Somerset Court in Minot is asking a district court to vacate or amend an order that could prevent its challenge of a governor’s executive order from quickly getting to the North Dakota Supreme Court.

South Central District Judge Daniel Borgen on May 18 ruled in support of Gov. Doug Burgum, the North Dakota Health Department and State Health Office Mylynn Tufte in converting Somerset’s request for declaratory judgment to summary judgment, allowing an extension from 14 days to 30 days for the defendants to submit a response to the lawsuit. The state argued there is no procedural rule enabling Somerset to ask for a declaratory judgment. It also objected to Somerset amending its complaint to include reference to the Legislative Council’s analysis questioning the governor’s legal authority regarding certain executive orders.

Somerset, through its attorney, Lynn Boughey, asked the court to rescind the order or amend it to limit the state’s response to only legal issues. Somerset wants the arguments to exclude factual issues at this time and address the legal issues surrounding the governor’s authority to shut down businesses in a pandemic, so that portion of the case can be immediately sent to the Supreme Court.

Boughey added the May 18 order was issued without waiting for a response from Somerset, which had less than a day to react.

The state wants the district court to address the legal issues, delaying the sending of that portion of the case immediately to the higher court.

The lawsuit brought by Somerset Court, an independent living facility, and Kari Riggin, an independent contractor who operates a hair salon in Somerset, came following an executive order shutting down cosmetology services, including in-house hair salons, due to COVID-19.

Although the governor has since allowed salons to resume operating, limits and restrictions exist. Somerset also argues the lawsuit remains relevant because every salon and business in North Dakota is potentially subject to being shut down again if the governor concludes it is necessary due to a spike in illness.

Somerset also is asking its in-house salon be excluded from current and future executive orders affecting hair salons.