5 EYEWITNESS NEWS examines lawsuit filed against Gov. Tim Walz challenging closure of non-essential businesses

A group of small Minnesota businesses called Free Minnesota Small Business Coalition filed a lawsuit challenging Gov. Tim Walz’s executive order closing non-essential businesses during the COVID-19 pandemic.

The lawsuit claims the order violates the 14th Amendment of the U.S. Constitution, which provides equal protection under the law.

Free Minnesota, in its lawsuit, said the shut down of non-essential businesses creates an unequal balance of treatment by the government by giving different treatment to big box store companies compared to smaller, mom-and-pop businesses.

Larvita McFarquhar owns Haven’s Cafe and the Southwest School of Dance in Lynd. She told 5 EYEWITNESS NEWS she decided to join the lawsuit because she believes civil liberties are being violated against small business owners.

"This is about our freedom as Americans and is not about the money," McFarquhar said. "They have taken everything away from us out of fear, and I don’t want to be fearful."

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McFarquhar said the challenges of owning two small businesses in a more rural part of the state adds to the frustration and difficulty of the shutdown right now.

"I came back to Lynd because I want to give back to the community here," McFarquhar said. "Tyring to make small businesses successful in smaller towns and less populated areas is hard enough without more government restrictions."

David Schultz, a U.S. Constitutional expert at Hamline University, told KSTP the 14th Amendment argument will be a "tough sell but not entirely impossible to win."

"I think a better legal argument would be to challenge the governor’s legal authority during peacetime," Schultz said. "Right now there is nothing in the state statute that allows for him to be taking the actions he is because I don’t see anything written there about public health."

Minnesota Attorney General, Keith Ellison issued a statement to KSTP stating his support for the Governor and pledging to defend the executive orders.

"Governor Walz, the Executive Council, and I are sympathetic to the struggle of small businesses. We recognize that this is a difficult time for them and for everyone. Every Minnesotan does. But the Governor has issued his Executive Orders to protect the health of all Minnesotans — including these business owners — from a global pandemic that no one alive has ever lived through," Ellison said in the statement. "He has also been responsive to circumstances and concerns as they emerge and has tailored his orders dynamically to meet them. I stand behind the legality and constitutionality of the Governor’s Executive Orders and will strongly defend them in court. That said, this lawsuit is a distraction from what we all need to be focused on — fighting the pandemic. A far better way to air these concerns is a conversation, not an unnecessary and political lawsuit."

Free Minnesota has asked the Minnesota Court of Appeals for an expedited hearing.