### IN THE SUPREME COURT STATE OF NORTH DAKOT A

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
, Nor th 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.1 Somerse t 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 exe cutive orders. Appellants argue
that the executive orders are beyon d 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 appro priate writ. Because Appellants have failed to adequately challenge the district court’s
conclusion the case was moot , w e affirm

.

I

[¶2] This case began as a challenge to the Governor’s statutory powers in issuing executive orders during the COVID

- 19 pandemic re lating to the operations of c ertain 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 cosmetologist s between March 28, 2020, and May 1, 2020. Executive Orde r 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 sal ons 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 declara tory and injunctive relief. The Appellan ts 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 Gov ernor’s statutory authority, improperly invaded legislative prerogative,2

and unconstitutionally denied their state and federal constitutional rights to conduct business, to engage in em ployment, and to earn a living.

[¶5] Somerset and Riggins moved the district court for summary judgment. The State opposed the ir 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 proh ibited 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 ques tion 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 pr oceeding.” 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. Dr iven Solutions, LLC v. Dunn C ty

. , 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 dispu tes will not alter the result.” Hale v. State , 2012 ND3

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

[¶9] We need not address the multitude of issue s 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.

Poochig i an 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 d eclaratory 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 Offi cer were vested with the statutory authority to issue Executive Orders 2020

- 06.2, 2020

- 06.3, and 2020

- 06.4.

[¶11] A s an alternate ground, however, the district court also concluded that the Appellants’ claims regarding the executive orders are moot and non

-4

justi ciable 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 a n issue specifically challenging the district court’s alternate conclusion that their claims regarding the executive orders are moot. In the ir brief at paragraph 25, the Appellants without any citation only generally al lude to their claims regarding the superseded executive orders as not moot, but ins tead 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
restr ictions 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 becaus e 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 o r 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 f ailing to raise it in the part y’ s appellate brief. ” O’Keef f e v. O’Keef

f e , 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 provi de 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).5

[¶14] While the Appel lants 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 th ey 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 unneces sary 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 dismiss ing Appellants’ claims

as moot.

IV

[¶15] We have consid ered 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

. T he judgment is affirmed.

[¶16] Jon J. Jensen, C. J

. Gerald W. VandeWa lle Daniel J. Crother s Lisa Fair Mc E v er s M. Jason McCarth y , D .J

.6

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