Plaintiffs' opposition to motion to dismiss — Heights Apartments v. Walz (8th Cir.)

Record facts

U.S. District Court for the District of Minnesota · No. 0:20-cv-02051-NEB-BRT · Doc. 28 · 2020-11-06 · Docket on CourtListener

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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-2051 NEB-BRT
MEMORANDUM OF LAW 
IN OPPOSITION TO DEFENDANTS’ 
MOTION TO DISMISS 
 
 
Introduction 
The parties in this case are arguing two competing but not wholly concurrent issues 
of law. First, Plaintiffs have moved for a preliminary injunction, which has now been fully 
briefed by the parties. Defendants have also moved to dismiss Plaintiffs’ complaint. The 
issues raised by these two motions are similar, and thus the briefs are necessarily similar.  
The COVID-19 Pandemic, and the State and Federal Response 
As Plaintiffs have already noted, they have brought this suit with full knowledge 
and agreement that the COVID-19 pandemic has been and continues to be a grave issue 
that permeates every aspect of the lives of everyone around the globe. Defendants have 
devoted a substantial portion of their briefing to this proposition. (Def. Br., 1–7.) Plaintiffs 
accept not just the fact of the pandemic’s existence, but the fact that its existence compels 
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government officials like Defendants here to take active measures to combat it. The 
constitutional question is not whether, but how. 
Defendant Governor Tim Walz has issued three executive orders related to housing: 
EOs 20-14, 20-73, and 20-79 (collectively, “EOs”). These EOs were expressly intended to 
keep Minnesotans in their homes regardless of their ability to pay or even whether non-
payment was the factor in the termination of the lease. (EO 20-14, at 1–2.) The EOs bar 
the termination of leases, non-renewal of leases, or the filing of evictions under all but the 
most extreme circumstances; namely, when a tenant: 
a. Seriously endangers the safety of other residents; 
b. Violates Minnesota Statutes 2019, section 504B.171, 
subdivision 1; 
c. Remains in the property past the vacate date after receiving 
a notice to vacate or nonrenewal under paragraph 4 of this 
Executive Order [allowing property owners to move family 
members into their property]; or 
d. Materially violates a residential lease by the following 
actions on the premises, including the common area and the 
curtilage of the premises: 
i. Seriously endangers the safety of others; or 
ii. Significantly damages property. 
 
(Id. at 2 ¶ 2.)  imposing both criminal and civil sanctions on property owners who attempt 
to do so. (EO 20-79, at 2–3.) By the nature of executive orders, the Legislative and Judicial 
branches of state government had no voice in these orders. It is the power of the State 
enacted by one man and ratified by the other executive officials elected on his ticket. Minn. 
Stat. § 12.31, subd. 2. Plaintiffs do not challenge the Governor’s authority in general to 
issue emergency orders in response to a pandemic. 
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But entering the sixth month of this situation without any concerted action, Plaintiffs 
are here requesting that this Court review the EOs at issue and determine that they 
contravene their Constitutional rights. As the Governor noted in issuing EO 20-79, “[w]e 
have continued to slowly and safely reopen Minnesota’s economy and, in line with those 
actions, recognize that tenants may begin to move more safely. At the same time, I 
recognize that COVID-19’s economic impact continues to influence the ability of tenants 
and homeowners to pay their rent and mortgages.” (EO 20-79, at 1.) Yet while businesses 
reopen, bars and restaurants reopen, and sporting events have reopened, the orders 
prohibiting property owners from bringing evictions because of “COVID-19’s economic 
impact” remains. Plaintiffs have brought a Complaint in the above-captioned action to 
vindicate these rights. 
Plaintiffs’ Allegations Related To Their Businesses 
In this posture, the factual basis of Plaintiffs’ claim is straightforward. Plaintiffs are 
the owners of rental properties, comprising a little under 200 rental units. (Compl., ¶¶ 29, 
30, 32, 38.) Plaintiffs have laid out a number of examples of how their businesses have 
been impaired by the EOs. A significant number of their tenants have not paid their rent in 
full and on time (Compl., ¶¶ 30–32, 39–40), have interfered with proper management of 
the property including the ability to comply with local ordinances (id. at ¶¶ 30–32), or have 
significantly impaired the use and enjoyment of the properties for other tenants, causing at 
least one and possibly more tenants to leave. (id. at ¶ 30.) 
These tenants would normally be subject to eviction, or at least, the termination of 
their tenancies at the end of the rental period. (Compl., ¶¶ 31, 33, 41.) Despite this, for the 
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last six months and more the EOs at issue have prevented both evictions and the 
terminations of tenancies, requiring Plaintiffs to continue the tenancies of renters who have 
not paid, who have substantially breached their lease agreements, and who continue to 
interfere with the use and enjoyment of the residencies of other tenants. As a result, 
Plaintiffs’ businesses and their other tenants have been harmed. 
Legal Standard 
Under Fed. R. Civ. P. 12, a Complaint must be dismissed if the claim lacks subject 
matter jurisdiction, or if the Complaint fails to state a claim upon which relief may be 
granted. Fed. R. Civ. P. 12(b)(1), (6). To survive a Rule 12 motion to dismiss, the “[f]actual 
allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. 
Corp. v. Twombly, 550 U.S. 544, 555 (2007). 
Argument 
As a result of the EOs at issue, Plaintiffs have been denied access to the courts in all 
but the most extreme circumstances to enforce their lease agreements. They have been 
denied these rights for almost eight months, without any provision for compensation or 
access to judicial review, and there is no end in sight. The EOs at issue deny Plaintiffs their 
basic rights under the First, Fifth, and Fourteenth Amendments, as well as impairing their 
right to contract under the U.S. Constitution. The denial of these fundamental rights, and 
the likelihood that these rights will be vindicated at trial, as well as the long line of cases 
defending these rights, outweighs Defendants’ argument that the current emergency grants 
them carte blanche to infringe on Plaintiffs’ rights. For these reasons, this Court should 
deny Defendants’ motion to dismiss. 
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I. 
Defendants Are Not Immune From Suits Alleging That Their Actions 
Were Completely Without Authority, Nor Does The Eleventh 
Amendment Bar Official Capacity Suits For Prospective Relief 
Defendants’ first argument is that the Court has no jurisdiction to hear the claims 
brought before it. This is incorrect. While normally federalism concerns prevent federal 
courts from instructing state officials on how to interpret state law, that same concern does 
not apply when a state official acts without any authority whatever. Similarly, suits against 
state officials in their official capacity are permitted when they request prospective 
injunctive relief, as Plaintiffs’ Complaint does. 
A. The Portions Of The EOs Which Are Enactments Of Pure 
Legislative Or Judicial Power Are Ultra Vires And May Be 
Challenged 
Defendants argue that Pennhurst State Sch. & Hosp. v. Halderman prevents 
Plaintiffs from challenging the EOs as ultra vires. 465 U.S. 89, 106 (1984) (Def. Br., 9.) 
While normally federal courts decline to instruct state officials on state law, Pennhurst 
itself notes an exception. “These and other modern cases make clear that a state officer 
may be said to act ultra vires only when he acts ‘without any authority whatever.’ As the 
Court in Larson explained, an ultra vires claim rests on ‘the officer's lack of delegated 
power. A claim of error in the exercise of that power is therefore not sufficient.’” Id. at 101 
n.11 (citations omitted). Thus, the Court in Pennhurst acknowledged the distinction 
between a claim that a state actor had incorrectly applied state law and a claim that the state 
actor had no power to act based on a lack of delegated power. Id. Plaintiffs do not challenge 
the fact that some emergency powers have been delegated to the Governor, nor do they 
argue that this delegation was impermissible. The argument here is that the powers 
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delegated to the Governor—to “make, amend, and rescind the necessary orders and 
rules”—does not delegate to him pure legislative or judicial functions. Minn. Stat. § 12.21, 
subd. 3(1). 
Portions of the EOs at issue do just this. For example, the Minnesota Supreme Court 
has explained that “[p]ure legislative power, which can never be delegated, is the authority 
to make a complete law—complete as to the time it shall take effect and as to whom it shall 
apply—and to determine the expediency of its enactment.” Lee v. Delmont, 36 N.W.2d 
530, 538 (Minn. 1949). So while the Governor can validly make emergency rules and 
regulations, he cannot substantively change the law—for instance, by adding a seven-day 
notice period for an eviction when the procedural and substantive requirements for eviction 
are wholly laid out by the legislature in Minn. Stat. ch. 504B. (See EO 20-79, at 3 ¶ 6.) Nor 
can he simply instruct that the judiciary not to hear cases or controversies it is authorized 
to hear, any more than he could set up executive courts to hear eviction cases based on his 
emergency powers. Pennhurst does not prevent Plaintiffs from challenging these ultra 
vires acts. 
B. Defendants Are Not Immune From Suit Challenging The EOs They 
Wrote And Enforce 
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. 
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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 
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. 
The Court Should Not Abstain When The Questions Presented To This 
Court Are Not Presented In Any State-Court Action 
Next, Defendants argue that this Court should abstain from hearing this matter to 
allow state courts to determine the issues. (Def. Br., 13.) However, Defendants have not 
cited to any state court which is currently positioned to rule on the issues at question in this 
litigation, and Plaintiffs are aware of none. While the uncertainty over the pandemic and 
the scope of the Governor’s powers has certainly been litigated and continues to be 
litigated, this Court should not invoke a prudential doctrine so broadly. 
 
 
A. Colorado River Abstention is Not Appropriate 
 
As Defendants correctly noted, “Colorado River permits federal courts to decline to 
exercise jurisdiction over cases where parallel state court litigation is pending, meaning 
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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). Where the parties disagree, however, is on whether the 
litigation cited by Defendants is sufficiently parallel that there is a “substantial likelihood” 
that the state proceedings will fully dispose of Plaintiffs’ claims. 
 
Here, the four cases cited by Defendants will not fully dispose of Plaintiffs’ claims; 
indeed, they are likely to have little impact. The closest case to resolving any of the issues 
before the Court is Free Minnesota Small Business Coalition v. Walz, where the plaintiffs 
argued generically that Minnesota Emergency Management Act (“MEMA”) violated the 
non-delegation doctrine solely with regard to the delegation of legislative powers. (Def. 
Br., 14; see Goodwin Decl., Ex. 10, at 27.) Judicial powers were never addressed. (See 
generally, id.) More importantly, however, that case addressed non-delegation, arguing the 
Governor’s actions were improper because the statute was an impermissible delegation of 
legislative power. (Id.) Plaintiffs’ argument is the opposite: accepting that the statute is not 
impermissibly broad, the Governor has nonetheless violated the separation of powers in 
his exercise of those powers. (See Compl., ¶¶ 74–78; see also, e.g., EO 20-79, at 3 ¶ 6 
(making substantive changes to the law by imposing a new seven-day notice period on 
property owners)). Put simply, Plaintiffs could accept the holding of the state court 
completely without changing a word of their Complaint. 
 
Ellison v. Schiffler et al, and Buzzell v. Walz, both cited by Defendants, bear a 
resemblance to the case at bar. (Def. B.r, 14–15; see Goodwin Decl., Exs. 11–12, 16.) 
Neither addressed several issues at the heart Plaintiffs’ case: violations of the right of 
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access to the courts, or violations of the Contracts Clause. (See id.) As the court noted in 
Buzzell, a Takings Clause analysis may be “case-specific”; at the very least, it involves an 
analysis—as the court conducted—of the specific harm to the specific plaintiff. (Goodwin 
Decl., Ex. 16, at 4–5.) An analysis of the partial closure of a bar has little bearing on 
Plaintiffs’ Takings Clause claims. Even the substantive due process counterclaim in 
Schiffler gives little indication that it overlaps in any meaningful way with the claims 
before this Court. (Id., at ¶¶ 216–22.) And the recall petitions cited by Defendants have no 
relevance here at all. (Def. Br., 15.) 
 
 
B. Pullman Abstention Is Not Applicable Here 
 
“As a rule, federal courts are required to exercise their jurisdiction when invoked to 
redress alleged constitutional deprivations by state administrative actions; it is only in 
exceptional circumstances that a federal court may abstain from decision for state 
resolution of preliminary issues.” Coley v. Clinton, 635 F.2d 1364, 1372 (8th Cir. 1980). 
Pullman abstention is not an exercise of federalism, but of judicial restraint. When state-
law questions are unclear, such that a decision regarding the state law might preclude the 
need to rule on the federal questions, abstention is appropriate. Cf. Torres v. Precision 
Indus., Inc., 938 F.3d 752, 754 (6th Cir. 2019) (Courts should not decide “questions of a 
constitutional nature unless absolutely necessary to a decision of the case or formulate a 
rule of constitutional law broader than is required by the precise facts to which it is to be 
applied”) (internal quotations omitted) (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 
288, 347 (1936) (Brandeis, J., concurring)). Thus, Pullman abstention is applicable when 
the state law is unclear. Here, the question is not the proper interpretation of the EOs at 
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issue, but whether the plain language of the EOs, which no party disputes, is 
unconstitutional. Pullman is therefore not applicable here. 
III. 
Defendants’ Repeated Citations to Jacobson Are Not Well-Founded 
Defendants make several references to Plaintiffs’ failure to cite their preferred case 
on this issue, Jacobson v. Massachusetts, 197 U.S. 11 (1905). Rather than examine why 
the case is important to this analysis, however, Defendants simply cherry-pick a sentence 
from the opinion in support of their position. The case is worth a full analysis in light of 
the heavy emphasis Defendants (and many courts) place on it. 
A. Factual Basis of Case and Holding 
Jacobson was a challenge to a Massachusetts statute allowing local governments to 
mandate vaccinations during the smallpox outbreak at the turn of that century, if they 
considered it necessary in their locality. 197 U.S. at 12. Jacobson, who had been criminally 
convicted for refusing and subjected to the $5 fine, challenged this law under the preamble 
to the U.S. Constitution and the “spirit of the Constitution,” as well as the Fourteenth 
Amendment. Id. at 13–14. Essentially, this challenge was the equivalent to similar 
challenges today to mask mandates: The question presented was one of individual liberty 
versus a legislative determination related to public health. 
The Court in Jacobson analyzed the case as one of police powers, allowing that such 
power encompassed “such reasonable regulations established directly by legislative 
enactment as will protect the public health and the public safety.” 197 U.S. at 25 (citing 
cases). The Court noted the tension between the role of the Legislature—“[t]he good and 
welfare of the commonwealth, of which the legislature is primarily the judge, is the basis 
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on which the police power rests in Massachusetts,” id. at 27—and the Judiciary—to protect 
against “police power” laws passed “in such an arbitrary, unreasonable manner, or might 
go so far beyond what was reasonably required for the safety of the public, as to authorize 
or compel the courts to interfere for the protection of such persons.” Id. at 28 (citing cases 
when “under the guise of exerting a police power, [health laws] invaded the domain of 
Federal authority, and violated rights secured by the Constitution, [and] this court deemed 
it to be its duty to hold such laws invalid.” Id.) It is in this context that the only quoted 
sentence of Jacobson in Defendants’ brief appears. 
If there is any such power in the judiciary to review legislative 
action in respect of a matter affecting the general welfare, it 
can only be when that which the legislature has done comes 
within the rule that, if a statute purporting to have been enacted 
to protect the public health, the public morals, or the public 
safety, has no real or substantial relation to those objects, or is, 
beyond all question, a plain, palpable invasion of rights secured 
by the fundamental law, it is the duty of the courts to so 
adjudge, and thereby give effect to the Constitution. 
 
Id. at 31 (citing Mugler v. Kansas, 123 U. S. 623, 661 (1887); Minnesota v. Barber, 136 
U. S. 313, 320; Atkin v. Kansas, 191 U. S. 207, 223 (1903)). In each of the cited cases, just 
as in the cited passage above and the several pages of analysis preceding it, the Court was 
trying to avoid substituting its own judgment for that of the fully-formed factfinding of a 
legislature. See Mugler 123 U. S. at 661 (“Under our system that power is lodged with the 
legislative branch of the government”); Barber, 136 U. S. at 320 (“The rule is general, with 
reference to the enactments of all legislative bodies, that the courts cannot inquire into the 
motives of the legislators in passing them”) (quoting Soon Hing v. Crowley, 113 U.S. 703, 
710 (1885)); Atkin, 191 U. S. at 223 (“No evils arising from such legislation could be more 
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far-reaching than those that might come to our system of government if the judiciary, 
abandoning the sphere assigned to it by the fundamental law, should enter the domain of 
legislation, and, upon grounds merely of justice or reason or wisdom, annul statutes that 
had received the sanction of the people's representatives.”) Executive power was not 
mentioned; the Court’s deference was to legislative fact-finding about medical issues. 
B. Jacobson Was Often Cited, But Historically For The Simple 
Proposition That Individual Liberty Is Not Absolute 
 
Despite Defendants’ assertions of the far-reaching scope of this new formulation of 
law, for well over a century Jacobson was often cited, but for the fairly unremarkable 
principle that individual liberty was not absolute, and the state possessed the police power 
to regulate the health of its citizens. See, e.g., Roe v. Wade, 410 U.S. 113, 154 (1973) (“The 
privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us 
that the claim asserted by some amici that one has an unlimited right to do with one's body 
as one pleases bears a close relationship to the right of privacy previously articulated in the 
Court's decisions. The Court has refused to recognize an unlimited right of this kind in the 
past. Jacobson v. Massachusetts”); Planned Parenthood of Se. Pennsylvania v. Casey, 505 
U.S. 833, 857 (1992) (cited for the same principle); Washington v. Glucksberg, 521 U.S. 
702, 742 (1997) (citing Jacobson in examples recognizing “that this common-law right to 
refuse treatment is neither absolute nor always sufficiently weighty to overcome valid 
countervailing state interests”); Wisconsin v. Yoder, 406 U.S. 205, 230 (1972) (citing 
Jacobson as part of the argument that religious actions are “not totally free from legislative 
restrictions”); Employment Div., Dept. of Human Res. of State of Or. v. Smith, 485 U.S. 
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660, 670 n.13 (1988) (same). Indeed, the same Court which issued Jacobson issued 
Lochner two months later and noted that Jacobson was “related to compulsory vaccination, 
and the law was held valid as a proper exercise of the police powers with reference to the 
public health . . . . That case is also far from covering the one now before the court.” 
Lochner v. New York, 198 U.S. 45, 56 (1905), abrogated in subsequent cases. “There is, in 
our judgment, no reasonable foundation for holding this to be necessary or appropriate as 
a health law to safeguard the public health, or the health of the individuals who are 
following the trade of a baker. The case differs widely, as we have already stated, from the 
expressions of this court in regard to laws of this nature.” Id. at 58 (citing Jacobson). Even 
the Court which issued both opinions did not regard Jacobson’s scope as broad enough to 
extend police powers from a doctor’s office to a bakery. 
 
When Jacobson has been cited by the high court in the context of emergency 
powers, the references have been spare, passing, or in dissent. See, e.g. Hamdi v. Rumsfeld, 
542 U.S. 507, 592 (2004) (Thomas, J., dissenting) (citing Jacobson as part of the argument 
that the President’s decision for indefinite detention of U.S. citizens as enemy combatants 
“is necessary to protect the public need not and should not be subjected to judicial second-
guessing”). It was not cited, for instance, in Blaisdell, which invoked a national emergency 
to limit the rights of property owners to recover property by foreclosure. See Home Bldg. 
& Loan Ass’n v. Blaisdell, 209 U.S. 398 (1934). 
 
 
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C. In The Closest Analogous Case, Jacobson Was Cited Only To Show 
That A Governor’s Executive Powers During An Emergency Should 
Be Limited Despite Jacobson 
The closest the case has ever come to being used by the Supreme Court in an 
analogous case was in Sterling v. Constantin. In that case, the governor of Texas had 
declared a state of emergency due to civil unrest and issued executive orders to the Texas 
National Guard “regulating and restricting the production of oil from complainants’ wells.” 
287 U.S. 378, 386–87 (1932). Naming the governor, adjutant general, and the brigadier 
general of the Texas National Guard as defendants, the plaintiffs (private companies whose 
wells were subject to interference by these executive orders) requested an injunction. Id. 
The Court quickly dismissed the defendants’ arguments—also made in this case—that it 
lacked jurisdiction on Eleventh Amendment immunity grounds. Id. at 393. The Court then 
abstained on the argument—not made by Plaintiffs in this context—that Texas law did not 
grant the governor the emergency powers he claimed. Id. at 396. The Supreme Court then 
addressed the crux of the question presented by Defendants here, and unanimously and 
roundly rejected it at some length. 
Third. The existence and nature of the complainants' rights are 
not open to question. Their ownership of the oil properties is 
undisputed. Their right to the enjoyment and use of these 
properties, subject to reasonable regulation by the state in the 
exercise of its power to prevent unnecessary loss, destruction, 
and waste, is protected by the due process clause of the 
Fourteenth Amendment. [citing cases] . . . [A]ppellants assert 
that the court was powerless thus to intervene, and that the 
Governor's order had the quality of a supreme and 
unchallengeable edict, overriding all conflicting rights of 
property and unreviewable through the judicial power of the 
federal government. 
 
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If this extreme position could be deemed to be well taken, it is 
manifest that the fiat of a state Governor, and not the 
Constitution of the United States, would be the supreme law of 
the land; that the restrictions of the Federal Constitution upon 
the exercise of state power would be but impotent phrases, the 
futility of which the state may at any time disclose by the 
simple process of transferring powers of legislation to the 
Governor to be exercised by him, beyond control, upon his 
assertion of necessity. Under our system of government, such 
a conclusion is obviously untenable. There is no such avenue 
of escape from the paramount authority of the Federal 
Constitution. 
As the dagger in Defendants’ position, the Court went on in the very next paragraph to note 
that its decision was taken in full recognition of the precedent of Jacobson. Id. at 398–99.1 
 
1 Unlike Jacobson, Sterling has been cited often by the majority or concurrence in cases 
involving executive authority in times of conflict. See, e.g., Duncan v. Kahanamoku, 327 
U.S. 304, 335 (1946) (Stone, C.J., concurring) (despite the attack on Pearl Harbor, “the 
exercise of the [executive] power may not extend beyond what is required by the exigency 
which calls it forth”); Cooper v. Aaron, 358 U.S. 1, 18 (1958) (holding that a governor and 
school board could not “war against the Constitution” by resisting school integration); 
Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion) (in the War on Terror, 
affirming right to impartial adjudicator of government’s claim of enemy combatant status). 
See also Toyosaburo Korematsu v. United States, 140 F.2d 289, 297 (9th Cir. 1943), aff'd 
sub nom. Korematsu v. United States, 323 U.S. 214 (1944) (Denman, J, dissenting in part 
from internment of Japanese-Americans). 
 
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D. Jacobson’s New Life During The COVID-19 Pandemic 
The Supreme Court has not had the occasion as yet to issue a final opinion on the 
COVID-19 pandemic as it relates to Jacobson’s new interpretation in the last six months, 
but has cited the case in three opinions concurring or dissenting from the denial of an 
application or stay of an injunction related to the pandemic. In only one of them was 
Defendants’ position addressed directly. Justice Alito, writing for three justices who 
dissented from the denial of the application for an injunction against certain executive 
orders by the Governor of Nevada, cautioned that 
[l]anguage in Jacobson must be read in context, and it is 
important to keep in mind that Jacobson primarily involved a 
substantive due process challenge to a local ordinance 
requiring residents to be vaccinated for small pox. It is a 
considerable stretch to read the decision as establishing the test 
to be applied when statewide measures of indefinite duration 
are challenged under the First Amendment or other provisions 
not at issue in that case. 
 Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2608 (2020) (Alito, J., 
dissenting). 
This is the correct analysis. For more than a century after it was issued Jacobson 
lived an uneventful life, standing for a principle so unremarkable that it was frequently 
mentioned and rarely examined. Now the effects of the recent emergency have breathed 
into it not new life, but a different life. It is no longer cited for the principle it was cited for 
in Roe and Casey, and Glucksburg, and Yoder and Smith: that a person’s individual liberty 
 
 
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is not absolute, but must bow to reasonable restrictions based on valid uses of police power. 
It no longer gives the gentler guidance it was read to hold in the years following its 
issuance. See German All. Ins. Co. v. Hale, 219 U.S. 307, 317 (1911) (citing Jacobson to 
hold that “the state may, in the exercise of its police power, and in harmony with its own 
and the Federal Constitution, prescribe for the public convenience and the general good”) 
(emphasis added). It no longer is subject to the warnings in Jacobson itself, which the 
Eighth Circuit interpreted to mean that “[t]he reserved police power of the state must stop 
when it encroaches on the protection accorded the citizen by the Federal Constitution.” 
Women's Kansas City St. Andrew Soc. v. Kansas City, Mo., 58 F.2d 593, 598 (8th Cir. 
1932) (citing Jacobson and similar cases). Instead, a flood of cases during the pandemic 
have given it exactly the inverse reading and a scope that is almost boundless. 
As of October 19, 2020, of the 453 times Jacobson has been cited by the federal 
courts, 154 have come since the start of the pandemic; that is, over one-third of all federal 
citations to Jacobson over the previous one hundred and fifteen years have come in the last 
six months. Twenty of the citations came between the filing of Plaintiffs’ initial 
memorandum and Defendants’ response. Now, some courts are interpreting Jacobson to 
hold that “[d]uring an epidemic, the Jacobson court explained, the traditional tiers of 
constitutional scrutiny do not apply.”2 Cassell v. Snyders, 20 C 50153, 2020 WL 2112374, 
 
2 This argument ignores the fact that, in 1905, even the idea of “tiers” of constitutional 
scrutiny would not exist for another 33 years. United States v. Carolene Products Co., 304 
U.S. 144, 152 n.4 (1938). 
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at *6 (N.D. Ill. May 3, 2020), on appeal to Seventh Circuit (cited in Def. Br., 13). This 
Court, following the Fifth Circuit, has taken the position that “Jacobson instructs that all 
constitutional rights may be reasonably restricted to combat a public health emergency.” 
Lewis v. Walz, CV 20-1212 (DWF/HB), 2020 WL 5820549, at *4 (D. Minn. Sept. 30, 
2020) (quoting In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020)) (emphasis in original). The 
Eighth Circuit in In re Rutledge held that in the face of a crisis, Jacobson imposes a higher 
standard than any known to law: that only “fundamental” rights are subject to protection 
from abuse of police powers, and even then only on a showing “beyond all question” that 
there is a “plain, palpable” invasion of that right, or a showing that the state lacks a “real 
and substantial relation” to the crisis. 956 F.3d 1018, 1028 (8th Cir. 2020) (emphasis 
added). 
As this Court has noted, other district courts have not taken such a sweeping view 
of Jacobson. 2020 WL 5820549 at *4, n.5 (citing Cnty. of Butler v. Wolf, —F.3d—, Civ. 
No. 20-677, 2020 WL 5510690, at *9-10 (W.D. Penn. Sept. 14, 2020)); see also Bayley's 
Campground, Inc. v. Mills, — F. Supp. 3d ––, 2020 WL 2791797 (D. Me. May 29, 2020). 
The sudden onslaught in the last few months of this new interpretation of Jacobson as a 
sweeping emergency-powers decision should show the Court that this is an example of an 
analysis seeking a precedent, rather than precedent driving analysis.  
IV. 
Plaintiffs’ Rights Have Been Substantially Infringed By The EOs At 
Issue 
Finally, Defendants argue simply that “all of Plaintiffs’ claims fail as a matter of 
law.” (Def. Br., 18.) However, Plaintiffs have presented the Court with a Complaint which 
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validly asserts multiple violations of their constitutional rights by the EOs at issue. 
Therefore, Defendants’ motion must be denied. 
A. The EOs at Issue Violate The First Amendment 
While Defendants do appear to concede that the right of access to the courts is a 
fundamental right, they argue that the EOs at issue do not infringe on Plaintiffs’ rights 
under the First Amendment. (Def. Br., 23–25.) Defendants attempt to argue that they have 
not denied access to the courts in all case, only the overwhelming majority, and that 
property owners are still free to pursue the meaningless exercise of suing for money 
damages for past-due rent.3 (Def. Br., 24.) This does nothing to help their argument. 
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). More pointedly, it went on to directly refute Defendants’ argument 
here. 
The First Amendment would, however, be a hollow promise if 
it left government free to destroy or erode its guarantees by 
indirect restraints so long as no law is passed that prohibits free 
speech, press, petition, or assembly as such. We have therefore 
repeatedly held that laws which actually affect the exercise of 
these vital rights cannot be sustained merely because they were 
enacted for the purpose of dealing with some evil within the 
State's legislative competence, or even because the laws do in 
fact provide a helpful means of dealing with such an evil.  
 
 
3 This begs the question: When? Every month as rent is unpaid? Only when their ability to 
recover possession of the property has been reinstated to property owners have any measure 
of the total damages which would be claimed in an action for money damages. 
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Id. (citing cases). Defendants’ argument that relief can still be sought in cases of 
“substantial endangerment” or for illegal activities glosses over the fact that the majority 
of eviction actions are not brought for these purposes, and those causes of action still exist 
without remedy. (Def. Br., 24.) It is not what Defendants dismissively refer to as Plaintiffs’ 
“preferred remedy” which has been cut off, it is the only meaningful remedy. Worse, not 
only do the EOs prevent Plaintiffs from seeking redress in the Courts, but they threaten 
both criminal prosecution and civil fines for even attempting to seek redress. (EO 20-79, 
at 3 ¶ 10.) The broad infringement on Plaintiffs’ right to seek redress in the courts is in 
clear violation of the First Amendment. 
B. The EOs at Issue Violate The Contracts Clause 
Next, Defendants argue that contract rights have not been impaired, and if they have, 
such rights are not fundamental. (Def. Br., 24–26.) Under Art. 1, Sec. X, clause 1 of the 
Constitution, “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” 
Under current precedent, the Contract Clause analysis follows a two-pronged test. The first 
question is whether the state law has operated as a substantial impairment of a contractual 
relationship. Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). Second, 
the court examines whether the impairment “is reasonable and necessary to serve an 
important public purpose.” U.S. Tr. Co. of New York v. New Jersey, 431 U.S. 1, 25 (1977).  
1. The EOs at issue substantially impair the contractual 
relationship between Plaintiffs and their tenants 
The first question before the Court on this issue is whether the EOs at issue impair 
Plaintiffs’ contracts with their tenants. Courts should consider, in analyzing this factor, “the 
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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 v. Melin, 138 S. Ct. 1815, 1822 (2018). 
By their express terms, the EOs cut off Plaintiffs from not only the rights to regain 
possession, but also cut off the statutory rights on which the contracts are based. “It is 
manifest that the obligation of the contract, and the rights of a party under it, may, in effect, 
be destroyed by denying a remedy altogether.” Bronson v. Kinzie, 42 U.S. 311, 317 (1843). 
Minn. Stat. § 504B.291, subd. 1 explicitly allows for eviction of a tenant for non-payment 
or breach of a lease. The leases at issue also specifically provide for termination of the 
leases on proper notice. (Compl. ¶¶ 26, 36.) The EOs at issue, just as specifically, deny 
those rights to property owners except under narrow circumstances—a limitation not 
supported in statute. (See EO 20-14, at 2–3.) This impairment of the right to regain 
possession similarly impairs every other provision in the contract—e.g. a tenant’s duty to 
comply with management of the property, to respect the rights of other tenants, and to 
comply with reasonable rules and regulations—since it cuts off the only remedy for a 
tenant’s misbehavior available to a property owner. 
2. The EOs at issue cannot be justified as reasonable and 
necessary to an important public purpose in light of the 
purpose of the Contracts Clause 
The second issue is whether an executive order which impairs contracts by 
indefinitely cutting off a party from meaningful remedies envisioned under the contract, 
without any demonstration of need, mechanism for judicial review, or provision to secure 
compensation, is reasonable and necessary an important public purpose. 
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Plaintiffs, of course, do not disagree that stopping the spread of COVID-19 is an 
important public purpose. But the purpose is only half the analysis: Defendants must also 
show that “the state law is drawn in an ‘appropriate’ and ‘reasonable’ way” to advance that 
purpose. Sveen, 138 S. Ct. at 1822. Here, Defendants’ actions draw no lines at all between 
protections appropriate to the pandemic and the virtually universal prohibition on evictions 
under the EOs. This is best illustrated by the fact that while the EOs invoke the financial 
hardship of the pandemic on Minnesota citizens, the provisions of the EOs themselves do 
nothing to relate the protections to hardship imposed by the pandemic. The EOs stand in 
stark contrast to the recent CDC moratorium. The CDC moratorium only provides 
protections when 
1) The individual has used best efforts to obtain all 
available government assistance for rent or housing; 
(2) The individual either (i) expects to earn no more than 
$99,000 in annual income for Calendar Year 2020 (or no more 
than $198,000 if filing a joint tax return),[6] (ii) was not 
required to report any income in 2019 to the U.S. Internal 
Revenue Service, or (iii) received an Economic Impact 
Payment (stimulus check) pursuant to Section 2201 of the 
CARES Act; 
(3) the individual is unable to pay the full rent or make 
a full housing payment due to substantial loss of household 
income, loss of compensable hours of work or wages, a lay-
off, or extraordinary [7] out-of-pocket medical expenses; 
(4) the individual is using best efforts to make timely 
partial payments that are as close to the full payment as the 
individual's circumstances may permit, taking into account 
other nondiscretionary expenses; and 
(5) eviction would likely render the individual 
homeless—or force the individual to move into and live in 
close quarters in a new congregate or shared living setting—
because the individual has no other available housing options. 
 
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Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 85 
Fed. Reg. 55292, 55293. The EOs cover everyone regardless of circumstance. (EO 20-79.) 
 
Additionally, it is notable that while Defendants have cited to $100 million in 
emergency assistance made available by Defendant Gov. Walz, the state agency directing 
that aid itself draws the very lines the EOs refuse to do, by providing assistance only to 
those who (like “covered persons” under the CDC moratorium) are below income 
thresholds and who have been financially burdened due to COVID-19. (State of Minnesota, 
“COVID-19 Housing Assistance Program,” available at 
http://www.mnhousing.gov/sites/np/covid19housingassistanceprogramFAQ, last accessed 
Nov. 06, 2020) (“To qualify for housing assistance, households must meet all of the criteria 
listed below . . . . Be a renter or homeowner with an income at or below 300% of federal 
poverty guidelines, with a preference for those at or below 200% of federal poverty 
guidelines [and] . . . . Be unable to make the payment(s) owed because of the public health 
emergency due to unemployment, illness, or another COVID-19 related issue”) (emphasis 
in original). 
 
Defendants’ response to the very real concerns related to the COVID-19 pandemic 
has not been tailored to be reasonable and appropriate to the pandemic; it has not been 
tailored at all. It therefore cannot be said to fit under an exception to the Contracts Clause’s 
absolute prohibition on the impairment of contracts. 
 
 
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C. The EOs At Issue Violate The Takings Clause Of The Fifth 
Amendment 
Next Defendants argue that there has been no taking of Plaintiffs’ property. (Def. 
Br., 27–29.) Notably, Defendants do not attempt to argue that there has been just 
compensation, focusing entirely on the first prong of the analysis. At issue here is the 
provision of the EOs which, through government regulation, deprive Plaintiffs of full use 
of their private property. 
1. The EOs at issue involve physical takings because they require 
property owners to allow exclusive use of their properties to others 
without their consent 
Defendants argue that the EOs’ requirement that Plaintiffs continue to accept the 
physical presence of tenants over Plaintiffs’ objections is not a physical taking. (Def. Br., 
27.) Quoting Yee v. City of Escondido, Cal., Defendants argue that “The government 
effects a physical taking only where it requires the landowner to submit to the physical 
occupation of his land.” 503 U.S. 519, 527 (1992). But in Yee, the Court held that the that 
the statute at issue there did not because it “provides that a park owner who wishes to 
change the use of his land may evict the tenants.” 503 U.S. at 527 (quoting FCC v. Florida 
Power Corp., 480 U.S. 245, 252 (1987)) (emphasis in original). Here, the difference is 
crucial, since property owners are indefinitely prevented from evicting their tenants. 
Defendants’ argument fails. 
2. The EOs at issue are also regulatory takings 
The Supreme Court has recognized that partial, regulatory takings are still takings. 
Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 137–38 (1978). The Supreme 
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Court in Lingle v. Chevron U.S.A. Inc. further explained that the Penn Central Court had 
“identified ‘several factors that have particular significance.’ Primary among those factors 
are ‘[t]he economic impact of the regulation on the claimant and, particularly, the extent to 
which the regulation has interfered with distinct investment-backed expectations.’” 544 
U.S. 528, 538–39 (2005) (quoting Penn Central, 438 U.S. at 124). It additionally identified 
the “character of the governmental action” as another factor which “may be relevant.” Id. 
 
As to the first factors, the economic impact and the distinct investment-backed 
expectations, both of these are heavily implicated by the EOs at issue. The ownership of 
rental property is unquestionably an investment, purchasing and paying for the cost and 
maintenance of a rental building explicitly for the purpose of recouping rental payments. 
By cutting off the ability of property owners to enforce the collection of rents, the EOs 
have are causing adverse economic impact and impairing the investment-backed 
expectations of Plaintiffs. 
As to the character of the governmental taking here, 
[t]he Fifth Amendment's guarantee that private property shall 
not be taken for a public use without just compensation was 
designed to bar Government from forcing some people alone 
to bear public burdens which, in all fairness and justice, should 
be borne by the public as a whole. 
 
Armstrong v. United States, 364 U.S. 40, 49 (1960). The Armstrong Court perfectly sums 
up the character of the action at issue here. Where, as here, a sub-group of the population 
is forced to bear the burden of a statewide interest in preventing homelessness during a 
pandemic, the regulation has the character of a taking. This conclusion is supported by the 
language of EO 20-14 itself, which emphasizes the statewide nature of the issue the EO is 
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designed to address. (EO 20-14, at 1–2) (“this pandemic . . . threatens the lives of 
Minnesotans.” “Housing insecurity . . . is a subject of general concern . . . losing housing 
endangers the public peace, health, and safety of all Minnesotans.”) 
The EOs at issue are clear on this point. “[A]ll residential landlords must cease 
terminating residential leases during the pendency of the emergency.” (EO 20-14, at 2.) 
Terminations under the EOs also includes non-renewal of leases, meaning that all leases 
are automatically and indefinitely renewed even after the lease terms have ended. (EO 20–
79, at 2, ¶ 3.) Thus, the EOs enact a regulatory taking. 
D. The EOs at Issue Violate Due Process Under the Fifth and 
Fourteenth Amendments 
Finally, Defendants rely on Singleton v. Cecil to argue that “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.” 176 F.3d 419, 424 
(8th Cir. 1999); (Def. Br., 30.) Here, however, Plaintiffs’ substantive due process claim 
does not occur in a vacuum devoid of any violations of other rights. Rather, it accentuates 
the violations already complained of. 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. Prelim. Inj. 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 
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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 on 
Plaintiffs’ preliminary injunction motion. Defendants argued that the infringement on the 
Petitions Clause is merely a 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 
 
Plaintiffs fully acknowledge that the actions of Defendants were and continue to be 
taken in a most uncertain and chaotic time. The ebb and flow of the pandemic continues, 
the facts about this disease are still not fully known, and millions of Minnesotans are 
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relying on their government to take action to combat its spread. However, their actions 
must not only be made in good faith; they must pass constitutional muster. Here, eight 
months into the pandemic, the EOs at issue continue to infringe on the constitutional rights 
of Plaintiffs and all Minnesota landlords, and need to be replaced with actions which both 
protect Minnesota citizens and are valid exercised of executive authority. Therefore, 
Defendants’ motion to dismiss Plaintiffs’ Complaint must be denied. 
 
 
 
 
 
 
 
Respectfully submitted, 
Dated:  November 06, 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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