79-CV-20-829

Filed in District Court

State of Minnesota
12/1/2020 10:26 AM

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF WABASHA THIRD JUDICIAL DISTRICT

CASE TYPE: Civil/Other

State of Minnesota, by its Attorney General, Consumer Protection
Keith Ellison, Court File No. 79-CV-20-829

Plaintiff,

House of Iron, LLC d/b/a Plainview Wellness

Center,

Defendant,
MEMORANDUM IN OPPOSITION TO
TEMPORARY RESTRAINING ORDER

Introduction

Defendant House of Iron, LLC d/b/a Plainview Wellness Center (“PWC”) submits this

Memorandum opposing the Ex Parte Motion for a Temporary Restraining Order dated

November 24, 2020 and filed by the State of Minnesota on November 25, 2020.

PWC was informed of this action on November 25, 2020, the day before Thanksgiving

and attempted over the Thanksgiving holiday to determine what action it needed to take, and to

locate legal counsel. PWC became aware on Friday, February 27, 2020 of the hearing date of

December 1, 2020 for this ex parte temporary restraining order. PWC is at a disadvantage in

preparing for this hearing in relationship to the State, which has been working on Covid

Executive Orders since March 2020. Nonetheless, this temporary restraining order should be

denied because the science and health concerns do not require such drastic and business-

threatening measures as the closure of all gyms and health clubs, as mandated by Executive

Order 20-99. Because the State has relied on irrelevant case studies, frequently performed at the
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very onset of Covid and before preventive measures were undertaken, the State has not met its

burden to assess business closure, civil penalties, and costs against PWC. This TRO should be

denied.

Facts

PWC’s formation, and its owner, Brandon Reiter’s background.

PWC is owned by Brandon Reiter who founded PWC as a health club to provide fitness

and exercise for members of the Plainview community, so that they could have a local health

club option without having to drive 30 miles to Rochester. Reiter Decl. par. 2. Mr. Reiter is an

Iraqi War veteran, National Guardsman, volunteer fireman, health science degree holder and

conscientious member of the Plainview community. Reiter Decl. par. 3. He takes the safety,

cleanliness, and healthy operation of his business very seriously because of his study and

experience in science and health. Reiter Decl. par. 9-18.

Reiter started PWC in 2013, in his hometown of Plainview, Minnesota as a result of

wanting to work out and stay fit and to offer that service to others. Reiter Decl. par. 2-3.

Reiter graduated from Elgin-Millville High School in 2004, and the next year also obtained an

Associate of Arts degree in science from Rochester Community and Technical College. Mr. Reiter then

enrolled at Minnesota School of Business in Rochester for a year before enlisting in the Army National

Guard where he served for eight years and did a tour in Iraq in 2008-2009. Reiter Decl. par. 3.

After his Iraq deployment Reiter enrolled at USD-Vermillion for a B.S. to study Health Science.

He attended USD for two years and transitioned into a vascular ultrasound program at Southeast

Technical Institute in Sioux Falls. This was a two year technical degree which included an eight-month

internship in Rapid City, SD at Regional Heart Doctors. Reiter Decl. par. 4.

After completing his degree, Reiter moved back to Plainview, opened a gym, joined the local

volunteer fire department and placed his roots back into his home town. Reiter Decl. par. 5.

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Because of his interest in staying in shape and working out, but his dislike of the 30 minute drive

to Rochester for exercise, Reiter saw a need for a wellness center in Plainview, and he started PWC.

Reiter Decl. par. 6. The PWC is approximately 4,000 square feet, with another 400 square foot group

fitness center for a total of about 4,400 square feet. Reiter Decl. par. 7. PWC is no longer offering group

fitness classes and does not have a teacher to teach them. Reiter Decl. par. 26.

PWC’s operation during Covid-19.

Reiter shut down PWC pursuant to the Governor’s earlier Executive Order and PWC remained

shut until May 1, 2020. During that time Reiter lost approximately $2,000 per month in lost

memberships, and fears an additional loss of business that may result in his permanent closure. Reiter

Decl. par. 8. On May 1, 2020 Reiter re-opened PWC with instructions to the members to engage in the

applicable Covid-19 safety protocols, and customers could only re-activate their key fobs if they observed

the new instructions. Reiter Decl. par. 8.

Because of Reiter’s science and medical background he has always stressed safety and

cleanliness at PWC.1 As part of PWC’s re-opening fitness machines have been spaced to allow social

distancing, the shower and drinking fountain have been shut down, and sanitation stations have been

added, equipped with paper towels, equipment sanitizer on them, and hand sanitizer. Reiter Decl. par. 9.

The cleaning supplies are approved by the US Environmental Protection Agency as “SARS-

Related Coronovirus 2” cleansers. Purell hand sanitizer, Lysol, and basic toilet cleaning supplies (EI.

Scrubbing bubbles) for the toilets and sinks in the bathroom are used. Reiter Decl. Par. 10, Ex. 1. A

poster on an easel at the front door lists CDC and PWC safety and cleaning guidelines, stressing

sanitizing equipment after every use, social distancing, staying away if the member feels ill, and no

socializing or using the drinking fountain. Bottled water is provided, members are urged to bring their

1
The State has focused on some harsh language that Mr. Reiter used in expressing his opposition
to being shut down. Mr. Reiter is passionate about his own health, that of his members, and the
role that his gym plays in promoting good health. Since he has medical experience, and
scientific study in his background, he is also passionate in opposing what he believes to be
inaccurate science.
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own water, and mask wearing is recommended by Reiter when he met face to face with members to

explain the safety protocols and re-activate their cards. Reiter Decl. par. 11-12. Reiter’s observations

during daily visits to PWC is that members are following the recommended safety precautions and are

sanitizing themselves and the equipment on a regular basis. Id.

The machines, cardio equipment and free weights have been spaced to allow social distancing

including the strength equipment (cable machines) are at least 6 feet from each other, the free weights

including benches and squat racks are more than six feet apart, and the cardio equipment is approximately

6 feet apart from one another. A large squat rack was removed to make more room for spacing of other

equipment. Reiter Decl. par. 13.

Every member is shown the poster and the locations of all 5 sanitation stations scattered

throughout the facility. The gym is equipped with two restrooms, one of which has a shower which has

been closed as well. Reiter has encouraged mask wearing to members and is willing to make it

mandatory. Reiter Decl. par. 14-17.

Reiter has observed that members are very good a wiping down equipment and attachments

after every use. His mother lives blocks away from the PWD, is retired and goes to the PWC every other

hour to disinfect the equipment, bathrooms, door handles, and take out the trash. Reiter’s father also goes

to the club most days to help with cleaning and maintenance, and sanitizing. Every Sunday Reiter deep

cleans the gym and checks over equipment for loose bolts, hardware, and performs safety checks. Reiter

Decl. par. 18-21.

PWC’s members have expressed gratitude to Reiter for having a safe, clean environment to better

their health, mental health, immunity, and overall well-being. The members get the stress relief they need

to clear their minds, build and keep a strong mental health, build their immunity by exercising to remain

healthy and safe. Reiter Decl. par. 22, 29.

The PWC is open for operation 5 a.m. to 11 p.m. Monday through Sunday. PWC has around

200 total members, but the number of members in the facility varies depending on the time of day.

During peak times there may be about 5-12 members in the facility at the same time, which equates to

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between 367 and 880 square feet per person. On the average only about 30-50 people frequent the gym

on a given day; but on some days perhaps only five people use the facility. During PWC’s existence,

Reiter does not believe more than 15 people have worked out at one time, and during COVID not more

than 10 people have worked out at one time. Reiter Decl. par. 23-25.

During Covid there have been group classes since June or July, and the maximum number was 8

people in the 400 square foot area. Presently there are no group classes or a teacher to lead them, and

PWC does not intend to have group classes. Reiter Decl. par. 26.

The PWC is unique because it is not open to the public, but rather the members are provided an

access key or fob. Members must schedule a meeting with Mr. Reiter to sign up, receive instructions, and

be issued a key fob. The front door is always locked, unless Mr. Reiter is there meeting with someone.

Since Plainview is a small community of approximately 3,300 people, and Mr. Reiter has lived there most

of his life, he personally knows almost all of the members of PWC and is not aware of a single member

having actually had Covid-19. Reiter Decl. par. 27-28.

During the first shutdown in April about 57 members canceled their gym memberships, causing a

huge financial burden because it meant a loss of approximately $2,000 per month, since a single

membership is $35 per month. Another shutdown would result in more cancellations, more financial loss,

and potential closure of the PWC. Reiter Decl. par. 30. Rather than close again, Reiter choses to keep

PWC open with even more safety protocols in place than the big box stores and other opened businesses

are using. Mr. Reiter believes it is discrimination for the Executive Orders to close his small business,

while large businesses, with frequent more and more close contact by shoppers, remain open. Reiter

Decl. par. 31.

The Health Club Industry Provides a Health Good.

Health club industry leaders Lifetime Fitness, Anytime Fitness, Snap Fitness and the

Rochester Athletic Club (referred to collectively as “Health Club Leaders”), have written an

open letter to Governor Carlson, Department of Economic Development Commissioner Steve

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Grove, Department of Health Commissioner Jan Malcolm, and IT Services Commissioner Tarek

Tomes, addressing the positive good that health clubs and gyms such as PWC provide, and rebut

some of the unverified and in some cases inflammatory language used against the safety of

health clubs and gyms. See Fahnlander Decl. Ex. 3.

The Health Club Leaders’ Letter (the “Letter”) states:

“For years, the State of Minnesota has recognized the value of exercise for public health
and wellbeing. MDG itself extols the virtue of exercise, including with respect to the very
underlying health conditions that put them at Covid risk:

Regular physical activity helps improve your overall health and reduces your risk
for heart disease, stroke, type 2 diabetes, depression and cancer. Other benefits of
regular physical activity [include]:

• Control weight
• Improve mood
• Boost energy
• Promote better sleep
• Strengthen your bones and muscles.”

Fahnlander Decl. Ex. 3, p. 12.

The Letter goes on to explain that the “MDH expressly recommends that ‘adults get at

least 150 minutes of moderate-intensity aerobic activity every week plus muscle strengthening

activity at least two days per week.” The Letter sets forth similar requirements for children’s

physical activity and exercise. Id. The Letter points out that Executive Order 20-99 itself cites

the “positive health impacts” of sports and characterizes outdoor recreation as “essential.” The

Governor himself recognized that “we know that there is a strong connection between physical

health and mental health.” Id. “Regular exercise also boosts the immune system, which helps

fight Covid-19.” Id, citing a medical article.

The Letter points out that physicians, including the “Chicago Medical Society

representing 17,000 physicians in Chicago urged government officials to keep health clubs”

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open. The Letter, p. 13. Former acting U.S. Surgeon General Dr. Kenneth P. Moritsugu

similarly urged policymakers to keep health clubs open as a matter of health equity. Id, p. 13.

Gyms and Health Clubs are Not the Source of Significant “Outbreaks.”

The State has argued that there are 49 Covid-19 outbreaks and 750 confirmed cases of

Covid-19 at gyms. State’s Memo, pp. 5-6. The Health Club Leaders have addressed and

debunked this assertion. First, the usage of the term “outbreak” is pejorative, but mostly

undefined or inconsistently defined. Fahnlander Decl. Ex. 3, The Letter p. 5. More importantly,

the State’s “outbreak” count associated with gyms and health clubs is very small—representing

only .003 per cent of all positive cases across the state. The Letter, pp. 3, 5. Further, when

considering the many millions of visits by Minnesotans to health clubs during Covid-19

(LifeTime alone logged 3.17 million visits in the five months between June 10, 2020 and mid-

November 2020), 750 cases, if true, is a tiny number. Id.

Further, the lack of “outbreaks” of Covid-19 in gyms and health clubs is not unique to

Minnesota, but is documented across the country. See, Ex. 3, The Letter, pp. 6-7. The State has

not demonstrated that gyms and health clubs are a source of significant Covid-19 risk.

The Health Club Leaders have debunked the “Studies” the State Cites as its
Evidence.

The State’s expert report contains a number of studies that are easily distinguishable from

this case. The State cites to a South Korean dance class. See, Danila Aff., Ex. B. In that study

“the researchers were examining fitness experiences from February 2020 (pre-Covid) with no

mitigation protocols in place at all.” Fahnlander Decl. Ex. 3, The Letter, p. 7. A fitness dance

instructor workshop had been held on February 15, 2020 where instructors taught 27 South

Korean women “how to be Zumba instructors.” “Zumba is a very high intensity fitness dance

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exercise … typically conducted in close proximity.” The 27 instructors “trained intensely for

four hours” at the workshop and then “returned to their hometowns to teach Zumba” to “large

class sizes” in facilities that were “small rooms with bad ventilation, with students standing a few

centimeters apart.” See, Ex. 3, The Letter, p. 7. These facts are readily distinguishable from

PWC.

Additionally, the very first factual argument and footnote the Plaintiff made in its

Complaint further demonstrates the irrelevance of its arguments. Cplt. P. 4, par. 10.; Pltf’s

Memo Spt. Mot for TRO, p. 2, Fn 1. The State argues that a Covid outbreak in the State of

Washington stemming from a choir practice on March 10, 2020 (Odette Aff. Ex. G) justifies its

Executive Order 20-99, and specifically its mandate that gyms shut down until at least December

18, 2020. In that study, the choir consisted of 122 people. At the time of this exposure (March

10, 2020, the very beginning of the Covid-19 pandemic) the choir had taken no precautions at all

to prevent Covid spreading. They practiced no social distancing, no mask wearing, and in fact

the study stresses that the choir members were close to one another. See, Ex. G. There is

nothing in that article that suggests any special cleaning precautions were taken. The choir

practice during which the 122 members were in close proximity to one another lasted 2.5 hours,

during which they “shared snacks,” and after which they stacked chairs. Comparing PWC to that

is simply unhelpful and demonstrates that the State is relying on scare tactics to force

compliance.

The State’s treatment of gyms and health clubs like “bars/restaurants,” is also unhelpful.

See, State’s Memo p. 6-7; Exec Order, pp. 11-12, Sec. iii. There is little comparison between

gyms and health clubs, which are an important and affirmative part of public health as admitted

to by the Governor, and bars, which are not.

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Less Restrictive Alternatives Exist to Protect the Public Health, Rather than Full
Closure of Health Clubs and Gyms.

The Letter points out that many states allow health clubs to remain open but with

enhanced protocols such as requiring mask wearing, reducing or eliminating group classes, and

restricting capacity. See, the Ex. 3, the Letter, pp. 2-3, 10-11. As set forth above, PWC has

terminated group classes, and restricts capacity by virtue of spreading out its equipment.

Further, because of the small number of members capacity never rises to a crowded number.

Finally, PWC’s owner has recommended mask wearing and is willing to mandate it, even during

exercise. See, Reiter Decl. par. 11.

Mayo Clinic has recently conducted a study verifying that social distancing and
mask wearing reduce the incidence of Covid spread.

The Mayo Clinics, a long time giant in the medical industry, recently conducted a study

which concluded that mask wearing, social distancing and hand washing work very well to “halt

or slow down” the transmission of Covid-19 “significantly,” according to Dr. Elie Berbari, chair

of the Infectious Disease Department at the Mayo Clinic in Rochester. Fahnlander Decl. Ex. 4;

summary of study published November 26, 2020. News reports dated November 28, 2020 state

that “[n]ew unpublished data from the May Clinic strongly supports the protective value and

effectiveness of widespread mask use as well as maintaining physical distance in helping to stop

the spread of Covid-19.” See, Fahnlander Decl. Ex. 4. This is because Covid is believed to be

“transmitted predominantly through droplets,” (according to Dr. Elie Berbari, See, Ex. 4), and

since masks stop the droplets, masks achieve this excellent result. “We found objectively that

masks are critically important. They’re very effective,” according to Dr. Matthew Callstrom,

chair of the Radiology Department at the Mayo Clinic in Rochester. Ex. 4. Further, since the

droplets have a limited travel range, social distancing is very effective at stopping the spread of

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Covid-19. “As they [particle counts] moved further away, the particle counts went down, … [so

that] [a]t six feet away, the exposure of respiratory droplets was near baseline levels.” Ex. 4.

Since these simple steps are being taken by PWC, it is complying with best practices.

Further, as the Health Club Leaders have set forth in the Letter to the Governor, less restrictive

methods can be used by gyms and health clubs—short of the complete shutdown mandated by

the Governor’s Executive Order 20-99. Steps such as mandatory mask wearing, distancing of

equipment, and hand and equipment sanitizing can be used to “halt or slow down” the

transmission of Covid-19. These steps could be taken to simultaneously allow health clubs and

gyms to remain open, thereby delivering their public health good. PWC is doing these very

things.

Governor Walz has Recognized the Mayo Clinic as a Health Leader.

Though it is obvious that the Mayo Clinic is a health industry leader, Governor Walz has

also specifically recognized the Mayo Clinic’s value during the “coronavirus pandemic.”

Fahnlander Decl. Ex. 5. According to KIMT News, on September 21, 2020 “Governor Walz

[was] praising how Mayo Clinic and the City of Rochester have been handling the coronavirus

pandemic.” Governor Walz said he’s “grateful for Mayo Clinic’s leadership both in its testing

strategy and for the experts.” The Governor “looks at the modeling Mayo puts together every

morning to help understand where the Covid-19 pandemic is at.” Further, he “truly appreciated

the science and health care advice Mayo is providing.” Fahnlander Decl. Ex. 5. The Mayo

Clinic’s above study provides a roadmap for how gyms and health clubs can stay open, and

should stay open, so that they can safely deliver the public health good to Minnesota citizens.

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Further, Governor Walz has been outspoken in “looking for partners that want to help me

fix this thing not just folks who want to be political.” See Fahnlander Decl. Ex. 5, KIMT news

report, September 21, 2020.

Argument

The State’s Motion for Temporary Restraining Order and Temporary Injunction must fail

because the State cannot meet its burden under the Dahlberg test. The State argues that it should

be allowed to proceed under the less restrictive Cross Country Bank test, but this test only applies

to injunctive relief contained in statutes propagated by the legislature and does not apply here.

Therefore, the Dahlberg factors must be analyzed. The two most important factors in this analysis

weigh in favor of Defendant, the balance of the harms strongly favors Defendant, and the State is

not likely to succeed on the merits, as the Executive Order 20-99 is unconstitutional for the

following reasons: (1) the Governor exceeded his authority by creating criminal penalties without

legislative approval; (2) it violates Defendant’s equal protection and due process rights under the

Fourteenth Amendment; and (3) it does not provide for just compensation. Because Governor

Walz acted ultra vires—beyond his statutory authority allowed by Minnesota Statutes, Chapter

12—in issuing EO 20—99 described above with criminal penalties, his actions are therefore per

se arbitrary and capricious and not “substantially justified” because they are not grounded in

Minnesota law. The Court should refuse to issue a TRO, and hold this matter over for a hearing,

prohibiting the State from enforcing EO 20-99 until this case is ultimately decided.

I. Legal Standard for Temporary Restraining Orders.

Generally, the factors a court must consider in granting injunctive relief include the

relationship between the parties, the relative harm to the parties if injunctive relief is granted or

denied, the party's likelihood of success on the merits, any public interest or public policy that may

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be involved, and the administrative burdens involved in judicial supervision and enforcement.

Mounds View v. Metro. Airports Comm'n, 590 N.W.2d 355, 357–58 (Minn.App.1999) (citing

Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274–75, 137 N.W.2d 314, 321–22 (1965)).

The State cites to State v. Cross County Bank for the proposition that it is not required to evaluate

the Dahlberg factors. However, there is one important difference. The Cross Country Bank

decision relates to enforcement of statutes, rather than executive emergency orders. “We conclude

that when the legislature has explicitly authorized the state to obtain injunctive relief to prevent

violation of statutes that protect consumers, the legislature has obviated a showing of irreparable

harm and inadequate legal remedy. This court has previously held that, in an action under the

DTPA, it is unnecessary for the court to find inadequacy of legal remedies before issuing injunctive

relief, noting that injunctive relief is the only type of remedy available under the statute.” State ex

rel. Hatch v. Cross Country Bank, Inc., 703 N.W.2d 562, 573 (Minn. Ct. App. 2005). Note, the

Court ruled that the “legislature” in passing a “statute” had obviated the need to examine the

Dahlberg factors. This reasoning is not applicable to a case in which the Governor has acted by

executive order without proceeding through the legislative process. The AG’s conflation of the

two is not surprising, as the Governor himself, in the executive orders, has overstepped his bounds

by taking quasi-legislative authority into the executive branch in violation of the Minnesota

Constitution’s separation of powers doctrine. The Governor has overstepped his bounds in, by

executive action, creating a statute that provides for criminal charges and fines without legislative

action. The Governor’s action is not a statute under Cross Country Bank and therefore, the

Dahlberg factors should be applied by the Court.

If the Court rules that Cross Country Bank applies, however, the State is still not entitled

to the relief it seeks. There is no question that Defendant intends to violate the Executive Order

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20-99 by remaining open. However, the State merely hand-waves away the objections that closing

Defendant down would fulfill the purposes of Executive Order 20-99. As Defendant will show,

there has been no increased risk to the public health and safety by allowing gym patrons to exercise

under rigorous conditions ensuring there is no spread of Covid-19. Shutting Defendant down will

both ruin Defendant’s business, and materially affect the physical and emotional wellbeing of its

members, without benefitting the public health and safety. The State’s “evidence” to the contrary

relates to completely different activities in completely different environments, and the State has

produced little relevant evidence to meet its burden. The State’s Motion should be denied.

The analysis that the trial court must complete in granting a TRO is the same as that to be

shown before a temporary injunction is issued. M.G.M. Liquor Warehouse International, Inc. v.

Forsland, 371 N.W.2d 75, 77 (Minn.Ct.App.1985). A temporary injunction is an extraordinary

equitable remedy. Miller v. Foley, 317 N.W.2d 710, 712 (Minn.1982). It is meant to preserve the

status quo pending an adjudication on the merits. Metro. Sports Facilities Comm'n v. Minnesota

Twins P'ship, 638 N.W.2d 214, 220 (Minn. Ct. App. 2002). “The party seeking the injunction

must establish that his legal remedy is not adequate, and that the injunction is necessary to

prevent great and irreparable injury.” Cherne Indus., Inc. v. Grounds & Associates, Inc., 278

N.W.2d 81, 92 (Minn. 1979) (citation omitted). An injunction should not be granted unless

injury is pressing and delay dangerous, or where injury might be irreparable. Otter Tail Power

Co. v. Village of Wheaton, 253 Minn. 123, 133 (1951).

1. Relationship Between the Parties

A temporary injunction or restraining order should generally be crafted to preserve the

existing relationship between the parties. Pickering v. Pasco Mktg., Inc., 303 Minn. 442, 444,

228 N.W.2d 562, 564 (1975). In this action, a temporary restraining order changes the

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relationship between the parties and the status quo, in that it serves as a practical death sentence

for Defendant’s business, while allowing Defendant’s business to function until final disposition

on the merits preserves the status quo. The State argues that this factor weighs heavily in favor

of the State because the Attorney General has the authority to seek injunctive relief, and the

Defendant is violating Order 20-99. In this case, as will be demonstrated below, the Governor

exceeded his constitutional authority, and grant of injunctive relief will change the relationship

of the parties improperly. The focus of the first Dahlberg factor is on the relationship, and

preservation of the status quo. It is not sufficient, even in the CashCall, Inc. case cited by the

State, to simply allege that the State through its attorney general is a regulator, and the Defendant

a non-compliant entity, which justifies granting the relief.

2. Relative Harm to the Parties

The lack of a showing of irreparable injury may be a sufficient ground for determining

that the district court abused its discretion in granting a temporary injunction. Morse v. City of

Waterville, 458 N.W.2d 728, 730 (Minn.App.1990) (finding insufficient showing of irreparable

harm where injury suffered by plaintiff discharged from employment was primarily economic),

review denied (Minn. Sept. 28, 1990). In this case, the balance of harms militates in favor of

Defendant. The State argues that Minnesotans are threatened with real, substantial, and

irreparable harms from Covid-19, which is doubtless true. However, the State also alleges that

“Defendant’s conduct will foster” the spread of the virus. However, the State has provided little

or no evidence of this, and in fact, the evidence demonstrates the opposite—that spread of the

virus in health clubs is a negligible risk in light of the precautions already taken by health clubs,

and particularly by the PWC. The Mayo Clinic study has indicated that steps already being

taken by PWC—social distancing of equipment, frequent cleaning, and the encouragement or

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mandating of mask wearing—can “halt, or slow down” the transmission of Covid-19.

On the other hand, Defendant faces irreparable harm itself. The State waves this away as

“temporarily closing to the public for four weeks.” However, in practice this is likely to mean

irreparable injury to and perhaps even the death of Defendant’s business. This is in addition to

the detriments to the health and mental and emotional wellbeing of the people who depend on

Defendant’s business. In fact, a review of the facts in this case demonstrate that the balance of

the harms weighs heavily in favor of Defendant, requiring the Court to deny the State’s motion.

3. Likelihood of Success on the Merits

The State is not likely to succeed on the merits of its claims. The State claims that the

Defendant’s claims that the Executive Order is unconstitutional are specious. (State Memo, p.

14) The State cites to a variety of case law for the proposition that state action is entitled to

enhanced deference during public health emergencies. This is without question so, and it is

further true that many Courts have ruled that specific bans of behavior in light of the Covid-19

pandemic are justified and reasonable. However, the Governor has overstepped his

constitutional authority in Executive Order 20-99, and violated the separation of powers. This

Executive Order is unconstitutional.

Minnesota Statute §12.31, the Minnesota Emergency Management Act, provides the

Governor with certain enumerated emergency powers for certain identified emergencies. The Act

provides for the Governor to declare a national security state of emergency for all or part of

Minnesota:

When information from the President of the United States, the Federal Emergency
Management Agency, the Department of Defense, or the National Warning System
indicates the imminence of a national security emergency within the United States, which
means the several states, the District of Columbia, and the Commonwealth of Puerto
Rico, or the occurrence within the state of Minnesota of a major disaster from enemy

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sabotage or other hostile action, the governor may, by proclamation, declare that a
national security emergency exists in all or any part of the state…. Minn. Stat. § 12.31,
subd. 1.

Likewise, the Act provides for the Governor to declare a peacetime state of emergency for all or

part of Minnesota:

The governor may declare a peacetime emergency. A peacetime declaration of

emergency may be declared only when an act of nature, a technological failure or
malfunction, a terrorist incident, an industrial accident, a hazardous materials
accident, or a civil disturbance endangers life and property and local government
resources are inadequate to handle the situation…. Id. subd. 2.
The Governor has issued executive orders under the Act’s peacetime emergency

provisions related to the Covid-19 pandemic. The state of a peacetime emergency may not

last longer than five days unless extended to 30 days with the consent of the Legislature’s

Executive Council. After that, the Legislature must be called into session if not already in

session for every determination of the Governor that another peacetime emergency is

required. Minn. Stat. § 12.31, subd. 2(a) and (b). Meanwhile, the Legislature may

terminate the peacetime emergency:

By majority vote of each house of the legislature, the legislature may terminate a
peacetime emergency extending beyond 30 days.

The separation of powers doctrine is found under Article III of the Minnesota Constitution:

The powers of government shall be divided into three distinct departments:

legislative, executive and judicial. No person or persons belonging to or
constituting one of these departments shall exercise any of the powers properly
belonging to either of the others except in the instances expressly provided in this
constitution. Minn. Const. art. III, § 1.
From the separation of powers provision is derived the non-delegation doctrine which

prohibits the delegation of power from one branch of government to another. [T]he legislature—

except where expressly authorized by the constitution ... cannot delegate purely legislative power

to any other body, person, board, or commission.” W. St. Paul Fedn. of Teachers v. Indep. Sch. Dist.

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State of Minnesota
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No. 197, W. St. Paul, 713 N.W.2d 366, 376 (Minn. App. 2006) quoting Lee v. Delmont, 36

N.W.2d 530, 538 (1949). “Purely legislative power” 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.” Id. quoting Rukavina v. Pawlenty, 684 N.W.2d 525, 535

(Minn.App.2004), review denied (Minn. Oct. 19, 2004). When the legislature has delegated its

powers to an administrative or executive agency, the underlying policy consideration is whether

safeguards exist to protect against uncontrolled discretionary power. Id. citing Hubbard

Broadcasting, Inc. v. Metro. Sports Facilities Comm'n, 381 N.W.2d 842, 847 (Minn.1986).

“Although purely legislative power cannot be delegated, the legislature may authorize
others to do things (insofar as the doing involves powers which are not exclusively
legislative) which it might properly, but cannot conveniently or advantageously, do
itself.” Id. quoting Lee, 36 N.W.2d at 538.

There is a distinction, “between the delegation of power to make the law, which

necessarily involves a discretion as to what it shall be, and conferring an authority or discretion

as to its execution, to be exercised under and in pursuance of the law. The first cannot be done;

to the latter no valid objection can be made.” Id. quoting Remington Arms Co. v. G.E.M. of St.

Louis, Inc., 257 Minn. 562, 569, 102 N.W.2d 528, 534 (Minn.1960) (citation omitted).

Here, the Governor has invoked his authority under the Emergency Management Act to

declare an emergency: “[t]he governor may declare a peacetime emergency” (Minn. Stat. §

12.31, subd. 2(a).) and to act under the authority granted under § 12.21, subdivision

3. However, nothing under §12.21, subdivision 3 grants the Governor the authority to make

actions, for example, criminal or to create criminal laws as he has done so in his Executive

Orders, including 20-99. Making acts criminal or creating criminal laws is a purely legislative

action. “The legislature, in the exercise of its power to declare what shall constitute a crime or

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State of Minnesota
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punishable offense, must inform the citizen with reasonable precision of the acts it intends to

prohibit so that he may have an understandable rule of conduct:” (State v. Moseng, 95 N.W.2d, 6,

11 (1959) (emphasis added)).

If the courts have been adamant that only the legislatures possess the power to enact
laws in general, they have been doubly so with respect to criminal
prohibitions. According to the Supreme Court of Washington, “the universally
accepted constitutional premise that the legislative branch of government has nearly
exclusive power to define and classify crimes,” qualified only by constitutional
limitations, is a “fundamental concept, arising…out of the separation of powers.”
The Police and Substantive Rulemaking: Reconciling Principle and Expediency, 125
U.Pa.L. Rev. 62, 78–80 (1976) (citations omitted).

As the Minnesota Supreme Court has declared, “[t]he legislature’s general discretion to

selectively deal with those acts which deems to pose the most significant societal problems is

especially broad in the realm of criminal law.” State v. Witt, 245 N.W.2d 612, 616–617(1976).

Here, the Governor has taken upon himself, without legislative authority and in disregard of the

pure legislative authority to enact criminal laws, to criminalize disobedience of his executive

orders, and in this case, threatening Defendant with a $25,000.00 penalty. The Governor has

exercised excessive power both in making criminal laws and in enforcing them.

Nowhere in the Minnesota Constitution does it provide for the Executive Branch of

government to create criminal laws inclusive of monetary fines and imprisonment. Hence, the

Governor has violated the non-delegation doctrine and the executive orders criminalizing

conduct he seeks to prohibit are unconstitutional.

Likewise, only the Legislature, may bypass the judiciary’s common law standards under

Dalberg. As Cross Country Bank, reflects, only when the Legislature has explicitly authorized

the state to obtain injunctive relief to bypass the Dalberg factors—Supreme Court common

law—may the state seek injunctive relief under Cross Country. This is pure legislative authority

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State of Minnesota
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over the judiciary branch of government. Nothing in the Emergency Management Act allows for

the use of pure legislative authority, hence, violates separation of powers principle.

The State cites to Jacobson as a form of “get out of jail free card” giving broad powers to

do whatever the State wishes during times of pandemic. As an initial matter, Jacobson did not

address equal protection, as it was a challenge to a law related to all adults, rather than targeted at

specific businesses and sectors. Furthermore, the Supreme Court in Roman Catholic Diocese of

Brooklyn, New York v. Cuomo, No. 20A87, 592 U.S. ____ (Nov. 25, 2020) did not even cite

Jacobson. Roman Catholic Diocese of Brooklyn to be sure involved First Amendment rights,

and Defendant is not arguing that strict scrutiny applies. However, the fact that the Supreme

Court did not even cite Jacobson demonstrates that it is not some “super precedent” in Covid-19

cases allowing state officials to operate without judicial oversight. However, even if Jacobson is

applied in this case, Defendant is still entitled to succeed. Jacobson holds that a Court may

strike down a legal provision as unconstitutional if it is “beyond all question, a plain, palpable

invasion of rights secured by the fundamental law” or has no “real or substantial relation to the

public health crisis.” In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020).

As Defendants will show, the Governor’s decision on enforcement with respect to PWC,

and Executive Order 20-99 in particular, has little relation to the public health crisis, and is a

palpable invasion of rights secured by fundamental law, to wit, equal protection. The Executive

Order violates Defendant’s constitutional rights, as some activity is allowed, while other activity

of equal or more danger is barred. “The purpose of the equal protection clause of the Fourteenth

Amendment is to secure every person within the State's jurisdiction against intentional and

arbitrary discrimination, whether occasioned by express terms of a statute or by its improper

execution through duly constituted agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

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(2000). The Executive Order 20-99 itself openly discriminates against similarly situated people

and entities, and the Attorney General’s enforcement actions are unequal, arbitrary, and

capricious.

The Governor himself openly violated his own executive orders by attending the

Minneapolis memorial service of George Floyd, without the Attorney General taking any action.

The fact that the State has now taken action against Defendant demonstrates the problem. The

completely disparate treatment of gyms like Defendant’s and for example, big box and retail

stores (open at 100%), tattoo parlors (open at 50% capacity), tanning solons (open at 50%),

convenience stores (open at 100%), liquor stores (open at 100%), and airport food courts (open

at 100%) (see Fahnlander Decl. Ex. 3, Health Club Leader’s Letter) , are a violation of

Defendant’s owner’s right to equal protection. There is no rational basis for treating the

Defendant differently than the other indoor facilities in which people are allowed to gather. The

State has provided no evidence that exercise has been shown to lead to an increase in Covid-19

transmissions, instead, relying on studies that examine completely different activities in different

environments. The State can provide no rational basis for their discrimination against Defendant

as opposed to similarly situated businesses, like the foregoing. There have been no evidence to

demonstrate that gyms and health clubs operating with proper precautions constitute any

increased risk over shopping in Target, getting a tattoo, or attending memorials. The State’s

enforcement is arbitrary and capricious. The State has not demonstrated a likelihood of success

on the merits, and this alone is sufficient to deny its Motion.

In addition, the State’s actions constitute a regulatory taking, which the State has resisted

compensating. It is axiomatic that the Fifth Amendment's just compensation provision is designed

to bar Government from forcing some people alone to bear public burdens which, in all fairness

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State of Minnesota
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and justice, should be borne by the public as a whole.” First English Evangelical Lutheran Church

of Glendale v. Los Angeles County, 482 U.S. 304, 318-19 (1987). Further, “temporary takings

which, as here, deny a landowner all use of his property, are not different in kind from permanent

takings, for which the Constitution clearly requires compensation.” Id. at 318. Barring a business

owner from his or her business constitutes a “physical appropriation” that is a per se taking. Tahoe-

Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 323 (2002).

Personal property can also be taken. Horne v. Dep’t of Agriculture, 576 U.S. 350, 362-63 (2015),

Even the going concern of a business can be taken, and just compensation required. Kimball

Laundry Co. v. United States, 338 U.S. 1, 11-12 (1949). To the extent that the Court rules in favor

of the Temporary Restraining Order or Injunction, it should provide for compensation for

Defendant for this taking.

4. Public Policy

The public policy works in favor of Defendant, as research shows no increase in risk to

the public health from allowing gyms to remain open with reasonable safety precautions allowed

to other businesses like shopping malls and retail stores, while the danger to the health and

wellbeing of the public, as well as to Defendant’s business, will be immense if the State’s

Motion is granted. This harm would be irreparable. The State’s expert materials do not

demonstrate any increased risk of harm by gyms, but rather, increased risks of choir practice

with singers in close contact for hours, or other activities that bear little or no resemblance to the

activities conducted in Defendant’s facility. Meanwhile, even the “temporary” imposition of an

injunction shutting down Defendant’s business will do irreparable harm to Defendant’s business,

which may not survive, and will do harm to the health and wellbeing of people who depend on

the health and wellness programs at Defendant’s gym for their physical and mental wellbeing.

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State of Minnesota
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5. Administrative Burden on the Court.

The final factor examines “the administrative burdens involved in judicial supervision and

enforcement of the temporary decree.” Dahlberg Bros., Inc. v. Ford Motor Co., 272 Minn. 264,

274-75, 137 N.W.2d 314, 321-22 (1965). This is a negligible factor, but imposition of the

injunction against Defendant will require oversight of not just of Defendant, but other similarly

situated health club facilities. Allowing Defendant to continue to operate while the Court

evaluates its legal arguments will inflict no such burden, so this cuts in favor of Defendant.

The Governor has misused his authority under Minnesota’s Emergency Management Act,

resulting in harm to the PWC. The Governor’s Executive Order has violated the separation of

powers principle under the non-delegation doctrine, the illegality of a legislative veto as

contemplated under Emergency Management Act, and the use of the Act in the current COVID-

19 health crisis.

Conclusion

The State has not met its heavy burden in order to justify the drastic relief it is seeking, a

TRO. Further, the Governor’s Executive Order 20-99 is unconstitutional. For all of the reasons

above, the TRO should be denied.

Dated: December 1, 2020 /s/Vincent J. Fahnlander

Vincent J. Fahnlander, MN 19220X
Mohrman, Kaardal & Erickson, P.A.
150 South Fifth Street, Suite 3100
Minneapolis, Minnesota 55402
Telephone: 612-341-1074
Facsimile: 612-341-1076
Email: [email protected]
Attorneys for Defendant

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