Governor Gretchen Whitmer’s controversial executive orders issued during the COVID-19 state of emergency have survived an initial request for a preliminary injunction in the Michigan Court of Claims. The substantive elements being challenge were the requirements that most residents remain in their homes unless engaging in certain essential activities and that intrastate travel between additional residences and vacation homes is prohibited. These directives have resulted in thousands of residents being unable to work due to closing of restaurants, bars and other businesses where remote work cannot be accomplished. Judge Christopher M. Murray issued his 18-page opinion on April 29, 2020 upholding the governor’s order amid discussions in the Michigan Legislature to limit or revoke this authority and public protests near the capitol building demanding the “reopening” of the state.
In Martinko v. Whitmer, Case #: 20-00062-MM, five Michigan residents filed suit in the Michigan Court of Claims alleging that parts of Executive Order 2020-21 and 2020-42 (both superseded by Executive Order 2020-59) requiring them to stay-at-home and limit their social and economic activities violated their due process rights. They filed suit asking for a preliminary injunction order (but not a permanent one) which would restrain the government from enforcing the provisions of the executive order. The Court of Claims is a statutory court created for litigants that wish to file suit against the State of Michigan or its officials. Judge Murray is a Court of Appeals judge assigned to the Court of Claims by assignment.
The allegations against the State of Michigan and the governor are:
- COUNT I and COUNT II – The “mandatory quarantine” under the executive orders violate procedural and substantive due process. The plaintiffs do not challenge the governor’s legal authority to issue quarantine orders, but rather assert that the scope of the quarantine order is too broad in scope. Specifically, they maintain the state has the ability to quarantine those infected with the COVID-19 virus, but the state cannot quarantine everyone without some showing that those individuals are infected.
- COUNT III and COUNT IV – The intrastate travel restrictions under the executive orders violate procedural and substantive due process. The specific challenges are to the prohibition of travelling to second homes and vacation homes. Once again, the plaintiffs maintain that the state has the ability to limit travel for those infected with the COVID-19 virus, but the state cannot limit travel for everyone everyone without some showing that those individuals are infected.
- COUNT V – The Emergency Management Act, MCL 30.401 et. seq. is an unconstitutional delegation of legislative power to the governor.
To grant a preliminary injunctive order in Michigan, a court must consider all of the following:
- (1) the likelihood that the party seeking the injunction will prevail on the merits
- (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued
- (3) the risk that the party seeking the injunction will be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief
- (4) the harm to the public interest if the injunction is issued.
The Court of Claims determined that there was little likelihood that the plaintiffs would prevail on the merits of the case. The governor cannot simply trample on individual rights without regard, but the state regulation must have “a real or substantial relation to the public health crisis and are not beyond all question, a plain, palpable invasion of rights secured by the fundamental law”. Opinion at p. 11. “Part of this review includes looking to whether any exceptions apply for emergent situations, the duration of any rule, and whether the measures are pretextual.” Opinion at p. 11-12. Michigan, like most states, quickly enacted and implemented severe measures “to prevent the uncontrolled spreading of the virus.” Opinion at p. 12. Historically, a state’s quarantine of individuals when they are not infected with disease has been upheld by the courts. Limiting human interaction helps control the spread of a virus determined to be extremely communicable, especially regarding individuals who may be carriers of the disease but show no symptoms. According to the court, narrowly tailoring these orders to only apply to sick people is not realistic and would serve to hasten the spread of the virus and overwhelm doctors and hospitals. “Additionally, the record is clear that these measures are temporary, and limited in time to address the speed at which the virus spreads, the status of the available health care system, and the need to get Michigan residents back to enjoying their liberties.” Opinion at p. 15. For these reasons, there is not a violation of procedural and substantive due process and it is unlikely that further litigation will lead to such a finding.
Is the Emergency Management Act unconstitutional? Is the law invalid as an unconstitutional delegation of power? The court found that “[i]t is certainly true that the Legislature cannot grant some vague, unfettered direction to the executive to carry out what is a legislative function.” Opinion at p. 16. “But if the challenged legislation contains sufficient guidance to the executive on how to execute the law to further the Legislature’s policy, it does not violate the non-delegation doctrine.” Opinion at p. 16. The plaintiffs even admit that the powers granted to the governor are “limited” and none of the provisions in the act are such that the executive would have “uncontrolled, arbitrary power.” Since the Emergency Management Act is not vague and contains specific procedures and criteria for the governor to declare a state of emergency, it is not unconstitutional and the plaintiffs will not prevail on this issue either.
Finally, a judge must consider the harm to the public interest before granting a preliminary injunctive order. The Court of Claims did not mince words to state that the preliminary injunction would be more detrimental to the public than it would be to plaintiffs. “Although the Court is painfully aware of the difficulties of living under the restrictions of these executive orders, those difficulties are temporary, while to those who contract the virus and cannot recover (and to their family members and friends), it is all too permanent.” Opinion at p. 17. “That is not to say that every new virus will require the action take here, but given the authority of the Governor to do so in the face of these circumstances, the Court must conclude issuing injunctive relief would not serve the public interest, despite the temporary harm to plaintiffs’ constitutional rights.” Opinion at p. 17. For all these reasons, the preliminary injunction was denied.
This state court challenge was only one of the many battlefronts that Governor Whitmer faces in preserving her executive orders. Other plaintiffs have filed suit in the federal court asking a U.S. District Court judge to issue a preliminary injunction on the basis that the stay-at-home orders violate U.S. constitutional provisions. In addition, Republican lawmakers in the Michigan Legislature are considering measures that would either revoke the current executive orders or restrict the governor’s emergency management authority. The legal landscape is clearly changing by the day.
If you have questions about the COVID-19 executive orders or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
