IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2021 ND 58

Somerset Court, LLC,

and Kari Riggin, Plaintiffs and Appellants

v.

Doug Burgum, Governor for the

State of North Dakota, in his

official capacity, the North Dakota

Health Department, Dirk Wilke,

North Dakota State Health Officer,

in his official capacity, Defendants and Appellees

No. 20200292

Appeal from the District Court of Burleigh County, South Central Judicial 

District, the Honorable Daniel J. Borgen, Judge.

AFFIRMED.

Opinion of the Court by McEvers, Justice.

Lynn M. Boughey, Mandan, ND, for plaintiffs and appellants.

James E. Nicolai, Deputy Solicitor General, Bismarck, ND, for defendants and 

appellees.

FILED 

IN THE OFFICE OF THE 

CLERK OF SUPREME COURT 

MARCH 24, 2021 

STATE OF NORTH DAKOTA
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Somerset Court v. Burgum

No. 20200292

McEvers, Justice.

[¶1] Somerset Court, LLC, and Kari Riggin (“Appellants”) appeal from a 

district court judgment dismissing their action seeking a declaratory judgment 

regarding the validity of the Governor’s executive orders. Appellants argue 

that the executive orders are beyond the Governor’s statutory powers; that the 

executive orders involve fundamental rights requiring the application of the 

strict scrutiny standard of review; and that a declaratory judgment should 

have been issued as a matter of law and enforced by an appropriate writ.

Because Appellants have failed to adequately challenge the district court’s 

conclusion the case was moot, we affirm.

I

[¶2] This case began as a challenge to the Governor’s statutory powers in 

issuing executive orders during the COVID-19 pandemic relating to the 

operations of certain North Dakota businesses.

[¶3] Relevant to this appeal, Executive Orders 2020-06.2, 2020-06.3, and 

2020-06.4 essentially closed salons operated by licensed cosmetologists

between March 28, 2020, and May 1, 2020. Executive Order 2020-06.4 provided 

that on or after May 1, 2020, businesses were allowed to reopen under 

conditions for industry-specific standards, including standards for salons 

operated by cosmetologists.

[¶4] In April 2020, Somerset, an assisted living facility with an in-house 

salon, and Riggin, a licensed cosmetologist operating the salon as an 

independent contractor, sued the Governor, the North Dakota Health 

Department, and the North Dakota State Health Officer, seeking declaratory 

and injunctive relief. The Appellants assert the executive orders prohibited 

Somerset and Riggin from engaging in their business and profession and 

placed limitations as to their business and profession. They sought a 

declaratory judgment and contend the executive orders went beyond the 

Governor’s statutory authority, improperly invaded legislative prerogative, 
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and unconstitutionally denied their state and federal constitutional rights to 

conduct business, to engage in employment, and to earn a living.

[¶5] Somerset and Riggins moved the district court for summary judgment. 

The State opposed their motion and also requested the court to grant summary 

judgment in favor of the State defendants. In August 2020, the district court 

entered an order, denying the plaintiffs’ requested declaratory judgment and 

granting the defendants’ request for dismissal of the action. The court 

specifically stated that “[a]ll of the challenged executive orders have since been 

superseded and are no longer in effect.” In its order, the court addressed the 

merits of the Appellants’ claims, but alternatively concluded the claims were 

moot and not justiciable. In September 2020, the district court entered a 

judgment of dismissal.

II

[¶6] The Appellants sought a declaratory judgment declaring the relevant 

executive orders were prohibited by law. Section 32-23-01, N.D.C.C., 

authorizes courts to enter declaratory judgments. Section 32-23-02, N.D.C.C., 

provides: “Any person . . . whose rights, status, or other legal relations are 

affected by a statute . . . may have determined any question of construction or 

validity arising under the . . . statute . . . and may obtain a declaration of rights, 

status, or other legal relations thereunder.” A court, however, “may refuse to 

render or enter a declaratory judgment or decree if such judgment or decree, if 

rendered or entered, would not terminate the uncertainty or controversy giving 

rise to the proceeding.” N.D.C.C. § 32-23-06.

[¶7] We review summary judgments in declaratory judgment actions under 

the same standard as other cases. See Envtl. Driven Solutions, LLC v. Dunn 

Cty., 2017 ND 45, ¶ 6, 890 N.W.2d 841; see also N.D.C.C. § 32-23-07 (“All 

orders, judgments, and decrees under this chapter may be reviewed as other 

orders, judgments, and decrees.”). Summary judgment under N.D.R.Civ.P. 

56(c) allows for prompt disposition of any action without a trial “if either 

litigant is entitled to judgment as a matter of law and if no dispute exists as to 

either the material facts or the inferences to be drawn from undisputed facts, 

or if resolving factual disputes will not alter the result.” Hale v. State, 2012 ND 
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148, ¶ 14, 818 N.W.2d 684 (quotation omitted). Whether a district court 

properly grants a summary judgment motion is a question of law, reviewed de 

novo on the record. Id.

III

[¶8] The Appellants specifically identified the issues on appeal as the 

executive orders at issue are beyond the Governor’s statutory powers; the 

executive orders involve fundamental rights requiring the application of the 

strict scrutiny standard of review; and declaratory judgment should have been 

issued as a matter of law and enforced by an appropriate writ.

[¶9] We need not address the multitude of issues raised by the Appellants, 

because the district court’s holding on mootness is dispositive. We have

explained:

It is well established that courts will not give advisory 

opinions on abstract legal questions, and an action will be 

dismissed if there is no actual controversy left to be determined 

and the issues have become moot or academic. An action may 

become moot by the occurrence of events that result in a court’s 

inability to render effective relief. The fact that a trial court has 

decided a moot case does not require us to do the same.

Poochigian v. City of Grand Forks, 2018 ND 144, ¶ 10, 912 N.W.2d 344 (relying 

on Gosbee v. Bendish, 512 N.W.2d 450, 452-53 (N.D. 1994)) (cleaned up).

[¶10] Here, the district court denied the Appellants’ request for a declaratory 

judgment and granted the State’s request for dismissal of the action. The court 

held that the Governor has broad constitutional and statutory authority to 

manage an emergency or disaster from beginning to end and the disputed 

executive orders did not exceed the Governor’s constitutional or statutory 

authority in this case. The court concluded that the Governor and the State 

Health Officer were vested with the statutory authority to issue Executive 

Orders 2020-06.2, 2020-06.3, and 2020-06.4.

[¶11] As an alternate ground, however, the district court also concluded that 

the Appellants’ claims regarding the executive orders are moot and non-
4

justiciable because the executive orders have been superseded, Somerset and 

Riggin are authorized to open and operate the Somerset Salon, and Riggin is 

authorized to provide cosmetology services. The court acknowledged that while 

the Governor could reissue the orders at any time, there was no allegation or 

basis to conclude the orders would evade review if similar executive orders 

were issued in the future.

[¶12] The parties on appeal do not dispute that the challenged executive orders 

have been superseded. On appeal, the Appellants have not identified an issue 

specifically challenging the district court’s alternate conclusion that their 

claims regarding the executive orders are moot. In their brief at paragraph 25, 

the Appellants without any citation only generally allude to their claims 

regarding the superseded executive orders as not moot, but instead capable of 

evading review, stating:

Despite this expiration of the restrictions placed on Somerset and 

Kari Riggin, Somerset and Kari Riggin remain subject to the 

restrictions in the newest executive order, the specific restrictions 

of the ND Smart Restart protocols, as well as any subsequent 

executive orders that may be issued by the Governor, thus making 

this action not moot but instead capable of evading review because 

the Governor could reissue at any time another executive order 

that contains the same restrictions as the previous executive order.

[¶13] We have explained that “[a] party waives an issue by not providing 

supporting argument and, without supportive reasoning or citations to 

relevant authorities, an argument is without merit.” In re J.J.T., 2018 ND 165, 

¶ 29, 915 N.W.2d 106 (quoting Riemers v. City of Grand Forks, 2006 ND 224, 

¶ 9, 723 N.W.2d 518). “A party abandons an argument by failing to raise it in 

the party’s appellate brief.” O’Keeffe v. O’Keeffe, 2020 ND 201, ¶ 14, 948 N.W.2d 

848; see also Bearce v. Yellowstone Energy Dev., LLC, 2019 ND 89, ¶ 29, 924 

N.W.2d 791; Gowan v. Ward Cty. Comm’n, 2009 ND 72, ¶ 11, 764 N.W.2d 425.

We have declined to conduct a de novo review of issues when a party relies on 

bare assertions and fails to provide any supportive reasoning or citations to 

legal authority. See Riemers, at ¶¶ 9-10 (declining to conduct a de novo review 

of an alleged due process violation).
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[¶14] While the Appellants have challenged the district court’s conclusion that 

the executive orders did not exceed the Governor’s constitutional or statutory 

authority, they have not adequately challenged the court’s alternate conclusion 

that their claims are moot. Because they have not sufficiently developed any

argument regarding mootness supported with legal authority, we conclude 

they have abandoned their opposition to the court’s determination of mootness. 

See, e.g., J.J.T., 2018 ND 165, ¶ 29. We therefore deem it unnecessary for this 

Court to consider the Appellants’ issues concerning the Governor’s 

constitutional and statutory authority to issue the superseded executive 

orders. We affirm the district court’s judgment dismissing Appellants’ claims

as moot.

IV

[¶15] We have considered the remaining issues, including the Appellants’ 

motion for an expedited ruling in this matter, and conclude they are either 

without merit or unnecessary to our decision. The judgment is affirmed.

[¶16] Jon J. Jensen, C.J.

Gerald W. VandeWalle

Daniel J. Crothers

Lisa Fair McEvers

M. Jason McCarthy, D.J.
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[¶17] The Honorable M. Jason McCarthy, D.J., sitting in place of Tufte, J., 

disqualified.