challenged here are violated the moment an eviction action is filed, 
allow for no review, and make no attempt to tie the protections to COVID-19. Defendants’ 
assertion that the relief sought is moot because of the CDC moratorium is completely false. 
B. Defendants Are Not Immune From A Suit Contesting the Validity of 
the EOs They Executed and Enforce 
Next, Defendants argue that even if the relief sought is not moot, this Court may not 
grant an injunction against Defendants Gov. Walz and Gen. Ellison because they are not 
connected to the enforcement of the EOs at issue against Plaintiffs. (Def. Br., 10.) 
Defendants demand a strange reading of the proper parties, where the governor who 

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enacted the EOs and attorney general who enforces them are not proper parties to a suit 
challenging the EOs.1  
Defendant Gen. Ellison, who has brought suit to enforce the EOs, and Defendant 
Governor Walz, who signed each EO into effect, claim they are immune from suit 
challenging the EOs at issue. (Def. Br., 10.) Here, the Governor has enacted the first EO, 
20-14, and continues himself to modify it. It would be a strange reading of immunity to 
state that the Governor is not a proper party to defend the EOs he himself has signed. 
Additionally, the EOs direct Attorney General enforcement against property owners and 
their attorneys, not only with criminal but also civil penalties. (EO 20-79, 3 ¶ 10.) The 
Supreme Court has held that “[p]ast enforcement against the same conduct is good 
evidence that the threat of enforcement is not ‘chimerical.’” Susan B. Anthony List v. 
Driehaus, 573 U.S. 149, 164 (2014) (citing Steffel v. Thompson, 415 U.S. 452, 459 (1974).  
Defendants rely on the claim that there is no allegation that “there is no risk of 
enforcement action” because “the Attorney General has [n]either threatened Plaintiffs with, 
or is about to commence, enforcement proceedings.” (Def. Br., 11–12.) But Plaintiffs are 
 
1 The argument also raises the question of whether Defendants’ argument is that the proper 
party to the suit is in fact John Doe, pseudonymously the hundreds of unascertainable city 
and county officials or private firms and individuals to whom the State has delegated its 
executive enforcement power, each need to be individually ascertained, named, and served 
(and individually answer? Individually defend?). Plaintiffs named John Doe in his official 
capacity precisely to avoid the administrative nightmare that would ensue. 

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not required to subject themselves to criminal or civil proceedings in order to have 
standing. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29, (2007). Defendants 
are not immune from a suit challenging their EOs. 
II. 
Plaintiffs Have Met The Standard of Reasonable Likelihood of Success 
on the Merits of Their Claims 
Next, Defendants advance the argument that even if the suit is not moot, Plaintiffs 
have no likelihood of success on the merits. (Def. Br., 12.) The thrust of their argument is 
that the EOs do not implicate any fundamental rights of Plaintiffs, and under Jacobson, the 
government is therefore free to infringe on those rights. This is not correct. Defendants’ 
argument misreads Jacobson, which in its 115-year history until this year has never been 
cited for the proposition it is used for here. That subject, with the Court’s permission, will 
is reviewed in detail in Plaintiffs’ supplemental brief on that case and its analysis. But even 
under the Jacobson framework, Plaintiffs have demonstrated a reasonable likelihood of 
success on the merits. 
A. Right to Petition 
Defendants first argue that despite the fact that the courts have been shut to virtually 
all evictions for the last seven months, and that this moratorium will continue indefinitely, 
that Plaintiffs have not been denied a fundamental right to seek redress in the courts. (Def. 
Br., 17.) The Supreme Court has called this right “among the most precious of the liberties 
safeguarded by the Bill of Rights.” United Mine Workers v. Illinois State Bar Ass'n, 389 
U.S. 217, 222 (1967). Yet Defendants argue that the EOs are a minor, temporary 
inconvenience. (Def. Br., 17–18.) 

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Plaintiffs’ fundamental right to seek redress in the Courts has and will continue to 
be violated for some time absent court order. Therefore, Plaintiffs have a reasonable 
likelihood of success on their Right to Petition claim. 
B. Contracts Clause Violations 
Similarly, Defendants argue that there has been no violation of the Contracts Clause. 
(Def. Br., 19.) This argument is not correct under either case law or Minnesota statutes. 
First, Defendants argue implicating the Jacobson framework that rights under the 
Contracts Clause are not fundamental. (Def. Br., 19.) Invoking their previous arguments 
Defendants argue here that in time of emergency, any argument that state action violates 
the Contracts Clause must begin with an analysis of whether the right is fundamental. If 
this were so (indeed, if their entire Jacobson argument were correct), the Supreme Court’s 
leading Contracts Clauses case on recovery of property in time of national emergency 
should cite to Jacobson or at least analyze the “fundamental” right of the plaintiff at issue 
and whether “beyond all question” there was a “plain, palpable” invasion of that right. 
Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398 (1934) does neither. See id. at 440–
442. For this reason, Plaintiffs have shown a likelihood of success on the merits of their 
Contracts Clause claim. 
C. Takings Clause Violations 
Next, Defendants argue that Plaintiffs cannot seek an injunction because injunctive 
relief is not available for takings, and because no taking has occurred in this case. (Def. 
Br., 21–24.) At the outset, the cursory analysis that “injunctive relief is not available for a 
taking” depends on the idea that money damages are available. (Id. at 21.) Here, it is unclear 

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whether Defendants are conceding the question posed in Plaintiffs’ principal brief: whether 
Defendants agree that they would be providing “just compensation” in the event the Court 
finds that a taking has occurred, or whether they are stating that the government may validly 
institute a taking when the “adequate provision for obtaining just compensation” is that the 
government has obligated third parties to compensate plaintiffs for the taking. (Pl. Br., 23–
24) (citing Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2177 (2019)). Without a 
clear answer to this question, it is difficult to see how Defendants can reasonably assert 
that “adequate provision” has been made for compensation. 
D. Substantive Due Process Violations 
Finally, Defendants argue that the substantive due process claim cannot stand 
merely as an “’amalgam’ of constitutional violations.” (Def. Br., 24.) Plaintiffs do not 
assert this claim merely as such. Rather, because substantive due process “is protection of 
the individual against arbitrary action of government” and is violated when the government 
interferes with rights “implicit in the concept of ordered liberty,” the EOs here cannot be 
reduced down to their component violations and argued as separate and discrete 
infringements. (Pl. Br., 25) (citing Wolff v. McDonnell, 418 U.S. 539, 558 (1974); Palko v. 
Connecticut, 302 U.S. 319, 325–26 (1937) overruled on other grounds by Benton v. 
Maryland, 395 U.S. 784 (1969)). EOs which violate the First Amendment and the Fifth 
Amendment and the Contracts Clause must be show that they are narrowly tailored in light 
of all of the violations, not each of them. 
The purpose of this argument is shown best by Defendants’ responsive brief. As laid 
out above, Defendants argue that the infringement on the Petitions Clause is merely a 

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minor, temporary delay in a particular statutory (not constitutional) right, ignoring the 
constitutional violations of the Contracts Clause and the Fifth Amendment. They then 
argue that there has been no Contracts Clause violation because “landlord rights are still 
safeguarded” by their eventual right to bring claims, and therefore property owners will 
eventually be compensated. This is essentially an argument that there can be no Contracts 
Clause violation because Plaintiffs haven’t, really, lost their Right to Petition. Finally, 
Defendants argue that there can be no Takings Clause violation if “an adequate provision 
for obtaining just compensation exists,” ignoring the fact that the safeguards of that 
compensation, provided for by the Contracts Clause, and the ability to enforce them, 
provided for by the Petitions Clause, have both been extinguished by the EOs. But cutting 
down the EOs into their component violations and analyzing them piecemeal, Defendants 
attempt to justify each violation without ever addressing whether the EOs as a whole 
violate substantive due process by infringing on Plaintiffs’ fundamental rights without as 
a whole being narrowly tailored to meet the government interest. 
Conclusion 
 
For the reasons set forth above, Plaintiffs’ motion for a preliminary injunction 
should be granted. 
 
 
 
 
 
 

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Respectfully submitted, 
Dated:  October 23, 2020  
HANSEN, DORDELL, BRADT, ODLAUG 
& BRADT, P.L.L.P. 
By:  /s/  Michael Kemp                     
 
     Michael Kemp #390426 
Attorneys for Plaintiff 
3900 Northwoods Drive, Suite 250  
St. Paul, MN 55112-6973  
651/332-8734 
mkemp@hansendordell.com

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