legislative authority (Article 3, section 1)
Whereas executive orders shall not make, amend, modify, repeal, suspend, nor
supersede any law (MN statute section 4.035)
Whereas executive orders supersede rule and ordinances of state agencies but
not statutes enacted by the legislature (12.32)
Whereas statutes authorizing the declaration of a national security or
peacetime emergency do not give the governor specific authority to close
businesses nor to impose a mask mandate (MN statute section 12.21)
Wherefore the Minnesota legislature is strongly encouraged file a motion in the
Minnesota Supreme Court for an injunction to restrain governor Walz from
further exercise of legislative authority by ordering the closure of businesses
and mask mandates without the statutory authority to do so.
Case law supporting above resolution:
Originating in the Wisconsin Supreme Court, Wisconsin legislature vs governor
Evers, Upheld by the United States Supreme Court
https://www.wicourts.gov/news/docs/2020AP608_2.pdf
No. 2020AP608-OAWisconsin Legislature v. Evers
This is the case where Wisc. Gov Evers announced the postponement of the
primary election. The Wisconsin Supreme held that Evers did not have authority
to make, amend, modify, repeal, suspend or supersede any statutes by issuing an
executive order. A delay in the election constituted an amendment to a law. The
law authorizing emergency powers gives the governor authority to take specific
types of actions, but none of those applied in this case. The Supreme Court of
the US upheld the decision of the Wisconsin Supreme Court.
Wisconsin law allows the governor to declare a state of emergency for 60 days
and must get legislative approval to extend it. Emergency powers granted to the
Wisconsin governor includes closing business. When governor Evers failed to get
legislative approval for an extension of the state of emergency. Evers
nontheless issued an executive order extending the lockdown after his statutory
authority to order it no longer existed. The Wisconsin Supreme Court opined
that the governor exercised legislative authority by ordering an extension of
the lockdown after the state of emergency expired.
The mask mandate imposed by executive order in Minnesota goes beyond promotion
of recommendations by the Minnesota Health Department. Department of health
recommendations are not addressed in the specific powers granted to the
governor under state of emergency statutes. The status of the mask mandate as
enforceable under the criminal code and with a monetary fine for non-compliance
makes the mandate a law. However, the governor has no authority to unilaterally
enact a law under any circumstances.
The Minnesota Constitution prohibits the unilateral exercise of legislative
authority by the executive branch.
By statute, an executive order can be properly issued to implement laws enacted
by the legislature, not to unilaterally make, amend, modify, repeal, suspend or
supersede any law.
Emergency powers granted the governor include a list of specific powers that
may be exercised and enforcement of public health law in state of emergency
statutes includes only quarantine orders. The governor may close schools, but
cannot order that masks be used as personal protective equipment for employees,
students and visitors.
In Minneapolis, the Mayor Jacob Frey issued an executive order for masks for
which he does not have the proper authority. The city council can pass an
ordinance with the same content, but the mayor does not have the authority to
do so per minnesota statute. Given that 12 or 13 members of the city council
represent the DFL party and the other council member represents the Green
Party, it is hard to imagine the city council not passing an ordinance to
require mask wearing for a certain time period that can be extended at the
council's pleasure.
Governor Tim Walz reportedly sounded out legislators about passing a mask law,
but since it appeared unlikely to get approval in the Minnesota Senate, Walz
opted for an executive order. The Minnesota constitution allows law makers to
make bad laws and refrain from making good laws. Walz is admittedly
circumventing the legislature and unilaterally exercising legislative
authority.
Doug Mann, candidate for Minneapolis School Board, citywide
ARTICLE III
DISTRIBUTION OF THE POWERS OF GOVERNMENT
Section 1. Division of powers.
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.
4.035 EXECUTIVE ORDERS.
Subdivision 1.Applicability.
A written statement or order executed by the governor pursuant to
constitutional or statutory authority and denominated as an executive order, or
a statement or order of the governor required by law to be in the form of an
executive order, shall be uniform in format, shall be numbered consecutively,
and shall be effective and expire as provided in this section. Executive orders
creating agencies shall be consistent with the provisions of this section and
section 15.0593.
Subd. 2.Effective date.
An executive order issued pursuant to sections 12.31 to 12.32 or any other
emergency executive order issued to protect a person from an imminent threat to
health and safety shall be effective immediately and shall be filed with the
secretary of state and published in the state register as soon as possible
after its issuance. Emergency executive orders shall be identified as such in
the order. Any other executive order shall be effective upon 15 days after its
publication in the state register and filing with the secretary of state. The
governor shall submit a copy of the executive order to the commissioner of
administration to facilitate publication in the State Register.
Subd. 3.Expiration date.
Unless an earlier date is specified by statute or by executive order, an
executive order shall expire 90 days after the date that the governor who
issued the order leaves office.
12.21 GOVERNOR.
Subdivision 1.General authority.
The governor (1) has general direction and control of emergency management,
(2) may carry out the provisions of this chapter, and (3) during a national
security emergency declared as existing under section 12.31, during the
existence of an energy supply emergency as declared under section 216C.15, or
during the existence of an emergency resulting from an incident at a nuclear
power plant that poses a radiological or other health hazard, may assume direct
operational control over all or any part of the emergency management functions
within this state.
Subd. 2.Cooperation.
In performing duties under this chapter, the governor may cooperate with the
federal government, with other states, with Canadian provinces, and with
private agencies, in all matters pertaining to the emergency management of this
state and of the nation.
Subd. 3.Specific authority.
In performing duties under this chapter and to effect its policy and purpose,
the governor may: (1) make, amend, and rescind the necessary orders and rules
to carry out the provisions of this chapter and section 216C.15 within the
limits of the authority conferred by this section, with due consideration of
the plans of the federal government and without complying with sections 14.001
to 14.69, but no order or rule has the effect of law except as provided by
section 12.32; (2) ensure that a comprehensive emergency operations plan and
emergency management program for this state are developed and maintained, and
are integrated into and coordinated with the emergency plans of the federal
government and of other states to the fullest possible extent; (3) in
accordance with the emergency operations plan and the emergency management
program of this state, procure supplies, equipment, and facilities; institute
training programs and public information programs; and take all other
preparatory steps, including the partial or full activation of emergency
management organizations in advance of actual disaster to ensure the furnishing
of adequately trained and equipped forces of emergency management personnel in
time of need; (4) make studies and surveys of the industries, resources, and
facilities in this state as may be necessary to ascertain the capabilities of
the state for emergency management and to plan for the most efficient emergency
use of those industries, resources, and facilities; (5) on behalf of this
state, enter into mutual aid arrangements or cooperative agreements with other
states, tribal authorities, and Canadian provinces, and coordinate mutual aid
plans between political subdivisions of this state; (6) delegate administrative
authority vested in the governor under this chapter, except the power to make
rules, and provide for the subdelegation of that authority; (7) cooperate with
the president and the heads of the armed forces, the Emergency Management
Agency of the United States and other appropriate federal officers and
agencies, and with the officers and agencies of other states in matters
pertaining to the emergency management of the state and nation, including the
direction or control of: (i) emergency preparedness drills and exercises; (ii)
warnings and signals for drills or actual emergencies and the mechanical
devices to be used in connection with them; (iii) shutting off water mains, gas
mains, electric power connections and the suspension of all other utility
services; (iv) the conduct of persons in the state, including entrance or exit
from any stricken or threatened public place, occupancy of facilities, and the
movement and cessation of movement of pedestrians, vehicular traffic, and all
forms of private and public transportation during, prior, and subsequent to
drills or actual emergencies; (v) public meetings or gatherings; and (vi) the
evacuation, reception, and sheltering of persons; (8) contribute to a political
subdivision, within the limits of the appropriation for that purpose, not more
than 25 percent of the cost of acquiring organizational equipment that meets
standards established by the governor; (9) formulate and execute, with the
approval of the Executive Council, plans and rules for the control of traffic
in order to provide for the rapid and safe movement over public highways and
streets of troops, vehicles of a military nature, and materials for national
defense and war or for use in any war industry, for the conservation of
critical materials, or for emergency management purposes; and coordinate the
activities of the departments or agencies of the state and its political
subdivisions concerned directly or indirectly with public highways and streets,
in a manner that will best effectuate those plans; (10) alter or adjust by
executive order, without complying with sections 14.01 to 14.69, the working
hours, workdays and work week of, and annual and sick leave provisions and
payroll laws regarding all state employees in the executive branch as the
governor deems necessary to minimize the impact of the disaster or emergency,
conforming the alterations or adjustments to existing state laws, rules, and
collective bargaining agreements to the extent practicable; (11) authorize the
commissioner of education to alter school schedules, curtail school activities,
or order schools closed as defined in section 120A.05, subdivisions 9, 11, 13,
and 17, and including charter schools under chapter 124E, and elementary
schools enrolling prekindergarten pupils in district programs; and (12)
transfer the direction, personnel, or functions of state agencies to perform or
facilitate response and recovery programs.
Subd. 4.Plan review, availability.
The governor, or state director as designee, shall ensure the conduct of an
annual review by state and local officials of the state emergency operations
plan specified in the licensing of each nuclear power plant. The review must
include, but is not limited to such factors as changes in traffic patterns,
population densities, and new construction. Opportunity for full public
participation in the annual review shall be provided. Copies of a state
emergency operations plan must be published, publicized, and distributed to the
news media of the affected community and to the appropriate officials of
affected communities and made available to the general public upon request, at
no more than the cost of reproduction.
12.31 NATIONAL SECURITY OR PEACETIME EMERGENCY; DECLARATION.
Subdivision 1.Declaration of national security emergency.
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 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. If the legislature is then in regular
session or, if it is not, if the governor concurrently with the proclamation
declaring the emergency issues a call convening immediately both houses of the
legislature, the governor may exercise for a period not to exceed 30 days the
powers and duties conferred and imposed by sections 12.31 to 12.37 and 12.381.
The lapse of these emergency powers does not, as regards any act occurring or
committed within the 30-day period, deprive any person, political subdivision,
municipal corporation, or body politic of any right to compensation or
reimbursement that it may have under this chapter.
Subd. 2.Declaration of peacetime emergency.
(a) 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. If the
peacetime emergency occurs on Indian lands, the governor or state director of
emergency management shall consult with tribal authorities before the governor
makes such a declaration. Nothing in this section shall be construed to limit
the governor's authority to act without such consultation when the situation
calls for prompt and timely action. When the governor declares a peacetime
emergency, the governor must immediately notify the majority and minority
leaders of the senate and the speaker and majority and minority leaders of the
house of representatives. A peacetime emergency must not be continued for more
than five days unless extended by resolution of the Executive Council up to 30
days. An order, or proclamation declaring, continuing, or terminating an
emergency must be given prompt and general publicity and filed with the
secretary of state. (b) By majority vote of each house of the legislature, the
legislature may terminate a peacetime emergency extending beyond 30 days. If
the governor determines a need to extend the peacetime emergency declaration
beyond 30 days and the legislature is not sitting in session, the governor must
issue a call immediately convening both houses of the legislature. Nothing in
this section limits the governor's authority over or command of the National
Guard as described in the Military Code, chapters 190 to 192A, and required by
the Minnesota Constitution, article V, section 3.
Subd. 3.Effect of declaration of peacetime emergency.
A declaration of a peacetime emergency in accordance with this section
authorizes the governor to exercise for a period not to exceed the time
specified in this section the powers and duties conferred and imposed by this
chapter for a peacetime emergency and invokes the necessary portions of the
state emergency operations plan developed pursuant to section 12.21,
subdivision 3, relating to response and recovery aspects and may authorize aid
and assistance under the plan.
12.32 GOVERNOR'S ORDERS AND RULES, EFFECT.
Orders and rules promulgated by the governor under authority of section 12.21,
subdivision 3, clause (1), when approved by the Executive Council and filed in
the Office of the Secretary of State, have, during a national security
emergency, peacetime emergency, or energy supply emergency, the full force and
effect of law. Rules and ordinances of any agency or political subdivision of
the state inconsistent with the provisions of this chapter or with any order or
rule having the force and effect of law issued under the authority of this
chapter, is suspended during the period of time and to the extent that the
emergency exists.
12.29 DECLARATION OF LOCAL EMERGENCY.
Subdivision 1.Authority to declare emergency.
A local emergency may be declared only by the mayor of a municipality or the
chair of a county board of commissioners or their legal successors. It may not
be continued for a period in excess of three days except by or with the consent
of the governing body of the political subdivision. Any order or proclamation
declaring, continuing, or terminating a local emergency must be given prompt
and general publicity and filed promptly by the chief of the local
record-keeping agency of the political subdivision.
Subd. 2.Effect of declaration of emergency.
A declaration of a local emergency invokes necessary portions of the response
and recovery aspects of applicable local or interjurisdictional disaster plans,
and may authorize aid and assistance under those plans.
Subd. 3.Interjurisdictional agencies.
No interjurisdictional agency or official may declare a local emergency unless
expressly authorized by the agreement under which the agency functions.
However, an interjurisdictional disaster agency shall provide aid and services
in accordance with the agreement under which it functions.
12.34 ASSISTANCE REQUIRED; COMPENSATION FOR PROPERTY TAKEN; PENALTY.
Subdivision 1.Emergency powers.
When necessary to save life, property, or the environment during a national
security emergency or during a peacetime emergency, the governor, the state
director, or a member of a class of members of a state or local emergency
management organization designated by the governor, may: (1) require any
person, except members of the federal or state military forces and officers of
the state or a political subdivision, to perform services for emergency
management purposes as directed by any of the persons described above; and (2)
commandeer, for emergency management purposes as directed by any of the persons
described above, any motor vehicles, tools, appliances, medical supplies, or
other personal property and any facilities.
Subd. 2.Compensation.
The owner of commandeered property must be promptly paid just compensation for
its use and all damages done to the property while so used for emergency
management purposes. The governor or the governing body of the political
subdivision concerned, respectively, according to the use of the property,
shall make a formal order determining the amount of compensation. The owner may
appeal to the district court of the county in which the property was
commandeered if, within 30 days from the date of the order, the owner serves
upon the governor or the political subdivision concerned and files with the
court administrator of the district court a written notice of appeal setting
forth the order appealed from and, in detail, the amount claimed as
compensation. Upon appeal, the issue is the amount of damages to which the
appellant is entitled. It may be noticed for trial as in the case of a civil
action and the court may require other parties to be joined and to plead when
necessary to a proper determination of the questions involved. The cause must
be tried without a jury de novo and the court shall determine the damages and
the person or persons entitled to them. Except as herein otherwise provided,
the trial must be conducted and the cause disposed of according to the rules
applicable to civil actions in the district court. The court in its discretion
may award to the prevailing party the costs and disbursements of the appeal.
Subd. 3.Penalty.
An able-bodied person required to perform services for emergency management
who refuses, neglects, or otherwise fails to perform the services required
under subdivision 1 is guilty of a misdemeanor and must be punished by
imprisonment in the county jail for not less than ten days or more than 90
days.
12.39 INDIVIDUAL TREATMENT; NOTICE, REFUSAL, CONSEQUENCE.
Subdivision 1.Refusal of treatment.
Notwithstanding laws, rules, or orders made or promulgated in response to a
national security emergency or peacetime emergency, individuals have a
fundamental right to refuse medical treatment, testing, physical or mental
examination, vaccination, participation in experimental procedures and
protocols, collection of specimens, and preventive treatment programs. An
individual who has been directed by the commissioner of health to submit to
medical procedures and protocols because the individual is infected with or
reasonably believed by the commissioner of health to be infected with or
exposed to a toxic agent that can be transferred to another individual or a
communicable disease, and the agent or communicable disease is the basis for
which the national security emergency or peacetime emergency was declared, and
who refuses to submit to them may be ordered by the commissioner to be placed
in isolation or quarantine according to parameters set forth in sections
144.419 and 144.4195.
Subd. 2.Information given.
Before performing examinations, testing, treatment, or vaccination of an
individual under subdivision 1, a health care provider shall notify the
individual of the right to refuse the examination, testing, treatment, or
vaccination, and the consequences, including isolation or quarantine, upon
refusal.