A district judge has dismissed a Minot independent living center’s lawsuit over a governor’s order that shut down its in-house salon.

Somerset Court will be appealing the decision of South Central District Judge Daniel Borgen to the North Dakota Supreme Court.

“We certainly understand the proclivity to conclude that the governor’s powers are unlimited,” said Bismarck attorney Lynn Boughey, who represents Somerset. “But both the legislative council and the good citizens of North Dakota have a different view. Time will tell if the Supreme Court also have a different view.”

The lawsuit brought by Somerset Court, and Kari Riggin, an independent contractor who operates a hair salon in Somerset, came in April 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, Somerset argued 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.

In a decision signed Monday, Borgen wrote the governor has broad constitutional and statutory authority to manage an emergency or disaster, and the executive orders issued in response to COVID-19 did not exceed that authority.

“Regardless of whether or not this Court agrees with the reasonableness or unreasonableness of the executive orders at issue, Somerset has not cited any authority establishing this Court’s authority to second-guess a decision made and enforced by the Executive Branch of government, when the Executive Branch has been given clear authority to perform the challenged actions,” he wrote. “This Court will not substitute its own judgment or decision-making for that of the Governor and the State Health Officer.

Borgen also determined Somerset no longer needs relief from the order because it has been lifted. He conceded to Somerset’s argument that the order could be re-issued, but he stated any future orders would have to be evaluated in the context presented at that time.

Boughey responded state law gives decision-making responsibility in health-related emergencies to local health offices rather than the governor.