District judge denies restraining order requested by Somerset Court

MINOT, N.D. – A judge has denied the request of a Minot assisted living center for a temporary restraining order against an executive order that closed hair salons in North Dakota due to COVID-19.

Somerset Court filed a complaint April 22 in South Central District Court in Bismarck that sought a permanent injunction against enforcing Gov. Doug Burgum’s order against it and a temporary restraining order while the case is ongoing. The lawsuit listed the governor, State Health Officer Mylynn Tufte and State Health Department as defendants.

Burgum signed an executive order March 28 that closed barbershops and hair salons. Somerset Court and long-term care facilities have urged the health department to make an exception for in-house services that follow sanitation guidelines and are delivered by a provider who serves only facility residents.

Judge Daniel Borgen noted Somerset’s argument is that the governor’s order is “unreasonable” and “arbitrary.”

“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,” Borgen wrote. “Plaintiff simply has not identified how the Governor and State Health Officer exceeded the scope of their authority in any arbitrary or unreasonable manner.”

He stated that the court won’t substitute its own judgment and undermine separation-of-powers principles.

The judge also wrote that Somerset did not establish any “irreparable injury” that would result if the temporary restraining order is denied. Somerset alleged residents are “held hostage” in their rooms because they are embarrassed to go out with unwashed hair, but Borgen stated, if true, residents are held hostage by their own choice to remain in their rooms. Nothing in the executive order requires residents at Somerset to stay in their rooms, he wrote.

“That residents may not be able to have their hair ‘washed,’ ‘fluffed’ or ‘set’ for some time is also not irreparable injury,” he wrote. “The injury, to the extent it can be considered an injury, can be alleviated immediately when the executive orders are no longer in place. Additionally, it is clear to the Court from Somerset’s own briefing that the facility has the ability to individually wash the resident’s hair in their individual rooms. It may be more difficult and time-consuming to accomplish, but it can be done.”

The lawsuit continues to seek a permanent injunction.

Burgum announced plans this week to allow for business re-openings under new guidelines, possibly as early as Friday. Whether that might apply to the re-opening of hair salons in long-term care and assisted living facilities will be determined by the governor’s decisions on continued restrictions affecting vulnerable populations.

District judge denies restraining order requested by Somerset Court

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District judge denies restraining order requested by Somerset Court

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