Buzzell v. Walz

• Decision Date: 18 May 2022
• Docket Number: A20-1561
• Parties: Carvin BUZZELL, Jr., Appellant, v. Tim WALZ, as Governor of Minnesota, et al., Respondents.
• Court: Minnesota Supreme Court

974 N.W.2d 256

Carvin BUZZELL, Jr., Appellant,

v.Tim WALZ, as Governor of Minnesota, et al., Respondents.

A20-1561

Supreme Court of Minnesota.

Filed: May 18, 2022

Matthew E. Anderson, Steven B. Anderson, Anderson Law Group PLLC, Saint Paul, Minnesota, for appellant.

Keith Ellison, Attorney General, Liz Kramer, Solicitor General, Richard Dornfeld, Katherine Hinderlie, Assistant Attorneys General, Saint Paul, Minnesota, for respondents.

Katherine M. Swenson, Amran A. Farah, Greene Espel PLLP, Minneapolis, Minnesota, and; Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Caroline S. Van Zile, Principal Deputy Solicitor General, Caroline W. Tan, Assistant Attorney General, Washington, D.C., for amici curiae District of Columbia, et al.

Lawrence R. McDonough, James Poradek, Housing Justice Center, Saint Paul, Minnesota, for amici curiae Housing Justice Center, et al.

OPINION

THISSEN, Justice.

Appellant Carvin Buzzell, Jr. argues that his hospitality businesses were commandeered when, in response to the COVID-19 emergency, the Governor issued emergency executive orders that imposed capacity limits for dining beginning in March 2020. Buzzell asserts that, because he is the owner of commandeered property, he is entitled to "just compensation" for the government's "use" of his property under Minn. Stat. § 12.34 (2020).

During a peacetime emergency and when "necessary to save life, property, or the environment," section 12.34, subdivision 1(2), authorizes the governor to "commandeer, for emergency management purposes[,] ... any motor vehicles, tools, appliances, medical supplies, or other personal property and any facilities." Id. , subd. 1. Further, section 12.34, subdivision 2, provides: "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." Id. , subd. 2.

We conclude that, for property to be commandeered, the government must exercise exclusive control over or obtain exclusive possession of the property such that the government could physically use it for an emergency management purpose. The government exercises exclusive physical control or exclusive possession of private property when only the government may exercise control or possession of the property and the owner is denied all control over or possession of the property. We remand to the district court to determine whether, on the facts alleged and with all reasonable inferences construed in favor of Buzzell, the Governor exercised exclusive control over or obtained exclusive possession of Buzzell's properties such that the government could physically use them for an emergency purpose.

FACTS

It is difficult to overstate the adverse economic effects of the COVID-19 pandemic. Places of public accommodation have been especially hard-hit. As the district court noted, "There can be no doubt to anyone that this has been an incredibly challenging situation for Plaintiff and for many, if not most, small businesses. The impact of the Covid-19 pandemic on the economy and on individuals and small businesses has been staggering." In the United States, approximately 110,000 restaurants and bars closed at some point between March and December 2020.¹ And it is estimated that in Minnesota alone, upwards of 10,000 restaurants and bars (a $10.7 billion industry) were adversely affected.²

Buzzell is no exception. Buzzell owns two businesses that accommodate the public and have been impacted by the COVID-19 pandemic. Buzzell started a vineyard in Morrison County. In 2010, after the vineyard failed, Buzzell converted a barn on that land into a wedding venue, naming it Rum River Barn and Vineyard. In early 2018, Buzzell took on another mortgage to purchase a café in Milaca, which he then remodeled and renamed the Timber Valley Bar Grille and Catering.

On March 13, 2020, in response to the emerging COVID-19 pandemic, the Governor issued Emergency Executive Order No. 20-01, Declaring a Peacetime Emergency and Coordinating Minnesota's Strategy to Protect Minnesotans from COVID-19 (Mar. 13, 2020). Emergency Executive Order No. 20-01 required state agencies to coordinate their responses to COVID-19 and advised the public to follow guidance on precautions to take to avoid the spread of COVID-19. Id. at 2–3. Three days later, the Governor issued Emergency Executive Order No. 20-04, Providing for Temporary Closure of Bars, Restaurants, and Other Places of Public Accommodation (Mar. 16, 2020). Stating that "[t]he COVID-19 pandemic presents an unprecedented challenge to our State," the Governor ordered that places of public accommodation serving "food or beverage for onpremises consumption" were "closed to ingress, egress, use, and occupancy by members of the public." Id. at 2. The Executive Order then clarified the following:

Places of public accommodation subject to this Executive Order are encouraged to offer food and beverage using delivery service, window service, walk-up service, drive-through service, or drive-up service, and to use precautions in doing so to mitigate the potential transmission of COVID-19, including social distancing. In offering food or beverage, a place of public accommodation subject to this section may permit up to five members of the public at one time in the place of public accommodation for the purpose of picking up their food or beverage orders, so long as those individuals are at least six feet apart from one another while on premises.

This Executive Order does not prohibit an employee, contractor, vendor, or supplier of a place of public accommodation from entering, exiting, using, or occupying that place of public accommodation in their professional capacity.

Id. (numbering omitted).

As conditions worsened, the Governor issued more emergency executive orders through April 2020, extending the capacity and use regulations of Emergency Executive Order No. 20-04 and ordering "all persons currently living within the State of Minnesota ... to stay at home or in their place of residence" except to engage in excepted activities and "Critical Sector work." See, e.g. , Emerg. Exec. Order No. 20-33, Extending Stay at Home Order and Temporary Closure of Bars, Restaurants, and Other Places of Public Accommodation 2–3 (Apr. 8, 2020). The Governor noted that, "[a]s of April 7, 2020, forty-one other states and the District of Columbia representing almost 318 million Americans" had issued similar orders. Id. at 2.

On May 26, 2020, the Governor issued Emergency Executive Order No. 20-62, Amending Executive Order 20-56 to Allow Worship, Weddings, and Funerals to Proceed as Safely as Possible During the COVID-19 Peacetime Emergency (May 26, 2020), which allowed wedding venues to host weddings with social distancing and occupancy limited to 25 percent of the venue's normal capacity "as determined by the fire marshal." Id. at 3. The next day, the Governor eased restrictions on patio dining at restaurants and bars (subject to capacity limits and distancing requirements), while continuing to limit the capacity allowed for indoor restaurant and bar spaces to only five members of the public at one time, for the purpose of picking up their orders. Emerg. Exec. Order No. 20-63, Continuing to Safely Reopen Minnesota's Economy and Ensure Safe Non-Work Activities During the COVID-19 Peacetime Emergency 7–9 (May 27, 2020). At no point were restaurants ordered to completely close; nor were restaurant owners prohibited from using or accessing, or permitting their employees to use or access, their businesses to prepare and serve food and beverages to customers.

While the emergency executive orders applied to all of the restaurants in the state, those not already equipped to offer takeout or drive-through food services were especially affected. Buzzell alleged that the Timber Valley Bar Grille and Catering was not positioned well to serve takeout or drive-through food, and during that time its revenue dropped by 75 percent. He applied for $10,000 in federal COVID-19 Economic Injury Disaster Loan funds in early April 2020, but that relief was denied on May 29, 2020.

Four days later, on June 2, 2020, Buzzell filed this cause of action against the Governor and the Minnesota Executive Council, asserting both a takings claim under Minn. Const. Art. I, § 13, and a statutory commandeering claim under Minn. Stat. § 12.34, subd. 2. Buzzell's statutory commandeering claim asserted that his "property and facilities" were "commandeered" for "use in fighting the spread of the COVID-19." He requested relief of "not less than $40,000" as compensation for "commandeering and using his Timber Valley Grille since March 13, 2020, to help control the spread of COVID-19 virus." See Minn. Stat. § 12.34, subd. 2 ("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 commandeering claim is the only issue before us.³

The Governor moved to dismiss under Minn. R. Civ. P. 12.02(e) and Buzzell moved for partial summary judgment. The district court granted the Governor's motion and denied Buzzell's motion.

The district court found that Buzzell's commandeering claim failed as a matter of law because "none of the[ ] definitions [of ‘commandeer’] apply to the circumstances described." The court turned to dictionary definitions to inform its statutory interpretation: "to seize for military or police use; confiscate"; "to take arbitrarily or by force"; or "to force into military service." And it noted that Buzzell's property "was not seized or confiscated, nor was it taken or forced into military service."

Buzzell appealed the dismissal of his commandeering claim. The court of appeals affirmed, holding that the word "commandeer," as used in section 12.34, subdivision 1(2), "unambiguously requires direct, active use of private property by the...