1/18/2021

United States District Court for the Western District of Michigan
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United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:20-cv-00323-PLM-PJG

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Beemer et al v. Whitmer et al Assigned to: District Judge Paul L. Maloney Referred to: Magistrate Judge Phillip J. Green (events as ordered) Cause: 42:1983 Other Civil Rights

Date Filed: 04/15/2020 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

plaintiff Kimberly Beemer

represented by Robert J. Muise American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 (734) 635-3756 Fax: (801) 760-3901 Email: rmuise@americanfreedomlawcenter.org ATTORNEY TO BE NOTICED

plaintiff
Paul Cavanaugh TERMINATED: 04/28/2020

represented by Robert J. Muise (See above for address) ATTORNEY TO BE NOTICED

plaintiff Robert Muise

represented by Robert J. Muise (See above for address) ATTORNEY TO BE NOTICED

V.
defendant
Gretchen Whitmer in her ofﬁcial capacity as Governor for the State of Michigan

represented by Christopher M. Allen MI Dept Attorney General (Solicitor General) 525 W Ottawa St. P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 Email: allenc28@michigan.gov ATTORNEY TO BE NOTICED

https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?664183302297786-L_1_0-1

John G. Fedynsky Michigan Department of Attorney General Civil Litigation, Employment & Elections
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United States District Court for the Western District of Michigan
525 W Ottawa St. P.O. Box 30736 Lansing, MI 48909 (517) 335-3055 Fax: (517) 335-7157 Email: fedynskyj@michigan.gov ATTORNEY TO BE NOTICED

Joseph T. Froehlich MI Dept Attorney General (State Operations) State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 Fax: (517) 335-7157 Email: froehlichj1@michigan.gov ATTORNEY TO BE NOTICED

defendant
Allen Telgenhof in his ofﬁcial capacity as Charlevoix County Prosecuting Attorney TERMINATED: 04/28/2020

Joshua O. Booth MI Dept Attorney General (Licensing/Regulation) Licensing and Regulation Division 525 W Ottawa St., 3rd Floor P.O. Box 30758 Lansing, MI 48909 (517) 335-7569 Email: Boothj2@michigan.gov ATTORNEY TO BE NOTICED
represented by Andrew James Brege Rosati Schultz Joppich & Amtsbuechler, PC (Lansing) 822 Centennial Way, Ste. 270 Lansing, MI 48917 (517) 886-3800 Email: abrege@rsjalaw.com ATTORNEY TO BE NOTICED

Thomas David Beindit Rosati, Schultz, Joppich & Amtsbuechler, P.C. 822 Centennial Way., Ste. 270 Lansing, MI 48917 (517) 886-3800 Email: tbeindit@rsjalaw.com ATTORNEY TO BE NOTICED

defendant Brian L. Mackie in his ofﬁcial capacity as Washtenaw County Prosecuting Attorney
https://ecf.miwd.uscourts.gov/cgi-bin/DktRpt.pl?664183302297786-L_1_0-1

represented by Joel C. Bryant Miller Canﬁeld Paddock & Stone PLC (Ann Arbor) 101 N Main St., 7th Fl.
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United States District Court for the Western District of Michigan
Ann Arbor, MI 48104 (734) 668-8908 Email: bryant@millercanﬁeld.com ATTORNEY TO BE NOTICED

defendant William J. Vailliencourt, Jr. in his ofﬁcial capacity as Livingston County Prosecuting Attorney TERMINATED: 04/28/2020
defendant Dana Nessel in her ofﬁcial capacity at the Attorney General for the State of Michigan

Sonal H. Mithani Miller Canﬁeld Paddock & Stone PLC (Ann Arbor) 101 N Main St., 7th Fl. Ann Arbor, MI 48104 (734) 668-7786 Email: mithani@millercanﬁeld.com ATTORNEY TO BE NOTICED
represented by T. Joseph Seward Seward Henderson (Royal Oak) 210 East 3rd St., Ste. 212 Royal Oak, MI 48067 (248) 733-3580 Email: jseward@sewardhenderson.com ATTORNEY TO BE NOTICED
represented by Christopher M. Allen (See above for address) ATTORNEY TO BE NOTICED

John G. Fedynsky (See above for address) ATTORNEY TO BE NOTICED

Joseph T. Froehlich (See above for address) ATTORNEY TO BE NOTICED

Joshua O. Booth (See above for address) ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

04/15/2020

1 COMPLAINT against All Defendants ﬁled by Kimberly Beemer, Robert Muise, Paul Cavanaugh (Attachments: # 1 Exhibit 1 - Executive Order 2020-42) (Muise, Robert) (Entered: 04/15/2020)

04/15/2020

FILING FEE PAID re 1 by plaintiffs Kimberly Beemer, Paul Cavanaugh, Robert Muise in the amount of $400, receipt number AMIWDC-5134918 (Muise, Robert) (Entered: 04/15/2020)

04/15/2020

2 PROPOSED SUMMONS to be issued re 1 (Muise, Robert) (Entered: 04/15/2020)

04/15/2020

3 NOTICE that this case has been assigned Paul L. Maloney (pjw) (Entered: 04/15/2020)

04/15/2020

4 SUMMONS ISSUED as to defendants Brian L. Mackie, Allen Telgenhof, William J.

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04/16/2020 04/16/2020 04/16/2020 04/17/2020 04/17/2020 04/20/2020 04/20/2020 04/20/2020
04/21/2020 04/22/2020 04/23/2020
04/23/2020 04/23/2020 04/23/2020 04/23/2020
04/23/2020

United States District Court for the Western District of Michigan
Vailliencourt, Jr, Gretchen Whitmer (pjw) (Entered: 04/15/2020)
5 SUMMONS returned executed; Gretchen Whitmer served on 4/16/2020, answer due 5/7/2020 (Muise, Robert) (Entered: 04/16/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Joseph T. Froehlich on behalf of defendant Gretchen Whitmer (Froehlich, Joseph) (Entered: 04/16/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Christopher M. Allen on behalf of defendant Gretchen Whitmer (Allen, Christopher) (Entered: 04/16/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of John G. Fedynsky on behalf of defendant Gretchen Whitmer (Fedynsky, John) (Entered: 04/17/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Joshua O. Booth on behalf of defendant Gretchen Whitmer (Booth, Joshua) (Entered: 04/17/2020)
6 ADMINISTRATIVE ORDER 20-CA-033 regarding the assignment of cognate cases to Paul L. Maloney pursuant to Local Civil Rule 3.3.2(c) ; signed by Chief Judge Robert J. Jonker (kvt) (Entered: 04/20/2020)
7 MOTION for temporary restraining order Expedited Consideration Requested by plaintiffs Kimberly Beemer, Paul Cavanaugh, Robert Muise; (Muise, Robert) (Entered: 04/20/2020)
8 BRIEF in support of MOTION for temporary restraining order Expedited Consideration Requested 7 with certiﬁcate of compliance and certiﬁcate of service ﬁled by Kimberly Beemer, Paul Cavanaugh, Robert Muise (Attachments: # 1 Exhibit 1 Declaration of Plaintiff Beemer, # 2 Exhibit 2 - Declaration of Plaintiff Cavanaugh, # 3 Exhibit 3 - Declaration of Plaintiff Muise, # 4 Proposed Order) (Muise, Robert) Modiﬁed text on 4/21/2020. (kw) (Entered: 04/20/2020)
9 SUMMONS returned executed; William J. Vailliencourt, Jr served on 4/21/2020, answer due 5/12/2020 (Muise, Robert) (Entered: 04/21/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of T. Joseph Seward on behalf of defendant William J. Vailliencourt, Jr (Seward, T.) (Entered: 04/22/2020)
10 RESPONSE TO MOTION for temporary restraining order Expedited Consideration Requested 7 ﬁled by Gretchen Whitmer (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K) (Froehlich, Joseph) (Entered: 04/23/2020)
11 CERTIFICATE of compliance re word count for Response to Motion, 10 ﬁled by Gretchen Whitmer (Froehlich, Joseph) (Entered: 04/23/2020)
12 SUMMONS returned executed; Allen Telgenhof served on 4/23/2020, answer due 5/14/2020 (Muise, Robert) (Entered: 04/23/2020)
13 SUMMONS returned executed; Brian L. Mackie served on 4/23/2020, answer due 5/14/2020 (Muise, Robert) (Entered: 04/23/2020)
14 ORDER regarding response to Motion for TRO 7 ; responses due by 12:00 p.m. (noon) on 4/24/2020; reply due by 12:00 p.m. (noon) on 4/27/2020; hearing on motion for preliminary injunction set for 4/30/2020 at 10:00 a.m. in Grand Rapids, Michigan; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 04/23/2020)
15 ORDER SCHEDULING HEARING regarding MOTION for temporary restraining order 7 : motion hearing is set for 4/30/2020 at 10:00 AM at 601 Federal Building,

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04/23/2020 04/23/2020 04/23/2020 04/23/2020 04/24/2020 04/24/2020
04/24/2020 04/24/2020
04/24/2020 04/24/2020
04/24/2020 04/26/2020 04/27/2020 04/28/2020

United States District Court for the Western District of Michigan
Grand Rapids, MI before District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 04/23/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Sonal H. Mithani on behalf of defendant Brian L. Mackie (Mithani, Sonal) (Entered: 04/23/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Joel C. Bryant on behalf of defendant Brian L. Mackie (Bryant, Joel) (Entered: 04/23/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Andrew James Brege on behalf of defendant Allen Telgenhof (Brege, Andrew) (Entered: 04/23/2020)
16 NOTICE and Order regarding status conference set for 4/24/2020 at 04:00 PM at by video before Magistrate Judge Phillip J. Green (ald) (Entered: 04/23/2020)
17 RESPONSE in opposition to MOTION for temporary restraining order Expedited Consideration Requested 7 ﬁled by Brian L. Mackie (Mithani, Sonal) (Entered: 04/24/2020)
18 RESPONSE TO MOTION for temporary restraining order with Brief in Support Expedited Consideration Requested 7 ﬁled by William J. Vailliencourt, Jr (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 - April 16, 2020 Statement re Whitmer Federal Lawsuit, # 3 Exhibit 2 - April 17, 2020 WHMI Article, # 4 Exhibit 3 April 2, 2020 Tweet, # 5 Exhibit 4 - April 14, 2020 Cease and Desist Letter, # 6 Exhibit 5 - April 16, 2020 Cease and Desist Letter, # 7 Exhibit 6 - Hoover v Michigan Department of Licensing and Regulatory Affairs) (Seward, T.) Modiﬁed text on 4/24/2020 (pjw). (Entered: 04/24/2020)
19 RESPONSE TO MOTION for temporary restraining order Expedited Consideration Requested 7 ﬁled by Allen Telgenhof (Attachments: # 1 Exhibit 1 - Lawsuit Statement) (Brege, Andrew) Modiﬁed text on 4/24/2020 (pjw). (Entered: 04/24/2020)
20 EXHIBIT re 19 Index of Unpublished Authority to Defendant Telgenhofs Response to Plaintiffs Motion for Temporary Restraining Order and Preliminary Injunction by defendant Allen Telgenhof (Attachments: # 1 Exhibit 1 - McNeil v Community Probation Services, LLC, # 2 Exhibit 2 - Hoover v MI Department of Licensing & Regulatory Affairs) (Brege, Andrew) (Entered: 04/24/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Thomas David Beindit on behalf of defendant Allen Telgenhof (Beindit, Thomas) (Entered: 04/24/2020)
21 MINUTES held before Magistrate Judge Phillip J. Green of videostatus conference regarding ECF No. 7; parties to work on possiblestipulation; if not possible status conference will be rescheduled; plaintiffs' reply to motion now due by noon on Tuesday, April 28, 2020; order to issue (Proceedings Digitally Recorded) (ald) (Entered: 04/24/2020)
22 ORDER re 14 7 Extending Reply Brief Deadline; signed by Magistrate Judge Phillip J. Green (ald) (Entered: 04/24/2020)
23 PROPOSED STIPULATION and ORDER Resolving Plaintiffs' Motion for Temporary Restraining Order and Preliminary Injunction by plaintiffs Kimberly Beemer, Paul Cavanaugh, Robert Muise (Muise, Robert) (Entered: 04/26/2020)
24 STIPULATION AND ORDER; plaintiff's motion for preliminary injunction 7 is dismissed; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 04/27/2020)
25 FIRST AMENDED COMPLAINT against Brian L. Mackie, Gretchen Whitmer ﬁled by

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United States District Court for the Western District of Michigan
Kimberly Beemer, Robert Muise (Attachments: # 1 Exhibit 1 - Executive Order 202042, # 2 Exhibit 2 - Executive Order 2020-59, # 3 Summons for new party - Defendant Dana Nessel) (Muise, Robert) (Entered: 04/28/2020)

04/29/2020

26 NOTICE OF VOLUNTARY DISMISSAL re Paul Cavanaugh pursuant to Rule 41(a)(1) (A) as to original Complaint (Doc. No. 1) ﬁled by plaintiff Paul Cavanaugh (Muise, Robert) (Entered: 04/29/2020)

04/29/2020

(DISREGARD) SUMMONS NOT ISSUED as to defendant Dana Nessel (none provided) (pjw) Modiﬁed text on 4/29/2020; incorrectly entered (pjw). (Entered: 04/29/2020)

04/29/2020

27 SUMMONS ISSUED as to defendant Dana Nessel (pjw) (Entered: 04/29/2020)

04/30/2020

28 SUMMONS returned executed; Dana Nessel served on 4/29/2020, answer due 5/20/2020 (Muise, Robert) (Entered: 04/30/2020)

04/30/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Joseph T. Froehlich on behalf of defendant Dana Nessel (Froehlich, Joseph) (Entered: 04/30/2020)

04/30/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Christopher M. Allen on behalf of defendant Dana Nessel (Allen, Christopher) (Entered: 04/30/2020)

04/30/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Joshua O. Booth on behalf of defendant Dana Nessel (Booth, Joshua) (Entered: 04/30/2020)

04/30/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of John G. Fedynsky on behalf of defendant Dana Nessel (Fedynsky, John) (Entered: 04/30/2020)

04/30/2020

29 PROPOSED STIPULATION and ORDER Setting Time for Defendants to Answer or Otherwise Respond to Plaintiffs' First Amended Complaint by defendant Brian L. Mackie (Bryant, Joel) (Entered: 04/30/2020)

04/30/2020

30 STIPULATION AND ORDER; deadline for defendants to answer or otherwise respond to amended complaint is 5/20/2020; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 04/30/2020)

05/20/2020

31 MOTION to dismiss with Certiﬁcate of Service by defendant Gretchen Whitmer; (Froehlich, Joseph) (Entered: 05/20/2020)

05/20/2020

32 BRIEF in support of MOTION to dismiss with Certiﬁcate of Service 31 ﬁled by Gretchen Whitmer (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R) (Froehlich, Joseph) (Entered: 05/20/2020)

05/20/2020

33 CERTIFICATE of compliance re word count for Brief in Support of a Motion, 32 with Certiﬁcate of Service ﬁled by Gretchen Whitmer (Froehlich, Joseph) (Entered: 05/20/2020)

05/20/2020

34 MOTION to dismiss for failure to state a claim , MOTION to dismiss for lack of jurisdiction with Brief in Support by defendant Brian L. Mackie; (Attachments: # 1 Index, # 2 Exhibit A. Executive Order 2020-4, # 3 Exhibit B. Executive Order 2020-5, # 4 Exhibit C. Executive Order 2020-9, # 5 Exhibit D. Executive Order 2020-11, # 6 Exhibit E. Executive Order 2020-21, # 7 Exhibit F. Martinko v. Whitmer, No. 2000062-MM, Michigan Court of Claims) (Mithani, Sonal) Modiﬁed text on 5/21/2020 (pjw). (Entered: 05/20/2020)

05/21/2020

35 AMENDED MOTION to dismiss with Certiﬁcate of Service by defendants Dana

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05/21/2020
05/21/2020 05/26/2020 05/27/2020 06/15/2020 06/29/2020
06/29/2020 06/30/2020 06/30/2020 11/18/2020

United States District Court for the Western District of Michigan
Nessel, Gretchen Whitmer; (Froehlich, Joseph) (Entered: 05/21/2020)
36 BRIEF in support of AMENDED MOTION to dismiss with Certiﬁcate of Service 35 ﬁled by Dana Nessel, Gretchen Whitmer (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R) (Froehlich, Joseph) (Entered: 05/21/2020)
37 CERTIFICATE of compliance re word count for Brief in Support of a Motion, 36 ﬁled by Dana Nessel, Gretchen Whitmer (Froehlich, Joseph) (Entered: 05/21/2020)
38 PROPOSED STIPULATION and ORDER to Permit Plaintiffs to File Single Brief in Response to Defendants' Motions to Dismiss by plaintiffs Kimberly Beemer, Robert Muise (Muise, Robert) (Entered: 05/26/2020)
39 STIPULATION AND ORDER allowing plaintiffs to ﬁle a single response brief not to exceed 12,000 words due 6/17/2020; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 05/27/2020)
40 RESPONSE in opposition to MOTION to dismiss for failure to state a claim MOTION to dismiss for lack of jurisdiction 34 , AMENDED MOTION to dismiss with Certiﬁcate of Service 35 ﬁled by Kimberly Beemer, Robert Muise (Attachments: # 1 Exhibit 1 Declaration of Robert J. Muise, # 2 Exhibit 2 - Declaration of Gabriella Korkes) (Muise, Robert) (Entered: 06/15/2020)
41 MOTION for leave to ﬁle Defendants' Reply Brief in Excess of Word Count by defendants Dana Nessel, Gretchen Whitmer; (Attachments: # 1 Attachment Reply Brief, # 2 Attachment Exhibit A to Defendants Whitmer and Nessel's Reply Brief, # 3 Attachment Exhibit B to Defendants Whitmer and Nessel's Reply Brief, # 4 Attachment Exhibit C to Defendants Whitmer and Nessel's Reply Brief, # 5 Attachment Exhibit D to Defendants Whitmer and Nessel's Reply Brief, # 6 Attachment Exhibit E to Defendants Whitmer and Nessel's Reply Brief, # 7 Attachment Exhibit F to Defendants Whitmer and Nessel's Reply Brief, # 8 Attachment Exhibit G to Defendants Whitmer and Nessel's Reply Brief, # 9 Attachment Exhibit H to Defendants Whitmer and Nessel's Reply Brief, # 10 Attachment Exhibit I to Defendants Whitmer and Nessel's Reply Brief, # 11 Attachment Exhibit J to Defendants Whitmer and Nessel's Reply Brief, # 12 Attachment Exhibit K to Defendants Whitmer and Nessel's Reply Brief, # 13 Attachment Exhibit L to Defendants Whitmer and Nessel's Reply Brief) (Froehlich, Joseph) (Entered: 06/29/2020)
42 REPLY to response to motion 34 ﬁled by Brian L. Mackie (Attachments: # 1 Exhibit A. Exec. Order 2020-127 (June 18, 2020)) (Mithani, Sonal) (Entered: 06/29/2020)
43 ORDER granting 41 motion for leave to ﬁle excess pages/exceed word limit; the Clerk of Court shall accept the proposed document for ﬁling; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 06/30/2020)
44 REPLY to response to motion 35 ﬁled by Dana Nessel, Gretchen Whitmer (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L) (pjw) (Entered: 07/01/2020)
45 ADMINISTRATIVE ORDER No. 20-CA-087 regarding the reassignment of cognate case 1:20-cv-1104; signed by Chief Judge Robert J. Jonker (ndj) Modiﬁed text on 11/19/2020 (ndj). (Entered: 11/19/2020)

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 Case 1:20-cv-00323 ECF No. 1 filed 04/15/20 PageID.1 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,
Plaintiffs,

No. _______________

v.

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

COMPLAINT

Plaintiffs Kimberly Beemer, Paul Cavanaugh, and Robert Muise (collectively referred to as “Plaintiffs”), by and through undersigned counsel, bring this Complaint against the abovenamed Defendants, their employees, agents, and successors in office, and in support thereof allege the following upon information and belief:
INTRODUCTION 1. John Adams warned: “But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.” Plaintiffs bring this action because they reasonably fear that the draconian encroachments on their freedom set forth in this Complaint will, unfortunately, become the “new norm.” It has been said that all tyranny needs to gain a foothold is for people of good conscience to remain silent. 2. This case seeks to protect and vindicate fundamental liberties that citizens of the United States enjoy free from government interference. These liberties are not conferred or granted by government to then be rescinded at the will and whims of government officials.

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These God-given liberties are possessed by the people, and they are guaranteed against government interference by the United States Constitution, which is the supreme law of the land, and by the Constitution of the State of Michigan.
3. This civil rights action is brought under the First, Second, and Fourteenth Amendments to the United States Constitution, the Contracts Clause of the United States Constitution, 42 U.S.C. § 1983, and Article I, § 6 of the Michigan Constitution, challenging Defendant Whitmer’s authority to issue Executive Order 2020-42 and its draconian measures as applied to criminalize Plaintiffs’ peaceful activity and thus deprive Plaintiffs of their fundamental liberties and freedom.
4. Plaintiffs seek a declaration that the enactment and enforcement of the challenged measures ordered by Defendant Whitmer in Executive Order 2020-42 as set forth in this Complaint violate their fundamental liberties and rights secured by the United States and Michigan Constitutions and an order enjoining the same. Plaintiffs also seek an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and other applicable laws.
JURISDICTION AND VENUE 5. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over the State law claim pursuant to 28 U.S.C. § 1367(a). 6. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by Ex parte Young, 209 U.S. 123 (1908), and by the general legal and equitable powers of this Court. 7. Plaintiffs’ claim for an award of their reasonable costs of litigation, including attorneys’ fees and expenses, is authorized by 42 U.S.C. § 1988 and other applicable law.
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8. Venue is proper under 28 U.S.C. § 1391(b) because the Office of the Governor of Michigan and the Charlevoix Prosecuting Attorney are located in this judicial district and all Defendants are residents of the State in which this district is located.
PARTIES 9. Plaintiffs Kimberly Beemer, Paul Cavanaugh, and Robert Muise are adult citizens of the United States and residents of Michigan. 10. Plaintiffs Beemer and Cavanaugh own cottages in Charlevoix County, Michigan. 11. Plaintiff Beemer, a licensed attorney, resides in Saginaw, Michigan. Plaintiff Cavanaugh resides in Brighton, Michigan. Plaintiff Muise, a licensed attorney, resides in Superior Township, Michigan, which is in Washtenaw County. 12. Plaintiff Cavanaugh is the owner of a landscaping business, Cavanaugh’s Lawn Care LLC, which is located in Livingston County, Michigan. 13. Defendant Gretchen Whitmer is the Governor of the State of Michigan. 14. Under color of State law, Defendant Whitmer issued Executive Order 2020-42. 15. Defendant Whitmer is sued in her official capacity only. 16. Defendant Allen Telgenhof is the Charlevoix County Prosecuting Attorney. As a County Prosecuting Attorney, Defendant Telgenhof is responsible for criminally prosecuting persons who violate Executive Order 2020-42 in his County. 17. Defendant Telgenhof is sued in his official capacity only. 18. Defendant Brian L. Mackie is the Washtenaw County Prosecuting Attorney. As a County Prosecuting Attorney, Defendant Mackie is responsible for criminally prosecuting persons who violate Executive Order 2020-42 in his County. 19. Defendant Mackie is sued in his official capacity only.
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20. Defendant William J. Vailliencourt, Jr. is the Livingston County Prosecuting Attorney. As a County Prosecuting Attorney, Defendant Vailliencourt is responsible for criminally prosecuting persons who violate Executive Order 2020-42 in his County.
21. Defendant Vailliencourt is sued in his official capacity only. STATEMENT OF FACTS
22. On March 24, 2020, Defendant Whitmer issued Executive Order 2020-21, which was described as a “[t]emporary requirement to suspend activities that are not necessary to sustain or protect life.”
23. On April 9, 2020, Defendant Whitmer issued Executive Order 2020-42, which “reaffirm[ed] the measures set forth in Executive 2020-21, clarif[ied] them, and extend[ed] their duration to April 30, 2020.” The executive order took effect “on April 9, 2020 at 11:59 pm.” When Executive Order 2020-42 took effect, it rescinded Executive Order 2020-21. A true and correct copy of Executive Order 2020-42, which is incorporated herein by reference, is attached to this Complaint as Exhibit 1.
24. By its own terms, Executive Order 2020-42 will remain in effect until April 30, 2020 at 11:59 pm. It is more likely than not that Defendant Whitmer will extend the measures challenged here beyond April 30, 2020 via a new executive order. Defendant Whitmer publicly expressed a desire to extend the measures of Executive Order 2020-42 into June 2020.
25. A “willful violation” of Executive Order 2020-42 is a misdemeanor. 26. Executive Order 2020-42 put in place draconian measures that arbitrarily and unreasonably impose restrictions and thus criminal sanctions on Plaintiffs’ fundamental rights and liberty. 27. Executive Order 2020-42, states, in relevant part, the following:
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2. Subject to the exceptions in section 7, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
* * *
7. Exceptions.
a. Individuals may leave their home or place of residence, and travel as necessary:
1. To engage in outdoor physical activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.
* * *
6. To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.
A. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences. Individuals may also leave the home to drop off a vehicle to the extent permitted under section 9(i) of this order.
* * *
7. To care for a family member or a family member’s pet in another household.
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* * * b. Individuals may leave their home or place of residence, and travel as necessary:
1. To return to a home or place of residence from outside the state. 2. To leave this state for a home or residence elsewhere. 3. Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.
* * * c. All other travel is prohibited, including all travel to vacation rentals.
(Executive Order 2020-42 at Ex. 1). 28. Plaintiff Beemer and members of her household frequently travel to her cottage,
property which she owns, located in Charlevoix County. She would often leave from her residence in Saginaw, Michigan and travel to the cottage on a Thursday, remaining at her cottage over the weekend and returning late on Sunday or early Monday morning. Her cottage is a second home, and it is her private retreat from the daily grind of her law practice.
29. Under the measures set forth in Executive Order 2020-42, if Plaintiff Beemer were to travel to her cottage, she would be subject to prosecution for violating the executive order. As a result, Plaintiff Beemer has ceased her travel and has thus been denied the use and enjoyment of her private property by the government. Plaintiff Beemer has no recourse for this deprivation of her property rights other than seeking redress in a court of law, which she is doing here.
30. There is little to no chance that Plaintiff Beemer will cause the spread of COVID19 by travelling with members of her household from her residence in Saginaw, Michigan to her
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cottage in Charlevoix County. In fact, she and members of her household are more isolated at the cottage than when they are at their home in Saginaw.
31. Plaintiff Cavanaugh and members of his household frequently travel to his cottage, property which he owns, located in Charlevoix County. It was a Cavanaugh family tradition to spend Easter at the cottage.
32. Under the measures set forth in Executive Order 2020-42, if Plaintiff Cavanaugh were to travel to his cottage, he would be subject to prosecution for violating the executive order. As a result, Plaintiff Cavanaugh has ceased his travel and has thus been denied the use and enjoyment of his private property by the government. In fact, as a result of Executive Order 2020-42, Plaintiff Cavanaugh and his family had to cancel their Easter tradition. Plaintiff Cavanaugh has no recourse for this deprivation of his property rights other than seeking redress in a court of law, which he is doing here.
33. There is little to no chance that Plaintiff Cavanaugh will cause the spread of COVID-19 by travelling with members of his household from his residence in Brighton, Michigan to his cottage in Charlevoix County. In fact, he and members of his household are more isolated at the cottage than when they are at their home in Brighton.
34. There is no reasonable justification for restricting Michigan residents from travelling to cottages that they own or rent during this current pandemic. Indeed, under Executive Order 2020-42, a Wisconsin resident could travel from his State to his cottage in Charlevoix County, Michigan without violating Executive Order 2020-42. Thus, the executive order discriminates against individuals, including Plaintiffs Beemer and Cavanaugh, based upon their State of residence, it impairs their right to travel, and it deprives them of the use and enjoyment of their property.
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35. Prohibiting individuals from traveling from one place of residence in the State to another place of residence or cottage within the State has no real or substantial relation to promoting the objectives of Executive Order 2020-42, particularly in light of the exceptions permitted under the order.
36. Following the issuance of Executive Order 2020-21, and reaffirmed in Executive Order 2020-42, Defendant Whitmer has refused to order abortion centers in Michigan to close even though abortion is an elective procedure, it is never necessary to protect the life of a mother, and it results in the death of an unborn child, which is contrary to the stated goal of Executive Order 2020-42 “to sustain or protect life.” Moreover, it is impossible to practice social distancing in an abortion center due to the nature of the procedure.
37. Defendant Whitmer also permits marijuana businesses to remain open during this pandemic. In fact, because Secretary of State offices are closed and “individuals may not be able to renew their driver’s licenses or government-issued identification cards while the Executive Order is in effect . . , licensed provisioning centers and adult-use retailers are temporarily allowed to sell or transfer marijuana to a patient, caregiver, or customer who has an expired driver license or government-issued identification card during home delivery and curbside sales.” https://www.michigan.gov/documents/lara/Verifying_ID_and_Sales_of__Marijuana_in_Respons e_to_COVID-19_684786_7.pdf.
38. For the past ten years, Plaintiff Cavanaugh has worked hard to develop and expand his landscaping business, Cavanaugh’s Lawn Care LLC. As a result of Defendant Whitmer’s executive orders, his company came to an abrupt halt. The early spring brought an early start to the season. Eleven of Plaintiff Cavanaugh’s fulltime employees had returned to work for two weeks before the shutdown. One additional, fulltime employee was returning from
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a trip abroad. Plaintiff Cavanaugh had high hopes of getting ahead of the workload and having a normal start to the season. As a result of Defendant Whitmer’s shutdown of his business, Plaintiff Cavanaugh missed out on approximately $25,000 for spring cleanups, $12,000 for fertilizing for first round preemergent, $30,000 for mowing for the month of April, and $35,000 for landscape installs. The lost revenue is impossible to replace. Eighty percent of Plaintiff Cavanaugh’s business is contract work with existing customers. Consequently, the measures set forth in Defendant Whitmer’s executive orders have impaired Plaintiff Cavanaugh’s right to contract protected by the U.S. Constitution.
39. There is little to no chance that Plaintiff Cavanaugh’s landscaping business will spread COVID-19. Plaintiff Cavanaugh’s employees practice social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the employee’s household. The business is an outdoor business, which can operate without any personal contact with customers. Indeed, there is far less likelihood of Plaintiff Cavanaugh’s business spreading COVID-19 than other businesses that Defendant Whitmer permits under her executive orders, specifically including hardware stores, grocery stores, gas stations, marijuana businesses, and abortion centers.
40. During his free time, which he now has in abundance due to the fact that Defendant Whitmer’s executive orders have shut down his business, Plaintiff Cavanaugh enjoys time with his son fishing in Plaintiff Cavanaugh’s boat on Lake Charlevoix. However, Defendant Whitmer’s executive order has now stripped that away from him as well. Under her executive order, Defendant Whitmer permits kayaking or canoeing, but arbitrarily prohibits the use of boats with motors.
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41. Plaintiff Muise served as an officer on activity duty in the United States Marine Corps for thirteen years. He was an infantry officer, he is a veteran of Operations Desert Shield and Desert Sword, and he trained with 42 Commando, British Royal Marines. Plaintiff Muise resigned his commission as a Major in 2000.
42. Plaintiff Muise has a valid Michigan Concealed Pistol License. He is professionally trained in the use of firearms, he legally owns firearms, and he is a staunch defender of the Second Amendment, which constitutionally guarantees him the right to bear arms for self-defense, defense of his family, and for the defense of a free State. He also uses firearms to hunt in Michigan and in other States.
43. To support his right to bear arms, which necessarily includes the right to purchase firearms and ammunition, Plaintiff Muise patronizes local gun shops, specifically including a gun shop located in Washtenaw County.
44. Executive Order 2020-42 orders all nonessential businesses and activities to cease. Though this order exempts “critical infrastructure,” Defendant Whitmer purposefully references an outdated list of such industries (issued March 19, 2020) rather than the most current federal guidelines (issued March 28, 2020) that designate firearm and ammunition retailers as critical. This deliberate action shuts down gun stores in order to deny citizens, including Plaintiff Muise, access to their Second Amendment rights and their rights protected by Article 1, § 6 of the Michigan Constitution.
45. Executive Order 2020-42 also bans travel to gun stores. However, the order permits individuals to travel to buy food for a pet, marijuana, or gum at a grocery store, among other items.
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46. Due to the panic caused by the pandemic and the unemployment, loss of income, poverty, and uncertainty caused by Defendant Whitmer’s executive orders, owning and possessing firearms is critically important at this time.
47. Plaintiff Muise and his wife have been blessed with twelve children and ten grandchildren (with two more grandchildren expected by June). Three of his adult children are married and reside locally in homes they own in Michigan, and two of his adult children reside locally in rental properties in Michigan. His other seven children reside at his home in Superior Township.
48. On most Sundays and Holy Days, the family would gather at Plaintiff Muise’s home for a meal, fellowship, and prayer.
49. Plaintiff Muise and his family are devout Catholics. Because of COVID-19, there are no public Masses in the Lansing Diocese. However, Jesus Christ taught that where two or more gather in His name, He is present. Plaintiff Muise would like his family to gather together on Sundays and other Holy Days to associate for a meal, fellowship, and prayer, and thus gather as a family in Christ’s name. During these gatherings, Plaintiff Muise’s family members would adhere to social distancing measures recommended by the Centers for Disease Control and Prevention. However, under the measures set forth in Executive Order 2020-42, it is now a crime in Michigan to engage in such family associations and gatherings.
50. The challenged measures of Executive Order 2020-42, as set forth in this Complaint, lack any rational basis, are arbitrary, capricious, and vague, have no real or substantial relation to the objectives of the order, and are beyond all question, a plain, palpable invasion of rights secured by fundamental law. Consequently, it is the duty of this Court to so
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adjudge, and thereby give effect to the United States and Michigan Constitutions by declaring these measures unlawful and enjoining their enforcement.
FIRST CLAIM FOR RELIEF (Equal Protection—Fourteenth Amendment) 51. Plaintiffs hereby incorporate by reference all stated paragraphs. 52. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiffs of the equal protection of the law guaranteed under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 53. As set forth in this Complaint, Executive Order 2020-42 deprives Plaintiffs of their fundamental rights and freedom, yet the order provides exceptions for other activity and conduct that is similar in its impact and effects. The challenged measures lack any rational basis, are arbitrary, capricious, and vague, have no real or substantial relation to the objectives of the order, and are a palpable invasion of rights secured by fundamental law in violation of the Equal Protection Clause. 54. When the government treats an individual disparately as compared to similarly situated persons and that disparate treatment burdens a fundamental right, targets a suspect class, or has no rational basis, such treatment violates the equal protection guarantee of the Fourteenth Amendment. As set forth in this Complaint, the challenged measures of Executive Order 202042 violate the equal protection guarantee of the Fourteenth Amendment. 55. As a direct and proximate result of Defendants’ violation of the equal protection guarantee of the Fourteenth Amendment as set forth in this Complaint, Plaintiffs have suffered
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irreparable harm, including the loss of their fundamental constitutional rights, entitling them to declaratory and injunctive relief.
SECOND CLAIM FOR RELIEF (Due Process—Fourteenth Amendment) 56. Plaintiffs hereby incorporate by reference all stated paragraphs. 57. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiffs of their right to due process in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 58. The challenged measures of Executive Order 2020-42, as set forth in this Complaint, lack any rational basis, are arbitrary, capricious, and vague, have no real or substantial relation to the objectives of the order, and are a palpable invasion of rights secured by fundamental law in violation of the Due Process Clause of the Fourteenth Amendment. 59. Defendants’ actions, as set forth in this Complaint, deprived Plaintiffs Beemer and Cavanaugh of the use and enjoyment of their property without due process in violation of the Fourteenth Amendment. 60. The Due Process Clause of the Fourteenth Amendment protects the right to travel locally through public spaces and roadways. 61. Executive Order 2020-42 fails intermediate and strict scrutiny because it broadly prohibits Plaintiffs Beemer and Cavanaugh from traveling through public spaces and roadways to their cottages, and yet the executive order permits other travel with the same impact and effect of Plaintiffs’ forbidden travel, in violation of the Fourteenth Amendment.
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62. As a direct and proximate result of Defendants’ violation of the Fourteenth Amendment as set forth in this Complaint, Plaintiffs have suffered irreparable harm, including the loss of their fundamental constitutional rights, entitling them to declaratory and injunctive relief.
THIRD CLAIM FOR RELIEF (Contracts Clause—Article I, § 10) 63. Plaintiffs hereby incorporate by reference all stated paragraphs. 64. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiff Cavanaugh of his right to contract without government infringement guaranteed by Article I, Section 10 of the United States Constitution and 42 U.S.C. § 1983. 65. The Contracts Clause of Article I, Section 10 states, “No State shall . . . pass any . . . Law impairing the Obligation of Contracts.” 66. It long has been established that the Contracts Clause limits the power of the States to regulate contracts between private parties. 67. As set forth in this Complaint, the measures of Executive Order 2020-42 have impaired and thus regulated the contracts between Plaintiff Cavanaugh and his clients, in violation of the Contracts Clause of the United States Constitution. This impairment will continue absent declaratory and injunctive relief. 68. As a direct and proximate result of Defendants’ violation of the Contracts Clause as set forth in this Complaint, Plaintiff Cavanaugh has suffered irreparable harm, including the loss of his fundamental constitutional rights, entitling him to declaratory and injunctive relief.
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FOURTH CLAIM FOR RELIEF (Second Amendment & Michigan Constitution Article 1, § 6) 69. Plaintiffs hereby incorporate by reference all stated paragraphs. 70. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiff Muise of his rights secured by the Second Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, § 6 of the Michigan Constitution. 71. Both the United States Constitution and the Michigan Constitution grant individuals a right to keep and bear arms for self-defense and to ensure the security of a free State. The Second Amendment of the United States Constitution provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., Am. II. Article 1, § 6 of the 1963 Michigan Constitution, which is Michigan’s equivalent to the Second Amendment, states, “Every person has a right to keep and bear arms for the defense of himself and the state.” The Second Amendment is fully applicable to the states through the Fourteenth Amendment. 72. The Second Amendment and Article 1, § 6 guarantee the individual the right to possess and carry weapons in case of confrontation. At the core of this protection is the right of law-abiding, responsible citizens, such as Plaintiff Muise, to use arms in defense of “hearth and home.” In order for this right to have any meaning and effect, individuals must be permitted to purchase firearms and ammunition within the State. 73. When a law burdens the fundamental right to bear arms, the government bears the burden of establishing that there is a reasonable fit between the asserted substantial or important
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governmental objective and the burden placed on the individual. Executive Order 2020-42 fails to satisfy this burden, and this is evident by the numerous exceptions it provides for activity that is not protected by the United States or Michigan Constitutions.
74. As a direct and proximate result of Defendants’ violation of the Second Amendment and Article 1, § 6 as set forth in this Complaint, Plaintiff Muise has suffered irreparable harm, including the loss of his fundamental constitutional rights, entitling him to declaratory and injunctive relief.
FIFTH CLAIM FOR RELIEF (First Amendment—Right of Association) 75. Plaintiffs hereby incorporate by reference all stated paragraphs. 76. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiff Muise of his right to association in violation of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 77. The freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech. Indeed, implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. 78. As a direct and proximate result of Defendants’ violation of the First Amendment as set forth in this Complaint, Plaintiff Muise has suffered irreparable harm, including the loss of his fundamental constitutional rights, entitling him to declaratory and injunctive relief.
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PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A) to declare that Defendants violated Plaintiffs’ fundamental constitutional rights as set forth in this Complaint; B) to enjoin Defendants’ enforcement of the challenged measures of Executive Order 2020-42 as set forth in this Complaint; C) to award Plaintiffs their reasonable attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and other applicable law; D) to grant such other and further relief as this Court should find just and proper.
Respectfully submitted, AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849) PO Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756; Fax: (801) 760-3901 rmuise@americanfreedomlawcenter.org /s/ David Yerushalmi David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20006 Tel: (646) 262-0500; Fax: (801) 760-3901 dyerushalmi@americanfreedomlawcenter.org
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Case 1:20-cv-00323 ECF No. 1-1 filed 04/15/20 PageID.18 Page 1 of 20
EXHIBIT 1

4/13/2020

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THE OFFICE OF

GOVERNOR GRETCHEN



WHITMER

WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-42 (COVID-19)

EXECUTIVE ORDER 2020-42 FAQs

EXECUTIVE ORDER

No. 2020-42

Temporary requirement to suspend activities that are not necessary to sustain or protect life

Rescission of Executive Order 2020-21





The novel coronavirus (COVID-19) is a respiratory disease that can result in

serious illness or death. It is caused by a new strain of coronavirus not

previously identi ed in humans and easily spread from person to person.

There is currently no approved vaccine or antiviral treatment for this

disease.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

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On March 10, 2020, the Michigan Department of Health and Human Services

identi ed the rst two presumptive-positive cases of COVID-19 in Michigan.

On that same day, I issued Executive Order 2020-4. This order declared a

state of emergency across the state of Michigan under section 1 of article 5

of the Michigan Constitution of 1963, the Emergency Management Act, 1976

PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the

Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.

In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, con rmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.

The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement
 through “executive orders, proclamations, and directives having the force
and e ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the a ected area under control.” MCL 10.31(1).

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To suppress the spread of COVID-19, to prevent the state’s health care

system from being overwhelmed, to allow time for the production of critical

test kits, ventilators, and personal protective equipment, and to avoid

needless deaths, it is reasonable and necessary to direct residents to remain

at home or in their place of residence to the maximum extent feasible. To

that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all

people in Michigan to stay home and stay safe. The order limited gatherings

and travel, and required workers who are not necessary to sustain or

protect life to stay home.

The measures put in place by Executive Order 2020-21 have been e ective, but this virus is both aggressive and persistent: on April 8, 2020, Michigan reported 20,346 con rmed cases of COVID-19 and 959 deaths from it. To win this ght, and to protect the health and safety of our state and each other, we must be just as aggressive and persistent. Though we have all made sacri ces, we must be steadfast. Accordingly, with this order, I nd it reasonable and necessary to rea rm the measures set forth in Executive Order 2020-21, clarify them, and extend their duration to April 30, 2020. This order takes e ect on April 9, 2020 at 11:59 pm. When this order takes e ect, Executive Order 2020-21 is rescinded.

 Actingunder the Michigan Constitution of 1963 and Michigan law, I order the
following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.

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2. Subject to the exceptions in section 7 of this order, all individuals

currently living within the State of Michigan are ordered to stay at home

or at their place of residence. Subject to the same exceptions, all public

and private gatherings of any number of people occurring among

persons not part of a single household are prohibited.

3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.

4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.

a. For purposes of this order, workers who are necessary to sustain or protect life are de ned as “critical infrastructure workers,” as described in sections 8 and 9 of this order.





b. For purposes of this order, workers who are necessary to conduct

minimum basic operations are those whose in-person presence is

strictly necessary to allow the business or operation to maintain the

value of inventory and equipment, care for animals, ensure security,

process transactions (including payroll and employee bene ts), or

facilitate the ability of other workers to work remotely.

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Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.

Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 10 of this order.

5. Businesses and operations that employ critical infrastructure workers may continue in-person operations, subject to the following conditions:

a. Consistent with sections 8 and 9 of this order, businesses and operations must determine which of their workers are critical infrastructure workers and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate
 means. Workers need not carry copies of their designations when they
leave the home or place of residence for work. Businesses and operations need not designate:

1. Workers in health care and public health.

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2. Workers who perform necessary government activities, as described in

section 6 of this order.

3. Workers and volunteers described in section 9(d) of this order.

b. In-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume.

c. Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 10 of this order. Stores that are open to the public must also adhere to the rules described in section 11 of this order.

6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are necessary to sustain or protect life, are suspended.
 
a. For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and rst responders.

b. Such activities also include, but are not limited to, public transit, trash pick-up and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to

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enable transactions that support the work of a business’s or operation’s

critical infrastructure workers, and the maintenance of safe and sanitary

public parks so as to allow for outdoor activity permitted under this

order.

c. For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.

d. Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 10 of this order.

7. Exceptions.

a. Individuals may leave their home or place of residence, and travel as necessary:

1. To engage in outdoor physical activity, consistent with

remaining at least six feet from people from outside the

individual’s household. Outdoor physical activity includes



 walking, hiking, running, cycling, kayaking, canoeing, or other

similar physical activity, as well as any comparable activity for

those with limited mobility.

2. To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)

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3. To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.

4. To perform necessary government activities, as described in section 6 of this order.

5. To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).

6. To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.





A. Individuals must secure such services or supplies via delivery to the

maximum extent possible. As needed, however, individuals may leave

the home or place of residence to purchase groceries, take-out food,

gasoline, needed medical supplies, and any other products necessary to

maintain the safety, sanitation, and basic operation of their residences.

Individuals may also leave the home to drop o a vehicle to the extent

permitted under section 9(i) of this order.

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B. Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.

7. To care for a family member or a family member’s pet in another household.

8. To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.

9. To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.

10. To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
 
11. To work or volunteer for businesses or operations (including both religious and secular nonpro t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.

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12. To attend a funeral, provided that no more than 10 people are in

attendance at the funeral.

b. Individuals may also travel: 1. To return to a home or place of residence from outside this state. 2. To leave this state for a home or residence elsewhere.

3. Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.

4. As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.

c. All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and
 Infrastructure Security Agency in his guidance of March 19, 2020 on the
COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.

Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:

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a. Health care and public health.

b. Law enforcement, public safety, and rst responders.

c. Food and agriculture.

d. Energy.

e. Water and wastewater.

f. Transportation and logistics.

g. Public works.
 h. Communications and information technology, including news media.

i. Other community-based government operations and essential functions.

j. Critical manufacturing.
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k. Hazardous materials.

Financial services.

m. Chemical supply chains and safety.

Defense industrial base.

9. For purposes of this order, critical infrastructure workers also include:

a. Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of workers required to perform in-person work as permitted under this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.





b. Workers at suppliers, distribution centers, or service providers, as described below.

1. Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may

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designate their workers as critical infrastructure workers, provided that

only those workers whose in-person presence is necessary to enable,

support, or facilitate such work may be so designated.

2. Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.

3. Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.

 4. Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.

c. Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.

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d. Workers and volunteers for businesses or operations (including both

religious and secular nonpro t organizations) that provide food, shelter,

and other necessities of life for economically disadvantaged or

otherwise needy individuals, individuals who need assistance as a result

of this emergency, and people with disabilities.

e. Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the wellbeing and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.

f. Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.

g. Workers at laundromats, coin laundries, and dry cleaners.
 h. Workers at hotels and motels, provided that the hotels or motels do not
o er additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.

i. Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person tra c.

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10. Businesses, operations, and government agencies that continue inperson work must adhere to sound social distancing practices and measures, which include but are not limited to:

a. Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.

b. Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s, operation’s, or government agency’s critical infrastructure functions or its minimum basic operations.

c. Promoting remote work to the fullest extent possible.

d. Keeping workers and patrons who are on premises at least six feet from

one another to the maximum extent possible.



e. Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.

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f. Adopting policies to prevent workers from entering the premises if they

display respiratory symptoms or have had contact with a person with a

con rmed diagnosis of COVID-19.

g. Any other social distancing practices and mitigation measures recommended by the CDC.

11. Any store that remains open for in-person sales under section 5 or 9(f) of this order must:

a. Establish lines to regulate entry in accordance with subsections (c) and (d) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.

b. Consider establishing curbside pick-up to reduce in-store tra c and mitigate outdoor lines.





c. For stores of less than 50,000 square feet of customer oor space, limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local re marshal.

d. For stores of more than 50,000 square feet:

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1. Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer oor space. The amount of customer oor space must be calculated to exclude store areas that are closed under subprovision (2) of this subsection.

2. Close areas of the store—by cordoning them o , placing signs in aisles, posting prominent signs, removing goods from shelves, or other appropriate means—that are dedicated to the following classes of goods:

A. Carpet or ooring.

B. Furniture.

C. Garden centers and plant nurseries.

D. Paint.



3. By April 13, 2020, refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.

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4. Create at least two hours per week of dedicated shopping time for

vulnerable populations, which for purposes of this order are people

over 60, pregnant women, and those with chronic conditions like heart

disease, diabetes, and lung disease.

e. The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in subsections (c) and (d) of this section as necessary to protect the public health.

12. No one shall advertise or rent a short-term vacation property except as necessary to assist in housing a health care professional or volunteer aiding in the response to the COVID-19 crisis.

13. Nothing in this order should be taken to supersede another executive order or directive that is in e ect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 17 of this order.





14. Nothing in this order should be taken to interfere with or infringe on the

powers of the legislative and judicial branches to perform their

constitutional duties or exercise their authority.

15. This order takes e ect on April 9, 2020 at 11:59 pm and continues through April 30, 2020 at 11:59 pm. When this order takes e ect,

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Executive Order 2020-21 is rescinded. All references to that order in

other executive orders, agency rules, letters of understanding, or other

legal authorities shall be taken to refer to this order.

16. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether su cient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health-care workforce; (4) the state’s capacity to test for COVID-19 cases and isolate infected people; and (5) economic conditions in the state.

17. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.

Given under my hand and the Great Seal of the State of Michigan.

MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES
COPYRIGHT 2020 STATE OF MICHIGAN

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 Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.50 Page 1 of 7

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,
Plaintiffs,
v.

No. 1:20-cv-00323 Hon. Paul L. Maloney

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

EXPEDITED CONSIDERATION REQUESTED

PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
______________________________________________________________________________
AMERICAN FREEDOM LAW CENTER Robert J. Muise, Esq. (P62849) P.O. Box 131098 Ann Arbor, Michigan 48113 (734) 635-3756 rmuise@americanfreedomlawcenter.org
David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20006 Tel: (646) 262-0500; Fax: (801) 760-3901 dyerushalmi@americanfreedomlawcenter.org
Attorneys for Plaintiffs ______________________________________________________________________________
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Kimberly Beemer,
Paul Cavanaugh, and Robert Muise (collectively referred to as “Plaintiffs”), by and through

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Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.51 Page 2 of 7
undersigned counsel, hereby move this Court for a Temporary Restraining Order (TRO) and preliminary injunction to immediately enjoin the enforcement of the challenged measures of Executive Order 2020-42. Expedited consideration is necessary because the harm to Plaintiffs is occurring now, and it is irreparable. This harm is set forth in greater detail in the accompanying brief and supporting declarations. Accordingly, Plaintiffs request that the Court immediately issue the requested TRO and then set an expedited schedule for briefing on the preliminary injunction, at which time opposing counsel will get an opportunity to respond in full. Time is of the essence.1
This lawsuit was filed on April 15, 2020. (See Compl. [Doc. No. 1]). That same day, Plaintiffs sent copies of the Complaint and summonses to Defendants via email. Due to the restrictions placed on travel and other restrictions imposed by Defendant Whitmer, personal service is very difficult if not impossible to achieve. Defendant Whitmer’s Chief Legal Counsel, Mr. Mark Totten, promptly responded and agreed to accept service for Defendant Whitmer via email. Plaintiffs promptly filed the executed summons (Doc. No. 5 [Summons returned executed]), and counsel for Defendant Whitmer promptly filed notices of appearance with the Court. (See Docket Entries).
Plaintiffs have similarly tried, on multiple occasions, to reach out to Defendants Telgenhof (TelgenhofA@charlevoixcounty.org), Vailliencourt (BVailliencourt@livgov.com), and Mackie (prosecutormackie@washtenaw.org). Plaintiffs sent multiple emails and left multiple voices message. Plaintiffs did hear back from Defendant Telgenhof, who told Plaintiffs that he was forwarding their request to his attorney, Mr. Bryan Graham
1 Pursuant to Rule 65(b)(1)(B) of the Federal Rules of Civil Procedure, Plaintiffs’ counsel hereby certifies the above-stated efforts made to give notice to Defendants and why the Court should issue the requested TRO immediately and without further notice to any party.
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Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.52 Page 3 of 7
(bgraham@upnorthlaw.com). Plaintiffs promptly reached out to Mr. Graham. On April 20,
2020, Mr. Graham responded by email, stating, in relevant part, “The county is currently in the
process of determining whether there is insurance coverage for the claims against Prosecutor
Telgenhof. Once this insurance coverage is determined, we are willing to accept service. I do
not know whether I will be handling the matter on behalf of the county, or whether the insurance
carrier will assign a defense attorney.” Plaintiffs also heard back from Defendant Vailliencourt,
who responded and said he would be forwarding Plaintiffs’ request to his attorney. Plaintiffs
have heard nothing further, despite multiple efforts to follow up via email and phone messages.
As discussed further below, Plaintiffs finally received a response from Defendant Mackie during
the “meet and confer” conference call held at 3 pm on April 20, 2020.
On April 16, 2020, pursuant to the Local Rule “meet and confer” requirement prior to
filing any motion with the Court, Attorney Robert Muise (also a plaintiff in this action) sent the
following via email to counsel for Defendant Whitmer:
Plaintiffs intend to file a motion for a TRO/Preliminary Injunction, requesting expedited review. We are still working on serving the other defendants (all County Prosecutors who have the authority to enforce criminal violations of the Governor’s executive orders). Pursuant to Local Rule 7.1(d), we must meet and confer to “ascertain whether the motion will be opposed.” Given that it is the Governor’s order, I suspect that the prosecuting attorneys would likely agree with the position of the Governor on the motion. I might be mistaken, but at least we can get a head start on the process. Accordingly, below is the relief we will be seeking in our motion. Please advise as to whether the Governor will oppose the motion. Thank you.
• An order enjoining the enforcement of Executive Order 2020-42’s measures that prohibit individuals from travelling between their own residences and cottages within the State of Michigan, thereby permitting Plaintiff Beemer, along with members of her household, to travel to and from her residence in Saginaw, Michigan and her cottage located in Charlevoix County, Michigan and permitting Plaintiff Cavanaugh, along with members of his household, to travel to and from his residence in Brighton, Michigan and his cottage located in Charlevoix County, Michigan;
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Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.53 Page 4 of 7
• An order enjoining the enforcement of Executive Order 2020-42’s measures that prohibit the operation of landscaping businesses within the State of Michigan, thereby permitting Plaintiff Cavanaugh to reopen his landscaping business, Cavanaugh’s Lawn Care LLC, so long as he and his employees practice social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the employee’s household;
• An order permitting individuals, specifically including Plaintiffs Beemer and Cavanaugh, to engage in outdoor activities that include using boats with motors for fishing and other similar recreational purposes, consistent with remaining at least six feet from people from outside the individual’s household;
• An order enjoining the enforcement of Executive Order 2020-42 insofar as it conflicts with the March 28, 2020, U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency guidance on “critical infrastructure,” which identifies “Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” as “critical infrastructure,” thereby permitting gun stores and shooting ranges in Michigan to remain open and operational subject to social distancing measures recommended by the Centers for Disease Control and Prevention and permitting individuals, including Plaintiff Muise, to travel to and from such businesses; and
• An order enjoining the enforcement of Executive Order 2020-42’s measures that prohibit private, family gatherings at private residences, thereby permitting Plaintiff Muise to hold private gatherings for meals, fellowship, and prayer with his immediate family at his private residence located in Superior Township, Michigan.
That same day (April 16), counsel for Defendant Whitmer responded, in relevant part, as
follows:
Thank you for the email. We are going to need some time to review, consider, and confer regarding the relief you are requesting. I’ll get back to you to set up a call when we are able.
The following day (April 17), Attorney Muise sent the following email to Defendant
Whitmer’s counsel:
Do you have an answer? Can we set up a call for later today (4 pm or later) or Monday late morning/afternoon?
By the way, we are still working on serving the Prosecuting Attorneys. Our paralegal has had email exchanges with two, but no answer yet on attorneys who will be handling the matter for them. As I mentioned in my prior email, it is likely the Governor who will be calling the shots on this since it is her order, so I
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Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.54 Page 5 of 7
would like to proceed with a call regardless of whether the other attorneys are available. Let me know where we are on this. Thank you. Counsel for Defendant Whitmer responded that day (April 17) and stated that they were available for the “meet and confer” phone conference on Monday (April 20) at 1 pm. (The call was later moved to 3 pm at the request of Defendant Whitmer’s counsel). The parties scheduled the conference. On April 18, 2020, Plaintiffs sent an email to the Defendant Prosecuting Attorneys and/or their counsel (Mr. Graham), informing them of the conference call set for April 20, the details of the “meet and confer” (Plaintiffs sent them the same details that were sent to Defendant Whitmer’s counsel regarding the relief requested), and invited them to join the call. On April 20, 2020, the “meet and confer” phone conference was held. Participating in the conference were Plaintiffs’ counsel (Robert Muise and David Yerushalmi), counsel for Defendant Whitmer (Attorneys John G. Fedynsky and Joseph T. Froehlich), Attorney Bryan Graham on behalf of Defendant Telgenhof, and Attorney Michelle Billard, Corporation Counsel at Washtenaw County, on behalf of Defendant Mackie.2 No Defendant concurred in the relief sought by this motion. In the final analysis, Executive Order 2020-42 remains in effect until at least April 30, 2020. Plaintiffs have suffered, and will continue to suffer, “immediate and irreparable injury . . . before the adverse party can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A); see also Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (“[W]hen reviewing a motion for preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a
2 Attorneys Graham and Billard stated that they still did not have authority to accept service of the Complaint and summonses on behalf of Defendants Telgenhof and Mackie, respectively, since it has yet to be determined who will be representing these Defendants in this matter.
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Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.55 Page 6 of 7 finding of irreparable injury is mandated.”). Accordingly, it is necessary and appropriate for the Court to issue the requested TRO, to be followed by an expedited briefing schedule on Plaintiffs’ request for a preliminary injunction.
WHEREFORE, Plaintiffs respectfully request that the Court immediately issue the requested TRO, temporarily enjoining enforcement of the challenged measures of Executive Order 2020-42 pending a hearing on whether a preliminary injunction should issue.
Respectfully submitted, AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise /s/ David Yerushalmi David Yerushalmi Counsel for Plaintiffs
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Case 1:20-cv-00323-PLM-PJG ECF No. 7 filed 04/20/20 PageID.56 Page 7 of 7 CERTIFICATE OF SERVICE
I hereby certify that on April 20, 2020, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the court’s electronic filing system. Parties may access this filing through the court’s system.
I further certify that a copy of the foregoing will be sent this day via email to the following parties or counsel who have yet to enter an appearance electronically:
Defendant Telgenhof via email to Attorney Bryan Graham at bgraham@upnorthlaw.com. Defendant Vailliencourt via email to BVailliencourt@livgov.com Defendant Mackie via email to Attorney Michelle Billard at billardm@washtenaw.org
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq.
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Case 1:20-cv-00323-PLM-PJG ECF No. 8 filed 04/20/20 PageID.57 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,
Plaintiffs,
v.

No. 1:20-cv-00323 Hon. Paul L. Maloney

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

EXPEDITED CONSIDERATION REQUESTED

PLAINTIFFS’BRIEF IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
______________________________________________________________________________
AMERICAN FREEDOM LAW CENTER Robert J. Muise, Esq. (P62849) P.O. Box 131098 Ann Arbor, Michigan 48113 (734) 635-3756 rmuise@americanfreedomlawcenter.org
David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20006 Tel: (646) 262-0500 Fax: (801) 760-3901 dyerushalmi@americanfreedomlawcenter.org
Attorneys for Plaintiffs ______________________________________________________________________________

Case 1:20-cv-00323-PLM-PJG ECF No. 8 filed 04/20/20 PageID.58 Page 2 of 34 ISSUE PRESENTED
Whether the enactment and enforcement of the challenged measures of Executive Order 2020-42, which criminalize Plaintiffs’ peaceful and otherwise lawful activity, violate Plaintiffs’ rights guaranteed by the United States and Michigan Constitutions, thereby causing irreparable harm sufficient to warrant the requested injunctive relief.
i

Case 1:20-cv-00323-PLM-PJG ECF No. 8 filed 04/20/20 PageID.59 Page 3 of 34
INTRODUCTION “But a Constitution of Government once changed from Freedom, can
never be restored. Liberty once lost is lost forever.” John Adams
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs seek a Temporary Restraining Order (TRO) and preliminary injunction to immediately enjoin the use of Executive Order 2020-42 to criminalize the fundamental liberties Plaintiffs enjoy as law-abiding citizens under the United States and Michigan Constitutions. More specifically, Plaintiffs seek the following:
• An order enjoining the enforcement of Executive Order 2020-42’s measures that prohibit individuals from travelling between their own residences and cottages within the State of Michigan, thereby permitting Plaintiff Beemer, along with members of her household, to travel to and from her residence in Saginaw, Michigan and her cottage located in Charlevoix County, Michigan and permitting Plaintiff Cavanaugh, along with members of his household, to travel to and from his residence in Brighton, Michigan and his cottage located in Charlevoix County, Michigan;
• An order enjoining the enforcement of Executive Order 2020-42’s measures that prohibit the operation of landscaping businesses within the State of Michigan, thereby permitting Plaintiff Cavanaugh to reopen his landscaping business, Cavanaugh’s Lawn Care LLC, so long as he and his employees practice social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the employee’s household;
• An order permitting individuals, specifically including Plaintiffs Beemer and Cavanaugh, to engage in outdoor activities that include using boats with motors for fishing and other
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similar recreational purposes, consistent with remaining at least six feet from people from outside the individual’s household; • An order enjoining the enforcement of Executive Order 2020-42 insofar as it conflicts with the March 28, 2020, U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency guidance on “critical infrastructure,” which identifies “Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” as “critical infrastructure,” thereby permitting gun stores and shooting ranges in Michigan to remain open and operational subject to social distancing measures recommended by the Centers for Disease Control and Prevention and permitting individuals, including Plaintiff Muise, to travel to and from such businesses; and • An order enjoining the enforcement of Executive Order 2020-42’s measures that prohibit private, family gatherings at private residences, thereby permitting Plaintiff Muise to hold private gatherings for meals, fellowship, and prayer with his immediate family at his private residence located in Superior Township, Michigan.1
STATEMENT OF FACTS2 Plaintiffs are adult citizens of the United States and residents of Michigan. Plaintiff Beemer resides in Saginaw, Plaintiff Cavanaugh resides in Brighton, and Plaintiff Muise resides in Superior Township. (Beemer Decl. ¶ 1; Cavanaugh Decl. ¶ 1; Muise Decl. ¶ 1). Plaintiffs Beemer and Cavanaugh own cottages in Charlevoix County, Michigan. And Plaintiff Cavanaugh is the owner of a landscaping business, Cavanaugh’s Lawn Care LLC,
1 A proposed TRO has been submitted with this brief. 2 Plaintiff Beemer’s declaration is attached to this brief as Exhibit 1. Plaintiff Cavanaugh’s declaration is attached to this brief as Exhibit 2. And Plaintiff Muise’s declaration is attached to this brief as Exhibit 3.
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which is located in Livingston County, Michigan. (Beemer Decl. ¶ 3; Cavanaugh Decl. ¶¶ 2, 68).
Defendant Gretchen Whitmer is the Governor of the State of Michigan. Per her authority as Governor, Defendant Whitmer issued Executive Order 2020-42. A “willful violation” of Executive Order 2020-42 is a misdemeanor. (Muise Decl. ¶ 3, Ex. A [Executive Order 202042]).
Defendant Telgenhof is the Charlevoix County Prosecuting Attorney. (See https://www.charlevoixcounty.org/prosecuting_attorney/index.php). Defendant Mackie is the Washtenaw County Prosecuting Attorney. (See https://www.washtenaw.org/1070/ProsecutingAttorney). And Defendant Vailliencourt is the Livingston County Prosecuting Attorney. (See https://www.livgov.com/prosecutor). The County Prosecuting Attorneys are responsible for criminally prosecuting persons who violate Executive Order 2020-42 in their counties.3
On March 24, 2020, Defendant Whitmer issued Executive Order 2020-21, which was described as a “[t]emporary requirement to suspend activities that are not necessary to sustain or protect life.” On April 9, 2020, Defendant Whitmer issued Executive Order 2020-42, which “reaffirm[ed] the measures set forth in Executive 2020-21, clarif[ied] them, and extend[ed] their duration to April 30, 2020.” The executive order took effect “on April 9, 2020 at 11:59 pm.” When Executive Order 2020-42 took effect, it rescinded Executive Order 2020-21. (Muise Decl. ¶¶ 2, 3, Ex. A).
3 Defendants Whitmer, Telgenhof, Mackie, and Vailliencourt are sued in their official capacity only. (See Compl. ¶¶ 15, 17, 19, 21 [Doc. No. 1]). A suit against a government official in his or her official capacity is essentially a suit against the government. Ky. v. Graham, 473 U.S. 159, 166 (1985). Prospective declaratory and injunctive relief are available in actions against state officials (and County officials enforcing state law) sued in their official capacities based on an allegedly unconstitutional statute or official act. Ex Parte Young, 209 U.S. 123, 151-56 (1908). In other words, the Eleventh Amendment is not a bar to this action. See id.
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By its own terms, Executive Order 2020-42 will remain in effect until April 30, 2020 at
11:59 pm. However, it is more likely than not that Defendant Whitmer will extend the measures
challenged here beyond April 30, 2020 via a new executive order. Defendant Whitmer publicly
expressed a desire to extend the measures of Executive Order 2020-42 into June 2020. (See
https://www.bridgemi.com/michigan-government/michigan-gov-whitmer-asks-legislature-
extend-emergency-powers-70-days). And there are reports that another outbreak of COVID-19
this Fall is possible.
Executive Order 2020-42, states, in relevant part, the following:
2. Subject to the exceptions in section 7, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
* * *
7. Exceptions.
a. Individuals may leave their home or place of residence, and travel as necessary:
1. To engage in outdoor physical activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.
* * *
6. To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.
A. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed
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medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences. Individuals may also leave the home to drop off a vehicle to the extent permitted under section 9(i) of this order.
* * * 7. To care for a family member or a family member’s pet in another household.
* * * b. Individuals may leave their home or place of residence, and travel as necessary: 1. To return to a home or place of residence from outside the state. 2. To leave this state for a home or residence elsewhere. 3. Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.
* * * c. All other travel is prohibited, including all travel to vacation rentals. (Muise Decl. ¶ 3, Ex. A [emphasis added]). Plaintiff Beemer and members of her household frequently travel to her cottage in Charlevoix County. She would often leave from her residence in Saginaw, Michigan and travel to the cottage on a Thursday, remaining at her cottage over the weekend and returning late on Sunday or early Monday morning. Her cottage is a second home, and it is her private retreat from the daily grind of her law practice. (Beemer Decl. ¶ 4). Plaintiff Cavanaugh and members of his household frequently travel to his cottage. It was a Cavanaugh family tradition to spend Easter at the cottage. (Cavanaugh Decl. ¶ 3). Under the measures set forth in Executive Order 2020-42, if Plaintiffs Beemer or Cavanaugh were to travel to their cottages, they would be subject to prosecution for violating the executive order. As a result, Plaintiffs have ceased their travel and have thus been denied the use
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and enjoyment of their private property by the government.4 (Beemer Decl. ¶¶ 5, 6; Cavanaugh Decl. ¶ 4). In fact, as a result of Executive Order 2020-42, Plaintiff Cavanaugh and his family had to cancel their Easter tradition. (Cavanaugh Decl. ¶ 4). Plaintiffs have no recourse for this deprivation of their property rights other than seeking redress in a court of law, which they are doing here. (Beemer Decl. ¶ 6; Cavanaugh Decl. ¶ 4).
There is little to no chance that Plaintiffs Beemer or Cavanaugh would cause the spread of COVID-19 by travelling with members of their households from their residences in Saginaw and Brighton to their cottages in Charlevoix County. In fact, they and members of their households are more isolated at their cottages than when they are at their primary residences. (Beemer Decl. ¶ 7; Cavanaugh Decl. ¶ 5).
Under Executive Order 2020-42, a Wisconsin resident, as just one example, could travel from his State to his cottage in Charlevoix County, Michigan without violating Executive Order 2020-42. Prohibiting individuals from traveling from one place of residence in the State to another place of residence or cottage within the State has no real or substantial relation to promoting the objectives of Executive Order 2020-42, particularly in light of the numerous exceptions permitted under the order. (See Muise Decl., ¶ 3, Ex. A [Executive Order 2020-42 at 10/19).
Following the issuance of Executive Order 2020-21, and reaffirmed in Executive Order 2020-42, Defendant Whitmer permits marijuana businesses to remain open during this pandemic. In fact, pursuant to the Michigan Marijuana Regulatory Agency, because Secretary of State
4 Plaintiff Beemer also fears that she could jeopardize her Michigan law practice if she violated the executive order. Defendant Whitmer was quoted in the news on or about April 1, 2020, as follows: “You know, just about every business in the state has some sort of license, from the state of Michigan or not, and so we’ve encouraged them not to play fast and loose with this order because their licenses could be in jeopardy as a result.” (Beemer Decl. ¶ 5).
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offices are closed and “individuals may not be able to renew their driver’s licenses or government-issued identification cards while the Executive Order is in effect . . , licensed provisioning centers and adult-use retailers are temporarily allowed to sell or transfer marijuana to a patient, caregiver, or customer who has an expired driver license or government-issued identification card during home delivery and curbside sales.” (Muise Decl. ¶ 4, Ex. B [MRA Advisory Bulletin]).
For the past ten years, Plaintiff Cavanaugh has worked hard to develop and expand his landscaping business, Cavanaugh’s Lawn Care LLC. As a result of Defendant Whitmer’s executive orders, his company came to an abrupt halt. The early spring brought an early start to the season. Eleven of Plaintiff Cavanaugh’s fulltime employees had returned to work for two weeks before the shutdown. One additional, fulltime employee was returning from a trip abroad. Plaintiff Cavanaugh had high hopes of getting ahead of the workload and having a normal start to the season. As a result of Defendant Whitmer’s shutdown of his business, Plaintiff Cavanaugh was unable to perform his obligations under existing contracts and as a direct result missed out on approximately $25,000 for spring cleanups, $12,000 for fertilizing for first round preemergent, $30,000 for mowing for the month of April, and $35,000 for landscape installs. In fact, his business has been losing approximately $5,000 to $6,000 a day in revenue. The lost revenue is impossible to replace. Eighty percent of Plaintiff Cavanaugh’s business is contract work with existing customers. Consequently, the measures set forth in Defendant Whitmer’s executive order have substantially impaired Plaintiff Cavanaugh’s contract obligations, have no reasonable basis, and are entirely inappropriate for their intended purposes, especially in light of the stated exceptions to the executive order. (Cavanaugh Decl. ¶¶ 6, 7, Ex. A [Sample Contract]; see also ¶ 9 [noting that metro parks permit landscaping]).
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There is little to no chance that Plaintiff Cavanaugh’s landscaping business will spread COVID-19. Plaintiff Cavanaugh’s employees practice social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the employee’s household. The business is an outdoor business, which can operate without any personal contact with customers and with minimal to no contact between employees. Indeed, there is far less likelihood of Plaintiff Cavanaugh’s business spreading COVID-19 than other businesses that Defendant Whitmer permits under her executive orders, specifically including hardware stores, grocery stores, gas stations, marijuana businesses, and pet stores. (Cavanaugh Decl. ¶ 8).
During his free time, which he now has in abundance due to the fact that Defendant Whitmer’s executive orders have shut down his business, Plaintiff Cavanaugh enjoys time with his son fishing in his boat on Lake Charlevoix. However, Defendant Whitmer’s executive order has now stripped that away from him as well. Under her executive order, Defendant Whitmer permits kayaking or canoeing, but arbitrarily prohibits the use of boats with motors. (Cavanaugh Decl. ¶ 10). Plaintiff Beemer is likewise prohibited from boating with her family members on Lake Charlevoix as a result of the executive order. (Beemer Decl. ¶ 8).
Plaintiff Muise served as an officer on activity duty in the United States Marine Corps for thirteen years. He was an infantry officer, he is a veteran of Operations Desert Shield and Desert Sword, and he trained with 42 Commando, British Royal Marines. Plaintiff Muise resigned his commission as a Major in 2000. (Muise Decl. ¶ 5).
Plaintiff Muise has a valid Michigan Concealed Pistol License. He is professionally trained in the use of firearms, he legally owns firearms, and he is a staunch defender of the Second Amendment, which constitutionally guarantees him the right to bear arms for self-
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defense, defense of his family, and for the defense of a free State. He also uses firearms to hunt in Michigan and in other States. (Muise Decl. ¶ 6).
To support his right to bear arms, which necessarily includes the right to purchase firearms and ammunition, Plaintiff Muise patronizes local gun shops, specifically including a gun shop located in Washtenaw County. (Muise Decl. ¶ 7).
Executive Order 2020-42 orders all nonessential businesses and activities to cease. Though this order exempts “critical infrastructure,” Defendant Whitmer references an outdated list of such industries (issued March 19, 2020) rather than the most current federal guidance (issued March 28, 2020) that designates firearm and ammunition retailers as critical.5 This deliberate action effectively makes gun stores and firing ranges in Michigan nonessential. (Muise Decl. ¶¶ 8-10, Ex. A [Executive Order 2020-42 at 10/19 (citing March 19, 2020 guidance and stating, “This order does not adopt any subsequent guidance document released by this same agency.”)]), Ex. C [March 19, 2020 guidance], Ex. D [March 28, 2020 guidance]).
Consequently, Executive Order 2020-42 makes it a crime to travel to gun stores or gun ranges. Yet, the order permits individuals to travel to buy food for a pet, marijuana, Lotto tickets, or liquor, among other items. (Muise Decl. ¶¶ 12, 13).
Due to the panic caused by the pandemic, and the unemployment, loss of income, poverty, and uncertainty caused by Defendant Whitmer’s executive orders, owning and possessing firearms is critically important at this time. (Muise Decl. ¶ 14).
5 Per the March 28, 2020 guidance, “Workers supporting the operation of firearm, or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” are considered part of the “Essential Critical Infrastructure Workforce.” (Muise Decl. ¶ 11, Ex. D [March 28, 2020 guidance at 8/19]).
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Plaintiff Muise and his wife have been blessed with twelve children and ten grandchildren (with two more grandchildren expected by June). Three of his adult children are married and reside locally in homes they own in Michigan, and two of his adult children reside locally in rental properties in Michigan. His other seven children reside at his home in Superior Township. (Muise Decl. ¶ 15).
On most Sundays and Holy Days, the family would gather at Plaintiff Muise’s home for a meal, fellowship, and prayer. (Muise Decl. ¶ 16).
Plaintiff Muise and his family are devout Catholics. Because of COVID-19, there are no public Masses in the Lansing Diocese. However, Jesus Christ taught that where two or more gather in His name, He is present. (Matthew 18:20). Plaintiff Muise would like his family to gather together on Sundays and other Holy Days to associate for a meal, fellowship, and prayer, and thus gather as a family in Christ’s name. During these gatherings, Plaintiff Muise’s family members would adhere to social distancing measures recommended by the Centers for Disease Control and Prevention. Under the measures set forth in Executive Order 2020-42, it is now a crime in Michigan to engage in such family associations and gatherings. (Muise Decl. ¶ 17).
ARGUMENT I. Plaintiffs Have Standing to Advance this Constitutional Challenge.
Before addressing the TRO/preliminary injunction factors, we pause here briefly to address the threshold question of standing. In an effort to give meaning to Article III’s “case” or “controversy” requirement, the courts have developed several justiciability doctrines, including standing. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014). “The doctrine of standing gives meaning to these constitutional limits by identifying those disputes which are
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appropriately resolved through the judicial process.” Id. (internal quotations and citation omitted).
“In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498 (1975). Consequently, to invoke the jurisdiction of a federal court, “[a] plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U.S. 737, 751 (1984). In National Rifle Association of America v. Magaw, 132 F.3d 272, 279 (6th Cir. 1997), the court stated that a plaintiff has standing to seek declaratory or injunctive relief if he can “show actual present harm or a significant possibility of future harm.” See also Dombrowski v. Pfister, 380 U.S. 479, 486 (1965) (“The threat of sanctions may deter . . . almost as potently as the actual application of sanctions.”); G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1076 (6th Cir. 1994) (recognizing that “a chilling effect on one’s constitutional rights constitutes a present injury in fact”). As stated by the Court in Steffel v. Thompson, 415 U.S. 452, 459 (1974), “[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.”
Here, we have an executive order that is currently in effect and being enforced to criminalize and thus restrict fundamental freedoms protected by the United States and Michigan Constitutions. There is nothing hypothetical about Plaintiffs’ challenge. Plaintiffs’ standing to advance this challenge to an executive order that criminalizes constitutionally protected activity is well established.
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II. The Pandemic Does Not Empower the Governor to Infringe Fundamental Rights Nor Does It Deprive this Court of Its Duty and Power to Say So. Neither Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), nor this
current pandemic deprives this Court from declaring the challenged measures of Executive Order 2020-42 unlawful and enjoining their enforcement.
In Jacobson, amid a smallpox outbreak, a city (acting pursuant to a state statute) mandated the vaccination of all of its citizens. The Court upheld the statute against a Fourteenth Amendment challenge, clarifying that the State’s action was a lawful exercise of its police powers and noting that, “[u]pon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. While the Court in Jacobson urges deferential review in times of emergency, it clearly demands that the courts enforce the Constitution. See id. at 28. Indeed, the Court explicitly contemplates an important backstop role for the judiciary: “[I]f a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.” Id. at 30 (emphasis added); see also Planned Parenthood v. Casey, 505 U.S. 833, 857 (1992) (citing Jacobson for the proposition that “a State’s interest in the protection of life falls short of justifying any plenary override of individual liberty claims”).
Under Jacobson, therefore, a State’s emergency response can still be unlawful if it impinges on a fundamental right in a “plain, palpable” way or has “no real or substantial relation” to the public safety concerns at issue. Jacobson, 197 U.S. at 31. Accordingly, per Jacobson, requiring a vaccination for a disease that is the source of the public emergency is
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directly related to the government’s public safety concerns. The same is not true of the challenged measures imposed by Executive Order 2020, as we explain in this brief. III. Standard for Issuing a TRO/Preliminary Injunction.
“The standard for issuing a temporary restraining order is logically the same as for a preliminary injunction with emphasis, however, on irreparable harm given that the purpose of a temporary restraining order is to maintain the status quo.” Reid v. Hood, No. 1:10CV2842, 2011 U.S. Dist. LEXIS 7631, at *4-5 (N.D. Ohio Jan. 26, 2011) (citing Motor Vehicle Bd. of Cal. v. Orrin W. Fox, et al., 434 U.S. 1345, 1347 n. 2 (1977)).
The standard for issuing a preliminary injunction is well established: In determining whether or not to grant a preliminary injunction, a district court considers four factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could suffer irreparable harm without the injunction; (3) whether granting the injunction will cause substantial harm to others; and (4) the impact of the injunction on the public interest. Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998); Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (same). Plaintiffs satisfy each of the elements. IV. Plaintiffs Satisfy the Standard for Granting the Requested Injunctive Relief. A. Plaintiffs’ Likelihood of Success on the Merits.
1. Right to Association. “Among the rights protected by the First Amendment is the right of individuals to associate to further their personal beliefs. While the freedom of association is not explicitly set out in the Amendment, it has long been held to be implicit in the freedoms of speech, assembly, and petition.” Healy v. James, 408 U.S. 169, 181 (1972) (citations omitted). The Sixth Circuit echoed this fundamental understanding, stating, “Freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech.” Connection
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Distributing Co., 154 F.3d at 295 (citing NAACP v. Ala., 357 U.S. 449, 460 (1958)). “[I]mplicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).
As noted by the Sixth Circuit, “The Constitution protects two distinct types of association: (1) freedom of expressive association, protected by the First Amendment, and (2) freedom of intimate association, a privacy interest derived from the Due Process Clause of the Fourteenth Amendment but also related to the First Amendment.”6 Anderson v. City of LaVergne, 371 F.3d 879, 881 (6th Cir. 2004).
It cannot be gainsaid that the right of family members to associate to further their religious beliefs is fundamental. See Roberts, 468 U.S. at 619-20 (“Family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. . . . As a general matter, only relationships with these sorts of qualities are likely to reflect the considerations that have led to an understanding of freedom of association as an intrinsic element of personal liberty.”); see also Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35 (1925) (stating that the challenged law “unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control”). And this association should be afforded its greatest protection in one’s private
6 Plaintiff Muise advances his right to association under the First and Fourteenth Amendments. (See Compl. ¶¶ 58, 76). However, because the family gatherings are principally centered around the sharing of the family’s Catholic faith, Plaintiff advances the claim principally under the First Amendment. Anderson, 371 F.3d at 881 (“[T]he Supreme Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment— speech, assembly, petition for the redress of grievances, and the exercise of religion.”) (internal quotations and citation omitted) (emphasis added). Nonetheless, the executive order’s restriction fails under the First and Fourteenth Amendments.
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home. See, e.g., Frisby v. Schultz. 487 U.S. 474, 484 (1988) (“Our prior decisions have often remarked on the unique nature of the home, the last citadel of the tired, the weary, and the sick, and have recognized that preserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value.”) (internal quotations and citations omitted).
The government’s total ban of this right under Executive Order 2020-42 must satisfy the highest level of strict scrutiny. Bd. of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569, 575 (1987) (“We think it obvious that [an absolute ban on activity protected by the First Amendment] cannot be justified even [in] a nonpublic forum because no conceivable governmental interest would justify such an absolute prohibition of speech.”); see also Perry Educ. Ass’n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (acknowledging that in a traditional public fora, “the government may not prohibit all communicative activity”); Anderson, 371 F.3d at 882 (“A direct and substantial interference with intimate associations is subject to strict scrutiny. . . .”) (internal quotations and citation omitted). Moreover, Executive Order 2020-42 expressly exempts “a place of religious worship, when used for religious worship” (Muise Decl. ¶ 3, Ex. A [Executive Order 2020-42 at ¶ 13]), but it does not exempt a private home from being used by immediate family members to gather and worship as a family. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994) (“Exemptions from an otherwise legitimate regulation of [First Amendment activity] may be noteworthy for a reason quite apart from the risks of viewpoint and content discrimination: They may diminish the credibility of the government’s rationale for restricting speech in the first place.”).
Here, the government, by operation of the measures set forth in Executive Order 2020-42, makes it a crime for Plaintiff Muise to associate with his immediate family members in his own
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home to share a meal and their faith. Our Constitution does not permit such an infringement of personal liberty secured by the First and Fourteenth Amendments.
2. Second Amendment and Article I, §6. Both the United States and Michigan Constitutions grant individuals a right to keep and bear arms for self-defense and to ensure the security of a free State. The Second Amendment to the United States Constitution provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., Am. II. Article 1, § 6 of the 1963 Michigan Constitution, which is Michigan’s equivalent to the Second Amendment, states, “Every person has a right to keep and bear arms for the defense of himself and the state.” The Second Amendment is fully applicable to the states through the Fourteenth Amendment. See McDonald v. City of Chi., 561 U.S. 742, 791 (2010) (holding that the “Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment”); Meeks v. Larsen, 611 F. App’x 277, 286 (6th Cir. 2015) (same). The Second Amendment guarantees the individual right to possess and carry weapons in case of confrontation. “At the core of the Second Amendment is the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” People v. Deroche, 829 N.W.2d 891, 894 (Mich. Ct. App. 2013) (internal quotations and citations omitted). Moreover, the right to keep and bear arms “implies a corresponding right to obtain the bullets necessary to use them,” Jackson v. City & Cnty. S.F., 746 F. 3d 953, 967 (9th Cir. 2014) (internal quotation marks omitted), and “to acquire and maintain proficiency in their use,” Ezell v. Chi., 651 F. 3d 684, 704 (7th Cir. 2011). See also D.C. v. Heller, 554 U.S. 570, 617-18 (2008) (citing T. Cooley, General Principles of Constitutional Law 271 (2d ed. 1891) (discussing the implicit right to train with weapons)); United State v. Miller, 307 U.S. 174, 180 (1939) (citing 1 H.
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Osgood, The American Colonies in the 17th Century 499 (1904) (discussing the implicit right to possess ammunition)); Andrews v. State, 50 Tenn. 165, 178 (1871) (discussing both rights).
In sum, without protection for these closely related rights (purchasing firearms and ammunition and training with firearms) the Second Amendment would be toothless. See Ezell, 651 F.3d at 704 (“The right to possess firearms for protection implies a corresponding right to acquire and maintain proficiency in their use; the core right wouldn’t mean much without the training and practice that make it effective.”).
The Sixth Circuit has adopted a two-step inquiry to determine whether government action violates the Second Amendment. United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012); Stimmel v. Sessions, 879 F.3d 198, 204 (6th Cir. 2018). First, the burden is on the government to establish “that the challenged statute regulates activity falling outside the scope of the Second Amendment right as it was understood at the relevant historical moment—1791 Bill of Rights ratification or 1868 Fourteenth Amendment ratification.” Stimmel, 879 F.3d at 204. If the government can meet this burden, then “the regulated activity is categorically unprotected, and the law is not subject to further Second Amendment review.” Id. However, “[i]f the government offers historical evidence that is inconclusive or suggests that the regulated activity is not categorically unprotected, [then the court] must inquire into the strength of the government’s justification for restricting or regulating the exercise of Second Amendment rights.” Id. (internal alterations omitted). In this second step, the court must “determine and apply the appropriate level of heightened means-end scrutiny, given that the Supreme Court has rejected rational-basis review in this context.” Id.
To determine whether to apply intermediate or strict scrutiny, the court must look at “(1) how close the law comes to the core of the Second Amendment right, and (2) the severity of the
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law’s burden on the right.” Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 690 (6th Cir. 2016) (internal quotation marks omitted).
Under the first prong, and as demonstrated above, Executive Order 2020-42 regulates activity (purchasing firearms and ammunition and training with them) that falls within the scope of the Second Amendment. In fact, it regulates activity that goes to the “core” right of the Second Amendment—it prohibits law-abiding citizens from purchasing firearms and ammunition for the protection of their “hearth and home.” See supra; Heller, 554 U.S. at 634, 635; Kachalsky v. Cnty. of Westchester, 701 F.3d 81, 89 (2d Cir. 2012) (“What we know from [Heller and McDonald] is that Second Amendment guarantees are at their zenith within the home.”). At stake here is a “basic right,” McDonald, 561 U.S. at 767, “that the Framers and ratifiers of the Fourteenth Amendment counted . . . among those fundamental rights necessary to our system of ordered liberty,” id. at 778. Indeed, “[t]he [Supreme] Court [in Heller] went to great lengths to emphasize the special place that the home—an individual’s private property— occupies in our society.” GeorgiaCarry.Org, Inc. v. Georgia, 687 F.3d 1244, 1259 (11th Cir. 2012). Here, the challenged executive order substantially burdens this fundamental right. The burden imposed is not merely incidental.
Accordingly, turning to the second prong, “any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny.” United States v. Masciandaro, 638 F.3d 458, 470 (4th Cir. 2011). Defendants cannot satisfy this highest level of scrutiny under the law, particularly in light of the exceptions permitted under the challenged executive order, as noted in the text above and discussed further below. See Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 547 (1993) (“It is established in our strict scrutiny jurisprudence that a law cannot be regarded as protecting an
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interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.”) (internal quotations and citation omitted); see also Republican Party v. White, 536 U.S. 765, 780 (2002) (noting that as a means of pursuing its alleged objectives, the government cannot enact regulations that are “so woefully underinclusive as to render belief in [its stated] purpose a challenge to the credulous”). In addition to failing strict scrutiny, the challenged measures of Executive Order 2020-42 cannot satisfy intermediate scrutiny under the Second Amendment.
While the Supreme Court “has not definitively resolved the standard for evaluating Second Amendment claims, . . . the Courts of Appeals generally evaluate Second Amendment claims under intermediate scrutiny.” Silvester v. Becerra, 138 S. Ct. 945, 947 (2018) (Thomas, J. dissenting from denial of writ of certiorari); see also Stimmel, 879 F.3d at 206, 207 (“We hold that intermediate scrutiny is warranted for our review of [a statute prohibiting domestic violence offenders from having guns]” because the statute “places a substantial burden on [Second Amendment] right, but does not touch the Second Amendment’s core.”); Tyler, 837 F.3d at 691 (applying intermediate scrutiny to a Second Amendment challenge by a person who was involuntarily committed).
“Under intermediate scrutiny, the government must state a significant, substantial, or important objective and establish a reasonable fit between the challenged restriction and that objective.” Stimmel, 879 F.3d at 206, 207 (internal quotation marks omitted).
While curbing the spread of a virus may well qualify as “a significant, substantial, or important objective” of the government—in fact, the objective may be compelling—that alone does not end the inquiry. The government also has the burden of establishing a “reasonable fit” between the challenged restriction and its objective under intermediate scrutiny, see Stimmel, 879
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F.3d at 206, 207, or that the burden is narrowly tailored and the least restrict means of accomplishing that objective under strict scrutiny, see generally Seal v. Morgan, 229 F.3d 567, 574 (6th Cir. 2000) (“The Due Process Clause provides heightened protection against government interference with certain fundamental rights and liberty interests. Government actions that burden the exercise of those fundamental rights or liberty interests are subject to strict scrutiny, and will be upheld only when they are narrowly tailored to a compelling governmental interest.”) (internal quotations and citations omitted).
It is this latter burden that the government fails to satisfy (under strict or immediate scrutiny). See, e.g., Ezell, 651 F.3d at 709 (holding that a ban on gun ranges within a city violated the Second Amendment because “the City produced no empirical evidence whatsoever and rested its entire defense of the range ban on speculation about accidents and theft”).
Here, the Executive Order permits individuals to travel to pet stores to purchase food for their goldfish, to travel to a convenience store to purchase Lotto tickets, to travel to a grocery store to purchase ice cream, to travel to stores to purchase marijuana, among other exceptions, but Plaintiff Muise and other law-abiding Michigan residents are prohibited from traveling to gun stores/gun ranges to purchase firearms and ammunition and to train with them. This is, “beyond all question, a plain, palpable invasion of rights secured by the” Second Amendment to the U.S. Constitution and Article I, §6 of the Michigan Constitution.
3. Fourteenth Amendment. The Fourteenth Amendment provides, “No State shall . . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const., amend. XIV. In Meyer v. Nebraska, 262 U.S. 390 (1923), the Court addressed the question of “whether the statute as
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construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by
the Fourteenth Amendment.” Id. at 399. As stated by the Court:
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. . . . The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive but is subject to supervision by the courts.
Id. at 399-400 (emphasis added).
a. Due Process—Vagueness.
As stated by the Sixth Circuit:
We have recognized that the vagueness doctrine has two primary goals: (1) to ensure fair notice to the citizenry and (2) to provide standards for enforcement by police, judges, and juries. Columbia Natural Res. v. Tatum, 58 F.3d 1101, 1104 (6th Cir. 1995). With respect to the first goal, the Supreme Court has stated that “[a] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” Connally v. Gen. Constr. Co., 269 U.S. 385, 391 (1925) (cited in Tatum, 58 F.3d at 1105). With respect to the second goal, the Supreme Court stated that “if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis.” Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). The Court has also held that “the degree of vagueness that the Constitution tolerates . . . depends in part on the nature of the enactment.” Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). A more stringent test applies if the provision interferes with constitutional rights, and a less stringent test applies if the provision concerns civil rather than criminal penalties. Id. at 499.
Ass’n of Cleveland Fire Fighters v. City of Cleveland, 502 F.3d 545, 551 (6th Cir. 2007).
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As set forth in the Complaint and in this brief, the challenged measures of Executive Order 2020-42 “lack any rational basis, are arbitrary, capricious, and vague, have no real or substantial relation to the objectives of the order, and are a palpable invasion of rights secured by fundamental law in violation of the Due Process Clause of the Fourteenth Amendment.” (Compl. ¶ 58). The challenged measures are not simply suggestions—they are mandates that carry with them criminal penalties. There is no rational basis for permitting individuals to travel to purchase pet supplies, Lotto tickets, marijuana, or liquor, but prohibit individuals from travelling to purchase firearms or to visit their own cottages within the state. There is no rational basis for permitting out-of-state residents to travel to their cottages within the State but prohibiting Michigan residents to travel to their cottages within the State. There is no rational basis for designating and thus permitting some businesses as essential or critical infrastructure to operate—businesses such as pet stores, marijuana retailers, and liquor stores—but prohibiting firearms retailers or businesses that can operate safely, such as Plaintiff Cavanaugh’s landscaping business. There is no rational basis for permitting “places of worship” to operate but prohibiting immediate family members to meet at their private homes to pray as a family. Indeed, the below stated exceptions to intrastate travel “impermissibly delegate[] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis”:
1. To engage in outdoor physical activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.
* * * 6. To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.
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In the final analysis, the challenged measures of Executive Order 2020-42 violate the fundamental right to due process.
b. Due Process—Right to Travel. “[T]he Due Process Clause of the Fourteenth Amendment protects the ‘right to travel locally through public spaces and roadways.’” Cole v. City of Memphis, 839 F.3d 530, 535 (6th Cir. 2016) (quoting Johnson v. City of Cincinnati, 310 F.3d 484, 495 (6th Cir. 2002)). “To avoid [] disorder, state and local governments should be afforded some degree of flexibility to regulate access to, and use of, the publicly held instrumentalities of travel.” Id. at 536 (internal quotation marks and alterations omitted). To determine what degree of scrutiny to apply, the court looks to the severity of the restriction, comparable to First Amendment free speech tests. If a travel restriction regulates the time or manner of access to a place, it is subject to intermediate scrutiny. Id. at 537. If it broadly limits access, as in this case, it is subject to strict scrutiny. Id. In Cole v. City of Memphis, a statute cleared the streets in a two-block radius for two hours on weekend mornings and after special events. Id. at 538. The court determined that this is a narrow place restriction subject to intermediate scrutiny. Id. Because the city failed to show any conditions or potential conditions for the sweep during the specified times, the ordinance failed intermediate scrutiny. Id. at 539. In contrast, in Johnson v. City of Cincinnati, an ordinance prohibited individuals from entering certain drug-exclusion zones for up to 90 days if an individual was arrested or taken into custody in one of the zones for a drug related offense. Johnson, 310 F.3d at 487. Because the ordinance broadly prohibited individuals’ access to entire neighborhoods, the court applied strict scrutiny. Id. at 502. The court determined that the ordinance failed strict scrutiny because it
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broadly prohibited access to a large metropolitan district regardless of the reason for travel (it excluded innocent travel and travel to obtain drugs). Id. at 503.
Here, the executive order’s overly broad travel restriction cannot survive strict scrutiny, the highest scrutiny under the law, particularly in light of the exceptions permitted. See City of Hialeah, 508 U.S. at 547.
Regardless, the restriction fails intermediate scrutiny as well. The Sixth Circuit’s ruling in Saieg v. City of Dearborn, 641 F.3d 727 (6th Cir. 2011), further demonstrates this point. In Saieg, the court struck down a content-neutral restriction on leafletting, applying intermediate scrutiny and concluding as follows:
Even though the leafleting restriction is content neutral and might provide ample alternative means of communication, the policy is not a reasonable time, place, and manner restriction. Within the inner perimeter, the restriction does not serve a substantial governmental interest, as evidenced by the defendants’ willingness to permit sidewalk vendors and ordinary pedestrian traffic on the same sidewalks where they prohibited Saieg from leafleting. Saieg, 641 F.3d at 740-41 (emphasis added). The same is true here. The challenged measures of Executive Order 2020-42 fail intermediate scrutiny because they do not serve a substantial government interest as evidenced by Defendant Whitmer’s willingness to make numerous and irrational exceptions to the restrictions—exceptions which we have recounted repeatedly throughout this brief.
c. Due Process—Right to Property. Plaintiffs own real property in this State—their cottages. Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 (1982) (“The hallmark of property . . . is an individual entitlement grounded in state law.”). Executive Order 2020-42 deprives Plaintiffs of their cognizable property interest in the quiet use and enjoyment of their real property in violation of the Fourteenth Amendment. See Arill v. Maiz, 992 F. Supp. 112, 117 (D.P.R. 1998) (holding that
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the complaint fully alleged a due process claim under § 1983 based on the deprivation of a cognizable property interest in the plaintiffs’ quiet use and enjoyment of their property).
d. Equal Protection. When the government treats an individual disparately “as compared to similarly situated persons and that such disparate treatment . . . burdens a fundamental right, targets a suspect class, or has no rational basis,” such treatment violates the equal protection guarantee of the Fourteenth
Amendment. Bible Believers v. Wayne Cnty., 805 F.3d 228, 256 (6th Cir. 2015) (internal
quotations and citation omitted). “In determining whether individuals are ‘similarly situated,’ a court should not demand exact correlation, but should instead seek relevant similarity.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 987 (6th Cir. 2012) (internal quotation marks omitted).
As set forth in this brief, the challenged measures of Executive Order 2020-42 burden fundamental rights (First and Second Amendments and Due Process right to travel) in violation of the equal protection guarantee of the Fourteenth Amendment. Similarly, as set forth in this brief, the challenged measures lack any rational basis and harm Plaintiffs’ interests in violation of the Equal Protection Clause of the Fourteenth Amendment. See supra.
4. Contract Clause. Executive Order 2020-42 has substantially impaired the contracts between Plaintiff Cavanaugh and his clients, in violation of the Contracts Clause of the United States Constitution. This impairment will continue absent declaratory and injunctive relief. In fact, Plaintiff Cavanaugh is suffering irreparable harm because it is not possible for him to recoup his lost business and revenue due to the nature of his business—the early Spring has come and gone.
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Under the United States Constitution, a State governor cannot substantially impair a private citizen’s contractual obligations, particularly when fulfilling the contracts, as is the case with Plaintiff Cavanaugh’s landscaping business, poses no harm to public health and safety. The Contracts Clause of the United States Constitution states, “No State shall . . . pass any . . . Law impairing the Obligation of Contracts[.]” U.S. Const. Art. I, § 10. “It long has been established that the Contracts Clause limits the power of the States to modify their own contracts as well as to regulate those between private parties.” U.S. Trust Co. of N.Y. v. N.J., 431 U.S. 1, 17 (1977) (citing Dartmouth Coll. v. Woodward, 17 U.S. 518 (1819); Fletcher v. Peck, 10 U.S. 87 (1810)).
In its most recent decision addressing the Contracts Clause, the United States Supreme Court reaffirmed its long-standing two-part analysis of state laws that impair private contracts:
To determine when such a law crosses the constitutional line, this Court has long applied a two-step test. The threshold issue is whether the state law has operated as a substantial impairment of a contractual relationship. In answering that question, the Court has considered the extent to which the law undermines the contractual bargain, interferes with a party’s reasonable expectations, and prevents the party from safeguarding or reinstating his rights. If such factors show a substantial impairment, the inquiry turns to the means and ends of the legislation. In particular, the Court has asked whether the state law is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose. Sveen v. Melin, 138 S. Ct. 1815, 1821-22 (2018) (internal citations and quotation marks omitted). In the instant case, Defendant Whitmer’s executive order goes to the heart of Plaintiff Cavanaugh’s contractual bargain with his clients, entirely interferes with the parties’ contractual expectations, and, given the nature of the seasonal landscape services lost ($25,000 for spring cleanups, $12,000 for fertilizing for first round preemergent, $30,000 for mowing for the month of April, and $35,000 for landscape installs), Plaintiff Cavanaugh’s business will never be able to recoup these losses. In fact, he is losing approximately $5,000 to $6,000 each day this order is in
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effect. (Cavanaugh Decl. ¶ 6). Quite simply, as to these current contractual obligations, the impairment is not only substantial, but also permanently so. The harm is irreparable.
While Plaintiff Cavanaugh understands and accepts the state’s legitimate exercise of its police power to protect its residents from the current pandemic as a “significant and legitimate public purpose,” the executive order challenged here with regard to his landscape business is patently inappropriate and unreasonable given the exceptions granted under the order. Id. For example, individuals may walk their dogs and take leisurely walks in public provided they safeguard social distancing measures recommended by the Centers for Disease Control and Prevention. Indeed, under Defendant Whitmer’s orders, as explained by her Frequently Asked Covid-19 Questions website, Michiganders may not only walk their dogs in public, they are permitted to train them on state lands. (See https://www.michigan.gov/coronavirus/0,9753,7406-98810-523919--,00.html). Plaintiff Cavanaugh’s landscape employees are no less capable of safeguarding social distancing than individuals walking or training their dogs. In addition, metro parks are open and maintained to allow individuals to utilize the space for leisure and exercise. (See https://www.michigan.gov/coronavirus/0,9753,7-406-98810-523725--,00.html). Yet, private Michigan homeowners are not permitted to allow Plaintiff Cavanaugh to maintain their lawns for leisure and exercise.
In sum, Plaintiff Cavanaugh is suffering irreparable harm and is entitled to the injunctive relief sought here. See generally Welch v. Brown, 551 F. App’x 804 (6th Cir. 2014) (upholding the district court’s grant of a preliminary injunction, concluding, in part, that the district court did not abuse its discretion in finding that the workers had demonstrated a likelihood of success on the merits of their Contract Clause claim because the defendants’ modifications impaired provisions of their contracts and collective bargaining agreements; that the district court’s
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finding that the workers would suffer irreparable harm in the absence of a preliminary injunction was not clearly incorrect; and the district court did not abuse its discretion by issuing the preliminary injunction, even though factors of harm to others and public interest were split).
B. Irreparable Harm to Plaintiffs without the TRO/Preliminary Injunction. The loss of a constitutional right, “for even [a] minimal period[ ] of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). As stated by the Sixth Circuit, “when reviewing a motion for preliminary injunction, if it is found that a constitutional right is being threatened or impaired, a finding of irreparable injury is mandated.” Bonnell v. Lorenzo, 241 F.3d 800, 809 (6th Cir. 2001) (emphasis added); see also Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“The Supreme Court has unequivocally admonished that even minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.”) (citing Elrod). Because “a constitutional right is being threatened or impaired” in this case, “a finding of irreparable injury is mandated.” C. Whether Granting the TRO/Preliminary Injunction Will Cause Substantial
Harm to Others. In this case, the likelihood of irreparable harm to Plaintiffs is substantial. In fact, such a finding is “mandated.” See supra. Moreover, Plaintiffs are adhering to the social distancing measures recommended by the Centers for Disease Control and Prevention, thereby mitigating the harm to Defendants’ objectives. Indeed, as noted above, it is the government that has the burden of justifying the challenged restrictions on Plaintiffs’ fundamental liberties protected by the United States and Michigan Constitutions. If Defendants are restrained from enforcing the challenged measures of Executive Order 2020-42, particularly as applied to Plaintiffs, neither Defendants nor the general public will
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suffer harm because Plaintiffs’ activities create less of a risk of spreading COVID-19 than other similar activities expressly permitted by the order. For example, Executive Order 2020-42 permits Plaintiffs Beemer and Cavanaugh to travel to Charlevoix County to buy groceries, purchase gas, purchase food for their pets, purchase marijuana, purchase Lotto tickets, order curbside takeout from a local restaurant, or walk on the public sidewalks. Yet, if they engage in similar travel to go to their cottages, property which they own, it is a crime. Similarly, Plaintiff Muise could travel to various businesses, including a pet store to buy food for a goldfish, but he couldn’t travel to a gun shop to purchase a firearm or ammunition. The executive order permits businesses such as abortion centers, pet stores, and marijuana businesses to remain open, but prohibits Plaintiff Cavanaugh from operating his outdoor landscaping business, causing substantial and irreparable harm and financial loss to him and his employees.
In the final analysis, the irreparable harm to Plaintiffs outweighs the harm to Defendants’ objectives.
D. The Impact of the TRO/Preliminary Injunction on the Public Interest. As stated by the Sixth Circuit, “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc., 23 F.3d at 1079; see also Dayton Area Visually Impaired Persons, Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (stating that “the public as a whole has a significant interest in ensuring equal protection of the laws . . .”). As noted previously, Defendants’ enforcement of Executive Order 2020-42 criminalizes liberties protected by the United States and Michigan Constitutions. It is in the public interest to issue the TRO/preliminary injunction.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant this motion.
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Case 1:20-cv-00323-PLM-PJG ECF No. 8 filed 04/20/20 PageID.88 Page 32 of 34 Respectfully submitted, AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849) /s/ David Yerushalmi David Yerushalmi, Esq. Attorneys for Plaintiffs
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Case 1:20-cv-00323-PLM-PJG ECF No. 8 filed 04/20/20 PageID.89 Page 33 of 34 CERTIFICATE OF COMPLIANCE WITH LOCAL RULES
I hereby certify that this brief contains 9,145 words, exclusive of the case caption, cover sheets, any table of contents, any table of authorities, the signature block, attachments, exhibits, and affidavits, and is thus within the word limit allowed under Local Civil Rule 7.2(b)(i). The word count was generated by the word processing software used to create this brief: Word for Microsoft Office 365, Version 1904.
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq.
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Case 1:20-cv-00323-PLM-PJG ECF No. 8 filed 04/20/20 PageID.90 Page 34 of 34 CERTIFICATE OF SERVICE
I hereby certify that on April 20, 2020, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the court’s electronic filing system. Parties may access this filing through the court’s system.
I further certify that a copy of the foregoing will be sent this day via email to the following parties or counsel who have yet to enter an appearance electronically:
Defendant Telgenhof via email to Attorney Bryan Graham at bgraham@upnorthlaw.com. Defendant Vailliencourt via email to BVailliencourt@livgov.com Defendant Mackie via email to Attorney Michelle Billard at billardm@washtenaw.org
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq.
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Case 1:20-cv-00323-PLM-PJG ECF No. 8-1 filed 04/20/20 PageID.91 Page 1 of 3
EXHIBIT 1

Case 1:20-cv-00323-PLM-PJG ECF No. 8-1 filed 04/20/20 PageID.92 Page 2 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, ANd ROBERT MUISE,
Plaintiffs.

No. 1:20-cv-00323

V.
GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN
TELGENHOF, in his official capacity as
Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

Hon. Paul L. Maloney

DECLARATION OF PLAINTIFF KIMBERLY BEEMER

I, Kimberly Beemer, make this declaration pursuant to 28 U.S.C. S 1746 and based on my

personal knowledge and upon information and belief where noted.

l.

I am an adult citizen of the United States, and I reside in Saginaw, Michigan.

2. I am an afforney licensed to practice law in Michigan.

3. I own a cottage in East Jordan, Michigan, which is in Charlevoix County.

4. I, along with members of my household, frequently travel to my cottage. I would

often leave from my primary residence in Saginaw and travel to the cottage on a Thursday,

remaining at the cottage over the weekend and returning late on Sunday or early Monday morning.

My cottage is a second home, and it is my private retreat from the daily grind of my law practice.
5. Under Executive Order 2020-42, if I were to travel to the cottage, I would be subject

to prosecution for violating the executive order. A "willful violation" is a misdemeanor. Not only will this harm me personally, but it will likely harm me professionally in that it could adversely

impact my law practice, which I have worked hard to develop. Upon information and belief,
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Govemor Whitmer was quoted in the news on or about April 1 ,2020, as follows: "You know, just about every business in the state has some sort of license, from the state of Michigan or not, and

so we've encouraged them not to play fast and loose with this order because their licenses could

be in jeopardy as a result." I am licensed by the State Bar of Michigan to practice law.
6. As a result of Executive Order 2020-42, my family members and I have ceased

travelling to the cottage, thereby denying me the use and enjoyment of my private property. I have

no recourse for this deprivation other than seeking relief in this Court.

7 .

There is little to no chance that I would cause the spread of COVID- l9 by travelling

with members of my household from my residence in Saginaw to my cottage in Charlevoix

County. In fact, my family members and I are more isolated at my cottages than when we are at

my primary residence in Saginaw.
8. Additionally, my family and I enjoy boating on Lake Charlevoix. However, the

Govemor's executive order has now prohibited this activity. Under Executive Order 2020-42, Govemor Whitmer expressly permits kayaking or canoeing, but she arbitrarily prohibits the use of

boats with motors.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

coffect.

Executed onthe4!-day of Apri 12020.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.94 Page 1 of 10
EXHIBIT 2

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.95 Page 2 of 10

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,
Plaintiffs,

No. 1:20-cv-00323

v.
GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

Hon. Paul L. Maloney

DECLARATION OF PLAINTIFF PAUL CAVANAUGH I, Paul Cavanaugh, make this declaration pursuant to 28 U.S.C. § 1746 and based on my personal knowledge and upon information and belief where noted. 1. I am adult citizen of the United States, and I reside in Brighton, Michigan. 2. I own a cottage in Charlevoix County, Michigan. I also own and operate a landscaping business, Cavanaugh’s Lawn Care LLC, which is located in Livingston County, Michigan. 3. Members of my household and I frequently travel to my cottage. It is a family tradition to spend Easter at the cottage. 4. Under Executive Order 2020-42, if I were to travel to my cottage, I would be subject to prosecution for violating the executive order. A “willful violation” is a misdemeanor. As a result, I have ceased visiting my cottage and have thus been denied the use and enjoyment of my private property by the government. Indeed, as a result of Executive Order 2020-42, my family

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and I had to cancel our Easter tradition. I have no recourse for this deprivation of my property rights other than seeking relief in this Court.
5. There is little to no chance that I would cause the spread of COVID-19 by travelling with members of my household from my residence in Brighton to my cottage in Charlevoix County. In fact, we are more isolated at my cottage than when we are at my home in Brighton.
6. For the past ten years, I have worked hard to develop and expand my landscaping business. As a result of Governor Whitmer’s executive orders, my company came to an abrupt halt. The early spring brought an early start to the season. Eleven of my fulltime employees had returned to work for two weeks before the shutdown. One additional, fulltime employee was returning from a trip abroad. I had high hopes of getting ahead of the workload and having a normal start to the season. As a result of the Governor’s shutdown of my business, I am unable to perform my obligations under existing contracts and as a direct result missed out on approximately $25,000 for spring cleanups, $12,000 for fertilizing for first round preemergent, $30,000 for mowing for the month of April, and $35,000 for landscape installs. In fact, my business has been losing approximately $5,000 to $6,000 a day in revenue. The lost revenue is impossible to replace.
7. Eighty percent of my business is contract work with existing customers. Consequently, Governor Whitmer’s executive orders, specifically including Executive Order 2020-42, have substantially impaired my contract obligations. A true and correct copy of my standard contract is attached to this declaration as Exhibit A.
8. There is little to no chance that my landscaping business will spread COVID-19. My employees practice social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the employee’s household. The business is an outdoor business, which can operate without any
- 2 -

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.97 Page 4 of 10

personal contact with customers and with minimal to no contact between employees. Indeed. there

is far less likelihood of my business spreading COVID-19 than other businesses that the Governor

permits under her executive orders. specifically including hardware stores, grocery stores. gas

stations, marijuana businesses, and pet stores.

9. Upon information and belief (I have a close friend who is doing the landscaping

work at the park), individuals are permitted to work on the grounds at Kensington Metro Park.

These individuals are mowing the grass, cleaning up, spreading mulch, and pruning, among other

types of landscaping work.

10. During my free time, which I now have in abundance due to the fact that Governor

Whitmer's executive orders have shut down my business, I enjoy time with my son fishing in my

boat on Lake Charlevoix. However, the Governor's executive order has now stripped that away

from me as well. Under Executive Order 2020-42, Governor Whitmer expressly permits kayaking

or canoeing. but she arbitrarily prohibits the use of boats with motors.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and

correct.

Executed on the a.a~ _ day of April 2020.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.98 Page 5 of 10
EXHIBIT A

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.99 Page 6 of 10
Cavanaugh's Outdoor Services
P.O Box 511 Brighton, MI 48116 (586) 201-9952 cavanaughlawn@gmail.com
Full Service Landscape Contract
This contract describes the terms and conditions of the agreements made between the parties known as: Cavanaugh’s Lawn Care and Outdoor Services And

Please Initial next to each service you would like us to provide (highlighted in yellow below).

Mowing Services

During the growing season (running from the third week in April through the end of October) weekly

lawn service will include:

1. Mowing of all grass areas.

2. Trimming of all grass areas.

3. Blowing of grass clippings from driveway, sidewalk, porches, and landscape beds

4. Edging done as needed or as otherwise specified by the customer.

Please be aware that extra charges will apply for double and triple cuts.

Initial:

Price:

Lawn Fertilization and Weed Control The number of applications selected is at the client’s discretion (Recommended is 5 with Grub Control).
Application 1 Provided April through early May. A granular fertilizer will be applied with pre-emergent crabgrass and the lawn will be sprayed for post-emergent broadleaf weed control. Initial: Price:

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.100 Page 7 of 10

Application 2 Provided middle of May through early June. A granular fertilizer will be applied and the lawn will be sprayed for post-emergent broadleaf weed control. Initial: Price:

Application 3

Provided June through early July. A granular fertilizer will be applied and the lawn will be sprayed for

post-emergent broadleaf weed control.

Initial:

Price:

Application 4

Provided late July through early August. A granular fertilizer will be applied and the lawn will be

sprayed for post-emergent broadleaf weed control.

Initial:

Price:

Application 5

Provided late August through early September. A granular fertilizer will be applied and the lawn will be

sprayed for post-emergent broadleaf weed control.

Initial:

Price:

Application 6

Provided October through November. A granular fertilizer will be applied for winter feeding which

promotes root development and faster green appearance in the spring. The lawn will be sprayed for post-

emergent broadleaf weed control.

Initial:

Price:

Grub and Insect Control

This application is separate from the lawn fertilization and weed control program. An application of grub

and insect control will be provided throughout the growing season with timing based on the targeted pest.

Initial:

Price:

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.101 Page 8 of 10
Landscape Maintenance Services
Shrub and Hedge Trimming 1. Pruning of all specified plant material. 2. Removal of clippings from landscape beds by raking or blowing.
Initial: .
Landscape Bed and Weed Control 1. Application of pre-emergence weed killers (as requested). 2. Mechanical removal of all weeds and unwanted plant material from bed areas.
Initial: .
Mulch Installation 1. Mulch installed to all existing bed areas with type and color as specified by the client. 2. Mulch thickness will be agreed upon prior to installation (2 inches recommended)
Initial: .
Spring Cleanup 1. All leaves, sticks, paper, and other debris will be removed from all landscape beds. 2. Lawn will be vacuumed and cut. 3. All annuals will be removed from landscape beds. 4. Perennials will be cut back to necessary heights.
Initial:
Fall Cleanup 1. All leaves, sticks, paper, and other debris will be removed from all landscape beds. 2. Lawn will be vacuumed and cut. 3. All annuals will be removed from landscape beds. 4. Perennials will be cut back to necessary heights.
Initial: .

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.102 Page 9 of 10

Tear Out/Installation of Landscape 1. The tear out of specified landscape areas will be conducted with proper equipment. 2. Waste materials will be properly hauled from property. 3. Landscapes will be installed, including grading, mulch or rock installation, boulder installation, plant installation, edging, and any other specified services
Initial: .

Turf/Sod Installation and Re-Seeding 1. Area will be graded properly in preparation for sod, turf, or seed. 2. Seed will be covered with proper materials to ensure success.
Initial: .

Thatching 1. 2.
Initial:

Completed with power rake. Thatch is vacuumed and removed from property. .

The following contract is a thorough breakdown of the services we are able to provide for your property based on your requests made, and our evaluation. Please keep in mind that each service is broken down separately, and you have the option to pick and choose the best service options based on your needs. Our goal is to work with our clients and provide our clients with the most presentable property possible within the necessary budget.
Please sign and return via USPS or email by March 21th. Please provide an active and reachable email below. All invoices that are mailed via USPS will have an additional $5 office charge starting in 2020.
I have read and understand the full contract. I accept the terms and conditions of this agreement.
Date of Acceptance:

Customer Name Printed:

Customer Signature:

Customer Email:

Terms and Conditions

Case 1:20-cv-00323-PLM-PJG ECF No. 8-2 filed 04/20/20 PageID.103 Page 10 of 10
1. Obligations of the Contractor The contractor shall provide all labor, equipment, and supplies required to perform the agreed services into properly maintain all equipment so that work is performed timely and in a professional standard. The contractor shall carry insurance and have all valid licenses that may be required by law to perform the services outlined in this contract. If services cannot be carried out by the contractor for given reasons, such services will be rescheduled as soon as possible by mutual agreement. 2. Obligations of the Client The client need not be present during the time the property is serviced and hereby grants permission to the contractor to access the property in order to perform the services on scheduled service days, or otherwise agreed service days. The client shall be responsible for the removal of any objects, toy furniture, pet waste, rubbish, etc. that will hinder the contractor in performing these services. The contractor will not be held responsible for any damages caused to the property due to the client not removing any of above listed items. The client shall keep all pets secured inside a building, or fenced area and shall keep people away from the contractor’s area of work for the safety of both parties concerned in this contract. The client shall be responsible for the day-to-day care of the property as recommended by the contractor. 3. Liability The contractor shall not be liable for damage two items on or below the lawn surface which are not clearly visible or marked such as; cables, wires, pipes, or sprinkler components improperly installed less than 6 inches below ground level. The contractor shall not be liable for the poor health or lack of performance of turf or plants beyond the scope of services contracted for, or in any event where the client does not provide appropriate or proper care for turf or plants. The contractor shall not be liable for any injuries or bodily harm to the client or third parties that enter the property prior to the precautionary warnings posted after herbicide or pesticide applications. The client shall not be liable for any damage to the contractor’s equipment or injury or illness sustained by the contractor and his/her employees during the performance of the services. The contractor shall be liable for any damage to the lawn or plans due to careless operation of equipment or the incorrect application of pesticides, herbicides, or fertilizers. 4. Service Agreement The contractor will provide lawn service on a weekly basis during the growing season which typically runs from the third week in April through the end of October. Season length may vary due to weather. Fertilization and herbicide applications will be scheduled every 4 to 6 weeks based on the number of applications the client agrees on. The client is to be aware that weather conditions such as rain may cause a delay of service. The client understands that mowing services are automatic regardless of grass length and that a Cavanaugh ‘s Lawn Tech will make the determination to not perform a service due to the lack of growth. 5. Payment Invoicing is done on a monthly basis and is due within 15 days of the statement date. A late fee of 5% will be charged on all outstanding balances not paid within 30 days of the statement date. Costs associated with collection of any unpaid balances will be the responsibility of the client including reasonable fees associated with the collection of such debt. 6. Termination This agreement is effective on the date signed by the client and may be cancelled by the client or contractor by giving notice at least 48 hours prior to the next scheduled visit.

Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.104 Page 1 of 60
EXHIBIT 3

Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.105 Page 2 of 60

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,
Plaintiffs,

No. 1:20-cv-00323

v.
GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

Hon. Paul L. Maloney

DECLARATION OF PLAINTIFF ROBERT MUISE I, Robert Muise, make this declaration pursuant to 28 U.S.C. § 1746 and based on my personal knowledge and upon information and belief where noted. 1. I am an adult citizen of the United States, and I reside in Superior Township, Michigan, which is in Washtenaw County. 2. Upon information and belief, on March 24, 2020, Michigan Governor Gretchen Whitmer issued Executive Order 2020-21, which was described as a “[t]emporary requirement to suspend activities that are not necessary to sustain or protect life.” A true and correct copy of this order can be found at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626-,00.html. 3. Upon information and belief, on April 9, 2020, Governor Whitmer issued Executive Order 2020-42, which “reaffirm[ed] the measures set forth in Executive 2020-21, clarif[ied] them, and extend[ed] their duration to April 30, 2020.” The executive order took effect “on April 9, 2020 at 11:59 pm.” When Executive Order 2020-42 took effect, it rescinded Executive Order
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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.106 Page 3 of 60
2020-21. A true and correct copy of Executive Order 2020-42 is found at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html and attached to this declaration as Exhibit A.
4. Upon information and belief, Governor Whitmer permits marijuana businesses to remain open during this pandemic. Pursuant to the Michigan Marijuana Regulatory Agency, because Secretary of State offices are closed and “individuals may not be able to renew their driver’s licenses or government-issued identification cards while the Executive Order is in effect . . , licensed provisioning centers and adult-use retailers are temporarily allowed to sell or transfer marijuana to a patient, caregiver, or customer who has an expired driver license or governmentissued identification card during home delivery and curbside sales.” See https://www.michigan.gov/documents/lara/Verifying_ID_and_Sales_of__Marijuana_in_Respons e_to_COVID-19_684786_7.pdf., a copy of which is attached to this declaration as Exhibit B.
5. I served as an officer on activity duty in the United States Marine Corps for thirteen years. I was an infantry officer, I am a veteran of Operations Desert Shield and Desert Sword, and I trained with 42 Commando, British Royal Marines. I resigned my commission as a Major in 2000.
6. I possess a valid Michigan Concealed Pistol License. I am professionally trained in the use of firearms, I legally own firearms, and I am a staunch defender of the Second Amendment, which constitutionally guarantees me the right to bear arms for self-defense, defense of my family, and for the defense of a free State. I also use firearms to hunt in Michigan and in other States.
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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.107 Page 4 of 60

7. To support my right to bear arms, which necessarily includes my right to purchase

firearms and ammunition, I patronize local gun shops, including a gun shop located in Washtenaw

County.

8. Executive Order 2020-42 orders all nonessential businesses and activities to cease.

Though this order exempts “critical infrastructure,” Governor Whitmer references an outdated list

of such industries (issued March 19, 2020) rather than the most current federal guidance (issued

March 28, 2020) that designates firearm and ammunition retailers as critical. This deliberate action

effectively makes gun stores and firing ranges nonessential. (See Exhibit A [Executive Order

2020-42 at 10/19 (citing March 19, 2020 guidance and stating, “This order does not adopt any

subsequent guidance document released by this same agency.”)]).

9. Upon information and belief, a true and accurate copy of the federal guidance on

“Essential Critical Infrastructure Workforce” issued by the U.S. Department of Homeland

Security’s Cybersecurity and Infrastructure Security Agency on March 19, 2020, is attached to this

declaration as Exhibit C and can be found at https://content.ndia.org/-

/media/Sites/Press%20Media/CISA-Guidance-on-Essential-Critical-Infrastructure-Workers-1-

20-508c.ashx?la=en.

10. Upon information and belief, a true and accurate copy of the federal guidance on

“Essential Critical Infrastructure Workforce” issued by the U.S. Department of Homeland

Security’s Cybersecurity and Infrastructure Security Agency on March 28, 2020, is attached to this

declaration

as

Exhibit

D

and

can

be

found

at

https://www.cisa.gov/sites/default/files/publications/Version_3.0_CISA_Guidance_on_Essential

_Critical_Infrastructure_Workers_2.pdf.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.108 Page 5 of 60
11. Per the March 28, 2020 guidelines, “Workers supporting the operation of firearm, or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” are considered part of the “Essential Critical Infrastructure Workforce.” (See Exhibit D at 8/19).
12. Accordingly, Executive Order 2020-42 also bans travel to gun stores or gun ranges since the businesses are not considered essential or “critical.” However, the order permits individuals to travel to buy food for a pet, marijuana, Lotto tickets, or liquor, among other exceptions.
13. As a result of Executive Order 2020-42, it makes it a crime for me to travel to a gun shop to purchase a firearm or ammunition or to travel to a firing range to train with a firearm.
14. Due to the panic caused by the pandemic, and the unemployment, loss of income, poverty, and uncertainty caused by Governor Whitmer’s executive orders, owning and possessing firearms is critically important at this time.
15. My wife and I have been blessed with twelve children and ten grandchildren (with two more grandchildren expected by June). Three of my adult children are married and reside locally in homes they own in Michigan, and two of my adult children reside locally in rental properties in Michigan. My other seven children reside at my home in Superior Township.
16. On most Sundays and Holy Days, my family would gather at my home for a meal, fellowship, and prayer.
17. My family and I are devout Catholics. Because of COVID-19, there are no public Masses in the Lansing Diocese. However, Jesus Christ taught that where two or more gather in His name, He is present. (See Matthew 18:20). I would like my family to gather together on Sundays and other Holy Days to associate for a meal, fellowship, and prayer, and thus gather as a family in Christ’s name. During these gatherings, my family members and I would adhere to social
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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.109 Page 6 of 60 distancing measures recommended by the Centers for Disease Control and Prevention. However, under the measures set forth in Executive Order 2020-42, it is now a crime in Michigan to engage in such family associations and gatherings.
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on the 20th day of April 2020. ________________________ Robert J. Muise
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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.110 Page 7 of 60
EXHIBIT A

4/13/2020 Case 1:20-cv-00323-PLM-PJG EWChFitmNero-.E8xe-c3utifvieleOdrde0r420/2200-4/22 0(COVPIDa-1g9e) ID.111 Page 8 of 60 OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF

GOVERNOR GRETCHEN



WHITMER

WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-42 (COVID-19)

EXECUTIVE ORDER 2020-42 FAQs

EXECUTIVE ORDER

No. 2020-42

Temporary requirement to suspend activities that are not necessary to sustain or protect life

Rescission of Executive Order 2020-21





The novel coronavirus (COVID-19) is a respiratory disease that can result in

serious illness or death. It is caused by a new strain of coronavirus not

previously identi ed in humans and easily spread from person to person.

There is currently no approved vaccine or antiviral treatment for this

disease.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

1/19

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On March 10, 2020, the Michigan Department of Health and Human Services identi ed the rst two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, con rmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement
 through “executive orders, proclamations, and directives having the force
and e ect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the a ected area under control.” MCL 10.31(1).

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

2/19

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To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. The order limited gatherings and travel, and required workers who are not necessary to sustain or protect life to stay home.
The measures put in place by Executive Order 2020-21 have been e ective, but this virus is both aggressive and persistent: on April 8, 2020, Michigan reported 20,346 con rmed cases of COVID-19 and 959 deaths from it. To win this ght, and to protect the health and safety of our state and each other, we must be just as aggressive and persistent. Though we have all made sacri ces, we must be steadfast. Accordingly, with this order, I nd it reasonable and necessary to rea rm the measures set forth in Executive Order 2020-21, clarify them, and extend their duration to April 30, 2020. This order takes e ect on April 9, 2020 at 11:59 pm. When this order takes e ect, Executive Order 2020-21 is rescinded.

 Actingunder the Michigan Constitution of 1963 and Michigan law, I order the
following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

3/19

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2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.

3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.

4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.

a. For purposes of this order, workers who are necessary to sustain or protect life are de ned as “critical infrastructure workers,” as described in sections 8 and 9 of this order.





b. For purposes of this order, workers who are necessary to conduct

minimum basic operations are those whose in-person presence is

strictly necessary to allow the business or operation to maintain the

value of inventory and equipment, care for animals, ensure security,

process transactions (including payroll and employee bene ts), or

facilitate the ability of other workers to work remotely.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

4/19

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Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers may continue in-person operations, subject to the following conditions:
a. Consistent with sections 8 and 9 of this order, businesses and operations must determine which of their workers are critical infrastructure workers and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate
 means. Workers need not carry copies of their designations when they
leave the home or place of residence for work. Businesses and operations need not designate:
1. Workers in health care and public health.

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

5/19

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2. Workers who perform necessary government activities, as described in section 6 of this order.

3. Workers and volunteers described in section 9(d) of this order.

b. In-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume.

c. Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 10 of this order. Stores that are open to the public must also adhere to the rules described in section 11 of this order.

6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are necessary to sustain or protect life, are suspended.
 
a. For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and rst responders.

b. Such activities also include, but are not limited to, public transit, trash pick-up and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

6/19

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enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.

c. For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.

d. Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 10 of this order.

7. Exceptions.

a. Individuals may leave their home or place of residence, and travel as necessary:

1. To engage in outdoor physical activity, consistent with

remaining at least six feet from people from outside the

individual’s household. Outdoor physical activity includes



 walking, hiking, running, cycling, kayaking, canoeing, or other

similar physical activity, as well as any comparable activity for

those with limited mobility.

2. To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)

https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html

7/19

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3. To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.

4. To perform necessary government activities, as described in section 6 of this order.

5. To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).

6. To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.





A. Individuals must secure such services or supplies via delivery to the

maximum extent possible. As needed, however, individuals may leave

the home or place of residence to purchase groceries, take-out food,

gasoline, needed medical supplies, and any other products necessary to

maintain the safety, sanitation, and basic operation of their residences.

Individuals may also leave the home to drop o a vehicle to the extent

permitted under section 9(i) of this order.

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B. Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
7. To care for a family member or a family member’s pet in another household.
8. To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
9. To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
10. To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
 
11. To work or volunteer for businesses or operations (including both religious and secular nonpro t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.

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9/19

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12. To attend a funeral, provided that no more than 10 people are in attendance at the funeral.

b. Individuals may also travel: 1. To return to a home or place of residence from outside this state. 2. To leave this state for a home or residence elsewhere.

3. Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.

4. As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.

c. All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and
 Infrastructure Security Agency in his guidance of March 19, 2020 on the
COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.

Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:

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10/19

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a. Health care and public health.

b. Law enforcement, public safety, and rst responders.

c. Food and agriculture.

d. Energy.

e. Water and wastewater.

f. Transportation and logistics.

g. Public works.
 h. Communications and information technology, including news media.

i. Other community-based government operations and essential functions.

j. Critical manufacturing.
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11/19

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k. Hazardous materials.

Financial services.

m. Chemical supply chains and safety.

Defense industrial base.

9. For purposes of this order, critical infrastructure workers also include:

a. Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of workers required to perform in-person work as permitted under this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.





b. Workers at suppliers, distribution centers, or service providers, as described below.

1. Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may

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12/19

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designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.

2. Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.

3. Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.

 4. Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.

c. Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.

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13/19

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d. Workers and volunteers for businesses or operations (including both religious and secular nonpro t organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.

e. Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the wellbeing and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.

f. Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.

g. Workers at laundromats, coin laundries, and dry cleaners.
 h. Workers at hotels and motels, provided that the hotels or motels do not
o er additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.

i. Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person tra c.

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14/19

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10. Businesses, operations, and government agencies that continue inperson work must adhere to sound social distancing practices and measures, which include but are not limited to:

a. Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.

b. Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s, operation’s, or government agency’s critical infrastructure functions or its minimum basic operations.

c. Promoting remote work to the fullest extent possible.

d. Keeping workers and patrons who are on premises at least six feet from

one another to the maximum extent possible.



e. Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.

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15/19

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f. Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a con rmed diagnosis of COVID-19.

g. Any other social distancing practices and mitigation measures recommended by the CDC.

11. Any store that remains open for in-person sales under section 5 or 9(f) of this order must:

a. Establish lines to regulate entry in accordance with subsections (c) and (d) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.

b. Consider establishing curbside pick-up to reduce in-store tra c and mitigate outdoor lines.





c. For stores of less than 50,000 square feet of customer oor space, limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local re marshal.

d. For stores of more than 50,000 square feet:

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16/19

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1. Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer oor space. The amount of customer oor space must be calculated to exclude store areas that are closed under subprovision (2) of this subsection.

2. Close areas of the store—by cordoning them o , placing signs in aisles, posting prominent signs, removing goods from shelves, or other appropriate means—that are dedicated to the following classes of goods:

A. Carpet or ooring.

B. Furniture.

C. Garden centers and plant nurseries.

D. Paint.



3. By April 13, 2020, refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.

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17/19

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4. Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.

e. The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in subsections (c) and (d) of this section as necessary to protect the public health.

12. No one shall advertise or rent a short-term vacation property except as necessary to assist in housing a health care professional or volunteer aiding in the response to the COVID-19 crisis.

13. Nothing in this order should be taken to supersede another executive order or directive that is in e ect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 17 of this order.





14. Nothing in this order should be taken to interfere with or infringe on the

powers of the legislative and judicial branches to perform their

constitutional duties or exercise their authority.

15. This order takes e ect on April 9, 2020 at 11:59 pm and continues through April 30, 2020 at 11:59 pm. When this order takes e ect,

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18/19

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Executive Order 2020-21 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
16. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether su cient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health-care workforce; (4) the state’s capacity to test for COVID-19 cases and isolate infected people; and (5) economic conditions in the state.
17. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.

MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES
COPYRIGHT 2020 STATE OF MICHIGAN

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19/19

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EXHIBIT B

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ADVISORY BULLETIN
April 10, 2020 Supersedes March 24, 2020
Verifying ID and Marijuana Sales in Response to Governor Whitmer’s “Stay Home, Stay Safe” Executive Order (Updated: April 10, 2020)
In accordance with Governor Whitmer’s “Stay Home, Stay Safe” Executive Order 2020-21, the Marijuana Regulatory Agency (MRA) is taking proactive steps to ensure medical marijuana patients, caregivers, and adult-use customers continue to have access to safety-tested products.
Pursuant to the MMFLA Administrative Rules and MRTMA Emergency Rules, registered qualifying patients, caregivers, and adult-use customers 21 years of age or older are required to present their valid driver’s license or government-issued identification card bearing a photographic image prior to a provisioning center or retailer selling or transferring marijuana to these individuals.
However, due to the Executive Order directing individuals to remain at home or in their place of residence to the maximum extent possible and the closure of all Secretary of State offices, individuals may not be able to renew their driver’s licenses or government-issued identification cards while the Executive Order is in effect.
Effective immediately, licensed provisioning centers and adult-use retailers are temporarily allowed to sell or transfer marijuana to a patient, caregiver, or customer who has an expired driver license or government-issued identification card during home delivery and curbside sales.
The MRA continues to process renewal applications for patient and caregiver registry identification cards, but there may be delays due to MRA staff teleworking in order to comply with the Governor’s Executive Order to mitigate the spread of COVID-19. Patients may also have difficulty obtaining the physician certification required for renewal without compromising their safety.
Therefore, effective immediately, licensed provisioning centers are temporarily allowed to sell or transfer marijuana to a patient or caregiver who presents a registry identification card that expired within the preceding 60 days. Additionally, the MRA has asked law enforcement to exercise discretion when interacting with someone with an expired registry identification card.
The temporary accommodations specified in this bulletin are effective immediately and will be terminated effective April 30, 2020.
A complete copy of the Rules can be found here. More information on the MRA can be found at the agency website: www.michigan.gov/MRA. For current and up-to-date information regarding the Coronavirus visit www.Michigan.gov/Coronavirus or www.CDC.gov/Coronavirus.
This advisory bulletin does not constitute legal advice and is subject to change. Licensees are encouraged to seek legal counsel to ensure their operations comply with all applicable laws and rules.

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EXHIBIT C

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U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency Office of the Director Washington, DC 20528

March 19, 2020

MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING COVID-19 RESPONSE

FROM:

Christopher C. Krebs Director Cybersecurity and Infrastructure Security Agency (CISA)

As the Nation comes together to slow the spread of COVID-19, on March 16th, the President issued updated Coronavirus Guidance for America. This guidance states that:
“If you work in a critical infrastructure industry, as defined by the Department of Homeland Security, such as healthcare services and pharmaceutical and food supply, you have a special responsibility to maintain your normal work schedule.”
The Cybersecurity and Infrastructure Security Agency (CISA) executes the Secretary of Homeland Security’s responsibilities as assigned under the Homeland Security Act of 2002 to provide strategic guidance, promote a national unity of effort, and coordinate the overall federal effort to ensure the security and resilience of the Nation's critical infrastructure. CISA uses trusted partnerships with both the public and private sectors to deliver infrastructure resilience assistance and guidance to a broad range of partners.
In accordance with this mandate, and in collaboration with other federal agencies and the private sector, CISA developed an initial list of “Essential Critical Infrastructure Workers” to help State and local officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security. The list can also inform critical infrastructure community decision-making to determine the sectors, sub-sectors, segments, or critical functions that should continue normal operations, appropriately modified to account for Centers for Disease Control (CDC) workforce and customer protection guidance.
The attached list identifies workers who conduct a range of operations and services that are essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing management functions, among others. The industries they support represent, but are not necessarily limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement, and public works.

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We recognize that State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jurisdiction, while the Federal Government is in a supporting role. As State and local communities consider COVID-19-related restrictions, CISA is offering this list to assist prioritizing activities related to continuity of operations and incident response, including the appropriate movement of critical infrastructure workers within and between jurisdictions. Accordingly, this list is advisory in nature. It is not, nor should it be considered to be, a federal directive or standard in and of itself. In addition, these identified sectors and workers are not intended to be the authoritative or exhaustive list of critical infrastructure sectors and functions that should continue during the COVID-19 response. Instead, State and local officials should use their own judgment in using their authorities and issuing implementation directives and guidance. Similarly, critical infrastructure industry partners will use their own judgment, informed by this list, to ensure continued operations of critical infrastructure services and functions. All decisions should appropriately balance public safety while ensuring the continued delivery of critical infrastructure services and functions. CISA will continue to work with you and our partners in the critical infrastructure community to update this list as the Nation’s response to COVID-19 evolves. We also encourage you to submit how you might use this list so that we can develop a repository of use cases for broad sharing across the country. Should you have questions about this list, please contact CISA at CISA.CAT@cisa.dhs.gov.
Attachment: “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response”
2

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Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response
Version 1.0 (March 19, 2020)
THE IMPORTANCE OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS
Functioning critical infrastructure is imperative during the response to the COVID-19 emergency for both public health and safety as well as community well-being. Certain critical infrastructure industries have a special responsibility in these times to continue operations.
This guidance and accompanying list are intended to support State, Local, and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and that need to be able to operate resiliently during the COVID-19 pandemic response. This document gives guidance to State, local, tribal, and territorial jurisdictions and the private sector on defining essential critical infrastructure workers. Promoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions.
CONSIDERATIONS FOR GOVERNMENT AND BUSINESS
This list was developed in consultation with federal agency partners, industry experts, and State and local officials, and is based on several key principles:
1. Response efforts to the COVID-19 pandemic are locally executed, State managed, and federally supported
2. Everyone should follow guidance from the CDC, as well as State and local government officials, regarding strategies to limit disease spread.
3. Workers should be encouraged to work remotely when possible and focus on core business activities. Inperson, non-mandatory activities should be delayed until the resumption of normal operations.
4. When continuous remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease. This includes, but is not necessarily limited to, separating staff by off-setting shift hours or days and/or social distancing. These steps can preserve the workforce and allow operations to continue.

CONNECT WITH US www.cisa.gov
For more information, email CISA.CAT@cisa.dhs.gov

Linkedin.com/company/cybersecurityand-infrastructure-security-agency
@CISAgov | @cyber | @uscert_gov
Facebook.com/CISA

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Essential Critical Infrastructure Workforce
5. All organizations should implement their business continuity and pandemic plans, or put plans in place if they do not exist. Delaying implementation is not advised and puts at risk the viability of the business and the health and safety of the employees.
6. In the modern economy, reliance on technology and just-in-time supply chains means that certain workers must be able to access certain sites, facilities, and assets to ensure continuity of functions.
7. Government employees, such as emergency managers, and the business community need to establish and maintain lines of communication.
8. When government and businesses engage in discussions about critical infrastructure workers, they need to consider the implications of business operations beyond the jurisdiction where the asset or facility is located. Businesses can have sizeable economic and societal impacts as well as supply chain dependencies that are geographically distributed.
9. Whenever possible, jurisdictions should align access and movement control policies related to critical infrastructure workers to lower the burden of workers crossing jurisdictional boundaries.
IDENTIFYING ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS
The following list of sectors and identified essential critical infrastructure workers are an initial recommended set and are intended to be overly inclusive reflecting the diversity of industries across the United States. CISA will continually solicit and accept feedback on the list (both sectors/sub sectors and identified essential workers) and will evolve the list in response to stakeholder feedback. We will also use our various stakeholder engagement mechanisms to work with partners on how they are using this list and share those lessons learned and best practices broadly. We ask that you share your feedback, both positive and negative on this list so we can provide the most useful guidance to our critical infrastructure partners. Feedback can be sent to CISA.CAT@CISA.DHS.GOV.

CONNECT WITH US www.cisa.gov
For more information, email CISA.CAT@cisa.dhs.gov

Linkedin.com/company/cybersecurityand-infrastructure-security-agency @CISAgov | @cyber | @uscert_gov
Facebook.com/CISA

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Essential Critical Infrastructure Workforce
HEALTHCARE / PUBLIC HEALTH
• Workers providing COVID-19 testing; Workers that perform critical clinical research needed for COVID-19 response
• Caregivers (e.g., physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists)
• Hospital and laboratory personnel (including accounting, administrative, admitting and discharge, engineering, epidemiological, source plasma and blood donation, food service, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians, respiratory therapists, etc.)
• Workers in other medical facilities (including Ambulatory Health and Surgical, Blood Banks, Clinics, Community Mental Health, Comprehensive Outpatient rehabilitation, End Stage Renal Disease, Health Departments, Home Health care, Hospices, Hospitals, Long Term Care, Organ Pharmacies, Procurement Organizations, Psychiatric Residential, Rural Health Clinics and Federally Qualified Health Centers)
• Manufacturers, technicians, logistics and warehouse operators, and distributors of medical equipment, personal protective equipment (PPE), medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products
• Public health / community health workers, including those who compile, model, analyze and communicate public health information
• Blood and plasma donors and the employees of the organizations that operate and manage related activities • Workers that manage health plans, billing, and health information, who cannot practically work remotely • Workers who conduct community-based public health functions, conducting epidemiologic surveillance,
compiling, analyzing and communicating public health information, who cannot practically work remotely • Workers performing cybersecurity functions at healthcare and public health facilities, who cannot practically
work remotely
• Workers conducting research critical to COVID-19 response
• Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely
• Workers who support food, shelter, and social services, and other necessities of life for economically disadvantaged or otherwise needy individuals, such as those residing in shelters
• Pharmacy employees necessary for filling prescriptions • Workers performing mortuary services, including funeral homes, crematoriums, and cemetery workers • Workers who coordinate with other organizations to ensure the proper recovery, handling, identification,
transportation, tracking, storage, and disposal of human remains and personal effects; certify cause of death; and facilitate access to mental/behavioral health services to the family members, responders, and survivors of an incident

CONNECT WITH US www.cisa.gov
For more information, email CISA.CAT@cisa.dhs.gov

Linkedin.com/company/cybersecurityand-infrastructure-security-agency @CISAgov | @cyber | @uscert_gov
Facebook.com/CISA

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Essential Critical Infrastructure Workforce
LAW ENFORCEMENT, PUBLIC SAFETY, FIRST RESPONDERS
• Personnel in emergency management, law enforcement, Emergency Management Systems, fire, and corrections, including front line and management
• Emergency Medical Technicians • 911 call center employees • Fusion Center employees • Hazardous material responders from government and the private sector. • Workers – including contracted vendors -- who maintain digital systems infrastructure supporting law
enforcement and emergency service operations.
FOOD AND AGRICULTURE
• Workers supporting groceries, pharmacies and other retail that sells food and beverage products • Restaurant carry-out and quick serve food operations - Carry-out and delivery food employees • Food manufacturer employees and their supplier employees—to include those employed in food processing
(packers, meat processing, cheese plants, milk plants, produce, etc.) facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing by-products for animal food; beverage production facilities; and the production of food packaging • Farm workers to include those employed in animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; truck delivery and transport; farm and fishery labor needed to produce our food supply domestically • Farm workers and support service workers to include those who field crops; commodity inspection; fuel ethanol facilities; storage facilities; and other agricultural inputs • Employees and firms supporting food, feed, and beverage distribution, including warehouse workers, vendormanaged inventory controllers and blockchain managers • Workers supporting the sanitation of all food manufacturing processes and operations from wholesale to retail • Company cafeterias - in-plant cafeterias used to feed employees • Workers in food testing labs in private industries and in institutions of higher education • Workers essential for assistance programs and government payments • Employees of companies engaged in the production of chemicals, medicines, vaccines, and other substances used by the food and agriculture industry, including pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids • Animal agriculture workers to include those employed in veterinary health; manufacturing and distribution of animal medical materials, animal vaccines, animal drugs, feed ingredients, feed, and bedding, etc.; transportation of live animals, animal medical materials; transportation of deceased animals for disposal; raising of animals for food; animal production operations; slaughter and packing plants and associated regulatory and government workforce • Workers who support the manufacture and distribution of forest products, including, but not limited to timber, paper, and other wood products • Employees engaged in the manufacture and maintenance of equipment and other infrastructure necessary to agricultural production and distribution

CONNECT WITH US www.cisa.gov
For more information, email CISA.CAT@cisa.dhs.gov

Linkedin.com/company/cybersecurityand-infrastructure-security-agency @CISAgov | @cyber | @uscert_gov
Facebook.com/CISA

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Essential Critical Infrastructure Workforce

ENERGY
Electricity industry:
• Workers who maintain, ensure, or restore the generation, transmission, and distribution of electric power, including call centers, utility workers, reliability engineers and fleet maintenance technicians
• Workers needed for safe and secure operations at nuclear generation • Workers at generation, transmission, and electric blackstart facilities • Workers at Reliability Coordinator (RC), Balancing Authorities (BA), and primary and backup Control Centers
(CC), including but not limited to independent system operators, regional transmission organizations, and balancing authorities • Mutual assistance personnel • IT and OT technology staff – for EMS (Energy Management Systems) and Supervisory Control and Data Acquisition (SCADA) systems, and utility data centers; Cybersecurity engineers; cybersecurity risk management • Vegetation management crews and traffic workers who support • Environmental remediation/monitoring technicians • Instrumentation, protection, and control technicians
Petroleum workers:
• Petroleum product storage, pipeline, marine transport, terminals, rail transport, road transport • Crude oil storage facilities, pipeline, and marine transport • Petroleum refinery facilities • Petroleum security operations center employees and workers who support emergency response services • Petroleum operations control rooms/centers • Petroleum drilling, extraction, production, processing, refining, terminal operations, transporting, and retail for
use as end-use fuels or feedstocks for chemical manufacturing • Onshore and offshore operations for maintenance and emergency response • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them
Natural and propane gas workers:
• Natural gas transmission and distribution pipelines, including compressor stations • Underground storage of natural gas • Natural gas processing plants, and those that deal with natural gas liquids • Liquefied Natural Gas (LNG) facilities • Natural gas security operations center, natural gas operations dispatch and control rooms/centers natural gas
emergency response and customer emergencies, including natural gas leak calls • Drilling, production, processing, refining, and transporting natural gas for use as end-use fuels, feedstocks for
chemical manufacturing, or use in electricity generation • Propane gas dispatch and control rooms and emergency response and customer emergencies, including
propane leak calls • Propane gas service maintenance and restoration, including call centers

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Essential Critical Infrastructure Workforce
• Processing, refining, and transporting natural liquids, including propane gas, for use as end-use fuels or feedstocks for chemical manufacturing
• Propane gas storage, transmission, and distribution centers
WATER AND WASTEWATER
Employees needed to operate and maintain drinking water and wastewater/drainage infrastructure, including: • Operational staff at water authorities • Operational staff at community water systems • Operational staff at wastewater treatment facilities • Workers repairing water and wastewater conveyances and performing required sampling or monitoring • Operational staff for water distribution and testing • Operational staff at wastewater collection facilities • Operational staff and technical support for SCADA Control systems • Chemical disinfectant suppliers for wastewater and personnel protection • Workers that maintain digital systems infrastructure supporting water and wastewater operations
TRANSPORTATION AND LOGISTICS
• Employees supporting or enabling transportation functions, including dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, and workers that maintain and inspect infrastructure (including those that require cross-border travel)
• Employees of firms providing services that enable logistics operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use.
• Mass transit workers • Workers responsible for operating dispatching passenger, commuter and freight trains and maintaining rail
infrastructure and equipment • Maritime transportation workers - port workers, mariners, equipment operators • Truck drivers who haul hazardous and waste materials to support critical infrastructure, capabilities, functions,
and services • Automotive repair and maintenance facilities • Manufacturers and distributors (to include service centers and related operations) of packaging materials,
pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations • Postal and shipping workers, to include private companies • Employees who repair and maintain vehicles, aircraft, rail equipment, marine vessels, and the equipment and infrastructure that enables operations that encompass movement of cargo and passengers • Air transportation employees, including air traffic controllers, ramp personnel, aviation security, and aviation management • Workers who support the maintenance and operation of cargo by air transportation, including flight crews, maintenance, airport operations, and other on- and off- airport facilities workers

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Essential Critical Infrastructure Workforce

PUBLIC WORKS
• Workers who support the operation, inspection, and maintenance of essential dams, locks and levees • Workers who support the operation, inspection, and maintenance of essential public works facilities and
operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues • Workers such as plumbers, electricians, exterminators, and other service providers who provide services that are necessary to maintaining the safety, sanitation, and essential operation of residences • Support, such as road and line clearing, to ensure the availability of needed facilities, transportation, energy and communications • Support to ensure the effective removal, storage, and disposal of residential and commercial solid waste and hazardous waste
COMMUNICATIONS AND INFORMATION TECHNOLOGY
Communications:
• Maintenance of communications infrastructure- including privately owned and maintained communication systems- supported by technicians, operators, call-centers, wireline and wireless providers, cable service providers, satellite operations, undersea cable landing stations, Internet Exchange Points, and manufacturers and distributors of communications equipment
• Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering and reporting
• Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and/or technicians to manage the network or operate facilities
• Engineers, technicians and associated personnel responsible for infrastructure construction and restoration, including contractors for construction and engineering of fiber optic cables
• Installation, maintenance and repair technicians that establish, support or repair service as needed • Central office personnel to maintain and operate central office, data centers, and other network office facilities • Customer service and support staff, including managed and professional services as well as remote providers
of support to transitioning employees to set up and maintain home offices, who interface with customers to manage or support service environments and security issues, including payroll, billing, fraud, and troubleshooting • Dispatchers involved with service repair and restoration
Information Technology:
• Workers who support command centers, including, but not limited to Network Operations Command Center, Broadcast Operations Control Center and Security Operations Command Center
• Data center operators, including system administrators, HVAC & electrical engineers, security personnel, IT managers, data transfer solutions engineers, software and hardware engineers, and database administrators
• Client service centers, field engineers, and other technicians supporting critical infrastructure, as well as

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Essential Critical Infrastructure Workforce
manufacturers and supply chain vendors that provide hardware and software, and information technology equipment (to include microelectronics and semiconductors) for critical infrastructure • Workers responding to cyber incidents involving critical infrastructure, including medical facilities, SLTT governments and federal facilities, energy and utilities, and banks and financial institutions, and other critical infrastructure categories and personnel • Workers supporting the provision of essential global, national and local infrastructure for computing services (incl. cloud computing services), business infrastructure, web-based services, and critical manufacturing • Workers supporting communications systems and information technology used by law enforcement, public safety, medical, energy and other critical industries • Support required for continuity of services, including janitorial/cleaning personnel
OTHER COMMUNITY-BASED GOVERNMENT OPERATIONS AND ESSENTIAL FUNCTIONS
• Workers to ensure continuity of building functions • Security staff to maintain building access control and physical security measures • Elections personnel • Federal, State, and Local, Tribal, and Territorial employees who support Mission Essential Functions and
communications networks • Trade Officials (FTA negotiators; international data flow administrators) • Weather forecasters • Workers that maintain digital systems infrastructure supporting other critical government operations • Workers at operations centers necessary to maintain other essential functions • Workers who support necessary credentialing, vetting and licensing operations for transportation workers • Customs workers who are critical to facilitating trade in support of the national emergency response supply
chain • Educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating
distance learning or performing other essential functions, if operating under rules for social distancing • Hotel Workers where hotels are used for COVID-19 mitigation and containment measures
CRITICAL MANUFACTURING
• Workers necessary for the manufacturing of materials and products needed for medical supply chains,
transportation, energy, communications, food and agriculture, chemical manufacturing, nuclear facilities, the operation of dams, water and wastewater treatment, emergency services, and the defense industrial base.
HAZARDOUS MATERIALS
• Workers at nuclear facilities, workers managing medical waste, workers managing waste from pharmaceuticals and medical material production, and workers at laboratories processing test kits
• Workers who support hazardous materials response and cleanup • Workers who maintain digital systems infrastructure supporting hazardous materials management operations

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Essential Critical Infrastructure Workforce
FINANCIAL SERVICES
• Workers who are needed to process and maintain systems for processing financial transactions and services
(e.g., payment, clearing, and settlement; wholesale funding; insurance services; and capital markets activities)
• Workers who are needed to provide consumer access to banking and lending services, including ATMs, and to
move currency and payments (e.g., armored cash carriers)
• Workers who support financial operations, such as those staffing data and security operations centers
CHEMICAL
• Workers supporting the chemical and industrial gas supply chains, including workers at chemical manufacturing plants, workers in laboratories, workers at distribution facilities, workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, textiles, and paper products.
• Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items
• Workers supporting the production of protective cleaning and medical solutions, personal protective equipment, and packaging that prevents the contamination of food, water, medicine, among others essential products
• Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections
• Workers who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products, including glass container manufacturing
DEFENSE INDUSTRIAL BASE
• Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military. These individuals, include but are not limited to, aerospace; mechanical and software engineers, manufacturing/production workers; IT support; security staff; security personnel; intelligence support, aircraft and weapon system mechanics and maintainers
• Personnel working for companies, and their subcontractors, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, and government-owned/contractoroperated and government-owned/government-operated facilities

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EXHIBIT D

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U.S. Department of Homeland Security Cybersecurity & Infrastructure Security Agency Office of the Director Washington, DC 20528

March 28, 2020

ADVISORY MEMORANDUM ON IDENTIFICATION OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS DURING COVID-19 RESPONSE

FROM:

Christopher C. Krebs Director Cybersecurity and Infrastructure Security Agency (CISA)

As the Nation comes together to slow the spread of COVID-19, on March 16th the President issued updated Coronavirus Guidance for America that highlighted the importance of the critical infrastructure workforce.
The Cybersecurity and Infrastructure Security Agency (CISA) executes the Secretary of Homeland Security’s authorities to secure critical infrastructure. Consistent with these authorities, CISA has developed, in collaboration with other federal agencies, State and local governments, and the private sector, an “Essential Critical Infrastructure Workforce” advisory list. This list is intended to help State, local, tribal and territorial officials as they work to protect their communities, while ensuring continuity of functions critical to public health and safety, as well as economic and national security. Decisions informed by this list should also take into consideration additional public health considerations based on the specific COVID-19-related concerns of particular jurisdictions.
This list is advisory in nature. It is not, nor should it be considered, a federal directive or standard. Additionally, this advisory list is not intended to be the exclusive list of critical infrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurisdictions. Individual jurisdictions should add or subtract essential workforce categories based on their own requirements and discretion.
The advisory list identifies workers who conduct a range of operations and services that are typically essential to continued critical infrastructure viability, including staffing operations centers, maintaining and repairing critical infrastructure, operating call centers, working construction, and performing operational functions, among others. It also includes workers who support crucial supply chains and enable functions for critical infrastructure. The industries they support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, law enforcement,

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and public works.
State, local, tribal, and territorial governments are responsible for implementing and executing response activities, including decisions about access and reentry, in their communities, while the Federal Government is in a supporting role. Officials should use their own judgment in issuing implementation directives and guidance. Similarly, while adhering to relevant public health guidance, critical infrastructure owners and operators are expected to use their own judgement on issues of the prioritization of business processes and workforce allocation to best ensure continuity of the essential goods and services they support. All decisions should appropriately balance public safety, the health and safety of the workforce, and the continued delivery of essential critical infrastructure services and functions. While this advisory list is meant to help public officials and employers identify essential work functions, it allows for the reality that some workers engaged in activity determined to be essential may be unable to perform those functions because of health-related concerns.
CISA will continue to work with our partners in the critical infrastructure community to update this advisory list if necessary as the Nation’s response to COVID-19 evolves.
Should you have questions about this list, please contact CISA at CISA.CAT@cisa.dhs.gov.
Attachment: “Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response Version 3.0”

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Essential Critical Infrastructure Workforce

Guidance on the Essential Critical Infrastructure Workforce: Ensuring Community and National Resilience in COVID-19 Response
Version 3.0 (April 17, 2020)
THE IMPORTANCE OF ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS
Functioning critical infrastructure is imperative during the response to the COVID-19 emergency for both public health and safety as well as community well-being. Certain critical infrastructure industries have a special responsibility in these times to continue operations.
This advisory guidance and accompanying list are intended to support state, local, tribal, territorial and industry partners in identifying the critical infrastructure sectors and the essential workers needed to maintain the services and functions Americans depend on daily and that need to be able to operate resiliently during the COVID-19 pandemic response.
This document gives advisory guidance on defining essential critical infrastructure workers. Promoting the ability of such workers to continue to work during periods of community restriction, access management, social distancing, or closure orders/directives is crucial to community resilience and continuity of essential functions. The term “workers” as used in this guidance is intended to apply to both employees and contractors performing the described functions.
CISA will continually solicit and accept feedback on the list and will evolve the list in response to stakeholder feedback. We will also use our various stakeholder engagement mechanisms to work with partners on how they are using this list and share those lessons learned and best practices broadly. Feedback can be sent to CISA.CAT@CISA.DHS.GOV.
CONSIDERATIONS FOR GOVERNMENT AND BUSINESS
This list was developed in consultation with federal agency partners, industry experts, and State and local officials, and is based on several key principles:
1. Response efforts to the COVID-19 pandemic are locally executed, state managed, and federally supported.
2. Everyone should follow guidance from the Centers for Disease Control and Prevention (CDC), as well as state and local government officials, regarding strategies to limit disease spread.
3. Employers must comply with applicable Occupational Safety and Health Administration (OSHA) requirements for protecting critical infrastructure workers who remain on or return to the job during the COVID-19 pandemic. As the nation relies on these workers to protect public health, safety, and community well-being, they must be protected from exposure to and infection with the virus so that they can continue to carry out

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Essential Critical Infrastructure Workforce
their responsibilities. OSHA has guidance and enforcement information for workplaces at www.osha.gov/coronavirus.
4. Businesses and government agencies may continue to implement organization-specific measures, which protect the workforce while meeting mission needs.
5. Workers should be encouraged to work remotely when possible and focus on core business activities. Inperson, non-mandatory activities should be delayed until the resumption of normal operations.
6. When continuous remote work is not possible, businesses should enlist strategies to reduce the likelihood of spreading the disease. This includes, but is not limited to, physically separating staff, staggering work shift hours or days, and other social distancing measures. While the CDC recommends that everyone wear a cloth face cover to contain respiratory droplets when around others, critical infrastructure employers must consider how best to implement this public health recommendation for source control in the workplace. For example, employers may provide disposable facemasks (e.g., surgical masks) instead of cloth face coverings when workers would need to wear masks for extended periods of time (e.g., the duration of a work shift) or while performing tasks in which the face covering could become contaminated.
7. Consider the impact of workplace sick leave policies that may contribute to an employee decision to delay reporting medical symptoms. Sick employees should not return to the workplace until they meet the criteria to stop home isolation.
8. Critical infrastructure has an obligation to limit to the extent possible the reintegration of in-person workers who have experienced an exposure to COVID-19 but remain asymptomatic in ways that best protect the health of the worker, their co-workers, and the general public. An analysis of core job tasks and workforce availability at worksites can allow the employer to match core activities to other equally skilled and available in-person workers who have not experienced an exposure. CDC guidance on safety practices for critical infrastructure workers is maintained at https://www.cdc.gov/coronavirus/2019-ncov/community/criticalworkers/implementing-safety-practices.html
9. All organizations should implement their business continuity and pandemic plans or put plans in place if they do not exist. Delaying implementation is not advised and puts at risk the viability of the business and the health and safety of the workers.
10. Reliance on technology and just-in-time supply chains means that certain workers must be able to access certain sites, facilities, and assets to ensure continuity of functions. The vast majority of our economy relies on technology and therefore information technology (IT) and operational technology (OT) workers for critical infrastructure operations are essential. This includes workers in many roles, including workers focusing on management systems, control systems, and Supervisory Control and Data Acquisition (SCADA) systems, and data centers; cybersecurity engineering; and cybersecurity risk management.
11. Government workers, such as emergency managers, and the business community need to establish and maintain lines of communication.
12. Essential critical infrastructure workers need continued and unimpeded access to sites, facilities, and equipment within quarantine zones, containment areas, or other areas where access or movement is limited to perform functions for community relief and stability; for public safety, security and health; for maintaining essential supply chains and preserving local, regional, and national economic well-being.
13. Essential critical infrastructure workers need sustained access to designated quarantine, containment, or

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Essential Critical Infrastructure Workforce
restricted areas; and should be exempted from curfews, shelter-in-place orders, and transportation restrictions or restrictions on movement. 14. Whenever possible, local governments should consider adopting specific state guidance on essential workers to reduce potential complications of workers crossing jurisdictional boundaries. When this is not possible, local jurisdictions should consider aligning access and movement control policies with neighboring jurisdictions to reduce the burden of cross-jurisdictional movement of essential critical infrastructure workers.
IDENTIFYING ESSENTIAL CRITICAL INFRASTRUCTURE WORKERS
The following list of identified essential critical infrastructure workers is intended to be overly inclusive reflecting the diversity of industries across the United States.

HEALTHCARE / PUBLIC HEALTH
• Workers, including laboratory personnel, that perform critical clinical, biomedical and other research, development, and testing needed for COVID-19 or other diseases.
• Healthcare providers including, but not limited to, physicians; dentists; psychologists; mid-level practitioners; nurses; assistants and aids; infection control and quality assurance personnel; pharmacists; physical, respiratory, speech and occupational therapists and assistants; social workers; optometrists; speech pathologists; chiropractors; diagnostic and therapeutic technicians; and radiology technologists.
• Workers required for effective clinical, command, infrastructure, support service, administrative, security, and intelligence operations across the direct patient care and full healthcare and public health spectrum. Personnel examples may include, but are not limited, to accounting, administrative, admitting and discharge, engineering, accrediting, certification, licensing, credentialing, epidemiological, source plasma and blood donation, food service, environmental services, housekeeping, medical records, information technology and operational technology, nutritionists, sanitarians, respiratory therapists, etc. o Emergency medical services workers. o Prehospital workers included but not limited to urgent care workers. o Inpatient & hospital workers (e.g. hospitals, critical access hospitals, long-term acute care

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Essential Critical Infrastructure Workforce

hospitals, long-term care facilities, inpatient hospice, ambulatory surgical centers, etc.). o Outpatient care workers (e.g. end-stage-renal disease, Federally Qualified Health Centers, Rural
Health Clinics, community mental health clinics, organ transplant/procurement centers, and other ambulatory care settings/providers, comprehensive outpatient rehabilitation facilities, etc.). o Home care workers (e.g. home health care, at-home hospice, home dialysis, home infusion, etc.). o Workers at Long-term care facilities, residential and community-based providers (e.g. Programs of All-Inclusive Care for the Elderly (PACE), Intermediate Care Facilities for Individuals with Intellectual Disabilities, Psychiatric Residential Treatment Facilities, Religious Nonmedical Health Care Institutions, etc.). o Workplace safety workers (i.e., workers who anticipate, recognize, evaluate, and control workplace conditions that may cause workers' illness or injury). • Workers needed to support transportation to and from healthcare facility and provider appointments. • Workers needed to provide laundry services, food services, reprocessing of medical equipment, and waste management. • Workers that manage health plans, billing, and health information and who cannot work remotely. • Workers performing cybersecurity functions at healthcare and public health facilities and who cannot work remotely. • Workers performing security, incident management, and emergency operations functions at or on behalf of healthcare entities including healthcare coalitions, who cannot practically work remotely. • Childcare, eldercare, and other service providers for essential healthcare personnel. • Vendors and suppliers (e.g. imaging, pharmacy, oxygen services, durable medical equipment, etc.). • Workers at manufacturers (including biotechnology companies and those companies that have shifted production to medical supplies), materials and parts suppliers, technicians, logistics and warehouse operators, printers, packagers, distributors of medical products and equipment (including third party logistics providers, and those who test and repair), personal protective equipment (PPE), isolation barriers, medical gases, pharmaceuticals (including materials used in radioactive drugs), dietary supplements, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies (including dispensers), sanitary goods, personal care products, pest control products, and tissue and paper towel products. • Donors of blood, bone marrow, blood stem cell, or plasma, and the workers of the organizations that operate and manage related activities. • Pharmacy staff, including workers necessary to maintain uninterrupted prescription, and other workers for pharmacy operations. • Workers in retail facilities specializing in medical good and supplies. • Public health and environmental health workers, such as: o Workers specializing in environmental health that focus on implementing environmental controls, sanitary and infection control interventions, healthcare facility safety and emergency preparedness planning, engineered work practices, and developing guidance and protocols for appropriate PPE to prevent COVID-19 disease transmission. o Public health/ community health workers (including call center workers) who conduct communitybased public health functions, conducting epidemiologic surveillance and compiling, analyzing, and communicating public health information, who cannot work remotely. • Human services providers, especially for at risk populations such as: o Home delivered meal providers for older adults, people with disabilities, and others with chronic

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Essential Critical Infrastructure Workforce
health conditions. o Home-maker services for frail, homebound, older adults. o Personal assistance services providers to support activities of daily living for older adults, people
with disabilities, and others with chronic health conditions who live independently in the community with supports and services. o Home health providers who deliver health care services for older adults, people with disabilities, and others with chronic health conditions who live independently in the community with supports and services. • Government entities, and contractors that work in support of local, state, and federal public health and medical mission sets, including but not limited to supporting access to healthcare and associated payment functions, conducting public health functions, providing medical care, supporting emergency management, or other services necessary for supporting the COVID-19 response. • Mortuary service providers, such as: o Workers performing mortuary funeral, cremation, burial, cemetery, and related services, including funeral homes, crematoriums, cemetery workers, and coffin makers. o Workers who coordinate with other organizations to ensure the proper recovery, handling, identification, transportation, tracking, storage, and disposal of human remains and personal effects; certify cause of death; and facilitate access to mental and behavioral health services to the family members, responders, and survivors of an incident.
LAW ENFORCEMENT, PUBLIC SAFETY, AND OTHER FIRST RESPONDERS
• Public, private, and voluntary personnel (front-line and management, civilian and sworn) in emergency management, law enforcement, fire and rescue services, emergency medical services (EMS), and security, public and private hazardous material responders, air medical service providers (pilots and supporting technicians), corrections, and search and rescue personnel.
• Personnel involved in provisioning of access to emergency services, including the provisioning of real-time text, text-to-911, and dialing 911 via relay.
• Personnel that are involved in the emergency alert system (EAS) ((broadcasters, satellite radio and television, cable, and wireline video) and wireless emergency alerts (WEA).
• Workers at Independent System Operators and Regional Transmission Organizations, and Network Operations staff, engineers and technicians to manage the network or operate facilities.
• Workers at emergency communication center, public safety answering points, public safety communications centers, emergency operation centers, and 911 call centers.
• Fusion Center workers. • Workers, including contracted vendors, who maintain, manufacture, or supply equipment and services
supporting law enforcement, fire, EMS, and response operations (to include electronic security and life safety security personnel). • Workers and contracted vendors who maintain and provide services and supplies to public safety facilities, including emergency communication center, public safety answering points, public safety communications centers, emergency operation centers, fire and emergency medical services stations, police and law enforcement stations and facilities. • Workers supporting the manufacturing, distribution, and maintenance of necessary safety equipment and uniforms for law enforcement and all public safety personnel.

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Essential Critical Infrastructure Workforce
• Workers supporting the operation of firearm, or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges.
• Public agency workers responding to abuse and neglect of children, spouses, elders, and dependent adults.
• Workers who support weather disaster and natural hazard mitigation and prevention activities. • Security staff to maintain building access control and physical security measures.
FOOD AND AGRICULTURE
• Workers supporting groceries, pharmacies, convenience stores, and other retail (including unattended and vending) that sells human food, animal and pet food and pet supply, and beverage products, including retail customer support service and information technology support staff necessary for online orders, pickup, and delivery.
• Restaurant carry-out and quick serve food operations, including dark kitchen and food prep centers, carry-out, and delivery food workers.
• Food manufacturer workers and their supplier workers including those employed at food ingredient production and processing facilities; aquaculture and seafood harvesting facilities; livestock, poultry, seafood slaughter facilities; pet and animal feed processing facilities; human food facilities producing byproducts for animal food; beverage production facilities; and the production of food packaging.
• Farmers, farm and ranch workers, and agribusiness support services to include those employed in auction and sales; grain and oilseed handling, storage, processing, and distribution; animal food, feed, and ingredient production, packaging, and distribution; manufacturing, packaging, and distribution of veterinary drugs; and truck delivery and transport.
• Farmers, farm and ranch workers, and support service and supplier workers producing food supply domestically and for export, to include those engaged in raising, cultivating, harvesting, packing, storing, or delivering to storage or to market or to a carrier for transportation to market any agricultural or horticultural commodity for human consumption; agricultural inspection; fuel ethanol facilities; biodiesel and renewable diesel facilities; storage facilities; and other agricultural inputs.
• Workers and firms supporting the distribution of food, feed, and beverage and ingredients used in these products, including warehouse workers, vendor-managed inventory controllers, and blockchain managers.
• Workers supporting the sanitation and pest control of all food manufacturing processes and operations from wholesale to retail.
• Workers supporting the growth and distribution of plants and associated products for home gardens. • Workers in cafeterias used to feed workers, particularly worker populations sheltered against COVID-19. • Workers in animal diagnostic and food testing laboratories. • Government, private, and non-governmental organizations’ workers essential for food assistance
programs (including school lunch programs) and government payments. • Workers of companies engaged in the production, storage, transport, and distribution of chemicals,
medicines, vaccines, and other substances used by the food and agriculture industry, including seeds, pesticides, herbicides, fertilizers, minerals, enrichments, and other agricultural production aids. • Animal agriculture workers to include those employed in veterinary health (including those involved in supporting emergency veterinary or livestock services); raising, caring for and management of animals for food; animal production operations; livestock markets; slaughter and packing plants, manufacturers, renderers, and associated regulatory and government workforce.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.153 Page 50 of 60
Essential Critical Infrastructure Workforce

• Transportation supporting animal agricultural industries, including movement of animal medical and reproductive supplies and materials, animal vaccines, animal drugs, feed ingredients, feed and bedding, live animals, animal by-products, and deceased animals for disposal.
• Workers who support sawmills and the manufacture and distribution of fiber and forest products, including, but not limited to timber, paper, and other wood and fiber products, as well as manufacture and distribution of products using agricultural commodities.
• Workers engaged in the manufacture and maintenance of equipment and other infrastructure necessary for agricultural production and distribution.
ENERGY
• Workers supporting the energy sector, regardless of the energy source (including, but not limited to, nuclear, fossil, hydroelectric, or renewable), segment of the system, or infrastructure the worker is involved in, who are needed to construct, manufacture, repair, transport, permit, monitor, operate engineer, and maintain the reliability, safety, security, environmental health, and physical and cyber security of the energy system, including those who support construction, manufacturing, transportation, permitting, and logistics.
• Workers and contractors supporting energy facilities that provide steam, hot water or chilled water from central power plants to connected customers.
• Workers conducting energy/commodity trading/scheduling/marketing functions who can't perform their duties remotely.
• Workers supporting the energy sector through renewable energy infrastructure (including, but not limited to, wind, solar, biomass, hydrogen, ocean, geothermal, and hydroelectric) and microgrids, including those supporting construction, manufacturing, transportation, permitting, operation and maintenance, monitoring, and logistics.
• Workers and security staff involved in nuclear re-fueling operations. • Workers providing services related to energy sector fuels (including, but not limited to, petroleum (crude
oil), natural gas, propane, liquefied natural gas (LNG), compressed natural gas (CNG), natural gas liquids (NGL), other liquid fuels, nuclear, and coal) and supporting the mining, processing, manufacturing, construction, logistics, transportation, permitting, operation, maintenance, security, waste disposal, storage, and monitoring of support for resources. • Workers providing environmental remediation and monitoring, limited to immediate critical needs technicians. • Workers involved in the manufacturing and distribution of equipment, supplies, and parts necessary to maintain production, maintenance, restoration, and service at energy sector facilities across all energy sector segments.
Electricity Industry
• Workers who maintain, ensure, restore, or who are involved in the development, transportation, fuel procurement, expansion, or operation of, the generation, transmission, and distribution of electric power, including call centers, utility workers, engineers, retail electricity, construction, maintenance, utility telecommunications, relaying, and fleet maintenance technicians who cannot perform their duties remotely.
• Workers at coal mines, production facilities, and those involved in manufacturing, transportation,

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.154 Page 51 of 60
Essential Critical Infrastructure Workforce
permitting, operation, maintenance, and monitoring at coal sites. • Workers who produce, process, ship, and handle coal used for power generation and manufacturing. • Workers in the electricity industry including but not limited to those supporting safety, construction,
manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cyber security, monitoring, and logistics • Workers needed for safe and secure operations at nuclear generation including, but not limited to, those critical to the broader nuclear supply chain, the manufacture and delivery of parts needed to maintain nuclear equipment, the operations of fuel manufacturers, and the production and processing of fuel components used in the manufacturing of fuel. • Workers at fossil fuel (including but not limited to natural gas, refined, distillate, and/or coal), nuclear, and renewable energy infrastructure (including, but not limited to wind, solar, biomass, hydrogen, geothermal, and hydroelectric), and microgrids, including those supporting safety, construction, manufacturing, transportation, permitting, operation, maintenance, monitoring, and logistics. • Workers at generation, transmission, and electric black start facilities. • Workers at Reliability Coordinator, Balancing Authority, local distribution control centers, and primary and backup Control Centers, including, but not limited to, independent system operators, regional transmission organizations, and local distribution control centers. • Workers that are mutual assistance/aid personnel, which may include workers from outside of the state or local jurisdiction. • Vegetation management and traffic control for supporting those crews. • Instrumentation, protection, and control technicians. • Essential support personnel for electricity operations. • Generator set support workers, such as diesel engineers used in power generation, including those providing fuel.
Petroleum Industry
• Workers who support onshore and offshore petroleum drilling operations; platform and drilling construction and maintenance; transportation (including helicopter operations), maritime transportation, supply, and dredging operations; maritime navigation; well stimulation, intervention, monitoring, automation and control, extraction, production; processing; waste disposal, and maintenance, construction, and operations.
• Workers in the petroleum industry including but not limited to those supporting safety, construction, manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cyber security, monitoring, and logistics.
• Workers for crude oil, petroleum, and petroleum product storage and transportation, including pipeline, marine transport, terminals, rail transport, storage facilities, racks, and road transport for use as end- use fuels such as gasoline, diesel fuel, jet fuel, and heating fuels or feedstocks for chemical manufacturing.
• Petroleum and petroleum product security operations center workers and workers who support maintenance and emergency response services.
• Petroleum and petroleum product operations control rooms, centers, and refinery facilities. • Retail fuel centers such as gas stations and truck stops, and the distribution systems that support them. • Supporting new and existing construction projects, including, but not limited to, pipeline construction. • Manufacturing and distribution of equipment, supplies, and parts necessary for production, maintenance,
restoration, and service of petroleum and petroleum product operations and use, including end-users.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.155 Page 52 of 60
Essential Critical Infrastructure Workforce

• Transmission and distribution pipeline workers, including but not limited to pump stations and any other required, operations maintenance, construction, and support for petroleum products.
Natural Gas, Natural Gas Liquids (NGL), Propane, and Other Liquid Fuels
• Workers who support onshore and offshore drilling operations, platform and drilling construction and maintenance; transportation (including helicopter operations); maritime transportation, supply, and dredging operations; maritime navigation; natural gas and natural gas liquid production, processing, extraction, storage and transportation; well intervention, monitoring, automation and control; waste disposal, and maintenance, construction, and operations.
• Workers in the natural gas, NGL, propane, and other liquid fuels industries including but not limited to those supporting safety, construction, manufacturing, transportation, permitting, operation/maintenance, engineering, physical and cyber security, monitoring, and logistics.
• Transmission and distribution pipeline workers, including compressor stations and any other required operations maintenance, construction, and support for natural gas, natural gas liquid, propane, and other liquid fuels.
• Workers at Liquefied Natural Gas (LNG) and Compressed Natural Gas (CNG) facilities. • Workers at natural gas, propane, natural gas liquids, liquified natural gas, liquid fuel storage facilities,
underground facilities, and processing plants and other related facilities, including construction, maintenance, and support operations personnel. • Natural gas processing plants workers and those who deal with natural gas liquids. • Workers who staff natural gas, propane, natural gas liquids, and other liquid fuel security operations centers, operations dispatch and control rooms and centers, and emergency response and customer emergencies (including leak calls) operations. • Workers supporting drilling, production, processing, refining, and transporting natural gas, propane, natural gas liquids, and other liquid fuels for use as end-use fuels, feedstocks for chemical manufacturing, or use in electricity generation. • Workers supporting propane gas service maintenance and restoration, including call centers. • Workers supporting propane, natural gas liquids, and other liquid fuel distribution centers. • Workers supporting propane gas storage, transmission, and distribution centers. • Workers supporting new and existing construction projects, including, but not limited to, pipeline construction. • Workers supporting ethanol and biofuel production, refining, and distribution. • Workers in fuel sectors (including, but not limited to nuclear, coal, and gas types and liquid fuels) supporting the mining, manufacturing, logistics, transportation, permitting, operation, maintenance, and monitoring of support for resources. • Workers ensuring, monitoring, and engaging in the physical security of assets and locations associated with natural gas, propane, natural gas liquids, and other liquid fuels. • Workers involved in the manufacturing and distribution of equipment, supplies, and parts necessary to maintain production, maintenance, restoration, and service of natural gas, propane, natural gas liquids, and other liquid fuels operations and use, including end-users.
WATER AND WASTEWATER
Workers needed to operate and maintain drinking water and wastewater and drainage infrastructure, including: • Operational staff at water authorities.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.156 Page 53 of 60
Essential Critical Infrastructure Workforce

• Operational staff at community water systems. • Operational staff at wastewater treatment facilities. • Workers repairing water and wastewater conveyances and performing required sampling or monitoring,
including field staff. • Operational staff for water distribution and testing. • Operational staff at wastewater collection facilities. • Operational staff and technical support for SCADA Control systems. • Chemical equipment and personal protection suppliers to water and wastewater system. • Workers who maintain digital systems infrastructure supporting water and wastewater operations.
TRANSPORTATION AND LOGISTICS
• Workers supporting or enabling transportation and logistics functions, including truck drivers, bus drivers, dispatchers, maintenance and repair technicians, warehouse workers, truck stop and rest area workers, driver training and education centers, Department of Motor Vehicle (DMV) workers, enrollment agents for federal transportation worker vetting programs, towing and recovery services, roadside assistance workers, intermodal transportation personnel, and workers that construct, maintain, rehabilitate, and inspect infrastructure, including those that require cross-jurisdiction travel.).
• Workers supporting the distribution of food, fuels, pharmaceuticals and medical material (including materials used in radioactive drugs), and chemicals needed for water or water treatment and energy maintenance.
• Workers supporting operation of essential highway infrastructure, including roads, bridges, and tunnels (e.g., traffic operations centers and moveable bridge operators).
• Workers of firms providing services, supplies, and equipment that enable warehouse and operations, including cooling, storing, packaging, and distributing products for wholesale or retail sale or use, including cold- and frozen-chain logistics for food and critical biologic products.
• Mass transit workers providing critical transit services and performing critical or routine maintenance to mass transit infrastructure or equipment.
• Workers supporting personal and commercial transportation services including taxis, delivery services, vehicle rental services, bicycle maintenance and car-sharing services, and transportation network providers.
• Workers, including police, responsible for operating and dispatching passenger, commuter, and freight trains and maintaining rail infrastructure and equipment.
• Maritime transportation workers, including port authority and commercial facility personnel, dredgers, port workers, security personnel, mariners, ship crewmembers, ship pilots, tugboat operators, equipment operators (to include maintenance and repair, and maritime-specific medical providers), ship supply workers, chandlers, and repair company workers. Refer to the United States Coast Guard’s Marine Safety Information Bulletin “Maintaining Maritime Commerce and Identification of Essential Maritime Critical Infrastructure Workers” for more information.
• Workers, including truck drivers, railroad employees, maintenance crews, and cleaners, supporting transportation of chemicals, hazardous, medical, and waste materials that support critical infrastructure, capabilities, functions, and services, including specialized carriers, crane and rigging industry workers.
• Bus drivers and workers who provide or support intercity, commuter, and charter bus service in support of other essential services or functions.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.157 Page 54 of 60
Essential Critical Infrastructure Workforce
• Automotive repair, maintenance, and transportation equipment manufacturing and distribution facilities (including those who repair and maintain electric vehicle charging stations).
• Transportation safety inspectors, including hazardous material inspectors and accident investigator inspectors.
• Manufacturers and distributors (to include service centers and related operations) of lighting and communication systems, specialized signage and structural systems, emergency response equipment and support materials, printers, printed materials, packaging materials, pallets, crates, containers, and other supplies needed to support manufacturing, packaging staging and distribution operations, and other critical infrastructure needs.
• Postal Service, parcel, courier, last-mile delivery, and shipping and related workers, to include private companies, who accept, process, transport, and deliver information and goods.
• Workers who supply equipment and materials for maintenance of transportation equipment. • Workers who repair and maintain vehicles, aircraft, rail equipment, marine vessels, bicycles, and the
equipment and infrastructure that enables operations that encompass movement of cargo and passengers. • Workers who support air transportation for cargo and passengers, including operation distribution, maintenance, and sanitation. This includes air traffic controllers, flight dispatchers, maintenance personnel, ramp workers, fueling agents, flight crews, airport safety inspectors and engineers, airport operations personnel, aviation and aerospace safety workers, security, commercial space personnel, operations personnel, accident investigators, flight instructors, and other on- and off-airport facilities workers. • Workers supporting transportation via inland waterways, such as barge crew, dredging crew, and river port workers for essential goods. • Workers critical to the manufacturing, distribution, sales, rental, leasing, repair, and maintenance of vehicles and other transportation equipment (including electric vehicle charging stations) and the supply chains that enable these operations to facilitate continuity of travel-related operations for essential workers. • Warehouse operators, including vendors and support personnel critical for business continuity (including heating, ventilation, and air conditioning (HVAC) and electrical engineers, security personnel, and janitorial staff), e-commerce or online commerce, and customer service for essential functions.
PUBLIC WORKS AND INFRASTRUCTURE SUPPORT SERVICES
• Workers who support the construction, maintenance, or rehabilitation of critical infrastructure. • Workers supporting construction materials production, testing laboratories, material delivery services,
and construction inspection. • Workers who support the operation, inspection, and maintenance of essential public works facilities and
operations, including bridges, water and sewer main breaks, fleet maintenance personnel, construction of critical or strategic infrastructure, traffic signal maintenance, emergency location services for buried utilities, maintenance of digital systems infrastructure supporting public works operations, and other emergent issues. • Workers such as plumbers, electricians, exterminators, builders (including building and insulation), contractors, HVAC Technicians, landscapers, and other service providers who provide services, including temporary construction, that are necessary to maintaining the safety, sanitation, and essential operation

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.158 Page 55 of 60
Essential Critical Infrastructure Workforce
of residences, businesses and buildings, such as hospitals and senior living facilities. • Workers personnel, who support operations that ensure, the availability of and access to needed
facilities, transportation, energy, and communications through activities such as road and line clearing. • Workers who support the effective removal, storage, and disposal of residential, industrial, and
commercial solid waste and hazardous waste, including at landfill operations. • Workers who support the operation, inspection, and maintenance of essential dams, locks, and levees. • Workers who support the inspection and maintenance of aids to navigation and other government-
provided services that ensure continued maritime commerce.
COMMUNICATIONS AND INFORMATION TECHNOLOGY
Communications
• Maintenance of communications infrastructure, -- including privately owned and maintained communication systems, -- supported by technicians, operators, call centers, wireline and wireless providers, cable service providers, satellite operations, Internet Exchange Points, Points of Presence, Network Access Points, back haul and front haul facilities, and manufacturers and distributors of communications equipment.
• Government and private sector workers, including government contractors, with work related to undersea cable infrastructure and support facilities, including cable landing sites, beach manhole vaults and covers, submarine cable depots, and submarine cable ship facilities.
• Government and private sector workers, including government contractors, supporting Department of Defense internet and communications facilities.
• Network Operations staff, engineers, and technicians to include IT managers and staff, HVAC and electrical engineers, security personnel, software and hardware engineers, and database administrators that manage the network or operate facilities.
• Workers responsible for infrastructure construction and restoration, including but not limited to engineers, technicians, and contractors for construction and engineering of fiber optic cables, buried conduit, small cells, other wireless facilities, and other communications sector-related infrastructure. This includes permitting, construction of new facilities, and deployment of new technology as required to address congestion or customer usage due to unprecedented use of remote services.
• Installation, maintenance, and repair technicians that establish, support, or repair service as needed. • Central office personnel to maintain and operate central office, data centers, and other network office
facilities, including critical support personnel assisting front line workers. • Customer service and support staff, including managed and professional services, as well as remote
providers of support to transitioning workers to set up and maintain home offices, who interface with customers to manage or support service environments and security issues including payroll, billing, fraud, logistics, and troubleshooting. • Workers providing electronic security, fire, monitoring, and life safety services, and who ensure physical security, cleanliness, and the safety of facilities and personnel, including those who provide temporary licensing waivers for security personnel to work in other States or Municipalities. • Dispatchers involved with service repair and restoration. • Retail customer service personnel at critical service center locations to address customer needs, including new customer processing, distributing and repairing equipment, and addressing customer issues, in order to support individuals’ remote emergency communications needs

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.159 Page 56 of 60
Essential Critical Infrastructure Workforce
• Supply chain and logistics personnel to ensure goods and products are available to provision these frontline workers.
• External Affairs personnel to assist in coordinating with local, state, and federal officials to address communications needs supporting COVID-19 response, public safety, and national security.
• Workers responsible for ensuring that persons with disabilities have access to and the benefits of various communications platforms, including those involved in the provision of telecommunication relay services, closed captioning of broadcast television for the deaf, video relay services for deaf citizens who prefer communication via American Sign Language over text, and audio-description for television programming.
Information Technology
• Workers who support command centers, including, but not limited to, Network Operations Command Centers, Broadcast Operations Control Centers, and Security Operations Command Centers.
• Data center operators, including system administrators, HVAC and electrical engineers, security personnel, IT managers and purchasers, data transfer solutions engineers, software and hardware engineers, and database administrators for all industries, including financial services.
• Workers who support client service centers, field engineers, and other technicians and workers supporting critical infrastructure, as well as manufacturers and supply chain vendors that provide hardware and software, support services, research and development, information technology equipment (to include microelectronics and semiconductors), HVAC and electrical equipment for critical infrastructure, and test labs and certification agencies that qualify such equipment (to include microelectronics, optoelectronics, and semiconductors) for critical infrastructure, including data centers.
• Workers needed to preempt and respond to cyber incidents involving critical infrastructure, including medical facilities; state, local, tribal, and territorial (SLTT) governments and federal facilities; energy and utilities; banks and financial institutions; securities and other exchanges; other entities that support the functioning of capital markets, public works, critical manufacturing, food, and agricultural production; transportation; and other critical infrastructure categories and personnel, in addition to all cyber defense workers who can't perform their duties remotely.
• Suppliers, designers, transporters, and other workers supporting the manufacture, distribution, provision, and construction of essential global, national, and local infrastructure for computing services (including cloud computing services and telework capabilities), business infrastructure, financial transactions and services, web-based services, and critical manufacturing.
• Workers supporting communications systems, information technology, and work from home solutions used by law enforcement, public safety, medical, energy, public works, critical manufacturing, food and agricultural production, financial services, education, and other critical industries and businesses.
• Workers required in person to support Software as a Service businesses that enable remote working, performance of business operations, distance learning, media services, and digital health offerings, or required for technical support crucial for business continuity and connectivity.
OTHER COMMUNITY- OR GOVERNMENT-BASED OPERATIONS AND ESSENTIAL FUNCTIONS
• Workers to ensure continuity of building functions, including but not limited to security and environmental controls (e.g., HVAC), the manufacturing and distribution of the products required for these functions, and the permits and inspections for construction supporting essential infrastructure.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.160 Page 57 of 60
Essential Critical Infrastructure Workforce

• Elections personnel to include both public and private sector elections support. • Workers supporting the operations of the judicial system, including judges, lawyers, and others providing
legal assistance. • Workers who support administration and delivery of unemployment insurance programs, income
maintenance, employment service, disaster assistance, workers’ compensation insurance and benefits programs, and pandemic assistance. • Federal, State, and Local, Tribal, and Territorial government workers who support Mission Essential Functions and communications networks. • Trade Officials (FTA negotiators; international data flow administrators). • Workers who support radio, print, internet and television news and media services, including, but not limited to front line news reporters, studio, and technicians for newsgathering, reporting, and publishing news. • Workers supporting Census 2020. • Weather forecasters. • Clergy for essential support. • Workers who maintain digital systems infrastructure supporting other critical government operations. • Workers who support necessary permitting, credentialing, vetting, and licensing for essential critical infrastructure workers and their operations. • Customs and immigration workers who are critical to facilitating trade in support of the national emergency response supply chain. • Educators supporting public and private K-12 schools, colleges, and universities for purposes of facilitating distance learning or performing other essential functions. • Workers at testing centers for emergency medical services and other healthcare workers. • Staff at government offices who perform title search, notary, and recording services in support of mortgage and real estate services and transactions. • Residential and commercial real estate services, including settlement services. • Workers supporting essential maintenance, manufacturing, design, operation, inspection, security, and construction for essential products, services, supply chain, and COVID-19 relief efforts. • Workers performing services to animals in human care, including zoos and aquariums.
CRITICAL MANUFACTURING
• Workers necessary for the manufacturing of metals (including steel and aluminum), industrial minerals, semiconductors, materials and products needed for medical supply chains and for supply chains associated with transportation, aerospace, energy, communications, information technology, food and agriculture, chemical manufacturing, nuclear facilities, wood products, commodities used as fuel for power generation facilities, the operation of dams, water and wastewater treatment, processing and reprocessing of solid waste, emergency services, and the defense industrial base. Additionally, workers needed to maintain the continuity of these manufacturing functions and associated supply chains, and workers necessary to maintain a manufacturing operation in warm standby.
• Workers necessary for the manufacturing of materials and products needed to manufacture medical equipment and PPE.
• Workers necessary for mining and production of critical minerals, materials and associated essential supply chains, and workers engaged in the manufacture and maintenance of equipment and other

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.161 Page 58 of 60
Essential Critical Infrastructure Workforce
infrastructure necessary for mining production and distribution. • Workers who produce or manufacture parts or equipment that supports continued operations for any
essential services and increase in remote workforce, including computing and communication devices, semiconductors, and equipment such as security tools for Security Operations Centers (SOCs) or data centers. • Workers manufacturing or providing parts and equipment that enable the maintenance and continued operation of essential businesses and facilities.
HAZARDOUS MATERIALS
• Workers who manage hazardous materials associated with any other essential activity, including but not limited to healthcare waste (medical, pharmaceuticals, medical material production, and testing operations from laboratories processing and testing kits) and energy (including nuclear facilities).
• Workers who support hazardous materials response and cleanup. • Workers who maintain digital systems infrastructure supporting hazardous materials management
operations.
FINANCIAL SERVICES
• Workers who are needed to provide, process, and maintain systems for processing, verification, and recording of financial transactions and services, including payment, clearing, and settlement; wholesale funding; insurance services; consumer and commercial lending; public accounting; and capital markets activities.
• Workers who are needed to maintain orderly market operations to ensure the continuity of financial transactions and services.
• Workers who are needed to provide business, commercial, and consumer access to bank and non-bank financial services and lending services, including ATMs, lending and money transmission, lockbox banking, and to move currency, checks, securities, and payments (e.g., armored cash carriers).
• Workers who support financial operations and those staffing call centers, such as those staffing data and security operations centers, managing physical security, or providing accounting services.
• Workers supporting production and distribution of debit and credit cards. • Workers providing electronic point of sale support personnel for essential businesses and workers.
CHEMICAL
• Workers supporting the chemical and industrial gas supply chains, including workers at chemical manufacturing plants, laboratories, distribution facilities, and workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitizers, food and food additives, pharmaceuticals, paintings and coatings, textiles, building materials, plumbing, electrical, and paper products.
• Workers supporting the safe transportation of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items.
• Workers supporting the production of protective cleaning and medical solutions, PPE, chemical consumer and institutional products, disinfectants, fragrances, and packaging that prevents the contamination of food, water, medicine, among others essential products.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.162 Page 59 of 60
Essential Critical Infrastructure Workforce
• Workers supporting the operation and maintenance of facilities (particularly those with high risk chemicals and sites that cannot be shut down) whose work cannot be done remotely and requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspections.
• Workers (including those in glass container manufacturing) who support the production and transportation of chlorine and alkali manufacturing, single-use plastics, and packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, and other essential products.
DEFENSE INDUSTRIAL BASE
• Workers who support the essential services required to meet national security commitments to the federal government and U.S. Military, including, but are not limited to, space and aerospace workers, nuclear matters workers, mechanical and software engineers (various disciplines), manufacturing and production workers, IT support, security staff, security personnel, intelligence support, aircraft and weapon system mechanics and maintainers, and sanitary workers who maintain the hygienic viability of necessary facilities.
• Personnel working for companies, and their subcontractors, who perform under contract or sub-contract to the Department of Defense (DoD) and the Department of Energy (DoE) (on nuclear matters), as well as personnel at government-owned/contractor operated facilities, and who provide materials and services to the DoD and DoE (on nuclear matters), including support for weapon systems, software systems and cybersecurity, defense and intelligence communications, surveillance, sale of U.S. defense articles and services for export to foreign allies and partners (as authorized by the U.S. government), and space systems and other activities in support of our military, intelligence, and space forces.
COMMERCIAL FACILITIES
• Workers who support the supply chain of building materials from production through application and installation, including cabinetry, fixtures, doors, cement, hardware, plumbing (including parts and services), electrical, heating and cooling, refrigeration, appliances, paint and coatings, and workers who provide services that enable repair materials and equipment for essential functions.
• Workers supporting ecommerce through distribution, warehouse, call center facilities, and other essential operational support functions, that accept, store, and process goods, and that facilitate their transportation and delivery.
• Workers in hardware and building materials stores necessary to provide access to essential supplies, consumer electronics, technology and appliances retail, and related merchant wholesalers and distributors.
• Workers distributing, servicing, repairing, installing residential and commercial HVAC systems, boilers, furnaces and other heating, cooling, refrigeration, and ventilation equipment.
• Workers supporting the operations of commercial buildings that are critical to safety, security, and the continuance of essential activities, such as on-site property managers, building engineers, security staff, fire safety directors, janitorial personnel, and service technicians (e.g., mechanical, HVAC, plumbers, electricians, and elevator).
• Management and staff at hotels and other temporary lodging facilities that provide for COVID-19 mitigation, containment, and treatment measures or provide accommodations for essential workers.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-3 filed 04/20/20 PageID.163 Page 60 of 60
Essential Critical Infrastructure Workforce
RESIDENTIAL/SHELTER FACILITIES AND SERVICES
• Workers providing dependent care services, particularly those whose services ensure essential workers can continue to work.
• Workers who support food, shelter, and social services, and other necessities of life for needy groups and individuals, including in-need populations and COVID-19 responders including travelling medical staff.
• Workers in animal shelters. • Workers responsible for the leasing of residential properties to provide individuals and families with ready
access to available housing. • Workers responsible for handling property management, maintenance, and related service calls who can
coordinate the response to emergency “at-home” situations requiring immediate attention, as well as facilitate the reception of deliveries, mail, and other necessary services. • Workers performing housing and commercial construction related activities, including those supporting government functions related to the building and development process, such as inspections, permitting, and plan review services that can be modified to protect the public health, but fundamentally should continue and enable the continuity of the construction industry (e.g., allow qualified private third-party inspections in case of federal government shutdown). • Workers performing services in support of the elderly and disabled populations who coordinate a variety of services, including health care appointments and activities of daily living. • Workers responsible for the movement of household goods.
HYGIENE PRODUCTS AND SERVICES
• Workers who produce hygiene products. • Workers in laundromats, laundry services, and dry cleaners. • Workers providing personal and household goods, repair, and maintenance. • Workers providing disinfection services for all essential facilities and modes of transportation and who
support the sanitation of all food manufacturing processes and operations from wholesale to retail. • Workers necessary for the installation, maintenance, distribution, and manufacturing of water and space
heating equipment and its components. • Support required for continuity of services, including commercial disinfectant services, janitorial and
cleaning personnel, and support personnel functions that need freedom of movement to access facilities in support of front-line workers. • Workers supporting the production of home cleaning, pest control, and other essential products necessary to clean, disinfect, sanitize, and ensure the cleanliness of residential homes, shelters, and commercial facilities. • Workers supporting agriculture irrigation infrastructure. • Workers supporting the production of home cleaning and pest control products.

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Case 1:20-cv-00323-PLM-PJG ECF No. 8-4 filed 04/20/20 PageID.164 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY

BEEMER,

PAUL

CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

v.

No. 1:20-cv-00323 Hon. Paul L. Maloney

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

TEMPORARY RESTRAINING ORDER

Upon the motion of Plaintiffs Kimberly Beemer, Paul Cavanaugh, and Robert Muise (collectively referred to as “Plaintiffs”) pursuant to Rule 65 of the Federal Rules of Civil Procedure and for good cause shown;
It is hereby Ordered that Defendants Gretchen Whitmer, Allen Telgenhof, Brian Mackie, and William J. Vailliencourt, Jr., and their officers, agents, and employees (collectively referred to as “Defendants”), are temporarily enjoined from enforcing Executive Order 2020-42 as follows:
(1) Defendants are enjoined from enforcing Executive Order 2020-42’s measures that prohibit individuals from travelling between their own residences and cottages within the State of Michigan, thereby permitting Plaintiff Beemer, along with members of her household, to travel to and from her residence in Saginaw, Michigan and her cottage located in Charlevoix County, Michigan and permitting Plaintiff Cavanaugh, along with members of his household, to travel to and from his residence in Brighton, Michigan and his cottage located in Charlevoix County, Michigan;
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(2) Defendants are enjoined from enforcing Executive Order 2020-42’s measures that prohibit the operation of landscaping businesses within the State of Michigan, thereby permitting Plaintiff Cavanaugh to reopen his landscaping business, Cavanaugh’s Lawn Care LLC, so long as he and his employees practice social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the employee’s household;
(3) Defendants are enjoined from enforcing Executive Order 2020-42 insofar as it prohibits individuals, specifically including Plaintiffs Beemer and Cavanaugh, to engage in outdoor activities that include using boats with motors for fishing and other similar recreational purposes, consistent with remaining at least six feet from people from outside the individual’s household;
(4) Defendants are enjoined from enforcing Executive Order 2020-42 insofar as it conflicts with the March 28, 2020, U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency guidance on “critical infrastructure,” which identifies “Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” as “critical infrastructure,” thereby permitting gun stores and shooting ranges in Michigan to remain open and operational subject to social distancing measures recommended by the Centers for Disease Control and Prevention and permitting individuals, including Plaintiff Muise, to travel to and from such businesses; and
(5) Defendants are enjoined from enforcing Executive Order 2020-42’s measures that prohibit private, family gatherings at private residences, thereby permitting Plaintiff Muise to hold private gatherings for meals, fellowship, and prayer with his immediate family at his private residence located in Superior Township, Michigan.
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Case 1:20-cv-00323-PLM-PJG ECF No. 8-4 filed 04/20/20 PageID.166 Page 3 of 3 This Order shall remain in effect until the parties can be heard on Plaintiffs’ motion for a
preliminary injunction or upon further notice, but not to exceed 14 days, unless the Court extends the time for good cause. The hearing on the motion for a preliminary injunction will be held telephonically before this Court on ________________ at ______am/pm. Defendants are directed to file any written responses on or before ________________.
So Ordered at _______am/pm, this _____ day of April 2020. _________________________________ Paul L. Maloney United States District Court Judge
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 Case 1:20-cv-00323-PLM-PJG ECF No. 10 filed 04/23/20 PageID.168 Page 1 of 41

UNITED STATES DISRTICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

MAG. PHILLIP J. GREEN

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org
T. Joseph Seward (P35095) Seward Peck & Henderson PLLC Attorney for Defendant William J. Vailliencourt, Jr. 210 East 3rd Street, Suite 212 Royal Oak, MI 48067 248.733.3580 jseward@sph-pplc.com

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) John G. Fedynsky (P65232) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov
/

DEFENDANT WHITMER’S RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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CONCISE STATEMENT OF ISSUE PRESENTED
1. Jacobson gives the State broad authority to implement emergency measures when faced with a society-threatening epidemic – including measures that burden fundamental constitutional rights. Even without Jacobson, under traditional constitutional analysis, Executive Order 2020-42 passes muster. Plaintiffs fail to establish their entitlement to the extraordinary relief of a preliminary injunction because they cannot demonstrate a strong likelihood of success on the merits of their claims, cannot demonstrate irreparable harm, and cannot demonstrate that the balancing of the equities or the public interest favor an injunction.

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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).

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INTRODUCTION “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905). To that end, “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Id. at 26. This well-settled rule of law permits a state, in times of public health crises, to reasonably restrict the rights of individuals in order to secure the safety of the community. The scourge of COVID-19—a novel virus that quickly spread across the entire planet, infecting millions, and killing tens of thousands—presents such a crisis. Jurisdictions across the globe have had to impose aggressive measures to stem the viral tide that has overwhelmed healthcare systems worldwide. Schools have been shuttered, gatherings have been postponed, and business operations have been curtailed. Michigan is one of the states hardest hit by the pandemic. 31,424 have been confirmed infected and 2,391 have died, all in just over a month. There is no dispute that in the absence of any vaccine, social distancing is the most effective way to combat the virus and keep these numbers from escalating. Recognizing this, Defendant Governor Gretchen Whitmer has taken bold, yet reasonable and necessary, steps to prioritize social distancing in Michigan.
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In Executive Order 2020-42, Governor Whitmer exercised her authority under Michigan law to put measures in place to suppress the spread of the virus and protect the public health. These measures, subject to various exceptions, include: prohibiting in-person work that is not necessary to sustain or protect life; ordering individuals living in Michigan to stay at home or their place of residence; requiring those who do leave their home or place of residence to adhere to socialdistancing practices; and prohibiting the operation of businesses that require workers to leave home if those workers are not necessary to sustain or protect life or to conduct minimum basic operations.
Some of the exceptions include leaving a home or residence to: engage in outdoor physical activity; perform jobs as “critical infrastructure workers;”1 perform necessary government activities; perform tasks necessary to an individual’s or family member’s health and safety; to obtain necessary services and supplies; and to care for a family member in another household.
These generally applicable, temporary, and content-neutral measures strike a reasonable balance between the need for unnecessary in-person contact to cease and the need for essential services to continue. Most importantly, they are working for the benefit of the public health of everyone who lives in Michigan.
1 “Critical infrastructure workers” were defined in Sections 8 and 9 of the Executive Order, and include those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his March 19, 2020 guidance.
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Providing Plaintiffs with their requested relief would unlock exceptions to these generally applicable, and effective, public health measures in a time of most dire need. The judicial creation of such exceptions on a case-by-case, piecemeal basis infringes on the state’s authority to act in a public health crisis and threatens its overarching plan to cope with the dangers and protect the lives, health, and welfare of all Michiganders.
STATEMENT OF FACTS COVID-19 is similar to other coronaviruses (a large family of viruses that cause respiratory illnesses), but the strain is “novel,” i.e., never-before-seen. This means that there is no general or natural immunity built up in the population (meaning everyone is susceptible), no vaccine, and no known treatment to combat the virus itself (as opposed to treatment to mitigate its symptoms). Regardless of the lack of definitive information, public health officials do know that COVID-19 is highly contagious, spreading easily from person to person via “respiratory droplets.”2 Experts agree that being anywhere within six feet of an infected person puts you at a high risk of contracting the disease.3 But even following that advice is not a sure-fire way to prevent infection. The respiratory
2 World Health Organization, Modes of transmission of virus causing COVID-19, available at https://www.who.int/news-room/commentaries/detail/modes-oftransmission-of-virus-causing-covid-19-implications-for-ipc-precautionrecommendations. (Attached as Exhibit A). 3 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html. (Attached as Exhibit B).
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droplets from an infected person can land on surfaces, and be transferred many hours later to the eyes, mouth, or nose of others who touch the surface. Moreover, since many of those infected experience only mild symptoms, a person could spread the disease before he even realizes he is sick. Most alarmingly, a person with COVID-19 could be asymptomatic, yet still spread the disease.4 Everyone is vulnerable either as a potential victim of this scourge or a carrier of it to a potential victim.
Because there is no way to immunize or treat for COVID-19, the Centers for Disease Control has indicated the best way to prevent illness is to “avoid being exposed.”5 And, if experience from prior pandemics such as smallpox and the 1918 Spanish Influenza is any indication, early intervention to slow COVID-19’s transmission is critical.
In keeping with this advice, governmental entities have stressed the critical import of “social distancing,” the practice of avoiding public spaces and limiting movement.6 The objective of social distancing is what has been termed “flattening the curve,” that is, reducing the speed at which COVID-19 spreads. If the disease
4 (Id.) 5 (Id.) 6 (Id.)
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spreads too quickly, the limited resources of our healthcare system could easily become overwhelmed.7
On March 10, 2020, in response to the growing pandemic in Michigan, Governor Whitmer declared a state of emergency and invoked the emergency powers available to the Governor under Michigan law.8 On March 13, 2020, Governor Whitmer issued Executive Order 2020-5, prohibiting assemblages of 250 or more people in a single shared space with limited exceptions, and ordering the closure of all K-12 school buildings.9 Yet, even in the face of the social distancing recommendations and the six-foot rule of thumb, on Saturday, March 14, the public was out in droves.
On March 16, 2020, the Governor ordered various places of public accommodation, like restaurants, bars, and exercise facilities, to close their premises to the public.10 And on March 17, 2020, the Governor issued an order
7 See New York Times, Flattening the Coronavirus Curve (March 27, 2020), available at https://www.nytimes.com/article/flatten-curve-coronavirus.html. (Attached as Exhibit C). Take Italy, for example, where the healthcare system was so overloaded in just three weeks of dealing with the virus that it could not treat all patients infected, essentially leaving some to die. Upon information and belief, Singapore eased early restriction and then saw a rise in cases – the dreaded specter of a “second wave” of this pandemic. 8 EO No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. (Attached as Exhibit D). 9 EO No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. (Attached as Exhibit E). 10 EO No. 2020-9, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. (Attached as Exhibit F) (Replaced by EO 2020-20).
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rescinding 2020-5, changing the cap on assemblages to fifty persons in a single shared indoor space, and expanding the scope of exceptions from that cap.11
Subsequently, on March 23, 2020, again in response to the spreading pandemic in Michigan, Governor Whitmer issued Executive Order No. 2020-21, which essentially ordered all persons not performing essential or critical infrastructure job functions to stay in their place of residence, other than to obtain groceries, care for loved ones, engage in outdoor activity consistent with social distancing, and other limited exceptions.12 The order also prohibited, with limited exceptions, all public and private gatherings of any number of people that are not part of a single household.13 That order was to continue through April 13, 2020; however, on April 9, 2020, the Governor issued Executive Order 2020-42, extending the Stay-home Order through April 30, 2020.14 It is this Executive Order which Plaintiffs challenge, in various forms, that is before this Court.
STANDARD FOR PRELIMINARY INJUNCTION In deciding whether to grant a preliminary injunction, a court weighs four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3)
11 EO No. 2020-11, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html. (Attached as Exhibit G). 12 EO No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. (Attached as Exhibit H). 13 (Id.) 14 EO No. 2020-42, available at https://content.govdelivery.com/ attachments/MIEOG/2020/04/09/file_attachments/1423850/EO%202020-42.pdf. (Attached as Exhibit I).
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whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012).
Importantly, “[t]he party seeking the preliminary injunction bears the burden of justifying such relief, including showing irreparable harm and likelihood of success,” and faces a “much more stringent [standard] than the proof required to survive a summary judgment motion” because a preliminary injunction is “an extraordinary remedy.” McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012). It is “reserved only for cases where it is necessary to preserve the status quo until trial.” Hall v. Edgewood Partners, 878 F.3d 524, 526 (6th Cir. 2017).
Applying these factors to the case at bar, Plaintiffs’ motion for injunctive relief must be denied.
ARGUMENT I. Plaintiffs are not likely to succeed on the merit of the claims.
Although the four factors “are factors to be balanced” and “not prerequisites to be met,” a preliminary injunction cannot issue where “there is simply no likelihood of success on the merits.” Bays, 668 F.3d at 818–19 (internal quotation marks omitted). “When a party seeks a preliminary injunction on the basis of a potential constitutional violation, the likelihood of success on the merits often will be the determinative factor.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012).
Here, Plaintiffs are not likely to succeed on the merits of their claims for multiple reasons. First, their claims are not ripe. Second, the restrictions in the
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Governor’s Executive Order are a proper exercise of the expanded authority given to the States to combat a public health crisis. Third, even under a more traditional analysis of the alleged constitutional violations, the restrictions at issue pass muster.
A. Plaintiffs’ claims are not ripe. Plaintiffs have failed to allege Article III standing in this pre-enforcement case because they have not pled an intent to violate the Executive Order or a credible threat of enforcement. Lacking these two necessary ingredients, the case is not ripe and Plaintiffs lack standing. Ripeness is a piece of Article III standing, which limits this Court’s jurisdiction to Cases and Controversies. U.S. Const., Art. III, Sec 2. The limits of Article III standing are “built on separation-of-powers principles,” which “serve[] to prevent the judicial process from being used to usurp the powers of the political branches.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 407 (2013)). That is reflected in the Supreme Court’s “especially rigorous” standing inquiry when the merits of a constitutional question pit the judiciary to pass on the constitutionality of the other branches of government. See Clapper, 568 U.S. at 408. A personal stake in the outcome of a controversy is a necessary part of standing, and that stake must be in the form of an injury that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Driehaus, 573 U.S. at 158. An allegation of future injury may suffice if the threatened injury is “certainly impending,” or there is a “ ‘substantial risk’ that the harm will occur.” Id.
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In short, in a pre-enforcement challenge, the plaintiff must allege (1) an intention to engage in the conduct he claims is unconstitutionally proscribed and (2) a credible threat of prosecution. McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016). Here, Plaintiffs have alleged neither. In fact, they have commendably acknowledged they have not violated the Executive Order and give no reason to believe that they intend to. As a result, this Court should ultimately dismiss the matter for lack of Article III standing and Plaintiffs are therefore unlikely to succeed on the merits of any of their claims.
B. The States have wide latitude in dealing with great dangers to public health.
The worldwide impact of COVID-19 is recognized by all. Such an extraordinary circumstance requires extraordinary governmental measures. Executive Order 2020-42 is an extraordinary, yet reasonable and constitutional measure.
1. Jacobson v. Commonwealth of Massachusetts Faced with “great danger[ ],” state actors are permitted great latitude to secure the public health. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905). And in this time of crisis, securing the public health requires temporary sacrifices by each of us: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Id. at 26.
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In Jacobson, the Supreme Court considered a claim that the state’s mandatory vaccination law, which applied to every person in Cambridge, Massachusetts, due to a growing smallpox epidemic, violated the defendant’s Fourteenth Amendment right “to care for his own body and health in such way as to him seems best.” Jacobson, 197 U.S. at 26. The Supreme Court upheld this bold, invasive measure as a proper exercise of the States’ police power because of the exigencies and dangerousness of the public health crisis. It affirmed that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. As the Court stated,
in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Jacobson, 197 U.S. at 29. Jacobson even highlighted the circumstance, without hesitation, in which seemingly healthy people were quarantined against their will aboard a ship on which others had cases of serious diseases. Id. at 29. The Court noted that such a drastic measure was reasonable “until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.” Id. at 29. Recognizing the separation of powers, and the fitness of the judiciary to invade the authority of a co-equal branch, the Court hesitated to “usurp the functions of another branch of government” by second-guessing the executive’s exercise of police power in such circumstances. Id. at 28.
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Of course, constitutional rights do not disappear in the face of a public health crisis, but the analysis of the government’s action changes. Review is “only” available if the challenged action “has no real or substantial relation to those objects [of securing public health and safety], or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31 (emphasis added).
Jacobson’s principle is no outlier. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”); Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 393 (1902) (upholding Louisiana’s right to quarantine even apparently healthy passengers aboard a vessel over a due process challenge).
And Jacobson not only remains good law, see, e.g., Kansas v. Hendricks, 521 U.S. 346, 356 (1997) (block quoting Jacobson in support of the proposition that “an individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context”), but the Fifth Circuit recently had occasion to apply Jacobson to COVID-19-related regulations that burden a fundamental right. See In re Abbott, No. 20-50264, 2020 WL 1685929, at *8 (5th Cir. Apr. 7, 2020) (“Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”) (emphasis in original).
In Abbott, the Fifth Circuit turned away a challenge to a Texas regulation that effectively barred abortions. The rationale supplied was that personal protective equipment (PPE) required for these procedures would be needed in the
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fight against COVID-19. Id. at *3. The Fifth Circuit held that, under Jacobson, the regulation had a “real or substantial relation” to the crisis—it intended to free up PPE for health care professionals in the face of a shortage. Id. at *8. The Court also found that it was not “beyond question, in palpable conflict with the Constitution.” Id. at *9. The Court emphasized the limited temporal reach of the restriction (3 weeks). Id. at *9–10. And, given the existence of what it termed “facially broad exceptions,” the Court found that the regulation did not show a palpable conflict. Id. And even though he disagreed on the result, the dissenting judge recognized the broad reach of Jacobson and the standard to be applied. Id. at *19 (Dennis, J., dissenting).
Notably, Plaintiffs’ motion fails to meaningfully acknowledge Jacobson, and to discuss and analyze why it should not control here. That omission alone is fatal to Plaintiff’s claims and requests for emergency preliminary relief. Even if Plaintiffs were to engage Jacobson, it would be a futile attempt, for there is no arguing against its well-settled rule of law. Plaintiffs cannot dispute the gravity of the pandemic in Michigan. It appears to be a once-in-a-century kind of epidemiological public health crisis. In such times, the State has wide plenary authority to temporarily restrict activity that presents a diffuse but real threat to the public health. Under Jacobson and applicable principles of separation of powers, judicial deference to state authority responding to the crisis is paramount.
2. Application of Jacobson Plaintiffs allege the impingement of various constitutional rights. Under Jacobson, in the face of the current public health crisis, the Governor’s Executive
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Order is entitled to great deference, despite any impingement on individual rights, and must be upheld unless it has “no real or substantial relation” to the public health crisis, or is, “beyond all question, a plain, palpable invasion of rights.”
With this standard in mind, Jacobson requires that Governor’s Executive Order be upheld in its entirety. While the impact of any restriction on some aspect of normalcy outside of a pandemic is no doubt important, it is temporary and in specific response to a widespread public health crisis. The Court should view each restriction through the lens of the general public health justifications and the overarching goal of limiting the spread of this novel virus. A myopic, activity-specific framing of any issue is not helpful to the analysis. Appropriate understanding of the nature of the pandemic and the four corners of the implicated executive orders is adequate to the task before the Court. Consider each of Plaintiffs’ challenges in turn.
a. Closure of nonessential businesses, like lawn service businesses, nurseries, and gun shops
While no line-drawing is perfect, the bottom-line consideration that merits judicial deference is maximizing measures to limit the spread of the virus while not restricting essential, life-sustaining activity and services. Additionally, state authority had to also consider the temporary nature of any restriction and what as a general matter could be endured while flattening the curve. Accordingly, certain types of food service and outdoor activity must continue as safely as possible under the executive orders. Lawn service, nurseries, and gun shops fall outside of the zone of critical, life-sustaining activity and services that are exempted from the
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general restrictions. Under these temporary restrictions, life can go on without operation of these sectors of the economy while public health is served by flattening the curve.
The point is not, as Plaintiffs argue, to imagine how each specific activity might be accomplished safely by using social distancing and other recommended prophylactic measures. In a drought, where the point is to avoid uncontrolled wildfires, there can be no allowance for those who promise to be really careful with their campfire and only use it for life-sustaining cooking. In a pandemic, the point is to keep workers and consumers alike away from each other and away from surfaces and other places where the invisible virus may lurk.
To wit, a lawn servicer alone while mowing a lawn may appear both innocuous and inoculated for purposes of the virus.
But appearances are deceiving. To get to that position, the mower or a coworker had to handle multiple objects – vehicles, gas pumps and containers, the tools of the trade, products like mulch and fertilizer, gates and fences, doors and mailboxes, etc. Each of these contacts increases the incidence of the virus spreading. Like innumerable small breezes against a sail, enough will push a sailboat over a waterfall if the course is not changed and the sail not brought under control. Use of personal protective equipment, sanitizers, and the like will only
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mitigate and will present the downside of depleting limited resources better used in frontline healthcare, supply chain, and other essential industries.15
This last point merits emphasis. Michigan, like other states, is in the throes of an impending shortage of PPE for medical professionals and other critical infrastructure workers. One N95 mask used by a landscaper is one fewer available for those in the health care industry, law enforcement, or other individuals required to provide critical infrastructure support. See In re Abbott, 2020 WL 1685929, at *8 (finding that restricting access to abortion had a “real or substantial relation” to the COVID-19 crisis because it was intended to free up PPE for health care professionals in the face of a shortage). In the zero-sum game of securing PPE in this time of scarcity, pulling one thread in the Governor’s coordinated response jeopardizes the rest of the quilt.
The same analysis applies to nurseries and gun shops. The restrictions are temporary and aimed at what can and cannot be done safely in the context of the pandemic.16 Adequate time must be given for the public health goals to be served
15 The exception for local government to maintain public parks and trails does not support Plaintiffs’ position. The difference is in the essential purposes served by that maintenance – general public access free of hazards for essential lifesustaining activity. Private lawn and garden service does not serve either function and therefore it is not exempted from the generally applicable public health restrictions. 16 It should be further noted that the temporary restrictions on lawn services and nurseries has been mitigated by the fact that Michigan has recently experienced April snow and unseasonably cold weather. Even in the absence of the restrictions, the weather would have postponed much of the “lost” economic activity Plaintiffs claim here.
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and a transition to economic normalcy to return. Judicial deference is appropriate not just on the substance of this challenge but the timing as well. Temporary suspension of certain non-essential activity must be permitted as a matter of public health. As a matter of separation of powers, distinctions between essential and non-essential and safe and unsafe are best left to the branch designed for and equipped to make those calls. The Governor’s Executive Order should not be undercut by disparate preliminary judicial carveouts in the wake of a particular litigant’s race to the courthouse.
b. Prohibiting contact between persons from separate households
To limit the spread of the virus, contact between persons from separate households must be minimized as well. Accommodation is made for the health and welfare of others, but that is a life-sustaining exception. See, e.g., Executive Order 2020-42 (Paragraph 7(a)(5).) The Court is no doubt aware of prominent examples of even top public officials distancing themselves from children and grandchildren who live in other residences. This is the sacrifice that all Michiganders must make. One need only examine a family tree or a network of friends to see that we are all connected in one way or another. Commonly, there are six degrees of separation between any two people, and that number is reduced all the more in families, neighborhoods, and other communities. Allowing for non-essential visits would
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open a gateway for the virus in every family and social network.17 That consequence is precisely the opposite of what the public health goals are in this pandemic.
The separation required by this restriction is indeed a burden. But it is a temporary burden with the long view in mind – fighting the virus. Social distancing, moreover, is not the same as social isolation. Technology – telephones, e-mails, video links – are available to allow Michiganders to be separate yet together in this shared sacrifice. Under the circumstances, and the rule of Jacobson, Plaintiffs are not likely to succeed on this part of their challenge.
c. Prohibiting travel from one residence to another The restriction prohibiting travel between two residences is critical to prevent the virus from traveling from one part of the state to another, and in particular, from more densely populated areas to less densely populated areas. As the virus ravaged southeastern Michigan, health systems were quickly at or above capacity. Medical supplies were dwindling, and beds in intensive care units were in short supply. There was a very real and imminent danger that hospitals could be completely overrun. A similar outbreak of the virus in a rural area of the State would have dire consequences. Opportunities for medical care and treatment in less densely
17 Contrary to Plaintiffs’ assertions, EO 2020-42 does not prohibit using a private residence as a place for religious worship. Section 13 of EO 2020-42 exempts from enforcement “a place for religious worship, when used for religious worship.” This exemption from enforcement applies to religious worship held in a private residence.
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populated areas of the State are fewer. Rural areas have fewer medical specialists or resources like a fleet of ventilators that could be needed to absorb legions of severely ill patients. Access to testing is limited in remote areas of the State. These concerns warrant extenuating limitations for travel to cottages and other, second residences.
In sum, the rural areas of Michigan are particularly vulnerable to the threat of COVID-19. The higher risk to these areas calls for special protection. The restriction prohibiting persons from traveling between two residences is directly aimed at preventing the spread of the disease from one part of the state to another, and in particular, from urban areas to rural areas. Based upon the foregoing, under Jacobson, this regulation has a “real or substantial relation” to the crisis.
d. Prohibiting operation of motorboats For many of the same reasons already articulated, the operation of motorpropelled watercraft is reasonably restricted under these circumstances. As with walking, biking, and the like, use of personally propelled craft such as kayaks and canoes is permitted. This distinction is rooted, again, in the life-sustaining exerciseoriented operation of that craft. Motor-propelled craft do not serve the same function and therefore, it is reasonable for their operation to be temporarily suspended. Return to the example of the lone mower in a large lawn. A lone boater may appear to be in a similarly safe position. But again, appearances can be deceiving. How did that boater get to be out there alone in the lake? Was there contact with a gas pump, gas containers, and other equipment along the way? What about gates,
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ramps, docks, and boat launches? Did that boater need to also navigate a crowded marina, dock, or launch area where due to the geography people congregate and social distancing is a challenge? If there is an exigent incident or a disabling of the craft, how many other people will have to come assist and be in contact with the boater? What will that mean for limited resources among first responders and in the healthcare system? Upon examination, the public health concerns are manifest. Where the state’s position under Jacobson is even arguable, Plaintiffs are not likely to succeed on the merits and the Court should defer to coequal authority.
In sum, the restrictions in the Governor’s Order have a real and substantial relation to stopping the spread of the virus and do not result, beyond question, in a plain, palpable invasion of rights. Accordingly, under Jacobson, those temporary restrictions must be upheld, and Plaintiffs have no likelihood of success on the merits of their claims. On this basis alone, preliminary injunctive relief should be denied.
C. Even under traditional constitutional analysis, the Governor’s Order passes muster
Should the Court disagree that Jacobson is dispositive, even under a more traditional analysis, Plaintiffs are not likely to succeed on the merits of their constitutional claims.
1. Due Process The Due Process Clause provides heightened protection against government interference with certain fundamental rights and liberty interests. See Reno v. Flores, 507 U.S. 292, 301–302 (1993). In analyzing whether a particular right
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implicates the protection of the Due Process Clause, courts must first define the asserted right and then ask whether it is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (cleaned up). Government action that curtails fundamental rights generally receives strict scrutiny, requiring the government prove its regulation is narrowly tailored to serve a compelling interest. Id. (citing Flores, 507 U.S. at 302).
a. The right to intrastate travel The Sixth Circuit is of a few circuits to recognize the right to intrastate travel as “fundamental.” In Johnson v. City of Cincinnati, the Court held that the Due Process Clause of the Fourteenth Amendment protects the “right to travel locally through public spaces and roadways.” 310 F.3d 484, 495 (6th Cir. 2002). The level of scrutiny to be applied to a state-imposed travel restriction depends on the severity of the restriction. In Johnson, the Court applied strict scrutiny because the ordinance in question “impose[d] a more severe restriction” than “regulating the manner in which affected individuals” accessed an area (i.e., an anti-cruising ordinance), or the time of access (i.e., a curfew) by “broadly prohibiting individuals to access the entire neighborhood.” 310 F.3d at 502. Despite applying strict scrutiny in reviewing the ordinance in Johnson, the court noted the possibility that intermediate scrutiny could be applied to a “less severe regulation of localized travel.” Id. at 502. Johnson also cited United States v. Salerno, 481 U.S. 739, 750–51 (1987) for the proposition that the “importance and fundamental nature of an individual’s interest in liberty . . . may, in circumstances
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where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” Johnson, 310 F.3d at 503.
EO 2020-42 is a “less severe regulation of localized travel” than the type at issue in Johnson and should be reviewed using a lesser form of scrutiny, i.e., intermediate scrutiny. Id; see also Hannemann v. S. Door Cty. Sch. Dist., 673 F.3d 746, 756 (7th Cir. 2012) (upholding a complete ban on the plaintiff from schools grounds in the county); Williams v. Town of Greenburgh, 535 F.3d 71, 75–76 (2d Cir. 2008) (“[I]t is clear that the right [to intrastate travel] protects movement between places and has no bearing on access to a particular place.” (emphasis in original)).
EO 2020-42 does not ban all travel in the State of Michigan. Indeed, it allows substantial amount of travel for citizens engaged in essential functions. Furthermore, the travel restrictions in the EO are temporary, partially restricting intrastate travel for only three weeks. The travel restrictions in EO 2020-42 are markedly different than the ordinance in Johnson, which completely denied access to individuals for either three months or one year. 310 F.3d at 493. The essential function exemptions represent a balance between reducing travel—and therefore human interactions—and allowing citizens to engage in essential functions of living. These exemptions reduce the efficacy of the travel restrictions because every time
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someone fills up their gas tank, they risk spreading the virus.18 Given that between 25% and 60% of people inflicted with coronavirus may not show any symptoms,19 there simply is no way to perfectly tailor travel restrictions to individuals who are infected or have been in contact with people who are infected.
To be sure, EO 2020-42 does not deny any citizen of this State “access” to certain areas or roadways. Instead, EO 2020-42 temporarily bans nonessential traffic, allowing citizens to engage in intrastate travel to, among other things, go to work if they perform critical functions, to get groceries, and household and pet supplies, to take care of elderly family members or their children, to volunteer and to exercise. EO 2020-42 does not “broadly prohibit[] individuals to access [] entire neighborhood[s],” towns, or cities. Johnson, 310 F.3d at 502. Thus, EO 2020-42 is more like a curfew or anti-cruising ordinance insofar as it does not deny access, it “regulat[es] the manner in which . . . individuals” access an area by limiting travel by function without completely shutting down or denying access to certain areas. 310 F.3d at 502; see also Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1256 (M.D. Pa. 1975), aff'd, 535 F.2d 1245 (3d Cir. 1976) (holding that a curfew for minors that served a “legitimate” interest of the city and contained “numerous exceptions that allow[ed] minors to be on the streets during the curfew hours when
18 The latest scientific data says that the virus can survive up to seventy-two (72) hours on plastic and stainless steel. https://www.nejm.org/doi/10.1056/NEJMc2004973 (Attached as Exhibit K). 19 Available at https://www.nbcnews.com/health/health-news/how-many-peoplehave-had-coronavirus-no-symptoms-n1187681 (Attached as Exhibit J).
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they [had] a specific, important, legitimate purpose for being there” was constitutional).
Whether this Court finds that EO 2020-42’s restrictions on intrastate travel should be reviewed using intermediate or strict scrutiny, it should hold that the restrictions are constitutional.20 Strict scrutiny requires the State show that EO 2020-42 is narrowly tailored to serve a compelling State interest. See Glucksberg, 521 U.S. at 721. As to the State interest at the heart of EO 2020-42, it seeks to “protect the health, safety, and welfare of citizens in” Michigan in the face of a deadly pandemic, a compelling interest. Johnson, 310 F.3d at 502. For the reasons discussed above, the Executive Order serves the compelling government interest through the means least restrictive under the circumstances. Thus, they do not violate the Plaintiffs’ right to intrastate travel. Johnson, 310 F.3d at 502-503.
b. Deprivation of Property The Sixth Circuit has also recognized that a substantive due process violation occurs when arbitrary and capricious government action deprives an individual of a constitutionally protected property interest. See Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216, 1217 (6th Cir. 1992); see also Nectow v. City of Cambridge, 277
20 The State avers that, in the face of a global pandemic and upwards of thirty thousand Michiganders already infected, EO 2020-42 passes constitutional muster under intermediate scrutiny as well. While this section focuses on the EO’s constitutionality under a strict scrutiny review, the State also asserts there is a “reasonable fit” between EO 2020-42’s travel restrictions and the “significant, substantial, [and] important” State objective in containing the spread of COVID-19. Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 693 (6th Cir. 2016) (outlining the test for intermediate scrutiny).
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U.S. 183, 187–88 (1928) (holding that a court should not interfere unless the locality’s action “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense”) (internal quotation marks and citation omitted).
While challenges to arbitrary and capricious government action appear most frequently in cases involving zoning and other ordinances, see, e.g., Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974), they are not necessarily limited to such cases, see, e.g., Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 82–83 (1978) (noting that federal economic regulations will be upheld “absent proof of arbitrariness or irrationality on the part of Congress”) (citation omitted).
Here, however, there is nothing illogical, arbitrary or capricious about the Governor’s promulgation of EO 2020-42. Given the characteristics of COVID-19, the restrictions ordered in the EO are necessary to protect the public from the spread of disease. “The fundamental nature of an individual’s interest in liberty . . . may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” Salerno, 481 U.S. at 750–51. Now is such a time.
c. Vagueness Courts apply a two-part test to determine whether a law is unconstitutionally vague: first, the law must give a person of “ordinary intelligence a reasonable opportunity to know what is prohibited, so that [they] may act accordingly[;]” and second, the standards of enforcement must be precise enough to avoid “involving so
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many factors of varying effect that neither the person to decide in advance nor the jury after the fact can safely and certainly judge the result.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (internal citation omitted); Columbia Natural Resources v. Tatum, 58 F.3d 1101, 1105 (6th Cir. 1995).
Here, while Plaintiffs’ motion mentions vagueness in passing, they offer no argument or analysis to demonstrate why EO 2020-42 is vague. Indeed, Plaintiffs offer no reasoning whatsoever to explain why EO 2020-42 cannot be understood by a person of ordinary intelligence, or why the standards of enforcement are imprecise. Instead, Plaintiffs contend that EO 2020-42 is vague because the Order lacks a rational basis. Not so. EO 2020-42 strikes a rational and reasonable balance between the need for unnecessary in-person contact to cease and the need for essential services to continue.
2. Second Amendment a. EO 2020-42 is generally applicable and neutral, and the State does not need to show a compelling interest for enacting it.
EO 2020-42 does not single out gun stores for closure. Instead, the order requires all stores to close to prevent the spread of COVID-19 unless those stores provide services or sell items falling into a narrow group of services and products deemed to be essential. To be sure, EO 2020-42 applies broadly, but that is required to drastically reduce the number of interactions between individuals as a communicable virus with no known immunity threatens to rip through the population. Its breadth and generality are also what renders the EO
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constitutional—it is generally applicable, and with regard to the constitutional rights of Michiganders, it is neutral. Because it is neutral, it does not violate the Second Amendment rights of the Plaintiffs. Neutral laws of general applicability are presumed constitutional, even when they encroach on an individual’s constitutional rights. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993).
EO 2020-42 is neutral because it demands all stores—save a select few selling essential products—to shut down. That necessarily includes stores that sell guns and ammunition as well as stores that sell books, other media, religious products, and other items potentially protected by the First Amendment and other constitutional provisions. But it also requires stores shut down if they sell hair products, or sporting goods, or clothes, or any number of items to which the constitution does not guarantee a right of possession.
Which is precisely the point. EO 2020-42 does not discriminate. It does not target constitutionally protected items or activities, nor does it target anything outside the protections of the constitution. It is neutral, and it is generally applicable. Thus, it does not violate the Plaintiff’s Second Amendment rights. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531; see also Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 890 (1990).
In this case, the State enacted an emergency “public health regulation” that does not “single out” gun stores “for the imposition of its burden.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 704–707 (1986). The Second Amendment “is not
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implicated by the enforcement of a public health regulation of general application” against stores that “happen to sell” guns. Id. at 707. Plaintiffs seek special protection from the EO for their favored constitutionally protected activity, but they cannot claim “special protection from governmental regulations of general applicability simply by virtue of their . . . protected activities.” Id. at 705. And the State need not create exemptions in its generally applicable EO to protect Plaintiffs’ Second Amendment rights. See Smith, 494 U.S. at 890.
b. Even if EO 2020-42 is not considered neutral in its application, it does not violate the Second Amendment.
EO 2020-42 does not infringe on the right of Plaintiffs to possess firearms, it orders that gun stores—like most other stores—temporarily shut down to prevent the spread of a contagious, deadly virus. EO 2020-42 therefore does not burden Plaintiffs’ conduct falling “within the scope of the Second Amendment right, as historically understood.” And if it does, it does so in furtherance of a “significant, substantial, or important” State objective.
There is a “reasonable fit” between EO 2020-42 and a “significant, substantial, or important” State objective. As argued above, the State’s objective has nothing to do with curtailing gun ownership or reducing gun sales and everything to do with reducing the number of people interacting with one another during a pandemic, squarely within the State’s responsibility to exercise its police power to keep Michiganders safe. EO 2020-42 represents the State’s most workable and systematic attempt to exercise that core power to reduce the number of daily human interactions in the State, and its tangential effect in delaying the purchase
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of firearms from gun and ammunition stores does not violate a core Second Amendment right.
In Heller, the Supreme Court held that individuals have a right under the Second Amendment to possess a firearm and use that firearm for self-defense of their home. 554 U.S. at 574–625. The Heller Court warned that “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id. at 625. It went on to note that it did not “cast doubt” on certain “longstanding” firearm regulations, including “laws imposing conditions and qualifications on the commercial sale of arms.” Id. at 626–27. These “longstanding” prohibitions and laws are “presumptively lawful regulatory measures.” Id. at 627, n. 26; see also McDonald v. City of Chicago, Ill., 561 U.S. 742, 786 (2010) (affirming its language in Heller that “laws imposing conditions and qualifications on the commercial sale of arms” and presumptively valid).
Importantly here, “the act of selling firearms is not part or parcel of the right to ‘keep and bear arms,’ ” and the “Second Amendment does not confer a freestanding right to sell firearms.” Teixeira v. Cty. of Alameda, 873 F.3d 670, 687, 689 (9th Cir. 2017) (en banc).
In this circuit, laws regulating firearms that do not “burden conduct that falls within the scope of the Second Amendment right, as historically understood” are deemed constitutional against a Second Amendment challenge. United States v. Greeno, 679 F.3d 510, 518 (6th Cir. 2012). Laws that do burden conduct falling within the scope of the Second Amendment as historically understood and that
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constitute a “severe burden” on a “core” Second Amendment right are subject to strict scrutiny from the Court, whereas laws that no do not severely burden a core Second Amendment right get intermediate scrutiny. See Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 690 (6th Cir. 2016).
To determine the appropriate level of scrutiny under Greeno, the Court must consider whether temporarily shutting down gun stores “burden[s] conduct that falls within the scope of the Second Amendment right, as historically understood,” 679 F.3d at 518, meaning possession of firearms and use of them in self-defense of one’s home. Heller, 554 U.S. at 574–625. But the Court in Heller went to great lengths to clarify that “laws imposing conditions and qualifications on the commercial sale of arms”—akin to the regulation here—are “presumptively valid.” Id. at 626–27, 627 n. 26; see also McDonald 561 U.S. at 786.
Plaintiffs cannot show that EO 2020-42 burdens their conduct historically protected by the Second Amendment. Plaintiffs do not have a Second Amendment right to have gun stores in their area open for business no matter the circumstances. Indeed, Plaintiffs do not have a Second Amendment right to purchase or acquire guns on demand. See, e.g., Colo. Outfitters Ass’n v. Hickenlooper, 24 F. Supp. 3d 1050 (D. Colo. 2014) (upholding background checks), vacated on standing grounds, 823 F.3d 537 (10th Cir. 2016); Silvester v. Harris, 843 F.3d 816 (9th Cir. 2016) (upholding waiting periods); Libertarian Pty. of Erie Cty. v. Cuomo, 300 F. Supp. 3d 424 (W.D.N.Y. 2018) (affirming licensing requirements),
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appeal docketed, No. 18-386 (2d Cir. Feb. 8, 2018); Heller v. District of Columbia, 801 F.3d 264 (D.C. Cir. 2015) (upholding training requirements).
EO 2020-42 simply does not deprive Plaintiffs of the right to possess, use, buy, or acquire firearms. Therefore, Plaintiffs cannot show that EO 2020-42 “burden[s] conduct that falls within the scope of the Second Amendment right, as historically understood,” and the EO is constitutional. See Greeno, 679 F.3d at 518; see also Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d 185, 196 (5th Cir. 2012) (“[W]e state that a longstanding, presumptively lawful regulatory measure—whether or not it is specified on Heller’s illustrative list—would likely fall outside the ambit of the Second Amendment; that is, such a measure would likely be upheld at step one of our framework.”). Moreover, it cannot be said that the supposed right to have gun stores open in one’s area is a “core” Second Amendment right, particularly where the owners of the gun stores themselves do not have a “core” Second Amendment right to operate their store. See Heller, 554 U.S. at 626–27; Teixeira, 873 F.3d at 687, 689.
Assuming intermediate scrutiny as the correct rubric, the test is whether “the government’s stated objective” is “significant, substantial, or important,” and there must be a “reasonable fit between the challenged regulation and the asserted objective.” Id. at 693 (quoting United States v. Chovan, 735 F.3d 1127, 1139 (9th Cir. 2013). “All that is required is a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served.” Id. (citing Neinast v. Bd. of Trs.
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of Columbus Metro. Library, 346 F.3d 585, 594 (6th Cir. 2003) (internal quotations omitted)).
When applying intermediate scrutiny to EO 2020-42, this Court must hold that EO 2020-42 does not violate Plaintiffs’ Second Amendment rights. The State of Michigan, along with every state in this nation and almost every country across the globe, is faced with an unprecedented challenge in containing the outbreak of COVID-19. Absent State action, tens of thousands of Michiganders will die, and hundreds of thousands more will be sickened, many requiring hospitalization. This interest is certainly “significant, substantial, [and] important.” Tyler, 837 F.3d at 693. And there is surely a “reasonable fit” between EO 2020-42’s temporary restrictions—aimed at reducing the number of interactions between people and places to slow the spread of COVID-19—with the State’s goal of reducing the impact COVID-19 will have on the healthcare industry and the health of Michiganders. Id. Under intermediate scrutiny, EO 2020-42 passes constitutional muster, and it does not violate Plaintiffs’ Second Amendment rights.
And, even if the Court were to apply strict scrutiny, EO 2020-42 would pass muster for the same reasons articulated above.
3. Right of Association The Supreme Court has recognized a “right of association,” in certain circumstances. In Roberts v. United States Jaycees, 468 U.S. 609, 617–618 (1984), the Court noted two different sorts of “freedom of association” that are protected by the United States Constitution: one premised on the maintenance of certain intimate human relationships, and one premised on the right to engage in activities
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protected by the First Amendment, “speech, assembly, petition for the redress of grievances, and the exercise of religion.”
Here, the “association” referenced in the Complaint – visiting the home of a relative – is not the sort of “intimate human relationship” referred to in Roberts. Further, the Supreme Court has recognized that
[i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Therefore, the activities described in the complaint qualify neither as a form of “intimate association” nor as a form of “expressive association” as those terms were described in Roberts. And while the Supreme Court has recognized that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics, Griswold v. Connecticut, 381 U.S. 479, 483 (1965), the Court has not recognized a generalized right of “social association” that includes the social activities described in the complaint in this case. Stanglin, 490 U.S. at 25. Because no fundamental right is implicated, the “freedom of association” challenge in this case is analyzed under rational-basis scrutiny, which is the most relaxed and tolerant form of constitutional scrutiny. “The rational-basis standard is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Dandridge v. Williams, 397 U.S. 471, 485-486 (1970). “[I]t is only the
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invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” New Orleans v. Dukes, 427 U.S. 297, 303–304 (1976).
On rational basis review, the policy being challenged bears “a strong presumption of validity.” F.C.C. v. Beach Commcn’s, Inc., 508 U.S. 307, 315 (1993). “This standard is highly deferential; courts hold statutes unconstitutional under this standard of review only in rare or exceptional circumstances.” Doe v. Mich. Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007)). “Under rational basis scrutiny,” the plaintiff bears the burden to show that the government action “is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational.” Michael v. Ghee, 498 F.3d 372, 379 (6th Cir. 2007)).
Here, for the reasons already described at length above, the restriction on gatherings between persons from separate households is designed to limit the spread of the virus. There is an unquestionable rational basis for the restriction. Limiting contact between persons from separate households must be minimized and is constitutionally permissible under the circumstances.21
21 As previously noted, contrary to Plaintiffs’ assertions, EO 2020-42 does not prohibit using a private residence as a place for religious worship. Section 13 of EO 2020-42 exempts from enforcement “a place for religious worship, when used for religious worship.” This exemption from enforcement applies to religious worship held in a private residence.
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4. Equal Protection The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. The Supreme Court has stated that this language “embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799 (1997). The States cannot make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one person differently from others similarly situated without any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Bible Believers v. Wayne County, 805 F.3d 228, 256 (6th Cir. 2015) (en banc); Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010). “The threshold element of an equal protection claim is disparate treatment.” Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). In typical equal protection cases, plaintiffs generally allege that they have been arbitrarily classified as members of an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). When the identifiable group has not been recognized as a suspect or quasi-suspect class, courts examine the classification under rational basis review. See, e.g., Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
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Here, Plaintiffs do not allege that they have been arbitrarily classified into a group that has been recognized as a suspect or quasi-suspect class. Further, EO 2020-42 contains generally applicable, temporary, and content-neutral measures. The rational basis supporting all of the challenged restrictions EO 2020-42 has been explained in detail in the preceding sections. Therefore, Plaintiffs’ equal protection claims cannot be maintained as a matter of law.
5. Contract Clause The Contracts Clause provides that “[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts.” U.S. Const. art. I § 10. The Sixth Circuit, however, has specifically held that an alleged Contracts Clause violation cannot give rise to a cause of action under 42 U.S.C. § 1983. Kaminski v. Coulter, 865 F.3d 339, 347 (6th Cir. 2017). Accordingly, Plaintiffs’ have no likelihood of success on their Contract Clause claim. All told, even under a traditional analysis of Plaintiffs’ claims, the restrictions imposed in the Governor’s Executive Order pass constitutional muster, and Plaintiffs are therefore not likely to succeed on the merits of their claims. On this basis, injunctive relief should be denied. II. Plaintiffs have failed to establish irreparable injury The second factor that a court must consider when deciding whether to issue a preliminary injunction is whether the plaintiff will suffer irreparable injury without the injunction. Tumblebus, Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005). “A plaintiff's harm from the denial of a preliminary injunction is irreparable if it is not fully compensable by monetary damages.” Overstreet v. Lexington–
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Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir. 2002). Courts have also held that a plaintiff can demonstrate that a denial of an injunction will cause irreparable harm if the claim is based upon a violation of the plaintiff's constitutional rights. See, e.g., Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (recognizing that the loss of First Amendment rights, for even a minimal of time, constitutes irreparable harm) (citations omitted).
As demonstrated in the preceding sections, Plaintiffs’ constitutional rights are not being violated. There is no other basis for irreparable harm asserted by the Plaintiffs. This factor favors Governor Whitmer. III. The issuance of the injunction would cause harm to third parties and
would not benefit the public interest The third and fourth factors are similar—whether enforcement of the injunction will cause “substantial harm” to third parties, and whether it would serve the public interest. In regard to the fourth factor, the public interest “will not be as important as the other factors considered in the award of preliminary injunctive relief in actions involving only private interests, [but] it will be prominently considered in actions implicating government policy or regulation, or other matters of public concern.” 13 Moore’s Federal Practice § 65.22 (Matthew Bender 3d. ed). Here, issuing an injunction that precludes enforcement of any part of the Governor’s Executive Order would harm third parties and would not benefit the public. The Executive Order was put in place after careful consideration of the unique nature of the threat facing Michigan and the advice of numerous individuals
36

Case 1:20-cv-00323-PLM-PJG ECF No. 10 filed 04/23/20 PageID.207 Page 40 of 41

and entities with unique expertise. A piecemeal lifting of restrictions by this Court, without regard to the State’s carefully considered, deliberate, ongoing plan to combat the crisis and transition back to normalcy, increases the risk and potential harm to everyone. As a result, the third and fourth factors favor Governor Whitmer as well.
CONCLUSION AND RELIEF REQUESTED Governor Whitmer respectfully requests this Court deny Plaintiffs’ motion for temporary restraining order and preliminary injunction.
Respectfully submitted, Dana Nessel Attorney General

Dated: April 23, 2020

/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) John G. Fedynsky (P65232) Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov P71887

37

Case 1:20-cv-00323-PLM-PJG ECF No. 10 filed 04/23/20 PageID.208 Page 41 of 41 CERTIFICATE OF SERVICE
I certify that on April 23, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record, and I certify that my secretary has mailed by U.S. Postal Service the papers to any non-ECF participant.
/s/ Joseph T. Froehlich Joseph T. Froehlich Assistant Attorney General State Operations Division Attorney for Defendant Whitmer
38

Case 1:20-cv-00323-PLM-PJG ECF No. 10-1 filed 04/23/20 PageID.209 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT A

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 10-1 filed 04/23/20 PageID.210 Page 2 of 7

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Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations

Scientific brief

29 March 2020 ‫ العربية‬中文

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This version updates the 27 March publication by providing definitions of droplets by particle size and adding three relevant publications.
Modes of transmission of the COVID-19 virus
Respiratory infections can be transmitted through droplets of different sizes: when the droplet particles are >5-10 μm in diameter they are referred to as respiratory droplets, and when then are <5μm in diameter, they are referred to as droplet nuclei.1 According to current evidence, COVID-19 virus is primarily transmitted between people through respiratory droplets and contact routes.2-7 In an analysis of 75,465 COVID-19 cases in China, airborne transmission was not reported.8
Droplet transmission occurs when a person is in in close contact (within 1 m) with someone who has respiratory symptoms (e.g., coughing or sneezing) and is therefore at risk of having his/her mucosae (mouth and nose) or conjunctiva (eyes) exposed to potentially infective respiratory droplets. Transmission may also occur through fomites in the immediate environment around the infected person.8 Therefore,
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 10-1 filed 04/23/20 PageID.211 Page 3 of 7 transmission of the COVID-19 virus can occur by direct contact with infected people and indirect contact with surfaces in the immediate environment or with objects used on the infected person (e.g., stethoscope or thermometer).
Airborne transmission is different from droplet transmission as it refers to the presence of microbes within droplet nuclei, which are generally considered to be particles <5μm in diameter, can remain in the air for long periods of time and be transmitted to others over distances greater than 1 m.
In the context of COVID-19, airborne transmission may be possible in specific circumstances and settings in which procedures or support treatments that generate aerosols are performed; i.e., endotracheal intubation, bronchoscopy, open suctioning, administration of nebulized treatment, manual ventilation before intubation, turning the patient to the prone position, disconnecting the patient from the ventilator, noninvasive positive-pressure ventilation, tracheostomy, and cardiopulmonary resuscitation.
There is some evidence that COVID-19 infection may lead to intestinal infection and be present in faeces. However, to date only one study has cultured the COVID-19 virus from a single stool specimen.9 There have been no reports of faecal−oral transmission of the COVID-19 virus to date.
Implications of recent findings of detection of COVID-19 virus from air sampling
To date, some scientific publications provide initial evidence on whether the COVID-19 virus can be detected in the air and thus, some news outlets have suggested that there has been airborne transmission. These initial findings need to be interpreted carefully.
A recent publication in the New England Journal of Medicine has evaluated virus persistence of the COVID-19 virus.10 In this experimental study, aerosols were generated using a three-jet Collison nebulizer and fed into a Goldberg drum under controlled laboratory conditions. This is a high-powered machine that does not reflect normal human cough conditions. Further, the finding of COVID-19 virus in aerosol particles up to 3 hours does not reflect a clinical setting in which aerosol-generating procedures are performed—that is, this was an experimentally induced aerosol-generating procedure.
There are reports from settings where symptomatic COVID-19 patients have been admitted and in which
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 10-1 filed 04/23/20 PageID.212 Page 4 of 7 no COVID-19 RNA was detected in air samples.11-12 WHO is aware of other studies which have evaluated the presence of COVID-19 RNA in air samples, but which are not yet published in peer-reviewed journals. It is important to note that the detection of RNA in environmental samples based on PCR-based assays is not indicative of viable virus that could be transmissible. Further studies are needed to determine whether it is possible to detect COVID-19 virus in air samples from patient rooms where no procedures or support treatments that generate aerosols are ongoing. As evidence emerges, it is important to know whether viable virus is found and what role it may play in transmission.
Conclusions
Based on the available evidence, including the recent publications mentioned above, WHO continues to recommend droplet and contact precautions for those people caring for COVID-19 patients. WHO continues to recommend airborne precautions for circumstances and settings in which aerosol generating procedures and support treatment are performed, according to risk assessment.13 These recommendations are consistent with other national and international guidelines, including those developed by the European Society of Intensive Care Medicine and Society of Critical Care Medicine14 and those currently used in Australia, Canada, and United Kingdom.15-17
At the same time, other countries and organizations, including the US Centers for Diseases Control and Prevention and the European Centre for Disease Prevention and Control, recommend airborne precautions for any situation involving the care of COVID-19 patients, and consider the use of medical masks as an acceptable option in case of shortages of respirators (N95, FFP2 or FFP3).18-19
Current WHO recommendations emphasize the importance of rational and appropriate use of all PPE,20 not only masks, which requires correct and rigorous behavior from health care workers, particularly in doffing procedures and hand hygiene practices.21 WHO also recommends staff training on these recommendations,22 as well as the adequate procurement and availability of the necessary PPE and other supplies and facilities. Finally, WHO continues to emphasize the utmost importance of frequent hand hygiene, respiratory etiquette, and environmental cleaning and disinfection, as well as the importance of maintaining physical distances and avoidance of close, unprotected contact with people with fever or respiratory symptoms.
WHO carefully monitors emerging evidence about this critical topic and will update this scientific brief as more information becomes available.
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
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References
1. World Health Organization. Infection prevention and control of epidemic- and pandemic-prone acute respiratory infections in health care. Geneva: World Health Organization; 2014 Available from: https://apps.who.int/iris/bitstream/handle/10665/112656/9789241507134_eng.pdf?sequence=1
2. Liu J, Liao X, Qian S et al. Community transmission of severe acute respiratory syndrome coronavirus 2, Shenzhen, China, 2020. Emerg Infect Dis 2020 doi.org/10.3201/eid2606.200239
3. Chan J, Yuan S, Kok K et al. A familial cluster of pneumonia associated with the 2019 novel coronavirus indicating person-to-person transmission: a study of a family cluster. Lancet 2020 doi: 10.1016/S01406736(20)30154-9
4. Li Q, Guan X, Wu P, et al. Early transmission dynamics in Wuhan, China, of novel coronavirus-infected pneumonia. N Engl J Med 2020; doi:10.1056/NEJMoa2001316.
5. Huang C, Wang Y, Li X, et al. Clinical features of patients infected with 2019 novel coronavirus in Wuhan, China. Lancet 2020; 395: 497–506.
6. Burke RM, Midgley CM, Dratch A, Fenstersheib M, Haupt T, Holshue M,et al. Active monitoring of persons exposed to patients with confirmed COVID-19 — United States, January–February 2020. MMWR Morb Mortal Wkly Rep. 2020 doi : 10.15585/mmwr.mm6909e1external icon
7. World Health Organization. Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) 16-24 February 2020 [Internet]. Geneva: World Health Organization; 2020 Available from: https://www.who.int/docs/default- source/coronaviruse/who-china-joint-mission-on-covid-19-finalreport.pdf
8. Ong SW, Tan YK, Chia PY, Lee TH, Ng OT, Wong MS, et al. Air, surface environmental, and personal protective equipment contamination by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) from a symptomatic patient. JAMA. 2020 Mar 4 [Epub ahead of print].
9. Zhang Y, Chen C, Zhu S et al. [Isolation of 2019-nCoV from a stool specimen of a laboratory-confirmed case of the coronavirus disease 2019 (COVID-19)]. China CDC Weekly. 2020;2(8):123–4. (In Chinese)
10. van Doremalen N, Morris D, Bushmaker T et al. Aerosol and Surface Stability of SARS-CoV-2 as compared with SARS-CoV-1. New Engl J Med 2020 doi: 10.1056/NEJMc2004973
11. Cheng V, Wong S-C, Chen J, Yip C, Chuang V, Tsang O, et al. Escalating infection control response to the rapidly evolving epidemiology of the Coronavirus disease 2019 (COVID-19) due to SARS-CoV-2 in Hong Kong. Infect Control Hosp Epidemiol. 2020 Mar 5 [Epub ahead of print].
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Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 10-1 filed 04/23/20 PageID.214 Page 6 of 7 12. Ong SW, Tan YK, Chia PY, Lee TH, Ng OT, Wong MS, et al. Air, surface environmental, and personal
protective equipment contamination by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) from a symptomatic patient. JAMA. 2020
13. WHO Infection Prevention and Control Guidance for COVID-19 available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/infectionprevention-and-control
14. Surviving Sepsis Campaign: Guidelines on the Management of Critically Ill Adults with Coronavirus Disease 2019 (COVID-19). Intensive Care Medicine DOI: 10.1007/s00134-020-06022-5 https://www.sccm.org/SurvivingSepsisCampaign/Guidelines/COVID-19
15. Interim guidelines for the clinical management of COVID-19 in adults Australasian Society for Infectious Diseases Limited (ASID) https://www.asid.net.au/documents/item/1873
16. Coronavirus disease (COVID-19): For health professionals. https://www.canada.ca/en/publichealth/services/diseases/2019-novel-coronavirus-infection/health-professionals.html
17. Guidance on infection prevention and control for COVID-19 https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control
18. Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. https://www.cdc.gov/coronavirus/2019ncov/infection-control/control-recommendations.html
19. Infection prevention and control for COVID-19 in healthcare settings https://www.ecdc.europa.eu/en/publications-data/infection-prevention-and-control-covid-19-healthcaresettings
20. Rational use of PPE for COVID-19. https://apps.who.int/iris/bitstream/handle/10665/331498/WHO-2019nCoV-IPCPPE_use-2020.2-eng.pdf
21. Risk factors of Healthcare Workers with Corona Virus Disease 2019: A Retrospective Cohort Study in a Designated Hospital of Wuhan in China. https://academic.oup.com/cid/advancearticle/doi/10.1093/cid/ciaa287/5808788
22. Infection Prevention and Control (IPC) for Novel Coronavirus (COVID-19) Course. https://openwho.org/courses/COVID-19-IPC-EN
WHO continues to monitor the situation closely for any changes that may affect this interim guidance. Should any factors change, WHO will issue a further update. Otherwise, this scientific brief will expire 2 years after the date of publication.
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 10-1 filed 04/23/20 PageID.215 Page 7 of 7 © World Health Organization 2020. Some rights reserved. This work is available under the CC BY-NC-SA 3.0 IGO license.
WHO reference number: WHO/2019-nCoV/Sci_Brief/Transmission_modes/2020.2
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Modes of transmission of virus causing COVID-19
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Case 1:20-cv-00323-PLM-PJG ECF No. 10-2 filed 04/23/20 PageID.216 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT B

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 10-2 filed 04/23/20 PageID.217 Page 2 of 5
Search


Coronavirus Disease 2019 (COVID-19)
Social Distancing

Keep Your Distance to Slow the Spread
OOtthherr LLaanngguaugaegses PPrriinnt PPaaggee
Limiting face-to-face contact with others is the best way to reduce the spread of coronavirus disease 2019 (COVID-19).
What is social distancing?
Social distancing, also called “physical distancing,” means keeping space between yourself and other people outside of your home. To practice social or physical distancing:
Stay at least 6 feet (2 meters) from other people Do not gather in groups Stay out of crowded places and avoid mass gatherings
In addition to everyday steps to prevent COVID-19, keeping space between you and others is one of the best tools we have to avoid being exposed to this virus and slowing its spread locally and across the country and world.
When COVID-19 is spreading in your area, everyone should limit close contact with individuals outside your household in indoor and outdoor spaces. Since people can spread the virus before they know they are sick, it is important to stay away from others when possible, even if you have no symptoms. Social distancing is especially important for people who are at higher risk of getting very sick.

Why practice social distancing?
COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 10-2 filed 04/23/20 PageID.218 Page 3 of 5 prolonged period. Spread happens when an infected person coughs, sneezes, or talks, and droplets from their mouth or nose are launched into the air and land in the mouths or noses of people nearby. The droplets can also be inhaled into the lungs. Recent studies indicate that people who are infected but do not have symptoms likely also play a role in the spread of COVID-19.
It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes. However, this is not thought to be the main way the virus spreads. COVID-19 can live for hours or days on a surface, depending on factors such as sun light and humidity. Social distancing helps limit contact with infected people and contaminated surfaces.
Although the risk of severe illness may be different for everyone, anyone can get and spread COVID-19. Everyone has a role to play in slowing the spread and protecting themselves, their family, and their community.
Tips for social distancing
Follow guidance from authorities where you live. If you need to shop for food or medicine at the grocery store or pharmacy, stay at least 6 feet away from others.
Use mail-order for medications, if possible. Consider a grocery delivery service. Cover your mouth and nose with a cloth face cover when around others, including when you have to go out in public, for example to the grocery store.
Stay at least 6 feet between yourself and others, even when you wear a face covering.
Avoid large and small gatherings in private places and public spaces, such a friend’s house, parks, restaurants, shops, or any other place. This advice applies to people of any age, including teens and younger adults. Children should not have in-person playdates while school is out. To help maintain social connections while social distancing, learn tips to keep children healthy while school’s out. Work from home when possible. If possible, avoid using any kind of public transportation, ridesharing, or taxis. If you are a student or parent, talk to your school about options for digital/distance learning.
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 10-2 filed 04/23/20 PageID.219 Page 4 of 5 Stay connected while staying away. It is very important to stay in touch with friends and family that don’t live in your home. Call, video chat, or stay connected using social media. Everyone reacts differently to stressful situations and having to socially distance yourself from someone you love can be difficult. Read tips for stress and coping.
What is the difference between quarantine and isolation?
Quarantine
Quarantine is used to keep someone who might have been exposed to COVID-19 away from others. Someone in self-quarantine stays separated from others, and they limit movement outside of their home or current place. A person may have been exposed to the virus without knowing it (for example, when traveling or out in the community), or they could have the virus without feeling symptoms. Quarantine helps limit further spread of COVID-19.
Isolation
Isolation is used to separate sick people from healthy people. People who are in isolation should stay home. In the home, anyone sick should separate themselves from others by staying in a specific “sick” bedroom or space and using a different bathroom (if possible).
What should I do if I might have been exposed? If I feel sick? Or have confirmed COVID-19?
If you think you have been exposed to COVID-19, read about symptoms.
If you or someone in your home might have been exposed
Self-Monitor
Be alert for symptoms. Watch for fever,* cough, or shortness of breath.
Take your temperature if symptoms develop.
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 10-2 filed 04/23/20 PageID.220 Page 5 of 5 Practice social distancing. Maintain 6 feet of distance from others, and stay out of crowded places. Follow CDC guidance if symptoms develop.
If you feel healthy but: Recently had close contact with a person with COVID-19, or Recently traveled from somewhere outside the U.S. or on a cruise ship or river boat
Self-Quarantine Check your temperature twice a day and watch for symptoms. Stay home for 14 days and selfmonitor. If possible, stay away from people who are high-risk for getting very sick from COVID-19.
If you: Have been diagnosed with COVID-19, or Are waiting for test results, or Have symptoms such as cough, fever, or shortness of breath
Self-Isolate
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.221 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

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EXHIBIT C

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.222 Page 2 of 7
SCIENCE |
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Flattening the Coronavirus Curve
One chart explains why slowing the spread of the infection is nearly as important as stopping it.
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How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.223 Page 3 of 7
The longer it takes for coronavirus to spread the population, the more time hospitals have to prepare. Drew Harris
By Siobhan Roberts March 27, 2020
At the end of February, Drew Harris, a population health analyst at Thomas Jefferson University in Philadelphia, had just flown across the country to visit his daughter in Eugene, Ore., when he saw an article on his Google news feed. It was from The Economist, and was about limiting the damage of the coronavirus. The accompanying art, by the visual-data journalist Rosamund Pearce, based on a graphic that had appeared in a C.D.C. paper titled “Community Mitigation Guidelines to Prevent Pandemic Influenza,” showed what Dr. Harris called two epi curves. One had a steep peak indicating a surge of coronavirus outbreak in the near term; the other had a flatter slope, indicating a more gradual rate of infection over a longer period of time. The gentler curve results in fewer people infected at this critical moment in time — preventing a surge that would inundate the healthcare system and ultimately, one hopes, resulting in fewer deaths. “What we need to do is flatten that down,” said Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, during the coronavirus task force briefing at the White House on a Tuesday evening in early March. “You do that with trying to interfere with the natural flow of the outbreak.” The infographic reminded Dr. Harris of something similar that he had designed years earlier for a pandemic preparedness training program. “Folks in the preparedness and public health community have been
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.224 Page 4 of 7
thinking about all of these issues for many years,” Dr. Harris said in an email. “Understanding and managing surge is an important part of preparedness.” But during the training course, Dr. Harris’s students had struggled with the concept of reducing the epidemic curve, so he added a dotted line indicating hospital capacity — “to make clear what was at stake,” he said.
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After his visit with his daughter, Dr. Harris was waiting for his return flight in Portland when the first Oregon coronavirus case was announced; he had dinner at a busy airport bar and thought about how quiet the place would be in a week or two when the reality of the outbreak set in. Once home, he recreated his graphic and posted it on Twitter and LinkedIn, and was pleased to see the enthusiastic interest in flattening the curve.
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“Now I know what going viral means,” Dr. Harris said. (For a more detailed analysis, see a recent paper in The Lancet, “How will country-based mitigation measures influence the course of the COVID-19 epidemic?”)
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The following is an edited version of our email conversation.
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.225 Page 5 of 7
What does it mean to “flatten the curve”?
The ideal goal in fighting an epidemic or pandemic is to completely halt the spread. But merely slowing it — mitigation — is critical. This reduces the number of cases that are active at any given time, which in turn gives doctors, hospitals, police, schools and vaccine-manufacturers time to prepare and respond, without becoming overwhelmed. Most hospitals can function with 10 percent reduction in staff, but not with half their people out at once. Some commentators have argued for getting the outbreak over with quickly. That is a recipe for panic, unnecessary suffering and death. Slowing and spreading out the tidal wave of cases will save lives. Flattening the curve keeps society going.
What exactly do those two curves show?
Both curves add up the number of new cases over time. The more people reporting with the virus on a given day, the higher the curve; a high curve means the virus is spreading fast. A low curve shows that the virus is spreading slower — fewer people are diagnosed with the disease on any given day. Keeping the curve down — diminishing the rate at which new cases occur — prevents overtaxing the finite resources (represented by the dotted line) available to treat it.
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Think of the health care system capacity as a subway car that can only hold so many people at once. During rush hour, that capacity is not enough to handle the demand, so people must wait on the platform for their turn to ride. Staggering work hours diminishes the rush hour and increases the likelihood that you will get on the train and maybe even get a seat. Avoiding a surge of coronavirus cases can ensure that anyone who needs care will find it at the hospital.
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https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.226 Page 6 of 7
What sorts of mitigation measures help transform the red curve into the blue curve?
Diseases spread when one person gives it to one or more others, who go on to give it to more people, and so on. How fast this occurs depends on many factors, including how contagious the disease is, how many people are vulnerable and how quickly they get sick.
The difference between seasonal flu and coronavirus is that many people have full or partial immunity to the flu virus because they have had it before or were vaccinated against it. Far more people are vulnerable to coronavirus, so it has many more targets of opportunity to spread. Keeping people apart in time and space with social distancing measures, selfisolation and actual quarantine decreases opportunities for transmission.
To take the subway example again, a packed car — or a packed subway platform — is a great place to spread the virus. But reducing the number of people on the train or platform, by asking people to work from home or to stagger their working hours, enables individuals to stay farther apart, limiting the spread of the virus. That is social distancing in action.
Mitigation efforts keep people farther apart, making every transmission opportunity marginally less likely. This slows the spread. We should, and will, take the most vulnerable people out of the population altogether by keeping them totally separate. This is what Washington State is trying to do by limiting visitors to nursing homes. Think of this as a reverse quarantine.
What are you doing day-to-day in response to these unusual times?
Like most everyone else, I’m more aware of my surroundings and behaviors. I try to use a sleeve or elbow to open doors, and I wash my hands or use hand sanitizers after I touch a surface that might be contaminated. And I made sure to have a good supply of my prescription and nonprescription medications, just in case any shortages occur after the shutdown of Chinese pharmaceutical suppliers. I’m following the lead of my public health officials here in Philadelphia, where there is only one case as of Tuesday, and travel isn’t restricted. I’m avoiding crowds and sick people. I am going out, and will continue to do so unless a quarantine is ordered or public places are closed.
I know there is a good chance that I will catch the virus before a vaccine becomes available, but I also believe I’m very likely to do fine. I’m not in any high-risk group. But I worry about the more vulnerable folks and want
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 10-3 filed 04/23/20 PageID.227 Page 7 of 7
to do what I can to prevent the spread. I also worry about people who lack the resources I have. What happens to the self-employed, hourly workers and people in the gig economy when business stops? What about the homeless who depend upon charity and services for support? It’s these second-order effects that could be just as devastating if this epidemic really takes off.
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Coronavirus and statistics The Exponential Power of Now March 13, 2020
The Coronavirus, by the Numbers March 5, 2020
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 10-4 filed 04/23/20 PageID.228 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT D

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-5 filed 04/23/20 PageID.231 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT E

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-6 filed 04/23/20 PageID.234 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT F

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-7 filed 04/23/20 PageID.238 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT G

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-8 filed 04/23/20 PageID.242 Page 1 of 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT H

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-8 filed 04/23/20 PageID.249 Page 8 of 9

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-9 filed 04/23/20 PageID.251 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT I

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Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.262 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT J

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.263 Page 2 of 7
CORONAVIRUS
How many people have had coronavirus with no symptoms?
More mild or asymptomatic cases means the death rate may be lower than initially feared.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.264 Page 3 of 7
Amid coronavirus concerns, a healthcare worker takes the temperature of a visitor to Essentia Health who was crossing over a skywalk bridge from the adjoining parking deck, Friday, April 10, 2020, in Duluth, Minn. Alex Kormann / AP file
April 20, 2020, 9:01 AM EDT
By The Associated Press
A flood of new research suggests that far more people have had the coronavirus without any symptoms, fueling hope that it will turn out to be much less lethal than originally feared. While that’s clearly good news, it also means it’s impossible to know who around you may be contagious. That complicates decisions about returning to work, school and normal life. Full coverage of the coronavirus outbreak In the last week, reports of silent infections have come from a homeless shelter in Boston, a U.S. Navy aircraft carrier, pregnant women at a New York hospital, several European countries and California.
Coronavirus survivors speak out about recovery challenges
APRIL 19, 2020 / 02:18
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https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.265 Page 4 of 7
  
The head of the U.S. Centers for Disease Control and Prevention says 25 percent of infected people might not have symptoms. The vice chairman of the Joint Chiefs of Staff, Gen. John Hyten, thinks it may be as high as 60 percent to 70 percent among military personnel. None of these numbers can be fully trusted because they’re based on flawed and inadequate testing, said Dr. Michael Mina of Harvard’s School of Public Health. Collectively, though, they suggest “we have just been off the mark by huge, huge numbers” for estimating total infections, he said. Worldwide, more than 2.3 million infections and more than 160,000 deaths have been confirmed. The virus has caused nearly unprecedented economic and social harm since its existence was reported in early January.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.266 Page 5 of 7
Stealth cases
Based on known cases, health officials have said the virus usually causes mild or moderate flu-like illness. Now evidence is growing that a substantial number of people may have no symptoms at all.
Scientists in Iceland screened 6 percent of its population to see how many had previously undetected infections and found that about 0.7 percent tested positive. So did 13 percent of a group at higher risk because of recent travel or exposure to someone sick.
Related
Doctors say virus tests crucial to identifying 'Trojan horses'
HEALTH
Aboard the aircraft carrier USS Theodore Roosevelt, where one crew member died from the virus, “the rough numbers are that 40 percent are symptomatic,” said Vice Adm. Phillip Sawyer, deputy commander of naval operations. The ratio may change if more develop symptoms later, he warned.
In New York, a hospital tested all pregnant women coming in to deliver over a two-week period. Nearly 14 percent of those who arrived with no symptoms of coronavirus turned out to have it. Of the 33 positive cases, 29 had no symptoms when tested, although some developed them later.
Previously, tests on passengers and crew from the Diamond Princess cruise ship found nearly half who tested positive had no symptoms at the time. Researchers estimate that 18 percent of infected people never developed any.
Flawed methods
These studies used tests that look for bits of the virus from throat and nose swabs, which can miss cases. Someone can test negative one day if there’s not much virus to detect and then positive the next.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.267 Page 6 of 7
Symptoms also may not appear when someone is tested but turn up later. One Japanese study found more than half of those who had no symptoms when they tested positive later felt sick.

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2020 ELECTION

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Better answers may come from newer tests that check blood for antibodies, substances the immune system makes to fight the virus. But the accuracy of these, too, is still to be determined.
On Friday, researchers reported results from antibody tests on 3,300 people in California’s Santa Clara county: Between 1.5 percent and 2.8 percent have been infected, they claimed. That would mean 48,000 to 81,000 cases in the county — more than 50 times the number that have been confirmed.
Download the NBC News app for full coverage of the coronavirus outbreak
The work has not been formally published or reviewed, but some scientists were quick to question it. Participants were recruited through Facebook ads, which would attract many people likely to be positive who have had symptoms and want to know if the coronavirus was the reason. Some neighborhoods also had way more participants than others, and “hot spots” within the county might have made infections seem more common than they are elsewhere.
Ships, maternity wards and single counties also don’t provide data that can be used to generalize about what’s happening elsewhere. And many of the figures have come from snapshots, not research on wide populations over time.
Next steps
Antibody testing in particular needs to be done “in an unbiased approach” on groups of people that are representative of the geographic, social, racial and other conditions, Mina said.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 10-10 filed 04/23/20 PageID.268 Page 7 of 7 The CDC and other groups plan such studies, and they could guide public health advice on returning to normal life for people in certain areas.
If infections are more widespread than previously understood, it’s possible that more people have developed some level of immunity to the virus. That could stifle the spread through what’s called herd immunity, but scientists caution that there is still much to learn about whether mild illnesses confer immunity and how long it might last.
It will probably be months before enough reliable testing has been done to answer those questions and others, including how widespread infections have been and the virus’s true mortality rate, which has only been estimated so far.
“If they’ve all seen the virus before, then maybe you can relax in that neighborhood” and ease social distancing, Mina said. “We’re not anywhere close where we need to be” on antibody testing to do that yet, he said.
Follow NBC HEALTH on Twitter & Facebook.
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https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 10-11 filed 04/23/20 PageID.269 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov

/

EXHIBIT K

Case 1:20-cv-00323-PLM-PJG ECF No. 10-11 filed 04/23/20 PageID.270 Page 2 of 5
The new england journal of medicine
Correspondence

Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1

1564 1567 1568 1572 1575 1576 1577

To the Editor: A novel human coronavirus that is now named severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (formerly called HCoV-19) emerged in Wuhan, China, in late 2019 and is now causing a pandemic.1 We analyzed the aerosol and surface stability of SARS-CoV-2 and compared it with SARS-CoV-1, the most closely related human coronavirus.2
We evaluated the stability of SARS-CoV-2 and SARS-CoV-1 in aerosols and on various surfaces and estimated their decay rates using a Bayesian regression model (see the Methods section in the Supplementary Appendix, available with the full text of this letter at NEJM.org). SARS-CoV-2 nCoV-WA1-2020 (MN985325.1) and SARS-CoV-1 Tor2 (AY274119.3) were the strains used. Aerosols (<5 μm) containing SARS-CoV-2 (105.25 50% tissue-culture infectious dose [TCID50] per milliliter) or SARS-CoV-1 (106.75-7.00 TCID50 per milliliter)
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Baroreflex Dysfunction

were generated with the use of a three-jet Collison nebulizer and fed into a Goldberg drum to create an aerosolized environment. The inoculum resulted in cycle-threshold values between 20 and 22, similar to those observed in samples obtained from the upper and lower respiratory tract in humans.
Our data consisted of 10 experimental conditions involving two viruses (SARS-CoV-2 and SARS-CoV-1) in five environmental conditions (aerosols, plastic, stainless steel, copper, and cardboard). All experimental measurements are reported as means across three replicates.
SARS-CoV-2 remained viable in aerosols throughout the duration of our experiment (3 hours), with a reduction in infectious titer from 103.5 to 102.7 TCID50 per liter of air. This reduction was similar to that observed with SARS-CoV-1, from 104.3 to 103.5 TCID50 per milliliter (Fig. 1A).
SARS-CoV-2 was more stable on plastic and stainless steel than on copper and cardboard, and viable virus was detected up to 72 hours after application to these surfaces (Fig. 1A), although the virus titer was greatly reduced (from 103.7 to 100.6 TCID50 per milliliter of medium after 72 hours on plastic and from 103.7 to 100.6 TCID50 per milliliter after 48 hours on stainless steel). The stability kinetics of SARS-CoV-1 were similar (from 103.4 to 100.7 TCID50 per milliliter after 72 hours on plastic and from 103.6 to 100.6 TCID50 per milliliter after 48 hours on stainless steel). On copper, no viable SARS-CoV-2 was measured after 4 hours and no viable SARS-CoV-1 was measured after 8 hours. On cardboard, no viable SARS-CoV-2 was measured after 24 hours and no viable SARS-CoV-1 was measured after 8 hours (Fig. 1A).

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Titer

Titer

Titer (TCID50/ml of medium)

Half-Life (hr)

(TCID50/ml of medium) (TCID50/ml of medium)

Case 1:20-cv-00323-PLM-PJG ECF No. 10-11 filed 04/23/20 PageID.271 Page 3 of 5
Correspondence
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A Titers of Viable Virus
Aerosols

Titer (TCID50/liter of air)

104 103 102 101 100
0

0.5 1.0 2.0 3.0 Hours

B Predicted Decay of Virus Titer
Aerosols

Titer (TCID50/liter of air)

104 103 102 101 100
0

1.0 2.0 3.0

Titer (TCID50/liter of air)

104 103 102 101 100
0

1.0 2.0 3.0 Hours

Half-Life (hr)

C Half-Life of Viable Virus
Aerosols 10 8 6 4 2 0
SARS-CoV-2 SARS-CoV-1

Copper
104 103 102 101 100
0 1 4 8 24 48 72 96

Cardboard

Stainless Steel

104

104

103

103

102

102

101

101

100

100

0 1 4 8 24 48 72 96

0 1 4 8 24 48 72 96

Hours

Plastic
104 103 102 101 100
0 1 4 8 24 48 72 96

SARS-CoV-2 SARS-CoV-1

104 103 102 101 100
0

Copper

104

103

102

101

100

20 40 60 80

0

Cardboard

Stainless Steel

104

103

102

101

100

20 40 60 80

0

104

103

102

101

100

20 40 60 80

0

Plastic SARS-CoV-2
20 40 60 80

104 103 102 101 100
0

104

103

102

101

100

20 40 60 80

0

104

103

102

101

100

20 40 60 80

0

Hours

104

103

102

101

100

20 40 60 80

0

SARS-CoV-1 20 40 60 80

Copper 10

Cardboard 10

Stainless Steel

10

10

Plastic

8

8

8

8

6

6

6

6

4

4

4

4

2

2

2

2

0

0

0

0

SARS-CoV-2 SARS-CoV-1

SARS-CoV-2 SARS-CoV-1

SARS-CoV-2 SARS-CoV-1

SARS-CoV-2 SARS-CoV-1

Case 1:20-cv-00323-PLM-PJG ECF No. 10-11 filed 04/23/20 PageID.272 Page 4 of 5
The new england journal of medicine

Figure 1 (previous page). Viability of SARS-CoV-1 and SARS-CoV-2 in Aerosols and on Various Surfaces.
As shown in Panel A, the titer of aerosolized viable virus is expressed in 50% tissue-culture infectious dose (TCID50) per liter of air. Viruses were applied to copper, cardboard, stainless steel, and plastic maintained at 21 to 23°C and 40% relative humidity over 7 days. The titer of viable virus is expressed as TCID50 per milliliter of collection medium. All samples were quantified by end-point titration on Vero E6 cells. Plots show the means and standard errors (I bars) across three replicates. As shown in Panel B, regression plots indicate the predicted decay of virus titer over time; the titer is plotted on a logarithmic scale. Points show measured titers and are slightly jittered (i.e., their horizontal positions are modified by a small random amount to reduce overlap) along the time axis to avoid overplotting. Lines are random draws from the joint posterior distribution of the exponential decay rate (negative of the slope) and intercept (initial virus titer) to show the range of possible decay patterns for each experimental condition. There were 150 lines per panel, including 50 lines from each plotted replicate. As shown in Panel C, violin plots indicate posterior distribution for the halflife of viable virus based on the estimated exponential decay rates of the virus titer. The dots in­dicate the posterior median estimates, and the black lines indicate a 95% credible interval. Experimental conditions are ordered according to the posterior median half-life of SARS-CoV-2. The dashed lines indicate the limit of detection, which was 3.33×100.5 TCID50 per liter of air for aerosols, 100.5 TCID50 per milliliter of medium for plastic, steel, and cardboard, and 101.5 TCID50 per milliliter of medium for copper.
Both viruses had an exponential decay in virus titer across all experimental conditions, as indicated by a linear decrease in the log10TCID50 per liter of air or milliliter of medium over time (Fig. 1B). The half-lives of SARS-CoV-2 and SARS-CoV-1 were similar in aerosols, with median estimates of approximately 1.1 to 1.2 hours and 95% credible intervals of 0.64 to 2.64 for SARS-CoV-2 and 0.78 to 2.43 for SARS-CoV-1 (Fig. 1C, and Table S1 in the Supplementary Appendix). The half-lives of the two viruses were also similar on copper. On cardboard, the half-life of SARS-CoV-2 was longer than that of SARS-CoV-1. The longest viability of both viruses was on stainless steel and plastic; the estimated median half-life of SARS-CoV-2 was approximately 5.6 hours on stainless steel and 6.8 hours on plastic (Fig. 1C). Estimated differences in the half-lives of the two viruses were small except for those on cardboard (Fig. 1C). Individual replicate data were noticeably “noisier” (i.e., there was more varia-

tion in the experiment, resulting in a larger standard error) for cardboard than for other surfaces (Fig. S1 through S5), so we advise caution in interpreting this result.
We found that the stability of SARS-CoV-2 was similar to that of SARS-CoV-1 under the experimental circumstances tested. This indicates that differences in the epidemiologic characteristics of these viruses probably arise from other factors, including high viral loads in the upper respiratory tract and the potential for persons infected with SARS-CoV-2 to shed and transmit the virus while asymptomatic.3,4 Our results indicate that aerosol and fomite transmission of SARS-CoV-2 is plausible, since the virus can remain viable and infectious in aerosols for hours and on surfaces up to days (depending on the inoculum shed). These findings echo those with SARS-CoV-1, in which these forms of transmission were associated with nosocomial spread and super-spreading events,5 and they provide information for pandemic mitigation efforts.
Neeltje van Doremalen, Ph.D. Trenton Bushmaker, B.Sc.
National Institute of Allergy and Infectious Diseases Hamilton, MT
Dylan H. Morris, M.Phil.
Princeton University Princeton, NJ
Myndi G. Holbrook, B.Sc.
National Institute of Allergy and Infectious Diseases Hamilton, MT
Amandine Gamble, Ph.D.
University of California, Los Angeles Los Angeles, CA
Brandi N. Williamson, M.P.H.
National Institute of Allergy and Infectious Diseases Hamilton, MT
Azaibi Tamin, Ph.D. Jennifer L. Harcourt, Ph.D. Natalie J. Thornburg, Ph.D. Susan I. Gerber, M.D.
Centers for Disease Control and Prevention Atlanta, GA
James O. Lloyd-Smith, Ph.D.
University of California, Los Angeles Los Angeles, CA Bethesda, MD
Emmie de Wit, Ph.D. Vincent J. Munster, Ph.D.
National Institute of Allergy and Infectious Diseases Hamilton, MT vincent.munster@nih.gov

n engl j med 382;16  nejm.org  April 16, 2020
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Case 1:20-cv-00323-PLM-PJG ECF No. 10-11 filed 04/23/20 PageID.273 Page 5 of 5
Correspondence

Dr. van Doremalen, Mr. Bushmaker, and Mr. Morris contributed equally to this letter.
The findings and conclusions in this letter are those of the authors and do not necessarily represent the official position of the Centers for Disease Control and Prevention (CDC). Names of specific vendors, manufacturers, or products are included for public health and informational purposes; inclusion does not imply endorsement of the vendors, manufacturers, or products by the CDC or the Department of Health and Human Services.
Supported by the Intramural Research Program of the National Institute of Allergy and Infectious Diseases, National Institutes of Health, and by contracts from the Defense Advanced Research Projects Agency (DARPA PREEMPT No. D18AC00031, to Drs. Lloyd-Smith and Gamble), from the National Science Foundation (DEB-1557022, to Dr. Lloyd-Smith), and from the Strategic Environmental Research and Development Program of the Department of Defense (SERDP, RC-2635, to Dr. Lloyd-Smith).
Disclosure forms provided by the authors are available with the full text of this letter at NEJM.org.

This letter was published on March 17, 2020, at NEJM.org.
1. Coronavirus disease (COVID-2019) situation reports. Geneva:​World Health Organization, 2020 (https://www​.who​.int/​ emergencies/​diseases/​novel​-­coronavirus​-­2019/​situation​-­reports/​). 2. Wu A, Peng Y, Huang B, et al. Genome composition and divergence of the novel coronavirus (2019-nCoV) originating in China. Cell Host Microbe 2020;​27:​325-8. 3. Bai Y, Yao L, Wei T, et al. Presumed asymptomatic carrier transmission of COVID-19. JAMA 2020 February 21 (Epub ahead of print). 4. Zou L, Ruan F, Huang M, et al. SARS-CoV-2 viral load in upper respiratory specimens of infected patients. N Engl J Med 2020;​382:1177-9. 5. Chen YC, Huang LM, Chan CC, et al. SARS in hospital emergency room. Emerg Infect Dis 2004;​10:​782-8.
DOI: 10.1056/NEJMc2004973

Epidemiologic and Survival Trends in Amyloidosis, 1987–2019

To the Editor: Amyloidosis is a group of rare disorders caused by deposition of misfolded proteins as insoluble fibrils, which leads to progressive multiorgan failure and death.1 The past 30 years have seen remarkable advances in diagnostic imaging, more accurate identification of fibrils, and (in recent years) the first approved treatments.2,3
We report here data on 11,006 patients who received a diagnosis of amyloidosis during the period from 1987 through October 2019. All

data were obtained from the United Kingdom National Amyloidosis Centre database. The number of cases increased by 670% from the period 1987–1999 to the period 2010–2019 (Fig. 1A). Systemic light-chain (AL) amyloidosis remained the most common type and accounted for 55% of all cases (Fig. 1B). With the advances in therapies that target plasma cells, overall survival among patients with AL amyloidosis increased from a median of 18 months among patients who received a diagnosis before 2005 to

No. of Patients

A Diagnoses of Amyloidosis According to Time Period and Type
All Cases AL ATTRwt AA 3500 3000 2500 2000 1500 1000 500
0 1987–1990 1991–1995 1996–2000 2001–2005 2006–2010 2011–2015 2016–2019

B Diagnoses of Amyloidosis According to Type, 1987–2019

AA, 889

Localized AL, 1234

ATTRwt, 1412

Hereditary ATTR, 841
AApo1, 58

152 AFib

AL, 6008

40 ALect2 94 Aβ2M 27 ALys

Figure 1. Diagnoses of Amyloidosis over Three Decades and Amyloidosis Types.
Panel A shows data for 11,006 cases of amyloidosis diagnosed from 1987 to 2019. Panel B shows data for the 10,755 cases for which fibril type could be determined accurately. AA denotes amyloid A, AApo1 amyloid apolipoprotein A-I, Aβ2M amyloid beta2-microglobulin, AFib amyloid fibrinogen, ALect2 amyloid leukocyte chemotactic factor 2, AL light chain, ALys amyloid lysozyme, ATTR transthyretin-­ associated, and ATTRwt wild-type ATTR.

n engl j med 382;16  nejm.org  April 16, 2020
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 Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.286 Page 1 of 28

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, AND ROBERT MUISE,
Plaintiffs, v.
GRETCHEN WHITMER, in her official capacity as
Governor for the State of Michigan,
ALLEN TELGENHOF, in his official capacity as
Charlevoix County Prosecuting Attorney,
BRIAN L. MACKIE, in his official capacity as
Washtenaw County Prosecuting Attorney, and
WILLIAM J. VAILLIENCOURT, JR., in his official
capacity as Livingston County Prosecuting Attorney,
Defendants.

Case No. 1:20-cv-00323 Hon. Paul L. Maloney

AMERICAN FREEDOM LAW CENTER

SEWARD HENDERSON PLLC

By: Robert J. Muise (P62849)

By: T. Joseph Seward (P35095)

P.O. Box 131098

Attorneys for Defendant Vailliencourt, only

Ann Arbor, Michigan 48113

210 East 3rd Street, Suite 212

P: (734) 635-3756

Royal Oak, Michigan 48067

E: rmuise@americanfreedomlawcenter.org

P: (248) 733-3580

F: (248) 733-3633

DAVID YERUSHALMI

E: jseward@sewardhenderson.com

(AZ Bar No. 009616, DC Bar No.

978189, CA. Bar No. 132011, NY Bar

No. 4622568)

Co-Counsel for Plaintiff

1901 Pennsylvania Avenue NW Ste 201

Washington, D.C. 20006

P: (646) 262-0500

E: dyerushalmi@americanfreedomlawcenter.org

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.287 Page 2 of 28
DEFENDANT WILLIAM J. VAILLIENCOURT JR.’S RESPONSE TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
Defendant, WILLIAM J. VAILLIENCOURT, JR., by and through the undersigned counsel, and in support of their response to Plaintiff’s Motion for Temporary Restraining Order, rely upon the attached Brief.
LOCAL RULE CERTIFICATION: I, T. Joseph Seward, certify that this document complies with Local Rule 7.2(b) and 10.1, including: double-spaced text (except for quoted materials and footnotes); at least one-inch margins on the top, sides, and bottom; and type size that is no smaller than 12 point. I also certify that it is the appropriate length. The document contains 4935 words, inclusive of the caption, tables, indexes and attachments. The word count was generated by Microsoft Word, version 16.36.

DATED: April 24, 2020

Respectfully submitted,
SEWARD HENDERSON PLLC
/s/ T. Joseph Seward Attorneys for Defendant 210 East 3rd Street, Suite 212 Royal Oak, Michigan 48067 P: (248) 733-3580 F: (248) 733-3633 E: jseward@sewardhenderson.com
2

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.288 Page 3 of 28

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, AND ROBERT MUISE,
Plaintiffs, v.
GRETCHEN WHITMER, in her official capacity as
Governor for the State of Michigan,
ALLEN TELGENHOF, in his official capacity as
Charlevoix County Prosecuting Attorney,
BRIAN L. MACKIE, in his official capacity as
Washtenaw County Prosecuting Attorney, and
WILLIAM J. VAILLIENCOURT, JR., in his official
capacity as Livingston County Prosecuting Attorney,
Defendants.

Case No. 1:20-cv-00323 Hon. Paul L. Maloney

AMERICAN FREEDOM LAW CENTER

SEWARD HENDERSON PLLC

By: Robert J. Muise (P62849)

By: T. Joseph Seward (P35095)

Attorneys for Plaintiffs

Attorneys for Defendant Vailliencourt, only

P.O. Box 131098

210 East 3rd Street, Suite 212

Ann Arbor, Michigan 48113

Royal Oak, Michigan 48067

P: (734) 635-3756

P: (248) 733-3580

E: rmuise@americanfreedomlawcenter.org

F: (248) 733-3633

E: jseward@sewardhenderson.com

By: David Yerushalmi

(AZ Bar No. 009616, DC Bar No.

978189, CA. Bar No. 132011, NY Bar

No. 4622568)

Co-Counsel for Plaintiff

1901 Pennsylvania Avenue NW Ste 201

Washington, D.C. 20006

P: (646) 262-0500

E: dyerushalmi@americanfreedomlawcenter.org

ii

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.289 Page 4 of 28
BRIEF IN SUPPORT OF DEFENDANT WILLIAM J. VAILLIENCOURT’S, RESPONSE TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER
iii

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.290 Page 5 of 28
TABLE OF CONTENTS Table of Contents ..................................................................................................... iv Index of Authorities ...................................................................................................v Statement of Issues Presented ................................................................................. vii Statement of Most Controlling or Appropriate Authority for the Relief Sought .. viii Introduction ................................................................................................................1 Statement of Facts and Allegations............................................................................2 Law & Analysis .........................................................................................................5
I. Defendant Vailliencourt is entitled to immunity from this suit under the 11th Amendment ............................................................................................................5
A. Law ...........................................................................................................5 B. Application..............................................................................................11 II. Plaintiffs do not Have a Likelihood of Success on the Merits Against Defendant Vailliencourt .......................................................................................15 A. Law .........................................................................................................15 B. Application..............................................................................................16 Conclusion and Relief Requested ............................................................................18
iv

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.291 Page 6 of 28
INDEX OF AUTHORITIES
Cases Bonnell v. Lorenzo,
241 F.3d 800 (6th Cir. 2001) .................................................................................................. 15
Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir. 1996) .......................................................................................... 7, 8, 14
Elrod v. Burns, 427 U.S. 347 (1976) ................................................................................................................. 15
EMW Women's Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421 (6th Cir. 2019) .................................................................................. 9, 10, 11, 12
Ex parte Young, 209 U.S. 123 (1908) .............................................................................. 6, 7, 8, 11
Hoover v. Michigan Dep't of Licensing & Regulatory Affairs, No. 19-CV-11656 (E.D. Mich. July 18, 2019)................................................................. 15, 16
McNeil v. Cmty. Prob. Servs., LLC, 945 F.3d 991 (6th Cir. 2019) ...................................................................................... 10, 11, 12
Morales v. Trans World Airlines, Inc., 504 U.S. 374, (1992) .................................................................................................................. 8
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ................................................................................................................. 5, 7
Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015) ........................................................................................ passim
Tennessee Student Assistance Corp. v. Hood, See, e.g, 446 (2004) .................................................................................................................. 5
United States v. Oldfield, 859 F.2d 392, (6th Cir. 1988) ................................................................................................. 12
v

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.292 Page 7 of 28 Statutes MCL 14.101 ................................................................................................................................. 14 MCL 14.23 ................................................................................................................................... 12 MCL 14.28 ................................................................................................................................... 14 MCL 14.29 ................................................................................................................................... 14 Rules Fed. R. Civ. P. 65(c) .................................................................................................................... 16 Fed. R. Civ. P. 65(d)(1)(A)-(C) .................................................................................................. 16 Constitutional Provisions MI CONST Art 11 § 1................................................................................................................. 12
vi

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.293 Page 8 of 28

STATEMENT OF ISSUES PRESENTED

1. Whether the Court should issue a Temporary Restraining Order against Defendant Vailliencourt where Plaintiffs have shown only that he has general enforcement authority in Livingston County, have failed to allege or demonstrate actual or threatened enforcement of Executive Order 2020-42 against Plaintiffs, and have failed to show an exception to Immunity from suit in Federal Court against him under the 11th Amendment to the United States Constitution?

Defendant answers,

“No.”

Plaintiff presumably answers, “Yes.”

vii

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.294 Page 9 of 28
STATEMENT OF MOST CONTROLLING OR APPROPRIATE AUTHORITY FOR THE RELIEF SOUGHT
1. Ex parte Young, 209 U.S. 123, 155–56 (1908): [I]ndividuals who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution, may be enjoined by a Federal court of equity from such action.
viii

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.295 Page 10 of 28
INTRODUCTION Plaintiffs have filed this action against Defendant Vailliencourt, two other county prosecutors, and Governor Gretchen Whitmer, seeking declaratory and injunctive relief, as well as costs and attorney’s fees. The action arises from Executive Order 2020-42 issued by Governor Whitmer in response to the COVID19 public health emergency. Defendant Vailliencourt, the Livingston County Prosecuting Attorney, has been named based upon the residency of one Plaintiff, who alleges that he lives and works in Livingston County, and that protected rights are proscribed or deterred by the Executive Order through threat of criminal prosecution. Plaintiffs now bring an expedited motion for temporary restraining order seeking to immediately enjoin the Defendants, including Defendant Vailliencourt, from enforcing the Executive Order. However, Plaintiffs have failed to allege or demonstrate any actual enforcement or imminent threat of enforcement of the Executive Order by Defendant Vailliencourt. Accordingly, Defendant Vailliencourt is entitled to 11th Amendment immunity from this suit and the motion should be denied.
1

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.296 Page 11 of 28
STATEMENT OF FACTS AND ALLEGATIONS 1. On April 9, 2020, in response to the novel coronavirus SARS-Cov-2, and related respiratory disease caused by the virus (COVID-19), Governor Gretchen Whitmer enacted Executive Order 2020-42, under Michigan’s Emergency Management Act, MCL 30.401, et seq, and Emergency Powers Act, MCL 10.31, et seq., The Order provides that willful violations shall be punishable as a misdemeanor. 2. On April 15, 2020, Plaintiffs filed a Complaint for declaratory, injunctive, and other relief against the Livingston County Prosecutor William J. Vailliencourt, Jr. in his official capacity, along with two other county prosecutors and Michigan Governor, Gretchen Whitmer in their official capacities. 3. Plaintiffs’ Complaint alleges that Paul Cavanaugh is a resident of Livingston County, who owns a cottage in Charlevoix, and is the owner of Cavanaugh’s Lawn Care, LLC. [PageID.3] Plaintiff alleges that the Executive Order has affected his ability to travel between his residence in Brighton, and cottage in Charlevoix, to fish on a motorboat in Charlevoix, to associate with family members, and to operate his business. [PageID.7-9]. 4. Plaintiff’s Complaint alleges that Defendant Vailliencourt is the Livingston County Prosecuting Attorney. [PageID.4]. Plaintiffs allege that Mr.
2

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.297 Page 12 of 28
Cavanaugh would be subject to prosecution were he to operate his business or to travel from his residence in Livingston County to his cottage. [PageID.7].
5. There is no allegation, indication, or evidence that Defendant Vaillencourt has enforced or threatened to enforce Executive Order 2020-42.
6. To the contrary, on April 16, 2020, Defendant Vaillencourt issued a press release announcing that his office has instead encouraged voluntary compliance as a result of sensitivity to, and support for, the rights of citizens. He announced further that he has not prosecuted any violation of Executive Order 202042 against the Plaintiffs, that his consistent message to law enforcement has been that criminal enforcement is not the answer to this health crisis, and that any prosecution or risk of prosecution would have to come through the Attorney General’s office. [Exhibit 1 – Press Release, date April 16, 2020].
7. The April 16, 2020 press release was published by news media in Livingston County, and posted on their website.1 [Exhibit 2 – WHMI Article].
8. On April 2, 2020 Michigan Attorney General Dana Nessel issued a public notice via Twitter, reminding the public that golf courses should not be open under the Governor’s Executive Order. [Exhibit 3 – April 2, 2020 Tweet].
1 Available at: https://www.whmi.com/news/article/paul-cavanaugh-vailliencourtlawsuit-whitmer
3

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.298 Page 13 of 28
9. On April 14, 2020 Christina Grossi, Chief of Operations for the Department of the Attorney General issued a Cease and Desist Notice to Land Scape Supplies, LLC, a business in Muskegon, Michigan. The Notice advised Land Scape Supplies, LLC that it was in violation of Executive Order 2020-42 for their continued business operations and warned that continued violations would result in complaints being forwarded to local law enforcement agencies for enforcement action. [Exhibit 4 – April 14, 2020 Cease and Desist Letter].
10. On April 16, 2020, Ms. Grossi issued another Cease and Desist letter on behalf of the Attorney General’s office, to Marc Landau and Marc Landau PLLC, instructing them to cease and desist delivery of demands for possession, to tenants of thie rental properties. The notice also threatened the filing of misdemeanor charges for each violation of Executive Order 2020-42. [Exhibit 5].
11. On April 20, 2020, Plaintiffs filed a Motion for Temporary Restraining Order, seeking to enjoin all defendants, including Defendant Vailliencourt from enforcing Executive Order 2020-42, by all D. [PageID.59-60, PageID.164]. The declarations of the parties attached in support of the Motion for Temporary Restraining Order do not state that Defendant Vailliencourt has enforced or threatened to enforce Executive Order 2020-42 against any of the Plaintiffs.
4

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.299 Page 14 of 28
LAW & ANALYSIS Plaintiffs’ request for a Temporary Restraining Order should be denied by this Court because Defendant Vailliencourt is entitled to immunity under the 11th Amendment. Because sovereign immunity shields Defendant Vailliencourt, Plaintiffs do not have a likelihood of success on the merits or a showing of irreparable harm as to Defendant Vailliencourt. Therefore, they cannot satisfy the requirements of Federal Rule of Civil Procedure 65 such that this motion should be denied. I. DEFENDANT VAILLIENCOURT IS ENTITLED TO IMMUNITY FROM THIS SUIT UNDER THE 11TH AMENDMENT A. Law The 11th Amendment to the United States Constitution generally immunizes states and states officials from suit by citizens in the Federal Courts. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984); The United States Supreme Court has consistently held that, absent the state’s consent, a state is immune from suit in the Federal Courts in suits brought by “her own citizens as well as citizens of another state.” Id. at 104; Tennessee Student Assistance Corp. v. Hood, See, e.g, 446 (2004). Once raised, questions of sovereign immunity must be decided before the Court proceeds to the merits of a case. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015).
5

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.300 Page 15 of 28
The Supreme Court carved out an exception to 11th Amendment immunity in Ex Parte Young that allows for suits to enjoin enforcement of an unconstitutional law against officials:
who, as officers of the state, are clothed with some duty in regard to the enforcement of the laws of the state, and who threaten and are about to commence proceedings, either of a civil or criminal nature, to enforce against parties affected an unconstitutional act, violating the Federal Constitution[.] Ex parte Young, 209 U.S. 123, 155–56 (1908) (emphases added). There, the Supreme Court concluded that the 11th Amendment did not prohibit suit against the Minnesota Attorney General to enjoin enforcement of a rate-setting statute, which authorized misdemeanor prosecutions in any county of the state. Id. at 128, 155-56. The Attorney General filed a habeas proceeding to collaterally attack an order of contempt, issued after he violated the District Court’s injunction. Id at 129. The Supreme Court concluded that the injunction against him was proper because the Attorney General had the general authority to enforce the rate-setting statute, and there was evidence that he commenced proceedings to enforce the statute, immediately after the injunction was issued. Id. at 160. Therefore, he lost his immunity shield when he took action to enforce the statute. Case law from the Supreme Court and the Sixth Circuit demonstrates that an official will only be stripped of their sovereign immunity under Ex parte Young if they act unconstitutionally. This action is required because the, as explained by the
6

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.301 Page 16 of 28
Supreme Court in Pennhurst, the Ex parte Young exception rests upon the “fiction” that the State is not a real party in interest “notwithstanding the obvious effect on the State itself, [when the official is sued] because an official who acts unconstitutionally is ‘stripped of his official or representative character.’” Pennhurst State Sch., 465 U.S. at 104. (emphasis added). Therefore, officials are entitled to sovereign immunity as long as they remain within the bounds of the constitution, but once they move, i.e. take action, outside of those bounds, the immunity is lost. Id. Merely holding authority to do something, without the exercise or suggestion of exercise of that authority, is insufficient under Ex parte Young. The below discussed cases highlight the action requirement of the Ex parte Young exception.
The Sixth Circuit Court articulated the principle that some conduct or action is required before the individual officer is stripped of 11th Amendment immunity in Children's Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996), when the Ohio Attorney General appealed an order denying dismissal on grounds of sovereign immunity. On appeal, the Sixth Circuit explained that Ex parte Young’s use of the phrase “some connection with the enforcement of the act” still requires “that the official threaten and be about to commence proceedings.” 92 F. 3d at 1416. The Court found that the Attorney General did not threaten to, and was not about to, commence proceedings. Id. The Court also distinguished the action (or, rather, the inaction) of the Ohio Attorney General from the “opposite” situation
7

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.302 Page 17 of 28
where an Attorney General “had made clear that they would seek to enforce the challenged portions of the guidelines” at issue. Id. at 1416, n.8 (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992)). Holding that Ex parte Young’s exception to sovereign immunity applies to “action, not inaction,” the Court concluded that the suit was barred by sovereign immunity. Id.
The Sixth Circuit further developed the “action” requirement in 2015 in Russell v. Lundergan-Grimes when it held that a plaintiff must demonstrate “a realistic possibility” the official will take legal or administrative actions against the plaintiff's interests. 784 F.3d 1037, 1048 (6th Cir. 2015). The plaintiff, Russell, filed suit challenging, on First Amendment grounds, a statute that prohibited electioneering within 300 feet of a polling place. Id. at 1044. Russell owned an auto repair facility within 300 feet of a polling place and displayed and waved political signs on his property before elections in 2012 and 2014. Id. On multiple occasions the signs were removed from his property under the contested statute by unidentified sheriff’s deputies. Id. Fearing that he would be prosecuted if his actions continued, Russel brought suit against the Attorney General, the Secretary of State, and the Ohio Board of Elections, claiming his First Amendment rights were unconstitutionally impaired by the statute. Id. The Defendants asserted they were entitled to sovereign immunity. Id. at 1045.
8

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.303 Page 18 of 28
The Sixth Circuit ultimately rejected their claim to immunity. Id. at 1046-47. The Court determined that the Ohio Attorney General was a proper party because he had repeatedly fielded and investigated complaints of impermissible electioneering and promised the public that it would pursue possible criminal sanctions for violation of the law. Id. at 1047. The Secretary of State and State Board of Elections, who had concurrent jurisdiction over enforcement with the Attorney General, were also found to be proper parties because both admitted that they were actively involved in administering the statute and were regularly involved in its execution, including in cooperation with the Attorney General. Id. at 1048. Under the circumstances, the Court concluded that each Defendant had taken action to enforce the statute and, therefore, were not entitled to sovereign immunity. Id.
The requirement for a plaintiff to show something more than general enforcement authority was again recognized in EMW Women's Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 445 (6th Cir. 2019). That case involved “The Ultrasound Informed Consent Act,” known as “House Bill 2,” which required doctors to perform an ultrasound and display the images to their patient before performing an abortion, except in certain circumstances. Beshear, 920 F. 3d at 424. A doctor’s failure to comply resulted in being fined and referred to the state medical-licensing board. Id. Plaintiff doctors brought suit against the Attorney General and Secretary of Health and Human Services, alleging that the statute violated their First Amendment Rights.
9

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.304 Page 19 of 28
The Court examined the respective statutory duties given to the Attorney General and of the attorneys of the Commonwealth and counties. The Court determined that the Attorney General was only mandated to collect fines, including those imposed by House Bill 2, when directed to by the treasury, but otherwise retained discretion to take enforcement action. Id. at 445-46. The Court concluded that although an imminent threat of enforcement might come from the county or Commonwealth attorneys2, there was no imminent threat of enforcement by the Attorney General, because there was no evidence that he had enforced or even threatened to enforce House Bill 2. Id. at 446.
The line delineating the bounds of who is entitled to 11th Amendment immunity was most recently clarified by the Sixth Circuit in McNeil v. Cmty. Prob. Servs., LLC, 945 F.3d 991 (6th Cir. 2019). McNeil involved allegations by multiple criminal defendants (the plaintiffs) that their due process rights were violated by the method that Tennessee used to set bail amounts in misdemeanor cases. McNeil, 945 F.3d at 993. The plaintiffs sued the county responsible for their prosecution and the sheriff in that county because under Tennessee law the sheriff enforced “probationviolation warrants and the bail amounts [were] established by state law and set by a local judge.” Id. The plaintiffs were granted a preliminary injunction that prohibited
2 The county and commonwealth attorneys were not parties to the action, and as such their conduct was not examined by the Court.
10

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.305 Page 20 of 28
enforcement of the bail requirements by the county and sheriff. Id. The county and sheriff appealed. Id.
On appeal, the sheriff and county argued that the district court erred because the sheriff was not the proper party to be enjoined in that situation. Id. They argued that it was the judges who issue the disputed orders that should be the proper party. Id. The Sixth Circuit held that the answer to the proper party debate was found in the 11th Amendment immunity doctrine. Id. at 994. The Court rejected the sheriff’s argument that he lacked the required “connection to enforcement” for the contested policy to be liable under the principle enunciated in Children’s Healthcare. Id. at 995-96. The Court held that another official’s illegal actions under the contested policy did not negate the sheriff’s role in the illegal conduct; the sheriff was also taking illegal action by detaining probationers under the illegal orders. Id. Thus, where the sheriff also took illegal action, he too could be enjoined from taking such action.
B. Application Defendant Vailliencourt is entitled to sovereign immunity from this suit under
the 11th Amendment because he has not committed any act that would strip him of sovereign immunity and make him a proper party. The above discussed cases of Ex parte Young, Russell, Beshear, and McNeil, all highlight why Defendant Vailliencourt is entitled to 11th Amendment immunity in this suit.
11

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.306 Page 21 of 28
Here, Plaintiffs allege and provide evidence that Plaintiff Cavanaugh is a resident of Livingston County whose business, travel and familial relationship are affected by Executive Order 2020-42. [PageID.3; PageID.7-10; PageID.95-97]. However, as to Defendant Vailliencourt, Plaintiffs allege only that he is the Livingston County Prosecutor, with responsibility to enforce Executive Order 202042 in Livingston County. [PageID.4]. There is no allegation of past enforcement, ongoing enforcement, or a threat of imminent enforcement of the Executive Order against Plaintiffs. Nor does Mr. Cavanaugh’s declaration provide any evidence of actual or threatened enforcement by Defendant Vailliencourt against him or nay other Plaintiff. [Page ID.95-97].
Defendant Vailliencourt is charged with the duty to prosecute civil and criminal matters in the name of the state of the People of the State of Michigan within Livingston County. MCL 14.23. However, like other state constitutional officers, he is also sworn to support the constitutions of Michigan and of the United States. MI CONST Art 11 § 1. Consistent with his duties and his oath, Defendant Vailliencourt retains discretion as to what action his office should take, if any. See, e.g., United States v. Oldfield, 859 F.2d 392, 398 (6th Cir. 1988). Unlike the plaintiffs in Russell or, McNeil, Plaintiffs have not shown past enforcement of the Executive Order by Defendant Vailliencourt. Rather, just as in Beshear, Plaintiffs have shown nothing more than a general authority to enforce Executive Order 2020-42, which is
12

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.307 Page 22 of 28
insufficient to justify naming him as a party, or the enforcing the jurisdiction of the Federal Court over him.
Nor can Plaintiff’s rely on Defendant Vailliencourt’s concurrent authority with the Attorney General to prosecute crimes in the name of the people of the state of Michigan. The issue is not a “close call” as existed in Russell, 784 F.3d 1037. Here, there is neither allegation nor evidence from any of the Plaintiff’s declarations that Defendant Vailliencourt has taken enforcement action or threatened enforcement action. Instead, publicly available information shows that on April 16, 2020 – four days before the expedited Request for Temporary Restraining Order against Defendant Vailliencourt was filed – he publicly announced that: no enforcement action had been taken by his office; that the policy of his office was to encourage voluntary compliance; and, that he did not believe that criminal prosecution was necessary to confront the public health crisis underlying the Governor’s order. [Ex. 1]. Defendant Vailliencourt’s statement was publicly disseminated by the news media in Livingston County. [Ex. 2].
By contrast, other nonparties to this action with jurisdiction to enforce the Executive Order 2020-42, have actually commenced enforcement actions, and demonstrated an imminent threat of future enforcement action. Michigan law requires the Attorney General to prosecute criminal matters when requested by the governor, or when in the Attorney General’s own judgment, the interests of the state
13

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.308 Page 23 of 28
require it. MCL 14.28. The Attorney General is required to, at the request of the governor, the secretary of state, the treasurer or the auditor general, to prosecute and defend all suits relating to matters connected with their departments. MCL 14.29. The Attorney General is also authorized to intervene in any action commenced in any court of the state whenever such intervention is necessary in order to protect any right or interest of the state, or of the people of the state. MCL 14.101.
On April 2, 2020, the Michigan Attorney General made a public statement via Twitter indicating an intent to enforce the Governor’s orders against golf courses and golfers [Ex. 3]. On April 14, 2020, the Michigan Attorney General’s office, issued a cease and desist letter to a landscaping company in Muskegon, and threatened to refer future complaints to law enforcement for enforcement action. The Muskegon County prosecutor jointly signed the April 14, 2020 Cease and Desist letter. [Ex. 4]. And, on April 16, 2020, the Michigan Attorney General’s office issued another cease and desist letter threatening to file criminal charges and issue fines for future violations of the Executive Order, and the Cease and Desist Notice. [Ex. 5].
Plaintiffs’ claim against Defendant Vailliencourt is no different than the claim at issue in Children’s Healthcare, 92 F.3d at 1412, which found that inaction is no basis to name a state official as a party under the 11th Amendment. As a result,
14

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.309 Page 24 of 28
Plaintiffs have not shown any action by Defendant Vailliencourt that would strip him 11th Amendment immunity from suit or make him a proper party to this case. II. PLAINTIFFS DO NOT HAVE A LIKELIHOOD OF SUCCESS ON THE MERITS
AGAINST DEFENDANT VAILLIENCOURT A. Law
A preliminary injunction is an extraordinary measure that has been characterized as “one of the most drastic tools in the arsenal of judicial remedies.” Bonnell v. Lorenzo, 241 F.3d 800, 808 (6th Cir. 2001). In deciding whether to grant an injunction, the Court must balance four factors:
(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. Lorenzo, 241 F.3d at 809. When a party seeks an injunction based upon a claim that a right is being threatened or impaired, the Court must first determine whether the movant has demonstrated irreparable harm. Id. (citing Elrod v. Burns, 427 U.S. 347, 373 (1976)). When the Defendant is entitled to immunity under the 11th Amendment, an injunction is improper because the plaintiff has no likelihood of success on the merits. This was illustrated in Hoover v. Michigan Dep't of Licensing & Regulatory Affairs, No. 19-CV-11656, 2019 WL 3229137, at *1 (E.D. Mich. July 18, 2019)[attached as Exhibit 6], where a plaintiff filed suit against the Michigan
15

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.310 Page 25 of 28
Department of Licensing and Regulatory Affairs (LARA), to obtain an extension of Emergency Rules promulgated by the Governor, that would allow Plaintiff to continue to purchase untested marihuana. Id. at 4. The Court determined that LARA was entitled to immunity under the 11th Amendment, and that no exception to immunity applied. Id. at 6. The Court concluded that it could not grant preliminary injunctive relief, because the plaintiff had no likelihood of success on the merits, and that single factor was dispositive. Id.
Furthermore, Federal Rule of Civil Procedure 65 governs Motions for Preliminary Injunction and Temporary Restraining Orders (TRO). The Court must make specific findings with respect to each of the traditional four factors, unless the Court finds that fewer than all four are dispositive. Fed. R. Civ. P. 65(d)(1)(A)-(C).
An injunction or temporary restraining order may be issued only if the movant provides security in an amount the Court considers proper to pay the costs and damages sustained by any party found to be wrongfully enjoined or restrained. Fed. R. Civ. P. 65(c).
B. Application Plaintiffs do not have a likelihood of success on the merits or a showing of
irreparable harm as to Defendant Vailliencourt. Plaintiffs argue that there exists an “executive order that is currently in effect and being enforced to criminalize and thus restrict fundamental freedoms,” and that there is “nothing hypothetical about
16

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.311 Page 26 of 28
Plaintiff’s challenge.” [PageID.69]. However, as to Defendant Vailliencourt, Plaintiffs have shown no likelihood of success on the merits. As demonstrated in Section I, supra, Plaintiffs have failed to allege or demonstrate any actual or imminent enforcement activity taken by Defendant Vailliencourt. And, as a result he is entitled to immunity from suit pursuant to the 11th Amendment to the United States Constitution. The exception to 11th Amendment immunity does not go so far as to allow Plaintiffs to strip the prosecuting attorney of immunity from suit in the Federal courts based upon the residency of one party to the lawsuit, and that Prosecutor’s general authority to take actions in the interest of the state.
An injunction against Defendant Vailliencourt would be wrongfully entered due to the lack of actual enforcement or a threat of enforcement against Plaintiffs. Moreover, Defendant Vailliencourt and the residents of Livingston County would be harmed by the necessity of incurring costs and attorney’s fees. Therefore, under Rule 65(c), Defendant asks that any injunction against Defendant Vailliencourt be conditioned upon Plaintiffs providing security in an amount equal to the anticipated costs and attorney’s fees of Defendant Vailliencourt and the residents of Livingston County, incurred in defense of this action.
17

Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.312 Page 27 of 28

CONCLUSION AND RELIEF REQUESTED For the above reasons, Defendant requests that this Court deny Plaintiff’s Motion for Temporary Restraining Order. Should the Court determine that issuance of a Temporary Restraining Order is appropriate at this time, Defendant Vailliencourt asks that the Court require Plaintiffs to post a bond equal to his anticipated cost and attorney’s fees incurred by the defense of this action.

Dated: April 24, 2020

Respectfully submitted,
SEWARD HENDERSON PLLC
/s/ T. Joseph Seward T. Joseph Seward (P35095) Attorney for Defendant 210 East 3rd Street, Suite 212 Royal Oak, Michigan 48067 P: (248) 733-3580 F: (248) 733-3633 E: jseward@sewardhenderson.com

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Case 1:20-cv-00323-PLM-PJG ECF No. 18 filed 04/24/20 PageID.313 Page 28 of 28
CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing and this Certificate of Service with the Clerk of the Court, using the Court’s Efiling system that will send notification to all counsel of record, on April 24, 2020.
/s/ Alyssa Schwarcz SEWARD HENDERSON PLLC 210 East 3rd Street, Suite 212 Royal Oak, Michigan 48067 P: (248) 733-3580 F: (248) 733-3633 E: aschwarcz@sewardhenderson.com
19

Case 1:20-cv-00323-PLM-PJG ECF No. 18-1 filed 04/24/20 PageID.314 Page 1 of 1
INDEX OF EXHIBITS Exhibit 1 - April 16, 2020 Statement re Whitmer Federal Lawsuit Exhibit 2 - April 17, 2020 WHMI Article Exhibit 3 - April 2, 2020 Tweet Exhibit 4 - April 14, 2020 Cease and Desist Letter Exhibit 5 - April 16, 2020 Cease and Desist Letter Exhibit 6 - Hoover v Michigan Department of Licensing and Regulatory Affairs

Case 1:20-cv-00323-PLM-PJG ECF No. 18-2 filed 04/24/20 PageID.315 Page 1 of 2
Exhibit 1

Case 1:20-cv-00323-PLM-PJG ECF No. 18-2 filed 04/24/20 PageID.316 Page 2 of 2
WILLIAM J. VAILLIENCOURT, JR. PROSECUTING ATTORNEY
210 South Highlander Way Howell, Michigan 48843 (517) 546-1850 livgov.com/Prosecutor
STATEMENT OF PROSECUTOR WILLIAM VAILLIENCOURT April 16, 2020
A federal action was filed this week challenging the constitutionality of Governor Whitmer’s stay-at-home Executive Order. Because one of the parties challenging the Executive Order is a Livingston County resident, I have been included as a party in my capacity as Livingston County Prosecutor. Prosecutors from other counties have also been included as parties. The federal action asks the federal court to rule on the constitutionality of the Governor’s actions and she will now have the opportunity to defend the scope and validity of her order.
We are experiencing an unprecedented health emergency where hundreds of Livingston County residents have been infected and some have died. The people of Livingston County have gone above-and-beyond to protect themselves and our community. I encourage that continued vigilance.
In Livingston County, we have approached this crisis with common sense by encouraging voluntary compliance. We want people to remain safe and healthy, but we are also extraordinarily sensitive to and supportive of the rights and civil liberties of our citizens.
We have not issued any criminal charges for violating the Executive Orders. Criminal enforcement is not the answer to this health crisis and that has been my consistent message to law enforcement. Consistent with that priority and in the exercise of my discretion as Prosecutor, none of the individuals in this lawsuit have been at risk of being prosecuted by my office. Any prosecution in those instances would have to come through the Attorney General's office.
The rule of law is paramount in this country, especially in times such as these. The bottom line is that the issues raised in this action are with the Governor and the Executive Order, not my office. The Governor will have the opportunity to be heard and make her case, and the federal court will decide.
# # #

Case 1:20-cv-00323-PLM-PJG ECF No. 18-3 filed 04/24/20 PageID.317 Page 1 of 4
Exhibit 2

Case 1:20-cv-00323-PLM-PJG ECF No. 18-3 filed 04/24/20 PageID.318 Page 2 of 4
Died In Your Arms Cutting Crew
≡
Local Landscaper Included In Suit Filed Against Governor, Prosecutors
April 17, 2020
A local landscaping company is among those suing Governor Gretchen Whitmer and several county prosecutors challenging certain provisions of a recent executive order.
The lawsuit was led by the conservative American Freedom Law Center in the U.S. District Court for the Western District of Michigan on behalf of three Michigan residents. They include Paul Cavanaugh of Brighton who owns a local landscaping business and two attorneys - Kimberly Beemer of Saginaw and Robert Muise of Superior Township. Both Cavanaugh and Beemer own cottages in Charlevoix County. In addition to Governor Whitmer, the lawsuit names Livingston County Prosecutor Bill Vailliencourt, Charlevoix County Prosecutor Allen Telgenhof and Washtenaw County Prosecutor Brian Mackie. Those three are being sued in their o cial capacities.
The complaint states that Cavanaugh would be subject to prosecution for violating the executive order if he were to visit his cottage. It states the executive order discriminates against individuals, including Plainti s Beemer and Cavanaugh, impairs their right to travel, and deprives them of the use and enjoyment of their property. The complaint states under the order, a Wisconsin resident could travel to their cottage in Michigan without violating the order and there is no reasonable justi cation for restricting Michigan residents from traveling to cottages that they own or rent during the current pandemic. That’s despite public health o cials and

Case 1:20-cv-00323-PLM-PJG ECF No. 18-3 filed 04/24/20 PageID.319 Page 3 of 4
northern Michigan leaders saying such movement could spread the virus to those communities in a way that would overwhelm their health care systems.
The complaint says Cavanaugh has worked hard to develop and expand his landscaping business but his company came to an abrupt halt due to the Governor’s order. It goes on to say the lost revenue is impossible to replace and there is far less likelihood of Plainti Cavanaugh’s business spreading COVID-19 than other businesses currently permitted such as hardware stores, grocery stores, gas stations and health centers.
The complaint states the “case seeks to protect and vindicate fundamental liberties that citizens of the United States enjoy free from government interference. These liberties are not conferred or granted by government to then be rescinded at the will and whims of government o cials.” The lawsuit alleges that various provisions of the Governor’s latest executive order violate the First Amendment regarding freedom of association, the Second Amendment regarding the right to bear arms, and the Fourteenth Amendment regarding due process and equal protection.
A copy of the complaint is attached below.
In response to the lawsuit, Livingston County Prosecutor Bill Vailliencourt issued a statement, which read in part;
"We are experiencing an unprecedented health emergency where hundreds of Livingston County residents have been infected and some have died. The people of Livingston County have gone above-and-beyond to protect themselves and our community. I encourage that continued vigilance.
In Livingston County, we have approached this crisis with common sense by encouraging voluntary compliance. We want people to remain safe and healthy, but we are also extraordinarily sensitive to and supportive of the rights and civil liberties of our citizens.
We have not issued any criminal charges for violating the Executive Orders. Criminal enforcement is not the answer to this health crisis and that has been my consistent message to law enforcement. Consistent with that priority and in the exercise of my discretion as Prosecutor, none of the individuals in this lawsuit have been at risk of being prosecuted by my o ce. Any prosecution in those instances would have to

Case 1:20-cv-00323-PLM-PJG ECF No. 18-3 filed 04/24/20 PageID.320 Page 4 of 4 come through the Attorney General's o ce." His full statement is posted below.

Attachment: Attachment:

Complaint-Cavanaugh-v-Whitmer-Filed.pdf Whitmer Federal Lawsuit - Statement.pdf

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Case 1:20-cv-00323-PLM-PJG ECF No. 18-4 filed 04/24/20 PageID.321 Page 1 of 5
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010

Case 1:20-cv-00323-PLM-PJG ECF No. 18-5 filed 04/24/20 PageID.326 Page 1 of 3
Exhibit 4

Case 1:20-cv-00323-PLM-PJG ECF No. 18-5 filed 04/24/20 PageID.327 Page 2 of 3
STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL

P.O. BOX 30212 LANSING, MICHIGAN 48909

DANA NESSEL ATTORNEY GENERAL

Land Scape Supplies, LLC 3770 Airline Road Muskegon, MI 49442

April 14, 2020

Hand Delivered

Re: Cease & Desist Notice (Executive Order of the Governor 2020-42)

To Whom It May Concern,

On March 10, 2020, Governor Gretchen Whitmer issued Executive Order 2020-4 declaring a state of emergency across the State of Michigan under sec. 1, art. 5 of the Michigan Constitution of 1963, the Emergency Management Act, MC 30.401, et seq., and the Emergency Powers of the Governor Act of 1945, MCL 10.31, et seq.

Pursuant to those authorities, she subsequently issued Executive Order 2020-42, which temporarily suspends activities that are not necessary to sustain or protect life. The Order is to be “construed broadly to prohibit in-person work that is not necessary to sustain or protect life.” See EO 2020-42, ¶1.

The Governor has posted “Guidance for Business” on the State’s website (www.michigan.gov/cornoravirus) to help assist businesses in determining if their on-site operations are “necessary to sustain or protect life.” This page also has a Frequently Asked Questions (FAQ) section to address specific questions of interpretation related to the Executive Orders issued by the Governor. These FAQs can be viewed by clicking Executive Order 2020-42 FAQS at the top of the Governor’s Covid-19 Webpage. (https://www.michigan.gov/coronavirus/0,9753,7406-98178_98455-525278--,00.html).

The Governor has posted the following guidance relevant to:

Q: May landscaping, lawncare, tree service, irrigation, and related outdoor maintenance companies operate under this order?

A: In nearly all cases, no. A business cannot designate workers to perform these services unless the service is necessary to maintain the safety, sanitation, and essential operations of a residence. This is a narrow exception that only permits inperson work that is strictly necessary to address a circumstance that immediately

Case 1:20-cv-00323-PLM-PJG ECF No. 18-5 filed 04/24/20 PageID.328 Page 3 of 3
Land Scape Supplies, LLC Page 2 April 14, 2020
and genuinely impairs the habitability of a home during the emergency; the exception will be satisfied, at most, rarely. Routine concerns, such as about longer grass increasing insects, pests, or allergies, do not qualify. Nor can workers leave the home to perform these services at business facilities: the exception applies only to residences. Any necessary in-person work that is permitted under the order must be done in accordance with the mitigation measures required under section 10 of the order. The order does not prohibit homeowners from tending to their own yards as they see fit.
Despite this clear guidance, Land Scape Supplies, LLC is still open and is maintaining on-site operations in violation of the Governor’s Executive Order 202042. Accordingly, in cooperation with the Muskegon County Prosecutor we request that you take immediate action to ensure that your business is closed in compliance with the Governor’s Order. The failure to voluntarily comply with this request will result in these complaints being forwarded to local law enforcement agencies for enforcement action.
We appreciate your prompt attention to this matter.
Sincerely,
/s/ Christina Grossi Christina M. Grossi Chief of Operations Department of Attorney General
DJ Hilson Prosecuting Attorney Muskegon County

Case 1:20-cv-00323-PLM-PJG ECF No. 18-6 filed 04/24/20 PageID.329 Page 1 of 3
Exhibit 5

Case 1:20-cv-00323-PLM-PJG ECF No. 18-6 filed 04/24/20 PageID.330 Page 2 of 3
STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL
P.O. BOX 30212 LANSING, MICHIGAN 48909
DANA NESSEL ATTORNEY GENERAL

April 16, 2020
Mr. Marc Landau Marc Landau PLLC 30100 Telegraph Rd Ste 120 Bingham Farms, MI 48025-4515

Delivered via email

Re: Notice to Cease & Desist Executive Order of the Governor 2020-19
Dear Mr. Landau,
It’s my understanding that you represent the management company for the Jeffersonian, an apartment complex near downtown Detroit, and that you’ve been contacted by attorneys from this office to discuss the issuance of Demands for Possession to approximately 80 residents there. Since that discussion, our office has also been contacted by a deputy counsel for the 36th District Court seeking that we take immediate action to investigate and/or prevent any evictions that would be in violation of the Governor’s Executive Order 2020-19, based on the issuance of those demands.
As you know, on March 10, 2020, Governor Whitmer issued Executive Order 2020-4 declaring a state of emergency across the State of Michigan under sec. 1, art. 5 of the Michigan Constitution of 1963, the Emergency Management Act, MCL 30.401, et seq., and the Emergency Powers of the Governor Act of 1945, MCL 10.31, et seq. Pursuant to those authorities, she subsequently issued Executive Order 2020-19 which prohibits any person or entity from removing a tenant from a leased residential premises except when the person poses a substantial risk to another person or an imminent and severe risk to the property. See EO 2020-19, ¶1. The Order is to be “construed broadly to effectuate that purpose.” Id.
Though section 3 of the order preserves a landlord’s right to receive rental payments due under a residential lease, the section cannot be read in a manner that thwarts the ultimate purpose of the Executive Order – keeping people in their homes during the state of emergency. In other words, any demand for rent cannot also include demand for possession.

Case 1:20-cv-00323-PLM-PJG ECF No. 18-6 filed 04/24/20 PageID.331 Page 3 of 3
Page 2 April 16, 2020
As you know, the Demand for Possession issued by your client states, in relevant part, “If you owe this rent, you must do the following within seven days after receiving this notice: Pay the rent owed or Move out or vacate the premises.” The plain language of your client’s demand violates EO 2020-19 in that it requires a tenant to leave their home in the absence of payment. That the law requires a court to issue an order to evict someone who doesn’t voluntarily comply with this demand is immaterial. The Governor’s order was violated upon the delivery of the Demands for Possession to the tenants of the Jeffersonian.
Accordingly, you and your client are instructed to immediately cease and desist the issuance and delivery of Demands for Possession to tenants in the Jeffersonian. Moreover, you are immediately instructed to cease and desist any and all other actions that will result in the eviction of tenants from their homes during the pendency of Governor’s Executive Order. Failure to abide by this demand will result in additional legal action being taken against your client and any agent engaging in conduct in violation of the Governor’s Order, including, but not limited to, the filing of misdemeanor charges and/or the issuance of fines, for each violation.
Thank you for your prompt attention to this matter.
Sincerely,
/s/ Christina Grossi
Christina M. Grossi Chief of Operations Department of Attorney General

Case 1:20-cv-00323-PLM-PJG ECF No. 18-7 filed 04/24/20 PageID.332 Page 1 of 6
Exhibit 6

HoovCear vs.eM1ic:h2ig0a-ncvD-e0p0ar3tm23en-Pt oLfMLi-cPenJsGing aEnCdFReNguol.at1o8ry-7Afffialiersd, S0l4ip/2C4o/p2y0(201P9a) geID.333 Page 2 of 6

2019 WL 3229137 Only the Westlaw citation is currently available.
United States District Court, E.D. Michigan, Southern Division.
Sherry HOOVER, Plaintiff, v.
MICHIGAN DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS, Defendant.
Case No. 19-cv-11656 |
Signed 07/18/2019
Attorneys and Law Firms
Michelle R.E. Donovan, Butzel Long, Bloomfield Hills, MI, for Plaintiff.
Joshua O. Booth, Michelle M. Brya, State of Michigan Department of Attorney General, Lansing, MI, for Defendant.

Facilities Licensing Act (“MMFLA”). 1 Plaintiff seeks an extension of these expired Emergency Rules so that she can continue to purchase untested marihuana from a licensed dispensary. In short, under Michigan law, licensed provisioning centers were permitted to sell only safetytested marihuana and to purchase product only from licensed growers and processors. Under the expired Emergency Rules, which expired on March 31, 2019, licensed provisioning centers were able to purchase untested product outside the regulated system (as pertinent here from “caregivers” who purchase and supply untested product) without facing disciplinary action. With the expiration of the Emergency Rules, licensed provisioning centers are no longer able to purchase and sell untested marihuana outside the regulatory system. As a result, according to the Plaintiff’s Complaint, the caregivers have no market for the product they obtain and the provisioning centers are unable to keep up with demand if required to sell only tested product from licensed processors and growers. As a consequence, Plaintiff alleges, she has been without access to her medical marihuana medication since May 15, 2019. (ECF No. 16, July 17, 2019 Affidavit of Sherry Hoover ¶ 8.)

OPINION AND ORDER DENYING PLAINTIFF'S EMERGENCY MOTION FOR EX PARTE TEMPORARY RESTRAINING ORDER, PRELIMINARY INJUNCTION,
AND DECLARATORY RELIEF (ECF NO. 2)
PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE
*1 On June 5, 2019, Plaintiff filed her Verified Complaint for Declaratory Judgment and Injunctive Relief. (ECF No. 1.) On that same date, Plaintiff filed an Emergency Motion for Ex Parte Temporary Restraining Order, Preliminary Injunction, and Declaratory Relief. (ECF No. 2.) The Court held a telephonic status conference with all parties on June 11, 2019, and established a briefing schedule on Plaintiff’s Emergency Motion. Defendant filed a Response on June 21, 2019. (ECF No. 8.) Plaintiff filed a Reply on July 12, 2019. (ECF No. 14.) The Court held a hearing today, July 17, 2018. For the reasons that follow, the Plaintiff’s Emergency Motion is DENIED.
INTRODUCTION In this action, Plaintiff asks this Court to require the Defendant Michigan Department of Licensing and Regulatory Affairs (“LARA”) to “modify and extend” certain temporary and now-expired Emergency Rules that were previously put in place under the Medical Marihuana

Plaintiff claims that as a consequence of the expiration of the Emergency Rules, she is unable to obtain the marihuana products she needs to treat the symptoms of her cancer. Plaintiff argues that “allowing the Emergency Rules to expire is a clear violation of Plaintiff’s due process rights.” (Pl.'s Aff. ¶¶ 5-9; Pl.'s Mot. 14, PgID 44.) Plaintiff argues that she has a license to obtain medical marihuana and her right to obtain medical marihuana is now being impeded by LARA. Plaintiff also suggests that her due process rights have been violated because her inability to obtain medical marihuana “constitutes a deprivation of life, quite literally.” (Pl.'s Mot. 14, PgID 44.)
*2 The State responds that Plaintiff has no likelihood of success on the merits of her claims because: (1) LARA is absolutely immune to suit under the Eleventh Amendment, (2) the Court lacks subject matter jurisdiction because the Complaint fails to allege a colorable federal question, (3) the Plaintiff lacks standing, (4) Plaintiff’s claims lack substantive merit, and (5) the Court should abstain from reviewing her claims. The State also asserts that Plaintiff has not established a threat of irreparable injury and the public interest weighs against granting an injunction.
I. FACTUAL BACKGROUND 2

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Marihuana is an illegal Schedule 1 controlled substance under federal law. 21 U.S.C. § 812(c). Marihuana is also listed as a schedule 1 controlled substance under Michigan law, Mich. Comp. Laws § 333.7212, with the exception that the drug is categorized in schedule 2 “only for the purposes of treating a debilitating medical condition.” Mich. Comp. Laws § 333.7214(e).
In 2008, voters passed the Michigan Medical Marihuana Act (“MMMA”), Mich. Comp. Laws § 333.26421 et seq., by ballot initiative. The MMMA did not create an affirmative right to use or possess marihuana but created protections under state law for medical use to qualifying patients and their caregivers who comply with the MMMA’s requirements. Mich. Comp. Laws §§ 333.26422(b); 333.26424. LARA was charged with administering the MMMA and maintaining a cardholder registry. Mich. Comp. Laws § 333.26426.
In 2016, the Michigan Legislature enacted the Medical Marihuana Facilities Licensing Act (“MMFLA”) “to license and regulate medical marihuana [facilities].” Mich. Comp. Laws § 333.27101 et seq. The Medical Marihuana Licensing Board (“the Board”) was created within LARA and charged with implementing and enforcing the MMFLA. Mich. Comp. Laws § 333.27301(1). The MMFLA provides protections for those granted a license and engaging with activities within the scope of the MMFLA. Mich. Comp. Laws § 333.27201. Under the MMFLA, licensed provisioning centers are authorized to purchase safety-tested marihuana only from licensed growers and processors and are authorized to sell it in limited quantities to patients and caregivers who are registered under the MMMA.
In March 2019, Governor Gretchen Whitmer issued an executive order abolishing the Board and LARA’s Bureau of Marihuana Regulation (“BMR”) effective April 30, 2019. Mich. Comp. Laws 333.27001(1)(b), (e). The Governor’s Executive Order transferred all powers, duties, functions and responsibilities of LARA, BMR, and the Board to a newly created Marijuana Regulatory Agency (“MRA”). Mich. Comp. Laws § 333.27001(1). The MRA was “created as a Type I agency within the Department of Licensing and Regulatory Affairs.” Mich. Comp. Laws § 333.27001(1)(a), and all of LARA’s “authorities, powers, duties, functions, and responsibilities ... under the [MMA, MMFLA]” among other statutes were transferred to the new MRA. Mich. Comp. Laws § 333.27001(1)(d). The MRA exercises its powers and duties independent of LARA’s direction. “When any board, commission, or other agency is transferred to a principal

department under a type I transfer, that board, commission or agency shall be administered under the supervision of that principal department. Any board, commission or other agency granted a type I transfer shall exercise its prescribed statutory powers, duties and functions of rulemaking, licensing and registration including the prescription of rules, rates, regulations and standards, and adjudication independently of the head of the department. Under a type I transfer all budgeting, procurement and related management functions of any transferred board, agency or commission shall be performed under the direction and supervision of the head of the principal department.” Mich. Comp. Laws § 16.103.
*3 LARA issued a series of Emergency Rules beginning in late 2017 and continuing through a final set of Emergency Rules which expired in March, 2019. The Emergency Rules provided that licensed provisioning centers were able to purchase and sell untested product outside the regulated system without facing disciplinary action. With the expiration of the Emergency Rules, licensed provisioning centers are no longer able to purchase and sell untested marihuana outside the regulatory system. This, Plaintiff claims, has resulted in her inability to access her medical marihuana medications.
A different plaintiff seeking the same relief that Plaintiff seeks here previously filed suit in the Michigan courts, but was denied relief. In The Curing Corner, LLC v. Mich. Dept. Of Licensing and Reg. Affairs, No. 19-000052-MZ (Mich. Ct. Of Claims, Apr. 30, 2019), Judge Stephen L. Borello explains in his opinion that the Curing Corner was asking that court to “essentially require LARA to extend previous iterations of now-expired emergency rules.” (ECF No. 9-1, Def.'s Resp. Appendix Ex. 1, April 30, 2019 Opinion and Order at 10, PgID 240.) In his opinion Judge Borello states: “[T]he Court is without authority to grant the relief plaintiff Curing Corner requests and it will not dictate to LARA procedures for the sale of marijuana.” (Id. at 10-11, PgID 240-41.) Plaintiff the Curing Corner was represented by the same counsel representing Plaintiff here, Ms. Donovan. No appeal was ever taken from Judge Borello’s opinion denying the very relief sought here. Instead, Plaintiff brought her claims to this Court and sued LARA – a state agency.
II. LEGAL STANDARD A preliminary injunction is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008) (citation omitted).

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Plaintiff bears the burden of demonstrating entitlement to preliminary injunctive relief. Leary v. Daeschner, 228 F.3d 729, 739 (6th Cir. 2000). Such relief will only be granted where “the movant carries his or her burden of proving that the circumstances clearly demand it.” Overstreet v. Lexington-Fayette Urban County Gov't, 305 F.3d 566, 573 (6th Cir. 2002). When considering a motion for injunctive relief, the Court must balance the following factors: (1) whether the movant has a strong likelihood of success on the merits, (2) whether the movant would suffer irreparable injury absent preliminary injunctive relief, (3) whether granting the preliminary injunctive relief would cause substantial harm to others, and (4) whether the public interest would be served by granting the preliminary injunctive relief. Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007). “[T]he proof required for the plaintiff to obtain a preliminary injunction is much more stringent than the proof required to survive a summary judgment motion....” Leary, 228 F.3d at 739. Plaintiff must do more than just “create a jury issue,” and must persuade the court that it has a likelihood of succeeding on the merits of its claims. Id. “This is because the preliminary injunction is an extraordinary remedy involving the exercise of a very far-reaching power, which is to be applied only in [the] limited circumstances which clearly demand it.” Id. (internal quotation marks and citation omitted) (alteration in original). These same factors are considered in evaluating whether to issue a temporary restraining order. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008).
*4 “Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal.” Gonzales v. Nat'l Bd. of Medical Examiners, 225 F.3d 620, 625 (6th Cir. 2000). “While, as a general matter, none of these four factors are given controlling weight, a preliminary injunction issued where there is simply no likelihood of success on the merits must be reversed.” Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997). See also Monsanto Co. v. Manning, 841 F.2d 1126, at *4 (6th Cir. 1988) (table case) (“It is error to grant a preliminary injunction if the party has no chance or a very slight chance of prevailing on the merits, no matter how strong the balance of irreparable harms may incline in favor of the party seeking the injunction.”); Fialka-Feldman v. Oakland University Bd. of Trustees, No. 08-cv-14922, 2009 WL 275652, at *1, *5 (E.D. Mich. Feb. 5, 2009) (denying preliminary injunction sought against a state university that was a state agency entitled to Eleventh Amendment immunity and observing that “a preliminary injunction may not issue

where there is “simply no likelihood of success on the merits....”) (citing Michigan State AFL–CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997)).
III. ANALYSIS Plaintiff alleges that depriving the licensed provisioning centers of the ability to sell untested caregiver-produced medical marijuana without facing possible discipline under the Michigan regulatory system has disrupted the supply chain of medical marijuana in Michigan and resulted in a chaotic shortage of available medical marijuana for patients like the Plaintiff who have been granted a license to purchase medical marijuana. According to the Plaintiff, with the expiration of the Emergency Rules, in order for caregivers to continue to sell their product to licensed facilities, the caregiver products must first be tested at a licensed grow or processing center, of which there are only four in Michigan, and then transported back to the licensed provisioning center, resulting in unacceptable and “immoral” delay of delivery of marijuana products to patients such as the Plaintiff. (Mot. 4, ¶¶ 9-15, PgID 34-36.) Plaintiff places the blame on LARA, asserting that it is a “dereliction of duty,” and “inappropriate and cavalier” of LARA, “to continue to prohibit the sale of caregiver-products directly to licensed provisioning centers in Michigan,” which has caused “a gap in the supply chain which has resulted in an almost immediate and lengthy shutdown of most provisioning centers in Michigan” that are unable to obtain enough tested product to keep up with demand. (Mot. 7, ¶ 19, PgID 37.) Plaintiff asserts that she is forced to “choose between going without medical marijuana and purchasing it through the black market.” (Mot. 8, ¶ 20, PgID 38.) According to Plaintiff, patients like her are currently willing to sign waivers when purchasing untested marijuana from a licensed facility and want to be able to continue purchasing marijuana this way.
More specifically, in her Complaint Plaintiff alleges that she has Stage 4 cancer and has been prescribed medical marijuana by her doctor. Her medical marijuana medicines include CBD/THC gummy cubes, THC extreme medicated pain balm, cannabis flower Sunshine Kush, Purple Punch Rick Simpson Oil (“RSO”) and specialty ribbon chews 200mg THC chill mediated lozenges. Plaintiff alleges that the lack of access to her medical marijuana regimen affects her health and well-being by failing to alleviate her pain, nausea, insomnia and decreased appetite from chemotherapy treatments. She alleges that her health and quality of life are deteriorating. (Compl. ¶¶ 8-11.) Plaintiff alleges that the now-expired Emergency Rules allowed licensed

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provisioning centers to obtain and sell untested medical marijuana products, with patient waivers, until March 31, 2019. (Compl. ¶ 15.) Plaintiff alleges that the “de minimus” number of grower, processor, transport, and testing facilities that have been approved by LARA to operate in Michigan are insufficient to create supply to meet existing demand for medical marijuana products. Plaintiff alleges that without an immediate increase in supply of untested product, “the medical marijuana industry will die.” (Compl. ¶¶ 18-23.)
*5 Plaintiff alleges that “medical marijuana continues to be sold to unlicensed facilities, who are currently unregulated and need not purchase tested marijuana under the MMFLA.” Plaintiff alleges that “under LARA’s regulations, Plaintiff’s purchase from, or even presence in, an unlicensed marijuana operation could risk her losing her medical marijuana card.” Plaintiff states that “LARA can cure the issue for Plaintiff by simply modifying and extending the Emergency Rules to December 31, 2019, to allow for Plaintiff to purchase untested medical marijuana product from licensed caregivers in Michigan directly from licensed provisioning centers.” (Compl. ¶¶ 31-33.) Plaintiff asserts three Counts in her Complaint: Count I – Violation of the Constitutional Right to Due Process (Declaratory Judgment); Count II – Violation of the State Right to Due Process (Declaratory Judgment); Count III – Violation of the Michigan Medical Marihuana Act).
The two pages of Plaintiff’s brief in support of her motion for preliminary injunction addressing the most significant prong of the preliminary injunction analysis – the likelihood of success on the merits of her claims against LARA – are devoted largely to recitations of the harm that is flowing from LARA’s refusal to extend the emergency rules so that Plaintiff can continue to purchase untested marijuana from licensed provisioning centers. The one conclusory paragraph of her brief that addresses the critically important issue of the right that she claims to have been procedurally (or perhaps substantively – it is unclear and she offers no elucidation) deprived of cites no authority for the proposition that Plaintiff has a protected property right “to obtain medical marijuana.” (Mot. 14, PgID 44.) She implies that her medical marijuana card gives her a “lawful right to obtain medical marijuana, which is now being impeded by LARA.” (Id.) She also suggests, in a single conclusory, unsupported sentence that her “due process rights have been violated as the inability to purchase medical marijuana constitutes a deprivation of life, quite literally.” (Id.) Plaintiff closes this brief discussion of this most important prong of the preliminary injunction

analysis with the equally conclusory statement that she has “certainly” raised serious questions going to the merits of her claims to make them a “fair ground for litigation.” (Id.)
Defendant offers several responses to Plaintiff’s claims: (1) Plaintiff’s claims are barred because LARA is immune from suit; (2) the Court lacks subject matter jurisdiction over Plaintiff’s claims because they fail to allege a colorable federal question; (3) Plaintiff lacks standing to bring this action because her injuries are not traceable to or redressableby LARA; and (4) the Court should abstain from interfering in a complex state regulatory scheme. In her Reply, which the Court had to request from the Plaintiff after she missed the deadline for filing a Reply brief in support of her request for the extraordinary remedy of preliminary injunctive relief, Plaintiff does not address a single one of the Defendant’s arguments. The Reply is devoted entirely to the issue of irreparable harm which, for the reasons discussed infra, the Court need not address. Plaintiff offered additional argument at the July 18, 2019 hearing that was not presented in any of her briefs, none of which rebutted the undisputed and dispositive fact that LARA is a state agency entitled to Eleventh Amendment immunity, making it impossible for Plaintiff to establish a likelihood of success on the merits of her claims against LARA.
It is undisputed that LARA is a state agency entitled to absolute immunity from suit under the Eleventh Amendment. The Sixth Circuit long ago acknowledged the breadth of this immunity in Thiokol Corp. v. Department of Treasury, State of Mich., Revenue Div., 987 F.2d 376 (6th Cir. 1993):
The Eleventh Amendment provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens of Subjects of a Foreign State.
*6 U.S. Const. amend. XI. This immunity is far reaching. It bars all suits, whether for injunctive, declaratory or monetary relief, against the state and its departments, Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100–01, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984), by citizens of another state, foreigners or its own citizens. Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

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HoovCear vs.eM1ic:h2ig0a-ncvD-e0p0ar3tm23en-Pt oLfMLi-cPenJsGing aEnCdFReNguol.at1o8ry-7Afffialiersd, S0l4ip/2C4o/p2y0(201P9a) geID.337 Page 6 of 6

987 F.2d at 381 (emphasis added). See Proctor v. Board of Medicine, 718 F. App'x 325, 327 (6th Cir. 2017) (holding that the Michigan Department of Licensing and Regulatory Affairs and the Board of Medicine were “clearly agencies or departments of the State of Michigan” and were “entitled to immunity under the Eleventh Amendment”); Williams v. Mich. Bd. of Dentistry, 39 F. App'x 147, 148-49 (6th Cir. 2002) (observing that “unless immunity is expressly waived, a state and its agencies are immune from an action for damages and injunctive relief, and in some cases even declaratory relief, in federal court” and that “the Eleventh Amendment forbids federal courts from intruding upon state sovereignty by dictating the manner in which state officials should comply with state law”) (internal quotation marks and citations omitted). “There are three exceptions to a state’s sovereign immunity.” Puckett v. Lexington-Fayette Urban County Government, 833 F.3d 590, 598 (6th Cir. 2016) (noting the three narrow exceptions to Eleventh Amendment immunity as “(1) when the state has consented to suit; (2) when the exception set forth in Ex parte Young, applies; and (3) when Congress has clearly and expressly abrogated the state’s immunity.”) (internal citations omitted). None of these exceptions is claimed to or does apply here.

Because Plaintiff has no likelihood of success on the merits of her claims against LARA, the Court cannot grant preliminary injunctive relief and need not examine the remaining preliminary injunction factors. Indeed, it would be error for the Court to issue a preliminary injunction in the face of an impossibility of success on the merits: “While, as a general matter, none of these four factors are given controlling weight, a preliminary injunction issued where there is simply no likelihood of success on the merits must be reversed.” Miller, 103 F.3d at 1249.
IV. CONCLUSION Because Plaintiff has no likelihood of success on the merits of her claims because the Defendant LARA is a state agency entitled to absolute Eleventh Amendment immunity, the Court must and does DENY the motion for preliminary injunctive relief.
IT IS SO ORDERED.
All Citations
Slip Copy, 2019 WL 3229137

Footnotes

1

“Marihuana” is the spelling most commonly used in the Michigan statutes and regulations. The Court will use that spelling

unless a specific alternate spelling is indicated.

2

The facts in this background section have been taken directly from the Defendant’s responsive brief, which gives a

detailed history of the background of the Michigan medical marihuana regulatory scheme. Plaintiff has registered no

disagreement with the undisputed historical facts in this background section. In any event, because the Plaintiff has no

likelihood of success on the merits of her claims based upon a purely legal question not dependent in any manner on

any factual disputes, any disagreement with these facts would not alter the Court’s determination.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

5

 
 Case 1:20-cv-00323-PLM-PJG ECF No. 19 filed 04/24/20 PageID.338 Page 1 of 21

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH,

and ROBERT MUISE,

Case No. 1:20-cv-00323-PLM-PJG

Plaintiff, v

Hon. Paul L. Maloney

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

Defendants. /

AMERICAN FREEDOM LAW CENTER Robert J. Muise (P62849) Attorney for Plaintiffs P.O. Box 131098 Ann Arbor, MI 48113 (734) 635-3756 rmuise@americanfreedomlawcenter.org

ROSATI SCHULTZ JOPPICH & AMTSBUECHLER PC Andrew J. Brege (P71474) Attorney for Defendant Allen Telgenhof 822 Centennial Way, Suite 270 Lansing, MI 48917 (517) 886-3800 abrege@rsjalaw.com

David Yerushalmi (Ariz. Bar No. 009616) DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) Attorney for Plaintiffs 1901 Pennsylvania Avenue NW, Ste. 201 Washington, D.C. 20006 (646) 262-0500 dyerushalmi@americanfreedomlawcenter.org

SEWARD HENDERSON PLLC T. Joseph Seward (P35095) Attorney for Defendant William J. Vailliencourt, Jr. 210 East 3rd Street, Suite 212 Royal Oak, MI 48067 (248) 733-3580 jseward@sph-pllc.com

Case 1:20-cv-00323-PLM-PJG ECF No. 19 filed 04/24/20 PageID.339 Page 2 of 21

MILLER CANFIELD PADDOCK & STONE PLC Joel C. Bryant (P79506) Sonal H. Mithani (P51984) Attorney for Defendant Brian Mackie 101 N. Main St., 7th Floor Ann Arbor, MI 48104 (734) 668-8908 bryant@millercanfield.com mithani@millercanfield.com

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher M. Allen (P75329) John G. Fedynsky (P65232) Michigan Dept. of Attorney General Attorneys for Defendant Gretchen Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 froehlichj1@michigan.gov Boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov
/

DEFENDANT TELGENHOF’S RESPONSE TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

ii

Case 1:20-cv-00323-PLM-PJG ECF No. 19 filed 04/24/20 PageID.340 Page 3 of 21
Table of Contents Table of Contents ............................................................................................................iii Index of Authorities..........................................................................................................iv Question Presented........................................................................................................vii
I. Introduction ................................................................................................ 1 II. Statement of Facts..................................................................................... 1 III. Standard of Review ................................................................................... 4 IV. Argument ................................................................................................... 5
A. Defendant Telgenhof Defers to Defendant Whitmer Regarding the Constitutionality of EO 2020-42 ............................... 5
B. Plaintiffs Beemer and Cavanaugh Lack Standing to Seek Injunctive Relief Against Defendant Telgenhof ............................... 6
C. Because Defendant Telgenhof Has Not Threatened Enforcement Against Plaintiffs or Anyone Similarly Situated, Plaintiffs Cannot Establish a Likelihood of Success, and therefore, Cannot Show the Need for Injunctive Relief as to Him and His Office ....................................... 8
V. Conclusion ............................................................................................... 13
iii

Case 1:20-cv-00323-PLM-PJG ECF No. 19 filed 04/24/20 PageID.341 Page 4 of 21
Index of Authorities
Cases 1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108 (3rd Cir.
1993) ............................................................................................................ 11, 12 AFGE v. Clinton, 180 F.3d 727 (6th Cir. 1999) .............................................................. 6 Barber v. Dearborn Public Schools, 286 F. Supp. 2d 847 (E.D. Mich.
2003) .................................................................................................................... 4 Bench Billboard Company v. City of Cincinnati, 675 F.3d 974 (6th
Cir. 2012).............................................................................................................. 4 Cady v. Arenac Cty., 574 F.3d 334 (6th Cir. 2009)........................................................ 9 Carras v. Williams, 807 F.2d 1286 (6th Cir. 1986) ........................................................ 4 Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412
(6th Cir. 1996)....................................................................................... 7, 8, 11, 12 Claybrook v. Birchwell, 199 F.3d 350 (6th Cir. 2000) ................................................... 9 Erard v. Johnson, 905 F. Supp. 2d 782 (E.D. Mich. 2012)............................................ 4 Ex parte Young, 209 U.S. 123 (1908).............................................................. 10, 11, 12 Fieger v. Cox, 274 Mich. App. 449, 734 N.W.2d 602 (2007) .......................................... 5 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167
(2000) ................................................................................................................... 6 Gavitt v. Born, 835 F.3d 623 (6th Cir. 2016) .................................................................. 9 Gavitt v. Ionia Cty., 67 F. Supp. 3d 838 (E.D. Mich. 2014) ............................................ 9 Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91 (1979) ................................ 7 Hoover v. Michigan Dep't of Licensing & Regulatory Affairs, No.
19-CV-11656, 2020 WL 230136 (E.D. Mich. Jan. 15, 2020) .............................. 10 Kanuszewski v. Mich. Dep't of Health & Human Servs., 927 F.3d
396 (6th Cir. 2019).............................................................................................. 10 Kentucky v. Graham, 473 U.S. 159 (1985) ................................................................... 9
iv

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Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000) .................................................... 4, 5 Libertarian Party of Kentucky v. Grimes, 164 F. Supp. 3d 945 (E.D.
Ky.), aff'd, 835 F.3d 570 (6th Cir. 2016).............................................................. 11 Lujan v. Defenders of Wildlife, 497 U.S. 871 (1990) ................................................ 6, 7 MacDonald v. Vill. of Northport, Mich., 164 F.3d 964 (6th Cir. 1999) ........................ 10 McNeil v. Community Probation Servs., LLC, –– F.3d ––, No. 19-
5262, 2019 WL 7043172 (6th Cir. Dec. 23, 2019 ............................................... 10 McPherson v. Mich. High Sch. Athletic Ass’n, Inc. 119 F.3rd 453
(6th Cir. 1978)....................................................................................................... 4 Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978) .................................................... 9 Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274
(1977) ................................................................................................................... 9 Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566 (6th
Cir. 2002).............................................................................................................. 5 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ............................ 10 People v. Herrick, 216 Mich. App. 594, 550 N.W.2d 541 (1996) ............................. 5, 12 People v. Karalla, 35 Mich. App. 541, 192 N.W.2d 676 (1971)...................................... 5 Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701 (6th Cir. 2009)................................ 3 Regents of Univ. of Calif. v. Doe, 519 U.S. 425 (1997) ................................................ 9 Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015)...................................... 7 Russell v. Lundergan–Grimes, 784 F.3d 1037 (6th Cir. 2015) ................................... 11 S.J. v. Hamilton Cty., Ohio, 374 F.3d 416 (6th Cir. 2004) ............................................. 9 Thiokol Corp. v. Dep't of Treasury, State of Mich., Revenue Div.,
987 F.2d 376 (6th Cir. 1993) .............................................................................. 10 United States v. Any and All Radio Station Transmission Equip.,
204 F.3d 658 (6th Cir. 2000) ................................................................................ 4 United States v. Oldfield, 859 F.2d 392 (6th Cir. 1988) .......................................... 5, 12 Univ of Texas v. Camenisch, 451 U.S. 390 (1981)....................................................... 4
v

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Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982) ......................................................... 7
Warth v. Seldin, 422 U.S. 490 (1975) ............................................................................ 7 Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989) .............................................. 10 Wilson v. Brown, 889 F.2d 1195 (1st Cir.1989)............................................................. 9 Federal Court Rules Fed. R. Civ. P. 5.1 ........................................................................................................... 6 Michigan Statutes M.C.L. § 49.153............................................................................................................... 5 M.C.L. 10.31.................................................................................................................... 1 M.C.L. 30.401.................................................................................................................. 1 Other Authorities MI. CONST. Art. 7, §4 ..................................................................................................... 5 U.S. Const., art. III, § 2.................................................................................................... 6
vi

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Question Presented 1. Whether the Court issue a Preliminary Injunction against Defendant Telgenhof
where Plaintiffs and have shown only that he has general enforcement authority in Charlevoix County, have failed to allege or demonstrate actual or threatened enforcement of Executive Order 2020-42 against Plaintiffs, and have failed to show an exception to Immunity from suit in Federal Court against him under the 11th Amendment to the United States Constitution?

Defendant answers, Plaintiff presumably answers,

“No.” “Yes.”

vii

Case 1:20-cv-00323-PLM-PJG ECF No. 19 filed 04/24/20 PageID.345 Page 8 of 21
I. Introduction Allen Telgenhof is the Charlevoix County Prosecutor. Plaintiffs Beemer and Cavanaugh, both residents of counties located in the Eastern District of Michigan, own cottages in Charlevoix County. Governor Gretchen Whitmer, as part of the State of Michigan’s efforts to curb the spread of COVID-19, issued Executive Order 2020-42, which took effect on April 9, at 11:59 pm. That order increased the scope of prior temporary restrictions aimed at slowing the spread of COVID-19 and included a prohibition on individuals with more than one residence from travelling between those residences. It also expanded the scope of essential and non-essential businesses and recreational activity. Since its issuance, Plaintiffs Beemer and Cavanaugh assert they have been deprived of their right to visit their vacation homes and use their motorboats on Lake Charlevoix. Plaintiffs seek a preliminary injunction so they can visit their cottages and use their motorboats. For the reasons that follow, no such injunction should be imposed against this Defendant, Charlevoix County Prosecuting Attorney Allen Telgenhof. II. Statement of Facts1 1. Pursuant to Michigan’s Emergency Management Act, M.C.L. 30.401, et seq, and Emergency Powers Act, M.C.L. 10.31, et seq., and in direct response to the current COVID-19 pandemic, Governor Gretchen Whitmer enacted Executive Order 2020-
1 Only those facts that pertain to Charlevoix County, the extent of Defendant Telgenhof’s jurisdiction as Charlevoix County Prosecuting Attorney, are referenced here. Defendant Telgenhof takes no position regarding Plaintiff Cavanaugh’s private landscape business in Livingston County, nor Plaintiff Muise’s desire to purchase additional firearms and ammunition, or gather to break bread with family members outside of his immediate household for religious and companionship purposes.
1

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42. The Order provides a number of measures aimed at slowing or reducing the spread of the novel coronavirus that causes COVID-19. The order provides that willful violations of its provisions shall be punishable as a misdemeanor. 2. Plaintiff Kimberly Beemer is a resident of Saginaw County. She owns a cottage in East Jordan, in Charlevoix County. 3. Plaintiff Beemer asserts that since EO 2020-42 was issued, she has not gone to her cottage in East Jordan. She also asserts that she has not boated on Lake Charlevoix, ostensibly because she can only do so with a gas-powered boat. Like many people, she believes she and her family present little risk of spreading COVID-19. 4. Plaintiff Paul Cavanaugh is a resident of Livingston County. He owns a cottage in Charlevoix County. 5. Plaintiff Cavanaugh asserts that since EO 2020-42 was issued, he has not gone to his cottage in Charlevoix County. He also asserts he has not boated on Lake Charlevoix since issuance of EO 2020, also because he has a gas-powered boat. Like Plaintiff Beemer, he believes he and his family present little risk of spreading COVID-19. 6. The remaining Plaintiff, and counsel for the other Plaintiffs, Robert Muise, does not assert any claim related to Charlevoix County or Defendant Telgenhof. 7. Plaintiffs filed this declaratory and injunctive action on April 15, 2020. They filed the present motion for a temporary restraining order and preliminary injunction on April 20, 2020.
2

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8. On April 23, 2020, Defendant Telgenhof issued his office’s official statement on
the Executive Order at issue, which includes the following related to enforcement
by the Charlevoix County Prosecuting Attorney’s office:
When the governor announced the first “Stay Home” executive order, we were told that the Attorney General’s Office would handle all enforcement issues. Enforcement has now been deferred to local prosecutors.
While we did not sign up for this, we have been doing our best to interpret the provisions of the order and provide guidance to individuals and businesses and, together with law enforcement, to seek voluntary compliance.
As of yesterday, we have 12 confirmed cases of COVID-19 in Charlevoix County and one tragic death as a result. My heart aches for those who have been diagnosed and those close to them, especially the friends and family of the gentleman who lost his battle with the deadly virus.
Charlevoix County residents and businesses have great at following the directives and the only individuals we have charged for violating the order have been people engaged in criminal activity, such as drug sales. (Exhibit 1)
9. No enforcement action has been initiated or threatened to be initiated by
Defendant Telgenhof or his office against anyone engaged in the activities
Plaintiffs Beemer and Cavanaugh complain they have not done since the April 9
order went into effect.
10. On Friday, April 24, 2020, at 11:00 am, Governor Whitmer issued Executive Order
2020-59, which lifted the restrictions as they relate to Plaintiffs’ concerns regarding
Charlevoix County. Thus, it would seem the claim is moot as to this Defendant.2
2 If a case no longer relates to an “actual, live controversy, it is considered moot.” Pettrey v. Enter. Title Agency, Inc., 584 F.3d 701, 703 (6th Cir. 2009). Once a case is moot, it must be dismissed for lack of jurisdiction. Id. “The test for mootness is whether the relief sought would, if
3

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III. Standard of Review The granting of a preliminary injunction is committed to the sound discretion of the court. United States v. Any and All Radio Station Transmission Equip., 204 F.3d 658, 665 (6th Cir. 2000). Under FRCP 65, injunctive relief is an extraordinary remedy whose purpose generally is to preserve the status quo. Univ of Texas v. Camenisch, 451 U.S. 390, 395 (1981); Barber v. Dearborn Public Schools, 286 F. Supp. 2d 847, 851-852 (E.D. Mich. 2003). Plaintiffs “carry a heavy burden to demonstrate entitlement to a preliminary injunction.” Erard v. Johnson, 905 F. Supp. 2d 782, 796 (E.D. Mich. 2012). When deciding whether to issue a preliminary injunction under Federal Rule of Civil Procedure 65, courts typically consider four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury if the injunction does not issue; (3) whether the issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of the injunction. Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). “A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it.”
granted, make a difference to the legal interests of the parties.” McPherson v. Mich. High Sch. Athletic Ass’n, Inc. 119 F.3rd 453, 458 (6th Cir. 1978). “Mootness results when events occur during the pendency of a litigation which render the court unable to grant the requested relief.” Carras v. Williams, 807 F.2d 1286, 1289 (6th Cir. 1986). Courts have repeatedly dismissed claims for injunctive relief as moot when the sought relief has already been achieved. See, e.g. Bench Billboard Company v. City of Cincinnati, 675 F.3d 974 (6th Cir. 2012) (court determined claims based on statutory challenge were moot when City revised statutory scheme after the lawsuit was filed). It would appear that Governor Whitmer’s EO 2020-59 would moot the case as it relates to any potential claim regarding Charlevoix County or its Prosecuting Attorney, Defendant Telgenhof.
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Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir. 2002)
(citing Leary, 228 F.3d at 739).
IV. Argument3
A. Defendant Telgenhof Defers to Defendant Whitmer Regarding the Constitutionality of EO 2020-42
The duties of Michigan’s county prosecuting attorneys are provided by law. MI.
CONST. Art. 7, § 4.4 These duties include the prosecution and defense of suits in their
respective counties in which the state or the county is a party. M.C.L. § 49.153. It is long
established that in Michigan, a prosecuting attorney retains discretion whether to
prosecute, and which charges to file, if any. People v. Herrick, 216 Mich. App. 594, 598;
550 N.W.2d 541 (1996) (collecting cases) (“The county prosecutor is a constitutional
officer with discretion to decide whether to initiate criminal charges.”); see also United
States v. Oldfield, 859 F.2d 392, 398 (6th Cir. 1988).
While given this discretion on enforcement, in a situation like the present case,
where there has been no showing of actual enforcement, let alone an allegation of a threat
of enforcement by local prosecuting attorney, for engagement in the activities Plaintiffs
3 As noted in footnote 2, supra, it would appear that Plaintiffs’ claims are now moot as to this Defendant. These arguments are presented in the event this Court does not dismiss for mootness. 4 “Prosecuting attorneys shall, in their respective counties, appear for the state or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions whether civil or criminal, in which the state or county may be a party or interested.” M.C.L. § 49.153. Similarly, the Michigan Attorney General possesses all the powers of a prosecuting attorney unless that power has been specifically withdrawn by the Legislature.” Fieger v. Cox, 274 Mich. App. 449, 466, 734 N.W.2d 602, 612 (2007) (quoting People v. Karalla, 35 Mich. App. 541, 544, 192 N.W.2d 676 (1971)). Given that the Attorney General’s office had initially indicated it would undertake enforcement of EO 2020-42, and there has been no revocation of the general authority of the Attorney General to take such action, that office has the same enforcement authority over criminal enforcement of EO 2020-42 as does any local prosecutor.
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assert they would prefer to do, it is not the duty of that local prosecuting official to defend the constitutionality of the challenged order or statute. See, e.g., Fed. R. Civ. P. 5.1 (requiring notice to the state attorney general when an action challenges the constitutionality of a state statue or order). Here, this burden has been taken up by Defendant Whitmer, through her counsel the Attorney General, and this Defendant defers to the arguments set forth in that response, Dkt. No. 10.
B. Plaintiffs Beemer and Cavanaugh Lack Standing to Seek Injunctive Relief Against Defendant Telgenhof
At the outset, Defendant Telgenhof incorporates by reference all arguments presented by co-Defendants regarding standing, including those made by Defendants Whitmer and Vailliencourt. Federal courts are constitutionally limited to adjudicating actual cases or controversies. U.S. Const., art. III, § 2. To maintain an action, Plaintiff’s personal interest in the litigation must exist both at the commencement of the suit and throughout the suit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000). Plaintiffs bear the burden of showing that the court has standing to hear their particular case. AFGE v. Clinton, 180 F.3d 727, 729 (6th Cir. 1999). To establish Article III standing to sue in federal court, a plaintiff must show that:
(1) He or she has suffered an “injury in fact”; (2) there is a causal connection between the injury and the conduct complained of; and (3) the injury will likely be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 497 U.S. 871, 883 (1990). Since these elements are not mere pleading requirements, but rather an indispensable part of the plaintiffs’ case, each element must be supported in the same way as any other matter on which plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the
6

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successive stages of the litigation. Id. at 883-889; Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 114-115 (1979).
In addition to the Article III requirements, a plaintiff must also satisfy three prudential standing restrictions. First, a plaintiff must “assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499 (1975) (citations omitted). Second, a plaintiff’s claim must be more than a “generalized grievance” that is pervasively shared by a large class of citizens. Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 474-75 (1982). Third, in statutory cases, the plaintiff’s claims must fall within the “zone of interests” regulated by the statute in question. Id. A state official only becomes a proper party when their actions demonstrate “a realistic possibility” the official will take legal or administrative actions against the plaintiff's interests. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1048 (6th Cir. 2015). There must be an actual threat that proceedings are actually going to commence, not that there was merely authority to commence proceedings. Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1416 (6th Cir. 1996).
Plaintiffs’ claims against Defendant Telgenhof are a classic example of a “generalized grievance” which lacks an “injury in fact.” Plaintiffs have failed to allege any past enforcement, ongoing enforcement, or a threat of imminent enforcement of the Executive Order against either Plaintiff with a connection to Charlevoix County, or anyone partaking in the activities Plaintiffs are seeking to engage in. The only claims alleged against Defendant Telgenhof is that he has general authority to enforce Executive Order 2020-42. Such a general claim that contains absolutely no injury or reasonable threat of
7

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injury to Plaintiffs is insufficient to justify naming Defendant Telgenhof as a party. Plaintiffs are merely relying on Defendant Telgenhof’s authority to prosecute, not on his actual or realistic threat of prosecution of the Executive Order – a position argument the Sixth Circuit has rejected. See Children’s Healthcare, supra at 1416.
Additionally, Plaintiffs have failed to show how their alleged injuries are casually connected to Defendant Telgenhof’s activity, as Plaintiffs have not even alleged a single action taken by Defendant Telgenhof. Again, Defendant Telgenhof has not taken any enforcement action, or threatened an enforcement action against Plaintiff, or anyone partaking in the activities Plaintiffs are seeking to engage in. It is impossible to connect any alleged injury to a nonexistent action, especially in a suit where Plaintiffs are seeking the Prosecutor’s inaction. Stated differently, Defendant Telgenof is already partaking in the inaction Plaintiffs are seek through this suit.
Therefore, Plaintiffs have failed to meet their burden in providing this Courts’ jurisdiction over Defendant Telgenhof, and he must be dismissed.
C. Because Defendant Telgenhof Has Not Threatened Enforcement Against Plaintiffs or Anyone Similarly Situated, Plaintiffs Cannot Establish a Likelihood of Success, and therefore, Cannot Show the Need for Injunctive Relief as to Him and His Office
The 11th Amendment to the United States Constitution provides broad immunity for state governments and state officials. It provides as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. [U.S. Const. amend XI. (emphasis added)]
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This immunity not only applies to the states themselves, but also to “state instrumentalities” and “entities acting as “arm[s] of the State.” S.J. v. Hamilton Cty., Ohio, 374 F.3d 416, 419 (6th Cir. 2004) (quoting Regents of Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997) and Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)). In § 1983 litigation, “[a]n official capacity claim filed against a public employee is equivalent to a lawsuit directed against the public entity which that agent represents.” Claybrook v. Birchwell, 199 F.3d 350, 355 n. 4 (6th Cir. 2000) (citing Kentucky v. Graham, 473 U.S. 159, 165 (1985)); see also Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, n. 55 (1978) (Official-capacity suits ... “generally represent only another way of pleading an action against an entity of which an officer is an agent.”). Likewise, “neither states, nor state officials acting in their official capacities are ‘persons' within the meaning of § 1983. Consequently, a cause of action for damages against these parties will not lie.” Wilson v. Brown, 889 F.2d 1195, 1197 (1st Cir.1989).
Courts in the Sixth Circuit have repeatedly held that 11th Amendment immunity is available to county prosecutors when acting as state officials. See Cady v. Arenac Cty., 574 F.3d 334, 342 (6th Cir. 2009); Gavitt v. Ionia Cty., 67 F. Supp. 3d 838, 858 (E.D. Mich. 2014), aff'd sub nom. Gavitt v. Born, 835 F.3d 623 (6th Cir. 2016). Whether a county prosecutor is a “state official” depends, at least in part, on state law. Mt. Healthy City, supra at 280. The Sixth Circuit has previously provided that a county prosecutor acts “as a state agent when prosecuting state criminal charges”. Cady, supra at 343. Therefore, a prosecutor acting in such a manner is entitled to 11th Amendment immunity when sued in his official capacity. Id. at 345.
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Plaintiffs attempt to avoid the application of Defendant’s immunity by relying on Ex parte Young, 209 U.S. 123 (1908), which recognizes one of the limited exceptions to 11th Amendment immunity. In Ex parte Young, the Court held the 11th Amendment “does not preclude actions against state officials sued in their official capacities for prospective injunctive or declaratory relief.” Thiokol Corp. v. Dep't of Treasury, State of Mich., Revenue Div., 987 F.2d 376, 381 (6th Cir. 1993) (emphasis added, citing Ex parte Young, supra). The Ex parte Young exception permits a federal court to “compel[ ] a state official to comply with federal law.” Kanuszewski v. Mich. Dep't of Health & Human Servs., 927 F.3d 396, 417 (6th Cir. 2019) (emphasis added, citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 & n.10 (1989)).
Claims under the Ex parte Young exception must also meet a number of additional conditions to survive dismissal. To start, claims under this exception must seek prospective relief to end a continuing violation of federal law as retroactive relief is barred by the 11th Amendment. See MacDonald v. Vill. of Northport, Mich., 164 F.3d 964, 970–72 (6th Cir. 1999); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984). Moreover, the Ex parte Young doctrine only permits lawsuits that can be meaningfully described as being against the named official, not those that ‘merely mak[e] him a party as a representative of the state, and thereby attempt[ ] to make the state a party.’” McNeil v. Community Probation Servs., LLC, –– F.3d ––, No. 19-5262, 2019 WL 7043172, at *4 (6th Cir. Dec. 23, 2019) (quoting Ex parte Young, supra at 157); see also Hoover v. Michigan Dep't of Licensing & Regulatory Affairs, No. 19-CV-11656, 2020 WL 230136, at *7 (E.D. Mich. Jan. 15, 2020)). This exception is also generally
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narrowly construed by the courts. Children’s Healthcare, 92 F.3d at 1415 (courts “have not read Young expansively.”).
The Ex parte Young doctrine also requires a nexus between the official and the conduct at issue. In fact, the Sixth Circuit has provided that “Young does not apply when a defendant state official has neither enforced nor threatened to enforce the allegedly unconstitutional state statute.” Children’s Healthcare, supra at 1415. To be liable, a state actor “must have some connection with the enforcement” of the allegedly unconstitutional act, and this connection must be “more than a bare connection.” Ex parte Young, supra at 157; Russell v. Lundergan–Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015). “General authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Russell, supra at 1048 (quoting 1st Westco Corp. v. Sch. Dist. of Philadelphia, 6 F.3d 108, 113 (3rd Cir. 1993)); see also Libertarian Party of Kentucky v. Grimes, 164 F. Supp. 3d 945, 949 (E.D. Ky.), aff'd, 835 F.3d 570 (6th Cir. 2016).
Here, there no dispute that Charlevoix County Prosecuting Attorney Allen Telgenhof is not a proper party for liability in his official capacity. To start, he lacks the requisite relationship to support application of the Ex parte Young exception. As Plaintiff’s own Motion suggests, Defendant has not enforced and has not even threatened to enforce Executive Order 2020-42 against the named Plaintiffs, or against others for the sort of behavior Plaintiffs claim they have been prevented from engaging. (Doc. 8). In fact, Defendant has not enforced the Order against any persons similarly situation to Plaintiffs, i.e. persons solely traveling to secondary vacation residences or attempting to motorboat on Lake Charlevoix. Therefore, without such a threat of imminent enforcement,
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Plaintiffs have failed to meet the high burden of such an extraordinary remedy against this Defendant.
The only “connection” Plaintiffs have offered between Defendant Telgenhof and their anticipated harm is Plaintiffs’ citation to Defendant’s authority to prosecute persons under this Executive Order. However, the “[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” 1st Westco Corp., supra at 113; see also Russell, supra at 1048. Government officials are proper parties only “when there is a realistic possibility the official will take legal or administrative actions against the plaintiff's interests.” Russell, supra at 1049 (citations omitted, emphasis added). “Consistent with the Young requirement of action on the part of the state official, we note that the phrase ‘some connection with the enforcement of the act’ does not diminish the requirement that the official threaten and be about to commence proceedings.” Children's Healthcare, supra at 1416. Plaintiffs have not made their requisite showing, and therefore, injunctive relief is inappropriate.
Further, as noted above, Defendant is not even required to enforce this Executive Order, as local prosecutors enjoy broad discretion on what charges, if any, to file and pursue. See Herrick, supra; Oldfield, supra. Given this discretion, and no indication or even allegation that this Defendant has enforced or threatened to enforce the Executive Order for the actions Plaintiffs complaint, the Ex parte Young doctrine is inapplicable and Defendant is entitled to 11th Amendment immunity. Plaintiffs may have an internal belief about whether they would be prosecuted for traveling to their vacation cottages, but they have submitted nothing to support their allegations, other than speculation and conjecture. There is no realistic possibility Plaintiffs would be prosecuted by Defendant
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here and their claims accordingly will fail to overcome Defendant’s 11th Amendment immunity.
V. Conclusion For the reasons stated above, Defendant Telgenhof respectfully requests that no injunctive relief is necessary as to him, sued only in his official capacity, as a decision on the merits of Plaintiff’s claim against Defendant Whitmer will be sufficient to determine whether any enforcement action would or could be undertaken by him pursuant to a violation of EO 2020-42.

Dated: April 24, 2020

Respectfully Submitted,
ROSATI, SHULTZ, JOPPICH, & AMTSBUECHLER, P.C.
/s/ Andrew J. Brege Andrew J. Brege (P71474) Attorney for Defendant Allen Telgenhof 822 Centennial Way, Suite 270 Lansing, MI 48917 (517) 886-3800 abrege@rsjalaw.com

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Case 1:20-cv-00323-PLM-PJG ECF No. 19 filed 04/24/20 PageID.358 Page 21 of 21

PROOF OF SERVICE AND CERTIFICATE OF COMPLIANCE WITH LCivR 7.2 I hereby certify that on April 24, 2020, I electronically filed the foregoing paper with
the Clerk of the Court using the ECF system which will send notification of such filing to the attorneys of record identified in the caption. I also certify that this Response Brief was created using Microsoft Word 2016, and that the Response Brief contains 3,714 words in the text and footnotes, exclusive of the caption, index, signatures, and this certificate.

Respectfully Submitted,

ROSATI, SHULTZ, JOPPICH, & AMTSBUECHLER, P.C.

Dated: April 24, 2020

/s/ Andrew J. Brege
Andrew J. Brege (P71474) Attorney for Defendant Allen Telgenhof 822 Centennial Way, Suite 270 Lansing, MI 48917 (517) 886-3800 abrege@rsjalaw.com

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Case 1:20-cv-00323-PLM-PJG ECF No. 19-1 filed 04/24/20 PageID.359 Page 1 of 2
Kimberly Beemer, et al v Gretchen Whitmer, et al Case No. 1:20-cv-00323-PLM-PJG
Defendant Telgenhof’s Response to Plaintiff’s Motion for Temporary Restraining Order and Preliminary Injunction Exhibit 1 – Lawsuit Statement

Case 1:20-cv-00323-PLM-PJG ECF No. 19-1 filed 04/24/20 PageID.360 Page 2 of 2
STATEMENT OF PROSECUTING ATTORNEY ALLEN TELGENHOF April 23, 2020
A federal lawsuit was filed last week challenging the constitutionality of Governor Whitmer’s “Stay Home” executive order. Because two of the parties own second homes in Charlevoix County, I have been included as a party in my capacity as Charlevoix County Prosecuting Attorney as have prosecutors from other counties.
The suit asks the United States District Court for the Western District of Michigan to rule on the constitutionality of the Governor’s actions and she will have the opportunity to defend the scope and validity of her order.
The plaintiff’s claim specific to Charlevoix County is that the governor’s order does not allow them to visit their vacation homes here. Neither has been prosecuted nor had prosecution threatened by law enforcement or by my office.
When the governor announced the first “Stay Home” executive order, we were told that the Attorney General’s Office would handle all enforcement issues. Enforcement has now been deferred to local prosecutors.
While we did not sign up for this, we have been doing our best to interpret the provisions of the order and provide guidance to individuals and businesses and, together with law enforcement, to seek voluntary compliance.
As of yesterday, we have 12 confirmed cases of COVID-19 in Charlevoix County and one tragic death as a result. My heart aches for those who have been diagnosed and those close to them, especially the friends and family of the gentleman who lost his battle with the deadly virus.
Charlevoix County residents and businesses have great at following the directives and the only individuals we have charged for violating the order have been people engaged in criminal activity, such as drug sales.
This lawsuit asks the court to rule on the constitutionality of the governor’s actions and does not state or even imply we have done anything wrong in Charlevoix County.
We are a nation of laws and this type of lawsuit is one way a citizen can legally challenge the acts of the government. The plaintiffs are exercising their right to contest the governor’s actions. The governor will respond and defend her actions. The court will decide whether the order is constitutional.

 
 Case 1:20-cv-00323-PLM-PJG ECF No. 24 filed 04/27/20 PageID.389 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,
Plaintiffs,

No. 1:20-cv-00323

v.

Hon. Paul L. Maloney

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,
Defendants.

U.S. Magistrate Judge Phillip J. Green

STIPULATED ORDER RESOLVING PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
______________________________________________________________________________

American Freedom Law Center Robert J. Muise, Esq. (P62849) P.O. Box 131098 Ann Arbor, Michigan 48113 (734) 635-3756 rmuise@americanfreedomlawcenter.org Attorneys for Plaintiffs
Seward Henderson PLLC T. Joseph Seward (P35095) 210 East 3rd Street, Suite 212 Royal Oak, Michigan 48067 (248) 733-3580 jseward@sewardhenderson.com Attorneys for Defendant Vailliencourt

Michigan Department of Attorney General Joseph T. Froehlich (P71887) Assistant Attorney General 525 West Ottawa Street, P.O. Box 30754 Lansing, Michigan 48909 (517) 335-7573 froehlichj1@michigan.gov Attorneys for Defendant Whitmer
Rosati Schultz Joppich & Amtsbuechler PC Andrew J. Brege (P71474) 822 Centennial Way, Suite 270 Lansing, Michigan 48917 (517) 886-3800 Attorney for Defendant Telgenhof

Miller, Canfield, Paddock and Stone PLC Sonal Hope Mithani (P51984) 101 North Main, Seventh Floor Ann Arbor, Michigan 48104 (734) 668-7786 Mithani@millercanfield.com Attorneys for Defendant Mackie

Case 1:20-cv-00323-PLM-PJG ECF No. 24 filed 04/27/20 PageID.390 Page 2 of 5
Plaintiffs Kimberly Beemer, Paul Cavanaugh, and Robert Muise (collectively referred to as “Plaintiffs”), through counsel, Defendant Gretchen Whitmer, through counsel, Defendant Allen Telgenhof, through counsel, Defendant Brian L. Mackie, through counsel, and Defendant William J. Vailliencourt, Jr., through counsel, (collectively referred to as the “parties”) hereby stipulate to the following and to the entry of the attached Order, which will resolve Plaintiffs’ pending Motion for Temporary Restraining Order and Preliminary Injunction (“TRO/PI Motion”) (Doc. No. 7):
1. On April 15, 2020, Plaintiffs filed this lawsuit seeking to enjoin Defendants from enforcing certain measures of Executive Order 2020-42, which was issued on April 9, 2020.
2. On April 20, 2020, Plaintiffs filed their TRO/PI Motion, seeking specific preliminary relief from the challenged measures of Executive Order 2020-42. The Court set a hearing on Plaintiffs’ motion for April 30, 2020. (Doc. No. 15).
3. On April 24, 2020, Defendant Whitmer issued Executive Order 2020-59, which the parties agree applies and will be enforced as follows:
a. Executive Order 2020-59 permits individuals to travel between their own residences and cottages within the State of Michigan, thereby permitting Plaintiff Beemer, along with members of her household, to travel to and from her residence in Saginaw, Michigan and her cottage located in Charlevoix County, Michigan, and permitting Plaintiff Cavanaugh, along with members of his household, to travel to and from his residence in Brighton, Michigan and his cottage located in Charlevoix County, Michigan. This is provided by Executive Order 2020-59, Section 7(b)(3).
b. Executive Order 2020-59 permits the operation of landscaping businesses within the State of Michigan, thereby permitting Plaintiff Cavanaugh to reopen his landscaping business, Cavanaugh’s Lawn Care LLC, subject to the mitigation measures required under Section

Case 1:20-cv-00323-PLM-PJG ECF No. 24 filed 04/27/20 PageID.391 Page 3 of 5
11 of the order, including the enhanced social-distancing rules described in section 11(h). This is provided by Executive Order 2020-59, Section 4(c) and Section 10(c).
c. Executive Order 2020-59 permits individuals, including Plaintiffs Beemer and Cavanaugh, to engage in outdoor activities that include using boats with motors for fishing and other similar recreational purposes, consistent with remaining at least six feet from people from outside the individual’s household. This is provided by Executive Order 2020-59, Section 7(a)(1).
d. Executive Order 2020-59 permits, insofar as is otherwise permissible under the law, the sale of guns from any store via remote order and curbside pick-up, and the sale of guns in-store from stores that sell necessary supplies as well as guns in their normal course of business, subject to the mitigation measures required by Sections 11 and 12 of the order. The order permits individuals, including Plaintiff Muise, to travel to and from such businesses. This is provided by Executive Order 2020-59, Section 5(c), Section 7(a)(8), Section 10(a), and Section 12(c).
e. Executive Order 2020-59 exempts from penalty religious gatherings at private residences. Accordingly, Plaintiff Muise is not subject to penalty under the order for holding religious gatherings with his immediate family at his private residence located in Superior Township, Michigan. This is provided by Executive Order 2020-59, Section 16.
4. As a result of this stipulation, the TRO/PI Motion is moot because the requested relief is no longer necessary.

Case 1:20-cv-00323-PLM-PJG ECF No. 24 filed 04/27/20 PageID.392 Page 4 of 5

So stipulated this 26th day of April 2020.

American Freedom Law Center

Michigan Department of Attorney General

By: Robert J. Muise Robert J. Muise, Esq. (P62849)
Attorneys for Plaintiffs Beemer, Cavanaugh, and Muise

By: Joseph T. Froehlich Joseph T. Froehlich, Esq. (P71887) Attorneys for Defendant Whitmer
Rosati Schultz Joppich & Amtsbuechler PC

By: Andrew J. Brege Andrew J. Brege, Esq. (P71474) Attorneys for Defendant Telgenhof

Miller, Canfield, Paddock and Stone PLC
By: Sonal Hope Mithani Sonal Hope Mithani, Esq. (P51984) Attorneys for Defendant Mackie

Seward Henderson PLLC
By: T. Joseph Seward T. Joseph Seward, Esq. (P35095) Attorneys for Defendant Vailliencourt

Case 1:20-cv-00323-PLM-PJG ECF No. 24 filed 04/27/20 PageID.393 Page 5 of 5
* * * ORDER Pursuant to the stipulation of the parties as set forth above, the provisions of this stipulation are hereby Ordered by the Court, and Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction (Doc. No. 7) is hereby dismissed as Moot. So Ordered this __2_7_th_ day of April 2020.
__/_s_/ _P_a_u_l _L_._M__a_lo_n_e_y________________ Paul L. Maloney United States District Court Judge

 
 Case 1:20-cv-00323-PLM-PJG ECF No. 25 filed 04/28/20 PageID.394 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

KIMBERLY BEEMER and ROBERT MUISE, Plaintiffs,

No. 1:20-cv-00323

v.
GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,
Defendants.

FIRST AMENDED COMPLAINT Hon. Paul L. Maloney U.S. Magistrate Judge Phillip J. Green

Plaintiffs Kimberly Beemer and Robert Muise (collectively referred to as “Plaintiffs”), by and through undersigned counsel, bring this First Amended Complaint against the above-named Defendants, their employees, agents, and successors in office, and in support thereof allege the following upon information and belief:
INTRODUCTION 1. John Adams warned: “But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.” Plaintiffs bring this action because they reasonably fear that the draconian encroachments on their freedom set forth in this First Amended Complaint will, unfortunately, become the “new norm.” It has been said that all tyranny needs to gain a foothold is for people of good conscience to remain silent. 2. This case seeks to protect and vindicate fundamental liberties that citizens of the United States enjoy free from government interference. These liberties are not conferred or granted by government to then be rescinded at the will and whims of government officials. These God-given liberties are possessed by the people, and they are guaranteed against

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government interference by the United States Constitution, which is the supreme law of the land, and by the Constitution of the State of Michigan.
3. This civil rights action is brought under the First, Second, and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Article I, § 6 of the Michigan Constitution, challenging Defendant Whitmer’s authority to restrict fundamental liberties via the issuance of her executive orders which have criminalized Plaintiffs’ peaceful activity and thus deprived Plaintiffs of their fundamental liberties and freedom.
4. Plaintiffs seek a declaration that the enactment and enforcement of the challenged measures ordered by Defendant Whitmer as set forth in this First Amended Complaint violate their fundamental liberties and rights secured by the United States and Michigan Constitutions and an order enjoining the same. Plaintiffs also seek an award of attorneys’ fees and costs pursuant to 42 U.S.C. § 1988, and other applicable laws.
JURISDICTION AND VENUE 5. This action arises under the Constitution and laws of the United States. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has supplemental jurisdiction over the State law claim pursuant to 28 U.S.C. § 1367(a). 6. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C. §§ 2201 and 2202, by Rules 57 and 65 of the Federal Rules of Civil Procedure, by Ex parte Young, 209 U.S. 123 (1908), and by the general legal and equitable powers of this Court. 7. Plaintiffs’ claim for an award of their reasonable costs of litigation, including attorneys’ fees and expenses, is authorized by 42 U.S.C. § 1988 and other applicable law.
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8. Venue is proper under 28 U.S.C. § 1391(b) because the Office of the Governor of Michigan and the Office of the Michigan Attorney General are located in this judicial district and all Defendants are residents of the State in which this district is located.
PARTIES 9. Plaintiffs Kimberly Beemer and Robert Muise are adult citizens of the United States and residents of Michigan. 10. Plaintiff Beemer owns a cottage in Charlevoix County, Michigan. 11. Plaintiff Beemer, a Michigan licensed attorney, resides in Saginaw, Michigan. Plaintiff Muise, a Michigan licensed attorney, resides in Superior Township, Michigan, which is in Washtenaw County. 12. Defendant Gretchen Whitmer is the Governor of the State of Michigan. 13. Under color of State law, Defendant Whitmer issued Executive Order 2020-21 (EO 2020-21), Executive Order 2020-42 (EO 2020-42), and Executive Order 2020-59 (EO 202059). Defendant Whitmer will continue to issue executive orders in light of the current COVID19 pandemic and the anticipated recurrence of the spread of this virus and other viruses. 14. Defendant Whitmer is sued in her official capacity only. 15. Defendant Dana Nessel is the Attorney General of Michigan. The Attorney General is the State’s top law enforcement official. 16. As the Attorney General, Defendant Nessel has authority to investigate and enforce violations of the provisions of Defendant Whitmer’s executive orders set forth in this First Amended Complaint. 17. As the Attorney General, Defendant Nessel is actively involved with investigating and enforcing violations of Defendant Whitmer’s executive orders and has issued cease and
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desist letters to individuals and businesses that have violated these orders, threatening criminal sanctions if the individuals or businesses fail to comply.
18. Defendant Nessel is sued in her official capacity only. 19. Defendant Brian L. Mackie is the Washtenaw County Prosecuting Attorney. As a County Prosecuting Attorney, Defendant Mackie is responsible for criminally prosecuting persons who violate Defendant Whitmer’s executive orders in Washtenaw County. 20. Defendant Mackie is sued in his official capacity only.
STATEMENT OF FACTS 21. On March 23, 2020, Defendant Whitmer issued EO 2020-21, which was described as a “[t]emporary requirement to suspend activities that are not necessary to sustain or protect life.” 22. On April 9, 2020, Defendant Whitmer issued EO 2020-42, which “reaffirm[ed] the measures set forth in Executive 2020-21, clarif[ied] them, and extend[ed] their duration to April 30, 2020.” The executive order took effect “on April 9, 2020 at 11:59 pm.” When EO 2020-42 took effect, it rescinded EO 2020-21. A true and correct copy of EO 2020-42, which is incorporated herein by reference, is attached to this First Amended Complaint as Exhibit 1. 23. By its own terms, EO 2020-42 was to remain in effect until April 30, 2020 at 11:59 pm. Defendant Whitmer publicly expressed a desire to extend the measures of EO 202042 into June 2020. Though EO 2020-42 was rescinded when EO 2020-59 took effect, Defendant Whitmer retains the power and inclination to institute the measures in EO 2020-42 at any time she sees fit. 24. A “willful violation” of Defendant Whitmer’s executive orders is a misdemeanor.
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25. EO 2020-42 put in place draconian measures that arbitrarily and unreasonably
imposed restrictions and thus criminal sanctions on Plaintiffs’ fundamental rights and liberty.
26. EO 2020-42, stated, in relevant part, the following:
2. Subject to the exceptions in section 7, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention, including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
* * *
7. Exceptions.
a. Individuals may leave their home or place of residence, and travel as necessary:
1. To engage in outdoor physical activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.
* * *
6. To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.
A. Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences. Individuals may also leave the home to drop off a vehicle to the extent permitted under section 9(i) of this order.
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* * * 7. To care for a family member or a family member’s pet in another household.
* * * b. Individuals may leave their home or place of residence, and travel as necessary:
1. To return to a home or place of residence from outside the state. 2. To leave this state for a home or residence elsewhere. 3. Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.
* * * c. All other travel is prohibited, including all travel to vacation rentals.
(EO 2020-42 at Exhibit 1). 27. Plaintiff Beemer and members of her household frequently travel to her cottage,
property which she owns, located in Charlevoix County. She would often leave from her residence in Saginaw, Michigan and travel to the cottage on a Thursday, remaining at her cottage over the weekend and returning late on Sunday or early Monday morning. Her cottage is a second home, and it is her private retreat from the daily grind of her law practice.
28. Under the measures set forth in EO 2020-42, if Plaintiff Beemer travelled to her cottage, she would have committed a criminal offense, subjecting her to prosecution for violating the executive order. As a result, Plaintiff Beemer ceased her travel and was thus denied the use and enjoyment of her private property by the government while this order was in effect. Plaintiff
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Beemer had no recourse for this deprivation of her property rights other than seeking redress in a court of law by bringing this action.
29. There is little to no chance that Plaintiff Beemer would have caused the spread of COVID-19 by travelling with members of her household from her residence in Saginaw, Michigan to her cottage in Charlevoix County. In fact, she and members of her household are more isolated at the cottage than when they are at their home in Saginaw.
30. EO 2020-42 permitted individuals to travel from Saginaw to Charlevoix County to purchase pet food, gasoline, marijuana, Lotto tickets, and liquor, among other reasons.
31. There was no reasonable or legitimate justification for restricting Michigan residents from travelling to cottages that they own or rent during this current pandemic. Under EO 2020-42, a Wisconsin or Ohio resident could have travelled from his State to his cottage in Charlevoix County, Michigan without violating EO 2020-42. Thus, the executive order discriminated against individuals, including Plaintiff Beemer, based upon their State of residence, it impaired their right to travel, and it deprived them of the use and enjoyment of their property.
32. Prohibiting individuals from traveling from one place of residence in the State to another place of residence or cottage within the State had no real or substantial relation to promoting the objectives of EO 2020-42, particularly in light of the exceptions permitted by the government under the executive order.
33. Following the issuance of EO 2020-21, and reaffirmed in EO 2020-42 and EO 2020-59, Defendant Whitmer has refused to order abortion centers in Michigan to close even though abortion is an elective procedure, it is never necessary to protect the life of a mother, and it results in the death of an unborn child, which is contrary to the stated goal of the executive
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orders “to sustain or protect life.” Moreover, it is impossible to practice social distancing in an abortion center due to the nature of the procedure.
34. Defendant Whitmer also permitted marijuana businesses to remain open during this pandemic. In fact, pursuant to an MRA Advisory Bulletin dated April 10, 2020, because Secretary of State offices are closed and “individuals may not be able to renew their driver’s licenses or government-issued identification cards while the Executive Order is in effect . . , licensed provisioning centers and adult-use retailers are temporarily allowed to sell or transfer marijuana to a patient, caregiver, or customer who has an expired driver license or governmentissued identification card during home delivery and curbside sales.”
35. In contrast, there is little to no chance that a landscaping business, for example, will spread COVID-19. Yet, EO 2020-42 closed these businesses. Landscaping businesses could easily practice social distancing measures recommended by the Centers for Disease Control and Prevention (CDC), including remaining at least six feet from people from outside the employee’s household. Landscaping is an outdoor business, which can operate without any personal contact with customers. There is far less likelihood of a landscaping business spreading COVID-19 than other businesses that Defendant Whitmer permits under her executive orders, specifically including hardware stores, convenience stores, grocery stores, gas stations, marijuana businesses, and abortion centers.
36. During her free time, Plaintiff Beemer enjoys boating on Lake Charlevoix. However, EO 2020-42 prohibited this activity. Under this executive order, Defendant Whitmer permitted kayaking and canoeing, but arbitrarily prohibited the use of boats with motors.
37. Plaintiff Muise served as an officer on activity duty in the United States Marine Corps for thirteen years. He was an infantry officer, he is a veteran of Operations Desert Shield
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and Desert Sword, and he trained with 42 Commando, British Royal Marines. Plaintiff Muise resigned his commission as a Major in 2000.
38. Plaintiff Muise has a valid Michigan Concealed Pistol License. He is professionally trained in the use of firearms, he legally owns firearms, and he is a staunch defender of the Second Amendment, which constitutionally guarantees him the right to bear arms for self-defense, defense of his family, and for the defense of a free State. He also uses firearms to hunt in Michigan and in other States.
39. To support his right to bear arms, which necessarily includes the right to purchase firearms and ammunition, Plaintiff Muise patronizes local gun shops, specifically including a gun shop located in Washtenaw County.
40. EO 2020-42 ordered all nonessential businesses and activities to cease. Though this order exempted “critical infrastructure,” Defendant Whitmer purposefully referenced an outdated list of such industries (issued March 19, 2020) rather than the more current federal guidelines (issued March 28, 2020) that designated firearm and ammunition retailers as critical. This deliberate action shut down gun stores in order to deny citizens, including Plaintiff Muise, access to their Second Amendment rights and their rights protected by Article 1, § 6 of the Michigan Constitution.
41. For reasons that can only be explained as political (Defendant Whitmer considered Lotto, marijuana, liquor, and abortion to be essential but not firearms and ammunition), in EO 2020-42, Defendant Whitmer expressly adopted outdated federal guidance regarding “critical infrastructure” and essential businesses—guidance which did not expressly include firearms, ammunition, or shooting ranges—and expressly rejected the updated federal guidance, which did include protection for the Second Amendment, and she did so with
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emphasis: “This order does not adopt any subsequent guidance document released by this same agency.”
42. EO 2020-42 banned travel to gun stores. However, the order permitted individuals to travel to buy food for a pet, marijuana, liquor, and Lotto tickets, among other items.
43. Accordingly, EO 2020-42 prohibited Plaintiff Muise from traveling to gun stores to purchase firearms and ammunition and to travel to gun ranges to train with his firearms. Because he did not want to be subject to criminal or other sanctions for violating the executive order, Plaintiff Muise did not travel to any guns stores or ranges while EO 2020-42 was in effect.
44. Due to the panic caused by the pandemic and the unemployment, loss of income, poverty, and uncertainty caused by Defendant Whitmer’s executive orders, owning and possessing firearms is critically important at this time. EO 2020-42 deprived Michigan residents, including Plaintiff Muise, of their fundamental right to use arms in defense of their “hearth and home.”
45. Plaintiff Muise and his wife have been blessed with twelve children and ten grandchildren (with two more grandchildren expected by June). Three of his adult children are married and reside locally in homes they own in Michigan, and two of his adult children reside locally in rental properties in Michigan. His other seven children reside at his home in Superior Township.
46. On most Sundays, Holy Days, and other special events, the family would gather at Plaintiff Muise’s home for a meal, fellowship, and prayer. The family’s faith is the center of their family life.
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47. Plaintiff Muise and his family are devout Catholics. Because of COVID-19, there are no public Masses in the Lansing Diocese. However, Jesus Christ taught that where two or more gather in His name, He is present. (Matthew 18:20). Plaintiff Muise would like his family to gather together on Sundays, other Holy Days, and special events to associate for a meal, fellowship, and prayer, and thus gather as a family in Christ’s name. Such gatherings are religious worship for Plaintiff Muise. Under the measures expressly stated and set forth in EO 2020-42, it was a crime in Michigan to engage in such family associations and gatherings.
48. EO 2020-42 stated that “a place of religious worship, when used for religious worship, is not subject to penalty.” There were no definitions or guidance within the executive order to explain how this exemption applied.
49. EO 2020-59 states that “neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place.” There are no definitions or guidance within the executive order to explain how this exemption applies.
50. The travel restrictions imposed by EO 2020-42 were broad and severe. The stayat-home requirement was disturbingly close to a house arrest.
51. In addition to criminal sanctions for violating an executive order, Plaintiffs also fear that they could jeopardize their Michigan law practices and related for-profit and non-profit business interests if they violated an executive order. Defendant Whitmer was quoted in the news on or about April 1, 2020, as follows: “You know, just about every business in the state has some sort of license, from the state of Michigan or not, and so we’ve encouraged them not to play fast and loose with this order because their licenses could be in jeopardy as a result.”
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52. On April 20, 2020, Plaintiffs filed a motion for a temporary restraining order and preliminary injunction (Doc. No. 7), seeking, in relevant part, the following relief from the restrictions imposed by EO 2020-42:
• An order enjoining the enforcement of EO 2020-42’s measures that prohibit individuals from travelling between their own residences and cottages within the State of Michigan, thereby permitting Plaintiff Beemer, along with members of her household, to travel to and from her residence in Saginaw, Michigan and her cottage located in Charlevoix County, Michigan;
• An order enjoining the enforcement of EO 2020-42’s measures that prohibit the operation of landscaping businesses within the State of Michigan, thereby permitting landscaping businesses to operate, so long as the business and its employees practice social distancing measures recommended by the CDC, including remaining at least six feet from people from outside the employee’s household;
• An order permitting individuals, specifically including Plaintiff Beemer, to engage in outdoor activities that include using boats with motors for fishing and other similar recreational purposes, consistent with remaining at least six feet from people from outside the individual’s household;
• An order enjoining the enforcement of EO 2020-42 insofar as it conflicts with the March 28, 2020, U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency guidance on “critical infrastructure,” which identifies “Workers supporting the operation of firearm or ammunition product manufacturers, retailers, importers, distributors, and shooting ranges” as “critical infrastructure,” thereby permitting gun stores and shooting ranges in Michigan to remain open and operational
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subject to social distancing measures recommended by the Centers for Disease Control and Prevention and permitting individuals, including Plaintiff Muise, to travel to and from such businesses; and
• An order enjoining the enforcement of EO 2020-42’s measures that prohibit private, family gatherings at private residences, thereby permitting Plaintiff Muise to hold private gatherings for meals, fellowship, and prayer with his immediate family at his private residence located in Superior Township, Michigan. 53. On April 24, 2020, Defendant Whitmer issued EO 2020-59. A true and correct copy of this executive order, which is incorporated herein by reference, is attached to this First Amended Complaint as Exhibit 2. 54. Following the issuance of EO 2020-59, Defendant Whitmer, along with the County Prosecutors for Charlevoix County, Livingston County, and Washtenaw County, entered into a court-filed stipulation and order with Plaintiffs on April 26, 2020, which provided, in relevant part, that EO 2020-59 applies and will be enforced as follows:
• EO 2020-59 permits individuals to travel between their own residences and cottages within the State of Michigan, thereby permitting Plaintiff Beemer, along with members of her household, to travel to and from her residence in Saginaw, Michigan and her cottage located in Charlevoix County, Michigan. This is provided by EO 202059, Section 7(b)(3).
• EO 2020-59 permits the operation of landscaping businesses within the State of Michigan, subject to the mitigation measures required under Section 11 of the order, including the enhanced social-distancing rules described in section 11(h). This is provided by EO 2020-59, Section 4(c) and Section 10(c).
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• EO 2020-59 permits individuals, including Plaintiff Beemer, to engage in outdoor activities that include using boats with motors for fishing and other similar recreational purposes, consistent with remaining at least six feet from people from outside the individual’s household. This is provided by EO 2020-59, Section 7(a)(1).
• EO 2020-59 permits, insofar as is otherwise permissible under the law, the sale of guns from any store via remote order and curbside pick-up, and the sale of guns in-store from stores that sell necessary supplies as well as guns in their normal course of business, subject to the mitigation measures required by Sections 11 and 12 of the order. The order permits individuals, including Plaintiff Muise, to travel to and from such businesses. This is provided by EO 2020-59, Section 5(c), Section 7(a)(8), Section 10(a), and Section 12(c).
• EO 2020-59 exempts from penalty religious gatherings at private residences. Accordingly, Plaintiff Muise is not subject to penalty under the order for holding religious gatherings with his immediate family at his private residence located in Superior Township, Michigan. This is provided by EO 2020-59, Section 16. 55. The Court signed the stipulated order on April 27, 2020 (Doc. No. 24), and dismissed Plaintiff’s motion for a temporary restraining order and preliminary injunction because the immediate relief requested was no longer necessary. 56. While the stipulation remedied the immediate harm, it does not resolve the critically important constitutional issues presented. As stated by the U.S. Supreme Court in United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953), the “voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case,” noting
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that not only is a defendant “free to return to [her] old ways,” but also the public has an interest “in having the legality of the practices settled.”
57. Defendant Whitmer has expressly stated her willingness to “return to her old ways,” stating that the State must “be nimble enough to go backward, on occasion.”
58. Additionally, the CDC has predicted a second wave of COVID-19 next winter, coinciding with the annual flu season.
59. Some experts insist that lockdown restrictions similar to those challenged here should remain in effect until a vaccine is developed, and this could take up to 18 months.
60. Moreover, each year there is a flu season. Some years, such as this one, are far worse than others. Consequently, restrictions like those challenged in this First Amended Complaint will easily and predictably become the “new norm,” resulting in the loss of liberty. The United States and Michigan Constitutions demand more. The Bill of Rights is a restriction on the power of government; it is not a conferring of rights by the government on the people. Accordingly, the burden is on the government to justify the restrictions and not on the people to justify their freedom.
61. The public interest in the legality of the challenged measures of Defendant Whitmer’s executive orders was on full display on April 15, 2020, when thousands of Michigan residents and other demonstrators descended upon the State Capitol in Lansing, Michigan in what was called “Operation Gridlock” to publicly protest Defendant Whitmer’s restrictions on their liberty.
62. The United States and Michigan Constitutions place the burden on Defendant Whitmer to set forth specific facts demonstrating a reasonable fit between each challenged measure of her executive orders and a significant, substantial, or important government objective
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for imposing them. And when these restrictions burden fundamental liberties, as set forth in this First Amended Complaint, Defendant Whitmer has the burden to set forth specific facts demonstrating that each challenged measure is necessary to serve a compelling State interest and the restriction is narrowly drawn to achieve that interest. Defendant Whitmer cannot meet her burden here.
63. In the final analysis, the challenged measures of Defendant Whitmer’s executive orders, as set forth in this First Amended Complaint, lacked any rational basis, were arbitrary, capricious, and vague, had no real or substantial relation to the objectives of the orders, and were beyond all question, a plain, palpable invasion of rights secured by fundamental law. Consequently, it is the duty of this Court to so adjudge, and thereby give effect to the United States and Michigan Constitutions by declaring these measures unlawful and enjoining their future enforcement.
FIRST CLAIM FOR RELIEF (Equal Protection—Fourteenth Amendment) 64. Plaintiffs hereby incorporate by reference all stated paragraphs. 65. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiffs of the equal protection of the law guaranteed under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 66. As set forth in this First Amended Complaint, the challenged measures of Defendant Whitmer’s executive orders deprive Plaintiffs of their fundamental rights and freedom, yet the orders provide exceptions for other activity and conduct that is similar in its impact and effects. The challenged measures lack any rational basis, are arbitrary, capricious,
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and vague, have no real or substantial relation to the objectives of the orders, and are a palpable invasion of rights secured by fundamental law in violation of the Equal Protection Clause.
67. When the government treats an individual disparately as compared to similarly situated persons and that disparate treatment burdens a fundamental right, targets a suspect class, or has no rational basis, such treatment violates the equal protection guarantee of the Fourteenth Amendment. As set forth in this First Amended Complaint, the challenged measures of Defendant Whitmer’s executive orders violate the equal protection guarantee of the Fourteenth Amendment.
68. As a direct and proximate result of Defendants’ violation of the equal protection guarantee of the Fourteenth Amendment as set forth in this First Amended Complaint, Plaintiffs have suffered irreparable harm, including the loss of their fundamental constitutional rights, entitling them to declaratory and injunctive relief.
SECOND CLAIM FOR RELIEF (Due Process—Fourteenth Amendment) 69. Plaintiffs hereby incorporate by reference all stated paragraphs. 70. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiffs of their right to due process in violation of the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 71. The challenged measures of Defendant Whitmer’s executive orders, as set forth in this First Amended Complaint, lack any rational basis, are arbitrary, capricious, and vague, have no real or substantial relation to the objectives of the orders, and are a palpable invasion of rights
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secured by fundamental law in violation of the Due Process Clause of the Fourteenth Amendment.
72. Defendants’ actions, as set forth in this First Amended Complaint, deprived Plaintiff Beemer of the use and enjoyment of her property without due process in violation of the Fourteenth Amendment.
73. The Due Process Clause of the Fourteenth Amendment protects the right to travel locally through public spaces and roadways. The challenged measures of Defendant Whitmer’s executive orders violated Plaintiffs’ right to travel.
74. The challenged measures of Defendant Whitmer’s executive orders fail intermediate and strict scrutiny because they broadly prohibited Plaintiffs from traveling through public spaces and roadways to cottages, their families, gun stores, and other locations, and yet the challenged measures permitted other travel with the same impact and effect of Plaintiffs’ forbidden travel, in violation of the Fourteenth Amendment.
75. As a direct and proximate result of Defendants’ violation of the Fourteenth Amendment as set forth in this First Amended Complaint, Plaintiffs have suffered irreparable harm, including the loss of their fundamental constitutional rights, entitling them to declaratory and injunctive relief.
THIRD CLAIM FOR RELIEF (Second Amendment & Michigan Constitution Article 1, § 6) 76. Plaintiffs hereby incorporate by reference all stated paragraphs. 77. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiff Muise of his rights secured by the Second Amendment as applied to the States and their
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political subdivisions under the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, § 6 of the Michigan Constitution.
78. Both the United States Constitution and the Michigan Constitution grant individuals a right to keep and bear arms for self-defense and to ensure the security of a free State. The Second Amendment of the United States Constitution provides, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const., Am. II. Article 1, § 6 of the 1963 Michigan Constitution, which is Michigan’s equivalent to the Second Amendment, states, “Every person has a right to keep and bear arms for the defense of himself and the state.” The Second Amendment is fully applicable to the states through the Fourteenth Amendment.
79. The Second Amendment and Article 1, § 6 guarantee the individual the right to possess and carry weapons in case of confrontation. At the core of this protection is the right of law-abiding, responsible citizens, such as Plaintiff Muise, to use arms in defense of “hearth and home.” In order for this right to have any meaning and effect, individuals must be permitted to purchase firearms and ammunition and train in the use of firearms within the State.
80. When a law burdens the fundamental right to bear arms, as in this case, the government bears the burden of justifying the restriction under either intermediate or strict scrutiny. The challenged measures of Defendant Whitmer’s executive orders fail both levels of scrutiny as is evident by the numerous exceptions her executive orders provide for activity that is not protected by the United States or Michigan Constitutions.
81. As a direct and proximate result of Defendants’ violation of the Second Amendment and Article 1, § 6 as set forth in this First Amended Complaint, Plaintiff Muise has
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suffered irreparable harm, including the loss of his fundamental constitutional rights, entitling him to declaratory and injunctive relief.
FOURTH CLAIM FOR RELIEF (First and Fourteenth Amendments—Right of Association) 82. Plaintiffs hereby incorporate by reference all stated paragraphs. 83. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiff Muise of his right of association in violation of the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. 84. The freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of freedom of speech. Indeed, implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends. 85. Moreover, as recognized by the U.S. Supreme Court, family relationships, by their nature, involve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one’s life. Consequently, it is relationships such as these that led to an understanding of freedom of association as an intrinsic element of personal liberty under the Fourteenth Amendment. As set forth in this First Amended Complaint, the challenged measures of Defendant Whitmer’s executive orders deprived Plaintiff Muise of his fundamental right of association in violation of the Fourteenth Amendment. 86. As a direct and proximate result of Defendants’ violation of the right to association under the First and Fourteenth Amendments as set forth in this First Amended
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Complaint, Plaintiff Muise has suffered irreparable harm, including the loss of his fundamental constitutional rights, entitling him to declaratory and injunctive relief.
FIFTH CLAIM FOR RELIEF (First Amendment—Free Exercise of Religion) 87. Plaintiffs hereby incorporate by reference all stated paragraphs. 88. By reason of the aforementioned acts, policies, practices, procedures, and/or customs, created, adopted, and enforced under color of State law, Defendants have deprived Plaintiff Muise of his right to the free exercise of religion in violation of the First Amendment as applied to the states and their political subdivisions under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. 89. As a direct and proximate result of Defendants’ violation of the First Amendment as set forth in this First Amended Complaint, Plaintiff Muise has suffered irreparable harm, including the loss of his fundamental constitutional rights, entitling him to declaratory and injunctive relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs ask this Court: A) to declare that Defendants violated Plaintiffs’ fundamental constitutional rights as set forth in this First Amended Complaint; B) to enjoin Defendants’ enforcement of the challenged measures of Defendant Whitmer’s executive orders as set forth in this First Amended Complaint; C) to award Plaintiffs their reasonable attorneys’ fees, costs, and expenses pursuant to 42 U.S.C. § 1988 and other applicable law; D) to grant such other and further relief as this Court should find just and proper.
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Respectfully submitted, AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq. (P62849) PO Box 131098 Ann Arbor, Michigan 48113 Tel: (734) 635-3756; Fax: (801) 760-3901 rmuise@americanfreedomlawcenter.org /s/ David Yerushalmi David Yerushalmi, Esq. (Ariz. Bar No. 009616; DC Bar No. 978179; Cal. Bar No. 132011; NY Bar No. 4632568) 1901 Pennsylvania Avenue NW, Suite 201 Washington, D.C. 20006 Tel: (646) 262-0500; Fax: (801) 760-3901 dyerushalmi@americanfreedomlawcenter.org Attorneys for Plaintiffs Beemer and Muise
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Case 1:20-cv-00323-PLM-PJG ECF No. 25 filed 04/28/20 PageID.416 Page 23 of 23 CERTIFICATE OF SERVICE
I hereby certify that on April 28, 2020, a copy of the foregoing was filed electronically. Notice of this filing will be sent to all parties for whom counsel has entered an appearance by operation of the Court’s electronic filing system. Parties may access this filing through the Court’s system.
Defendant Dana Nessel, the Michigan Attorney General and a new party to this action, has not yet been served pursuant to the Federal Rules of Civil Procedure with a copy of this First Amended Complaint and/or a Summons.
AMERICAN FREEDOM LAW CENTER /s/ Robert J. Muise Robert J. Muise, Esq.
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EXHIBIT 1

Case 1:20-cv-00323-PLM-PJG ECF No. 25-1 filed 04/28/20 PageID.418 Page 2 of 11
EXECUTIVE ORDER
No. 2020-42
Temporary requirement to suspend activities that are not necessary to sustain or protect life
Rescission of Executive Order 2020-21
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Michigan Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, confirmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
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To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. The order limited gatherings and travel, and required workers who are not necessary to sustain or protect life to stay home.
The measures put in place by Executive Order 2020-21 have been effective, but this virus is both aggressive and persistent: on April 8, 2020, Michigan reported 20,346 confirmed cases of COVID-19 and 959 deaths from it. To win this fight, and to protect the health and safety of our state and each other, we must be just as aggressive and persistent. Though we have all made sacrifices, we must be steadfast. Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-21, clarify them, and extend their duration to April 30, 2020. This order takes effect on April 9, 2020 at 11:59 pm. When this order takes effect, Executive Order 2020-21 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life or to conduct minimum basic operations.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
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Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8 and 9 of this order, businesses and operations must determine which of their workers are critical infrastructure workers and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life must be suspended until normal operations resume.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 10 of this order. Stores that are open to the public must also adhere to the rules described in section 11 of this order.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are necessary to sustain or protect life, are suspended.
(a) For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders.
(b) Such activities also include, but are not limited to, public transit, trash pickup and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure
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workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(c) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
(d) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 10 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor physical activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor physical activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform necessary government activities, as described in section 6 of this order.
(5) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including procedures that, in accordance with a duly implemented nonessential procedures postponement plan, have not been postponed).
(6) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to
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purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences. Individuals may also leave the home to drop off a vehicle to the extent permitted under section 9(i) of this order.
(B) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(7) To care for a family member or a family member’s pet in another household.
(8) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
(9) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(10) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(11) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(12) To attend a funeral, provided that no more than 10 people are in attendance at the funeral.
(b) Individuals may also travel:
(1) To return to a home or place of residence from outside this state.
(2) To leave this state for a home or residence elsewhere.
(3) Between two residences in this state, through April 10, 2020. After that date, travel between two residences is not permitted.
(4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available
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here). This order does not adopt any subsequent guidance document released by this same agency.
Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:
(a) Health care and public health.
(b) Law enforcement, public safety, and first responders.
(c) Food and agriculture.
(d) Energy.
(e) Water and wastewater.
(f) Transportation and logistics.
(g) Public works.
(h) Communications and information technology, including news media.
(i) Other community-based government operations and essential functions.
(j) Critical manufacturing.
(k) Hazardous materials.
(l) Financial services.
(m) Chemical supply chains and safety.
(n) Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of workers required to perform in-person work as permitted under this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided 6

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that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
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(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. Businesses, operations, and government agencies that continue in-person work must adhere to sound social distancing practices and measures, which include but are not limited to:
(a) Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restricting the number of workers present on premises to no more than is strictly necessary to perform the business’s, operation’s, or government agency’s critical infrastructure functions or its minimum basic operations.
(c) Promoting remote work to the fullest extent possible.
(d) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
(e) Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
(f) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(g) Any other social distancing practices and mitigation measures recommended by the CDC.
11. Any store that remains open for in-person sales under section 5 or 9(f) of this order must:
(a) Establish lines to regulate entry in accordance with subsections (c) and (d) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
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(b) Consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
(c) For stores of less than 50,000 square feet of customer floor space, limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
(d) For stores of more than 50,000 square feet:
(1) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space. The amount of customer floor space must be calculated to exclude store areas that are closed under subprovision (2) of this subsection.
(2) Close areas of the store—by cordoning them off, placing signs in aisles, posting prominent signs, removing goods from shelves, or other appropriate means—that are dedicated to the following classes of goods:
(A) Carpet or flooring.
(B) Furniture.
(C) Garden centers and plant nurseries.
(D) Paint.
(3) By April 13, 2020, refrain from the advertising or promotion of goods that are not groceries, medical supplies, or items that are necessary to maintain the safety, sanitation, and basic operation of residences.
(4) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
(e) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in subsections (c) and (d) of this section as necessary to protect the public health.
12. No one shall advertise or rent a short-term vacation property except as necessary to assist in housing a health care professional or volunteer aiding in the response to the COVID-19 crisis.
13. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior
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guidance, a place of religious worship, when used for religious worship, is not subject to penalty under section 17 of this order.
14. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
15. This order takes effect on April 9, 2020 at 11:59 pm and continues through April 30, 2020 at 11:59 pm. When this order takes effect, Executive Order 2020-21 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
16. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health-care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
17. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 9, 2020 Time: 2:07 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
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EXHIBIT 2

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EXECUTIVE ORDER
No. 2020-59
Temporary requirement to suspend activities that are not necessary to sustain or protect life
Rescission of Executive Order 2020-42
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, confirmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945, provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
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To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe, and then extended that order through April 30, 2020, with Executive Order 2020-42. The orders limited gatherings and travel, and required all workers who are not necessary to sustain or protect life to stay home.
The measures put in place by Executive Orders 2020-21 and 2020-42 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on April 23, 2020, Michigan reported 35,291 confirmed cases and 2,977 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming inperson work and activities that were temporarily suspended under my prior orders. But in doing so, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone. Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-42, amend their scope, and extend their duration to May 15, 2020, unless modified earlier. With this order, Executive Order 2020-42 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
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(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 11 of this order.
(c) Workers who perform resumed activities are defined in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8, 9, and 10 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 11 of this order. Stores that are open for in-
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person sales must also adhere to the rules described in section 12 of this order.
(d) Any business or operation that employs workers who perform resumed activities under section 10(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are maintaining in-person activities under this order, are suspended.
(a) For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders.
(b) Such activities also include, but are not limited to, public transit, trash pickup and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(c) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
(d) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 11 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
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(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 10 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 6 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 9(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
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(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(b) Individuals may also travel:
(1) To return to a home or place of residence from outside this state.
(2) To leave this state for a home or residence elsewhere.
(3) Between two residences in this state, including moving to a new residence.
(4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.
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Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:
(a) Health care and public health.
(b) Law enforcement, public safety, and first responders.
(c) Food and agriculture.
(d) Energy.
(e) Water and wastewater.
(f) Transportation and logistics.
(g) Public works.
(h) Communications and information technology, including news media.
(i) Other community-based government operations and essential functions.
(j) Critical manufacturing.
(k) Hazardous materials.
(l) Financial services.
(m) Chemical supply chains and safety.
(n) Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided
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that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
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(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of this order.
(d) Maintenance workers and groundskeepers who are necessary to maintain the safety and sanitation of places of outdoor recreation not otherwise closed under Executive Order 2020-43 or any order that may follow from it, provided that the places and their workers do not provide goods, equipment, supplies, or services to individuals, and subject to the enhanced social-distancing rules described in section 11(h) of this order.
(e) Workers for moving or storage operations, subject to the enhanced socialdistancing rules described in section 11(h) of this order.
11. Businesses, operations, and government agencies that remain open for in-person work must adhere to sound social distancing practices and measures, which include but are not limited to:
(a) Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restricting the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
(c) Promoting remote work to the fullest extent possible.
(d) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
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(e) Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
(f) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(g) Any other social distancing practices and mitigation measures recommended by the CDC.
(h) For businesses and operations whose in-person work is permitted under sections 10(c) through 10(e) of this order, the following additional measures must also be taken:
(1) Barring gatherings of any size in which people cannot maintain six feet of distance from one another.
(2) Limiting in-person interaction with clients and patrons to the maximum extent possible, and barring any such interaction in which people cannot maintain six feet of distance from one another.
(3) Providing personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
(4) Adopting protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment, and frequently touched surfaces.
12. Any store that remains open for in-store sales under section 9(f) or section 10(c) of this order:
(a) Must establish lines to regulate entry in accordance with subsection (b) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
(b) Must adhere to the following restrictions:
(1) For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
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(2) For stores of more than 50,000 square feet, must:
(A) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
(B) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
(3) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in this subsection as necessary to protect the public health.
(c) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(d) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Effective on April 26, 2020 at 11:59 pm:
(a) Any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.
(b) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(c) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.
(d) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to persons who wear a mask under this order.
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16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for violating section 15(a) of this order.
17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 15, 2020 at 11:59 pm. Executive Order 2020-42 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 24, 2020 Time: 11:00 am

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
12

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 Case 1:20-cv-00323-PLM-PJG ECF No. 31 filed 05/20/20 PageID.451 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center Attorney for Plaintiffs P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org
Joel C. Bryant (P79506) Sonal H. Mithani (P51984) Miller Canfield Paddock & Stone PLC Attorneys for Def. Brian Mackie 101 N. Main Street, 7th Floor Ann Arbor, MI 48104 734.668.8908 734.668.7786 bryant@millercanfield.com mithani@millercanfield.com

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) John Fedynsky (P65232) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Def. Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov
/

DEFENDANT WHITMER’S MOTION TO DISMISS

Case 1:20-cv-00323-PLM-PJG ECF No. 31 filed 05/20/20 PageID.452 Page 2 of 3

Defendant Gretchen Whitmer, by counsel, moves this Court to dismiss

Plaintiffs’ complaint under Fed. R. Civ. P. 12, and based upon the following:

1. Plaintiffs’ claims are moot because Governor Whitmer has issued a series of executive orders that permit the very activities Plaintiffs alleged were prohibited.

2. Jacobson gives the State broad authority to implement emergency measures when faced with a society-threatening epidemic – including the measures that Plaintiffs challenge as burdening their constitutional rights.

3. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail.

In further support of this motion, Governor Whitmer relies on the facts, law and

argument more fully developed in the attached brief in support.

The undersigned certifies that on May 18, 2020, concurrence in the relief

requested was sought from Plaintiffs’ Counsel, and concurrence was expressly

denied.

Respectfully submitted,

Dana Nessel Attorney General

Dated: May 20, 2020

/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Assistant Attorney General Attorney for Defendant Whitmer P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov P71887

2

Case 1:20-cv-00323-PLM-PJG ECF No. 31 filed 05/20/20 PageID.453 Page 3 of 3 CERTIFICATE OF SERVICE
I certify that on May 20, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record, and I certify that my secretary has mailed by U.S. Postal Service the papers to any non-ECF participant.
/s/ Joseph T. Froehlich Joseph T. Froehlich Assistant Attorney General Attorney for Defendant Whitmer State Operations Division
3

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.454 Page 1 of 43

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center Attorney for Plaintiffs P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org
Joel C. Bryant (P79506) Sonal H. Mithani (P51984) Miller Canfield Paddock & Stone PLC Attorneys for Def. Brian Mackie 101 N. Main Street, 7th Floor Ann Arbor, MI 48104 734.668.8908 734.668.7786 bryant@millercanfield.com mithani@millercanfield.com

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) John Fedynsky (P65232) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Def. Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov
/

BRIEF IN SUPPORT OF DEFENDANT WHITMER’S MOTION TO DISMISS

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.455 Page 2 of 43 CONCISE STATEMENT OF ISSUES PRESENTED
1. Plaintiffs’ claims are moot because Governor Whitmer has issued a series of executive orders that permit the very activities Plaintiffs alleged were prohibited.
2. Jacobson gives the State broad authority to implement emergency measures when faced with a society-threatening epidemic – including the measures that Plaintiffs challenge as burdening their constitutional rights.
3. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail.
i

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.456 Page 3 of 43 CONTROLLING OR MOST APPROPRIATE AUTHORITY
Authority: Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905).
ii

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.457 Page 4 of 43
INTRODUCTION “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905). To that end, “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Id. at 26. This well-settled rule of law permits a state, in times of public health crises, to reasonably restrict the rights of individuals in order to secure the safety of the community. The scourge of COVID-19—a novel virus that quickly spread across the entire planet, infecting millions, and killing over a quarter of a million—presents such a crisis. Jurisdictions across the globe have had to impose aggressive measures to stem the viral tide that has overwhelmed healthcare systems worldwide. Schools have been shuttered, gatherings have been postponed, and business operations have been curtailed. Michigan is one of the states hardest hit by the pandemic. As of May 20, 2020, 52,350 have been confirmed infected and 5,017 have died, all in two months. There is no dispute that in the absence of any vaccine, social distancing has been the most effective way to combat the virus and keep these numbers from escalating. Recognizing this, Defendant Governor Gretchen Whitmer has taken bold, yet reasonable and necessary, steps to prioritize social distancing in Michigan.
1

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.458 Page 5 of 43
In a series of executive orders, Governor Whitmer exercised her authority under Michigan law to put measures in place to suppress the spread of the virus and protect the public health. These measures, subject to various exceptions, have included: prohibiting in-person work that is not necessary to sustain or protect life; ordering individuals living in Michigan to stay at home or their place of residence; requiring those who do leave their home or place of residence to adhere to socialdistancing practices; and prohibiting the operation of businesses that require workers to leave home if those workers are not necessary to sustain or protect life or to conduct minimum basic operations.
Some of the exceptions include leaving a home or residence to: engage in recreational and outdoor physical activity; perform jobs as “critical infrastructure workers;” perform necessary government activities; perform tasks necessary to an individual’s or family member’s health and safety; obtain necessary services and supplies; and care for a family member in another household.
These generally applicable, temporary, and content-neutral measures strike a reasonable balance between the need for unnecessary in-person contact to be regulated and the need for essential services to continue. Most importantly, they have worked for the benefit of the public health of everyone who lives in Michigan. As a result of them, countless lives have been saved, the curve of the virus’s spread has been flattening, and the Governor has been able to gradually and correspondingly lift a number of the previously imposed restrictions. This has,
2

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.459 Page 6 of 43
among other things, rendered the Plaintiffs’ claims in this case moot, and those claims should be dismissed on that basis alone.
The claims fare no better on their merits. Claims similar to those raised by the Plaintiffs have already been evaluated and rejected as unlikely to be successful on the merits in the Michigan Court of Claims. That Court’s reasoned analysis1 applies just as well in this case, recognizing judicial deference to the reasonable and temporary measures challenged here. Providing Plaintiffs with their requested relief would unlock exceptions to generally applicable, and effective, public health measures in a time of most dire need. The judicial creation of such exceptions on a case-by-case, piecemeal basis infringes on the state’s authority to act in a public health crisis and threatens its overarching plan to cope with the dangers and protect the lives, health, and welfare of all Michiganders.
STATEMENT OF FACTS The complaint offers a glaringly sparse discussion of the public health crisis that has consumed not just Michigan, but the entire planet. Those facts are important to demonstrate the undisputed conditions warranting the Governor’s promulgation of the executive orders in question. COVID-19 is similar to other coronaviruses (a large family of viruses that cause respiratory illnesses), but the strain is novel. There is no general or natural immunity built up in the population (meaning everyone is susceptible), no vaccine,
1 Martinko, et. al. v. Governor Whitmer, et. al., Michigan Court of Claims Case No. 20-62-MM, April 29, 2020 Opinion and Order Denying Plaintiffs’ Motion for a Preliminary Injunction, p. 14 (Attached as Exhibit A).
3

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.460 Page 7 of 43
and no known treatment to combat the virus itself (as opposed to treatment to mitigate its symptoms).
It is widely known and accepted that COVID-19 is highly contagious, spreading easily from person to person via “respiratory droplets.”2 Experts agree that being anywhere within six feet of an infected person puts you at a high risk of contracting the disease.3 But even following that advice is not a sure-fire way to prevent infection. The respiratory droplets from an infected person can land on surfaces, and be transferred many hours later to the eyes, mouth, or nose of others who touch the surface. Moreover, since many of those infected experience only mild symptoms, a person could spread the disease before he even realizes he is sick. Most alarmingly, a person with COVID-19 could be asymptomatic, yet still spread the disease.4 Everyone is vulnerable either as a potential victim of this scourge or a carrier of it to a potential victim.
Because there is no way to immunize or treat for COVID-19, the Centers for Disease Control and Prevention have indicated the best way to prevent illness is to “avoid being exposed.”5 And as experience from prior pandemics such as smallpox
2 World Health Organization, Modes of transmission of virus causing COVID-19, available at https://www.who.int/news-room/commentaries/detail/modes-oftransmission-of-virus-causing-covid-19-implications-for-ipc-precautionrecommendations. (Attached as Exhibit B). 3 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html. (Attached as Exhibit C). 4 (Id.) 5 (Id.)
4

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.461 Page 8 of 43
and the 1918 Spanish Influenza indicates, early intervention to slow COVID-19’s transmission is critical.
In keeping with this advice, governmental entities have stressed the critical import of “social distancing,” the practice of avoiding public spaces and limiting movement.6 The objective of social distancing is what has been termed “flattening the curve,” that is, reducing the speed at which COVID-19 spreads. If the disease spreads too quickly, the limited resources of our healthcare system could easily become overwhelmed.7
On March 10, 2020, in response to the growing pandemic in Michigan, Governor Whitmer declared a state of emergency and invoked the emergency powers available to the Governor under Michigan law.8 On March 13, 2020, Governor Whitmer issued Executive Order 2020-5, prohibiting assemblages of 250 or more people in a single shared space with limited exceptions, and ordering the closure of all K-12 school buildings.9 Yet, even in the face of the social distancing
6 (Id.) 7 See New York Times, Flattening the Coronavirus Curve (March 27, 2020), available at https://www.nytimes.com/article/flatten-curve-coronavirus.html. (Attached as Exhibit D). Take Italy, for example, where the healthcare system was so overloaded in just three weeks of dealing with the virus that it could not treat all patients infected, essentially leaving some to die. Upon information and belief, Singapore eased early restriction and then saw a rise in cases – the dreaded specter of a “second wave” of this pandemic. 8 E.O. No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. (Attached as Exhibit E). 9 E.O. No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. (Attached as Exhibit F).
5

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.462 Page 9 of 43
recommendations and the six-foot rule of thumb, on Saturday, March 14, the public was out in droves.
On March 16, 2020, the Governor ordered various places of public accommodation, like restaurants, bars, and exercise facilities, to close their premises to the public.10 And on March 17, 2020, the Governor issued an order rescinding 2020-5, changing the cap on assemblages to fifty persons in a single shared indoor space, and expanding the scope of exceptions from that cap.11
Subsequently, on March 23, 2020, again in response to the spreading pandemic in Michigan, Governor Whitmer issued Executive Order No. 2020-21, which essentially ordered all persons not performing essential or critical infrastructure job functions to stay in their place of residence, other than to obtain groceries, care for loved ones, engage in outdoor activity consistent with social distancing, and other limited exceptions.12 The order also prohibited, with limited exceptions, all public and private gatherings of any number of people that are not part of a single household.13 That order was to continue through April 13, 2020; however, on April 9, 2020, the Governor issued Executive Order 2020-42, extending
10 E.O. No. 2020-9, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. (Attached as Exhibit G) (Replaced by E.O. 202020). 11 E.O. No. 2020-11, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html. (Attached as Exhibit H). 12 E.O. No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. (Attached as Exhibit I). 13 (Id.)
6

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.463 Page 10 of 43
the Stay-home Order through April 30, 2020.14 On April 24, 2020, the Governor issued Executive Order 2020-59, which rescinded Executive Order 2020-42, but kept a general restriction that, subject to various exceptions, individuals stay in their place of residence.15
Since the filing of the amended complaint, the Governor has issued additional executive orders that rescinded Executive Orders 2020-21, 2020-42 and 2020-59, and have eliminated the restrictions challenged in the amended complaint. On May 1, 2020, the Governor issued Executive Order 2020-70, which rescinded Executive Order 2020-59.16 Executive Order 2020-70 kept the general “stay-at-home” restrictions but made additional exceptions to those in E.O. 2020-59. On May 7, 2020, the Governor issued Executive Order 2020-77, which rescinded Executive Order 2020-70, and made even further exceptions to those in E.O. 2020-70.17 And on May 18, 2020, the Governor issued Executive Order 2020-92, which rescinded Executive Order 2020-77, made even further exceptions to those in E.O. 2020-77,
14 E.O. No. 2020-42, available at https://content.govdelivery.com/ attachments/MIEOG/2020/04/09/file_attachments/1423850/EO%202020-42.pdf. (Attached as Exhibit J). 15 E.O. No. 2020-59, available at https://www.michigan.gov/documents/whitmer/EO_2020-59_Signed_688350_7.pdf (Attached as Exhibit K). 16 E.O. No. 2020-70, available at https://www.michigan.gov/documents/whitmer/EO_2020-70_Emerg_order_MI_Safe_Start_689217_7.pdf (Attached as Exhibit L). 17 E.O. No. 2020-77, available at https://content.govdelivery.com/attachments/MIEOG/2020/05/07/file_attachments/1 446124/EO%202020-77.pdf (Attached as Exhibit M).
7

Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.464 Page 11 of 43
and began implementing a regional approach to the reopening of activities in the State.18
The specific alterations relevant to each discrete claim will be discussed below.
ARGUMENT I. Plaintiffs’ claims are moot because Governor Whitmer has issued a
series of executive orders that permit the very activities Plaintiffs alleged were prohibited. Since the filing of the amended complaint, the Governor has issued a series of executive orders that, in light of the State’s recent progress in suppressing the spread of COVID-19, have gradually lifted various previously imposed restrictions, As a result, Plaintiffs can engage in the very activities they allege were hampered. Furthermore, E.O. 2020-42 has been rescinded, and no longer has any legal force. Considering this change in circumstances, the Plaintiffs have no legally cognizable interest in the outcome of this litigation. This Court should dismiss this case as moot. A. Without a live case-or-controversy, Article III Courts lack
jurisdiction. “No principle is more fundamental to the judiciary’s proper role in our system of government than the constitutional limitation” within Article III “of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997), quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). “If a
18 E.O. No. 2020-92, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-529476--,00.html (Attached as Exhibit N).
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dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006). The limits of Article III jurisdiction are “built on separation-of-powers principles,” which “serve[] to prevent the judicial process from being used to usurp the powers of the political branches.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014), quoting Clapper v. Amnesty Int’l USA, 568 U.S. 398, 407 (2013).
A case is moot and is outside of this Court’s Article III authority “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Chafin v. Chafin, 568 U.S. 165, 172 (2013) (cleaned up). An “advisory opinion[] on abstract propositions of law” must be avoided. Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam).
Generally, and pertinent here, the legislative repeal of a statute renders a case challenging that statute moot. Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th Cir 1997); see also Massachusetts v. Oakes, 491 U.S. 576, 582-84 (1989) (refusing to reach First Amendment overbreadth challenge because legislative amendment of the challenged statute while the case was pending rendered the issue moot).
B. The challenged Executive Orders have no legal force, and the Executive Order now in effect does not prohibit the activities Plaintiffs seek to engage in.
A similar circumstance to legislative repeal has occurred here, where the Governor rescinded Executive Order 2020-42, and replaced the order with Executive Orders 2020-59, 2020-70, 2020-77, and 2020-92, the last of which remains
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in effect. Plaintiffs’ claims concern only aspects of now-terminated executive orders that do not appear in Executive 2020-92. Accordingly, Plaintiffs’ claims are mooted. Specifically, there is now no identifiable restriction in any executive order prohibiting travel between two residences; the use, possession or procurement of firearms; the use of motorboats; or religious gatherings of any size in any location.19 Moreover, Plaintiffs asked this Court to enjoin Executive Order 2020-42, which no longer has the force of law. There is simply nothing left to enjoin. Plaintiffs’ claims are moot, and this Court should dismiss the case.
Plaintiffs may argue that the Governor’s action amounts to a voluntary cessation insufficient to moot the issues before this Court. While mere “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000), where “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” a case is moot. Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003), quoting County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). And, where the government is the actor sought to be enjoined, “cessation of the allegedly illegal conduct . . . has been treated with more solicitude by the courts than similar action by private parties.” Id. (cleaned up). The “self-correction” by official government action “provides a secure foundation for dismissal based on mootness so long as it appears genuine.” Mosley
19 Indeed, as discussed infra, there was never a ban on religious gatherings of any size under any of the executive orders.
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v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990), quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988), in turn citing 13A Wright, Miller & Cooper Federal Practice and Procedure § 3533.7, at 353 (2d ed. 1984).
The Governor’s new executive orders are not mere “voluntary cessation.” In fact, the challenged executive orders no longer have any legal force. They are extinct, and the Governor has replaced them with executive orders that permit the very activities that the Plaintiffs sought to participate in. See E.O. 2020-92. The lifting of the challenged restrictions, like the various other modifications made in these executive orders, was “genuine” and driven by the Governor’s ongoing assessment of the pandemic and the changing needs of the state to combat it. Mosely, 920 F.2d at 415. This is not a circumstance in which the Governor was dead-set on enjoining specific activities that Plaintiffs’ claim they were entitled to engage in, and the new orders are simply a shadow to avoid litigation. As a general matter, the now-rescinded executive orders imposed temporary regulations of a general nature, responding to the needs of the evolving public health crisis. The novelty of the virus and the rapidity of its spread requires nimble action. And as data evolved (and continues to evolve) and circumstances changed, with additional executive orders, the Governor saw fit to modify the scope of the temporarily enjoined activities to appropriately balance the stringent measures necessary to protect to the public health with carveouts to sustain the basic needs of society.
The mootness here is confirmed by comparison to cases in which the concept of “voluntary cessation” has been illustrated. The Governor’s new executive orders
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are not merely a governor’s “announcement” to apply a law differently after the Supreme Court granted certiorari, Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 fn.1 (2017), or akin to a private party’s temporary compliance with a pollution permit, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 174 (2000). See also Knox v. Serv. Employees Int'l Union, Local 1000, 567 U.S. 298, 307 (2012) (after the Supreme Court granted certiorari on the issue whether a public-sector union could require all members to pay a fee supporting the union’s political activities, the union’s sending of a notice offering a refund to all class members was an insufficient voluntary cessation). These types of “cessations” lack the force of law and are easily reversed.
But here, “there is no reasonable expectation that the [alleged] wrong will be repeated.” Mosley, 920 F.2d at 415 (cleaned up). The Governor has not simply voluntarily halted the enforcement of the challenged executive orders. Instead, the Governor has taken an official executive action that rescinds and replaces them. The restrictions the Plaintiffs challenge restrictions no longer exist. This Court should dismiss this case as moot.20 II. The States have wide latitude in dealing with great dangers to public
health. Even if they were not moot, the Plaintiffs’ claims would fail as a matter of law. The worldwide impact of COVID-19 is recognized by all. Such an extraordinary circumstance requires extraordinary governmental measures. The
20 And as explained in a later section, Plaintiff Muise’s association and free exercise claims were never ripe in the first place.
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measures taken in the Governor’s executive orders were necessary to meet the demands of these extraordinary times and are reasonable and constitutional.
A. Jacobson v. Commonwealth of Massachusetts Faced with “great danger[ ],” state actors are permitted great latitude to secure the public health. Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 29 (1905). And in this time of crisis, securing the public health requires temporary sacrifices by each of us: “Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others.” Id. at 26. In Jacobson, the U.S. Supreme Court considered a claim that the state’s mandatory vaccination law, which applied to every person in Cambridge, Massachusetts, due to a growing smallpox epidemic, violated the defendant’s Fourteenth Amendment right “to care for his own body and health in such way as to him seems best.” Jacobson, 197 U.S. at 26. The Supreme Court upheld this sweeping, invasive measure as a proper exercise of the States’ police power because of the exigencies and dangerousness of the public health crisis. It affirmed that “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. As the Court stated, in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Jacobson, 197 U.S. at 29.
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Jacobson even highlighted the circumstance, without hesitation, in which seemingly healthy people were quarantined against their will aboard a ship on which others had cases of serious diseases. Id. at 29. The Court noted that such a drastic measure was reasonable “until it be ascertained by inspection, conducted with due diligence, that the danger of the spread of the disease among the community at large has disappeared.” Id. Recognizing the separation of powers, and the limits on the judiciary to invade the authority of a co-equal branch, the Court refused to “usurp the functions of another branch of government” by secondguessing the executive’s exercise of police power in such circumstances. Id. at 28.
Of course, constitutional rights do not disappear in the face of a public health crisis, but the analysis of the government’s action changes. Review is “only” available if the challenged action “has no real or substantial relation to those objects [of securing public health and safety], or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31 (emphasis added).
Jacobson’s principle is no outlier. See, e.g., Prince v. Massachusetts, 321 U.S. 158, 166–67 (1944) (“The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.”); Compagnie Francaise de Navigation a Vapeur v. La State Bd of Health, 186 U.S. 380, 393 (1902) (upholding Louisiana’s right to quarantine even apparently healthy passengers aboard a vessel over a due process challenge).
And Jacobson not only remains good law, see, e.g., Kansas v Hendricks, 521 U.S. 346, 356 (1997) (block quoting Jacobson in support of the proposition that “an
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individual’s constitutionally protected interest in avoiding physical restraint may be overridden even in the civil context”), but federal circuits have recently had occasion to apply Jacobson to COVID-19-related regulations, upholding even those that burden a fundamental right. See, e.g., In re Abbott, No. 20-50264, 2020 WL 1685929, at *8 (5th Cir., April 7, 2020) (“Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”) (emphasis in original); In re Rutledge, 956 F.3d 1018 (8th Cir., April 22, 2020).
In recent days, the Sixth Circuit has confirmed that Jacobson is the proper starting point for considering restrictions promulgated in response to the COVID-19 crisis that touch upon constitutional rights. See Adams & Boyle, P.C. v. Slatery, ___ F.3d ___ (6th Cir., issued April 24, 2020); Maryville Baptist Church, Inc. v. Beshear, ___ F.3d ___ (6th Cir., issued May 2, 2020) ); Roberts v. Neace, ___ F.3d ___ (6th Cir., issued May 9, 2020). In those cases, the Court determined that despite the very deferential standard of Jacobson, the Plaintiffs were likely to succeed on the merits of their claims challenging a complete abortion ban in Tennessee and a total ban on group religious services in Kentucky. 21
21 Numerous other federal courts across the country have recognized that Jacobson is the proper starting point for considering restrictions promulgated in response to the COVID-19 crisis that touch upon constitutional rights. Most of the Courts considering the question have held that state actions like those challenged here were an appropriate response to the scourge of COVID-19. See McGhee v. City of Flagstaff, 2020 WL 2308479 (D. Ariz., May 8, 2020); Givens v. Newsom, 2020 WL 2307224 (E.D. Cal., May 8, 2020); SH3 Health Consulting, LLC v. St. Louis County Exec., 2020 WL 2308444 (E.D. Mo., May 8, 2020); Cross Culture Christian Center v. Newsom, 2020 WL 2121111 (E.D. Cal., May 5, 2020); Lighthouse Fellowship Church v. Northam, 2020 WL 2110416 (E.D. Va., May 1, 2020); Shows v. Curtis, 2020 WL
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Quite plainly, the restrictions considered by the Sixth Circuit in Adams & Boyle, Maryville Baptist Church, Inc., and Roberts were different in kind and severity than the limited and temporary (and now rescinded) restrictions challenged by the Plaintiffs in this case. Unlike those cases, Governor Whitmer’s executive orders did not impose a complete ban on the exercise of fundamental constitutional rights. Instead, the Plaintiffs challenge temporary and partial restrictions on visiting second homes, shopping at certain stores, engaging in recreational motorboating, and gathering with non-household members—none of which plainly or palpably invaded a fundamental right beyond all question, and all of which had a real and substantial relation to stopping the spread of the virus, preventing the overwhelming of this state’s healthcare system, and avoiding needless deaths. 22 (See Section B below).
Notably, Plaintiffs’ complaint fails to meaningfully acknowledge Jacobson, and to discuss and analyze why it should not control here. That omission alone is fatal to Plaintiffs’ claims. Nor is there a viable path for Plaintiffs around Jacobson’s well-settled rule of law. Plaintiffs cannot dispute the gravity of the pandemic in Michigan. It is a once-in-a-century kind of epidemiological public health crisis. In
1953621 (W.D. N.C., April 23, 2020); Gish v. Newsom, 2020 WL 1979970 (C.D. Cal. April 23, 2020); Robinson v. Attorney General, 2020 WL 1952370 (11th Cir. April 23, 2020); Legacy Church, Inc. v. Kunkel, 2020 WL 1905586 (D. N.M. April 17, 2020). 22 It is also worth noting that Governor Whitmer’s orders have not sought to place restrictions on the fundamental constitutional rights asserted by the Plaintiffs in Adams & Boyle and Maryville Baptist Church, Inc. – abortion and free exercise of religion.
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such times, the State has wide plenary authority to temporarily restrict activity that presents a diffuse but real threat to the public health.
Thus, under Jacobson and applicable principles of separation of powers, judicial deference to the Governor’s authority responding to the crisis is paramount. Indeed, the Michigan Court of Claims has recognized as much in denying a motion for a preliminary injunction. As so aptly stated by the Court of Claims:
The role courts play under Jacobson and Lansing Bd of Ed is not to “second-guess the state’s policy choices in crafting emergency public health measures,” In re Abbott, 954 F3d at 784, but is instead to determine whether the state regulation has 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.’” Id., quoting in part Jacobson, 197 US at 31. 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. Id. at 785. (Ex A, p. 11). Engaging in this duly limited review compels the conclusion that Plaintiffs’ complaint should be dismissed. B. General application of Jacobson to the current health crisis Plaintiffs allege the impingement of various constitutional rights. But under Jacobson, in the face of the current public health crisis, the Governor’s executive orders are entitled to great deference, despite any impingement on individual rights, and must be upheld unless there is “no real or substantial relation” to the public health crisis, or the orders were, “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” With this standard in mind, Jacobson requires that Governor’s executive orders be upheld in their entirety. While the impact of any restriction on some
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aspect of normalcy outside of a pandemic is no doubt important, the restrictions were temporary and in specific response to a widespread public health crisis. The Court should view each restriction through the lens of the general public health justifications and the over-arching goal of limiting the spread of this novel virus. A myopic, activity-specific framing of any issue is not a proper part of the analysis. Appropriate understanding of the nature of the pandemic and the four corners of the executive orders is adequate to the task before the Court.
In responding to this pandemic, the Governor has had to make countless difficult decisions, in short order and with many lives at stake. Plaintiffs disagree with some of these decisions. While no line-drawing is immune to disagreement, the law does not require it to be, and under that settled law, judicial deference is owed to the Governor’s assessment of how to maximize measures to limit the spread of the virus while not restricting life-sustaining activity and services. That assessment included consideration of the temporary nature of any restriction and what as a general matter could be endured while flattening the curve. Accordingly, certain types of in-person sales and outdoor activity must continue as safely as possible under the executive orders. Certain business activities fall outside of this zone of critical, life-sustaining activity and services that are exempted from the general restrictions. Under these temporary restrictions, life can go on without operation of these sectors of the economy while public health is served by flattening the curve.
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The point is not to imagine how each specific activity of daily life might be accomplished safely by using social distancing and other recommended prophylactic measures. In a drought, where the point is to avoid uncontrolled wildfires, there can be no allowance for those who promise to be really careful with their campfire. In a pandemic, the point is to keep workers and consumers alike away from each other and away from surfaces and other places where the invisible virus may lurk.
To wit, a simple trip to a store might appear both innocuous and inoculated for purposes of the virus.
But appearances are deceiving. To get to that position, the individual shopper likely had to handle multiple objects – vehicles, gas pumps, etc. – as did each of the workers at the store. These individuals then all share space and touch common surfaces. Each of these contacts increases the incidence of this highly contagious and asymptomatically transmittable virus spreading. Like innumerable small breezes against a sail, enough will push a sailboat over a waterfall if the course is not changed and the sail not brought under control. Use of personal protective equipment (PPE), sanitizers, and the like will only mitigate and will present the downside of depleting limited resources better used in frontline healthcare, supply chain, and other essential industries. Accordingly, there is good
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reason to restrict these in-store interactions to protect the public health of the State.23
All the restrictions in the executive orders are temporary and aimed at guiding the state as swiftly and safely as possible through the severe dangers posed by this pandemic. Adequate time must be given for the public health goals to be served and a transition to economic normalcy to return. Indeed, this is exactly what has happened with the rescission of E.O. 2020-21 and 2020-42, and the promulgation of E.O.s 2020-59, 2020-70, 2020-77, and now 2020-92. While circumstances rapidly escalated and the virus began to ravage the State, more restrictive measures were necessary to combat spread. As circumstances have improved and the number of infections and deaths have trended downward, the restrictive measures have eased. This is the very essence of the emergency management authority afforded the Governor under the principles announced in Jacobson.
23 The same holds true for recreational activity such as boating. A lone boater may appear to be in a safe position. But again, appearances can be deceiving. How did that boater get to be out there alone in the lake? Was there contact with a gas pump, gas containers, and other equipment along the way? What about gates, ramps, docks, and boat launches? Did that boater need to also navigate a crowded marina, dock, or launch area where due to the geography people congregate and social distancing is a challenge? If there is an exigent incident or a disabling of the craft, how many other people will have to come assist and be in contact with the boater? What will that mean for limited resources among first responders and in the healthcare system? Upon examination, the public health concerns are manifest, and provide good reason to place limited and temporary restrictions on the activity based on its health risks and benefits, as EO 2020-42 did for a two-week period.
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Judicial deference is appropriate not just on the substance of this challenge but the timing as well. Temporary suspension of certain activity must be permitted as a matter of public health. As a matter of separation of powers, distinctions between essential and non-essential and safe and unsafe are best left to the branch designed for and equipped to make those calls. The Governor’s executive orders should not be undercut by disparate preliminary judicial carveouts in the wake of a particular litigant’s race to the courthouse.
C. The “Stay Home” restriction One need only examine a family tree or a network of friends to see that we are all connected in one way or another. Commonly, there are six degrees of separation between any two people, and that number is reduced all the more in families, neighborhoods, and other communities. Household visits provide a gateway for the virus in every family and social network. 24 That consequence is precisely the opposite of the public health goals in this pandemic. The separation required by this restriction is indeed a burden. But it is a temporary burden with the long view in mind – fighting the virus. Social distancing, moreover, is not the same as social isolation. Technology – telephones, e-mails, video links – is available to allow Michiganders to be separate yet together in this shared sacrifice.
24 Contrary to Plaintiffs’ assertions, the executive orders did not prohibit using a private residence as a place for religious worship. The executive orders exempted from penalty “a place for religious worship, when used for religious worship.” This exemption applied to religious worship held in a private residence.
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As discussed above, review of the executive orders is “only” available if the challenged action “has no real or substantial relation to those objects [of securing public health and safety], or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 US at 31 (emphasis added). Surely, the “stay home” provision has a real and substantial relation to the COVID19 threat – a virus that spreads rapidly, jumps even from asymptomatic people, and lacks a vaccine or silver bullet treatment, especially in the context of scarce hospital beds and PPE. Moreover, the supposed constitutional invasion is not “plain” or “palpable” given the restrictions’ temporary nature, the several life-sustaining exceptions, and the clear trend of easing restrictions where the developing public health data permits. Under the circumstances, and the rule of Jacobson, the “stayat-home” provisions of the challenged executive orders pass muster.
D. Restricting travel The restrictions on travel have been critical to prevent the virus from spreading from one part of the state to another, and in particular, from more densely populated areas to less densely populated areas. As the virus ravaged southeastern Michigan, health systems were quickly at or above capacity. Medical supplies were dwindling, and beds in intensive care units were in short supply. There was a very real and imminent danger that hospitals could be completely overrun. Indeed, the TCF Center (formerly Cobo Center) – typically the home of auto shows and black-tie galas – was retrofitted as a makeshift field hospital in
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anticipation of local bed shortages.25 That it has not seen thousands of patients is a blessing, and a result of the measures put in place to stem the tide.
A similar outbreak of the virus in a rural area of the State would have dire consequences. Opportunities for medical care and treatment in less densely populated areas of the State are fewer. Rural areas have fewer medical specialists or resources like a fleet of ventilators that could be needed to absorb legions of severely ill patients. Access to testing is limited in remote areas of the State. These concerns warranted the imposition of a temporary limitation on travel to cottages and other, second residences.
In sum, the temporary restrictions in the Governor’s orders have been necessary and appropriate, with a real and substantial relation to stopping the spread of the virus, and do not result, beyond question, in a plain, palpable invasion of rights. Jacobson, 197 US at 31. As stated by the Michigan Court of Claims:
What the Court must do—and can only do—is determine whether the Governor’s orders are consistent with the law. Rock, 216 Mich at 283. Under the applicable standards, they are. (Ex M, p. 14). Accordingly, this Court should dismiss Plaintiffs’ complaint.
25 Detroit Free Press, TCF Center transformation ahead of schedule, ready for patients April 8 (April 4, 2020), available at https://www.freep.com/story/news/local/michigan/2020/04/04/coronavirus-covid-19tcf-center-field-hospital/2948726001/
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III. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail. 1. Free Exercise In his free exercise claim, Plaintiff Muise insists that the executive order
prohibited him from holding religious gatherings with his family. Contrary to his assertions, the executive orders never prohibited religious assemblages, at any time.
Further, the Governor’s executive orders imposed only temporary regulations of a general nature, responding to the needs of the evolving public health crisis. There is no question that the scourge of COVID-19 provides a compelling government interest justifying the Governor’s action. Regardless, because the executive orders are neutral and generally applicable, the orders should be upheld. A law that incidentally burdens religion but is neutral and of general applicability need not be justified by a compelling government interest. See Employment Division v. Smith, 494 U.S. 872, 878–879 (1990); New Doe Child #1 v. Congress of the United States, 891 F.3d 578, 591–593 (6th Cir. 2018).
Not only have the executive orders been neutral regarding religious practices, each iteration of the “stay-at-home” executive order has explicitly exempted religious gatherings from any restriction. EOs 2020-5 and 2020-11 each placed limits on assemblages of persons, but both explicitly stated “[t]his prohibition does not abridge protections guaranteed by the state or federal constitution under these emergency circumstances.” This statement allowed for religious assemblages. If that were not enough, a few days after the issuance of EO 2020-11, Governor Whitmer eliminated any possible misunderstanding by publicly stating that places
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of religious worship were not subject to the limitation on assemblages,26 and issued an FAQ regarding EO 2020-11 stating “[a] place of religious worship is not subject to penalty under section 3 of Executive Order 2020-11.”27 And nothing in these orders purported to restrict the right of a person to worship in one’s own home. Cf. People v. DeJonge, 501 N.W.2d 127, 129 (Mich. 1993) (right of Michigan parents to homeschool their children without a certification for instruction as a matter of free exercise).
Executive Order No. 2020-21 essentially ordered all persons not performing essential or critical infrastructure job functions to stay in their place of residence, other than to obtain groceries, care for loved ones, and engage in outdoor activity consistent with social distancing. The order also prohibited, with limited exceptions, all public and private gatherings of any number of people that are not part of a single household. But once again, the order explicitly provided that “a place of religious worship, when used for religious worship, is not subject to penalty.” E.O.s 2020-42, 2020-59, 2020-70, 2020-77, and 2020-92 all contain similar language exempting religious worship from the restrictions on gatherings of persons.
Thus, there is no basis for any claim that the executive orders discriminated against or unduly burdened religious practices. Indeed, the exact opposite is true.
26 See https://www.freep.com/story/news/local/michigan/2020/03/21/coronaviruswhitmer-updates-order-assemblies-exempt-churches-penalty/2885395001/ (Attached as Exhibit O). 27 See https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-522357-,00.html (Attached as Exhibit P).
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Not only have the executive orders been neutral as to religion, the orders have gone to great lengths to explicitly preserve the rights of persons to engage in group religious practices.
Further, Muise does not actually allege in the complaint that his religious practices have been affected by the executive orders. He complains (incorrectly) that family religious gatherings were criminalized by the executive orders, but importantly, he does not allege that he and his family refused to hold family religious gatherings while the challenged executive orders were in effect. Thus, Muise lacks standing to bring his free exercise claim, and his free exercise claim was never ripe for adjudication in the first place.
The Supreme Court’s has established an “especially rigorous” standing inquiry when the merits of a constitutional question pit the judiciary to pass on the constitutionality of the other branches of government. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Injury in fact is a necessary element of constitutional standing – “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual and imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Here, Muise lacks an injury in fact as to his free exercise claim because he does not allege that he curtailed his family religious practices as a result of the executive orders. In other words, his injury is and hypothetical, rather than concrete and particularized.
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Additionally, the free exercise claim is not ripe. Ripeness is related to standing and shares a foundation in Article III’s case-and-controversy requirement. Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154, 157 (6th Cir. 1992). “Ripeness is more than a mere procedural question; it is determinative of jurisdiction. If a claim is unripe, federal courts lack subject matter jurisdiction and the complaint must be dismissed. This deficiency may be raised sua sponte if not raised by the parties.” Id. Ripeness doctrine exists “to ensure that courts decide only existing, substantial controversies, not hypothetical questions or possibilities.” Deja Vu of Nashville, Inc. v. Met. Gov’t of Nashville, 274 F.3d 377, 399 (6th Cir. 2001).
In order to determine whether a claim is ripe, a court examines (1) the likelihood that the harm alleged will ever come to pass; (2) whether the factual record is sufficiently developed to allow for adjudication; and, (3) hardship to the parties if judicial review is denied. Adult Video Ass’n v. United States, 71 F.3d 563, 568 (6th Cir. 1995). In a First Amendment pre-enforcement challenge, the inquiry usually focuses on how imminent the threat of prosecution is and whether the plaintiff has sufficiently alleged an intention to refuse to comply with the statute. Id. at 285. Although the ripeness requirement is somewhat relaxed in the First Amendment context, there nonetheless must be a credible fear of enforcement. Norton v. Ashcroft, 298 F.3d 547, 554 (6th Cir. 2002).
Applying this standard, Muise’s Free Exercise claim is not ripe for review. He has not alleged—and as discussed, there has never been— a credible enforcement threat against him for engaging in religious worship with his family in
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his home. To the contrary, the orders have uniformly and expressly stated that religious worship would not be subject to penalty under the order, and there now exists no order that even allegedly encumbers his alleged constitutional rights.
The Free Exercise claim should be dismissed. 2. Right of Association
To the extent Muise alleges a violation of his right of association beyond his free exercise claim, that too is meritless. The Supreme Court has recognized a “right of association” in certain circumstances. In Roberts v. United States Jaycees, 468 U.S. 609, 617–618 (1984), the Court noted two different sorts of “freedom of association” that are protected by the United States Constitution: one premised on the maintenance of certain intimate human relationships, and one premised on the right to engage in activities protected by the First Amendment, “speech, assembly, petition for the redress of grievances, and the exercise of religion.”
Here, Plaintiff Muise makes vague reference to “association” in the amended complaint, but nothing like the sort of “intimate human relationship” referred to in Roberts. Moreover, Muise does not allege that any of his associative activities were actually curtailed by the executive orders. Thus, it appears that Muise is claiming some sort of hypothetical, general violation of his right to associate. But any such challenge fails on standing and ripeness grounds for the same reason as the Free Exercise claim.
As to the claim’s merits, the Supreme Court has recognized that [i]t is possible to find some kernel of expression in almost every activity a person undertakes—for example, walking down the street or meeting
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one’s friends at a shopping mall—but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989). Therefore, the association claim in the complaint concerns neither “intimate association” nor as a form of “expressive association” as those terms were described in Roberts. And while the Supreme Court has recognized that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics, Griswold v. Connecticut, 381 U.S. 479, 483 (1965), the Court has not recognized a generalized right of “social association.” Stanglin, 490 U.S. at 25. Because no fundamental right is implicated, the “freedom of association” challenge in this case is analyzed under rational-basis scrutiny, which is the most relaxed and tolerant form of constitutional scrutiny. “The rational-basis standard is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Dandridge v. Williams, 397 U.S. 471, 485-486 (1970). “[I]t is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment.” New Orleans v. Dukes, 427 U.S. 297, 303–304 (1976). On rational basis review, the policy being challenged bears “a strong presumption of validity.” F.C.C. v. Beach Commcn’s, Inc., 508 U.S. 307, 315 (1993). “This standard is highly deferential; courts hold statutes unconstitutional under this standard of review only in rare or exceptional circumstances.” Doe v. Mich.
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Dep’t of State Police, 490 F.3d 491, 501 (6th Cir. 2007). “Under rational basis scrutiny,” the plaintiff bears the burden to show that the government action “is so unrelated to the achievement of any combination of legitimate purposes that the court can only conclude that the government’s actions were irrational.” Michael v. Ghee, 498 F.3d 372, 379 (6th Cir. 2007)).
Here, for the reasons already described at length above, the restriction on gatherings between persons from separate households is designed to limit the spread of the virus. There is an unquestionable rational basis for the restriction. Limiting contact between persons from separate households must be minimized and is constitutionally permissible under the circumstances.
3. Due Process The amended complaint identifies a single basis for the due process claim – the (now-rescinded) two-week-long restriction on travel between two residences owned by an individual. This restrictions on travel was directly aimed at preventing the spread of the disease from one part of the state to another, and in particular, from urban areas to rural areas. Under the circumstances, there is no question that the travel restrictions were constitutional. The Due Process Clause provides heightened protection against government interference with certain fundamental rights and liberty interests. See Reno v. Flores, 507 U.S. 292, 301–302 (1993). In analyzing whether a particular right implicates the protection of the Due Process Clause, courts must first define the asserted right and then ask whether it is “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor
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justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (cleaned up). Government action that curtails fundamental rights generally receives strict scrutiny, requiring the government prove its regulation is narrowly tailored to serve a compelling interest. Id. (citing Flores, 507 U.S. at 302).
a. The right to intrastate travel The Sixth Circuit is of a few circuits to recognize the right to intrastate travel as “fundamental.” In Johnson v. City of Cincinnati, the Court held that the Due Process Clause of the Fourteenth Amendment protects the “right to travel locally through public spaces and roadways.” 310 F.3d 484, 495 (6th Cir. 2002). The level of scrutiny to be applied to a state-imposed travel restriction depends on the severity of the restriction. In Johnson, the Court applied strict scrutiny because the ordinance in question “impose[d] a more severe restriction” than “regulating the manner in which affected individuals” accessed an area (i.e., an anti-cruising ordinance), or the time of access (i.e., a curfew) by “broadly prohibiting individuals to access the entire neighborhood.” 310 F.3d at 502. Despite applying strict scrutiny in reviewing the ordinance in Johnson, the court noted the possibility that intermediate scrutiny could be applied to a “less severe regulation of localized travel.” Id. at 502. Johnson also cited United States v. Salerno, 481 U.S. 739, 750–51 (1987) for the proposition that the “importance and fundamental nature of an individual’s interest in liberty . . . may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” Johnson, 310 F.3d at 503.
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The now-rescinded executive orders comprised a “less severe regulation of localized travel” than the type at issue in Johnson and should be reviewed using, at most , intermediate scrutiny. Id; see also Hannemann v. S. Door Cty. Sch. Dist., 673 F.3d 746, 756 (7th Cir. 2012) (upholding a complete ban on the plaintiff from schools grounds in the county); Williams v. Town of Greenburgh, 535 F.3d 71, 75–76 (2d Cir. 2008) (“[I]t is clear that the right [to intrastate travel] protects movement between places and has no bearing on access to a particular place.” (emphasis in original)).
The challenged executive orders did not ban all travel in the State of Michigan (nor do the current ones). Indeed, the orders allowed for a substantial amount of travel for citizens engaged in various functions. Furthermore, the travel restriction at issue was temporary, partially restricting one type of intrastate travel for a matter of two weeks. This is markedly different than the ordinance in Johnson, which completely denied access to individuals for either three months or one year. 310 F.3d at 493. The essential function exemptions represented a balance between reducing travel—and therefore human interactions—and allowing citizens to engage in essential functions of living. These exemptions reduced the efficacy of the travel restrictions because every time someone fills up their gas tank, they risk spreading the virus.28 Given that between 25% and 60% of people infected
28 The latest scientific data says that the virus can survive up to seventy-two (72) hours on plastic and stainless steel. https://www.nejm.org/doi/10.1056/NEJMc2004973 (Attached as Exhibit Q).
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with coronavirus may not show any symptoms,29 there simply is no way to perfectly tailor travel restrictions to individuals who are infected or have been in contact with people who are infected.
To be sure, the executive orders did not deny any citizen of this State “access” to certain areas or roadways. Instead, they continued to allow citizens to engage in intrastate travel to, among other things, go to work if they perform critical functions, to get groceries and other items, and household and pet supplies, to take care of elderly family members or their children, to volunteer and to exercise. The orders did not “broadly prohibit[] individuals to access [ ] entire neighborhood[s],” towns, or cities. Johnson, 310 F.3d at 502. Thus, the orders were more like a curfew or anti-cruising ordinance insofar as they did not deny access, but instead merely “regulat[ed] the manner in which . . . individuals” access an area by limiting travel by function without completely shutting down or denying access to certain areas. 310 F.3d at 502; see also Bykofsky v. Borough of Middletown, 401 F. Supp. 1242, 1256 (M.D. Pa. 1975), aff’d, 535 F.2d 1245 (3d Cir. 1976) (holding that a curfew for minors that served a “legitimate” interest of the city and contained “numerous exceptions that allow[ed] minors to be on the streets during the curfew hours when they [had] a specific, important, legitimate purpose for being there” was constitutional).
29 Available at https://www.nbcnews.com/health/health-news/how-many-peoplehave-had-coronavirus-no-symptoms-n1187681 (Attached as Exhibit R).
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Whether this Court finds that the now-rescinded restrictions on intrastate travel should be reviewed using intermediate or strict scrutiny, it should hold that the restrictions are constitutional.30 Strict scrutiny requires the State show that the orders were narrowly tailored to serve a compelling State interest. See Glucksberg, 521 U.S. at 721. As to the State interest at the heart of the executive orders, the orders seek to “protect the health, safety, and welfare of citizens in” Michigan in the face of a deadly pandemic, a compelling interest. Johnson, 310 F.3d at 502. For the reasons discussed above, the executive orders served the compelling government interest through the means least restrictive under the circumstances. Thus, the orders did not violate the Plaintiffs’ right to intrastate travel. Johnson, 310 F.3d at 502-503.
b. Deprivation of Property The Sixth Circuit has also recognized that a substantive due process violation occurs when arbitrary and capricious government action deprives an individual of a constitutionally protected property interest. See Pearson v. City of Grand Blanc, 961 F.2d 1211, 1216, 1217 (6th Cir. 1992); see also Nectow v. City of Cambridge, 277 U.S. 183, 187–88 (1928) (holding that a court should not interfere unless the
30 The State avers that, in the face of a global pandemic and upwards of 50,000 Michiganders already infected, the orders pass constitutional muster under intermediate scrutiny as well. While this section focuses on the EO’s constitutionality under a strict scrutiny review, the State also asserts there is a “reasonable fit” between the travel restrictions and the “significant, substantial, [and] important” State objective in containing the spread of COVID-19. Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678, 693 (6th Cir. 2016) (outlining the test for intermediate scrutiny).
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locality’s action “has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense”) (internal quotation marks and citation omitted).
While challenges to arbitrary and capricious government action appear most frequently in cases involving zoning and other ordinances, see, e.g., Vill. of Belle Terre v. Boraas, 416 U.S. 1, 8 (1974), they are not necessarily limited to such cases, see, e.g., Duke Power Co. v. Carolina Envtl. Study Group, 438 U.S. 59, 82–83 (1978) (noting that federal economic regulations will be upheld “absent proof of arbitrariness or irrationality on the part of Congress”) (citation omitted).
Here, however, there was nothing illogical, arbitrary, or capricious about the Governor’s promulgation of the executive orders. Given the characteristics of COVID-19, the restrictions ordered in the executive orders were necessary to protect the public from the spread of disease. Again, the two-week restriction on travel to second residences was directly aimed at preventing the spread of the disease from one part of the state to another, and in particular, from urban areas to rural areas. “The fundamental nature of an individual’s interest in liberty . . . may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” Salerno, 481 U.S. at 750–51. Such was the case here. The due process claims should be dismissed.
4. Second Amendment Not only is the challenged executive order closing all non-essential retail stores (including gun stores) no longer in effect, it was generally applicable and
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content neutral. Since gun stores (like other retail establishments) may now operate through curbside pickup, any minimal burden was not only justified by the emerging public health crisis, but temporary. This Court should dismiss Plaintiffs’ Second Amendment claim.
a. EO 2020-42 was generally applicable and neutral, and the State does not need to show a compelling interest for enacting it.
Muise premises his Second Amendment claim on the alleged closing of gun stores, and the restriction temporarily preventing travel for certain purposes. At the outset, the executive orders did not single out gun stores for closure. Instead, the orders required all stores to close to prevent the spread of COVID-19 unless those stores provide services or sell items falling into a narrow group of services and products deemed to be essential. Further, the executive orders did not single out travel to gun stores as a specific prohibition.
To be sure, the executive orders applied broadly, but that was required to drastically reduce the number of interactions between individuals as a communicable virus with no known immunity threatens to rip through the population. Breadth and generality are also what renders the executive orders constitutional—they are and were generally applicable, and regarding the constitutional rights of Michiganders, neutral. Because the orders are neutral, they do not violate the Second Amendment rights of the Plaintiffs. Neutral laws of general applicability are presumed constitutional, even when they encroach on an individual’s constitutional rights. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993). The executive orders were neutral
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because they demanded that all stores—save those selling essential products—to close to in-person sales. That necessarily included stores that sell only guns and ammunition as well as stores that sell only books, other media, and other items potentially protected by the First Amendment and other constitutional provisions. But the orders also required stores to shut down if they sell hair products, or sporting goods, or clothes, or any number of items to which the constitution does not guarantee a right of possession.
Which is precisely the point. The executive orders did not discriminate. They did not target constitutionally protected items or activities, nor did they target anything outside the protections of the constitution. The orders were neutral, and generally applicable. Thus, the orders did not violate Muise’s Second Amendment rights. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531; see also Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 890 (1990).
In this case, the State enacted an emergency “public health regulation” that did not “single out” gun stores “for the imposition of its burden.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 704–707 (1986). The Second Amendment “is not implicated by the enforcement of a public health regulation of general application” against stores that “happen to sell” guns. Id. at 707. Plaintiffs seek special protection for their favored constitutionally protected activity, but they cannot claim “special protection from governmental regulations of general applicability simply by virtue of their . . . protected activities.” Id. at 705. And the State need not create
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exemptions to protect Plaintiffs’ Second Amendment rights. See Smith, 494 U.S. at 890.
The Second Amendment claim should be dismissed. 5. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1. The Supreme Court has stated that this language “embodies the general rule that States must treat like cases alike but may treat unlike cases accordingly.” Vacco v. Quill, 521 U.S. 793, 799 (1997). The States cannot make distinctions which either burden a fundamental right, target a suspect class, or intentionally treat one person differently from others similarly situated without any rational basis for the difference. Id.; Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam); Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312 (6th Cir. 2005). When the disparate treatment burdens a fundamental right, strict scrutiny applies. Bible Believers v. Wayne County, 805 F.3d 228, 256 (6th Cir. 2015) (en banc); Miller v. City of Cincinnati, 622 F.3d 524, 538 (6th Cir. 2010). “The threshold element of an equal protection claim is disparate treatment.” Scarbrough v. Morgan Cty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006).
In typical equal protection cases, plaintiffs generally allege that they have been arbitrarily classified as members of an identifiable group.” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979). When the identifiable group has not been recognized as a suspect or quasi-suspect class, courts examine the classification
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under rational basis review. See, e.g., Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
Here, Plaintiffs do not allege that they have been arbitrarily classified into a group that has been recognized as a suspect or quasi-suspect class. Further, the executive orders contained generally applicable, temporary, and content-neutral measures. The rational basis supporting all of the challenged restrictions have been explained in detail in the preceding sections. Therefore, Plaintiffs’ equal protection claims cannot be maintained as a matter of law.
CONCLUSION AND RELIEF REQUESTED Governor Whitmer respectfully requests that this Court dismiss Plaintiffs’ complaint in its entirety, along with any other relief that the Court deems appropriate and necessary.
Respectfully submitted, Dana Nessel Attorney General

Dated: May 20, 2020

/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Assistant Attorney General Attorneys for Defendant Whitmer State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov P71887

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Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.496 Page 43 of 43 CERTIFICATE OF SERVICE
I certify that on May 20, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record, and I certify that my secretary has mailed by U.S. Postal Service the papers to any non-ECF participant.
/s/ Joseph T. Froehlich Joseph T. Froehlich Assistant Attorney General Attorney for Defendant Whitmer State Operations Division
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT A

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STATE OF MICHIGAN COURT OF CLAIMS

STEVE MARTINKO, et al, Plaintiffs,

OPINION AND ORDER REGARDING PLAINTIFFS’ APRIL 23, 2020 MOTION FOR A PRELIMINARY INJUNCTION

v

Case No. 20-00062-MM

GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANIEL EICHINGER, in his official capacity as Director of the Michigan Department of Natural Resources, and DANA NESSEL, in her official capacity as the Attorney General for the State of Michigan,

Hon. Christopher M. Murray

Defendants. ___________________________/

I. INTRODUCTION

This matter was filed by five Michigan residents who claim that three of Governor

Whitmer’s executive orders, Executive Orders 2020-21 and 2020-42,1 and now Executive Order

2020-59, infringe on their constitutional rights to procedural due process and substantive due

1 Plaintiffs recognize that EO 2020-21 was rescinded by EO 2020-42, and they claim that EO 2020-42 “extended the timeline originally set by [EO] 2020-21 and grossly expands its restrictions on businesses’ and individuals’ fundamental rights.” After the verified complaint was filed, EO 2020-42 was rescinded by EO 2020-59, which (among other things) eliminated the prohibitions on traveling intrastate to another residence, from not using motorized boats on the waterways, and to an extent allows the re-opening of some businesses and state parks. Although plaintiffs challenge the same restrictions set forth in EO 2020-42, the Court will for clarity sake refer to the restrictions within the current executive order, EO 2020-59, unless the timing period is relevant to any issue.
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process. Specifically, plaintiffs’ verified complaint alleges that the “mandatory quarantine” imposed by EO 2020-59 violates their right to both procedural due process (Count I) and substantive due process (Count II), and that the intrastate travel restrictions contained in EO 202042 also violate their rights to procedural due process (Count III) and substantive due process (Count IV). They also allege in Count V of their verified complaint that the Emergency Management Act, MCL 30.401 et seq., is an unconstitutional delegation of legislative power to the Governor. Plaintiffs have requested the Court issue a preliminary injunction—but not a permanent one—restraining these defendants from continuing to implement the provisions of EO 2020-59.2 Once restrained, plaintiffs seek a declaration that the challenged restrictions and the EMA are invalid.3
II. JURISDICTION Defendants first argue that this Court lacks subject matter jurisdiction because plaintiffs seek only injunctive relief based upon federal constitutional claims, which deprives the Court of jurisdiction to decide the matter. Defendants rely upon MCL 600.6440, which provides:
No claimant may be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts, but it is not necessary in the complaint filed to allege that claimant has no such adequate remedy, but that fact may be put in issue by the answer or motion filed by the state or the department, commission, board, institution, arm or agency thereof.
2 On April 23, 2020, the Court denied plaintiffs’ motion for an ex parte temporary restraining order on the ground that plaintiffs had not shown the threat of immediate and irreparable harm of physical injury or loss of property. 3 The Court appreciates the speed at which counsel submitted briefs, and for the high caliber of the briefs submitted.
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Because a federal court can exercise jurisdiction against state officers in their official capacity when seeking only prospective injunctive relief, defendants argue, MCL 600.6440 applies and the Court lacks jurisdiction to decide the matter.
The legal principles put forward by defendants are sound, but they do not apply to plaintiffs’ case. First, the statute refers to claims filed in the Court of Claims against the state, its departments, agencies, etc., and does not pertain to claims brought in this Court against individuals, as plaintiffs have done here. Thus, it is irrelevant whether claims against state officers in their official capacity brought in federal court might essentially be considered claims against the state. Second, with respect to defendants’ argument, plaintiffs seek declaratory rulings on each of their three challenges, and one of those challenges—the claim that the EMA violates the separation of powers doctrine—is based upon state law. So too is their challenge to the intrastate ban on travel to vacation rentals. Additionally, in their complaint plaintiffs seek “other and further relief as the Court deems appropriate,” which whatever that could end up being, it would go beyond the declaratory and limited injunctive relief requested in the complaint, and could include damages, even if only nominal. Because plaintiffs’ claims and forms of relief do not meet all the requirements of MCL 600.6440, this Court does not lack subject matter jurisdiction.
III. MOOTNESS Defendants also argue that plaintiffs’ case is moot because they only challenge EO 202021 and EO 2020-42, which have been rescinded, and EO 2020-59 is the only existing executive order containing these restrictions. True enough, but as defendants seem to recognize, it was after plaintiffs’ filing last week that the Governor issued EO 2020-59, and plaintiffs have not had time to seek to amend their complaint, and several of plaintiffs’ challenges to the prior EOs—the stayat-home provision and the ban on intrastate travel to vacation rentals—remain within EO 2020-
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59. Those two challenges are therefore not moot, as the Court can still render complete relief against those provisions. See CD Barnes Assoc, Inc v Star Haven, LLC, 300 Mich App 389, 406; 834 NW2d 878 (2013). The remainder of the challenges to EOs 2020-21 and 2020-42, as well as to the Department of Natural Resources rule4, have been removed by EO 2020-59, and are now moot.
The Court therefore concludes that the only remaining ripe challenges to the executive orders are (1) the stay-at-home provision, (2) the prohibition of traveling to a third-party vacation rental, and (3) the limited public access to certain public land. And, of course, plaintiffs’ challenge to the constitutionality of the EMA remains a live controversy.
IV. STANDARDS FOR A PRELIMINARY INJUNCTION “The objective of a preliminary injunction is to maintain the status quo pending a final hearing regarding the parties’ rights.” Alliance for the Mentally Ill of Mich v Dep’t of Community Health, 231 Mich App 647, 655–656; 588 NW2d 133 (1998). The status quo has been defined as “ ‘the last actual, peaceable, noncontested status which preceded the pending controversy.’ ” Buck v Thomas Cooley Law School, 272 Mich App 93, 98 n 4; 725 NW2d 485 (2006), quoting Psychological Services of Bloomfield, Inc v Blue Cross & Blue Shield of Michigan, 144 Mich App 182, 185; 375 NW2d 382 (1985). In Mich AFSCME Council 25 v Woodhaven–Brownstown Sch
4 Specifically, plaintiffs challenge a Department of Natural Resources rule, implemented in furtherance of EO 2020-42, that “restricts the use of powerboats on public waterways yet allows sailboats and kayaks.” Plaintiffs likewise question a DNR rule, also implemented in furtherance of EO 2020-42, that “further restricted access to public lands, parks and trails to residents of ‘local communities.’ ” Much to the pleasure of outdoor enthusiasts, EO 2020-59 seems to have eliminated the restrictions on use of powerboats and use of state parks during certain hours of the day.
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Dist, 293 Mich App 143, 146; 809 NW2d 444 (2011), the Court of Appeals instructed that, “[w]hen deciding whether to grant an injunction under traditional equitable principles,
a court must consider (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 would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued.[5] Not surprisingly, the Court will first turn to the initial consideration, i.e., whether plaintiffs have shown a likelihood of prevailing on the merits. Though plaintiffs do not have to prove they will succeed on the merits, they do have to prove that they have a substantial likelihood of success on the merits. Int’l Union v Michigan, 211 Mich App 20, 25; 535 NW2d 210 (1995).
V. THE MERITS A. BACKGROUND AND FACTS Michigan residents, like all other Americans, cherish their liberty. We always have, though the liberties and freedoms we seek to protect have changed over time. At and before our founding, our forefathers fought for the inalienable right to own property, freely engage in commerce, represent ourselves through our own elected representatives, worship where and how we wanted, etc. The Declaration of Independence’s list of grievances against the King of England prove as much, as do several of the amendments to the United States Constitution, and in particular, the Fifth and Fourteenth Amendments.
5Quoting in part Alliance for the Mentally Ill, 231 Mich App at 655–656. -5-

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Today we have all the freedoms and liberties that the founders fought for, and our branches of government exist in large part to ensure that those rights remain intact. See Declaration, ¶ 2.6
The liberty and freedoms at stake in this matter do not in large part involve those rights and liberties
the founders fought so hard for; instead, plaintiffs focus on the right to freely move about one’s
community and state, to do commerce when one pleases, and to travel about the state for vacation
purposes. It is the restrictions to those activities within EO 2020-59 that plaintiffs challenge here.
As any reader of this opinion knows, the challenged executive orders were issued to address
the public health crisis occasioned by the world-wide spread of the novel coronavirus, which hit
our great state in early March. Specifically, on March 10, 2020, was when the first two cases of the virus were diagnosed in our state7, while the first death resulting from the virus occurred on March 18, 2020.8 As a result of the quick spread of the virus within our state borders, and to meet
the myriad challenges that immediately arose Governor Whitmer issued numerous executive
orders, including EO 2020-21, EO 2020-42 and EO 2020-59. The main element of the executive
6 The Court realizes that the Declaration is a political document, not a legal one, but it is good evidence of the founding political theories and objectives. See Troxel v Granville, 530 US 57, 91; 120 S Ct 2054; 147 L Ed 2d 49 (2000)(SCALIA, J., dissenting)(“The Declaration of Independence ... is not a legal prescription conferring powers upon the courts[.]”); Derden v McNeel, 978 F2d 1453, 1456 n4 (CA 5, 1992)(“[G]eneral statements about inalienable rights ... tell us little about the prerogatives of an individual in concrete factual situations.”); Coffey v United States, 939 F Supp 185, 191 (EDNY, 1996)(“While the Declaration of Independence states that all men are endowed certain unalienable rights including ‘Life, Liberty and the pursuit of Happiness,’ it does not grant rights that may be pursued through the judicial system.” (citation omitted)). 7 Executive Order No, 2020-21; Detroit Free Press, Coronavirus Timeline https://www.freep.com/story/news/local/michigan/2020/03/18/coronavirus-timeline-first-casemichigan-first-death/5069676002/ (accessed April 28, 2020). This article contains a compilation of information from the state Department of Health and Human Services. 8 Detroit Free Press, First Michigan Death Due to Coronavirus is Southgate Man in his 50s https://www.freep.com/story/news/local/michigan/wayne/2020/03/18/coronavirus-deathsmichigan/5054788002/ (accessed April 28, 2020).
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orders is the requirement that most residents remain in their home unless engaging in certain essential activities, or certain limited outdoor activities. The result of the order, from an economic standpoint, was thousands of Michigan residents being unable to work unless they could do so remotely, the closing of all restaurants, bars, and other small and large businesses.9
At the time the first stay-at-home order was issued on March 23, 2020—only 13 days since the first confirmed case in this state—there were already 1,328 confirmed cases and 15 deaths.10 Today, just over one month later, Michigan has over 36,000 confirmed cases of the virus and over 3,000 related deaths.
B. THE MERITS In their complaint, plaintiffs do not challenge the Governor’s authority to issue the executive orders on this subject-matter. Instead, plaintiffs challenge the scope of the order through separate claims based on procedural due process and substantive due process. Although these claims entail different considerations and standards, see In re Forfeiture of 2000 GMC Denali and Contents, 316 Mich App 562, 573-574; 892 NW2d 388 (2016), the Court will address the claims together since, under these circumstances, each protected right is subject to the same overriding principle. In other words, the constitutional right asserted does not make a difference when considering this issue, because both are subject to a balancing with the state’s interest to protect the public health. This holds true because, and perhaps contrary to common knowledge, most, if not all, individual constitutional rights are not absolute and are subject to a balancing with the
9 Michigan was not alone in this regard. The Court takes notice that the worldwide economy has come to a virtual standstill as a result of state and national actions taken to control the virus. 10 Detroit Free Press, Michigan Coronavirus Cases, Tracking the Pandemic, https://www.freep.com/in-depth/news/nation/coronavirus/2020/04/11/michigan-coronaviruscases-tracking-covid-19-pandemic/5121186002/ (accessed April 28, 2020).
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countervailing state interest. See New Rider v Board of Ed of Independent School Dist No 1, 480
F2d 693, 696 (CA 10, 1973) (“Constitutional rights, including First Amendment rights, are not
absolutes.”) and In re Abbott, 954 F3d 772, 784 (CA 5, 2020) (Recognizing, when addressing
Texas emergency rules during the coronavirus pandemic, that individual rights secured by the
Constitution could be reasonably restricted during a health crisis).
As can be seen, then, there are two competing constitutional principles at play. First, as
plaintiffs note in their verified complaint, in Ex Parte Milligan, 71 US 2, 120-121; 18 L Ed 281
(1866), the United States Supreme Court recognized—in a case that arose during the height of the
Civil War—that our rights enshrined in the Constitution do not become less important or
enforceable because of exigent circumstances:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority. Though our individual constitutional rights cannot be suspended or eliminated, they are, as noted,
subject to reasonable regulation by the state. And, when it comes to the power of the state to act
in the best interests of the public health when faced with a serious contagious disease, which is the
state interest acted upon by the Governor,
“[w]e are plowing no virgin field in considering the questions here involved. Numerous decisions, both federal and state, have considered the questions now before us. They are not all in accord and in some instances are not reconcilable. There is, however, a very marked trend in them in one direction, that which upholds the right of the state, in the exercise of its police power and in the interest of the public health, to enact such laws, such rules and regulations, as will prevent the spread of this dread disease.” [People ex rel Hill v Lansing Bd of Ed, 224 Mich
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388, 390; 195 NW 95 (1923). See, also, Jacobsen v Commonwealth of Mass, 197 US 11, 25-26; 25 S Ct 358; 49 L Ed 643 (1905) (upholding state’s power to require vaccination over plaintiff’s Fourteenth Amendment liberty interest to not be told what to do), and In re Abbott, 954 F3d at 784-785.] As noted earlier, plaintiffs’ due process claims set out in Counts I and III are challenges to the quarantine11 requirement and (as amended by the changes contained in EO 2020-59), the prohibition on intrastate travel to a vacation rental. Plaintiffs’ specific assertion is that, although the state may have the ability to quarantine those who are infected with the virus, the state cannot quarantine everyone without some showing that the individual(s) are infected. Because EO 202059 does so, the executive order violates their right to procedural due process. The same holds true, they argue, for the prohibition of intrastate travel to a third parties’ vacation home.12
In addressing this argument, it is imperative to recognize the limited question the Court is empowered to decide. Except in limited circumstances mentioned later, it is not for the courts to pass on the wisdom of state action that is granted to it by the general police power or by statute. Certainly the state cannot simply ignore the individual rights enshrined in our federal (or state) constitution in the name of a public health threat. Judicial review of state actions is therefore (and quite obviously) appropriate and necessary. But the depth of that review is limited, and does not include delving deep into the pros and cons of what is the better plan of action between two reasonable alternatives. This point was well-made by three concurring Justices in Rock v Carney,
11 Plaintiffs characterize the “stay-at-home” provision as a quarantine, which defendants quarrel with, but quarantine is defined as “a restraint upon the activities or communications of persons … designed to prevent the spread of disease or pests.” Merriam-Webster’s Collegiate Dictionary (11th Ed). 12 Plaintiffs have not asserted that they own a second home in Michigan or that they had rented a third parties’ vacation home for use during a time in which any executive order remained in place.
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216 Mich 280, 283; 185 NW 798 (1921), a case involving the state’s response to the spread of
venereal diseases during World War I:
The questions involved in this litigation are of supreme importance, not only to the individuals composing this commonwealth, but also to the numerous boards of health and to the state itself. We approach their consideration with a due regard of their importance. Neither a desire to sustain the state, nor a supersensitiveness prompted by the delicacy of the examination here involved, should in any way enter into or control our decision. Policies adopted by the legislative and executive branches of the state government are not submitted to this branch for approval as to their wisdom. They stand or fall in this court because valid or invalid under the law, and their wisdom or want of wisdom in no way rests with us. If valid, they must be upheld by this court; if invalid, they must be so declared by this court. If these defendants have transcended their power, they must be held liable, and they may not be excused from liability by the fact that their motives were of the highest. If they had not transcended their power, they are not liable, and supersensitiveness or preconceived notions of proprieties, no matter of how long standing, do not render them liable. The case must be determined by the application of cold rules of law. Thus, whether and to what extent this Court agrees with policy implemented in the executive orders
is of no moment or consideration. Instead, the Court must dutifully apply the “cold rules of law”
to determine the validity of the challenged provisions of the executive order.
Binding authority from the United States Supreme Court and the Michigan Supreme Court
compels this Court to conclude that plaintiffs do not have a substantial likelihood of success on
the merits. This is not because the rights asserted by plaintiffs are not fundamental—being forced
(with some important exceptions) by the state to remain in one’s home, in turn causing many
residents to be unable to work, visit elderly relatives, and to generally move about the state. But
those liberty interests are, and always have been, subject to society’s interests—society being our
fellow residents. They—our fellow residents—have an interest to remain unharmed by a highly
communicable and deadly virus, and since the state entered the Union in 1837, it has had the broad
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power to act for the public health of the entire state when faced with a public crisis. As the
Jacobsen Court so aptly held:
The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ In Crowley v Christensen, 137 US 86, 89; 34 L Ed 620, 621; 11 S Ct 13 (we said: ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’ [Jacobson, 197 US at 26; citations omitted in part; emphasis supplied.]
The role courts play under Jacobson and Lansing Bd of Ed is not to “second-guess the state’s
policy choices in crafting emergency public health measures,” In re Abbott, 954 F3d at 784, but is
instead to determine whether the state regulation has 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.’ ” Id., quoting in part Jacobson, 197 US at 31. Part of this review includes
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looking to whether any exceptions apply for emergent situations, the duration of any rule, and whether the measures are pretextual. Id. at 785.13
Turning to plaintiffs’ specific challenges, the stay-at-home provision, the most restrictive portion of the executive order, was first implemented by the Governor on March 23, 2020, thirteen days after the first case of COVID-19 was diagnosed in the state. Though there were at that point approximately 1,328 cases in the state and 15 reported deaths, Governor Witmer was not acting on a blank slate. Instead, it was common knowledge that the virus had already rapidly spread throughout the state of Washington, was prevalent in several other states, and was devastating parts of Italy, China, and other countries. Indeed, the speed at which the virus spread was well known at the time the stay-at-home provision was implemented. It is true that this measure is a severe one, and greatly restricts each of our liberties to move about as we see fit, as we do in normal times. But the governor determined that severe measures were necessary, and had to be quickly implemented to prevent the uncontrolled spreading of the virus. As noted, Michigan was not alone in this regard:
To be sure, [the order] is a drastic measure, but that aligns it with the numerous drastic measures Petitioners and other states have been forced to take in response to the coronavirus pandemic. Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities. These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis. [In re Abbott, 954 F3d at 787.]
13 Plaintiffs’ correctly note that Jacobson did not involve a state-wide requirement to stay at home, and instead addressed an involuntary vaccination program. But most cases have different facts, and it is the legal principle set forth in the decision that guides future courts. Thus, despite some factual differences, the Court relies (as did the In re Abbott court) upon Jacobson as it is the most relevant decision on this issue from the Supreme Court.
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Plaintiffs suggest that the better—and more constitutionally sound decision—would have been to quarantine only those who have the virus. It may have been a better option to some, as doing so may have had a less severe impact on the movement of the Michigan population, and may have reduced unemployment. Or, as plaintiffs argue, a more narrowly tailored order by region may have been more reasonable for the entire state. But some of that is simply hindsight, and to accept it would be to impermissibly delve too deep into the choices made. Additionally, the Governor’s concerns were not limited to what was most convenient or palatable at the time, as she also had to protect, to the extent possible, the health and safety of all Michigan residents and to not overburden the health care system. The introduction to EO 2020-59 outlines some of the other serious considerations that went into issuing the stringent order:
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. And, contrary to plaintiffs’ arguments, the Supreme Court has upheld, against a constitutional challenge, a state’s quarantine of individuals even when they are not infected with the disease being controlled. See Compagnie Francaise de Navigation a Vapeur v Louisiana, 186 US 380, 393; 22 S Ct 811; 46 L Ed 1209 (1902).
As noted, the Court’s role is not to pick which alternative may be more reasonable, more preferential, or more narrowly tailored, as the latter is in deciding some constitutional cases. Monday morning quarterbacking is the role of sports fans, not courts reviewing the factual basis supporting executive action to protect the public health. Instead, it is the role of the executive and legislative branches to determine what steps are necessary when faced with a public health crisis.
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In re Abbott, 954 F3d at 792 (“Such authority [to determine what measures are best to take] properly belongs to the legislative and executive branches of the governing authority”); Rock, 216 Mich at 296; Lansing Bd of Ed, 224 Mich at 397.14 Under federalism principles, it is the States that retained the police power, and that power—though not unlimited—is quite broad. See Nat’l Federation of Independent Business v Sebelius, 567 US 519, 536; 132 S Ct 2566; 183 L Ed 2d 450 (2012) (“The States thus can and do perform many of the vital functions of modern government— punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power”) and Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 73; 367 NW2d 1 (1985) (discussing the scope of the police power and how that power extends to enacting regulations to promote public health, safety, and welfare, and providing that regulations “passed pursuant to the police power carry with them a strong presumption of constitutionality.”).
What the Court must do—and can only do—is determine whether the Governor’s orders are consistent with the law. Rock, 216 Mich at 283. Under the applicable standards, they are. The undisputed facts known at the time the first stay-at-home order was made, and the undisputed facts known today, compel the conclusion that the order had a real and substantial relation to the public health crisis. The challenged measures relate to limiting human interaction which helps control the spread of a virus considered to be extremely communicable. To make it voluntary, or more limited in scope, were perhaps other avenues to pursue, but even accepting that proposition does
14 As will be discussed shortly, the Legislature has also spoken on the issue of how to address emergent situations. MCL 10.21; MCL 30.401 et seq. Additionally, the Court takes notice that the Legislature recently established an oversight committee to review the measures implemented through the Governor’s various executive orders.
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not make what the Governor reasonably chose to do invalid. Instead, the Governor’s determination as to the speed and ease with which the virus spreads, and the potential impact that spread would have on the health care system, and the threat it had to the lives of thousands of Michigan residents in a short period of time, allows for the conclusion that the two challenged provisions had a real and substantial relation to the public health crisis. Jacobson, 197 US at 31. There is nothing presented to the Court to draw any other legal conclusion.15
Nor is there any evidence (or even a suggestion) that the stay-at-home provision was a pretext to accomplish some other objective. 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. Indeed, since this lawsuit was filed last week, the Governor issued EO 2020-59, easing some of the very restrictions challenged by plaintiffs, and has indicated more lifting of restrictions are imminent. Plaintiffs have not shown a substantial likelihood of success on the merits in their challenge to the executive order restrictions.
C. CONSTITUTIONALITY OF THE EMA16 Turning again to In re Forfeiture of 2000 GMC Denali and Contents, the Court set forth the rather difficult standards governing a challenge to the constitutionality of a state statute:
A party challenging the constitutionality of a statute has the burden of proving the law's invalidity. Gillette Commercial Operations North America & Subsidiaries v
15 Plaintiffs submitted documentary evidence which, if believed, could allow a governor to issue a more narrowly tailored order. But because this Governor made a different conclusion that was likewise based on other supporting evidence related to the virus, her decision had a real and substantial relation to the public health crisis. 16 Plaintiffs do not challenge the Governor’s exercise of authority under either statute, nor whether she needs legislative approval to continue her emergency declaration.
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Dep’t of Treasury, 312 Mich App 394, 414-415; 878 NW2d 891 (2015). The challenging party must overcome a heavy burden because “[s]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Mayor of Cadillac v Blackburn, 306 Mich App 512, 516; 857 NW2d 529 (2014). When interpreting a statute, our primary goal is to “give effect to the intent of the Legislature.” Superior Hotels, LLC v Mackinaw Twp, 282 Mich App 621, 628; 765 NW2d 31 (2009). To do so, we examine the plain language of the statute itself, and “[i]f the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted.” Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). [In re Forfeiture of 2000 GMC Denali and Contents, 316 Mich App at 569.]
As far as the Court can discern, plaintiffs’ challenge to the EMA is an as-applied one:
A constitutional challenge to the validity of a statute can be brought in one of two ways: by either a facial challenge or an as-applied challenge. This is an as-applied challenge, meaning that claimant has alleged “ ‘a present infringement or denial of a specific right or of a particular injury in process of actual execution’ of government action.” Bonner v City of Brighton, 495 Mich 209, 223 n 27; 848 NW2d 380 (2014), quoting Village of Euclid v Ambler Realty Co, 272 US 365, 395; 47 S Ct 114; 71 L Ed 303 (1926). “The practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative.” Ada v Guam Society of Obstetricians & Gynecologists, 506 US 1011, 1012; 113 S Ct 633; 121 L Ed 2d 564 (1992) (SCALIA, J., dissenting). See also United States v Frost, 125 F3d 346, 370 (CA 6, 1997). [In re Forfeiture of 2000 GMC Denali and Contents, 316 Mich App at 569-570.]
Plaintiffs’ challenge to the delegation of power from the Legislature to the executive will
likely not succeed. It is certainly true that the Legislature cannot grant some vague, unfettered
discretion to the executive to carry out what is a legislative function. 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. City of Ann Arbor v Nat’l Ctr
for Mfg Sciences, Inc, 204 Mich App 303, 308; 514 NW2d 224 (1994) (“[T]he standards must be
sufficiently broad to permit efficient administration so that the policy of the Legislature may be
complied with, but not so broad as to give uncontrolled and arbitrary power to the
administrators.”).
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As defendants point out, plaintiffs allege in their complaint 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.” Dep’t of Natural Resources v Seaman, 396 Mich 299, 308; 240 NW2d 206 (1976). The provisions of the EMA are not vague, and contain specific procedures and criteria for the Governor to declare a state of disaster or emergency, and what conditions qualify as a disaster or emergency. See MCL 30.402(e) and (h); MCL 30.403(3) and (4). The EMA also grants the Governor additional, specific duties and powers when addressing any declared disaster or emergency, MCL 30.405, and sets for a comprehensive state and local jurisdictional system to address declared state-wide disasters or emergencies. MCL 30.407-MCL 30.411. As a result, plaintiffs are unable to establish a likelihood of success on the merits on this claim.
D. HARM TO THE PUBLIC INTEREST Finally, and for many of the same reasons, the Court concludes that entry of a preliminary injunction would be more detrimental to the public than it would 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. That is not to say that every new virus will require the action taken 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.
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For these reasons, plaintiffs’ motion for a preliminary injunction is DENIED.

Date: April 29, 2020

__________________________________ Christopher M. Murray Judge, Court of Claims

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-2 filed 05/20/20 PageID.516 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT B

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
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Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations

Scientific brief

29 March 2020 ‫ العربية‬中文

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This version updates the 27 March publication by providing definitions of droplets by particle size and adding three relevant publications.
Modes of transmission of the COVID-19 virus
Respiratory infections can be transmitted through droplets of different sizes: when the droplet particles are >5-10 μm in diameter they are referred to as respiratory droplets, and when then are <5μm in diameter, they are referred to as droplet nuclei.1 According to current evidence, COVID-19 virus is primarily transmitted between people through respiratory droplets and contact routes.2-7 In an analysis of 75,465 COVID-19 cases in China, airborne transmission was not reported.8
Droplet transmission occurs when a person is in in close contact (within 1 m) with someone who has respiratory symptoms (e.g., coughing or sneezing) and is therefore at risk of having his/her mucosae (mouth and nose) or conjunctiva (eyes) exposed to potentially infective respiratory droplets. Transmission may also occur through fomites in the immediate environment around the infected person.8 Therefore,
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 32-2 filed 05/20/20 PageID.518 Page 3 of 7 transmission of the COVID-19 virus can occur by direct contact with infected people and indirect contact with surfaces in the immediate environment or with objects used on the infected person (e.g., stethoscope or thermometer).
Airborne transmission is different from droplet transmission as it refers to the presence of microbes within droplet nuclei, which are generally considered to be particles <5μm in diameter, can remain in the air for long periods of time and be transmitted to others over distances greater than 1 m.
In the context of COVID-19, airborne transmission may be possible in specific circumstances and settings in which procedures or support treatments that generate aerosols are performed; i.e., endotracheal intubation, bronchoscopy, open suctioning, administration of nebulized treatment, manual ventilation before intubation, turning the patient to the prone position, disconnecting the patient from the ventilator, noninvasive positive-pressure ventilation, tracheostomy, and cardiopulmonary resuscitation.
There is some evidence that COVID-19 infection may lead to intestinal infection and be present in faeces. However, to date only one study has cultured the COVID-19 virus from a single stool specimen.9 There have been no reports of faecal−oral transmission of the COVID-19 virus to date.
Implications of recent findings of detection of COVID-19 virus from air sampling
To date, some scientific publications provide initial evidence on whether the COVID-19 virus can be detected in the air and thus, some news outlets have suggested that there has been airborne transmission. These initial findings need to be interpreted carefully.
A recent publication in the New England Journal of Medicine has evaluated virus persistence of the COVID-19 virus.10 In this experimental study, aerosols were generated using a three-jet Collison nebulizer and fed into a Goldberg drum under controlled laboratory conditions. This is a high-powered machine that does not reflect normal human cough conditions. Further, the finding of COVID-19 virus in aerosol particles up to 3 hours does not reflect a clinical setting in which aerosol-generating procedures are performed—that is, this was an experimentally induced aerosol-generating procedure.
There are reports from settings where symptomatic COVID-19 patients have been admitted and in which
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Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 32-2 filed 05/20/20 PageID.519 Page 4 of 7 no COVID-19 RNA was detected in air samples.11-12 WHO is aware of other studies which have evaluated the presence of COVID-19 RNA in air samples, but which are not yet published in peer-reviewed journals. It is important to note that the detection of RNA in environmental samples based on PCR-based assays is not indicative of viable virus that could be transmissible. Further studies are needed to determine whether it is possible to detect COVID-19 virus in air samples from patient rooms where no procedures or support treatments that generate aerosols are ongoing. As evidence emerges, it is important to know whether viable virus is found and what role it may play in transmission.
Conclusions
Based on the available evidence, including the recent publications mentioned above, WHO continues to recommend droplet and contact precautions for those people caring for COVID-19 patients. WHO continues to recommend airborne precautions for circumstances and settings in which aerosol generating procedures and support treatment are performed, according to risk assessment.13 These recommendations are consistent with other national and international guidelines, including those developed by the European Society of Intensive Care Medicine and Society of Critical Care Medicine14 and those currently used in Australia, Canada, and United Kingdom.15-17
At the same time, other countries and organizations, including the US Centers for Diseases Control and Prevention and the European Centre for Disease Prevention and Control, recommend airborne precautions for any situation involving the care of COVID-19 patients, and consider the use of medical masks as an acceptable option in case of shortages of respirators (N95, FFP2 or FFP3).18-19
Current WHO recommendations emphasize the importance of rational and appropriate use of all PPE,20 not only masks, which requires correct and rigorous behavior from health care workers, particularly in doffing procedures and hand hygiene practices.21 WHO also recommends staff training on these recommendations,22 as well as the adequate procurement and availability of the necessary PPE and other supplies and facilities. Finally, WHO continues to emphasize the utmost importance of frequent hand hygiene, respiratory etiquette, and environmental cleaning and disinfection, as well as the importance of maintaining physical distances and avoidance of close, unprotected contact with people with fever or respiratory symptoms.
WHO carefully monitors emerging evidence about this critical topic and will update this scientific brief as more information becomes available.
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References
1. World Health Organization. Infection prevention and control of epidemic- and pandemic-prone acute respiratory infections in health care. Geneva: World Health Organization; 2014 Available from: https://apps.who.int/iris/bitstream/handle/10665/112656/9789241507134_eng.pdf?sequence=1
2. Liu J, Liao X, Qian S et al. Community transmission of severe acute respiratory syndrome coronavirus 2, Shenzhen, China, 2020. Emerg Infect Dis 2020 doi.org/10.3201/eid2606.200239
3. Chan J, Yuan S, Kok K et al. A familial cluster of pneumonia associated with the 2019 novel coronavirus indicating person-to-person transmission: a study of a family cluster. Lancet 2020 doi: 10.1016/S01406736(20)30154-9
4. Li Q, Guan X, Wu P, et al. Early transmission dynamics in Wuhan, China, of novel coronavirus-infected pneumonia. N Engl J Med 2020; doi:10.1056/NEJMoa2001316.
5. Huang C, Wang Y, Li X, et al. Clinical features of patients infected with 2019 novel coronavirus in Wuhan, China. Lancet 2020; 395: 497–506.
6. Burke RM, Midgley CM, Dratch A, Fenstersheib M, Haupt T, Holshue M,et al. Active monitoring of persons exposed to patients with confirmed COVID-19 — United States, January–February 2020. MMWR Morb Mortal Wkly Rep. 2020 doi : 10.15585/mmwr.mm6909e1external icon
7. World Health Organization. Report of the WHO-China Joint Mission on Coronavirus Disease 2019 (COVID-19) 16-24 February 2020 [Internet]. Geneva: World Health Organization; 2020 Available from: https://www.who.int/docs/default- source/coronaviruse/who-china-joint-mission-on-covid-19-finalreport.pdf
8. Ong SW, Tan YK, Chia PY, Lee TH, Ng OT, Wong MS, et al. Air, surface environmental, and personal protective equipment contamination by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) from a symptomatic patient. JAMA. 2020 Mar 4 [Epub ahead of print].
9. Zhang Y, Chen C, Zhu S et al. [Isolation of 2019-nCoV from a stool specimen of a laboratory-confirmed case of the coronavirus disease 2019 (COVID-19)]. China CDC Weekly. 2020;2(8):123–4. (In Chinese)
10. van Doremalen N, Morris D, Bushmaker T et al. Aerosol and Surface Stability of SARS-CoV-2 as compared with SARS-CoV-1. New Engl J Med 2020 doi: 10.1056/NEJMc2004973
11. Cheng V, Wong S-C, Chen J, Yip C, Chuang V, Tsang O, et al. Escalating infection control response to the rapidly evolving epidemiology of the Coronavirus disease 2019 (COVID-19) due to SARS-CoV-2 in Hong Kong. Infect Control Hosp Epidemiol. 2020 Mar 5 [Epub ahead of print].
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 32-2 filed 05/20/20 PageID.521 Page 6 of 7 12. Ong SW, Tan YK, Chia PY, Lee TH, Ng OT, Wong MS, et al. Air, surface environmental, and personal
protective equipment contamination by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) from a symptomatic patient. JAMA. 2020
13. WHO Infection Prevention and Control Guidance for COVID-19 available at https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/infectionprevention-and-control
14. Surviving Sepsis Campaign: Guidelines on the Management of Critically Ill Adults with Coronavirus Disease 2019 (COVID-19). Intensive Care Medicine DOI: 10.1007/s00134-020-06022-5 https://www.sccm.org/SurvivingSepsisCampaign/Guidelines/COVID-19
15. Interim guidelines for the clinical management of COVID-19 in adults Australasian Society for Infectious Diseases Limited (ASID) https://www.asid.net.au/documents/item/1873
16. Coronavirus disease (COVID-19): For health professionals. https://www.canada.ca/en/publichealth/services/diseases/2019-novel-coronavirus-infection/health-professionals.html
17. Guidance on infection prevention and control for COVID-19 https://www.gov.uk/government/publications/wuhan-novel-coronavirus-infection-prevention-and-control
18. Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings. https://www.cdc.gov/coronavirus/2019ncov/infection-control/control-recommendations.html
19. Infection prevention and control for COVID-19 in healthcare settings https://www.ecdc.europa.eu/en/publications-data/infection-prevention-and-control-covid-19-healthcaresettings
20. Rational use of PPE for COVID-19. https://apps.who.int/iris/bitstream/handle/10665/331498/WHO-2019nCoV-IPCPPE_use-2020.2-eng.pdf
21. Risk factors of Healthcare Workers with Corona Virus Disease 2019: A Retrospective Cohort Study in a Designated Hospital of Wuhan in China. https://academic.oup.com/cid/advancearticle/doi/10.1093/cid/ciaa287/5808788
22. Infection Prevention and Control (IPC) for Novel Coronavirus (COVID-19) Course. https://openwho.org/courses/COVID-19-IPC-EN
WHO continues to monitor the situation closely for any changes that may affect this interim guidance. Should any factors change, WHO will issue a further update. Otherwise, this scientific brief will expire 2 years after the date of publication.
https://www.who.int/...mmentaries/detail/modes-of-transmission-of-virus-causing-covid-19-implications-for-ipc-precaution-recommendations[4/21/2020 1:35:23 PM]

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00323-PLM-PJG ECF No. 32-2 filed 05/20/20 PageID.522 Page 7 of 7 © World Health Organization 2020. Some rights reserved. This work is available under the CC BY-NC-SA 3.0 IGO license.
WHO reference number: WHO/2019-nCoV/Sci_Brief/Transmission_modes/2020.2
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Modes of transmission of virus causing COVID-19
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Case 1:20-cv-00323-PLM-PJG ECF No. 32-3 filed 05/20/20 PageID.523 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT C

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 32-3 filed 05/20/20 PageID.524 Page 2 of 5
Search


Coronavirus Disease 2019 (COVID-19)
Social Distancing

Keep Your Distance to Slow the Spread
OOtthherr LLaanngguaugaegses PPrriinnt PPaaggee
Limiting face-to-face contact with others is the best way to reduce the spread of coronavirus disease 2019 (COVID-19).
What is social distancing?
Social distancing, also called “physical distancing,” means keeping space between yourself and other people outside of your home. To practice social or physical distancing:
Stay at least 6 feet (2 meters) from other people Do not gather in groups Stay out of crowded places and avoid mass gatherings
In addition to everyday steps to prevent COVID-19, keeping space between you and others is one of the best tools we have to avoid being exposed to this virus and slowing its spread locally and across the country and world.
When COVID-19 is spreading in your area, everyone should limit close contact with individuals outside your household in indoor and outdoor spaces. Since people can spread the virus before they know they are sick, it is important to stay away from others when possible, even if you have no symptoms. Social distancing is especially important for people who are at higher risk of getting very sick.

Why practice social distancing?
COVID-19 spreads mainly among people who are in close contact (within about 6 feet) for a
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 32-3 filed 05/20/20 PageID.525 Page 3 of 5 prolonged period. Spread happens when an infected person coughs, sneezes, or talks, and droplets from their mouth or nose are launched into the air and land in the mouths or noses of people nearby. The droplets can also be inhaled into the lungs. Recent studies indicate that people who are infected but do not have symptoms likely also play a role in the spread of COVID-19.
It may be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their own mouth, nose, or eyes. However, this is not thought to be the main way the virus spreads. COVID-19 can live for hours or days on a surface, depending on factors such as sun light and humidity. Social distancing helps limit contact with infected people and contaminated surfaces.
Although the risk of severe illness may be different for everyone, anyone can get and spread COVID-19. Everyone has a role to play in slowing the spread and protecting themselves, their family, and their community.
Tips for social distancing
Follow guidance from authorities where you live. If you need to shop for food or medicine at the grocery store or pharmacy, stay at least 6 feet away from others.
Use mail-order for medications, if possible. Consider a grocery delivery service. Cover your mouth and nose with a cloth face cover when around others, including when you have to go out in public, for example to the grocery store.
Stay at least 6 feet between yourself and others, even when you wear a face covering.
Avoid large and small gatherings in private places and public spaces, such a friend’s house, parks, restaurants, shops, or any other place. This advice applies to people of any age, including teens and younger adults. Children should not have in-person playdates while school is out. To help maintain social connections while social distancing, learn tips to keep children healthy while school’s out. Work from home when possible. If possible, avoid using any kind of public transportation, ridesharing, or taxis. If you are a student or parent, talk to your school about options for digital/distance learning.
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 32-3 filed 05/20/20 PageID.526 Page 4 of 5 Stay connected while staying away. It is very important to stay in touch with friends and family that don’t live in your home. Call, video chat, or stay connected using social media. Everyone reacts differently to stressful situations and having to socially distance yourself from someone you love can be difficult. Read tips for stress and coping.
What is the difference between quarantine and isolation?
Quarantine
Quarantine is used to keep someone who might have been exposed to COVID-19 away from others. Someone in self-quarantine stays separated from others, and they limit movement outside of their home or current place. A person may have been exposed to the virus without knowing it (for example, when traveling or out in the community), or they could have the virus without feeling symptoms. Quarantine helps limit further spread of COVID-19.
Isolation
Isolation is used to separate sick people from healthy people. People who are in isolation should stay home. In the home, anyone sick should separate themselves from others by staying in a specific “sick” bedroom or space and using a different bathroom (if possible).
What should I do if I might have been exposed? If I feel sick? Or have confirmed COVID-19?
If you think you have been exposed to COVID-19, read about symptoms.
If you or someone in your home might have been exposed
Self-Monitor
Be alert for symptoms. Watch for fever,* cough, or shortness of breath.
Take your temperature if symptoms develop.
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00323-PLM-PJG ECF No. 32-3 filed 05/20/20 PageID.527 Page 5 of 5 Practice social distancing. Maintain 6 feet of distance from others, and stay out of crowded places. Follow CDC guidance if symptoms develop.
If you feel healthy but: Recently had close contact with a person with COVID-19, or Recently traveled from somewhere outside the U.S. or on a cruise ship or river boat
Self-Quarantine Check your temperature twice a day and watch for symptoms. Stay home for 14 days and selfmonitor. If possible, stay away from people who are high-risk for getting very sick from COVID-19.
If you: Have been diagnosed with COVID-19, or Are waiting for test results, or Have symptoms such as cough, fever, or shortness of breath
Self-Isolate
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html[4/21/2020 1:36:26 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.528 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT D

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.529 Page 2 of 7
SCIENCE |
SUBSSCUBSRCRIIBBE NEOWNOWAccount
› The Coronavirus Outbreak

LIVE 
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Flattening the Coronavirus Curve
One chart explains why slowing the spread of the infection is nearly as important as stopping it.
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.530 Page 3 of 7
The longer it takes for coronavirus to spread the population, the more time hospitals have to prepare. Drew Harris
By Siobhan Roberts March 27, 2020
At the end of February, Drew Harris, a population health analyst at Thomas Jefferson University in Philadelphia, had just flown across the country to visit his daughter in Eugene, Ore., when he saw an article on his Google news feed. It was from The Economist, and was about limiting the damage of the coronavirus. The accompanying art, by the visual-data journalist Rosamund Pearce, based on a graphic that had appeared in a C.D.C. paper titled “Community Mitigation Guidelines to Prevent Pandemic Influenza,” showed what Dr. Harris called two epi curves. One had a steep peak indicating a surge of coronavirus outbreak in the near term; the other had a flatter slope, indicating a more gradual rate of infection over a longer period of time. The gentler curve results in fewer people infected at this critical moment in time — preventing a surge that would inundate the healthcare system and ultimately, one hopes, resulting in fewer deaths. “What we need to do is flatten that down,” said Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, during the coronavirus task force briefing at the White House on a Tuesday evening in early March. “You do that with trying to interfere with the natural flow of the outbreak.” The infographic reminded Dr. Harris of something similar that he had designed years earlier for a pandemic preparedness training program. “Folks in the preparedness and public health community have been
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.531 Page 4 of 7
thinking about all of these issues for many years,” Dr. Harris said in an email. “Understanding and managing surge is an important part of preparedness.” But during the training course, Dr. Harris’s students had struggled with the concept of reducing the epidemic curve, so he added a dotted line indicating hospital capacity — “to make clear what was at stake,” he said.
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After his visit with his daughter, Dr. Harris was waiting for his return flight in Portland when the first Oregon coronavirus case was announced; he had dinner at a busy airport bar and thought about how quiet the place would be in a week or two when the reality of the outbreak set in. Once home, he recreated his graphic and posted it on Twitter and LinkedIn, and was pleased to see the enthusiastic interest in flattening the curve.
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“Now I know what going viral means,” Dr. Harris said. (For a more detailed analysis, see a recent paper in The Lancet, “How will country-based mitigation measures influence the course of the COVID-19 epidemic?”)
Help us report in critical moments. Subscribe today to support The Times
The following is an edited version of our email conversation.
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.532 Page 5 of 7
What does it mean to “flatten the curve”?
The ideal goal in fighting an epidemic or pandemic is to completely halt the spread. But merely slowing it — mitigation — is critical. This reduces the number of cases that are active at any given time, which in turn gives doctors, hospitals, police, schools and vaccine-manufacturers time to prepare and respond, without becoming overwhelmed. Most hospitals can function with 10 percent reduction in staff, but not with half their people out at once. Some commentators have argued for getting the outbreak over with quickly. That is a recipe for panic, unnecessary suffering and death. Slowing and spreading out the tidal wave of cases will save lives. Flattening the curve keeps society going.
What exactly do those two curves show?
Both curves add up the number of new cases over time. The more people reporting with the virus on a given day, the higher the curve; a high curve means the virus is spreading fast. A low curve shows that the virus is spreading slower — fewer people are diagnosed with the disease on any given day. Keeping the curve down — diminishing the rate at which new cases occur — prevents overtaxing the finite resources (represented by the dotted line) available to treat it.
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Think of the health care system capacity as a subway car that can only hold so many people at once. During rush hour, that capacity is not enough to handle the demand, so people must wait on the platform for their turn to ride. Staggering work hours diminishes the rush hour and increases the likelihood that you will get on the train and maybe even get a seat. Avoiding a surge of coronavirus cases can ensure that anyone who needs care will find it at the hospital.
Sign up to receive an email when we publish a new story about the coronavirus outbreak. SigSignn UUp p
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How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.533 Page 6 of 7
What sorts of mitigation measures help transform the red curve into the blue curve?
Diseases spread when one person gives it to one or more others, who go on to give it to more people, and so on. How fast this occurs depends on many factors, including how contagious the disease is, how many people are vulnerable and how quickly they get sick.
The difference between seasonal flu and coronavirus is that many people have full or partial immunity to the flu virus because they have had it before or were vaccinated against it. Far more people are vulnerable to coronavirus, so it has many more targets of opportunity to spread. Keeping people apart in time and space with social distancing measures, selfisolation and actual quarantine decreases opportunities for transmission.
To take the subway example again, a packed car — or a packed subway platform — is a great place to spread the virus. But reducing the number of people on the train or platform, by asking people to work from home or to stagger their working hours, enables individuals to stay farther apart, limiting the spread of the virus. That is social distancing in action.
Mitigation efforts keep people farther apart, making every transmission opportunity marginally less likely. This slows the spread. We should, and will, take the most vulnerable people out of the population altogether by keeping them totally separate. This is what Washington State is trying to do by limiting visitors to nursing homes. Think of this as a reverse quarantine.
What are you doing day-to-day in response to these unusual times?
Like most everyone else, I’m more aware of my surroundings and behaviors. I try to use a sleeve or elbow to open doors, and I wash my hands or use hand sanitizers after I touch a surface that might be contaminated. And I made sure to have a good supply of my prescription and nonprescription medications, just in case any shortages occur after the shutdown of Chinese pharmaceutical suppliers. I’m following the lead of my public health officials here in Philadelphia, where there is only one case as of Tuesday, and travel isn’t restricted. I’m avoiding crowds and sick people. I am going out, and will continue to do so unless a quarantine is ordered or public places are closed.
I know there is a good chance that I will catch the virus before a vaccine becomes available, but I also believe I’m very likely to do fine. I’m not in any high-risk group. But I worry about the more vulnerable folks and want
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 32-4 filed 05/20/20 PageID.534 Page 7 of 7
to do what I can to prevent the spread. I also worry about people who lack the resources I have. What happens to the self-employed, hourly workers and people in the gig economy when business stops? What about the homeless who depend upon charity and services for support? It’s these second-order effects that could be just as devastating if this epidemic really takes off.
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Coronavirus and statistics The Exponential Power of Now March 13, 2020
The Coronavirus, by the Numbers March 5, 2020
https://www.nytimes.com/article/flatten-curve-coronavirus.html[4/21/2020 1:37:03 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 32-5 filed 05/20/20 PageID.535 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT E

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-6 filed 05/20/20 PageID.538 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT F

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-7 filed 05/20/20 PageID.541 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT G

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-8 filed 05/20/20 PageID.545 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT H

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-9 filed 05/20/20 PageID.549 Page 1 of 9

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT I

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-10 filed 05/20/20 PageID.558 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT J

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT K

Case 1:20-cv-00323-PLM-PJG ECF No. 32-11 filed 05/20/20 PageID.570 Page 2 of 13
EXECUTIVE ORDER
No. 2020-59
Temporary requirement to suspend activities that are not necessary to sustain or protect life
Rescission of Executive Order 2020-42
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the three weeks that followed, the virus spread across Michigan, bringing deaths in the hundreds, confirmed cases in the thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945, provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
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To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe, and then extended that order through April 30, 2020, with Executive Order 2020-42. The orders limited gatherings and travel, and required all workers who are not necessary to sustain or protect life to stay home.
The measures put in place by Executive Orders 2020-21 and 2020-42 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on April 23, 2020, Michigan reported 35,291 confirmed cases and 2,977 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming inperson work and activities that were temporarily suspended under my prior orders. But in doing so, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone. Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-42, amend their scope, and extend their duration to May 15, 2020, unless modified earlier. With this order, Executive Order 2020-42 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
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(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 11 of this order.
(c) Workers who perform resumed activities are defined in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8, 9, and 10 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 11 of this order. Stores that are open for in-
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person sales must also adhere to the rules described in section 12 of this order.
(d) Any business or operation that employs workers who perform resumed activities under section 10(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to support those businesses and operations that are maintaining in-person activities under this order, are suspended.
(a) For purposes of this order, necessary government activities include activities performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders.
(b) Such activities also include, but are not limited to, public transit, trash pickup and disposal (including recycling and composting), activities necessary to manage and oversee elections, operations necessary to enable transactions that support the work of a business’s or operation’s critical infrastructure workers, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(c) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
(d) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 11 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
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(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 10 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 6 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 9(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
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(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(b) Individuals may also travel:
(1) To return to a home or place of residence from outside this state.
(2) To leave this state for a home or residence elsewhere.
(3) Between two residences in this state, including moving to a new residence.
(4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency.
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Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors:
(a) Health care and public health.
(b) Law enforcement, public safety, and first responders.
(c) Food and agriculture.
(d) Energy.
(e) Water and wastewater.
(f) Transportation and logistics.
(g) Public works.
(h) Communications and information technology, including news media.
(i) Other community-based government operations and essential functions.
(j) Critical manufacturing.
(k) Hazardous materials.
(l) Financial services.
(m) Chemical supply chains and safety.
(n) Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided
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that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
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(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of this order.
(d) Maintenance workers and groundskeepers who are necessary to maintain the safety and sanitation of places of outdoor recreation not otherwise closed under Executive Order 2020-43 or any order that may follow from it, provided that the places and their workers do not provide goods, equipment, supplies, or services to individuals, and subject to the enhanced social-distancing rules described in section 11(h) of this order.
(e) Workers for moving or storage operations, subject to the enhanced socialdistancing rules described in section 11(h) of this order.
11. Businesses, operations, and government agencies that remain open for in-person work must adhere to sound social distancing practices and measures, which include but are not limited to:
(a) Developing a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restricting the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
(c) Promoting remote work to the fullest extent possible.
(d) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
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(e) Increasing standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
(f) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(g) Any other social distancing practices and mitigation measures recommended by the CDC.
(h) For businesses and operations whose in-person work is permitted under sections 10(c) through 10(e) of this order, the following additional measures must also be taken:
(1) Barring gatherings of any size in which people cannot maintain six feet of distance from one another.
(2) Limiting in-person interaction with clients and patrons to the maximum extent possible, and barring any such interaction in which people cannot maintain six feet of distance from one another.
(3) Providing personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
(4) Adopting protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment, and frequently touched surfaces.
12. Any store that remains open for in-store sales under section 9(f) or section 10(c) of this order:
(a) Must establish lines to regulate entry in accordance with subsection (b) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
(b) Must adhere to the following restrictions:
(1) For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
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(2) For stores of more than 50,000 square feet, must:
(A) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
(B) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
(3) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in this subsection as necessary to protect the public health.
(c) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(d) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Effective on April 26, 2020 at 11:59 pm:
(a) Any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.
(b) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(c) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.
(d) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to persons who wear a mask under this order.
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16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for violating section 15(a) of this order.
17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 15, 2020 at 11:59 pm. Executive Order 2020-42 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 24, 2020 Time: 11:00 am

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT L

Case 1:20-cv-00323-PLM-PJG ECF No. 32-12 filed 05/20/20 PageID.583 Page 2 of 15
EXECUTIVE ORDER
No. 2020-70
Temporary requirement to suspend activities that are not necessary to sustain or protect life
Rescission of Executive Order 2020-59
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
In the weeks that followed, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the Emergency Powers of the Governor Act, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the Emergency Management Act.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations,
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

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and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. In Executive Orders 2020-42 and 2020-59, I extended that initial order, modifying its scope as needed and appropriate to match the everchanging circumstances presented by this pandemic.
The measures put in place by Executive Orders 2020-21, 2020-42, and 2020-59 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on April 30, 2020, Michigan reported 41,379 confirmed cases and 3,789 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming in-person work and activities that were temporarily suspended under my prior orders. In so doing, however, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone.
Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-59 and amend their scope. With Executive Order 2020-59, I ordered that certain previously suspended work and activities could resume, based on an evaluation of public health metrics and an assessment of the statewide risks and benefits. That evaluation remains ongoing, and based upon it, I find that we will soon be positioned to allow another segment of previously suspended work to resume. This work is permitted to resume on May 7, 2020, and includes construction, real-estate activities, and work that is traditionally and primarily performed outdoors. This work, like the resumed activities allowed under Executive Order 2020-59, will be subject to stringent precautionary measures. This partial and incremental reopening will allow my public health team to evaluate the effects of allowing these activities to resume, to assess the capacity of the health care system to respond adequately to any increases in infections, and to prepare for any increase in patients presenting to a health-care facility or provider. With this order, Executive Order 2020-59 is rescinded. This order will remain in effect until May 15, 2020.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any
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number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 11 of this order.
(c) Workers who perform resumed activities are defined in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8, 9, and 10 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave
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the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 11 of this order. Stores that are open for inperson sales must also adhere to the rules described in section 12 of this order.
(d) Any business or operation that employs workers who perform resumed activities under section 10(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
6. All in-person government activities at whatever level (state, county, or local) are suspended unless:
(a) They are performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders, as defined in sections 8 and 9 of this order.
(b) They are performed by workers who are permitted to resume work under section 10 of this order.
(c) They are necessary to support the activities of workers described in sections 8, 9, and 10 of this order, or to enable transactions that support businesses or operations that employ such workers.
(d) They involve public transit, trash pick-up and disposal (including recycling and composting), the management and oversight of elections, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(e) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
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(f) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 11 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 10 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 6 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the
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safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 9(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(17) To view a real-estate listing by appointment, as permitted under section 10(h) of this order.
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(b) Individuals may also travel: (1) To return to a home or place of residence from outside this state. (2) To leave this state for a home or residence elsewhere. (3) Between two residences in this state, including moving to a new residence. (4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals. 8. For purposes of this order, critical infrastructure workers are those workers
described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency. Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors: (a) Health care and public health. (b) Law enforcement, public safety, and first responders. (c) Food and agriculture. (d) Energy. (e) Water and wastewater. (f) Transportation and logistics. (g) Public works. (h) Communications and information technology, including news media. (i) Other community-based government operations and essential functions. (j) Critical manufacturing. (k) Hazardous materials. (l) Financial services. (m) Chemical supply chains and safety.
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(n) Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy
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individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(h) of this order.
(d) Maintenance workers and groundskeepers who are necessary to maintain the safety and sanitation of places of outdoor recreation not otherwise closed under Executive Order 2020-69 or any order that may follow from it, provided that the places and their workers do not provide goods, equipment, supplies, or services to individuals, and subject to the enhanced social-distancing rules described in section 11(h) of this order.
(e) Workers for moving or storage operations, subject to the enhanced socialdistancing rules described in section 11(h) of this order.
(f) Effective at 12:01 am on May 7, 2020, and subject to the enhanced socialdistancing rules described in section 11(h) of this order, workers who perform
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work that is traditionally and primarily performed outdoors, including but not limited to forestry workers, outdoor power equipment technicians, parking enforcement workers, and similar workers.
(g) Effective at 12:01 am on May 7, 2020, workers in the construction industry, including workers in the building trades (plumbers, electricians, HVAC technicians, and similar workers), subject to the enhanced social-distancing rules described in section 11(i) of this order.
(h) Effective at 12:01 am on May 7, 2020, workers in the real-estate industry, including agents, appraisers, brokers, inspectors, surveyors, and registers of deeds, provided that:
(1) Any showings, inspections, appraisals, photography or videography, or final walk-throughs must be performed by appointment and must be limited to no more than four people on the premises at any one time. No in-person open houses are permitted.
(2) Private showings may only be arranged for owner-occupied homes, vacant homes, vacant land, commercial property, and industrial property.
(i) Effective at 12:01 am on May 7, 2020, workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections.
11. Businesses, operations, and government agencies that remain open for in-person work must, at a minimum:
(a) Develop a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restrict the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
(c) Promote remote work to the fullest extent possible.
(d) Keep workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
(e) Increase standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
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(f) Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(g) Adopt any other social distancing practices and mitigation measures recommended by the CDC.
(h) Businesses or operations whose in-person work is permitted under sections 10(c) through 10(f) of this order must also:
(1) Prohibit gatherings of any size in which people cannot maintain six feet of distance from one another.
(2) Limit in-person interaction with clients and patrons to the maximum extent possible, and barring any such interaction in which people cannot maintain six feet of distance from one another.
(3) Provide personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
(4) Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning of tools, equipment, and frequently touched surfaces.
(i) Businesses or operations in the construction industry must also:
(1) Adhere to all of the provisions in subsection (h) of this section.
(2) Designate a site-specific supervisor to monitor and oversee the implementation of COVID-19 control strategies developed under subsection (a) of this section. The supervisor must remain on-site at all times during activities. An on-site worker may be designated to perform the supervisory role.
(3) Conduct a daily entry screening protocol for workers and visitors entering the worksite, including a questionnaire covering symptoms and exposure to people with possible COVID-19, together with, if possible, a temperature screening.
(4) Create dedicated entry point(s) at every worksite, if possible, for daily screening as provided in subprovision (3) of this subsection, or in the alternative issue stickers or other indicators to workers to show that they received a screening before entering the worksite that day.
(5) Require face shields or masks to be worn when workers cannot consistently maintain six feet of separation from other workers.
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(6) Provide instructions for the distribution of personal protective equipment and designate on-site locations for soiled masks.
(7) Encourage or require the use of work gloves, as appropriate, to prevent skin contact with contaminated surfaces.
(8) Identify choke points and high-risk areas where workers must stand near one another (such as hallways, hoists and elevators, break areas, water stations, and buses) and control their access and use (including through physical barriers) so that social distancing is maintained.
(9) Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers.
(10) Notify contractors (if a subcontractor) or owners (if a contractor) of any confirmed COVID-19 cases among workers at the worksite.
(11) Restrict unnecessary movement between project sites.
(12) Create protocols for minimizing personal contact upon delivery of materials to the worksite.
12. Any store that remains open for in-store sales under section 9(f) or section 10(c) of this order:
(a) Must establish lines to regulate entry in accordance with subsection (b) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
(b) Must adhere to the following restrictions:
(1) For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal.
(2) For stores of more than 50,000 square feet, must:
(A) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
(B) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
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(3) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in this subsection as necessary to protect the public health.
(c) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(d) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Rules governing face coverings.
(a) Any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.
(b) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(c) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers who interact with the public.
(d) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to individuals who wear a face covering under this order.
16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for violating section 15(a) of this order.
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17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 15, 2020 at 11:59 pm. Executive Order 2020-59 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.

Date: May 1, 2020 Time: 2:49 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT M

Case 1:20-cv-00323-PLM-PJG ECF No. 32-13 filed 05/20/20 PageID.598 Page 2 of 18
EXECUTIVE ORDER
No. 2020-77
Temporary requirement to suspend certain activities that are not necessary to sustain or protect life
Rescission of Executive Order 2020-70
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the Emergency Powers of the Governor Act, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the Emergency Management Act.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations,
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and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. In Executive Orders 2020-42, 2020-59, and 2020-70, I extended that initial order, modifying its scope as needed and appropriate to match the ever-changing circumstances presented by this pandemic.
The measures put in place by Executive Orders 2020-21, 2020-42, 2020-59, and 2020-70 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 6, 2020, Michigan reported 45,054 confirmed cases and 4,250 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming in-person work and activities that were temporarily suspended under my prior orders. In so doing, however, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone.
Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-70 and amend their scope. With Executive Order 2020-70, I ordered that certain previously suspended work and activities could resume, based on an evaluation of public health metrics and an assessment of the statewide risks and benefits. That evaluation remains ongoing, and based upon it, I find that we will soon be positioned to allow another segment of previously suspended work to resume: manufacturing work. This work, like the resumed activities allowed under Executive Order 2020-70, will be subject to stringent precautionary measures. This partial and incremental reopening will allow my public health team to evaluate the effects of allowing these activities to resume, to assess the capacity of the health care system to respond adequately to any increases in infections, and to prepare for any increase in patients presenting to a health-care facility or provider. With this order, Executive Order 2020-70 is rescinded. This order will remain in effect until May 28, 2020.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any
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number of people occurring among persons not part of a single household are prohibited.
3. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
4. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 8 and 9 of this order.
(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in section 11 of this order.
(c) Workers who perform resumed activities are defined in section 10 of this order.
5. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 8, 9, and 10 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave
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the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6 of this order.
(3) Workers and volunteers described in section 9(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in section 11 of this order. Stores that are open for inperson sales must also adhere to the rules described in section 12 of this order.
(d) Any business or operation that employs workers who perform resumed activities under section 10(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
6. All in-person government activities at whatever level (state, county, or local) are suspended unless:
(a) They are performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders, as defined in sections 8 and 9 of this order.
(b) They are performed by workers who are permitted to resume work under section 10 of this order.
(c) They are necessary to support the activities of workers described in sections 8, 9, and 10 of this order, or to enable transactions that support businesses or operations that employ such workers.
(d) They involve public transit, trash pick-up and disposal (including recycling and composting), the management and oversight of elections, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(e) For purposes of this order, necessary government activities include minimum basic operations, as described in section 4(b) of this order. Workers performing such activities need not be designated.
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(f) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in section 11 of this order.
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 5(a) of this order may leave their home for work without being designated.)
(3) To conduct minimum basic operations, as described in section 4(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 10 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 6 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the
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safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 9(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(17) To view a real-estate listing by appointment, as permitted under section 10(g) of this order.
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(18) To participate in training, credentialing, or licensing activities permitted under section 10(i) of this order.
(b) Individuals may also travel: (1) To return to a home or place of residence from outside this state. (2) To leave this state for a home or residence elsewhere. (3) Between two residences in this state, including moving to a new residence. (4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals. 8. For purposes of this order, critical infrastructure workers are those workers
described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency. Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors: (a) Health care and public health. (b) Law enforcement, public safety, and first responders. (c) Food and agriculture. (d) Energy. (e) Water and wastewater. (f) Transportation and logistics. (g) Public works. (h) Communications and information technology, including news media. (i) Other community-based government operations and essential functions. (j) Critical manufacturing. (k) Hazardous materials. (l) Financial services.
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(m) Chemical supply chains and safety.
(n) Defense industrial base.
9. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in subprovision (1) of this subsection may designate their workers as critical infrastructure workers provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under subprovision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
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(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
10. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations, subject to the enhanced social-distancing rules described in section 11(i) of this order.
(d) Workers for moving or storage operations, subject to the enhanced socialdistancing rules described in section 11(i) of this order.
(e) Subject to the enhanced social-distancing rules described in section 11(i) of this order, workers who perform work that is traditionally and primarily performed outdoors, including but not limited to forestry workers, outdoor power equipment technicians, parking enforcement workers, and outdoor workers at places of outdoor recreation not otherwise closed under Executive Order 2020-69 or any order that may follow from it.
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(f) Workers in the construction industry, including workers in the building trades (plumbers, electricians, HVAC technicians, and similar workers), subject to the workplace safeguards described in section 11(j) of this order.
(g) Workers in the real-estate industry, including agents, appraisers, brokers, inspectors, surveyors, and registers of deeds, provided that:
(1) Any showings, inspections, appraisals, photography or videography, or final walk-throughs must be performed by appointment and must be limited to no more than four people on the premises at any one time. No in-person open houses are permitted.
(2) Private showings may only be arranged for owner-occupied homes, vacant homes, vacant land, commercial property, and industrial property.
(h) Workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections.
(i) Workers necessary to train, credential, and license first responders (e.g., police officers, fire fighters, paramedics) and health-care workers, including certified nursing assistants, provided that as much instruction as possible is provided remotely.
(j) Workers necessary to perform start-up activities at manufacturing facilities, including activities necessary to prepare the facilities to follow the workplace safeguards described in section 11(k) of this order.
(k) Effective at 12:01 am on May 11, 2020, workers necessary to perform manufacturing activities, subject to the workplace safeguards described in section 11(k) of this order. Manufacturing work may not commence under this subsection until the facility at which the work will be performed has been prepared to follow the workplace safeguards described in section 11(k) of this order.
(l) Consistent with section 9(b) of this order, workers at suppliers, distribution centers, or service providers whose in-person presence is necessary to enable, support, or facilitate another business’s or operation’s resumed activities, including workers at suppliers, distribution centers, or service providers along the supply chain whose in-person presence is necessary enable, support, or facilitate the necessary work of another supplier, distribution center, or service provider in enabling, supporting, or facilitating another business’s or operation’s resumed activities. Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
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11. Businesses, operations, and government agencies that remain open for in-person work must, at a minimum:
(a) Develop a COVID-19 preparedness and response plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration and available here. Such plan must be available at company headquarters or the worksite.
(b) Restrict the number of workers present on premises to no more than is strictly necessary to perform the in-person work permitted under this order.
(c) Promote remote work to the fullest extent possible.
(d) Keep workers and patrons who are on premises at least six feet from one another to the maximum extent possible.
(e) Require masks to be worn when workers cannot consistently maintain six feet of separation from other individuals in the workplace, and consider face shields when workers cannot consistently maintain three feet of separation from other individuals in the workplace.
(f) Increase standards of facility cleaning and disinfection to limit worker and patron exposure to COVID-19, as well as adopting protocols to clean and disinfect in the event of a positive COVID-19 case in the workplace.
(g) Adopt policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person with a confirmed diagnosis of COVID-19.
(h) Adopt any other social distancing practices and mitigation measures recommended by the CDC.
(i) Businesses or operations whose in-person work is permitted under sections 10(c) through 10(e) of this order must also:
(1) Prohibit gatherings of any size in which people cannot maintain six feet of distance from one another.
(2) Limit in-person interaction with clients and patrons to the maximum extent possible, and bar any such interaction in which people cannot maintain six feet of distance from one another.
(3) Provide personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed.
(4) Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough
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cleaning and disinfection of tools, equipment, and frequently touched surfaces.
(j) Businesses or operations in the construction industry must also:
(1) Adhere to all of the provisions in subsection (i) of this section.
(2) Designate a site-specific supervisor to monitor and oversee the implementation of COVID-19 control strategies developed under subsection (a) of this section. The supervisor must remain on-site at all times during activities. An on-site worker may be designated to perform the supervisory role.
(3) Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering a worksite, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.
(4) Create dedicated entry point(s) at every worksite, if possible, for daily screening as provided in subprovision (3) of this subsection, or in the alternative issue stickers or other indicators to workers to show that they received a screening before entering the worksite that day.
(5) Provide instructions for the distribution of personal protective equipment and designate on-site locations for soiled masks.
(6) Encourage or require the use of work gloves, as appropriate, to prevent skin contact with contaminated surfaces.
(7) Identify choke points and high-risk areas where workers must stand near one another (such as hallways, hoists and elevators, break areas, water stations, and buses) and control their access and use (including through physical barriers) so that social distancing is maintained.
(8) Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers.
(9) Notify contractors (if a subcontractor) or owners (if a contractor) of any confirmed COVID-19 cases among workers at the worksite.
(10) Restrict unnecessary movement between project sites.
(11) Create protocols for minimizing personal contact upon delivery of materials to the worksite.
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(k) Manufacturing facilities must also:
(1) Conduct a daily entry screening protocol for workers, contractors, suppliers, and any other individuals entering the facility, including a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with temperature screening as soon as no-touch thermometers can be obtained.
(2) Create dedicated entry point(s) at every facility for daily screening as provided in subprovision (1) of this subsection, and ensure physical barriers are in place to prevent anyone from bypassing the screening.
(3) Suspend all non-essential in-person visits, including tours.
(4) Train workers on, at a minimum:
(A) Routes by which the virus causing COVID-19 is transmitted from person to person.
(B) Distance that the virus can travel in the air, as well as the time it remains viable in the air and on environmental surfaces.
(C) Symptoms of COVID-19.
(D) Steps the worker must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19.
(E) Measures that the facility is taking to prevent worker exposure to the virus, as described in the COVID-19 preparedness and response plan required under section 11(a) of this order.
(F) Rules that the worker must follow in order to prevent exposure to and spread of the virus.
(G) The use of personal protective equipment, including the proper steps for putting it on and taking it off.
(5) Reduce congestion in common spaces wherever practicable by, for example, closing salad bars and buffets within cafeterias and kitchens, requiring individuals to sit at least six feet from one another, placing markings on the floor to allow social distancing while standing in line, offering boxed food via delivery or pick-up points, and reducing cash payments.
(6) Implement rotational shift schedules where possible (e.g., increasing the number of shifts, alternating days or weeks) to reduce the number of workers in the facility at the same time.
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(7) Stagger start times and meal times.
(8) Install temporary physical barriers, where practicable, between work stations and cafeteria tables.
(9) Create protocols for minimizing personal contact upon delivery of materials to the facility.
(10) Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible.
(11) Frequently and thoroughly clean and disinfect high-touch surfaces, paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).
(12) Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by workers, and discontinue use of hand dryers.
(13) Notify plant leaders and potentially exposed individuals upon identification of a positive case of COVID-19 in the facility, as well as maintain a central log for symptomatic workers or workers who received a positive test for COVID-19.
(14) Send potentially exposed individuals home upon identification of a positive case of COVID-19 in the facility.
(15) Encourage workers to self-report to plant leaders as soon as possible after developing symptoms of COVID-19.
(16) Shut areas of the manufacturing facility for cleaning and disinfection, as necessary, if a worker goes home because he or she is displaying symptoms of COVID-19.
12. Any store that remains open for in-store sales under section 9(f) or section 10(c) of this order:
(a) Must establish lines to regulate entry in accordance with subsection (b) of this section, with markings for patrons to enable them to stand at least six feet apart from one another while waiting. Stores should also explore alternatives to lines, including by allowing customers to wait in their cars for a text message or phone call, to enable social distancing and to accommodate seniors and those with disabilities.
(b) Must adhere to the following restrictions:
(1) For stores of less than 50,000 square feet of customer floor space, must limit the number of people in the store (including employees) to 25% of
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the total occupancy limits established by the State Fire Marshal or a local fire marshal.
(2) For stores of more than 50,000 square feet, must:
(A) Limit the number of customers in the store at one time (excluding employees) to 4 people per 1,000 square feet of customer floor space.
(B) Create at least two hours per week of dedicated shopping time for vulnerable populations, which for purposes of this order are people over 60, pregnant women, and those with chronic conditions like heart disease, diabetes, and lung disease.
(3) The director of the Department of Health and Human Services is authorized to issue an emergency order varying the capacity limits described in this subsection as necessary to protect the public health.
(c) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(d) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Rules governing face coverings.
(a) Except as provided in subsection (b) of this section, any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief— when in any enclosed public space.
(b) An individual may be required to temporarily remove a face covering upon entering an enclosed public space for identification purposes.
(c) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(d) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire
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fighters, paramedics), and other critical workers who interact with the public.
(e) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to individuals who wear a face covering under this order.
16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for engaging in or traveling to engage in religious worship at a place of religious worship, or for violating section 15(a) of this order.
17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority. Similarly, nothing in this order shall be taken to abridge protections guaranteed by the state or federal constitution under these emergency circumstances.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 28, 2020 at 11:59 pm. Executive Order 2020-70 is rescinded. All references to that order in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
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Case 1:20-cv-00323-PLM-PJG ECF No. 32-13 filed 05/20/20 PageID.614 Page 18 of 18 Given under my hand and the Great Seal of the State of Michigan.

Date: May 7, 2020 Time: 3:00 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-14 filed 05/20/20 PageID.615 Page 1 of 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT N

Case 1:20-cv-00323-PLM-PJG ECF No. 32-14 filed 05/20/20 PageID.616 Page 2 of 14
EXECUTIVE ORDER
No. 2020-92
Temporary requirement to suspend certain activities that are not necessary to sustain or protect life
Rescission of Executive Orders 2020-77 and 2020-90
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. There is currently no approved vaccine or antiviral treatment for this disease.
On March 10, 2020, the Department of Health and Human Services identified the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4. This order declared a state of emergency across the state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
Since then, the virus spread across Michigan, bringing deaths in the thousands, confirmed cases in the tens of thousands, and deep disruption to this state’s economy, homes, and educational, civic, social, and religious institutions. On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the State of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the Emergency Management Act, and the Emergency Powers of the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the Emergency Powers of the Governor Act, as well as Executive Order 2020-68 to issue new emergency and disaster declarations under the Emergency Management Act.
The Emergency Management Act vests the governor with broad powers and duties to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency,” which the governor may implement through “executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2). Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after declaring a state of
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Case 1:20-cv-00323-PLM-PJG ECF No. 32-14 filed 05/20/20 PageID.617 Page 3 of 14
emergency, “the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order 2020-21, ordering all people in Michigan to stay home and stay safe. In Executive Orders 2020-42, 2020-59, 2020-70, and 2020-77, I extended that initial order, modifying its scope as needed and appropriate to match the ever-changing circumstances presented by this pandemic.
The measures put in place by Executive Orders 2020-21, 2020-42, 2020-59, 2020-70, and 2020-77 have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 17, 2020, Michigan reported 51,142 confirmed cases and 4,891 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming in-person work and activities that were temporarily suspended under my prior orders. In so doing, however, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone.
Accordingly, with this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-77. The order is being reissued to omit worker safeguards that were included in prior versions of this order but which have now been adopted in Executive Order 2020-91, a standalone order on worker protection. It has also been amended to allow, in two regions, social gatherings of up to 10 people and to permit the reopening of retail stores, offices, and restaurants and bars with limited seating. Finally, the order incorporates and replaces Executive Order 2020-90, which allowed research laboratories to resume activities.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
2. For purposes of this order, Michigan comprises eight separate regions:
(a) Region 1 includes the following counties: Monroe, Washtenaw, Livingston, Genesee, Lapeer, Saint Clair, Oakland, Macomb, and Wayne.
(b) Region 2 includes the following counties: Mason, Lake, Osceola, Clare, Oceana, Newaygo, Mecosta, Isabella, Muskegon, Montcalm, Ottawa, Kent, and Ionia.
(c) Region 3 includes the following counties: Allegan, Barry, Van Buren, Kalamazoo, Calhoun, Berrien, Cass, Saint Joseph, and Branch.
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(d) Region 4 includes the following counties: Oscoda, Alcona, Ogemaw, Iosco, Gladwin, Arenac, Midland, Bay, Saginaw, Tuscola, Sanilac, and Huron.
(e) Region 5 includes the following counties: Gratiot, Clinton, Shiawassee, Eaton, and Ingham.
(f) Region 6 includes the following counties: Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle, and Emmet.
(g) Region 7 includes the following counties: Hillsdale, Lenawee, and Jackson.
(h) Region 8 includes the following counties: Gogebic, Ontonagon, Houghton, Keweenaw, Iron, Baraga, Dickinson, Marquette, Menominee, Delta, Alger, Schoolcraft, Luce, Mackinac, and Chippewa.
3. Subject to the exceptions in section 8 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited.
4. All individuals who leave their home or place of residence must adhere to social distancing measures recommended by the Centers for Disease Control and Prevention (“CDC”), including remaining at least six feet from people from outside the individual’s household to the extent feasible under the circumstances.
5. No person or entity shall operate a business or conduct operations that require workers to leave their homes or places of residence except to the extent that those workers are necessary to sustain or protect life, to conduct minimum basic operations, or to perform a resumed activity within the meaning of this order.
(a) For purposes of this order, workers who are necessary to sustain or protect life are defined as “critical infrastructure workers,” as described in sections 9 and 10 of this order.
(b) For purposes of this order, workers who are necessary to conduct minimum basic operations are those whose in-person presence is strictly necessary to allow the business or operation to maintain the value of inventory and equipment, care for animals, ensure security, process transactions (including payroll and employee benefits), or facilitate the ability of other workers to work remotely.
Businesses and operations must determine which of their workers are necessary to conduct minimum basic operations and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work.
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Any in-person work necessary to conduct minimum basic operations must be performed consistently with the social distancing practices and other mitigation measures described in Executive Order 2020-91 and any orders that follow or replace it.
(c) Workers who perform resumed activities are defined in section 11 of this order.
6. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following conditions:
(a) Consistent with sections 9, 10, and 11 of this order, businesses and operations must determine which of their workers are critical infrastructure workers or workers who perform resumed activities and inform such workers of that designation. Businesses and operations must make such designations in writing, whether by electronic message, public website, or other appropriate means. Workers need not carry copies of their designations when they leave the home or place of residence for work. Businesses and operations need not designate:
(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 7 of this order.
(3) Workers and volunteers described in section 10(d) of this order.
(b) In-person activities that are not necessary to sustain or protect life or to perform a resumed activity must be suspended.
(c) Businesses and operations maintaining in-person activities must adopt social distancing practices and other mitigation measures to protect workers and patrons, as described in Executive Order 2020-91 and any orders that follow or replace it.
(d) Any business or operation that employs workers who perform resumed activities under section 11(a) of this order, but that does not sell necessary supplies, may sell any goods through remote sales via delivery or at the curbside. Such a business or operation, however, must otherwise remain closed to the public.
7. All in-person government activities at whatever level (state, county, or local) are suspended unless:
(a) They are performed by critical infrastructure workers, including workers in law enforcement, public safety, and first responders, as defined in sections 9 and 10 of this order.
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(b) They are performed by workers who are permitted to resume work under section 11 of this order.
(c) They are necessary to support the activities of workers described in sections 9, 10, and 11 of this order, or to enable transactions that support businesses or operations that employ such workers.
(d) They involve public transit, trash pick-up and disposal (including recycling and composting), the management and oversight of elections, and the maintenance of safe and sanitary public parks so as to allow for outdoor activity permitted under this order.
(e) For purposes of this order, necessary government activities include minimum basic operations, as described in 5(b) of this order. Workers performing such activities need not be designated.
(f) Any in-person government activities must be performed consistently with the social distancing practices and other mitigation measures to protect workers and patrons described in Executive Order 2020-91 and any orders that follow or replace it.
8. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor recreational activity, consistent with remaining at least six feet from people from outside the individual’s household. Outdoor recreational activity includes walking, hiking, running, cycling, boating, golfing, or other similar activity, as well as any comparable activity for those with limited mobility.
(2) To perform their jobs as critical infrastructure workers after being so designated by their employers. (Critical infrastructure workers who need not be designated under section 6(a) of this order may leave their home for work without being designated.)
(3) To conduct minimum basic operations, as described in section 5(b) of this order, after being designated to perform such work by their employers.
(4) To perform resumed activities, as described in section 11 of this order, after being designated to perform such work by their employers.
(5) To perform necessary government activities, as described in section 7 of this order.
(6) To perform tasks that are necessary to their health and safety, or to the health and safety of their family or household members (including pets). Individuals may, for example, leave the home or place of residence to secure medication or to seek medical or dental care that is necessary to address a
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medical emergency or to preserve the health and safety of a household or family member (including in-person procedures or veterinary services that, in accordance with a duly implemented non-essential procedure or veterinary services postponement plan, have not been postponed).
(7) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their motor vehicles.
(A) Individuals must secure such services or supplies via delivery to the maximum extent possible. As needed, however, individuals may leave the home or place of residence to purchase groceries, take-out food, gasoline, needed medical supplies, and any other products necessary to maintain the safety, sanitation, and basic operation of their residences or motor vehicles.
(B) Individuals may also leave the home to pick up or return a motor vehicle as permitted under section 10(i) of this order, or to have a motor vehicle or bicycle repaired or maintained.
(C) Individuals should limit, to the maximum extent that is safe and feasible, the number of household members who leave the home for any errands.
(8) To pick up non-necessary supplies at the curbside from a store that must otherwise remain closed to the public.
(9) To care for a family member or a family member’s pet in another household.
(10) To care for minors, dependents, the elderly, persons with disabilities, or other vulnerable persons.
(11) To visit an individual under the care of a health care facility, residential care facility, or congregate care facility, to the extent otherwise permitted.
(12) To visit a child in out-of-home care, or to facilitate a visit between a parent and a child in out-of-home care, when there is agreement between the child placing agency, the parent, and the caregiver about a safe visitation plan, or when, failing such agreement, the individual secures an exception from the executive director of the Children’s Services Agency.
(13) To attend legal proceedings or hearings for essential or emergency purposes as ordered by a court.
(14) To work or volunteer for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(15) To attend a funeral, provided that no more than 10 people are in attendance.
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(16) To attend a meeting of an addiction recovery mutual aid society, provided that no more than 10 people are in attendance.
(17) To view a real-estate listing by appointment, as permitted under section 11(g) of this order.
(18) To participate in training, credentialing, or licensing activities permitted under section 11(i) of this order.
(19) For individuals in Regions 6 or 8, to go to a restaurant or a retail store or to attend a social gathering of up to 10 people.
(b) Individuals may also travel: (1) To return to a home or place of residence from outside this state. (2) To leave this state for a home or residence elsewhere. (3) Between two residences in this state, including moving to a new residence. (4) As required by law enforcement or a court order, including the transportation of children pursuant to a custody agreement.
(c) All other travel is prohibited, including all travel to vacation rentals. 9. For purposes of this order, critical infrastructure workers are those workers
described by the Director of the U.S. Cybersecurity and Infrastructure Security Agency in his guidance of March 19, 2020 on the COVID-19 response (available here). This order does not adopt any subsequent guidance document released by this same agency. Consistent with the March 19, 2020 guidance document, critical infrastructure workers include some workers in each of the following sectors: (a) Health care and public health. (b) Law enforcement, public safety, and first responders. (c) Food and agriculture. (d) Energy. (e) Water and wastewater. (f) Transportation and logistics. (g) Public works.
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(h) Communications and information technology, including news media.
(i) Other community-based government operations and essential functions.
(j) Critical manufacturing.
(k) Hazardous materials.
(l) Financial services.
(m)Chemical supply chains and safety.
(n) Defense industrial base.
10. For purposes of this order, critical infrastructure workers also include:
(a) Child care workers (including workers at disaster relief child care centers), but only to the extent necessary to serve the children or dependents of critical infrastructure workers, workers who conduct minimum basic operations, workers who perform necessary government activities, or workers who perform resumed activities. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of such workers.
(b) Workers at suppliers, distribution centers, or service providers, as described below.
(1) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate another business’s or operation’s critical infrastructure work may designate their workers as critical infrastructure workers, provided that only those workers whose inperson presence is necessary to enable, support, or facilitate such work may be so designated.
(2) Any suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the necessary work of suppliers, distribution centers, or service providers described in sub-provision (1) of this subsection may designate their workers as critical infrastructure workers provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
(3) Consistent with the scope of work permitted under sub-provision (2) of this subsection, any suppliers, distribution centers, or service providers further down the supply chain whose continued operation is necessary to enable, support, or facilitate the necessary work of other suppliers, distribution centers, or service providers may likewise designate their workers as critical infrastructure workers, provided that only those workers whose in-person presence is necessary to enable, support, or facilitate such work may be so designated.
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(4) Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
(c) Workers in the insurance industry, but only to the extent that their work cannot be done by telephone or remotely.
(d) Workers and volunteers for businesses or operations (including both religious and secular nonprofit organizations) that provide food, shelter, and other necessities of life for economically disadvantaged or otherwise needy individuals, individuals who need assistance as a result of this emergency, and people with disabilities.
(e) Workers who perform critical labor union functions, including those who administer health and welfare funds and those who monitor the well-being and safety of union members who are critical infrastructure workers, provided that any administration or monitoring should be done by telephone or remotely where possible.
(f) Workers at retail stores who sell groceries, medical supplies, and products necessary to maintain the safety, sanitation, and basic operation of residences or motor vehicles, including convenience stores, pet supply stores, auto supplies and repair stores, hardware and home maintenance stores, and home appliance retailers.
(g) Workers at laundromats, coin laundries, and dry cleaners.
(h) Workers at hotels and motels, provided that the hotels or motels do not offer additional in-house amenities such as gyms, pools, spas, dining, entertainment facilities, meeting rooms, or like facilities.
(i) Workers at motor vehicle dealerships who are necessary to facilitate remote and electronic sales or leases, or to deliver motor vehicles to customers, provided that showrooms remain closed to in-person traffic.
11. For purposes of this order, workers who perform resumed activities are defined as follows:
(a) Workers who process or fulfill remote orders for goods for delivery or curbside pick-up.
(b) Workers who perform bicycle maintenance or repair.
(c) Workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations.
(d) Workers for moving or storage operations.
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(e) Workers who perform work that is traditionally and primarily performed outdoors, including but not limited to forestry workers, outdoor power equipment technicians, parking enforcement workers, and outdoor workers at places of outdoor recreation not otherwise closed under Executive Order 2020-69 or any order that may follow from it.
(f) Workers in the construction industry, including workers in the building trades (plumbers, electricians, HVAC technicians, and similar workers).
(g) Workers in the real-estate industry, including agents, appraisers, brokers, inspectors, surveyors, and registers of deeds, provided that:
(1) Any showings, inspections, appraisals, photography or videography, or final walk-throughs must be performed by appointment and must be limited to no more than four people on the premises at any one time. No in-person open houses are permitted.
(2) Private showings may only be arranged for owner-occupied homes, vacant homes, vacant land, commercial property, and industrial property.
(h) Workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections.
(i) Workers necessary to train, credential, and license first responders (e.g., police officers, fire fighters, paramedics) and health-care workers, including certified nursing assistants, provided that as much instruction as possible is provided remotely.
(j) Workers necessary to perform manufacturing activities. Manufacturing work may not commence under this subsection until the facility at which the work will be performed has been prepared to follow the workplace safeguards described in section 4 of Executive Order 2020-91 and any orders that follow or replace it.
(k) Workers necessary to conduct research activities in a laboratory setting.
(l) For Regions 6 and 8, beginning at 12:01 am on May 22, workers necessary to perform retail activities. For purposes of this order, retail activities are defined to exclude those places of public accommodation that are closed under Executive Order 2020-69 and any orders that follow or replace it.
(m)For Regions 6 and 8, beginning at 12:01 am on May 22, workers who work in an office setting, but only to the extent that such work is not capable of being performed remotely.
(n) For Regions 6 and 8, beginning at 12:01 am on May 22, workers in restaurants or bars, subject to the capacity constraints and workplace standards described in Executive Order 2020-91. Nothing in this subsection should be taken to abridge or otherwise modify the existing power of a local government to impose further restrictions on restaurants or bars.
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Case 1:20-cv-00323-PLM-PJG ECF No. 32-14 filed 05/20/20 PageID.626 Page 12 of 14
(o) Workers necessary to prepare a workplace to follow the workplace standards described in Executive Order 2020-91.
(p) Consistent with section 10(b) of this order, workers at suppliers, distribution centers, or service providers whose in-person presence is necessary to enable, support, or facilitate another business’s or operation’s resumed activities, including workers at suppliers, distribution centers, or service providers along the supply chain whose in-person presence is necessary to enable, support, or facilitate the necessary work of another supplier, distribution center, or service provider in enabling, supporting, or facilitating another business’s or operation’s resumed activities. Suppliers, distribution centers, and service providers that abuse their designation authority under this subsection shall be subject to sanctions to the fullest extent of the law.
12. Any store that is open for in-store sales under section 10(f) or section 11(c) of this executive order:
(a) May continue to sell goods other than necessary supplies if the sale of such goods is in the ordinary course of business.
(b) Must consider establishing curbside pick-up to reduce in-store traffic and mitigate outdoor lines.
13. No one shall rent a short-term vacation property except as necessary to assist in housing a health care professional aiding in the response to the COVID-19 pandemic or a volunteer who is aiding the same.
14. Michigan state parks remain open for day use, subject to any reductions in services and specific closures that, in the judgment of the director of the Department of Natural Resources, are necessary to minimize large gatherings and to prevent the spread of COVID-19.
15. Rules governing face coverings.
(a) Except as provided in subsection (b) of this section, any individual able to medically tolerate a face covering must wear a covering over his or her nose and mouth—such as a homemade mask, scarf, bandana, or handkerchief—when in any enclosed public space.
(b) An individual may be required to temporarily remove a face covering upon entering an enclosed public space for identification purposes or while seated at a restaurant or bar.
(c) All businesses and operations whose workers perform in-person work must, at a minimum, provide non-medical grade face coverings to their workers.
(d) Supplies of N95 masks and surgical masks should generally be reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters,
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Case 1:20-cv-00323-PLM-PJG ECF No. 32-14 filed 05/20/20 PageID.627 Page 13 of 14
paramedics), and other critical workers who interact with the public.
(e) The protections against discrimination in the Elliott-Larsen Civil Rights Act, 1976 PA 453, as amended, MCL 37.2101 et seq., and any other protections against discrimination in Michigan law, apply in full force to individuals who wear a face covering under this order.
16. Nothing in this order should be taken to supersede another executive order or directive that is in effect, except to the extent this order imposes more stringent limitations on in-person work, activities, and interactions. Consistent with prior guidance, neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place. No individual is subject to penalty under section 20 of this order for engaging in or traveling to engage in religious worship at a place of religious worship, or for violating section 15(a) of this order.
17. Nothing in this order should be taken to interfere with or infringe on the powers of the legislative and judicial branches to perform their constitutional duties or exercise their authority. Similarly, nothing in this order shall be taken to abridge protections guaranteed by the state or federal constitution under these emergency circumstances.
18. This order takes effect immediately, unless otherwise specified in this order, and continues through May 28, 2020 at 11:59 pm. Executive Orders 2020-77 and 2020-90 are rescinded. All references to those orders in other executive orders, agency rules, letters of understanding, or other legal authorities shall be taken to refer to this order.
19. I will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, I will consider, among other things, (1) data on COVID-19 infections and the disease’s rate of spread; (2) whether sufficient medical personnel, hospital beds, and ventilators exist to meet anticipated medical need; (3) the availability of personal protective equipment for the health care workforce; (4) the state’s capacity to test for COVID19 cases and isolate infected people; and (5) economic conditions in the state.
20. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
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Case 1:20-cv-00323-PLM-PJG ECF No. 32-14 filed 05/20/20 PageID.628 Page 14 of 14 Given under my hand and the Great Seal of the State of Michigan.

Date: May 18, 2020 Time: 1:15 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-15 filed 05/20/20 PageID.629 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT O

Whitmer exempts Mich. churches from penalties for 50+ gatherings
Case 1:20-cv-00323-PLM-PJG ECF No. 32-15 filed 05/20/20 PageID.630 Page 2 of 6
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Whitmer exempts Michigan churches from penalties for 50+ gatherings
Niraj Warikoo, Detroit Free Press Published 6:00 a.m. ET March 21, 2020 | Updated 5:51 p.m. ET March 21, 2020

Keywords (ex. registered nurse) Detroit, MI
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Religious houses of worship are now exempt from being penalized if they violate Michigan Gov. Gretchen Whitmer's ban on gatherings of more than 50 people.

PageID.631 Page 3 of 6
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On Monday, Whitmer issued an executive order in response to coronavirus that said "all assemblages of more than 50 people in a single indoor shared space and all events of more than 50 people are prohibited."
Later in the week, the order was updated to add a part that reads: “A place of religious worship is not subject to penalty under section 3 of Executive Order 2020-11.” Section three of the original order said that "a willful violation of this order shall consitute a misdemeanor."
That means that churches, synagogues, mosques, and temples will not be penalized with a misdemeanor if they violate the rule to keep assemblies under 50 people.

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"The limit sill applies, but a place of religious worship is not subject to penalty," Whitmer spokeswoman Tifany Brown told the Free Press Friday.

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Due to the Coronavirus Pandemic Archbishop Vigneron's service was live-sreamed to the parishioners of Blessed Sacrament church in Detroit Sunday, March 15, 2020. (Photo: Kirthmon F. Dozier, Detroit Free Press)
The original order had exceptions for health care centers, workplaces, the sate
https://www.freep.com/story/news/local/michigan/2020/03/21/coronavirus-whitmer-updates-order-assemblies-exempt-churches-penalty/2885395001/[5/19/2020 3:55:20 PM]

Whitmer exempts Mich. churches from penalties for 50+ gatherings
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In a Facebook pos, Michigan House Speaker Lee Chatfeld, R-Levering, thanked Whitmer for the update to the order, writing: "People have a God-given right to assemble and worship, and that right is secured by both the United States and Michigan Consitution."
But Chatfeld added that: "I believe that as Chrisians we also have a duty to love our fellow man and play our role within society. My recommendation is to fnd ways that you can abide within the order to the bes of your ability."
In metro Detroit, many churches, mosques, synagogues and temples have canceled weekend in-person services, with some of them livesreaming insead.
More: Michigan churches, mosques, synagogues suspend services over coronavirus concerns
More: With vacant pews, Michigan pasors urge calm, criticize coronavirus panic buying
Spokespeople for the Catholic Archdiocese of Detroit and Kensington Church, the larges Protesant congregation in metro Detroit, told the Free Press on Friday they will continue to have online-only services this Sunday, as they did las week.
"We are following CDC and sate recommendations to keep our community and saf safe," Kensington spokeswoman Melissa Thwing said. "We will continue holding services online."
Many mosques in metro Detroit also continue to be closed for weekly Friday prayers.
The Rev. Kenneth Flowers of Greater New Mt. Moriah Baptis Church in Detroit said his church had regular services las week, but will be online-only this Sunday. Two members of his congregation have tesed positive for coronavirus, he said. They did not attend church in recent weeks, but some of their loved ones did, Flowers said.
Flowers said he and other churches are concerned for congregants who are losing their jobs and for church employees who rely on donations to the churches. Many members are elderly and aren't used to online giving and so when they can't come to church, donations may decrease, he said.
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https://www.freep.com/story/news/local/michigan/2020/03/21/coronavirus-whitmer-updates-order-assemblies-exempt-churches-penalty/2885395001/[5/19/2020 3:55:20 PM]

Whitmer exempts Mich. churches from penalties for 50+ gatherings
Case 1:20-cv-00323-PLM-PJG ECF No. 32-15 filed 05/20/20 PageID.633 Page 5 of 6
More than 600 new coronavirus cases reported at Michigan prison Gov. Whitmer on NBC's 'Late Night': Protes images don't refect what Michigan is about Michigan State's Mel Tucker, Tom Izzo surprise grieving doctor who survived coronavirus Pasqually's or Chuck E. Cheese? That Grubhub pizza may not be from where you think it is. "It's having a rippling efect on us fnancially," Flowers said. "This is the frs time in my 42 years of preaching that we've had something like this." Despite the challenges, Flowers said he's trying to say positive and hopeful. The church has about 800 members.
The Rev. Kenneth Flowers of Greater New Mt. Moriah Baptis Church in Detroit is holding Sunday services online-only this Sunday in response to the coronavirus. October 2016 photo. (Photo: Regina H. Boone, Detroit Free Press) https://www.freep.com/story/news/local/michigan/2020/03/21/coronavirus-whitmer-updates-order-assemblies-exempt-churches-penalty/2885395001/[5/19/2020 3:55:20 PM]

Whitmer exempts Mich. churches from penalties for 50+ gatherings
"We hCavaestoetr1us:2i0n -Gcovd-0in0th3e2m3i-dPsLoMf th-ePcJoGronavEirCusF, inNthoe. m3i2ds-1o5f efciloendom0ic5/20/20 PageID.634 Page 6 of 6
upheaval," Flowers said. Citing a Biblical verse, he said: "Fear not, God is on our side."
Dennis Lennox, a member of an Episcopal Church in Detroit, said he welcomed the update to the executive order that gives churches an exemption from being penalized.
“It is imperative that consitutional rights and liberties — particularly the fundamental right to worship almighty God — aren’t impeded by the response" to the spread of coronavirus, Lennox said. "Decisions about religious services should be fully made by spiritual authorities without pressure by temporal authorities."
Contact Niraj Warikoo: nwarikoo@freepress.com or 313-223-4792. Twitter @nwarikoo

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-16 filed 05/20/20 PageID.635 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT P

Coronavirus - Executive Order 2020-11 FAQs No longer effective
Case 1:20-cv-00323-PLM-PJG ECF No. 32-16 filed 05/20/20 PageID.636 Page 2 of 3
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Executive Order 2020-11 FAQs [No longer effective]

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This matter is rapidly evolving and MDHHS may provide updated guidance.

Executive Order, No. 2020-11: Temporary prohibition on large assemblages and events, temporary school closures

A place of religious worship is not subject to penalty under section 3 of Executive Order 2020-11.

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Case 1:20-cv-00323-PLM-PJG ECF No. 32-17 filed 05/20/20 PageID.638 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT Q

Case 1:20-cv-00323-PLM-PJG ECF No. 32-17 filed 05/20/20 PageID.639 Page 2 of 5
The new england journal of medicine
Correspondence

Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1

1564 1567 1568 1572 1575 1576 1577

To the Editor: A novel human coronavirus that is now named severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) (formerly called HCoV-19) emerged in Wuhan, China, in late 2019 and is now causing a pandemic.1 We analyzed the aerosol and surface stability of SARS-CoV-2 and compared it with SARS-CoV-1, the most closely related human coronavirus.2
We evaluated the stability of SARS-CoV-2 and SARS-CoV-1 in aerosols and on various surfaces and estimated their decay rates using a Bayesian regression model (see the Methods section in the Supplementary Appendix, available with the full text of this letter at NEJM.org). SARS-CoV-2 nCoV-WA1-2020 (MN985325.1) and SARS-CoV-1 Tor2 (AY274119.3) were the strains used. Aerosols (<5 μm) containing SARS-CoV-2 (105.25 50% tissue-culture infectious dose [TCID50] per milliliter) or SARS-CoV-1 (106.75-7.00 TCID50 per milliliter)
this week's letters
Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1
Epidemiologic and Survival Trends in Amyloidosis, 1987–2019
Complete Revascularization with Multivessel PCI for Myocardial Infarction
PARP Inhibitors in Ovarian Cancer
Schistosomiasis and the Global Goals
A Trial of M72/AS01E Vaccine to Prevent Tuberculosis
Baroreflex Dysfunction

were generated with the use of a three-jet Collison nebulizer and fed into a Goldberg drum to create an aerosolized environment. The inoculum resulted in cycle-threshold values between 20 and 22, similar to those observed in samples obtained from the upper and lower respiratory tract in humans.
Our data consisted of 10 experimental conditions involving two viruses (SARS-CoV-2 and SARS-CoV-1) in five environmental conditions (aerosols, plastic, stainless steel, copper, and cardboard). All experimental measurements are reported as means across three replicates.
SARS-CoV-2 remained viable in aerosols throughout the duration of our experiment (3 hours), with a reduction in infectious titer from 103.5 to 102.7 TCID50 per liter of air. This reduction was similar to that observed with SARS-CoV-1, from 104.3 to 103.5 TCID50 per milliliter (Fig. 1A).
SARS-CoV-2 was more stable on plastic and stainless steel than on copper and cardboard, and viable virus was detected up to 72 hours after application to these surfaces (Fig. 1A), although the virus titer was greatly reduced (from 103.7 to 100.6 TCID50 per milliliter of medium after 72 hours on plastic and from 103.7 to 100.6 TCID50 per milliliter after 48 hours on stainless steel). The stability kinetics of SARS-CoV-1 were similar (from 103.4 to 100.7 TCID50 per milliliter after 72 hours on plastic and from 103.6 to 100.6 TCID50 per milliliter after 48 hours on stainless steel). On copper, no viable SARS-CoV-2 was measured after 4 hours and no viable SARS-CoV-1 was measured after 8 hours. On cardboard, no viable SARS-CoV-2 was measured after 24 hours and no viable SARS-CoV-1 was measured after 8 hours (Fig. 1A).

n engl j med 382;16  nejm.org  April 16, 2020
The New England Journal of Medicine Downloaded from nejm.org on April 21, 2020. For personal use only. No other uses without permission.
Copyright © 2020 Massachusetts Medical Society. All rights reserved.

Titer

Titer

Titer (TCID50/ml of medium)

Half-Life (hr)

(TCID50/ml of medium) (TCID50/ml of medium)

Case 1:20-cv-00323-PLM-PJG ECF No. 32-17 filed 05/20/20 PageID.640 Page 3 of 5
Correspondence
n engl j med 382;16 nejm.org April 16, 2020 The New England Journal of Medicine
Downloaded from nejm.org on April 21, 2020. For personal use only. No other uses without permission. Copyright © 2020 Massachusetts Medical Society. All rights reserved.

A Titers of Viable Virus
Aerosols

Titer (TCID50/liter of air)

104 103 102 101 100
0

0.5 1.0 2.0 3.0 Hours

B Predicted Decay of Virus Titer
Aerosols

Titer (TCID50/liter of air)

104 103 102 101 100
0

1.0 2.0 3.0

Titer (TCID50/liter of air)

104 103 102 101 100
0

1.0 2.0 3.0 Hours

Half-Life (hr)

C Half-Life of Viable Virus
Aerosols 10 8 6 4 2 0
SARS-CoV-2 SARS-CoV-1

Copper
104 103 102 101 100
0 1 4 8 24 48 72 96

Cardboard

Stainless Steel

104

104

103

103

102

102

101

101

100

100

0 1 4 8 24 48 72 96

0 1 4 8 24 48 72 96

Hours

Plastic
104 103 102 101 100
0 1 4 8 24 48 72 96

SARS-CoV-2 SARS-CoV-1

104 103 102 101 100
0

Copper

104

103

102

101

100

20 40 60 80

0

Cardboard

Stainless Steel

104

103

102

101

100

20 40 60 80

0

104

103

102

101

100

20 40 60 80

0

Plastic SARS-CoV-2
20 40 60 80

104 103 102 101 100
0

104

103

102

101

100

20 40 60 80

0

104

103

102

101

100

20 40 60 80

0

Hours

104

103

102

101

100

20 40 60 80

0

SARS-CoV-1 20 40 60 80

Copper 10

Cardboard 10

Stainless Steel

10

10

Plastic

8

8

8

8

6

6

6

6

4

4

4

4

2

2

2

2

0

0

0

0

SARS-CoV-2 SARS-CoV-1

SARS-CoV-2 SARS-CoV-1

SARS-CoV-2 SARS-CoV-1

SARS-CoV-2 SARS-CoV-1

Case 1:20-cv-00323-PLM-PJG ECF No. 32-17 filed 05/20/20 PageID.641 Page 4 of 5
The new england journal of medicine

Figure 1 (previous page). Viability of SARS-CoV-1 and SARS-CoV-2 in Aerosols and on Various Surfaces.
As shown in Panel A, the titer of aerosolized viable virus is expressed in 50% tissue-culture infectious dose (TCID50) per liter of air. Viruses were applied to copper, cardboard, stainless steel, and plastic maintained at 21 to 23°C and 40% relative humidity over 7 days. The titer of viable virus is expressed as TCID50 per milliliter of collection medium. All samples were quantified by end-point titration on Vero E6 cells. Plots show the means and standard errors (I bars) across three replicates. As shown in Panel B, regression plots indicate the predicted decay of virus titer over time; the titer is plotted on a logarithmic scale. Points show measured titers and are slightly jittered (i.e., their horizontal positions are modified by a small random amount to reduce overlap) along the time axis to avoid overplotting. Lines are random draws from the joint posterior distribution of the exponential decay rate (negative of the slope) and intercept (initial virus titer) to show the range of possible decay patterns for each experimental condition. There were 150 lines per panel, including 50 lines from each plotted replicate. As shown in Panel C, violin plots indicate posterior distribution for the halflife of viable virus based on the estimated exponential decay rates of the virus titer. The dots in­dicate the posterior median estimates, and the black lines indicate a 95% credible interval. Experimental conditions are ordered according to the posterior median half-life of SARS-CoV-2. The dashed lines indicate the limit of detection, which was 3.33×100.5 TCID50 per liter of air for aerosols, 100.5 TCID50 per milliliter of medium for plastic, steel, and cardboard, and 101.5 TCID50 per milliliter of medium for copper.
Both viruses had an exponential decay in virus titer across all experimental conditions, as indicated by a linear decrease in the log10TCID50 per liter of air or milliliter of medium over time (Fig. 1B). The half-lives of SARS-CoV-2 and SARS-CoV-1 were similar in aerosols, with median estimates of approximately 1.1 to 1.2 hours and 95% credible intervals of 0.64 to 2.64 for SARS-CoV-2 and 0.78 to 2.43 for SARS-CoV-1 (Fig. 1C, and Table S1 in the Supplementary Appendix). The half-lives of the two viruses were also similar on copper. On cardboard, the half-life of SARS-CoV-2 was longer than that of SARS-CoV-1. The longest viability of both viruses was on stainless steel and plastic; the estimated median half-life of SARS-CoV-2 was approximately 5.6 hours on stainless steel and 6.8 hours on plastic (Fig. 1C). Estimated differences in the half-lives of the two viruses were small except for those on cardboard (Fig. 1C). Individual replicate data were noticeably “noisier” (i.e., there was more varia-

tion in the experiment, resulting in a larger standard error) for cardboard than for other surfaces (Fig. S1 through S5), so we advise caution in interpreting this result.
We found that the stability of SARS-CoV-2 was similar to that of SARS-CoV-1 under the experimental circumstances tested. This indicates that differences in the epidemiologic characteristics of these viruses probably arise from other factors, including high viral loads in the upper respiratory tract and the potential for persons infected with SARS-CoV-2 to shed and transmit the virus while asymptomatic.3,4 Our results indicate that aerosol and fomite transmission of SARS-CoV-2 is plausible, since the virus can remain viable and infectious in aerosols for hours and on surfaces up to days (depending on the inoculum shed). These findings echo those with SARS-CoV-1, in which these forms of transmission were associated with nosocomial spread and super-spreading events,5 and they provide information for pandemic mitigation efforts.
Neeltje van Doremalen, Ph.D. Trenton Bushmaker, B.Sc.
National Institute of Allergy and Infectious Diseases Hamilton, MT
Dylan H. Morris, M.Phil.
Princeton University Princeton, NJ
Myndi G. Holbrook, B.Sc.
National Institute of Allergy and Infectious Diseases Hamilton, MT
Amandine Gamble, Ph.D.
University of California, Los Angeles Los Angeles, CA
Brandi N. Williamson, M.P.H.
National Institute of Allergy and Infectious Diseases Hamilton, MT
Azaibi Tamin, Ph.D. Jennifer L. Harcourt, Ph.D. Natalie J. Thornburg, Ph.D. Susan I. Gerber, M.D.
Centers for Disease Control and Prevention Atlanta, GA
James O. Lloyd-Smith, Ph.D.
University of California, Los Angeles Los Angeles, CA Bethesda, MD
Emmie de Wit, Ph.D. Vincent J. Munster, Ph.D.
National Institute of Allergy and Infectious Diseases Hamilton, MT vincent.munster@nih.gov

n engl j med 382;16  nejm.org  April 16, 2020
The New England Journal of Medicine Downloaded from nejm.org on April 21, 2020. For personal use only. No other uses without permission.
Copyright © 2020 Massachusetts Medical Society. All rights reserved.

Case 1:20-cv-00323-PLM-PJG ECF No. 32-17 filed 05/20/20 PageID.642 Page 5 of 5
Correspondence

Dr. van Doremalen, Mr. Bushmaker, and Mr. Morris contributed equally to this letter.
The findings and conclusions in this letter are those of the authors and do not necessarily represent the official position of the Centers for Disease Control and Prevention (CDC). Names of specific vendors, manufacturers, or products are included for public health and informational purposes; inclusion does not imply endorsement of the vendors, manufacturers, or products by the CDC or the Department of Health and Human Services.
Supported by the Intramural Research Program of the National Institute of Allergy and Infectious Diseases, National Institutes of Health, and by contracts from the Defense Advanced Research Projects Agency (DARPA PREEMPT No. D18AC00031, to Drs. Lloyd-Smith and Gamble), from the National Science Foundation (DEB-1557022, to Dr. Lloyd-Smith), and from the Strategic Environmental Research and Development Program of the Department of Defense (SERDP, RC-2635, to Dr. Lloyd-Smith).
Disclosure forms provided by the authors are available with the full text of this letter at NEJM.org.

This letter was published on March 17, 2020, at NEJM.org.
1. Coronavirus disease (COVID-2019) situation reports. Geneva:​World Health Organization, 2020 (https://www​.who​.int/​ emergencies/​diseases/​novel​-­coronavirus​-­2019/​situation​-­reports/​). 2. Wu A, Peng Y, Huang B, et al. Genome composition and divergence of the novel coronavirus (2019-nCoV) originating in China. Cell Host Microbe 2020;​27:​325-8. 3. Bai Y, Yao L, Wei T, et al. Presumed asymptomatic carrier transmission of COVID-19. JAMA 2020 February 21 (Epub ahead of print). 4. Zou L, Ruan F, Huang M, et al. SARS-CoV-2 viral load in upper respiratory specimens of infected patients. N Engl J Med 2020;​382:1177-9. 5. Chen YC, Huang LM, Chan CC, et al. SARS in hospital emergency room. Emerg Infect Dis 2004;​10:​782-8.
DOI: 10.1056/NEJMc2004973

Epidemiologic and Survival Trends in Amyloidosis, 1987–2019

To the Editor: Amyloidosis is a group of rare disorders caused by deposition of misfolded proteins as insoluble fibrils, which leads to progressive multiorgan failure and death.1 The past 30 years have seen remarkable advances in diagnostic imaging, more accurate identification of fibrils, and (in recent years) the first approved treatments.2,3
We report here data on 11,006 patients who received a diagnosis of amyloidosis during the period from 1987 through October 2019. All

data were obtained from the United Kingdom National Amyloidosis Centre database. The number of cases increased by 670% from the period 1987–1999 to the period 2010–2019 (Fig. 1A). Systemic light-chain (AL) amyloidosis remained the most common type and accounted for 55% of all cases (Fig. 1B). With the advances in therapies that target plasma cells, overall survival among patients with AL amyloidosis increased from a median of 18 months among patients who received a diagnosis before 2005 to

No. of Patients

A Diagnoses of Amyloidosis According to Time Period and Type
All Cases AL ATTRwt AA 3500 3000 2500 2000 1500 1000 500
0 1987–1990 1991–1995 1996–2000 2001–2005 2006–2010 2011–2015 2016–2019

B Diagnoses of Amyloidosis According to Type, 1987–2019

AA, 889

Localized AL, 1234

ATTRwt, 1412

Hereditary ATTR, 841
AApo1, 58

152 AFib

AL, 6008

40 ALect2 94 Aβ2M 27 ALys

Figure 1. Diagnoses of Amyloidosis over Three Decades and Amyloidosis Types.
Panel A shows data for 11,006 cases of amyloidosis diagnosed from 1987 to 2019. Panel B shows data for the 10,755 cases for which fibril type could be determined accurately. AA denotes amyloid A, AApo1 amyloid apolipoprotein A-I, Aβ2M amyloid beta2-microglobulin, AFib amyloid fibrinogen, ALect2 amyloid leukocyte chemotactic factor 2, AL light chain, ALys amyloid lysozyme, ATTR transthyretin-­ associated, and ATTRwt wild-type ATTR.

n engl j med 382;16  nejm.org  April 16, 2020
The New England Journal of Medicine Downloaded from nejm.org on April 21, 2020. For personal use only. No other uses without permission.
Copyright © 2020 Massachusetts Medical Society. All rights reserved.

Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.643 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, PAUL CAVANAUGH, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, ALLEN TELGENHOF, in his official capacity as Charlevoix County Prosecuting Attorney, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, and WILLIAM J. VAILLIENCOURT, JR., in his official capacity as Livingston County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT R

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.644 Page 2 of 7
CORONAVIRUS
How many people have had coronavirus with no symptoms?
More mild or asymptomatic cases means the death rate may be lower than initially feared.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.645 Page 3 of 7
Amid coronavirus concerns, a healthcare worker takes the temperature of a visitor to Essentia Health who was crossing over a skywalk bridge from the adjoining parking deck, Friday, April 10, 2020, in Duluth, Minn. Alex Kormann / AP file
April 20, 2020, 9:01 AM EDT
By The Associated Press
A flood of new research suggests that far more people have had the coronavirus without any symptoms, fueling hope that it will turn out to be much less lethal than originally feared. While that’s clearly good news, it also means it’s impossible to know who around you may be contagious. That complicates decisions about returning to work, school and normal life. Full coverage of the coronavirus outbreak In the last week, reports of silent infections have come from a homeless shelter in Boston, a U.S. Navy aircraft carrier, pregnant women at a New York hospital, several European countries and California.
Coronavirus survivors speak out about recovery challenges
APRIL 19, 2020 / 02:18




https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.646 Page 4 of 7
  
The head of the U.S. Centers for Disease Control and Prevention says 25 percent of infected people might not have symptoms. The vice chairman of the Joint Chiefs of Staff, Gen. John Hyten, thinks it may be as high as 60 percent to 70 percent among military personnel. None of these numbers can be fully trusted because they’re based on flawed and inadequate testing, said Dr. Michael Mina of Harvard’s School of Public Health. Collectively, though, they suggest “we have just been off the mark by huge, huge numbers” for estimating total infections, he said. Worldwide, more than 2.3 million infections and more than 160,000 deaths have been confirmed. The virus has caused nearly unprecedented economic and social harm since its existence was reported in early January.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.647 Page 5 of 7
Stealth cases
Based on known cases, health officials have said the virus usually causes mild or moderate flu-like illness. Now evidence is growing that a substantial number of people may have no symptoms at all.
Scientists in Iceland screened 6 percent of its population to see how many had previously undetected infections and found that about 0.7 percent tested positive. So did 13 percent of a group at higher risk because of recent travel or exposure to someone sick.
Related
Doctors say virus tests crucial to identifying 'Trojan horses'
HEALTH
Aboard the aircraft carrier USS Theodore Roosevelt, where one crew member died from the virus, “the rough numbers are that 40 percent are symptomatic,” said Vice Adm. Phillip Sawyer, deputy commander of naval operations. The ratio may change if more develop symptoms later, he warned.
In New York, a hospital tested all pregnant women coming in to deliver over a two-week period. Nearly 14 percent of those who arrived with no symptoms of coronavirus turned out to have it. Of the 33 positive cases, 29 had no symptoms when tested, although some developed them later.
Previously, tests on passengers and crew from the Diamond Princess cruise ship found nearly half who tested positive had no symptoms at the time. Researchers estimate that 18 percent of infected people never developed any.
Flawed methods
These studies used tests that look for bits of the virus from throat and nose swabs, which can miss cases. Someone can test negative one day if there’s not much virus to detect and then positive the next.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.648 Page 6 of 7
Symptoms also may not appear when someone is tested but turn up later. One Japanese study found more than half of those who had no symptoms when they tested positive later felt sick.

Recommended

CORONAVIRUS

2020 ELECTION

'You may have been exposed to the virus': What to expect when a contact tracer calls you 7 Wisconsin coronavirus infections linked to election day, health official says

Better answers may come from newer tests that check blood for antibodies, substances the immune system makes to fight the virus. But the accuracy of these, too, is still to be determined.
On Friday, researchers reported results from antibody tests on 3,300 people in California’s Santa Clara county: Between 1.5 percent and 2.8 percent have been infected, they claimed. That would mean 48,000 to 81,000 cases in the county — more than 50 times the number that have been confirmed.
Download the NBC News app for full coverage of the coronavirus outbreak
The work has not been formally published or reviewed, but some scientists were quick to question it. Participants were recruited through Facebook ads, which would attract many people likely to be positive who have had symptoms and want to know if the coronavirus was the reason. Some neighborhoods also had way more participants than others, and “hot spots” within the county might have made infections seem more common than they are elsewhere.
Ships, maternity wards and single counties also don’t provide data that can be used to generalize about what’s happening elsewhere. And many of the figures have come from snapshots, not research on wide populations over time.
Next steps
Antibody testing in particular needs to be done “in an unbiased approach” on groups of people that are representative of the geographic, social, racial and other conditions, Mina said.
https://www.nbcnews.com/health/health-news/how-many-people-have-had-coronavirus-no-symptoms-n1187681[4/21/2020 1:43:00 PM]

How many people have had coronavirus with no symptoms?
Case 1:20-cv-00323-PLM-PJG ECF No. 32-18 filed 05/20/20 PageID.649 Page 7 of 7 The CDC and other groups plan such studies, and they could guide public health advice on returning to normal life for people in certain areas.
If infections are more widespread than previously understood, it’s possible that more people have developed some level of immunity to the virus. That could stifle the spread through what’s called herd immunity, but scientists caution that there is still much to learn about whether mild illnesses confer immunity and how long it might last.
It will probably be months before enough reliable testing has been done to answer those questions and others, including how widespread infections have been and the virus’s true mortality rate, which has only been estimated so far.
“If they’ve all seen the virus before, then maybe you can relax in that neighborhood” and ease social distancing, Mina said. “We’re not anywhere close where we need to be” on antibody testing to do that yet, he said.
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The Associated Press

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 Case 1:20-cv-00323-PLM-PJG ECF No. 34 filed 05/20/20 PageID.652 Page 1 of 36

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, et al.,

Plaintiffs, v. GRETCHEN WHITMER, et al.,
Defendants.

No. 1:20-cv-00323 Hon. Paul L. Maloney Mag. Phillip J. Green

DEFENDANT BRIAN L. MACKIE’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT
Defendant Brian L. Mackie, Washtenaw County Prosecuting Attorney, moves to dismiss Plaintiffs’ First Amended Complaint (the “Amended Complaint”) under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). As explained in the accompanying brief, Plaintiffs lack standing to sue Defendant Mackie and their claims are not ripe, their claims against him are moot because the challenged restrictions in Executive Order 2020-42 have been rescinded, sovereign immunity applies to Defendant Mackie in this case, and, in any event, the constitutional claims relevant to Defendant Mackie fail on the merits.
In accordance with Local Civil Rule 7.1(d), Defendant Mackie communicated with opposing counsel regarding the substance of and intent to file this motion. This motion is opposed. Defendant Mackie asks this Court to grant his motion and dismiss with prejudice the Amended Complaint as to Mackie.

Case 1:20-cv-00323-PLM-PJG ECF No. 34 filed 05/20/20 PageID.653 Page 2 of 36

Dated: May 20, 2020

Respectfully submitted,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
By: /s/ Sonal Hope Mithani Sonal Hope Mithani (P51984) Joel C. Bryant (P79506) 101 North Main, Seventh Floor Ann Arbor, MI 48104 (734) 668-7786 Mithani@millercanfield.com Bryant@millercanfield.com
Attorneys for Defendant Brian L. Mackie, Washtenaw County Prosecuting Attorney

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, et al.,

Plaintiffs, v. GRETCHEN WHITMER, et al.,
Defendants.

No. 1:20-cv-00323 Hon. Paul L. Maloney Mag. Phillip J. Green

BRIEF IN SUPPORT OF DEFENDANT BRIAN L. MACKIE’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

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TABLE OF CONTENTS
INTRODUCTION ......................................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ 2 LEGAL STANDARDS ................................................................................................................. 6 ARGUMENT ................................................................................................................................. 7 I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER
PLAINTIFFS’ CLAIMS .................................................................................................... 7 A. Plaintiffs Are Not Entitled to Pre-Enforcement Review of the Threatened
Conduct and Thus, this Lawsuit against WCPA Mackie Lacks Standing and Ripeness .......................................................................................................... 8 1. Plaintiff Muise has not established a credible threat of prosecution
by WCPA Mackie ...................................................................................... 9 2. Plaintiff Muise has not properly alleged an intention to engage in a
potentially proscribed gathering .............................................................. 11 B. Plaintiff Muise’s Claims against WCPA Mackie are Moot and Do Not Fall
Under an Exception to the Mootness Doctrine .................................................... 12 II. WCPA MACKIE IS ENTITLED TO SOVEREIGN IMMUNITY UNDER THE
ELEVENTH AMENDMENT.......................................................................................... 14 III. THE CHALLENGED RESTRICTIONS WERE A PROPER EXERCISE OF
THE STATE’S EXPANDED AUTHORITY UNDER JACOBSON TO PROTECT THE PUBLIC HEALTH............................................................................... 17 A. A State Combatting A Public Health Crisis Has Expanded Authority
Under Jacobson .................................................................................................... 17 B. The Restrictions under Executive Order 2020-42 Were Substantially
Related to Combatting the COVID-19 Pandemic................................................ 20 IV. THE RESTRICTIONS RELEVANT TO WCPA MACKIE ALSO SURVIVE
UNDER A STANDARD CONSTITUTIONAL ANALYSIS......................................... 21 A. Plaintiff Muise Fails to State an Equal Protection Violation ............................... 21 B. Plaintiff Muise Has Not Stated a Claim for a Due Process Violation of His
Right To Travel.................................................................................................... 23 C. Plaintiff Muise Fails to State a Second Amendment Claim ................................ 24 D. Plaintiffs Fail to State a First and Fourteenth Amendment Freedom of
Association Claim ................................................................................................ 25 E. Plaintiff Muise Fails to State a First Amendment Free Exercise Claim .............. 25 CONCLUSION............................................................................................................................ 26
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TABLE OF AUTHORITIES Page(s)
Cases In re Abbott, 954 F.3d 772 (5th Cir. 2020) ............................................................................ passim Airline Prof’ls Ass’n of Int’l Bhd.of Teamsters, Local Union No. 1224, AFL-CIO
v. Airborne, Inc., 332 F.3d 983 (6th Cir. 2003) ...................................................................…..8 Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003)........................................................................25 Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ........................................................................23 Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ............................................8, 9 Cady v. Arenac Cty., 574 F.3d 334 (6th Cir. 2009) .................................................................14, 15 Cassell v. Snyders, No. 20-c-50153, 2020 WL 2112374 (N.D. Ill. May 3, 2020) ........................19 Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365 (6th Cir. 2011)..................21, 22 Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir.
1996) ....................................................................................................................................1, 15 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)...........................3, 25 Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016).................................................................23 Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of Louisiana, 186
U.S. 380 (1902)........................................................................................................................20 Cross Culture Christian Center v. Newsom, No. 2:20-cv-00832, 2020 WL
2121111 (E.D. Cal. May 5, 2020)............................................................................................18 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006)..............................................................8, 11 Deakins v. Monaghan, 484 U.S. 193 (1988)..................................................................................12 District of Columbia v. Heller, 554 U.S. 570 (2008).....................................................................24 Engle v. Chipman, 51 Mich. 524, 16 N.W. 886 (1883) ...................................................................5 Fieger v. Cox, 274 Mich. App. 449, 734 N.W.2d 602 (2007) .........................................................5 Gavitt v. Ionia Cty., 67 F. Supp. 3d 838, 842 (E.D. Mich. 2014) ..................................................14
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Gish v. Newsom, No. EDCV 20-755 JGB, 2020 WL 197990 (C.D. Cal. April 23, 2020) ........................................................................................................................................19
Hill v. Snyder, 878 F.3d 193 (6th Cir. 2017) .................................................................................14 Holt v. Hobbs, 574 U.S. 352 (2015) ..............................................................................................25 Jacobson v. Massachusetts, 197 U.S. 11 (1905).................................................................... passim Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002).........................................................23 Joseph Martin McGhee v. City of Flagstaff, et. al., No. cv-20-08081, 2020 WL
2308479 (D. Ariz. May 8, 2020)..............................................................................................18 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ......................................................1, 8, 11, 12 Lyshe v. Levy, 854 F.3d 855 (6th Cir. 2017)....................................................................................6 Martinko v. Whitmer, No. 20-00062-MM (Mich. Ct. Cl. April 29, 2020) ....................................19 Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 2020 WL 2111316 (6th
Cir. 2020) (per curiam) .................................................................................................... passim McKay v. Federspiel, 823 F.3d 862 (6th Cir. 2016) ........................................................8, 9, 10, 12 Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602 (6th Cir. 2008).............................................9 Nat’l Rifle Ass’n v. Magaw, 132 F.3d 272 (6th Cir. 1997) ..........................................................7, 8 Neinast v. Bd. of Trustees of Columbus Metro. Library, 346 F.3d 585 (6th Cir.
2003) ........................................................................................................................................23 New Doe Child #1 v. Congress of the United States, 891 F.3d 578 (2018)...................................25 Nichols v. Muskingum College, 318 F.3d 674 (6th Cir. 2003) ........................................................6 Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320 (6th Cir. 1990)...........................................6 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984) ............................................14 Radvansky v. City of Olmsted Falls, 395 F.3d 291 (6th Cir. 2005) ...............................................21 Rettig v. Kent City School Dist., 788 F.2d 328 (6th Cir. 1986) .......................................................7 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) ...............................................................................25 Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673 (6th Cir. 2011).....................................7, 21, 22 Rote v. Zel Custom Mfg. LLC, 816 F.3d 383 (6th Cir. 2016) ..........................................................7
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Russell v. Lundergan-Grimes, 784 F.3d 1037 (6th Cir. 2015) ......................................................16 In re Rutledge, 956 F.3d 1018 (8th Cir. 2020)...............................................................................18 Scarborough v. Morgan Cty. Bd. of Educ., 470 F.3d 250 (6th Cir. 2006).....................................21 Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434 (6th Cir. 1988) ....................................7 Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019) ..................................................13, 14 Spurr v. Pope, 936 F.3d 478 (6th Cir. 2019) ...................................................................................6 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)................................................................8 Tanks v. Greater Cleveland Reg’l Transit Auth., 930 F.2d 475 (6th Cir. 1991) ...........................23 Thomas Sysco Food Servs. v. Martin, 983 F.2d 60 (6th Cir. 1993)...........................................1, 12 Tyler v. Hillsdale Cty. Sheriff’s Dep’t, 837 F.3d 678 (6th Cir. 2016) (en banc) .....................24, 25 United States v. W. T. Grant Co., 345 U.S. 629 (1953).................................................................13 Younger v. Harris, 401 U.S. 37 (1971)......................................................................................9, 10 Statutes Mich. Comp. Laws § 49.153..........................................................................................................15 Rules Fed. R. Evid. 201 .............................................................................................................................2 Federal Rule of Civil Procedure 12(b)(1) ..................................................................................6, 11 Federal Rule of Civil Procedure 12(b)(6) ..................................................................................7, 22 Constitutional Provisions First Amendment .....................................................................................................................25, 26 Second Amendment .................................................................................................................24, 25 Eleventh Amendment.....................................................................................................1, 14, 15, 16 Fourteenth Amendment .....................................................................................................21, 23, 25 Article 1, § 6 of the Michigan Constitution ...................................................................................25
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INTRODUCTION Defendant Brian L. Mackie, the Washtenaw County Prosecuting Attorney (“WCPA”), does not belong in this case. Plaintiffs’ First Amended Complaint contains no allegations whatsoever that WCPA Mackie has taken any action that could possibly violate either Plaintiff’s constitutional rights. Nor is there any allegation that WCPA Mackie intends to do anything that might violate Plaintiffs’ rights. Further, Robert Muise is the only plaintiff with any connection to Washtenaw County, and the activities Mr. Muise is concerned about—holding prayer gatherings at his home and traveling to purchase firearms and ammunition—are now clearly allowed, despite the ongoing threat presented by COVID-19. The upshot is that the Court lacks jurisdiction to hear Plaintiffs’ claims against WCPA Mackie for three separate reasons. WCPA Mackie has not caused Plaintiffs any injury, and there is no imminent threat that he will do so. Thus, Plaintiffs lack standing to sue him. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Further, even if Plaintiffs had standing when the suit was filed, their claims against WCPA Mackie are now moot because the activities at issue relevant to WCPA Mackie are no longer restricted. See Thomas Sysco Food Servs. v. Martin, 983 F.2d 60, 61 (6th Cir. 1993). Meanwhile, “[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law,” and therefore Eleventh Amendment sovereign immunity shields WCPA Mackie here. See Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996). Moreover, apart from failing to clear all these jurisdictional hurdles, Plaintiffs have not pled any valid constitutional claims against WCPA Mackie. COVID-19 represents the single greatest threat to public health in at least a century. It has sickened millions and killed hundreds of thousands worldwide. In Michigan alone, tens of thousands of people have contracted the virus, and over 4,000 have died. In light of that horrible toll, the restrictions in Executive Order
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2020-42 were permitted in order to protect public health. See Jacobson v. Massachusetts, 197 U.S. 11, 30 (1905). Thus, it could not be a constitutional violation for WCPA Mackie to enforce them. Moreover, Plaintiffs’ scattershot constitutional claims fail because the State’s interest in protecting the public against COVID-19 justifies any incidental limitations on Plaintiffs’ rights. The bottom line, under any analysis, is that the State’s paramount duty is to protect the lives of its citizens, and in the present crisis, the modest and temporary restrictions at issue were lawful.
In short, Plaintiffs’ claims against WCPA Mackie should be dismissed for lack of jurisdiction and for failure to state a claim.
STATEMENT OF FACTS COVID-19 is an extremely contagious strain of coronavirus for which there is no known treatment or vaccine. Since first identified in Wuhan, China in December 2019, it has spread globally, infecting millions and killing over 300,000 individuals worldwide. On January 7, 2020, health authorities in China confirmed the first cluster of COVID-19 cases. By the end of January, there were nearly 10,000 cases worldwide, including several confirmed cases in the United States. By the end of February, the United States saw its first COVID-19 death and its first case of community transmission. On March 10, the first presumptive-positive cases of COVID-19 were reported in the State of Michigan. Ex. A, Exec. Order No. 2020-4.1 Because there is no known treatment for COVID-19, the Centers for Disease Control and Prevention advocated and continue to advocate for social distancing measures as crucial to curbing the spread of COVID-19. Accordingly, on March 13, Governor Whitmer issued Executive Order 2020-5, which prohibited gatherings of 250 or more people and ordered
1 Available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521576--,00.html. The Court may take judicial notice of the Governor’s various COVID-19-related executive orders. See Fed. R. Evid. 201.
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the closure of all K-12 school buildings. Ex. B, Exec. Order No. 2020-5.2 This order was followed by Executive Order 2020-9 and Executive Order 2020-11, which ordered closure of certain non-essential businesses, including restaurants, bars, and exercise facilities, and lowered the cap on assemblages to fifty people. Ex. C, Exec. Order No. 2020-9; Ex. D, Exec. Order No. 2020-11.3
On March 23, 2020, after the total number of cases in Michigan topped 1,300 and reported COVID-19-related deaths jumped from nine to fifteen overnight, Governor Whitmer issued Executive Order 2020-21. Ex. E, Exec. Order No. 2020-21.4 The order required all persons not performing essential or critical infrastructure job functions to stay home. Id. ¶ 2. It also prohibited, with exceptions, all public and private gatherings of individuals not of a single household. Id. However, it provided exceptions for obtaining groceries, caring for family members, and engaging in outdoor activities consistent with social distancing guidelines, among others. Id. ¶ 7. The order was set to expire on April 13, but despite these measures, COVID-19 cases and related deaths continued to rise. On April 9, the Governor issued Executive Order 2020-42, which extended the stay-at-home order through April 30, 2020. ECF No. 25-1, PageID.418.
On April 15, 2020, Plaintiffs Kimberly Beemer, Paul Cavanaugh, and Robert Muise filed suit against Governor Gretchen Whitmer, Charlevoix County Prosecuting Attorney Allen Telgenhof, Livingston County Prosecuting Attorney William J. Vailliencourt, Jr., and Washtenaw County Prosecuting Attorney Brian L. Mackie. See Compl., ECF No. 1, PageID.1.
2 Available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521595--,00.html. 3 Available respectively at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705521789--,00.html and https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-521890-,00.html. 4 Available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html.
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The Complaint sought a declaration that the enactment and enforcement of Executive Order 2020-42 was unconstitutional. Id. ¶ 4. Plaintiffs asserted the right to engage in several activities prohibited under Executive Order 2020-42, namely: travel to and from vacation homes, operation of landscaping businesses, operation of motorboats, travel to gun shops to purchase firearms and ammunition, travel to gun ranges to practice with firearms, and gatherings on Sundays and other holy days with family members not of a single household. On April 20, Plaintiffs also filed a Motion for Temporary Restraining Order and Preliminary Injunction to enjoin enforcement of the challenged provisions of Executive Order 2020-42. See Pls. Mot. TRO & Prelim. Inj., ECF No. 7, PageID.50.
On March 24, 2020, Governor Whitmer issued Executive Order 2020-59, which rescinded Executive Order 2020-42, amended the scope of the stay-at-home order, and extended the remaining restrictions through May 15. ECF No. 25-2, PageID.429. Notably, under Executive Order 2020-59 Plaintiffs were no longer prohibited from engaging in the activities upon which their initial Complaint was based. On April 27, the Court entered a stipulated order resolving Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction and acknowledging that Executive Order 2020-59 permitted Plaintiffs to engage in all the activities listed in their Complaint. See Stip. Order, ECF No. 24, PageID.389.
Subsequently, Plaintiffs Beemer and Muise filed a First Amended Complaint on April 28, 2020, adding Attorney General Dana Nessel as a defendant, but dropping Defendants Vaillencourt and Telgenhof from the action. See Am. Compl., ECF No. 25, PageID.394. Plaintiffs maintain that they still have claims against WCPA Mackie. WCPA Mackie, however, played no role in formulating or issuing any of the Governor’s executive orders and Plaintiffs do not allege otherwise. See id. ¶¶ 19-20, ECF No. 25, PageID.397.
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In fact, WCPA Mackie is barely mentioned at all in the Amended Complaint. Plaintiffs allege only that WCPA Mackie “is the Washtenaw County Prosecuting Attorney,” and that he “is responsible for criminally prosecuting persons who violate Defendant Whitmer’s executive orders in Washtenaw County.” Id. ¶ 19, ECF No. 25, PageID.397. But even where criminal penalties for violating an executive order are provided for, WCPA Mackie retains discretion to “abstain from prosecuting” in appropriate cases. Engle v. Chipman, 51 Mich. 524, 526, 16 N.W. 886, 887 (1883); Fieger v. Cox, 274 Mich. App. 449, 466, 734 N.W.2d 602, 612 (2007). Here, there is no allegation that WCPA Mackie has enforced any COVID-19-related order against either Plaintiff. Nor is there any allegation that WCPA Mackie even hinted that either Plaintiff might be subject to prosecution, much less actually threatened to charge either of them. Indeed, Plaintiff Kimberly Beemer does not live or work in Washtenaw County, and there is no allegation she intends to visit. See id. ¶¶ 9-10, 27-28, 36, ECF No. 25, PageID.396, 399-401. So she could not be subject to prosecution or threat of prosecution by WCPA Mackie. Only Plaintiff Muise, who does live in Washtenaw County, see id. ¶ 11, ECF No. 25, PageID.396, is relevant to the claims against WCPA Mackie.
As to Plaintiff Muise, there are two key sets of factual allegations. First, that Executive Order 2020-42 “prohibited Plaintiff Muise from traveling to gun stores to purchase firearms and ammunition,” and from traveling “to gun ranges to train with his firearms.” Id. ¶ 43, ECF No. 25, PageID.403. And “[b]ecause he did not want to be subject to criminal or other sanctions for violating the executive order, Plaintiff Muise did not travel to any guns stores or ranges while EO 2020-42 was in effect.” Id. Second, that Plaintiff Muise “would like his family to gather together on Sundays, other Holy Days, and special events” for “a meal, fellowship, and prayer,” and that “[s]uch gatherings are religious worship for Plaintiff Muise.” Id. ¶ 47, ECF No. 25,
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PageID.404. And, according to Plaintiff Muise, it was unclear under Executive Order 2020-42’s exemption for religious worship whether his family prayer gatherings were prohibited. See id. ¶¶ 47-48, ECF No. 25, PageID.404.
Plaintiff Muise admits, however, that Executive Order 2020-42 was rescinded when Executive Order 2020-59 took effect. Id. ¶ 23, ECF No. 25, PageID.397. And he also admits that under Executive Order 2020-59, he is permitted “to travel to and from” gun stores and to complete purchases “via remote order and curbside pick-up,” and that he is “not subject to penalty . . . for holding religious gatherings with his immediate family at his private residence.” Id. ¶ 54, ECF No. 25, PageID.407. Indeed, Governor Whitmer and WCPA Mackie stipulated that the activities in question are not prohibited by Executive Order 2020-59, and that stipulation was confirmed in a binding order from this Court. See ECF No. 24, PageID.389. Plaintiff Muise asserts that the Governor could re-impose the challenged restrictions. See Am. Compl. ¶ 23, ECF No. 25, PageID.397. Whether this is true or not, Plaintiff Muise does not allege that new restrictions on gun sales or religious gatherings are actually imminent, and he certainly does not allege that there is any immediate prospect of WCPA Mackie prosecuting him. See id. ¶¶ 56-60, ECF No. 25, PageID.407-408.
LEGAL STANDARDS Article III standing and sovereign immunity are questions of subject matter jurisdiction properly decided under Federal Rule of Civil Procedure 12(b)(1). Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017) (Article III standing); Spurr v. Pope, 936 F.3d 478, 485 (6th Cir. 2019) (sovereign immunity). As relevant here, a complaint must allege facts sufficient to support jurisdiction. See Nichols v. Muskingum College, 318 F.3d 674, 677 (6th Cir. 2003). Well-pled allegations in the complaint are taken as true. See Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). The Court, however, need not accept as true “conclusory
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allegations” or “legal conclusions masquerading as factual conclusions.” Rote v. Zel Custom Mfg. LLC, 816 F.3d 383, 387 (6th Cir. 2016).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether a cognizable claim has been pled for which the pleader is entitled to relief. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Rondigo, LLC v. Twp. of Richmond, 641 F.3d 673, 680 (6th Cir. 2011). However, a plaintiff’s “obligation to provide the grounds for their claimed entitlement to relief ‘requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
ARGUMENT5 I. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER
PLAINTIFFS’ CLAIMS. A suit seeking pre-enforcement review of a criminal statute—or, here, an executive order with potential criminal penalties—must clear at least three jurisdictional hurdles: (1) the plaintiff must have standing; (2) the challenge must be ripe; and (3) the case must not be moot. See Nat’l Rifle Ass’n v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997); Rettig v. Kent City School Dist., 788 F.2d 328, 330 (6th Cir. 1986). Plaintiffs fail to clear these hurdles to presenting an actual controversy for review. First, Plaintiffs are unable to identify an actual injury or credible future injury that gives rise to a reviewable claim. Thus, there is neither standing nor ripeness in this matter. Further, Executive Order 2020-59 allows Plaintiffs to engage in the activities at issue, so there is no longer an actual controversy as to WCPA Mackie, and the claims against him are 5 WCPA Mackie also relies upon and incorporates the arguments made by Governor Whitmer and Attorney General Nessel in their motions to dismiss, all of which would apply to him as well. And, clearly, if the Court dismisses Plaintiffs’ claims against the State defendants, there can be no independent claim against WCPA Mackie.
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moot not capable of review. For these reasons alone, this lawsuit must be dismissed as to WCPA Mackie.
A. Plaintiffs Are Not Entitled to Pre-Enforcement Review of the Threatened Conduct and Thus, this Lawsuit against WCPA Mackie Lacks Standing and Ripeness.
Plaintiffs lack standing to pursue claims against WCPA Mackie – claims that are also not ripe – because they do not warrant pre-enforcement review. To establish standing, a plaintiff must show (among other things) an actual injury-in-fact that is neither speculative nor hypothetical. Lujan, 504 U.S. at 560-61 (citations omitted). An allegation of future harm counts as an injury in fact only when the future harm is certainly impending or when there is a substantial risk that harm will occur. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Plaintiffs must establish standing as to each defendant. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006). Where, as here, a plaintiff cannot plead an actual injury and relies on a “threatened” harm, the plaintiff must (1) allege that he intended to engage in a constitutionally protected activity prohibited by law and (2) establish a “credible threat of prosecution” by the defendant in question. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979); McKay v. Federspiel, 823 F.3d 862, 867 (6th Cir. 2016). Meanwhile, the related doctrine of “ripeness” requires that “the injury in fact be certainly impending,” and precludes courts from reviewing “matters that are premature because the injury is speculative and may never occur. . .” Nat’l Rifle Ass’n, 132 F.3d at 280 (citations and quotation marks omitted). The ripeness doctrine is often implicated where an injury alleged for standing purposes is not actual, but merely threatened. Airline Prof’ls Ass’n of Int’l Bhd.of Teamsters, Local Union No. 1224, AFL-CIO v. Airborne, Inc., 332 F.3d 983, 988 (6th Cir. 2003) (citing Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975)). Plaintiffs’ claims against WCPA Mackie fail on both standing and ripeness grounds.
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1. Plaintiff Muise has not established a credible threat of prosecution by WCPA Mackie.
Plaintiff Muise’s allegations are insufficient to establish a credible threat of prosecution by WCPA Mackie. When plaintiffs “do not claim that they have ever been threatened with prosecution, that a prosecution is likely, or even that a prosecution is remotely possible,” they are not entitled to pre-enforcement review of a claim. Babbitt, 442 U.S. at 298-99 (quoting Younger v. Harris, 401 U.S. 37, 42 (1971)). Persons “having no fear[] of state prosecution except those that are imaginary or speculative[] are not to be accepted as appropriate plaintiffs.” Younger, 401 U.S. at 42. A plaintiff’s statement that he feels “inhibited” from engaging in certain activities, even if true, is not enough to make a dispute susceptible to resolution by a federal court. Id. Rather, a plaintiff who has not actually been threatened with enforcement must also
point to some combination of the following factors: (1) a history of past enforcement against the plaintiffs or others; (2) enforcement warning letters sent to the plaintiffs regarding their specific conduct; and/or (3) an attribute of the challenged statute that makes enforcement easier or more likely, such as a provision allowing any member of the public to initiate an enforcement action. McKay, 823 F.3d at 869 (citations omitted). In other words, plaintiffs lack standing for a preenforcement challenge when “the record is silent as to whether” the defendant in question “threatened to punish or would have punished” the plaintiff “for proposed conduct that might violate the challenged policy or statute.” Id.; see, e.g., Morrison v. Bd. of Educ. of Boyd Cty., 521 F.3d 602, 610 (6th Cir. 2008) (plaintiff failed to establish injury-in-fact because he did not establish that the defendant “school district threatened to punish or would have punished [him] for protected speech in violation of its policy,” and the court was left to “speculate” as to whether he would have been punished). Here, there is no allegation that WCPA Mackie threatened to prosecute Plaintiff Muise for holding prayer gatherings or traveling to gun stores in the past, and no allegation he threatens
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to do so in the future. Nor is there any allegation WCPA Mackie has prosecuted anyone else for such conduct or sent warning letters to Plaintiff Muise. See McKay, 823 F.3d at 869. And there is no private enforcement mechanism in the now-rescinded Executive Order 2020-42 or any of the other relevant executive orders, nor is there any allegation of any act that made or makes “enforcement easier or more likely.” See id. Because “the record is silent” as to any threats of enforcement by WCPA Mackie, Plaintiff Muise lacks standing to sue him. See id.
Younger demonstrates this point. There, four plaintiffs sought to enjoin enforcement of a state statute that was allegedly being used to target leftist political activists. See Younger, 401 U.S. at 38-40. The Court held that the lead plaintiff, Harris, had an “acute, live controversy with the State and its prosecutor” because he was actually being prosecuted when the suit was filed. Id. at 41. However, the Court held that the other plaintiffs failed to allege a live controversy. Their claim that they “fe[lt] inhibited” from exercising their First Amendment rights by Harris’s prosecution was insufficient because “none ha[d] been indicted, arrested, or even threatened by the prosecutor.” Id. Meanwhile, the Sixth Circuit’s recent decision in another COVID-19 case, Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 2020 WL 2111316 (6th Cir. 2020) (per curiam), illustrates the other end of the spectrum. There was clearly a credible threat the plaintiff church’s members would be prosecuted for attending the next drive-in service because police officers had shown up at the prior service, told congregants “that their attendance at the drive-in service amounted to a criminal act,” and recorded all their license plate numbers. Id. at *1.
In this case, the threat of enforcement is even more speculative than in Younger, and nothing like Maryville Baptist. Plaintiffs do not allege that WCPA Mackie has prosecuted or threatened to prosecute anyone for holding a prayer gathering or traveling to a gun store. Nor is there any allegation that WCPA Mackie or any other law enforcement officer contacted Plaintiff
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Muise and warned him he was or would be breaking the law by praying with his family or traveling to purchase a gun.
Finally, Plaintiffs may point to their allegations that Governor Whitmer “will continue to issue executive orders in light of the current . . . pandemic” and that Attorney General Nessel “is actively involved with investigating and enforcing violations of [the executive orders], and has issued cease and desist letters to individuals and businesses that have violated these orders, threatening criminal sanctions.” See Am. Compl. ¶ 17, ECF No. 25, PageID.396-397. But none of that matters to Plaintiff Muise’s claims against Defendant Mackie. “[S]tanding is not dispensed in gross,” and so Plaintiffs must establish standing as to each defendant. DaimlerChrysler, 547 U.S. at 353 (plaintiff challenging both state and municipal taxes was required to establish standing against each government defendant). Plaintiffs, however, failed to allege a single fact suggesting a credible threat of enforcement by WCPA Mackie. Therefore, Plaintiffs’ claims against him are not ripe and should be dismissed pursuant to Rule 12(b)(1).
2. Plaintiff Muise has not properly alleged an intention to engage in a potentially proscribed gathering.
Plaintiff Muise also lacks standing for his prayer-gathering claim because he has not demonstrated an intent to engage in prohibited activity. A mere general intent or desire to do some act in the future is insufficient to establish standing. See Lujan, 504 U.S. at 563-64. As to this claim, Plaintiffs allege only that “Plaintiff Muise would like his family to gather together on Sundays” for association and worship. Am. Compl. ¶ 47, ECF No. 25, PageID.404. But Plaintiff Muise, his wife, and the seven children who live with them were clearly free to gather for prayer under the now-rescinded Executive Order 2020-42 because they all live under the same roof. Plaintiffs have not alleged that Plaintiff Muise’s five adult children who live elsewhere – the ones who were actually potentially prevented from traveling to Plaintiff Muise’s home – share
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his desire for weekly prayer gatherings, or that those individuals had concrete plans to attend any particular prayer gathering. Plaintiff Muise’s desire to have his adult children visit him for association and worship is understandable, and likely shared by many parents in these difficult times. But a desire to have other people do something that might have been prohibited does not give Plaintiff Muise standing. See Lujan, 504 U.S. at 563-64; McKay, 823 F.3d at 867. Furthermore, even if Plaintiff Muise had properly alleged intent to hold a gathering, Executive Order 2020-42 excepted “a place of religious worship, when used for religious worship” from penalty. See ECF No. 25-1, PageID.418 ¶ 13. Therefore any gathering at Plaintiff Muise’s home for worship could not have been subject to prosecution by WCPA Mackie and Plaintiffs’ claims fail for lack of standing.
B. Plaintiff Muise’s Claims against WCPA Mackie are Moot and Do Not Fall Under an Exception to the Mootness Doctrine.
This action must be dismissed because Plaintiff Muise’s claims are also moot. Executive Order 2020-42 is no longer in effect, and the executive orders that replaced it do not proscribe the activities in the Amended Complaint. “Article III of the Constitution limits federal courts to the adjudication of actual, ongoing controversies between litigants.” Deakins v. Monaghan, 484 U.S. 193, 199 (1988). A case is moot when the requested relief is granted or no live controversy remains. Thomas Sysco Food Servs. v. Martin, 983 F.2d 60, 61 (6th Cir. 1993); see Maryville Baptist, 2020 WL 2111316 at *1 (stating that a challenge to Kentucky’s COVID-19 order prohibiting drive-in religious services would become moot when the state permitted places of worship to reopen).
Here, there is no ongoing controversy between Plaintiff Muise and WCPA Mackie. Executive Order 2020-59 mooted Plaintiffs’ claims against WCPA Mackie because it rescinded the challenged restrictions. All parties – including Plaintiffs – agreed as much, and this
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agreement among the parties is binding pursuant to the Court’s April 27, 2020 order. See ECF No. 24, PageID.389-393 (stipulated order stating that Executive Order 2020-59 permitted Plaintiffs to engage in the activities that form the basis of their Amended Complaint). Therefore, no live controversy remains. See Maryville Baptist, 2020 WL 2111316 at *1; Thomas Sysco Food Servs., 983 F.2d at 61.
Contrary to Plaintiffs’ assertions, the “voluntary cessation” exception to the mootness rule does not change the analysis. See Am. Compl. ¶ 56, ECF No. 25, Page.ID 407-408 (citing United States v. W. T. Grant Co., 345 U.S. 629, 632 (1953)). W.T. Grant held that where a private defendant voluntarily ceases allegedly illegal conduct, a claim is only moot if that private defendant can sustain the “heavy” burden of demonstrating “that there is no reasonable expectation that the wrong will be repeated.” See 345 U.S. at 632-33. But a different standard applies to voluntary cessation by government officials. Speech First, Inc. v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019). The “burden in showing mootness is lower,” and government defendants are entitled to be “treated with more solicitude by the courts.” Id. “Government action receives this solicitude because courts assume that the government acts in good faith.” Id. (cleaned up). And because of that assumption, courts “presume that the same allegedly wrongful conduct by the government is unlikely to recur.” Id. (emphasis added; citations omitted). This rule applies to “both legislative and non-legislative governmental actions.” Id. at 768 (citations omitted). At the same time, when “one agency or individual” has the power to reverse a government policy, a government defendant may not rely on “the bare solicitude” of the courts to demonstrate mootness. See id. But as long as a “government’s self-correction . . . appears genuine,” it “provides a secure foundation for dismissal based on mootness.” Id. at 767.
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Here, Governor Whitmer and WCPA Mackie agreed to a stipulated order confirming that Executive Order 2020-59, which replaced Executive Order 2020-42, permits “the sale of guns from any store via remote order and curbside pick-up, and the sale of guns in-store from stores that sell necessary supplies as well as guns in their normal course of business,” and that Executive Order 2020-59 also “permits individuals, including Plaintiff Muise, to travel to and from such businesses.” ECF No. 24, PageID.391. Similarly, the stipulated order confirms that Executive Order 2020-59 “exempts from penalty religious gatherings at private residences,” and that “Plaintiff Muise is not subject to penalty under the order for holding religious gatherings with his immediate family at his private residence.” Id. Plaintiff Muise does not claim that WCPA Mackie has reneged on those agreements. And, it appears that Plaintiff Muise is still permitted to hold prayer gatherings in his home and travel to gun stores under the executive orders that followed Executive Order 2020-59. There is certainly nothing to suggest that WCPA Mackie is not acting in good faith, and therefore the agreement memorialized in the stipulated order “provides a secure foundation for dismissal based on mootness.” Speech First, 939 F.3d at 767; see, e.g., Hill v. Snyder, 878 F.3d 193, 204 (6th Cir. 2017) (Count I of amended complaint held moot because it “challenge[d] a statutory provision that ceased to apply to Plaintiffs six months before they filed” the operative pleading). Thus, Plaintiff Muise’s claims against WCPA Mackie must be dismissed as moot. II. WCPA MACKIE IS ENTITLED TO SOVEREIGN IMMUNITY UNDER THE
ELEVENTH AMENDMENT.
Generally speaking, Eleventh Amendment sovereign immunity extends to state officials in general. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984) (“[A]n unconsenting State is immune from suits brought in federal courts by her own citizens as well as citizens of another state.”). It also applies to Michigan county prosecutors (such as WCPA
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Mackie) when they carry out a criminal prosecution pursuant to their authority under state law, which would be the case here. See Cady v. Arenac Cty., 574 F.3d 334, 343 (6th Cir. 2009); Gavitt v. Ionia Cty., 67 F. Supp. 3d 838, 842 (E.D. Mich. 2014), aff’d sub nom. Gavitt v. Born, 835 F.3d 623 (6th Cir. 2016).
When city or county prosecutors are responsible for prosecuting “state” charges, the prosecutors are pursuing their duties as state agents who enforce state law or policy. Cady, 574 F.3d at 342. Under statutory law, county prosecutors are charged with prosecuting and defending “all prosecutions, suits, applications and motions, whether civil or criminal, in which the state or county may be a party of interested.” Mich. Comp. Laws § 49.153. In this case, there are no allegations specific to WCPA Mackie, let alone allegations that WCPA Mackie is not a state agent. Nor could there be because the conduct underlying any hypothetical prosecution by WCPA Mackie would relate to the state’s Executive Orders, and therefore state law or policy. Thus, WCPA Mackie is a state agent who is insulated from any liability in this matter through sovereign immunity under the Eleventh Amendment. See id.
Nor does any exception to Eleventh Amendment sovereign immunity apply in this case. Although federal courts may grant relief when state agents threaten and are about to commence enforcement against parties allegedly harmed by an unconstitutional act, this exception to sovereign immunity is strictly applied and inapplicable here. See Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1415 (6th Cir. 1996) (refusing to read the exception to sovereign immunity in Ex parte Young, 209 U.S. 123, 155-56 (1908) expansively and instead, upholding sovereign immunity against state official who did not commence and was not about to commence proceedings against plaintiffs). Critically, the exception does not apply “when a defendant state official has neither enforced nor threatened to enforce the allegedly
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unconstitutional state statute.” Id. (citations omitted). Thus, their “mere” authority to enforce state laws is not enough to exercise jurisdiction over a state actor. Id. (citing 1st Westco Corp. v. School Dist. of Phila., 6 F.3d 108, 113 (3d Cir. 1993)).
Here, WCPA Mackie’s “general authority” to enforce the laws in Washtenaw County is not enough for Plaintiff Muise to invoke the exception to sovereign immunity. See Children’s Healthcare, 92 F.3d at 1416. For the exception to apply, WCPA Macke must threaten and be about to commence proceeding. Id. But Plaintiff Muise has not alleged that WCPA Mackie enforced or threatened to enforce Executive Order 2020-42 against him, nor has he asserted that WCPA Mackie has otherwise threatened to prosecute him for holding prayer gatherings in his home or traveling to a gun store. “What we have here is not action, but inaction, and [the] Young [exception] does not apply.” Id.
Nor is there a realistic possibility that WCPA Mackie will take legal or administrative actions against the Plaintiffs. For there to be a “realistic possibility” of prosecution that would skirt sovereign immunity, there must plainly be a realistic risk that WCPA Mackie will conclude that what Plaintiff Muise wants to do is illegal. Cf. Russell v. Lundergan-Grimes, 784 F.3d 1037, 1044, 1048 (6th Cir. 2015) (state officials and board were not entitled to sovereign immunity because while no prosecution under the challenged election law had been initiated, state agents routinely administered election law and trained others in its enforcement). Here, there is no such risk because Executive Order 2020-42 has been rescinded, WCPA Mackie stipulated that Executive Order 2020-59 permits Plaintiff Muise to hold prayer gatherings in his home and travel to a gun store, and no other executive order or law prohibits those activities. There is no realistic possibility that WCPA Mackie will prosecute Plaintiff Muise for conduct that everyone agrees is legal. Furthermore, Executive Order 2020-42 excepted “a place of religious worship,
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when used for religious worship” from penalty, and therefore WCPA Mackie could not have prosecuted Plaintiff Muise under this executive order. See ECF No. 25-1, PageID.418 ¶ 13. Thus, WCPA Mackie is entitled to Eleventh Amendment immunity, and Plaintiffs’ claims against him should be dismissed. III. THE CHALLENGED RESTRICTIONS WERE A PROPER EXERCISE OF THE
STATE’S EXPANDED AUTHORITY UNDER JACOBSON TO PROTECT THE PUBLIC HEALTH. Setting the jurisdictional defects of this matter aside, the challenged restrictions under Executive Order 2020-42 were a proper exercise of the Governor’s expanded authority to “protect the public health” from the dire effects of the unprecedented COVID-19 pandemic. See Jacobson, 197 U.S. at 28. Plaintiffs cannot reasonably deny that the COVID-19 pandemic is a public health crisis. See In re Abbott, 954 F.3d 772, 779 (5th Cir. 2020) (writing on April 7, 2020 and stating that “Federal projections estimate that, even with mitigation efforts, between 100,000 and 240,000 people in the United States could die”). Therefore, pursuant to Jacobson, the usual tiers of scrutiny do not apply and the restrictions, to be upheld, need only be “substantial[ly] relat[ed] to the protection of the public health and the public safety.” Id. at 31. Even accepting all of Plaintiffs’ allegations as true, the restrictions are constitutionally permissible under the Jacobson framework, and Plaintiffs’ Amended Complaint should be dismissed. A. A State Combatting A Public Health Crisis Has Expanded Authority Under
Jacobson. “[U]nder the pressure of great dangers,” state actions taken to preserve the public health and safety must be upheld as long as they are “substantial[ly] relat[ed] to those objects.” Jacobson, 197 U.S. at 31. In Jacobson, the Supreme Court upheld a state’s mandatory smallpox vaccination law, implemented in response to a growing smallpox epidemic, as a proper exercise of the state’s expanded police power to combat a public health crisis. Id. The Court reasoned that
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“the liberty secured by the Constitution of the United States . . . does not import an absolute right in each person to be . . . wholly freed from restraint.” Id. at 38. Rather, “persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state.” Id. at 26. “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. The Court recognized that when state officials implement emergency measures to save lives in the face of a deadly epidemic, a federal court should not hamstring their efforts by second-guessing their decisions unless an action “has no real or substantial relation” to the public health or safety, “or is, beyond all question, a plain, palpable invasion of” constitutional rights. Id. at 31.
The Fifth Circuit recently confirmed that Jacobson applies to state actions – such as those here – which are taken to limit the spread of COVID-19. See In re Abbott, 954 F.3d at 785 (“Jacobson remains good law.”). In that case, several abortion providers challenged the Governor of Texas’s executive order requiring all healthcare facilities and professionals to postpone elective surgeries. Id. at 780. The district court granted a temporary restraining order, creating a blanket exception to the executive order for abortion providers. Id. at 783. But the Fifth Circuit temporarily stayed, and ultimately vacated the temporary restraining order. Id. at 779, 781. The court found that while the “measures would be constitutionally intolerable in ordinary times” they are “recognized as appropriate and even necessary responses to the present crisis.” Id. at 787. The court went on to explain that
[t]he bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “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.” Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are
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pretextual—that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures. Id. at 784-85. Other courts evaluating COVID-19 restrictions similar to those here have come to the same conclusion. See In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020) (concluding that the district court failed to meaningfully apply the Jacobson framework and abused discretion in granting a temporary restraining order exempting abortion clinics from an Arkansas directive postponing elective, non-emergency surgical procedures); Joseph Martin McGhee v. City of Flagstaff, et. al., No. cv-20-08081, 2020 WL 2308479, *3 (D. Ariz. May 8, 2020) (plaintiff was unlikely to succeed on the merits of his constitutional challenge of COVID-19 stay-at-home order under the Jacobson framework); Cross Culture Christian Center v. Newsom, No. 2:20-cv00832, 2020 WL 2121111, *4 (E.D. Cal. May 5, 2020) (under Jacobson, plaintiffs were not likely to succeed on the merits of their challenge to California’s stay-at-home orders); Cassell v. Snyders, No. 20-c-50153, 2020 WL 2112374, *7 (N.D. Ill. May 3, 2020) (finding that the plaintiffs had a “less than negligible chance” of prevailing on their challenge to the constitutionality of Illinois’s stay at home order, because, as Jacobson explains, “the traditional tiers of constitutional scrutiny do not apply” during an epidemic); Gish v. Newsom, No. EDCV 20-755 JGB, 2020 WL 197990, (C.D. Cal. April 23, 2020) (under Jacobson, COVID-19 restrictions are “not subject to traditional constitutional scrutiny,” and state defendants are entitled to “substantial judicial deference”). Indeed, even when it found Kentucky’s prohibition on drive-in church services improper, the Sixth Circuit still recognized that the state was entitled to great deference under Jacobson. See Maryville Baptist, 2020 WL 2111316 at *4. Closer to home, a Michigan state court, relying on Jacobson, denied a motion for a preliminary injunction restraining Defendant Whitmer and Defendant Nessel from implementing
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certain provisions of Executive Order 2020-59. Martinko v. Whitmer, No. 20-00062-MM (Mich. Ct. Cl. April 29, 2020) (Ex. F). The court explained that Jacobson “compels [it] to conclude that plaintiffs do not have a substantial likelihood of success on the merits . . . . not because the rights asserted by plaintiffs are not fundamental” but because “those liberty interests are, and always have been, subject to society’s interests.” Id. at 10. It further explained that the “role courts play under Jacobson . . . is not to second-guess the state’s policy choices in crafting emergency public health measures, but is instead to determine whether [the measures 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.’” Id. at 11 (quoting In re Abbott, 954 F.3d at 784).
B. The Restrictions under Executive Order 2020-42 Were Substantially Related to Combatting the COVID-19 Pandemic.
Again, Plaintiffs cannot reasonably deny that COVID-19 is a public health crisis unparalleled in recent history. See In re Abbott, 954 F.3d at 779. This unprecedented global public health crisis is precisely the sort of “great danger” contemplated by Jacobson. Therefore the Court cannot interfere with state officials’ COVID-19 mitigation efforts unless a particular action has no substantial relation to public safety, or if it is “beyond all question, a plain, palpable invasion of” constitutional rights. Jacobson, 197 U.S. at 31.
The challenged aspects of Executive Order 2020-42 relevant to WCPA Mackie—that it limited the Muise family’s ability to gather for prayer and Plaintiff Muise’s ability to travel to gun stores—easily survive this level of review. As the introduction to Executive Order 2020-42 makes clear, the Governor restricted nonessential travel after careful consideration of the known facts: COVID-19 was spreading quickly and brutally, and there was “no approved vaccine or antiviral treatment.” See ECF No. 25, PageID.418. Plaintiffs disagree with the Governor’s choices, but they cannot plausibly contend that the stay-at-home order was not substantially
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related to public safety. See Jacobson, 197 U.S. at 31. And this Court “may not second-guess the wisdom or efficacy of the measures.” In re Abbott, 954 F.3d at 785 (citing Jacobson, 197 U.S. at 28, 30). Tellingly, in Compagnie Francaise de Navigation a Vapeur v. Bd. of Health of Louisiana, 186 U.S. 380, 381, 393 (1902), the Supreme Court held that it was not unconstitutional for state officials to prohibit healthy people from entering portions of the state where “infectious and contagious diseases were present.” That holding, and the Court’s subsequent approval of compulsory vaccinations in Jacobson, make clear that COVID-19 justified the restrictions in Executive Order 2020-42. Indeed, where COVID-19 has been found to justify an order requiring women to carry unwanted pregnancies until the order’s expiration, it cannot be said that Governor Whitmer’s temporary restrictions on nonessential travel are “beyond question, in palpable conflict with the Constitution.” See In re Abbott, 954 F.3d at 789 (quoting Jacobson, 197 U.S. at 31) (emphasis in In re Abbott).6 IV. THE RESTRICTIONS RELEVANT TO WCPA MACKIE ALSO SURVIVE
UNDER A STANDARD CONSTITUTIONAL ANALYSIS. Even under a standard constitutional analysis, the now-rescinded restrictions that WCPA Mackie might have been called upon to enforce against Plaintiff Muise still pass muster. For the following reasons, Plaintiffs’ claims for equal protection, due process, Second Amendment, freedom of association, and free exercise violations should all be dismissed. A. Plaintiff Muise Fails to State an Equal Protection Violation. The Equal Protection Clause of the Fourteenth Amendment “embodies the principle that all persons similarly situated should be treated alike.” Scarborough v. Morgan Cty. Bd. of Educ., 6 Plaintiffs do repeatedly allege that “[t]he challenged measures . . . have no real or substantial relation to the objectives of the orders, and are a palpable invasion of rights secured by fundamental law.” See, e.g., Am. Compl. ¶ 66, ECF No. 25, PageID.409-410. But a plaintiff cannot survive a motion to dismiss by relying on mere “labels and conclusions,” and “a formulaic recitation of the elements of a cause of action will not do.” Rondigo, 641 F.3d at 680 (quoting Twombly, 550 U.S. at 555).
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470 F.3d 250, 260 (6th Cir. 2006). To state a claim for relief under the Equal Protection Clause, a plaintiff must demonstrate that the government treated the plaintiff differently from similarly situated persons and that such disparate treatment (1) burdens a fundamental right, (2) targets a suspect class, or (3) was intentional and without a rational basis. Radvansky v. City of Olmsted Falls, 395 F.3d 291, 312-13 (6th Cir. 2005). Disparate treatment is “the threshold element of an equal protection claim.” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011). Therefore, failure to plead a “plausible allegation of disparate treatment” is grounds for dismissal under Rule 12(b)(6). Id.
For example, in Center for Bio-Ethical Reform, a pro-life non-profit organization asserted an equal protection claim arising out the Department of Homeland Security’s alleged policy of targeting those individuals and groups deemed to be “rightwing extremists.” Id. at 367. The court, however, dismissed the plaintiff’s equal protection claim because it failed “to make a plausible allegation that similarly situated organizations and individuals, of a different political viewpoint, have not been subject to the same alleged treatment.” Id. at 379. It explained that plaintiffs failed “to make any comparison to similarly situated groups” and that the complaint “read broadly . . . alleges injury to nearly all Americans.” Id.
As in Center for Bio-Ethical Reform, Plaintiff Muise fails to state a “plausible allegation of disparate treatment” by WCPA Mackie (again, Plaintiff Muise fails to allege any allegations against WCPA Mackie). Plaintiffs generally allege that the “executive orders deprive Plaintiffs of their fundamental rights and freedom” yet “provide exceptions for other activity and conduct that is similar in its impact and effects.” See Am. Compl. ¶ 66, ECF No. 25, PageID.409-410. But the Amended Complaint does not identify the fundamental rights supposedly at issue, the mistreated group that Plaintiff Muise supposedly belongs to, or the similarly-situated persons
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who supposedly received more favorable treatment, much less allege that WCPA Mackie did or intends to do anything to cause any disparate treatment. See Am. Compl. ¶¶ 64-68, ECF No. 25, PageID.409-410. Plaintiff Muise’s mere recitations of the elements of an equal protection claim are insufficient, and this claim must be dismissed. Center for Bio-Ethical Reform, 648 F.3d at 379; see Rondigo, 641 F.3d at 680.
B. Plaintiff Muise Has Not Stated a Claim for a Due Process Violation of His Right To Travel.
The Sixth Circuit recognizes a fundamental right to intrastate travel—the “right to travel locally through public spaces and roadways”—under the Due Process Clause of the Fourteenth Amendment. See Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002). But that right, like even the most “importan[t] and fundamental” individual liberties, “may, in circumstances where the government’s interest is sufficiently weighty, be subordinated to the greater needs of society.” See id. at 503 (citing United States v. Salerno, 481 U.S. 739 (1987)).
Horribly, there were nearly 1,000 confirmed COVID-19 deaths and over 20,000 confirmed cases in Michigan when Executive Order 2020-42 was issued on April 9, and the virus was “spreading very easily and sustainably throughout the country.” ECF No. 25, PageID.419; In re Abbott, 954 F.3d at 779 (citation omitted). “Federal projections estimate[d] that, even with mitigation efforts, between 100,000 and 240,000 people in the United States could die.” Id. Travel restrictions were imposed to stop the spread of the virus. There can be no more weighty an interest than preventing thousands of needless deaths. If COVID-19 does not justify temporary restrictions on the right to travel, then the standard articulated in Johnson is meaningless.7
7 In any case, the travel restrictions at issue here were of limited scope and duration, and thus subject only to intermediate scrutiny. See Cole v. City of Memphis, 839 F.3d 530, 537-38 (6th Cir. 2016). And the restrictions survive intermediate scrutiny because fighting COVID-19 is
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C. Plaintiff Muise Fails to State a Second Amendment Claim. Plaintiff Muise fails to state a claim for violation of his Second Amendment right to bear arms because the restrictions under Executive Order 2020-42 were facially neutral and generally applicable. Neutral laws of general applicability are presumed constitutional. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); Arcara v. Cloud Books, Inc., 478 U.S. 697, 704 (1986) (“It is beyond dispute that the States and the Federal Government can subject newspapers to generally applicable economic regulations without creating constitutional problems.”). Here, Executive Order 2020-42 is facially neutral. And the Second Amendment “is not implicated by the enforcement of a public health regulation of general application against” a store that “happen[s] to sell” guns. Id. at 707. Therefore, Plaintiffs failed to state a claim for violation of the Second Amendment and that claim should therefore be dismissed. Furthermore, Executive Order 2020-42 could not have infringed on Plaintiffs’ Second Amendment right to bear arms because the activity alleged in Plaintiffs’ complaint falls outside the scope of activities protected by the Second Amendment. Where a challenged statute “regulates activity falling outside the scope of the Second Amendment,” as historically understood, then “the activity is unprotected and the law is not subjected to further constitutional scrutiny.” Tyler v. Hillsdale Cty. Sheriff's Dep’t, 837 F.3d 678, 685-86 (6th Cir. 2016) (en banc). Here, according to Plaintiff Muise, Executive Order 2020-42 prevented him from purchasing and training with firearms. See ECF No. 25, PageID.402, 412. But these activities
Continued from previous page.
unquestionably a “significant governmental interest,” and the restrictions were reasonably fit to that interest, even if the fit was “not necessarily perfect.” See, e.g., Tanks v. Greater Cleveland Reg’l Transit Auth., 930 F.2d 475, 480 (6th Cir. 1991) (recognizing “the compelling government interest in protecting public safety”); Neinast v. Bd. of Trustees of Columbus Metro. Library, 346 F.3d 585, 594 (6th Cir. 2003) (explaining intermediate scrutiny); see also Def. Whitmer’s Resp. to Pls.’ Mot. for TRO and PI, ECF No. 10, PageID.191-193.
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fall outside the scope of the Second Amendment and have no impact on Muise’s right to bear arms. But even if purchasing and training with firearms were historically recognized as activity protected by the Second Amendment, see Tyler, 837 F.3d at 688, it was also historically understood that the exercise of those rights was subject to “the laws of public order,” see District of Columbia v. Heller, 554 U.S. 570, 617 (2008) (citation omitted). Indeed, “laws imposing conditions and qualifications on the commercial sale of arms” are “presumptively valid.” Id. at 626-27 & n.26. Or, as relevant here, there was and is no historically recognized right to purchase guns and visit shooting ranges during a deadly pandemic. Thus, Executive Order 2020-42 “is not subject[] to further constitutional scrutiny.” Tyler, 837 F.3d at 685-86; see also Def. Whitmer’s Resp. to Pls.’ Mot. for TRO and PI, ECF No. 10, PageID.195-201.8
D. Plaintiffs Fail to State a First and Fourteenth Amendment Freedom of Association Claim.
Plaintiff Muise appears to plead a full range of freedom of association claims. See Am. Compl. ¶¶ 82-86, ECF No. 25, PageID.413-414 (referencing rights to expressive, religious, and intimate association). But all association rights are subject to regulation in appropriate circumstances. See, e.g., Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); Akers v. McGinnis, 352 F.3d 1030, 1040 (6th Cir. 2003). And under any level of scrutiny, temporarily limiting interactions between households was and is an appropriate reaction to the dire, ongoing threat posed by COVID-19. See Def. Whitmer’s Resp. to Pls.’ Mot. for TRO and PI, ECF No. 10, PageID.200-203.
8 Plaintiff Muise does not claim that Article 1, § 6 of the Michigan Constitution applies any differently here than the Second Amendment, see Am. Compl. ¶¶ 76-81, ECF No. 25, PageID.412-413, so there is no need to address it separately.
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E. Plaintiff Muise Fails to State a First Amendment Free Exercise Claim. Finally, Plaintiff Muise has not adequately asserted a Free Exercise Claim. The protections of the Free Exercise Clause only apply when a law “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Church of Lukumi Babalu Aye, 508 U.S. at 532 (emphasis added). However, “neutral, generally applicable laws that incidentally burden the exercise of religion do not violate the Free Exercise Clause of the First Amendment.” Holt v. Hobbs, 574 U.S. 352, 356-57 (2015); see also New Doe Child #1 v. Congress of the United States, 891 F.3d 578, 592-93 (2018) (affirming dismissal of the plaintiffs’ free exercise claim because the challenged statute was neutral and generally applicable, there were no allegations that the statute was intended to discriminate against the plaintiffs or suppress any religion, and the statute had a secular purpose). Executive Order 202042 was a neutral order of general applicability and only incidentally burdened Plaintiff Muise’s exercise of religion, if it imposed any burden at all. Further, there is no allegation that the order was intended to discriminate against or suppress Plaintiff Muise’s Catholic faith. And the secular purposes of the order—most importantly “to avoid needless deaths”—are self-evident. See ECF No. 25, PageID.419. Executive Order 2020-42 passes constitutional muster.
CONCLUSION COVID-19 has disrupted the lives of hundreds of millions of Americans, including virtually every Michigander. Tens of thousands of have died. And because there is no vaccine and no cure, many more will likely die needlessly if government officials do not impose reasonable restrictions on otherwise normal activities. That means everyone must sacrifice. Fortunately, that collective sacrifice has led to progress, and the restrictions relevant to WCPA Mackie—travel restrictions that limited Plaintiff Muise’s ability to hold prayer gatherings in his home and his ability to visit gun stores and shooting ranges—have been lifted. But that is not
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good enough for Plaintiff Muise. He now asks this Court to enter an order guaranteeing that no

such restrictions will ever be imposed again.

The Court may not grant his request. In legal terms, Plaintiff Muise lacks standing, his

claims are not ripe, his claims are moot, and sovereign immunity is an impassable bar as to

WCPA Mackie. Plus, Jacobson prohibits this Court from micro-managing the Governor’s

response to the pandemic, and Plaintiff Muise’s claims would fail under a routine constitutional

analysis regardless. This case, though, is about much more than the usual struggle to define

constitutional limits on government power. COVID-19 is still killing dozens of people in

Michigan every day, hundreds of people around the country, and thousands worldwide.

Plaintiffs’ logic leads to a patchwork response that is subject to the policy preferences of

individual judges, likely acting without complete information, as well as to the whims of persons

who are willing to risk the lives of others by putting their own personal interests ahead of public

safety. The Constitution does not require others to die so that Plaintiff Muise may enjoy

unfettered exercise of his personal liberties – liberties that are not even being restricted. The

Court should dismiss Plaintiff Muise’s claims against WCPA Mackie with prejudice.

Respectfully submitted,

MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.

By: /s/ Sonal Hope Mithani Sonal Hope Mithani (P51984) Joel C. Bryant (P79506) 101 North Main, Seventh Floor Ann Arbor, MI 48104 (734) 668-7786 Mithani@millercanfield.com Bryant@millercanfield.com

Dated: May 20, 2020

Attorneys for Defendant Brian L. Mackie, Washtenaw County Prosecuting Attorney

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Case 1:20-cv-00323-PLM-PJG ECF No. 34 filed 05/20/20 PageID.686 Page 35 of 36 CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief contains 8,675 words and therefore complies with Local Civil Rule 7.2(b)(i). This word count was generated using Microsoft Word 2010.
By: /s/ Sonal Hope Mithani Sonal Hope Mithani
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CERTIFICATE OF SERVICE I hereby certify that on May 20, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system which will send notification of such filing to all ECF filers of record.
By: /s/ Sonal Hope Mithani Sonal Hope Mithani

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, et al.,

Plaintiffs, v. GRETCHEN WHITMER, et al.,
Defendants.

No. 1:20-cv-00323 Hon. Paul L. Maloney Mag. Phillip J. Green

INDEX OF EXHIBITS TO DEFENDANT BRIAN L. MACKIE’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Exhibit A: Exhibit B: Exhibit C: Exhibit D: Exhibit E: Exhibit F:

Executive Order 2020-4 Executive Order 2020-5 Executive Order 2020-9 Executive Order 2020-11 Executive Order 2020-21 Martinko v. Whitmer, No. 20-00062-MM, Michigan Court of Claims

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STATE OF MICHIGAN COURT OF CLAIMS

STEVE MARTINKO, et al, Plaintiffs,

OPINION AND ORDER REGARDING PLAINTIFFS’ APRIL 23, 2020 MOTION FOR A PRELIMINARY INJUNCTION

v

Case No. 20-00062-MM

GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANIEL EICHINGER, in his official capacity as Director of the Michigan Department of Natural Resources, and DANA NESSEL, in her official capacity as the Attorney General for the State of Michigan,

Hon. Christopher M. Murray

Defendants. ___________________________/

I. INTRODUCTION

This matter was filed by five Michigan residents who claim that three of Governor

Whitmer’s executive orders, Executive Orders 2020-21 and 2020-42,1 and now Executive Order

2020-59, infringe on their constitutional rights to procedural due process and substantive due

1 Plaintiffs recognize that EO 2020-21 was rescinded by EO 2020-42, and they claim that EO 2020-42 “extended the timeline originally set by [EO] 2020-21 and grossly expands its restrictions on businesses’ and individuals’ fundamental rights.” After the verified complaint was filed, EO 2020-42 was rescinded by EO 2020-59, which (among other things) eliminated the prohibitions on traveling intrastate to another residence, from not using motorized boats on the waterways, and to an extent allows the re-opening of some businesses and state parks. Although plaintiffs challenge the same restrictions set forth in EO 2020-42, the Court will for clarity sake refer to the restrictions within the current executive order, EO 2020-59, unless the timing period is relevant to any issue.
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process. Specifically, plaintiffs’ verified complaint alleges that the “mandatory quarantine” imposed by EO 2020-59 violates their right to both procedural due process (Count I) and substantive due process (Count II), and that the intrastate travel restrictions contained in EO 202042 also violate their rights to procedural due process (Count III) and substantive due process (Count IV). They also allege in Count V of their verified complaint that the Emergency Management Act, MCL 30.401 et seq., is an unconstitutional delegation of legislative power to the Governor. Plaintiffs have requested the Court issue a preliminary injunction—but not a permanent one—restraining these defendants from continuing to implement the provisions of EO 2020-59.2 Once restrained, plaintiffs seek a declaration that the challenged restrictions and the EMA are invalid.3
II. JURISDICTION Defendants first argue that this Court lacks subject matter jurisdiction because plaintiffs seek only injunctive relief based upon federal constitutional claims, which deprives the Court of jurisdiction to decide the matter. Defendants rely upon MCL 600.6440, which provides:
No claimant may be permitted to file claim in said court against the state nor any department, commission, board, institution, arm or agency thereof who has an adequate remedy upon his claim in the federal courts, but it is not necessary in the complaint filed to allege that claimant has no such adequate remedy, but that fact may be put in issue by the answer or motion filed by the state or the department, commission, board, institution, arm or agency thereof.
2 On April 23, 2020, the Court denied plaintiffs’ motion for an ex parte temporary restraining order on the ground that plaintiffs had not shown the threat of immediate and irreparable harm of physical injury or loss of property. 3 The Court appreciates the speed at which counsel submitted briefs, and for the high caliber of the briefs submitted.
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Because a federal court can exercise jurisdiction against state officers in their official capacity when seeking only prospective injunctive relief, defendants argue, MCL 600.6440 applies and the Court lacks jurisdiction to decide the matter.
The legal principles put forward by defendants are sound, but they do not apply to plaintiffs’ case. First, the statute refers to claims filed in the Court of Claims against the state, its departments, agencies, etc., and does not pertain to claims brought in this Court against individuals, as plaintiffs have done here. Thus, it is irrelevant whether claims against state officers in their official capacity brought in federal court might essentially be considered claims against the state. Second, with respect to defendants’ argument, plaintiffs seek declaratory rulings on each of their three challenges, and one of those challenges—the claim that the EMA violates the separation of powers doctrine—is based upon state law. So too is their challenge to the intrastate ban on travel to vacation rentals. Additionally, in their complaint plaintiffs seek “other and further relief as the Court deems appropriate,” which whatever that could end up being, it would go beyond the declaratory and limited injunctive relief requested in the complaint, and could include damages, even if only nominal. Because plaintiffs’ claims and forms of relief do not meet all the requirements of MCL 600.6440, this Court does not lack subject matter jurisdiction.
III. MOOTNESS Defendants also argue that plaintiffs’ case is moot because they only challenge EO 202021 and EO 2020-42, which have been rescinded, and EO 2020-59 is the only existing executive order containing these restrictions. True enough, but as defendants seem to recognize, it was after plaintiffs’ filing last week that the Governor issued EO 2020-59, and plaintiffs have not had time to seek to amend their complaint, and several of plaintiffs’ challenges to the prior EOs—the stayat-home provision and the ban on intrastate travel to vacation rentals—remain within EO 2020-
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59. Those two challenges are therefore not moot, as the Court can still render complete relief against those provisions. See CD Barnes Assoc, Inc v Star Haven, LLC, 300 Mich App 389, 406; 834 NW2d 878 (2013). The remainder of the challenges to EOs 2020-21 and 2020-42, as well as to the Department of Natural Resources rule4, have been removed by EO 2020-59, and are now moot.
The Court therefore concludes that the only remaining ripe challenges to the executive orders are (1) the stay-at-home provision, (2) the prohibition of traveling to a third-party vacation rental, and (3) the limited public access to certain public land. And, of course, plaintiffs’ challenge to the constitutionality of the EMA remains a live controversy.
IV. STANDARDS FOR A PRELIMINARY INJUNCTION “The objective of a preliminary injunction is to maintain the status quo pending a final hearing regarding the parties’ rights.” Alliance for the Mentally Ill of Mich v Dep’t of Community Health, 231 Mich App 647, 655–656; 588 NW2d 133 (1998). The status quo has been defined as “ ‘the last actual, peaceable, noncontested status which preceded the pending controversy.’ ” Buck v Thomas Cooley Law School, 272 Mich App 93, 98 n 4; 725 NW2d 485 (2006), quoting Psychological Services of Bloomfield, Inc v Blue Cross & Blue Shield of Michigan, 144 Mich App 182, 185; 375 NW2d 382 (1985). In Mich AFSCME Council 25 v Woodhaven–Brownstown Sch
4 Specifically, plaintiffs challenge a Department of Natural Resources rule, implemented in furtherance of EO 2020-42, that “restricts the use of powerboats on public waterways yet allows sailboats and kayaks.” Plaintiffs likewise question a DNR rule, also implemented in furtherance of EO 2020-42, that “further restricted access to public lands, parks and trails to residents of ‘local communities.’ ” Much to the pleasure of outdoor enthusiasts, EO 2020-59 seems to have eliminated the restrictions on use of powerboats and use of state parks during certain hours of the day.
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Dist, 293 Mich App 143, 146; 809 NW2d 444 (2011), the Court of Appeals instructed that, “[w]hen deciding whether to grant an injunction under traditional equitable principles,
a court must consider (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 would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued.[5] Not surprisingly, the Court will first turn to the initial consideration, i.e., whether plaintiffs have shown a likelihood of prevailing on the merits. Though plaintiffs do not have to prove they will succeed on the merits, they do have to prove that they have a substantial likelihood of success on the merits. Int’l Union v Michigan, 211 Mich App 20, 25; 535 NW2d 210 (1995).
V. THE MERITS A. BACKGROUND AND FACTS Michigan residents, like all other Americans, cherish their liberty. We always have, though the liberties and freedoms we seek to protect have changed over time. At and before our founding, our forefathers fought for the inalienable right to own property, freely engage in commerce, represent ourselves through our own elected representatives, worship where and how we wanted, etc. The Declaration of Independence’s list of grievances against the King of England prove as much, as do several of the amendments to the United States Constitution, and in particular, the Fifth and Fourteenth Amendments.
5Quoting in part Alliance for the Mentally Ill, 231 Mich App at 655–656. -5-

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Today we have all the freedoms and liberties that the founders fought for, and our branches of government exist in large part to ensure that those rights remain intact. See Declaration, ¶ 2.6
The liberty and freedoms at stake in this matter do not in large part involve those rights and liberties
the founders fought so hard for; instead, plaintiffs focus on the right to freely move about one’s
community and state, to do commerce when one pleases, and to travel about the state for vacation
purposes. It is the restrictions to those activities within EO 2020-59 that plaintiffs challenge here.
As any reader of this opinion knows, the challenged executive orders were issued to address
the public health crisis occasioned by the world-wide spread of the novel coronavirus, which hit
our great state in early March. Specifically, on March 10, 2020, was when the first two cases of the virus were diagnosed in our state7, while the first death resulting from the virus occurred on March 18, 2020.8 As a result of the quick spread of the virus within our state borders, and to meet
the myriad challenges that immediately arose Governor Whitmer issued numerous executive
orders, including EO 2020-21, EO 2020-42 and EO 2020-59. The main element of the executive
6 The Court realizes that the Declaration is a political document, not a legal one, but it is good evidence of the founding political theories and objectives. See Troxel v Granville, 530 US 57, 91; 120 S Ct 2054; 147 L Ed 2d 49 (2000)(SCALIA, J., dissenting)(“The Declaration of Independence ... is not a legal prescription conferring powers upon the courts[.]”); Derden v McNeel, 978 F2d 1453, 1456 n4 (CA 5, 1992)(“[G]eneral statements about inalienable rights ... tell us little about the prerogatives of an individual in concrete factual situations.”); Coffey v United States, 939 F Supp 185, 191 (EDNY, 1996)(“While the Declaration of Independence states that all men are endowed certain unalienable rights including ‘Life, Liberty and the pursuit of Happiness,’ it does not grant rights that may be pursued through the judicial system.” (citation omitted)). 7 Executive Order No, 2020-21; Detroit Free Press, Coronavirus Timeline https://www.freep.com/story/news/local/michigan/2020/03/18/coronavirus-timeline-first-casemichigan-first-death/5069676002/ (accessed April 28, 2020). This article contains a compilation of information from the state Department of Health and Human Services. 8 Detroit Free Press, First Michigan Death Due to Coronavirus is Southgate Man in his 50s https://www.freep.com/story/news/local/michigan/wayne/2020/03/18/coronavirus-deathsmichigan/5054788002/ (accessed April 28, 2020).
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orders is the requirement that most residents remain in their home unless engaging in certain essential activities, or certain limited outdoor activities. The result of the order, from an economic standpoint, was thousands of Michigan residents being unable to work unless they could do so remotely, the closing of all restaurants, bars, and other small and large businesses.9
At the time the first stay-at-home order was issued on March 23, 2020—only 13 days since the first confirmed case in this state—there were already 1,328 confirmed cases and 15 deaths.10 Today, just over one month later, Michigan has over 36,000 confirmed cases of the virus and over 3,000 related deaths.
B. THE MERITS In their complaint, plaintiffs do not challenge the Governor’s authority to issue the executive orders on this subject-matter. Instead, plaintiffs challenge the scope of the order through separate claims based on procedural due process and substantive due process. Although these claims entail different considerations and standards, see In re Forfeiture of 2000 GMC Denali and Contents, 316 Mich App 562, 573-574; 892 NW2d 388 (2016), the Court will address the claims together since, under these circumstances, each protected right is subject to the same overriding principle. In other words, the constitutional right asserted does not make a difference when considering this issue, because both are subject to a balancing with the state’s interest to protect the public health. This holds true because, and perhaps contrary to common knowledge, most, if not all, individual constitutional rights are not absolute and are subject to a balancing with the
9 Michigan was not alone in this regard. The Court takes notice that the worldwide economy has come to a virtual standstill as a result of state and national actions taken to control the virus. 10 Detroit Free Press, Michigan Coronavirus Cases, Tracking the Pandemic, https://www.freep.com/in-depth/news/nation/coronavirus/2020/04/11/michigan-coronaviruscases-tracking-covid-19-pandemic/5121186002/ (accessed April 28, 2020).
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countervailing state interest. See New Rider v Board of Ed of Independent School Dist No 1, 480
F2d 693, 696 (CA 10, 1973) (“Constitutional rights, including First Amendment rights, are not
absolutes.”) and In re Abbott, 954 F3d 772, 784 (CA 5, 2020) (Recognizing, when addressing
Texas emergency rules during the coronavirus pandemic, that individual rights secured by the
Constitution could be reasonably restricted during a health crisis).
As can be seen, then, there are two competing constitutional principles at play. First, as
plaintiffs note in their verified complaint, in Ex Parte Milligan, 71 US 2, 120-121; 18 L Ed 281
(1866), the United States Supreme Court recognized—in a case that arose during the height of the
Civil War—that our rights enshrined in the Constitution do not become less important or
enforceable because of exigent circumstances:
The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority. Though our individual constitutional rights cannot be suspended or eliminated, they are, as noted,
subject to reasonable regulation by the state. And, when it comes to the power of the state to act
in the best interests of the public health when faced with a serious contagious disease, which is the
state interest acted upon by the Governor,
“[w]e are plowing no virgin field in considering the questions here involved. Numerous decisions, both federal and state, have considered the questions now before us. They are not all in accord and in some instances are not reconcilable. There is, however, a very marked trend in them in one direction, that which upholds the right of the state, in the exercise of its police power and in the interest of the public health, to enact such laws, such rules and regulations, as will prevent the spread of this dread disease.” [People ex rel Hill v Lansing Bd of Ed, 224 Mich
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388, 390; 195 NW 95 (1923). See, also, Jacobsen v Commonwealth of Mass, 197 US 11, 25-26; 25 S Ct 358; 49 L Ed 643 (1905) (upholding state’s power to require vaccination over plaintiff’s Fourteenth Amendment liberty interest to not be told what to do), and In re Abbott, 954 F3d at 784-785.] As noted earlier, plaintiffs’ due process claims set out in Counts I and III are challenges to the quarantine11 requirement and (as amended by the changes contained in EO 2020-59), the prohibition on intrastate travel to a vacation rental. Plaintiffs’ specific assertion is that, although the state may have the ability to quarantine those who are infected with the virus, the state cannot quarantine everyone without some showing that the individual(s) are infected. Because EO 202059 does so, the executive order violates their right to procedural due process. The same holds true, they argue, for the prohibition of intrastate travel to a third parties’ vacation home.12
In addressing this argument, it is imperative to recognize the limited question the Court is empowered to decide. Except in limited circumstances mentioned later, it is not for the courts to pass on the wisdom of state action that is granted to it by the general police power or by statute. Certainly the state cannot simply ignore the individual rights enshrined in our federal (or state) constitution in the name of a public health threat. Judicial review of state actions is therefore (and quite obviously) appropriate and necessary. But the depth of that review is limited, and does not include delving deep into the pros and cons of what is the better plan of action between two reasonable alternatives. This point was well-made by three concurring Justices in Rock v Carney,
11 Plaintiffs characterize the “stay-at-home” provision as a quarantine, which defendants quarrel with, but quarantine is defined as “a restraint upon the activities or communications of persons … designed to prevent the spread of disease or pests.” Merriam-Webster’s Collegiate Dictionary (11th Ed). 12 Plaintiffs have not asserted that they own a second home in Michigan or that they had rented a third parties’ vacation home for use during a time in which any executive order remained in place.
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216 Mich 280, 283; 185 NW 798 (1921), a case involving the state’s response to the spread of
venereal diseases during World War I:
The questions involved in this litigation are of supreme importance, not only to the individuals composing this commonwealth, but also to the numerous boards of health and to the state itself. We approach their consideration with a due regard of their importance. Neither a desire to sustain the state, nor a supersensitiveness prompted by the delicacy of the examination here involved, should in any way enter into or control our decision. Policies adopted by the legislative and executive branches of the state government are not submitted to this branch for approval as to their wisdom. They stand or fall in this court because valid or invalid under the law, and their wisdom or want of wisdom in no way rests with us. If valid, they must be upheld by this court; if invalid, they must be so declared by this court. If these defendants have transcended their power, they must be held liable, and they may not be excused from liability by the fact that their motives were of the highest. If they had not transcended their power, they are not liable, and supersensitiveness or preconceived notions of proprieties, no matter of how long standing, do not render them liable. The case must be determined by the application of cold rules of law. Thus, whether and to what extent this Court agrees with policy implemented in the executive orders
is of no moment or consideration. Instead, the Court must dutifully apply the “cold rules of law”
to determine the validity of the challenged provisions of the executive order.
Binding authority from the United States Supreme Court and the Michigan Supreme Court
compels this Court to conclude that plaintiffs do not have a substantial likelihood of success on
the merits. This is not because the rights asserted by plaintiffs are not fundamental—being forced
(with some important exceptions) by the state to remain in one’s home, in turn causing many
residents to be unable to work, visit elderly relatives, and to generally move about the state. But
those liberty interests are, and always have been, subject to society’s interests—society being our
fellow residents. They—our fellow residents—have an interest to remain unharmed by a highly
communicable and deadly virus, and since the state entered the Union in 1837, it has had the broad
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power to act for the public health of the entire state when faced with a public crisis. As the
Jacobsen Court so aptly held:
The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. This court has more than once recognized it as a fundamental principle that ‘persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the state; of the perfect right of the legislature to do which no question ever was, or upon acknowledged general principles ever can be, made, so far as natural persons are concerned.’ In Crowley v Christensen, 137 US 86, 89; 34 L Ed 620, 621; 11 S Ct 13 (we said: ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’ [Jacobson, 197 US at 26; citations omitted in part; emphasis supplied.]
The role courts play under Jacobson and Lansing Bd of Ed is not to “second-guess the state’s
policy choices in crafting emergency public health measures,” In re Abbott, 954 F3d at 784, but is
instead to determine whether the state regulation has 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.’ ” Id., quoting in part Jacobson, 197 US at 31. Part of this review includes
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looking to whether any exceptions apply for emergent situations, the duration of any rule, and whether the measures are pretextual. Id. at 785.13
Turning to plaintiffs’ specific challenges, the stay-at-home provision, the most restrictive portion of the executive order, was first implemented by the Governor on March 23, 2020, thirteen days after the first case of COVID-19 was diagnosed in the state. Though there were at that point approximately 1,328 cases in the state and 15 reported deaths, Governor Witmer was not acting on a blank slate. Instead, it was common knowledge that the virus had already rapidly spread throughout the state of Washington, was prevalent in several other states, and was devastating parts of Italy, China, and other countries. Indeed, the speed at which the virus spread was well known at the time the stay-at-home provision was implemented. It is true that this measure is a severe one, and greatly restricts each of our liberties to move about as we see fit, as we do in normal times. But the governor determined that severe measures were necessary, and had to be quickly implemented to prevent the uncontrolled spreading of the virus. As noted, Michigan was not alone in this regard:
To be sure, [the order] is a drastic measure, but that aligns it with the numerous drastic measures Petitioners and other states have been forced to take in response to the coronavirus pandemic. Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities. These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis. [In re Abbott, 954 F3d at 787.]
13 Plaintiffs’ correctly note that Jacobson did not involve a state-wide requirement to stay at home, and instead addressed an involuntary vaccination program. But most cases have different facts, and it is the legal principle set forth in the decision that guides future courts. Thus, despite some factual differences, the Court relies (as did the In re Abbott court) upon Jacobson as it is the most relevant decision on this issue from the Supreme Court.
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Plaintiffs suggest that the better—and more constitutionally sound decision—would have been to quarantine only those who have the virus. It may have been a better option to some, as doing so may have had a less severe impact on the movement of the Michigan population, and may have reduced unemployment. Or, as plaintiffs argue, a more narrowly tailored order by region may have been more reasonable for the entire state. But some of that is simply hindsight, and to accept it would be to impermissibly delve too deep into the choices made. Additionally, the Governor’s concerns were not limited to what was most convenient or palatable at the time, as she also had to protect, to the extent possible, the health and safety of all Michigan residents and to not overburden the health care system. The introduction to EO 2020-59 outlines some of the other serious considerations that went into issuing the stringent order:
To suppress the spread of COVID-19, to prevent the state’s health care system from being overwhelmed, to allow time for the production of critical test kits, ventilators, and personal protective equipment, to establish the public health infrastructure necessary to contain the spread of infection, and to avoid needless deaths, it is reasonable and necessary to direct residents to remain at home or in their place of residence to the maximum extent feasible. And, contrary to plaintiffs’ arguments, the Supreme Court has upheld, against a constitutional challenge, a state’s quarantine of individuals even when they are not infected with the disease being controlled. See Compagnie Francaise de Navigation a Vapeur v Louisiana, 186 US 380, 393; 22 S Ct 811; 46 L Ed 1209 (1902).
As noted, the Court’s role is not to pick which alternative may be more reasonable, more preferential, or more narrowly tailored, as the latter is in deciding some constitutional cases. Monday morning quarterbacking is the role of sports fans, not courts reviewing the factual basis supporting executive action to protect the public health. Instead, it is the role of the executive and legislative branches to determine what steps are necessary when faced with a public health crisis.
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In re Abbott, 954 F3d at 792 (“Such authority [to determine what measures are best to take] properly belongs to the legislative and executive branches of the governing authority”); Rock, 216 Mich at 296; Lansing Bd of Ed, 224 Mich at 397.14 Under federalism principles, it is the States that retained the police power, and that power—though not unlimited—is quite broad. See Nat’l Federation of Independent Business v Sebelius, 567 US 519, 536; 132 S Ct 2566; 183 L Ed 2d 450 (2012) (“The States thus can and do perform many of the vital functions of modern government— punishing street crime, running public schools, and zoning property for development, to name but a few—even though the Constitution’s text does not authorize any government to do so. Our cases refer to this general power of governing, possessed by the States but not by the Federal Government, as the “police power”) and Blue Cross & Blue Shield of Mich v Governor, 422 Mich 1, 73; 367 NW2d 1 (1985) (discussing the scope of the police power and how that power extends to enacting regulations to promote public health, safety, and welfare, and providing that regulations “passed pursuant to the police power carry with them a strong presumption of constitutionality.”).
What the Court must do—and can only do—is determine whether the Governor’s orders are consistent with the law. Rock, 216 Mich at 283. Under the applicable standards, they are. The undisputed facts known at the time the first stay-at-home order was made, and the undisputed facts known today, compel the conclusion that the order had a real and substantial relation to the public health crisis. The challenged measures relate to limiting human interaction which helps control the spread of a virus considered to be extremely communicable. To make it voluntary, or more limited in scope, were perhaps other avenues to pursue, but even accepting that proposition does
14 As will be discussed shortly, the Legislature has also spoken on the issue of how to address emergent situations. MCL 10.21; MCL 30.401 et seq. Additionally, the Court takes notice that the Legislature recently established an oversight committee to review the measures implemented through the Governor’s various executive orders.
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not make what the Governor reasonably chose to do invalid. Instead, the Governor’s determination as to the speed and ease with which the virus spreads, and the potential impact that spread would have on the health care system, and the threat it had to the lives of thousands of Michigan residents in a short period of time, allows for the conclusion that the two challenged provisions had a real and substantial relation to the public health crisis. Jacobson, 197 US at 31. There is nothing presented to the Court to draw any other legal conclusion.15
Nor is there any evidence (or even a suggestion) that the stay-at-home provision was a pretext to accomplish some other objective. 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. Indeed, since this lawsuit was filed last week, the Governor issued EO 2020-59, easing some of the very restrictions challenged by plaintiffs, and has indicated more lifting of restrictions are imminent. Plaintiffs have not shown a substantial likelihood of success on the merits in their challenge to the executive order restrictions.
C. CONSTITUTIONALITY OF THE EMA16 Turning again to In re Forfeiture of 2000 GMC Denali and Contents, the Court set forth the rather difficult standards governing a challenge to the constitutionality of a state statute:
A party challenging the constitutionality of a statute has the burden of proving the law's invalidity. Gillette Commercial Operations North America & Subsidiaries v
15 Plaintiffs submitted documentary evidence which, if believed, could allow a governor to issue a more narrowly tailored order. But because this Governor made a different conclusion that was likewise based on other supporting evidence related to the virus, her decision had a real and substantial relation to the public health crisis. 16 Plaintiffs do not challenge the Governor’s exercise of authority under either statute, nor whether she needs legislative approval to continue her emergency declaration.
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Dep’t of Treasury, 312 Mich App 394, 414-415; 878 NW2d 891 (2015). The challenging party must overcome a heavy burden because “[s]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Mayor of Cadillac v Blackburn, 306 Mich App 512, 516; 857 NW2d 529 (2014). When interpreting a statute, our primary goal is to “give effect to the intent of the Legislature.” Superior Hotels, LLC v Mackinaw Twp, 282 Mich App 621, 628; 765 NW2d 31 (2009). To do so, we examine the plain language of the statute itself, and “[i]f the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted.” Whitman v City of Burton, 493 Mich 303, 311; 831 NW2d 223 (2013). [In re Forfeiture of 2000 GMC Denali and Contents, 316 Mich App at 569.]
As far as the Court can discern, plaintiffs’ challenge to the EMA is an as-applied one:
A constitutional challenge to the validity of a statute can be brought in one of two ways: by either a facial challenge or an as-applied challenge. This is an as-applied challenge, meaning that claimant has alleged “ ‘a present infringement or denial of a specific right or of a particular injury in process of actual execution’ of government action.” Bonner v City of Brighton, 495 Mich 209, 223 n 27; 848 NW2d 380 (2014), quoting Village of Euclid v Ambler Realty Co, 272 US 365, 395; 47 S Ct 114; 71 L Ed 303 (1926). “The practical effect of holding a statute unconstitutional ‘as applied’ is to prevent its future application in a similar context, but not to render it utterly inoperative.” Ada v Guam Society of Obstetricians & Gynecologists, 506 US 1011, 1012; 113 S Ct 633; 121 L Ed 2d 564 (1992) (SCALIA, J., dissenting). See also United States v Frost, 125 F3d 346, 370 (CA 6, 1997). [In re Forfeiture of 2000 GMC Denali and Contents, 316 Mich App at 569-570.]
Plaintiffs’ challenge to the delegation of power from the Legislature to the executive will
likely not succeed. It is certainly true that the Legislature cannot grant some vague, unfettered
discretion to the executive to carry out what is a legislative function. 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. City of Ann Arbor v Nat’l Ctr
for Mfg Sciences, Inc, 204 Mich App 303, 308; 514 NW2d 224 (1994) (“[T]he standards must be
sufficiently broad to permit efficient administration so that the policy of the Legislature may be
complied with, but not so broad as to give uncontrolled and arbitrary power to the
administrators.”).
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As defendants point out, plaintiffs allege in their complaint 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.” Dep’t of Natural Resources v Seaman, 396 Mich 299, 308; 240 NW2d 206 (1976). The provisions of the EMA are not vague, and contain specific procedures and criteria for the Governor to declare a state of disaster or emergency, and what conditions qualify as a disaster or emergency. See MCL 30.402(e) and (h); MCL 30.403(3) and (4). The EMA also grants the Governor additional, specific duties and powers when addressing any declared disaster or emergency, MCL 30.405, and sets for a comprehensive state and local jurisdictional system to address declared state-wide disasters or emergencies. MCL 30.407-MCL 30.411. As a result, plaintiffs are unable to establish a likelihood of success on the merits on this claim.
D. HARM TO THE PUBLIC INTEREST Finally, and for many of the same reasons, the Court concludes that entry of a preliminary injunction would be more detrimental to the public than it would 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. That is not to say that every new virus will require the action taken 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.
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Case 1:20-cv-00323-PLM-PJG ECF No. 34-7 filed 05/20/20 PageID.730 Page 19 of 19 VI. CONCLUSION
For these reasons, plaintiffs’ motion for a preliminary injunction is DENIED.

Date: April 29, 2020

__________________________________ Christopher M. Murray Judge, Court of Claims

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 Case 1:20-cv-00323-PLM-PJG ECF No. 42 filed 06/29/20 PageID.1158 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, et al.,

Plaintiffs, v. GRETCHEN WHITMER, et al.,
Defendants.

No. 1:20-cv-00323 Hon. Paul L. Maloney Mag. Phillip J. Green

REPLY BRIEF IN SUPPORT OF DEFENDANT BRIAN L. MACKIE’S MOTION TO DISMISS THE FIRST AMENDED COMPLAINT

Case 1:20-cv-00323-PLM-PJG ECF No. 42 filed 06/29/20 PageID.1159 Page 2 of 20

TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................................................................... 1
ARGUMENT ................................................................................................................................. 3
I. PLAINTIFFS’ CLAIMS AGAINST WCPA MACKIE ARE MOOT .............................. 3
A. The Rescission of Executive Order 2020-42 Rendered Plaintiffs’ Claims Moot ....................................................................................................................... 3
B. The “Voluntary Cessation” Exception Does Not Apply........................................ 3
C. The “Capable of Repetition, Yet Evading Review” Exception Does Not Apply...................................................................................................................... 4
II. ELEVENTH AMENDMENT SOVEREIGN IMMUNITY SHIELDS WCPA MACKIE FROM PLAINTIFFS’ SUIT. ............................................................................ 6
III. PLAINTIFFS DO NOT HAVE STANDING TO SEEK PRE-ENFORCEMENT REVIEW. ........................................................................................................................... 8
IV. EXECUTIVE ORDER 2020-42 MUST BE UPHELD UNDER JACOBSON.................. 9
A. Under Jacobson, an Extremely Deferential Standard of Review Applies............. 9
B. Executive Order 2020-42 Had a Real or Substantial Relation to Protecting the Public From COVID-19................................................................................. 10
CONCLUSION............................................................................................................................ 12

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TABLE OF AUTHORITIES Page(s)
Cases 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011) ......................................................7 In re Abbott, 954 F.3d 772 (5th Cir. 2020) ....................................................................................11 Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ................................................8 Bayley’s Campground Inc. v. Mills, --- F. Supp. 3d ---, 2020 WL 2791797 (D.
Maine 2020) .............................................................................................................................11 Best Supplement Guide, LLC v. Newsom, No. 2:20-cv-00965, 2020 WL 2615022
(E.D. Cal. May 22, 2020).........................................................................................................11 Calvary Chapel of Bangor v. Mills, --- F. Supp. 3d ---, 2020 WL 2310913 (D.
Maine 2020) .............................................................................................................................11 Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv-00907, 2020 WL 3108716
(D. Nev. June 11, 2020) ...........................................................................................................11 Cameron v. Beshear, No. 3:20-cv-00023-GFVT, 2020 WL 2573463 (E.D. Ky.
May 21, 2020) ............................................................................................................................5 Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412 (6th Cir.
1996) ..................................................................................................................................1, 6, 7 Chirco v. Gateway Oaks, LLC, 384 F.3d 307 (6th Cir. 2004) .........................................................5 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).........................12 Cross Culture Christian Ctr. v. Newsom, --- F. Supp. 3d ---, 2020 WL 2121111
(E.D. Cal. 2020) .......................................................................................................................11 Deakins v. Monaghan, 484 U.S. 193 (1988)....................................................................................5 Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2011 WL 2517093
(7th Cir. May 16, 2020) ...........................................................................................................11 Geller v. de Blasio, --- F. Supp. 3d ---, 2020 WL 2520711 (S.D.N.Y. 2020) ...............................11 Gish v. Newsom, No. EDCV 20-755 JGB, 2020 WL 1979970 (C.D. Cal. April 23,
2020) ........................................................................................................................................11
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Givens v. Newsom, No. 2:20-cv-00852-JAM-CKD, 2020 WL 2307224 (E.D. Cal. May 8, 2020) ............................................................................................................................11
Green v. Mansour, 474 U.S. 64 (1985)............................................................................................7 Jacobson v. Massachusetts, 197 U.S. 11 (1905).................................................................... passim League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, --- F. Supp. 3d
---, 2020 WL 3421229 (W.D. Mich. 2020)............................................................................2, 9 League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, --- F.3d ---, 2020
WL 3468281 (6th Cir. 2020) ..........................................................................................2, 9, 11 Martinko v. Whitmer, --- F. Supp. 3d ---, 2020 WL 3036342 (E.D. Mich. 2020) .......................1, 3 Martinko v. Whitmer, No. 20-00062-MM (Mich. Ct. Cl. April 29, 2020) ......................................1 McCarthy v. Cuomo, No. 20-cv-2124, 2020 WL 3286530 (E.D.N.Y. June 18,
2020) ........................................................................................................................................11 McGhee v. City of Flagstaff, No. cv-20-08081-PCT-GMS, 2020 WL 2308479 (D.
Ariz. May 8, 2020)...................................................................................................................11 Mendez v. Heller, 530 F.2d 457 (2d Cir. 1976) ...............................................................................6 Murphy v. Hunt, 455 U.S. 478 (1982) .........................................................................................1, 5 National Rifle Assoc. of Am. v. Magaw, 132 F.3d 272 (6th Cir. 1997) .......................................8, 9 Prof’l Beauty Fed’n of California v. Newsom, No. 2:20-cv-4275, 2020 WL
3056126 (C.D. Cal. June 8, 2020) ...........................................................................................11 Resnick v. Patton, 258 F. App’x 789 (6th Cir. 2007) ......................................................................5 Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) ............................................................................11 In re Rutledge, 956 F.3d 1018 (8th Cir. 2020)...............................................................................11 S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613 (2020)...........................................9 SH3 Health Consulting, LLC v. Page, --- F. Supp. 3d ---, 2020 WL 2308444 (E.D.
Mo. 2020).................................................................................................................................11 Shell Oil Co. v. Noel, 608 F.2d 208 (1st Cir. 1979).........................................................................6 Speech First v. Schlissel, 939 F.3d 756 (6th Cir. 2019)...........................................................1, 3, 4 Spell v. Edwards, --- F.3d ---, 2020 WL 3287239 (5th Cir. 2020) ..................................................5
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Steffel v. Thompson, 415 U.S. 452 (1974) .......................................................................................8 Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014)................................................................2 Tallywhacker, Inc. v. Cooper, --- F. Supp. 3d ---, 2020 WL 3051207 (E.D.N.C.
2020) ........................................................................................................................................11 Taylor v. Grisham, No. 1:20-cv-00267, 2020 WL 3256873 (D.N.M. June 16,
2020) ........................................................................................................................................11 Thomas Sysco Food Servs. v. Martin, 983 F.2d 60 (6th Cir. 1993).................................................5 United States v. Queen, No. CR 17-58 (EGS), 2020 WL 3447988 (D.D.C. June
24, 2020) ..................................................................................................................................10 Weinstein v. Edgar, 826 F. Supp. 1165 (N.D. Ill. 1993)..................................................................6 Ex parte Young, 209 U.S. 123 (1908) ......................................................................................6, 7, 8 Statutes Mich. Comp. Laws § 750.232..........................................................................................................1 Rules MCR 9.100, et seq. ..........................................................................................................................9 Constitutional Provisions Fifth Amendment .............................................................................................................................3 Eleventh Amendment............................................................................................................. passim Fourteenth Amendment ...................................................................................................................3 Other Authorities Exec. Order 2020-42 ......................................................................................................................11 Exec. Order 2020-59 ..............................................................................................................2, 3, 10 Exec. Order 2020-127 ....................................................................................................................10
iv

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INTRODUCTION Plaintiffs’ complaint raises only one issue specific to Defendant Brian L. Mackie, Washtenaw County Prosecuting Attorney (“WCPA”). Can a plaintiff sue to prevent the enforcement of a law that does not exist, merely because it once existed, and some other government authority might impose that law again? The answer is plainly “no.” The fact that the Court’s docket is not full of plaintiffs seeking to enjoin enforcement of the 55-miles-per-hour speed limit—or, perhaps more germane here, the former law requiring firearms dealers to keep a registry of their customers, see Mich. Comp. Laws § 750.232 (repealed 2017 P.A. 96 § 1)— ought to be proof enough to end the debate. To put the matter in doctrinal terms, however, Plaintiffs’ claims against WCPA Mackie fail for at least four reasons. First, Plaintiffs’ claims against WCPA Mackie are moot because Executive Order 202042 has been rescinded and Plaintiffs are not entitled to prospective relief. See Martinko v. Whitmer, --- F. Supp. 3d ---, 2020 WL 3036342, *3 (E.D. Mich. 2020) (“Martinko II”) (dismissing constitutional challenge to Executive Order 2020-42 as moot).1 Any assertion that the same restrictions may be implemented again is “pure speculation” and cannot save Plaintiffs’ claims. Id. And neither the “voluntary cessation” nor “capable of repetition, yet evading review” exceptions to the mootness doctrine apply. See Speech First v. Schlissel, 939 F.3d 756, 767 (6th Cir. 2019); Murphy v. Hunt, 455 U.S. 478, 482 (1982). Second, WCPA Mackie is entitled to Eleventh Amendment immunity. “[G]eneral authority to enforce the laws of the state” is not enough to make an official a proper party to litigation. Children’s Healthcare is a Legal Duty, Inc. v. Deters, 92 F.3d 1412, 1417 (6th Cir. 1996). Plaintiffs do not allege that WCPA Mackie has attempted or threatened to enforce
1 Martinko I being Martinko v. Whitmer, No. 20-00062-MM (Mich. Ct. Cl. April 29, 2020). See ECF No. 34-7, PageID.713.
1

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Executive Order 2020-42 against them—nor could they, since it has been rescinded. Thus, Plaintiffs have not overcome Eleventh Amendment immunity. See id.
Third, Plaintiffs’ claims against WCPA Mackie fail on standing and ripeness grounds because, again, there are no allegations that WCPA Mackie took any act to enforce or threaten to enforce the challenged Executive Order 2020-42 against Plaintiff Muise. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014). Similarly, Plaintiffs have not and could not allege a credible threat of prosecution by WCPA Mackie because, as acknowledged by all parties, Executive Order 2020-42 has been rescinded. See id.
Fourth, were Plaintiffs to clear all these procedural hurdles, their claims would still fail. As the Court recently recognized, these are not normal times. See League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, --- F. Supp. 3d ---, 2020 WL 3421229, at *4 (W.D. Mich. 2020) [hereinafter LIFFT I], stay granted, --- F.3d ---, 2020 WL 3469291 (6th Cir. 2020) [hereinafter LIFFT II]. And in light of the ongoing COVID-19 pandemic, public officials “may temporarily infringe on the liberties guaranteed by the constitution to individuals in favor of the common good.” LIFFT I, 2020 WL 3421229 at *4. (citing Jacobson v. Massachusetts, 197 U.S. 11, 29 (1905)). However keenly Plaintiffs may have felt the restrictions challenged here, the Constitution affords “great latitude” to state officials acting to combat a pandemic, and that latitude “‘must be especially broad’” when those officials must grapple with “‘medical and scientific uncertainties.’” Id. (quoting S. Bay United Pentecostal Church v Newsom, 140 S. Ct. 1613, 1613 (2020) (Roberts, C.J., concurring)). Further, “[t]he measures put in place by Executive Orders 2020-21 and 2020-42 have been effective.” Exec. Order 2020-59, ECF No. 252, PageID.430. After Executive Order 2020-42 was issued the daily count of new confirmed
2

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cases started to drop. Id. Thus, the record amply demonstrates that the restrictions at issue had a “real or substantial relation” to fighting COVID-19. See Jacobson, 197 U.S. at 31.
For these reasons and those stated in WCPA Mackie’s opening brief, Plaintiffs’ claims against WCPA Mackie must be dismissed.
ARGUMENT2 I. PLAINTIFFS’ CLAIMS AGAINST WCPA MACKIE ARE MOOT.
A. The Rescission of Executive Order 2020-42 Rendered Plaintiffs’ Claims Moot.
This case is moot because Executive Order 2020-42 is no longer in effect and the executive orders that replaced it permit Plaintiffs to engage in the activities that form the basis of the First Amended Complaint. See Martinko II, 2020 WL 3036342 at *3. In Martinko II, the plaintiffs challenged the travel and business restrictions in Executive Order 2020-42 as an unconstitutional taking under the Fifth Amendment and a violation of their substantive due process rights under the Fourteenth Amendment. The court dismissed the action, holding that the plaintiffs’ requests for prospective injunctive and declaratory relief were moot because Executive Order 2020-42 and 2020-21, the executive orders that served the basis of the plaintiffs’ complaint, had been rescinded. Id. at *2-3. With respect to mootness, there is no material difference between the facts in Martinko II and the facts here. Thus, dismissal is appropriate here, as well.
B. The “Voluntary Cessation” Exception Does Not Apply. Plaintiffs invoke the “voluntary cessation exception” under Speech First (see ECF No. 40, PageID.968-969), but overlook that a government official’s “burden in showing mootness is 2 WCPA Mackie also relies upon and incorporates the arguments made by Governor Whitmer and Attorney General Nessel in their reply brief in support of their Motion to Dismiss. Again, if this Court dismisses Plaintiffs’ claims against the State defendants, there can be no independent claim against WCPA Mackie.
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lower” than that of a private defendant. Speech First, 939 F.3d at 767. Further, government officials are entitled to solicitude and a presumption “that the same allegedly wrongful conduct by the government is unlikely to recur.” Id. “[B]are solicitude” may not be enough to show mootness where a single official could reimpose the challenged law, if the government’s “selfcorrection . . . appears genuine,” it “provides a secure foundation for dismissal based on mootness.” Id. at 767.
Here, Plaintiffs would have the Court show no solicitude to the defendants. Indeed, they ask the Court ignore two critical points. First, all parties agreed that Executive Order 2020-59, which replaced Executive Order 2020-42, permitted Plaintiffs to engage in the activities at issue. See ECF No. 24, PageID.391. There is absolutely no indication that WCPA Mackie or the other defendants acted in bad faith or disingenuously. Second, as the state defendants have pointed out, Governor Whitmer has gradually but consistently loosened restrictions through a series of executive orders. See ECF No. 36, PageID.747. Plaintiffs’ response is that the situation may worsen again. See ECF No. 40, PageID.970. But what matters under Speech First is what the government intends, not what it might do in some hypothetical factual scenario. See 939 F.3d at 768-69. The claims in Speech First were not moot because the defendant offered no evidence of its “future intentions.” Id. at 769. Here, the governor’s actions demonstrate that there is no intent to reimpose the challenged restrictions. And, although it hardly needs saying, WCPA Mackie does not intend to prosecute Plaintiff Muise for actions that are not unlawful. Plaintiffs’ claims are moot. See id.
C. The “Capable of Repetition, Yet Evading Review” Exception Does Not Apply.
Plaintiffs state that the “nature and short duration” of Executive Order 2020-42 triggers the “capable of repetition, yet evading review” exception to the mootness doctrine. See ECF No.
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40, Page.ID 971. But establishing that the order was not in effect long enough to be fully litigated is only half Plaintiffs’ burden. See Chirco v. Gateway Oaks, LLC, 384 F.3d 307, 309 (6th Cir. 2004). The exception only applies “in those exceptional cases where a plaintiff makes a reasonable showing that he or she will again be subjected to the sanction.” Thomas Sysco Food Servs. v. Martin, 983 F.2d 60, 62 (6th Cir. 1993) (emphasis added) (citation omitted). A mere “theoretical possibility” is not good enough. Murphy v. Hunt, 455 U.S. 478, 482 (1982) (not reasonable to conclude respondent would “once again be in a position to demand bail before trial”); see also Resnick v. Patton, 258 F. App’x 789, 794 (6th Cir. 2007) (no reasonable expectation journalist would be denied access to court records a second time).
Here, for all the reasons discussed above and in the Defendants’ opening briefs, Plaintiffs have not and cannot show that there is a “reasonable expectation” the restrictions at issue will be reimposed. See Chirco, 384 F.3d at 309. All they can do is speculate about a hypothetical chain of events that might lead to that outcome. As the Fifth Circuit explained in finding moot a challenge to a rescinded Louisiana COVID-19 restriction: “To be sure, no one knows what the future of COVID-19 holds. But it is speculative, at best, that the Governor might reimpose the ten-person restriction or a similar one.” Spell v. Edwards, --- F.3d ---, 2020 WL 3287239, at *3 (5th Cir. June 18, 2020). And, as in another COVID-19-related case, Plaintiffs have given this Court “no reason to believe” that the restrictions at issue here will be reimposed, much less that WCPA Mackie will take action against them. Cameron v. Beshear, No. 3:20-cv-00023-GFVT, 2020 WL 2573463, *2 (E.D. Ky. May 21, 2020). There is no “actual, ongoing controvers[y]” between Plaintiffs and WCPA Mackie, and their claims against him must be dismissed. Deakins v. Monaghan, 484 U.S. 193, 199 (1988).
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II. ELEVENTH AMENDMENT SOVEREIGN IMMUNITY SHIELDS WCPA MACKIE FROM PLAINTIFFS’ SUIT. WCPA Mackie is entitled to Eleventh Amendment sovereign immunity because the facts
of this case do not fit within the exception set out in Ex parte Young, 209 U.S. 123 (1908). First, WCPA Mackie does not have a connection with the enforcement of Executive
Order 2020-42 within the meaning of Ex parte Young. As Sixth Circuit precedent makes clear, “the phrase ‘some connection with the enforcement of the act’ does not diminish the requirement that the official threaten and be about to commence proceedings.’” Children’s Healthcare, 92 F.3d at 1416; see also Ex parte Young, 209 U.S. at 155-56. Here, Plaintiffs only allege that WCPA Mackie is “responsible for criminally prosecuting persons who violate Defendant Whitmer’s executive orders in Washtenaw County.” ECF No. 25, PageID.397 ¶ 19; see ECF No. 40, PageID.942. But that allegation is insufficient because “[g]eneral authority to enforce the laws of the state is not sufficient to make government officials the proper parties to litigation challenging the law.” Children’s Healthcare, 92 F.3d at 1416 (citation omitted). To hold that WCPA Mackie’s Eleventh Amendment immunity is defeated by the mere fact that he has the general authority to prosecute crimes “would extend Young beyond what the Supreme Court has intended and held.” See id.3 WCPA Mackie “did not threaten to commence and was not about to commence proceedings against the plaintiffs,” so “Young does not apply.” Id. (footnote omitted).
3 See, e.g., Weinstein v. Edgar, 826 F. Supp. 1165, 1167 (N.D. Ill. 1993) (granting a governor’s motion to dismiss based on Eleventh Amendment Sovereign Immunity because the governor’s obligation to faithfully execute the laws was not a sufficient connection to enforcement); Shell Oil Co. v. Noel, 608 F.2d 208, 211 (1st Cir. 1979) (“The mere fact that a governor is under a general duty to enforce state laws does not make him a proper defendant in every action attacking the constitutionality of a state statute.”); Mendez v. Heller, 530 F.2d 457, 460 (2d Cir. 1976) (holding that a state attorney general could not be a party to a suit based on his duty to support the constitutionality of the challenged state statutes alone).
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Tellingly, Plaintiffs ignore Children’s Healthcare entirely. Instead they point to 281 Care Committee v. Arneson, 638 F.3d 621 (8th Cir. 2011), a case in which the plaintiffs sought to enjoin both the Minnesota Attorney General and several county attorneys from enforcing a state statute. See ECF No. 40, PageID.972. But the quoted portion of the opinion deals with standing, not Eleventh Amendment immunity. See id.; 281 Care Comm., 638 F.3d at 631. As it relates to Eleventh Amendment immunity, the case does not even address the county attorneys because the county attorneys did not claim immunity. See id. at 631-63; Br. of Appellee Cty Att’ys, 281 Care Comm. v. Arneson, 638 F.3d 621 (8th Cir. 2011) (No. 10-1558), 2010 WL 2416247. Further, the court denied the attorney general Eleventh Amendment immunity because the attorney general had multiple responsibilities related to the statute at issue, beyond the general duty to enforce state law. See 281 Care Comm., 638 F.3d at 631-33. In short, 281 Care Committee is irrelevant here. And even if it were on point, the Court would still be required to follow Children’s Healthcare and dismiss the claims against WCPA Mackie on the basis of Eleventh Amendment immunity.
Second, Plaintiffs overlook that Ex parte Young does not allow a party to seek “retrospective relief.” Green v. Mansour, 474 U.S. 64, 68 (1985) (citations omitted). In Green, the plaintiffs challenged certain benefits calculations by a state official. Id. at 65. Before the case could be resolved, the statutory formula was changed, and there was no dispute that subsequent calculations followed the new formula. See id. The plaintiffs nevertheless sought “a declaration that respondent's prior conduct violated federal law.” Id. But the Court rejected the idea, explaining that when “[t]here is no claimed continuing violation of federal law” and no threat of future violations, a declaratory judgment that merely addresses a dispute about the lawfulness of past actions is not appropriate in light of Eleventh Amendment concerns. See id. That same logic
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should apply here. Plaintiffs do not claim WCPA Mackie did anything that violated the law, and they do not claim he is continuing to violate the law. So Ex parte Young does not apply. See id. III. PLAINTIFFS DO NOT HAVE STANDING TO SEEK PRE-ENFORCEMENT
REVIEW. The best and simplest way to resolve the claims against WCPA Mackie is to dismiss them on the basis of mootness and Eleventh Amendment immunity. But Plaintiffs’ claims against WCPA Mackie also fail because Plaintiffs lack standing to assert them in the first place. There is no allegation that WCPA Mackie took any act to enforce Executive Order 2020-42 against Plaintiff Muise, so Plaintiffs necessarily seek pre-enforcement review. Plaintiffs skip past the requirements for pre-enforcement review, however. To have standing, Plaintiffs must allege facts demonstrating (1) an intention to engage in proscribed activity, and (2) a credible threat of prosecution. See Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298 (1979). But Plaintiffs did not sufficiently allege that Plaintiff Muise intended to engage in proscribed conduct. See ECF No. 34, PageID.669-670. And, for all of the reasons discussed above with respect to mootness and Eleventh Amendment immunity, Plaintiffs cannot establish a credible threat of prosecution by WCPA Mackie. Plaintiffs’ claims against WCPA Mackie must therefore be dismissed on standing and ripeness grounds. Plaintiffs’ cases do not change the analysis. The plaintiff in Steffel v. Thompson, 415 U.S. 452, 459 (1974), established a credible threat of prosecution because he had, in fact, been stopped by police and told he would “likely be prosecuted” if he continued handbilling. Neither WCPA Mackie nor anyone else has similarly threated to prosecute the Plaintiffs. And, National Rifle Association of America v. Magaw, 132 F.3d 272 (6th Cir. 1997), actually mandates dismissal here. In National Rifle Association, the court found that “the individual plaintiffs d[id] not have standing to sue.” Id. at 293. The “regulatory burden” analysis (relied upon Plaintiffs
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here) was inapplicable to the individual plaintiffs in National Rifle Association because they did not face “significant economic harm.” Id. The court further concluded that plaintiffs could not establish an injury-in-fact under Article III merely because they wished to engage in certain possibly prohibited activities (but were restrained or inhibited from doing so) or refused to engage in these activities because of serious threatened penalties. Id. (citation omitted). Plaintiff Muise allegations are no different than those in National Rifle Association: he wanted to travel to gun stores and have his family gather in his home for prayer while Executive Order 2020-42 was in effect, but did not out of fear of prosecution. See First Am. Compl., ¶¶ 43, 47, ECF No. 25, PageID.403-404.4 This, however, is not enough to give him standing to pursue his claims in this Court. Under National Rifle Association, his claims should be dismissed. IV. EXECUTIVE ORDER 2020-42 MUST BE UPHELD UNDER JACOBSON.
A. Under Jacobson, an Extremely Deferential Standard of Review Applies. Plaintiffs would have this Court apply normal, everyday standards of constitutional scrutiny. But “it is abundantly clear that ‘normal times’ ended in early March when the coronavirus pandemic took hold in Michigan.” LIFFT I, 2020 WL 3421229 at *4. It is equally clear that Jacobson governs the adjudication of constitutional challenges to COVID-19-related government actions. See, e.g., id.; LIFFT II, 2020 WL 3468281 at *2; S. Bay United, 140 S. Ct. at 1613-14 (Roberts, C.J., concurring). And Jacobson permits state actors to “use their police power with great latitude to protect the health and safety of the general public.” LIFFT I, 2020 WL 3421229 at *4; see also S. Bay United, 140 S. Ct. at 1613 (Roberts, C.J., concurring) (“When . . . officials undertake to act in areas fraught with medical and scientific uncertainties,
4 Plaintiffs’ argument that violating Executive Order 2020-42 might have imperiled their law licenses is irrelevant. The practice of law in Michigan is regulated by the Michigan Supreme Court, not executive officials. See generally MCR 9.100, et seq. There is certainly no allegation that WCPA Mackie could deprive Plaintiffs’ of their law licenses.
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their latitude ‘must be especially broad.”) (quotation marks and citation omitted). Courts must uphold a law enacted to protect the public from COVID-19, unless it has “no real or substantial relation” to the public health or safety, “or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. In other words, Jacobson prevents federal courts from doing exactly what Plaintiffs ask this Court to do: second-guess the wisdom of Governor Whitmer’s plan to combat COVID-19, “apply its own policy judgments to that plan,” and “use hindsight to craft a ‘better’ plan.” Id. at *6.
B. Executive Order 2020-42 Had a Real or Substantial Relation to Protecting the Public From COVID-19.
Under Jacobson’s deferential standard, Executive Order 2020-42 must be upheld because, particularly at the time in which it was in effect, it had a real or substantial relation to protecting public health. The Defendants have already set forth in detail the emergence of the COVID-19 pandemic and the state’s efforts to combat it. See ECF No. 34, PageID.660-662; ECF No. 36, PageID.739-744. Plaintiffs dismiss this gruesome history as nothing more than a “parade of horribles.” See ECF No. 40, PageID.959. Plaintiffs’ refusal to recognize the import of “115,484 deaths in the United States,” and “5,792 deaths” in Michigan alone is difficult to understand. See United States v. Queen, No. CR 17-58 (EGS), 2020 WL 3447988, at *3 (D.D.C. June 24, 2020); Exec. Order 2020-127 (June 18, 2020) (Ex. A). But regardless of Plaintiffs’ views, “[t]he measures put in place by Executive Orders 2020-21 and 2020-42 have been effective.” Exec. Order 2020-59, ECF No. 25-2, PageID.430. After Executive Order 2020-42 was issued the daily count of new confirmed cases started to drop. Id. Thus, the record amply demonstrates that the restrictions at issue had a “real or substantial relation” to fighting COVID19. See Jacobson, 197 U.S. at 31. This Court should follow the lead of numerous other courts in
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this and other circuits that have upheld similarly reasonable COVID-19-related restrictions under
Jacobson, and grant WCPA Mackie’s Motion to Dismiss.5
The lone case cited by Plaintiffs in support of their position, Roberts v. Neace, 958 F.3d
409 (6th Cir. 2020), is easily distinguishable. There, the Sixth Circuit concluded that plaintiffs
were likely to prevail on their claim that Kentucky’s ban on mass gatherings violated the free
exercise clause of the United State Constitution because the ban only included “four pages of
exceptions” for secular gatherings, see id. at 413-14, and failed to allow any religious gatherings.
This fact removed the order “from the safe harbor for generally applicable laws.” Id. at 411, 413.
Executive Order 2020-42, on the other hand, treated religious and secular organizations equally,
see Exec. Order 2020-42 §§ 7(a)(11), 9(d), ECF No. 25-1, PageID.422, 424, and explicitly
provided that “a place of religious worship, when used for religious worship, is not subject to
penalty” under the order, id. § 13, ECF No. 25-1, PageID.427. Executive Order 2020-42,
therefore, applied “not only to worship services but also to the most comparable types of secular
5 See, e.g., In re Abbott, 954 F.3d 772 (5th Cir. 2020); In re Rutledge, 956 F.3d 1018, 1028 (8th Cir. 2020); Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2011 WL 2517093, at *1 (7th Cir. May 16, 2020); LIFFT II, --- F.3d ---, 2020 WL 3468281, at *2 (6th Cir. 2020); Geller v. de Blasio, --- F. Supp. 3d ---, 2020 WL 2520711, at *3 (S.D.N.Y. 2020); McGhee v. City of Flagstaff, No. cv-20-08081-PCT-GMS, 2020 WL 2308479, *5 (D. Ariz. May 8, 2020); Calvary Chapel of Bangor v. Mills, --- F. Supp. 3d ---, 2020 WL 2310913, at *7 (D. Maine 2020); Bayley’s Campground Inc. v. Mills, --- F. Supp. 3d ---, 2020 WL 2791797, *10 (D. Maine 2020); Best Supplement Guide, LLC v. Newsom, No. 2:20-cv-00965, 2020 WL 2615022, *8 (E.D. Cal. May 22, 2020); Givens v. Newsom, No. 2:20-cv-00852-JAM-CKD, 2020 WL 2307224, at *10 (E.D. Cal. May 8, 2020); Cross Culture Christian Ctr. v. Newsom, --- F. Supp. 3d ---, 2020 WL 2121111, at * (E.D. Cal. 2020); SH3 Health Consulting, LLC v. Page, --- F. Supp. 3d ---, 2020 WL 2308444, at *4 (E.D. Mo. 2020); Gish v. Newsom, No. EDCV 20-755 JGB, 2020 WL 1979970, at *7 (C.D. Cal. 2020); McCarthy v. Cuomo, No. 20-cv-2124, 2020 WL 3286530, *6 (E.D.N.Y. June 18, 2020); Taylor v. Grisham, No. 1:20-cv-00267, 2020 WL 3256873, *8 (D.N.M. June 16, 2020); Calvary Chapel Lone Mountain v. Sisolak, No. 2:20-cv00907, 2020 WL 3108716, *4 (D. Nev. June 11, 2020); Prof’l Beauty Fed’n of California v. Newsom, No. 2:20-cv-4275, 2020 WL 3056126, *8 (C.D. Cal. June 8, 2020); Tallywhacker, Inc. v. Cooper, --- F. Supp. 3d ---, 2020 WL 3051207, at *13 (E.D.N.C. 2020); Martinko v. Whitmer, --- F. Supp. 3d ---, 2020 WL 3036342 (E.D. Mich. 2020); Martinko v. Whitmer, No. 20-00062MM (Mich. Ct. Cl. April 29, 2020).
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gatherings.” Elim Romanian Pentecostal Church v. Pritzker, No. 20-1811, 2020 WL 2517093, at *1 (7th Cir. May 16, 2020) (affirming denial of preliminary injunction in part on that basis). And because Executive Order 2020-42 exempted places of worship from any enforcement action, it did not treat secular activities more favorably than religious activities, and would be upheld even under the standards applicable in more mundane times. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 545 (1993).
CONCLUSION WCPA Mackie does not belong in this lawsuit. Plaintiffs’ claims are moot because Executive Order 2020-42 is no longer in effect and no exception to the mootness doctrine helps their claims. Further, WCPA Mackie is shielded from suit under the Eleventh Amendment because Plaintiffs have not alleged that he enforced or threatened to enforce Executive Order 2020-42 against them, and general authority to prosecute crimes in Washtenaw County is insufficient to overcome Eleventh Amendment immunity. Similarly, Plaintiffs’ claims fail on standing and ripeness grounds because Plaintiffs have not alleged an intention to engage in proscribed activity or established a credible threat of enforcement. They are therefore not entitled to pre-enforcement review. Finally, setting the jurisdictional defects aside, Defendants are entitled to “great latitude” under Jacobson to deal with the public health crisis caused by the COVID-19 pandemic. It is not this Court’s (or Plaintiffs’) role to second-guess the wisdom of Executive Order 2020-42, apply their own policy judgments, and/or craft a different plan. For all these reasons, this Court should grant WCPA Mackie’s Motion to Dismiss.
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Dated: June 29, 2020

Respectfully submitted,
MILLER, CANFIELD, PADDOCK AND STONE, P.L.C.
By: /s/ Sonal Hope Mithani Sonal Hope Mithani (P51984) Joel C. Bryant (P79506) 101 North Main, Seventh Floor Ann Arbor, MI 48104 (734) 668-7786 Mithani@millercanfield.com Bryant@millercanfield.com
Attorneys for Defendant Brian L. Mackie, Washtenaw County Prosecuting Attorney

13

Case 1:20-cv-00323-PLM-PJG ECF No. 42 filed 06/29/20 PageID.1176 Page 19 of 20 CERTIFICATE OF COMPLIANCE
I certify that the foregoing brief contains 4,027 words and therefore complies with Local Civil Rule 7.2(b)(i). This word count was generated using Microsoft Word 2010.
By: /s/ Sonal Hope Mithani Sonal Hope Mithani
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CERTIFICATE OF SERVICE I hereby certify that on June 29, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system which will send notification of such filing to all ECF filers of record.

36066022.4\094579-00008

By: /s/ Sonal Hope Mithani Sonal Hope Mithani

Case 1:20-cv-00323-PLM-PJG ECF No. 42-1 filed 06/29/20 PageID.1178 Page 1 of 5

¢6i Case 1:20-cv-00323-PLM-PJG ECF No. 42-1 filed 06/29/20 PageID.1179 Page 2 of 5

• . Tl/DO '•%

GRETC HEN W H IT M ER
GOVERN OR

~'•e _.••'
S TAT E O F M IC HIGAN
OFFICE OF THE GOVERNOR
L ANSI NG

GARLIN G ILC H RIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-127
Declaration of state of emergency and state of disaster related to the COVID-19 pandemic
Rescission of Executive Order 2020-99
On March 10, 2020, I issued Executive Order 2020-4, which declared a state of emergency in Michigan to address the COVID-19 pandemic. This disease, caused by a novel coronavirus not previously identified in humans, can easily spread from person to person and can result in serious illness or death. There is currently no approved vaccine or antiviral treatment.
Scarcely three weeks later, the virus had spread across Michigan. As of April 1, 2020, the state had 9,334 confirmed cases of COVID-19 and 337 deaths from the disease, with many thousands more infected but not yet tested. Exactly one month later, this number had ballooned to 42,356 confirmed cases and 3,866 deaths from the disease—a tenfold increase in deaths. The virus’s rapid spread threatened to overwhelm the state’s health care system: hospitals in multiple counties were reportedly at or near capacity; medical personnel, supplies, and resources necessary to treat COVID-19 patients were in high demand but short supply; dormitories and a convention center were being converted to temporary field hospitals.
On April 1, 2020, in response to the widespread and severe health, economic, and social harms posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order expanded on Executive Order 2020-4 and declared both a state of emergency and a state of disaster across the state of Michigan. Like Executive Order 2020-4, this declaration was based on multiple independent authorities: section 1 of article 5 of the Michigan Constitution of 1963; the Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq.; and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq. On April 7, 2020, the Michigan legislature adopted a concurrent resolution to extend the states of emergency and disaster declared under the Emergency Management Act until April 30, 2020.
On April 30, 2020, finding that COVID-19 had created emergency and disaster conditions across the State of Michigan, I issued Executive Order 2020-67 to continue the emergency declaration under the Emergency Powers of the Governor Act, as well as Executive Order
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

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2020-68 to issue new emergency and disaster declarations under the Emergency Management Act.
Those executive orders have been challenged in Michigan House of Representatives and Michigan Senate v Whitmer. On May 21, 2020, the Court of Claims ruled that Executive Order 2020-67 is a valid exercise of authority under the Emergency Powers of the Governor Act but that Executive Order 2020-68 is not a valid exercise of authority under the Emergency Management Act. Both of those rulings have been appealed; the Court of Appeals has ordered oral argument to be held in August.
Since I first declared an emergency in response to this pandemic, my administration has taken aggressive measures to fight the spread of COVID-19, prevent the rapid depletion of this state’s critical health care resources, and avoid needless deaths. The best way to slow the spread of the virus is for people to stay home and keep their distance from others. To that end, and in keeping with the recommendations of public health experts, I issued orders restricting access to places of public accommodation and school buildings, limiting gatherings and travel, and requiring workers who are not necessary to sustain or protect life to remain at home. I also issued orders enhancing the operational capacity and efficiency of health care facilities and operations, allowing health care professionals to practice to the full extent of their training regardless of licensure, and facilitating the delivery of goods, supplies, equipment, and personnel that are needed to combat this pandemic. And I took steps to build the public health infrastructure in this state that is necessary to contain the spread of infection.
My administration also moved to mitigate the economic and social harms of this pandemic. Through my orders, we placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions, expanded eligibility for unemployment benefits, provided protections to workers who stay home when they or their close contacts are sick, and created a structure through which our schools can continue to provide their students with the highest level of educational opportunities possible under the difficult circumstances now before us.
These statewide measures have been effective. A report released by the Imperial College COVID-19 Response Team, for example, shows that my actions have significantly lowered the number of cases and deaths that would have occurred had the state done nothing.
With the steep reduction in our case counts, I have moved progressively in recent weeks to relax restrictions on business activities and daily life. On June 1, I announced that most of the state would move to Phase 4 of my Safe Start plan, thereby allowing retailers and restaurants to resume operations. Hair salons and other personal care services followed two weeks later. And on June 10, I moved the Upper Peninsula and the region surrounding Traverse City to Phase 5, allowing for the reopening of movie theaters, gyms, bowling alleys, and other businesses. If current trends persist, I hope to move the rest of the state to Phase 5 by July 4.
But this global pandemic is far from over. Though its pace of growth has slowed, the virus remains aggressive and persistent: to date, there have been 60,393 confirmed cases of COVID-19 in Michigan, and 5,792 deaths from the disease. There is still no treatment for the virus and it remains easy to transmit. A second wave poses an ongoing threat. States in
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the South and West are already seeing sharp upticks in cases; just two days ago, Arizona, Florida, and Texas all reported record highs in their daily case counts. Michigan could easily join them if we relax our vigilance.
The concern is especially acute because Michigan’s more rural counties will see an increasing number of out-of-town visitors this summer. The residents of these rural counties are among the most vulnerable to COVID-19, with older populations and rates of chronic illness among the highest in the state. Twenty-one of Michigan’s eighty-three counties—all rural—have a median age over 50, and nearly 30% of Michigan’s rural population is 65 or older. These rural areas tend to be miles away from larger hospitals with the personnel, beds, and equipment to fight this virus.
Whatever happens with COVID-19 in the future, the state has already suffered immense economic damage. Between March 15 and May 30, Michigan received 2.2 million initial unemployment claims—the fifth-highest nationally, amounting to more than a third of the Michigan workforce. During this crisis, Michigan has often processed more unemployment claims in a single day than in the most painful week of the Great Recession, and the state already saw its highest unemployment rate since the Great Depression (22.7% in April). Between March 15 and May 21, Michigan paid out over $7 billion in benefits to eligible Michiganders. The Michigan Department of Treasury predicts that this year the state will lose between $1 and $3 billion in revenue. As a result, local governments will be hardpressed to provide essential services to their communities and many families in Michigan will struggle to pay their bills or even put food on the table.
So too will the pandemic continue to disrupt our homes and our educational, civic, social, and religious institutions. Transitioning almost overnight to a distance-learning environment has placed strain on educators, students, and parents alike. Performance and indoor sporting venues remain closed across most of the state, limiting people’s ability to enrich themselves or interact with their community. And curtailing gatherings has left many seeking new ways to connect with their friends and families. Life will not be back to normal for some time to come.
The health, economic, and social harms of the COVID-19 pandemic thus remain widespread and severe, and they continue to constitute a statewide emergency and disaster. Though local health departments have some limited capacity to respond to cases as they arise within their jurisdictions, state emergency operations are necessary to bring this pandemic under control in Michigan and to build and maintain infrastructure to stop the spread of COVID-19, trace infections, and quickly direct additional resources to hot-spots as they emerge. State assistance to bolster health care capacity and flexibility also has been, and will continue to be, critical to saving lives, protecting public health and safety, and averting catastrophe. Moreover, state disaster and emergency recovery efforts remain necessary not only to support Michiganders in need due to the economic effects of this pandemic, but also to ensure that the prospect of lost income does not impel workers who may be infected to report to work.
Statewide coordination of these efforts is crucial to creating a stable path to recovery. Until that recovery is underway, the economic and fiscal harms from this pandemic have been contained, and the threats posed by COVID-19 to life and the public health, safety, and
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welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
With this order, Executive Order 2020-99 is rescinded.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The COVID-19 pandemic constitutes a disaster and emergency throughout the State of Michigan.
2. This order constitutes a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. Subject to the ongoing litigation and the possibility that current rulings may be overturned or otherwise altered on appeal, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act of 1976 when emergency and disaster conditions exist yet the legislature has not granted an extension request, this order constitutes a state of emergency and state of disaster declaration under that act.
3. This order is effective immediately and continues through July 16, 2020 at 11:59 pm. I will evaluate the continuing need for this order.
4. Executive Order 2020-99 is rescinded. All previous orders that rested on that order now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

Date: June 18, 2020 Time: 1:55 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
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 Case 1:20-cv-00323-PLM-PJG ECF No. 44 filed 06/30/20 PageID.1184 Page 1 of 19

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

Robert J. Muise (P62849) American Freedom Law Center Attorney for Plaintiffs P.O. Box 131098 Ann Arbor, MI 48113 734.635.3756 rmuise@americanfreedomlawcenter.org
Joel C. Bryant (P79506) Sonal H. Mithani (P51984) Miller Canfield Paddock & Stone PLC Attorneys for Def. Brian Mackie 101 N. Main Street, 7th Floor Ann Arbor, MI 48104 734.668.8908 734.668.7786 bryant@millercanfield.com mithani@millercanfield.com

Joseph T. Froehlich (P71887) Joshua Booth (P53847) Christopher Allen (P75329) John Fedynsky (P65232) Michigan Dep’t of Attorney General Assistant Attorneys General Attorneys for Defs. Whitmer and Nessel State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov boothj2@michigan.gov allenc28@michigan.gov fedynskyj@michigan.gov
/

REPLY BRIEF IN SUPPORT OF DEFENDANTS WHITMER AND NESSEL’S MOTION TO DISMISS

Case 1:20-cv-00323-PLM-PJG ECF No. 44 filed 06/30/20 PageID.1185 Page 2 of 19 CONCISE STATEMENT OF ISSUES PRESENTED
1. Plaintiffs’ claims are not properly before this Court. Their claims are moot, unripe, barred by the Eleventh Amendment, and Plaintiffs lack standing.
2. The United States Supreme Court and the Sixth Circuit have confirmed that the Governor is entitled to broad deference in responding to the COVID-19 crisis, even where the response touches upon fundamental constitutional rights.
3. The now-rescinded orders challenged are neutral and generally applicable and meet constitutional scrutiny.
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Case 1:20-cv-00323-PLM-PJG ECF No. 44 filed 06/30/20 PageID.1186 Page 3 of 19 CONTROLLING OR MOST APPROPRIATE AUTHORITY
Authority: City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). LIFFT v. Whitmer, et al, ___ F.3d ___ (slip opinion), Sixth Cir. No. 20-1581 (June 24, 2020). Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, 509 U.S. ___, ___ (2020) (summary order released May 29, 2020) (Roberts, C.J., concurring)
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INTRODUCTION The parties have the benefit of additional hindsight since the filing of the motion to dismiss. This hindsight only further demonstrates the effectiveness of the Governor’s actions in response to the COVID-19 crisis, and the weakness of Plaintiffs’ challenges to them. The restrictions that Plaintiffs challenge here are part of the broader network of response efforts that the Governor has undertaken to suppress the spread of COVID-19 and avoid many needless deaths. The Governor’s executive actions have been a model of success.1 While today several other states see strong resurgences of the virus and just last week2 the United States saw a new daily record of infections,3 Michigan has been one of the most successful states in managing the
1 See, e.g., H. Juliette T. Unwin, Swapnil Mishra, Valerie C. Bradley et al., Report 23: State-level tracking of COVID-19 in the United States, VERSION 2 (May 28, 2020), available at https://www.imperial.ac.uk/media/imperialcollege/medicine/mrc-gida/2020-05-28-COVID19-Report-23-version2.pdf (Exhibit A). 2 See, e.g., New York Times, Coronavirus Live Updates: Florida Reports a High Number of New Daily Cases and Texas Orders Bars Shut https://www.nytimes.com/2020/06/26/world/coronavirus-liveupdates.html?action=click&module=Spotlight&pgtype=Homepage#link-3ec77bd1 (Exhibit B). 3 ABC News, 12 states have set record highs in new COVID-19 cases since Friday (June 21, 2020), available at https://abcnews.go.com/US/12-states-set-record-highscovid-19-cases/story?id=71374520 (Exhibit C).
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pandemic.4 Countless lives have been saved, and the Governor has gradually lifted the bulk of the previously imposed restrictions.
On April 9, 2020, Governor Whitmer issued Executive Order 2020-42, which extended Executive Order 2020-21 and contained the provisions challenged by Plaintiffs. The Order was in effect during the initial peak of COVID-19 deaths and hospital resource use in Michigan, which according to covid19.healthdata.org, occurred on April 14 and 15, 2020.5 Even so, executive Order 2020-42 was in place for only two weeks, being rescinded by Executive Order 2020-59 on April 24, 2020.
The very restrictions that Plaintiffs challenge in this lawsuit were lifted weeks, even months, ago. For that reason alone, this Court should dismiss this case. More specifically, because the restrictions challenged here are no longer in effect, Plaintiffs’ claims are moot, unripe, and barred by the Eleventh Amendment. Likewise, Plaintiffs lack standing to seek equitable relief regarding these past events. Finally, in any event, the United States Supreme Court and the Sixth Circuit have confirmed that the Governor is entitled to broad deference in responding to the COVID-19 crisis, even where the response touches upon fundamental constitutional rights. And regardless, the now-rescinded orders challenged are neutral and generally applicable and meet constitutional scrutiny.
4 Detroit News, COVID-19 modeling site: Michigan one of three states ‘on track to contain’ virus (June 17, 2020), available at https://www.detroitnews.com/story/news/local/michigan/2020/06/17/covid-19modeling-site-michigan-on-track-contain-virus/3205580001/ (Exhibit D). 5 https://covid19.healthdata.org/united-states-of-america/michigan (Exhibit E).
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Combating a public health crisis of the scale and severity of the COVID-19 pandemic requires countless difficult decisions. Leaving these decisions to the elected branches makes good sense, and the law duly demands it. Plaintiffs present no viable basis to disrupt the Governor’s decisions; this case should be dismissed.
ARGUMENT
I. Plaintiffs’ claims lack justiciability. Plaintiffs lack standing and their claims are moot, unripe, and barred by the Eleventh Amendment. Plaintiffs’ claims both lack justiciability and are subject to immunity because,
as explained above and as Plaintiffs do not dispute, the very restrictions that Plaintiffs challenge are no longer in effect.6 Plaintiffs are able to engage in the conduct they desire; there is nothing left to enjoin or declare in this case. Instead, what Plaintiffs now seek is for this Court to say that the prior restrictions were unlawful, and that imposing them again sometime in the future would be unlawful. But this is not a justiciable request, and this Court should decline to entertain it.
6 Plaintiff Beemer challenges E.O. 2020-42’s restrictions on recreational motorboating and traveling to second residences; those restrictions were in effect for only two weeks in April, during the peak of COVID-19’s surge in Michigan. Plaintiff Muise challenges E.O. 2020-42’s closure of certain businesses to in-person activities, given his desire to patronize gun stores and ranges. Starting in late April and throughout the ensuing weeks, that general restriction was incrementally lifted for various businesses, including gun stores and ranges. And Plaintiff Muise also challenges E.O. 2020-42’s restriction on gatherings among people not from the same household, given his desire to assemble his family in his home for religious worship. There is no longer a general prohibition against gatherings with individuals outside one’s household, and regardless, engaging in religious worship has always been exempt from penalty under E.O. 2020-42 as well as its predecessor and successors.
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A. Plaintiffs’ claims are moot. As the U.S. Supreme Court has recognized, when “temporary restrictions” in an executive order “expire[ ] before . . . [a] [c]ourt [takes] any action,” the action is rendered moot. See Trump v. Hawaii, 138 S.Ct. 2392, 2404 (2018), citing Trump v. IRAP, 138 S.Ct. 353 (2017), and Trump v. Hawaii, 138 S.Ct. 377 (2017). Correspondingly, federal courts have routinely dismissed as moot challenges to COVID-19 mitigation measures that had since expired or been rescinded.7 For the reasons Defendants have already briefed, this Court should do the same here. As anticipated, Plaintiffs attempt to avoid this outcome by invoking the “voluntary cessation” exception. But as explained in Defendants’ principal brief, that misses the mark. As is well settled, when the government takes official action ceasing the challenged conduct, that cessation “provides a secure foundation for dismissal based on mootness so long as it appears genuine.” Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990), quoting Ragsdale v. Turnock, 841 F.2d 1358, 1365 (7th Cir. 1988), in turn citing 13A Wright, Miller & Cooper Federal Practice and Procedure § 3533.7, at 353 (2d ed. 1984).
7 See, e.g., Martinko et al. v. Whitmer, Case No. 20-cv-10931, Opinion and Order Granting Defendant’s Motion to Dismiss (E.D. Mich. June 5, 2020) (Exhibit F); Cameron v. Beshear, No. 3:20-CV-00023-GFVT, 2020 WL 2573463, at *2 (E.D. Ky. May 21, 2020) (Exhibit G); Krach v. Holcomb, No. 1:20-CV-184-HAB, 2020 WL 2197855, at *2 (N.D. Ind. May 6, 2020) (Exhibit H); see also Spell v. Edwards, ___ F.3d ___ slip op., pp. 2–3 (June 18, 2020) (Exhibit I) (preliminary-injunction context); Ministries v. Newsom, No. 20-CV-683-BAS-AHG, 2020 WL 2991467, at *3 (S.D. Cal. June 4, 2020) (Exhibit J) (same); Cassell v. Snyders, No. 20 C 50153, 2020 WL 2112374, at *4 (N.D. Ill. May 3, 2020) (Exhibit K) (same).
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Such is the case here. The challenged restrictions were never held out to be anything other than temporary, and so they have proven to be. Their official termination was not some shadow to avoid this lawsuit, but instead occurred over the course of a broader, incremental reopening of the State as the spread of COVID19 – thanks to such restrictions – slowed. See, e.g., E.O.s 2020-59, 2020-70, 202077, 2020-92, 2020-96, 2020-110, and 2020-115. As explained in Executive Order 2020-59, which began this incremental reopening process:
Although the virus remains aggressive and persistent—on April 23, 2020, Michigan reported 35,291 confirmed cases and 2,977 deaths—the strain on our health care system has begun to relent, even as our testing capacity has increased. We can now start the process of gradually resuming in-person work and activities that were temporarily suspended under my prior orders. But in doing so, we must move with care, patience, and vigilance, recognizing the grave harm that this virus continues to inflict on our state and how quickly our progress in suppressing it can be undone. (Executive Order 2020-59, Preamble). This reopening process has unavoidably intersected with pending litigation over the Governor’s emergency response measures. Depending on the timing of that intersection, some cases, like this one, have been rendered moot fairly quickly, whereas other cases have not. See, e.g., League of Independent Fitness Facilities and Trainers v. Whitmer, ___ F.3d ___, slip op. (June 24, 2020) (“LIFFT”). The process has at all times been genuine, and driven by nothing other than the Governor’s ongoing assessment of the pandemic and the changing needs of the State to combat
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it. Mosely, 920 F.2d at 415. The “voluntary cessation” exception provides no basis
to overlook the resulting mootness of this case.8
The same holds true for Plaintiffs’ invocation of the “capable of repetition, yet
evading review” exception. The recent decision of the Fifth Circuit in Spell v.
Edwards, ___ F.3d ___ slip op., pp. 2–3 (June 18, 2020) is instructive. There, the
plaintiffs – a pastor and his church – challenged an executive order of the Governor
of Louisiana that required a ten-person limit on all gatherings, including religious
services. Id. The restriction expired while a preliminary-injunction ruling was
pending on appeal, leading the Fifth Circuit to conclude that the plaintiffs’ claims
were moot. In so doing, the Fifth Circuit rejected the plaintiffs’ reliance on the
“capable of repetition” exception, explaining that the plaintiffs had not carried their
burden of proving the exception’s application:
Even if the first requirement (duration) is satisfied for the stay-athome orders, the plaintiffs fail to establish that the Governor might reimpose another gathering restriction on places of worship. The trend in Louisiana has been to reopen the state, not to close it down. [Id.]
8 Plaintiffs rely heavily on Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019), but that case is inapposite. At issue in Speech First was a university’s ad hoc decision to change certain definitions in its harassment and bullying policy after they were challenged on First Amendment grounds. Importantly, the Sixth Circuit found no grounds to conclude that the change was “genuine”—i.e., not simply a tactic to avoid litigation—given the absence of any indication that the change would have been made absent the lawsuit. See id. at 769-770. Not so here. As discussed, the challenged restrictions were always intended to be temporary; the Governor lifted them, just like any number of other restrictions, as soon as the public health permitted; and the Governor has done, and will continue to do, everything in her power to ensure the public health continues to improve. There is nothing to indicate the Governor’s official rescission of these restrictions was anything but genuine, and there is nothing in Free Speech that casts doubt on the mootness of Plaintiffs’ claims as a result.
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Like the plaintiffs in Spell, Plaintiffs here bear the burden of establishing entitlement to application of the exception. See Deja Vu of Nashville v. Metro. Govern. of Nashville and Davidson County, 274 F.3d 377, 390–91 (6th Cir. 2001). And as discussed, like the trend in Louisiana, the steady trend in Michigan “has been to reopen the state, not close it down.”
Viewed as a continuum, the Governor’s executive orders show an evolution of responses framed by an increasing body of knowledge being brought to bear on everchanging conditions. For Plaintiffs to survive the mootness test, they must convince the Court that the Governor will be in a position to invoke the same responses in the future to identical conditions. The notion the Governor will again put into place the same restrictions is purely speculative, and the notion that identical conditions will exist in this dynamic situation in the future is conjecture premised on an impossibility. As poignantly observed by the Fifth Circuit in Spell:
To be sure, no one knows what the future of COVID-19 holds. But it is speculative, at best, that the Governor might reimpose the ten-person restriction or a similar one. Spell, slip op. at 3. The same is true here. The conditions of this pandemic and the resulting needs of this State will surely continue to change. But how exactly they will change, and whether, as a result, Plaintiffs might at some point find themselves again subject to the same restrictions challenged in this case, are matters of pure speculation, not “reasonable expectation.” Mosley, 920 F.2d at 415. Plaintiffs’ claims for equitable relief are thus moot and must be dismissed.
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B. Plaintiffs lack standing and their claims are unripe. A plaintiff seeking to invoke the jurisdiction of the federal courts “must satisfy the threshold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). Plaintiffs fail the first element of standing: an injury in fact. See ACLU v. Nat’l Sec. Agency, 493 F.3d 644, 659 (6th Cir. 2007). “‘Injury in fact’ is a harm suffered by the plaintiff that is concrete and actual or imminent, not conjectural or hypothetical.” Id. (internal quotation marks omitted). Whether there is a concrete injury to support a plaintiff’s standing to seek injunctive or declaratory relief depends on the likelihood of future harm. See Lyons, 461 U.S. at 105. “Absent a sufficient likelihood that he will again be wronged in a similar way,” a plaintiff is not entitled to injunctive relief. Id. at 111. In other words, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding” equitable relief “if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S. 488, 495–96 (1974). In the absence of a continuing adverse effect, in order to have standing to maintain their equitable action, Plaintiffs must show (1) that they are now subject to a genuine threat of falling under the purview of an executive order imposing the restrictions they challenge, see O’Shea, 414 U.S. at 496-98; Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298–99 (1979); or (2) that their future action will be impeded by an executive order imposing such restrictions, see Clements v. Fashing, 457 U.S. 957, 962 (1982); Babbitt, 442 U.S. at 298–99.
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Plaintiffs cannot meet these requirements. There is no present or continuing
adverse effect from the now-rescinded restrictions, nor any suggestion that
Plaintiffs currently face a credible threat of such restrictions. Plaintiffs are free to
travel between residences, use motorboats, hold religious gatherings within their
homes, and patronize gun stores in person. And as discussed, there is nothing but
pure speculation to support any notion that Plaintiffs will again, at some point in
the future, be subjected to the purview of a new executive order restricting such
activities. As a result, Plaintiffs have not established an imminent, concrete injury,
and their claims must be dismissed for lack of standing.9
9 For similar reasons, Plaintiffs are incorrect in arguing that their claims are ripe. “Ripeness . . . is a question of timing,” and “becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all.” Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997); see id. (“A case is ripe for pre-enforcement review under the Declaratory Judgment Act only if the probability of the future event occurring is substantial and of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (cleaned up)). Where, as here, the claims at issue arise in the pre-enforcement context, the ripeness of the claims depends on: (1) whether “legal analysis [of the claims] would benefit from having [the] concrete factual context” afforded by an enforcement action; (2) “the extent to which the enforcement authority’s legal position is subject to change before enforcement”; and (3) “the hardship to the parties of withholding court consideration.” Ammex, Inc. v. Cox, 351 F.3d 697, 706 (6th Cir. 2003).
Under this standard, Plaintiffs’ claims are plainly not ripe. There is presently nothing to enforce against Plaintiffs that would prevent them from engaging in their desired conduct. Nor is there any “concrete factual context” by which this Court could measure the constitutionality of any future limitations Plaintiffs might experience, nor any assurance or even indication that any such limitations would resemble the ones that Plaintiffs currently challenge. And there is no hardship that might befall Plaintiffs from this Court waiting for these circumstances to materialize, if they ever do, before attempting to adjudicate any potential claim of constitutional infringement that Plaintiffs might allege to arise from them. There is simply nothing in this case that is “substantial” enough “and of sufficient immediate and reality” for this Court to consider at this time. Magaw, 132 F.3d at
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C. The Eleventh Amendment precludes retrospective relief as well as the adjudication of state-law claims.
Finally, any award of equitable relief to Plaintiffs on the basis of these rescinded restrictions would be barred by the Eleventh Amendment. In suits against the State or a state official in his or her official capacity, the Eleventh Amendment bars the award of “retrospective relief,” which includes not just monetary damages, but also equitable relief as to a law whose challenged portion is no longer in effect. See Green v. Mansour, 474 U.S. 64, 68–72 (1985).
The Supreme Court’s and the Sixth Circuit’s Eleventh Amendment jurisprudence focuses on the time that a court grants final relief, and whether, at that time, there is a violation of federal law that may be enjoined. Id. at 74. If the state defendant is now complying with federal law, there is no act or practice that can be enjoined or declared illegal. “Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. But compensatory or deterrence interests are insufficient to overcome the dictates of the Eleventh Amendment.” Id. at 68.
Here, deterrence is what Plaintiffs seek with their request for a ruling from this Court that the Governor violated their constitutional rights in the past. Such relief is only permissible when ancillary to a prospective injunction designed to remedy a continuing violation of federal law. Green, 474 U.S. at 67–73; Banas v. Dempsey, 742 F.2d 277, 286–88 (6th Cir. 1984). Without any continuing violation of
284. Ripeness thus precludes relief as to the rescinded restrictions, and provides another basis for dismissal.
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federal law, there is nothing to enjoin, let alone anything ancillary. Thus, the Eleventh Amendment requires dismissal of the claims for injunctive and declaratory relief that are based upon alleged past violations of federal law. See, e.g., Martinko et al. v. Whitmer, Case No. 20-cv-10931, Opinion and Order Granting Defendant’s Motion to Dismiss (E.D. Mich. June 5, 2020) (Exhibit F) (dismissing challenges to rescinded orders as moot and barred by the Eleventh Amendment).10 II. The United States Supreme Court and the Sixth Circuit have
confirmed that the Governor is entitled to broad deference in responding to the COVID-19 crisis, even where the response touches upon fundamental constitutional rights. In the midst of this pandemic, Chief Justice Roberts has made clear that decisions regarding how to best protect the public should be left to the discretion of “politically accountable officials of the States.” South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, 509 U.S. ___, ___ (2020) slip op., p. 3 (summary order released May 29, 2020) (Roberts, C.J., concurring). And “[w]hen those officials ‘undertake to act in areas fraught with medical and scientific uncertainties,’ their latitude ‘must be especially broad.’” Id., quoting Marshall v. United States, 414 U. S. 417 (1974). Indeed, when operating within those broad limits, Chief Justice Roberts explained that these officials “should not be subject to second-guessing” by the
10 Furthermore, Plaintiffs’ allegations regarding their right to bear arms invoke both the U.S. and Michigan constitutions. Relief under any state-law aspect of this claim, however, is also barred by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 121 (1984); Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005).
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federal judiciary, which lacks comparable expertise in public health. Id., quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985). The Sixth Circuit has echoed this message, confirming that “the police power retained by the states empowers state officials to address pandemics such as COVID-19 largely without interference from the courts.” LIFFT, slip op. at 3, citing Jacobson, 197 U.S. at 29.
Here, in responding to the COVID-19 pandemic, the Governor has had to make countless difficult decisions in short order, with many lives at stake, and with due consideration of the fallout for the economy from these public health measures. Plaintiffs challenge a few leaves in a forest of measures taken to abate the damage caused by COVID-19. And while Plaintiffs may wish to focus on these few leaves while obscuring the view of the forest, the Court should not follow suit. Under settled law, including the separation of powers, judicial deference is owed to the Governor’s assessment of how to most effectively implement measures to limit the spread of the virus while not unduly restricting life-sustaining activity and services.
The two-week-long restriction on travel between residences was critical to prevent the virus from spreading from one part of the state to another – in particular, from more densely populated areas to less densely populated areas – during the peak of the virus’s surge. The temporary restrictions on recreational motorboating, in-person business activity, and gatherings between persons from separate households were likewise designed to limit the spread of the virus by minimizing in-person interactions between individuals from different households
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and communities. And the executive orders consistently exempted from penalty participation in religious worship.
This Court’s role is not to “usurp the functions of another branch of government” in deciding how best to protect public health in times of crisis. Jacobson, 197 U.S. at 28. “‘Under the pressure of great dangers,’ constitutional rights may be reasonably restricted ‘as the safety of the general public may demand.’ That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home.” In re Abbott, 954 F.3d at 778, quoting Jacobson, 197 U.S. at 29. And indeed, “[s]haping the precise contours of public health measures entails some difficult line-drawing. Our Constitution wisely leaves that task to officials directly accountable to the people.” LIFFT, slip op. at 6.
Although there may be more than one reasonable way to respond to the COVID-19 outbreak, it is clear that the Governor’s now-rescinded orders most certainly had a real and substantial relation to protecting public health during this pandemic, and they were not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Given the wide latitude and deference owed to the Governor’s actions, Plaintiffs’ claims should be dismissed. III. The rescinded orders were neutral and generally applicable, and
could meet any heightened scrutiny that might otherwise apply. The Governor’s former orders were neutral and generally applicable; these kinds of laws are presumed constitutional, even when they encroach on an individual’s fundamental constitutional rights. See Church of the Lukumi Babalu
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Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993); Employment Division v. Smith, 494 U.S. 872, 878–879 (1990); New Doe Child #1 v. Congress of the United States, 891 F.3d 578, 591–593 (6th Cir. 2018). The now-rescinded restrictions did not specifically target fundamental rights like the free exercise of religion or the right to bear arms. Instead, they targeted the spread of COVID-19, in temporary and neutral fashion. As noted in the Governor’s principal brief, such measures have routinely been upheld as constitutional.11
And while the Supreme Court in Smith and Babalu did not explicitly mention the term “rational basis,” the Sixth Circuit has interpreted those cases as imposing a similar standard of review on neutral laws of general applicability. See, e.g., Seger v. Ky. High Sch. Athletic Ass’n, 453 Fed. Appx. 630, 634 (6th Cir. 2011). Under rational basis review, laws “accorded a strong presumption of validity” and will be upheld if they are “rationally related to furthering a legitimate state interest.” Id. at 635; see also F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993) (under rational basis review, a law must be upheld “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification”).
11 This also sets the rescinded restrictions apart from Kentucky’s restriction on religious gatherings that was at issue in Maryville Baptist Church, Inc v Beshear, ___ F.3d ____ (6th. Cir, 2020). That restriction specifically prohibited “faith-based” gatherings by name, slip op at 6, whereas the Governor’s executive orders here did no such thing. In fact, E.O. 2020-42 explicitly exempted, “[c]onsistent with prior guidance, a place of religious worship, when used for religious worship” from its penalty provision. (Paragraph 13.)
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There can be no dispute that slowing the spread of COVID-19 and protecting the public health is a worthy government interest. Plaintiffs do not meaningfully dispute that the best way to slow the spread of COVID-19 is to limit travel and inperson interactions. Nor can Plaintiffs dispute that, to ensure public health, the Governor needed to balance the food, shelter, and security needs of Michigan residents. The now-rescinded restrictions were tailored to limit conduct most likely to spread COVID-19, while still permitting activity required to sustain life.
As summarized by the Sixth Circuit: Among other uncertainties of the decisionmaking process, the Order does not close every venue in which the virus might easily spread. Yet the Governor’s order need not be the most effective or least restrictive measure possible to attempt to stem the spread of COVID-19. Heller, 509 U.S. at 321. Shaping the precise contours of public health measures entails some difficult line-drawing. Our Constitution wisely leaves that task to officials directly accountable to the people. (LIFFT, slip op. at 3.) Plaintiffs’ challenges to these temporary, neutral, generally applicable, and now-expired orders that were put in effect during the peak of a public health crisis in Michigan are subject to the deferential standards set forth by the Supreme Court and the Sixth Circuit. But even if they were not, they would pass constitutional muster for the same reasons outlined in Defendants’ principal brief12 and the reasons discussed above.13
12 See R. 35, pp. 24-39, Page ID # 760-775. 13 See also Altman v. Cty. of Santa Clara, No. 20-CV-02180-JST, ––– F.Supp.3d ––– –, ––––, 2020 WL 2850291, at *9-18 (N.D. Cal. June 2, 2020)(holding that an executive order issued by the Governor of California did not violate the Second Amendment where, as here, the plaintiffs argued that the executive order infringed
15

Case 1:20-cv-00323-PLM-PJG ECF No. 44 filed 06/30/20 PageID.1202 Page 19 of 19

CONCLUSION AND RELIEF REQUESTED Defendants Whitmer and Nessel respectfully request that Plaintiffs’ amended complaint be dismissed.
Respectfully submitted, Dana Nessel Attorney General

Dated: June 29, 2020

/s/ Joseph T. Froehlich Joseph T. Froehlich Assistant Attorney General Attorneys for Defendants Whitmer and Nessel State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 froehlichj1@michigan.gov P71887
CERTIFICATE OF SERVICE

I certify that on June 29, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record, and I certify that my secretary has mailed by U.S. Postal Service the papers to any non-ECF participant.

/s/ Joseph T. Froehlich Joseph T. Froehlich Assistant Attorney General Attorney for Defendants Whitmer and Nessel State Operations Division

their Second Amendment rights by preventing them from “acquiring or practicing with firearms or ammunition, and during a time of national crisis,” when they claimed those rights were most important.)(Exhibit L).
16

Case 1:20-cv-00323-PLM-PJG ECF No. 44-1 filed 06/30/20 PageID.1203 Page 1 of 38

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT $

Ca2s8eM1a:y22002-0cv-00323-PLM-PJG ECF No. 44-1 filed 06/30/Im20periaPl CaoglleegIeDC.O1V2ID0-419 RPesapognese2Teoamf 38
ZĞƉŽƌƚϮϯ͗ ^ƚĂƚĞͲůĞǀĞůƚƌĂĐŬŝŶŐŽĨKs/ͲϭϵŝŶƚŚĞhŶŝƚĞĚ^ƚĂƚĞƐ
sĞƌƐŝŽŶϮ;ϮϴͲϬϱͲϮϬϮϬͿ
HJulietteTUnwin∗,SwapnilMishra2,∗,ValerieCBradley∗,AxelGandy∗,MichaelaACVollmer,ThomasMellan,Helen Cou-pland, Kylie Ainslie, Charlie Whittaker, Jonathan Ish-Horowicz, Sarah Filippi, Xiaoyue Xi, Melodie Monod, Oliver Ratmann, Michael Hutchinson, Fabian Valka, Harrison Zhu, Iwona Hawryluk, Philip Milton, Marc Baguelin, Adhiratha Boonyasiri, Nick Brazeau, Lorenzo Cattarino, Giovanni Charles, Laura V Cooper, Zulma Cucunuba, Gina CuomoDannenburg, Bimandra Djaafara, Ilaria Dorigatti, Oliver J Eales, Jeﬀ Eaton, Sabine van Elsland, Richard FitzJohn, Katy Gaythorpe,WilliamGreen,TimothyHallett,WesHinsley,NatsukoImai,BenJeffrey,EdwardKnock,DanielLaydon,John Lees,GemmaNedjati-Gilani,PierreNouvellet,LucyOkell,AlisonOwer,KrisVParag,IgorSiveroni,HayleyAThompson, Robert Verity, Patrick Walker, Caroline Walters, Yuanrong Wang, Oliver J Watson, Lilith Whittles, Azra Ghani, Neil M Ferguson,StevenRiley,ChristlA.Donnelly,SamirBha 1,∗andSethFlaxman∗
DepartmentofInfectiousDiseaseEpidemiology,ImperialCollegeLondon DepartmentofMathematics,ImperialCollegeLondon WHOCollaboratingCentreforInfectiousDiseaseModelling MRCCentreforGlobalInfectiousDiseaseAnalytics AbdulLatifJameelInstituteforDiseaseandEmergencyAnalytics,ImperialCollegeLondon DepartmentofStatistics,UniversityofOxford
∗Contributedequally. 1Correspondence: s.bhatt@imperial.ac.uk. 2Methodologicalcorrespondence: s.mishra@imperial.ac.uk

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DOI: ?iiTb,ff/QBXQ`;fRyXk88eRfdNkjR

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Summary
As of 20 May 2020, the US Centers for Disease Control and Preven on reported 91,664 conﬁrmed or probable COVID19-related deaths, more than twice the number of deaths reported in the next most severely impacted country. In order to control the spread of the epidemic and prevent health care systems from being overwhelmed, US states have implemented a suite of non-pharmaceu cal interven ons (NPIs), including “stay-at-home” orders, bans on gatherings, and business and school closures.
We model the epidemics in the US at the state-level, using publicly available death data within a Bayesian hierarchical semi-mechanis c framework. For each state, we es mate the me-varying reproduc on number (the average number of secondary infec ons caused by an infected person), the number of individuals that have been infected and the number of individuals that are currently infec ous. We use changes in mobility as a proxy for the impact that NPIs and other behaviour changes have on the rate of transmission of SARS-CoV-2. We project the impact of future increases in mobility, assuming that the rela onship between mobility and disease transmission remains constant. We do not address the poten al eﬀect of addi onal behavioural changes or interven ons, such as increased mask-wearing or tes ng and tracing strategies.
Na onally, our es mates show that the percentage of individuals that have been infected is 4.1% [3.7%-4.5%], with wide varia on between states. For all states, even for the worst aﬀected states, we es mate that less than a quarter of the popula on has been infected; in New York, for example, we es mate that 16.6% [12.9%-21.4%] of individuals have been infected to date. Our a ack rates for New York are in line with those from recent serological studies [1] broadly suppor ng our modelling choices.
There is varia on in the ini al reproduc on number, which is likely due to a range of factors; we ﬁnd a strong associa on between the ini al reproduc on number with both popula on density (measured at the state level) and the chronological date when 10 cumula ve deaths occurred (a crude es mate of the date of locally sustained transmission).
Our es mates suggest that the epidemic is not under control in much of the US: as of 25 May 2020, the reproduc on number is above the cri cal threshold (1.0) in Above 1: 26 [95% CI: 18-34] states. Higher reproduc on numbers are geographically clustered in the South and Midwest, where epidemics are s ll developing, while we es mate lower reproduc on numbers in states that have already suﬀered high COVID-19 mortality (such as the Northeast). These es mates suggest that cau on must be taken in loosening current restric ons if eﬀec ve addi onal measures are not put in place.
We predict that increased mobility following relaxa on of social distancing will lead to resurgence of transmission, keeping all else constant. We predict that deaths over the next two-month period could exceed current cumula ve deaths by greater than two-fold, if the rela onship between mobility and transmission remains unchanged. Our results suggest that factors modula ng transmission such as rapid tes ng, contact tracing and behavioural precau ons are crucial to oﬀset the rise of transmission associated with loosening of social distancing.
Overall, we show that while all US states have substan ally reduced their reproduc on numbers, we ﬁnd no evidence that any state is approaching herd immunity or that its epidemic is close to over.
We invite scien ﬁc peer reviews here: ?iiTb,ffQT2M`2pB2rXM2if;`QmT\B/4@;Q`f*PoA.@RN

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1 Introduc on
The ﬁrst death caused by COVID-19 in the United States is currently believed to have occurred in Santa Clara, California on the 6th February [2]. In April 2020, the number of deaths a ributed to COVID-19 in the United States (US) surpassed that of Italy [3]. Throughout March 2020, US state governments implemented a variety of non-pharmaceu cal interven ons (NPIs), such as school closures and stay-at-home orders, to limit the spread of SARS-CoV-2 and help maintain the capacity of health systems to treat as many severe cases of COVID-19 as possible. Courtemanche et al. [4] use an event-study model to determine that such NPIs were successful in reducing the growth rate of COVID-19 cases across US coun es. We similarly seek to es mate the impact of NPIs on COVID-19 transmission, but do so with a semi-mechanis c Bayesian model that reﬂects the underlying process of disease transmission and relies on mobility data released by companies such as Google [5]. Mobility measures reveal stark changes in behaviour following large-scale government interven ons, with individuals spending more me at home and correspondingly less me at work, at leisure centres, shopping, and on public transit. Some state governments, like the Colorado Department of Public Health, have already begun to use similar mobility data to adjust guidelines over social distancing [6]. As more and more states ease the stringency of their NPIs, future policy decisions will rely on the interac on between mobility and NPIs and their subsequent impact on transmission.
In a previous report [7], we introduced a new Bayesian sta s cal framework for es ma ng the rate of transmission and a ack rates for COVID-19. Our approach infers the me-varying reproduc on number, Rt, which measures transmission intensity. We calculate the number of new infec ons through combining previous infec ons with the genera on interval (the distribu on of mes between infec ons). The number of deaths is then a func on of the number of infec ons and the infec on fatality rate (IFR). We es mate the posterior probability of our parameters given the observed data, while incorpora ng prior uncertainty. This makes our approach empirically driven while incorpora ng as many sources of uncertainty as possible. In this report, similar to [8, 9], we adapt our original framework to model transmission in the US at the state level. In our formula on we parameterise Rt as a func on of several mobility types. Our parameterisa on of Rt makes the explicit assump on that changes in transmission are reﬂected through mobility. While we do a empt to account for residual varia on, we note that transmission will also be inﬂuence by addi onal factors and some of these are confounded causally with mobility. We u lise par al pooling of parameters, where informa on is shared across all states to leverage as much signal as possible, but individual eﬀects are also included for state- and region-speciﬁc idiosyncrasies. Our par al pooling model requires only one state to provide a signal for the impact of mobility, and then this eﬀect is shared across all states. While this sharing can poten ally lead to ini al over or under es ma on eﬀect sizes, it also means that a consistent signal for all states can be es mated before that signal is presented in an individual states with li le data.
We infer plausible upper and lower bounds (Bayesian credible interval summaries of our posterior distribu on) of the total popula on that have been infected by COVID-19 (also called the cumula ve a ack rate or a ack rate). We also es mate the eﬀec ve number of individuals currently infec ous given our genera on distribu on. We inves gate how the reproduc on number has changed over me and study the heterogeneity in star ng and ending rates by state, date, and popula on density. We assess whether there is evidence that changes in mobility have so far been successful at reducing Rt to less than 1. To assess the risk of resurgence when interven ons are eased, we use simple scenarios of increased mobility and simulate forwards in me. From these simula ons we study how sensi ve individual states are

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to resurgence, and the plausible magnitude of this resurgence. Details of the data sources and a technical descrip on of our model and are found in Sec ons 4 and 5 respec vely. General limita ons of our approach are presented below in the conclusions.

2 Results

2.1 Mobility trends, interven ons and eﬀect sizes

Mobility data provide a proxy for the behavioural changes that occur in response to non-pharmaceu cal interven ons. Figure 1 shows trends in mobility for the 50 states and the District of Columbia (see Sec on 4 for a descrip on of the mobility dimensions). Regions are based on US Census Divisions, modiﬁed to account for coordina on between groups of state governments [10]. These trends are rela ve to a state-dependent baseline, which was calculated shortly before the COVID-19 epidemic. For example, a value of −20% in the transit sta on trend means that individuals, on average, are visi ng and spending 20% less me in transit hubs than before the epidemic. In Figure 1, we overlay the ming of two major state-wide NPIs (stay at home and emergency decree) (see [11] for details). We also note intui ve changes in mobility such as the spike on 11th and 12th April for Easter. In our model, we use the me spent at one’s residence and the average of me spent at grocery stores, pharmacies, recrea on centres, and workplaces. For states in which the 2018 American Community Survey reports that more than 20% of the working popula on commutes on public transporta on, we also use the me spent at transit hubs (including gas sta ons etc.) [12].
To jus fy the use of mobility as a proxy for behaviour, we regress average mobility against the mings of major NPIs (represented as step func ons). The median correla on between the observed average mobility and the linear predic-
ons from NPIs was approximately 89% (see Appendix A). We observed reduced correla on when lagging (forward and backwards) the ming of NPIs sugges ng immediate impact on mobility. We make no explicit causal link between NPIs and mobility, however, this rela onship is plausibly causally linked but is confounded by other factors.
The mobility trends data suggests that the United States’ na onal focus on the New York epidemic may have led to substan al changes in mobility in nearby states, like Connec cut, prior to any mandated interven ons in those states. This observa on adds support to the hypothesis that mobility can act as a suitable proxy for the changes in behaviour induced by the implementa on of the major NPIs. In further corrobora on, a poll conducted by Morning Consult/Poli co on 26th March 2020 found that 81% of respondents agreed that “Americans should con nue to social distance for as long as is needed to curb the spread of coronavirus, even if it means con nued damage to the economy” [13]. While support for strong social distancing has since eroded slightly (70% agree in the same poll conducted later on 10 May 2020), the overall high support for social distancing suggests strong compliance with NPIs, and that the changes to mobility that we observe over the same me period are driven by adherence to those policy recommenda ons. However, we note that mobility alone cannot capture all the heterogeneity in transmission risk. In par cular, it cannot capture the impact of case-based interven ons (such as tes ng and tracing). To account for this residual varia on missed by mobility we use a second-order, weekly, autoregressive process. This autoregressive process is an addi onal term in our parametric equa on for Rt and accounts for residual noise by capturing a correla on structure where current Rt is correlated with previous weeks Rt (see Figures 13).

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Figure 2 shows the average global eﬀect sizes for the mobility types used in our model. Es mates for the regional and state-level eﬀect sizes are included in Appendix B. We ﬁnd that increased me spent in residences reduces transmission by 31.8% [-10.6% - 66.7%], and that decreases in overall average mobility reduced transmission by 69.3% [41.2% 85.7%]. These two eﬀects are likely related - as people spend less me in public spaces, captured by our average mobility metric, they conversely spend more me at home. Overall, this decreases the number of people with whom the average individual comes into contact, thus slowing transmission, even if more me at home may increase transmission within a single residence. We ﬁnd less me spent in transit hubs is weakly associated -14.8% [-40.8% - 11.6%] with increased transmission (the reverse of what we might expect). The impact of transit mobility is in contrast to what we observed in Italy [8], and could reﬂect higher reliance on cars and less use of public transit in the US than Europe [14].
The learnt random eﬀects from the autoregressive process are shown in Appendix C. These results show that mobility explains most of the changes in transmission in places without advanced epidemics, as evidenced by the ﬂat residual varia on. However, for regions with advanced epidemics, such as New York or New Jersey, there is evidence of addi onal decreases in transmission that cannot be explained by mobility alone. These may capture the impact of other control measures, such as increased tes ng, as well as behavioural responses not captured by mobility, like increased maskwearing and hand-washing.

2.2 Impact of interven ons on reproduc on numbers
We es mate a na onal average ini al reproduc on number (Rt=0) of 2.8 [1.9 Nebraska - 4.5 New York] and ﬁnd that, similar to inﬂuenza transmission in ci es (see Dalziel et al. [15]), Rt=0 is correlated with popula on density (Figure 3)1. Dalziel et al. hypothesize that more personal contact occurs in more densely populated areas, thus resul ng in a larger Rt=0.
Rt=0 is also nega vely correlated with when a state observed cumula ve 10 deaths (Figure 3). This nega ve correla on implies that states began locally sustained transmission later had a lower Rt=0. A possible hypothesis for this eﬀect is the onset of behavioural changes in response to other epidemics in the US. An alterna ve explana on is that the es mates of the early growth rates of the epidemics in the states aﬀected earliest are biased upwards by the early na onal ramp-up of surveillance and tes ng.
In both these rela onships there may are many confounding variables and we discourage causal a ribu on, these results just serve as qualita ve assessments.
In subsequent analysis we use Rt=EmergencyDecree rather than Rt=0. Our reason for this is to allow more focus on current trends. Despite both Rt=0 and Rt=EmergencyDecree being highly variable the majority of states have generally decreased their Rt since the ﬁrst 10 deaths were observed (Figure 4). We es mate that 27 states have a posterior mean Rt of less than one but only 0 have 95% credible intervals that are completely below one. A posterior mean Rt below one and credible interval that includes one suggests that the epidemic is likely under control in that state, but the poten al for increasing transmission cannot be ruled out. Therefore, our results show that very few states have conclusively controlled their epidemics. Of the ten states with the highest current Rt, half are in the Great Lakes region (Illinois, Ohio, Minnesota
1We also considered the rela onship of Rt with a popula on density weighted by propor on of the total popula on of the state in each census tract. This was less strongly correlated to Rt=0.

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Change in mobility

Change in mobility

Great Lakes

50%

● ● ● ● ● ●

● Emergency decree Stay at home order issued Stay at home order eased

0% −50%
24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

● Indiana ● Illinois ● Ohio ● Michigan ● Wisconsin ● Minnesota

Mountain

50%

● ● ● ● ● ● ● ●

● Emergency decree Stay at home order issued Stay at home order eased

0% −50%
24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

● Utah ● Arizona ● Colorado ● New Mexico ● Montana ● Nevada ● Idaho ● Wyoming

Pacific

50%

● ● ● ● ●

● Emergency decree Stay at home order issued Stay at home order eased

0% −50%

● Washington ● California ● Hawaii ● Oregon ● Alaska

24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

Southern Appalachia

50%

● ● ● ●

● Emergency decree Stay at home order issued Stay at home order eased

0% −50%

● Kentucky ● Tennessee ● Alabama ● Mississippi

24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

Change in mobility

Change in mobility

Change in mobility

Change in mobility

Great Plains

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50%

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● Emergency decree Stay at home order issued Stay at home order eased

0% −50%
24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

● Iowa ● Kansas ● Missouri ● North Dakota ● Nebraska ● South Dakota

Northeast Corridor

50%

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●

0%

−50% 24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

● Emergency decree Stay at home order issued Stay at home order eased
● Pennsylvania ● New York ● New Jersey ● Rhode Island ● Connecticut ● Massachusetts ● New Hampshire ● Vermont ● Maine

South Atlantic

50%

● ● ● ● ● ● ● ● ●

0%

−50% 24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

● Emergency decree Stay at home order issued Stay at home order eased
● Maryland ● Florida ● North Carolina ● District of Columbia ● Virginia ● Delaware ● South Carolina ● Georgia ● West Virginia

TOLA
● ●
● ●
50%

● Emergency decree Stay at home order issued Stay at home order eased

0% −50%

● Arkansas ● Louisiana ● Texas ● Oklahoma

24 Feb 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

Change in mobility

Change in mobility

Figure 1: Comparison of mobility data from Google with government interven ons for the 50 states and the District of Columbia. The solid lines show average mobility (across categories “retail & recrea on”, “grocery & pharmacy”, “workplaces”), the dashed lines show “transit sta ons” and the do ed lines show “residen al”. Interven on dates are indicated by shapes as shown in the legend; see Sec on 4 for more informa on about the interven ons implemented. There is a strong correla on between the onset of interven ons and reduc ons in mobility.

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Mobility
Rt = 0

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Average mobility

●

Residential

●

Transit

●

0%

25%

50%

75%

100%

(no effect on transmissibility)

(ends transmissibility)

Relative % reduction in Rt

Figure 2: Covariate eﬀect sizes: Average mobility combines “retail & recrea on”, “grocery & pharmacy”, “workplaces”. Transit sta ons is only used as a covariate for states in which more than 20% of the working popula on commutes using public transporta on. We plot es mates of the posterior mean eﬀect sizes and 95% credible intervals for each mobility category. The rela ve % reduc on in Rt metric is interpreted as follows: the larger the percentage, the more Rt decreases, meaning the disease spreads less; a 100% rela ve reduc on ends disease transmissibility en rely. The smaller the percentage, the less eﬀect the covariate has on transmissibility. A 0% rela ve reduc on has no eﬀect on Rt and thus no eﬀect on the transmissibility of the disease, while a nega ve percent reduc on implies an increase in transmissibility.

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(b)

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● TOLA

Figure 3: Comparison of ini al Rt=0 with popula on density (a) and date of 10 cumula ve deaths (b). R-squared values are 0.558 and 0.377 respec vely.

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Hawaii Montana
Kansas District of Columbia
Massachusetts Oregon
New Jersey South Dakota
Indiana Colorado Oklahoma Delaware Connecticut Maryland Louisiana West Virginia Missouri
Idaho New York Vermont Arkansas Washington
Alaska North Carolina
Pennsylvania Illinois
Kentucky South Carolina
California Michigan Nebraska Alabama Mississippi New Mexico Rhode Island Minnesota Georgia
Virginia North Dakota
Texas Maine
Iowa Ohio Wyoming Nevada Arizona Florida Utah New Hampshire Tennessee Wisconsin
0

● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ● ●

●● ●●
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●● ●●
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●●

●● ●● ●●
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●● ●●
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●● ●●
●●

2

4

Rt

●● Great Lakes ●● Great Plains ●● Mountain ●● Northeast Corridor ●● Pacific ●● South Atlantic ●● Southern Appalachia ●● TOLA
● Emergency Decree Current
6

Figure 4: State-level es mates of Rt=EmergencyDecree and the average Rt over the week ending 25 May 2020. The colours indicate regional grouping as shown in Figure 1. We do not include es mates of Rt=EmergencyDecree for Alaska, Hawaii, Montana, North Dakota, South Dakota, Utah, West Virgina and Wyoming as Emergency Decree was declared in these states before we start modelling these states.

Indiana, and Wisconsin). In Figure 5 we show the geographical varia on in the posterior probability that Rt is less than 1; green states are those with probability that Rt is below 1 is high, and purple states are those with low probability. The closer a value is to 100%, the more certain we are that the rate of transmission is below 1 and that new infec ons are not increasing at present. This is in contrast to many European countries that have conclusively reduced their Rt less than one at present [7].
Figure 5 shows that while we are conﬁdent that some states have controlled transmission, we are similarly conﬁdent that many states have not. Speciﬁcally, we are more than 50% sure that Rt > 1 in 26 states. There is substan al geographical clustering; most states in the Midwest and the South have rates of transmission that suggest the epidemic is not yet under control. We do note here that many states with Rt < 1 are s ll in the early epidemic phase with few deaths so far.

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Probability Rt < 1
x < 20% 20% ≤ x < 40% 40% ≤ x < 60% 60% ≤ x < 80%
x ≥ 80%

Figure 5: Our es mates of the probability that Rt is less than one (epidemic control) for each state. These values are an average over the week ending 25 May 2020.
2.3 Trends in COVID-19 transmission
In this sec on we focus on ﬁve states: Washington, New York, Massachuse s, Florida, and California. These states represent a variety of COVID-19 government responses and outbreaks that have dominated the na onal discussion of COVID-19. Figure 6 shows the trends for these states (trends for all other states can be found in appendix D). Regressing average mobility against the ming of NPIs yielded an average correla on of around ∼ 97%. Along with the strong visual correspondence, these results suggest that that interven ons have had a very strong eﬀect on mobility, which given our modelling assump ons, translates into eﬀects on transmission intensity. We also note that there are clear day-of-theweek ﬂuctua ons from the mobility data that aﬀect transmission; these ﬂuctua ons are small compared to the overall reduc ons in mobility.
On February 29th 2020, Washington state announced the na on’s ﬁrst COVID-related death and became the ﬁrst state to declare a state of emergency. Despite observing its ﬁrst COVID-19 death only a day a er Washington state, New York did not declare a state of emergency un l 7 March 2020. We es mate that Rt began to decline in Washington state before it did in New York, likely due to earlier interven on, but that stay-at-home orders in both states successfully reduced Rt to less than one. Approximately one week a er New York, Massachuse s issued a stay-at-home order and the mean Rt is currently (0.8 [0.5-1.2]). In Florida, Rt reduced no ceably before the stay-at-home order, sugges ng that behaviour change started before the stay-at-home order. However, increasing mobility appears to have driven transmission up recently (1.2 [0.7-1.6]). California implemented early interven ons in San Francisco [16], and was the ﬁrst state to issue a stay-at-home order [17], but the mean Rt s ll is around 1 (1.0 [0.6-1.5]). For all the ﬁve states shown here there is considerable uncertainty around the current value of Rt.

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Washington

40

30

20

10

0

10

Feb24

Feb

9

Ma2r 3

Mar

6

Apr20

Apr 4

May18

May

New York

900

600

300

0

10

Feb24

Feb

9

Ma2r 3

Mar

6

Apr20

Apr 4

Ma1y8

May

Massachusetts

300

200

100

0

10

Feb24

Feb

9

Ma2r 3

Mar

6

Apr20

Apr 4

Ma1y8

May

Florida 100

75

50

Daily number of infections

Daily number of infections

Daily number of infections

6,000
4,000
2,000
0 9 Mar 23 Mar 6 Apr 20 Apr 4 May18 May
250,000 200,000 150,000 100,000
50,000 0 9 Mar23 Mar 6 Apr20 Apr 4 May18 May
50,000 40,000 30,000 20,000 10,000
0 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May
15,000 10,000

25

5,000

Daily number of infections

0

10

Feb24

Feb

9

Ma2r 3

Mar

6

Apr20

Apr 4

Ma1y8

May

California 150

0 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May
40,000

Daily number of infections

30,000 100
20,000
50 10,000

0

10

Feb24

Feb

9

Ma2r 3

Mar

6

Apr20

Apr 4

Ma1y8

May

0 9 Mar23 Mar 6 Apr 20 Apr 4 May18 May

Rt

Rt

Rt

Rt

Rt

●
4

3

2

1

0

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

●
6

4

2

0

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

●
6

4

2

0

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

●
4

2

0

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

●
4

3

2

1

0

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing ● Started ● Eased
Interventions ● Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing ● Started ● Eased
Interventions ● Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing ● Started ● Eased
Interventions ● Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing ● Started ● Eased
Interventions ● Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing ● Started ● Eased
Interventions ● Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Figure 6: State-level es mates of infec ons, deaths, and Rt for Washington, New York, Massachuse s, Florida, and California. Le : daily number of deaths, brown bars are reported deaths, blue bands are predicted deaths, dark blue 50% credible interval (CI), light blue 95% CI. Middle: daily number of infec ons, brown bars are reported conﬁrmed cases, blue bands are predicted infec ons, CIs are same as le . A erwards, if the Rt is above 1, the number of infec ons will start growing again. Right: me-varying reproduc on number Rt dark green 50% CI, light green 95% CI. Icons are interven ons shown at the me they occurred.

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2.4 A ack rates
We show the percentage of total popula on infected, or cumula ve a ack rate, in Table 1 for all 50 states and the District of Columbia. In general, the a ack rates across states remain low; we es mate that the average percentage of people that have been infected by COVID-19 is 4.1% [3.7%-4.5%]. However, this low na onal average masks a stark heterogeneity across states. New York and New Jersey have the highest es mated a ack rates, of 16.6% [12.9%-21.4%] and 15.5% [11.8%-20.3%] respec vely, and Connec cut, Massachuse s, and Washington, D.C. all have a ack rates over 10%. Conversely, other states that have drawn a en on for early outbreaks, such as California, Washington, and Florida, have a ack rates of around 2%, and other states where the epidemic is s ll early, like Maine, having es mated a ack rates of less than 1%. We note here that there is the possibility of under repor ng of deaths in these states. Under repor ng of COVID-19 a ributable deaths will result in an underes mate of the a ack rates. We note here that we have found our es mates to be reasonably robust in se ngs where there is signiﬁcant under repor ng (e.g. Brazil [9]).
Figure 7 shows the eﬀec ve number of infec ous individuals and the number of newly infected individuals on any given day for each of the 8 regions in our model. The eﬀec ve number of infec ous individuals is calculated using the genera on
me distribu on, where individuals are weighted by how infec ous they are over me. The fully infec ous average includes asympto c and symptoma c individuals. Currently, we es mate that there are 949000 [189000 - 2691000] infec ous individuals across the whole of the US, which corresponds to 0.30% [0.06% - 0.84%] of the popula on. Table 2 shows the number currently infected across diﬀerent states is highly heterogeneous. Figure 7 shows that despite new infec ons being in a steep decline, the number of people s ll infec ous, and therefore able to sustain onward transmission, can s ll be large. This discrepancy underscores the importance of tes ng and case based isola on as a means to control transmission. We note that the expanding cone of uncertainty is in part due to uncertain es arising from the lag between infec ons and deaths, but also from trends in mobility. State level es mates of the total number of infec ous individuals over me are given in Appendix E and the current number of infec ous individuals are given in Figure 2.

2.5 Scenarios
The rela onship between mobility and transmission is the principal mechanism aﬀec ng values of Rt in our model. Therefore, we illustrate the impact of likely near-term scenarios for Rt over the next 8 weeks, under assump ons of relaxa ons of interven ons leading to increased mobility. We note that mobility is ac ng here as a proxy for the number of poten ally infec ous contacts. Our mobility scenarios [18] do not account for addi onal interven ons that may be implemented, such as mass tes ng and contact tracing. It is also likely that when interven ons are li ed behaviour may modify the eﬀect sizes of mobility and reduce the impact of mobility on transmission. Factors such as increased use of masks and increased adherence to social distancing are examples. Given these factors we cau on the reader to look at our scenarios as pessimis c, but illustra ve of the poten al risks.
We deﬁne scenarios based on percent return to baseline mobility, which is by deﬁni on 0. As an example, say that currently mobility is 50% lower than baseline, or -50%, perhaps due to the introduc on of social-distancing NPIs. Then, a 20% increase of mobility from its current level is −50% ∗ (1 − 20%) = −40%. Similarly, if mobility in residences increased by 10% following a stay-at-home order, our 20% scenario reduces this to an 8% increase over baseline. This assumes that

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Table 1: Posterior model es mates of percentage of total popula on infected as of 25 May 2020.

State
Alabama Alaska Arizona Arkansas California Colorado Connec cut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachuse s Michigan Minnesota Mississippi Missouri

% of total popula on infected (mean [95%
credible interval]) 2.0% [1.3%-3.1%] 0.1% [0.0%-0.5%] 2.0% [1.3%-3.3%] 0.6% [0.4%-1.1%] 1.6% [1.1%-2.4%] 3.7% [2.7%-5.4%] 13.4% [10.0%-18.3%] 5.1% [3.4%-8.0%] 11.6% [8.4%-16.2%] 1.4% [0.9%-2.1%] 3.2% [2.2%-4.6%] 0.1% [0.0%-0.3%] 0.7% [0.4%-1.1%] 6.2% [4.3%-9.3%] 4.4% [3.2%-6.5%] 3.1% [1.9%-5.3%] 1.0% [0.6%-1.4%] 1.3% [0.9%-2.0%] 7.8% [5.9%-10.4%] 0.8% [0.4%-1.3%] 5.9% [4.2%-8.5%] 12.2% [9.0%-16.4%] 6.3% [4.7%-8.3%] 2.9% [1.9%-4.7%] 4.3% [2.7%-6.9%] 1.7% [1.1%-2.5%]

State
Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota
Ohio Oklahoma
Oregon Pennsylvania Rhode Island South Carolina South Dakota
Tennessee Texas Utah
Vermont Virginia Washington West Virginia Wisconsin Wyoming Na onal

% of total popula on infected (mean [95%
credible interval]) 0.2% [0.0%-0.3%] 1.4% [0.8%-2.5%] 2.1% [1.4%-3.1%] 3.1% [1.7%-5.8%] 15.5% [11.8%-20.3%] 2.8% [1.7%-4.5%] 16.6% [12.9%-21.4%] 1.2% [0.8%-2.0%] 1.5% [0.8%-3.0%] 3.0% [1.9%-5.0%] 1.1% [0.8%-1.6%] 0.4% [0.3%-0.7%] 5.4% [3.8%-7.9%] 9.8% [6.4%-16.3%] 1.3% [0.9%-1.9%] 1.0% [0.5%-1.7%] 1.0% [0.6%-1.6%] 1.1% [0.7%-1.7%] 0.9% [0.5%-1.6%] 0.8% [0.5%-1.3%] 2.5% [1.7%-3.8%] 2.0% [1.4%-2.7%] 0.6% [0.3%-1.0%] 1.4% [0.9%-2.2%] 0.6% [0.1%-2.0%] 4.1% [3.7%-4.5%]

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Number of people

Pacific

Great Plains

Northeast Corridor

200,000 150,000 100,000
50,000

90,000 60,000 30,000

2,000,000 1,500,000 1,000,000
500,000

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

Mountain

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

Great Lakes

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

Southern Appalachia

150,000 100,000
50,000

600,000 400,000 200,000

100,000 50,000

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

TOLA

150,000

100,000

50,000

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

South Atlantic

400,000

300,000

200,000

100,000

0

10

Fe2b4

Feb9

Ma2r3

Mar6

Ap2r0

Apr 4

Ma1y8

May

# new infections [95% CI]

# new infections [50% CI]

# current infections [95% CI]

# current infections [50% CI]

Figure 7: Es mates for the eﬀec ve number of infec ous individuals on a day in purple (light purple, 95% CI, dark purple 50% CI) and for newly infected people per day in blue (light blue, 95% CI, dark blue: 50% CI).

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Table 2: Posterior model es mates of the number of currently infec ous individuals as of 25 May 2020.

State
Alabama Alaska Arizona Arkansas California Colorado Connec cut Delaware District of Columbia Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachuse s Michigan Minnesota Mississippi Missouri

Number of infec ous individuals (mean [95%
credible interval]) 13,000 [2,000-35,000]
0 [0-2,000] 22,000 [5,000-60,000]
2,000 [0-8,000] 65,000 [11,000-190,000]
14,000 [2,000-48,000] 31,000 [6,000-86,000]
5,000 [0-16,000] 6,000 [1,000-16,000] 32,000 [7,000-87,000] 38,000 [10,000-95,000]
0 [0-1,000] 1,000 [0-4,000] 87,000 [17,000-243,000] 24,000 [4,000-74,000] 20,000 [5,000-50,000] 1,000 [0-5,000] 5,000 [0-17,000] 17,000 [3,000-47,000] 1,000 [0-4,000] 31,000 [6,000-87,000] 44,000 [7,000-129,000] 27,000 [4,000-79,000] 24,000 [5,000-64,000] 21,000 [5,000-54,000] 10,000 [2,000-29,000]

State
Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota
Ohio Oklahoma
Oregon Pennsylvania Rhode Island South Carolina South Dakota
Tennessee Texas Utah
Vermont Virginia Washington West Virginia Wisconsin Wyoming Na onal

Number of infec ous individuals (mean [95%
credible interval]) 0 [0-1,000]
4,000 [0-13,000] 6,000 [1,000-17,000] 8,000 [1,000-24,000] 49,000 [9,000-145,000] 9,000 [2,000-24,000] 68,000 [10,000-210,000] 14,000 [2,000-42,000]
2,000 [0-8,000] 57,000 [11,000-151,000]
3,000 [0-9,000] 1,000 [0-3,000] 59,000 [9,000-182,000] 16,000 [3,000-46,000] 7,000 [1,000-19,000] 1,000 [0-4,000] 11,000 [2,000-30,000] 40,000 [8,000-112,000] 5,000 [0-15,000]
0 [0-1,000] 29,000 [8,000-71,000] 7,000 [1,000-24,000]
1,000 [0-4,000] 11,000 [2,000-30,000]
1,000 [0-5,000] 949000 [189000 - 2691000]

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Washington

New York

Daily number of deaths

Massachusetts

Constant mobility

Increased mobility 20%

Increased mobility 40%

1,000

500

0

2,000 1,500 1,000
500 0
500 400 300 200 100
0 5,000 4,000 3,000 2,000 1,000
0 8,000

6,000

4,000

2,000

0

24

Feb 9

Ma2r3

Mar

6

Apr20

Apr 4

Ma1y8

May

1

Jun15

Jun29

Jun13

Jul27

Jul 24

Feb 9

Ma2r3

Mar

6

Apr20

Apr 4

Ma1y8

May

1

Jun15

Jun29

Jun13

Jul27

Jul 24

Feb 9

Ma2r3

Mar

6

Apr20

Apr 4

Ma1y8

May

1

Jun15

Jun29

Jun13

Jul27

Jul

Florida

California

Figure 8: State-level scenario es mates of deaths for Washington, New York, Massachuse s, Florida and California. The ribbon shows the 95% credible intervals (CIs) for each scenario. The ﬁrst column of plots show the results of scenario (a) where mobility is kept constant, the middle column shows results for scenario (b) where there is a 20% return to baseline mobility, and the right column shows scenario (c) where there is a 40% return to baseline mobility.

people have begun to resume pre-stay-at-home behaviour, but have not yet returned to baseline mobility. We hold this 20% return to baseline constant for the dura on of the 8-week scenario.
We present three scenarios (a) constant mobility (mobility remains at current levels for 8 weeks), (b) 20% return to prestay-at-home mobility from current levels and (c) 40% return to pre-stay-at-home mobility from current levels. We jus fy the selec on of these scenarios by examining how mobility has changed in states that have already begun to relax social distancing guidelines. For example, Colorado’s stay-at-home order expired on the 26th of April, and ac vity level reported by the Colorado Department of Public Health has recovered approximately 30% of the decrease observed following ini al implementa on of NPIs [6]. Figure 8 shows the es mated number of deaths for each scenario in the ﬁve states discussed above: Washington, New York, Massachuse s, Florida, and California. Results for all the states modelled are included in Appendix F. These es mates are certainly not forecasts and are based on mul ple assump ons, but they illustrate the poten al consequences of increasing mobility across the general popula on: in almost all cases, a er 8 weeks, a 40% return to baseline leads to an epidemic larger than the current wave.

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3 Conclusions

In this report we use a Bayesian semi-mechanis c model to inves gate the impact of these NPIs via changes in mobility. Our model uses mobility to predict the rate of transmission, neglec ng the poten al eﬀect of addi onal behavioural changes or interven ons such as tes ng and tracing. While mobility will explain a large amount of the variance in Rt, there is likely to be substan al residual varia on which will be geographically heterogeneous. We a empt to account for this residual varia on through a second order, weekly, autoregressive process. This stochas c process is able to pick up varia on drive by the data but is unable to determine associa ons or causal mechanisms. Figure 13 shows the residual varia on captured by the autoregressive process, and given these lines are ﬂat for the majority of states, we can conclude that much of the varia on we see in the observed death data can be a ributed to mobility. However, there are states, such as New York, where this residual eﬀect is large which suggests that addi onal factors have contributed to the reduc on in Rt. We hypothesise these could be behavioural changes but tes ng this hypothesis will require addi onal data.
We ﬁnd that the star ng reproduc on number is associated with popula on density and the chronological date of epidemic onset. These two rela onships suggest two dimensions which may inﬂuence the star ng reproduc on number and underscore the variability between states. We are cau ous to draw any causal rela onships from these associa ons; our results highlight that more addi onal studies of these factors are need at ﬁner spa al scales.
We ﬁnd that the posterior mean of the current reproduc on is above 1 in 0 states, with 95% conﬁdence, and above 1 in 26 states with 50% conﬁdence. These current reproduc on numbers suggest that in many states the US epidemic is not under control and cau on must be taken in loosening current interven ons without addi onal measures in place. The high reproduc on numbers are geographically clustered in the southern US and Great Plains region, while lower reproduc on numbers are observed in areas that have suﬀered high COVID-19 mortality (such as the Northeast Corridor). We simulate forwards in me a par al return of mobility back to pre-COVID levels, while keeping all else constant, and ﬁnd substan al resurgence is expected. In the majority of states, the deaths expected over a two-month period would exceed current levels by more than two-fold. This increase in mobility is modest and held constant for 8 weeks. However, these results must be heavily caveated: our results do not account for addi onal interven ons that may be introduced such as mass tes ng, contact tracing and changing work place/transit prac ces. Our results also do not account for behavioural changes that may occur such as increased mask wearing or changes in age speciﬁc movement. Therefore, our scenarios are pessimis c in nature and should be interpreted as such. Given these caveats, we conjecture at the present me that, in the absence of addi onal interven ons (such as mass tes ng), addi onal behavioural modiﬁca ons are unlikely to substan ally reduce Rt in of their own.
We es mate the number of individuals that have been infected by SARS-CoV2 to date. Our a ack rates are sensi ve to the assumed values of infec on fatality rate (IFR). We account for each individual state’s age structure, and further adjust for contact mixing pa erns [19]. To ensure assump ons about IFR do not have undue inﬂuence on our conclusions, we incorporate prior noise in the es mate, and perform a sensi vity analysis using diﬀerent contact matrices. Also, our a ack rates for New York are in line with those from recent serological studies [1]. We show that while reduc ons in the daily infec ons con nue, the reservoir of infec ous individuals remains large. This reservoir also implies that interven ons should remain in place longer than the daily case count implies, as trends in the number of infec ous individuals lags behind. The magnitude of diﬀerence between newly infected and currently infected individuals suggest that mass tes ng

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and isola on could be an eﬀec ve interven on.
Our results suggest that while the US has substan ally reduced its reproduc on numbers in all states, there is li le evidence that the epidemic is under control in the majority of states. Without changes in behaviour that result in reduced transmission, or interven ons such as increased tes ng that limit transmission, new infec ons of COVID-19 are likely to persist, and, in the majority of states, grow.

4 Data

Our model uses daily real- me state-level aggregated data published by New York Times (NYT) [20] for New York State and John Hopkins University (JHU) [3] for the remaining states. There is no single source of consistent and reliable data for all 50 states. We acknowledge that data issues such as under repor ng and me lags can inﬂuence our results. In previous reports [8, 9, 7] we have shown our modelling methodology is generally robust to these data issues due to pooling. However, we do recognise no modelling methodology will be able to surmount all data issues; therefore these results should be interpreted as the best es mates based on current data, and are subject to change with future data consolida on. JHU and NYT provide informa on on conﬁrmed cases and deaths a ributable to COVID-19, however again, the case data are highly unrepresenta ve of the incidence of infec ons due to under-repor ng and systema c and statespeciﬁc changes in tes ng. We, therefore, use only deaths a ributable to COVID-19 in our model. While the observed deaths s ll have some degree of unreliability, again due to changes in repor ng and tes ng, we believe the data are of suﬃcient ﬁdelity to model. For age speciﬁc popula on counts we use data from the U.S. Census Bureau in 2018 [21]. The
ming of social distancing measures was collated by the University of Washington [11].
We use Google’s COVID-19 Community Mobility Report [5] 2 which provides data on movement in the USA by states and highlights the percent change in visits to:

• Grocery & pharmacy: Mobility trends for places like grocery markets, food warehouses, farmers markets, speciality food shops, drug stores, and pharmacies.
• Parks: Mobility trends for places like local parks, na onal parks, public beaches, marinas, dog parks, plazas, and public gardens.
• Transit sta ons: Mobility trends for places like public transport hubs such as subway, bus, and train sta ons. • Retail & recrea on: Mobility trends for places like restaurants, cafes, shopping centres, theme parks, museums,
libraries, and movie theatres. • Residen al:Mobility trends for places of residence. • Workplaces: Mobility trends for places of work.

The mobility data show length of stay at diﬀerent places compared to a baseline. It is therefore rela ve, i.e. mobility of -20% means that, compared to normal circumstances individuals are engaging in a given ac vity 20% less.
2We use mobility data from the report released on 23rd May, which contains data un l 16th May 2020. For dates a er 16th May 2020, we impute the Google mobility data using a supervised machine learning approach with random forests, trained with the visitdata.org Foursquare data [22] as predictors and Google data as labels.

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5 Methods
We introduced a new Bayesian framework for es ma ng the transmission intensity and a ack rate (percentage of the popula on that has been infected) of COVID-19 from the reported number of deaths in a previous report [7]. This framework uses the me-varying reproduc on number Rt to inform a latent func on for infec ons, and then these infec ons, together with probabilis c lags, are calibrated against observed deaths. Observed deaths, while s ll suscep ble to under repor ng and delays, are more reliable than the reported number of conﬁrmed cases, although the early focus of most surveillance systems on cases with reported travel histories to China may have missed some early deaths. Changes in tes ng strategies during the epidemic mean that the severity of conﬁrmed cases as well as the repor ng probabili es changed in me and may thus have introduced bias in the data.
In this report, we adapt our original Bayesian semi-mechanis c model of the infec on cycle to the states in the USA. We infer plausible upper and lower bounds (Bayesian credible intervals) of the total popula ons infected (a ack rates) and the reproduc on number over me (Rt). In our framework we parametrize Rt as a func on of Google mobility data. We ﬁt the model jointly to COVID-19 data from all regions to assess whether there is evidence that changes in mobility have so far been successful at reducing Rt below 1. Our model is a par al pooling model, where the eﬀect of mobility is shared, but region- and state-speciﬁc modiﬁers can capture diﬀerences and idiosyncrasies among the regions.
We note that future direc ons should focus on embedding mobility in realis c contact mechanisms to establish a closer rela onship to transmission.

5.1 Model speciﬁcs

We observe daily deaths Dt,m for days t ∈ {1, . . . , n} and states m ∈ {1, . . . , M }. These daily deaths are modelled using

a posi ve real-valued func on dt,m = E[Dt,m] that represents the expected number of deaths a ributed to COVID-19.

The daily deaths Dt,m are assumed to follow a nega

ve binomial distribu

on

with

mean

dt,m

and

variance

dt,m

+

d2t,m φ

,

where ψ follows a posi ve half normal distribu on, i.e.

Dt,m ∼ Nega ve Binomial

dt,m, dt,m

+

d2t,m ψ

,

ψ ∼ N +(0, 5).

Here, N (μ, σ) denotes a normal distribu on with mean μ and standard devia on σ. We say that X follows a posi ve half normal distribu on N +(0, σ) if X ∼ |Y |, where Y ∼ N (0, σ).
To mechanis cally link our func on for deaths to our latent func on for infected cases, we use a previously es mated COVID-19 infec on fatality ra o (IFR, probability of death given infec on) together with a distribu on of mes from infec on to death π. Details of this calcula on can be found in [23, 24]. From the above, every region has a speciﬁc mean infec on fatality ra o ifrm (see Appendix G). To incorporate the uncertainty inherent in this es mate we allow the ifrm for every state to have addi onal noise around the mean. Speciﬁcally we assume
ifr∗m ∼ ifrm ·N (1, 0.1).

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We believe a large-scale contact survey similar to polymod [19] has not been collated for the USA, so we assume the contact pa erns are similar to those in the UK. We conducted a sensi vity analysis, shown in Appendix G, and found that the IFR calculated using the contact matrices of other European countries lay within the posterior of ifr∗m.
Using es mated epidemiological informa on from previous studies [23, 24], we assume the distribu on of mes from infec on to death π (infec on-to-death) to be
π ∼ Gamma(5.1, 0.86) + Gamma(17.8, 0.45).

The expected number of deaths dt,m, on a given day t, for state m is given by the following discrete sum:

t−1

dt,m = ifr∗m

cτ,mπt−τ ,

τ =0

where cτ,m is the number of new infec ons on day τ in state m and where π is discre zed via πs =

s+0.5 s−0.5

π(τ )dτ

for

s = 2, 3, ..., and π1 =

1.5 0

π(τ

)dτ

,

where

π(τ

)

is

the

density

of

π.

The true number of infected individuals, c, is modelled using a discrete renewal process. We specify a genera on distribu on g with density g(τ ) as:
g ∼ Gamma(6.5, 0.62).

Given the genera on distribu on, the number of infec ons ct,m on a given day t, and state m, is given by the following

discrete convolu on func on:

t−1

ct,m = St,mRt,m cτ,mgt−τ ,

(1)

τ =0

St,m = 1 −

t−1 i=0

ci,m

Nm

where, similar to the probability of death func on, the genera on distribu on is discre zed by gs =

s+0.5 s−0.5

g(τ )dτ

for

s = 2, 3, ..., and g1 =

1.5 0

g(τ

)dτ

.

The popula

on of state m is denoted by Nm .

We include the adjustment factor

St,m to account for the number of suscep ble individuals le in the popula on.

We parametrise Rt,m as a linear func on of the rela ve change in me spent (from a baseline)

3

Rt,m = R0,m · f (−( Xt,m,kαk) − Yt,mαrre(gmio)n − Zt,mαm state − m,wm(t)),

(2)

k=1

where f (x) = 2 exp(x)/(1 + exp(x)) is twice the inverse logit func on. Xt,m,k are covariates that have the same eﬀect

for all states, Yt,m is a covariate that also has a region-speciﬁc eﬀect, r(m) ∈ {1, . . . , R} is the region a state is in (see

Figure 1), Zt,m is a covariate that has a state-speciﬁc eﬀect and m,wm(t) is a weekly AR(2) process, centred around 0,

that captures varia on between states that is not explained by the covariates.

The prior distribu on for R0,m[25] was chosen to be R0,m ∼ N (3.28, κ) with κ ∼ N +(0, 0.5),
where κ is the same among all states.

In the analysis of this paper we chose the following covariates: Xt,m,1 = Mta,vmerage, Xt,m,2 = Mtt,rmansit, Xt,m,3 = Mtr,emsiden al, Yt,m = Mta,vmerage, and Zt,m = Mtt,rmansit, where the mobility variables are from [5] and deﬁned as follows (all are encoded so that 0 is the baseline and 1 is a full reduc on of the mobility in this dimension):

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• Mta,vmerage is an average of retail and recrea on, groceries and pharmacies, and workplaces. An average is taken as these dimensions are strongly collinear.
• Mtt,rmansit is encoding mobility for public transport hubs. For states where less than 20% of the working popula on aged 16 and over uses public transporta on, we set Mtt,rmansit = 0, i.e. this mobility has no eﬀect on transmission. For states in which more than 20% of the working popula on commutes using public transporta on, Mtt,rmansit is the mobility on transit.
• Mtr,emsiden al are the mobility trends for places of residences.

The weekly, state-speciﬁc eﬀect is modelled as a weekly AR(2) process, centred around 0 with sta onary standard deviaon σw that, in every state, starts on the ﬁrst day of its seeding of infectons, i.e. 30 days before a total of 10 cumula ve
deaths have been observed in this state. The AR(2) process starts with 1,m ∼ N (0, σw∗ ),

w,m ∼ N (ρ1 w−1,m + ρ2 w−2,m, σw∗ ) for m = 2, 3, 4, . . .

(3)

with independent priors on ρ1 and ρ2 that are normal distribu ons condi oned to be in [0, 1]; the prior for ρ1 is a N (0.8, .05) distribu on condi oned to be in [0, 1] the prior for ρ2 is a N (0.1, .05) distribu on, condi oned to be in [0, 1]. The prior for σw, the standard devia on of the sta onary distribu on of w is chosen as σw ∼ N +(0, .2). The standard devia on of the weekly updates to achieve this standard devia on of the sta onary distribu on is σw∗ = σw 1 − ρ21 − ρ22 − 2ρ21ρ2/(1 − ρ2).

The conversion from days to weeks is encoded in wm(t). Every 7 days, wm is incremented, i.e. we setwm(t) = (t − tsmtart)/7 +1, where tsmtart is the ﬁrst day of seeding. Due to the lag between infec on and death, our es mates of Rt in the last two weeks before the end of our observa ons are (almost) not informed by corresponding death data. Therefore, we assume that the last two weeks have the same random weekly eﬀect as the week 3 weeks before the end of observa on.

The prior distribu on for the shared coeﬃcients were chosen to be

αk ∼ N (0, 0.5), k = 1, . . . , 3,

and the prior distribu on for the pooled coeﬃcients were chosen to be
αrregion ∼ N (0, γr), r = 1, . . . , R, with γr ∼ N +(0, 0.5), αm state ∼ N (0, γs), m = 1, . . . , M with γs ∼ N +(0, 0.5).

We assume that seeding of new infec ons begins 30 days before the day a er a state has cumula vely observed 10

deaths. From this date, we seed our model with 6 sequen al days of an equal number of infec ons: c1,m = · · · =

c6,m

∼

Exponen

al(

1 τ

),

where

τ

∼

Exponen

al(0.03).

These seed infec

ons are inferred in our Bayesian posterior

distribu on.

We es mated parameters jointly for all states in a single hierarchical model. Fi ng was done in the probabilis c programming language Stan[26] using an adap ve Hamiltonian Monte Carlo (HMC) sampler.

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6 Acknowledgements
We would like to thank Amazon AWS and Microso Azure for computa onal credits and we would like to thank the Stan development team for their ongoing assistance. This work was supported by Centre funding from the UK Medical Research Council under a concordat with the UK Department for Interna onal Development, the NIHR Health Protec on Research Unit in Modelling Methodology and Community Jameel.

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A Mobility regression analysis
In Figure 9 we regress NPIs against average mobility. We parameterise NPIs as piece-wise constant func ons that are zero when the interven on has not been implemented and one when it has. We evaluate the correla on between the predic ons from the linear model and the actual average mobility. We also lag the ming of interven ons and inves gate its impact on predicted correla on.

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Number of States Correlation

0.8 20

0.7 15

0.6 10

0.5 5

0.4

0

0.00 0.25 0.50 0.75 1.00
Correlation

−20

−10

0

10

20

Lag

Figure 9: Mobility regression analysis.

B Eﬀect sizes

Average mobility

Great Lakes

●

Great Plains

●

Mountain

●

Northeast Corridor

●

Pacific

●

South Atlantic

●

Southern Appalachia

●

TOLA

●

−50% −25% 0% 25% 50%
Relative % reduction in Rt

Figure 10: Regional average mobility covariate eﬀect size plots.

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Intercept

Great Lakes

●

Great Plains

●

Mountain

●

Northeast Corridor

●

Pacific

●

South Atlantic

●

Southern Appalachia

●

TOLA

●

0%

25%

50%

Relative % reduction in Rt

Figure 11: Regional intercept covariate eﬀect size plots.

Transit

California

●

District of Columbia

●

Illinos

●

Maryland

●

Massachusetts

●

New Jersey

●

New York

●

Washington

●

−25%

0%

25%

Relative % reduction in Rt

Figure 12: State-level covariate eﬀect size plots.

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C State-speciﬁc weekly eﬀects

Our model includes a state-speciﬁc weekly eﬀect w,m (see equa ons 2, 3) for each week w in the epidemic period for a state. As described in Sec on 5, We assign an autoregressive process with mean 0 as prior to this eﬀect. This weekly eﬀect is held constant for the 4 weeks up to the present week. Figure 13 shows the posterior of this eﬀect on the same scale as in Figure 2, that is, the percent reduc on in Rt with mobility variables held constant3. Values above 0 have the interpreta on that the state-speciﬁc weekly eﬀect lowers the reproduc on number Rt,m, i.e. transmission for week t and state m is lower than what is explained by the mobility covariates.

Effect

50% 0%
−50%

Alaska

50% 0%
−50%

Washington

50% 0%
−50%

Oregon

50% 0%
−50%

Nevada

50% 0%
−50%

California

50% 0%
−50%

Hawaii

Montana

North Dakota

South Dakota

Minnesota

Wisconsin

Idaho

Wyoming

Nebraska

Iowa

Illinois

Utah

Colorado

Kansas

Missouri

Tennessee

Arizona

New Mexico

Oklahoma

Arkansas

Mississippi

Texas
50% 0%
−50%

Louisiana

Vermont

New Hampshire

Maine

Michigan

50% 0%
−50%

New York

Pennsylvania

Connecticut

Massachusetts

New Jersey

Rhode Island

Indiana

Ohio

Virginia

District of Columbia

Delaware

Kentucky

West Virginia

North Carolina

Maryland

Alabama

Georgia

South Carolina

Florida

Figure 13: Percent reduc on in Rt due to the weekly, state-level autoregressive eﬀect a er the emergency decree.

3Draws from the posterior are transformed with 1 − f (− m,wm(t)), where f (x) = 2 exp(x)/(1 + exp(x)) is twice the inverse logit func on.

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D Model predic ons for all states

State-level es mates of infec ons, deaths and Rt. Le : daily number of deaths, brown bars are reported deaths, blue bands are predicted deaths, dark blue 50% credible interval (CI), light blue 95% CI. Middle: daily number of infec ons, brown bars are reported infec ons, blue bands are predicted infec ons, CIs are same as le . The number of daily infec-
ons es mated by our model drops immediately a er an interven on, as we assume that all infected people become immediately less infec ous through the interven on. A erwards, if the Rt is above 1, the number of infec ons will start growing again. Right: me-varying reproduc on number Rt dark green 50% CI, light green 95% CI. Icons are interven ons shown at the me they occurred.

Daily number of deaths

Daily number of deaths

Rt

Daily number of infections

Alaska
1.00 3
200 0.75
2
0.50 100 1
0.25

0.00 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Alabama

6,000

4

30

3 4,000 20
2

Rt

10

2,000 1

Daily number of infections

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May Arkansas
8.0

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

4

6.0

1,000

3

Rt

Daily number of infections

4.0

2

500

2.0

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Rt

Daily number of infections

Arizona 12,500 4
60 10,000
3
7,500 40
2 5,000

20

1

2,500

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Daily number of infections

California 150

40,000

4

30,000

100

3

Rt

20,000

2

50

10,000

1

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Colorado

8,000

4

100

6,000

3

Rt

Daily number of infections

4,000

2

50

2,000

1

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Connecticut

25,000

200

6

20,000

150 4
15,000

Rt

Daily number of infections

100 10,000 2

50

5,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

District of Columbia 20.0

3,000

Daily number of infections

15.0

4

Rt

2,000
10.0 2
1,000 5.0

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Delaware 16.0
4

12.0

2,000

3

Rt

Daily number of infections

8.0

2

1,000

4.0

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Florida 100

15,000

75

4

Daily number of infections

Rt

10,000 50
2

25

5,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Daily number of infections

Georgia

100

4

15,000

75

3

10,000

Rt

50

2

25

5,000

1

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

9 Mar

23 Mar

Hawaii

2.00 2.0
300
1.50 1.5

Rt

200

1.00

1.0

6 Apr

20 Apr

4 May

18 May

Daily number of infections

0.50

100

0.5

0.00 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0.0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Idaho

6.0

4

600

3 4.0
400
2

Rt

2.0

200

1

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Daily number of infections

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Illinois
200 6
40,000

150

30,000

4

Rt

Daily number of infections

100 20,000

2

50

10,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Indiana

12,500

150

10,000

4

Rt

Daily number of infections

100

7,500

5,000

2

50 2,500

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Iowa

4

7,500

20

3

Rt

5,000 2

10

2,500

1

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Daily number of infections

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Kansas

4

10.0

1,000 3

Rt

Daily number of infections

2

5.0

500

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Kentucky

20.0

3,000

4

Daily number of infections

15.0

3

2,000

Rt

10.0

2

1,000

5.0

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May
Louisiana

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Daily number of infections

15,000

100

4

Rt

10,000
2 50
5,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Maine

5.0

800

Daily number of infections

4.0

4

600

3.0

Rt

400

2.0

2

200 1.0

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Maryland 125

Daily number of infections

100

12,000

4

75 8,000

Rt

50

2

4,000 25

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Massachusetts

50,000

300

6

40,000

200

4 30,000

Rt

Daily number of infections

20,000

100

2

10,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Michigan 250
6 30,000 200
4 150
20,000

Rt

Daily number of infections

100 2
10,000
50

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Minnesota

12,500

Daily number of infections

30

10,000

4

7,500 20

Rt

5,000

2

10 2,500

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Mississippi

4 30
7,500 3

20

Rt

5,000

2

10

2,500

1

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Daily number of infections

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Missouri 60

5,000

4,000 4

40

3,000

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Rt

Daily number of infections

2,000

2

20

1,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

Montana 300
4.0 2.0

3.0

200

1.5

6 Apr

20 Apr

4 May

18 May

Rt

Daily number of infections

2.0

1.0

100

1.0

0.5

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0.0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Daily number of infections

Nebraska

16.0

2,500

4

2,000
12.0 3

1,500

Rt

8.0

2

1,000

4.0

1

500

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Daily number of infections

Nevada

4 3,000

20

3

Rt

2,000 2

10

1,000

1

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May New Hampshire

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Daily number of infections

20.0

5,000

4 4,000
15.0

Rt

3,000

10.0

2

2,000

5.0 1,000

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

New Jersey 500
6

400

60,000

Daily number of infections

300

4

40,000

Rt

200 2
20,000 100

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

New Mexico 16.0

4,000

12.0

4

3,000

Rt

Daily number of infections

8.0 2,000 2

4.0

1,000

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

New York 250,000 6

900

200,000

Daily number of infections

150,000

4

600

Rt

100,000 2
300 50,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0 0
9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

North Carolina 50

Daily number of infections

40

6,000

4

30 4,000

Rt

20

2

2,000 10

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

Daily number of infections

North Dakota 1,500
6.0 2.0

4.0

1,000

1.5

Rt

1.0

2.0

500

0.5

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0.0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Ohio 150

30,000

4
100 20,000

Rt

2

50

10,000

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Daily number of infections

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Oklahoma

20.0

2,000

4

Rt

Daily number of infections

15.0

1,500

3

10.0

1,000

2

5.0

500

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Oregon

12.0

800

4

9.0

600

3

Rt

6.0

400

2

Daily number of infections

3.0

200

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Rt

Daily number of infections

Pennsylvania
40,000 6
300 30,000
4 200
20,000

2

100

10,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Rhode Island

30

6

7,500

4

20

5,000

Rt

2

10

2,500

Daily number of infections

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

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Daily number of deaths

Daily number of deaths

Daily number of deaths

South Carolina 3,000
40 4

Daily number of infections

30

2,000

3

Rt

20

2

1,000

10

1

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

South Dakota

Rt

Daily number of infections

5.0 3
500
4.0 400 2
3.0 300

2.0

200

1

1.0

100

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Tennessee

16.0

6,000

4

Daily number of infections

12.0 3
4,000

Rt

8.0

2

2,000

4.0

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May
Texas

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Rt

Daily number of infections

60

20,000

4
15,000 40

10,000 2
20 5,000

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Utah

3,000

8.0

4

Daily number of infections

6.0

3

2,000

Rt

4.0

2

1,000

2.0

1

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Vermont

4.0

500

Daily number of infections

400

4

3.0

300

Rt

2.0

200

2

1.0 100

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

Daily number of deaths

DOI: ?iiTb,ff/QBXQ`;fRyXk88eRfdNkjR

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Cas2e8 M1a:2y 200-2c0v-00323-PLM-PJG ECF No. 44-1 filed 06/30/2Im0periPalaCgoleleIgDe .C1O2V3ID7-19 RPeaspgoense3T5eaomf 38

Daily number of deaths

Daily number of deaths

Daily number of deaths

Daily number of infections

Virginia 60

10,000

4

40

Rt

5,000

2

20

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr 4 May 18 May

Washington

Rt

Daily number of infections

6,000

4

40

3

30

4,000

2 20
2,000 1
10

0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

West Virginia

6.0

4

600

3 4.0
400 2

Rt

2.0

200

1

Daily number of infections

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Wisconsin

20.0

6,000

Rt

Daily number of infections

4 15.0
4,000
10.0 2
2,000 5.0

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

Wyoming

Rt

Daily number of infections

4.0 3
900 3.0
2 600 2.0

1

1.0

300

0.0 10 Feb 24 Feb 9 Mar 23 Mar 6 Apr 20 Apr 4 May 18 May

0

0

9 Mar 23 Mar

6 Apr 20 Apr

4 May 18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

9 Mar

23 Mar

6 Apr

20 Apr

4 May

18 May

Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%
Timing Started Eased
Interventions Emergency decree Restrict public events Business closure Restaurant closure School closure Stay at home mandate
Credible intervals 50% 95%

Daily number of deaths

Daily number of deaths

E Eﬀec ve number of infec ous individuals for all states
The eﬀec ve number of infec ous individuals, c∗, on a given day is calculated by weighing how infec ous a previously infected individual is on a given day. The fully infec ous average includes asympto c and symptoma c individuals. Es mates of the eﬀec ve number of infec ous individuals for all states can be found in Figure 14.

DOI: ?iiTb,ff/QBXQ`;fRyXk88eRfdNkjR

Page 34

Cas2e8 M1a:2y 200-2c0v-00323-PLM-PJG ECF No. 44-1 filed 06/30/2Im0periPalaCgoleleIgDe .C1O2V3ID8-19 RPeaspgoense3T6eaomf 38

Total number of infectious people

1,250 1,000
750 500 250
0

Alaska

1,500,000 1,000,000
500,000

New York

2,000
1,000
0 160,000 120,000
80,000 40,000

Vermont Connecticut

25,000 20,000 15,000 10,000
5,000 0

New Hampshire Massachusetts

4,000

Maine

3,000

2,000

1,000

0

24

Feb23

Mar20

Apr 18

May

200,000

100,000

40,000 30,000 20,000 10,000
0 5,000 4,000 3,000 2,000 1,000
0
15,000
10,000
5,000
0 200,000 150,000 100,000
50,000 0

Washington Oregon Nevada California

1,600 1,200
800 400

Montana

North Dakota 6,000 4,000 2,000

3,000 2,000 1,000

0
4,000 3,000 2,000 1,000

Idaho

0
5,000 4,000 3,000 2,000 1,000

Wyoming

0 10,000
5,000

0

0

Utah

Colorado

50,000

12,000

40,000

8,000 4,000

30,000 20,000 10,000

0
8,000 6,000 4,000 2,000

0 60,000 40,000

Arizona

0 25,000 20,000 15,000

New Mexico

0 10,000

20,000

10,000 5,000

5,000

0

24

Feb23

Mar20

Apr 18

May

0

0

24

Feb23

Mar20

Apr 18

May

120,000

90,000

60,000

South Dakota Nebraska Kansas Oklahoma Texas

60,000 40,000 20,000
0 50,000 40,000 30,000 20,000 10,000
0 30,000
20,000
10,000
0 8,000 6,000 4,000 2,000
0
90,000 60,000

Minnesota Iowa
Missouri Arkansas Louisiana

30,000
20,000
10,000
0 250,000 200,000 150,000 100,000
50,000 0
30,000
20,000
10,000

Wisconsin Illinois
Tennessee

200,000 150,000 100,000
50,000 0
80,000 60,000 40,000 20,000
0
15,000 10,000
5,000

Michigan Indiana Kentucky

160,000 120,000
80,000 40,000
0

Ohio West Virginia

3,000 2,000 1,000

0 Mississippi

50,000

40,000

30,000

20,000

10,000

0

24

Feb23

Mar20

Apr 18

May

0
30,000 20,000 10,000

Alabama

0 100,000
75,000 50,000 25,000

Georgia

0

24

Feb23

Mar20

Apr 18

May

0

24

Feb23

Mar20

Apr 18

May

0 200,000 150,000 100,000
50,000 0
60,000 40,000 20,000
0
40,000 30,000 20,000 10,000
0
15,000 10,000
5,000 0
75,000

Pennsylvania Virginia
North Carolina South Carolina
Florida

0 500,000

New Jersey

400,000

300,000

200,000

100,000

0 District of Columbia

20,000

15,000

10,000

5,000

0
40,000 30,000 20,000 10,000
0
15,000 10,000
5,000

Rhode Island Delaware

0 75,000

Maryland

0

24

Feb23

Mar20

Apr 18

May

50,000

25,000

0

24

Feb23

Mar20

Apr 18

May

50,000

30,000

30,000

25,000

2,000 1,500

Hawaii

0

24

Feb23

Mar20

Apr 18

May

0

24

Feb23

Mar20

Apr 18

May

0

24

Feb23

Mar20

Apr 18

May

1,000

500

0

24

Feb23

Mar20

Apr 18

May

Figure 14: Es mates for the eﬀec ve number of infec ous individuals over me. The light purple region shows the 95% credible intervals and the dark purple region shows the 50% credible intervals.

To be more precise, the eﬀec ve number of infec ous individuals of infec ous individuals, c∗, is calculated by ﬁrst rescal-

ing the genera

on distribu

on by its maximum, i.e. gτ∗

=

. gτ
maxt gt

Based on (1), the number of infec

ous individuals is

then calculated from the number of previously infected individuals, c, using the following:

t−1

c∗t,m =

cτ,mgt∗−τ ,

τ =0

where ct,m is the number of new infec ons on day t in state m. A plot of gτ∗ can be found in Figure 15.

infectiousness g*τ 0.0 0.2 0.4 0.6 0.8 1.0

●●
● ●
●

●

● ●

●

●

●

●

●

●

●

●

●

●

●

●

0

5

10

15

20

nubmer of days τ since infection

Figure 15: Infec ousness gτ∗ of an infected individual over me.

DOI: ?iiTb,ff/QBXQ`;fRyXk88eRfdNkjR

Page 35

Cas2e8 M1a:2y 200-2c0v-00323-PLM-PJG ECF No. 44-1 filed 06/30/2Im0periPalaCgoleleIgDe .C1O2V3ID9-19 RPeaspgoense3T7eaomf 38
F Scenario results for all states

We show here state level scenario plots of an increase of mobility 20% and 40% of current levels.

Daily number of deaths

AK
100 50 0
WA
1,000 500 0 OR 300 200 100 0 NV 600 400 200 0 CA
8,000 6,000 4,000 2,000
0
HI 12.5 10.0
7.5 5.0 2.5 0.0
1 M1arA1pMr a1yJu1n Jul

MT
30
20
10
0 ID
250 200 150 100
50 0 UT
500 400 300 200 100
0 AZ
1,500
1,000
500
0 1 M1arA1pMr a1yJu1n Jul

ND
150 100
50 0 WY
160 120
80 40
0 CO
750 500 250
0 NM
400 300 200 100
0 1 M1arA1pMr a1yJu1n Jul

SD
100
50
0 NE
400 300 200 100
0 KS
150 100
50 0 OK
300
200
100
0 TX
5,000 4,000 3,000 2,000 1,000
0 1 M1arA1pMr a1yJu1n Jul

MN
750 500 250
0 IA
600 400 200
0 MO
1,000 750 500 250 0 AR 400 300 200 100 0 LA 600
400
200
0 1 M1arA1pMr a1yJu1n Jul

WI 1,250 1,000
750 500 250
0
IL
1,500 1,000
500 0
TN 1,600 1,200
800 400
0
MS
500 400 300 200 100
0 1 M1arA1pMr a1yJu1n Jul

MI
1,500
1,000
500
0 IN
800 600 400 200
0 KY
800 600 400 200
0 AL
750 500 250
0 1 M1arA1pMr a1yJu1n Jul

OH
2,000 1,500 1,000
500 0 WV
200
100
0 GA
1,600 1,200
800 400
0 1 M1arA1pMr a1yJu1n Jul

NY
2,000 1,500 1,000
500 0 PA
2,000 1,500 1,000
500 0 VA
1,500
1,000
500
0 NC
1,200 800 400 0 SC
500 400 300 200 100
0 FL
5,000 4,000 3,000 2,000 1,000
0 1 M1arA1pMr a1yJu1n Jul

VT 40 30 20 10
0 CT
400 300 200 100
0 NJ
800 600 400 200
0 DC
60 40 20
0 MD
750 500 250
0 1 M1arA1pMr a1yJu1n Jul

NH 300
200
100
0 MA
500 400 300 200 100
0 RI
150 100
50 0 DE
150 100
50 0 1 M1arA1pMr a1yJu1n Jul

ME
200 150 100
50 0 1 M1arA1pMr a1yJu1n Jul

Scenarios

Increased mobility 40%

Increased mobility 20%

Constant mobility

Figure 16: State-level scenario es mates for deaths. The blue ribbon shows the 95% credible intervals (CIs) for scenario (a) where mobility is kept constant at current levels, the yellow ribbon shows the same CIs for scenario (b) where there is a 20% return to baseline mobility and scenario (c) where there is a 40% return to baseline.

G Sensi vity analysis to infec on fatality ra o

Geographic-speciﬁc contact surveys are important for calcula ng the weighted IFR values according to the methods in [23, 24]. There is no large-scale cross-genera onal contact survey, similar to the polymod survey [19], implemented in the USA. Therefore, it was important to understand if the model was robust to changes in the underlying contact survey. We calculated the IFRs using three diﬀerent contact matrices: UK, France and Netherlands. We believe that the USA is culturally closest to that UK out of those countries we had contact matrices for, but also considered France where we saw the greatest mixing of the elderly and the Netherlands which showed the average behaviour of the European studies used in [24]. We found that the IFR, calculated for each state using the three contact matrices, lay within the posterior of IFR in our model (Figure 17). We also noted that our results remained approximately constant when using the IFR calculated from the three diﬀerent contact matrices as the mean of the prior IFR in out model, see Sec on 5.
Since we are using the same contact matrix across all the states, the diﬀerences in IFR are due to the popula on demographics and not due to diﬀeren al contacts. The low IFR in Texas and Utah reﬂects the younger popula on there whereas the higher IFR in Florida and Maine is due to the older popula on. This is a limita on of our methods.

DOI: ?iiTb,ff/QBXQ`;fRyXk88eRfdNkjR

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Cas2e8 M1a:2y 200-2c0v-00323-PLM-PJG ECF No. 44-1 filed 06/30/2Im0periPalaCgoleleIgDe .C1O2V4ID0-19 RPeaspgoense3T8eaomf 38

State

Alabama Alaska Arizona
Arkansas California Colorado Connecticut Delaware District of Columbia
Florida Georgia
Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming

●

●●

●

● ●●

●

●

●●

●

●

●●

●

●

●●

●

●

●●

●

● ●●

●

●

●●

●

● ●●

●

●

●●

●

●●

●

●

●●

●

●

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●

●

●

●

●

●●

●

●

●

●

●

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●

●

●●

●

●

●●

●

●

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●

●

●

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●

●

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●

●

●●

●

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●

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●

●

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●

● ●●

●

●

●

●

● ●●

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●

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●

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●

●

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●

●

●●

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● ●●

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●

●●

●

●

●●

●

●

●●

●

●●

●

●

●●

●

0.006

0.008

0.010
ifr

● ●
● ●
0.012

● France ● Netherlands ● UK ● Posterior

Figure 17: Sensi vity analysis for IFR. The red, green and blue dots show the IFR values calculated according to [23, 24] using the French, Dutch and and UK contact matrices respec vely. The purple dot shows the mean of our posterior es mates for the IFR run using the UK contact matrix es mate and the purple error shows the 95% credible intervals of the distribu on.

DOI: ?iiTb,ff/QBXQ`;fRyXk88eRfdNkjR

Page 37

Case 1:20-cv-00323-PLM-PJG ECF No. 44-2 filed 06/30/20 PageID.1241 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT B

U.S. Hits Another Record for New Coronavirus Cases - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 44-2 filed 06/30/20 PageID.1242 Page 2 of 6

SUBSCRIBE SUBSCRIBE NOW NOWLogLog inin
The Coronavirus
Outbreak &#8250;

LIVE Latest Updates Maps and Cases How the Virus Won Reopenings by State

U.S. Hits Another Record for New Coronavirus Cases
More than 45,000 new cases in the United States were reported on Friday, the third consecutive day with a record total. India’s caseload surged past 500,000, as global infections approached 10 million.

Published June 26, 2020 Updated June 27, 2020
This briefing has ended. Click here for the latest updates.

2091

Here’s what you need to know:
The U.S. reports another record number of cases, as hard-hit states retreat from reopening. As Fauci pleads for more caution, the E.U. aims to bar U.S. travelers. Florida reports more than 8,900 new daily cases and bans drinking in bars. China says it has tamed an outbreak in Beijing, at least for now. California’s governor tells counties to consider pausing their reopenings, but doesn’t commit to rolling them back. Norway partially reopened some gyms as an experiment. Here’s what happened. Online learning in U.S. schools is here to stay for some students this fall.

https://www.nytimes.com/2020/06/26/world/coronavirus-live-updates.html?action=click&module=Spotlight&pgtype=Homepage#link-3ec77bd1[6/28/2020 9:13:53 PM]

U.S. Hits Another Record for New Coronavirus Cases - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 44-2 filed 06/30/20 PageID.1243 Page 3 of 6
Florida residents waited in their vehicles at a coronavirus testing site at Raymond James Stadium in Tampa on Friday. The state hit a daily high for new confirmed cases. Eve Edelheit for The New York Times
https://www.nytimes.com/2020/06/26/world/coronavirus-live-updates.html?action=click&module=Spotlight&pgtype=Homepage#link-3ec77bd1[6/28/2020 9:13:53 PM]

U.S. Hits Another Record for New Coronavirus Cases - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 44-2 filed 06/30/20 PageID.1244 Page 4 of 6
The U.S. reports another record number of cases, as hard-hit states retreat from reopening.
As the United States reached its third consecutive day with a record number of new infections, officials on Friday were urgently rethinking their strategies to head off new infections.
The U.S., which leads the world in total cases and deaths, reported more than 45,000 new infections on Friday, according to a Times database. Before this week, the country’s largest daily total was 36,738 on April 24.
Globally, countries reported more than 191,000 new infections — a singleday record as the total number of cases neared 10 million. India’s caseload surged past 500,000.
At least six U.S. states — Florida, Idaho, Kansas, Oregon, South Carolina and Utah — reported their highest one-day case totals, and Dr. Anthony S. Fauci, the country’s top infectious diseases expert, also warned that outbreaks in the South and West could engulf the country.
Thanks for reading The Times. Subscribe to The Times
Dr. Fauci said in a brief interview on Friday that officials were having “intense discussions” about a possible shift to “pool testing,” in which samples from many people are tested at once in an effort to quickly find and isolate the infected.
European Union officials said the bloc was ready to bar most travelers from the U.S. and other countries considered too risky because they have not controlled the outbreak.
And for the first time, some U.S. governors were backtracking on reopening their states, issuing new restrictions for parts of the economy that had resumed.
Listen to ‘The Daily’: The Dilemma in Texas
The governor was insistent about reopening. And then the cases soared.
https://www.nytimes.com/2020/06/26/world/coronavirus-live-updates.html?action=click&module=Spotlight&pgtype=Homepage#link-3ec77bd1[6/28/2020 9:13:53 PM]

U.S. Hits Another Record for New Coronavirus Cases - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 44-2 filed 06/30/20 PageID.1245 Page 5 of 6
In Texas and Florida on Friday, leaders abruptly set new restriction/sLႋoHnQ bars, a reversal that appeared unthinkable just days ago. Near the end of the day, Mayor Carlos Giménez of Florida’s Miami-Dade County said he would sign an emergency order closing down beaches from July 3 to July 7, citing the surge of new cases and fears about mass gatherings during the July Fourth holiday weekend.
In California, which had one of the earliest stay-at-home orders in the nation, Gov. Gavin Newsom announced new restrictions on Imperial County, which has the state’s highest rate of infection.
“This disease does not take a summer vacation,” he said.
The decisions in Texas and Florida represented the strongest acknowledgment yet that reopening had not gone as planned. Only days ago their Republican governors were adamantly resisting calls to close back down.
“If I could go back and redo anything, it probably would have been to slow down the opening of bars,” Gov. Greg Abbott of Texas said in an interview with KVIA-TV in El Paso on Friday evening.
But even leaders outside the new hot zones in the South and West expressed mounting anxiety.
“This is a very dangerous time,” Gov. Mike DeWine of Ohio said in an interview on Friday, as cases were trending steadily upward in his state after appearing to be under control. “I think what is happening in Texas and Florida and several other states should be a warning to everyone.”
Yet a few hours earlier in Washington, at the White House coronavirus task force’s first public briefing in almost two months, Vice President Mike Pence sought to take a victory lap for the Trump administration’s pandemic response.
“We slowed the spread, we flattened the curve, we saved lives,” Mr. Pence
https://www.nytimes.com/2020/06/26/world/coronavirus-live-updates.html?action=click&module=Spotlight&pgtype=Homepage#link-3ec77bd1[6/28/2020 9:13:53 PM]

U.S. Hits Another Record for New Coronavirus Cases - The New York Times
Case 1:20-cv-00323-PLM-PJG ECF No. 44-2 filed 06/30/20 PageID.1246 Page 6 of 6 said, making a claim that was true in earlier months but has become outdated after the seven-day average of new cases climbed in recent weeks. Unlike the health officials around him, Mr. Pence did not wear a mask.
As Fauci pleads for more caution, the E.U. aims to bar U.S. travelers.
https://www.nytimes.com/2020/06/26/world/coronavirus-live-updates.html?action=click&module=Spotlight&pgtype=Homepage#link-3ec77bd1[6/28/2020 9:13:53 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 44-3 filed 06/30/20 PageID.1247 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT C

Case 1:20-cv-00323-PLM-PJG ECF No. 44-3 filed 06/30/20 PageID.1248 Page 2 of 3

12 states have set record highs in new COVID-19 cases since Friday - ABC News

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12 states have set record highs in new COVID-19 cases since Friday
Hospitalizations are increasing in 17 states, according to an ABC News analysis.
By Meredith Deliso and Arielle Mitropoulos June 21, 2020, 8:06 PM • 6 min read

3:30
New evidence suggests America’s fight with COVID-19 is far from over Eleven states are reporting record numbers of new cases, while hospitalizations are up in seventeen states.
A dozen states have seen record highs of new COVID-19 cases since Friday, an ABC News analysis has found.
The states that saw the increase were Florida, Texas, Utah, South Carolina, Nevada, Georgia, Missouri, Montana, Arizona, California, Tennessee and Oklahoma, according to the analysis of state-released data compiled by the COVID Tracking Project.

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Top Stories 12 states have set record highs in new COVID-19 cases since Friday
Jun 21, 8:06 PM TRANSCRIPT: John Bolton interview with ABC News' Martha Raddatz Jun 21, 9:03 PM History will remember Trump as 'an aberration,' John Bolton says Jun 22, 10:01 AM Tennessee's largest county could return to Phase 1 due to spike in COVID-19 cases Jun 22, 7:11 AM Bolton says he hopes Trump is 1-term president, warns US imperiled by his reelection Jun 21, 7:50 PM
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People gather on the beach in Miami, June 16, 2020. Eva Marie Uzcategui/AFP via Getty Images
Florida's three-day streak of record-breaking numbers ended on Saturday, with 4,049 new cases of COVID-19.
MORE: Florida sets new record of COVID-19 cases with over 4,000 more On Saturday, Gov. Ron DeSantis attributed the rise in the state's positive cases to an increase in testing. During a news briefing, he said that the state was in a "much better position today than we were at the beginning of April," pointing to an increase in hospital beds and a decreasing mortality rate.
MORE: Mask wearing sporadically enforced among nation's major police departments: Analysis Amid the rising numbers, more Florida counties are now requiring facial coverings. Orange County, home to Orlando, started a new order requiring the use of masks in public on Saturday. And in Monroe County, which includes the Florida Keys, masks are now required in restaurants and other businesses. Palm Beach County is set to vote on the use of masks on Tuesday. South Carolina, Nevada and Utah saw their second day in a row of record daily new cases on Saturday, and Missouri had its second straight day of record cases on Sunday.
https://abcnews.go.com/US/12-states-set-record-highs-covid-19-cases/story?id=71374520[6/22/2020 2:34:52 PM]

12 states have set record highs in new COVID-19 cases since Friday - ABC News

Case 1:20-cv-00323-PLM-PJG ECF No. 44-3 filed 06/30/20 PageID.1249 Page 3 of 3

Consumers wait in line at a Starbucks location as they return to retail shopping at the Arrowhead Towne Center, June 20, 2020, in Glendale, Arizona. Christian Petersen/Getty Images

On Sunday, the same day Oklahoma set a record number of daily new COVID19 cases, the state health department was urging anyone who had attended "large-scale gatherings in recent weeks" to get tested for COVID-19. Tulsa notably hosted thousands of supporters of President Donald Trump at an indoor rally on Saturday.
"As expected, Oklahoma's urban areas as well as a few communities around the state are experiencing a rise in active COVID-19 cases and hospitalizations due to increased social activity and mobility," Interim Commissioner Dr. Lance Frye said in a statement. "[We] need Oklahomans to get tested, even those without symptoms, so we can identify active cases and work together to minimize community spread."
The ABC News analysis also found that hospitalizations for COVID-19 are increasing in 17 states across the country. Those states are Alaska, Alabama, Arkansas, Arizona, Florida, Georgia, Hawaii, Mississippi, Montana, North Carolina, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas and Utah.
MORE: How to form a COVID-19 social bubble
Acting Secretary of Homeland Security Chad Wolf said on CBS's "Face the Nation" Sunday that the White House task force is "on top of all of these outbreaks," including states like Arizona, Texas and Florida that are "having those upticks."
He also told NBC's "Meet the Press" on Sunday that the White House coronavirus task force has been working with governors to make sure the United States "can open up this economy in a safe and reasonable way."
ABC News Joshua Hoyos, Josh Margolin and Jason Volack contributed to this report.
What to know about the coronavirus: How it started and how to protect yourself: Coronavirus explained What to do if you have symptoms: Coronavirus symptoms Tracking the spread in the U.S. and worldwide: Coronavirus map
Tune into ABC at 1 p.m. ET and ABC News Live at 4 p.m. ET every weekday for special coverage of the novel coronavirus with the full ABC News team, including the latest news, context and analysis.

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Case 1:20-cv-00323-PLM-PJG ECF No. 44-4 filed 06/30/20 PageID.1250 Page 1 of 7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT D

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Case 1:20-cv-00323-PLM-PJG ECF No. 44-4 filed 06/30/20 PageID.1252 Page 3 of 7

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https://www.detroitnews.com/story/news/local/michigan/2020/06/17/covid-19-modeling-site-michigan-on-track-contain-virus/3205580001/[6/22/2020 2:36:09 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 44-4 filed 06/30/20 PageID.1253 Page 4 of 7

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https://www.detroitnews.com/story/news/local/michigan/2020/06/17/covid-19-modeling-site-michigan-on-track-contain-virus/3205580001/[6/22/2020 2:36:09 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 44-4 filed 06/30/20 PageID.1254 Page 5 of 7

COVID-19 modeling site: Michigan 'on track to contain' virus
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https://www.detroitnews.com/story/news/local/michigan/2020/06/17/covid-19-modeling-site-michigan-on-track-contain-virus/3205580001/[6/22/2020 2:36:09 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 44-4 filed 06/30/20 PageID.1255 Page 6 of 7

COVID-19 modeling site: Michigan 'on track to contain' virus
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https://www.detroitnews.com/story/news/local/michigan/2020/06/17/covid-19-modeling-site-michigan-on-track-contain-virus/3205580001/[6/22/2020 2:36:09 PM]

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Case 1:20-cv-00323-PLM-PJG ECF No. 44-4 filed 06/30/20 PageID.1256 Page 7 of 7

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https://www.detroitnews.com/story/news/local/michigan/2020/06/17/covid-19-modeling-site-michigan-on-track-contain-virus/3205580001/[6/22/2020 2:36:09 PM]

Case 1:20-cv-00323-PLM-PJG ECF No. 44-5 filed 06/30/20 PageID.1257 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT E

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT F

Case 1:20-cv-00323-PLM-PJG ECF No. 44-6 filed 06/30/20 PageID.1261 Page 2 of 6

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

STEVE MARTINKO, et al.,

Plaintiffs,

Civil Action No. 20-CV-10931

vs.

HON. BERNARD A. FRIEDMAN

GRETCHEN WHITMER,

Defendant. _______________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

This matter is presently before the Court on defendant’s motion to dismiss [docket

entry 13]. Plaintiffs have filed a response in opposition. Pursuant to E.D. Mich. LR 7.1(f)(2),

the Court shall decide this motion without a hearing. As the Court is granting defendant’s

motion, there is no need for defendant to file a reply.

Plaintiffs are Steve Martinko; Martinko’s landscaping company, Contender’s Tree

and Lawn Specialists, Inc.; and Michael and Wendy Lackomar.1 They are suing Gretchen

Whitmer, the current governor of the State of Michigan, regarding two temporary, emergency

Executive Orders (“EO”) she issued in March and April 2020 in response to the coronavirus

pandemic that has affected, and continues to affect, the state, the country, and the entire world.

Specifically, plaintiffs complain that EO 2020-21 and EO 2020-42, which imposed certain travel

and business restrictions with widespread application throughout the State of Michigan,

deprived them of business income and interfered with their right, as to Martinko, to travel

1 A fifth plaintiff, Jerry Frost, has voluntarily dismissed the complaint. He alleged that the executive orders at issue in this case violated his rights because they prevented him from traveling to visit his girlfriend.

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between his residence and his business, and, as to the Lackomars, to travel between their
primary residence and their cottage.
In Count I, plaintiffs claim that EO 2020-21 and EO 2020-42 constituted a
regulatory “taking” of their property without compensation in violation of their Fifth
Amendment rights. In Counts II and III, they couch the same allegations as substantive due
process claims, in violation of their Fourteenth Amendment rights. Plaintiffs seek the following
relief:
a. Issuing a Temporary Restraining Order enjoining Defendant from enforcing Executive Orders 2020-21 and 2020-42 as a violation of Plaintiffs’ fundamental rights under the First, Fifth and Fourteenth Amendments;
b. A declaratory judgment that issuance and enforcement of Executive Orders 2020-21 and 2020-42 [i]s an unconstitutional violation of Plaintiffs[’] substantive due process rights under the First and Fourteenth Amendment[s];
c. Compensatory damages adequate to justly compensate Plaintiffs for the regulatory taking of their Physical Location and Tangible Property;
d. Compensatory damages adequate to satisfy Plaintiffs in the amount owed for Defendants’ [sic] violations of the Due Process Clause of the Fourteenth Amendment;
e. Punitive damages;
f. A declaratory judgment that issuance and enforcement of Executive Orders 2020-21 and 2020-42 [i]s an unconstitutional taking without just compensation, under the Fifth and Fourteenth Amendment[s];
g. A declaratory judgment that issuance and enforcement of Executive Orders 2020-21 and 2020-42 [i]s an unconstitutional violation of Plaintiffs[’] substantive due process rights under the First and Fourteenth Amendment[s];
2

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h. A permanent injunction to prohibit Defendant[] from enforcing the Executive Orders 2020-21 and 2020-42;
i. An award of costs and expenses, including reasonable attorneys’ fees under 42U.S.C. § 1988; and
j. Such other and further relief as this Court deems appropriate.
Compl. at 20-21.
Defendant correctly argues that plaintiffs’ complaint must be dismissed because
this suit is barred by the Eleventh Amendment. A suit against Michigan’s governor in her
official capacity is a suit against the state itself, see Kentucky v. Graham, 473 U.S. 159, 165-66
(1985) (citing Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55 (1978)), and
the Eleventh Amendment bars suits by citizens against a state in federal court. As the Supreme
Court has explained,
we have often made it clear that the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment. See, e.g., Cory v. White, 457 U.S. 85, 90, 102 S.Ct. 2325, 2329, 72 L.Ed.2d 694 (1982) (“It would be a novel proposition indeed that the Eleventh Amendment does not bar a suit to enjoin the State itself simply because no money judgment is sought”). . . . The Eleventh Amendment does not exist solely in order to “preven[t] federal-court judgments that must be paid out of a State’s treasury,” Hess v. Port Authority Trans–Hudson Corporation, 513 U.S. 30, 48, 115 S.Ct. 394, 404, 130 L.Ed.2d 245 (1994); it also serves to avoid “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,” Puerto Rico Aqueduct and Sewer Authority, 506 U.S., at 146, 113 S.Ct., at 689 (internal quotation marks omitted).
Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 58 (1996). See also Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984) (reiterating that “an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as by citizens of another state” and
3

Case 1:20-cv-00323-PLM-PJG ECF No. 44-6 filed 06/30/20 PageID.1264 Page 5 of 6
that “[t]his jurisdictional bar applies regardless of the nature of the relief sought”).2 An  exception to Eleventh Amendment immunity is recognized when a plaintiff seeks “prospective injunctive relief to prevent a continuing violation of federal law.” Green v. Mansour, 474 U.S. 64, 68 (1985) (citing Ex parte Young, 209 U.S. 123 (1908)). See also Pennhurst, 465 U.S. at 103. However, this exception does not apply to “claims for retrospective relief,” including claims for injunctive relief concerning statutes that have become moot by amendment. Green,
474 U.S. at 68-69. In the present case, defendant notes that the executive orders plaintiffs challenge
have been rescinded and that the restrictions that are the basis of this lawsuit no longer exist. Plaintiffs themselves concede that EO 2020-21, issued on March 24, 2020, was “revoked and replaced” by EO 2020-42 on April 9. See Compl. ¶¶ 17-18. Plaintiffs further concede that EO 2020-59 “rescinded 2020-42 and removed the ban on landscapers working and lifted the ban on traveling to second homes within Michigan,” Pls.’ Resp. Br. at 2, and that “there is no longer a direct restriction on Plaintiffs using or accessing their property.” Id. at 8. The Court takes judicial notice of the fact that the governor has recently lifted the stay-at-home order and that
most businesses may now operate normally. See EO 2020-110, dated June 1, 2020. Plaintiffs’
2 The fact that plaintiffs claim that defendant has taken their property without compensation does not change the Eleventh Amendment analysis. Plaintiffs cite Knick v. Twp. of Scott, Pa., 139 S. Ct. 2162 (2019), for the proposition that they may bring a § 1983 action as soon as government action “takes” their property. But the defendant in that case was a Pennsylvania township that issued an ordinance plaintiff claimed took her property without compensation, and the Court, in summarizing its holding, stated that “[a] property owner may bring a takings claim under § 1983 upon the taking of his property without just compensation by a local government.” Id. at 2179 (emphasis added). Plaintiffs in the present case cite no authority suggesting that a state is not entitled to Eleventh Amendment immunity as to a Fifth Amendment takings claim asserted in federal court.
4

Case 1:20-cv-00323-PLM-PJG ECF No. 44-6 filed 06/30/20 PageID.1265 Page 6 of 6
assertion that “there is a good chance that these restrictions will come back,” Pls.’ Resp. Br. at 8, is pure speculation and does not suffice to avoid the conclusion that their request for prospective injunctive and declaratory relief is moot.
In short, plaintiffs are not entitled to damages or restrospective injunctive or declaratory relief because defendant enjoys Eleventh Amendment immunity. And they are not entitled to prospective injunctive or declaratory relief because the executive orders that underlie their complaint have been rescinded. Accordingly,
IT IS ORDERED that defendant’s motion to dismiss is granted.

Dated: June 5, 2020 Detroit, Michigan

s/Bernard A. Friedman BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

5

Case 1:20-cv-00323-PLM-PJG ECF No. 44-7 filed 06/30/20 PageID.1266 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT G

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Footnotes

1

The term “flatten the curve” refers to slowing the spread of the coronavirus through the population. The goal is to “reduce[ ]

the number of cases that are active at any given time, which in turn gives doctors, hospitals, police, schools, and vaccine-

manufacturers time to respond, without becoming overwhelmed.” Siobhan Roberts, Flattening the Coronavirus Curve,

The New York Times, https://www.nytimes.com/article/flatten-curve-coronavirus.html. The result is that, when plotted on

a line graph, the rate of infection appears as a flattened curve rather than a steep peak.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

 !"#$%



Case 1:20-cv-00323-PLM-PJG ECF No. 44-8 filed 06/30/20 PageID.1270 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT H

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End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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Case 1:20-cv-00323-PLM-PJG ECF No. 44-9 filed 06/30/20 PageID.1273 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT I

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Footnotes

1

Coronavirus Disease 2019 (COVID-19): Cases in the U.S., Ctrs. for Disease Control & Prevention, https://www.cdc.gov/

coronavirus/2019-ncov/cases-updates/cases-in-us.html (last visited June 17, 2020).

2

Available

at

https://gov.louisiana.gov/assets/Proclamations/2020/modified/25-JBE2020-Public-Health-

Emergency-COVID-19.pdf.

3

Available at https://gov.louisiana.gov/assets/Proclamations/2020/JBE-33-2020.pdf.

4

Available at https://gov.louisiana.gov/assets/Proclamations/2020/modified/41-JBE2020-Public-Health-Emergency.pdf.

5

Available at https://gov.louisiana.gov/assets/Proclamations/2020/modified/52-JBE2020-State-of-Emergency-COVID-19-

Extension-to-May-15.pdf.

6

Opening Up America Again, The White House, https://www.whitehouse.gov/openingamerica/ (last visited on June 17,

2020).

7

Available at https://gov.louisiana.gov/assets/Proclamations/2020/58-JBE-2020.pdf.

8

Available at https://gov.louisiana.gov/assets/Proclamations/2020/74-JBE-2020State-of-Emergency-COVID-19-

Resilient-Louisiana-Phase-2.pdf.

9

See also Martinko v. Whitmer, ––– F. Supp. 3d ––––, ––––, 2020 WL 3036342, at *3 (E.D. Mich. June 5, 2020) (holding

that a claim challenging superseded COVID-19 restrictions was moot); Ministries v. Newsom, ––– F. Supp. 3d ––––,

––––, 2020 WL 2991467, at *3 (S.D. Cal. June 4, 2020) (same); Cameron v. Beshear, 2020 WL 2573463, at *2–3 (E.D.

Ky. May 21, 2020) (same); Krach v. Holcomb, 2020 WL 2197855, at *2 (N.D. Ind. May 6, 2020) (same).

1

Judge Collins has criticized our court for reading Jacobson too broadly in favor of the government. See S. Bay, 959

F.3d at 943 n.2 (criticizing In re Abbott, 954 F.3d 772 (5th Cir. 2020)). I would simply observe that, whatever Jacobson’s

scope, Abbott makes clear that pandemic regulations must govern “evenhandedly”—precisely the problem here. In re

Abbott, 954 F.3d at 792.

2

Smith has been derided by “[c]ivil rights leaders and scholars ... as ‘the Dred Scott of First Amendment law,’ ” criticized

by “[a]t least ten members of the Supreme Court,” and “widely panned as contrary to the Free Exercise Clause and

our Founders’ belief in religion as a cornerstone of civil society.” Horvath, 946 F.3d at 794–95 (Ho, J., concurring in the

judgment in part and dissenting in part) (quoting other sources). Smith is troubling because it is of “little solace to the

person of faith that a non-believer might be equally inconvenienced.” Id. at 796. “For it is the person of faith whose faith

is uniquely burdened—the non-believer, by definition, suffers no such crisis of conscience. This recalls Anatole France’s

mordant remark about ‘the majestic quality of the law which prohibits the wealthy as well as the poor from sleeping under

the bridges, from begging in the streets, and from stealing bread.’ ” Id. (quoting ANATOLE FRANCE, THE RED LILY

87 (1910)).

3

See, e.g., George Floyd protest in Baton Rouge: See photos, videos of peaceful march, THE

ADVOCATE (May 31, 2020), https://www.theadvocate.com/baton_rouge/multimedia/photos/collection_fc447130-

a374-11ea-ba75-13e315745881.html#3.

4

David

Gray,

Gov.

Edwards

commends

Louisiana’s

‘peaceful’

protests

after

‘egregious’ death of George Floyd, THE LIVINGSTON PARISH NEWS (June 2,

2020), https://www.livingstonparishnews.com/breaking_news/gov-edwards-commends-louisiana-speaceful-protests-

after-egregious-death-of-george-floyd/article_8c81f514-a506-11ea-b00a-cffba12e8440.html.

5

Melinda Deslatte, Louisiana governor praises state’s peaceful Floyd protests, AP NEWS (June 3, 2020), https://

apnews.com/51fd29f1cd6bd7e6d2bea8799117fec8.

6

Under his logic, the Governor would allow tens of thousands of LSU fans to assemble this fall under the open sky at Tiger

Stadium, while forbidding countless others from cheering on the Saints under the Superdome.

7

See, e.g., Morgan Winsor, Dr. Fauci voices concerns about coronavirus spreading amid nationwide protests, ABC

NEWS (June 10, 2020), https://abcnews.go.com/US/dr-faucivoices-concerns-coronavirus-spreading-amid-nationwide/

story?id=71171103.

8

See, e.g., Jamie Ducharme, “Protest Is a Profound Public Health Intervention.” Why So Many Doctors Are Supporting

Protests in the Middle of the Covid-19 Pandemic, TIME (June 10, 2020), https://time.com/5848212/doctors-supporting-

protests/.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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Case 1:20-cv-00323-PLM-PJG ECF No. 44-10 filed 06/30/20 PageID.1281 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT J

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Footnotes

1

Although not relevant to the Court’s rulings below, it is worth mentioning that on May 29, 2020, the Supreme Court issued

a decision on an application for injunctive relief in South Bay United Pentecostal Church v. Newsom, a case appealed

from this Court. The Supreme Court declined to issue an injunction in favor of the church, finding California’s guidelines

that place restrictions on places of worship are consistent with the Free Exercise Clause of the First Amendment. S.

Bay United Pentecostal Church v. Newsom, No. ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2020 WL 2813056

(May 29, 2020).

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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Case 1:20-cv-00323-PLM-PJG ECF No. 44-11 filed 06/30/20 PageID.1285 Page 1 of 21

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

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Footnotes

1

“[T]he district judge, in considering a motion for preliminary injunction...must make factual determinations on the basis

of a fair interpretation of the evidence before the court.” Darryl H. v. Coler, 801 F.2d 893, 898 (7th Cir. 1986). The

facts summarized here derive from Plaintiffs' complaint, the parties' briefs supporting and opposing the motion, and the

accompanying exhibits; none are materially disputed.

2

For example, in recent weeks, Cassell has presented a series of sermons titled “Corona-Lie,” where he has expressed

skepticism regarding the extent of the COVID-19 crisis, as well as the government's motives in responding to it. See,

e.g., Beloved Church Media, Sunday March 15, 2020: Corona-Lie (Pastor Steve Cassell) at 38:35, YOUTUBE, https://

www.youtube.com/watch?v=QJix0dCxhGQ&t=1699s (“Why don't we shut the country down for the 2500 people that have

died from [Corona Beer]? Because it doesn't fit the narrative. I don't know if you realize this, but you are being absolutely

manipulated and controlled by a system that wants you to believe what it tells you.”). See Goplin v. WeConnect, Inc., 893

F.3d 488, 491 (7th Cir. 2018) (approving the district court taking judicial notice of a party's website in deciding a motion

where the counterparty cited the website in its response brief).

3

Plaintiffs' motion focuses on their claim under the Free Exercise Clause. In the reply brief, however, they also argue that

the Order violates the First Amendment's Free Speech and Freedom of Assembly provisions. But, because Plaintiffs

failed to include these arguments in their opening brief and offer them only in reply, the arguments are waived as a matter

of fairness. See Wonsey v. City of Chi., 940 F.3d 394, 399 (7th Cir. 2019).

4

At times, Plaintiffs also argue that the government does not enforce social distancing requirements as applied to Essential

Businesses. See Pls.' Reply at 8. In support, Cassell states that he has observed social distancing violations while

shopping at Menards and Walmart. Cassell Decl. ¶ 16. But limited, anecdotal instances of noncompliance contribute little

to the inference that the “object or purpose” of the challenged order is to interfere with religious practices. Lukumi, 508

U.S. at 527, 113 S.Ct. 2217.

5

Indeed, among other things, the Order requires retail stores that are designated as Essential Businesses to set up aisles

to be one-way “to maximize spacing between customers and identify the one-way aisles with conspicuous signage and/

or floor markings.” April 30 Order § 2.

6

On Fire Christian Center, Inc. v. Fischer, another district court case Plaintiffs cite, does not support their position either.

No. 3:20-CV-264-JRW, 2020 WL 1820249 (W.D. Ky. Apr. 11, 2020). In Fischer, the City of Louisville proscribed “drive-

in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs.” Id. at *6. That

is not the case here.

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1:20-cv-00323-PLM-PJGECF No. 44-11 filed 06/30/20 PageID.1305 Page 21 of 21

7

In fact, as Plaintiffs put it, “[t]he Church has numerous families that have taken seriously the biblical admonition to ‘be

fruitful and multiply.’ ” Pl. Reply at 3.

8

Cassell also states that “[i]t is not feasible to conduct drive-in services on TheBeloved Church's

property” because they “do not have a parking lot that can accommodate such services.” Id. ¶ 5.

But the church appears to have a large parking lot that can accommodate a number of cars to

conduct such services. See https://www.google.com/maps/place/216+W+Mason+St,+Lena,+IL+61048/@42.3784957,-

89.827654,3a,75y,99.24h,66.75t/data=!3m6!1e1!3m4!1s- EqLIBLYW6X0O96wk9B0nA!2e0!7i13312!8i6656!4m5!3m4!

1s0x8808103eadade1e7:0x6807f35e1247a6cb!8m2!3d42.378454!4d-89.8273456; see also Ke Chiang Dai v. Holder,

455 Fed. Appx. 25, 26 n.1 (2012) (taking judicial notice of Google Maps).

9

Plaintiffs also cast Governor Pritzker's previous orders as improper continuations of the initial emergency declaration.

Given that the Governor has issued a new disaster declaration, that argument is moot.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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

Case 1:20-cv-00323-PLM-PJG ECF No. 44-12 filed 06/30/20 PageID.1306 Page 1 of 19

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KIMBERLY BEEMER, and ROBERT MUISE,

Plaintiffs,

No. 1:20-cv-00323

v

HON. PAUL L. MALONEY

GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney,

MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT L

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Footnotes

1

In their motion, Plaintiffs refer to the Orders as “substantively identical.” ECF No. 20-1 at 10, 12, 13. Unless otherwise

indicated, the Court looks to Alameda County’s Orders, see ECF No. 46-6 at 11-17, 19-33, as representative of all four

Counties’ Orders.

2

The Court grants Defendants’ request for judicial notice of these four Orders, which are matters of public record. See ECF

No. 50; see Fed. R. Evid. 201 (“The court may judicially notice a fact that is not subject to reasonable dispute because

it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”). Unless

otherwise indicated, it looks to Alameda’s order, see ECF No. 50 at 25-44, as representative of all four Counties’ orders.

3

The Court grants all three Counties’ requests for judicial notice of these Orders. See supra, 2 n.3. The Court is not aware

of a new order issued by Alameda County.

4

Defendants argued at the hearing and in their supplemental brief that, beginning with the April 29 Orders, outdoor shooting

ranges have been permitted to operate. See ECF No. 55 at 7. Plaintiffs do not dispute this interpretation of the Orders.

See ECF No. 57 at 2 (arguing only that use of an indoor range is prohibited). The Court will address this issue in its

consideration of Plaintiffs’ likelihood of success on their Second Amendment claim.

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5

Plaintiffs submit a supplemental declaration from Plaintiff Roman Kaplan, co-owner of Plaintiff City Arms East LLC, in

support of this argument. ECF No. 57-1. The Court disregards this evidence because it was presented for the first time

on reply. See In re Hansen Natural Corp. Sec. Litig., 527 F. Supp. 2d 1142, 1150 (C.D. Cal. 2007).

6

Defendants also alternatively argue that the Court should apply rational basis review because the Order is a “neutral

and generally applicable regulation[ ]” that only “incidentally implicates arms.” ECF No. 46 at 15. Defendants admit that

this approach “has not been applied in Second Amendment contexts,” citing only two dissents by Ninth Circuit judges as

support for applying it here. Id. at 20. The Court will not apply rational basis review.

7

Jacobson, which involved a Fourteenth Amendment claim, appears to apply to all constitutional claims. Defendants do

not argue, however, that Jacobson should govern Plaintiffs’ due process claim. Because the Court finds that Plaintiffs

have not demonstrated a likelihood of success on the merits of that claim under the traditional due process framework,

the Court need not consider whether the claim would also be precluded under Jacobson.

8

In their reply brief, Plaintiffs mention in a footnote that they “cannot even privately transfer firearms and ammunition under

State law.” ECF No. 48 at 15 n.4. Without further explanation of why the exceptions cited by Defendants do not apply in

the current circumstances, the Court disregards this argument. See Estate of Saunders v. Comm'r, 745 F.3d 953, 962

n.8 (9th Cir. 2014) (“Arguments raised only in footnotes, or only on reply, are generally deemed waived.”); Sanders v.

Sodexo, Inc., No. 2:15-cv-00371-JAD-GWF, 2015 WL 4477697, at *5 (D. Nev. July 20, 2015) (“Many courts will disregard

arguments raised exclusively in footnotes.” (quoting Bryan Garner, The Redbook: A Manual on Legal Style 168 (3d ed.

2013))).

9

This Order sweeps broadly to include “shared facilities for [any] recreational activities outside of residences, including,

but not limited to, golf courses, tennis and pickle ball courts, rock parks, climbing walls, pools, spas, shooting and archery

ranges, gyms, disc golf, and basketball courts.” Id. Moreover, outdoor shooting ranges have, along with other outdoor

recreational facilities, been permitted to reopen starting with the April 29 Orders. See supra, 7 n.5.

10 The Court notes that, given that the current Order allows outdoor shooting ranges to operate, it leaves ample opportunity

to maintain proficiency in firearms use and thus any remaining burden on this right is insubstantial.

11 While Plaintiffs attempted to submit this guidance via their counsel’s declaration, see ECF No. 20-2 at 129-30, the exhibit

omits the pertinent portion of the guidance. The Court thus takes sua sponte judicial notice of this document, which is a

public record. See Fed. R. Evid. 201; Rollins v. Dignity Health, 338 F. Supp. 3d 1025, 1032 (N.D. Cal. 2018) (explaining

that courts often take judicial notice of government agency websites).

12 Plaintiffs briefly argue that the Order is “made even more constitutionally suspect because it bypassed the constitutionally

authorized method for enacting laws,” thus “violat[ing] separation of powers.” ECF No. 20-1 at 27. As Plaintiffs provide no

authority for this argument and do not respond to Defendants’ counter-arguments in their reply brief, the Court declines

to consider this argument.

End of Document

© 2020 Thomson Reuters. No claim to original U.S. Government Works.

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