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Karl Procaccini, left, Liz Kramer (Circle of Excellence honoree),
Those who helped in creating a peacetime emergency precedent include Karl Procaccini, left, Liz Kramer (Circle of Excellence honoree), right, and others.

Creating Peacetime Emergency Precedent

circle-excellenceNo previous Minnesota governor has had to exercise emergency powers as much as Gov. Tim Walz during the COVID-19 pandemic. Part of the complication behind doing so was that there was no equivalent legal history to lead the way.

“There is a state law, but nobody had ever challenged it,” said state Solicitor General Liz Kramer. “Chapter 12 is the main authorizing statute, the Minnesota Emergency Management Act. What we were saying was that there was no case law precedent. It has never been used for this duration.”

There was also no developed law about what standards state courts would use to evaluate allegations of constitutional injury during a public-health crisis. So when cases challenging the governor’s use of his power started coming in, Kramer’s office, the state attorney general and the governor’s lawyers had to create their own precedent.

What they put together establishes when peacetime emergencies can be declared, the guardrails on the governor’s authority and how much deference federal and state courts should give those orders.

In doing so, the team researched the legislative history and past use of the federal Civil Defense Act, tracked cases in courts around the country, and assembled arguments to defend the Walz’s actions. As it turned out, familiarity between the offices involved helped get the effort off the ground.

“It was a really positive collaboration,” said Kramer. “The governor and the AG came into their current roles at the same time, and were in Congress together, so they’re friends. Our offices had a positive relationship before any of this started, and that really helped create a strong foundation.”

The work in creating an emergency precedent has ensured that Walz’s emergency executive orders should remain valid and enforceable. It has also created a body of law where none was before, something that future governors can use in future extended peacetime emergencies.

Read more about Minnesota Lawyer’s superb class of Attorneys of the Year for 2020 here.

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