Glow In One Mini Golf, LLC v. Tim Walz

United States Court of Appeals

For the Eighth Circuit

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No. 21-2283

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Northland Baptist Church of St. Paul, Minnesota; John Bruski; Living Word

Christian Center

Plaintiffs

Glow In One Mini Golf, LLC; Aaron Kessler; Myron’s Cards and Gifts, Inc.;

Larry Evenson; AJ Hulse Company; Andrew Hulse; Gay Bunch-Hulse

Plaintiffs - Appellants

v.

Governor Tim Walz, individually and in his official capacity; Attorney General

Keith M. Ellison, in his official capacity; Mike Freeman, in his official capacity as

County Attorney for Hennepin County, Minnesota; Anthony Charles Palumbo, in

his official capacity as County Attorney for Anoka County, Minnesota; John Choi,

in his official capacity as County Attorney for Ramsey County, Minnesota

Defendants - Appellees

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The Forum for Constitutional Rights

Amicus on Behalf of Appellants

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Appeal from United States District Court

for the District of Minnesota

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Submitted: February 17, 2022

Filed: June 16, 2022

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Before LOKEN, COLLOTON, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

In response to the COVID-19 pandemic, Minnesota Governor Tim Walz

declared a state of “peacetime emergency” and began issuing executive orders (EOs)

intended to combat the spread of the virus. The EOs pertinent to this appeal limited

which types of businesses could continue operations and, later, specified the

capacities at which those businesses could operate. Appellants, three Minnesota

businesses and their respective owners, suffered financial losses during the

COVID-19 pandemic and while these EOs were in effect. Appellants brought an

Equal Protection Clause claim against Governor Walz and Keith M. Ellison,

Minnesota’s Attorney General, in their official capacities and a Takings Clause

claim against Governor Walz in his individual capacity, which the district court1

dismissed. 2 They now appeal that dismissal, and having jurisdiction pursuant to 28

U.S.C. § 1291, we affirm.

1

The Honorable Wilhelmina M. Wright, United States District Judge for the

District of Minnesota.

2

Two churches, Northland Baptist Church of St. Paul and Living Word

Christian Center, as well as a pastor, John Bruski, originally joined appellants as

plaintiffs. The churches and pastor brought a free exercise claim and a freedom of

speech and assembly claim pursuant to the United States and Minnesota

Constitutions and named as defendants Mike Freeman, Hennepin County Attorney,

Tony Palumbo, Anoka County Attorney, and John Choi, Ramsey County Attorney.

However, the plaintiffs voluntarily dismissed their claims against Freeman,

Palumbo, and Choi, leaving only Governor Walz and Attorney General Ellison as

defendants. Then, the parties, pursuant to Federal Rule of Civil Procedure 41(a)(1),

stipulated to the dismissal of the churches’ and the pastor’s claims with prejudice,

leaving only appellants as plaintiffs.

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I.

On March 13, 2020, former President Donald Trump declared the United

States to be in a state of emergency due to the COVID-19 pandemic and approved

major disaster declarations in all 50 states and most territories. On this same day,

Governor Walz issued EO 20-01, which declared Minnesota to be in a “peacetime

emergency.” In that EO, Governor Walz explained:

The infectious disease known as COVID-19, an act of nature, has now

been detected in 118 countries and territories, including the United

States. COVID-19 has been reported in 42 states. There are over 1,600

confirmed cases nationwide, including fourteen in Minnesota.

The U.S. Department of Health and Human Services Secretary has

declared a public health emergency for the United States to aid the

nation’s healthcare community in responding to COVID-19. The

World Health Organization has recently assessed that this outbreak can

be characterized as a pandemic.

In coordination with other state agencies, local governments, and

partners in the private sector, the Minnesota Department of Health . . .

has been preparing for and responding to the COVID-19 pandemic in

Minnesota.

R. Doc. 57-1, at 30.

Three days later, on March 16, Governor Walz issued EO 20-04 in response

to a “rapidly increasing” number of confirmed COVID-19 cases within Minnesota’s

borders. This EO closed some “places of public accommodation,” which the EO

defined as “a business, or an educational, refreshment, entertainment, or recreation

facility, or an institution of any kind, whether licensed or not, whose goods, services,

facilities, privileges, advantages, or accommodations are extended, offered, sold, or

otherwise made available to the public.” R. Doc. 57-1, at 42. This included

appellant Glow In One Mini Golf, LLC, an indoor mini-golf facility owned by

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appellant Aaron Kessler. EO 20-04 became effective March 17, 2020. On March

18, Governor Walz issued EO 20-08, which amended EO 20-04 to include, as

relevant here, salons like appellant AJ Hulse Company, a hair salon with two

locations owned by appellants Andrew Hulse and Gay Bunch-Hulse. EO 20-08 was

effective immediately.

Throughout 2020, Governor Walz continued issuing EOs, and in each EO, he

provided an updated total of active COVID-19 cases in Minnesota and extended,

modified, or replaced previously issued guidelines to reflect Minnesota’s

ever-evolving response to the virus. These EOs initially provided for the

almost-complete closure of the state and required Minnesotans to remain at home

unless engaging in “critical infrastructure sector” work, a term defined by the United

States Department of Homeland Security to include “workers needed to maintain the

services and functions Americans depend on daily and that need to be able to operate

resiliently during the COVID-19 pandemic response,” such as health care workers,

law enforcement, and first responders. R. Doc. 57-1, at 60. As a result, appellant

Myron’s Cards and Gifts, Inc., a greeting card and gift store owned by appellant

Larry Evenson, along with Glow In One and AJ Hulse, were forced to close

completely. However, in May 2020, Governor Walz issued an EO that permitted

certain businesses, including Myron’s Cards and Gifts and AJ Hulse, to begin

conducting curbside retail sales and, later, EOs that allowed businesses like Myron’s

Cards and Gifts to begin operating at 50% capacity and AJ Hulse to begin operating

at 25% capacity. Finally, on June 5, 2020, Governor Walz issued EO 20-74, which

became effective on June 9 and which is the focus of appellants’ equal protection

claim. EO 20-74 allowed businesses like AJ Hulse to reopen at 50% capacity and

Glow In One to reopen at 25% capacity. However, by June 9, Glow In One had

closed completely due to lack of income and, for the same reasons, could not reopen.

Associated with these EOs were criminal penalties which included jail time and

fines.

Appellants filed this action asserting that the EOs violated their constitutional

rights, and Appellees filed a motion to dismiss, which the district court granted in

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part and denied in part. The district court granted sovereign immunity to appellees

insofar as appellants sought monetary damages against them in their official

capacities, denied sovereign immunity to appellees insofar as appellants sought

declaratory and injunctive relief against them in their official capacities, and granted

qualified immunity to Governor Walz insofar as appellants brought claims against

him in his individual capacity. The district court alternatively dismissed appellants’

equal protection and takings claims pursuant to Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim. The district court did not consider mootness.

Appellants now appeal the district court’s dismissal of their equal protection and

takings claims.

“We review the grant of the motion to dismiss de novo.” Allen v. Monico, 27

F.4th 1372, 1376 (8th Cir. 2022) (reviewing dismissal based on qualified immunity

de novo); see also Butler v. Bank of Am., N.A., 690 F.3d 959, 961 (8th Cir. 2012)

(reviewing dismissal for failure to state a claim pursuant to Rule 12(b)(6) de novo).

“[W]e read the complaint in the light most favorable to the plaintiff, making all

reasonable inferences of fact in the plaintiff’s favor.” Allen, 27 F.4th at 1374.

“When considering . . . a motion to dismiss under Fed.R.Civ.P. 12(b)(6)[ ], the court

generally must ignore materials outside the pleadings, but it may consider some

materials that are part of the public record or do not contradict the complaint, as well

as materials that are necessarily embraced by the pleadings.” Miller v. Redwood

Toxicology Lab’y, Inc., 688 F.3d 928, 931 (8th Cir. 2012) (alterations in original)

(citation omitted). Having determined the applicable standard of review, we turn to

appellants’ arguments and, for the following reasons, affirm the district court.

II.

We must first determine whether we have jurisdiction to consider appellants’

equal protection claim, a claim for which they request only declaratory and

injunctive relief.

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“Article III of the Constitution grants federal courts the power to hear ‘Cases’

and ‘Controversies.’ This ‘requirement subsists through all stages of federal judicial

proceedings, trial and appellate.’” Teague v. Cooper, 720 F.3d 973, 976 (8th Cir.

2013) (citation omitted). “To establish Article III standing, a plaintiff must have

suffered an injury in fact that is fairly traceable to the defendant’s challenged action,

and it must be likely that the injury will be redressed by a favorable judicial

decision.” Cross v. Fox, 23 F.4th 797, 800 (8th Cir. 2022) (citation omitted); see

also North Carolina v. Rice, 404 U.S. 244, 246 (1971) (per curiam) (“To be

cognizable in a federal court, a suit ‘must be definite and concrete, touching the legal

relations of parties having adverse legal interests. . . . It must be a real and substantial

controversy admitting of specific relief through a decree of a conclusive character,

as distinguished from an opinion advising what the law would be upon a hypothetical

state of facts.’” (alteration in original) (citation omitted)). “When, during the course

of litigation, the issues presented in a case ‘lose their life because of the passage of

time or a change in circumstances . . . and a federal court can no longer grant

effective relief,’ the case is considered moot.” Ali v. Cangemi, 419 F.3d 722, 723

(8th Cir. 2005) (en banc) (alteration in original) (citation omitted); see also Whitfield

v. Thurston, 3 F.4th 1045, 1047 (8th Cir. 2021) (“When the issues presented in a

case are no longer live, the case is moot and is therefore no longer a ‘Case’ or

‘Controversy’ for purposes of Article III.” (citation omitted)). Therefore, where,

over the course of the litigation a case has become moot, we lack jurisdiction and

must dismiss the action. See Ali, 419 F.3d at 724.

Here, appellants seek a declaration that

Governor Walz did not have the statutory authority to declare an

emergency . . . , issue shelter in place orders, authorize penalties in

excess of his statutory authority, or otherwise restrict lawful activity . . .

under the circumstances, and that the Attorney General does not have

the authority to prosecute violations of the EOs using that authority,

R. Doc. 51, at 47, as well as a declaration that appellees “violated [their] equal

protection rights . . . to operate their businesses without arbitrary and capricious

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government interference,” R. Doc. 51, at 47-48. Additionally, appellants request an

injunction “prohibiting [appellees] from enforcing EO 20-74, and any additional,

successor, or replacement executive orders which violate [their] rights.” R. Doc. 51,

at 48.

However, EO 20-74 (as well as the other EOs challenged by appellants,

though appellants focus on EO 20-74 in this claim) is no longer in effect, all capacity

restrictions have lapsed, and Minnesota is no longer in a peacetime emergency.

Thus, because the issues presented by appellants’ equal protection claim lost their

life during the course of this litigation, a declaration or an injunction by this Court

cannot provide relief, and the claim has become moot. See Rice, 404 U.S. at 246

(“Early in its history, this Court held that it had no power to issue advisory opinions,

and it has frequently repeated that federal courts are without power to decide

questions that cannot affect the rights of litigants in the case before them.” (citation

omitted)); cf. Trump v. Hawaii, 138 S. Ct. 377, 377 (2017) (per curiam) (finding

moot a challenge to provisions of an executive order which had “expired by [their]

own terms” ((alteration in original) (citation omitted)).

However, our analysis does not end here because “[t]here is an exception to

[the] mootness [doctrine] for cases that are capable of repetition yet evading review.”

Calgaro v. St. Louis Cnty., 919 F.3d 1054, 1059 (8th Cir. 2019). The “capable of

repetition yet evading review” exception is applicable “when there is a reasonable

expectation that the alleged actions of the defendant[s] will recur.” Id. We have

explained:

Under this doctrine, a case that would otherwise be moot is not if ‘(1)

the challenged action was in its duration too short to be fully litigated

prior to its cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party [will] be subjected to the

same action again.

Whitfield, 3 F.4th at 1047 (alterations in original) (citation omitted); see also

Murphy v. Hunt, 455 U.S. 478, 482 (1982) (per curiam) (requiring “a ‘reasonable

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expectation’ or a ‘demonstrated probability’ that the same controversy will recur

involving the same complaining party” (citation omitted)).

Beginning in 2020, the nation’s understanding of COVID-19 changed rapidly,

and states, like Minnesota, have been required to adapt their approach to

accommodate those near-constant developments. In turn, federal courts across the

country have been presented with novel questions of mootness. This Court,

following the Supreme Court, has explained that although a lawsuit challenging a

COVID-19 restriction may outlive that challenged restriction, “that does not

necessarily moot the case.” See Hawse v. Page, 7 F.4th 685, 692 (8th Cir. 2021)

(quoting Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021) (per curiam)). “At the

same time, however, that the government once imposed a particular COVID

restriction does not necessarily mean that litigation over a defunct restriction

presents a live controversy in perpetuity.” Id. Instead, we must engage in a

fact-specific analysis to determine if the issue is capable of repetition yet evading

review. See id. (explaining that “[r]esolution of the mootness question requires

attention to the particular circumstances of the case”).

In Minnesota, the governor may declare a peacetime emergency “only when

an act of nature . . . endangers life and property and local government resources are

inadequate to handle the situation.” Minn. Stat. § 12.31, subdiv. 2(a). Once a

peacetime emergency has been declared, the governor is authorized to act pursuant

to “the necessary portions of the state emergency operations plan,” id. at subdiv. 3,

which includes “mak[ing], amend[ing], and rescind[ing] the necessary orders and

rules” to address that emergency, § 12.21, subdiv. 3(1).

Here, it is appellants’ burden to prove that this issue is capable of repetition

yet evading review. See Whitfield, 3 F.4th at 1047. However, they have not offered

anything that supports their hypothesis that Governor Walz will, first, declare a

second peacetime emergency and, then, will issue additional EOs—specifically, EOs

like 20-74 that, in their view, treat them differently than other, similarly situated

businesses and impede them from conducting their businesses as they wish. Instead,

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appellants state only that Governor Walz “could easily declare another peacetime

emergency tomorrow” and “has stated ongoing concern about ‘variants’ which have

led to a rise in COVID-19 cases among unvaccinated people.”

Our recent opinion in Hawse suggests that, due to “the emerging availability

of vaccines for COVID-19, and declining COVID-19 case numbers,” i.e., the

“substantial changes in public health conditions since May 2020,” it is unlikely that

government officials will reissue the sort of exacting restrictions on businesses in

2022 or beyond as they did in 2020. See 7 F.4th at 692-93. Courts across the country

have similarly found that, due to developments in the COVID-19 public health crisis,

such as the availability of vaccines, orders like Governor Walz’s EOs are not capable

of repetition yet evading review. See, e.g., Church v. Polis, 2022 WL 200661, at *6

(10th Cir. Jan. 24, 2022) (“Thus, any chance of the State reimposing the challenged

restrictions on plaintiffs is entirely speculative, stemming only from the uncertainty

inherent in the pandemic and the State’s general authority to impose restrictions in

emergencies.”); Cnty. of Butler v. Governor of Pennsylvania, 8 F.4th 226, 230 (3d

Cir. 2021) (explaining that plaintiffs failed to show that challenged orders were

capable of repetition yet evading review and that, to the contrary, defendants

“represented that the public health landscape has so fundamentally changed that

‘what we were facing in this case is not what you would be facing going forward’”

(citation omitted)); Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548, 560

(6th Cir. 2021) (finding that capable-of-repetition-yet-evading-review exception to

mootness did not apply to COVID-19-related challenge to election provision

because, due to “advancements in COVID-19 vaccinations and treatment since this

case began, the COVID-19 pandemic is unlikely to pose a serious threat during the

next election cycle”).

After carefully reviewing the allegations contained in appellants’ complaint,

along with materials in the public record, materials necessarily embraced by the

pleadings, and cases like Hawse, in which this Court (and other courts) have

described developments in the state of the COVID-19 pandemic between 2020 and

now, we find that there is no reasonable expectation that EO 20-74 is capable of

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repetition. Therefore, we affirm the district court’s dismissal of appellants’ equal

protection claim, albeit on mootness grounds. See Adam & Eve Jonesboro, LLC v.

Perrin, 933 F.3d 951, 958 (8th Cir. 2019) (“[W]e may affirm a judgment on any

ground supported by the record.”).

However, our conclusion that appellants’ claim for declaratory and injunctive

relief is moot does not preclude us from reaching appellants’ claim for damages

against Governor Walz in his individual capacity. Therefore, we turn to the district

court’s finding that Governor Walz was entitled to qualified immunity on appellants’

takings claim.

“Qualified immunity is an immunity from suit, not merely a defense to

liability,” and “[t]o avoid pretrial dismissal, a plaintiff must present facts showing

the violation of a constitutional right that was clearly established at the time of the

defendant’s act.” Irvin v. Richardson, 20 F.4th 1199, 1204 (8th Cir. 2021). To

determine if a state official is entitled to qualified immunity, we employ the familiar

two-prong analysis, asking “(1) whether the facts shown by the plaintiff make out a

violation of a constitutional or statutory right, and (2) whether that right was clearly

established at the time of the defendant’s alleged misconduct.” Burns v. Cole, 18

F.4th 1003, 1007 (8th Cir. 2021) (citation omitted). “Courts can ‘exercise their

sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first.” Id. (citation omitted).

The Takings Clause, made applicable to states like Minnesota through the

Fourteenth Amendment, provides: “[N]or shall private property be taken for public

use, without just compensation.” U.S. Const. amend. V. There are different types

of takings claims that a plaintiff may bring depending on what type of government

action he wishes to challenge. See Outdoor Graphics, Inc. v. City of Burlington, 103

F.3d 690, 693 (8th Cir. 1996) (“The takings clause reaches both direct appropriations

of property and some regulations that redefine a property owner’s range of interests

in property.”). “An owner whose deprivation is less than complete, and thus does

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not amount to a per se taking, may nevertheless be entitled to compensation in some

circumstances.” Id. at 695.

Here, appellants argue that Governor Walz’s EOs (specifically, EOs 20-04,

20-08, 20-18, 20-20, 20-33, 20-38, 20-48, and 20-56) constituted a per se taking or,

in the alternative, a regulatory taking. A per se taking occurs where there is a “direct

government appropriation of or physical invasion of private property.” Hawkeye

Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430, 440 (8th Cir. 2007) (citation

omitted). A regulatory taking has traditionally been characterized as occurring when

a regulation “goes too far.” See, e.g., id. (citation omitted). The Supreme Court

recently clarified that when determining whether a per se taking or a regulatory

taking occurred, if either, the “essential question” is “whether the government has

physically taken property for itself or someone else—by whatever means—or has

instead restricted a property owner’s ability to use his own property.” Cedar Point

Nursery v. Hassid, 141 S. Ct. 2063, 2072 (2021).

We need not parse through whether or not a taking occurred, however,

because even assuming that a taking did occur, whatever its type, appellants have

offered nothing to support their contention that, in 2020, the law was clearly

established such that Governor Walz would have understood that his EOs constituted

a taking.

“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would have understood that what he is doing

violates that right.’” Williams v. Herron, 687 F.3d 971, 977 (8th Cir. 2012)

(alterations in original) (citation omitted). “In other words, the right violated must

have been established ‘beyond debate.’” Manning v. Cotton, 862 F.3d 663, 668 (8th

Cir. 2017) (citation omitted). “[C]ourts must not define clearly established law at a

high level of generality, since doing so avoids the crucial question whether the

official acted reasonably in the particular circumstances that he or she faced.” Bell

v. Neukirch, 979 F.3d 594, 607 (8th Cir. 2020) (alteration in original) (citation

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omitted). In performing the clearly established inquiry, we must “look to the state

of the law at the time of the incident.” Williams, 687 F.3d at 977 (citation omitted).

We agree with the district court that Governor Walz is entitled to qualified

immunity on this claim because appellants have not shown that Governor Walz’s

response to COVID-19—specifically, closing and then restricting the capacity of

businesses deemed non-critical—was a taking under clearly established law. In

appellants’ opening brief to this Court, they discuss why, in their view, Governor

Walz’s EOs constituted a taking, citing hallmark Takings Clause cases such as Penn

Central Transportation Co. v. City of New York, 438 U.S. 104 (1978). They suggest

that, for decades, it has been clearly established that just compensation is required

for government takings. We agree with that general proposition, as it is written

within the Fifth Amendment’s text. However, that does not explain how Governor

Walz, in 2020, would have known that his EOs, issued in response to an

unprecedented pandemic, constituted a taking for which just compensation was

owed.

As a final matter, appellants do not point to, nor can we find, any instance in

which the Supreme Court or this Court has held a government official individually

liable for a government taking. Instead, Supreme Court cases only contemplate

government entities—not individual government officials—providing just

compensation. Recently, in Cedar Point Nursery, the Supreme Court, when

discussing a physical taking, explained that the Fifth Amendment Takings Clause

implicates “a simple, per se rule: The government must pay for what it takes.” 141

S. Ct. at 2071 (second emphasis added). Similarly, earlier cases, regardless of the

type of taking being considered, refer only to the government’s provision of just

compensation, never an individual’s. See, e.g., Lingle v. Chevron U.S.A. Inc., 544

U.S. 528, 538 (2005) (“[W]here government requires an owner to suffer a permanent

physical invasion of her property—however minor—it must provide just

compensation. . . . [T]he government must [also] pay just compensation for such

‘total regulatory takings . . . .’” (citation omitted)); Tahoe-Sierra Pres. Council, Inc.

v. Tahoe Reg. Plan. Agency, 535 U.S. 302, 322 (2002) (“When the government

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physically takes possession of an interest in property for some public purpose, it has

a categorical duty to compensate the former owner . . . .”); City of Monterey v. Del

Monte Dunes at Monterey, Ltd., 526 U.S. 687, 717 (1999) (“Although the

government acts lawfully when, pursuant to proper authorization, it takes property

and provides just compensation, the government’s action is lawful solely because it

assumes a duty, imposed by the Constitution, to provide just compensation.”);

Armstrong v. United States, 364 U.S. 40, 49 (1960) (“The 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.”). In fact, the Supreme Court, when proscribing how “just

compensation” should be calculated, considers “the property owner’s loss” and “the

government’s gain.” Brown v. Legal Found. of Wash., 538 U.S. 216, 235-36 (2003).

Although none of these cases expressly reject appellants’ theory that a government

official can be held personally liable for a government taking, it is traditionally the

government itself that is responsible for compensating an individual who has

suffered a governmental taking.

Ultimately, we find that, in 2020, the law was not clearly established such that

Governor Walz would have understood that his issuance of the challenged EOs

violated appellants’ constitutional right to just compensation for a government

taking. We therefore affirm the district court’s grant of qualified immunity and

dismiss appellants’ takings claim.

III.

For the foregoing reasons, we affirm.

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