APPEAL,STAYED
United States District Court Western District of Michigan (Southern Division (1)) CIVIL DOCKET FOR CASE #: 1:20-cv-00414-PLM-PJG

Midwest Institute of Health, PLLC et al v. Whitmer et al Assigned to: District Judge Paul L. Maloney Referred to: Magistrate Judge Phillip J. Green (events as ordered) Case in other court: Sixth Circuit, 20-01611
Sixth Circuit, 20-01650 Cause: 28:1331 Federal Question: Other Civil Rights

Date Filed: 05/12/2020 Jury Demand: None Nature of Suit: 950 Constitutional State Statute Jurisdiction: Federal Question

plaintiff
Midwest Institute of Health, PLLC doing business as Grand Health Partners

represented by Amy Elizabeth Murphy Miller Johnson PLC (Grand Rapids) 45 Ottawa SW, Ste. 1100 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1742 Email: murphya@millerjohnson.com ATTORNEY TO BE NOTICED

Stephen James van Stempvoort Miller Johnson PLC (Grand Rapids) 45 Ottawa SW, Ste. 1100 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1765 Email: vanstempvoorts@millerjohnson.com ATTORNEY TO BE NOTICED

James Richard Peterson Miller Johnson PLC (Grand Rapids) 45 Ottawa SW, Ste. 1100 P.O. Box 306 Grand Rapids, MI 49501-0306 (616) 831-1700 Email:

plaintiff Wellston Medical Center, PLLC
plaintiff Primary Health Services, PC
plaintiff Jeffery Gulick
V.

petersonj@millerjohnson.com ATTORNEY TO BE NOTICED
represented by Amy Elizabeth Murphy (See above for address) ATTORNEY TO BE NOTICED
Stephen James van Stempvoort (See above for address) ATTORNEY TO BE NOTICED
James Richard Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Elizabeth Murphy (See above for address) ATTORNEY TO BE NOTICED
Stephen James van Stempvoort (See above for address) ATTORNEY TO BE NOTICED
James Richard Peterson (See above for address) ATTORNEY TO BE NOTICED
represented by Amy Elizabeth Murphy (See above for address) ATTORNEY TO BE NOTICED
Stephen James van Stempvoort (See above for address) ATTORNEY TO BE NOTICED
James Richard Peterson (See above for address) ATTORNEY TO BE NOTICED

defendant
Gretchen Whitmer in her official capacity as Governor of 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
Darrin F. Fowler MI Dept Attorney General (Community Health) Community Health Division 525 W Ottawa P.O. Box 30758 Lansing, MI 48909 (517) 373-1160 Fax: (517) 335-6755 Email: fowlerdf@michigan.gov ATTORNEY TO BE NOTICED
John G. Fedynsky Michigan Department of Attorney General Civil Litigation, Employment & Elections 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 Dana Nessel in her official capacity as Attorney General of the State of Michigan
defendant Robert Gordon in his official capacity as Director of the Michigan Department of Health and Human Services

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 Ann Maurine Sherman MI Dept Attorney General (Solicitor General) 525 W Ottawa St. P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 Email: shermana@michigan.gov ATTORNEY TO BE NOTICED
Rebecca Ashley Berels MI Dept of Attorney General (Criminal Appellate) 525 W Ottawa St. P.O. Box 30217 Lansing, MI 48909 (517) 335-7650 Email: berelsr1@michigan.gov ATTORNEY TO BE NOTICED
represented by Christopher M. Allen (See above for address) ATTORNEY TO BE NOTICED
Darrin F. Fowler (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 05/12/2020
05/12/2020 05/13/2020 05/13/2020 05/13/2020 05/13/2020 05/13/2020

# Docket Text
1 COMPLAINT against Robert Gordon, Dana Nessel, Gretchen Whitmer filed by Midwest Institute of Health, PLLC d/b/a Grand Health Partners, Jeffery Gulick, Primary Health Services, PC, Wellston Medical Center, PLLC (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19) (Peterson, James) (Entered: 05/12/2020)
FILING FEE PAID re 1 by plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC d/b/a Grand Health Partners, Primary Health Services, PC, Wellston Medical Center, PLLC in the amount of $400, receipt number AMIWDC-5234817 (Peterson, James) (Entered: 05/12/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Amy Elizabeth Murphy on behalf of plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (Murphy, Amy) (Entered: 05/13/2020)
(NON-DOCUMENT) ATTORNEY APPEARANCE of Stephen James van Stempvoort on behalf of plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (van Stempvoort, Stephen) (Entered: 05/13/2020)
2 PROPOSED SUMMONS to be issued re 1 (Peterson, James) (Entered: 05/13/2020)
3 NOTICE that this case has been assigned Paul L. Maloney ; with NOTICE OF DEFICIENCY re corporate disclosure statement (clw) (Entered: 05/13/2020)
4 SUMMONS ISSUED as to defendants Robert Gordon, Dana Nessel, Gretchen Whitmer (clw) (Entered: 05/13/2020)

05/14/2020 5 CORPORATE DISCLOSURE STATEMENT by Midwest Institute of Health, PLLC (Peterson, James) (Entered: 05/14/2020)

05/14/2020 6 CORPORATE DISCLOSURE STATEMENT by Wellston Medical Center, PLLC (Peterson, James) (Entered: 05/14/2020)

05/14/2020 7 CORPORATE DISCLOSURE STATEMENT by Primary Health Services, PC (Peterson, James) (Entered: 05/14/2020)

05/15/2020

8 PROOF OF SERVICE by plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC re Summons Issued 4, complaint, 1 (Peterson, James) (Entered: 05/15/2020)

05/18/2020

9 MOTION for preliminary injunction by plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC; (Peterson, James) (Entered: 05/18/2020)

05/18/2020

10 BRIEF in support of MOTION for preliminary injunction 9 filed by Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18) (Peterson, James) (Entered: 05/18/2020)

05/18/2020

11 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION for preliminary injunction 9 filed by Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (Peterson, James) (Entered: 05/18/2020)

05/19/2020

12 PROOF OF SERVICE by plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC re MOTION for preliminary injunction 9, Brief in Support of a Motion, 10 , Certificate Regarding Motion Concurrence, 11 (Peterson, James) (Entered: 05/19/2020)

05/19/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of John G. Fedynsky on behalf of defendants Robert Gordon, Gretchen Whitmer (Fedynsky, John) (Entered: 05/19/2020)

05/19/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Joseph T. Froehlich on behalf of defendants Robert Gordon, Gretchen Whitmer (Froehlich, Joseph) (Entered: 05/19/2020)

05/19/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Joshua O. Booth on behalf of defendants Robert Gordon, Gretchen Whitmer (Booth, Joshua) (Entered: 05/19/2020)

05/19/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Christopher M. Allen on behalf of defendants Robert Gordon, Gretchen Whitmer (Allen, Christopher) (Entered: 05/19/2020)

05/19/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Ann Maurine Sherman on behalf of defendant Dana Nessel (Sherman, Ann) (Entered: 05/19/2020)

05/19/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Rebecca Ashley Berels on behalf of defendant Dana Nessel (Berels, Rebecca) (Entered: 05/19/2020)

05/19/2020

13 ORDER regarding response to Motion for Preliminary Injunction 9 responses due by 3:00 p.m. on 5/22/2020; hearing on motion scheduled for 5/28/2020 at 9:00 a.m., 174 Federal Building, Kalamazoo, Michigan; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 05/19/2020)

05/22/2020 14 NOTICE of Screening Device by defendant Dana Nessel (Sherman, Ann) (Entered: 05/22/2020)

05/22/2020

15 RESPONSE TO MOTION for preliminary injunction 9 filed by Dana Nessel (Attachments: # 1 Index, # 2 Exhibit 1, # 3 Exhibit 2) (Sherman, Ann) (Entered: 05/22/2020)

05/22/2020 16 CERTIFICATE of compliance re word count for Response to Motion 15 filed by Dana Nessel (Sherman, Ann) (Entered: 05/22/2020)

05/22/2020

(NON-DOCUMENT) ATTORNEY APPEARANCE of Darrin F. Fowler on behalf of defendants Robert Gordon, Gretchen Whitmer (Fowler, Darrin) (Entered: 05/22/2020)

05/22/2020

17 MOTION for leave to file excess pages /Exceed Word Limit Under LR 7.1(c) by defendants Robert Gordon, Gretchen Whitmer; (Attachments: # 1 Exhibit 1 to Defendants' Whitmer and Gordon's Motion to Exceed Word Limit, # 2 Defendants Whitmer and Gordon's Response to Plaintiff's Motion for Prelim. Injunction, # 3 Index of Exhibits, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Exhibit K, # 15 Exhibit L, # 16 Exhibit M, # 17 Exhibit N) (Fedynsky, John) Modified text on 5/26/2020 (clw). (Entered: 05/22/2020)

05/22/2020

18 ORDER regarding response to Motion for Preliminary Injunction 9; replies due by 5/26/2020; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 05/22/2020)

05/22/2020

19 ORDER granting 17 motion for leave to file excess pages ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 05/22/2020)

05/22/2020

20 RESPONSE TO MOTION for preliminary injunction 9 filed by Robert Gordon, Gretchen Whitmer (Attachments: # 1 Index of Exhibits, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Exhibit K, # 13 Exhibit L, # 14 Exhibit M, # 15 Exhibit N) (clw) (Entered: 05/26/2020)

05/26/2020

21 REPLY to response to motion 9 filed by Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (Attachments: # 1 Exhibit 1 - EO 2020-96, # 2 Exhibit 2 - EO 2020-97, # 3 Exhibit 3 - EO 2020-99) (Peterson, James) (Entered: 05/26/2020)

05/27/2020

22 ORDER dismissing without prejudice 9 motion for preliminary injunction; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 05/27/2020)

05/28/2020

23 NOTICE of hearing regarding certification of issues to Michigan Supreme Court set for 6/10/2020 at 01:30 PM at 174 Federal Building, Kalamazoo, MI before District Judge Paul L. Maloney; (Judge Paul L. Maloney, cmc) (Entered: 05/28/2020)

06/02/2020

24 MOTION for leave to file excess pages Exceed Word Limit by defendants Robert Gordon, Gretchen Whitmer; (Attachments: # 1 Exhibit 1: Defs. Gordon and Whitmer's Motion to Dismiss, # 2 Defs. Gordon and Whitmer's Brief in Support of Its Motion to Dismiss, # 3 Index of Exhibits, # 4 Exhibit A: Opinion and Order Denying Plaintiffs Motion for a Preliminary Injunction, Martinko, et. al. v. Governor Whitmer, et. al., Michigan Court of Claims Case No. 20-62MM, # 5 Exhibit B: Modes of transmission of virus causing COVID-19, World Health Organization, # 6 Exhibit C: Social Distancing, Quarantine, and Isolation, Centers for Disease Control, # 7 Exhibit D: Flattening the Coronavirus Curve (March 27, 2020), New York Times, # 8 Exhibit E: E.O. No.2020-4, # 9 Exhibit F: E.O. No. 2020-5, # 10 Exhibit G: E.O. No. 2020-9, # 11 Exhibit H: E.O. No. 2020-11, # 12 Exhibit I: E.O. No. 2020-17, # 13 Exhibit J: E.O. No. 2020-96, # 14 Exhibit K: E.O. No. 2020-21, # 15 Exhibit L: Opinion and Order of the Court issued May 21, 2020, Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ, # 16 Exhibit

M: Opinion and Order of the Court issued May 18, 2019, Michigan United for Liberty v. Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ, # 17 Exhibit N: Governor Gretchen Whitmers Emergency Bypass Application for Leave to Appeal and Brief, # 18 Exhibit O: Summary Order released May 29, 2020, South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, 509 U.S. ___ (2020)) (Fedynsky, John) Modified text on 6/4/2020 (clw). (Entered: 06/02/2020)

06/02/2020 25 MOTION for leave to file excess pages for Motion to Dismiss by defendant Dana Nessel; (Sherman, Ann) (Entered: 06/02/2020)

06/02/2020 26 MOTION to dismiss by defendant Dana Nessel; (Sherman, Ann) (Entered: 06/02/2020)

06/02/2020 27 BRIEF in support of MOTION to dismiss 26 filed by Dana Nessel (Attachments: # 1 Exhibit 1) (Sherman, Ann) (Entered: 06/02/2020)

06/02/2020

28 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION for leave to file excess pages for Motion to Dismiss 25 filed by Dana Nessel (Sherman, Ann) (Entered: 06/02/2020)

06/02/2020 29 CERTIFICATE regarding compliance with LCivR 7.1(d) re MOTION to dismiss 26 filed by Dana Nessel (Sherman, Ann) (Entered: 06/02/2020)

06/02/2020 30 CERTIFICATE of compliance re word count for Brief in Support of a Motion 27 filed by Dana Nessel (Sherman, Ann) (Entered: 06/02/2020)

06/05/2020

31 ORDER granting 24 motion for leave to file excess pages; granting 25 motion for leave to file excess pages; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 06/05/2020)

06/05/2020

32 BRIEF by plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC Regarding Certification of State-Law Issues to the Michigan Supreme Court (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Peterson, James) (Entered: 06/05/2020)

06/05/2020

33 BRIEF by defendants Robert Gordon, Gretchen Whitmer with Certificate of Service (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Froehlich, Joseph) (Entered: 06/05/2020)

06/05/2020

34 BRIEF by defendant Dana Nessel on certification (supplemental) (Attachments: # 1 Exhibit 1) (Sherman, Ann) Modified text on 6/8/2020 (clw). (Entered: 06/05/2020)

06/05/2020

35 MOTION to dismiss by defendants Robert Gordon, Gretchen Whitmer; (Attachments: # 1 Brief in Support, # 2 Index, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Exhibit H, # 11 Exhibit I, # 12 Exhibit J, # 13 Exhibit K, # 14 Exhibit L, # 15 Exhibit M, # 16 Exhibit N, # 17 Exhibit O) (clw) (Entered: 06/08/2020)

06/10/2020

36 MINUTES of hearing regarding certification of issues to Michigan Supreme Court; opinion to issue; held before District Judge Paul L. Maloney (Court Reporter: Kathleen Thomas) (Judge Paul L. Maloney, acr) (Entered: 06/10/2020)

06/11/2020

37 NOTICE joint notice of supplemental authority regarding their motions to dismiss by defendants Robert Gordon, Dana Nessel, Gretchen Whitmer (Attachments: # 1 Exhibit A: Opinion and Order Granting Defendants Motion to Dismiss issued in Martinko, et al. v. Gretchen Whitmer) (Froehlich, Joseph) Modified text on 6/12/2020 (clw). (Entered: 06/11/2020)

06/11/2020

38 JOINT MOTION for reconsideration re 36 Certification by defendants Robert Gordon, Dana Nessel, Gretchen Whitmer; (Attachments: # 1 Exhibit A: Barachkov v. Davis, 580 Fed.Appx. 288 (2014)) (Froehlich, Joseph) Modified text on 6/12/2020 (clw). (Entered: 06/11/2020)

06/11/2020

39 ORDER regarding response to Motion for Reconsideration 38 responses due by 12:00 p.m. on 6/12/2020; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr) (Entered: 06/11/2020)

06/12/2020

40 RESPONSE in opposition to JOINT MOTION for reconsideration re 36 38 filed by Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (Peterson, James) Modified text on 6/15/2020 (clw). (Entered: 06/12/2020)

06/12/2020

41 STIPULATION and Proposed Facts and Questions Regarding Certification of State-Law Issues to the Michigan Supreme Court by plaintiffs Jeffery Gulick, Midwest Institute of Health, PLLC, Primary Health Services, PC, Wellston Medical Center, PLLC (Peterson, James) (Entered: 06/12/2020)

06/16/2020 42 ORDER denying 38 motion for reconsideration; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 06/16/2020)

06/16/2020 43 OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 06/16/2020)

06/16/2020

44 ORDER re STIPULATION 41 and staying the case; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc) (Entered: 06/16/2020)

06/17/2020

Certified Copy of Opinion 43, Order on Stipulation 44 sent via U.S. Mail to Clerk of the Michigan Supreme Court @ PO Box 30052,Lansing, MI 48909 (clw) (Entered: 06/17/2020)

06/25/2020 45 NOTICE OF APPEAL re 42 by defendants Robert Gordon, Gretchen Whitmer (Fedynsky, John) (Entered: 06/25/2020)

06/25/2020

APPEAL FEE PAID re 45 by defendants Robert Gordon, Gretchen Whitmer in the amount of $505, receipt number AMIWDC-5393217 (Fedynsky, John) (Entered: 06/25/2020)

06/26/2020 46 LETTER FROM CCA regarding appeal 45 indicating Civil Case Docketed (clw) (Entered: 06/29/2020)

06/26/2020

CASE NUMBER 20-1611 assigned by Sixth Circuit to appeal 45 (clw) (Entered: 06/29/2020)

07/02/2020 47 NOTICE OF APPEAL re 42 by defendant Dana Nessel (Sherman, Ann) (Entered: 07/02/2020)

07/02/2020

APPEAL FEE PAID re 47 by defendant Dana Nessel in the amount of $505, receipt number AMIWDC-5419471 (Sherman, Ann) (Entered: 07/02/2020)

07/09/2020

CASE NUMBER 20-1650 assigned by Sixth Circuit to appeal 47 (clw) (Entered: 07/09/2020)

07/09/2020 48 LETTER FROM CCA regarding appeal 47 indicating Civil Case Docketed (clw) (Entered: 07/09/2020)

08/10/2020

49 APPEAL TRANSCRIPT of the Preliminary Injunction Hearing held June 10, 2020, before the Honorable Paul L. Maloney; re appeal 45 , 47 ; NOTE: this transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the release of transcript restriction date; after that date it may be obtained through PACER; under the Policy Regarding Transcripts the parties have 14 days within which to file a Notice of Intent to redact, and 21 days within which to file a Redaction Request; if no Transcript Redaction Request is filed, the court will assume redaction of personal identifiers is not necessary and this transcript will be made available via PACER after the release of transcript restriction set for 11/9/2020 ; redaction request due 8/31/2020 (Court Reporter-Transcriptionist: K. Thomas, (269) 8086116) (Entered: 08/10/2020)

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 Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.1 Page 1 of 40

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

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK
Plaintiffs, vs.
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Case No. 1:20-cv-414 Hon.

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

VERIFIED COMPLAINT The Plaintiffs comprise medical providers and a patient seeking vital medical

services during this re-declared state of emergency. They file this Complaint for declaratory

1

Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.2 Page 2 of 40

judgment, injunctive relief, damages, and other relief to vindicate their rights under the United

States and Michigan Constitutions and to preserve their ability to safely provide and obtain

necessary healthcare services as Michigan citizens, as detailed below:

1. The COVID-19 pandemic and its initial spread in the United States and

Michigan represented an extraordinary challenge for the citizens of Michigan and its elected

representatives. Initial projections based on some models projected widespread infection of the

population that would overwhelm our hospitals and healthcare systems, resulting in a massive

number of deaths. One model from the CDC projected between 160 to 214 million infections and between 200,000 to 1.7 million deaths nationwide.1 Such projections and the lack of available

data on U.S. cases put governmental leaders in very difficult spots. Nonetheless, based upon those

projections, government leaders made hard decisions on how to best to protect the health of their

citizens, while acting within the bounds of controlling constitutions and established law.

2. Fortunately, however, the projections upon which the government leaders

made their decisions back in March 2020 were grossly inaccurate. Set forth below is a comparison

of the projections made by the CDC in early 2020 with the actual data as of May 10, 2020.

Data
Number of people infected nationwide Number of deaths nationwide

CDC Projections
160 million to 214 million
200,000 to 1.7 million

Actual Numbers2 1,324,488 79,756

Comparison of Actual Numbers to CDC Projections
0.8% to 0.6% of projection
39.9% to 4.7% of projection

1 Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Magazine Intelligencer, updated Mar. 13, 2020, available at https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-210m-infected-17m-dead.html. 2 https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html (last updated May 11, 2020; last visited May 12, 2020).
2

Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.3 Page 3 of 40
3. Many decisions made in immediate response to protect against the COVID19 threat and the dire, potential public health crisis resulted in severe restrictions on the rights and liberties of both private individuals and businesses. Michigan was no exception.
4. Since early March 2020, Michigan Governor Gretchen Whitmer has taken drastic, unprecedented, unilateral executive actions in an effort to address the spread of the virus that causes COVID-19—declaring a state of emergency in the State of Michigan and justifying her restriction on rights and liberties based on the very important goal to “flatten the curve” and avoid overwhelming Michigan’s healthcare system and hospitals.
5. Thankfully, the goal of flattening the curve has been achieved, and the dire predictions of overwhelmed hospitals have not come to pass.
6. During a press conference on Monday, April 27, 2020, Governor Whitmer acknowledged that the curve has flattened in Michigan. Graphics depicted that while Governor Whitmer’s administration anticipated 220,000 patients being hospitalized without social distancing efforts, there had only been 3,000 hospitalizations as of April 27. That is less than 1.4% of the projected COVID-19 hospitalizations underlying the Governor’s declared states of emergency and disaster.
7. According to data released by the State of Michigan, hospitals in the state are well-stocked with over 2,400 available ventilators, nearly 1,000 available ICU beds, and more than 7,000 available hospital beds.3
3 https://www.michigan.gov/coronavirus/0,9753,7-406-98159-523641--,00.html (last updated May 11, 2020; last visited May 12, 2020).
3

Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.4 Page 4 of 40
8. On May 7, 2020, Governor Whitmer announced a six-phase plan to reopen Michigan’s economy titled “MI Safe Start.” Governor Whitmer stated that Michigan was in the third phase, called the “Flattening” phase, in which “[c]ase growth is gradually declining.”4
9. But even in the Flattening phase, the reopening of the economy is strictly limited to only “[s]pecified lower-risk businesses with strict workplace safety measures.” Only in later phases does the Governor’s plan permit the retail sector, offices, restaurants, and bars to reopen. And the Governor has not indicated when medical services deemed “non-essential” by her executive order will be permitted to resume.
10. In the Governor’s view, Michigan will not reach the sixth “Post-pandemic” phase anytime soon. From the Governor’s perspective, Michigan enters that phase only once the state has achieved “sufficient community immunity” and there is “high uptake of an effective therapy or vaccine.” The mumps vaccine holds the record for the fastest ever approved vaccine— with development and approval in 4 years.5
11. Governor Whitmer’s MI Safe Start Plan warns that at any time, “it is also possible to move backwards”—and reenter earlier phases of the emergency—“if risk increases and if we stop adhering to safe practices.” There is a real possibility that Governor Whitmer continues for many months, if not years, to enact measures that burden the rights and liberties of individuals and businesses without legislative input. Michigan is under an unlawfully re-declared state of emergency, with the Executive Branch dictating the law, and there is no end in sight.
4 MI Safe Start: A Plan to Re-Engage Michigan’s Economy, Gov. Gretchen Whitmer, available at https://content.govdelivery.com/attachments/MIEOG/2020/05/07/file_attachments/1446147/Gov ernor%20Whitmer%27s%20MI%20Safe%20Start%20Plan.pdf (published May 7, 2020; last visited May 12, 2020). 5 Donald G. McNeil, Jr., The Coronavirus in America: The Year Ahead, New York Times, April 18, 2020, available at https://www.nytimes.com/2020/04/18/health/coronavirus-americafuture.html.
4

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12. Meanwhile, medical providers are on the brink of financial ruin, facing extreme revenue shortages caused by the Governor’s order forcing the postponement or cancellation of so-called “non-essential” procedures. Thousands of healthcare workers across Michigan have been furloughed or laid off.
13. The Michigan Legislature permitted Governor Whitmer to take extraordinary and immediate executive action during the first month of Michigan’s response to the pandemic and even granted a 23-day extension. But the Michigan Legislature declined to extend Governor Whitmer’s declaration of a state of emergency beyond April 30, 2020. The Legislature’s decision not to extend the state of emergency constituted its determination that, now that Michigan had its bearings about the nature of the pandemic, the Legislature could resume its constitutionally mandated role of legislating based upon policy for what is no longer an emergency but a long-term challenge.
14. But instead of permitting the Legislature to resume its ordinary policysetting and law-making role, Governor Whitmer simply re-declared exactly the same state of emergency that Michigan law required, and the Legislature directed, to be terminated. Under Governor Whitmer’s interpretation of the relevant statutes, she may continue to re-declare a state of emergency serially, for as long as she determines that the pandemic continues to constitute an “emergency.”
15. No one disputes that the exercise of executive power may be necessary in some time-limited, emergency situations. But the Governor’s sweeping assertion that she can rule by emergency powers, potentially for years and without any regard for the Legislature, exceeds the scope of her statutory authority and violates the safeguard of the Michigan Constitution’s Separation of Powers clause. This is an extraordinarily dangerous precedent to set. “While the law
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may take periodic naps during a pandemic, we will not let it sleep through one.” Maryville Baptist Church, Inc. v. Beshear, __ F.3d __, 2020 WL 2111316, at *4 (6th Cir. May 2, 2020).
16. The Governor’s executive orders—including Executive Orders 2020-17 and 2020-77, which prohibit all “non-essential” medical treatments and expansive categories of in-person work, respectively—are predicated upon Governor Whitmer’s improper attempts to redeclare a state of emergency that has already been terminated. They therefore cannot be applied to the Plaintiffs.
17. And even if it was appropriate for the Governor to re-declare over the Legislature’s objection exactly the same state of emergency that had just been terminated, the executive orders cannot constitutionally be applied to the Plaintiffs for many other reasons. As applied to the Plaintiffs, the executive orders are unconstitutionally vague; they violate procedural and substantive due process; and they violate the dormant commerce clause.
18. The Plaintiffs are suffering immeasurable and irreparable harm from the Governor’s executive orders. Plaintiffs who are healthcare providers are unable to provide preventive medical care to their patients. Patients, one of whom is also a Plaintiff in this action, are unable to receive the care they need. This has led to widely documented instances of patients whose conditions become drastically worse while they wait for care that is vital to their health yet deemed “non-essential” by Governor Whitmer. Plaintiffs who are healthcare providers are also facing dire financial outlooks that could very well spell disaster for—and permanent shuttering of—their businesses. At minimum, Plaintiffs will suffer irreparable harm in the form of lost business goodwill within the community and with the patients they serve, particularly if they are perceived as engaging in conduct that Executive Orders 2020-17 and 2020-77 have deemed to be
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criminal in nature. They will also suffer irreparable harm through the deprivation of their constitutional rights. Preliminary and permanent injunctive relief is necessary in this case.
Jurisdictional Allegations 19. Plaintiff Midwest Institute of Health, PLLC, d/b/a Grand Health Partners (“Grand Health”), is a Michigan limited liability company with its principal place of business located at 2060 East Paris Ave., SE, Suite 100, Grand Rapids, MI 49546. 20. Plaintiff Wellston Medical Center, PLLC (“Wellston Medical Center”) is a primary care center located at 14477 Caberfae Hwy Wellston, Michigan 49689. 21. Plaintiff Primary Health Services, PC (“Primary Health Services”) is a primary care center located at 505 W Ludington Ave, Ludington, MI 49431. 22. Plaintiff Jeffery Gulick is a resident of Owosso, Michigan, who was scheduled to undergo knee replacement surgery on March 20, 2020. 23. Defendant Gretchen Whitmer is the Governor of Michigan and has issued more than 70 Executive Orders during the declared and re-declared emergency, including Executive Orders 2020-17 and 2020-77 that are at issue in this Complaint. She is being sued in her official capacity. 24. Defendant Dana Nessel is the Attorney General of Michigan and has authority to enforce Michigan law. She is being sued in her official capacity. 25. Defendant Robert Gordon is the Director of the Michigan Department of Health and Human Services. He is being sued in his official capacity. 26. The Court has original jurisdiction over this civil rights case under 28 U.S.C. § 1331, 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The Court has supplemental jurisdiction over the state-law claims under 28 U.S.C. § 1367.
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27. This Court has authority to award the requested injunctive relief under 28 U.S.C. § 1343 and Federal Rule of Civil Procedure 65, the requested declaratory relief under 28 U.S.C. § 2201-02 and Federal Rule of Civil Procedure 57, and damages and attorneys’ fees under 28 U.S.C. § 1343, 42 U.S.C § 1983 and 42 U.S.C. § 1988.
28. Venue in this district is proper because a substantial part of the events or omissions giving rise to the claim occurred in this district, see 28 U.S.C. § 1391(b)(2).
General Allegations The Provider Plaintiffs Can Conduct Their Business Operations Safely
29. Plaintiffs Grand Health, Wellston Medical Center, and Primary Health Services (together, the “Provider Plaintiffs”) in this action recognize that the safety of their employees and patients is and remains a paramount concern, and that additional steps to protect against the spread of the virus that causes COVID-19 should be taken by each employer consistent with CDC guidance. Each of the Provider Plaintiffs has already implemented procedures and precautions to ensure that it can safely operate in Michigan during the COVID-19 pandemic.
30. Grand Health was established in 2008 and operates out offices in Grand Rapids, Petoskey, and Grand Haven, Michigan. Its medical staff—which currently consists of eight licensed medical doctors and a full staff of physicians’ assistants, dieticians, exercise physiologists, and behaviorists—provides a full complement of surgical and non-surgical weight loss solutions for patients. Grand Health’s physicians provide not only bariatric surgery services but also general surgery services, including laparoscopic cholecystectomy (gallbladder removal), appendectomy, and various types of hernia surgery and repair. Grand Health also provides endoscopic and colonoscopy services. All endoscopy services and pre- and post-operative care and medical programs take place at Grand Health’s offices, but all surgeries occur at area hospitals, at which Grand Health’s physicians have admitting privileges.
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31. Grand Health and its patients have been enormously impacted by Governor Whitmer’s prohibition against the provision of bariatric and “non-essential” medical services since March 21, 2020. Obesity is one of the highest risk factors for morbidity, and timely preventive care is vital for many of Grand Health’s patients. Many of Grand Health’s weight-loss patients are lower income individuals, many of whom require surgery as a prerequisite for joint replacement surgery. The delay imposed by the prohibition of bariatric surgery has caused these individuals to suffer agonizing pain in the interim. Grand Health physicians have also seen an increase in cases where patients have been unable to obtain medical care until their condition has progressed far beyond a state in which it would have been easily treatable. For example, patients are obtaining surgery only after their gallbladder is gangrenous or their appendix is ruptured, instead of obtaining care when their condition was in a much less severe state. Although Grand Health continued to provide minimal levels of emergent care to its patients, Grand Health furloughed most of its employees and has pushed back almost all of its patients’ procedures and post-operative support meetings. If the shutdown continues, Grand Health will almost certainly go out of business, and its medical staff will be out of work.
32. If permitted to fully reopen, there is no question that Grand Health can conduct its operations in a manner that will take precautions to prevent the transmission of the virus that causes COVID-19. All surgeries will occur at a hospital, consistent with surgical sanitation and COVID-19-compliant guidelines. Grand Health has implemented a plan under which its health care providers will screen all patients and staff when they come in, taking temperature and pulse oximeter readings. Most patients will wait in their car instead of in the waiting room; for those who cannot do so, Grand Health’s waiting room has been reduced to halfoccupancy, thereby allowing for social distancing. Finally, staff in Grand Health’s endoscopy
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center will wear medical facemasks, including N95 respirator masks during any medical procedure, and will use half of the available surgical bays in order to ensure appropriate distance between medical teams.
33. Wellston Medical Center and Primary Health Services are primary care clinics in West Michigan. They serve patients in primarily rural communities surrounding Wellston and Ludington. Over 90% of their patients are on Medicaid or Medicare. Much of the medical care they provide is not emergency care, but it is extremely important. For example, one patient had a stent in his ureter as a result of a kidney stone. The stent was supposed to be removed in two weeks. That procedure could not be scheduled for two months, resulting in a bladder and kidney infection. The infection required hospitalization and emergency surgery.
34. These clinics have been devastated by the Governor’s executive orders. Prior to March 2020, these clinics treated an average of 90-100 patients per day, with 16 staff members. Under the Governor’s executive orders, the clinics cannot perform what the Governor deems “non-essential procedures” meaning a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider. When Executive Order 2020-17 was issued, the number of patients who were allowed to be treated dropped by 95%. If the shutdown continues, these clinics will almost certainly go out of business, and their medical staff will be out of work.
35. Plaintiff Jeffery Gulick was scheduled to undergo knee replacement surgery on his right knee on March 20, 2020, at Memorial Hospital in Owosso. Under the Governor’s executive orders, his knee replacement surgery cannot go forward. Additionally, he could not receive follow up care for the knee replacement surgery that had been performed on his left knee.
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He is in excruciating pain and unable to get prescription pain medication until he can be seen on June 11. As a result of the debilitating pain, Mr. Gulick has had to reduce his work hours by 80%.
36. If permitted to reopen, there is no question that Wellston Medical Center and Primary Health Services can conduct their operations in a manner that will take precautions to prevent the transmission of the virus that causes COVID-19. All treatment will occur in a manner that is consistent with appropriate sanitation and COVID-19-compliant guidelines. Patients and staff will be screened for signs of COVID-19 and contact with those with COVID-19. No more than two patients per hour will be scheduled. Finally, staff and patients will wear facemasks, and the reception area will be equipped with a clear barrier. Governor Whitmer Issues Executive Orders Declaring a State of Emergency
37. On March 11, 2020, Governor Whitmer issued Executive Order 2020-04, which proclaimed a state of emergency under both the Emergency Management Act, Mich. Comp. Laws § 30.403, and the Emergency Powers of the Governor Act of 1945, Mich. Comp. Laws § 10.31. (Exhibit 1).
38. Governor Whitmer’s executive order identified the COVID-19 pandemic as the basis for her declaration of a state of emergency under both statutory regimes.
39. The Emergency Powers of the Governor Act provides that all orders and rules promulgated by the governor during the state of emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Mich. Comp. Laws § 10.31(2).
40. The Emergency Management Act provides that a governor’s declaration of emergency may last only 28 days, after which “the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an
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extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.” Mich. Comp. Laws § 30.403(4).
41. On April 1, 2020, Governor Whitmer issued Executive Order 2020-33, which replaced Executive Order 2020-04, declared a state of emergency pursuant to the Emergency Powers of the Governor Act, and proclaimed a state of disaster and a state of emergency under the Emergency Management Act. (Exhibit 2). These declarations were based on the same circumstances—that is, the dangers posed by the virus that causes COVID-19—that formed the basis of Executive Order 2020-04.
42. On April 1, 2020, Governor Whitmer also requested that the Michigan Legislature extend the state of emergency by an additional 70 days, as contemplated by the Emergency Management Act.
43. On April 7, 2020, the Michigan Senate and Michigan House of Representatives denied Governor Whitmer’s request to extend the state of emergency for an additional 70 days. Instead, the Michigan Legislature extended the state of emergency declared by Governor Whitmer until April 30, 2020, but not beyond. Governor Whitmer Issues Numerous Executive Orders, Including an Order That Prohibits the Provision of All Non-Emergency Medical Care
44. Meanwhile, Governor Whitmer issued many additional executive orders, invoking emergency powers that the Governor claims flow from the state of emergency declared under Executive Orders 2020-04 and 2020-33. As of May 8, 2020, Governor Whitmer had issued more than 70 executive orders related to the COVID-19 pandemic, creating and changing substantive state law and regulations that impact and burden wide swaths of the economy. A chart
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summarizing the substantive changes to the law imposed by Governor Whitmer’s executive orders is attached as Exhibit 3.6
45. One of these orders, Executive Order 2020-17, took effect on March 21, 2020 and remains in effect until the termination of the Governor’s declaration of emergency. It provides that, until the termination of the Governor’s declaration of a state of emergency, most medical providers are prohibited from providing any “medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (Exhibit 4).
46. Executive Order 2020-17 specifically prohibits medical providers from providing any bariatric surgery and joint replacement surgery services, “except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient.”
47. There are significant penalties for health care providers who violate the executive order. Executive Order 2020-17 provides that any willful violation of its provisions is a misdemeanor.
48. On May 3, 2020, Dr. Joneigh Khaldun, Chief Deputy Director Health at the Michigan Department of Health and Human Services, issued a general letter to Michigan health care providers, noting, “I recognize some have questions about Executive Order 2020-17, including what is allowable under the order and how to start to re-engage with patients for important care.” Dr. Khaldun then provided her own interpretation of the language of Executive Order 2020-17 prohibiting non-essential medical care: “This wording is intended to be flexible, preserve clinician judgement, and encourage consideration on an individual basis of which patient
6 The chart attached as Exhibit 3 was last updated as of 5 p.m. Eastern Time on May 11, 2020. 13

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services can be safely delayed without resulting in a significant decline in health. EO 2020-17 gives providers broad discretion to apply this standard.” (Exhibit 5).
49. It is not clear that Dr. Khaldun’s interpretation of the Executive Order has any weight. Further, regardless of Dr. Kaldun’s correspondence, Executive Order 2020-17 continues to prohibit bariatric and joint replacement surgeries and continues to impose criminal penalties for those who willfully violate the order. Governor Whitmer Issues Several Stay-at-Home Orders Prohibiting Most In-Person Business Operations
50. Along with her other executive orders, Governor Whitmer issued at least five iterations of “Stay Home, Stay Safe” orders, specifically Executive Orders 2020-21, 2020-42, 2020-59, 2020-70, and 2020-77. Each of those orders imposes sweeping limitations on Michigan citizens’ ability to travel and prohibits huge numbers of workers in Michigan from reporting to work.
51. On March 23, 2020, Governor Whitmer issued Executive Order 2020-21, citing as authority the Emergency Management Act and the Emergency Powers of the Governor Act. (Exhibit 6).
52. Executive Order 2020-21 went into effect on March 24, 2020. Among other restrictions, Executive Order 2020-21 restricts travel throughout the state and prohibits business operations “that require workers to leave their homes or places of residence” unless those workers are “critical infrastructure workers.” (Exhibit 6, ¶ 4(a)). “Critical infrastructure workers” are defined as “those workers described” in a March 19, 2020 memorandum prepared by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (the “March 19 CISA guidance”), along with a short list of other workers. (Id. ¶ 8). The March 19
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CISA guidance is attached as Exhibit 7. Executive Order 2020-21 imposes criminal penalties for willful violations of the order. (Exhibit 6, ¶ 17).
53. On April 9, 2020, Governor Whitmer issued Executive Order 2020-42, attached as Exhibit 8, rescinding and replacing her previous stay-at-home order and extending the shutdown until April 30, 2020. Like the previous executive order, Executive Order 2020-42 prohibits in-person work by workers who are not “critical infrastructure workers” and imposes criminal penalties for willful violations of the order. (Exhibit 8, ¶¶ 4, 17).
54. Executive Order 2020-42 imposes significant restrictions that curtail basic liberties to a greater extent than were imposed by any other shutdown order issued by any other state. For example, under Executive Order 2020-42 large retail stores are prohibited from advertising almost all of their products and are also prohibited from selling products that are deemed nonessential, including materials related to the construction industry, such as paint, carpet, and flooring. Executive Order 2020-42 does not explain the rationale for prohibiting the purchase of these items, nor does it indicate how the prohibition of their sale was related to abating the emergency posed by COVID-19.
55. On April 24, 2020, Governor Whitmer issued Executive Order 2020-59, which became effective immediately and rescinded Executive Order 2020-42. (Exhibit 9).
56. Executive Order 2020-59 lifts certain business restrictions, permitting workers who are necessary to perform certain defined “resumed activities” to perform in-person work. Those “resumed activities” are defined as: (a) workers who process or fulfill remote orders for goods for delivery or curbside pickup; (b) workers who perform bicycle maintenance or repair; (c) workers for garden stores, nurseries, and lawn care, pest control, and landscaping operations; (d) maintenance workers and groundskeepers for places of outdoor recreation; and (e) workers for
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moving or storage operations. Businesses whose workers perform some “resumed activities” must implement enhanced social-distancing rules and measures listed in Sections 11(h) and 12 of Executive Order 2020-59. As with all of the other Stay Home, Stay Safe orders, a willful violation of Executive Order 2020-59 is a criminal misdemeanor.
57. On May 1, 2020, Governor Whitmer issued another update to the Stay Home, Stay Safe order, Executive Order 2020-70, which became effective immediately and rescinded Executive Order 2020-59. (Exhibit 10).
58. Executive Order 2020-70 continues the restrictions of the previous Stay Home, Stay Safe orders, but lifts restrictions on additional “resumed activities,” including workers in the construction industry and the building trades, workers in the real-estate industry, workers necessary to the manufacture of goods that support workplace modification to forestall the spread of COVID-19 infections, and outdoor workers. In addition to the list of enhanced social-distancing rules and measures applicable to all resumed activities, construction businesses must implement other stringent measures listed in Section 11(i) of Executive Order 2020-70.
59. On May 7, 2020, Governor Whitmer issued Executive Order 2020-77, which became effective immediately and rescinded Executive Order 2020-70. This order continues the restrictions of the previous Stay Home, Stay Safe orders, but permits manufacturing workers to resume operations, subject to yet another set of stringent, enhanced workplace safety requirements listed in Section 11(k) of Executive Order 2020-77. (Exhibit 11). This is the controlling stay-at-home order as of the date of the filing of this complaint. As with all of the other Stay Home, Stay Safe orders, a willful violation of Executive Order 2020-77 is a criminal misdemeanor.
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Governor Whitmer’s Executive Orders Cause Enormous and Immediate Confusion 60. Almost immediately after her first shelter-in-place order (Executive Order
2020-21) was issued, the Attorney General and Governor were inundated with requests for clarification of the order. On March 24, 2020, Governor Whitmer observed, “We knew that there would be confusion, there always is.”7
61. On March 25, the Attorney General’s office admitted, “I think it’s a difficult executive order to really wrap your arms around.”8 The Attorney General’s office explained that its process of clarifying the meaning of the order occurred on an ad hoc, case-by-case basis: “Every instance we get a call asking about whether or not businesses essential is being first reviewed by our office and then shared with the governor’s office so that we can begin to get some clarity around the executive order.”
62. Meanwhile, the portion of Attorney General Nessel’s official website that provides guidance to businesses and law enforcement regarding the definition of “critical infrastructure workers” has linked to the updated CISA guidance, instead of to the March 19 CISA Guidance. (Exhibit 12). As a result, a business seeking guidance from the Attorney General’s office as to whether it performs “critical infrastructure” operations is directed to the updated CISA guidance that Executive Orders 2020-42, 2020-59, 2020-70, and 2020-77 explicitly reject.
7 Mikenzie Frost, Gov. Whitmer says she understands confusion surrounding stay-at-home, urging patience, WWMT, Mar. 24, 2020, available at https://wwmt.com/news/state/gov-whitmer-saysshe-understands-confusion-surrounding-stay-at-home-urging-patience (last visited May 12, 2020). 8 Malachi Barrett, Michigan Attorney General asks local law enforcement to handle violations of coronavirus stay home order, MLive, Mar. 25, 2020, available at https://www.mlive.com/publicinterest/2020/03/michigan-attorney-general-asks-local-law-enforcement-to-handle-violations-ofcoronavirus-stay-home-order.html (last visited May 12, 2020).
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63. Despite the admitted confusion created by the orders, the Attorney General’s office reiterated that violating the order could result in criminal penalties and forced closure of a business by law enforcement.9 The MDHHS Issues an Order Purporting to Authorize Enforcement Action Against Violations of Executive Orders and FAQs That Did Not Yet Exist
64. Meanwhile, Robert Gordon, the Director of the Michigan Department of Health and Human Services (“HHS”), issued an emergency order on April 2, 2020 that purports to impose penalties based on the constantly changing FAQ answers that are posted on the Governor’s website. (Exhibit 13).
65. Specifically, the HHS order provides that “[t]he procedures and restrictions outlined in . . . EO 2020-21 and [its] accompanying frequently asked questions (FAQs) that may be updated from time-to-time (available at www.michigan.gov/coronavirus) are necessary to control the epidemic and protect the public health.” (Exhibit 13, ¶ 1).
66. The HHS order further provides that “[l]aw enforcement is specifically authorized to bar access to businesses and operations that fail to comply with the procedures and restrictions outlines in . . . EO 2020-21 and its accompanying FAQs.” (Exhibit 13, ¶ 4). The HHS order applies “to any future Executive Order that may be issued that rescinds and replaces . . . EO 2020-21.” (Exhibit 13, ¶ 4).
67. As recognized in the HHS order, the FAQs accompanying Executive Order 2020-59 were updated and changed over time. In other words, the HHS order purports to determine that various executive orders and FAQ responses are “necessary to control the epidemic” even though some of the executive orders and FAQ responses were not yet in existence. It is impossible
9 Virginia Gordan, Local police to handle reports of violations of Gov. Whitmer’s stay-at-home order, Michigan Radio, Mar. 25, 2020, available at https://www.michiganradio.org/post/localpolice-handle-reports-violations-gov-whitmers-stay-home-order (last visited May 12, 2020).
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for HHS to have determined that future executive orders and FAQ responses were necessary when they did not yet exist and when HHS therefore did not know their substance or content. It is also impossible for businesses to comply with constantly changing and sometimes conflicting FAQ responses. The Legislature Declines to Extend the Governor’s Emergency Declaration, and the Governor Unilaterally Determines to Extend It Anyway
68. As indicated, the Emergency Management Act requires the Governor to declare that a state of emergency is terminated after 28 days if the legislature does not extend the emergency, and the Emergency Powers of the Governor Act states that any emergency declared under that statute terminates when the Governor declares that the emergency is terminated.
69. On April 30, 2020, the Michigan Legislature refused to extend Governor Whitmer’s declarations of a state of emergency and a state of disaster.
70. Immediately after the Michigan Legislature refused to extend her emergency declarations, Governor Whitmer issued on April 30, 2020 three additional Executive Orders: 2020-66, 2020-67, and 2020-68.
71. Executive Order 2020-66 terminates the Governor’s declarations of a state of emergency and a state of disaster based upon the COVID-19 pandemic, as required under the Emergency Management Act. (Exhibit 14).
72. Executive Order 2020-68 was issued only minutes after Executive Order 2020-66 was issued. Executive Order 2020-68 purports to re-declare under the Emergency Management Act exactly the same states of disaster and emergency that the Legislature refused to extend and which had just been terminated under Executive Order 2020-66. These renewed states of disaster and emergency purported to remain effective through May 28, 2020. (Exhibit 15).
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73. Executive Order 2020-67 states that a “state of emergency remains declared across Michigan” under the Emergency Powers of the Governor Act and that the state of emergency remains in effect until May 28, 2020. The state of emergency that Executive Order 2020-69 references is exactly the same state of emergency that the Governor declared to be terminated in Executive Order 2020-66. (Exhibit 16). The Governor Continues to Issue Revised Stay Home, Stay Safe Orders
74. After re-declaring a state of emergency notwithstanding the Legislature’s refusal to extend it, Governor Whitmer continued to issue revised Stay Home, Stay Safe orders.
75. On May 7, 2020, Governor Whitmer issued Executive Order 2020-77, continues the restrictions of the previous Stay Home, Stay Safe orders, with limited exceptions.
76. Even though CISA updated its guidance twice—first on March 28 and again on April 17, 2020 (Exhibits 17 & 18)—Executive Order 2020-77 explicitly rejects both versions of the updated CISA guidance and continues to rely upon the March 19 CISA guidance for the definition of “critical infrastructure workers.” The Executive Order does not explain its rationale for continuing to rely upon superseded and outdated CISA guidance.
77. By not adopting the most current CISA guidance, Executive Order 2020-77 relies on a different, more restrictive definition of “critical infrastructure workers” than the definition relied upon by other states, which creates confusion for businesses and their employees and needlessly restricts economic activity in the State of Michigan.
78. Executive Order 2020-77 does not provide any process through which a company that is not designated as “critical infrastructure” may challenge that designation.
79. A willful violation of Executive Order 2020-77 is a misdemeanor which could result in imprisonment for up to 90 days and a $500 fine.
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80. After the Legislature refused to extend the Governor’s declaration of emergency past April 30, Attorney General Nessel issued a letter to law enforcement officials asserting that the Governor’s executive orders—including her Stay Home, Stay Safe orders— continued to be valid under the Emergency Powers of the Governor Act and directing that law enforcement officials continue to enforce the Governor’s orders. Notably, the Attorney General did not defend the Governor’s assertion of authority to unilaterally extend the emergency under the Emergency Management Act. (Exhibit 19).
81. Due to the harsh penalties imposed for violating Executive Order 2020-77 and the HHS order—including criminal penalties and potential revocations of necessary business licenses—the Plaintiffs are in a very difficult position. Either they need to cease operations despite the fact that Executive Orders 2020-17 and 2020-77 may be invalid or may allow them to continue, or they need to continue operations under the threat of criminal prosecution and loss of their licenses.
82. The Plaintiffs have suffered and will suffer immeasurable and irreparable harm if Executive Orders 2020-17 and 2020-77 are continued and/or enforced against them. If the Provider Plaintiffs are prohibited from providing medical treatment, they will almost certainly become insolvent or be forced to permanently close their operations. If Mr. Gulick is further delayed from obtaining knee replacement surgery, he will continue suffering unnecessary pain. At minimum, they will suffer irreparable harm in the form of lost business goodwill within the community and with their patients, particularly if they are perceived as engaging in conduct that Executive Order 2020-77 has deemed to be criminal in nature.
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Causes of Action Count I – Declaratory Judgment (Unlawful Exercise of Authority Under State Law) 83. Plaintiffs incorporate all preceding allegations. 84. Executive Order 2020-17 and Executive Order 2020-77 are unenforceable because the Governor lacked authority to issue them or renew them after April 30, 2020. 85. In Executive Orders 2020-4 and 2020-33, Governor Whitmer proclaimed states of emergency and disaster based on COVID-19 and stated that those proclamations would terminate when the emergency conditions no longer exist “consistent with the legal authorities upon which this declaration is based and any limits on duration imposed by those authorities,” including Section 3 of the Emergency Management Act, which limits the Governor’s authority to declare disasters or emergencies to 28 days. See Mich. Comp. Laws § 30.403(3), (4). 86. To support an executive order, both the Emergency Management Act, Mich. Comp. Laws § 30.403 and the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31, require the continuation of the previously proclaimed states of emergency or disaster. 87. The Emergency Powers of the Governor Act provides that all orders and rules promulgated by the governor during the state of emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Mich. Comp. Laws § 10.31(2). 88. The Emergency Management Act provides that a governor’s declaration of emergency may last only 28 days, after which “the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.” Mich. Comp. Laws § 30.403(4) (emphasis added).
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89. In issuing Executive Order 2020-33, Governor Whitmer invoked only a single emergency—namely, the COVID-19 pandemic—as grounds for exercising her powers under the Emergency Management Act and the Emergency Powers of the Governor Act.
90. The Michigan Legislature did not approve Governor Whitmer’s request for an extension of the declaration of emergency beyond April 30, 2020. Accordingly, as a matter of law, the state emergency must be terminated. See Mich. Comp. Laws § 30.403. Governor Whitmer terminated the state of emergency and disaster declaration supporting Executive Order 2020-77 on April 30, 2020 by issuing Executive Order 2020-66.
91. That declaration terminated and ended any emergency declaration under the Emergency Powers of the Governor Act and all “orders, rules and regulations” promulgated by the Governor based on that emergency “cease to be in effect” and “no longer exist[].” See Mich. Comp. Laws § 10.31(2). Any other interpretation of the Emergency Powers of the Governor Act would not only render the Emergency Management Act entirely superfluous but would also violate the Separation of Powers Clause contained in Michigan’s Constitution.
92. Both houses of the Michigan Legislature have not approved an extension of emergency or disaster as declared by the Governor beyond April 30, 2020 and the state of emergency has been terminated by the Governor. Accordingly, Executive Orders 2020-17 and 2020-77 are unenforceable.
93. After terminating the emergency underlying Executive Orders 2020-17 and 2020-77, Governor Whitmer issued an additional two Executive Orders on April 30, 2020, Nos. 2020-67 and 2020-68. Those Orders purport to “continue a statewide emergency and disaster” under the Emergency Powers of the Governor Act and the Emergency Management Act and serve
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as the basis to support the Governor’s position that her executive orders predicated on the terminated state of emergency remain enforceable.
94. The Orders constitute an attempt to undo and negate the termination of the state of emergency that the Governor was required to end as a matter of law. They have no legal force or effect, and cannot void the termination of the state of emergency foundational to her other Executive Orders. The Governor cannot terminate the emergency as required by law and “unterminate” it or declare it continued in the next breath without running afoul of the law upon which she relied to support her Executive Orders.
95. There is no new emergency. The emergency upon which the Governor’s subsequent executive orders rely is exactly the same emergency that Executive Order 2020-66 terminated. The Governor’s attempts to circumvent state law cannot be sanctioned, because they not only violate the Separation of Powers clause in the Michigan Constitution, but would also render the statutory language requiring legislative permission for an extension of a proclaimed state of emergency beyond 28 days superfluous. It is well-settled that statutes should be interpreted to be constitutional if such a construction is permitted by the language.
96. The Governor cannot unilaterally extend the states of emergency or disaster in contravention of the state laws that she relies on to justify her executive orders, including Executive Orders 2020-17 and 2020-77. Any contrary interpretation would violate basic principles of separation of powers. It would unlawfully permit the Governor to declare as many emergencies as she wanted, for as long as she wanted, without any legislative checks on the Governor’s law making by emergency executive order.
97. Further, to the extent that Mich. Comp. Laws § 10.31 is the basis of the Governor’s emergency declaration, it permits the Governor only to issue “reasonable” orders,
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rules, and regulations. If applied to prohibit the Plaintiffs’ operations, Executive Order 2020-17 and 2020-77 are unreasonable regulations and are not permitted by Mich. Comp. Laws § 10.31(1).
98. The Plaintiffs have been informed by law enforcement and other officials that their operations are prohibited under Executive Orders 2020-17 and 77.
99. Plaintiffs have no adequate remedy at law for this continuing unlawful action by the Defendants.
Count II – Declaratory Judgment (Violation of Separation of Powers and Non-Delegation Clauses)
Michigan Constitution, Art. III, § 2, and Art. IV, § 1 100. Plaintiffs incorporate all preceding allegations. 101. Executive Orders 2020-17 and 2020-77 are unconstitutional and unenforceable against the Plaintiffs because they are based on impermissible delegations of legislative authority in violation of the Michigan Constitution. 102. The Separation of Powers Clause in the Michigan Constitution provides that “[t]he powers of government are divided into three branches: legislative, executive, and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Mich. Const. (1963) art. III, Section 2. 103. Article IV, Section 1 of the Michigan Constitution prohibits the delegation of “legislative power.” The essential purpose of this prohibition is to “protect the public from misuses of delegated power.” Blue Cross and Blue Shield of Mich. v. Milliken, 422 Mich. 1, 51 (1985). 104. A delegation of power through legislation cannot be lawful if it permits executive law making. If a delegation of authority to the executive branch is not sufficiently
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Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.26 Page 26 of 40
specific and/or fails to establish prescribed boundaries, or if the executive branch acts beyond specific boundaries in the legislation, the executive’s actions will be constitutionally invalid.
105. Executive Order 2020-17 and 2020-77 are unlawful and unenforceable because the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31, violates the Separation of Powers and the non-delegation clauses to the extent that it is interpreted as a delegation to the Governor of total legislative power during a proclaimed emergency for an indefinite period of time.
106. The Emergency Powers of the Governor Act provides no standards to guide or allow a proper delegation of legislative authority to the executive branch. This delegation of authority is completely open-ended; it permits unbridled “law making” by the Governor. The statute has no temporal, durational, substantive, or legislative checks. It gives the Governor carte blanche to regulate and restrict all manner of economic activity, all human interactions, and all movement within the state. A summary of the impermissible law making conducted by Governor Whitmer through executive orders based on this purported grant of statutory authority is attached. (Exhibit 3). Accordingly, Governor Whitmer’s executive actions predicated on this Act are not enforceable.
107. In the event that the Emergency Powers of the Governor Act does not facially violate the Separation of Powers and non-delegation clauses, Executive Orders 2020-17 and 2020-77 are unlawful and unenforceable because Governor Whitmer has applied any authority granted to her under the Emergency Powers of the Governor Act arbitrarily, unreasonably, and in violation of the Separation of Powers Clause. The Governor has also failed to comport with the terms of the Act.
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108. Governor Whitmer explained in an interview on April 27, 2020 her view that “[w]e have to look at this [permitting Michigan businesses to resume operations] as a dial— not a switch, not on and off—but as a dial we can increase or decrease if necessary.” Regulating how, when, and what economic activity will be permitted and which Michigan citizens may engage in their rights to earn a living over a lengthy period of time is a legislative function, not an executive one.
109. Executive Order 2020-17 and 2020-77 are also unlawful and unenforceable because the Emergency Management Act, Mich. Comp. Laws § 30.403, violates the Separation of Powers and the non-delegation clauses by giving the Governor total legislative power during a unilaterally-determined emergency for up to 28 days and thereafter with legislative approval.
110. The Emergency Management Act provides no standards to guide or allow a proper delegation of legislative authority to the executive branch; it permits unbridled “law making” by the Governor. This delegation of authority is completely unconstrained. It provides only a temporal check in requiring the Governor to terminate any declared emergency or disaster after 28 days unless both houses of the Michigan Legislature agree to extend the state of emergency or disaster. See Mich. Comp. Laws § 30.403(3) & (4). A summary of the impermissible law making conducted by Governor Whitmer through executive orders based on this purported grant of statutory authority is attached. (Exhibit 3).
111. Even if the Emergency Management Act does not facially violate the Separation of Powers and non-delegation clauses, Executive Orders 2020-17 and 2020-77 are also unlawful and unenforceable because Governor Whitmer has applied any authority granted to her under the Emergency Management Act arbitrarily, unreasonably, and in violation of the Separation of Power clause. The Governor has also failed to comport with the terms of the Act.
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112. Plaintiffs have no adequate remedy at law for this continuing unlawful action by the Defendants.
Count III – Violation of Due Process – Void for Vagueness U.S. Constitution, Amendment XIV and 42 U.S.C. § 1983;
Michigan Constitution, Article I, § 17 113. Plaintiffs incorporate all preceding allegations. 114. To the extent that Executive Order 2020-17 and 2020-77 are interpreted to bar the Plaintiffs’ operations, the Executive Orders are unconstitutionally vague as applied to the Plaintiffs. 115. A basic principle of due process is that an enactment is void for vagueness if its prohibitions are not clearly defined. Executive Order 2020-17 and 2020-77 are unconstitutionally vague because they inappropriately chill protected conduct and invite selective enforcement. 116. Executive Order 2020-17 does not give the Plaintiffs, or any other person of ordinary intelligence, a reasonable opportunity to know what is prohibited and to be able to act in accordance with the directives. The assessment of which medical treatments are deemed essential are largely left to the discretion of healthcare providers, but there are no standards or metrics by which healthcare providers can ensure that their decisions do not expose them to criminal liability. 117. Dr. Khaldun’s correspondence underscores that the language of Executive Order 2020-17 is subject to broad interpretation, further undermining the ability of Executive Order 2020-17 to provide reasonably precise guidance to healthcare providers. Due to the criminal penalties imposed by the executive order, these vagueness concerns are heightened.
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118. Executive Order 2020-77 does not give the Plaintiffs, or any other person of ordinary intelligence, a reasonable opportunity to know what is prohibited and to be able to act in accordance with the directives. The executive order defines critical infrastructure workers as those “who are necessary to sustain or protect life,” which “include some workers in each of” a number of business sectors. § 4(a), § 8 (emphasis added). Both facets of the definition are unclear.
119. Executive Order 2020-77 does not provide any explicit standards for determining whether particular operations are or are not engaged in critical infrastructure activity. The executive order does not clarify why certain industries were declared to be critical infrastructure and others were not; instead, it simply references a superseded list provided by CISA, rejects the updated version of the CISA guidance, and adds a handful of other workers deemed critical, such as insurance industry workers, labor union officials, landscapers, and real estate sales workers. The rationale for these decisions—including the decision to allow real estate officials to resume operations but to prohibit other in-person commercial activities—is entirely opaque. Nowhere does Executive Order 2020-77 explain the reason for its differentiation between these industries, explain why it continues to rely on superseded CISA guidance, or explain the standards to be applied by law enforcement officials when determining whether particular business operations fall within particular categories.
120. The office of Michigan’s Attorney General has acknowledged that the standards adopted in Executive Order 2020-77 are “difficult . . . to really wrap your arms around.” The Attorney General’s office has also indicated that it has attempted to clarify the meaning of the order with the Governor’s office on an ad hoc basis. Neither the Governor nor the Attorney General has outlined the criteria under which those ad hoc determinations are evaluated.
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121. The definition of critical infrastructure workers is not just confusing for the person of ordinary intelligence—it is also confusing for the law enforcement personnel tasked with enforcing the executive order. Law enforcement agencies have been given no explicit standards to aid in their determinations of whether businesses such as the Plaintiffs are operating in accordance with Executive Order 2020-77, which invites arbitrary and discriminatory enforcement.
122. The continually changing FAQs found on the Governor’s website do not help. The meaning of the executive order turns on its plain language, not on extra-textual or afterthe-fact statements, particularly when those statements change almost daily. The FAQs cannot alter, overcome, or conflict with the plain language in Executive Order 2020-77.
123. Further, the FAQs have morphed over time in ways that cannot be reconciled with the plain text of Executive Order 2020-77.
124. Adding to the confusion, the State’s guidance for businesses included in the Attorney General Nessel’s official website continues to link to the updated CISA guidance, instead of to the March 19 CISA Guidance. (Exhibit 12). As a result, businesses seeking guidance from the Attorney General’s office as to whether they perform “critical infrastructure” operations are directed to the updated CISA guidance that Executive Order 2020-77 explicitly rejects.
125. Executive Orders 2020-17 and 2020-77 are impermissibly and unconstitutionally vague as applied to the Plaintiffs.
Count IV – Violation of Due Process – Procedural Due Process U.S. Constitution, Amendment XIV and 42 U.S.C. § 1983; Michigan Constitution, Article I, § 17
126. Plaintiffs incorporate all preceding allegations.
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127. To the extent that Executive Order 2020-17 or 2020-77 are interpreted to bar the Plaintiffs’ operations, the Executive Orders violate the Plaintiffs’ procedural due process rights.
128. Even in a pandemic, the Plaintiffs are entitled to the basic protections of due process. See Friends of DeVito v. Wolf, ___ A.3d ___, 2020 WL 1847100, at *19-21 (Pa. Apr. 13, 2020). “The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action.” Id. at *19-20 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 164–65 (1963)).
129. The fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner before one is finally deprived of a property interest.
130. Elimination of the Provider Plaintiffs’ ability to engage in business operations deprives the Provider Plaintiffs of a property interest. As such, the Provider Plaintiffs are entitled at minimum to a post-deprivation hearing that provides them with a meaningful opportunity to challenge the designation of their businesses as non-critical infrastructure that must be shuttered in order to control the spread of the pandemic.
131. Executive Order 2020-77 provides no process through which to challenge a business’s designation as non-critical infrastructure. Nor does it outline criteria that would serve as a reasonable guide to such a determination. It provides no pre-deprivation or post-deprivation process at all.
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132. Executive Order 2020-17 likewise provides no procedure or process through which to challenge the determination that certain medical treatments—such as bariatric surgery or joint replacement—are non-essential.
133. By providing no mechanism through which the Provider Plaintiffs may challenge these determinations or the necessity for shuttering their operations and by failing to identify any criteria that guide the determination of whether certain medical procedures are “essential” or constitute a threat vector for the spread of the COVID-19 pandemic, Executive Orders 2020-17 and 2020-77 violate procedural due process and must be enjoined to prevent further injury and irreparable harm to Plaintiffs.
Count V – Violation of Due Process – Substantive Due Process U.S. Constitution, Amendment XIV and 42 U.S.C. § 1983; Michigan Constitution, Article I, § 17
134. Plaintiffs incorporate all preceding allegations. 135. To the extent that Executive Order 2020-17 and 2020-77 are interpreted to bar the Provider Plaintiffs’ operations, they violate the Provider Plaintiffs’ substantive due process rights. 136. Two fundamental rights are implicated by Executive Order 2020-17 and 2020-77—the right to intrastate travel and the right to practice one’s chosen profession. Enactments that directly curtail these fundamental rights are subject to strict scrutiny. 137. To satisfy strict scrutiny, the government must prove that the infringement of the Provider Plaintiffs’ rights is narrowly tailored to serve a compelling state interest. 138. While the government can likely show that protection of public health in the face of a global pandemic is an important state interest, after the curve has been flattened, the
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facts do not support a finding that this interest is compelling, and the government has made no attempt to narrowly tailor Executive Order 2020-17 or 2020-77 to serve that interest.
139. Executive Order 2020-17 prohibits a variety of medical treatments that are deemed non-essential. However, there has been no showing that providing these medical treatments would increase the risk of transmission of the virus that causes COVID-19 or detract from the protection of public health.
140. Executive Order 2020-77 specifically advises that it “must be construed broadly.” And while the Executive Order’s stated purpose is to limit person-to-person contact, there has been no demonstration of why the government must prohibit all of the Provider Plaintiffs’ operations—including those operations that do not require in-person contact or interaction beyond that which is necessary to provide or obtain medical treatment.
141. Quarantine orders ordinarily require some degree of individualized analysis indicating that the particular individuals and operations quarantined pose an immediate and direct threat of contributing to the spread of an epidemic. The state has performed no analysis of whether the Provider Plaintiffs’ operations pose any particular or unique threat of contributing to the spread of the virus that causes COVID-19; nor has there been any analysis of whether Provider Plaintiffs’ operations are likely to contribute to the spread of the disease. Without some level of individualized assessment that determines that Provider Plaintiffs or their operations constitute a threat vector for COVID-19, the government cannot demonstrate that prohibiting their operations is narrowly tailored to achieve its public-health goals.
142. Many of the distinctions and requirements imposed by Executive Order 2020-77 also appear to be arbitrary and unrelated to the government’s public-health goals. There
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has been no demonstration showing why the distinctions and requirements between various industries are necessary in order to achieve the government’s public-health purposes.
143. Moreover, Executive Order 2020-77 provides no explanation for the determination to rely upon CISA’s superseded March 19 guidance but to reject the updated versions of CISA’s guidance. The Executive Order does not outline or apply any criteria that guide the determination of which business operations constitute critical infrastructure; instead, the Executive Order defers to CISA’s analysis as to the underlying criteria for making those determinations. Having determined that Michigan will follow CISA’s assessments of which industries employ critical infrastructure workers and failing to outline its own criteria for making such determinations, there is no substantive basis for Executive Order 2020-77 to continue to rely upon guidance that CISA has specifically superseded.
144. Because Executive Orders 2020-17 and 2020-77 impinge upon the Plaintiffs’ fundamental rights and imposes arbitrary distinctions and prohibitions on the Plaintiffs’ conduct, they violate substantive due process as applied to the Plaintiffs.
Count VI – Violation of the Commerce Clause U.S. Constitution, Art. I, § 8, cl. 3 and 42 U.S.C. § 1983 145. Plaintiffs incorporate all preceding allegations. 146. To the extent that Executive Orders 2020-17 and 2020-77 are interpreted to bar the Provider Plaintiffs’ operations, they violate the Commerce Clause of the United States Constitution. 147. Because the Commerce Clause reserves to Congress the power to regulate interstate and foreign commerce, individual states may not unduly regulate commerce.
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148. The Provider Plaintiffs’ provision of goods and services impact the flow of interstate commerce, such that a regulation of the Provider Plaintiffs’ commercial activities is a regulation that impacts interstate commerce.
149. Executive Orders 2020-17 and 2020-77 unduly burden interstate commerce in a manner that is excessive in relation to the alleged benefits of the Executive Orders. The Executive Orders impose enormous burdens on the Provider Plaintiffs’ provision of goods and services by prohibiting the Provider Plaintiffs from engaging in their business operations.
150. The burden of this substantial and stringent regulation dwarfs its alleged benefits. Michigan’s stated public-health goals are not advanced by prohibiting the Provider Plaintiff’s operations because the Provider Plaintiffs can conduct their operations in a manner that complies with the Governor’s stated goals of eliminating unsafe person-to-person contact.
151. As applied to the Plaintiffs, the Executive Orders are therefore an undue burden upon interstate commerce in violation of the Commerce Clause.
For the foregoing reasons, the Plaintiffs respectfully request that the Court enter a judgment against the Defendants and award Plaintiffs the following relief:
a. A declaratory judgment that the Provider Plaintiffs are permitted under Executive Order 2020-17, Executive Order 2020-77, and the HHS order to continue their business operations and Mr. Gulick is permitted under Executive Order 2020-17, Executive Order 2020-77, and the HHS order to obtain knee replacement surgery and other vital medical treatment;
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Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.36 Page 36 of 40

b. Alternatively, a declaration that Executive Order 2020-17 and Executive

Order 2020-77, as applied to the Plaintiffs, violates the Michigan

Constitution, the Fourteenth Amendment, and the Commerce Clause of the

United States Constitution;

c. Preliminary and permanent injunctive relief preventing the Defendants from

enforcing Executive Order 2020-17, Executive Order 2020-77, and the

HHS order against the Plaintiffs;

d. Damages for the violation of the Plaintiffs’ constitutional rights, in an

amount to be proven at trial;

e. Costs and expenses of this action, including reasonable attorneys’ fees, in

accordance with 42 U.S.C. § 1988; and

f. Any further relief that the Court deems appropriate.

MILLER JOHNSON Co-counsel for Plaintiffs

Dated: May 12, 2020

By /s/ James R. Peterson
James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org

36

Case 1:20-cv-00414 VEECRIFFINCAoT. I1ONfiled 05/12/20 PageID.37 Page 37 of 40

- -KciXtr. riA• — ,declare as follows:

1. I am an adult competent to testify to the matters stated herein;

2. I am the

ppc,

of Midwest Institute of

Health, PLLC, d/b/a Grand Health Partners, and in that capacity, I am familiar with the

business of Midwest Institute of Health, PLLC, d/b/a Grand Health Partners, a Plaintiff in

this action;

3. I have read the foregoing Verified Complaint and, based upon my personal knowledge of

the facts stated therein, the facts stated in the Verified Complaint are true to the best of

my knowledge and belief.

4. If called upon to testify, I would competently testify as to the matters stated herein.

5. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct.

CvL_,

Executed

on:

Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.38 Page 38 of 40

VERIFICATION

L3cAr

1

, declare as follows:

I. I am an adult competent to testify to the matters stated herein;

2. I am the

of Wellston Medical Center,

PLLC, and in that capacity, I am familiar with the business of Wellston Medical Center,

PLLC, a Plaintiff in this action;

3. I have read the foregoing Verified Complaint and, based upon my personal knowledge of

the facts stated therein, the facts stated in the Verified Complaint are true to the best of

my knowledge and belief.

4. If called upon to testify, I would competently testify as to the matters stated herein_

5. Pursuant to 28 U.S.C. § 1746, I declare under. penalty of perjury that the foregoing is true

and correct.

Case 1:20-cv-00414 ECF No. 1 filed 05/12/20 PageID.39 Page 39 of 40

VERIFICATION:

eC

declare as follows:

I. I am an adult competent to testify to the matters stated herein;

2. I arn the

043,32`-X—r-• of Primaxy Health Services,

PC, and in that capacity, I am familiar with the business of Primary Health Services, PC,

a Plaintiff in this action;

3. I have read the foregoing Verified Complaint and, based upon my personal knowledge of

the facts stated therein, the facts stated in the Verified Complaint are true to the best of

my knowledge and belief.

4. If called upon to testify, I Would competently testify as to the matters stated herein.

5. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct.

Executed"bri:

Case 1:20-cv-00414 ECF NVoE. R1 IfiFleIdC0A5T/1I2O/2N0 PageID.40 Page 40 of 40 1, Jeffery Gulick, declare as follows:
I. 1 am an adult competent to testify to the matters stated herein; 2. 1 have read the foregoing Verified Complaint and, based upon my personal knowledge of
the facts stated therein, the facts stated in the Verified Complaint are true to the best of my knowledge and belief. 3. If called upon to testify, I would competently testify as to the matters stated herein. 4. Pursuant to 28 U.S.C. § 1746, 1 declare under penalty of perjury that the foregoing is true and correct.
Executed on:

Case 1:20-cv-00414 ECF No. 1-1 filed 05/12/20 PageID.41 Page 1 of 3
EXHIBIT 1

Case 1:20-cv-00414 ECF No. 1-1 filed 05/12/20 PageID.42 Page 2 of 3

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

CARLIN GILCHRIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-4
Declaration of State of Emergency
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 that had not been previously identified in humans and can easily spread from person to person.
COVID-19 has been identified as the cause of an outbreak of respiratory illness first detected in Wuhan City in the Hubei Province of China. Person-to-person spread of the virus has occurred in the United States, with some of those occurring in people with no travel history and no known source of exposure. On January 31, 2020, the United States Department of Health and Human Services Secretary Alex Azar declared a public health emergency for COVID-19, and affected state and local governments have also declared states of emergency.
The State of Michigan has been taking proactive steps to prevent and prepare for the spread of this disease. On February 3, 2020, the Michigan Department of Health and Human Services (MDHHS) activated the Community Health Emergency Coordination Center, and has been working diligently with local health departments, health systems, and medical providers throughout Michigan to make sure appropriate screening and preparations for COVID-19 are being made. On February 28, 2020, I activated the State Emergency Operations Center to maximize coordination with state, local and federal agencies, as well as private partners, and to help prevent the spread of the disease. On March 3, 2020, I created four task forces comprising key state government agencies to coordinate the state's response and work closely with the appropriate community and nongovernmental stakeholders to combat the spread of COVID-19 and assess the impact it may have on Michiganders' day-to-day lives. And throughout this time, the State has been working with schools, businesses, medical providers, local health departments, and residents to make sure they have the information they need to prepare for potential cases.
On March 10, 2020, MDHHS identified the first two presumptive -positive cases of COVID19 in Michigan.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
SEMNARAT1E1E'2N0ROAmLL9I:N3G6
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
Printed by members of:

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The Emergency Management Act, 1976 PA 390, as amended, MCL 30.403(4), provides that "Who governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists."
The Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31(1), provides that "[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, . . . the governor may proclaim a state of emergency and designate the area involved."
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency is declared across the State of Michigan.
2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist.
3. The state of emergency is terminated when emergency conditions no longer exist and appropriate programs have been implemented to recover from any effects of the emergency conditions, consistent with the legal authorities upon which this declaration is based and any limits on duration imposed by those authorities.
Given under my hand and the Great Seal of the State of Michigan.

Date: March 10, 2020 SECRETARY OF SENATE
2020 MAR 11 AHS:02

-GRETCHEN WHITMER GOVERNOR
By the Governor:
ARY OF STATE
FILED WITH SECRETARY OF STA rE
ON a 110 12-'2° AT 13C)9rY\
2

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EXHIBIT 2

Case 1:20-cv-00414 ECF No. 1-2 filed 05/12/20 PageID.45 Page 2 of 4
、

難

GRETCHEN WHITMER GOVERNOR

町 ATE A OF MIT CHIGE AN
OFFICE OF THE GOVERNOR
LANSING

GARLIN GILCHRIST II
LT .GOVERNOR

SECRElRRy ロF SE競倉TETE 2O2り nPn 見 lFP Hl 叱 595 F9 H

EXECUTIVE ORDER

No .2020-33

Expanded emergency and disaster declaration

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 new 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 has spread across Michigan .To date ,the state has 9 ,334 confirmed cases of COVID ・11.9 and 337 people have died of the disease .Many thousands more are infected but have not been tested .Hospitals in Oakland ,Macomb , Wayne ,and Washtenaw counties are reporting that they are full or nearly full to capacity . Ventilators and personal protective equipment are in short supply and high demand. Michigan needs more medical personnel than are currently available to care for COVID ・1919 patients .Dormitories and a convention center are being converted to temporary field hospitals .
The best way to slow the spread of COVID -19 is for people to stay home and keep their distance from others .To that end,and pursuant to the recommendations of public health experts,I have restricted access to places of public accommodation and school buildings in Executive Orders 2020 -20 and 2020 -1 1 ,respectively .And in Executive Order 2020 -21 ,I have limited gatherings and travel,and have required all workers who are not necessary to sustain or protect life to remain at home .
Social distancing,though necessary to combat COVID -19 ,has harsh economic consequences .Almost overnight ,businesses and government agencies have had to dramatically adjust how they work .Where working from home is not possible ,businesses have closed or significantly restricted their normal operations .Michiganclers are losing their jobs in record numbers :over the past two weeks alone ,nearly a half-million of them submitted claims for unemployment insurance .That is more claims than were filed in the entirety of the prior calendar year

GEORGE W.ROMNEY BUILDING ・ 111 SOUTH CAPITOL AVENUE ・LANSING,MICHIGAN 48909 www .michigan .gov
PRINTED IN-HOUSE

Case 1:20-cv-00414 ECF No. 1-2 filed 05/12/20 PageID.46 Page 3 of 4
The economic damage-already severe-will compound with time .On March 19 ,2020, economists at the University of Michigan forecasted that as many as 1 in 10 Michiganders could be unemployed by the fall and that economic sectors that feature substantial social interaction could contract by as much as 50%. As a result ,many families in Michigan will struggle to pay their bills or even put food on the table .
My administration has already taken aggressive measures to mitigate the economic harms of this pandemic .In Executive Order 2020 -18 ,we placed strict rules on businesses to prevent price gouging .In Executive Order 2020-19 ,we put a temporary hold on evictions for families that cannot make their rent .And in Executive Order 2020 -24 ,we expanded eligibility for unemployment benefits .
Nonetheless ,the COVID -19 pandemic has disrupted and will continue to disrupt our economy ,our homes ,and our educational ,civic,social ,and religious institutions ,School closures have made it harder to educate our children and have increased strain on parents, many of whom continue to work from home .The closure of museums and theaters will limit people 's ability to enrich themselves through the arts .And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times .
The health ,economic,and social harms of the COVID -19 pandemic are widespread and severe ,and they demand we do more .
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor .
The Emergency Management Act,1976 PA 390 ,as amended ,MCL 30 .403 (3)-(4),provides that "[t]he governor shall,by executive order or proclamation,declare a state of emergency" and/or a "state of disaster" upon finding that an emergency and/or disaster has occurred or is threatening to occur .
The Emergency Powers of the Governor Act of 1945,1945 PA 302 ,as amended,MCL 10 .3 1 (1),provides that "[d]uring times of great public crisis ,disaster,rioting ,catastrophe , or similar public emergency within the state ...the governor may proclaim a state of emergency and designate the area involved ."
Acting under the Michigan Constitution of 1963 and Michigan law ,I order the following :
1 . A state of emergency and a state of disaster are both declared across the State of Michigan .
2 . The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist
3 . The state of emergency and the state of disaster will terminate when emergency and disaster conditions no longer exist and appropriate programs have been implemented to recover from any effects of the statewide emergency and disaster,
2

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consistent with the legal authorities upon which this declaration is based and any limits imposed by those authorities ,including section 3 of the Emergency Management Act,1976 PA 390 ,as amended,MCL 30 .403 . 4 . Executive Order 2020・4 is rescinded and replaced .All previous orders that rested on Executive Order 2020 -4 now rest on this order. Given under my hand and the Great Seal of the State of Michigan.

Date : April 1 ,2020 Time : 3 :30pm

GRETCHEN WHITMER GOVERNOR
By the Governor :
SECRETARY OF STATE

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EXHIBIT 3

Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.49 Page 2 of 20 Exhibit 3

Governor Whitmer’s Executive Orders Since March 10, 20201

Executive Order

Provisions

Executive Order 2020-04—Declaration of State  Declares a state of emergency “across the state of Michigan.” of Emergency

Executive Order 2020-05—Temporary  Prohibits all assemblages of 250 people or more, excluding industrial work, prohibition on large assemblies and school mass transit, and the purchase of groceries.

closures (Rescinded)

 Orders the closure of all secondary and elementary schools.

Executive Order 2020-06—Temporary  Prohibits visitors from entering healthcare and juvenile justice facilities who are

restrictions on entry into health care and juvenile not necessary for the provision of medical care.

justice facilities (Rescinded)

 Orders that “facilities must perform a health evaluation of all individuals that

are not under the care of the facility each time the individual seeks to enter the

facility, and must deny entry to those individuals who do not meet the evaluation

criteria.”

Executive Order 2020-07—Temporary  Rescinds EO 2020-06.

restrictions on entry into healthcare and juvenile  Orders that healthcare and juvenile justice facilities prohibit any visitors that:

justice facilities (Rescinded)

“are not necessary for the provision of medical care, the support of activities of

daily living, or the exercise of power of attorney or court-appointed

guardianship for an individual under the facility’s care; are not a parent, foster

parent, or guardian of an individual who is 21 years of age or under and who is

under the facility’s care; are not visiting an individual under the facility’s care

that is in serious or critical condition or in hospice care; and are not visiting

under exigent circumstances or for the purpose of performing official

governmental functions.”

Executive Order 2020-08—Enhanced  Prohibits purchasing products from retailer and reselling the products for

restrictions on price gouging (Rescinded)

excessive prices.

 Orders that a person must not offer for sale or sell any product in this state at a

price that is more than 20% higher than what the person offered or charged for

that product as of March 9, 2020, unless the person can demonstrate that the

1 This chart was last updated as of 5 p.m. Eastern Time on May 11, 2020. 1

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price increase was attributable to an increase in the cost of bringing the product to market.

Executive Order 2020-09—Temporary  Declares it was reasonable and necessary to restrict the people of Michigan from

restriction on uses of places of public places of public accommodation.

accommodation (Rescinded)

 Orders the closure of bars, restaurants, coffeehouses, and other places of public

accommodation offering food or beverage for on-site consumption.

 Orders the closure of theaters, gyms, casinos, and other places of amusement

and recreation.

Executive Order 2020-10—Temporary  Suspends “strict compliance with subdivision (a) of subsection (1) of section 29 expansions in unemployment eligibility and cost of the Michigan Employment Security Act, 1936 PA 1, as amended

sharing (Rescinded)

(“Employment Security Act”), MCL 421.29(1)(a),” subject to certain

conditions.

 Suspends “strict compliance with subsection (3) of section 48 of the

Employment Security Act, MCL 421.48(3),” subject to certain conditions.

 Suspends “strict compliance with subsections (4) through (7) of Rule 421.210

is Suspends,” subject to certain conditions.

 Orders that “strict compliance with subdivision (7) of subsection (c) of section

27 of the Employment Security Act, MCL 429.27(c)(7),” subject to certain

conditions.

 Orders that “strict compliance with subdivision (b) of subsection (1) of section

28c of the Employment Security Act, MCL 429.28c(1)(b),” subject to certain

conditions.

 Orders that “an employer or employing unit must not be charged for

unemployment benefits if their employees become unemployed because of an

executive order requiring them to close or limit operations.”

Executive Order 2020-11—temporary  Rescinds EO 2020-05.

prohibition on large assemblies and events  Prohibits all assemblages of 50 people or more, excluding healthcare facilities,

(Rescinded)

workplaces not open to the public, mass transit, the purchase of groceries, and

agricultural or construction work.

 Orders all elementary school buildings and secondary school buildings in the

state to close to students for educational purposes through April 5, 2020.

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Executive Order 2020-12—Enhanced support  Suspends all state and local seasonal load restrictions for deliveries that meet

for deliveries (Rescinded)

immediate needs for certain medical and sanitation supplies, food for emergency

store restocking, and other COVID-19 necessities.

 Orders all state and local road agencies to exercise their authority on an

expedited basis to issue permits that allow non-seasonal load restrictions to be

exceeded.

 Suspends all state and local restrictions on the noise and timing of loading and

deliveries for loading and deliveries that meet immediate needs for certain

medical and sanitation supplies, food for emergency store restocking, and other

COVID-19 necessities.

Executive Order 2020-13—Temporary  Orders that “the Department of Health and Human Services (“DHHS”) may enhancements to operational capacity issue an emergency certificate of need to an applicant and defer strict

and efficiency of health care facilities compliance with the procedural requirements of section 22235 of the Public

(Rescinded)

Health Code.”

 Orders that “the Department of Licensing and Regulatory Affairs (“LARA”)

may grant a waiver under section 21564 of the Public Health Code, 1978 PA

368, as amended, MCL 333.21564, to any licensed hospital in this state.”

 Orders that “LARA may issue a temporary registration as a certified nurse aide

to an applicant, regardless of whether the applicant demonstrates to LARA that

they have successfully completed the examination requirements of sections

21911 and 21913 of the Public Health Code.”

 Orders that “LARA may renew a license to practice under Part 170, 172, 175,

177, or 187 of the Public Health Code, 1978 PA 368, as amended, regardless of

whether the licensee has satisfied the continuing education requirement

applicable to their license.”

 Orders that “LARA may recognize hours worked responding to the COVID-19

emergency as hours toward continuing education courses or programs required

for licensure.”

 Orders that “LARA may allow a non-nursing assistant such as an activity

coordinator, social worker, or volunteer to help feed or transport a patient or

resident in a manner consistent with the patient’s or resident’s care plan.”

3

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Executive Order 2020-14—Temporary  Suspends “strict compliance with subsection (3) of section 78g of the General extension of deadline to redeem property for Property Tax Act (“GPTA”), 1893 PA 206, as amended, MCL 211.78g(3),” and

nonpayment of delinquent property taxes

extends “the deadline by which property forfeited to a county treasurer must be

redeemed … from March 31, 2020 until the later of (a) May 29, 2020, or (b) 30

days after the termination of the state of emergency under section 3 of Executive

Order 2020-4.”

Executive Order 2020-15—Authorization of  Orders that “to the extent that the Open Meetings Act, 1976 PA 267, as remote participation in public meetings and amended, MCL 15.261 to 15.272 (“OMA”) requires that a meeting of a public

hearings and temporary relief from monthly body be held in a physical place available to the general public or requires the

meeting requirements for school boards physical presence of one or more members of a public body, strict compliance

(Rescinded)

with section 3 of the OMA, MCL 15.263, is temporarily suspended in order to

alleviate any such physical-place or physical-presence requirements,” subject to

certain conditions.

 Orders that “strict compliance with subsection 6 of section 11a, subsection 7 of

section 384, and subsection 1 of section 418a of the Revised School Code, 1976

PA 451, as amended, MCL 380.11a(6), MCL 380.384(7), and MCL

380.418a(1), is temporarily suspended” subject to certain conditions.

Executive Order 2020-16—Expanding child  Suspends “strict compliance with section 7a of the Child Care Organizations

care during COVID-19 (Rescinded)

Act, 1973 PA 116, as amended, MCL 722.117a” and allows provisional licenses

to be issued in spite of “deficiencies present in the child care organization,”

subject to certain conditions.

 Suspends “strict compliance with subsection (2) of section 5m of the Child Care

Organizations Act, 1973 PA 116, as amended, MCL 722.115m(2)” and allows

the establishment of certain child care centers “without a license from LARA,”

subject to certain conditions.

Executive Order 2020-17—Temporary  Orders that “all hospitals, freestanding surgical outpatient facilities, and dental

restrictions on non-essential medical and dental facilities, and all state-operated outpatient facilities … must implement a plan

procedures

to temporarily postpone, until the termination of the state of emergency under

section 3 of Executive Order 2020-4, all non-essential procedures.”

Executive Order 2020-18—Restrictions on price  Rescinds EO 2020-08.

gouging (Rescinded)

 Imposes substantially similar restrictions as EO 20-08 with minor amendments.

4

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Executive Order 2020-19—Temporary  Orders that “no person shall remove or exclude from leased residential premises prohibition against entry to premises for the or residential premises held under a forfeited executory contract a tenant, a

purpose of removing or excluding a tenant or vendee of a forfeited executory contract, or a person holding under a tenant or

mobile home owner from their home vendee, except when the tenant, vendee, or person holding under them poses a

(Rescinded)

substantial risk to another person or an imminent and severe risk to property.”

 Orders that “no person may enter residential property in order to remove or

exclude from the premises a tenant, a vendee of a forfeited executory contract,

a person holding under a tenant or vendee, or the personal property of a tenant,

vendee, or person holding under them, including pursuant to a writ authorizing

restoration of a plaintiff to full, peaceful possession of premises under section

5744 of the RJA, MCL 600.5744, except when the tenant, vendee, or person

holding under them poses a substantial risk to another person or an imminent

and severe risk to property.”

 Orders that “a sheriff, under-sheriff or constable, deputy, or other officer must

not serve process requiring forfeiture of leased residential premises or

residential premises held under a forfeited executory contract.”

 Orders that “no person may deny a mobile home owner access to their mobile

home, except when the mobile home owner’s tenancy has been terminated

because the mobile home owner poses a substantial risk to another person or an

imminent and severe risk to property.”

Executive Order 2020-20—Temporary  Rescinds EO 2020-09.

restrictions on the use of places of public  Reinstates and modifies the restrictions in EO 2020-09 “by clarifying their

accommodation (Rescinded)

application to facilities offering non-essential personal care services.”

Executive Order 2020-21—Temporary  Declares that is “reasonable and necessary to direct residents to remain at home requirement to suspend activities not necessary or in their place of residence to the maximum extent feasible”

to sustain and protect life (Rescinded)

 Orders that “[n]o 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” subject to certain conditions and exceptions.

Executive Order 2020-22—Extension of county  Suspends strict compliance with rules and procedures under section 822(1) of canvass deadlines for the March 10, 2020 the Michigan Election Law, 1954 PA 116, as amended, MCL 168.822(1) & (2)

Presidential Primary Election

and 842(1) of the Michigan Election Law, MCL 168.842(1) and extends the

5

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deadlines for a board of county canvassers to complete the canvass of the election held on March 10, 2020.

Executive Order 2020-23—Enhanced  Orders that “[h]earing officers or arbitrators may conduct Michigan

authorization of remote means for carrying out Employment Relations Commission … hearings by electronic means, including

state administrative procedures (Rescinded)

video conferencing.”

 Suspends “strict compliance with the procedural requirements of 1939 PA 176,

as amended, MCL 423.1 et seq. (employment relations commission), 1947 PA

336, as amended, MCL 423.201 et seq. (public employment relations), and 1969

PA 312, as amended, MCL 423.231 et seq. (compulsory arbitration of labor

disputes in police and fire departments),” subject to certain conditions.

 Orders that the “Unemployment Insurance Agency may permit hearings to be

held by telephone or electronic means, including video conferencing.”

 Orders that documents, notice, and service of process for several agencies may

be filed electronically.

 Orders that state agencies may accept and rely upon electronic signatures.

Executive Order 2020-24—Temporary  Rescinds EO 2020-10.

expansions in unemployment eligibility and  Reaffirms the measures in EO 2020-10 and clarifies and strengthens the

cost-sharing (Rescinded)

expansion of eligibility for unemployment benefits and cost-sharing with

employers.

Executive Order 2020-25—Temporary  Declares that the public requires increased access to therapeutic enhancements to operational capacity, pharmaceuticals. Meeting this critical need requires swiftly but safely expanding

flexibility, and efficiency of pharmacies access to pharmacy services.

(Rescinded)

 Orders that pharmacists “may dispense emergency refills of up to a sixty (60)

day supply of any non-controlled maintenance medication for residents of any

county in this state if, in the pharmacist’s professional judgment, failure to refill

the prescription might interrupt the patient’s ongoing care and have a significant

adverse effect on the patient’s well-being” subject to certain conditions

 Reduces licensing and supervisory requirements for pharmacists.

 Suspends strict compliance with any statute, rule, or regulation that interferes

with the order.

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Executive Order 2020-26—Extension of April  Orders that strict compliance with rules and procedures of the Income Tax Act

2020 Michigan income tax filing deadlines

of 1967 and the City Income Tax Act of 1964 as they relate to the filing of tax

returns by certain deadlines is suspended and the deadlines for filing tax returns

are extended.

Executive Order 2020-27—Conducting  Suspends strict compliance with the rules and procedures under chapters 28 and elections on May 5, 2020 using absent voter 39 of the Michigan Election Law, 1954 PA 116, and further orders that elections

ballots

“must be conducted to the greatest extent possible by absent voter ballots issued

and submitted without in-person interaction,” subject to certain conditions.

Executive Order 2020-28—Restoring water  Declares that it is “reasonable and necessary to require public water supplies to

service to occupied residences during the report on the status of water service within their respective service areas.”

COVID-19 pandemic

 Orders that “public water supply must restore water service to any occupied

residence where water service has been shut off due to non-payment, so long as

the public water supply does not have reason to believe that reconnection would

create a risk to public health.”

Executive Order 2020-29—Temporary  Orders that “the Michigan Department of Corrections (the “Department”) must COVID-19 protocols for entry into Michigan continue to implement risk reduction protocols to address COVID-19 (“risk

Department of Corrections facilities and reduction protocols”), which the Department has already developed and

transfers to and from Department custody; implemented at the facilities it operates.”

temporary recommended COVID-19 protocols  Orders that “strict compliance with the capacity and procedural requirements

and enhanced early-release authorization for regarding county jail overcrowding states of emergency in the County Jail

county jails, local lockups, and juvenile Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily

detention centers (Rescinded)

suspended. While this order is in effect, all actions that would be authorized

under the CJOA in the event of a declaration of a county jail overcrowding state

of emergency are authorized.”

Executive Order 2020-30—Temporary relief  Orders that “any and all provisions in Article 15 of the Public Health Code, 1978 from certain restrictions and requirements PA 368, as amended, MCL 333.16101 et seq., relating to scope of practice,

governing the provision of medical services supervision, and delegation, are temporarily suspended” for the purpose of

(Rescinded)

ensuring medical personnel, medical students, and volunteers can provide

critical care in response to the increased demand for medical services related to

COVID-19.

 Orders that “[n]otwithstanding any law, regulation, or executive order to the

contrary, any drug manufacturer or wholesale distributor of prescription drugs

licensed in another state whose license is in good standing is temporarily

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authorized to distribute and ship controlled substances into Michigan to a

hospital or to a licensed manufacturer or wholesale distributor under MCL

333.17748.”

Executive Order 2020-31—Temporary relief  Declares that it is necessary to “temporarily exten[d] the period of time during

from standard vapor pressure restrictions on which the winter-blend gasoline can be sold [to] enable distributors to safely

gasoline sales

shift to a lower volatility gasoline supply with as little in-person work and travel

as possible, while also ensuring that this state maintains a reliable supply of

gasoline adequate to meet its critical needs during this emergency.”

 Orders that “Rule 4(g) of Regulation No. 564, promulgated by the Laboratory Division of the Department of Agriculture and Rural Development, 1987

AACS, as amended, R 285.564.4(g) of the Michigan Administrative Code, is

temporarily suspended,” subject to certain conditions.

Executive Order 2020-32—Temporary  Orders that “while the declared emergency is in effect, all veterinary facilities

restrictions on non-essential veterinary services must implement a plan to temporarily postpone all in-person non-essential

(Rescinded)

veterinary services until the declared emergency has ended.”

 Orders that “all veterinary services, essential and non-essential, must be performed by telemedicine to the fullest extent possible while the declared

emergency is in effect. If a non-essential service cannot be performed by

telemedicine, a plan must require that it be postponed. If an essential service

cannot be performed by telemedicine, a plan need not postpone it and may allow

it to be performed in person.”

Executive Order 2020-33—Expanded  Orders that a “state of emergency and a state of disaster are both declared across emergency and disaster declaration (Rescinded) the state of Michigan.”

 Orders that EO 2020-04 is replaced by EO 2020-33, and all previous Executive Orders relying on EO 2020-4 will now rely on EO 2020-33.

Executive Order 2020-34—Temporary  Replaces EO 2020-32

restrictions on veterinary services

 Adjusts and clarifies the scope of EO 2020-32.

Executive Order 2020-35—Provision of K-12  Orders the suspension of in-person K-12 instruction for the remainder of the

education during the remainder of the 2019-2020 2019-2020 school year.

school year (Rescinded)

 Orders Department of Education to adopt Continuity of Learning and COVID-

19 Response Plans.

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 Orders that “strict compliance with rules and procedures” under sections of the

State School Aid Act, MCL 388.1701 et seq., and the Michigan School Code

are temporarily suspended subject to certain conditions.

Executive Order 2020-36—Protecting workers  Declares that “it is the public policy of this state that an employer shall not

who stay home, stay safe when they or their close discharge, discipline, or otherwise retaliate against an employee for staying

contacts are sick

home when he or she is at particular risk of infecting others with COVID-19.”

 Issues numerous rules governing the behavior of employers and employees,

ostensibly to effectuate the purpose of EO 2020-36.

Executive Order 2020-37—Temporary  Rescinds EO 2020-07. restrictions on entry into health care facilities,  Clarifies the restrictions in EO 2020-07 and extends their duration. residential care facilities, congregate care

facilities, and juvenile justice facilities

(Rescinded)

Executive Order 2020-38—Temporary  Orders that “[s]trict compliance with the required response periods set forth extensions of certain FOIA deadlines to facilitate under sections 5(2), 10(2), and 10a(2) of the Freedom of Information Act

COVID-19 emergency response efforts

(“FOIA”), 1976 PA 442, as amended, MCL 15.235(2), 15.240(2), and

15.240a(2), is temporarily suspended.”

 Orders that “[s]trict compliance with the requirements relating to in-person

efforts in connection with a public records request set forth under sections 3 and

4 of the FOIA, MCL 15.233 and 15.234, is temporarily suspended.”

Executive Order 2020-39—Temporary relief  Orders that “[s]trict compliance with the annual-inspection requirements for life from certain restrictions and requirements support vehicles and life support agencies under section 20910(1)(e)(iii) of the

governing the provision of emergency medical Public Health Code, 1978 PA 368, as amended, MCL 333.20910(1)(e)(iii), is

services

temporarily suspended” subject to certain conditions.

 Orders that “strict compliance with the ambulance-staffing requirements under

section 20921(3) of the Public Health Code, MCL 333.20921(3), is temporarily

suspended” subject to certain conditions.

 Suspends strict compliance with several other Michigan laws, all related to the

provision of emergency services.

Executive Order 2020-40—Temporary relief  Orders that “[t]he requirements administered by the Department of Treasury from certain credentialing requirements for (“Department”) concerning licensure of motor carriers under section 5 of the

motor carriers transporting essential supplies, Motor Carrier Fuel Tax Act (“MCFTA”), 1980 PA 119, as amended, MCL

equipment, and persons (Rescinded)

207.215, are temporarily suspended and must not be enforced.”

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 Orders that “[t]he requirements administered by the Department concerning

decals for qualified commercial vehicles under section 5 of the MCFTA, MCL

207.215, are temporarily suspended” subject to certain conditions.

 Orders that “[t]he requirements administered by the Department concerning trip

permits for motor carriers under section 7 of the MCFTA, MCL 207.217, are

temporarily suspended and must not be enforced” subject to certain conditions.

 Orders that “[a]ny other requirements administered by the Department

concerning the credentialing of motor carriers under the International Fuel Tax

Agreement (“IFTA”) are temporarily suspended and must not be enforced”

subject to certain conditions.

Executive Order 2020-41—Encouraging the use  Orders that “[s]trict compliance with rules and procedures under the Uniform of electronic signatures and remote notarization, Electronic Transactions Act (“UETA”), 2000 PA 305, as amended, MCL

witnessing, and visitation during the COVID-19 450.831 et seq., and the Uniform Real Property Electronic Recording Act

pandemic (Rescinded)

(“URPERA”), 2010 PA 123, as amended, MCL 565.841 et seq., is temporarily

suspended to the extent necessary to permit the use of an electronic signature

for a transaction whenever a signature is required under Michigan law, unless

the law specifically mandates a physical signature.”

 Orders that “[s]trict compliance the Michigan Law on Notarial Acts, 2003 PA

238, as amended, MCL 55.261 et seq., is temporarily suspended, to the extent it

requires a notary to be in the physical presence of an individual seeking the

notary’s services or of any required witnesses.”

 Orders that “[a]ny requirement under Michigan law that an in-person witness

attest to or acknowledge an instrument, document, or deed may be satisfied by

the use of two-way real-time audiovisual technology, provided that” certain

conditions are met.

 Orders that the requirements in several additional Michigan laws mandating the

physical presence of a person can be satisfied through the use of two-way video

technology, provided that certain conditions are met.

Executive Order 2020-42—Temporary  Rescinds EO 2020-21.
requirement to suspend activities that are not  Prohibits “in-person work that is not necessary to sustain or protect life.” necessary to sustain or protect life (Rescinded)  Affirms and reinstates various rules in EO 2020-21.

 Prohibits travel between two residences.

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 Orders stores of more than 50,000 square feet to close areas dedicated to carpet or flooring, furniture, garden centers and plant nurseries, and paint.

 Implements additional measures designed to limit business operations and personal travel.

Executive Order 2020-43—Temporary  Rescinds and replaces EO 2020-20. restrictions on the use of places of public  Extends duration of restrictions found in 2020-20. accommodation (Rescinded)

Executive Order 2020-44—Enhanced support  Rescinds EO 2020-12.

for deliveries

 Extends “the duration of [relief from load and delivery restrictions on motor

carriers and drivers engaged in the transport of essential supplies, equipment,

and persons] because it remains reasonable and necessary to suppress the spread

of COVID-19 and protect the public health and safety of this state and its

residents.”

Executive Order 2020-45—Enhanced  Rescinds EO 2020-23.

authorization of remote means for carrying out  Extends “the duration of [the] relief [set forth in EO 2020-23], because it

state administrative procedures

remains reasonable and necessary to suppress the spread of COVID-19 and

protect the public health and safety of this state and its residents.”

Executive Order 2020-46—Mitigating the  Authorizes the Michigan Liquor Control Commission (“Commission”) “to offer

economic harms of the COVID-19 pandemic to a licensee a cash buyback of any spirits a licensee orders from the

through the creation of a spirits buyback Commission and received and accepted from an Authorized Distribution Agent

program for restaurants and bars throughout the before March 16, 2020. When a licensee opts into this buyback program, the

state

Commission must advance to the licensee 100% of the purchase price of those

spirits that are in the licensee’s inventory.”

Executive Order 2020-47—Temporary  Orders that “[i]ndividuals must, to the best of their ability, complete a vehicle

extension of the validity of certain driver’s registration or license renewal online at www.michigan.gov/sos/ during the

licenses, state identification cards, and vehicle Declares states of emergency and disaster.”

registrations (Rescinded)

 Orders that certain provisions of the Motor Vehicle Code are temporarily

suspended for purposes of the order if certain criteria are met.

Executive order 2020-48—Temporary  Rescinds EO 2020-15.

authorization of remote participation in public  Orders that “[t]o the extent that the Open Meetings Act (“OMA”), 1976 PA 267,

meetings and hearings and temporary relief from as amended, MCL 15.261 to 15.272, requires that a meeting of a public body be

monthly meeting requirements for school boards held in a physical place available to the general public or requires the physical

(Rescinded)

presence of one or more members of a public body, strict compliance with

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section 3 of the OMA, MCL 15.263, is temporarily suspended in order to

alleviate any such physical-place or physical-presence requirements.”

 Orders that “strict with subsection 6 of section 11a, subsection 7 of section 384,

and subsection 1 of section 418a of the Revised School Code, 1976 PA 451, as

amended, MCL 380.11a(6), MCL 380.384(7), and MCL 380.418a(1), is

temporarily suspended so as not to require school district boards to hold

meetings at least once each month.”

Executive Order 2020-49—Temporary  Rescinds EO 2020-13.

enhancements to operational capacity and  Orders that the Department of Health and Human Services and the Department

efficiency of health care facilities

of Licensing and Regulatory Affairs may issue various certificates, licenses,

and waivers to healthcare workers and facilities without requiring strict

compliance with the Public Health Code in order to “ensure that there is an

adequate supply of health care providers and facilities.”

Executive Order 2020-50—Enhanced  Orders that, “notwithstanding any statute, rule, regulation, or policy to the protections for residents and staff of long-term contrary,” long-term care facilities may not, among other things, evict or

care facilities during the COVID-19 pandemic

discharge residents for nonpayment, or prohibit admission based on COVID-

19 testing requirements.

 Orders that long-term care facilities must take steps to limit the transmission of

COVID-19, including canceling group activities and communal dining,

ensuring adequate disinfection and cleaning protocols, and using best efforts to

provide appropriate PPE.

 Orders that long-term care facilities must take specific steps when residents are

infected with COVID-19, such as filing a report to a local health department

within 24 hours and transferring unstable patients to a hospital.

 Orders that “[t]o the extent necessary to effectuate this terms of this order,

strict compliance with any statute, rule, regulation, or policy pertaining to bed

hold requirements or procedures, or to pre-transfer or pre-discharge

requirements or procedures, is temporarily Suspends” subject to certain

conditions.”

Executive Order 2020-51—Expanding child  Rescinds EO 2020-16.

care access during the COVID-19 pandemic

 Clarifies and expands the scope of EO 2020-16, and continues to allow the

operation of childcare centers without a license from LARA.

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Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.61 Page 14 of 20 Exhibit 3

Executive Order 2020-52—Temporary  Orders that “[n]otwithstanding any statute, rule, or regulation to the contrary, all

extension of certain pesticide applicator three-year certificates for commercial applicators, private applicators, and

certificates

registered applicators issued pursuant to Part 83 of the Natural Resources and

Environmental Protection Act, 1994 PA 451, as amended, MCL 324.8301 et

seq., that were set to expire on December 31, 2019, must be deemed unexpired

and not to expire until 60 days after the end of the Declares states of emergency

and disaster.”

Executive Order 2020-53—Enhanced  Rescinds EO 2020-18.

restrictions on price gouging

 “[S]trengthens … and extends” the original restrictions on price gouging in EO

2020-18.

Executive Order 2020-54—Temporary  Rescinds EO 2020-19. prohibition against entry to premises for the  Clarifies and extends the restrictions in EO 2020-19. purpose of removing or excluding a tenant or
mobile home owner from their home

Executive Order 2020-56—Temporary  Rescinds EO 2020-25. enhancements to operational capacity,  Clarifies and extends the duration of the provisions in EO 2020-25. flexibility, and efficiency of pharmacies

Executive Order 2020-57—Temporary  Rescinds EO 2020-24.

expansions in unemployment eligibility and  Orders that “[s]trict compliance with subdivision (a) of subsection (1) of section

cost-sharing (Rescinded)

29 of the Michigan Employment Security Act, 1936 (Ex Sess) PA 1, as amended

(“Employment Security Act”), MCL 421.29(1)(a), is temporarily suspended,”

subject certain conditions.

 Orders that “[s]trict compliance with subsection (3) of section 48 of the Employment Security Act, MCL 421.48(3), is temporarily suspended to allow an individual who is on a leave of absence for any” identified reason.

 “In order to allow employers and workers more flexibility in the use of sharedwork plans, strict compliance with several [additional] sections of the Employment Security Act are temporarily suspended.”

Executive Order 2020-58—Temporary  Orders that “all deadlines applicable to the commencement of all civil and

suspension of certain timing requirements probate actions and proceedings, including but not limited to any deadline for

relating to the commencement of civil and the filing of an initial pleading and any statutory notice provision or other

probate actions and proceedings

prerequisite related to the deadline for filing of such a pleading, are suspended

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Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.62 Page 15 of 20 Exhibit 3

as of March 10, 2020 and shall be tolled until the end of the declared states of disaster and emergency.”

Executive Order 2020-59—Temporary  Rescinds EO 2020-42. requirement to suspend activities that are not  Requires all individuals to stay at home, with certain exceptions. necessary to sustain or protect life (Rescinded)  Halts all business operations except for operations of workers necessary to
sustain or protect life, to conduct minimum basic operations, or to perform certain resumed activities in one of five categories.
 Businesses permitted to continue in-person operations must provide “nonmedical grade face coverings to their workers” and “personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed,” as well as take other mitigation measures.
 Orders all individuals who can medical tolerate a face covering to wear one when in any enclosed public space.

Executive Order 2020-60—Temporary safety  Requires all food-selling establishments and pharmacies to implement daily measures for food-selling establishments and screening of employees, require checkout employees to wear face coverings,

pharmacies and temporary relief from make work accommodations for employees in vulnerable populations, and close

requirements applicable to the renewal of self-service and sampling stations, among other things.

licenses for the food-service industry  Orders that “any individual who enters a food-selling establishment or pharmacy

(Rescinded)

who is 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.”

Executive Order 2020-61—Temporary relief  Rescinds EO 2020-30 to extend duration and expand scope of its provisions.

from certain restrictions and requirements  Orders the suspension of certain provisions Article 15 of the Public Health Code,

governing the provision of medical services

1978 PA 368.

Executive Order 2020-62—Temporary  Rescinds EO 2020-29. COVID-19 protocols for entry into Michigan  Extends duration of provisions in EO 2020-29. Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for

14

Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.63 Page 16 of 20 Exhibit 3

county jails, local lockups, and juvenile detention centers

Executive Order 2020-63—Temporarily  Orders that “all personal protection orders that would otherwise expire during

suspending the expiration of personal protection the period from the date of the entry of this order through June 1, 2020 are

orders

extended, and now expire on July 21, 2020.”

Executive Order 2020-64—Affirming anti-  Declares that it is “the public policy of this state that no person should be denied discrimination policies and requiring certain medical care on the basis of stereotypes, assessments of quality of life, or

health care providers to develop equitable access judgments about a person’s relative ‘worth,’ including judgments about a

to care protocols

person’s worth based on the presence or absence of disabilities.”

 Orders health care providers to take steps and develop protocols to ensure non-

discrimination in the delivery of critical care and allocation of other medical

resources.

Executive Order 2020-65—Provision of K-12  Rescinds EO 2020-35.

education during the remainder of the 2019-2020  Extends, expands, and clarifies the restrictions in EO 2020-35.

school year

 Temporarily suspends certain portions of the Teachers’ Tenure Act, MCL 38.71

et seq, and the Great Start Readiness Program, MCL 388.1632, et seq.

Executive Order 2020-66—Termination of the  Declares that “[t]wenty-eight days … have elapsed since [Governor Whitmer]

states of emergency and disaster declared under

declared states of emergency and disaster under the Emergency Management

the Emergency Management Act in Executive Act in Executive Order 2020-33. And while [Governor Whitmer] … sought the

Order 2020-33

legislature’s agreement that these declared states of emergency and disaster

should be extended, the legislature—despite the clear and ongoing danger to the

state—has refused to extend them beyond today.”

 Orders that “[t]he state of emergency declared under the Emergency

Management Act in Executive Order 2020-33 is terminated.”

 Orders that “[t]he state of disaster declared under the Emergency Management

Act in Executive Order 2020-33 is terminated.”

Executive Order 2020-67—Declaration of state  Declares that “state disaster and emergency recovery efforts remain necessary” of emergency under the Emergency Powers of and that “[s]tatewide coordination of these efforts is crucial to creating a stable

the Governor Act, 1945 PA 302

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 welfare of this state have been

neutralized, statewide disaster and emergency conditions will exist.”

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Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.64 Page 17 of 20 Exhibit 3

 Orders that a “state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.”

 Rescinds and replaces EO 2020-33. States that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.”

Executive Order 2020-68—Declaration of states  Declares “a state of emergency and a state of disaster across the State of

of emergency and disaster under the Emergency Michigan under the Emergency Management Act.”

Management Act, 1976 PA 390

 Orders “[t]he Emergency Management and Homeland Security Division of the

Department of State Police must coordinate and maximize all state efforts that

may be activated to state service to assist local governments and officials and

may call upon all state departments to utilize available resources to assist.”

 Declares that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.”

Executive Order 2020-69—Temporary  Rescinds EO 2020-43. restrictions on the use of places of public  Extends the provisions of EO 2020-43 through May 28, 2020. accommodation

Executive Order 2020-70—Temporary  Rescinds EO 2020-59.

requirement to suspend activities that are not  Reaffirms and amends the measures set forth in EO 2020-59.

necessary to sustain or protect life

 Orders that, subject to certain exceptions, “all individuals currently living within

the State of Michigan are ordered to stay at home or at their place of residence.”

 Orders that, subject to certain exceptions, “[n]o 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.”

 Orders that certain industries, including construction, real-estate activities, and work that is traditionally and primarily performed outdoors” can resume on May 7, 2020, subject to “stringent precautionary measures.”

 Orders that stores permitted to remain open for in-store sales under this Order must take steps such as limiting total occupancy, creating two hours per week of dedicated shopping times for vulnerable populations, and considering the establishment of curbside pick-up.

16

Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.65 Page 18 of 20 Exhibit 3

 Orders all individuals medically able to tolerate a face covering to wear a covering over his or her nose and mouth when in any “enclosed public space.”

Executive Order 2020-71—Temporary safety  Rescinds, extends, and clarifies EO 2020-60.

measures for food-selling establishments and  Orders “[a]ny individual who enters a food-selling establishment or pharmacy

pharmacies and temporary relief from who is able to medically tolerate a face covering must wear a covering over his

requirements applicable to the renewal of or her nose and mouth, such as a homemade mask, scarf, bandana, or

licenses for the food-service industry

handkerchief.”

 Orders grocery stores and pharmacies to “create at least two hours per week of

dedicated shopping time for vulnerable populations.”

 Orders food-selling establishment and pharmacies to “deploy strategies to

reduce COVID-19 exposure for their customers and employees,” which are to

include developing and implementing a specified daily screening program for

all staff, requiring checkout employees to wear masks, allowing employees

sufficient break time to wash their hands, and providing disinfecting wipes at

cash registers, among others.

 Suspends strict compliance with portions of the Food Law, 92 PA 2000, as

amended.

Executive Order 2020-72—Temporary  Rescinds EO 2020-37. restrictions on entry into health care facilities,  Reinstates and extends the restrictions in EO 2020-37. residential care facilities, congregate care

facilities, and juvenile justice facilities

Executive Order 2020-73— Temporary relief from certain credentialing requirements for motor carriers transporting essential supplies,

 Rescinds EO 2020-40.  Reinstates and extends the provisions in EO 2020-40.

equipment, and persons

Executive Order 2020-74—Encouraging the use  Rescinds EO 2020-41.

of electronic signatures and remote notarization,  Reinstates, extends, and expands the provisions in EO 2020-41.

witnessing, and visitation during the COVID-19  Suspends strict compliance with the Uniform Electronic Transactions Act, as

pandemic

amended, MCL 450.831 et seq., and the Uniform Real Property Electronic

Recording Act, as amended, MCL 565.841 et seq., “to the extent necessary to

permit the use of an electronic signature for a transaction whenever a signature

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Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.66 Page 19 of 20 Exhibit 3

is required” under Michigan law, unless the law specifically mandates a physical

signature.

 Suspends strict compliance the Michigan Law on Notarial Acts, as amended,

MCL 55.261 et seq., “to the extent it requires a notary to be in the physical

presence of an individual seeking the notary’s services or of any required

witnesses.”

 Orders that the requirements in several Michigan laws mandating the physical

presence of a person can be satisfied through the use of two-way video

technology, provided that certain conditions are met.

Executive Order 2020-75—Temporary  Rescinds and extends the provision of EO 2020-48, suspending “rules and authorization of remote participation in public procedures relating to physical presence at meetings and hearings of public

meetings and hearings and temporary relief from bodies and other governmental entities in Michigan.”

monthly meeting requirements for school boards

Executive Order 2020-76—Temporary  Rescinds EO 2020-57.

expansions in unemployment eligibility and  “[C]ontinues [the] provisions” under EO 2020-57 “and relaxes certain other

cost-sharing

requirements in order to allow the Unemployment Insurance Agency to more

quickly process unemployment claims.”

 Suspends strict compliance with several provisions of the Employment Security

Act, 1936 (Ex Sess) PA 1, as amended, the Michigan Administrative Code, and

section 68c of the State Employees Retirement Act, 1943 PA 240.

Executive Order 2020-77—Temporary  Rescinds EO 2020-70.

requirement to suspend certain activities that  Reaffirms the measures set forth in EO 2020-77, including the measures

are not necessary to sustain or protect life

requiring individuals to shelter-in-place and prohibiting most in-person business

operations, subject to certain amendments.

 Reaffirms and modifies specific protocols that must be adopted and

implemented by businesses performing construction work.

 Orders that manufacturing work may resume on May 11, subject to numerous

“workplace safeguards,” including conducting daily screening of all individuals

entering manufacturing facilities and conducting certain training of workers,

among others.

Executive Order 2020-78—Temporary

 Rescinds EO 2020-47 and “extends [the] duration and expands [the] scope” of

extension of the validity of driver licenses, state the provisions in EO 2020-47.

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Case 1:20-cv-00414 ECF No. 1-3 filed 05/12/20 PageID.67 Page 20 of 20 Exhibit 3

identification cards, and certain vehicle registrations

 Suspends strict compliance with the Michigan Vehicle Code to the extent it requires certifications or renewals in order to maintain licenses or insurance coverage.

19

Case 1:20-cv-00414 ECF No. 1-4 filed 05/12/20 PageID.68 Page 1 of 4
EXHIBIT 4

Case 1:20-cv-00414 ECF No. 1-4 filed 05/12/20 PageID.69 Page 2 of 4

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

GARLIN GILCHRIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-17
Temporary restrictions on non-essential medical and dental procedures
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-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to "cop [el with dangers to this state or the people of this state presented by a disaster or emergendy," 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 1.945 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." MCI., 10.31(1).
To mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources, it is reasonable and necessary to impose temporary restrictions on non-essential medical and dental procedures.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.goy
PRINTED IN-HOUSE

Case 1:20-cv-00414 ECF No. 1-4 filed 05/12/20 PageID.70 Page 3 of 4
1. Beginning as soon as possible but no later than March 21, 2020 at 5:00 pm, and continuing while the state of emergency declared in Executive 2020-4 is in effect, all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all state -operated outpatient facilities (collectively, "covered facilities"), must implement a plan to temporarily postpone, until the termination of the state of emergency under section 3 of Executive Order 2020-4, all non-essential procedures ("non-essential procedure postponement plan" or "plan"). For purposes of this order, "non-essential procedure" means a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.
2. A plan for a covered facility that performs medical procedures, including any medical center or office that performs elective surgery or cosmetic plastic surgery, must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would. significantly impact the health, safety, and welfare of the patient. A plan for a covered facility that performs medical procedures should exclude from postponement: surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. A plan for a covered facility that performs medical procedures must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
3. A plan for a covered facility that performs dental procedures must postpone, at a minimum: any cosmetic or aesthetic procedures (such as veneers, teeth bleaching, or cosmetic bonding); any routine hygiene appointments; any orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not traumarelated; initiation of any crowns, bridges, or dentures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; any periodontal plastic surgery; any extractions of asymptomatic non-carious teeth; and any recall visits for periodontally healthy patients. If a covered facility that performs dental procedures chooses to remain open, its plan must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
4. A covered facility must comply with the restrictions contained in its non-essential procedure postponement plan.
5. This order does not alter any of the obligations under law of an affected health care facility to its employees or to the employees of another employer.
6. The director of the Department of Licensing and Regulatory Affairs shall issue orders or directives pursuant to law as necessary to enforce this order.
2

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7. 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: March 20, 2020 Time: 12:28 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
'AIRY OF STATE

SENATE JOURNAL MAR 20 2020 PH3: 16
FILED WITH SECRETARY OF STATE
ON 3/420 AT 2:1-MPA,
3

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EXHIBIT 5

Case 1:20-cv-00414 ECF No. 1-5 filed 05/12/20 PageID.73 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
DEPARTMENT OF HEALTH AND HUMAN SERVICES LANSING

ROBERT GORDON
DIRECTOR

May 3, 2020

Dear Michigan Clinicians,

We appreciate the leadership of health care systems and clinicians across the state who have worked tirelessly to care for patients during the COVID-19 pandemic. Our front-line healthcare workers have provided exceptional care, and many have put their own lives and the lives of their families at risk. Some have even lost their lives. I am forever in gratitude for your service.
While we are cautiously optimistic about the plateau in the number of cases of COVID-19 across the state, we continue to see many cases daily, as well as deaths. Michigan currently has the third highest number of COVID-19-related deaths in the United States. Governor Whitmer’s Executive Order 2020-17, Temporary Restrictions on Non-Essential Medical and Dental Procedures, was put in place to assure our healthcare systems had enough staffing, bed capacity, and personal protective equipment to be able to take care of patients, as well as to limit spread of COVID-19. As we continue to fight the COVID-19 pandemic we are in constant consideration of how to safely and responsibly provide care for our patients, while maintaining the safety of healthcare workers.
I recognize some have questions about Executive Order 2020-17, including what is allowable under the order and how to start to re-engage with patients for important care. This letter provides guidance to consider in determining the timeliness and necessity of care for individual patients.
The provisions of the Executive Order No. 2020-17 state the following:
1. Beginning as soon as possible but no later than March 21, 2020 at 5:00 pm, and continuing while the state of emergency declared in Executive 2020-4 is in effect, all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all stateoperated outpatient facilities (collectively, “covered facilities”), must implement a plan to temporarily postpone, until the termination of the state of emergency under section 3 of Executive Order 2020-4, all non-essential procedures (“non-essential procedure postponement plan” or “plan”). For purposes of this order, “non-essential procedure” means a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.

333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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2. A plan for a covered facility that performs medical procedures, including any medical center or office that performs elective surgery or cosmetic plastic surgery, must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient. A plan for a covered facility that performs medical procedures should exclude from postponement: surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. A plan for a covered facility that performs medical procedures must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
3. A plan for a covered facility that performs dental procedures must postpone, at a minimum: any cosmetic or aesthetic procedures (such as veneers, teeth bleaching, or cosmetic bonding); any routine hygiene appointments; any orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; initiation of any crowns, bridges, or dentures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; any periodontal plastic surgery; any extractions of asymptomatic non-carious teeth; and any recall visits for periodontally healthy patients. If a covered facility that performs dental procedures chooses to remain open, its plan must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
This wording is intended to be flexible, preserve clinician judgement, and encourage consideration on an individual basis of which patient services can be safely delayed without resulting in a significant decline in health. EO 2020-17 gives providers broad discretion to apply this standard. I have had the pleasure of speaking to many physician and health system leaders in recent days and applaud current efforts to re-engage with patients in the safest way possible and within the scope of Executive Order 2020-17. Consistent with Executive Order 2020-17, the following guidelines and principles (which are non-binding suggestions unless otherwise indicated) should be considered as clinicians and hospitals plan reengagement of patients in need of medical services:
1. Limit in-person contact as much as possible and implement best practices for infection prevention and control.
• Maximize the use of telehealth. Clinicians can determine if an in-person visit is necessary. An initial phone call to collect pertinent information can reduce the time needed for an in-person visit. In some cases, a post-procedure telehealth visit may be an alternative to an in-person visit.
• Consider eliminating waiting room times altogether for ambulatory visits. Ask patients to wait in their cars until the time of their appointment if feasible. If that cannot be done, consider implementing the following:
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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o Arrange waiting rooms such that patients are kept at least six feet apart. o Remove magazines, books and toys from waiting areas. o Do not offer food or drink in waiting areas. o Have clear markings and signage for patients indicating where they should
stand or wait. • Patients and visitors who can medically tolerate a face covering should wear cloth face
coverings at all times. If they do not bring one to the office, surgical facemasks should be provided. • Perform frequent cleanings of patient waiting and care areas. Pay special attention to frequently touched surfaces. • Categorize patients into risk strata for COVID-19 exposure. Consider seeing patients at lower risk of severe outcomes from COVID-19 on one day, and high risk on another. Alternatively, consider having separate blocks of time for seeing higher risk patients. • Assure any clinical site has sufficient PPE for all staff. • Consider separate entrances for well and sick visits. • As required by Executive Order 2020-72, limit visitation and perform fever and symptom checks for all patients, visitors, and employees. • Consider discharge as early as safely possible, arranging home health care services as appropriate. • Ensure patient safety during transitions of care. Promote strategies for timely communication between inpatient and outpatient providers with an emphasis on confirming that a patient’s primary care provider or provider team has received results of important diagnostic tests, medication reconciliation lists, and follow-up recommendations.
2. Systematically prioritize in-person patient interactions.
• Encourage prioritizing appointments for your most vulnerable patients, particularly those with chronic diseases who may need laboratory or other diagnostic work done or have had difficulty managing their disease in the past. Evaluate the need for a well-visit if in your clinical judgement postponement of the visit would significantly impact the health, safety, and welfare of the patient.
• Consider stratification of the care or procedures you intend to provide into categories based on need or urgency.
• Consider allowing medical visits for immunizations. Delayed immunizations can put individuals and communities at risk of vaccine-preventable diseases. Consider reaching out to families to schedule immunization visits in future months, so that patients can remain up to date.
• Recognize that procedures or visits that were not time-sensitive several weeks ago may now be, based on clinician judgment. Certain laboratory or radiological tests may be performed under the current executive order, if it is determined by a licensed medical provider that these tests are necessary to preserve the health, safety, and welfare of the patient. This may include pre-operative tests for planned procedures.
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

Case 1:20-cv-00414 ECF No. 1-5 filed 05/12/20 PageID.76 Page 5 of 5
3. Reassure patients of appropriate safety measures:
• Utilize diagnostic testing for COVID-19 when available as deemed clinically appropriate. Recognize that a negative COVID-19 test at a single point in time does not guarantee that a patient does not have the disease, nor that they have not become infected in the time since their test sample was obtained. This should be considered when making decisions regarding implementation of PPE, and isolation and quarantine protocols in your facility.
• Provide appropriate PPE for staff and patients following CDC and local health department guidance.
4. Assure appropriate surge capacity and develop emergency plans
• Develop specific and written plans for how your clinic or system will incrementally start doing procedures while maintaining the safety of patients and staff.
• Assure adequate beds, PPE, staffing, supplies, and medication are on hand to take care of both COVID and non-COVID patients.
• Continue to conserve PPE and maintain an appropriate surge plan should there be an increased demand for care.
• Have plans in place for how you may need to restrict procedures and visits should a surge in COVID cases occur. Follow the epidemiology and trends of the disease in your region. The most up to date information can be found at www.michigan.gov/coronavirus.
More information about best practices for infection prevention and control can be found on the CDC’s website. The above guidance is not a substitute for clinician judgement in providing individualized medical care for patients. Furthermore, now is a great time to proactively communicate with your patients about the dangers of delaying important medical care. Any patient with signs or symptoms consistent with possible life-threatening disease should not have diagnostic testing or treatment delayed. Speak with your patients about the safety plans you have in place and how you are prepared to take care of them in a safe environment.
Thank you for all you have done to respond heroically in this epidemic. I look forward to continuing to work with you as we protect the health and safety of all Michiganders.
Sincerely,
Joneigh S. Khaldun, MD, MPH, FACEP Chief Medical Executive Chief Deputy Director for Health Michigan Department of Health and Human Services
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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EXHIBIT 6

Case 1:20-cv-00414 ECF No. 1-6 filed 05/12/20 PageID.78 Page 2 of 9

GRETCHEN WHITMER GOVERNOR

STATE OF MICHIGAN OFFICE OF THE GOVERNOR
LANSING

GARLIN GILCHRIST II LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-21
Temporary requirement to suspend activities that are not necessary to sustain or protect life
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. lt is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. Older adults and those with chronic health conditions are at particular risk, and there is an increased risk of rapid spread of COVID-19 among persons in close proximity to one another. 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-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
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).
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.
This order takes effect on March 24, 2020 at 12:01 am, and continues through April 13, 2020 at 11:59 pm.
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.goy
PRINTED IN-HOUSE

Case 1:20-cv-00414 ECF No. 1-6 filed 05/12/20 PageID.79 Page 3 of 9
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, 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.
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.
(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. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm.
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, 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. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm. Businesses and operations need not designate:
2

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(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6.
(3) Workers and volunteers described in section 9(d).
(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. Those practices and measures include, but are not limited to:
(1) Restricting the number of workers present on premises to no more
than is strictly necessary to perform the business's or operation's critical infrastructure functions.
(2) Promoting remote work to the fullest extent possible.
(3) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible, including for customers who are standing in line.
(4) 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.
(5) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19.
(6) Any other social distancing practices and mitigation measures recommended by the Centers for Disease Control.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to supporting 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, 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 recreation.
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(c) For purposes of this order, necessary government activities include minimum
basic operations, as described in section 4(b). 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 5(c).
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor activity, including walking, hiking, running,
cycling, or any other recreational activity consistent with remaining at least six feet from people from outside the individual's household.
(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) may leave their home for work without a designation.)
(3) To conduct minimum basic operations, as described in section 4(b), after being designated to perform such work by their employers.
(4) To perform necessary government activities, as described in section 6.
(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, and their vehicles. 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.
(7) To care for a family member or a family member's pet in another household.
4

Case 1:20-cv-00414 ECF No. 1-6 filed 05/12/20 PageID.82 Page 6 of 9
(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 and 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.
(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) To travel between two residences in this state. (4) As required by law enforcement or a court order, including the
transportation of children pursuant to a custody agreement.
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). Such workers include some workers in each of the following sectors:
(a) Health care and public health.
(b) Law enforcement, public safety, and first responders.
(e) 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. 5

Case 1:20-cv-00414 ECF No. 1-6 filed 05/12/20 PageID.83 Page 7 of 9
(i) Critical manufacturing.
(k) Hazardous materials.
(I) 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 as defined in this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of critical infrastructure workers.
(b) Workers at designated suppliers and distribution centers, as described below.
(1) A business or operation that employs critical infrastructure workers may designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of its critical infrastructure workers.
(2) Such suppliers, distribution centers, or service providers may designate workers as critical infrastructure workers only to the extent those workers are necessary to enable, support, or facilitate the work of the original operation's or business's critical infrastructure workers.
(3) Designated suppliers, distribution centers, and service providers may in turn designate additional suppliers, distribution centers, and service providers whose continued operation is necessary to enable, support, or facilitate the work of their critical infrastructure workers.
(4) Such additional suppliers, distribution centers, and service providers may designate workers as critical infrastructure workers only to the extent that those workers are necessary to enable, support, or facilitate the work of the critical infrastructure workers at the supplier, distribution center, or service provider that has designated them.
(5) Businesses, operations, suppliers, distribution centers, and service
providers must make all designations in writing to the entities they are designating, whether by electronic message, public website, or other appropriate means. Such designations may be made orally until March 31, 2020 at 11:59 pm.
6

Case 1:20-cv-00414 ECF No. 1-6 filed 05/12/20 PageID.84 Page 8 of 9
(6) Businesses, operations, suppliers, distribution centers, and service providers that abuse their designation authority 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 and 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.
10. 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, a place of religious worship, when used for religious worship, is not subject to penalty under section 14.
11. 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.
12. This order takes effect on March 24, 2020 at 12:01 am, and continues through April 13, 2020 at 11:59 pm.
13. The governor will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, she 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.
14. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a misdemeanor.
7

Case 1:20-cv-00414 ECF No. 1-6 filed 05/12/20 PageID.85 Page 9 of 9 Given under my hand and the Great Seal of the State of Michigan.

Date: March 23, 2020 Time: 10:39 am

GRETCHEN WIHTMER GOVERNOR
By the Governor:

FILED WITH SECRETARY OF STATE

ON 312-31Z°24) AT

5 t1/4r4

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.86 Page 1 of 12
EXHIBIT 7

Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.87 Page 2 of 12
U..SS..DDeeppaarrttmmeenntt of HHoommeelland Secuurriity CCyybbeerrsseeccuurriity & Infrasttrruucttuure SSeeccuurriittyy AAggeenncy OQfがficcee oずf t功 eheeDDiirreeccttor WWaasshhiinnggtton,,DC 20528
CISA
CYBER+ INFRASTRUCTURE
MMaarrcch 119,,2020

MMEEMMOORRAANDUUMM ON IIDDEENTTIIFFIICCAATTIIOON OFF ESSENTTIIAAL CRRIITIICCAAL IINNFFRRAASSTTRRUUCCTTURE WWOORRKKEERRSS DUURRIINNG COOVVIID--119 RESPONNSSE

FFRROOMM::

CChhrriisttoopheerr C..KKrreebbss ～クー～ DDiirreeccttor CCyybbeerrsseeccuurriity and Infrasttrruuctture SSeeccuurriity AAggeenncy ((CCIISSAA))

AAss tthhe NNaattiion commeess ttoogeetther to sllooww tthhe spreead off COOVVIID--119,,on MMaarrcch 1l66tth",,tthhe PPrresidenntt iissssuueedd upddaatted CCoorroonnaavviirrus GGuuiidance for AAmmereriicca..TThhiis guiidance states thaatt::
“' If 功y‘ 'ouo功 uwwoor' rk iio nn au critiiccalル i'nifrfarsatrsutcrtuurce' tiinundruuessttry,,as deei ffiinneedd bり yththeet DDeepf paarh rttmmeennte t oげf ra HH0ommeelland Seeccuurriitか ys, usucchhs as heal励 u thccaarreec c servicea sh andPpr hhaarrmmacae eceuuttiicalル annddpofododn su興 pplフ yy, oy加 oud uyoup have a speecciiaall resspponsi坊bil読ittyか ototmmaao iinnttaaiin yyouurr normmaall wwoorrk schedduulle..”"
The CCyybbeerrsseeccuurriity and Infrasttrruuctture Seeccuurriity AAggeennccy ((CCIISSAA))exeeccuuttes tthhe Seeccrretary off HHoommeellaand Seeccuurriitty’'s resppoonnsisbibililiitties as assiiggnned unddeerr tthhe HHoommeellaand Seeccuurriitty AAcctt of 2002 to provviide strraatteegic guidance,,prrommootte a naattiionnaall uunniity off effoorrt,,and cooorrddiinnaatte tthhe ovveerraallll feddeerraall effoorrt to ensuurre tthhe secuurriitty and resilliieenncce of tthhe NNaattiion''sscriticaall iinnfrraasttrruucttuure..CIISSAA uses ttrruustteedd ppaarrtnerships wwiitth bootth tthhe ppuubblliic and pprrivatte sectors to deelliver iinnfraasttrruucttuure resilliieennce assiissttaannce and guidance to a broad rraannge of ppaarrtneerrs..
In accordance wwiitth this mmaannddaatte,,and iinn coollllaaboorratiioon wwiitth other fedeerraall ageenncciies and tthhe pprrivaatte sector,,CIISSAA devellooped an inniitial list off “"EEsssseennttiiaall CCrriitticaall Innfrasttrruucttuure WWoorrkkeerrss”" to heellp SSttate and lloocaall ooffficials as tthhey wwoorrk to prroottecctt theeiir commmmunuintiitieess,,wwhhiille ensuurriinng coonnttinuuiity off ffuunccttiioons critiiccaall to puubblliic heeaallth and safetty,,as wweellll as eccoonommiic and nnaattionnaall secuurriitty..The list can also iinnffoorrmm criticaall iinnfrraasttrruucttuure commmmuunniitty decciisiioon--mmaakkiing to detteerrmmiine tthhe sectors,,sub-sectors,, seeggmmeenntts,,or critiiccal funccttiioons tthaatt shouulld connttiinnue normmaall oppeerraattiioons,,apppprroopprriiaattely mmooddiiffiied to accouunntt for CCeenntteerrs for DDiissease CCoonnttrrooll ((CCDDC))wwoorrkkffoorrce and custtoommeerr prroottectiioon guiidance..
The attttaacchheed list iiddennttiifies wwoorrkkeerrss wwhhoo condduucctt a rrange of oppeerraattiioons and services thaatt are esseennttiiaall to connttiinnuued criticaall iinnfrraasttrruucttuure vviiaabbiillittyy,,iinnclluudiinng sttaafffiinngg oppeerraattiioons cenntteerrs,,mmaaiinnttaaiiniinng and repaaiiriinng critiiccaall iinnfrraasttrruucttuure,, oppeerraattiinng caallll cenntters,, wwoorrkkiing coonnssttruccttiioon,, and perffoorrmming mmaannaaggeemmeenntt ffuunccttiioons,,aammoonng otheerrs..The iinnduussttrries tthhey supppoorrtt represenntt,,buutt are noott neecceessssaarriilly lliimmiitteedd to,,mmeeddiiccaall and heeaalltthhcare,,tteelleeccoommmmuunnicicaattiions,,iinnffoorrmmaattiioon tteecchhnnollooggy systteemms,,defense,, ffooood and aggrricuullture,,ttrraannspoorrttatiioon and llooggiistics,,enerrgy,,wwaatteerr and wwaassttewwaatteerr,,llaaww enffoorrcceemmeenntt,, and puubblliic wwoorrkkss..

Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.88 Page 3 of 12
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 naturree. 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”"
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CYBER+INFRASTRUCTURE
DEFEND TODAY, SECURE TOMORROW

4001P'

GGuuiidance on the EEsssseennttial CCrriitical Infrastructure Workforccee: EEnnssuurring CCoommmunity and National Ressiilience in COVVIID--119 Response
Version 1.0 (March 119,, 2020)
THE IMPOORTTANNCCEE OF EESSSSEENNTTIAL CCRRITICAL INFRASSTTRRUUCCTTUURREE WORKEERSS
FFuunnctioning critical infrastructure is imperative during the response to the COOVVIIDD--119 enmneerrgency for bothh public healthh and safety as welll as conmnmmuunity well-beinngg. Certain criticall infrastructure industries have a special responsibility inn these times to continue operationnss..
This guidance and accompanying list are intended to support Statee,, Local,, andd industry partners inn identifying the critical infrastructure sectors and the essential workers needed to mnnaaiinntainn the services andd functions Americans depend on daily andd that needd to be able to operate resiliently during the COVVIIDD--119 pandemic responssee.. This docunmneent gives guidance to State, local,, triball,, andd territoriiaall juriissdicttiioons andd the private sector onn defining essential critical infrastructure workerrss.. PPromnnootting the abilittyy of such workers to continue to work during periods of community restriction, access manaaggeenmnent, social distanciinngg, or closure orders//ddiirreeccttiivveess is cruciall to conmnmmunity resilience andd continuity of essential functtiioonnss..
CCOONNSIDERATIONS FOR GOOVVEERRNNMENT AND BUSINESS
This list was developedd in consultationn withh federall agency partneerrss,, industrryy expertss,, andd State andd locall officiiaallss,, and is based onn several key principles:
11. RReesponse efforts to the COOVVIIDD--119 pandemic are locally executedd,, State mnnaannaged,, andd federalllyy supportteedd
2. EEvveeryone should follow guidance fromm the CDC, as well as State and locall governnnmnent officiiaallss,, regarding strategies to limit disease spread.
3. Workers shouldd be encouraged to work remotely when possible andd focus on core business activittiieess.. Inperson, non-nmnaannddatory activities should be delayedd untill the resunmnpption of normall operatiioonnss..
4. When continuous renmnoote work is not possibllee,, businesses shouldd enlist strategies to reduce the likelihhoooodd of spreading the diseasee.. This includeess,, but is not necessarily limited too,, separating staff by off-setting shift hours or days and/or social distanciinngg. These steps cann preserve the workforce andd allow operations to continuee..

CONNECT WIITTH US www.ciisa.gov
For more informatiioonn,, email CISA.CATT@@cciissaa..ddhs.gov

[12 Linkedin.com//ccoommppaannyy//ccyybbeerrsseeccuurriittyy-and-infrasttrruuccttuurree--sseeccuurriittyy--aaggennccy @CCIISAgov |I @@ccyybber |I @@uusscert_gov
rJ Facebook.com//CCIISSAA

Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.90 Page 5 of 12
EEsssseennttial CCrriitical Infrastructtuurree Workforce
5. All organizations shouldd impleenmnent their business continuittyy andd pandemic planss,, or put plans inn place if thheeyy do not exist. Delaying implenmneennttation is not advisedd and puts at risk the viability of the business andd the health and safety of the enmnpployees.
6. In the mnnooddern econommyy, reliance on technollooggy and jjuusstt--iinn--ttinimne supplyy chains mnneeaans that certaiinn workers must be able to access certain sites, facilittiieess,, andd assets to ensure continuittyy of functtiioonnss..
7. GGoovveerrnnment emplooyyees,, such as enmneerrgency mnnaannagers,, andd the business comnmnunity need to establishh andd maintain lines of comnmnuunnicationn..
8. When governnmneent and businesses engage inn discussions about critical infrastructurree workerrss,, thheeyy needd to consider the implications of business operations beyondd the juriissdicttiioon where the asset or facilittyy is locatedd.. Businesses can have sizeable economic andd societal imnnppaacts as welll as suppllyy chainn dependenciieess that are geographically dd istributedd..
9. Whenever possible, jjuuriissdicttiioons should align access andd movenmneent controll policies relatedd to criticall infrastructure workers to lower the burden of workers crossing juriissdicttiioonal boundariieess..
IDENTIFYINNGG EESSSSEENTTIAL CCRITICAL INFRASSTTRRUUCCTTUUREE WORKEERSS
The following list of sectors and identifiieedd essentiall critical infrastructure workers are ann initiall recommendedd set andd are intended to be overly inclusive reflecting the diversityy of industries across the Unitedd Statteess.. CISA willl continualllyy solicit and accept feedback on the list (both sectorss/sub sectors andd identified essentiall workerrss)) andd willl evolve the list in response to stakeholder feedbackk.. We will also use our various stakeholder engagenmnent mechhaanniissnmns to work with partners on how they are using this list and share those lessons learnedd and best practices broaddllyy.. We ask that you share your feedback, both positive and negative on this list so we cann provide the most usefull guidance to our critical infrastructure partners. FFeeedback can be sent to CISA.CAT@CCIISA.DHS.GOOV..

A
Communiutions
Chemical
Critical Manufacturing

Essential Critical Infrastructure Workers

Hee Pobil

Information Technology

Transportations Systems

Commercial Facildies

Dams

Det.» industrial Base

Energy

Emergency Services

Financial

Food & Agriculture

1111111
Government Facilities

Nuclear Reactors, Materials & Waste

Water
CISA

CONNECT WIITTH US www.cisa.gov
For more informatiioon, email CISA.CATT@@cciissaa..ddhs.gov

Linkedin.com//ccoommppaannyy//ccyybbeerrsseeccuurriittyy-and-infrasttrruuccttuurree--sseeccuurriittyy--aaggennccy
@CCIISAgov |I @@ccyybber |I @@uusscert_gov
IJ Facebook.com//CCIISSAA

Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.91 Page 6 of 12
EEsssseennttial CCrriitical Infrastructtuurree Workforce
HEEALTHCARE / PUBLICC HEALTTHH
• Workers providing COOVVIIDD--119 testiinngg;; Workers that performm criticall clinicall researchh neededd for COVVIIDD--1199 response
• CCaaregivers (e.g., physicians, dentisttss,, psychologisttss,, midd-levell practitiioonneerrss,, nurses andd assistanttss,, infectiioonn controll and quality assurance personnell,, pharmacisttss,, physicall andd occupationaall therapists andd assistanttss,, sociall workerrss,, speech pathologists and diagnostic andd therapeutiicc techniciannss andd technnoollooggisttss))
• Hospitall and laboratory personnell (including accounttiinngg,, administtrraattiivvee,, admitting andd dischhaarrggee,, engineerriinngg,, epidemiollooggicaall,, source plasma andd bloodd donatiioonn,, foodd servicee,, housekeepiinngg,, medicall recorddss,, informattiioonn technollooggy andd operationall teecchhnnoollooggyy,, nutritioniissttss,, sanitarriiaannss,, respiratorryy therapiissttss,, etcc..))
• Workers in other medicall facilitiiees (including Ambulatorry Healthh andd Surgicaall,, Bloodd Bankkss,, Cliniccss,, CCoommmunittyy Mental Health, CCoommprehensive OOuuttpatient rehabilitattiioonn,, End Stage Renall Diseasee,, Healthh Departmenttss,, Home Healthh caree,, Hospices, Hospitals,, Long Termm Caree,, Organn PPhharmaciess,, PPrrooccuurement OOrganizationnss,, PPssyycchhiatric RReessiidentiall,, Rurall Healthh CCllinics andd Federally QQuualifiedd Healthh CCeenters)
• Manufacturrerrss,, techniciiaannss,, logistics and warehouse operatoorrss,, andd distributoors of medicaall equipmentt,, personall protective equipment (PPE),, medicall gasess,, pharmaceutiiccaallss,, bloodd andd bloodd producttss,, vaccinneess,, testing materials, laboratory suppliieess,, cleaninngg,, sanittiizziinngg,, disinfecting or steriliizzatiioonn supplliieess,, andd tiissssuuee andd paper towel products
• PPuublic healthh / community health workerrss,, including those who compilee,, modell,, anallyyze andd communicate public health information
• Bloodd and plasma donors andd the employees of the organizations that operate andd manage relateedd activittiieess • Workers that manage healthh planss,, billinngg,, and health informatiioonn,, who cannot practically work remotely • Workers who conduct communittyy-based public healthh funccttiioonnss,, conducting epidemiolooggic surveilllaannccee,,
compiliinngg, analyzing andd communicating public health information,, who cannot practically work remotely • Workers performing cybersecurity functtiioons at healthcare andd public healthh faciliittiieess,, who cannot practicalllyy
work remotely
• Workers conducting researchh critical to COOVVIIDD--119 response
• Workers performing securiittyy,, incident managementt,, andd emergency operations functtiioonnss at or onn behalf of healthcare entities including healthcare coalitionnss,, who cannot practically work remotely
• Workers who support foodd,, shelterr,, andd sociall serviceess,, andd other necessities of life for economicalllyy disadvantaagged or otherwise needy individuallss,, suchh as those residing inn shelters
• PPhharmacy employees necessary for filling prescriptions • Workers performing mortuary services,, including funerraall homess,, crematoriuummss,, andd cemetery workers • Workers who coordinate with other organizations to ensure the proper recovveerryy,, handliinngg,, identifiiccattiioonn,,
transportattiioonn,, trackkiinngg,, storraaggee,, and disposall of humann remains andd personall effecttss;; certify causee of deatthh;; andd facilitate access to mental//bbeehhaavviioorraall healthh services to the famiillyy memberrss,, responderrss,, andd survivors of ann incident

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.92 Page 7 of 12
EEsssseennttial CCrriitical Infrastructure Workforce
LAW EENFORCEMENT, PUBLICC SAFETY, FIRST RESPONDERSS
• PPeerrsonnel in emnneerrgency manaaggeenmnent, law enforcementt,, EEmmergency Management Systems, fiirree,, andd corrections, including front line andd mnnaannaagemnneennt
• EEmmergency Medicall Technicians • 911 call center employees • Fusion CCeennter employees • Hazzaardous materiall responders from government andd the private sectoorr.. • Workers –- including contracted vendors -- who maintain digital systems infrastructurre supporting law
enforcement andd emergency service operatiioonnss..
FOOD AND AGRICCUULTTUUREE
• Workers supporting groceries, pharmacies and other retaill that sells foodd and beverage products • RReessttaurant carry-out andd quick serve foodd operations - Carry-out andd delivery foodd emplooyyees • Food manufacturer employees andd their supplier emppllooyyeeeess——to include thhoose empllooyyedd inn ffoooodd processing
(packers, meat processing, cheese plants,, milk plants, produce, etc.) facilittiieess;; livestockk,, poulttrryy, seafoodd slaughter facilittiieess;; pet andd animal feed processing facilittiieess;; humann foodd facilittiiees prodducing by--pproducts for animal food; beverage production facilittiieess;; andd the production of foodd packaging • Farm workers to include those employyed inn animall foodd,, feed, and ingredient productionn,, packaginngg, andd distribution; manufacturriinngg, packaging, and distributtiioonn of veterinary drugs; truck deliverry andd transport;; farmm and fishery labor neededd to produce our foodd supply domestically • Farm workers and support service workers to include thhoose who fiieeldd cropss;; commodittyy inspectionn;; fuueell ethannooll facilittiieess; storage facilittiieess; and other agriculturall inputs • EEmmployees and firms supporting foodd,, feed, and beverage distributtiioonn,, including warehouse workerrss,, vendorr-managed inventory controllers and blockchain managers • Workers supporting the sanitatiioon of all food manufacturing processes andd operations frroomm wholesale too retaill • CCoommpany cafeterias - in--plant cafeterias usedd to feedd employees • Workers in foodd testing labs in private industries and inn institutiioonnss of higher educatiioonn • Workers essential for assistance programs and government payments • EEmmployees of companies engaged in the productionn of chemicals, medicinneess,, vaccinneess,, andd other substanncceess used by the food andd agriculture industtrryy, including pesticides, herbicides, ferttiilliizzeerrss,, mnniinnerals,, enrichmenttss,, and other agriculturall production aids • Animal agriculture workers to include those employed inn veterinary health; manufacturing andd distributtiioonn of animal mnneeddicall mnnaatteerials, animal vaccines, animal drugs, feedd ingredienttss,, feed,, andd beddinngg, etc.; transportation of live animalss,, animall medical materiallss;; transportatiioon of deceasedd animals for disposall;; raising of animals for food; animal productionn operationnss;; slaughter andd packing plants and associatteedd regulatory and government workforce • Workers who support the manufacture andd distribution of forest products, includiinngg,, but not limitedd to timmbbeerr,, paper, and other woodd products • EEmmployees engaged in the manufacture and maintenance of equipment and other infrastructuurree necessary to agricultural production and distributtiioonn

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.93 Page 8 of 12
EEsssseennttial CCrriitical Infrastructure Workforce

EENERGY
EElleeccttricity industtrryy:
• Workers who maintainn,, ensuree,, or restore the generation, trannssmmiissssiioonn,, andd distributtiioonn of electric powerr,, including calll centers, utility workers, reliabilittyy engineers andd fleet maintenance techniciiaannss
• Workers needed for safe and secure operations at nuclear generationn • Workers at generation, transmiissssiioon, and electric blackstart facilittiiees • Workers at RReelliiability CCoooorrddinator (RC),, Balancing Authorities (BA),, andd primary andd backup Controll Centers
(CC), including but not limited to independent system operatorrss,, regional trraannssmmiissssiioonn organizations, andd balancing authorities • Mutual assistance personnel • IT andd OT technollooggy staff –- for EMS (Energy Management Systems) andd Supervisory Controll andd Data Acquisition (SCADA) systems, andd utility data centerrss;; CCyybbeerrsecurity engineerrss;; cybersecurity risk management • Vegetation management crews andd traffic workers who support • EEnnvironnmneental remediation//nmnonitoring technicians • Instrumentation, protection, and control technicians
PPeettroleum workers:
• PPeettroleum product storage, pipeline, marine transport,, terminallss, raliil transportt,, roadd transport • Crude oil storage facilittiieess,, pipeline, andd marine transport • PPeettroleum refinery facilitiees • PPeettroleum security operations center employees andd workers who support emergencyy response services • PPeettroleum operations control roomss//centers • PPeettroleum drilliinngg, extraction, production, processinngg, refininngg,, terminal operationnss, trraannssppoorrttiinngg,, andd retaill for
use as end-use fuels or feedstocks for chemical manufacturing • OOnnshore andd offshore operations for maintenance andd emergency response • RReetail fuel centers such as gas stations and truck stops, and the distributtiioonn systems that support thheemm
Natural and propane gaos workerrss::
• Natural gas transmiissssiioonn and distributtiioonn pipeliness,, including compressor stations • UUnnderground storage of natural gas • Natural gas processing plants, and those that deall withh natural gas liquids • Liquefied Naturall Gas (LNG) facilittiiees • Natural gas security operations center, natural gas operations dispatchh and contrrooll rooms/ccentteerrs naturraall gas
emergency response and customer emergenciieess,, including naturall gas leak calls • Drilling, productionn,, processinngg, refiniinngg,, and transporting natural gas for use as end-use fuueellss,, feedstocks for
chemical manufacturiinngg, or use in electricity generation • PPrropane gas dispatch and control rooms andd emergency response and customer emergenciieess,, including
propane leak calls • PPrropane gas service maintenance andd restoratioonn,, including call centers

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.94 Page 9 of 12
Esssseennttiiaall CCrriiticaall IInnffrraassttrruuccture WWoorrkkffoorrce
• Processiinng,,rreefiinniinng,,and trraansppoorrttiinng naattuurraall lliiqquuiidds,,iinncclluuddiinng prrooppane gas,,foorr use as endd--uuse fueells oorr ffeeedstocks for cheemmicicaall mmaannuufafaccttuurriing
• Prrooppane gas sttoorraage,,ttrraannsmmiissssiion,,andd ddiistriibbuutiioon ceenntteerrs
WWAATTEER AND WWAASSTTEWWAATTEER
Emmpplloyyees neededd to opeerraatte andd mmaaiinnttaaiin driinnkiinng wwaatteerr andd wwaasstteewwaatteerr/ddrraiinnage iinnffrraassttrruucttuure,,iinnclluudiinng: • OOppeerraattiionnaall staafff aatt wwaatteerr auutthhoorriittiiees • OOppeerraattiionnaall staafff aatt commmmunuintityy wwaatteerr syysstteemms • OOppeerraattiionnaall staafff aatt wwaassttewwaatteerr ttrreeaattmmeenntt faacciillittiiees • WWoorrkkeerrs rreeppaaiiriinng wwaatteerr and wwaassttewwaatteerr conveyanceess andd perffoorrmmiinng rreequuiireedd sammpplliing oorr mmoonnititoorriing • OOppeerraattiionnaall staafff for wwaatteerr ddiistriibbuutiioon andd testiinng • OOppeerraattiionnaall staafff aatt wwaassttewwaatteerr coolllleectiioon faacciillittiiees • OOppeerraattiionnaall staafff and ttechhnniiccaall suppppoorrtt for SCADA CCoonnttrrooll systteemms • Chheemmicicaall ddiisiinnffeecttaanntt suupppplliiers for wwaassttewwaatteerr and peerrsonnnneell proteccttiioonn • WWoorrkkeerrs tthhaatt mmaaiinnttaaiin ddiiggiitaall syysstteemms iinnffrraassttrruucttuure suuppppoorrttiinng wwaatteerr andd wwaasstteewwaatteerr oppeerraattiioons
TTRANNSSPPOORRTTAATTIION AND LLOGGIISTTIICS
• Emmpplloyyees suuppppoorrttiinng or ennaabblliinng ttrraansppoorrttaattiioonn funnccttiioons,,iinncclluuddiinng diisspatcheerrs,,mmaaiinnttenance andd reeppaaiirr tteechnniiciiaans,,wwaarrehouse wwoorrkkeerrs,,trruuck stop and rreesstt areaa wwoorrkkeerrs,,andd wwoorrkkeerrs thaatt mmaaiinnttaaiinn andd iinnsspeecctt iinnffrraassttrruuccttuure ((iinncclluuddiinng tthhose thaatt rreequuiire cross--bbordeerr trravveell))
• Emmpplloyyees of ffiirrmms proviiddiinng seerrviicces thaatt ennaabblle lloogistiiccs oppeerraattiioons,,iinncclluuddiinng coooolliinng,,storiinng,,packkaaggiing,, and diistrriibbuutiinng produucctts for wwhhoolleessaalle oorr reettaaiill saalle oorr use..
• MMaassss trraannssiit wwoorrkkeerrs • WWoorrkkeerrs rreespoonnssiibblle for oppeerraattiinng diissppatchiinng passennggeerr,,commmmuutteerr andd freeiigghhtt trraaiinns andd mmaaiinnttaaiinniing rraailil
iinnffrraassttrruuccttuure and equiippmmeenntt • MMaarriittiimme ttrraansppoorrttaattiioon wwoorrkkeerrs -- poorrtt wwoorrkkeerrs,,mmaarriineerrs,,equiippmmeenntt oppeerraattoorrs • Truuck ddrriivvers who haauull hazardous andd wwaasstte mmaateterriiaalls to suppppoorrtt ccrritiiccaall iinnffrraassttrruucttuure,,caappaabibliilittiiees ,,funnccttiioons,,
and seerrviicces • Auuttommoottiive rreeppaaiir and mmaaiinttenance faacciillittiiees • MMaannuufafaccttuurreerrs andd ddiistrriibbuutors (ttoo iinncclluudde seerrvice cenntteerrs andd rreellaatteedd oppeerraattiioons))ooff packaaggiing mmaateteririaalls,,
paalllets,,crates,,connttaaiineerrs,,andd otheerr suupppplliies neededd to suuppppoorrtt mmaannuufafaccttuurriing,,packaaggiing stagiinng andd ddiistriibbuutiioon oppeerraattiioons • Poossttaall andd shhiippiinng wwoorrkkeerrs,,to iinncclluudde priivvaate commppaanniies • Emmpplloyyees who rreeppaaiirr and mmaaiinnttaaiin veehhiicles,,aaiircraafftt,,rraailielquiippmmeenntt,,mmaarriine vesssseells,,and tthhe equiippmmeenntt andd iinnffrraassttrruuccttuure thaatt enaabblles oppeerraattiioons thaatt encoommppaassss mmoovvemmeenntt ooff cargo and passeennggeerrs • AAiir ttrraannsppoorrttaattiioon emmppllooyyees,,iinncclluuddiinng aaiir traafffic coonnttrroolllers,,rraammp peerrsonnnneell,,aavviiaattiioon seeccuurriitty,,andd aavviiaattiioonn mmaannaaggemmeenntt • WWoorrkkeerrs who suppppoorrtt tthhe mmaaiintteenance and oppeerraattiionn of cargo by aaiir trraansppoorrttaattionn,,iinnclluuddiinng flliigghht crreews,, mmaaiintteenance,,airrppoorrt oppeerraattiioons,,andd otheerr on -- and oofff-- aaiirpoorrtt faacciillitiiees wwoorrkkeerrs

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.95 Page 10 of 12
EEsssseennttial CCrriitical Infrastructure Workforce

PUUBLIC WORKS
• Workers who support the operationn,, inspectionn,, andd maintenance of essentiall dams, locks andd levees • Workers who support the operation, inspectionn,, and maintenance of essentiaall public works facilittiiees andd
operations, including bridges, water and sewer mainn breakss,, fleet maintenance personnell,, constructiioonn of critical or strategic infrastructurree,, traffic signal maintenanccee,, emergencyy locationn services for buriedd utilittiieess,, maintenance of digital systems infrastructure supporting public works operationnss, andd other emergent issues • Workers such as plumberrs,, electricians, exterminattoorrss,, andd other service providers who provide services that are necessary to maintaining the safettyy, sanitatiioon, and essential operationn of residences • Support, such as roadd and line clearinngg,, to ensure the availability of needed faciliittiieess,, transportattiioonn,, energy and communications •• Support to ensure the effective removal, storage, andd disposall of residentiall andd commercial soliidd waste andd hazardous waste
CCOOMMMUNICATIOONSS AND INFORMAATTIIOONN TECHNOLOOGGYY
CCoommmunications:
• Maintenance of communications infrastructure- including privatelly ownedd andd maintainneedd communicattiioonn systems- supported by techniciiaannss, operators, calll-centerss,, wireline andd wireless providerrss,, cable service providers, satellite operations, undersea cable landing statiioonnss,, Internet Exxcchhange Points,, andd manufacturreerrs and distributors of communications equipment
•• Workers who support radio, telleevision, and media servicee,, includiinngg,, but not limited to front line news reporters, studio, and technicians for newsggaathering and reporting
• Workers at Independent Systemm OOpperators and Regionall Transmission Orrggaanizations, andd Network Operations staff, engineers andd//or technicians to manage the network or operate facilittiiees
• EEnngineers, technicians and associated personnell responsible for infrastructurree constructiioonn andd restoratiioonn,, including contractors for construction and engineering of fiber optic cables
• Installatiioonn,, maintenance and repair technicians that establishh,, support or repair service as neededd • CCeentral office personnel to maintain and operate central offiiccee,, data centerrss,, andd other network office facilittiieess • CCuussttomer service and support stafff,, including managedd andd professional services as welll as remote providers
of support to transitioning employees to set up andd maintain home offiicceess,, who interface withh customers to manage or support service environments and security issues, including payroll, billinngg,, frraauudd,, andd troubleshooting • Dispatchers involvedd with service repair and restorationn
Information Technollooggyy:
• Workers who support commandd centers, includiinngg,, but not limitedd to Network Opperations Commanndd Centeerr,, Broadcast OOppeerations Control Center and Security OOperations CCoommandd CCeenter
• Data center operators, including system administrattoorrss,, HVAC & electricall engineerrss,, security personneell,, IT managers, data transfer solutions engineerrss,, software and hardware engineerrss,, andd database administrattoorrss
• CCllient service centerrss,, field engineers, andd other technicians supporting criticaall infrastructtuurree,, as welll as

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.96 Page 11 of 12
EEsssseennttial CCrriitical Infrastructure Workforce
manufacturers and supply chain vendors that provide hardware andd softwarree,, andd informationn tteecchhnnoollooggyy equipment (to include microelectronics and semiconducttoorrss)) for criticall infrastructure • Workers responding to cyber incidents involving critical infrastructtuurree,, including medical faciliittiieess,, SLTT governments and federal facilittiieess,, energy andd utilitiiees, andd banks andd financial instituttiioonnss,, andd other criticaall infrastructure categories andd personnel • Workers supporting the provisionn of essentiall global, nationall and locall infrastructuurree for computing services (incl. cloud computing services), business infrastructuurree,, web -basedd services, andd criticcaall manufacturing • Workers supporting communications systems and informatiioonn technnoollooggy usedd by law enforcementt,, public safettyy, medical, energy andd other criticall industries • Support required for continuity of services, including janitorial//cclleeaanniinng personnel
OTHER CCOOMMMUNITTY-BASED GGOOVVEERRNMENT OPERATIONSS AND EESSSEENTTIAL FFUUNCTIONS
• Workers to ensure continuittyy of building functions • Security staff to maintain building access control and physicall security measures • EElleections personnel • FFeederal, State, and Local, Tribal, and Territoriall employees who support Missionn EEsssentiall FFuunctions andd
communications networks • Trade OOffficials (FETA negotiators; internationall data flow administrattoorrss) • Weather forecasters • Workers that maintain digital systems infrastructure supporting other criticall government operations • Workers at operations centers necessary to maintain other essential functiioons • Workers who support necessary credentialiinngg, vetting and licensing operations for transportattiioonn workers • CCuustoms workers who are critical to facilitating trade inn support of the nationall emergency response supply
chain • EEdduucators supporting public and private K--112 schoolss,, colleges, andd universities for purposes of facilitatiinng
distance learning or performing other essential functtiioonnss,, if operating under rules for sociall distancing • Hotel Workers where hotels are used for COOVVIIDD--119 mitigatiioonn andd containment measures
CCRRITICAL MANUUFACCTURINNGG
• Workers necessary for the manufacturing of materials andd products neededd for medicall supply chains,
transportation, energy, communicationnss, food andd agriculture, chemicall manufacturriinngg,, nuclear faciliittiieess,, thhee operation of dams, water and wastewater treatmentt,, emergency services, andd the defense industrial basee..
HAZARDOOUUS MATERIALS
• Workers at nuclear facilittiieess,, workers managing medicall waste, workers managing waste fromm pharmaceuticals and medical material production, and workers at laboratories processing test kits
• Workers who support hazardous materials response andd cleanup • Workers who maintainn digital systems infrastructure supporting hazardous materials management operations

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Case 1:20-cv-00414 ECF No. 1-7 filed 05/12/20 PageID.97 Page 12 of 12
EEsssseennttial CCrriitical Infrastructure Workforce
FFIINANCCIAL SERVICCES
• Workers who are needed to process and maintaiinn systems for processing financiiaall transactions andd services
(e.g., payment, clearinngg, and settlement; wholesale funddiinngg;; insurance serviceess;; and capitall markets activitiieess))
• Workers who are needed to provide consumer access to banking andd lending servicess,, including ATMs, andd to
move currency andd payments (e.g., armored cash carriers)
• Workers who support financiall operations, suchh as those staffing data andd securittyy operations centers
CCHHEEMICAL
• Workers supporting the chemical andd industriall gas supply chainss,, including workers at chemicall manufacturing plants, workers in laboratories, workers at distributiioonn facilittiieess,, workers who transport basic raw chemicall materials to the producers of industriall and consumer goods, including hand sanitiizzers, foodd andd ffooodd additiivves, pharmaceuticals, textiles, and paper producttss..
• Workers supporting the safe transportatiioon of chemicallss,, including thhoose supporting tank truck cleaning facilities and workers who manufacture packaging items
• Workers supporting the productionn of protective cleaning andd medicall solutionnss,, personall protective equipmentt,, and packaging that prevents the contaminatiioonn of foodd,, waterr,, medicine, among others essentiaall products
• Workers supporting the operation andd maintenance of facilitiiees (particularly those withh highh risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely andd requires the presence of highllyy trained personnel to ensure safe operations, including plant contract workers who provide inspections
• Workers who support the productionn and transportattiioonn of chlorine and alkali manufactuurriinngg,, single-use plastics, andd packaging that prevents the contaminatiioonn or supports the continuueedd manufacture of foodd,, water, medicine, and other essentiall products, including glass container manufacturing
DEFENSE INDUSTRIAL BASE
•• Workers who support the essential services requiredd to meet national security commitments to the federall government and U.S. Milittaarryy.. These individuals, include but are not limiteedd to, aerospace; mechanicall andd software engineers, manufacturing//pprroodducttiioonn workers; IT supportt;; security stafff;; security personnell;; intelligence support, aircraft and weaponn system mechanics and maintainers
• PPeersonnel working for companies, and their subcontracttoorrss,, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, andd government-owwnneedd//contracttoorr-operated and government-owned//ggovernmentt--operatteedd facilittiieess

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Case 1:20-cv-00414 ECF No. 1-8 filed 05/12/20 PageID.98 Page 1 of 11
EXHIBIT 8

Case 1:20-cv-00414 ECF No. 1-8 filed 05/12/20 PageID.99 Page 2 of 11

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN OFFICE OF THE GOVERNOR
LANSING

GARLIN GILCHRIST II
LT. GOVERNOR

SECRETARY OF SENATE 2020 APR 9 Pm2:48

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).

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Case 1:20-cv-00414 ECF No. 1-8 filed 05/12/20 PageID.100 Page 3 of 11
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.
2

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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 web site, 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 5

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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. CO 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.
(1) 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.
(e) 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 9

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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 9

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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
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EXHIBIT 10

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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
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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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EXHIBIT 11

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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,
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
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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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Case 1:20-cv-00414 ECF No. 1-11 filed 05/12/20 PageID.153 Page 17 of 18
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-00414 ECF No. 1-11 filed 05/12/20 PageID.154 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-00414 ECF No. 1-12 filed 05/12/20 PageID.155 Page 1 of 3
EXHIBIT 12

5/12/2020

Case 1:20-cv-00414 ECF No. 1-A1G2- Tfiiplesdfor0E5va/1lua2ti/n2g0ComPplaaigntes ID.156 Page 2 of 3 OFFICIAL WEBSITE OF MICHIGAN.GOV

OF

.,1

AD Tr TrOrRNEY GENERAL

AG

Tips for Evaluating Complaints

On page 5 of EO 2020-21, federal guidance is incorporated by reference into the EO to help define "critical infrastructure workers." This federal guidance is from the U.S. Cybersecurity and Infrastructure Security Agency and provides important details and examples of what types of businesses are permitted to operate under the EO. A link to that document is below and it should be reviewed prior to making a determination about the existence of a violation.
• Guidance on the Essential Critical Infrastructure Workforce

Michigan Department of Attorney General Written Public Summary of the Department's Freedom of Information Act Procedures and Guidelines Michigan Department of Attorney General Freedom of Information Act Procedures and Guidelines FOIA AG Privacy Policy AG Web Disclaimer

MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES

COPYRIGHT 2020 STATE OF MICHIGAN

https://www.michigan.govffig/0,4534,7-359-98784_98817-523171—,00.html

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5/12/2020

Case 1:20-cv-00414 EGCuiFdanNceoo.n1th-e1E2ssfeilneliadl C0ri5tic/a1' 2In/f2ra0strucPtuaregWeoIrDkfo.r1ce517CISPA age 3 of 3 TLP:WHITE

GUIDANCE ON THE ESSENTIAL CRITICAL INFRASTRUCTURE WORKFORCE
Original release date: March 19, 20201 Last revised: April 24, 2020

CISA's Identifying Critical Infrastructure During COVID-19 guidance and accompanying listare intended to support state, local, and industry partners in identifying the critical infrastructure sectors and the essential workers.

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.

CISA issued the guidance originaily on March 19 and has continued to update it based on feedback from the Critical Infrastructure community. The most recent update on April 17, 2020, clarifles the description of a small number of essential services and functions in the list.

If you have feedback or additional questions, please reach out to: CISA.CAT@cisa.dhs.gov Taxonomy Topics: Infrastructure Security Attachment
I1 Version 3.0- CISA's Guidance on Essential. Critical Infrastructure Workers I1 Ver 3.0 - Guía sobre la Fuerza de Trabajo Esencial de Infraestructura Critica 1 Ver 3.0 - Lignes directrices sur les travailleurs essentiels des infrastructures critiques

796.49 KB 607.88 KB 67631 KB

https://www.cisa.gov/publication/guidance-essential-critical-infrasInxture-workforce

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Case 1:20-cv-00414 ECF No. 1-13 filed 05/12/20 PageID.158 Page 1 of 3
EXHIBIT 13

Case 1:20-cv-00414 ECF No. 1-13 filed 05/12/20 PageID.159 Page 2 of 3

GRETCHEN WHITMER
GOVERNOR

STTAATTEE OOFF MMIICCHHIIGGAANN
DEPARTMENT OF HEALTH AND HUMAN SERVICES LAANNSSIINNGG

ROBERT GORDON
DIRECTOR

DIRECTOR'’S ORDER

Emergency OOrrder Pursuant to MCL 333.2253 RReeggaarrding Executive OOrrders 2020-11, 2020-20, and 2020-21

The novel coorroonnaavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is caused by a new strain of coorroonnaaviirrus 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 110, 2020, the Micchhigan DDeeppaarrtment of Health and Human Services identified the firrst two presumptive-poossitive cases of COVID-19 in Michigan. On that same day, Goovveerrnor GGrretchen WWhhiittmer issued Executive Order 2020-4 deccllaaring a state of emergency across the state of Micchhigan under section 1 of arttiiccle 5 of the Micchhigan CCoonnssttitution of 1963, the Emergency Management Act, 11976 PA 390, as amended, MCL 30.401-.421, and the Emergency Powers of the Goovveerrnor Act of 1945, 1945 PA 302, as amended, MCL 110.31-.33. And in response to the widesspread and severe health, economic, and social harms posed by the COVID-19 panddeemmiicc, the Goovveerrnor issued Executive OOrrder 2020-33 on April 11, 2020. This orrder expanded on Executive OOrrder 2020-4 and decclared both a state of emergency and a state of disaster across the state of Micchhigan under section 1 of arttiiccle 5 of the Micchhigan CCoonnssttiittution of 11963, the Emergency Management Act, and the Emergency Powers of the Goovveerrnor Act of 1945.

As of April 1, 2020, there were 9,334 cases of COVID-19 diagnosed in Micchhigan and 337 reported deaths. The expoonneenntial increase in cases demmoonnssttrrates that many of these cases are the result of widening coommmmuunity spread.

Social distancing measures, including isolation of persons affectted by COVID-19, are essential to coonnttrol the epidemiicc. Social distancing is the primary tool available to slow the spread of COVID-19 and reduce the ovveerrwhelming strain on the State'’s healthcare system.

On March 116, 2020, Goovveerrnor WWhhitmer issued Executive OOrder 2020-11 ree: Tempoorrary prohibition on large assemblages and eveennts and temporary school cloossures.

On March 22, 2020, Goovveerrnor WWhhitmer issued Executive OOrder 2020-20 ree: Tempoorrary restrriiccttions on the use of places of public accoommmodation.

On March 23, 2020, Goovveerrnor WWhhitmer issued Executive OOrder 2020-21 ree: Tempoorrary requirement to suspend activities that are not necessary to sustain or protect life (i.e., stay home stay safe orderr)).

Coonnssidering the above, and upon the advice of scientific and medical experts employed by the Micchhigan DDeeppaarrtment of Health and Human Services, I have coonncluded pursuant to MCL 333.2253 that COVID-19 has reached epidemic status in Michigan. I further coonnclude that coonntrol of the epidemic is necessary to protect the public health and that it is necessary to establish procedures to be followed during the epidemic to ensure the coonnttinuation of essential public health services and enfoorrcceemmeennt of health laws.
333 SOUTH GRAND AVENUE • PPO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-241-3740

Case 1:20-cv-00414 ECF No. 1-13 filed 05/12/20 PageID.160 Page 3 of 3
I therreefore order thatt:: 1. The proceeddures and restrriicctions outlined in EO 2020-11, EO 2020-20, and EO 2020-21 and their accoommppaanying frequently asked questions (FAQs) that may be updated from time-to-time ((aavailable at www.micchigan.gov/ccoorroonnaviruss) are neceesssary to coonntrol the epidemic and protect the public health. Every person, as that term is defined in MCL 333.1106, in this Stattee, must coommply with the proceeddures and restrriicctiions outlined in EO 2020-11, EO 2020-20, and EO 2020-21 and their accoommppaanying FAQs. 2. This OOrrder applies to any future Executive OOrrder that may be issued that rescinds and replaces EO 2020-11, EO 2020-20, or EO 2020-21. 3. Pursuant to MCL 333.2235(1), I authhoorize local health deeppaartments to ccarry out and enforce the terms of this Order. 4. Chiefs of police, sherriifffs, and ootther local law enfoorrcceemmeennt leaders are specifically authhorized to investigate poottential vioollaations of EO 2020-11, EO 2020-20, and EO 2020-21. They may coooorrddiinnate as necessary with the local health deeppaartment and enforce this Order within their jurissddiiccttiion. Law enfoorrcceemment is specifically authhoorized to bar access to businesses and opeerrations that fail to coommply with the procceedduures and restrriicctiions outlined in EO 2020-11, EO 2020-20, and EO 2020-21 and its acccoommppaanying FAQs. Coouunty prosecutors are likewise specifically authhoorized to enforce this OOrrder to coonnttrol the epidemic and protect the public health in coooorrddiinnaation with the appropriate local law enfoorrcemment authority and, as necessary, the local health deppaartment.
This OOrrder is effective immediately and remains in effect until vacated in writing or until the state of emergency in Micchhigan ceases.
Date: April 2, 2020
_______________________________________ Roobbeerrt Gordon, Director
Micchhigan DDeeppaarrtment of Health and Human Services
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EXHIBIT 14

Case 1:20-cv-00414 ECF No. 1-14 filed 05/12/20 PageID.162 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN OFFICE OF THE GOVERNOR
LANSING

GAMIN GILCHRIST II LT. GOVERNOR

SENATE JOURNAL APR 30 2020 Pm9:27
EXECUTIVE ORDER
No. 2020-66
Termination of the states of emergency and disaster declared under the Emergency Management Act in Executive Order 2020-33
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 new 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. The virus's rapid and relentless spread threatened to quickly 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. And the virus had also brought 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. 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, MCI, 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.
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 have issued
GEORGE W. ROMNEY BUILDING • Ill SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 1:20-cv-00414 ECF No. 1-14 filed 05/12/20 PageID.163 Page 3 of 5
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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 41,379 confirmed cases of COVID-19 in Michigan, and 3,789 deaths from the disease—fourfold and tenfold increases, respectively, since the start of this month. And there are still countless more who are infected but have not yet been tested. There remains no treatment for the virus; it remains exceptionally easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we still lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster.
The economic and social harms from this pandemic likewise persist. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations. Michiganders are losing their jobs in record numbers: to date, roughly one quarter of the eligible workforce has filed for unemployment. And state revenue, used to fund many essential services such as our schools, has dropped sharply.
The economic damage—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 24% 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 has already reached its highest unemployment rate since the Great Depression. On April 9, 2020, economists at the University of Michigan forecasted that the U.S. economy will contract by 7% in the second quarter of this year, or roughly an annualized rate of 25%. As a result, many families in Michigan will struggle to pay their bills or even put food on the table.
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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. The closure of museums and theaters limits people's ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus's spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Although local health departments have some limited capacity to respond to cases as they arise within their jurisdiction, 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 hotspots as they arise. 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, which would undermine infection control and contribute to further spread of the virus. 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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., provides that "[t]he governor shall, by executive order or proclamation, declare a state of emergency" and/or a "state of disaster" upon finding that an emergency and/or disaster has occurred or is threatening to occur. MCL 30.403(3) & (4). The Emergency Management Act further provides that a declared state of emergency or disaster
shall continue until the governor finds that the threat or danger has passed, the [disaster/emergency] has been dealt with to the extent that [disaster/ emergency] conditions no longer exist, or until the declared state of [disaster/ emergency] has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of [disaster/ emergency] terminated, unless a request by the governor for an extension of the state of [disaster/emergency] for a specific number of days is approved by resolution of both houses of the legislature. [Id.]
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For the reasons set forth above, the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist. Twenty-eight days, however, have elapsed since I declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33. And while I have sought the legislature's agreement that these declared states of emergency and disaster should be extended, the legislature—despite the clear and ongoing danger to the state—has refused to extend them beyond today.
Accordingly, acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The state of emergency declared under the Emergency Management Act in Executive Order 2020-33 is terminated.
2. The state of disaster declared under the Emergency Management Act in Executive Order 2020-33 is terminated.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 30, 2020 Time: 7:29 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
SECRETARY OF STATE

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EXHIBIT 15

Case 1:20-cv-00414 ECF No. 1-15 filed 05/12/20 PageID.167 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

GARLIN GILCHRIST II LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-68
Declaration of states of emergency and disaster under the Emergency Management Act, 1976 PA 390

SENATE JOURNAL APR 30 2020 Pm9:27

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 new 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. The virus's rapid and relentless spread threatened to quickly 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. And the virus had also brought 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. 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.
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

GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 1:20-cv-00414 ECF No. 1-15 filed 05/12/20 PageID.168 Page 3 of 5
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 have 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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 41,379 confirmed cases of COVID-19 in Michigan, and 3,789 deaths from the disease—fourfold and tenfold increases, respectively, since the start of this month. And there are stili countless more who are infected but have not yet been tested. There remains no treatment for the virus; it remains exceptionally easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we stili lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster.
The economic and social harms from this pandemic likewise persist. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations. Michiganders are losing their jobs in record numbers: to date, roughly one quarter of the eligible workforce has filed for unemployment. And state revenue, used to fund many essential services such as our schools, has dropped sharply.
The economic damage—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 24% 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 has already reached its highest unemployment rate since the Great Depression. On April 9, 2020, economists at the
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University of Michigan forecasted that the U.S. economy will contract by 7% in the second quarter of this year, or roughly an annualized rate of 25%. As a result, 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. The closure of museums and theaters limits people's ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus's spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Although local health departments have some limited capacity to respond to cases as they arise within their jurisdiction, 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 hotspots as they arise. 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, which would undermine infection control and contribute to further spread of the virus. 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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., provides that "[t]he governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency." MCL 30.403(1). In particular, the Emergency Management Act mandates that "[t]he governor shall, by executive order or proclamation, declare a state of emergency" and/or a "state of disaster" upon finding that an emergency and/or disaster has occurred or is threatening to occur. MCL 30.403(3) & (4). Under the Emergency Management Act, an emergency constitutes "any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state." MCL 30.402(h). And a disaster constitutes "an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, . . . epidemic." MCL 30.402(e).
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Acting under the Michigan Constitution of 1963 and Michigan law: 1. I now declare a state of emergeney and a state of disaster across the State of Michigan under the Emergeney Management Act. 2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist. 3. This order is effective immediately and continues through May 28, 2020 at 11:59 pm. 4. I will evaluate the continuing need for this order prior to its expiration. 5. All previous orders that rested on Executive Order 2020-33 now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 30, 2020 Time: 7:30 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
SECRETARY OF STATE

4

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EXHIBIT 16

Case 1:20-cv-00414 ECF No. 1-16 filed 05/12/20 PageID.172 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

GARLIN GILCHRIST II
T. GOVERNOR

EXECUTIVE ORDER
No. 2020-67
Declaration of state of emergency under the Emergency Powers of the Governor Act, 1945 PA 302

SENATE JOURNAL APR 30 2020 Pm9:27

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 new 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. The virus's rapid and relentless spread threatened to quickly 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. And the virus had also brought 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. 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.
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

GEORGE W. ROMNEY BUILDING • ill SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
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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 have 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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 41,379 confirmed cases of COVID-19 in Michigan, and 3,789 deaths from the disease fourfold and tenfold increases, respectively, since the start of this month. And there are still countless more who are infected but have not yet been tested. There remains no treatment for the virus; it remains exceptionally easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we still lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster.
The economic and social harms from this pandemic likewise persist. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations. Michiganders are losing their jobs in record numbers: to date, roughly one quarter of the eligible workforce has filed for unemployment. And state revenue, used to fund many essential services such as our schools, has dropped sharply.
The economic damage—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 24% 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 has already reached its highest unemployment rate since the Great Depression. On April 9, 2020, economists at the University of Michigan forecasted that the U.S. economy will contract by 7% in the second quarter of this year, or roughly an annualized rate of 25%. As a result, many families in
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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. The closure of museums and theaters limits people's ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus's spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Although local health departments have some limited capacity to respond to cases as they arise within their jurisdiction, 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 hotspots as they arise. 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, which would undermine infection control and contribute to further spread of the virus. 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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq., provides that "[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state . . . the governor may proclaim a state of emergency and designate the area involved." MCL 10.31(1). The state of emergency ceases "upon declaration by the governor that the emergency no longer exists." MCL 10.31(2).
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
2. This order is effective immediately and continues through May 28, 2020 at 11:59 pm.
3. I will evaluate the continuing need for this order prior to its expiration.
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4. Executive Order 2020-33 is rescinded and replaced. All previous orders that rested on Executive Order 2020-33 now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 30, 2020 Time: 7:30 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
SECRETARY OF STATE

4

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EXHIBIT 17

Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.177 Page 2 of 16

R TAI
7:8

U.S. Deeppaartment of Homeland Seeccuurrity Cybersecurity & Infrastructure Security Agency Office offthe Director Washington, DC 20528
CISA
CYBER+INFRASTRUCTURE:

March 28, 2020

ADVISORY MEMORRAANNDUM 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 116tthh 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 Secuurriittyy’'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 naturree. It is not, nor should it be considered, a federal directive or standard. Additionaallly, this advisory list is not intended to be the exclusive list of critical inffrastructure sectors, workers, and functions that should continue during the COVID-19 response across all jurriissddiiccttiioons. Individual jurriissddiiccttiions should add or subtract essential workforce categories based on their own requirements and discretion.
The advissoorryylist 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,

Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.178 Page 3 of 16
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 Nationn’'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 2.0”"

Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.179 Page 4 of 16

GGuuiidance on the EEsssseennttial CCrriitical Infrastructure Workforce: EEnnssuurring Coommmunity and NNaattional Ressiilience in COVVIID--119 Response
Version 2.0 (March 28,, 2020)
THE IMPORTANNCCE OF ESSENTIAL CRITICAL INFRAASSTTRRUUCCTURE WORKEERS
FFuunnctioning critical infrastructure is imperativve during the response to the COOVVIIDD--119 emergency for bothh public healtthh and safety as well as conmnmnnuunnity well-beinngg. Certain critical infrastructurre industries have aa special responsibilityy inn these times to continue operations.
This advisory guidance and acconmnppanying list are intendedd to support stattee,, locall,, tribbaall,, territooriiaall andd industrryy partners in identifying the critical infrastructure sectors and the essential workers needed to maintaiinn the services andd functtiioonnss Amnneerriiccans depend onn daily and that need to be able to operate resiliently during the COVVIIDD--1199 pandemic response..
This document gives advisory guidance on defining essential criticall infrastructure workeerrss.. Promnnootting the abilittyy of suchh workers to continue to work during periods of conmnmmuunity restrictionn,, access managementt,, sociall distaanncciinngg,, or closure orders/diirreeccttiivvees is crucial to comnmnuunity resilience andd continuity of essentiall functtiioonnss..
CISA will continually solicit and accept feedback on the list andd will evolve the list inn response to stakeholder feedbaacckk.. We will also use our various stakeholder engagement mechanisms to work withh partners onn how they are using this list and share those lessons learnedd and best practices broaddllyy.. FFeeeedback cann be sent to CISA.CAT@@CCIISA.DHS.GGOOVV..
COONNSIDERATIONS FOR GOVVEERRNNMENT AND BUSINESS
This list was developedd in consultatiioonn with federal agency partneerrss,, industry expertss,, and State andd locall officiiaallss,, andd is based on several key principlleess::
1L. RReesponse efforts to the COOVVIIDD--119 pandemic are locally executedd,, state managedd,, andd federalllyy supportteedd..
2. EEvveeryone should follow guidance fromm the CDC,, as well as State andd local government officiiaallss,, regarding strategies to limit disease spread.
3. Workers shouldd be encouraged to work remotely whenn possible and focus on core business activittiieess.. Inperson, non-nmnaannddatory activities should be delayed untill the resunmnpptionn of normall operationnss..
4. When continuous remote work is not possiblee, businesses shouldd enlist stratteeggiiees to reduce the likelihhoooodd of spreading the disease. This includes, but is not necessarily linmniitedd too,, separating staff by off-setting shift hours or days andd//or social distancinngg. These steps cann preserve the workforce andd allow operations to continnuuee..
5. All organizations should imnnpplleemment their business continuity and pandemic plans or put plans inn place if thheeyy do not exist. Delaying imnnpplleemmeenntationn is not advisedd andd puts at risk the viability of the business andd the

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.180 Page 5 of 16 EEsssseennttial CCrriticall Infrastructure Workforce
health and safety of the empllooyyees.
6. RReelliance on technology and juust-in-time supply chains means that certainn workers must be able to access certain sites, facilitiiees, and assets to ensure continuity of functtiioonnss..
7. GGoovveerrnnment emplooyyees, such as emergency managers, andd thee business communityy needd to establishh andd maintain lines of communicatiioonn..
8. When government and businesses engage in discussions about essential criticall infrastructure workers,thheeyy need to consider the implications of business operations beyondd thee juriissdiiccttiioonn where thee asset or facilittyy is located. Businesses can have sizeable economic and societall impacts as welll as suppllyy chainn dependencies that are geogra phicalIlydistri butedd..
9. Whenever possible, jurisdictiioons shouldd alignn access and movement controll policies relateedd to criticaall infrastructure workers to lower the burden of workers crossing jjuurriissdiiccttiioonnaall boundariieess..
IDENTIFYING ESSENTIAL CRITICAL INFRASSTTRRUUCTURE WORKERS
The following list of identified essential criticall infrastructure workers is intendeedd to be overly inclusive reflecting tthhee diversity of industries across the UUnnitedd Stateess..

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Defense Industrial Base

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Energy

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Nuclear Reactors. Materials & Waste

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.181 Page 6 of 16 EEsssseennttial CCrriticall Infrastructure Workforce
HEALTHCARE / PUBLIC HEALTH
• Workers who perform critical clinicall researchh,, developmentt,, andd testing neededd for COVVIIDD--1199 responnssee..
• HHeeaalthcare providers andd CCaaregivers including physicianss,, dentisttss,, psychologistss,, midd-levell practitiioonneerrss,, nursess and assistanttss,, infection controll andd qualityy assurance personnneell,, pharmacisttss,, physicall andd occupationnaall therapists andd assistanttss,, sociall workerrss,, optometristtss,, speechh pathologisttss,, chiropracttoorrss,, andd diagnostic andd therapeutic technicians and technologisttss..
• Hoospital and laboratory personnell (including accountiinngg,, administrraattiivvee,, admitting andd dischaarrggee,, engineeriinngg,, epidemiologicall,, source plasmaa andd bloodd donatiioonn,, foodd serviccee,, housekeepiinngg,, medicaall recorddss,, informatiioonn technollooggy andd operationall techhnnoollooggyy,, nutritioniissttss,, sanitariiaannss,, respiratorryy therapiissttss,, etcc..))..
• Workers in other medical and biomedical facilitiiees (including Ambulatory Healthh andd Surgicaall,, Bloodd Bankkss,, CCllinics,, CCoommmunity Mental Healthh,, CCoommprehensive OOuuttpatient rehabilitatiioonn,, Endd Stage Renall Diseassee,, Healthh DDeeppartmenttss,, Home Healthh caree,, Hospices,, Hospitallss,, Long Termm Caree,, Nursing Care Facilitiieess,, Organn PPhharmaciess,, PPrrooccuurrement OOrrganizations,, PPssyycchhiatric RReessiidentiaall,, Rural Healthh Clinics andd FFeederally QQuualifieedd Health CCeenters, andd retail facilitiiees specializing inn medicall goodd andd supplliieess))..
• Manufacturer workers for healthh manufacturing (including biotechnnoollooggyy companniieess)),, materiallss andd parts supplierrss,, logistics andd warehouse operatoorrss,, distributoors of medicall equipment (including those who test andd repairr)),, personal protective equipment (PPE),, isolationn barrierrss,, medicall gases,, pharmaceuticals (including materials usedd inn radioactive drugss)), dietary supplementtss,, bloodd andd bloodd producttss,, vaccinneess,, testing materiiaallss,, laboratory suppliieess,, cleaninngg,, sanittiizziinngg,, disinfecting or sterilizzattiioonn supplliieess,, andd tiisssue andd paper towell products..
• PPuublic healthh / communityy health workerrss,, including those who compillee,, modeell,, anaallyyzze andd communicate publiicc healthh informatiioonn..
• Blood andd plasmaa donors andd the empllooyyees of the organizations that operate andd manage relatteedd activittiieess..
• Workers who manage health plans,, billinngg,, andd healthh informatiioonn,, who cannot practicalllyy work remotteellyy..
• Workers who conduct communittyy-basedd public healthh functtiioonnss,, conducting epidemiolooggic surveilllaannccee,, compiliinngg,, analyzing and communicating public healthh informatiioonn,, who cannot practically work remotteellyy..
• Workers performing informattiioonn technnoolloogy and cybersecurity functtiioonnss at healthcarre andd public healthh faciliittiieess,, who cannot practically work remotteellyy.
• Workers performing securiittyy,, incident managementt,, andd emergency operations functtiioonnss at or onn behalf of healthcare entities including healthcare coalitionnss,, who cannot practicalllyy work remotteellyy..
• PPhharmacy employees necessssaaryyto maintaiinn uninterruptteedd prescriptionn filllliinngg..
• Workers performing mortuary fuunneerraall,, cremattiioonn,, buriaall,, cemeetteerryy,, andd relateedd serviceess,, including funneerraall homeess,, crematoriummss,, cemetery workerrs,, andd coffin makerrss..
• Workers who coordinate with other organizations to ensure the proper recoveerryy,, handliinngg,, identificattiioonn,, transportattiioonn,, trackkiinngg,, storraaggee,, andd disposall of humann remains andd personall effecttss;; certiffyy causee of deatthh;; and facilitate access to mental//bbeehhaavviioorraall healthh services to the famiillyy memberrss,, responddeerrss,, andd survivorrss of an incident..

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.182 Page 7 of 16 EEsssseennttial CCrriticall Infrastructure Workforce
LAW ENFORCEMENNT, PUBLIC SAFETY, AND OTHER FIRST RESPONDERS
• PPuublic, private, andd voluntary personnell (front line and managementt)) in emergency managementt,, law enforcement, fire andd rescue services, emergency medical services, andd private securittyy,, to include public andd private hazardous material responderrss,, air medical service providers (pilots andd supporting technniicciiaannss)),, correctionnss,, and search and rescue personnell..
• 911 call center employees and PPuublic Safety Answering PPooints who can’'t performm their duties remotteellyy.. • FFuusion CCeenntereenmnployees. • Workers –- including contracted vendors -- who maintainn,, manufactuurree,, or supply equipment andd services
supporting law enforcement emergency service andd response operations (to include electronic securittyy andd life safety security personnell))..
• Workers supporting the manufacturing of safety equipment and uniforms for law enforcementt,, public safettyy personnel, andd first responderr..
• Workers supporting the operation of firearm or ammunitiioonn product manufacttuurreerrss,, retailerrss,,importteerrss,, distributtoorrss, andd shooting ranges.
• PPuublic agency workers responding to abuse andd neglect of childrreenn,, elders, andd dependentadullttss.. • Workers who support weather disaster / natural hazard mitigation andd preventionnactivittiieess.. • Security staff to maintainn building access controll and physical security measureess..
FOOD AND AGRICULTURE
• Workers supporting groceriess,, pharmacies, convenience storreess,, andd other retail (including unattennddeedd andd vending) that sells human food, animaall//pet food andd pet supppllyy, andd beverage producttss,, including retaiill customer support service and informatiioonn technnoollooggy support staff necessary for online orderrss,, pickup andd deliverryy.
• RReessttaurant carry-out and quick serve foodd operatiioonnss,, including dark kitchen andd foodd prep centeerrss,, andd carrrryy-out and delivery foodd emplooyyeess..
• Food manufacturer employees and their supplier employees—tto include thhoose emplooyyedd inn foodd ingredient production andd processing facilittiieess; livestock,, poulttrryy,, seafoodd slaughter faciliittiieess;; pet andd animal feeedd processing facilittiieess;; human food facilitiiees producing by--pprroducts for animall foodd;; beverage productiioonn faciliittiieess;; and the production of foodd packaginngg.
• FFaarmers,, farm workers, and agribusiness support services to include those empllooyyedd inn auctionn andd saleess:: grainn and oilseed handlinngg, processing andd distributiioonn;; animall foodd,, feedd,, andd ingredient productiioonn,, packaginngg,, andd distributiioonn;; manufacturriinngg,, packaginngg,, andd distributiioon of veterinary druuggss;; truck deliverryy andd transportt;; farmm and fishery labor needed to produce our food supplydomestiiccallllyy andd for exportt..
• FFaarmers,, farm workers, support service workerrss,, andd their supplier emplooyyees to include those engagedd inn producing and harvesting field crops;; commodity inspectioonn;; fuell ethanoll facilittiieess;; biodiesel andd renewable diesel facilittiieess;; storage facilittiieess;; and other agriculturall inputtss..
• EEmmployees and firms supporting the distributtiioonn of foodd,, feedd,, and beverage andd ingredients usedd inn thheessee products, including warehouse workerrss,, vendorr-- managedd inventorryy controllers andd blockchainn managerrss..
• Workers supporting the sanitation and pest controll of alll foodd manufacturing processes andd operations frroomm wholesale to retail.
• EEmmployees inn cafeterias usedd to feedd employyees, particularllyy employee populations shelterreedd against COVVIIDD--119..
• Workers in animal diagnostic andd foodd testing laboratories inn private industries andd in instituttiioonnss of higher education.

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.183 Page 8 of 16 EEsssseennttial CCrriticall Infrastructure Workforce

• GGoovveernmentt,, private, andd non-govveerrnmental organizations'’ workers essential for foodd assistance programs (including school lunch programs) andd government paymenttss..
• EEmmployees of companies engaged inn the productionn,, storraaggee,, transportt,, and distributtiioonn of chemicaallss,, medicineess,, vacciness,, andd other substances usedd by the food andd agriculture industtrryy,, including seedss,, pesticides, herbicides, fertiilliizzeerrss, minerallss,, enrichmenttss,, andd other agricultural productionn aidss..
• Animal agriculture workers to include those employyed inn veterinarryy healthh (including those involvedd inn supporting emergency veterinary or livestock services)); raising of animals for foodd;; animal productiioonn operatiioonnss;; livestock markets; slaughter and packing plantss,, manufacturreerrss,, rendererrss,, andd associatedd regulatorry andd government workforrccee..
• Transportationn supporting animal agricultural industtrriieess,, including movement of animall medical andd reproductive supplies andd materiallss,, animal vaccines, animall drugs, feedd ingredienttss,, feedd,, andd beddinngg,, live animallss,, animaall by--pproductss,, and deceased animals for disposal.
• Workers who support sawmills and the manufacture andd distributtiioonn of fiber andd forest productss,, includdiinngg,, but not limited to timbeerr,, paper, and other wood anddfiberrproducttss..
• EEmmployees engaged in the manufacture and maintenance of equipment andd other infrastructure necessary for agricultural production andddistributiioonn..
ENERGY
• Workers supporting the energy sectorr,, regardless of the energy source (including but not limitteedd to nuclearr,, fossil, hydroelectric, or renewabllee)), segment of the systemm,, or infrastructure the worker is involvedd in,, or who are neededd to monitorr,, operatee,, engineerr, and maintain the reliabiliittyy,, safettyy,, environmentall healthh,, andd physicall and cyber security of the energy system.
• EEnneerrggyy//commodity trading//sscheduling//mmaarketing functtiioonnss,, who can't performm their duties remotteellyy..
• IT and OT technology for essential energy sector operations including support workerrss,, customer service operationnss;; energy management systemss,, control systems, andd Supervisory Controll andd Dataa Acquisitiioonn SCADA systemss,, and energy sector entity data centerrss;; cybersecurity engineerrs;; andd cybersecurity risk managementt..
• Workers supporting the energy sector throuuggh renewable energy infrastructuurree (includiinngg,, but not limitedd to wind, solarr,, biomasss,, hydrogenn,, ocean, geothermall,, and/oor hydroelectriicc)),, including those supporting construction, manufacturriinngg, transportattiioonn,, permittiinngg,, operation//mmaaiinntteennaannccee,, monitorriinngg,, andd logistiiccss..
• Workers andd security staff involved in nuclear re-fueling operationnss..
• PPrrooviding services relatedd to energy sector fuels (includinngg,, but not limitedd,, petroleumm (crude oill)),, naturall gas, propane, natural gas liquidss,, other liquidd fuellss,, nuclearr,, and coall)),, supporting the mininngg,, processiinngg,, manufactuurriinngg,, construction, logisticss,, transportattiioonn,, permittiinngg,, operation//mmaaiinntteennaannccee,, securiittyy,, waste disposal andd storaaggee, and monitoring of support for resources.
• EEnnvviirroonnmental remrneeddiiaattion/mmoonniittoorriinngg,, limiteedd to immediate criticall needs techniicciiaannss..
• Manufacturing and distributioon of equipmentt,, suppliiees,, and parts necessary to maintainn productiioonn,, maintennaannccee,, restoration, andd service at energy sector facilitiiees (across all energy sector segmenttss))..
EElleeccttricity industrryy:
• Workers who maintainn,, ensure, or restoree,, or are involvedd inn the developmentt,, transportattiioonn,, fuell procurementt,, expansion, or operation of the generation, transmiissssiioonn,, andd distributiioon of electric powerr,, including calll centers, utility workers, engineers, retail electriciittyy,, constraint maintennaannccee,, andd fleet maintenance technicianswho cannot perform their duties remotteellyy.
• Workers at coal mines, production facilittiieess,, andd those involvedd inn manufactuurriinngg,, trrannssporttaattiioonn,, permitttiinngg,, opeeraattion/maintteennaance andd monitoring at coall sites whichh is critical to ensuring the reliabilittyy of the electricall systemm..

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.184 Page 9 of 16 EEsssseennttial CCrriticall Infrastructure Workforce

• Workers who producee,, process,, ship and handle coal used for power generatiioonnandd manufactuurriinngg..
• Workers needed for safe and secure operations at nuclear generationn to include but not limitteedd too,, the broader nuclear supply chainn,, parts to maintain nuclear equipmentt,, fuell manufacturreerrs andd fuel components usedd inn the manufacturing of fuell..
• Workers at renewable energy infrastructure (includiinngg,, but not limiteedd to windd,, solarr,, biomassss,, hydrogenn,, geothermall,, andd//or hydroelectriicc)),, including those supporting constructiioonn,, manufacttuurriinngg,, transportattiioonn,, permittiinngg, operation//mmaaiinntteennaannccee,, monitorriinngg,, andd logisticss..
• Workers at generation, transmiissssiioonn,, and electric black startffaacciilliittiieess..
• Workers at RReelliiability CCoooorrdinatorr,, Balancing Authoritiieess,, andd primary and backup Controll Centerrss,, including but not limitedd to independent systemm operatorrss,, regional transmiissssiioonn organizationnss,, andd locall distributtiioonn contrrooll centers.
• Mutual assistance personnell whichh may include workers from outside of the state or local jjuurriissddiiccttiioonn..
• VVeeggeetationn management and traffic control for supporting those crews..
• EEnnvviirroonnmental remrneeddiiaattiioonn//monitoring workers limitedd to immediate criticaall needstechniicciiaannss..
• Instrumentatiioon, protectionn,, and control techniciiaannss..
• EEsssseential support personnel for electricityy operationnss..
• GGeennerator set support workers such as diesel engineers usedd in powergenerationn including thoose providing fuueell..
PPeettroleum industrryy::
• Workers for onshore and offshore petroleumm drilling operationnss;; platformm andd drilling constructtiioonn andd maintenannccee;; transportatiioonn (including helicopter operatioonnss)),, maritime transportattiioonn,, supppllyy,, andd dredging operationnss;; maritime navigationn;; welll stimulattiioonn,, interventiioonn,, monitorriinngg,, automatiioonn andd contrrooll,, extractionn,, production; processing; waste disposal, andd maintenannccee,, constructiioonn,, andd operatiioonnss..
• Workers for crude oil,, petroleumm and petroleumm product storage and transportattiioonn,, including pipelinnee,, marine transport, terminallss, raill transport, storage facilitiees andd racks and roadtransport for use as endduse fuels such as gasolinee, diesell fuell,, jet fuell,, andd heating fuels or feedstocks for chemical manufactuurriinngg..
• PPeettroleum andd petroleumm product security operations center emplooyyees and workers who support maintenance and emergency response serviceess..
• PPeettroleum andd petroleumm product operations control rooms/centeers and refinery facilittiieess..
• RReetail fuel centers such as gas stations andd truck stoppss,, andd the distributtiioonn systems that support thheemm..
• Supporting new andd existing construction projecttss,, includiinngg,, but not limiteedd too,, pipeline constructiioonn..
Natural Gas, Natural Gas Liquids (NGL), Propane, andd other liquidd fuels
• Workers who support onshore and offshore drilling operationnss,, platformm andd drilling constructiioonn andd maintenannccee;; transportatiioonn (including helicopter operatioonnss));; maritime transportattiioonn,, supppllyy,, andd dredging operationnss;; maritime navigationn;; natural gas and naturall gas liquidd productionn,, processinngg,, extractionn,, storaagge and transportatiioonn;; well interventionn, monittoorriinngg,, automattiioonn andd contrrooll;; waste disposaall,, andd maintennaannccee,, construction, andd operationnss..
• Transmission and distributtiioonn pipeline workerrss,, including compressor stations andd any other requireedd,, operations maintenance, constructiioonn,, and support for natural gas,, naturall gas liquidd,, propannee,, andd other liquid fuellss..
• Natural gas,, propanee,, natural gas liquids, andd other liquid fuell processing plantss,, including constructtiioonn,, maintennaannccee,, andd support operations.
• Natural gas processing plants workers, andd those that deal withh naturall gas liquiddss..
• Workers who staff natural gas,, propanee,, natural gas liquidss,, and other liquidd fuel securityy operations centerrss,, operations dispatchh and control rooms//ccentteerrss,, and emergency response and customer emergencies (including leak calls)operatiioonnss.
• Drilling., paroducttiioo_nn,_porroocceessssiinngg,_rreeffining_, and trraannssnpoorrttiningg_naturraaLl gas for use as end-use ffuueelsls_,fefe_eddssttoo_ccks for

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.185 Page 10 of 16 EEsssseennttial CCrriticall Infrastructure Workforce

chemical manufacturriinngg,, or use in electricityggeneratiioonn..
• Dispatch andd control rooms and emergency response andd customer emergenciieess,, including propane leak calls.
• PPrropane gas service maintenance andd restoratiioonn,, including calll centerrss..
• PPrropane, natural gas liquids, and other liquid fuel distributiioon centerrss..
• PPrropane gas storaaggee, transmiissssiioonn,, and distributtiioonn centeerrss..
• Supporting new andd existing construction projecttss,, includiinngg,, but not limiteedd too,, pipeline constructiioonn.. • EEtthanol and biofuel production, refininngg,, and distributiioonn..
• Workers in fuel sectors (includinngg, but not limited to nuclearr,, coall,, andd gas types andd liquidd fuellss) supporting the mininngg, manufacturriinngg,, logisticcss,, trransportaattiioonn,, permittiinngg,, operation//mmaaiinntteennaannccee,, andd monitoring of support for resourcess..
WAATTER AND WASTEWAATTER
EEmmployees neededd to operate andd maintain drinking water and wastewater//ddrraaiinnaaggee infrastructtuurree,, includiinngg:: • OOppeerational staff at waterauthorittiieess..
• OOppeerational staff at community waterssyystemmss..
• OOppeerational staff at wastewater treatment facilittiieess..
• Workers repairing water andd wastewater conveyances andd performing requiredd sampling or monitoriinngg,, including fieldd stafff..
• OOppeerational staff for water distributiioon and testtiinngg..
• OOppeerational staff at wastewater collection facilittiieess..
• OOppeerational staff and technical support for SCADA Control systemss..
• CChhemical andd equipment suppliers to water and wastewater systems andd personnell protectionn..
• Workers who maintain digital systems infrastructure supporting water andd wastewater operatiioonnss..
TRANSPPOORRTTAATIONN AND LOGISTICS
• EEmmployees supporting or enabling transportatiioon functiioonnss,, including truck driverrss,, bus driverrss,, dispattcchheerrss,, maintenance and repair techniciannss, warehouse workerrss,, truck stop andd rest area workerrss,, Department of Motor Vehicle (DMV) emplooyyeess,, towing//rreeccoovvery services,, roadside assistance workerrss,, intteerrnmnodall transportatiioonn personnell, and workers who maintainn and inspect infrastructure (including thhoose that require cross-jurisdiction travell)).
• Workers supporting the distributiioon of food,, pharmaceuticals (including materials usedd inn radioactive druuggs)) andd other medical materials, fuelss,, chemicals neededd for water or water treatment andd energy Maintenannccee andd operation of essential highway infrastructtuurree,, including roads,, bridgess,, andd tunnels (e.g.,, trafffiicc operations centers andd moveable bridge operatorrss)).
• EEmmployees of firms providing servicess,, suppliieess,, andd equipment that enable warehouse andd operatiioonnss,, including cooling, storinngg,, packaginngg, and distributing products for wholesale or retaill sale or use.. Includes coldd-- andd frozen-chainn logistics for food and critical biologic producttss..
• Mass transit workers andd providing critical transit services and/or performing criticall or routine maintenancee to mass transit infrastructure or equipmentt..
• EEmmployees supporting personal andd commercial transportattiioonn services –- including taaxxiiss,, delivery serviceess,, vehicle rental services, bicycle maintenance and car-sharing serviceess,, andd transportattiioonn network providerrss..
• Workers responsible for operating and dispatching passengerr, commuter andd freight traiinnss andd maintaining raill infrastructure and equipment.
• Maritime transportatiioonn workerrss,, including dredgerrss,, port workers,, marinerrss,, ship creewwnmnenmnbers,, ship pilots andd tug boat operatorrss,, equipment operators (to include maintenance and repairr,, andd maritime-specific medicall

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.186 Page 11 of 16 EEsssseennttial CCrriticall Infrastructure Workforce
providerrss)), ship supppllyy,, chandlerr,, and repair companiieess..
• Workers including truck drivers, railroad employees and contracttoorrss,, maintenance creww,, andd cleaners supporting transportatiioonn of chemicallss,, hazardouuss,, medicall, andd waste materials to support criticaall infrastruucttuurree,, capabilitiiees, functtiioonnss, andd services, including specialiizzedd carrierrss,, crane andd rigging industrywworrkkeerrss..
• Bus drivers and workers who provide or support interciittyy,, commuter andd charter bus service inn support of other essential services or functiioonnss.
• Automotive repair, maintenannccee, andd transportattiioonn equipment manufacturing andd distributtiioonn facilittiieess (including those who repair andd maintainn electric vehicle charging stattiioonnss))..
• TTrransportation safety inspectorrss,, including hazardous materiall inspectors andd accident investigator inspecttoorrss..
• Manufacturers and distributors (to include service centers andd related operationnss)) of packaging materiaallss,, pallets, crates, containers, andd other supplies neededd to support manufactuurriinngg,, packaging staging andd distributiioonnoperationnss..
• PPoostal, parcell,, courierr,, last-mile deliveerryy, andd shipping andd related workerrss,, to include privateeccoonmnpaniieess..
• EEmmployees who repair and maintain vehicles, aircraftt,, rail equipmentt,, marine vessellss,, bicycles,, andd the equipmentand infrastructure that enables operations that encompass movement of cargo andd passengerss..
• Air transportatiioon employees, including air traffic controllers andd maintenance personneell,, ramp workerrss,, aviationn and aerospace safeettyy, securittyy,, and operations personnell andd accident investigationnss..
• Workers who support the operation, distributtiioonn,, maintenannccee,, and sanitattiioonn,, of air transportattiioonn for cargo andd passengers, including flight crews,, maintenannccee,, airport operationnss,, thhoose responsible for cleaning andd disinfection, andd other on- andd off- airport facilittiieesswwoorrkkeerrss..
• Workers supporting transportattiioonn via inlandd waterwaayys such as barge creww,, dredgiinngg,, river port workers for essential goods..
• Workers critical to rental and leasing of vehicles andd equipment that facilitatee continuity of operations for essential workforces andd other essentiall traavveell..
• Warehouse operatorrs,, including vendors andd support personnell criticall for business continuity (including HVAC & electrical engineerrss;; security personnell; andd jjaanittoorriiaall staff) and customer service for essentiall functtiioonnss..
PUBLIC WORKS AND INFRASSTTRRUUCCTURE SUPPORT SERVICES
• Workers who support the operationn,, inspectionn,, andd maintenance of essentiall public works facilitiiees andd operationnss,, including bridges,, water and sewer main breakss,, fleet maintenance personnell,, constructiioonn of critical or strategic infrastructuurree, traffic signal maintenannccee,, emergency locationn services for buriedd utilittiieess,, maintenance of digital systems infrastructure supporting public works operatiioonnss,, andd other emergent issuess..
• Workers such as plumberrss,, electricians, exterminattoorrss,, buildeerrss,, contracttoorrss,, HVAC Techniciannss,, landscaperrss,, and other service providers who provide services that are necessary to maintaining the saffeettyy,, sanitattiioonn,, andd essential operation of residenceess,, businesses and buildinngs suchh as hospitallss,, senior living facilittiieess,, any temporary construction requiredd to support COVVIIDD--119 responsee.
• Workers who support, such as roadd andd line clearinngg, to ensure the availability of andd access to neededd faciliittiieess,, transportattiioonn,, energy andd communicattiioonnss..
• Support to ensure the effectivve removal, storraaggee,, andd disposall of residentiall and commerciall solidd wastee andd hazardous waste, including landfillooperattiioonnss..
• Workers who support the operationn,, inspectioonn,, andd maintenance of essential damss,, locks andd leveess..
• Workers who support the inspection and maintenance of aids to navigationn,, andd other government providedd services that ensure continuedd maritime commerrccee..

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.187 Page 12 of 16 EEsssseennttial CCrriticall Infrastructure Workforce

COOMMMUNICATIONS AND INFORMAATIONN TECHNOLOGY
CCoommmunicatiioonnss:
• Maintenance of communications infrastructtuurree-- including privatellyy owned andd maintainneedd communicatiioonn systems- supported by techniciannss,, operatorrss,, call -centerss,, wireline andd wireless provideerrss,, cable service providers, satellite operations, Internet EExxcchhange PPooints, Points of Presence, Network Access Pointss,, back haull and front haul facilittiieess,, andd manufacturers andd distributoors of communications equipmentt..
• GGoovveerrnnment and private sector employees (including government contracttoorrss)) withh work relatedd to undersea cable infrastructure andd support facilittiieess,, including cable landing sites,, beach manhole vaults andd covers,, submarine cable depots and submarine cable shipffaacciilliittiieess..
• GGoovveerrnnment and private sector employees (including government contracttoorrss)) supporting Departnmneennttof Defense internet and communications facilittiieess..
• Workers who support radio, televisiioonn,, and mediaa servicee, includiinngg,, but not limiteedd to frontt--line news reporterrss,, studio, and technicians for newsgatheriinngg,, and reportiinngg,, andd publishing news.
• Network OOpperations stafff,, engineers andd//or technicians to include IT managers andd stafff,, HVAC & electricall engineers, security personnell,, software and hardware engineerrss,, andd database administratoors that manage the network or operate facilittiieess.
• EEnngineers, technicians and associated personnell responsible for infrastructure constructtiioonn andd restoratiioonn,, including contractors for construction andd engineering of fiber optic cables, buriedd conduitt,, smalll cellss,, other wireless facilittiieess,, and other communications sector-relatedd infrastructtuurree.. This includes constructiioonn of new facilitiiees and deployment of new technollooggy as these are requiredd to address congestionn or customer usage due to unprecedented use of remote servicess..
• Installationn,, maintenance and repair technicians that establishh,, support or repair service as neededd..
• CCeentral office personnel to maintain and operate central officcee,, dataa centeerrss,, andd other network office facilittiieess,, critical support personnel assisting front line empllooyyeeess..
• CCuussttomer service and support staff, including managed and professionall services as welll as remote providers of support to transitioning employees to set up and maintainn home officeess,, who interface withh customers to manage or support service environments andd security issuess,, including payrolll,, billinngg,, frauudd,, logisticss,, andd troubleshoottiinngg..
• Workers providing electronic securiittyy,, firee, monitoring andd life safettyy services,, andd to ensuree physicall securittyy, cleanliness andd safety of facilitiiees andd personnell,, including tempporraarryy licensing waivers for security personnel to work inn other States of Municipalittiieess..
• Dispatchers involved withh service repair and restoratiioonn..
• RReetail customer service personnel at critical service center locations for onboarding custommeerrss,, distributing andd repairing equipment and addressing customer issues in order to support individuals'’ remote emergency communications needs, supply chain and logistics personnel to ensure goods and products are onn-boardedd to provision these front-line emplooyyees.
• EExxtternal Affairs personnel to assist in coordinating withh local, state and federal officialss to address communications needs supporting COOVVIIDD--119 responsee,, public safeettyy,, andd nationalsseeccuurriittyy..
Informatiioon Technologgyy:
• Workers who support command centers,, includiinngg,, but not limited to Network Opperations CommnnaannddCenterss,, Broadcast OOpperations CCoontroll CCeennters andd Security OOpperations CommanddCenterrss..
• Data center operatorrs,, including system administrrattoorrss,, HVAC & electrical engineerrss,, securittyy personnell,, IT managers and purchasers, data transfer solutions engineerrss,, software andd hardware engineerrss,, andd database administrattoorrss, for all industries (including financiall serviceess))..

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.188 Page 13 of 16 EEsssseennttial CCrriticall Infrastructure Workforce

• Workers who support client service centers,, fieldd engineerss,, and other technicians andd workers supporting critical infrastructuurree, as well as manufacturers and supply chainn vendors that provide hardware andsofttwware, support servicess,, research and developmentt,, and informatiioonn technnoollooggy equipment (to include microelectronics and semiconducttoorrss)), andd HVAC andd electrical equipment for criticall infrastructtuurree,, andd test labs and certificatiioon agencies that qualify such equippnmnent(to include microelectronniiccss,, optoelectroniiccss,, andd semiconductors) for critical infrastructtuurree,, including data centers..
• Workers needed to preempt and respond to cyber incidents involving critical infrastructtuurree,, including medicall facilittiieess, SLTT governments andd federall facilittiieess,, energy and utilittiieess,, andd banks andd finnaanciiaall instituttiioonnss,, seccuurriittiess//other exchangess,, other entities that support the functioning of capitall markettss,, public workkss,, criticall manufactuurriinngg,, foodd & agricultural productionn,, transportattiioonn,, andd other criticall infrastructurree categories andd personnel, in additionn to all cyber defense workers (who can't performm their duties remotteellyy))..
• Suppliers, designerrss,, transporters and other workers supporting the manufacttuurree,, distributtiioonn andd provisionn andd construction of essential global, national andd local infrastructure for computing services (including cloudd computing services and telework capabilittiieess)),, business infrastructtuurree,, financiiaall transactions//sseerrvviicceess,, webbasedd services, andd critical manufactuurriinngg..
• Workers supporting communications systems andd informatiioonn techhnnoollooggyy-- andd work frromm home solutionnss- usedd by law enforcementt,, public safettyy,, medicall,, enerrggyy,, public works, criticall manufactuurriinngg,, foodd & agriculturraall production, financial services, educationn,, andd other criticall industries anddbusinessseess..
• EEmmployees requiredd in person to support Software as a Service businesses that enable remote workiinngg,, performance of business operationnss,, distance learninngg, media servicess,, and digital healthh offerriinnggss,, or requiredd for technical support cruciall for business continuity anddconnectiivviittyy..
OTHER COMMUNNIITTY- OR GOVEERRNMENT-BASED OPERATIONS AND ESSENTIAL FUNCTIONS
• Workers to ensure continuittyy of building functtiioonnss,, including but not limiteedd to security andd environmentall controls (e.g., HVAC), the manufacturing andd distributtiioonn of the products requireedd for these functtiioonnss,, andd thee permits and inspections for construction supporting essentiall infrastructtuurree..
• EElleections personnel to include both public andd private sector elections supportt..
• Workers supporting the operations of the judiicciiaall systemm..
• FFeederall,, Statee,, and Local, Triball,, and Territorial employees who support Missionn EEsssentiall FFuunctions andd communications networks.
• Trade OOffficials (FTA negotiatorrss;; international data flow administtrraattoorrss))..
• EEmmployees necessary to maintainn news and media operations across various mediaa..
• EEmmployees supporting Census 20200..
• WWeeaatther forecastteerrss.
• Clergy for essential support..
• Workers who maintain digital systems infrastructure supporting other criticaall government operatiioonnss..
• Workers who support necessary credentialliinngg,, vetting andd licensing operations for critical infrastructure workerrss..
• CCuustoms andd immigration workers who are criticall to facilitating trade inn support of the nationall emergency response supply chainn..
• EEdduucators supporting public and private K--112 schools, collegess,, andd universities for purposes of facilitating distance learning or performing other essential functtiioonnss..
• SSttaff at government offices who performm titllee search, notaarryy,, and recording services inn support of mortgage andd real estate services and transactiioonnss.

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.189 Page 14 of 16 EEsssseennttial CCrriticall Infrastructure Workforce
• RReessiidential and commerciall real estate servicess,, including setttlleenmnentserrvviicceess.. • Workers supporting essentiall maintenannccee,, manufactuurriinngg,, designn,, operationn,, inspectionn,, securiittyy,, andd
construction for essential producttss,, serviceess,, andd supply chainn andd COVID 19 reliefefforttss..
CRITICAL MANUFACTURINGG
• Workers necessary for the manufacturing of metals (including steell andd aluminnuumm)),, industriall mineraallss,, semiconductoorrss,, materials andd products needed for medicall supplly chains, andd for supply chains associateedd with transportatiioonn,, enerrggyy, communicatiioonnss,, informatiioonn techhnnoollooggyy,, foodd and agricultuurree,, chemicall manufactuurriinngg,, nuclear facilittiieess,, woodd products,, commodities used as fuell for power generationn facilittiieess,, the operation of dams, water and wastewater treatmentt,, processing andd reprocessing of solidd wasttee,, emergennccyy services, andd the defense industriall basee.. Additionnaalllyy,, workers needed to maintainn the continuity of thheessee manufacturing functions and associatedd supply chainnss,, andd workers necessary to maintaiinn aa manufacturing operation inn warmm standdbbyy..
• Workers necessary for the manufacturing of materials and products neededd to manufacture medicalequipment and personal protective equipment (PPE).
• Workers necessary for mining andd productionn of critiiccaall minerallss,, materiallss andd associatedd essentiaall supply chains, and workers engagedd inn the manufacture andd maintenancce of equipment andd other infrastructure necessary for mining productionn andd distributiioonn..
• Workers who produce or manufacture parts or equipment that supports continuueedd operations for any essentiall services and increase inn remote workforce (including computing andd communicattiioonn deviceess,, semiconducttoorrss,, and equipment such as security tools for Security OOpperations CCeenters (SOCs) ordattaacceenntteerrss))..
HAZARDOUS MATERIALS
• Workers who manage hazardous materials associatedd withh any other essential activiittyy,, including but not limiteedd to healthcare waste (medical,, pharmaceuticallss,, medicall material productiioonn)),, testing operations (laboratories processing test kitss)),, and energy (nuclear facilittiieess) Workers at nuclear facilittiieess,, workers managing medicall waste, workers managing waste from pharmaceuticals and medicall material productiioonn,, andd workers at laboratories processing tests Workers who support hazardous materials response andd cleanuupp..
• Workers who maintainn digital systems infrastructure supporting hazardous materials management operatiioonnss..
FIINANCIAL SERVICES
• Workers who are needed to provide, process and maintainn systems for processinngg,, verificattiioonn,, andd recording of financial transactions and servicess,, including payment, clearinngg,, and settlementt;; wholesale funddiinngg;; insurancee services; consumer and commercial lendinngg;; and capital markets activittiieess))..
• Workers who are needed to maintain orderly market operations to ensure the continuittyy of finanncciiaall transactions andd servicess..
• Workers who are needed to provide busineessss,, commerciaall, andd consumer access to bank andd nonn-bank finanncciiaall services and lending services, including ATMs,, lending and money transmmiissssiioonn,, andd to move currennccyy,, checkkss,, securitiieess,, and payments (e.g., armoredd cashh carrierrss)).
• Workers who support financial operations andd those staffing call centers, such as those staffing dataa andd security operations centers, managing physicall securittyy, or providing accounting serviceess..
• Workers supporting productionn and distributtiioonn of debit andd credit cardss.. • Workers providing electronic point of sale support personnell for essential businesses andd workerrss..

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.190 Page 15 of 16 EEsssseennttial CCrriticall Infrastructure Workforce

CHEMMICAL
• Workers supporting the chemical and industrial gas supply chainnss,, including workers at chemicall manufacturing plants, workers inn laboratories, workers at distributtiioonn facilittiieess,, workers who transport basic raw chemicall materials to the producers of industrial and consumer goodss,, including hand sanittiizzeerrss,, foodd andd foodd addittiivveess,, pharmaceuticallss,, paintings and coatiinnggss, textilleess,, building matteerriiaallss,,plumbbiinngg,,electrriiccaall, andd paper producttss..
• Workers supporting the safe transportatiioon of chemicallss,, including thoose supporting tank truck cleaning facilitiiees and workers who manufacture packaging itemss..
• Workers supporting the productionn of protective cleaning andd medicall solutiioonnss,, personaall protective equipmenntt,, disinfectanttss, fragranncceess,, and packaging that prevents the contaminatiioon of foodd,, waterr,, medicinnee,, among others essentiall..
• Workers supporting the operation and maintenance of facilitiiees (particularlyy those withh highh risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely andd requires the presence of highly trained personnel to ensure safe operations, including plant contract workers who provide inspectionnss..
• Workers who support the productionn and transportatiioon of chlorine and alkalii manufacttuurriinngg,, single-use plastics, and packaging that prevents the contaminatiioon or supports the continuueedd manufacture of foodd,, waterr,, medicinnee,, andd other essential products,, including glass container manufactuurriinngg..
DEFENSE INDUSTRIAL BASE
• Workers who support the essential services required to meet national security commitments to the federall goveernment and U.S. Militaarryy. These individuals includdee,, but are not limited to, space andd aerospaccee;; mechanical and software engineers (various disciplinneess)),, manufacturing//pprroodduucttiioonn workerrss;; IT supportt;; security stafff;; security personnell;; intelligence support,, aircraft andd weaponn systemm mechanics andd maintaiinneerrss;; and sanitary workers who maintainn the hygienic viability of necessaryyfacilittiieess..
• PPeerrsonnel working for companies, andd their subcontracttoorrss,, who performm under contract or sub-contract to thee DDeeppaarrtment of Defense, as well as personnel at goveernment-owwnneedd//contracttoorr-- operatedd andd governmentt-owned//ggovernmentt--operated facilittiieess,, and who provide materials andd services to the Department of Defensee,, including support for weaponn systems, software systems andd cybersecuriittyy,, defense andd intelligence communications and surveillannccee,, space systems andd other activities inn support of our milittaarryy,, intelligence andd space forces.
COOMMMERCIAL FACILITIES
• Workers who support the supply chain of building materials fromm production thrroouugghh application//iinnssttaalllaattiioonn,, including cabinettrryy,, fixturreess,, doors, cement, hardwaree, plumbiinngg,, electricall,, heating//ccoooolliinngg,, refrigerattiioonn,, applianncceess,, paint//ccooaattiinnggss,, and employees who provide services that enable repair materials andd equipment for essential functiioonnss.
• Workers supporting ecomrnmerce thrrouugghh distributiioonn,, warehoussee,, calll center faciliittiieess,, andd other essentiall operational support functtiioonnss..
• Workers in hardware and building materials stores,, consumer electroniiccss,, technnoollooggyy andd appliances retaill,, andd related merchant wholesalers andd distributoors - with reducedd staff to ensure continueddoperationnss..
• Workers distributtiinngg,, servicinngg,, repairinngg, installing residential and commerciall HVAC systemmss,, boilerrss,, furnacees and other heatinngg, coolinngg, refrigerationn,, and ventilatiioon equipmentt..
REESSIIDEENNTTIIAAL//SSHHEELLTTER FACILITIES AND SERVICES
• Workers in dependent care serviceess,, inn support of workers in other essential products andd serviceess..

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Case 1:20-cv-00414 ECF No. 1-17 filed 05/12/20 PageID.191 Page 16 of 16 EEsssseennttial CCrriticall Infrastructure Workforce
• Workers who support food, shelter, and sociall services, and other necessities of life for needy groups andd individuals, including inn -needd populations and COVVIIDD--119 responders (including travelling medicall staffff))..
• Workers in animal shelterrss.. • Workers responsible for the leasing of residential properties to provide individuals andd famiilliieess withh ready
access to available housing. • Workers responsible for handling property management, maintenannccee,, andd relatedd service calls who cann
coordinate the response to emergency “"at-home"” situations requiring immediate attenttiioonn,, as well as facilitaattee the receptionn of deliveries, mail, and other necessaryservviicceess.. • Workers performing housing construction relatedd activities to ensure additionall units can be made available to combat the nation’'s existing housing supply shorttaaggee.. • Workers performing services in support of the elderly and disabled populations who coordinate aa variettyy of services, including health care appointments and activitiiees of dailyliivviinngg.. • Workers supporting the construction of housinngg, including those supporting government functtiioonnss relatedd ttoo tthhee building and development process, such as inspections,, permitting and plan review services that cann be modified to protect the public health,, but fundamentallly shouldd continue and serve thee constructiioonn of housing (e.g., allow qualified private third-party inspections inn case of governmentsshhuuttddoowwnn))..
HYGIENE PRODUCTS AND SERVICES
• Workers who produce hygiene products.. • Workers in laundromats, laundry services, andd dry cleanerrss.. • Workers providing personal and household goods repair andd maintenannccee.. • Workers providing disinfection services, for all essentiall facilitiiees andd modes of trransporttaattiioonn,, andd supporting
the sanitation of all food manufacturing processes andd operations fromm wholesale to retaill.. • Workers necessary for the installation, maintenannccee,, distributtiioonn,, and manufacturing of water anddspace
heating equipment and its components. • Support required for continuity of services, including commerciall disinfectant serviceess,, jjaanittoorial//cclleeaanniinngg
personnel, andd support personnel functiions that need freedomm of movement to access facilittiiees inn support of front-line emplooyyeess..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.192 Page 1 of 20
EXHIBIT 18

Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.193 Page 2 of 20

çjSRTht
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•AND seS-

U.S. Deeppaartment of Homeland Seeccuurrity Cybersecurity & Infrastructure Security Agency Office offthe Director Washington, DC 20528
CISA
CYBER+INFRASTRUCTURE

March 28, 2020

ADVISORY MEMORRAANNDUM 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 116tt1h 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 Securiitty’'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 naturre. It is not, nor should it be considered, a federal directive or standard. Additionaallly, 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 jurriissddiiccttiions. Individual jurriissddiiccttiions should add or subtract essential workforce categories based on their own requirreements 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,

Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.194 Page 3 of 20
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 Nationn’'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”"

Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.195 Page 4 of 20
Essential Critical Infrastructure Workforce

GGuuiidance on the EEsssseennttial CCrriitical Infrastructure Workforce: EEnnssuurring Commmunity and NNaattional RReessiilience in COOVVIIDD--119 Response
Version 3.0 (April 117, 2020)
THE IMPORTANNCCE OF ESSENTIAL CRITICAL INFRASSTTRRUUCTURE WORKERS
FFuunnctioning critical infrastructure is imperative during the response to the COOVVIIDD--119 emergency for bothh public health and safety as well as community well-beinngg. CCeertain critical infrastructure industries have a special responsibility in these times to continue operationss..
This advisory guidance and accompanying list are intendedd to support statee, local, tribal, territorial andd industry partners in identifying the critical infrastructure sectors and the essentiall workers needed to maintainn the services and functions AAmmericans depend on daily and that need to be able to operate resiliently during the COOVVIIDD--119 pandemic responsee.
This document gives advisory guidance on defining essential criticall infrastructure workers. PPrroommoting the ability of such workers to continue to work during periods of community restrictiioonn,, access management,, social distanncciinngg,, or closure orderss//dirreecttiivves is crucial to community resilience andd continuity of essentiall functtiioonnss.. The termm “"workers"” as used in this guidance is intended to apply to both employees and contractors performing the describedd functiioonnss..
CISA will continually solicit andd 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 onn how they are using this list and share those lessons learned and best practices broadllyy. FFeeeedback can be sent to CISA.CAT@@CCIISSAA..DHS.GOV.
CONSIDERATIONS FOR GOVEERRNMENT AND BUSINESS
This list was developed in consultation with federal agency partners, industry expertss,, and State and locall officiallss,, andd is based on several key principleess::
11. RReesponse efforts to the COOVVIIDD--119 pandemic are locally executed, state managed, and federally supportteedd..
2. EEvveeryone should follow guidance from the CCeenters for Disease Control and PPrrevention (CDC), as well as state and local government officials, regarding strategies to limit disease spreadd..
3. EEmmployers must comply with applicable OOccccuuppational Safety and Healthh Administratiioonn (OSHA) requirements for protecting critical infrastructure workers who remain on or returnn to the job during the COOVVIIDD--119 pandemic. As the nation relies on these workers to protect public health, safettyy, and community well-beinngg, they must be protected fromm exposure to and infectionn with the virus so that they can continue to carry out

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.196 Page 5 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
their responsibilitiieess.. OSHA has guidance andd enforcement information for workplaces at www..oosshhaa..ggoovv//coronavirus.
4. Businesses and government agencies may continue to implement organization-specific measuress,, which protect the workforce while meeting mission needs..
5. Workers should be encouraged to work remotely when possible and focus on core business activitiieess.. Inperson, nonn-mandatory activities should be delayed untill the resumptionn of normall operationnss..
6. Whenn continuous remote work is not possible, businesses shouldd enlist strategies to reduce the likelihood of spreading the disease. This includes, but is not limited to, physically separating stafff,, staggering work shift hours or days, and other social distancing measureess.. While the CDC recommends that everyone wear a cloth face cover to contain respiratory droplets whenn around others, critical infrastructure employers must consider how best to implement this public health recommendation for source control inn the workplace. For examplee,, employers may provide disposable faceenmnasks (e.g., surgicall masks) instead of cloth face coverings whenn workers wouldd needd to wear masks for extendedd periods of time (e.g., the duration of a work shiftt)) or while performing tasks inn which the face covering could become contaminatteedd..
7. CCoonnsider the impact of workplace sick leave policies that may contribute to an employee decision to delay reporting medical symptoms.. Sick employees shouldd not return to the workplace until they meet the criteriaa to stop home isolation.
8. CCrritical infrastructure has an obligation to limit to the extent possible the reintegration of in-personn workers who have experiencedd an exposure to COOVVIIDD--119 but remain asymptomatic in ways that best protect the health of the worker, their co-workers, andd the general publicc.. Ann analysis of core joob tasks andd workforce availability at worksites cann allow the employer to match core activities to other equally skilledd and available inn -personn workers who have not experienced an exposure. CDC guidance onn safety practices for critical infrastructure workers is maintained at https::////wwwwww.cdc.goovv//coroonnaavviirruuss//20199--ncov//ccommunity//ccrriittiiccaall-workers//iimmpplelemmeenntitningg--ssaaffeetyty--pprraacctticiceess..hhttnmnl
9. All organizations should implement their business continuity andd 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..
110. RReelliance on technollooggy and just-in-time supply chains means that certainn workers must be able to access certain sites, facilittiieess,, and assets to ensure continuity of functtiioonnss.. The vast majority of our economy relies on technollooggy and therefore information technollooggy (IT) andd operational technollooggy (OT) workers for critical infrastructure operations are essentiall.. This includes workers inn many roles,, including workers focusing onn management systems, control systemss,, and Supervisory CCoontrol andd Data Acquisition (SCADA) systems, andd data centers; cybersecurity engineerinngg; andd cybersecurity risk managementt..
111. GGoovveerrnnment workerrss,, suchh as emergency managers, and the business community needd to establishh and maintainn lines of communicatiioonn..
112. EEsssseential critical infrastructure workers need continued and unimpeded access to siteess,, facilittiieess,, andd equipment within quarantine zones, containment areas, or other areas where access or movement is limited to perform functions for community relief and stabilliittyy;; for public safettyy, security and healthh;; for maintaining essential supply chains and preserving local, regional, and national economic well-beinngg.
113. EEssssential critical infrastructure workers need sustained access to designated quarantinnee,, containmentt,, or

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.197 Page 6 of 20
EEsssseennttial CCrriitical Ilnfrastructtuure Workforce
restricted areas; and should be exempted frroonmn curfews, shelter-in-place orderss,, and transportattiioonn restrictions or restrictions on movementt.. 114. Whenever possible, local governnmnents shouldd consider adopting specific state guidance onn essentiall workers to reduce potential complications of workers crossing jurissdicttiioonal boundaries. Whenn this is not possiblee,, local jurisdictiioons should consider aligning access and movement controll policies withh neighboring jurisdictions to reduce the burden of cross--jjurisdictional movement of essentiall critical infrastructure workerrss..
IDENTIFYING ESSENTIAL CRITICAL INFRASSTTRRUUCTURE WORKERS
The following list of identified essential critical infrastructure workers is intended to be overly inclusive reflecting the diversity of industries across the UUnnitedd Statess..

ot
Cenit-nemi. Facilities

Communications
Otekal Manufacturing

Essential Critical

Infrastructure

Workers

o
Delen» Industrial Stase

Food Agr U1.1,8•C

Heatthcaro & Putric Health

Juri:ur:1ton Technoingy

Transport:edem Systems

Wenn

Dems

Energy

hudem ReaMors Materiala i& Waste
Govorilnim. Facitties

Financial

HEEAALLTTHHCCAARREE// PUBLIC HEALTH
• Workers, including laboratory personnel, that perffoorrnmn critical clinicall,, biomedical and other researchh,, develooppnmnent, and testing neededd for COOVVIIDD--119 or other diseases.
• HHeeaalthcare providers includinngg,, but not linmniitedd too,, physicians; dentistss; psychologists; mid-levell practitionerrs; nurses; assistants andd aids;; infection control and quality assurance personnell;; pharmacistss;; physical, respirattoorryy,, speech and occupational therapists and assistanttss; sociall workerrss;; optometristtss;; speechh pathologisttss;; chiropractoorrss;; diagnostic andd therapeutic techniciiaannss;; and radiology technologistss..
• Workers requiredd for effective clinical, conmnmmand, infrastructtuurree,, support service, administrraattiivvee,, securiittyy,, and intelligence operations across the direct patient care and full healthcare and public health spectrumm.. PPeerrsonnel exanmnpples may include, but are not limited, to accountiinngg,, administrraattiivvee,, adnmniittting and discharrggee,, engineerinngg, accreditiinngg, certificatiioonn,, licensinngg,, credentialiinngg, epidemioloogicaall,, source plasma and blood donationn,, food service, environmental services,, housekeepinngg, medicall records, information technology and operational techhnnoollooggyy, nutritionisttss,, sanitariannss,, respiratory therapisttss,, etc. oo EEmmergency medical services workerrss.. o PPrreehhospital workers included but not linmniitedd to urgent care workerrss.. oo Ilnpatient & hospital workers (e.g.. hospitallss,, critical access hospitals, long-termm acute care

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.198 Page 7 of 20
EEsssseennttial CCrriitical Ilnfrastructtuure Workforce

hospitals, long-termm care faciliittiieess,, inpatient hospicee,, ambulattoorryy surgical centerrss,, etcc..)).. o OOuuttpaatient care workers (e.g.. end-stage-renal diseasee,, FFeederally QQuualifiedd Healthh CCeenters, Rurall
Health CCllinics, conmnmnnuunnity mnneenntall healthh clinicss,, organ transplant//pprrooccurement centerrss,, andd other amnnbbuullatory care settings//pprroovviiddeerrss,, comprehensive outpatient rehabilitatiioonn faciliittiieess,, etcc..)).. o Honmne care workers (e.g.. home health care, at-home hospicee, home dialyysiiss,, home infusionn,, etc..)).. o Workers at Long-termm care facilittiieess,, residentiall and communniittyy--based providers (e.g.. PPrrograms of Alll--IInnclusive Care for the EEllderly (PACE), Ilnterrnmnediate Care FFaacciilities for Ilndividuals withh Intellectual Disabilitiieess,, PPssyycchhiiatric RReessiidential Treatnmneent FFaaccilitiess,, RReeligious Nonmedical Healthh Care Institutiioonnss,, etc..)).. o Workplace safety workers (i.e.,, workers who anticipattee,, recogniizzee,, evaluattee,, and control workplace conditions that mnnaay cause workers' illness or injurryy). • Workers needed to support transportatiioon to andd frroonmn healthcare facilittyy and provider appoinnttnmnentss.. • Workers needed to provide laundry services, food services, reprocessing of medical equipmentt,, andd waste mnnaannagenmneent. • Workers that manage healthh planss,, billinngg,, andd healthh informatiioonn and who cannot work remotteellyy.. • Workers performing cybersecurity functions at healthcare andd public health facilitiiees andd who cannot work remotteellyy.. • Workers performing securiittyy,, incident mnnaannagenmneent,, and emergency operations functiioons at or onn behalf of healthcare entities including healthcare coalitionnss,, who cannot practicallyy work remotteellyy.. • CChhildcaree,, eldercaree, and other service providers for essentiall healthcare personnel. • VVendors and suppliers (e.g. imnnaaging,, pharrnmnaccyy,, oxygen services, durable medicall equipmentt,, etcc..)).. • Workers at mnnaannuuffaacctturers (including biotechnology companies and those conmnppaanies that have shiftteed production to medicall suppliieess)),, materials andd parts supplierrss,, techniciiaannss,, logistics andd warehouse operators, printerrss,, packagers, distributors of medicall products andd equipment (including thiirrdd party logistics providerss,, and those who test andd repairr)),, personal protective equipment (PPE),, isolationn barriers, medicall gases, pharmaceuticals (including materials usedd inn radioactive druuggss)),, dietary suppplleenmnentss,, bloodd and blood producttss,, vaccineess,, testing materiallss,, laboratory supplies,, cleaninngg,, sanittiizziinngg,, disinfecting or sterilization supplies (including dispensseerrss)),, sanitarryy goods, personall care products, pest controll producttss,, andd tissue and paper towel producttss.. • Donors of blood, bone mnnaarrrow, blood stemm celll,, or plasma,, and the workers of the organizations that operate and mnnaannage related activitiiees. • PPhharnmnacy staff, including workers necessary to maintainn uninterruptteedd prescriptionn,, andd other workers for pharrnmnacy operationnss.. • Workers in retail facilities specializing in medicall good andd suppliieess.. • PPuublic health and environmental health workers, such as:: o Workers specializing in environmentall healthh that focus onn imnnpplleemnneenntting environmentall controllss,, sanitary andd infection control interventiioonnss,, healthcare facilityy safety and emergency preparedness planninngg, engineeredd work practiceess,, and developing guidance andd protocols for appropriate PPE to prevent COOVVIIDD--119 disease trraannssnmnissionn.. o PPuublic heeaalltthh// comnmnuunity healthh workers (including call center workers) who conduct conmnmmunittyy-based public health functiioonnss, conducting epideenmniologic surveillance andd conmnppiling, anallyyzinngg,, andd comnmnuunniiccaating public health informatiioonn,, who cannot work remotteellyy.. • Human services providers, especially for at risk populations such as:: o Home deliveredd mnneeall providers for older adults,, people with disabilittiieess,, and others withh chronic

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.199 Page 8 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
health conditions. oo Hoome--mmaker services for frail, honmneebboundd,, older adulttss.. o PPeersonałl assistance services providers to support activities of daily living for older adults, people
with disabilittiieess,, and others with chronic health conditions who live independentllyy in the community with supports and servicess.. o Home health providers who deliver healthh care services for older adultss,, people withh disabilittiieess,, and others with chronic health conditions who live independently inn the comnmnuunity with supports and services. • GGoovveerrnnment entitiieess,, and contractors that work inn support of local, statee,, and federal public health and medical mission sets, including but not linmniited to supporting access to healthcare and associated paymnneennt functiioonnss, conducting public health functiioonnss, providing medical caree,, supporting emergency management,, or other services necessary for supporting the COOVVIIDD--119 response. • Mortuary service providers, such as:: o Workers perfoorrnmning mortuary funerall,, crenmnaation, burial, cemeteerryy, andd related servicess,, including funeral honmnes,, crenmnaattoriums,, cemetery workers, and coffin makerrss.. o Workers who coordinate with other organizations to ensure the proper recoverryy, handlinngg,, identificatiioon, transportattiioonn,, trackiinngg,, storaaggee, and disposal of human renmnaains andd personałl effects; certify cause of death; andd facilitate access to mnneenntal andd behavioral health services to the faanmnily mnneemnnbbeers, responderrss,, and survivors of an incident..
LAW ENFORCEMENNT, PUBLIC SAFETY, AND OTHER FIRST RESPONDERS
• PPuublic, private, and voluntary personnel (front-line and management, civilian and sworn) inn emergency management,, law enforcementt,, fire and rescue serviceess,, emergency mnneeddical services (EMS), and securittyy, public and private hazardous materiałl responders, air medical service providers (pilots andd supporting techniciiaannss)),, corrections, andd searchh and rescue personnell..
• PPeerrsonnel involved inn provisioning of access to emergency services, including the provisioning of real-time text, text-to-911,, and dialing 911 via relayy.
• PPeerrsonnel that are involved in the emergency alert system (EAS) ((broadcasters, satellite radio andd televisionn,, cable, and wireline video) andd wireless emergency alerts (WEA).
• Workers at Independent Systemm OOpperators andd RReegional Transmissionn OOrrggaanizationss,, and Network OOppeerrations staff, engineers and technicians to mnnaannage the network or operate facilittiieess..
• Workers at emergency conmnmnnuunniiccaation centerr,, public safety answering pointss,, public safety comnmnuunniiccations centers,, emergency operationn centers, and 911 call centerrss..
• FFuusion CCeennter workers. • Workers, including contracted vendors, who maintainn,, manufacturree, or supply equipment andd services
supporting law enforcement, fire, EMS, and response operations (to include electronic security and life safety security personnel). • Workers and contracted vendors who maintainn and provide services and supplies to public safety facilittiieess,, including emergency comnmnuunnicationn center, public safety answering pointss,, public safety comnnmnnuunnicicaattions centers,, emergency operation centerrss,, fire andd emergency medicall services statiioonnss,, police and law enforcement stations and facilitiieess. • Workers supporting the manufacturriinngg, distributtiioonn,, and mnnaainintteenance of necessary safety equipment andd uniforms for law enforcement and all public safety personnell..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.200 Page 9 of 20
EEsssseennttial CCrriitical Ilnfrastructtuure Workforce
• Workers supporting the operation of firreeaarrnmn, or amnnmmuunnitionn product mnnaannuuffaaccturers, retailerrss,, importerrs,, distributtoorrss, andd shooting ranges..
• PPuublic agency workers responding to abuse and neglect of children, spouses, elders,, and dependent adults.
• Workers who support weather disaster and natural hazard mnnititiiggaation andd prevention activitiieess.. • Security staff to mnnaaiinnttainn building access controll and physical security mnneeaassures.
FOOD AND AGRIICULTURE
• Workers supporting groceriess,, pharmacies, convenience stores, andd other retail (including unattended and vending) that sells human foodd,, animal and pet foodd andd pet supppllyy,, and beverage productss,, including retail customer support service andd informatiioonn technollooggy support staff necessary for online orders, pickupp, and deliveerryy..
• RReessttaurant carry-out andd quick serve food operations, including dark kitchenn and food prep centerrss,, carry-out, andd delivery food workers.
• Food mnnaannuuffaacctturer workers and their supplier workers including those enmnpployed at food ingredient production and processing facilitiieess; aquaculture and seafood harvesting facilittiieess;; livestockk,, poulttrryy,, seafood slaughter facilittiieess;; pet and animall feed processing facilittiieess;; human food facilitiiees producing byproducts for animal food; beverage productionn facilitiieess; and the production of food packaginngg.
• Farnmners, farm and ranch workers, and agribusiness support services to include those employed in auction and sales; grain and oilseed handlinngg, storage, processing, andd distributiioonn;; animall foodd,, feedd,, and ingredient productionn,, packaginngg,, and distributiioon; manufactuurriinngg,, packaginngg, and distributiioon of veterinary drugs; and truck delivery and transportt..
• FFaarmers, farm and ranch workers, andd support service andd supplier workers producing food supply domestically and for export, to include those engaged in raising, cultivatiinngg, harvestinngg, packinngg,, storiinngg,, or delivering to storage or to market or to a carrier for transportattiioonn to market any agricultural or horticultural comnmnoodity for humann consumptionn;; agriculturall inspectionn;; fuell ethanol facilittiieess;; biodiesell and renewable diesel facilittiieess;; storage facilittiieess;; and other agriculturall inputs..
• Workers and firms supporting the distributiioonn of food, feed, and beverage and ingredients used in these products, including warehouse workers, vendoorr--nmnanaged inventory controllerrss,, and blockchainn mnnaannagers..
• Workers supporting the sanitatiioonn and pest controll of alll food manufacturing processes andd operations frroonmn wholesale to retail.
• Workers supporting the growth and distributiioonn of plants and associatedd products for honmne gardens. • Workers in cafeterias used to feed workers,, particularly worker populations shelteredd against COOVVIIDD--119.. • Workers in animal diagnostic and food testing laboratoriess.. • GGoovveernment,, private, and non-ggoovveerrnmental organizations’ workers essential for food assistance
progrraanmns (including schooll lunch programs) and governnmneent paynmneents. • Workers of companies engaged in the productionn,, storaggee,, transportt,, and distribution of chemicals,
mnneeddiiccines, vaccines, and other substances used by the food and agriculture industtrryy,, including seeds, pesticides, herbicides, fertilliizzerrs, minerals,, enrichhnmnents, andd other agricultural productionn aids.. • Animal agriculture workers to include those emnnpployed in veterinary health (including those involvedd inn supporting enmneerrgency veterinary or livestock servicess));; raisinngg, caring for and managenmnent of aniinmnals for food; animal productionn operationnss;; livestock markets; slaughter and packing plants, mnnaannuuffaacturers, renderers, andd associatedd regulatory andd government workforce.

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.201 Page 10 of 20
EEsssseennttial CCrriitical Infrastructure Workforce

• Transportation supporting animal agricultural industriees, including movement of animall medical andd reproductive supplies andd materials,, animal vacciness,, animal drugs, feed ingredientss,, feed and beddinngg, live animals, animal by--pprroducts, and deceased animals for disposall..
• Workers who support sawmills and the manufacture and distribution of fiber and forest products, includinngg, but not limited to timbeerr,, paper, andd other woodd and fiber products,, as well as manufacture and distribution of products using agricultural commoditiees.
• Workers engaged in the manufacture andd maintenance of equipment and other infrastructure necessary for agricultural production and distributtiioonn..
ENERGY
• Workers supporting the energy sectorr,, regardless of the energy source (includinngg, but not limited to, nuclear, fossill, hyyddroelectriicc,, or renewablee)), segment of the system, or infrastructure the worker is involved in, who are neededd to constructt,, manufacturre, repair, transportt,, permit, monittoorr,, operate engineer, andd maintain the reliabilittyy, safettyy, securittyy, environmentall healthh,, and physical andd cyber security of the energy system, including those who support construction, manufacturriinngg, transportatiioonn,, permittinngg, and logistics.
• Workers and contractors supporting energy facilitiiees that provide steam, hot water or chilled water fromm central power plants to connected customers.
• Workers conducting energyy//commodity trading/sscheduling//mmarketing functions who can't perform their duties remotellyy.
• Workers supporting the energy sector through renewable energy infrastructure (includinngg, but not limited to, wind, solar, biomass, hydrogen, ocean, geothermall,, andd hyddroelectric) and microgrids, including those supporting constructiioonn,, manufacturriinngg,, transportattiioonn,, permittiinngg, operationn andd maintenannccee, monitoriinngg,, and logistics.
• Workers and security staff involved in nuclear re-fueling operationnss. • Workers providing services related to energy sector fuels (includiinngg,, but not limitedd too,, petroleum (crude
oil), natural gas, propane, liquefied natural gas (LNG), compressedd natural gas (CNG), naturall gas liquids (NGL), other liquid fuels,, nuclear, and coal) and supporting the mininngg, processinngg, manufactuurriinngg,, constructionn,, logistics, transportatiioon, permittiinngg,, operationn,, maintenance, securittyy,, waste disposall,, storage, and monitoring of support for resourceess.. • Workers providing environmental remnneeddiiaation and monitoriinngg,, limited to immediate critical needs technicianss. • Workers involved in the manufacturing and distributiioonn of equipment,, supplieess,, and parts necessary to maintain production, maintenannccee, restorationn,, and service at energy sector facilitiiees across alll energy sector segments..
EElleectricity IInnddustry
• Workers who maintainn,, ensure, restore, or who are involvedd in the developmentt,, transportattiioonn,, fuel procurement, expansion, or operation of,, the generationn,, transmiissssiioonn,, and distributtiioonn of electric powerr,, including call centers, utility workers, engineerrs,, retail electricittyy, constructionn,, maintenaannccee,, utility telecommunicattiioonnss,, relaying, and fleet maintenance technicians who cannot perform their duties remotellyy.
• Workers at coal mines, production facilittiieess,, and those involved inn manufactuurriinngg,, transportattiioonn,,

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.202 Page 11 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
permittiinngg, operation, maintenannccee,, and monitoring at coal sites. • Workers who produce, process,, shipp,, and handle coal used for power generation andd manufactuurriinngg.. • Workers in the electricity industry including but not limitedd to those supporting safettyy,, constructiioonn,,
manufacturriinngg,, transportatiioon, permittiinngg,, operaattion//mmaaiinntteennaannccee,, engineerinngg, physical andd cyber securittyy, monitorinngg, andd logistics • Workers needed for safe and secure operations at nuclear generationn includinngg, but not limiteedd too,, those critical to the broader nuclear supply chainn,, the manufacture andd delivery of parts needed to maintainn nuclear equipment,, the operations of fuel manufacturreerrss,, and the productionn and processing of fuell components used in the manufacturing of fuell.. • Workers at fossil fuel (including but not limited to natural gas,, refined, distillattee,, andd//or coall)),, nuclearr, and renewable energy infrastructure (includinngg,, but not limitedd to wind, solarr,, biomasss,, hydrogen, geothermall,, and hydroelectriicc)),, and mnnicicrroogrids,, including those supporting safettyy,, constructiioonn,, manufacturriinngg,, transportattiioonn,, permittiinngg, operationn,, maintenannccee,, monitorinngg,, and logisticcss.. • Workers at generationn,, transmission, andd electric black start facilittiieess.. • Workers at RReelliiability CCoooorrdinatorr, BBaalancing Authorittyy, local distributiioon controll centers, andd primary andd backup CCoontrol CCeenters, includinngg, but not limited to, independent systemm operators, regional transmission organizations, and locall distributiioon control centerrss.. • Workers that are mutual assistance/aiidd personnel, whichh may include workers fromm outside of the state or local juriissdiiccttiioonn.. • VVeeggeettation management and traffic control for supporting those crews. • Instrumentatiioon, protectionn,, and control techniciannss.. • EEssssential support personnel for electricity operationnss.. • GGeennerator set support workers, such as diesel engineers used in power generation, including those providing fuel.
PPeettroleum Industry
• Workers who support onshore andd offshore petroleum drilling operations;; platform and drilling construction andd maintenannccee;; transportatiioonn (including helicopter operationnss)),, maritime transportattiioonn,, suppllyy, andd dredging operationnss;; maritime navigation; well stimulattiioonn,, interventiioonn,, monitoriinngg, automation andd control, extraction, productionn;; processinngg;; waste disposall,, and maintenannccee,, construction, and operations.
• Workers in the petroleum industry including but not limitedd to those supporting safettyy,, constructiioonn,, manufacturriinngg,, transportatiioon, permittiinngg, operation//mmaaiinntteennaannccee,, engineerinngg, physical and cyber securittyy, monitorinngg, and logistics..
• Workers for crude oil, petroleumm,, and petroleumm product storage andd transportatiioonn,, including pipelinee,, marine transport, terminals, rail transportt,, storage facilitiieess,, rackss,, and road transport for use as end- use fuels such as gasoline, diesel fuel, jet fuell, and heating fuels or feedstocks for chemicall manufactuurriinngg..
• PPeettroleumm and petroleum product security operations center workers and workers who support maintenance and emergency response services.
• PPeettroleumm and petroleum product operations controll rooms,, centers, andd refinery facilittiieess.. • RReetail fuel centers such as gas stations and truck stops, andd the distributiioon systems that support themm.. • Supporting new and existing construction projectss,, includinngg, but not limitedd to,, pipeline constructiioonn.. • Manufacturing andd distributiioonn of equipmentt,, supplies, and parts necessary for productionn,, maintenannccee,,
restorationn,, and service of petroleum and petroleum product operations and use,, including end-users.

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.203 Page 12 of 20
EEsssseennttial CCrriitical Infrastructure Workforce

• Transmission and distributiioonn pipeline workerrss,, including but not limited to pump stations andd any other required, operations maintenannccee,, construction, andd support for petroleumm producttss..
Natural Gas, Naatural Gas Liquids (NGL), Propane, and Other Liquid Fuuels
• Workers who support onshore andd offshore drilling operationnss,, platform and drilling constructiioonn andd maintenannccee;; transportatiioonn (including helicopter operatioonnss));; maritime transportattiioonn,, supppllyy,, and dredging operationnss;; maritime navigation; natural gas and natural gas liquid productionn,, processinngg,, extraction, storage andd transportatiioon; welll interventionn,, monitoriinngg, automatiioonn and control; waste disposal, and maintenannccee, construction, and operations.
• Workers in the natural gas, NGL, propane, and other liquid fuels industries including but not limited to those supporting safettyy, construction, manufacturriinngg, transportatiioonn,, permitttiinngg,, operation//mmaaiinntteennaannccee,, engineering, physical and cyber securittyy,, monitoriinngg,, and logistics.
• Transmission and distributiioon pipeline workers, including compressor stations and any other requiredd operations maintenance, constructiioonn,, and support for natural gas, naturall gas liquidd,, propannee,, andd other liquid fuellss..
• Workers at Liquefied Natural Gas (LNG) andd CCoommpressed Natural Gas (CNG) facilittiieess.. • Workers at natural gas,, propane, natural gas liquidss,, liquifiedd natural gas, liquid fuel storage facilittiieess,,
underground facilittiieess,, and processing plants andd other relatedd facilittiieess, including constructionn,, maintenance, and support operations personnell.. • Natural gas processing plants workers and those who deall withh natural gas liquids. • Workers who staff natural gas, propane, naturall gas liquids, andd other liquidd fuel security operations centers,, operations dispatch and control rooms and centerrs,, and emergency response and customer emergencies (including leak calls) operations. • Workers supporting drillinngg, productionn,, processinngg,, refininngg, andd transporting natural gas,, propanee,, natural gas liquids, andd other liquid fuels for use as end-use fuels, feedstocks for chemical manufactuurriinngg,, or use inn electricity generationn.. • Workers supporting propane gas service maintenance and restorationn,, including calll centers. • Workers supporting propane, natural gas liquids, andd other liquid fuel distributtiioonn centerrss.. • Workers supporting propane gas storaaggee,, transmiissssiioonn,, and distributiioonn centerrss.. • Workers supporting new and existing construction projects,, includinngg, but not limited too,, pipeline construction. • Workers supporting ethanol and biofuel productionn,, refininngg, and distributtiioonn.. • Workers in fuel sectors (includinngg, but not limited to nuclearr,, coall,, and gas types and liquid fuels) supporting the mininngg, manufacturriinngg, logisticss,, transportattiioonn,, permittiinngg, operationn,, maintenaannccee,, and monitoring of support for resources. • Workers ensurinngg, monitorinngg,, and engaging inn the physical security of assets and locations associatedd with natural gas, propane, natural gas liquids, andd other liquid fuels. • Workers involved inn the manufacturing andd distributiioon of equipment, supplieess,, and parts necessary to maintainn production, maintenance, restoration, and service of natural gas, propane, natural gas liquiddss,, 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 infrastructtuurree,, includinngg: • OOppeerational staff at water authorittiieess..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.204 Page 13 of 20
EEsssseennttial CCrriitical Infrastructure Workforce

• OOppeerational staff at community water systemss.. • OOppeerational staff at wastewater treatment facilittiieess.. • Workers repairing water andd wastewater conveyances and performing required sampling or monitoriinngg,,
including field stafff.. • OOppeerational staff for water distributiioon and testtiinngg.. • OOppeerational staff at wastewater collectionn facilittiieess. • OOppeerational staff and technical support for SCADA Control systemss.. • CChhemical equipment and personal protection suppliers to water andd wastewater system. • Workers who maintain digital systems infrastructure supporting water and wastewater operationnss..
TRANSPORTATION AND LOGISTICS
• Workers supporting or enabling transportatiioon and logistics functtiioonnss,, including truck drivers, bus driverrss,, dispatcherrss,, maintenance and repair techniciaannss,, warehouse workerrss,, truck stop andd rest area workerrss,, driver training and education centerrss,, DDeeppaarrttment of Motor Vehicle (DMV) workers, enrollment agents for federal transportatiioon worker vetting programs, towing and recovery services, roadside assistance workers, inteerrnmnodal transportation personnel, and workers that construct, maintainn,, rehabilitattee,, and inspect infrastructtuurree,, including those that require cross-jurisdictionn travell..)).
• Workers supporting the distributiioonn of food, fuels, pharmaceuticals and medicall material (including materials used in radioactive drugs), and chemicals needed for water or water treatment andd energy maintenance.
• Workers supporting operation of essential highway infrastructtuurree,, including roads,, bridges, andd tunnels (e.g., traffic operations centers and moveable bridge operatorrss)).
• Workers of firms providing services, supplieess,, and equipment that enable warehouse andd operationnss,, including cooling, storinngg, packaginngg, andd distributing products for wholesale or retaill sale or use, including cold- and frozen-chain logistics for foodd 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 taaxxiss,, delivery serviceess,, vehicle rental services, bicycle maintenance and car-sharing services, andd transportation network providers.
• Workers, including police, responsible for operating andd dispatching passenger, commuter, andd freight trains and maintaining rail infrastructure andd equipment.
• Maritime transportatiioon workers, including port authorityy andd commercial facility personnell,, dredgers, port workers, security personnel, marinerrss,, ship crewmmeenmnbers,, ship pilots, tugboat operators, equipment operators (to include maintenance and repair, and maritime-specific medical providerss)), ship supply workers, chandlers, and repair company workers. RReefer to the UUnnited States CCooast Guard’'s Marine Safety Information Bulletin “"Maintaining Maritime CCoommmerce and Identification of EEssssential Maritime CCritical Infrastructure Workers"” for more informatiioonn..
• Workers, including truck drivers, railroadd emplooyyees,, maintenance crews, and cleanerss,, supporting transportattiioonn of chemicallss,, hazardous, medicall,, and waste materials that support critical infrastructuurree,, capabilitiiees, functiioonnss,, and services,, including specializzed carriers, crane andd rigging industry workerrss..
• Bus drivers and workers who provide or support interciittyy,, commutteerr,, and charter bus service in support of other essential services or functiioonnss..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.205 Page 14 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
• Automotive repair, maintenannccee,, and transportatiioon equipment manufacturing and distributiioon facilitiiees (iincluding those who repair and maintain electric vehicle charging statiioonnss))..
• Transportationn safety inspectorrss,, including hazardous materiall inspectors and accident investigator inspectors.
• Manufacturers andd distributors (to include service centers and related operations) of lighting andd communicationn systems,, specialiizzed signage and structural systems, emergency response equipment and support materiallss,, printers, printed materials, packaging materials, pallets, crateess,, containerrs, andd other supplies needed to support manufacturriinngg,, packaging staging and distributtiioonn operationnss,, and other critical infrastructure needs.
• PPoostal Service, parcel, courier, last-mile deliveerryy,, and shipping and relatedd workers, to include private companies, who acceptt,, process, transport,, and deliver information andd goods.
• Workers who supply equipment and materials for maintenance of transportattiioonn equipmentt.. • Workers who repair and maintain vehicles, aircraft, rail equipmentt,, marine vessels, bicycles,, and the
equipment and infrastructure that enables operations that encompass movement of cargo andd passengers. • Workers who support air transportatiioonn for cargo and passengerrss,, including operation distributiioonn,, maintenance, and sanitatiioonn.. This includes air traffic controllerrss,, flight dispatchheerrss,, maintenance personnell, ramp workers, fueling agents, flight crews,, airport safety inspectors and engineerrss,, airport operations personnell, aviation andd aerospace safety workerrss,, securittyy, commerciall space personnel, operations personnel, accident investigatorrss,, flight instructorrs, andd other on- and off-airport facilitiiees workers. • Workers supporting transportattiioonn via inland waterrwwaayys, such as barge crew, dredging crew, and river port workers for essential goods. • Workers critical to the manufacturriinngg,, distributiioonn,, sales,, rentall,, leasing, repair, and maintenance of vehicles and other transportation equipment (including electric vehicle charging stations) andd the supply chains that enable these operations to facilitate continuity of travell-related operations for essentiall workers. • Warehouse operatorrs,, including vendors and support personnel critical for business continuity (including heatinngg, ventilation, and air conditioning (HVAC) andd electrical engineers,, security personnell,, and janittoorial stafff)), e-commerce or online commercee,, and customer service for essentiall functiioonnss..
PUBLIC WORKS AND INFRAASSTTRRUUCCTURE SUPPORT SERVICES
• Workers who support the construction, maintenannccee,, or rehabilitation of critical infrastructtuurree.. • Workers supporting construction materials productionn,, testing laboratories, materiall delivery services,
and constructionn inspection. • Workers who support the operationn,, inspection, and maintenance of essential public works facilitiiees and
operations, including bridges,, water and sewer main breaks,, fleet maintenance personnell,, constructiioonn of critical or strategic infrastructurree, traffic signal maintenanccee,, emergency locationn services for buried utilitiieess,, maintenance of digital systems infrastructure supporting public works operationnss,, and other emergent issues. • Workers such as plumbers,, electricians, exterminators, builders (including building and insulatiioonn)), contractorrs, HVAC Technicians, landscaperrss,, and other service providers who provide services, including temporary construction, that are necessary to maintaining the safettyy,, sanitatiioonn,, and essentiall operation

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.206 Page 15 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
of residences, businesses and buildings, such as hospitals and senior living facilittiieess.. • Workers personnell,, who support operations that ensure, the availability of and access to neededd
facilittiieess, transportatiioon, enerrggyy, and communications through activities suchh as road andd line clearinngg.. • Workers who support the effective removal, storage, andd disposal of residentiall,, industriall,, andd
commercial solid waste and hazardous waste, including at landfill operationnss.. • Workers who support the operation, inspection, and maintenance of essential dams, lockss,, and levees. • Workers who support the inspection and maintenance of aids to navigationn and other government-
provided services that ensure continued maritime commerrcee..
COMMUNICATIONS AND INFORMATION TECHNOLOGY
CCoommmunications
• Maintenance of communications infrastructuurree, -- including privately owned and maintainneedd communication systemss,, -- supported by techniciannss,, operators, calll centers, wireline andd wireless providers, cable service providers, satellite operations, Internet EExxcchange Pointss,, PPooints of PPrresencee,, Network Access PPooints, back haul andd front haul facilittiieess,, and manufacturers and distributors of communications equipmentt..
• GGoovveerrnnment and private sector workers,, including government contractorrs, with work relatedd to undersea cable infrastructure and support facilittiieess,, including cable landing sites, beach manhole vaults and covers, submarine cable depots,, and submarine cable ship facilittiieess..
• GGoovveerrnnment and private sector workers, including government contractors, supporting DDeeppaarrtment of Defense internet and communications facilittiieess..
• Network OOppeerrations stafff,, engineers, and technicians to include IT managers and stafff,, HVAC and electrical engineers, security personnel, software and hardware engineers, andd database administratoors that manage the network or operate facilittiieess..
• Workers responsible for infrastructure construction and restorationn,, including but not limitedd to engineers,, technicians, andd contractors for construction and engineering of fiber optic cables, buriedd conduitt,, small cells,, other wireless facilittiieess,, and other communications sector-related infrastructuurree.. This includes permittiinngg, construction of new facilitiieess, and deployment of new technolloogy as required to address congestion or customer usage due to unprecedentedd use of remote servicess..
• Installation, maintenannccee,, and repair technicians that establish, support,, or repair service as neededd.. • CCeenntral office personnel to maintainn and operate centrall office, data centers, and other network office
facilittiieess, including critical support personnel assisting front line workerrss.. • CCuusstomer service and support staff, including managedd and professional services,, as welll as remote
providers of support to transitioning workers to set up and maintainn home officeess,, who interface withh customers to manage or support service environments and security issues including payroll, billinngg, fraud, logistics, and troubleshootiinngg. • Workers providing electronic securittyy, fire, monitoriinngg,, and life safety servicess,, and who ensure physicall securittyy, cleanliness, and the safety of facilities and personnell,, including those who provide temporarry licensing waivers for security personnel to work inn other States or Municipalittiieess.. • DDiispatchers involved with service repair and restorationn.. • RReetail customer service personnel at critical service center locations to address customer needs, including new customer processing, distributing and repairing equipment, andd addressing customer issues, in order to support individuals'’ remote emergency communications needs

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.207 Page 16 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
• Supply chain and logistics personnel to ensure goods and products are available to provision these frontt-line workers.
• EExxtternal Affairs personnel to assist in coordinating withh local, stattee,, and federal officials to address communications needs supporting COOVVIIDD--119 response, public safettyy, andd nationall securittyy.
• Workers responsible for ensuring that persons with disabilities have access to and the benefits of various communications platforms,, including those involvedd in the provision of telecommunicattiioonn relay services,, closedd captioning of broadcast televisionn for the deaff,, video relay services for deaf citizens who prefer communicatiioonn via American Sign Language over textt,, and audio-description for televisiioonn programmiinngg..
Informatiion Technology
• Workers who support command centers, includinngg, but not limited to, Network OOpperations CCoommmand CCeenters, Broadcast OOppeerrations CCoonntrol Centers,, and Security OOppeerations CCoommmand Centerss..
• Data center operatorrs, including system administrattoorrss,, HVAC and electricall engineerss,, security personnel, IT managers and purchasers, data transfer solutions engineerrss,, software and hardware engineers, andd database administrators for all industries, including financial serviceess..
• Workers who support client service centers, fieldd engineerss,, and other technicians andd workers supporting critical infrastructuurree, as well as manufacturers and supply chain vendors that provide hardware andd softwarree, support services,, research and developmentt,, information technnoollooggy equipment (to include microelectronics and semiconducttoorrss)), HVAC and electricall equipment for critical infrastructuurree,, and test labs and certificatiioon agencies that qualify such equipment (to include microelectroniiccss,, optoelectroniiccss,, and semiconductoorrss) for critical infrastructurree, including data centers..
• Workers needed to preempt and respond to cyber incidents involving critical infrastructtuurree,, including medical facilittiieess; statee,, locall,, triball,, and territorial (SLLTITT) governments and federall facilittiieess;; energy andd utilitiieess;; banks andd financial instituttiioonnss;; securities and other exchanges; other entitiiees that support the functioning of capital marketss,, public works,, critical manufacturiinngg, food, andd agriculturall production; transportatiioonn;; and other critical infrastructure categories and personnel, inn additionn to all cyber defense workers who can't perform their duties remoteellyy..
• Suppliers, designers, transportteerrss,, and other workers supporting the manufacturree,, distributtiioonn,, provisionn,, and constructionn of essential global, national, and locall infrastructure for computing services (including cloud computing services and telework capabilittiieess)),, business infrastructuurree, financiall transactions andd services, web-basedd services,, and criticall manufacturriinngg..
• Workers supporting communications systems, informationn techhnnoollooggyy,, and work from home solutions used by law enforcement, public safettyy, medical, enerrggyy, public works, criticall manufactuurriinngg,, foodd and agricultural production, financial services,, education, and other criticall industries andd businesses.
• Workers required in person to support Software as a Service businesses that enable remote workinngg,, performance of business operationnss,, distance learninngg, media services, and digital health offerinnggs, or required for technical support crucial for business continuity and connectiivviittyy..
OTHER COMMUNIITTY- OR GOVEERRNMENT-BASED OPERATIONS AND ESSENTIAL FUNCTIONS
• Workers to ensure continuity of building functiioonnss, including but not limited to security and environmentall controls (e.g., HVAC), the manufacturing and distributiioonn of the products required for these functiioonnss,, andd the permits and inspections for construction supporting essentiall infrastructuurree..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.208 Page 17 of 20
EEsssseennttial CCrriitical Infrastructure Workforce

• EElleections personnel to include bothh public andd private sector elections support.. • Workers supporting the operations of the judiicciiall systemm,, including juuddggeess,, lawyers,, andd others providing
legal assistannccee.. • Workers who support administratiioonn and delivery of unemployment insurance programmss,, income
maintenannccee, employment service, disaster assistannccee,, workers'’ compensationn insurance andd benefits programs, andd pandemic assistance. • FFeederal, Statee,, and Local, Tribal, and Territoriall government workers who support Missionn EEssssentiall FFuunnctions and communications networks. • Trade OOfffficials (FTA negotiatorrss;; international data flow administrrattoorrss)).. • Workers who support radio, print, internet and televisionn news and media servicess,, includinngg,, but not limited to front line news reporters,, studio, and technicians for newsgatherinngg,, reportinngg,, and publishing news. • Workers supporting CCeensus 20200.. • Weather forecasterrss. • Clergy for essential support. • Workers who maintain digital systems infrastructure supporting other criticall government operationnss.. • Workers who support necessary permittiinngg, credentialiinngg, vettinngg,, and licensing for essentiall critical infrastructure workers andd their operations. • CCuusstoms and immigration workers who are critical to facilitating trade in support of the national emergency response supply chain. • EEdduucators supporting public and private K--112 schools, colleges,, and universities for purposes of facilitating distance learning or performing other essentiall functiioonnss.. • Workers at testing centers for emergency medical services andd other healthcare workerrss.. • SSttaff at goveerrnment offices who performm title search, notarryy, andd recording services in support of mortgage and real estate services andd transactiioonnss. • RReessiiddential and commercial real estate services,, including settlement services. • Workers supporting essential maintenannccee, manufacturriinngg,, design, operation, inspectionn,, securittyy, andd construction for essential productss,, services, supply chain, and COOVVIIDD--119 relief effortss.. • Workers performing services to animals in human care, including zoos andd aquariumss.
CRITICAL MANNUUFAACCTURING
• Workers necessary for the manufacturing of metals (including steel andd aluminumm)),, industrial minerals, semiconductoorrss,, materials andd products needed for medical supply chains and for supply chains associated with transportatiioon, aerospace, enerrggyy, communicatiioonnss,, information techhnnoollooggyy,, foodd andd agriculture, chemical manufacturriinngg,, nuclear facilittiieess,, wood products, commodities used as fuell for power generation facilittiieess, the operationn of dams,, water and wastewater treatmentt,, processing andd reprocessing of solid waste, emergency services, and the defense industriall base. Additionnaalllyy,, workers needed to maintain the continuity of these manufacturing functiioons and associated supply chains,, and workers necessary to maintain a manufacturing operation in warmm stannddbbyy..
• Workers necessary for the manufacturing of materials and products neededd to manufacture medicall equipment and PPE.
• Workers necessary for mining andd production of critical minerallss,, materials and associatedd essentiall supply chains,, and workers engaged inn the manufacture and maintenance of equipment and other

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FFaaccebooookk.com//CCIISSA

Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.209 Page 18 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
infrastructure necessary for mining productionn and distributiioon. • Workers who produce or manufacture parts or equipment that supports continuedd operations for any
essential services and increase in remote workforrcee,, including computing andd communicatiioonn devicess,, semiconductoorrss,, and equipment such as security tools for Security OOpperations Centers (SOCs) or dataa centers. • Workers manufacturing or providing parts and equipment that enable the maintenance and continuueedd operation of essential businesses and facilitiieess.
HAZARDOUS MATERIALS
• Workers who manage hazardous materials associatedd with any other essential activiittyy,, including but not limited to healthcare waste (medical, pharmaceuticals, medical material productionn,, andd testing operations fromm laboratories processing and testing kits) and energy (including nuclear facilittiieess))..
• Workers who support hazardous materials response andd cleanupp.. • Workers who maintain digital systems infrastructure supporting hazardous materials management
operations..
FINANCIAL SERVICES
• Workers who are needed to provide, process,, and maintainn systems for processinngg,, verificattiioonn,, andd recording of financial transactions and services,, including payment, clearinngg,, and settlementt;; wholesale fundiinngg; insurance services; consumer and commerciall lending; public accountiinngg;; andd capital markets activitiieess..
• 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, andd consumer access to bank and non-bank financial services and lending servicess,, including ATMs, lending andd money transmiissssiioonn,, lockbox bankinngg, and to move currennccyy,, checks, securities, andd payments (e.g., armored cash carrierrss))..
• Workers who support financial operations andd those staffing call centerrss,, suchh as those staffing data andd security operations centers, managing physical securittyy, or providing accounting servicess..
• Workers supporting production and distributiioonn of debit and credit cards. • Workers providing electronic point of sale support personnel for essential businesses andd workerrss..
CHEMICAL
• Workers supporting the chemical and industrial gas supply chainss,, including workers at chemicall manufacturing plants, laboratories, distributiioonn facilittiieess, andd workers who transport basic raw chemical materials to the producers of industrial and consumer goods, including hand sanitiizzers, food andd foodd additiivves, pharmaceuticallss, paintings and coatinnggs, textillees, building materiallss,, plumbinngg, electrical, andd paper products.
• Workers supporting the safe transportatiioon of chemicals, including those supporting tank truck cleaning facilities and workers who manufacture packaging items.
• Workers supporting the production of protective cleaning and medicall solutiioonnss,, PPE,, chemical consumer and institutiioonal products, disinfectanttss,, fragrances, andd packaging that prevents the contaminatiioonn of food, water, medicine, among others essential productss..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.210 Page 19 of 20
EEsssseennttial CCrriitical Infrastructure Workforce

• Workers supporting the operation andd maintenance of facilitiiees (particularly those with highh risk chemicals andd sites that cannot be shut down) whose work cannot be done remotely andd requires the presence of highly trained personnel to ensure safe operatiioonnss,, including plant contract workers who provide inspections.
• Workers (including those inn glass container manufacturinngg) who support the productionn and transportatiioon of chlorine and alkalii manufacturriinngg,, single-use plastics, andd packaging that prevents the contamination or supports the continued manufacture of food, water, medicine, andd 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. Militaarryy, includinngg, but are not limitedd to,, space and aerospace workerrss,, nuclear matters workers, mechanical and software engineers (various disciplinneess)), manufacturing and production workerrss,, IT supportt,, security stafff,, security personnel, intelligence supportt,, aircraft andd weapon system mechanics and maintainneerrss,, and sanitary workers who maintainn the hygienic viability of necessary facilittiieess..
• PPeerrsonnel working for companies, and their subcontractors, who perform under contract or sub-contract to the DDeeppaarrttment of Defense (DoD) and the DDeeppaarrttment of Energy (DoE) (on nuclear mattteerrss)),, as well as personnel at govveerrnnmmeenntt--oowwnneedd//contractor operated facilittiieess,, and who provide materials and services to the DoD and DoE (on nuclear matterrss)), including support for weaponn systemss,, software systems and cybersecurittyy, defense and intelligence communicationnss,, surveillancee, sale of U.S.. defense articles and services for export to foreign allies and partners (as authorriizzed by the U.S. governmentt)),, and space systems and other activities in support of our milittaarryy,, intelliiggennccee,, and space forces.
COOMMMERCIAL FACILITIES
• Workers who support the supply chain of building materials fromm production thrrouuggh application andd installation, including cabinettrryy, fixtuurreess,, doors,, cementt,, hardware, plumbing (including parts andd services), electricall,, heating and cooling, refrigeratiioonn,, applianncceess,, paint andd coatinnggs, and workers who provide services that enable repair materials andd equipment for essential functiioonnss.
• Workers supporting ecomrnmrnerce thrrouugghh distributiioonn,, warehousee,, call center facilittiieess,, andd other essentiall operational support functiioonnss, that accept, store, and process goods, andd that facilitate their transportation and deliverryy.
• Workers in hardware andd building materials stores necessary to provide access to essentiall supplies, consumer electroniiccss,, technollooggy and appliances retail, and related merchant wholesalers and distributtoorrs.
• Workers distributtiinngg, servicinngg,, repairing, installing residentiall and commerciall HVAC systems, boilers, furnaces and other heating, cooling, refrigerationn,, and ventilatiioonn equipmentt..
• Workers supporting the operations of commercial buildings that are critical to safettyy, securittyy,, and the continuance of essential activitiieess,, suchh as onn-site property managerss,, building engineers, security stafff,, fire safety directorrss,, janitorial personnel, andd service technicians (e.g., mechanical, HVAC,, plumberrss,, electriciannss,, and elevatorr))..
• Management andd staff at hotels and other temporary lodging facilitiiees that provide for COOVVIIDD--119 mitigation, containmentt,, and treatment measures or provide accommodations for essentiall workerrss..

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Case 1:20-cv-00414 ECF No. 1-18 filed 05/12/20 PageID.211 Page 20 of 20
EEsssseennttial CCrriitical Infrastructure Workforce
RESIDENTTIIAAL//SSHHEELLTTER FACILITIES AND SERVICES
• Workers providing dependent care services, particularly those whose services ensure essentiall workers can continue to work.
• Workers who support foodd,, shelterr,, and social services, and other necessities of life for needy groups andd individuals, including in-need populations and COOVVIIDD--119 responders including travelling medicall stafff..
• Workers in animal shelters. • Workers responsible for the leasing of residential properties to provide individuals and families withh ready
access to available housinngg.. • Workers responsible for handling property managementt,, maintenannccee,, and relatedd service calls who cann
coordinate the response to emergency “"at-home"” situations requiring immediate attenttiioonn,, as well as facilitate the reception of deliverieess,, mail,, and other necessary services.. • Workers performing housing and commerciall construction relatedd activitiieess,, including those supporting government functions related to the building and development process, such as inspectionnss,, permitttiinngg,, and plan review services that can be modified to protect the public health, but fundamentally shouldd continue and enable the continuity of the construction industry (e.g., allow qualifiedd private third-party inspections in case of federal goveernment shutddoowwnn)).. • 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 householdd goods.
HYGIENE PRODUCTS AND SERVICES
• Workers who produce hygiene products. • Workers in laundromats, laundry services, and dry cleanerrss.. • Workers providing personal and household goods,, repair, and maintenannccee.. • Workers providing disinfection services for all essential facilitiiees and modes of transportatiioon and who
support the sanitation of all food manufacturing processes and operations fromm wholesale to retaill.. • Workers necessary for the installatiioonn,, maintenannccee,, distributtiioonn,, and manufacturing of water andd space
heating equipment and its componentss. • Support required for continuity of services,, including commerciall disinfectant services,, janittoorial andd
cleaning personnell,, and support personnell functions that need freedom of movement to access facilities in support of front-line workers.. • Workers supporting the productionn of home cleaning, pest controll,, and other essentiall products necessary to clean, disinfectt,, sanitiizze, and ensure the cleanliness of residential homes, shelters, andd commercial facilittiieess. • Workers supporting agriculture irrigationn infrastructuurree. • Workers supporting the production of home cleaning and pest control products.

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Case 1:20-cv-00414 ECF No. 1-19 filed 05/12/20 PageID.212 Page 1 of 4
EXHIBIT 19

Case 1:20-cv-00414 ECF No. 1-19 filed 05/12/20 PageID.213 Page 2 of 4
STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL
P.O. BOX 30005 LANSING, MICHIGAN 48909
DANA NESSEL ATTORNEY GENERAL
May 4, 2020
Re: Executive Orders 2020-69 & 2020-70
Dear Colleagues:
I am writing to clarify that, regardless of what you may have heard, Executive Order 2020-69 (temporary restrictions on the use of places of public accommodation) and Executive Order 2020-70 (temporary requirement to suspend activities that are not necessary to sustain or protect life) are valid and enforceable.
As you are aware, on April 30, 2020, Governor Whitmer issued executive orders under the Emergency Management Act and the Emergency Powers of Governor Act regarding the declared states of disaster and emergency in Michigan. In Executive Order 2020-66, the Governor terminated the states of disaster and emergency that had been previously declared under the EMA, and then, in Executive Order 2020-68, reissued a declaration of states of disaster and emergency under the EMA. A third order, Executive Order 2020-67, reiterated that a state of emergency remains declared under the EPGA.
Subsequently, the Governor issued two orders that have been the subject of debate—Executive Order 2020-69 and Executive Order 2020-70. Executive Order 2020-69 rescinded Executive Order 2020-43, but again placed temporary restrictions on the use of places of public accommodation. Executive Order 2020-70 rescinded Executive Order 2020-59, but again temporarily suspended various activities that are not necessary to sustain or protect life.
After these most recent actions, numerous legislators, and other officials, began to publicly question the validity of the Governor’s declarations under the EMA, and consequently, the enforceability of Executive Order 2020-69 and Executive Order 2020-70. Such commentary has created confusion among law enforcement officials tasked with enforcing the orders. In light of this confusion, as the chief law enforcement officer for the State of Michigan, I carefully reviewed the issue and offer the following guidance.
Executive Order 2020-69 and Executive Order 2020-70 were issued by the Governor under both the EPGA and the EMA.

Case 1:20-cv-00414 ECF No. 1-19 filed 05/12/20 PageID.214 Page 3 of 4
Page 2 May 4, 2020
The EPGA authorizes the Governor, following the declaration of an emergency, to:
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).]
The legislature has deemed this to be a “sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32. In addition, the provisions of the EPGA are to “be broadly construed to effectuate this purpose.” Id.
Here, as mentioned, the Governor has declared a state of emergency under the EPGA, and Executive Order 2020-69 and Executive Order 2020-70 were issued following that declaration. Therefore, to be valid under the EPGA, the orders must be “reasonable orders” that the governor “considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). In promulgating Executive Order 2020-69 and Executive Order 2020-70, the Governor specifically stated that she considered the restrictions imposed by those orders to be “reasonable and necessary” to mitigate the spread of COVID-19 and protect the public health across the State of Michigan. See Executive Order 2020-69, p 1-2; Executive Order 2020-70, p 1-2. I agree with that assessment.
COVID-19 has created a public health crisis of unprecedented gravity in our lifetime. Responding to, and stemming the spread of, the virus is paramount to all our well-being. To date, the most effective means to contain an infectious pandemic is to keep people away from each other. In promulgating Executive Order 2020-69 and Executive Order 2020-70, the Governor has done just that by placing restrictions on certain activities to limit social interactions. The absence of these restrictions would open gateways for the virus to reach every family and social network in every part of the State.
Consequently, the restrictions in Executive Order 2020-69 and Executive Order 2020-70 bear a real and substantial relationship to securing the public health, and they are reasonable. Further, although some restrictions on social interactions have been judiciously loosened by the Governor, the restrictions in Executive Order 2020-69 and Executive Order 2020-70 remain necessary to protect the lives of all Michiganders and bring the emergency created by COVID-19 in Michigan under control. As a result, Executive Order 2020-69 and Executive Order 2020-70 are valid and enforceable under the EPGA. Given that these orders are a valid exercise of the Governor’s authority pursuant to the EPGA, the speculation

Case 1:20-cv-00414 ECF No. 1-19 filed 05/12/20 PageID.215 Page 4 of 4 Page 3 May 4, 2020
related to the EMA is of no moment and should not create any confusion as to the enforceability of these orders.
As always, we appreciate your continued assistance in the enforcement of Executive Orders 2020-69 and 2020-70.
Sincerely,
Dana Nessel Attorney General

 
 Case 1:20-cv-00414-PLM-PJG ECF No. 9 filed 05/18/20 PageID.231 Page 1 of 3

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

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,

Plaintiffs, vs.
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Case No. 1:20-cv-00414 Hon. Paul L. Maloney

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

* * * EXPEDITED CONSIDERATION REQUESTED * * *

MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-00414-PLM-PJG ECF No. 9 filed 05/18/20 PageID.232 Page 2 of 3
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs move this Court for a Preliminary Injunction. Specifically, Plaintiffs seek an order enjoining Defendants from either directly or indirectly:
1. Enforcing against the Plaintiffs Executive Order 2020-17; 2. Enforcing against the Plaintiffs Executive Order 2020-92 or any similar
subsequent Stay Home, Stay Safe order promulgated by Governor Whitmer; and 3. Enforcing against the Plaintiffs the emergency order issued on April 2, 2020 by Robert Gordon, the Director of the Michigan Department of Health and Human Services. The basis for this motion is set forth in the attached memorandum in support, and in the Verified Complaint. Expedited consideration of this motion is necessary because the relief requested may well be rendered moot before the motion is briefed under the usual briefing schedule. See W.D. Mich. LCivR 7.1(e). Defendants’ Executive Orders prohibit the vast majority of the business and healthcare activities provided by the Plaintiffs Midwest Institute of Health, Wellston Medical Center, PLLC, and Primary Health Services, PC. If the motion is briefed and heard in accordance with the ordinary briefing schedule, these Plaintiffs may be forced to close their operations, thereby suffering irreparable harm that will be unable to remedy through injunctive relief. Further, the Executive Orders prohibit these Plaintiffs from providing important and necessary medical care to many of their patients. Each of these Plaintiffs has patients whose symptoms and conditions have materially and dangerously worsened due to the Defendants’

Case 1:20-cv-00414-PLM-PJG ECF No. 9 filed 05/18/20 PageID.233 Page 3 of 3

prohibition of these Plaintiffs’ provision of necessary and appropriate medical care. If the motion

is briefed and heard in accordance with the ordinary briefing schedule, patients’ health may

continue to deteriorate in the interim, causing potentially dangerous conditions and unnecessary

suffering that requires emergency care. This motion should be heard and decided on an expedited

basis in order to permit these Plaintiffs to provide their patients with necessary medical care

pending final resolution of this matter.

MILLER JOHNSON Attorneys for Plaintiffs

Dated: May 18, 2020

By /s/ James R. Peterson
James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org

MJ_DMS 31813060v1 47994-1

Case 1:20-cv-00414-PLM-PJG ECF No. 10 filed 05/18/20 PageID.234 Page 1 of 44

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

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,

Plaintiffs, vs.
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Case No. 1:20-cv-00414 Hon. Paul L. Maloney

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

**ORAL ARGUMENT REQUESTED**

Case 1:20-cv-00414-PLM-PJG ECF No. 10 filed 05/18/20 PageID.235 Page 2 of 44
Table of Contents
Page
Introduction ......................................................................................................................................1
Statement of Facts............................................................................................................................3
A. The Plaintiffs are medical providers and a patient, each of whom has been restricted from providing (or receiving) non-essential medical care. ............................................................................................................3
B. Governor Whitmer Issues Executive Orders Declaring a State of Emergency ...............................................................................................................6
C. Governor Whitmer Issues Numerous Executive Orders, Including an Order That Prohibits the Provision of All Non-Essential Medical Care ............................................................................................................7
D. Governor Whitmer Issues Several Stay-at-Home Orders Prohibiting Most In-Person Business Operations ....................................................8
E. Governor Whitmer’s Executive Orders Cause Enormous and Immediate Confusion...............................................................................................9
F. The Legislature Declines to Extend the Governor’s Emergency Declaration, and the Governor Unilaterally Determines to Extend It Anyway...............................................................................................................10
G. The Attorney General Advises That Law Enforcement Officials Will Continue to Enforce Governor Whitmer’s Executive Orders........................11
H. Governor Whitmer Admits That The Emergency Situation No Longer Exists. ........................................................................................................12
Argument .......................................................................................................................................15
I. The Plaintiffs are likely to succeed on the merits of their claims......................................15
A. EO 2020-17 and EO 2020-92 are unenforceable because they are unsupported by a proper declaration of emergency. ..............................................15
1. Governor Whitmer cannot re-declare an emergency under the EMA that the Legislature has specifically refused to renew. .........................................................................................................16
2. As a matter of statutory interpretation, the EPGA does not support Governor Whitmer’s executive orders..........................................17
i

Case 1:20-cv-00414-PLM-PJG ECF No. 10 filed 05/18/20 PageID.236 Page 3 of 44
Table of Contents (continued) Page
a. The EPGA authorizes only limited orders for time-limited emergencies....................................................................................17
b. There is no longer any “emergency” necessary to support a declaration of emergency under the EPGA. ..................................19
3. To the extent that the EPGA gives Governor Whitmer discretion to declare an unreviewable emergency across the entire State for an indefinite period of time, it violates the Separation of Powers and Non-Delegation Clauses. .................................22
4. EO 2020-17 and EO 2020-92, as applied to the Plaintiffs, are unreasonable and unnecessary. ............................................................26
B. EO 2020-17 is unconstitutionally vague................................................................26 C. EO 2020-17 violates the Plaintiffs’ procedural due process rights........................29 D. As applied to the Plaintiffs, EO 2020-17 and EO 2020-92 violate
substantive due process..........................................................................................31 E. As applied to the Plaintiffs, EO 2020-17 and EO 2020-92 violate
the Dormant Commerce Clause. ............................................................................32 II. The remaining factors favor preliminary injunctive relief.................................................34
A. The Plaintiffs will suffer irreparable harm.............................................................34 B. The public interest and the balance of equities favor preliminary
injunctive relief. .....................................................................................................34 Conclusion .....................................................................................................................................35
ii

Case 1:20-cv-00414-PLM-PJG ECF No. 10 filed 05/18/20 PageID.237 Page 4 of 44
Index of Authorities
Page(s)
Cases
Baggett v. Bullitt, 377 U.S. 360 (1964).................................................................................................................. 27
Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir. Cir. 1992) ............................................................................................. 34
Bd of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).................................................................................................................. 30
Blue Cross and Blue Shield of Mich. v. Milliken, 367 N.W.2d 1 (Mich. 1985)................................................................................................ 23, 24
Brandeis Machinery & Supply Corp. and State Equipment Co. v. Barber-Geene Co., 503 F.2d 503 (6th Cir. 1974) .................................................................................................... 15
Certified Restoration Dry Cleaining Network, LLC v. Tenke Corp., 511 F.3d 535 (6th Cir. 2007) .................................................................................................... 34
Cole v. City of Memphis, 839 F.3d 530 (6th Cir. 2016) .................................................................................................... 31
Fleming v. U.S. Dep't of Agric., 713 F.2d 179 (6th Cir. 1983) .................................................................................................... 31
Friends of DeVito v. Wolf, ___ A.3d ___, 2020 WL 1847100 (Pa. Apr. 13, 2020) ........................................................... 30
Fuentes v. Shevin, 407 U.S. 67 (1972).................................................................................................................... 29
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071 (6th Cir. 1994) .................................................................................................... 35
Gilbert v. Homar, 520 U.S. 924 (1997).................................................................................................................. 29
Grayned v. City of Rockford, 408 U.S. 104 (1972)...................................................................................................... 26, 27, 28
Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016) ........................................................................................... 32
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Index of Authorities (continued) Page
Humanitarian Law Project v. U.S. Dep’t of Treasury, 463 F. Supp. 2d 1049 (C.D. Cal. 2006) .................................................................................... 27
Jew Ho v. Williamson, 103 F. 10 (C.C.N.D. Cal. 1900) ................................................................................................ 32
Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002) .................................................................................................... 31
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963).................................................................................................................. 30
Kent v. Dulles, 357 U.S. 116 (1958).................................................................................................................. 31
Maryville Baptist Church, Inc. v. Beshear, __ F.3d __, 2020 WL 2111316 (6th Cir. May 2, 2020)....................................................... 2, 34
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................................. 29
Mich. Bell Telephone Co. v. Engler, 257 F.3d 587 (6th Cir. 2001) ..................................................................................................... 34
Mich. Deferred Presentment Servs. Ass'n v. Comm'r of Office of Fin. & Ins. Regulation, 788 N.W.2d 842 (Mich. Ct. App. 2010) ............................................................................. 21, 22
Morrison v. Wallen, 375 F.3d 468 (6th Cir. 2004) .................................................................................................... 29
Morrissey v. Brewer, 408 U.S. 471 (1972).................................................................................................................. 29
Oshtemo Charter Twp. v. Kalamazoo Cty. Rd. Comm’n, 841 N.W.2d 135 (Mich. Ct. App. 2013) ............................................................................. 24, 25
Osius v. City of St. Clair Shores, 75 N.W.2d 25 (Mich. 1956)...................................................................................................... 23
Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566 (6th Cir. 2002) .................................................................................................... 34
People v. Jacques, 572 N.W.2d 195 (Mich. 1998).................................................................................................. 17
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Index of Authorities (continued) Page
People v. Rea, 902 NW2d 362 (Mich. 2017).................................................................................................... 22
People v. Stephan, 616 N.W.2d 188 (Mich. Ct. App. 2000) ................................................................................... 21
Performance Unlimited, Inc. v. Questar Publishers Inc., 52 F.3d 1373 (6th Cir. 1995) .................................................................................................... 34
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970).................................................................................................................. 33
Reynolds v. McNichols, 488 F.2d 1378 (10th Cir. 1973) ................................................................................................ 32
Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co. of New York, Inc., 749 F.2d 124 (2d Circ. 1984)................................................................................................... 34
Roth v. Bank of Commonwealth, 583 F.2d 52 (6th Cir. 1978) ...................................................................................................... 15
State Highway Comm’n v. Vanderkloot, 220 N.W.2d 416 (Mich. 1974).................................................................................................. 24
Town of Southold v. Town of East Hampton, 477 F.3d 38 (2d Cir. 2007) ....................................................................................................... 33
Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982).................................................................................................................. 27
Westervelt v. Nat. Res. Comm’n, 263 N.W.2d 564 (Mich. 1978).................................................................................................. 23
Wickard v. Filburn, 317 U.S. 111 (1942).................................................................................................................. 33
Winter v. NRDC, Inc., 555 U.S. 7 (2008)...................................................................................................................... 15
Wisconsin Legislature v Palm, ___ N.W.2d ___, 2020 WL 2465677 (Wisc. May 13, 2020) ................................................... 25
Worthington v. Fauver, 440 A.2d 1128 (N.J. 1982) ....................................................................................................... 17
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Statutes Mich. Comp. Laws § 10.31............................................................. 6, 17, 18, 19, 20, 22, 24, 25, 26 Mich. Comp. Laws § 30.403............................................................................................... 6, 16, 22 Mich. Comp. Laws § 30.403(4) ...................................................................................................... 6 Other Authorities Webster’s New International Dictionary 837
(2d ed. 1942) ............................................................................................................................. 18
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INTRODUCTION No one disputes that, in March 2020, there was a valid public-health emergency that called for swift executive action. But short-term emergencies pose unique, long-term temptations. When an executive is able to wield sweeping, unilateral power to rapidly respond to an emergency situation, it can be tempting for the executive to, retain unilateral power, unhindered by the compromise of competing interests inherent in the legislative process. If the executive chooses to continue the emergency indefinitely and sidelines the Legislature in the interim, governance of the State no longer resembles a democracy. Those dangers are squarely present here. The Michigan Legislature permitted Governor Whitmer to take extraordinary and immediate executive action during the first month of Michigan’s response to the COVID-19 pandemic and even granted a 23-day extension of her initial emergency declaration. But, recognizing that the emergency had ended, the Michigan Legislature declined to extend Governor Whitmer’s declaration of a state of emergency beyond April 30, 2020. The Legislature’s decision not to extend the state of emergency constituted its determination that, now that Michigan had found its bearings about the nature of the pandemic, the Legislature could resume its constitutionally mandated role of legislating based upon policy for what is no longer an emergency but a long-term challenge. But Governor Whitmer did not respect the Legislature’s decision to resume its ordinary policy-setting and law-making role. Instead, after admitting that the curve had flattened, Governor Whitmer simply re-declared exactly the same state of emergency that Michigan law required—and the Legislature directed—to be terminated. Under Governor Whitmer’s interpretation of the relevant statutes, she may re-declare a state of emergency serially, for as long as she concludes that there is an “emergency.”

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COVID-19, like other infectious diseases, could easily last for years. The Governor’s sweeping assertion that she can rule by emergency powers, potentially for years and without any regard for the Legislature, exceeds the scope of her statutory authority and violates the safeguard of the Michigan Constitution’s Separation of Powers clause. Allowing the Governor’s conduct to stand unchallenged would be a dangerous precedent to set, and it is the judiciary’s role to act. “While the law may take periodic naps during a pandemic, [the courts] will not let it sleep through one.” Maryville Baptist Church, Inc. v. Beshear, __ F.3d __, 2020 WL 2111316, at *4 (6th Cir. May 2, 2020).
This lawsuit challenges Executive Orders 2020-17 and 2020-92, which criminalize the provision of all “non-essential” medical treatments, as well as travel to obtain such medical treatment, respectively. Those executive orders are predicated upon Governor Whitmer’s improper attempts to re-declare a state of emergency that has already been terminated. They therefore cannot be applied to the Plaintiffs. And in any event, the executive orders are unconstitutionally vague; they violate procedural and substantive due process; and they violate the dormant commerce clause. In fact, at a press conference held on May 1, 2020, Governor Whitmer admitted that it is no longer necessary to prohibit non-essential medical procedures. According to Governor Whitmer,
We are encouraging anyone who has been holding off on surgery that really needs to be done, to get that scheduled and to proceed. Early on, it was really necessary because we had so few N95 masks, and gloves, and all of the important things that we needed to keep people safe as we were dealing with this influx of COVID-19 patients, so that we could use all of that PPE. Now, we’ve been able to build up enough that we can proceed with these other procedures, and we are encouraging hospital systems to move forward with that.
* * *
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[A]s for oncology surgeries, as for knee surgeries, those are things that should be scheduled and we’re encouraging people to get that done.1 Despite the Governor’s admission that there is no longer a need to prohibit “knee surgeries” and other non-essential medical procedures, EO 2020-17 has not been rescinded. Absent injunctive relief, the executive orders may be enforced against the Plaintiffs, who may be subject to criminal penalties simply for providing and receiving medical treatment. The healthcare provider plaintiffs will also very likely be forced out of business, precluding their ability to provide needed medical care to patients. This Court should grant preliminary injunctive relief and enjoin the Defendants from enforcing the Governor’s executive orders against the Plaintiffs.
STATEMENT OF FACTS The following facts are taken from the Plaintiffs’ verified complaint. A. The Plaintiffs are medical providers and a patient, each of whom has been restricted from providing (or receiving) non-essential medical care. Grand Health was established in 2008 and operates in Grand Rapids, Petoskey, and Grand Haven, Michigan. Its medical staff—eight licensed medical doctors and a full staff of physicians’ assistants, dieticians, exercise physiologists, and behaviorists—provides weight loss solutions for patients. Grand Health’s physicians provide bariatric surgery services and general surgery services, including laparoscopic cholecystectomy (gallbladder removal), appendectomy, and various types of hernia surgery and repair. Grand Health also provides endoscopic and colonoscopy services. All endoscopy services and pre- and post-operative care and medical
1 Michigan Governor Gretchen Whitmer Press Conference Transcript May 1, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-press-conferencetranscript-may-1 (last visited May 15, 2020).
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programs take place at Grand Health’s offices, but all surgeries occur at area hospitals, at which Grand Health’s physicians have admitting privileges.
Grand Health and its patients have been enormously impacted by Governor Whitmer’s prohibition against the provision of bariatric and “non-essential” medical services since March 21, 2020. Obesity is one of the highest risk factors for morbidity, and timely preventive care is vital. Many of Grand Health’s weight-loss patients require surgery as a prerequisite for joint replacement surgery. The delay imposed by the prohibition of bariatric surgery has caused these individuals to suffer agonizing pain in the interim. Grand Health physicians have also seen an increase in cases where patients have been unable to obtain medical care until their condition has progressed far beyond a state in which it would have been easily treatable. For example, patients are obtaining surgery only after their gallbladder is gangrenous or their appendix is ruptured, instead of obtaining care when their condition was in a much less severe state. Although Grand Health continued to provide minimal levels of emergency care to its patients, Grand Health furloughed most of its employees and has pushed back almost all of its patients’ procedures and post-operative support meetings. If the shutdown continues, Grand Health will almost certainly go out of business, and its medical staff will be out of work.
Wellston Medical Center and Primary Health Services (the “Clinics”) are primary care clinics in West Michigan. They serve patients in primarily rural communities surrounding Wellston and Ludington. Over 90% of their patients are on Medicaid or Medicare. Much of the medical care they provide is not emergency care, but it is extremely important. For example, one patient had a stent in his ureter as a result of a kidney stone. The stent was supposed to be removed in two weeks. That procedure could not be scheduled for two months, resulting in a bladder and kidney infection. The infection required hospitalization and emergency surgery.
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The Clinics have been devastated by the Governor’s executive orders. Prior to March 2020, they treated an average of 90 to 100 patients per day, with 16 staff members. Under the Governor’s executive orders, the clinics cannot perform what the Governor deems “nonessential procedures.” When Executive Order 2020-17 was issued, the number of patients who were allowed to be treated dropped by 95%. If the shutdown continues, these clinics will almost certainly go out of business, and their medical staff will be out of work.
Plaintiff Jeffery Gulick was scheduled to undergo knee replacement surgery on his right knee on March 20, 2020, at Memorial Hospital in Owosso. Under the Governor’s executive orders, his knee replacement surgery cannot go forward. Additionally, he could not receive follow up care for the knee replacement surgery that had been performed on his left knee. He is in excruciating pain and unable to get prescription pain medication until he can be seen on June 11. As a result of the debilitating pain, Mr. Gulick has had to reduce his work hours by 80%.
If permitted to fully reopen, there is no question that Grand Health can conduct its operations in a manner that will take precautions to prevent the transmission of the virus that causes COVID-19. All surgeries will occur at a hospital, consistent with surgical sanitation and COVID19-compliant guidelines. Grand Health has implemented a plan under which its health care providers will screen all patients and staff when they come in, taking temperature and pulse oximeter readings. Most patients will wait in their car instead of in the waiting room; for those who cannot do so, Grand Health’s waiting room has been reduced to half-occupancy, thereby allowing for social distancing. Finally, staff in Grand Health’s endoscopy center will wear medical facemasks, including N95 respirator masks during any medical procedure, and will use half of the available surgical bays in order to ensure appropriate distance between medical teams.
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The Clinics similarly can operate in a safe manner. If the Clinics reopen, all treatment will occur in a manner that is consistent with appropriate sanitation and COVID-19compliant guidelines. Patients and staff will be screened for signs of COVID-19 and contact with those with COVID-19. No more than two patients per hour will be scheduled. Finally, staff and patients will wear facemasks, and the reception area will be equipped with a clear barrier.
B. Governor Whitmer Issues Executive Orders Declaring a State of Emergency On March 11, 2020, Governor Whitmer issued Executive Order 2020-04, which
proclaimed a state of emergency under both the Emergency Management Act (“EMA”), Mich. Comp. Laws § 30.403, and the Emergency Powers of the Governor Act of 1945 (“EPGA”), Mich. Comp. Laws § 10.31. (Exhibit 1). The order identified the COVID-19 pandemic as the basis for her declaration of a state of emergency under both statutory regimes.
There is a time limitation on the Governor’s exercise of emergency powers under these two statutes. The EPGA provides that all orders and rules promulgated by the governor during the state of emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Mich. Comp. Laws § 10.31(2). The EMA provides that a governor’s declaration of emergency may last only 28 days, after which “the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.” Mich. Comp. Laws § 30.403(4).
On April 1, 2020, Governor Whitmer issued Executive Order 2020-33, which replaced Executive Order 2020-04, declared a state of emergency pursuant to the EPGA, and proclaimed a state of disaster and a state of emergency under the EMA. (Exhibit 2). These declarations were based on the same circumstances—that is, the dangers posed by the virus that causes COVID-19—that formed the basis of Executive Order 2020-04.
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On April 1, 2020, Governor Whitmer also requested that the Michigan Legislature extend the state of emergency by an additional 70 days, as contemplated by the EMA. On April 7, 2020, the Michigan Senate and Michigan House of Representatives denied Governor Whitmer’s request to extend the state of emergency for an additional 70 days. Instead, the Michigan Legislature extended the state of emergency declared by Governor Whitmer until April 30, 2020, but not beyond.
C. Governor Whitmer Issues Numerous Executive Orders, Including an Order That Prohibits the Provision of All Non-Essential Medical Care Meanwhile, Governor Whitmer issued many additional executive orders, invoking
emergency powers that the Governor claims flow from the state of emergency declared under Executive Orders 2020-04 and 2020-33. As of May 15, 2020, Governor Whitmer has issued more than 80 executive orders related to the COVID-19 pandemic, creating and changing substantive state law and regulations that impact and burden wide swaths of the economy. A chart summarizing the substantive changes to the law imposed by Governor Whitmer’s executive orders is attached as Exhibit 3.2
One of these orders, Executive Order 2020-17 (“EO 2020-17”), took effect on March 21, 2020 and remains in effect until the termination of the Governor’s declaration of emergency. It provides that, until the termination of the Governor’s declaration of a state of emergency, most medical providers are prohibited from providing any “medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (Exhibit 4). EO 2020-17 specifically prohibits medical providers from providing any bariatric surgery and joint replacement surgery services, “except for emergency or trauma-related surgery where postponement would
2 The chart attached as Exhibit 3 was last updated as of 9 a.m. Eastern Time on May 18, 2020.
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significantly impact the health, safety, and welfare of the patient.” A willful violation of EO 202017 is a misdemeanor.
At a press conference held on May 1, 2020, Governor Whitmer admitted that these restrictions are no longer necessary.3 Despite the Governor’s admissions, EO 2020-17 has not been rescinded.
On May 3, 2020, Dr. Joneigh Khaldun, Chief Deputy Director for Health at the Michigan Department of Health and Human Services, issued a letter to Michigan health care providers, noting, “I recognize some have questions about Executive Order 2020-17, including what is allowable under the order and how to start to re-engage with patients for important care.” (Exhibit 5). Dr. Khaldun then provided her own interpretation of EO 2020-17: “This wording is intended to be flexible, preserve clinician judgement, and encourage consideration on an individual basis of which patient services can be safely delayed without resulting in a significant decline in health. EO 2020-17 gives providers broad discretion to apply this standard.”
It is not clear that Dr. Khaldun’s interpretation of EO 2020-17 has any weight. Further, regardless of Dr. Khaldun’s correspondence, EO 2020-17 continues to prohibit bariatric and joint replacement surgeries and continues to impose criminal penalties for those who willfully violate the order.
D. Governor Whitmer Issues Several Stay-at-Home Orders Prohibiting Most InPerson Business Operations Along with her other executive orders, Governor Whitmer issued six iterations of
“Stay Home, Stay Safe” orders, specifically Executive Orders 2020-21, 2020-42, 2020-59, 202070, 2020-77, and 2020-92. (Exhibits 6, 7, 8, 9, & 10). Each of those orders imposes sweeping
3 Michigan Governor Gretchen Whitmer Press Conference Transcript May 1, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-press-conferencetranscript-may-1 (last visited May 15, 2020).
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limitations on Michigan citizens’ ability to travel and prohibits large numbers of workers in Michigan from reporting to work.
The current version of the Stay Home, Stay Safe order is Executive Order 2020-92, which became effective on May 18, 2020 (“EO 2020-92”). (Exhibit 18). This order continues the restrictions of the previous Stay Home, Stay Safe orders, including the prohibition of any travel by any person for any purpose other than as outlined in Paragraph 8 of the executive order. Michigan citizens are prohibited under EO 2020-92 from traveling to seek medical or dental care that is not “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).” Like the previous Stay Home, Stay Safe orders, EO 2020-92 exempts certain workers from the travel ban and incorporates the definition of “critical infrastructure workers” as outlined in a March 19, 2020 memorandum prepared by the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency (the “March 19 CISA guidance”). (Exhibit 11). As with all of the other Stay Home, Stay Safe orders, a willful violation of EO 2020-92 is a criminal misdemeanor.
E. Governor Whitmer’s Executive Orders Cause Enormous and Immediate Confusion Almost immediately after her first stay-home order (Executive Order 2020-21) was
issued, the Attorney General and Governor were inundated with requests for clarification of the
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order. On March 24, 2020, Governor Whitmer observed, “We knew that there would be confusion, there always is.”4
On March 25, the Attorney General’s office admitted, “I think it’s a difficult executive order to really wrap your arms around.”5 The Attorney General’s office explained that
its process of clarifying the meaning of the order occurred on an ad hoc, case-by-case basis: “Every
instance we get a call asking about whether or not businesses essential is being first reviewed by
our office and then shared with the governor’s office so that we can begin to get some clarity
around the executive order.” Despite the admitted confusion created by the orders, the Attorney
General’s office reiterated that violating the order could result in criminal penalties and forced closure of a business by law enforcement.6 7
F. The Legislature Declines to Extend the Governor’s Emergency Declaration, and the Governor Unilaterally Determines to Extend It Anyway Under the emergency powers statutes, the Governor has the power to declare an
emergency, but the Legislature determines how long that emergency—and the Governor’s
attendant powers to make laws on an emergency basis—lasts. The EMA requires the Governor to
declare that a state of emergency is terminated after 28 days if the Legislature does not extend the
4 Mikenzie Frost, Gov. Whitmer says she understands confusion surrounding stay-at-home, urging patience, WWMT, Mar. 24, 2020, available at https://wwmt.com/news/state/govwhitmer-says-she-understands-confusion-surrounding-stay-at-home-urging-patience (last visited May 12, 2020). 5 Malachi Barrett, Michigan Attorney General asks local law enforcement to handle violations of coronavirus stay home order, MLive, Mar. 25, 2020, available at https://www.mlive.com/publicinterest/2020/03/michigan-attorney-general-asks-local-law-enforcement-to-handle-violations-ofcoronavirus-stay-home-order.html (last visited May 12, 2020). 6 Virginia Gordan, Local police to handle reports of violations of Gov. Whitmer’s stay-at-home order, Michigan Radio, Mar. 25, 2020, available at https://www.michiganradio.org/post/localpolice-handle-reports-violations-gov-whitmers-stay-home-order (last visited May 12, 2020). 7 As noted in the Plaintiffs’ complaint, Defendant Gordon also issued an emergency order on April 2, 2020 (the “HHS order). The validity of the HHS order also relies upon the validity of the Governor’s emergency declarations.
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emergency, and the EPGA states that any emergency declared under that statute terminates when the Governor declares that the emergency is terminated. On April 30, 2020, the Michigan Legislature refused to extend Governor Whitmer’s declarations of a state of emergency and a state of disaster. Immediately after the Michigan Legislature refused to extend her emergency declarations, Governor Whitmer issued on April 30, 2020 three additional Executive Orders: 202066, 2020-67, and 2020-68.
EO 2020-66 terminates the Governor’s declarations of a state of emergency and a state of disaster based upon the COVID-19 pandemic, as required under the EMA. (Exhibit 12).
EO 2020-68, issued only minutes later, purports to re-declare under the EMA exactly the same states of disaster and emergency that the Legislature refused to extend and which had just been terminated under EO 2020-66. These renewed states of disaster and emergency purported to remain effective through May 28, 2020. (Exhibit 13).
EO 2020-67 states that a “state of emergency remains declared across Michigan” under the EPGA and that the state of emergency remains in effect until May 28, 2020. The state of emergency that EO 2020-67 references is exactly the same state of emergency that the Governor declared to be terminated in EO 2020-66. (Exhibit 14).
G. The Attorney General Advises That Law Enforcement Officials Will Continue to Enforce Governor Whitmer’s Executive Orders After the Legislature refused to extend the Governor’s declaration of emergency
past April 30, Attorney General Nessel issued a letter to law enforcement officials asserting that the Governor’s executive orders continued to be valid under the EPGA and directing that law
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enforcement officials continue to enforce the Governor’s orders. Notably, the Attorney General did not defend the Governor’s conduct under the EMA. (Exhibit 15).
Due to the harsh penalties imposed for violating EO 2020-17, EO 2020-92, and the HHS order—including criminal penalties and revocations of necessary business licenses—the Plaintiffs are in a very difficult position. Grand Health and the Clinics must choose between continuing to suspend most of their operations despite the fact that EOs 2020-17 and 2020-92 may be invalid, or operating under the threat of criminal prosecution and loss of their licenses. Mr. Gulick, for his part, is prohibited from traveling to obtain necessary medical treatment, because to do so is to incur criminal liability.
H. Governor Whitmer Admits That The Emergency Situation No Longer Exists. Since Governor Whitmer’s original declaration of a state of emergency in March,
2020, the projected impact of the COVID-19 pandemic has changed substantially. Initial projections based on some models projected widespread infection of the population that would overwhelm our hospitals and healthcare systems, resulting in a massive number of deaths. One model from the CDC projected between 160 to 214 million infections and between 200,000 to 1.7 million deaths nationwide.8 Based upon those projections, government leaders made hard decisions on how to best to protect the health of their citizens, while acting within the bounds of controlling constitutions and established law.
Governor Whitmer justified her initial declaration of a state of emergency on the very important goal to “flatten the curve” and avoid overwhelming Michigan’s healthcare system
8 Chas Danner, CDC’s Worst-Case Coronavirus Model: 214 Million Infected, 1.7 Million Dead, N.Y. Magazine Intelligencer, updated Mar. 13, 2020, available at https://nymag.com/intelligencer/2020/03/cdcs-worst-case-coronavirus-model-210m-infected-17m-dead.html.
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and hospitals. Thankfully, the goal of flattening the curve has been achieved, and the dire predictions of overwhelmed hospitals have not come to pass.
During a press conference on Monday, April 27, 2020, Governor Whitmer acknowledged that the curve has flattened in Michigan. Graphics depicted that while Governor Whitmer’s administration anticipated 220,000 patients being hospitalized without social distancing efforts, there had only been 3,000 hospitalizations as of April 27. That is less than 1.4% of the projected COVID-19 hospitalizations underlying the Governor’s declared states of emergency and disaster. According to data released by the State of Michigan, hospitals in the state are well-stocked with over 2,400 available ventilators, nearly 1,000 available ICU beds, and more than 7,000 available hospital beds.9
On May 7, 2020, Governor Whitmer announced a six-phase plan to reopen Michigan’s economy titled “MI Safe Start.” Governor Whitmer stated that Michigan was in the third phase, called the “Flattening” phase, in which “[c]ase growth is gradually declining.”10 But even in the Flattening phase, the reopening of the economy is strictly limited to only “[s]pecified lower-risk businesses with strict workplace safety measures.” The Governor has not indicated when medical services deemed “non-essential” by her executive order will be permitted to resume.
In the Governor’s view, Michigan will not reach the sixth “Post-pandemic” phase anytime soon. From the Governor’s perspective, Michigan enters that phase only once the state has achieved “sufficient community immunity” and there is “high uptake of an effective therapy
9 https://www.michigan.gov/coronavirus/0,9753,7-406-98159-523641--,00.html (last updated May 11, 2020; last visited May 12, 2020). 10 MI Safe Start: A Plan to Re-Engage Michigan’s Economy, Gov. Gretchen Whitmer, available at https://content.govdelivery.com/attachments/MIEOG/2020/05/07/file_attachments/1446147/Gov ernor%20Whitmer%27s%20MI%20Safe%20Start%20Plan.pdf (published May 7, 2020; last visited May 12, 2020).
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or vaccine.” The mumps vaccine holds the record for the fastest ever approved vaccine—with development and approval in 4 years.11
Governor Whitmer’s MI Safe Start Plan warns that at any time, “it is also possible to move backwards”—and reenter earlier phases of the emergency—“if risk increases and if we stop adhering to safe practices.” There is therefore a real possibility that Governor Whitmer continues for many months, if not years, to enact measures that burden the rights and liberties of individuals and businesses without legislative input. Instead of working in tandem with the Legislature to develop policy solutions to long-term economic and public-health challenges, Governor Whitmer has instituted a Michigan Economic Recovery Council (“MERC”), which is tasked with identifying sectors and industries that may reopen for business.12 Unlike the Legislature, MERC is not representative of all industry sectors, nor is it representative of the citizens of Michigan.
Meanwhile, medical providers are on the brink of financial ruin, facing extreme revenue shortages caused by the Governor’s order forcing the postponement or cancellation of socalled “non-essential” procedures. Thousands of healthcare workers across Michigan have been furloughed or laid off.
The Plaintiffs will suffer immeasurable and irreparable harm if EOs 2020-17 and 2020-92 are continued and/or enforced against them. Mr. Gulick is being deprived of his basic right to travel to obtain necessary medical care. If Grand Health and the Clinics (collectively, the
11 Donald G. McNeil, Jr., The Coronavirus in America: The Year Ahead, New York Times, April 18, 2020, available at https://www.nytimes.com/2020/04/18/health/coronavirus-americafuture.html. 12 Detroit Regional Chamber, Michigan Economic Recovery Council Advises Gov. Whitmer On Reopening Based On Risk, Workplace Environment, Geography, available at https://www.detroitchamber.com/covid19/michigan-economic-recovery-council-advises-govwhitmer-on-reopening-based-on-risk-geography/ (last visited May 18, 2020).
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“Provider Plaintiffs”) are prohibited from providing medical treatment, they will almost certainly become insolvent or be forced to permanently close their operations. At minimum, they will suffer irreparable harm in the form of lost business goodwill within the community and with their patients, particularly if they are perceived as engaging in conduct that the Governor’s executive orders have deemed criminal. Injunctive relief is necessary in this case.
ARGUMENT “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Each of these factors is met here. I. The Plaintiffs are likely to succeed on the merits of their claims. To satisfy the first prong of the preliminary-injunction analysis, the Plaintiffs must only demonstrate that the legal issues they raise are substantial enough to constitute “fair ground[s] for litigation and thus [require] more deliberate investigation.” Roth v. Bank of Commonwealth, 583 F.2d 527, 537 (6th Cir. 1978). “It will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them a fair ground for litigation and thus for mere deliberate investigation.” Brandeis Machinery & Supply Corp. and State Equipment Co. v. Barber-Geene Co., 503 F.2d 503, 505 (6th Cir. 1974). The Plaintiffs’ claims meet this standard. A. EO 2020-17 and EO 2020-92 are unenforceable because they are unsupported by a proper declaration of emergency. The sweeping provisions of EO 2020-17 and EO 2020-92 are enforceable only to the extent that they are authorized by the Governor’s powers under either the EMA or the EPGA.
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Because the Governor has not properly exercised her powers under either statute, neither EO 202017 nor EO 2020-92 is enforceable.
1. Governor Whitmer cannot re-declare an emergency under the EMA that the Legislature has specifically refused to renew.
The EMA unambiguously states that, unless both houses of the Michigan Legislature approve the Governor’s request for an extension of a declared state of disaster or state of emergency with 28 days, then “the governor shall issue an executive order or proclamation declaring the state of disaster [or emergency] terminated.” Mich. Comp. Laws § 30.403(3) & (4). The term “terminated” connotes finality. The clear purpose for imposing a 28-day limit on the Governor’s exercise of her emergency powers was to ensure that the Legislature retained the ability to override the Governor’s ability to rule unilaterally. The legislative history, for example, suggests that, when the Legislature adopted the 28-day limit in 2002, it did so only because “sometimes the legislature may not be in session during the time when a state of emergency or disaster needs extending,” and fully recognized that more lengthy extensions of emergency power could give rise to “abuses of executive power.” Mich. House Fiscal Agency Bill Analysis, H.B. 5496, 1/24/2002. (Exhibit 16). Thus, the language requiring that the Legislature have the ability to terminate the state of emergency operates as a safety valve to ensure that legislative democracy does not devolve into lengthy unilateral rule by the executive.
Governor Whitmer terminated the states of disaster and emergency in EO 2020-66. Then, one minute later, she re-declared in EO 2020-68 exactly the same emergency and disaster declarations that she had just declared terminated—and which the Legislature had specifically refused to renew. Such a ruse is incompatible with the clear language of the EMA. The statute requires that she “terminate” the declaration of emergency, not that she simply sign two pieces of paper and continue the same emergency that the Legislature refused to extend. See, e.g.,
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Worthington v. Fauver, 440 A.2d 1128, 1138–39 (N.J. 1982) (noting that the executive order would be invalid if it invoked the same emergency each year indefinitely).
Even Attorney General Nessel withheld comment on the Governor’s attempt to redeclare the very same emergency under the EMA that the Legislature had explicitly declined to renew. (Exhibit 15). Under the EMA, the Governor’s executive orders are invalid.
2. As a matter of statutory interpretation, the EPGA does not support Governor Whitmer’s executive orders. a. The EPGA authorizes only limited orders for time-limited emergencies.
First, the EPGA does not authorize orders that mandate long-lasting, sweeping changes to generally applicable legislation. When interpreting statutes, Michigan courts employ the doctrine of ejusdem generis, which directs that, where a statute defines a category by reference to a list of illustrative terms, the general category “will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.” People v. Jacques, 572 N.W.2d 195, 197 (Mich. 1998).
Here, the statute provides that the governor may proclaim a state of “emergency” under only certain circumstances: “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind.” Mich. Comp. Laws § 10.31(1). Unlike the EMA, the EPGA does not refer to “epidemics” as examples of circumstances over which the EPGA gives the Governor emergency powers. Instead, the illustrative examples employed by the EPGA— “crisis,” “disaster,” “rioting,” “catastrophe,” and an emergency causing “immediate danger”— generally consist of circumstances in which an urgent, time-sensitive response is required. In fact, the statute refers to each of these scenarios as comprising a “public emergency,” and the term
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“emergency” as used when the EPGA was enacted in 1945 refers only to exigencies that exist for a relatively limited period of time. See Webster’s New International Dictionary 837 (2d ed. 1942)(defining “emergency” as “[a]n unforeseen combination of circumstances which calls for immediate action; also, less properly, exigency”). Under the doctrine of ejusdem generis, the statutory language persuasively indicates that the EPGA applies only to time-limited disturbances, not to months- or years-long, global pandemics.
This interpretation of the statutory language is substantiated by the EPGA’s illustrative list of the types of orders that the Governor may issue during the emergency. The EPGA contemplates that the Governor’s orders will be of primarily brief duration and circumscribed scope, affecting matters such as traffic control, controls of alcohol sales and explosives storage, and limitations on public assembly and imposition of curfews (which would necessarily be timelimited, due to the strictures of the First Amendment). Mich. Comp. Laws § 10.31(1). This illustrative list clearly contemplates that the Governor would take action in relatively time-limited circumstances.
Other clues confirm this interpretation. First, the EPGA empowers certain local officials to request an emergency declaration, suggesting that the concerns that the statute was intended to cover are primarily local in nature, rather than state-wide. Mich. Comp. Laws § 10.31(1). Second, the historical context suggests that the EPGA was enacted in 1945 in response to localized riots in Detroit in 1943. (Exhibit 17). Thus, both internal and external clues strongly suggest that the EPGA does not authorize the Governor to continue to rule unilaterally in the context of an ongoing, lengthy pandemic. Because an ongoing pandemic is not the sort of relatively time-limited “emergency” in which the EPGA authorizes the Governor to take unilateral action, Governor Whitmer’s declaration of an emergency under the EPGA is invalid.
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b. There is no longer any “emergency” necessary to support a declaration of emergency under the EPGA.
The EPGA also provides that any orders issued by the Governor during the emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Mich. Comp. Laws § 10.31(2). Governor Whitmer has terminated the only emergency upon which her declaration under the EPGA rested.
The Governor rested her emergency declaration under the EPGA on precisely the same set of facts upon which her declaration of a state of disaster and a state of emergency under the EMA were based. The initial declaration of emergency, contained in EO 2020-04, declared a single “emergency” due to the COVID-19 pandemic and did not describe separate emergencies or separate facts or circumstances giving rise to independent emergencies under the EMA and the EPGA. (Exhibit 1). The renewed declaration of emergency, found in EO 2020-33, declared a “state of emergency and a state of disaster.” (Exhibit 2). The basis for these declarations was, again, the COVID-19 pandemic. The Governor did not identify any new or different emergency; there was only one “emergency” identified in all of her executive orders.
This sole “emergency” was terminated in EO 2020-66. There, the Governor stated that “[t]he 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.” (Exhibit 12). The Governor added, “[T]he threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” (Id.). Nevertheless, because the Legislature declined to extend the emergency, the Governor declared that the state of emergency was terminated. (Id.).
Although EO 2020-66 purported to limit this termination to the state of emergency that had been declared under the EMA, that is word play. Only one emergency was ever identified
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in Governor Whitmer’s executive orders: the COVID-19 pandemic. In fact, the first 11 paragraphs of EO 2020-66, EO 2020-67, and EO 2020-68—reciting the factual basis for the renewed declarations of emergency—are exactly identical in all three orders. (Exhibits 12, 13, & 14). Each of the executive orders specifically recognizes that the basis for the ongoing disaster declarations is exactly the same as the basis for the emergency declarations in EO 2020-04 and EO 2020-33. Because this emergency was terminated in EO 2020-66, all executive orders purporting to be based on that emergency no longer have any effect under the EPGA. Mich. Comp. Laws § 10.31(2).
EO 2020-67 does not salvage the Governor’s attempt to exercise authority under the EPGA, for at least two reasons. First, instead of declaring a new emergency based on a different set of facts, EO 2020-67 simply asserts that a state of emergency “remains declared” across Michigan due to the COVID-19 pandemic. (Exhibit 14). EO 2020-67 recites exactly the same facts that, moments before, EO 2020-66 recited when terminating the very same emergency. The EPGA allows the Governor to issues an emergency declaration only if there is a “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state.” Mich. Comp. Laws § 10.31(1). The Governor cannot manufacture a new emergency merely by reiterating exactly the same facts that the Governor had just recited when terminating the emergency literally minutes before. Allowing the Governor to re-declare a new “emergency” based on entirely unchanged facts without identifying any changed circumstances or new urgency would permit the Governor to use the EPGA to support indefinite unilateral rule through serial emergency declarations. The statutory text does not permit her to do so.
Second, particularly because the Governor predicated her declaration of emergency under the EPGA on exactly the same facts that formed the basis of her declaration of emergency under the EMA, the 28-day limitation contained in the EMA applies to the Governor’s declaration
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of emergency under the EPGA. Under Michigan law, “[s]tatutes that relate to the same subject or that share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates.” Mich. Deferred Presentment Servs. Ass'n v. Comm'r of Office of Fin. & Ins. Regulation, 788 N.W.2d 842, 846 (Mich. Ct. App. 2010). “The object of the in pari materia rule is to further legislative intent by finding an harmonious construction of related statutes, so that the statutes work together compatibly to realize that legislative purpose.” People v. Stephan, 616 N.W.2d 188, 196 (Mich. Ct. App. 2000).
The EPGA and EMA are in pari materia, because they both relate to the same subject and share a common purpose; namely, describing the parameters of the executive’s emergency power. This is particularly the case when a single set of facts forms the basis for emergency declarations under both statutes. In such a scenario, the statutes are controlling the executive branch’s emergency powers with respect to precisely the same state of underlying circumstances.
When the statutes are read together, the EMA provides the outer time limit on the executive’s exercise of emergency power under both the EPGA and the EMA. On its face, the EPGA does not impose a time limit on the Governor’s exercise of her emergency powers, whereas the EMA does. Unless the two statutes are harmonized, they would cause contradictory results: Under the EPGA, the Governor could exercise emergency power over precisely the same emergency circumstances with respect to which the Legislature had denied her the authority to exercise her emergency powers under the EMA. This would render the time limit in the EMA meaningless.
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“To the extent that statutes that are in pari materia are unavoidably in conflict and cannot be reconciled, the more specific statute controls.” Mich. Deferred Presentment Servs, 788 N.W.2d at 846. The EPGA generally provides that any orders issued by the Governor during the emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Mich. Comp. Laws § 10.31(2). The EMA, in turn, provides the specific mechanism under which the Governor must declare an emergency terminated. As a result, particularly where the same emergency forms the basis for declarations under both the EMA and the EPGA, then the more specific EMA controls: The emergency cannot be extended beyond 28 days, absent the Legislature’s consent, as provided in the EMA. Mich. Comp. Laws § 30.403(4).
To read the statutes as separate regimes that do not speak to each other leads to absurd results. If the EPGA allows the Governor carte blanche to declare an emergency and rule unilaterally indefinitely, then the careful balance of power reflected in the considered language of the EMA is entirely pointless, and the EMA is almost wholly irrelevant. A court “must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” People v. Rea, 902 NW2d 362, 364 (Mich. 2017). Applying the doctrine of in pari materia avoids the absurdity of rendering the EMA almost entirely surplusage.
3. To the extent that the EPGA gives Governor Whitmer discretion to declare an unreviewable emergency across the entire State for an indefinite period of time, it violates the Separation of Powers and NonDelegation Clauses.
An interpretation of the EPGA that insulates it from the 28-day time limit in the EMA would violate Michigan’s Constitution because it is an impermissible delegation of legislative authority in violation of the Michigan Constitution. An unconstitutional interpretation of the statute must be avoided.
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The Separation of Powers Clause in the Michigan Constitution provides that “[t]he powers of government are divided into three branches: legislative, executive, and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Mich. Const. (1963) art. III, Section 2. Similarly, Article IV, Section 1 of the Michigan Constitution prohibits the delegation of “legislative power.” The essential purpose of this prohibition is to “protect the public from misuses of delegated power.” Blue Cross and Blue Shield of Mich. v. Milliken, 367 N.W.2d 1, 27 (Mich. 1985).
Because “[t]here is no doubt that a legislative body may not delegate to another its lawmaking powers,” a delegation of power to the executive through legislation is not lawful if it permits executive law making. Osius v. City of St. Clair Shores, 75 N.W.2d 25, 27 (Mich. 1956). The Legislature “must promulgate, not abdicate.” Id. Instead of giving the executive wide discretion to make laws, a delegation of power is valid only if it provides “reasonably precise” parameters to guide the executive’s exercise of its authority “to say when the law shall operate, or as to whom, or upon what occasion.” Id. These parameters ensure that “the Legislature has (1) authorized and (2) limited [the executive’s] action.” Westervelt v. Nat. Res. Comm’n, 263 N.W.2d 564, 576 (Mich. 1978). Only if the scope of the executive’s action is limited may the executive branch be deemed not to be “‘legislating’ in the essential sense of the word, because the [executive] is acting within specified limitations (‘standards’) established by the Legislature and is not acting in accordance with its own will.” Id. If no such limitations are in place and the executive branch is able to “follow its own uncircumscribed will,” then the statute consists of an improper delegation and is unconstitutional. Id. at 577.
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“The preciseness required of the standards will depend on the complexity of the subject.” Blue Cross, 367 N.W.2d at 27. Nevertheless, “[o]ne of the requirements of substantive due process is the existence of reasonably precise standards to be utilized by [the executive] in the performance of delegated legislative tasks.” State Highway Comm’n v. Vanderkloot, 220 N.W.2d 416, 420 (Mich. 1974).
Blue Cross shows how this principle is applied. The statute at issue in that case established a panel of three actuaries to resolve risk-factor disputes and provided the Insurance Commissioner with the discretion to “approve” or “disapprove” risk factors proposed by health care corporations. 367 N.W.2d at 28. The statute did not provide any parameters that would guide the exercise of this discretion: it did not “detail[ ] the criteria to be employed.” Id. at 29. The court struck this portion of the statute as unconstitutional. Id. See also Oshtemo Charter Twp. v. Kalamazoo Cty. Rd. Comm’n, 841 N.W.2d 135, 146 (Mich. Ct. App. 2013) (suggesting that a statute that “contain[ed] neither factors for the [decisionmaker] to consider … nor guiding standards” was likely unconstitutional).
The situation here is similar. The EPGA—as interpreted by the Governor— contains no standards guiding the Governor’s exercise of her emergency powers, much less reasonably precise ones. The EPGA allows the Governor to proclaim a state of emergency “upon his or her own volition” and to promulgate “orders, rules, and regulations as he or she considers necessary” during the state of emergency. Mich. Comp. Laws § 10.31(1). The Governor has asserted that these provisions permit her to unilaterally regulate every aspect of Michigan’s economy as well as every public interaction by every citizen across the state. The Governor has used these powers to criminalize citizens who travel to their own cottages, attorneys who drive to work, and homeowners who purchase paint. Critically, the Governor asserts that the EPGA
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contains no time limit: it permits the executive to continue the state of emergency for as long as the executive deems necessary. Mich. Comp. Laws § 10.31(2). As interpreted by the Governor, the EPGA permits the Governor to assert one-person rule over the entire State for as long as she believes is necessary to confront an infectious disease that is almost certain to remain a global challenge for years to come.
The absence of any standards to guide the proper subject matter of the executive’s emergency orders is troubling enough on its own, but combined with the absence of any time limit on the executive’s ability to declare an emergency, it is fatal. “[A] complete lack of standards is constitutionally impermissible.” Oshtemo, 841 N.W.2d at 145. If, as the Governor argues, the EPGA reflects an open-ended delegation that leaves the length of the emergency solely within the executive’s discretion, it is an impermissible delegation. COVID-19 is expected to pose challenges to Michigan citizens for years to come. Michigan’s Constitution requires that legislation proceed through the legislative process, cumbersome and compromised though that process may be. It does not permit the executive to rule the State for years to come all by herself, through emergency decree. As the Wisconsin Supreme Court held mere days ago in Wisconsin Legislature v Palm, ___ N.W.2d ___, 2020 WL 2465677 (Wisc. May 13, 2020), the executive’s “emergency powers are premised on the inability to secure legislative approval given the nature of the emergency;” “the Governor cannot rely on emergency powers indefinitely.” Id.
If the EPGA permits the Governor to enact sweeping rules and regulations affecting every aspect of Michigan citizens’ daily lives and permits her to do so for an indefinite period of time—perhaps even for years—then it is an improper delegation of legislative power.
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4. EO 2020-17 and EO 2020-92, as applied to the Plaintiffs, are unreasonable and unnecessary.
Finally, to the extent that the Governor contends that the EPGA limits the Governor’s discretion by requiring that her orders be “reasonable” and “necessary,” see Mich. Comp. Laws § 10.31(1), she is incorrect. Those terms are imprecise aspirations, not standards. They provide no true limiting principle that guides the judiciary’s ability to evaluate the executive’s decisions in the midst of an emergency.
Moreover, neither EO 2020-17 nor EO 2020-92 is reasonable or necessary as applied to the Plaintiffs. The Governor has admitted that the curve has flattened and that it is no longer necessary to prohibit non-essential medical procedures. Hospital systems are operating at such significant rates of under-capacity that they are suffering hideous financial losses, forcing layoffs that are gutting the health care system in the middle of a pandemic. Resumption of “nonessential” medical procedures poses almost no risk of transmission of COVID-19, due to the health care settings in which they are conducted. For the Governor to continue to prohibit these procedures despite the changed facts on the ground is to continue to strangle the health care system that Michigan relies on to assist it through the pandemic. It is neither reasonable nor necessary to do so.
B. EO 2020-17 is unconstitutionally vague. As applied to the Plaintiffs, EO 2020-17 is also unconstitutionally vague. “It is a
basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). A vague regulation violates due process because it both inappropriately chills protected conduct and invites selective enforcement. The “uncertain meaning[ ]” of the regulation causes individuals “to steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.” Baggett
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v. Bullitt, 377 U.S. 360, 372 (1964) (internal quotation marks and citation omitted). When a regulation imposes criminal penalties, vagueness concerns are enhanced. Village of Hoffman Estates v. Flipside, 455 U.S. 489, 498-99 (1982).
To satisfy due process, an executive order must (1) “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” and (2) “provide explicit standards for those who apply them” to prevent “arbitrary and discriminatory enforcement.” Grayned, 408 U.S. at 108. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.” Id. at 108-109. In particular, an executive order that relies on imprecise criteria and offers no process by which to challenge designations is unlikely to survive constitutional scrutiny. Humanitarian Law Project v. U.S. Dep’t of Treasury, 463 F. Supp. 2d 1049, 1066-67 (C.D. Cal. 2006).
As applied to the Plaintiffs, EO 2020-17 is unconstitutionally vague. On pain of criminal penalties, the EO prohibits until after the conclusion of the state of emergency all “nonessential procedures.” (Exhibit 4). The EO defines “non-essential procedures” as any procedure “that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (Id.). This language suggests either (1) that any licensed medical provider can determine that a procedure is “non-essential,” such that a medical provider with a differing opinion who conducts the procedure is subject to criminal penalties, or (2) that any licensed medical provider has discretion to approve any procedure as necessary to preserve the “health” of a patient. In either case, the EO’s language is hopelessly vague and subject to discriminatory application. Without more specific guidance, well-intentioned medical professionals easily could come to differing conclusions on whether a specific procedure
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was necessary to preserve the health or safety of a patient. Criminal liability should not be apportioned on the basis of which medical professional happens to be the one who makes the judgment call.
EO 2020-17 also prohibits “joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient.” (Id.). In fact, the EO provides that healthcare providers “must” not postpone such procedures if postponement would significantly impact the health, safety, and welfare of the patient. This language is not clear, either. There are no standards that guide the determinations of law enforcement officials, health care providers, or individual patients about whether particular procedures are sufficiently urgent or whether they “significantly impact” a patient’s health, safety, and welfare. These amorphous standards are fertile ground for “arbitrary and discriminatory enforcement,” and the threat of criminal penalties is certain to chill medical professionals from providing the full scope of medical care that their patients require. Grayned, 408 U.S. at 108.
Further complicating matters is the Governor’s May 1, 2020 assertion that Michigan no longer needs to hoard medical capacity and that “knee surgeries” should be resumed—even though EO 2020-17 criminalizes the provision of those surgeries. Dr. Khaldun’s May 3, 2020 letter only adds to the confusion. (Exhibit 5). It is not clear what—if any— interpretive authority Dr. Khaldun possesses with respect to EO 2020-17. In any event, Dr. Khaldun’s letter injects several new standards into the mix, suggesting that medical providers should also assess whether patients will experience “a significant decline in health” if their procedures are delayed. Further, according to Dr. Khaldun, EO 2020-17 was specifically written with “flexible” language that gives medical providers “broad discretion” about which procedures
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can be conducted. (Id.). That assessment suggests that the language of the EO is vague enough to allow health care providers to perform whichever procedures that they think are necessary. The concern with the lack of clarity is only heightened by the fact that a violation of EO 2020-17 incurs criminal penalties.
Because it contains no reasonably identifiable standards under which the Plaintiffs can determine whether their activities are criminal and which ensure that enforcement is neither arbitrary nor discriminatory, EO 2020-17 is unconstitutionally vague as applied to the Plaintiffs.
C. EO 2020-17 violates the Plaintiffs’ procedural due process rights. “Procedural due process imposes constraints on governmental decisions which
deprive individuals of liberty or property interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “[D]ue process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Nevertheless, the Supreme Court “consistently has held that some form of hearing is required before an individual is finally deprived of a property interest.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Id.
In emergency situations, post-deprivation process—rather than pre-deprivation process—may satisfy due process. Gilbert v. Homar, 520 U.S. 924, 930 (1997). Nevertheless, “the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (quotation marks and citation omitted). “Such notice must be reasonably calculated, under the circumstances, to apprise the interested parties of the pendency of an action and afford them an opportunity to present their objections.” Morrison v. Wallen, 375 F.3d 468, 475 (6th Cir. 2004).
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To the extent that EO 2020-17 eliminated the Provider Plaintiffs’ ability to engage in any business operations, it has deprived them of a property interest. Bd of Regents of State Colleges v. Roth, 408 U.S. 564, 576-77 (1972) (noting that property interests must be broadly interpreted). It is also undisputed that EO 2020-17 does not provide the Plaintiffs any ability to challenge the determination that their activities are non-essential (and thereby their ability to continue operations).
The Supreme Court of Pennsylvania recently ruled that an executive order shutting down businesses in response to COVID-19 must provide some degree of post-deprivation due process to companies who were ordered to shutter their operations. See Friends of DeVito v. Wolf, ___ A.3d ___, 2020 WL 1847100, at *19-21 (Pa. Apr. 13, 2020). The Court rejected the Governor’s assertion that the plaintiffs “were not entitled to any procedural due process, either before or after the entry of the Executive Order,” reminding instead that, “[t]he imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with fundamental constitutional guarantees which, it is feared, will inhibit governmental action.” Id. at *19-20 (quoting Kennedy v. MendozaMartinez, 372 U.S. 144, 164–65 (1963)). Ultimately, the Pennsylvania court upheld the Pennsylvania executive order because the executive order contained a process whereby businesses had a formal “opportunity to challenge the Governor’s placement of their business on the non-lifesustaining list.” Id. at *20. That is because this process gave businesses the opportunity “to correct mis-categorizations of certain businesses.” Id. at *21.
EO 2020-17, by contrast, provides no process through which to challenge the procedures provided by the Provider Plaintiffs and sought by Mr. Gulick as “non-essential.” Nor
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does it outline any criteria that provide a reasonable guide for such a determination. EO 2020-17, as applied and executed, not only fails to clearly define “non-essential” procedures in a way that allows the Plaintiffs to definitely determine whether their intended activities will subject them to criminal sanction but also fails to provide them with any opportunity to demonstrate that their activities are truly essential. EO 2020-17 therefore violates procedural due process.
D. As applied to the Plaintiffs, EO 2020-17 and EO 2020-92 violate substantive due process. The executive orders violate substantive due process in at least two ways. First,
“[f]reedom of movement”—otherwise known as the “right to travel”—“is a part of the ‘liberty’ of which the citizen cannot be deprived without the due process of law under the Fifth Amendment.” Kent v. Dulles, 357 U.S. 116, 125–26 (1958). The right to travel includes the right to intrastrate travel. Johnson v. City of Cincinnati, 310 F.3d 484, 498 (6th Cir. 2002). Second, due process also protects “against arbitrary intrusion by the government of one’s right to practice a chosen profession.” Fleming v. U.S. Dep't of Agric., 713 F.2d 179, 183 (6th Cir. 1983).
EO 2020-92 specifically prohibits the Plaintiffs’ right to travel, including Mr. Gulick’s right to travel in order to obtain necessary medical care. (Exhibit 18). Enactments that directly curtail the right to travel are subject to strict scrutiny. Cole v. City of Memphis, 839 F.3d 530, 537 (6th Cir. 2016). See also Kent, 357 U.S. at 129 (“Where activities or enjoyment, natural and often necessary to the well-being of an American citizen, such as travel, are involved, we will construe narrowly all delegated powers that curtail or dilute them.”). To satisfy strict scrutiny, the government must prove that the infringement on the right to travel “is narrowly tailored to serve a compelling state interest.” Johnson, 310 F.3d at 502.
The government has made no such attempt here. There has been no demonstration of why the government must prohibit almost all of the Plaintiffs’ intrastate travel—including travel
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that does not require in-person contact or interaction—in order to meet its interests in preventing community transmission of COVID-19. Ordinarily, quarantine orders must be justified by an individualized threat assessment. See, e.g., Reynolds v. McNichols, 488 F.2d 1378, 1382 (10th Cir. 1973); Hickox v. Christie, 205 F. Supp. 3d 579, 592 (D.N.J. 2016). The State cannot justify an interminable mass quarantine without ever conducting any type of individuated analysis. See Jew Ho v. Williamson, 103 F. 10, 20 (C.C.N.D. Cal. 1900). There is no evidence in this case that any of the Plaintiffs is a particular threat vector for COVID-19.
EO 2020-17, in turn, prohibits almost all of the Provider Plaintiffs’ healthcare operations, as well as Mr. Gulick’s knee replacement surgery. The Governor’s stated reason for prohibiting all non-essential medical procedures was to ensure that hospital resources had capacity to cope with an expected surge of COVID-19 patients. But, as the Governor has admitted, that danger no longer exists. In fact, the urgency runs all in the opposite direction. Hospital systems are currently operating significantly below capacity and are sustaining enormous financial losses due to the diminished number of patients.
The Governor has actively encouraged the resumption of knee surgeries, observing that healthcare capacity is no longer an urgent issue. But at the same time, the Governor has failed to rescind EO 2020-17, which makes it a crime to provide the very same knee surgeries that the Governor has encouraged medical providers to resume. Under these circumstances, EO 2020-17 is arbitrary and inconsistent with due process.
E. As applied to the Plaintiffs, EO 2020-17 and EO 2020-92 violate the Dormant Commerce Clause. Because the Commerce Clause reserves to Congress the power to regulate interstate
and foreign commerce, individual states may not unduly regulate commerce. Where State action has an incidental effect on interstate commerce, the relevant test is whether “the burden imposed
32

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on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). In determining whether a burden is excessive, the court should analyze both the local interest involved, as well as whether that interest “could be promoted as well with a lesser impact on interstate activities.” Id. “Interstate commerce” includes commercial activities—like the provision of medical care—that are otherwise local in nature. See Wickard v. Filburn, 317 U.S. 111 (1942). Thus, the question under Pike is whether Michigan’s interest in stopping the spread of COVID-19 could be promoted with a lesser impact on commercial activities generally.
It is undisputed that the burden in this case is significant. Grand Health and the Clinics have been prohibited for months from treating almost 90% of their patients, many of whom are low-income, high-risk, and in pain or otherwise at serious risk that their health could deteriorate due to their lack of access to care.
To justify the enormous burden that the executive orders impose upon the Plaintiffs, the government must show that its “claimed local benefits” are not illusory. See Town of Southold v. Town of East Hampton, 477 F.3d 38, 52 (2d Cir. 2007) (reversing the district court when it had failed to “engage in any meaningful examination of the claimed local benefits” of a law). The government cannot do so here. Michigan’s stated public-health goals are not advanced by prohibiting Grand Health’s and the Clinics’ operations because hospitals have been operating below capacity for months, and relevant modeling projects that COVID-19 cases are on a downward trend. Further, Grand Health and the Clinics can conduct their operations in a manner that complies with the Governor’s stated goals of eliminating unsafe person-to-person contact. As applied to the Plaintiffs, the Executive Orders are therefore an undue burden upon interstate commerce in violation of the Commerce Clause.
33

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II. The remaining factors favor preliminary injunctive relief. A. The Plaintiffs will suffer irreparable harm. The Plaintiffs will suffer immeasurable and irreparable harm if the executive orders
are enforced against them. Irreparable harm is “the kind of injury for which monetary damages are difficult to calculate.” Certified Restoration Dry Cleaining Network, LLC v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007). Irreparable harm exists where a plaintiff’s business is threatened with insolvency or its financial viability is threatened. See Performance Unlimited, Inc. v. Questar Publishers Inc., 52 F.3d 1373, 1382 (6th Cir. 1995). Entity-destroying losses differ from mere damages and constitute irreparable harm. See, e.g., Roso-Lino Beverage Distributors, Inc. v. CocaCola Bottling Co. of New York, Inc., 749 F.2d 124, 125 (2d Circ. 1984).
The Provider Plaintiffs will suffer irreparable injury from loss of customers, goodwill, and future business. The Sixth Circuit has held that a moving party will suffer irreparable harm if it loses customers, goodwill, or future business. See Mich. Bell Telephone Co. v. Engler, 257 F.3d 587, 599 (6th Cir. 2001); Basicomputer Corp. v. Scott, 973 F.2d 507, 512 (6th Cir. Cir. 1992). Mr. Gulick will suffer irreparable harm in the form of the deprivation of his constitutional rights. See Maryville Baptist Church, Inc. v. Beshear, ___ F.3d ___, 2020 WL 2111316, at *4 (6th Cir. May 2, 2020); Overstreet v. Lexington-Fayette Urban Cty. Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).
B. The public interest and the balance of equities favor preliminary injunctive relief. The remaining factors also weigh in favor of a preliminary injunction. First, the
balance of harms favors the Plaintiffs. Grand Health and the Clinics have been unable to treat many of their patients for almost two months, causing massive disruptions to their patients’ health and wellbeing. Many patients whose conditions are not deemed “urgent” or “emergent” are
34

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nevertheless in desperate need of imminent medical care so that their conditions do not spiral dangerously out of control.
As Governor Whitmer has admitted, elective medical procedures no longer need to be prohibited in order to preserve healthcare capacity for COVID-19 patients. Hospitals and other medical facilities in Michigan are at record low capacities, have lost millions of dollars in revenue over the last several weeks, and have been forced to lay off thousands of nurses and other medical personnel due to the lack of patients served by their facilities. These layoffs and enormous financial losses are impacting the healthcare industry’s ability to effectively respond to the pandemic itself. Permitting elective medical procedures to resume does not pose a significant risk of exacerbating the transmission of COVID-19, because the healthcare industry is well-qualified to take steps to ensure sanitation and appropriate protocol with respect to patient interaction. Grand Health and the Clinics have described in detail how they will do so.
These concerns dovetail with the general public interest. “[I]t is always in the public interest to prevent violation of a party’s constitutional rights.” G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). The wider public interest also favors a limited injunction in this case, due to the significant public health benefits of the work performed by Grand Health and the Clinics. Thus, the remaining factors also dictate that an injunction is appropriate in this case.
CONCLUSION A preliminary injunction should be entered, enjoining the Defendants from applying EO 2020-17, EO 2020-92, and the HHS order to preclude the Plaintiffs’ activities.
35

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Dated: May 18, 2020

MILLER JOHNSON Attorneys for Plaintiff
By: /s/ James R. Peterson James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Ave SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700
Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org

36

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Certificate of Compliance 1. This brief complies with the type-volume limitation of W.D. Mich. LCivR 7.3(b)(i) because this brief contains 10,593 words, excluding the parts of the brief exempted by W.D. Mich. LCivR 7.3(b)(i). 2. This brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2010 for Windows in 12-point Century Schoolbook font.

Dated: May 18, 2020

By: /s/ James R. Peterson James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Ave SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700
Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org

37
MJ_DMS 31822803v2 47994-1

Case 1:20-cv-00414-PLM-PJG ECF No. 10-1 filed 05/18/20 PageID.278 Page 1 of 3
EXHIBIT 1

Case 1:20-cv-00414-PLM-PJG ECF No. 10-1 filed 05/18/20 PageID.279 Page 2 of 3

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

CARLIN GILCHRIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-4
Declaration of State of Emergency
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 that had not been previously identified in humans and can easily spread from person to person.
COVID-19 has been identified as the cause of an outbreak of respiratory illness first detected in Wuhan City in the Hubei Province of China. Person-to-person spread of the virus has occurred in the United States, with some of those occurring in people with no travel history and no known source of exposure. On January 31, 2020, the United States Department of Health and Human Services Secretary Alex Azar declared a public health emergency for COVID-19, and affected state and local governments have also declared states of emergency.
The State of Michigan has been taking proactive steps to prevent and prepare for the spread of this disease. On February 3, 2020, the Michigan Department of Health and Human Services (MDHHS) activated the Community Health Emergency Coordination Center, and has been working diligently with local health departments, health systems, and medical providers throughout Michigan to make sure appropriate screening and preparations for COVID-19 are being made. On February 28, 2020, I activated the State Emergency Operations Center to maximize coordination with state, local and federal agencies, as well as private partners, and to help prevent the spread of the disease. On March 3, 2020, I created four task forces comprising key state government agencies to coordinate the state's response and work closely with the appropriate community and nongovernmental stakeholders to combat the spread of COVID-19 and assess the impact it may have on Michiganders' day-to-day lives. And throughout this time, the State has been working with schools, businesses, medical providers, local health departments, and residents to make sure they have the information they need to prepare for potential cases.
On March 10, 2020, MDHHS identified the first two presumptive -positive cases of COVID19 in Michigan.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
SEMNARAT1E1E'2N0ROAmLL9I:N3G6
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
Printed by members of:

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The Emergency Management Act, 1976 PA 390, as amended, MCL 30.403(4), provides that "Who governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists."
The Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31(1), provides that "[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, . . . the governor may proclaim a state of emergency and designate the area involved."
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency is declared across the State of Michigan.
2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist.
3. The state of emergency is terminated when emergency conditions no longer exist and appropriate programs have been implemented to recover from any effects of the emergency conditions, consistent with the legal authorities upon which this declaration is based and any limits on duration imposed by those authorities.
Given under my hand and the Great Seal of the State of Michigan.

Date: March 10, 2020 SECRETARY OF SENATE
2020 MAR 11 AHS:02

-GRETCHEN WHITMER GOVERNOR
By the Governor:
ARY OF STATE
FILED WITH SECRETARY OF STA rE
ON a 110 12-'2° AT 13C)9rY\
2

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EXHIBIT 2

Case 1:20-cv-00414-PLM-PJG ECF No. 10-2 filed 05/18/20 PageID.282 Page 2 of 4
、

難

GRETCHEN WHITMER GOVERNOR

町 ATE A OF MIT CHIGE AN
OFFICE OF THE GOVERNOR
LANSING

GARLIN GILCHRIST II
LT .GOVERNOR

SECRElRRy ロF SE競倉TETE 2O2り nPn 見 lFP Hl 叱 595 F9 H

EXECUTIVE ORDER

No .2020-33

Expanded emergency and disaster declaration

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 new 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 has spread across Michigan .To date ,the state has 9 ,334 confirmed cases of COVID ・11.9 and 337 people have died of the disease .Many thousands more are infected but have not been tested .Hospitals in Oakland ,Macomb , Wayne ,and Washtenaw counties are reporting that they are full or nearly full to capacity . Ventilators and personal protective equipment are in short supply and high demand. Michigan needs more medical personnel than are currently available to care for COVID ・1919 patients .Dormitories and a convention center are being converted to temporary field hospitals .
The best way to slow the spread of COVID -19 is for people to stay home and keep their distance from others .To that end,and pursuant to the recommendations of public health experts,I have restricted access to places of public accommodation and school buildings in Executive Orders 2020 -20 and 2020 -1 1 ,respectively .And in Executive Order 2020 -21 ,I have limited gatherings and travel,and have required all workers who are not necessary to sustain or protect life to remain at home .
Social distancing,though necessary to combat COVID -19 ,has harsh economic consequences .Almost overnight ,businesses and government agencies have had to dramatically adjust how they work .Where working from home is not possible ,businesses have closed or significantly restricted their normal operations .Michiganclers are losing their jobs in record numbers :over the past two weeks alone ,nearly a half-million of them submitted claims for unemployment insurance .That is more claims than were filed in the entirety of the prior calendar year

GEORGE W.ROMNEY BUILDING ・ 111 SOUTH CAPITOL AVENUE ・LANSING,MICHIGAN 48909 www .michigan .gov
PRINTED IN-HOUSE

Case 1:20-cv-00414-PLM-PJG ECF No. 10-2 filed 05/18/20 PageID.283 Page 3 of 4
The economic damage-already severe-will compound with time .On March 19 ,2020, economists at the University of Michigan forecasted that as many as 1 in 10 Michiganders could be unemployed by the fall and that economic sectors that feature substantial social interaction could contract by as much as 50%. As a result ,many families in Michigan will struggle to pay their bills or even put food on the table .
My administration has already taken aggressive measures to mitigate the economic harms of this pandemic .In Executive Order 2020 -18 ,we placed strict rules on businesses to prevent price gouging .In Executive Order 2020-19 ,we put a temporary hold on evictions for families that cannot make their rent .And in Executive Order 2020 -24 ,we expanded eligibility for unemployment benefits .
Nonetheless ,the COVID -19 pandemic has disrupted and will continue to disrupt our economy ,our homes ,and our educational ,civic,social ,and religious institutions ,School closures have made it harder to educate our children and have increased strain on parents, many of whom continue to work from home .The closure of museums and theaters will limit people 's ability to enrich themselves through the arts .And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times .
The health ,economic,and social harms of the COVID -19 pandemic are widespread and severe ,and they demand we do more .
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor .
The Emergency Management Act,1976 PA 390 ,as amended ,MCL 30 .403 (3)-(4),provides that "[t]he governor shall,by executive order or proclamation,declare a state of emergency" and/or a "state of disaster" upon finding that an emergency and/or disaster has occurred or is threatening to occur .
The Emergency Powers of the Governor Act of 1945,1945 PA 302 ,as amended,MCL 10 .3 1 (1),provides that "[d]uring times of great public crisis ,disaster,rioting ,catastrophe , or similar public emergency within the state ...the governor may proclaim a state of emergency and designate the area involved ."
Acting under the Michigan Constitution of 1963 and Michigan law ,I order the following :
1 . A state of emergency and a state of disaster are both declared across the State of Michigan .
2 . The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist
3 . The state of emergency and the state of disaster will terminate when emergency and disaster conditions no longer exist and appropriate programs have been implemented to recover from any effects of the statewide emergency and disaster,
2

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consistent with the legal authorities upon which this declaration is based and any limits imposed by those authorities ,including section 3 of the Emergency Management Act,1976 PA 390 ,as amended,MCL 30 .403 . 4 . Executive Order 2020・4 is rescinded and replaced .All previous orders that rested on Executive Order 2020 -4 now rest on this order. Given under my hand and the Great Seal of the State of Michigan.

Date : April 1 ,2020 Time : 3 :30pm

GRETCHEN WHITMER GOVERNOR
By the Governor :
SECRETARY OF STATE

3

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EXHIBIT 3

Case 1:20-cv-00414-PLM-PJG ECF No. 10-3 filed 05/18/20 PageID.286 Page 2 of 22 Exhibit 3

Governor Whitmer’s Executive Orders Since March 10, 20201

Executive Order

Provisions

Executive Order 2020-04—Declaration of State  Declares a state of emergency “across the state of Michigan.” of Emergency

Executive Order 2020-05—Temporary  Prohibits all assemblages of 250 people or more, excluding industrial work, prohibition on large assemblies and school mass transit, and the purchase of groceries.

closures (Rescinded)

 Orders the closure of all secondary and elementary schools.

Executive Order 2020-06—Temporary  Prohibits visitors from entering healthcare and juvenile justice facilities who are

restrictions on entry into health care and juvenile not necessary for the provision of medical care.

justice facilities (Rescinded)

 Orders that “facilities must perform a health evaluation of all individuals that

are not under the care of the facility each time the individual seeks to enter the

facility, and must deny entry to those individuals who do not meet the evaluation

criteria.”

Executive Order 2020-07—Temporary  Rescinds EO 2020-06.

restrictions on entry into healthcare and juvenile  Orders that healthcare and juvenile justice facilities prohibit any visitors that:

justice facilities (Rescinded)

“are not necessary for the provision of medical care, the support of activities of

daily living, or the exercise of power of attorney or court-appointed

guardianship for an individual under the facility’s care; are not a parent, foster

parent, or guardian of an individual who is 21 years of age or under and who is

under the facility’s care; are not visiting an individual under the facility’s care

that is in serious or critical condition or in hospice care; and are not visiting

under exigent circumstances or for the purpose of performing official

governmental functions.”

Executive Order 2020-08—Enhanced  Prohibits purchasing products from retailer and reselling the products for

restrictions on price gouging (Rescinded)

excessive prices.

 Orders that a person must not offer for sale or sell any product in this state at a

price that is more than 20% higher than what the person offered or charged for

that product as of March 9, 2020, unless the person can demonstrate that the

1 This chart was last updated as of 9 a.m. Eastern Time on May 18, 2020. 1

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price increase was attributable to an increase in the cost of bringing the product to market.

Executive Order 2020-09—Temporary  Declares it was reasonable and necessary to restrict the people of Michigan from

restriction on uses of places of public places of public accommodation.

accommodation (Rescinded)

 Orders the closure of bars, restaurants, coffeehouses, and other places of public

accommodation offering food or beverage for on-site consumption.

 Orders the closure of theaters, gyms, casinos, and other places of amusement

and recreation.

Executive Order 2020-10—Temporary  Suspends “strict compliance with subdivision (a) of subsection (1) of section 29 expansions in unemployment eligibility and cost of the Michigan Employment Security Act, 1936 PA 1, as amended

sharing (Rescinded)

(“Employment Security Act”), MCL 421.29(1)(a),” subject to certain

conditions.

 Suspends “strict compliance with subsection (3) of section 48 of the

Employment Security Act, MCL 421.48(3),” subject to certain conditions.

 Suspends “strict compliance with subsections (4) through (7) of Rule 421.210

is Suspends,” subject to certain conditions.

 Orders that “strict compliance with subdivision (7) of subsection (c) of section

27 of the Employment Security Act, MCL 429.27(c)(7),” subject to certain

conditions.

 Orders that “strict compliance with subdivision (b) of subsection (1) of section

28c of the Employment Security Act, MCL 429.28c(1)(b),” subject to certain

conditions.

 Orders that “an employer or employing unit must not be charged for

unemployment benefits if their employees become unemployed because of an

executive order requiring them to close or limit operations.”

Executive Order 2020-11—temporary  Rescinds EO 2020-05.

prohibition on large assemblies and events  Prohibits all assemblages of 50 people or more, excluding healthcare facilities,

(Rescinded)

workplaces not open to the public, mass transit, the purchase of groceries, and

agricultural or construction work.

 Orders all elementary school buildings and secondary school buildings in the

state to close to students for educational purposes through April 5, 2020.

2

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Executive Order 2020-12—Enhanced support  Suspends all state and local seasonal load restrictions for deliveries that meet

for deliveries (Rescinded)

immediate needs for certain medical and sanitation supplies, food for emergency

store restocking, and other COVID-19 necessities.

 Orders all state and local road agencies to exercise their authority on an

expedited basis to issue permits that allow non-seasonal load restrictions to be

exceeded.

 Suspends all state and local restrictions on the noise and timing of loading and

deliveries for loading and deliveries that meet immediate needs for certain

medical and sanitation supplies, food for emergency store restocking, and other

COVID-19 necessities.

Executive Order 2020-13—Temporary  Orders that “the Department of Health and Human Services (“DHHS”) may enhancements to operational capacity issue an emergency certificate of need to an applicant and defer strict

and efficiency of health care facilities compliance with the procedural requirements of section 22235 of the Public

(Rescinded)

Health Code.”

 Orders that “the Department of Licensing and Regulatory Affairs (“LARA”)

may grant a waiver under section 21564 of the Public Health Code, 1978 PA

368, as amended, MCL 333.21564, to any licensed hospital in this state.”

 Orders that “LARA may issue a temporary registration as a certified nurse aide

to an applicant, regardless of whether the applicant demonstrates to LARA that

they have successfully completed the examination requirements of sections

21911 and 21913 of the Public Health Code.”

 Orders that “LARA may renew a license to practice under Part 170, 172, 175,

177, or 187 of the Public Health Code, 1978 PA 368, as amended, regardless of

whether the licensee has satisfied the continuing education requirement

applicable to their license.”

 Orders that “LARA may recognize hours worked responding to the COVID-19

emergency as hours toward continuing education courses or programs required

for licensure.”

 Orders that “LARA may allow a non-nursing assistant such as an activity

coordinator, social worker, or volunteer to help feed or transport a patient or

resident in a manner consistent with the patient’s or resident’s care plan.”

3

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Executive Order 2020-14—Temporary  Suspends “strict compliance with subsection (3) of section 78g of the General extension of deadline to redeem property for Property Tax Act (“GPTA”), 1893 PA 206, as amended, MCL 211.78g(3),” and

nonpayment of delinquent property taxes

extends “the deadline by which property forfeited to a county treasurer must be

redeemed … from March 31, 2020 until the later of (a) May 29, 2020, or (b) 30

days after the termination of the state of emergency under section 3 of Executive

Order 2020-4.”

Executive Order 2020-15—Authorization of  Orders that “to the extent that the Open Meetings Act, 1976 PA 267, as remote participation in public meetings and amended, MCL 15.261 to 15.272 (“OMA”) requires that a meeting of a public

hearings and temporary relief from monthly body be held in a physical place available to the general public or requires the

meeting requirements for school boards physical presence of one or more members of a public body, strict compliance

(Rescinded)

with section 3 of the OMA, MCL 15.263, is temporarily suspended in order to

alleviate any such physical-place or physical-presence requirements,” subject to

certain conditions.

 Orders that “strict compliance with subsection 6 of section 11a, subsection 7 of

section 384, and subsection 1 of section 418a of the Revised School Code, 1976

PA 451, as amended, MCL 380.11a(6), MCL 380.384(7), and MCL

380.418a(1), is temporarily suspended” subject to certain conditions.

Executive Order 2020-16—Expanding child  Suspends “strict compliance with section 7a of the Child Care Organizations

care during COVID-19 (Rescinded)

Act, 1973 PA 116, as amended, MCL 722.117a” and allows provisional licenses

to be issued in spite of “deficiencies present in the child care organization,”

subject to certain conditions.

 Suspends “strict compliance with subsection (2) of section 5m of the Child Care

Organizations Act, 1973 PA 116, as amended, MCL 722.115m(2)” and allows

the establishment of certain child care centers “without a license from LARA,”

subject to certain conditions.

Executive Order 2020-17—Temporary  Orders that “all hospitals, freestanding surgical outpatient facilities, and dental

restrictions on non-essential medical and dental facilities, and all state-operated outpatient facilities … must implement a plan

procedures

to temporarily postpone, until the termination of the state of emergency under

section 3 of Executive Order 2020-4, all non-essential procedures.”

Executive Order 2020-18—Restrictions on price  Rescinds EO 2020-08.

gouging (Rescinded)

 Imposes substantially similar restrictions as EO 20-08 with minor amendments.

4

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Executive Order 2020-19—Temporary  Orders that “no person shall remove or exclude from leased residential premises prohibition against entry to premises for the or residential premises held under a forfeited executory contract a tenant, a

purpose of removing or excluding a tenant or vendee of a forfeited executory contract, or a person holding under a tenant or

mobile home owner from their home vendee, except when the tenant, vendee, or person holding under them poses a

(Rescinded)

substantial risk to another person or an imminent and severe risk to property.”

 Orders that “no person may enter residential property in order to remove or

exclude from the premises a tenant, a vendee of a forfeited executory contract,

a person holding under a tenant or vendee, or the personal property of a tenant,

vendee, or person holding under them, including pursuant to a writ authorizing

restoration of a plaintiff to full, peaceful possession of premises under section

5744 of the RJA, MCL 600.5744, except when the tenant, vendee, or person

holding under them poses a substantial risk to another person or an imminent

and severe risk to property.”

 Orders that “a sheriff, under-sheriff or constable, deputy, or other officer must

not serve process requiring forfeiture of leased residential premises or

residential premises held under a forfeited executory contract.”

 Orders that “no person may deny a mobile home owner access to their mobile

home, except when the mobile home owner’s tenancy has been terminated

because the mobile home owner poses a substantial risk to another person or an

imminent and severe risk to property.”

Executive Order 2020-20—Temporary  Rescinds EO 2020-09.

restrictions on the use of places of public  Reinstates and modifies the restrictions in EO 2020-09 “by clarifying their

accommodation (Rescinded)

application to facilities offering non-essential personal care services.”

Executive Order 2020-21—Temporary  Declares that is “reasonable and necessary to direct residents to remain at home requirement to suspend activities not necessary or in their place of residence to the maximum extent feasible”

to sustain and protect life (Rescinded)

 Orders that “[n]o 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” subject to certain conditions and exceptions.

Executive Order 2020-22—Extension of county  Suspends strict compliance with rules and procedures under section 822(1) of canvass deadlines for the March 10, 2020 the Michigan Election Law, 1954 PA 116, as amended, MCL 168.822(1) & (2)

Presidential Primary Election

and 842(1) of the Michigan Election Law, MCL 168.842(1) and extends the

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deadlines for a board of county canvassers to complete the canvass of the election held on March 10, 2020.

Executive Order 2020-23—Enhanced  Orders that “[h]earing officers or arbitrators may conduct Michigan

authorization of remote means for carrying out Employment Relations Commission … hearings by electronic means, including

state administrative procedures (Rescinded)

video conferencing.”

 Suspends “strict compliance with the procedural requirements of 1939 PA 176,

as amended, MCL 423.1 et seq. (employment relations commission), 1947 PA

336, as amended, MCL 423.201 et seq. (public employment relations), and 1969

PA 312, as amended, MCL 423.231 et seq. (compulsory arbitration of labor

disputes in police and fire departments),” subject to certain conditions.

 Orders that the “Unemployment Insurance Agency may permit hearings to be

held by telephone or electronic means, including video conferencing.”

 Orders that documents, notice, and service of process for several agencies may

be filed electronically.

 Orders that state agencies may accept and rely upon electronic signatures.

Executive Order 2020-24—Temporary  Rescinds EO 2020-10.

expansions in unemployment eligibility and  Reaffirms the measures in EO 2020-10 and clarifies and strengthens the

cost-sharing (Rescinded)

expansion of eligibility for unemployment benefits and cost-sharing with

employers.

Executive Order 2020-25—Temporary  Declares that the public requires increased access to therapeutic enhancements to operational capacity, pharmaceuticals. Meeting this critical need requires swiftly but safely expanding

flexibility, and efficiency of pharmacies access to pharmacy services.

(Rescinded)

 Orders that pharmacists “may dispense emergency refills of up to a sixty (60)

day supply of any non-controlled maintenance medication for residents of any

county in this state if, in the pharmacist’s professional judgment, failure to refill

the prescription might interrupt the patient’s ongoing care and have a significant

adverse effect on the patient’s well-being” subject to certain conditions

 Reduces licensing and supervisory requirements for pharmacists.

 Suspends strict compliance with any statute, rule, or regulation that interferes

with the order.

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Executive Order 2020-26—Extension of April  Orders that strict compliance with rules and procedures of the Income Tax Act

2020 Michigan income tax filing deadlines

of 1967 and the City Income Tax Act of 1964 as they relate to the filing of tax

returns by certain deadlines is suspended and the deadlines for filing tax returns

are extended.

Executive Order 2020-27—Conducting  Suspends strict compliance with the rules and procedures under chapters 28 and elections on May 5, 2020 using absent voter 39 of the Michigan Election Law, 1954 PA 116, and further orders that elections

ballots

“must be conducted to the greatest extent possible by absent voter ballots issued

and submitted without in-person interaction,” subject to certain conditions.

Executive Order 2020-28—Restoring water  Declares that it is “reasonable and necessary to require public water supplies to

service to occupied residences during the report on the status of water service within their respective service areas.”

COVID-19 pandemic

 Orders that “public water supply must restore water service to any occupied

residence where water service has been shut off due to non-payment, so long as

the public water supply does not have reason to believe that reconnection would

create a risk to public health.”

Executive Order 2020-29—Temporary  Orders that “the Michigan Department of Corrections (the “Department”) must COVID-19 protocols for entry into Michigan continue to implement risk reduction protocols to address COVID-19 (“risk

Department of Corrections facilities and reduction protocols”), which the Department has already developed and

transfers to and from Department custody; implemented at the facilities it operates.”

temporary recommended COVID-19 protocols  Orders that “strict compliance with the capacity and procedural requirements

and enhanced early-release authorization for regarding county jail overcrowding states of emergency in the County Jail

county jails, local lockups, and juvenile Overcrowding Act (“CJOA”), 1982 PA 325, MCL 801.51 et seq., is temporarily

detention centers (Rescinded)

suspended. While this order is in effect, all actions that would be authorized

under the CJOA in the event of a declaration of a county jail overcrowding state

of emergency are authorized.”

Executive Order 2020-30—Temporary relief  Orders that “any and all provisions in Article 15 of the Public Health Code, 1978 from certain restrictions and requirements PA 368, as amended, MCL 333.16101 et seq., relating to scope of practice,

governing the provision of medical services supervision, and delegation, are temporarily suspended” for the purpose of

(Rescinded)

ensuring medical personnel, medical students, and volunteers can provide

critical care in response to the increased demand for medical services related to

COVID-19.

 Orders that “[n]otwithstanding any law, regulation, or executive order to the

contrary, any drug manufacturer or wholesale distributor of prescription drugs

licensed in another state whose license is in good standing is temporarily

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authorized to distribute and ship controlled substances into Michigan to a

hospital or to a licensed manufacturer or wholesale distributor under MCL

333.17748.”

Executive Order 2020-31—Temporary relief  Declares that it is necessary to “temporarily exten[d] the period of time during

from standard vapor pressure restrictions on which the winter-blend gasoline can be sold [to] enable distributors to safely

gasoline sales

shift to a lower volatility gasoline supply with as little in-person work and travel

as possible, while also ensuring that this state maintains a reliable supply of

gasoline adequate to meet its critical needs during this emergency.”

 Orders that “Rule 4(g) of Regulation No. 564, promulgated by the Laboratory Division of the Department of Agriculture and Rural Development, 1987

AACS, as amended, R 285.564.4(g) of the Michigan Administrative Code, is

temporarily suspended,” subject to certain conditions.

Executive Order 2020-32—Temporary  Orders that “while the declared emergency is in effect, all veterinary facilities

restrictions on non-essential veterinary services must implement a plan to temporarily postpone all in-person non-essential

(Rescinded)

veterinary services until the declared emergency has ended.”

 Orders that “all veterinary services, essential and non-essential, must be performed by telemedicine to the fullest extent possible while the declared

emergency is in effect. If a non-essential service cannot be performed by

telemedicine, a plan must require that it be postponed. If an essential service

cannot be performed by telemedicine, a plan need not postpone it and may allow

it to be performed in person.”

Executive Order 2020-33—Expanded  Orders that a “state of emergency and a state of disaster are both declared across emergency and disaster declaration (Rescinded) the state of Michigan.”

 Orders that EO 2020-04 is replaced by EO 2020-33, and all previous Executive Orders relying on EO 2020-4 will now rely on EO 2020-33.

Executive Order 2020-34—Temporary  Replaces EO 2020-32

restrictions on veterinary services

 Adjusts and clarifies the scope of EO 2020-32.

Executive Order 2020-35—Provision of K-12  Orders the suspension of in-person K-12 instruction for the remainder of the

education during the remainder of the 2019-2020 2019-2020 school year.

school year (Rescinded)

 Orders Department of Education to adopt Continuity of Learning and COVID-

19 Response Plans.

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-3 filed 05/18/20 PageID.294 Page 10 of 22 Exhibit 3

 Orders that “strict compliance with rules and procedures” under sections of the

State School Aid Act, MCL 388.1701 et seq., and the Michigan School Code

are temporarily suspended subject to certain conditions.

Executive Order 2020-36—Protecting workers  Declares that “it is the public policy of this state that an employer shall not

who stay home, stay safe when they or their close discharge, discipline, or otherwise retaliate against an employee for staying

contacts are sick

home when he or she is at particular risk of infecting others with COVID-19.”

 Issues numerous rules governing the behavior of employers and employees,

ostensibly to effectuate the purpose of EO 2020-36.

Executive Order 2020-37—Temporary  Rescinds EO 2020-07. restrictions on entry into health care facilities,  Clarifies the restrictions in EO 2020-07 and extends their duration. residential care facilities, congregate care

facilities, and juvenile justice facilities

(Rescinded)

Executive Order 2020-38—Temporary  Orders that “[s]trict compliance with the required response periods set forth extensions of certain FOIA deadlines to facilitate under sections 5(2), 10(2), and 10a(2) of the Freedom of Information Act

COVID-19 emergency response efforts

(“FOIA”), 1976 PA 442, as amended, MCL 15.235(2), 15.240(2), and

15.240a(2), is temporarily suspended.”

 Orders that “[s]trict compliance with the requirements relating to in-person

efforts in connection with a public records request set forth under sections 3 and

4 of the FOIA, MCL 15.233 and 15.234, is temporarily suspended.”

Executive Order 2020-39—Temporary relief  Orders that “[s]trict compliance with the annual-inspection requirements for life from certain restrictions and requirements support vehicles and life support agencies under section 20910(1)(e)(iii) of the

governing the provision of emergency medical Public Health Code, 1978 PA 368, as amended, MCL 333.20910(1)(e)(iii), is

services

temporarily suspended” subject to certain conditions.

 Orders that “strict compliance with the ambulance-staffing requirements under

section 20921(3) of the Public Health Code, MCL 333.20921(3), is temporarily

suspended” subject to certain conditions.

 Suspends strict compliance with several other Michigan laws, all related to the

provision of emergency services.

Executive Order 2020-40—Temporary relief  Orders that “[t]he requirements administered by the Department of Treasury from certain credentialing requirements for (“Department”) concerning licensure of motor carriers under section 5 of the

motor carriers transporting essential supplies, Motor Carrier Fuel Tax Act (“MCFTA”), 1980 PA 119, as amended, MCL

equipment, and persons (Rescinded)

207.215, are temporarily suspended and must not be enforced.”

9

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 Orders that “[t]he requirements administered by the Department concerning

decals for qualified commercial vehicles under section 5 of the MCFTA, MCL

207.215, are temporarily suspended” subject to certain conditions.

 Orders that “[t]he requirements administered by the Department concerning trip

permits for motor carriers under section 7 of the MCFTA, MCL 207.217, are

temporarily suspended and must not be enforced” subject to certain conditions.

 Orders that “[a]ny other requirements administered by the Department

concerning the credentialing of motor carriers under the International Fuel Tax

Agreement (“IFTA”) are temporarily suspended and must not be enforced”

subject to certain conditions.

Executive Order 2020-41—Encouraging the use  Orders that “[s]trict compliance with rules and procedures under the Uniform of electronic signatures and remote notarization, Electronic Transactions Act (“UETA”), 2000 PA 305, as amended, MCL

witnessing, and visitation during the COVID-19 450.831 et seq., and the Uniform Real Property Electronic Recording Act

pandemic (Rescinded)

(“URPERA”), 2010 PA 123, as amended, MCL 565.841 et seq., is temporarily

suspended to the extent necessary to permit the use of an electronic signature

for a transaction whenever a signature is required under Michigan law, unless

the law specifically mandates a physical signature.”

 Orders that “[s]trict compliance the Michigan Law on Notarial Acts, 2003 PA

238, as amended, MCL 55.261 et seq., is temporarily suspended, to the extent it

requires a notary to be in the physical presence of an individual seeking the

notary’s services or of any required witnesses.”

 Orders that “[a]ny requirement under Michigan law that an in-person witness

attest to or acknowledge an instrument, document, or deed may be satisfied by

the use of two-way real-time audiovisual technology, provided that” certain

conditions are met.

 Orders that the requirements in several additional Michigan laws mandating the

physical presence of a person can be satisfied through the use of two-way video

technology, provided that certain conditions are met.

Executive Order 2020-42—Temporary  Rescinds EO 2020-21.
requirement to suspend activities that are not  Prohibits “in-person work that is not necessary to sustain or protect life.” necessary to sustain or protect life (Rescinded)  Affirms and reinstates various rules in EO 2020-21.

 Prohibits travel between two residences.

10

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 Orders stores of more than 50,000 square feet to close areas dedicated to carpet or flooring, furniture, garden centers and plant nurseries, and paint.

 Implements additional measures designed to limit business operations and personal travel.

Executive Order 2020-43—Temporary  Rescinds and replaces EO 2020-20. restrictions on the use of places of public  Extends duration of restrictions found in 2020-20. accommodation (Rescinded)

Executive Order 2020-44—Enhanced support  Rescinds EO 2020-12.

for deliveries (Rescinded)

 Extends “the duration of [relief from load and delivery restrictions on motor

carriers and drivers engaged in the transport of essential supplies, equipment,

and persons] because it remains reasonable and necessary to suppress the spread

of COVID-19 and protect the public health and safety of this state and its

residents.”

Executive Order 2020-45—Enhanced  Rescinds EO 2020-23.

authorization of remote means for carrying out  Extends “the duration of [the] relief [set forth in EO 2020-23], because it

state administrative procedures (Rescinded)

remains reasonable and necessary to suppress the spread of COVID-19 and

protect the public health and safety of this state and its residents.”

Executive Order 2020-46—Mitigating the  Authorizes the Michigan Liquor Control Commission (“Commission”) “to offer

economic harms of the COVID-19 pandemic to a licensee a cash buyback of any spirits a licensee orders from the

through the creation of a spirits buyback Commission and received and accepted from an Authorized Distribution Agent

program for restaurants and bars throughout the before March 16, 2020. When a licensee opts into this buyback program, the

state

Commission must advance to the licensee 100% of the purchase price of those

spirits that are in the licensee’s inventory.”

Executive Order 2020-47—Temporary  Orders that “[i]ndividuals must, to the best of their ability, complete a vehicle

extension of the validity of certain driver’s registration or license renewal online at www.michigan.gov/sos/ during the

licenses, state identification cards, and vehicle Declares states of emergency and disaster.”

registrations (Rescinded)

 Orders that certain provisions of the Motor Vehicle Code are temporarily

suspended for purposes of the order if certain criteria are met.

Executive order 2020-48—Temporary  Rescinds EO 2020-15.

authorization of remote participation in public  Orders that “[t]o the extent that the Open Meetings Act (“OMA”), 1976 PA 267,

meetings and hearings and temporary relief from as amended, MCL 15.261 to 15.272, requires that a meeting of a public body be

monthly meeting requirements for school boards held in a physical place available to the general public or requires the physical

(Rescinded)

presence of one or more members of a public body, strict compliance with

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section 3 of the OMA, MCL 15.263, is temporarily suspended in order to

alleviate any such physical-place or physical-presence requirements.”

 Orders that “strict with subsection 6 of section 11a, subsection 7 of section 384,

and subsection 1 of section 418a of the Revised School Code, 1976 PA 451, as

amended, MCL 380.11a(6), MCL 380.384(7), and MCL 380.418a(1), is

temporarily suspended so as not to require school district boards to hold

meetings at least once each month.”

Executive Order 2020-49—Temporary  Rescinds EO 2020-13.

enhancements to operational capacity and  Orders that the Department of Health and Human Services and the Department

efficiency of health care facilities (Rescinded)

of Licensing and Regulatory Affairs may issue various certificates, licenses,

and waivers to healthcare workers and facilities without requiring strict

compliance with the Public Health Code in order to “ensure that there is an

adequate supply of health care providers and facilities.”

Executive Order 2020-50—Enhanced  Orders that, “notwithstanding any statute, rule, regulation, or policy to the protections for residents and staff of long-term contrary,” long-term care facilities may not, among other things, evict or

care facilities during the COVID-19 pandemic discharge residents for nonpayment, or prohibit admission based on COVID-

(Rescinded)

19 testing requirements.

 Orders that long-term care facilities must take steps to limit the transmission of

COVID-19, including canceling group activities and communal dining,

ensuring adequate disinfection and cleaning protocols, and using best efforts to

provide appropriate PPE.

 Orders that long-term care facilities must take specific steps when residents are

infected with COVID-19, such as filing a report to a local health department

within 24 hours and transferring unstable patients to a hospital.

 Orders that “[t]o the extent necessary to effectuate this terms of this order,

strict compliance with any statute, rule, regulation, or policy pertaining to bed

hold requirements or procedures, or to pre-transfer or pre-discharge

requirements or procedures, is temporarily Suspends” subject to certain

conditions.”

Executive Order 2020-51—Expanding child  Rescinds EO 2020-16.

care access during the COVID-19 pandemic  Clarifies and expands the scope of EO 2020-16, and continues to allow the

(Rescinded)

operation of childcare centers without a license from LARA.

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Executive Order 2020-52—Temporary  Orders that “[n]otwithstanding any statute, rule, or regulation to the contrary, all

extension of certain pesticide applicator three-year certificates for commercial applicators, private applicators, and

certificates

registered applicators issued pursuant to Part 83 of the Natural Resources and

Environmental Protection Act, 1994 PA 451, as amended, MCL 324.8301 et

seq., that were set to expire on December 31, 2019, must be deemed unexpired

and not to expire until 60 days after the end of the Declares states of emergency

and disaster.”

Executive Order 2020-53—Enhanced  Rescinds EO 2020-18.

restrictions on price gouging (Rescinded)

 “[S]trengthens … and extends” the original restrictions on price gouging in EO

2020-18.

Executive Order 2020-54—Temporary  Rescinds EO 2020-19. prohibition against entry to premises for the  Clarifies and extends the restrictions in EO 2020-19. purpose of removing or excluding a tenant or
mobile home owner from their home
(Rescinded)

Executive Order 2020-56—Temporary  Rescinds EO 2020-25. enhancements to operational capacity,  Clarifies and extends the duration of the provisions in EO 2020-25. flexibility, and efficiency of pharmacies

Executive Order 2020-57—Temporary  Rescinds EO 2020-24.

expansions in unemployment eligibility and  Orders that “[s]trict compliance with subdivision (a) of subsection (1) of section

cost-sharing (Rescinded)

29 of the Michigan Employment Security Act, 1936 (Ex Sess) PA 1, as amended

(“Employment Security Act”), MCL 421.29(1)(a), is temporarily suspended,”

subject certain conditions.

 Orders that “[s]trict compliance with subsection (3) of section 48 of the Employment Security Act, MCL 421.48(3), is temporarily suspended to allow an individual who is on a leave of absence for any” identified reason.

 “In order to allow employers and workers more flexibility in the use of sharedwork plans, strict compliance with several [additional] sections of the Employment Security Act are temporarily suspended.”

Executive Order 2020-58—Temporary  Orders that “all deadlines applicable to the commencement of all civil and

suspension of certain timing requirements probate actions and proceedings, including but not limited to any deadline for

relating to the commencement of civil and the filing of an initial pleading and any statutory notice provision or other

probate actions and proceedings

prerequisite related to the deadline for filing of such a pleading, are suspended

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as of March 10, 2020 and shall be tolled until the end of the declared states of disaster and emergency.”

Executive Order 2020-59—Temporary  Rescinds EO 2020-42. requirement to suspend activities that are not  Requires all individuals to stay at home, with certain exceptions. necessary to sustain or protect life (Rescinded)  Halts all business operations except for operations of workers necessary to
sustain or protect life, to conduct minimum basic operations, or to perform certain resumed activities in one of five categories.
 Businesses permitted to continue in-person operations must provide “nonmedical grade face coverings to their workers” and “personal protective equipment such as gloves, goggles, face shields, and face masks as appropriate for the activity being performed,” as well as take other mitigation measures.
 Orders all individuals who can medical tolerate a face covering to wear one when in any enclosed public space.

Executive Order 2020-60—Temporary safety  Requires all food-selling establishments and pharmacies to implement daily measures for food-selling establishments and screening of employees, require checkout employees to wear face coverings,

pharmacies and temporary relief from make work accommodations for employees in vulnerable populations, and close

requirements applicable to the renewal of self-service and sampling stations, among other things.

licenses for the food-service industry  Orders that “any individual who enters a food-selling establishment or pharmacy

(Rescinded)

who is 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.”

Executive Order 2020-61—Temporary relief  Rescinds EO 2020-30 to extend duration and expand scope of its provisions.

from certain restrictions and requirements  Orders the suspension of certain provisions Article 15 of the Public Health Code,

governing the provision of medical services

1978 PA 368.

Executive Order 2020-62—Temporary  Rescinds EO 2020-29. COVID-19 protocols for entry into Michigan  Extends duration of provisions in EO 2020-29. Department of Corrections facilities and transfers to and from Department custody; temporary recommended COVID-19 protocols and enhanced early-release authorization for

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county jails, local lockups, and juvenile detention centers

Executive Order 2020-63—Temporarily  Orders that “all personal protection orders that would otherwise expire during

suspending the expiration of personal protection the period from the date of the entry of this order through June 1, 2020 are

orders

extended, and now expire on July 21, 2020.”

Executive Order 2020-64—Affirming anti-  Declares that it is “the public policy of this state that no person should be denied discrimination policies and requiring certain medical care on the basis of stereotypes, assessments of quality of life, or

health care providers to develop equitable access judgments about a person’s relative ‘worth,’ including judgments about a

to care protocols

person’s worth based on the presence or absence of disabilities.”

 Orders health care providers to take steps and develop protocols to ensure non-

discrimination in the delivery of critical care and allocation of other medical

resources.

Executive Order 2020-65—Provision of K-12  Rescinds EO 2020-35.

education during the remainder of the 2019-2020  Extends, expands, and clarifies the restrictions in EO 2020-35.

school year

 Temporarily suspends certain portions of the Teachers’ Tenure Act, MCL 38.71

et seq, and the Great Start Readiness Program, MCL 388.1632, et seq.

Executive Order 2020-66—Termination of the  Declares that “[t]wenty-eight days … have elapsed since [Governor Whitmer]

states of emergency and disaster declared under

declared states of emergency and disaster under the Emergency Management

the Emergency Management Act in Executive Act in Executive Order 2020-33. And while [Governor Whitmer] … sought the

Order 2020-33

legislature’s agreement that these declared states of emergency and disaster

should be extended, the legislature—despite the clear and ongoing danger to the

state—has refused to extend them beyond today.”

 Orders that “[t]he state of emergency declared under the Emergency

Management Act in Executive Order 2020-33 is terminated.”

 Orders that “[t]he state of disaster declared under the Emergency Management

Act in Executive Order 2020-33 is terminated.”

Executive Order 2020-67—Declaration of state  Declares that “state disaster and emergency recovery efforts remain necessary” of emergency under the Emergency Powers of and that “[s]tatewide coordination of these efforts is crucial to creating a stable

the Governor Act, 1945 PA 302

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 welfare of this state have been

neutralized, statewide disaster and emergency conditions will exist.”

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 Orders that a “state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.”

 Rescinds and replaces EO 2020-33. States that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.”

Executive Order 2020-68—Declaration of states  Declares “a state of emergency and a state of disaster across the State of

of emergency and disaster under the Emergency Michigan under the Emergency Management Act.”

Management Act, 1976 PA 390

 Orders “[t]he Emergency Management and Homeland Security Division of the

Department of State Police must coordinate and maximize all state efforts that

may be activated to state service to assist local governments and officials and

may call upon all state departments to utilize available resources to assist.”

 Declares that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.”

Executive Order 2020-69—Temporary  Rescinds EO 2020-43. restrictions on the use of places of public  Extends the provisions of EO 2020-43 through May 28, 2020. accommodation

Executive Order 2020-70—Temporary  Rescinds EO 2020-59.

requirement to suspend activities that are not  Reaffirms and amends the measures set forth in EO 2020-59.

necessary to sustain or protect life

 Orders that, subject to certain exceptions, “all individuals currently living within

the State of Michigan are ordered to stay at home or at their place of residence.”

 Orders that, subject to certain exceptions, “[n]o 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.”

 Orders that certain industries, including construction, real-estate activities, and work that is traditionally and primarily performed outdoors” can resume on May 7, 2020, subject to “stringent precautionary measures.”

 Orders that stores permitted to remain open for in-store sales under this Order must take steps such as limiting total occupancy, creating two hours per week of dedicated shopping times for vulnerable populations, and considering the establishment of curbside pick-up.

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 Orders all individuals medically able to tolerate a face covering to wear a covering over his or her nose and mouth when in any “enclosed public space.”

Executive Order 2020-71—Temporary safety  Rescinds, extends, and clarifies EO 2020-60.

measures for food-selling establishments and  Orders “[a]ny individual who enters a food-selling establishment or pharmacy

pharmacies and temporary relief from who is able to medically tolerate a face covering must wear a covering over his

requirements applicable to the renewal of or her nose and mouth, such as a homemade mask, scarf, bandana, or

licenses for the food-service industry

handkerchief.”

 Orders grocery stores and pharmacies to “create at least two hours per week of

dedicated shopping time for vulnerable populations.”

 Orders food-selling establishment and pharmacies to “deploy strategies to

reduce COVID-19 exposure for their customers and employees,” which are to

include developing and implementing a specified daily screening program for

all staff, requiring checkout employees to wear masks, allowing employees

sufficient break time to wash their hands, and providing disinfecting wipes at

cash registers, among others.

 Suspends strict compliance with portions of the Food Law, 92 PA 2000, as

amended.

Executive Order 2020-72—Temporary  Rescinds EO 2020-37. restrictions on entry into health care facilities,  Reinstates and extends the restrictions in EO 2020-37. residential care facilities, congregate care

facilities, and juvenile justice facilities

Executive Order 2020-73— Temporary relief from certain credentialing requirements for motor carriers transporting essential supplies,

 Rescinds EO 2020-40.  Reinstates and extends the provisions in EO 2020-40.

equipment, and persons

Executive Order 2020-74—Encouraging the use  Rescinds EO 2020-41.

of electronic signatures and remote notarization,  Reinstates, extends, and expands the provisions in EO 2020-41.

witnessing, and visitation during the COVID-19  Suspends strict compliance with the Uniform Electronic Transactions Act, as

pandemic

amended, MCL 450.831 et seq., and the Uniform Real Property Electronic

Recording Act, as amended, MCL 565.841 et seq., “to the extent necessary to

permit the use of an electronic signature for a transaction whenever a signature

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-3 filed 05/18/20 PageID.303 Page 19 of 22 Exhibit 3

is required” under Michigan law, unless the law specifically mandates a physical

signature.

 Suspends strict compliance the Michigan Law on Notarial Acts, as amended,

MCL 55.261 et seq., “to the extent it requires a notary to be in the physical

presence of an individual seeking the notary’s services or of any required

witnesses.”

 Orders that the requirements in several Michigan laws mandating the physical

presence of a person can be satisfied through the use of two-way video

technology, provided that certain conditions are met.

Executive Order 2020-75—Temporary  Rescinds and extends the provision of EO 2020-48, suspending “rules and authorization of remote participation in public procedures relating to physical presence at meetings and hearings of public

meetings and hearings and temporary relief from bodies and other governmental entities in Michigan.”

monthly meeting requirements for school boards

Executive Order 2020-76—Temporary  Rescinds EO 2020-57.

expansions in unemployment eligibility and  “[C]ontinues [the] provisions” under EO 2020-57 “and relaxes certain other

cost-sharing

requirements in order to allow the Unemployment Insurance Agency to more

quickly process unemployment claims.”

 Suspends strict compliance with several provisions of the Employment Security

Act, 1936 (Ex Sess) PA 1, as amended, the Michigan Administrative Code, and

section 68c of the State Employees Retirement Act, 1943 PA 240.

Executive Order 2020-77—Temporary  Rescinds EO 2020-70.

requirement to suspend certain activities that  Reaffirms the measures set forth in EO 2020-77, including the measures

are not necessary to sustain or protect life

requiring individuals to shelter-in-place and prohibiting most in-person business

operations, subject to certain amendments.

 Reaffirms and modifies specific protocols that must be adopted and

implemented by businesses performing construction work.

 Orders that manufacturing work may resume on May 11, subject to numerous

“workplace safeguards,” including conducting daily screening of all individuals

entering manufacturing facilities and conducting certain training of workers,

among others.

Executive Order 2020-78—Temporary

 Rescinds EO 2020-47 and “extends [the] duration and expands [the] scope” of

extension of the validity of driver licenses, state the provisions in EO 2020-47.

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identification cards, and certain vehicle registrations Executive Order 2020-79— Temporary suspension of youth work permit application requirements
Executive Order 2020-80— Enhanced authorization of remote means for carrying out state administrative procedures Executive Order 2020-81—Enhanced support for deliveries

 Suspends strict compliance with the Michigan Vehicle Code to the extent it requires certifications or renewals in order to maintain licenses or insurance coverage.  Declares that “it is reasonable and necessary to temporarily suspend certain requirements related Exeto obtaining work permits for youth workers” in order to “ensure the availability of youth workforce, and to continue to mitigate the spread of COVID-19, protect public health, and provide protections to vulnerable Michiganders of all ages.”  Suspends strict compliance with section 5 of the Youth Employment Standards Act, 1978 PA 90 to the extent the Act “requires an application of a work permit to be made in person.”  Suspends strict compliance with section 6 of the Youth Employment Standards Act “such that the color of work permits for minors under 16 years of age does not need to be distinct from that of work permits for minors 16 years of age and over.”
 Rescinds EO 2020-45.  Reinstates and extends the provisions of EO 2020-45.
 Rescinds EO 2020-44.  Reinstates and extends certain provisions of EO 2020-44.

Executive Order 2020-82—Temporary enhancements to operational capacity and efficiency of health care facilities
Executive Order 2020-83—Expanding child care access during the COVID-19 pandemic

 Rescinds EO 2020-49.  Reinstates and extends the provisions of EO 2020-49.
 Rescinds EO 2020-51.  Reinstates and extends the provisions of EO 2020-51.

Executive Order 2020-84—Enhanced protections for residents and staff of long-term care facilities during the COVID-19 pandemic
Executive Order 2020-85—Temporary prohibition against entry to premises for the

 Rescinds EO 2020-50.  Reinstates and extends the provisions of EO 2020-50.
 Rescinds EO 2020-54.  Reinstates and extends the provisions of EO 2020-54.

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purpose of removing or excluding a tenant or mobile home owner from their home

Executive Order 2020-86— Encouraging the  Declares that it is “reasonable and necessary to enable the use of telehealth

use of telehealth services during the COVID-19

services in new contexts and encourage expansion of telehealth services through

emergency

other means.”

 Orders that “All health care providers are authorized and encouraged to use

telehealth services when medically appropriate and upon obtaining patient

consent.”

 Suspends strict compliance with portions of the Insurance Code of 1956, Act

218 of 1956, imposing requirements on the provision of telemedicine.

 Orders that insurance carriers “must cover virtual check-ins and e-visists.”

 Orders that, under certain conditions, “[t]elehealth services are covered under

the Michigan Medicare/Medicaid Assistance Program and Healthy Michigan

Plan.”

 Suspends strict compliance with portions of the Public Health Code, the Mental

Health Code, and the Michigan Medicare Marihauana Act, among others, in

order to encourage the provision of telehealth services, including requirements

relating to licensing and the prescription of controlled medications.

Executive Order 2020-87— Temporary extension of deadlines for boards of review,

 Suspends strict compliance with deadlines in the General Property Tax Act (“GPTA”), 1893 PA 206, as amended, related to the completion and filing of

county equalization, and tax tribunal

reviews of assessments and assessment rolls for 2020 by a county, city, or

jurisdiction

township officials.

 Suspends strict compliance with deadlines of the GPTA and the State Board of

Equalization Act, 1911 PA 44, as amended, requiring county boards of

commissioners to determine county equalized values and transmit the same to

the State Tax Commission.

 Suspends deadlines in the GPTA and the Tax Tribunal Act, 1973 PA 186, as

amended, related to the filing, procession, and resolution of protests, disputes,

and appeals of property tax assessments.

Executive Order 2020-88— COVID-19 Return  Orders the creation of a “Return to School Advisory Council” within the

to School Advisory Council

Department of Technology, Management, and Budget, the members of which

will be appointed by the Governor.

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Executive Order 89— Enhanced restrictions on price gouging

 Orders the Council to research, develop and submit recommendations regarding the “safe, equitable, and efficient K-12 return to school in the Fall,” including recommendations “to remove statutory and administrative barriers to delivering education before Phase 6 of the MI Safe Start Plan.”
 Orders that all “departments, committees, commissioners, or officers of this state must give to the Council, or to any member or representative of the Council, any necessary assistance required by the Council” or its members.
 Orders the Council to “refer all legal, legislative, and media contacts to the Executive Office of the Governor.”
 Rescinds EO 2020-53.  Reinstates and extends the provisions of EO 2020-53.

Executive Order 90— Resumption of laboratory services

 Declares that Governor Whitmer finds “that we will soon be positioned to allow another segment of previously suspended [in-person] work to resume: laboratory research. This work, like the resumed activities allowed under Executive Order 2020-77, will be subject to stringent precautionary measures.”
 Orders that “workers necessary to conduct research activities in a laboratory setting are considered workers who perform resumed activities within the meaning of section 10 of Executive Order 2020-77.”
 Orders that “[r]esearch laboratories, but not laboratories that perform diagnostic testing, must adhere to the workplace safeguards described in subsection 11(a) through (h) of Executive Order 2020-77,” as well as several additional conditions.

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EXHIBIT 4

Case 1:20-cv-00414-PLM-PJG ECF No. 10-4 filed 05/18/20 PageID.308 Page 2 of 4

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

GARLIN GILCHRIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-17
Temporary restrictions on non-essential medical and dental procedures
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-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
The Emergency Management Act vests the governor with broad powers and duties to "cop [el with dangers to this state or the people of this state presented by a disaster or emergendy," 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 1.945 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." MCI., 10.31(1).
To mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources, it is reasonable and necessary to impose temporary restrictions on non-essential medical and dental procedures.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.goy
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1. Beginning as soon as possible but no later than March 21, 2020 at 5:00 pm, and continuing while the state of emergency declared in Executive 2020-4 is in effect, all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all state -operated outpatient facilities (collectively, "covered facilities"), must implement a plan to temporarily postpone, until the termination of the state of emergency under section 3 of Executive Order 2020-4, all non-essential procedures ("non-essential procedure postponement plan" or "plan"). For purposes of this order, "non-essential procedure" means a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.
2. A plan for a covered facility that performs medical procedures, including any medical center or office that performs elective surgery or cosmetic plastic surgery, must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would. significantly impact the health, safety, and welfare of the patient. A plan for a covered facility that performs medical procedures should exclude from postponement: surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. A plan for a covered facility that performs medical procedures must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
3. A plan for a covered facility that performs dental procedures must postpone, at a minimum: any cosmetic or aesthetic procedures (such as veneers, teeth bleaching, or cosmetic bonding); any routine hygiene appointments; any orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not traumarelated; initiation of any crowns, bridges, or dentures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; any periodontal plastic surgery; any extractions of asymptomatic non-carious teeth; and any recall visits for periodontally healthy patients. If a covered facility that performs dental procedures chooses to remain open, its plan must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
4. A covered facility must comply with the restrictions contained in its non-essential procedure postponement plan.
5. This order does not alter any of the obligations under law of an affected health care facility to its employees or to the employees of another employer.
6. The director of the Department of Licensing and Regulatory Affairs shall issue orders or directives pursuant to law as necessary to enforce this order.
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7. 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: March 20, 2020 Time: 12:28 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
'AIRY OF STATE

SENATE JOURNAL MAR 20 2020 PH3: 16
FILED WITH SECRETARY OF STATE
ON 3/420 AT 2:1-MPA,
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EXHIBIT 5

Case 1:20-cv-00414-PLM-PJG ECF No. 10-5 filed 05/18/20 PageID.312 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
DEPARTMENT OF HEALTH AND HUMAN SERVICES LANSING

ROBERT GORDON
DIRECTOR

May 3, 2020

Dear Michigan Clinicians,

We appreciate the leadership of health care systems and clinicians across the state who have worked tirelessly to care for patients during the COVID-19 pandemic. Our front-line healthcare workers have provided exceptional care, and many have put their own lives and the lives of their families at risk. Some have even lost their lives. I am forever in gratitude for your service.
While we are cautiously optimistic about the plateau in the number of cases of COVID-19 across the state, we continue to see many cases daily, as well as deaths. Michigan currently has the third highest number of COVID-19-related deaths in the United States. Governor Whitmer’s Executive Order 2020-17, Temporary Restrictions on Non-Essential Medical and Dental Procedures, was put in place to assure our healthcare systems had enough staffing, bed capacity, and personal protective equipment to be able to take care of patients, as well as to limit spread of COVID-19. As we continue to fight the COVID-19 pandemic we are in constant consideration of how to safely and responsibly provide care for our patients, while maintaining the safety of healthcare workers.
I recognize some have questions about Executive Order 2020-17, including what is allowable under the order and how to start to re-engage with patients for important care. This letter provides guidance to consider in determining the timeliness and necessity of care for individual patients.
The provisions of the Executive Order No. 2020-17 state the following:
1. Beginning as soon as possible but no later than March 21, 2020 at 5:00 pm, and continuing while the state of emergency declared in Executive 2020-4 is in effect, all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all stateoperated outpatient facilities (collectively, “covered facilities”), must implement a plan to temporarily postpone, until the termination of the state of emergency under section 3 of Executive Order 2020-4, all non-essential procedures (“non-essential procedure postponement plan” or “plan”). For purposes of this order, “non-essential procedure” means a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.

333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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2. A plan for a covered facility that performs medical procedures, including any medical center or office that performs elective surgery or cosmetic plastic surgery, must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient. A plan for a covered facility that performs medical procedures should exclude from postponement: surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. A plan for a covered facility that performs medical procedures must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
3. A plan for a covered facility that performs dental procedures must postpone, at a minimum: any cosmetic or aesthetic procedures (such as veneers, teeth bleaching, or cosmetic bonding); any routine hygiene appointments; any orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; initiation of any crowns, bridges, or dentures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; any periodontal plastic surgery; any extractions of asymptomatic non-carious teeth; and any recall visits for periodontally healthy patients. If a covered facility that performs dental procedures chooses to remain open, its plan must exclude from postponement emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.
This wording is intended to be flexible, preserve clinician judgement, and encourage consideration on an individual basis of which patient services can be safely delayed without resulting in a significant decline in health. EO 2020-17 gives providers broad discretion to apply this standard. I have had the pleasure of speaking to many physician and health system leaders in recent days and applaud current efforts to re-engage with patients in the safest way possible and within the scope of Executive Order 2020-17. Consistent with Executive Order 2020-17, the following guidelines and principles (which are non-binding suggestions unless otherwise indicated) should be considered as clinicians and hospitals plan reengagement of patients in need of medical services:
1. Limit in-person contact as much as possible and implement best practices for infection prevention and control.
• Maximize the use of telehealth. Clinicians can determine if an in-person visit is necessary. An initial phone call to collect pertinent information can reduce the time needed for an in-person visit. In some cases, a post-procedure telehealth visit may be an alternative to an in-person visit.
• Consider eliminating waiting room times altogether for ambulatory visits. Ask patients to wait in their cars until the time of their appointment if feasible. If that cannot be done, consider implementing the following:
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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o Arrange waiting rooms such that patients are kept at least six feet apart. o Remove magazines, books and toys from waiting areas. o Do not offer food or drink in waiting areas. o Have clear markings and signage for patients indicating where they should
stand or wait. • Patients and visitors who can medically tolerate a face covering should wear cloth face
coverings at all times. If they do not bring one to the office, surgical facemasks should be provided. • Perform frequent cleanings of patient waiting and care areas. Pay special attention to frequently touched surfaces. • Categorize patients into risk strata for COVID-19 exposure. Consider seeing patients at lower risk of severe outcomes from COVID-19 on one day, and high risk on another. Alternatively, consider having separate blocks of time for seeing higher risk patients. • Assure any clinical site has sufficient PPE for all staff. • Consider separate entrances for well and sick visits. • As required by Executive Order 2020-72, limit visitation and perform fever and symptom checks for all patients, visitors, and employees. • Consider discharge as early as safely possible, arranging home health care services as appropriate. • Ensure patient safety during transitions of care. Promote strategies for timely communication between inpatient and outpatient providers with an emphasis on confirming that a patient’s primary care provider or provider team has received results of important diagnostic tests, medication reconciliation lists, and follow-up recommendations.
2. Systematically prioritize in-person patient interactions.
• Encourage prioritizing appointments for your most vulnerable patients, particularly those with chronic diseases who may need laboratory or other diagnostic work done or have had difficulty managing their disease in the past. Evaluate the need for a well-visit if in your clinical judgement postponement of the visit would significantly impact the health, safety, and welfare of the patient.
• Consider stratification of the care or procedures you intend to provide into categories based on need or urgency.
• Consider allowing medical visits for immunizations. Delayed immunizations can put individuals and communities at risk of vaccine-preventable diseases. Consider reaching out to families to schedule immunization visits in future months, so that patients can remain up to date.
• Recognize that procedures or visits that were not time-sensitive several weeks ago may now be, based on clinician judgment. Certain laboratory or radiological tests may be performed under the current executive order, if it is determined by a licensed medical provider that these tests are necessary to preserve the health, safety, and welfare of the patient. This may include pre-operative tests for planned procedures.
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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3. Reassure patients of appropriate safety measures:
• Utilize diagnostic testing for COVID-19 when available as deemed clinically appropriate. Recognize that a negative COVID-19 test at a single point in time does not guarantee that a patient does not have the disease, nor that they have not become infected in the time since their test sample was obtained. This should be considered when making decisions regarding implementation of PPE, and isolation and quarantine protocols in your facility.
• Provide appropriate PPE for staff and patients following CDC and local health department guidance.
4. Assure appropriate surge capacity and develop emergency plans
• Develop specific and written plans for how your clinic or system will incrementally start doing procedures while maintaining the safety of patients and staff.
• Assure adequate beds, PPE, staffing, supplies, and medication are on hand to take care of both COVID and non-COVID patients.
• Continue to conserve PPE and maintain an appropriate surge plan should there be an increased demand for care.
• Have plans in place for how you may need to restrict procedures and visits should a surge in COVID cases occur. Follow the epidemiology and trends of the disease in your region. The most up to date information can be found at www.michigan.gov/coronavirus.
More information about best practices for infection prevention and control can be found on the CDC’s website. The above guidance is not a substitute for clinician judgement in providing individualized medical care for patients. Furthermore, now is a great time to proactively communicate with your patients about the dangers of delaying important medical care. Any patient with signs or symptoms consistent with possible life-threatening disease should not have diagnostic testing or treatment delayed. Speak with your patients about the safety plans you have in place and how you are prepared to take care of them in a safe environment.
Thank you for all you have done to respond heroically in this epidemic. I look forward to continuing to work with you as we protect the health and safety of all Michiganders.
Sincerely,
Joneigh S. Khaldun, MD, MPH, FACEP Chief Medical Executive Chief Deputy Director for Health Michigan Department of Health and Human Services
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909 www.michigan.gov/mdhhs • 517-373-3740

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EXHIBIT 6

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GRETCHEN WHITMER GOVERNOR

STATE OF MICHIGAN OFFICE OF THE GOVERNOR
LANSING

GARLIN GILCHRIST II LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-21
Temporary requirement to suspend activities that are not necessary to sustain or protect life
The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. lt is caused by a new strain of coronavirus not previously identified in humans and easily spread from person to person. Older adults and those with chronic health conditions are at particular risk, and there is an increased risk of rapid spread of COVID-19 among persons in close proximity to one another. 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-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
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).
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.
This order takes effect on March 24, 2020 at 12:01 am, and continues through April 13, 2020 at 11:59 pm.
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.goy
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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, 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.
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.
(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. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm.
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, 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. Such designations, however, may be made orally until March 31, 2020 at 11:59 pm. Businesses and operations need not designate:
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(1) Workers in health care and public health.
(2) Workers who perform necessary government activities, as described in section 6.
(3) Workers and volunteers described in section 9(d).
(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. Those practices and measures include, but are not limited to:
(1) Restricting the number of workers present on premises to no more
than is strictly necessary to perform the business's or operation's critical infrastructure functions.
(2) Promoting remote work to the fullest extent possible.
(3) Keeping workers and patrons who are on premises at least six feet from one another to the maximum extent possible, including for customers who are standing in line.
(4) 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.
(5) Adopting policies to prevent workers from entering the premises if they display respiratory symptoms or have had contact with a person who is known or suspected to have COVID-19.
(6) Any other social distancing practices and mitigation measures recommended by the Centers for Disease Control.
6. All in-person government activities at whatever level (state, county, or local) that are not necessary to sustain or protect life, or to supporting 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, 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 recreation.
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(c) For purposes of this order, necessary government activities include minimum
basic operations, as described in section 4(b). 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 5(c).
7. Exceptions.
(a) Individuals may leave their home or place of residence, and travel as necessary:
(1) To engage in outdoor activity, including walking, hiking, running,
cycling, or any other recreational activity consistent with remaining at least six feet from people from outside the individual's household.
(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) may leave their home for work without a designation.)
(3) To conduct minimum basic operations, as described in section 4(b), after being designated to perform such work by their employers.
(4) To perform necessary government activities, as described in section 6.
(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, and their vehicles. 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.
(7) To care for a family member or a family member's pet in another household.
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(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 and 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.
(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) To travel between two residences in this state. (4) As required by law enforcement or a court order, including the
transportation of children pursuant to a custody agreement.
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). Such workers include some workers in each of the following sectors:
(a) Health care and public health.
(b) Law enforcement, public safety, and first responders.
(e) 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. 5

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(i) Critical manufacturing.
(k) Hazardous materials.
(I) 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 as defined in this order. This category includes individuals (whether licensed or not) who have arranged to care for the children or dependents of critical infrastructure workers.
(b) Workers at designated suppliers and distribution centers, as described below.
(1) A business or operation that employs critical infrastructure workers may designate suppliers, distribution centers, or service providers whose continued operation is necessary to enable, support, or facilitate the work of its critical infrastructure workers.
(2) Such suppliers, distribution centers, or service providers may designate workers as critical infrastructure workers only to the extent those workers are necessary to enable, support, or facilitate the work of the original operation's or business's critical infrastructure workers.
(3) Designated suppliers, distribution centers, and service providers may in turn designate additional suppliers, distribution centers, and service providers whose continued operation is necessary to enable, support, or facilitate the work of their critical infrastructure workers.
(4) Such additional suppliers, distribution centers, and service providers may designate workers as critical infrastructure workers only to the extent that those workers are necessary to enable, support, or facilitate the work of the critical infrastructure workers at the supplier, distribution center, or service provider that has designated them.
(5) Businesses, operations, suppliers, distribution centers, and service
providers must make all designations in writing to the entities they are designating, whether by electronic message, public website, or other appropriate means. Such designations may be made orally until March 31, 2020 at 11:59 pm.
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(6) Businesses, operations, suppliers, distribution centers, and service providers that abuse their designation authority 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 and 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.
10. 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, a place of religious worship, when used for religious worship, is not subject to penalty under section 14.
11. 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.
12. This order takes effect on March 24, 2020 at 12:01 am, and continues through April 13, 2020 at 11:59 pm.
13. The governor will evaluate the continuing need for this order prior to its expiration. In determining whether to maintain, intensify, or relax its restrictions, she 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.
14. 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-00414-PLM-PJG ECF No. 10-6 filed 05/18/20 PageID.324 Page 9 of 9 Given under my hand and the Great Seal of the State of Michigan.

Date: March 23, 2020 Time: 10:39 am

GRETCHEN WIHTMER GOVERNOR
By the Governor:

FILED WITH SECRETARY OF STATE

ON 312-31Z°24) AT

5 t1/4r4

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EXHIBIT 7

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GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN OFFICE OF THE GOVERNOR
LANSING

GARLIN GILCHRIST II
LT. GOVERNOR

SECRETARY OF SENATE 2020 APR 9 Pm2:48

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
PRINTED IN-HOUSE

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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 web site, 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 5

Case 1:20-cv-00414-PLM-PJG ECF No. 10-7 filed 05/18/20 PageID.331 Page 7 of 11
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. CO 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.
(1) 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.
(e) 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 9

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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 8

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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
PRINTED IN-HOUSE

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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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EXHIBIT 9

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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,
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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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EXHIBIT 10

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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,
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
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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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Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.373 Page 10 of 18
(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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Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.374 Page 11 of 18
(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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Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.375 Page 12 of 18
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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Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.376 Page 13 of 18
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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Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.379 Page 16 of 18
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
15

Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.380 Page 17 of 18
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.
16

Case 1:20-cv-00414-PLM-PJG ECF No. 10-10 filed 05/18/20 PageID.381 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

17

Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.382 Page 1 of 12
EXHIBIT 11

Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.383 Page 2 of 12
U..SS..DDeeppaarrttmmeenntt of HHoommeelland Secuurriity CCyybbeerrsseeccuurriity & Infrasttrruucttuure SSeeccuurriittyy AAggeenncy OQfがficcee oずf t功 eheeDDiirreeccttor WWaasshhiinnggtton,,DC 20528
CISA
CYBER+ INFRASTRUCTURE
MMaarrcch 119,,2020

MMEEMMOORRAANDUUMM ON IIDDEENTTIIFFIICCAATTIIOON OFF ESSENTTIIAAL CRRIITIICCAAL IINNFFRRAASSTTRRUUCCTTURE WWOORRKKEERRSS DUURRIINNG COOVVIID--119 RESPONNSSE

FFRROOMM::

CChhrriisttoopheerr C..KKrreebbss ～クー～ DDiirreeccttor CCyybbeerrsseeccuurriity and Infrasttrruuctture SSeeccuurriity AAggeenncy ((CCIISSAA))

AAss tthhe NNaattiion commeess ttoogeettheer to sllooww tthhe sprread off COOVVIID--119,,on MMaarrcch 1l66tt"h,,tthhe PPrresidenntt iissssuueedd upddaatted CCoorroonnaavviirruuss GGuuiidance for AAmmereriicca..TThhiis guidance states tthaatt::
“' If 功y‘ 'ouo功 uwwoor' rk iio nn au critiiccalル i'nifrfarsatrsutcrtuurce' tiinundruuessttry,,as deei fiinneedd bり yththeet DDeepf paarh rttmmeennte t oげf ra HH0ommeelland Seeccuurriitか ys, usucchhs as heal励 u thccaarreec c servicea sh andPpr hhaarrmmacae ecueuttiicalル annddpofododn su興 pplフ yy, oy加 oud uyoup have a speecciiaall resspponsi坊bil読ittyか ototmmaao iinnttaaiin yyouurr normmaall wwoorrk schedduulle..”"
The CCyybbeerrsseeccuurriity and Infrasttrruuctture Seeccuurriity AAggeennccy ((CCIISSAA))exeeccuuttes tthhe Seeccrretary off HHoommeellaand Seeccuurriitty’'s resppoonnsisbibililiitties as assiiggnned unddeerr tthhe HHoommeellaand Seeccuurriitty AAcctt of 2002 to provviide sttrraatteegic guidance,,prroommootte a naattiionnaall uunniity off effoorrt,,and cooorrddiinnaatte tthhe ovveerraallll feddeerraall effoorrt to ensuurre tthhe secuurriitty and resilliieenncce of tthhe NNaattiion''sscriticaall iinnfrraasttrruucttuure..CIISSAA uses ttrruustteedd ppaarrtnerships wwiitth bootth tthhe ppuubblliic and pprrivate sectors to deelliiver iinnfrraasttrruucttuure resilliieennce assiissttaannce and guidance to a broad rraannge of ppaarrtneerrs..
In accordance wwiitth this mmaannddaatte,,and iinn coollllaaboorratiioon wwiitth other fedeerraall ageenncciies and tthhe pprrivaate sector,,CIISSAA devellooped an inniitial list off “"EEsssseennttiiaall CCrriitticaall Innfrasttrruucttuure WWoorrkkeerrss”" to heellp SSttate and lloocaall ooffficials as tthhey wwoorrk to prroottecctt theeiir commmmunuintiitieess,,wwhhiille ensuurriinng coonnttinuuiity off ffuunccttiioons critiiccaall to puubblliic heeaallth and safetty,,as wweellll as eccoonommiic and nnaattiionnaall secuurriitty..The list can also iinnffoorrmm criticaall iinnfrraasttrruucttuure commmmuunniitty decciisiioon--mmaakkiing to detteerrmmiine tthhe sectors,,sub-sectors,, seeggmmeenntts,,or critiiccal funccttiioons tthaatt should connttiinnue normmaall oppeerraattiioons,,apppprroopprriiaattelly mmooddiiffiied to accouunntt for CCeenntteerrs for DDiissease CCoonnttrrooll ((CCDDC))wwoorrkkffoorrce and custtoommeerr prroottectiioon guiidance..
The attttaacchheed list iiddennttiifies wwoorrkkeerrss wwhhoo condduucctt a rrange of oppeerraattiioons and services thaatt are esseennttiiaall to connttiinnuued criticaall iinnfrraasttrruucttuure vviiaabbiillittyy,,iinnclluudiinng sttaafffiinngg oppeerraattiioons cenntteerrs,,mmaaiinnttaaiiniinng and repaaiiriinng critiiccaall iinnfrraasttrruucttuure,, oppeerraattiinng caallll cenntteers,, wwoorrkkiing coonnssttruccttiioon,, and perffoorrmming mmaannaaggeemmeenntt ffuunccttiioons,,aammoonng otheerrs..The iinnduussttrries tthhey supppoorrtt represenntt,,buutt are noott neecceessssaarriilly lliimmiitteedd to,,mmeeddiiccaall and heeaalltthhcare,,tteelleeccoommmmuunnicicaattiions,,iinnffoorrmmaattiioon tteecchhnnollooggy systteemms,,defense,, ffooood and aggrricuullture,,ttrraannspoorrttatiioon and llooggiissttics,,enerrgy,,wwaatteerr and wwaassttewwaatteerr,,llaaww enffoorrcceemmeenntt,, and ppuubblliic wwoorrkkss..

Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.384 Page 3 of 12
We recognize that State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jjurisdiction, 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 naturree. 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

Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.385 Page 4 of 12

CYBER+INFRASTRUCTURE
DEFEND TODAY, SECURE TOMORROW

4001P'

GGuuiidance on the EEsssseennttial CCrriitical Infrastructure Workforccee: EEnnssuurring CCoommmunity and National Ressiilience in COVVIID--119 Response
Version 1.0 (March 119,, 2020)
THE IMPOORTTANNCCEE OF EESSSSEENNTTIAL CCRRITICAL INFRASSTTRRUUCCTTUURREE WORKEERSS
FFuunnctioning critical infrastructure is imperative during the response to the COOVVIIDD--119 enmneerrgency for bothh public healthh and safety as welll as conmnmmuunity well-beinngg. Certain criticall infrastructure industries have a special responsibility inn these times to continue operationnss..
This guidance and accompanying list are intended to support Statee,, Local,, andd industry partners inn identifying the critical infrastructure sectors and the essential workers needed to mnnaaiinntainn the services andd functions Americans depend on daily andd that needd to be able to operate resiliently during the COVVIIDD--119 pandemic responssee.. This docunmneent gives guidance to State, local,, triball,, andd territoriiaall juriissdicttiioons andd the private sector onn defining essential critical infrastructure workerrss.. PPromnnootting the abilittyy of such workers to continue to work during periods of community restriction, access manaaggeenmnent, social distanciinngg, or closure orders//ddiirreeccttiivveess is cruciall to conmnmmunity resilience andd continuity of essential functtiioonnss..
CCOONNSIDERATIONS FOR GOOVVEERRNNMENT AND BUSINESS
This list was developedd in consultationn withh federall agency partneerrss,, industrryy expertss,, andd State andd locall officiiaallss,, and is based onn several key principles:
11. RReesponse efforts to the COOVVIIDD--119 pandemic are locally executedd,, State mnnaannaged,, andd federalllyy supportteedd
2. EEvveeryone should follow guidance fromm the CDC, as well as State and locall governnnmnent officiiaallss,, regarding strategies to limit disease spread.
3. Workers shouldd be encouraged to work remotely when possible andd focus on core business activittiieess.. Inperson, non-nmnaannddatory activities should be delayedd untill the resunmnpption of normall operatiioonnss..
4. When continuous renmnoote work is not possibllee,, businesses shouldd enlist strategies to reduce the likelihhoooodd of spreading the diseasee.. This includeess,, but is not necessarily limited too,, separating staff by off-setting shift hours or days and/or social distanciinngg. These steps cann preserve the workforce andd allow operations to continuee..

CONNECT WIITTH US www.ciisa.gov
For more informatiioonn,, email CISA.CATT@@cciissaa..ddhs.gov

[12 Linkedin.com//ccoommppaannyy//ccyybbeerrsseeccuurriittyy-and-infrasttrruuccttuurree--sseeccuurriittyy--aaggennccy @CCIISAgov |I @@ccyybber |I @@uusscert_gov
rJ Facebook.com//CCIISSAA

Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.386 Page 5 of 12
EEsssseennttial CCrriitical Infrastructtuurree Workforce
5. All organizations shouldd impleenmnent their business continuittyy andd pandemic planss,, or put plans inn place if thheeyy do not exist. Delaying implenmneennttation is not advisedd and puts at risk the viability of the business andd the health and safety of the enmnpployees.
6. In the mnnooddern econommyy, reliance on technollooggy and jjuusstt--iinn--ttinimne supplyy chains mnneeaans that certaiinn workers must be able to access certain sites, facilittiieess,, andd assets to ensure continuittyy of functtiioonnss..
7. GGoovveerrnnment emplooyyees,, such as enmneerrgency mnnaannagers,, andd the business comnmnunity need to establishh andd maintain lines of comnmnuunnicationn..
8. When governnmneent and businesses engage inn discussions about critical infrastructurree workerrss,, thheeyy needd to consider the implications of business operations beyondd the juriissdicttiioon where the asset or facilittyy is locatedd.. Businesses can have sizeable economic andd societal imnnppaacts as welll as suppllyy chainn dependenciieess that are geographically dd istributedd..
9. Whenever possible, jjuuriissdicttiioons should align access andd movenmneent controll policies relatedd to criticall infrastructure workers to lower the burden of workers crossing juriissdicttiioonal boundariieess..
IDENTIFYINNGG EESSSSEENTTIAL CCRITICAL INFRASSTTRRUUCCTTUUREE WORKEERSS
The following list of sectors and identifiieedd essentiall critical infrastructure workers are ann initiall recommendedd set andd are intended to be overly inclusive reflecting the diversityy of industries across the Unitedd Statteess.. CISA willl continualllyy solicit and accept feedback on the list (both sectorss/sub sectors andd identified essentiall workerrss)) andd willl evolve the list in response to stakeholder feedbackk.. We will also use our various stakeholder engagenmnent mechhaanniissnmns to work with partners on how they are using this list and share those lessons learnedd and best practices broaddllyy.. We ask that you share your feedback, both positive and negative on this list so we cann provide the most usefull guidance to our critical infrastructure partners. FFeeedback can be sent to CISA.CAT@CCIISA.DHS.GOOV..

A
Communiutions
Chemical
Critical Manufacturing

Essential Critical Infrastructure Workers

Hee Pobil

Information Technology

Transportations Systems

Commercial Facildies

Dams

Det.» industrial Base

Energy

Emergency Services

Financial

Food & Agriculture

1111111
Government Facilities

Nuclear Reactors, Materials & Waste

Water
CISA

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.387 Page 6 of 12
EEsssseennttial CCrriitical Infrastructtuurree Workforce
HEEALTHCAREE / PUBLICC HEALTTHH
• Workers providing COOVVIIDD--119 testiinngg;; Workers that performm criticall clinicall researchh neededd for COVVIIDD--1199 response
• CCaaregivers (e.g., physicians, dentisttss,, psychologisttss,, midd-levell practitiioonneerrss,, nurses andd assistanttss,, infectiioonn controll and quality assurance personnell,, pharmacisttss,, physicall andd occupationaall therapists andd assistanttss,, sociall workerrss,, speech pathologists and diagnostic andd therapeutiicc techniciannss andd technnoollooggisttss))
• Hospitall and laboratory personnell (including accounttiinngg,, administtrraattiivvee,, admitting andd dischhaarrggee,, engineerriinngg,, epidemiollooggicaall,, source plasma andd bloodd donatiioonn,, foodd servicee,, housekeepiinngg,, medicall recorddss,, informattiioonn technollooggy andd operationall teecchhnnoollooggyy,, nutritioniissttss,, sanitarriiaannss,, respiratorryy therapiissttss,, etcc..))
• Workers in other medicall facilitiiees (including Ambulatorry Healthh andd Surgicaall,, Bloodd Bankkss,, Cliniccss,, CCoommmunittyy Mental Health, CCoommprehensive OOuuttpatient rehabilitattiioonn,, End Stage Renall Diseasee,, Healthh Departmenttss,, Home Healthh caree,, Hospices, Hospitals,, Long Termm Caree,, Organn PPhharmaciess,, PPrrooccuurement OOrganizationnss,, PPssyycchhiatric RReessiidentiall,, Rurall Healthh CCllinics andd Federally QQuualifiedd Healthh CCeenters)
• Manufacturrerrss,, techniciiaannss,, logistics and warehouse operatoorrss,, andd distributoors of medicaall equipmentt,, personall protective equipment (PPE),, medicall gasess,, pharmaceutiiccaallss,, bloodd andd bloodd producttss,, vaccinneess,, testing materials, laboratory suppliieess,, cleaninngg,, sanittiizziinngg,, disinfecting or steriliizzatiioonn supplliieess,, andd tiissssuuee andd paper towel products
• PPuublic healthh / community health workerrss,, including those who compilee,, modell,, anallyyze andd communicate public health information
• Bloodd and plasma donors andd the employees of the organizations that operate andd manage relateedd activittiieess • Workers that manage healthh planss,, billinngg,, and health informatiioonn,, who cannot practically work remotely • Workers who conduct communittyy-based public healthh funccttiioonnss,, conducting epidemiolooggic surveilllaannccee,,
compiliinngg, analyzing andd communicating public health information,, who cannot practically work remotely • Workers performing cybersecurity functtiioons at healthcare andd public healthh faciliittiieess,, who cannot practicalllyy
work remotely
• Workers conducting researchh critical to COOVVIIDD--119 response
• Workers performing securiittyy,, incident managementt,, andd emergency operations functtiioonnss at or onn behalf of healthcare entities including healthcare coalitionnss,, who cannot practically work remotely
• Workers who support foodd,, shelterr,, andd sociall serviceess,, andd other necessities of life for economicalllyy disadvantaagged or otherwise needy individuallss,, suchh as those residing inn shelters
• PPhharmacy employees necessary for filling prescriptions • Workers performing mortuary services,, including funerraall homess,, crematoriuummss,, andd cemetery workers • Workers who coordinate with other organizations to ensure the proper recovveerryy,, handliinngg,, identifiiccattiioonn,,
transportattiioonn,, trackkiinngg,, storraaggee,, and disposall of humann remains andd personall effecttss;; certify causee of deatthh;; andd facilitate access to mental//bbeehhaavviioorraall healthh services to the famiillyy memberrss,, responderrss,, andd survivors of ann incident

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.388 Page 7 of 12
EEsssseennttial CCrriitical Infrastructure Workforce
LAW EENFORCEMENT, PUBLICC SAFETY, FIRST RESPONDERSS
• PPeerrsonnel in emnneerrgency manaaggeenmnent, law enforcementt,, EEmmergency Management Systems, fiirree,, andd corrections, including front line andd mnnaannaagemnneennt
• EEmmergency Medicall Technicians • 911 call center employees • Fusion CCeennter employees • Hazzaardous materiall responders from government andd the private sectoorr.. • Workers –- including contracted vendors -- who maintain digital systems infrastructurre supporting law
enforcement andd emergency service operatiioonnss..
FOOD AND AGRICCUULTTUUREE
• Workers supporting groceries, pharmacies and other retaill that sells foodd and beverage products • RReessttaurant carry-out andd quick serve foodd operations - Carry-out andd delivery foodd emplooyyees • Food manufacturer employees andd their supplier emppllooyyeeeess——to include thhoose empllooyyedd inn ffoooodd processing
(packers, meat processing, cheese plants,, milk plants, produce, etc.) facilittiieess;; livestockk,, poulttrryy, seafoodd slaughter facilittiieess;; pet andd animal feed processing facilittiieess;; humann foodd facilittiiees prodducing by--pproducts for animal food; beverage production facilittiieess;; andd the production of foodd packaging • Farm workers to include those employyed inn animall foodd,, feed, and ingredient productionn,, packaginngg, andd distribution; manufacturriinngg, packaging, and distributtiioonn of veterinary drugs; truck deliverry andd transport;; farmm and fishery labor neededd to produce our foodd supply domestically • Farm workers and support service workers to include thhoose who fiieeldd cropss;; commodittyy inspectionn;; fuueell ethannooll facilittiieess; storage facilittiieess; and other agriculturall inputs • EEmmployees and firms supporting foodd,, feed, and beverage distributtiioonn,, including warehouse workerrss,, vendorr-managed inventory controllers and blockchain managers • Workers supporting the sanitatiioon of all food manufacturing processes andd operations frroomm wholesale too retaill • CCoommpany cafeterias - in--plant cafeterias usedd to feedd employees • Workers in foodd testing labs in private industries and inn institutiioonnss of higher educatiioonn • Workers essential for assistance programs and government payments • EEmmployees of companies engaged in the productionn of chemicals, medicinneess,, vaccinneess,, andd other substanncceess used by the food andd agriculture industtrryy, including pesticides, herbicides, ferttiilliizzeerrss,, mnniinnerals,, enrichmenttss,, and other agriculturall production aids • Animal agriculture workers to include those employed inn veterinary health; manufacturing andd distributtiioonn of animal mnneeddicall mnnaatteerials, animal vaccines, animal drugs, feedd ingredienttss,, feed,, andd beddinngg, etc.; transportation of live animalss,, animall medical materiallss;; transportatiioon of deceasedd animals for disposall;; raising of animals for food; animal productionn operationnss;; slaughter andd packing plants and associatteedd regulatory and government workforce • Workers who support the manufacture andd distribution of forest products, includiinngg,, but not limitedd to timmbbeerr,, paper, and other woodd products • EEmmployees engaged in the manufacture and maintenance of equipment and other infrastructuurree necessary to agricultural production and distributtiioonn

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.389 Page 8 of 12
EEsssseennttial CCrriitical Infrastructure Workforce

EENERGY
EElleeccttricity industtrryy:
• Workers who maintainn,, ensuree,, or restore the generation, trannssmmiissssiioonn,, andd distributtiioonn of electric powerr,, including calll centers, utility workers, reliabilittyy engineers andd fleet maintenance techniciiaannss
• Workers needed for safe and secure operations at nuclear generationn • Workers at generation, transmiissssiioon, and electric blackstart facilittiiees • Workers at RReelliiability CCoooorrddinator (RC),, Balancing Authorities (BA),, andd primary andd backup Controll Centers
(CC), including but not limited to independent system operatorrss,, regional trraannssmmiissssiioonn organizations, andd balancing authorities • Mutual assistance personnel • IT andd OT technollooggy staff –- for EMS (Energy Management Systems) andd Supervisory Controll andd Data Acquisition (SCADA) systems, andd utility data centerrss;; CCyybbeerrsecurity engineerrss;; cybersecurity risk management • Vegetation management crews andd traffic workers who support • EEnnvironnmneental remediation//nmnonitoring technicians • Instrumentation, protection, and control technicians
PPeettroleum workers:
• PPeettroleum product storage, pipeline, marine transport,, terminallss, raliil transportt,, roadd transport • Crude oil storage facilittiieess,, pipeline, andd marine transport • PPeettroleum refinery facilitiees • PPeettroleum security operations center employees andd workers who support emergencyy response services • PPeettroleum operations control roomss//centers • PPeettroleum drilliinngg, extraction, production, processinngg, refininngg,, terminal operationnss, trraannssppoorrttiinngg,, andd retaill for
use as end-use fuels or feedstocks for chemical manufacturing • OOnnshore andd offshore operations for maintenance andd emergency response • RReetail fuel centers such as gas stations and truck stops, and the distributtiioonn systems that support thheemm
Natural and propane gaos workerrss::
• Natural gas transmiissssiioonn and distributtiioonn pipeliness,, including compressor stations • UUnnderground storage of natural gas • Natural gas processing plants, and those that deall withh natural gas liquids • Liquefied Naturall Gas (LNG) facilittiiees • Natural gas security operations center, natural gas operations dispatchh and contrrooll rooms/ccentteerrs naturraall gas
emergency response and customer emergenciieess,, including naturall gas leak calls • Drilling, productionn,, processinngg, refiniinngg,, and transporting natural gas for use as end-use fuueellss,, feedstocks for
chemical manufacturiinngg, or use in electricity generation • PPrropane gas dispatch and control rooms andd emergency response and customer emergenciieess,, including
propane leak calls • PPrropane gas service maintenance andd restoratioonn,, including call centers

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.390 Page 9 of 12
Esssseennttiiaall CCrriiticaall IInnffrraassttrruuccture WWoorrkkffoorrce
• Processiinng,,rreefiinniinng,,and trraansppoorrttiinng naattuurraall lliiqquuiidds,,iinncclluuddiinng prrooppane gas,,foorr use as endd--uuse fueells oorr ffeeedstocks for cheemmicicaall mmaannuufafaccttuurriing
• Prrooppane gas sttoorraage,,ttrraannsmmiissssiion,,andd ddiistriibbuutiioon ceenntteerrs
WWAATTEER AND WWAASSTTEWWAATTEER
Emmpplloyyees neededd to opeerraatte andd mmaaiinnttaaiin driinnkiinng wwaatteerr andd wwaasstteewwaatteerr/ddrraiinnage iinnffrraassttrruucttuure,,iinnclluudiinng: • OOppeerraattiionnaall staafff aatt wwaatteerr auutthhoorriittiiees • OOppeerraattiionnaall staafff aatt commmmunuintityy wwaatteerr syysstteemms • OOppeerraattiionnaall staafff aatt wwaassttewwaatteerr ttrreeaattmmeenntt faacciillittiiees • WWoorrkkeerrs rreeppaaiiriinng wwaatteerr and wwaassttewwaatteerr conveyanceess andd perffoorrmmiinng rreequuiireedd sammpplliing oorr mmoonnititoorriing • OOppeerraattiionnaall staafff for wwaatteerr ddiistriibbuutiioon andd testiinng • OOppeerraattiionnaall staafff aatt wwaassttewwaatteerr coolllleectiioon faacciillittiiees • OOppeerraattiionnaall staafff and ttechhnniiccaall suppppoorrtt for SCADA CCoonnttrrooll systteemms • Chheemmicicaall ddiisiinnffeecttaanntt suupppplliiers for wwaassttewwaatteerr and peerrsonnnneell proteccttiioonn • WWoorrkkeerrs tthhaatt mmaaiinnttaaiin ddiiggiitaall syysstteemms iinnffrraassttrruucttuure suuppppoorrttiinng wwaatteerr andd wwaasstteewwaatteerr oppeerraattiioons
TTRANNSSPPOORRTTAATTIION AND LLOGGIISTTIICS
• Emmpplloyyees suuppppoorrttiinng or ennaabblliinng ttrraansppoorrttaattiioonn funnccttiioons,,iinncclluuddiinng diisspatcheerrs,,mmaaiinnttenance andd reeppaaiirr tteechnniiciiaans,,wwaarrehouse wwoorrkkeerrs,,trruuck stop and rreesstt areaa wwoorrkkeerrs,,andd wwoorrkkeerrs thaatt mmaaiinnttaaiinn andd iinnsspeecctt iinnffrraassttrruuccttuure ((iinncclluuddiinng tthhose thaatt rreequuiire cross--bbordeerr trravveell))
• Emmpplloyyees of ffiirrmms proviiddiinng seerrviicces thaatt ennaabblle lloogistiiccs oppeerraattiioons,,iinncclluuddiinng coooolliinng,,storiinng,,packkaaggiing,, and diistrriibbuutiinng produucctts for wwhhoolleessaalle oorr reettaaiill saalle oorr use..
• MMaassss trraannssiit wwoorrkkeerrs • WWoorrkkeerrs rreespoonnssiibblle for oppeerraattiinng diissppatchiinng passennggeerr,,commmmuutteerr andd freeiigghhtt trraaiinns andd mmaaiinnttaaiinniing rraailil
iinnffrraassttrruuccttuure and equiippmmeenntt • MMaarriittiimme ttrraansppoorrttaattiioon wwoorrkkeerrs -- poorrtt wwoorrkkeerrs,,mmaarriineerrs,,equiippmmeenntt oppeerraattoorrs • Truuck ddrriivvers who haauull hazardous andd wwaasstte mmaateterriiaalls to suppppoorrtt ccrritiiccaall iinnffrraassttrruucttuure,,caappaabibliilittiiees ,,funnccttiioons,,
and seerrviicces • Auuttommoottiive rreeppaaiir and mmaaiinttenance faacciillittiiees • MMaannuufafaccttuurreerrs andd ddiistrriibbuutors (ttoo iinncclluudde seerrvice cenntteerrs andd rreellaatteedd oppeerraattiioons))ooff packaaggiing mmaateteririaalls,,
paalllets,,crates,,connttaaiineerrs,,andd otheerr suupppplliies neededd to suuppppoorrtt mmaannuufafaccttuurriing,,packaaggiing stagiinng andd ddiistriibbuutiioon oppeerraattiioons • Poossttaall andd shhiippiinng wwoorrkkeerrs,,to iinncclluudde priivvaate commppaanniies • Emmpplloyyees who rreeppaaiirr and mmaaiinnttaaiin veehhiicles,,aaiircraafftt,,rraailielquiippmmeenntt,,mmaarriine vesssseells,,and tthhe equiippmmeenntt andd iinnffrraassttrruuccttuure thaatt enaabblles oppeerraattiioons thaatt encoommppaassss mmoovvemmeenntt ooff cargo and passeennggeerrs • AAiir ttrraannsppoorrttaattiioon emmppllooyyees,,iinncclluuddiinng aaiir traafffic coonnttrroolllers,,rraammp peerrsonnnneell,,aavviiaattiioon seeccuurriitty,,andd aavviiaattiioonn mmaannaaggemmeenntt • WWoorrkkeerrs who suppppoorrtt tthhe mmaaiintteenance and oppeerraattiionn of cargo by aaiir trraansppoorrttaattionn,,iinnclluuddiinng flliigghht crreews,, mmaaiintteenance,,airrppoorrt oppeerraattiioons,,andd otheerr on -- and oofff-- aaiirpoorrtt faacciillitiiees wwoorrkkeerrs

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.391 Page 10 of 12
EEsssseennttial CCrriitical Infrastructure Workforce

PUUBLIC WORKS
• Workers who support the operationn,, inspectionn,, andd maintenance of essentiall dams, locks andd levees • Workers who support the operation, inspectionn,, and maintenance of essentiaall public works facilittiiees andd
operations, including bridges, water and sewer mainn breakss,, fleet maintenance personnell,, constructiioonn of critical or strategic infrastructurree,, traffic signal maintenanccee,, emergencyy locationn services for buriedd utilittiieess,, maintenance of digital systems infrastructure supporting public works operationnss, andd other emergent issues • Workers such as plumberrs,, electricians, exterminattoorrss,, andd other service providers who provide services that are necessary to maintaining the safettyy, sanitatiioon, and essential operationn of residences • Support, such as roadd and line clearinngg,, to ensure the availability of needed faciliittiieess,, transportattiioonn,, energy and communications •• Support to ensure the effective removal, storage, andd disposall of residentiall andd commercial soliidd waste andd hazardous waste
CCOOMMMUNICATIOONSS AND INFORMAATTIIOONN TECHNOLOOGGYY
CCoommmunications:
• Maintenance of communications infrastructure- including privatelly ownedd andd maintainneedd communicattiioonn systems- supported by techniciiaannss, operators, calll-centerss,, wireline andd wireless providerrss,, cable service providers, satellite operations, undersea cable landing statiioonnss,, Internet Exxcchhange Points,, andd manufacturreerrs and distributors of communications equipment
•• Workers who support radio, telleevision, and media servicee,, includiinngg,, but not limited to front line news reporters, studio, and technicians for newsggaathering and reporting
• Workers at Independent Systemm OOpperators and Regionall Transmission Orrggaanizations, andd Network Operations staff, engineers andd//or technicians to manage the network or operate facilittiiees
• EEnngineers, technicians and associated personnell responsible for infrastructurree constructiioonn andd restoratiioonn,, including contractors for construction and engineering of fiber optic cables
• Installatiioonn,, maintenance and repair technicians that establishh,, support or repair service as neededd • CCeentral office personnel to maintain and operate central offiiccee,, data centerrss,, andd other network office facilittiieess • CCuussttomer service and support stafff,, including managedd andd professional services as welll as remote providers
of support to transitioning employees to set up andd maintain home offiicceess,, who interface withh customers to manage or support service environments and security issues, including payroll, billinngg,, frraauudd,, andd troubleshooting • Dispatchers involvedd with service repair and restorationn
Information Technollooggyy:
• Workers who support commandd centers, includiinngg,, but not limitedd to Network Opperations Commanndd Centeerr,, Broadcast OOppeerations Control Center and Security OOperations CCoommandd CCeenter
• Data center operators, including system administrattoorrss,, HVAC & electricall engineerrss,, security personneell,, IT managers, data transfer solutions engineerrss,, software and hardware engineerrss,, andd database administrattoorrss
• CCllient service centerrss,, field engineers, andd other technicians supporting criticaall infrastructtuurree,, as welll as

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.392 Page 11 of 12
EEsssseennttial CCrriitical Infrastructure Workforce
manufacturers and supply chain vendors that provide hardware andd softwarree,, andd informationn tteecchhnnoollooggyy equipment (to include microelectronics and semiconducttoorrss)) for criticall infrastructure • Workers responding to cyber incidents involving critical infrastructtuurree,, including medical faciliittiieess,, SLTT governments and federal facilittiieess,, energy andd utilitiiees, andd banks andd financial instituttiioonnss,, andd other criticaall infrastructure categories andd personnel • Workers supporting the provisionn of essentiall global, nationall and locall infrastructuurree for computing services (incl. cloud computing services), business infrastructuurree,, web -basedd services, andd criticcaall manufacturing • Workers supporting communications systems and informatiioonn technnoollooggy usedd by law enforcementt,, public safettyy, medical, energy andd other criticall industries • Support required for continuity of services, including janitorial//cclleeaanniinng personnel
OTHER CCOOMMMUNITTY-BASED GGOOVVEERRNMENT OPERATIONSS AND EESSSEENTTIAL FFUUNCTIONS
• Workers to ensure continuittyy of building functions • Security staff to maintain building access control and physicall security measures • EElleections personnel • FFeederal, State, and Local, Tribal, and Territoriall employees who support Missionn EEsssentiall FFuunctions andd
communications networks • Trade OOffficials (FETA negotiators; internationall data flow administrattoorrss) • Weather forecasters • Workers that maintain digital systems infrastructure supporting other criticall government operations • Workers at operations centers necessary to maintain other essential functiioons • Workers who support necessary credentialiinngg, vetting and licensing operations for transportattiioonn workers • CCuustoms workers who are critical to facilitating trade inn support of the nationall emergency response supply
chain • EEdduucators supporting public and private K--112 schoolss,, colleges, andd universities for purposes of facilitatiinng
distance learning or performing other essential functtiioonnss,, if operating under rules for sociall distancing • Hotel Workers where hotels are used for COOVVIIDD--119 mitigatiioonn andd containment measures
CCRRITICAL MANUUFACCTURINNGG
• Workers necessary for the manufacturing of materials andd products neededd for medicall supply chains,
transportation, energy, communicationnss, food andd agriculture, chemicall manufacturriinngg,, nuclear faciliittiieess,, thhee operation of dams, water and wastewater treatmentt,, emergency services, andd the defense industrial basee..
HAZARDOOUUS MATERIALS
• Workers at nuclear facilittiieess,, workers managing medicall waste, workers managing waste fromm pharmaceuticals and medical material production, and workers at laboratories processing test kits
• Workers who support hazardous materials response andd cleanup • Workers who maintainn digital systems infrastructure supporting hazardous materials management operations

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-11 filed 05/18/20 PageID.393 Page 12 of 12
EEsssseennttial CCrriitical Infrastructure Workforce
FFIINANCCIAL SERVICCES
• Workers who are needed to process and maintaiinn systems for processing financiiaall transactions andd services
(e.g., payment, clearinngg, and settlement; wholesale funddiinngg;; insurance serviceess;; and capitall markets activitiieess))
• Workers who are needed to provide consumer access to banking andd lending servicess,, including ATMs, andd to
move currency andd payments (e.g., armored cash carriers)
• Workers who support financiall operations, suchh as those staffing data andd securittyy operations centers
CCHHEEMICAL
• Workers supporting the chemical andd industriall gas supply chainss,, including workers at chemicall manufacturing plants, workers in laboratories, workers at distributiioonn facilittiieess,, workers who transport basic raw chemicall materials to the producers of industriall and consumer goods, including hand sanitiizzers, foodd andd ffooodd additiivves, pharmaceuticals, textiles, and paper producttss..
• Workers supporting the safe transportatiioon of chemicallss,, including thhoose supporting tank truck cleaning facilities and workers who manufacture packaging items
• Workers supporting the productionn of protective cleaning andd medicall solutionnss,, personall protective equipmentt,, and packaging that prevents the contaminatiioonn of foodd,, waterr,, medicine, among others essentiaall products
• Workers supporting the operation andd maintenance of facilitiiees (particularly those withh highh risk chemicals and/ or sites that cannot be shut down) whose work cannot be done remotely andd requires the presence of highllyy trained personnel to ensure safe operations, including plant contract workers who provide inspections
• Workers who support the productionn and transportattiioonn of chlorine and alkali manufactuurriinngg,, single-use plastics, andd packaging that prevents the contaminatiioonn or supports the continuueedd manufacture of foodd,, water, medicine, and other essentiall products, including glass container manufacturing
DEFENSE INDUSTRIAL BASE
•• Workers who support the essential services requiredd to meet national security commitments to the federall government and U.S. Milittaarryy.. These individuals, include but are not limiteedd to, aerospace; mechanicall andd software engineers, manufacturing//pprroodducttiioonn workers; IT supportt;; security stafff;; security personnell;; intelligence support, aircraft and weaponn system mechanics and maintainers
• PPeersonnel working for companies, and their subcontracttoorrss,, who perform under contract to the Department of Defense providing materials and services to the Department of Defense, andd government-owwnneedd//contracttoorr-operated and government-owned//ggovernmentt--operatteedd facilittiieess

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Case 1:20-cv-00414-PLM-PJG ECF No. 10-12 filed 05/18/20 PageID.394 Page 1 of 5
EXHIBIT 12

Case 1:20-cv-00414-PLM-PJG ECF No. 10-12 filed 05/18/20 PageID.395 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN OFFICE OF THE GOVERNOR
LANSING

GAMIN GILCHRIST II LT. GOVERNOR

SENATE JOURNAL APR 30 2020 Pm9:27
EXECUTIVE ORDER
No. 2020-66
Termination of the states of emergency and disaster declared under the Emergency Management Act in Executive Order 2020-33
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 new 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. The virus's rapid and relentless spread threatened to quickly 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. And the virus had also brought 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. 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, MCI, 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.
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 have issued
GEORGE W. ROMNEY BUILDING • Ill SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 1:20-cv-00414-PLM-PJG ECF No. 10-12 filed 05/18/20 PageID.396 Page 3 of 5
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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 41,379 confirmed cases of COVID-19 in Michigan, and 3,789 deaths from the disease—fourfold and tenfold increases, respectively, since the start of this month. And there are still countless more who are infected but have not yet been tested. There remains no treatment for the virus; it remains exceptionally easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we still lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster.
The economic and social harms from this pandemic likewise persist. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations. Michiganders are losing their jobs in record numbers: to date, roughly one quarter of the eligible workforce has filed for unemployment. And state revenue, used to fund many essential services such as our schools, has dropped sharply.
The economic damage—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 24% 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 has already reached its highest unemployment rate since the Great Depression. On April 9, 2020, economists at the University of Michigan forecasted that the U.S. economy will contract by 7% in the second quarter of this year, or roughly an annualized rate of 25%. As a result, many families in Michigan will struggle to pay their bills or even put food on the table.
2

Case 1:20-cv-00414-PLM-PJG ECF No. 10-12 filed 05/18/20 PageID.397 Page 4 of 5
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. The closure of museums and theaters limits people's ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus's spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Although local health departments have some limited capacity to respond to cases as they arise within their jurisdiction, 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 hotspots as they arise. 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, which would undermine infection control and contribute to further spread of the virus. 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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., provides that "[t]he governor shall, by executive order or proclamation, declare a state of emergency" and/or a "state of disaster" upon finding that an emergency and/or disaster has occurred or is threatening to occur. MCL 30.403(3) & (4). The Emergency Management Act further provides that a declared state of emergency or disaster
shall continue until the governor finds that the threat or danger has passed, the [disaster/emergency] has been dealt with to the extent that [disaster/ emergency] conditions no longer exist, or until the declared state of [disaster/ emergency] has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of [disaster/ emergency] terminated, unless a request by the governor for an extension of the state of [disaster/emergency] for a specific number of days is approved by resolution of both houses of the legislature. [Id.]
3

Case 1:20-cv-00414-PLM-PJG ECF No. 10-12 filed 05/18/20 PageID.398 Page 5 of 5
For the reasons set forth above, the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist. Twenty-eight days, however, have elapsed since I declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33. And while I have sought the legislature's agreement that these declared states of emergency and disaster should be extended, the legislature—despite the clear and ongoing danger to the state—has refused to extend them beyond today.
Accordingly, acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. The state of emergency declared under the Emergency Management Act in Executive Order 2020-33 is terminated.
2. The state of disaster declared under the Emergency Management Act in Executive Order 2020-33 is terminated.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 30, 2020 Time: 7:29 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
SECRETARY OF STATE

4

Case 1:20-cv-00414-PLM-PJG ECF No. 10-13 filed 05/18/20 PageID.399 Page 1 of 5
EXHIBIT 13

Case 1:20-cv-00414-PLM-PJG ECF No. 10-13 filed 05/18/20 PageID.400 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

GARLIN GILCHRIST II LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-68
Declaration of states of emergency and disaster under the Emergency Management Act, 1976 PA 390

SENATE JOURNAL APR 30 2020 Pm9:27

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 new 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. The virus's rapid and relentless spread threatened to quickly 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. And the virus had also brought 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. 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.
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

GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 1:20-cv-00414-PLM-PJG ECF No. 10-13 filed 05/18/20 PageID.401 Page 3 of 5
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 have 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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 41,379 confirmed cases of COVID-19 in Michigan, and 3,789 deaths from the disease—fourfold and tenfold increases, respectively, since the start of this month. And there are stili countless more who are infected but have not yet been tested. There remains no treatment for the virus; it remains exceptionally easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we stili lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster.
The economic and social harms from this pandemic likewise persist. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations. Michiganders are losing their jobs in record numbers: to date, roughly one quarter of the eligible workforce has filed for unemployment. And state revenue, used to fund many essential services such as our schools, has dropped sharply.
The economic damage—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 24% 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 has already reached its highest unemployment rate since the Great Depression. On April 9, 2020, economists at the
2

Case 1:20-cv-00414-PLM-PJG ECF No. 10-13 filed 05/18/20 PageID.402 Page 4 of 5
University of Michigan forecasted that the U.S. economy will contract by 7% in the second quarter of this year, or roughly an annualized rate of 25%. As a result, 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. The closure of museums and theaters limits people's ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus's spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Although local health departments have some limited capacity to respond to cases as they arise within their jurisdiction, 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 hotspots as they arise. 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, which would undermine infection control and contribute to further spread of the virus. 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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., provides that "[t]he governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency." MCL 30.403(1). In particular, the Emergency Management Act mandates that "[t]he governor shall, by executive order or proclamation, declare a state of emergency" and/or a "state of disaster" upon finding that an emergency and/or disaster has occurred or is threatening to occur. MCL 30.403(3) & (4). Under the Emergency Management Act, an emergency constitutes "any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state." MCL 30.402(h). And a disaster constitutes "an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, . . . epidemic." MCL 30.402(e).
3

Case 1:20-cv-00414-PLM-PJG ECF No. 10-13 filed 05/18/20 PageID.403 Page 5 of 5
Acting under the Michigan Constitution of 1963 and Michigan law: 1. I now declare a state of emergeney and a state of disaster across the State of Michigan under the Emergeney Management Act. 2. The Emergency Management and Homeland Security Division of the Department of State Police must coordinate and maximize all state efforts that may be activated to state service to assist local governments and officials and may call upon all state departments to utilize available resources to assist. 3. This order is effective immediately and continues through May 28, 2020 at 11:59 pm. 4. I will evaluate the continuing need for this order prior to its expiration. 5. All previous orders that rested on Executive Order 2020-33 now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 30, 2020 Time: 7:30 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
SECRETARY OF STATE

4

Case 1:20-cv-00414-PLM-PJG ECF No. 10-14 filed 05/18/20 PageID.404 Page 1 of 5
EXHIBIT 14

Case 1:20-cv-00414-PLM-PJG ECF No. 10-14 filed 05/18/20 PageID.405 Page 2 of 5

GRETCHEN WHITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR LANSING

GARLIN GILCHRIST II
T. GOVERNOR

EXECUTIVE ORDER
No. 2020-67
Declaration of state of emergency under the Emergency Powers of the Governor Act, 1945 PA 302

SENATE JOURNAL APR 30 2020 Pm9:27

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 new 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. The virus's rapid and relentless spread threatened to quickly 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. And the virus had also brought 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. 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.
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

GEORGE W. ROMNEY BUILDING • ill SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-IIOUSE

Case 1:20-cv-00414-PLM-PJG ECF No. 10-14 filed 05/18/20 PageID.406 Page 3 of 5
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 have 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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 41,379 confirmed cases of COVID-19 in Michigan, and 3,789 deaths from the disease fourfold and tenfold increases, respectively, since the start of this month. And there are still countless more who are infected but have not yet been tested. There remains no treatment for the virus; it remains exceptionally easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we still lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster.
The economic and social harms from this pandemic likewise persist. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations. Michiganders are losing their jobs in record numbers: to date, roughly one quarter of the eligible workforce has filed for unemployment. And state revenue, used to fund many essential services such as our schools, has dropped sharply.
The economic damage—already severe—will continue to compound with time. Between March 15 and April 18, Michigan had 1.2 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 24% 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 has already reached its highest unemployment rate since the Great Depression. On April 9, 2020, economists at the University of Michigan forecasted that the U.S. economy will contract by 7% in the second quarter of this year, or roughly an annualized rate of 25%. As a result, many families in
2

Case 1:20-cv-00414-PLM-PJG ECF No. 10-14 filed 05/18/20 PageID.407 Page 4 of 5
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. The closure of museums and theaters limits people's ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus's spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Although local health departments have some limited capacity to respond to cases as they arise within their jurisdiction, 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 hotspots as they arise. 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, which would undermine infection control and contribute to further spread of the virus. 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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
Section 1 of article 5 of the Michigan Constitution of 1963 vests the executive power of the State of Michigan in the governor.
The Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq., provides that "[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state . . . the governor may proclaim a state of emergency and designate the area involved." MCL 10.31(1). The state of emergency ceases "upon declaration by the governor that the emergency no longer exists." MCL 10.31(2).
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. A state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31 et seq.
2. This order is effective immediately and continues through May 28, 2020 at 11:59 pm.
3. I will evaluate the continuing need for this order prior to its expiration.
3

Case 1:20-cv-00414-PLM-PJG ECF No. 10-14 filed 05/18/20 PageID.408 Page 5 of 5
4. Executive Order 2020-33 is rescinded and replaced. All previous orders that rested on Executive Order 2020-33 now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

Date: April 30, 2020 Time: 7:30 pm

GRETCHEN WHITMER GOVERNOR
By the Governor:
SECRETARY OF STATE

4

Case 1:20-cv-00414-PLM-PJG ECF No. 10-15 filed 05/18/20 PageID.409 Page 1 of 4
EXHIBIT 15

Case 1:20-cv-00414-PLM-PJG ECF No. 10-15 filed 05/18/20 PageID.410 Page 2 of 4
STATE OF MICHIGAN DEPARTMENT OF ATTORNEY GENERAL
P.O. BOX 30005 LANSING, MICHIGAN 48909
DANA NESSEL ATTORNEY GENERAL
May 4, 2020
Re: Executive Orders 2020-69 & 2020-70
Dear Colleagues:
I am writing to clarify that, regardless of what you may have heard, Executive Order 2020-69 (temporary restrictions on the use of places of public accommodation) and Executive Order 2020-70 (temporary requirement to suspend activities that are not necessary to sustain or protect life) are valid and enforceable.
As you are aware, on April 30, 2020, Governor Whitmer issued executive orders under the Emergency Management Act and the Emergency Powers of Governor Act regarding the declared states of disaster and emergency in Michigan. In Executive Order 2020-66, the Governor terminated the states of disaster and emergency that had been previously declared under the EMA, and then, in Executive Order 2020-68, reissued a declaration of states of disaster and emergency under the EMA. A third order, Executive Order 2020-67, reiterated that a state of emergency remains declared under the EPGA.
Subsequently, the Governor issued two orders that have been the subject of debate—Executive Order 2020-69 and Executive Order 2020-70. Executive Order 2020-69 rescinded Executive Order 2020-43, but again placed temporary restrictions on the use of places of public accommodation. Executive Order 2020-70 rescinded Executive Order 2020-59, but again temporarily suspended various activities that are not necessary to sustain or protect life.
After these most recent actions, numerous legislators, and other officials, began to publicly question the validity of the Governor’s declarations under the EMA, and consequently, the enforceability of Executive Order 2020-69 and Executive Order 2020-70. Such commentary has created confusion among law enforcement officials tasked with enforcing the orders. In light of this confusion, as the chief law enforcement officer for the State of Michigan, I carefully reviewed the issue and offer the following guidance.
Executive Order 2020-69 and Executive Order 2020-70 were issued by the Governor under both the EPGA and the EMA.

Case 1:20-cv-00414-PLM-PJG ECF No. 10-15 filed 05/18/20 PageID.411 Page 3 of 4
Page 2 May 4, 2020
The EPGA authorizes the Governor, following the declaration of an emergency, to:
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).]
The legislature has deemed this to be a “sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32. In addition, the provisions of the EPGA are to “be broadly construed to effectuate this purpose.” Id.
Here, as mentioned, the Governor has declared a state of emergency under the EPGA, and Executive Order 2020-69 and Executive Order 2020-70 were issued following that declaration. Therefore, to be valid under the EPGA, the orders must be “reasonable orders” that the governor “considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). In promulgating Executive Order 2020-69 and Executive Order 2020-70, the Governor specifically stated that she considered the restrictions imposed by those orders to be “reasonable and necessary” to mitigate the spread of COVID-19 and protect the public health across the State of Michigan. See Executive Order 2020-69, p 1-2; Executive Order 2020-70, p 1-2. I agree with that assessment.
COVID-19 has created a public health crisis of unprecedented gravity in our lifetime. Responding to, and stemming the spread of, the virus is paramount to all our well-being. To date, the most effective means to contain an infectious pandemic is to keep people away from each other. In promulgating Executive Order 2020-69 and Executive Order 2020-70, the Governor has done just that by placing restrictions on certain activities to limit social interactions. The absence of these restrictions would open gateways for the virus to reach every family and social network in every part of the State.
Consequently, the restrictions in Executive Order 2020-69 and Executive Order 2020-70 bear a real and substantial relationship to securing the public health, and they are reasonable. Further, although some restrictions on social interactions have been judiciously loosened by the Governor, the restrictions in Executive Order 2020-69 and Executive Order 2020-70 remain necessary to protect the lives of all Michiganders and bring the emergency created by COVID-19 in Michigan under control. As a result, Executive Order 2020-69 and Executive Order 2020-70 are valid and enforceable under the EPGA. Given that these orders are a valid exercise of the Governor’s authority pursuant to the EPGA, the speculation

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related to the EMA is of no moment and should not create any confusion as to the enforceability of these orders.
As always, we appreciate your continued assistance in the enforcement of Executive Orders 2020-69 and 2020-70.
Sincerely,
Dana Nessel Attorney General

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EXHIBIT 16

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MI H.F.A. B. An., H.B. 5496, 1/24/2002

Michigan House Fiscal Agency Legislative Analysis, House Bill 5496
January 24, 2002 Michigan House Fiscal Agency 91st Legislature, 2002 Regular Session
REVISIONS TO EMERGENCY MANAGEMENT ACT
House Bill 5496 (Substitute H-1)
First Analysis (1-24-02)
Sponsor: Rep. Gary A. Newell
Committee: Commerce
THE APPARENT PROBLEM:
Even before the tragic terrorist attacks of September 11, 2001, state emergency planners were working on a revision of the state's Emergency Management Act to address problems and concerns that had arisen with the act since its expansion in 1990. The act is designed to allow the state to deal with so-called disasters and emergencies. It spells out the duties of state and local governments and calls for the creation of emergency management plans at the state and local level. The events of September 11, however, put the dangers of terrorism at the forefront, and concentrated public attention on the need to deal with terrorist threats through the kinds of activities associated with declarations of a “heightened state of alert”. A number of provisions related to increased awareness of the threat of terrorism have been added to legislation intended to improve the operations of the state's emergency management system.
THE CONTENT OF THE BILL:
The bill would amend the Emergency Management Act in the following ways. • The governor would be authorized to declare a “heightened state of alert” when good cause existed to believe that terrorists were in the state or that acts of terrorism might be committed against the state or against a vital resource. Currently, the governor is able under the act to declare a state of disaster or a state of emergency. (See below.) • The bill would rewrite the provisions regarding immunity for those engaged in disaster relief in order to provide employees, agents, or representatives of the state or a political subdivision of the state, nongovernmental disaster relief force workers, and private or volunteer personnel engaged in disaster relief immunity from tort liability to the same extent as provided under the Governmental Immunity Act. (See below.) • The director of each department of state government, and of any agency required by the state emergency management plan to provide an annex to that plan, would serve as emergency management coordinator for his or her respective department or agency. Currently, the act requires the directors to employ or appoint a coordinator. Instead, the bill would allow each director to appoint or employ a designated representative as emergency management coordinator, provided that the representative acted for and at the direction of the director while acting as coordinator upon the activation of the state emergency operations center or the declaration of a state of disaster or emergency. • The bill would specify that for the purpose of states of disaster or emergency, the judicial branch of state government would be considered a department of state government and the chief justice would be considered the director of the department. • The bill would require a public college or university with a combined average population of faculty, students, and staff of 25,000 or more, including its satellite campuses, to appoint an emergency management coordinator. Public colleges and universities with a combined average population of 10,000 or more could (but would not be required to) appoint a coordinator.

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The act currently requires a county board of commissioners to appoint an emergency management coordinator (although up to three adjoining counties can combine to do this); requires a municipality with a population of 25,000 or more to appoint an emergency management coordinator or appoint the county coordinator to serve in this role; allows a municipality of 10,000 or more to appoint its own coordinator; and allows a municipality of less than 10,000 to appoint a coordinator who would serve at the direction of the county coordinator. The act further allows a county coordinator to be appointed coordinator for any municipality within the county and allows a municipal coordinator to be appointed county coordinator. • Currently, a state of disaster or state of emergency stays in effect for 14 days, and then the governor must declare it terminated or seek an extension for a specific number of days, which must be approved by the legislature. The bill would extend the time periods for a state of disaster or emergency to 28 days rather than 14 days. It also would specifically require any extension to be approved by resolution of both houses of the legislature. • The bill would provide that if the governor had issued a proclamation, executive order, or directive related to a state of disaster or a state of emergency, the director of the Department of State Police could, with the concurrence of the governor, amend the proclamation or directive by adding counties or municipalities or terminating the orders and restrictions as considered necessary. • The Division of Emergency Management within the Department of State Police would be authorized, in addition to its other powers, to propose and administer statewide mutual aid compacts and agreements. • The bill would specifically include mitigation, preparedness, response, and recovery among the emergency management activities to be included in emergency management plans and updates of those plans, and would require that emergency management plans and programs include local courts. • Currently, the act allows municipalities and counties to enter into mutual aid or reciprocal aid agreements or compacts with other counties, municipalities, public agencies, and private sector agencies. The bill would add federally recognized tribal nations. The compacts are limited to the exchange of personnel, equipment, and other resources in times of emergency or disaster. The bill would allow the compacts in cases of other serious threats to public health and safety. • Section 15 of the act, which created the Michigan Emergency Management Advisory Council, would be repealed. (This council had previously been eliminated by executive order in 1993.)
Heightened State of Alert. If a good cause existed to believe that terrorists were in the state or that acts of terrorism could be committed in the state or against a vital resource, the governor could by executive order or proclamation declare a heightened state of alert and subsequently exercise the same authority as for a state of disaster or state of emergency in an effort to safeguard the interests of the state or a vital resource, prevent or respond to acts of terrorism, or to help apprehend terrorists and those acting in concert with them. The governor could use the services, facilities, and resources available under a declared state of emergency or disaster. The heightened state of alert would continue until the governor found that the threat or danger had passed, the state of alert had been dealt with so that the conditions no longer existed, or until it had been in effect for 60 days. After 60 days, the governor would have to terminate the state of alert unless a request for an extension for a specific number of days was approved by resolution of both houses of the legislature.
It would be a misdemeanor for a person to willfully disobey or interfere with the implementation of a rule, order, or directive issued by the governor related to a heightened state of alert. The misdemeanor would be punishable by imprisonment for not more than 90 days or a fine of not more than $100 or both. The attorney general or a prosecuting attorney could bring a civil action for damages or equitable relief to enforce the provisions of the act and the orders, rules, or regulations made in conformity with the act.
Immunity in Disaster Relief. Under the bill, the state or a political subdivision of the state engaged in disaster relief activity would not be liable for the death of or injury to a person or persons, or for damage to property, as a result of that activity. The employees, agents, or representatives of the state or a political subdivision, and nongovernmental disaster relief force workers or private or volunteer personnel engaged in disaster relief activity, would be immune from tort liability under Section 7 of the Governmental Immunity Act. (Generally speaking, that act provides immunity except when the conduct of the officer, employee, member, or volunteer amounts to gross negligence that is the proximate cause of the injury or damage.) The term “disaster relief activity” would include training for or responding to an actual, impending, mock, or practice disaster or emergency.

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(This provision would replace the current immunity language in the act, which states that, except in cases of willful misconduct, gross negligence, or bad faith, employees, agents, or representatives of the state or a political subdivision, or any volunteer or auxiliary disaster relief worker or member of any agency engaged in disaster relief activity, complying with or reasonably attempting to comply with the act, or any order, promulgated rule, ordinance enacted by a political subdivisions relating to any precautionary measures, would not be liable for the death of or injury to persons, or for damage to property, as a result of that activity.)
Also, current language in the act applying exclusively to volunteer disaster relief workers or members of agencies engaged in disaster relief activity would be deleted. Instead the bill would say the state, any political subdivision of the state, or the employees, agents, or representatives of the state or a political subdivision would not be liable for personal injury or property damage by any person appointed or acting as a member of disaster relief forces.
MCL 30.403 et al.
FISCAL IMPLICATIONS:
The House Fiscal Agency reports that the bill would have no apparent substantial fiscal impact, although there could be some administrative costs associated with new responsibilities for state and local governments and for public universities. The agency also points out that to the extent that new penalties were applied, local correctional costs would increase and fine revenue earmarked for local libraries would increase. (HFA fiscal note dated 1-15-02)
ARGUMENTS:
For:
The bill would make a number of changes to the state's emergency management system in recognition of increased concerns about terrorism and to address problems and concerns that have arisen in administering the Emergency Management Act since its most recent revision in 1990. The bill is considered to be a component in the multi-bill legislative package on terrorism introduced since the terrorist attacks of September 11. Among the improvements to current law are the following.
• In recognition of the need to make the emergency system operative when officials believe the threat of terrorism is imminent, the governor would be authorized to declare a “heightened state of alert”, which could stay in effect for as long as 60 days. This would allow the governor and the emergency system to take precautions to protect the public and the state's critical infrastructure in advance of actual emergency or disaster. The governor would have the same powers and could use the same resources, facilities, and services, as are currently available under a state of emergency or state of disaster, in order to safeguard the state's interests and vital resources, prevent or respond to acts of terrorism, and apprehend terrorists. The state of alert could only be extended beyond 60 days with the approval, by resolution, of both houses of the state legislature. • The bill would provide the same immunity from tort liability to disaster relief workers as now exists for officers, employees, members, and volunteers of governmental agencies under the Governmental Immunity Act. • Currently, a state of emergency or disaster can stay in effect for only 14 days and then requires extension by the legislature. The bill would extend that time period to 28 days and would specifically require that both houses of the legislature pass a resolution in order to extend the time period. This recognizes that sometimes the legislature may not be in session during the time when a state of emergency or disaster needs extending. The longer time period makes this less likely. The act currently provides no specific procedure for the legislature to use in extending a time period; the bill makes it a clear that this must be done by resolution. • The bill would bring both the courts, under the direction of the Michigan Supreme Court, and large public universities into the emergency management system, to make sure that there is proper coordination. As a result, universities would be treated much like municipalities are currently treated, with the largest required to appoint emergency management coordinators, and the judicial branch would be treated like a state department (with the chief justice of the state supreme court treated like a department head). State emergency officials say that the courts want to be involved in emergency planning and that local units often consider universities to be state agencies and may not include them in local emergency planning. While universities likely

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already engage in emergency and disaster planning, it is important that this be done within the overall emergency planning system, so that different entities are not working at cross purposes. • Recently, Michigan joined an interstate compact that allows participating states to provide mutual assistance in case of emergencies and disasters, and the current state emergency law allows local units to enter into similar compacts. The bill, however, would specifically permit the Emergency Management Division of the Department of State Police to organize and administer statewide mutual aid compacts and agreements. Cooperation between state and local agencies is important in providing comprehensive and appropriately aligned emergency management services. • Department directors would be the emergency management coordinators for their departments. They then could appoint a designated representative to carry out the duties of that office. Currently, each department simply must appoint an emergency management coordinator to act as a liaison to the Department of State Police's emergency management division. The bill would ensure that there was a direct link between a department director and the duties of the department's office of emergency management coordinator and would eliminate any intermediate lines of authority. In times of emergencies, disasters, and states of alert, it is important that each department's coordinator act directly for and at the direction of the department director rather than having to go through a more complicated chain of command.
Against:
Some people have expressed misgivings about expanding the power of state agencies in the name of fighting terrorism or dealing with emergencies. This bill, for example, allows a heightened state of alert to remain in place for 60 days at the direction of the governor. That is a considerable length of time for the state government to be able to exercise emergency powers. While the legislature is given a role in extending such a state of alert, there is no provision allowing the legislature to shorten a state of alert or to override a governor's declaration. This might be a useful protection against abuses of executive power. (Moreover, the maximum duration, without legislative approval, of a state of emergency or a state of disaster would be increased from 14 days to 28 days. Similar concerns have been expressed about this.) In disasters, emergencies, and (with this bill) heightened states of alert, the government can suspend statutes and rules, control where people can travel, remove people from their homes and businesses, suspend the sale of alcohol and firearms, and engage in a variety of other activities. Questions have also been raised about the penalties that would be imposed during heightened states of alert for willfully disobeying or interfering with the implementation of a rule, order, or directive issued by the governor. Additionally, there are concerns about the impact of new requirements on public universities and questions about whether they have been consulted about these new requirements.
Response:
It is expected that a variety of concerns and issues will be addressed as the bill moves through the legislative process. It should be noted that the penalties in the bill relating to heightened states of alert are consistent with those currently in the act for states of emergency and disaster.
POSITIONS:
Representatives of the Department of State Police testified in support of the bill. (1-22-02)
Analyst: C. Couch
This analysis was prepared by nonpartisan House staff for use by House members in their deliberations, and does not constitute an official statement of legislative intent.

MI H.F.A. B. An., H.B. 5496, 1/24/2002
End of Document

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EXHIBIT 17

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EXHIBIT 18

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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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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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(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,
11

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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-00414-PLM-PJG ECF No. 10-18 filed 05/18/20 PageID.433 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-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.442 Page 1 of 50

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) Miller Johnson, Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517)335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

Christopher M. Allen Joshua O. Booth John G. Fedynsky Joseph T. Froehlich Assistant Attorneys General for Defendant Whitmer and Gordon Michigan Dep’t of Attorney General P.O. Box 30754, Lansing, MI 48909 (517) 335-7573 allenc28@michigan.gov Boothj2@michigan.gov fedynskyj@michigan.gov froehlichj1@michigan.gov

DEFENDANT ATTORNEY GENERAL DANA NESSEL’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.443 Page 2 of 50
TABLE OF CONTENTS
Page
Index of Authorities ......................................................................................................iii
Concise Statement of Issues Presented ....................................................................... ix
Controlling or Most Appropriate Authority.................................................................. x
Introduction ................................................................................................................... 1
Statement of Facts......................................................................................................... 3
Argument ....................................................................................................................... 9
I. This Court should deny Plaintiffs’ request for a preliminary injunction because the well-established factors all weigh in the Attorney General’s favor. ................................................................................................... 9
A. Plaintiffs’ request for preliminary injunctive relief is moot. .................. 9
B. Even if Plaintiffs’ request is not moot, Plaintiffs have not shown a strong likelihood of success on the merits of any of their claims. ..................................................................................................... 11
1. Executive Order 2020-17 and Executive Order 2020-92 were lawfully issued, remain valid under the EPGA, and were reasonable, and the Attorney General had the authority to oversee their enforcement (Counts I & II). ............ 11
a. This Court should exercise its discretion to decline either to exercise supplemental jurisdiction or to issue declaratory relief on the authority issue. ............... 12
b. A state court has already issued a final order answering the question of the Governor’s authority under both the EPGA and the EMA, and the Attorney General will abide by that opinion in exercising her enforcement duties. .................................. 15
c. The challenged executive orders were reasonable under the EPGA. ............................................................... 16
2. Executive Order 2020-17 was not vague (Count III). ................ 19
i

Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.444 Page 3 of 50 3. The challenged Executive Orders did not violate procedural or substantive due process........................................ 23 a. Procedural due process (Count IV)................................... 23 b. Substantive due process (Count V). ................................. 26 4. The challenged Executive Orders did not violate the dormant Commerce Clause. ........................................................ 30
C. Plaintiffs have not shown they will suffer irreparable harm absent an injunction............................................................................... 34
D. The balance of harms weighs in the Attorney General’s favor, and an injunction is contrary to the public interest. ............................ 36
Conclusion and Relief Requested ................................................................................ 38 Certificate of Service ......................................................................................... 38
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INDEX OF AUTHORITIES

Page

Cases
Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) .................................................................................... 34
Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir. 1992) .................................................................................... 35
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986) .................................................................................................. 31
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961) .................................................................................................. 24
Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535 (6th Cir. 2007) .................................................................................... 34
Collins v. Harker Heights, 503 U.S. 115 (1992) .................................................................................................. 27
Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902) ............................................................................................ 24, 33
County of Sacramento v. Lewis, 523 U.S. 833 (1998) .................................................................................................. 27
Dent v. West Virginia, 129 U.S. 114 (1889) .................................................................................................. 27
Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997) .................................................................................... 13
E. Kentucky Res. v. Fiscal Court of Magoffin Cty., Ky., 127 F.3d 532 (6th Cir. 1997) .................................................................................... 31
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) .................................................................................................... 13
Gilbert v. Homar, 520 U.S. 924 (1997) .................................................................................................. 24

iii

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Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596 (1982) .................................................................................................. 10
Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984) .................................................................................... 14
Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................................................................ 20, 22
Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016)........................................................................... 28
Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) .................................................................................................. 24
In re Abbott, 954 F.3d 772 (5th Cir. 2020) .................................................................................... 23
In re De Lorean Motor Co., 755 F.2d 1223 (6th Cir. 1985) .................................................................................... 9
Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (2010) ............................................................................................ 30, 31
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) ............................................................................................ passim
Johnson v. Cincinnati, 310 F.3d 484 (6th Cir. 2002) .................................................................................... 28
Leary v. Daeschner, 228 F.3d 729 (6th Cir. 2000) ...................................................................................... 9
Lewis v. BT Inv. Managers, Inc., 447 U.S. 27 (1980) .................................................................................................... 30
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .................................................................................................. 24
Martinko v. Whitmer, Michigan Court of Claims Docket No. 20-000062-MM)......................................... 13
Matthews v. Eldridge, 424 U.S. 319 (1976) .................................................................................................. 24
Mich. House and Senate v. Whitmer, Michigan Court of Claims Docket No. 20-000079-MZ ...................................... 14, 15
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Mich. United for Liberty v. Whitmer, Michigan Court of Claims Docket No. 20-000061-MZ ............................................ 13
Michigan Bell Telephone Co. v. Engler, 257 F.3d 587 (6th Cir 2001) ..................................................................................... 35
Morrissey v. Brewer, 408 U.S. 471 (1972) .................................................................................................. 24
Muhammad v. Paruk, 553 F. Supp 2d 893 (E.D. Mich. 2008)..................................................................... 15
Nat’l Rifle Ass’n of Am. v. Magaw, 132 F.3d 272 (6th Cir. 1997) .................................................................................... 11
NDSL, Inc. v. Patnoude, 914 F. Supp. 2d 885 (W.D. Mich. 2012)................................................................... 34
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................. 36
North Carolina v. Rice, 404 U.S. 244 (1971) .................................................................................................. 10
Ohio Republican Party v. Brunner, 543 F.3d 357 (6th Cir. 2008) .................................................................................... 11
Overstreet v. Lexington–Fayette Urban County Gov’t, 305 F.3d 566 (6th Cir. 2002) .................................................................................... 34
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) .................................................................................................. 31
Powell v. McCormack, 395 U.S. 486 (1969) .................................................................................................. 10
Public Service Comm’n of Utah v. Wycoff, 344 U.S. 237 (1952) .................................................................................................. 14
Saenz v. Roe, 526 U.S. 489 (1999) .................................................................................................. 27
S-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) .................................................................................................... 30
Scottsdale Ins. Co v. Flowers, 513 F.3d 546 (6th Cir. 2008) .................................................................................... 14
v

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Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963)...................................................................... 28, 30
Soap & Detergent Ass’n v. Natural Resources Comm, 330 N.W.2d 346 (Mich. 1982)..................................................................................... 7
Steffel v. Thompson, 415 U.S. 452 (1974) .................................................................................................. 20
Stenberg v. Cheker Oil Co., 573 F.2d 921 (6th Cir. 1978) ...................................................................................... 9
Tenn. Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442 (6th Cir. 2009) ...................................................................................... 9
Terminiello v. City of Chicago, 337 U.S. 1 (1949) ...................................................................................................... 17
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) .................................................................................... 20
United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966) ............................................................................................ 12, 13
Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) .................................................................................................. 20
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................................................. 27
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) .................................................................................................. 14
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................................... 34
Wolff v. McDonnell, 418 U.S. 539 (1974) .................................................................................................. 27
Statutes
1945 P.A. 302 ................................................................................................................. 3
1976 P.A. 390 ................................................................................................................. 4
28 U.S.C. § 1367(c)....................................................................................................... 12
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28 U.S.C. § 2201........................................................................................................... 14 Mich. Comp. Laws § 10.31............................................................................................. 3 Mich. Comp. Laws § 10.31 et seq................................................................................... 3 Mich. Comp. Laws § 10.31(2) ...................................................................................... 17 Mich. Comp. Laws § 30.401 et seq................................................................................. 3 Mich. Comp. Laws § 30.403(1) ...................................................................................... 4 Mich. Comp. Laws § 30.417(d) ................................................................................ 4, 16 Mich. Comp. Laws § 333.1101 et seq. ............................................................................ 3 Other Authorities 38 Am. Jur. 2d, Governor, § 4 ....................................................................................... 3 6A Moore’s Federal Practice ¶ 57.08[2] (1983) ........................................................... 15 EO 2020-17........................................................................................................... passim EO 2020-21..................................................................................................................... 7 EO 2020-33..................................................................................................................... 7 EO 2020-4....................................................................................................................... 7 EO 2020-42..................................................................................................................... 7 EO 2020-59..................................................................................................................... 7 EO 2020-66..................................................................................................................... 8 EO 2020-67..................................................................................................................... 8 EO 2020-68............................................................................................................... 8, 16 EO 2020-70..................................................................................................................... 7 EO 2020-77................................................................................................................. 2, 7 EO 2020-92........................................................................................................... passim EO 2020-96......................................................................................................... 7, 10, 11
vii

Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.450 Page 9 of 50 Constitutional Provisions U.S. Const. art. I, § 8, cl. 3........................................................................................... 30 U.S. Const. art. V, § 2 .................................................................................................... 7
viii

Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.451 Page 10 of 50 CONCISE STATEMENT OF ISSUES PRESENTED
1. Should this Court deny Plaintiffs’ request for a preliminary injunction where Plaintiffs have failed to satisfy the factors required to grant such extraordinary relief?
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Collins v. Harker Heights, 503 U.S. 115 (1992) Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902) Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984) Grayned v. City of Rockford, 408 U.S. 104 (1972) In re Abbott, 954 F.3d 772 (5th Cir. 2020) Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (2010) Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) NDSL, Inc. v. Patnoude, 914 F. Supp. 2d 885 (W.D. Mich. 2012) Overstreet v. Lexington–Fayette Urban County Gov’t, 305 F.3d 566 (6th Cir. 2002) Powell v. McCormack, 395 U.S. 486 (1969) United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)
x

Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.453 Page 12 of 50
INTRODUCTION These are unprecedent times. Michigan, like the rest of the world, is at war. But not with an enemy it knows. Not with an enemy it can see. Michigan is at war with an invisible foe. A foe so stealthy that it took us by surprise and, as the battle rages on, continues to surprise us with its pervasiveness and reach. A foe so wily that we do not know who has been exposed to it, who is doing the exposing, and how we will ultimately arm ourselves against its pernicious attacks. A foe so deadly that it has taken the lives of thousands of Michiganders and sickened tens of thousands more in mere months. While our foe has no face, it has a name: SARS-CoV-2, or COVID-19. This public health battle has presented many challenges, and our key leaders have risen to meet them. The Governor, through her broad authority under the Emergency Powers of the Governor Act, declared a statewide emergency and issued reasonable executive orders consistent with that authority. Most notably, she has ensured that Michiganders employ the best, if not only, available weapon in this deadly fight: social distancing. The Governor’s swift, decisive action has saved, and is saving, countless lives. And the Attorney General is working to enforce these important orders, exercising her constitutional role as the State’s chief law enforcement officer. Yet, on the heels of these victories, Plaintiffs ask this Court to preliminarily enjoin enforcement of the Governor’s Executive Order 2020-17 and Executive Order
1

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2020-921—neither of which remain in effect today. As a threshold matter, because the challenged Executive Orders are no longer effective, Plaintiffs’ request is moot.
But even looking past the mootness question, Plaintiffs are not entitled to relief. In support of the requested preliminary injunction, Plaintiffs present a litany of arguments, including that the Governor lacked the authority to issue Executive Order 2020-17 and Executive Order 2020-92, that the orders are unconstitutionally vague, that the orders are violative of procedural and substantive due process guarantees and the dormant Commerce Clause, and that Plaintiffs will suffer irreparable harm as a result of the orders. But, fatally, Plaintiffs fail to demonstrate either a strong likelihood of success on the merits of their claims or irreparable harm. The balance of harms also weighs in the Attorney General’s favor. The Governor had, and continues to have, the authority to issue Executive Orders under the Emergency Powers of the Governor Act, and Executive Orders 2020-17 and 2020-92 were constitutionally and statutorily valid. And throughout this war with COVID-19, the Attorney General has properly overseen enforcement of those valid orders in her role as Michigan’s chief law enforcement officer.
1 While the complaint references Executive Order 2020-77, Executive Order 2020-92 rescinded and replaced that order. Therefore, the Attorney General will focus on Executive Order 2020-92 in the remainder of this brief.
2

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STATEMENT OF FACTS Sources of Michigan gubernatorial authority during an emergency.
As a general rule, “[e]mergencies do not create power or authority in a governor, as the executive, but they may afford occasions for the exercise of powers already existing.” 38 Am. Jur. 2d, Governor, § 4. The Michigan Constitution does not mention any gubernatorial emergency powers. Therefore, although the Governor has inherent constitutional authority to protect the health and welfare of the People of Michigan, her authority during an emergency largely stems from one of two statutes: either the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31 et seq. (EPGA), or the Emergency Management Act, Mich. Comp. Laws § 30.401 et seq. (EMA).2
The Legislature enacts the EPGA. In 1945 in the midst of World War II, the Michigan Legislature enacted the
EPGA, which authorizes “the governor to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto. ”3 1945 P.A. 302; see also Mich. Comp. Laws § 10.31.
2 The Governor may also work with the Michigan Department of Health and Human Services to implement provisions of the Public Health Code. See Mich. Comp. Laws § 333.1101 et seq. 3 Since its promulgation, the EPGA has not been substantively amended. See 2006 P.A. 546 (containing minor, facial amendments).
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The Legislature enacts the EMA. Later, in 1976, the Legislature enacted the EMA, which, among other things,
is designed to “provide for planning, mitigation, response, and recovery from natural and human-made disaster within and outside this state.” 1976 P.A. 390. The EMA delegates the responsibility of “coping with dangers to this state or the people of this state presented by a disaster or emergency” to the Governor. Mich. Comp. Laws § 30.403(1). The EMA specifically references and recognizes the Governor’s broad powers under the EPGA and provides that the Governor may exercise those powers “independent of” the EMA. Mich. Comp. Laws § 30.417(d).
The world is hit with a pandemic: COVID-19. The coronavirus disease 2019 (COVID-19) is a severe acute respiratory
illness caused by SARS-CoV-2—a highly contagious virus that has quickly spread across the globe, killing tens of thousands and infecting millions more. The virus is thought to spread mainly through close, person-to-person contact4 via “respiratory droplets,”5 and experts say that coming within six feet of an infected person puts one at a high risk of contracting the disease.6 That is, when a person is within six
4Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 5 World Health Organization, Modes of transmission of virus causing COVID-19, available at https://www.who.int/news-room/commentaries/detail/modesoftransmission-of-virus-causing-covid-19-implications-for-ipcprecautionrecommendations. 6 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/socialdistancing.html.
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feet of an infected person, infected respiratory droplets can land in or around the healthy person’s mouth, nose, or eyes, and can even be inhaled into the lungs, thus infecting that person with the virus.7 Moreover, some people experience only mild symptoms of infection,8 and could spread the disease before they even realize they are infected. And, perhaps most troubling, some of those infected with COVID-19 are asymptomatic, yet still spread the virus.9
Social distancing is currently the only solution. The virus that causes 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 in humans.10 Accordingly, there is no approved vaccine or treatment. Since there is no way to prevent or treat COVID-19, the CDC has indicated, “[t]he best way to prevent illness is to avoid being exposed.”11 Therefore, experts recommend that the public engage in “social distancing,” that is, the
7 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 8 World Health Organization, Q & A, What are the Symptoms of Covid-19?, available at https://www.who.int/emergencies/diseases/novel-coronavirus2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses 9 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 10 CDC, Coronavirus Disease 2019 Basics, available at https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019Basics. 11 CDC, How to Protect Yourself and Others, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html
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practice of avoiding public spaces and limiting movement. A main objective of social distancing is “flattening the curve,” i.e., reducing the speed at which COVID-19 spreads. Without a flattening of the curve, the disease will spread too quickly, overwhelm our healthcare system, and wipe out our already scarce healthcare resources—including staff, medical equipment, and personal protective equipment.
As a result of these expert recommendations, jurisdictions across the globe have imposed sweeping measures to stem the viral tide that has overwhelmed healthcare systems worldwide. In the United States alone, all 50 states and the District of Columbia have had emergency orders in place to fight the war against COVID-19.
Michigan’s Governor responds to COVID-19. Since Michigan has been among the states hardest hit by COVID-19, the
Governor has instituted aggressive measures in an effort to address Michigan’s staggering statistics and protect the health and safety of Michigan residents. Despite these aggressive efforts, COVID-19 remains present and pervasive in Michigan: As of May 21, 2020, at least 53,510 have been confirmed infected and 5,129 have died—all in just over two months.12
The Governor’s containment efforts have included issuing various executive orders13 aimed at curbing the spread of COVID-19 as well as protecting
12 Michigan.gov, Coronavirus, available at: https://www.michigan.gov/coronavirus/ (last accessed May 22, 2020 at 9:00 AM). 13 An executive order is a directive handed down from the executive branch of government—in this case, the Governor—generally without input from the
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Michiganders from the economic, social, and other ramifications of the crisis. In her first executive order related to COVID-19, issued on March 10, 2020, the Governor declared a state of emergency under both the EMA and the EPGA. EO 2020-4. The March 10, 2020 declaration was rescinded and replaced by an expanded declaration of emergency and disaster under both the EMA and the EPGA on April 1, 2020. EO 2020-33.
In the interim, on March 20, 2020, the Governor issued Executive Order 2020-17, which was rescinded on May 21, 2020, and replaced by Executive Order 2020-96. EO 2020-17; EO 2020-96. Executive Order 2020-17 required the temporary postponement of all non-essential medical and dental procedures. EO 2020-17. Another order—Executive Order 2020-21, i.e., Michigan’s “Stay Home, Stay Safe” Order—issued on March 23, 2020, and later replaced by other orders with varying degrees of restrictiveness (including Executive Order 2020-77, Executive Order 2020-92, and, most recently, Executive Order 2020-96), imposed temporary restrictions on activities that are not necessary to sustain or protect life. See EO 2020-21; EO 2020-42; EO 2020-59; EO 2020-70; EO 2020-77; EO 2020-92; EO 2020-96.
legislative or judicial branches. See U.S. Const. art. V, § 2; Soap & Detergent Ass’n v. Natural Resources Comm, 330 N.W.2d 346 (Mich. 1982).
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The Governor requests extensions of the state of emergency under the EMA.
The state of emergency that the Governor declared on March 10, 2020, under the EMA was set to expire on April 7, 2020, so the Governor requested a 70-day extension from the Legislature. In response to this request, the Legislature extended the declaration under the EMA for 23 days, or until April 30, 2020.14
The Governor subsequently requested a second extension under the EMA, but on April 30, 2020—the date the legislatively-extended state of emergency was set to expire—the Legislature declined. Therefore, the Governor, after terminating the existing state of emergency under the EMA, see EO 2020-66, issued an executive order declaring a new 28-day state of emergency under that Act. EO 2020-68. Via a separate order, the Governor extended the previously declared state of emergency under the EPGA to May 28, 2020. EO 2020-67. In each order, the Governor explicitly stated that all executive orders that rested on the previously declared states of emergency now rested on Executive Order 2020-67 and Executive Order 2020-68. See EO 2020-67; EO 2020-68.
Plaintiffs file suit. On May 12, 2020, Plaintiffs filed the instant action, and, on May 18, 2020,
filed a motion for preliminary injunction.
14 See Senate Concurrent Resolution 2020-24, http://www.legislature.mi.gov/(S(id4mutkghmrbux0ojtc0br1c))/mileg.aspx.
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ARGUMENT I. This Court should deny Plaintiffs’ request for a preliminary
injunction because the well-established factors all weigh in the Attorney General’s favor. A preliminary injunction is an extraordinary remedy “designed to preserve the relative positions of the parties until a trial on the merits can be held.” Tenn. Scrap Recyclers Ass’n v. Bredesen, 556 F.3d 442, 447 (6th Cir. 2009). “When deciding whether to issue a preliminary injunction, the district court considers the following four factors: (1) whether the movant has a ‘strong’ likelihood of success on the merits; (2) whether the movant would otherwise suffer irreparable injury; (3) whether issuance of a preliminary injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of a preliminary injunction.” Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir. 2000). No one factor is dispositive; rather, the court must balance all four factors. In re De Lorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). The burden of persuasion is on the party seeking the injunctive relief. Stenberg v. Cheker Oil Co., 573 F.2d 921, 925 (6th Cir. 1978). Here, no factor is met; therefore, this Court should not issue a preliminary injunction.
A. Plaintiffs’ request for preliminary injunctive relief is moot. As a threshold matter, because the Governor has rescinded and replaced the Executive Orders at issue in this case with a new, less restrictive Executive Order that does not contain the restrictions that Plaintiffs now challenge, Plaintiffs’ claims are moot.
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Mootness is a question of jurisdiction, which “derives from the requirement of Article III of the [United States] Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quotations omitted). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
Here, on May 21, 2020, the Governor issued a new Executive Order— Executive Order 2020-96—which rescinds Executive Order 2020-17 and Executive Order 2020-92 and imposes significantly lessened restrictions as compared to its predecessors. (See Ex. 1, EO 2020-96.) Most notably, Executive Order 2020-96 does not impose any of the restrictions of Executive Order 2020-17 and Executive Order 2020-92 that Plaintiffs claim are invalid. Accordingly, the provider Plaintiffs may resume non-essential medical and dental procedures beginning May 29, 2020, at 11:59 pm. (Id. at § 19.) Similarly, Mr. Gulick may schedule and undergo his knee replacement surgery. (Id. at §§ 8(a)(6), 19.)
And, while there is an exception to the mootness rule for situations that are “capable of repetition, yet evading review,” e.g., Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 603 (1982), under the current circumstances, there are no facts suggesting that the conduct is capable of repetition—i.e., that the restrictions of Executive Orders 2020-17 and Executive Order 2020-92 will be reenacted. Moreover, any claim at this point that circumstances could change would be mere speculation, and therefore not ripe. See Nat’l Rifle Ass’n of Am. v. Magaw,
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132 F.3d 272, 284 (6th Cir. 1997) (“Ripeness becomes an issue when a case is anchored in future events that may not occur as anticipated, or at all.”).
Ultimately, given the enactment of Executive Order 2020-96, Plaintiffs are no longer constrained by the restrictions of Executive Order 2020-17 and Executive Order 2020-92 that they claim are invalid. As such, Plaintiffs’ claims are moot.
B. Even if Plaintiffs’ request is not moot, Plaintiffs have not shown a strong likelihood of success on the merits of any of their claims.
The Sixth Circuit has long held that, in determining whether to grant an injunction, the movant must show a “strong likelihood of success on the merits.” See e.g. Ohio Republican Party v. Brunner, 543 F.3d 357, 361 (6th Cir. 2008). Plaintiffs have not done so here.
1. Executive Order 2020-17 and Executive Order 2020-92 were lawfully issued, remain valid under the EPGA, and were reasonable, and the Attorney General had the authority to oversee their enforcement (Counts I & II).
Plaintiffs allege that Executive Order 2020-17 and Executive Order 2020-92 were unenforceable because the Governor lacked authority under either the EPGA or the EMA to issue or renew them after April 30, 2020. (R. 1, Compl., ¶¶ 84–91, PageID.22–23; R. 10, Br. Supp. PI, PageID.255–265.) On the merits, this Court should decline to exercise supplemental jurisdiction over this claim, or alternatively, decline to issue declaratory relief as to the validity of the EPGA or the EMA, as the well-established Grand Trunk factors counsel against such relief. In any event, because the Michigan Court of Claims recently ruled on these issues, the
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Attorney General, in carrying out her role as chief law enforcement officer, will follow that court’s opinion unless a higher court overturns it. Finally, Executive Order 2020-17 and Executive Order 2020-92 were reasonable and a valid exercise of authority under the EPGA.
a. This Court should exercise its discretion to decline either to exercise supplemental jurisdiction or to issue declaratory relief on the authority issue.
Plaintiffs first challenge the EPGA on its face, claiming it is open-ended and permits unbridled lawmaking by the Governor, with no temporal, durational, substantive, or legislative checks in violation of the nondelegation doctrine and the separation-of-powers clause of the Michigan Constitution. (R. 1, Compl. ¶ 106, PageID.26; R. 10, Br. Supp. PI, PageID.262–65.) Although not framed as such in the Complaint, this is a state-law claim over which the Court should decline to exercise supplemental jurisdiction.
Under 28 U.S.C. § 1367(c), the court can use its discretion to decline to exercise supplemental jurisdiction over a claim in several circumstances: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” Although it is a matter of discretion, “that power need not be exercised in every case in which it is found to exist.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). The purpose of joining claims in federal
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court is “judicial economy, convenience and fairness to litigants.” Id. Absent those criteria, “a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them.” Id. (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). “Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties.” Gibbs, 383 U.S. at 726.
When one of the statutory factors applies, the court should decline to exercise supplemental jurisdiction over the state claims. In Doe v. Sundquist, 106 F.3d 702, 704 (6th Cir. 1997), the plaintiffs sought a preliminary injunction to block the enforcement of a new state statute addressing the disclosure of adoption records. The complaint alleged both state and federal constitutional violations. The court declined to exercise supplemental jurisdiction since the issue was one of “peculiar relevance to the primary police functions of the state.” Id. at 707. The court determined that the state had an interest in “having the first opportunity to construe its own constitution and laws” and thus the court declined to exercise supplemental jurisdiction over the state law claim and dismissed the claims that relied on federal law.
Here, too, Michigan should have the first opportunity to construe its own laws. Two state-court judges have recently opined on the EPGA and EMA in the preliminary injunction context, (Mich. United for Liberty v. Whitmer, Michigan Court of Claims Docket No. 20-000061-MZ; Martinko v. Whitmer, Michigan Court of Claims Docket No. 20-000062-MM); and a third just did so on the merits, (Mich.
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House and Senate v. Whitmer, Michigan Court of Claims Docket No. 20-000079-MZ, attached as Ex. 2).
Even if this Court exercises supplemental jurisdiction over this claim, it should decline to issue the requested declaratory relief on the constitutionality of state statutes at issue. It is well-settled that the decision to exercise jurisdiction over a declaratory judgment action rests in the sound discretion of the court. Wilton v. Seven Falls Co., 515 U.S. 277, 286–288 (1995); Scottsdale Ins. Co v. Flowers, 513 F.3d 546, 544 (6th Cir. 2008). The Act provides that “[i]n a case of actual controversy within its jurisdiction . . . , any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201; Public Service Comm’n of Utah v. Wycoff, 344 U.S. 237 (1952).
The Sixth Circuit considers the following factors in determining whether it is appropriate for a district court to issue a declaratory ruling: (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata;” (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and, (5) whether there is an alternative remedy which is better or more effective. Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) (citing 6A Moore’s Federal Practice ¶
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57.08[2] at 57-37 (1983)); see also Muhammad v. Paruk, 553 F. Supp 2d 893 (E.D. Mich. 2008) (dismissing an action after weighing these factors).
Here, factors three, four, and five counsel against a grant of declaratory relief on this issue. When they filed this action, Plaintiffs understood that this issue had already been raised in at least three separate state-court cases. It was a race to see if this Court would opine on this issue before the state courts. And, again, given that this issue has already been decided by the Michigan Court of Claims and will undoubtedly work its way through the Michigan appellate courts, a federal court declaration would increase friction between state and federal courts. Also, the state courts are the appropriate courts to decide the issue of the validity of state laws. Letting the issue play itself out in Michigan courts is a more effective remedy than federal-court intervention.
b. A state court has already issued a final order answering the question of the Governor’s authority under both the EPGA and the EMA, and the Attorney General will abide by that opinion in exercising her enforcement duties.
If the Court chooses to address these issues, it is unnecessary for the Attorney General to brief them. The Michigan Court of Claims recently issued a final order that addressed these very issues. That court held that: (1) the EPGA is not an illegal delegation of authority to the Governor and therefore not a violation of the separation of powers doctrine, (Ex. 2, Mich. House & Senate Op. at 17); (2) the EPGA and EMA can be read together and “the fact that both statues apply to statewide emergencies [does not] mean that one act renders the other nugatory,”
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(id. at 14); (3) the Governor’s action in declaring a new state of emergency under the EMA, via Executive Order 2020-68, was “ultra vires,” (id. at 19); but (4) the EPGA and the EMA function independently, citing Mich. Comp. Laws § 30.417(d), (id. at 14–15). This is current Michigan law, and, as the State’s top lawyer and chief law enforcement officer, the Attorney General intends to abide by it unless it is overturned.
c. The challenged executive orders were reasonable under the EPGA.
Finally, Plaintiffs allege that the Governor has applied any authority granted to her under the EPGA arbitrarily, unreasonably and in violation of the Separation of Powers Clause and has failed to comport with the terms of the Act. (R. 1, Compl., ¶ 107, PageID.26; R. 10, Br. Supp. PI, PageID.266.) But that is inaccurate as to the challenged orders.
Executive Order 2020-17 temporarily restricted non-essential medical procedures, with the goal of mitigating the spread of COVID-19, protecting public health, providing essential protections, and ensuring the availability of healthcare resources—including staffing, medical equipment, and personal protective equipment. Executive Order 2020-92 temporarily suspended certain activities that were not necessary to sustain or protect life, and prohibited a person or entity from operating a business or conducting operations “that require[ed] workers to leave their homes or places of residence except to the extent that those workers [we]re
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necessary to sustain or protect life, [or] to conduct minimum basic operations.” EO 2020-92 § 5.
To be a valid exercise of the authority granted under the EPGA, Executive Order 2020-17 and Executive Order 2020-92 must have been “reasonable orders” that the Governor “consider[ed] necessary to protect life and property or to bring the emergency situation within the affected area under control.” Mich. Comp. Laws § 10.31(2). In promulgating each of these executive orders, the Governor specifically stated that she considered the restrictions imposed by those orders to be “reasonable and necessary” to mitigate the spread of COVID-19 and protect the public health across the State of Michigan. See, e.g., EO 2020-17 (R. 1, Compl., Ex. 4, PageID.69); EO 2020-92 (R. 10, Ex. 18, PageID.422.) She was correct in her assessment.
No one would dispute that these orders placed restrictions on liberties that would, in a “normal” context, be unreasonable. But these are not normal times. And while the Constitution does not disappear in the face of a public health crisis, neither is the Bill of Rights a “suicide pact.” See Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting). Instead, it is well-settled that, in times of public health crises, a state may restrict the rights of individuals in order to secure the safety of the community:
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).
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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. Such conditions are unreasonable only if they have “no real or substantial relation to those objects [of securing public health and safety], or [are], beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31.
COVID-19 has created a public health crisis of unprecedented gravity in our lifetime. Responding to, having the resources to respond to, and stemming the spread of, COVID-19 are paramount to all our well-being. And it is widely accepted that, in the absence of any vaccine, the most effective—if not only—way to combat this highly infectious virus and flatten the curve so our healthcare system and its resources are not overwhelmed, is through social distancing.
In promulgating Executive Order 2020-17 and Executive Order 2020-92, which placed restrictions on certain activities to conserve medical resources and limit social interactions, the Governor had done just that. Michigan was able to flatten its curve, dropping from third in the nation in terms of the number of COVID-19 cases, to seventh in the nation on May 22, 2020.15 The absence of the restrictions imposed in both of the challenged executive orders would have opened gateways for the virus to reach every family and social network in every part of the
15 CNN, Tracking Covid-19 cases in the US, available at: https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/ (last accessed May 22, 2020 at 9:15 AM).
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State, leading to a significant spike in the number of cases and an overburdening of our healthcare system. And the absence of the restrictions imposed in Executive Order 2020-17 specifically would have led to shortages of medical supplies and equipment necessary to fight this virus—resources that were (and are) already in short supply.
Accordingly, Executive Order 2020-17 and Executive Order 2020-92 bore a real and substantial relationship to securing the public health and safety. Given the challenging circumstances presented by COVID-19, the Governor validly exercised the powers delegated in the EPGA to issue reasonable executive orders aimed at mitigating its spread and ensuring the health and safety of the People of Michigan. Therefore, the Executive Orders were reasonable, valid, and enforceable under the EPGA.
In sum, Plaintiffs have not demonstrated a likelihood of success on the merits of their claims related to the EPGA.
2. Executive Order 2020-17 was not vague (Count III). Plaintiffs allege that Executive Order 2020-17 did not give any person of ordinary intelligence a reasonable opportunity to know what is prohibited and to be able to act accordingly. (R. 1, Compl., ¶ 116, PageID.28; R. 10, Br. Supp. PI, PageID.266–69.) They claim that the assessment of which medical treatments are essential was largely left to the discretion of healthcare providers, but that there were no standards or metrics by which healthcare providers could ensure that their
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decisions did not expose them to criminal liability. (Id.) This argument is unavailing.
As an initial matter, the United States Supreme Court has suggested that federal courts should not opine on whether a state statute is vague until the highest state court has had an opportunity to give the statute a narrowing or clarifying construction. See Steffel v. Thompson, 415 U.S. 452, 469 (1974). The Michigan Supreme Court has not yet had that opportunity with respect to the challenged executive orders. In any event, the Executive Order 2020-17 was not vague.
A law is void for vagueness if its prohibitive terms are not clearly defined such that a person of ordinary intelligence can readily identify the applicable standard for inclusion and exclusion. United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 358–59 (6th Cir. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Significantly, “the degree of vagueness that the Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment.” United Food & Commercial Workers Union, 163 F.3d at 498. The United States Supreme Court has also explained that “the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry.” Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). To succeed, Plaintiffs must demonstrate that the law is impermissibly vague in all of its applications. They have not made that showing.
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Executive Order 2020-17 gave a medical provider fair notice of what was prohibited and thus was not vague in the context of the COVID-19 pandemic. The Order specifically defined a “non-essential procedure” as one that was “not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” EO 2020-17. The Governor gave discretion to medical providers to determine a what was non-essential and what constituted a medical emergency for each individual patient because providers were best suited to determine what was medically necessary. Medicine is a regulated profession, and doctors have extensive training in determining a what constitutes medical emergency and what steps are necessary to preserve a patient’s health. The medical Hippocratic Oath is similarly undefined, yet medical professionals understand what “help the sick” and “abstain from all intentional wrong-doing and harm” mean in any situation.
Further, the Order enumerated procedures that must have been postponed, including joint replacement, bariatric surgery, and cosmetic surgery (except for emergency or trauma-related surgery where postponing would significantly impact the health or safety of the patient). It also indicated procedures that should have been excluded from postponement, such as surgeries related to advanced cardiovascular disease that would prolong life, oncological testing and treatment, pregnancy-related visits, labor and delivery, organ transplants, and procedures related to dialysis. Finally, the order detailed the procedures that must have been excluded from postponement, including emergency or trauma-related procedures,
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where delaying would significantly impact the health and welfare of the patient. In this way, the Order gave medical personnel examples on a continuum from those that must have been postponed to those that must not have been postponed, leaving the professional to determine where each patient was uniquely situated. Thus, the term “non-essential” procedure was limited by illustrative examples so there was not unfettered discretion, yet still allowed a degree of latitude for doctors in determining what this meant for each patient.
Finally, the postponement of non-essential procedures should be viewed in the context of what was the stated purpose of Executive Order 2020-17: “To mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources.” EO 2020-17. This purpose, combined with the examples of non-essential procedures, provided an objective framework for determining the definition of the term “non-essential procedures,” much like the preamble and school context the court considered in Grayned v. City of Rockford, 408 U.S. 104 (1972). In Grayned, the plaintiff had alleged that an anti-noise ordinance was unconstitutionally vague as it prohibited noise that “disturb[ed] or tend[ed] to disturb” school sessions. Id. at 108. Even though enforcing the statute required some degree of police judgment, the Court determined that it was not unconstitutionally vague, especially when considering the ordinance’s preamble and the school context in which the statute was written. Id. at 110–11. Likewise, here, the purpose of the executive order gave both medical personnel and those enforcing the order guidance and parameters.
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The Governor recognized that medical providers were intimately aware of their patients’ health and what was needed to thrive, and rightly gave them the necessary discretion rather than mandating a one-size-fits-all approach and an inflexible definition of non-essential procedures that would rob those providers of that discretion. As such, Executive Order 2020-17 was not unconstitutionally vague, and Plaintiffs have failed to demonstrate a likelihood of success on their void-for-vagueness claim.
3. The challenged Executive Orders did not violate procedural or substantive due process.
Plaintiffs’ claims also fail under both procedural and substantive due process. a. Procedural due process (Count IV).
Plaintiffs allege that Executive Order 2020-17 provides no procedure or process through which to challenge the determination that certain medical treatments—such as bariatric surgery or joint replacement—are non-essential. (R. 1, Compl., ¶ 132, PageID.32.) They argue that Executive Order 2020-92 provides no process through which to challenge a business’s designation as non-critical infrastructure, does not outline the criteria that would serve as a reasonable guide to such a determination, and provides no pre-deprivation or post-deprivation process. (Id. at ¶ 131, PageID.31.) Plaintiffs’ arguments fall short.
In attempting to combat a public health emergency, “[a]ll constitutional rights may be reasonably restricted.” In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (citing Jacobson, 197 U.S. at 11); see also Compagnie Francaise de Navigation a
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Vapeur v. La. State Bd. of Health, 186 U.S. 380, 393 (1902) (upholding state quarantine of passengers on boat even when all were healthy). Indeed, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson, 197 U.S. at 27. And the health and safety of the public is a “paramount governmental interest which justifies summary administrative action.” Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 300 (1981).
Relevant here, procedural due process is “not a technical conception with a fixed content unrelated to time, place and circumstance.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)). Rather, it is a flexible standard in which the court analyzes government and private interests. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Government interests include the administrative burden the additional procedural requirements would impose on the state. Matthews v. Eldridge, 424 U.S. 319, 332 (1976). Other considerations include the length of time involved and the finality of the deprivation. Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982).
In this case, the pandemic sets the stage for any process due to the citizens of the state of Michigan. COVID-19 hit Michigan quickly and furiously and did not allow for extended deliberation on how to best preserve individual liberties. In addressing this emergency, the Governor was expeditious and crafted a series of Executive Orders aimed at advancing the State’s interest in saving lives.
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Specifically, the purpose of all of the Executive Orders is “[t]o mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources.” E.g., EO 2020-92. And the effect of the Stay Home, Stay Safe orders is to mitigate the spread of the deadly virus and to save lives.
The challenged Executive Orders and the restriction on Plaintiffs were temporary. The Orders were in force until they were no longer necessary. There was no permanent taking and the Executive Orders did not result in an erroneous deprivation of liberty.
The Executive Orders were also narrowly tailored. They detailed who constituted critical infrastructure workers who could leave their homes for narrow purposes in order to keep the economy running. With each subsequent Executive Order that she enacts, the Governor evaluates the science, the number of cases, and the availability of medical supplies and medical professionals, in order to determine how much to relax the restrictions to continue saving lives while allowing for more businesses to open.
Under these circumstances, it would be unworkable for the State to provide an individual hearing for every citizen who wanted to challenge either their particular designation as critical infrastructure workers or a particular operation as non-essential.
Plaintiffs’ private interests pale in comparison. Mr. Gulick experienced a temporary delay in surgery that was not essential to his survival. If it had been
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necessary, his doctor could have completed the surgery in accordance with the medical oath he took to do all that is necessary to save a life. Indeed, Executive Order 2020-17 did not prevent surgery if it was medically necessary. In fact, the Executive Order provided an exception “for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient.” EO 2020-17. Further, all Plaintiffs’ financial loss from the restriction does not compare to the thousands of people who could have lost their lives but for the Governor’s swift action. The Executive Orders were necessary and a proper attempt to contain the virus.
On balance, the Governor’s stated purpose in implementing the Executive Orders and the very real possibility of the loss of more lives far outweighs the Plaintiffs’ procedural-due-process concerns. The inconvenience to Plaintiffs in postponing a non-essential surgery and loss of income are temporary losses. Had the Governor not acted swiftly in enacting the Executive Orders and keeping everyone in their homes, the results could be far reaching to society and include an immeasurable number of fatalities. As such, Plaintiffs have not demonstrated a likelihood of success on their procedural due process claim.
b. Substantive due process (Count V). Plaintiffs allege that Executive Orders 2020-17 and 2020-92 violated the right to intrastate travel and the right to practice one’s chosen profession. (R. 1, Compl., ¶ 136, PageID.32.) They assert that strict scrutiny applies. (Id. at ¶ 138, PageID.32–33.) In their application of strict scrutiny, Plaintiffs argue that: (1) once
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the curve has been flattened, the protection of public health in the face of a global pandemic is not compelling state interest, and (2) the government has made no attempt to narrowly tailor Executive Order 2020-17 or Executive Order 2020-92 to serve that interest. (Id. at ¶ 139, PageID.33.) Plaintiffs are mistaken.
The hallmark of substantive due process is to protect an individual against “arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (citing Dent v. West Virginia, 129 U.S. 114 (1889)) (emphasis added). The threshold question is “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). When a statute is enacted to protect the public safety, review is only available if it “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.” Jacobson, 197 U.S. at 31.
In engaging in a substantive due process analysis, the court determines whether there is a fundamental liberty at stake, and if so, the government can infringe on that liberty if there is a “compelling state interest” that is “narrowly tailored.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The U.S. Supreme Court, however, has been “reluctant to expand the concept of substantive due process.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992).
While the Supreme Court has recognized interstate travel as a fundamental right, Saenz v. Roe, 526 U.S. 489, 498 (1999), it has not yet determined whether the Constitution protects a limited right of intrastate travel, Johnson v. Cincinnati, 310
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F.3d 484, 496–97 (6th Cir. 2002). The Sixth Circuit is one of a few circuits that have acknowledged a right to intrastate travel as fundamental. Id. at 498.
But even when there are personal liberties violated, a government’s quarantine or restricting one’s movement can be constitutionally reasonable in a public health context. See Hickox v. Christie, 205 F. Supp. 3d 579 (D.N.J. 2016); Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963); Jacobson, 197 U.S. at 11. For example, in Hickox v. Christie, 205 F. Supp. 3d 579, 592 (D.N.J. 2016), a case Plaintiffs’ cite in their brief, a health care worker was quarantined by the government after returning from Africa where the Ebola virus was prevalent. The court determined that the authorities’ response in holding her was reasonable. Id. at 592–94. It noted the seriousness of the disease and the fact that there was no vaccine or medicine at the time to prevent or cure it. Id. The court suggested that “given the important public interests at stake, the cases give the authorities a great deal of leeway to detain persons who may turn out not to have been sick at all.” Id. at 593; see also Siegel, 219 F. Supp. at 790–91 (holding that an order requiring quarantining for the length of the smallpox incubation was justified).
Here, as in Hickox, there are compelling government interests at stake: controlling the pandemic and saving lives.
Plaintiffs argue that there was no compelling government interest since the curve of the pandemic had flattened. But that argument ignores science and medical knowledge. It has been widely publicized that, even if the curve flattens temporarily, the public is not out of danger since the virus has not been eradicated.
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COVID-19 is extremely contagious, and even though social distancing helped flatten the curve, the virus will be ever-present unless and until the medical profession finds a cure or a vaccine. Thus, the government’s interest is both compelling and continuous.
The Executive Orders were narrowly tailored to carry out that compelling interest in at least three ways. First, they were narrowly tailored to prevent the spread of COVID-19. Executive Order 2020-92 separated the various industries based on the essential nature of the workers. While the Governor adopted the federal CISA guidelines regarding critical infrastructure workers, her failure to adopt subsequent iterations of the guidelines is of no merit. There is no requirement to do so, and, in fact, it is less confusing for the public to have one iteration of the definition of critical infrastructure workers than to have that definition change over time. As time went on, the Governor issued subsequent Executive Orders that loosened restrictions and carefully determined the categories of workers that were less likely to come into close contact.
Second, Executive Order 2020-17 was narrowly tailored to preserve precious medical resources that have been in short supply since the COVID crisis began.
Third, the Executive Orders provided the least restrictive way to control the spread of the virus while attempting to keep the economy afloat. The most restrictive method would have been to maintain a complete economic shutdown. Instead, the challenged Executive Orders provide for some level of autonomy under some circumstances, depending on whether the individuals were critical
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infrastructure workers and essential to the economy. And notably, with each subsequent Executive Order, the Governor released some restrictions, allowing for more autonomy for community members. Under these difficult circumstances, the Governor’s orders were necessary, tailored narrowly, and responded to “a terrible context [where] the consequences of mistaken indulgence can be irretrievably tragic.” Siegel, 219 F. Supp. at 791.789.
In sum, Plaintiffs have failed to establish a likelihood of success on the merits of their substantive due process claim.
4. The challenged Executive Orders did not violate the dormant Commerce Clause.
Lastly, Plaintiffs argue that Executive Order 2020-17 and Executive Order 2020-92 violated the dormant Commerce Clause. (R. 10, PageID.272–73.) Not so.
Under the Commerce Clause of the United States Constitution, Congress is granted the power “[t]o regulate Commerce with foreign Nations, and among the several States.” U.S. Const. art. I, § 8, cl. 3. While the Clause is framed as an affirmative grant of power to Congress, it has also “long been recognized as a selfexecuting limitation on the power of the States to enact laws imposing substantial burdens on such commerce.” S-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984). This “dormant” form of the Commerce Clause “limits the power of states ‘to erect barriers against interstate trade.’ ” Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 644 (2010) (citing Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 (1980)).
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In evaluating a dormant Commerce Clause challenge to a state law, courts engage in a two-step inquiry. Id. First, a court must determine whether “a state statute directly regulates or discriminates against interstate commerce, or [whether] its effect is to favor in-state economic interests over out-of-state interests.” Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573, 579 (1986). If so, the statute is “generally struck down . . . without further inquiry.” Id. If not, that is, if the “statute has only indirect effects on interstate commerce and regulates evenhandedly,” id., a court must apply the balancing test enumerated in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Int’l Dairy Foods Ass’n, 622 F.3d at 644. Under this balancing test, a court must uphold “a state regulation unless the burden it imposes upon interstate commerce is ‘clearly excessive in relation to the putative local benefits.’ ” Id. (citing Pike, 397 U.S. at 142). The party challenging the statute bears the burden of proving that the burdens placed on interstate commerce outweigh the benefits that accrue to intrastate commerce. E. Kentucky Res. v. Fiscal Court of Magoffin Cty., Ky., 127 F.3d 532, 545 (6th Cir. 1997).
Here, the first prong of the dormant Commerce Clause analysis is not at issue: Plaintiffs make no claim that the challenged executive orders directly regulated or discriminated against interstate commerce or had the effect of favoring in-state economic interests over out-of-state interests.16 Rather, the thrust of
16 In fact, Plaintiffs seemingly admit that the executive orders had only “an incidental effect on interstate commerce.” (R. 10, Br. Supp. PI, PageID.272.)
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Plaintiffs’ argument under the dormant Commerce Clause is directed at the second prong; specifically, that the burdens imposed by the challenged Executive Orders outweighed their public-health benefit. (R. 1, Compl., ¶¶ 149–150, PageID.35; R. 10, PageID.272–73.) But Plaintiffs fail to make any such showing, and therefore are unlikely to succeed on the merits of this claim.
To be sure, the economic burden that Plaintiffs faced under the challenged Executive Orders was significant. But, in relation to the putative local benefits of those orders—which were far greater than Plaintiffs would have this Court believe, and which were not illusory as Plaintiffs claim17—that burden was not clearly excessive. In fact, the balance tips sharply in favor of the benefits that accrued from the challenged Executive Orders.
As demonstrated in Sections I.B.1.c. and I.B.3. above, the challenged Executive Orders were highly effective in achieving their stated public-health goals. Both orders slowed the spread of COVID-19 across the State of Michigan, resulting in a flattening of the curve. Additionally, Executive Order 2020-17 preserved healthcare resources, including highly-sought-after personal protective equipment, to allow Michigan’s healthcare system to stand ready to treat an influx of cases.
Moreover, while Plaintiffs argue that less burdensome means were available to available to achieve the same ends, “[i]t is no part of the function of a court” to decide which measures are “likely to be the most effective for the protection of the
17 Plaintiffs assert that it is for the State to show that its “claimed local benefits” are not illusory. (R. 10, PageID.273.) However, this improperly attempts to shift the burden of proof to Defendants.
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public against disease.” Jacobson, 197 U.S. at, 30. Indeed, the Supreme Court has long recognized that the enactment of measures designed to protect the public health, including measures aimed at the prevention of the spread of disease such as those at issue here, rests at the heart of a State’s police power. Id. at 24–25. And, particularly relevant here, over a century ago, the Supreme Court recognized that, “until Congress has exercised its power on the subject, . . . state quarantine laws and state laws for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce. . . .” Compagnie Francaise de Navigation a Vapeur, 186 U.S. at 387 (1902).18 Thus, under established Supreme Court law, the Commerce Clause is not implicated by state laws aimed at controlling the spread of disease.
In sum, because Plaintiffs have failed to demonstrate that the burdens of the challenged executive orders were clearly excessive in relation to their public-health benefit, Plaintiffs have failed to demonstrate a likelihood of success on the merits of their dormant Commerce Clause claim.
18 While this case was decided prior to current dormant commerce clause jurisprudence, it remains good law and has been cited with favor in recent cases related to the COVID-19 crisis from other jurisdictions. See In re Abbott, 954 F.3d 772, 783–84 (5th Cir. 2020); Wisc. Legislature v. Palm, __ N.W.2d __, No. 2020AP765-OA, 2020 WL 2465677, at *43 (Wisc. May 13, 2020).
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C. Plaintiffs have not shown they will suffer irreparable harm absent an injunction.
In considering whether to issue an injunction, courts must consider whether the plaintiff will suffer irreparable injury without the injunction. Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007). “To demonstrate irreparable harm, the plaintiffs must show that . . . they will suffer actual and imminent harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). That is, a plaintiff seeking preliminary injunctive relief must do more than show that irreparable harm is merely possible; they must “demonstrate that it is likely in the absence of an injunction.” NDSL, Inc. v. Patnoude, 914 F. Supp. 2d 885, 899 (W.D. Mich. 2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). And harm is not irreparable if it can be fully compensated by monetary damages. Overstreet v. Lexington–Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).
As an initial matter, because the challenged Executive Orders are no longer in force, Plaintiffs will suffer no harm absent an injunction—let alone imminent and irreparable harm. That is, the provider Plaintiffs may now begin conducting medical procedures previously deemed non-essential. And Mr. Gulick can schedule and undergo his knee replacement surgery.
Regardless, the injuries that Plaintiffs claim to have suffered are not irreparable. The provider Plaintiffs have not demonstrated that economic harm is likely—only that it is possible. Nor have they shown that their alleged harm cannot
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be fully compensated by monetary damages. For example, they have not demonstrated that their business will be threatened by insolvency, as opposed to merely taking a temporary financial hit, which losses would be calculable. And, as was true with the plaintiffs in Michigan Bell Telephone Co. v. Engler, 257 F.3d 587, 599 (6th Cir 2001), where the court recognized that the telephone company could recoup its losses by raising rates, provider Plaintiffs can recoup their financial losses now that the restrictions imposed by Executive Order 2020-17 and Executive Order 2020-92 are eased. There is no reason to believe that patients who were previously postponed will not now reschedule their procedures.
The provider Plaintiffs also claim loss of goodwill as an irreparable harm. Id. While loss of customer goodwill can be irreparable harm, Basicomputer Corp. v. Scott, 973 F.2d 507, 512 (6th Cir. 1992) (internal citation omitted), here it is unlikely that Michigan citizens—most of whom are well aware of the various executive orders—will have any ill will toward businesses that were required to comply with executive orders and that did everything possible to keep Michiganders safe during the COVID-19 crisis. And there is no reason to believe, as the provider Plaintiffs speculate (R. 10, Br, Supp. PI, PageID.274), that future customers will be deterred from using their services, since they were not singled out in the prohibition against non-essential medical procedures. All similar businesses faced the same restrictions under the challenged executive orders. Even those individuals who were unhappy with Executive Order 2020-17 and Executive Order 2020-92 are
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likely to blame the Governor, not the businesses who were compelled to comply with her orders.
As to Mr. Gulick, he claims he could not have his scheduled knee replacement, could not receive follow up care for his previous knee replacement, is in “excruciating pain,” is unable to “get prescription pain medication until he can be seen on June 11, and has had to reduce his work hours by 80%.” (R. 10, Br. Supp. PI, PageID.245.) The challenged orders did not prohibit his licensed medical providers from taking action to “address [his] medical emergency or to preserv[e] [his] health and safety.” (R. 1, Compl., Ex. 4, EO 2020-17 § 1, PageID.69.) And his reduced hours can be compensated by money damages.
Finally, as outlined above, contrary to their assertions, Plaintiffs cannot demonstrate a substantial likelihood of success on their claims that their constitutional rights will imminently be violated. (R. 10, Br. Supp. PI, PageID.274.) This factor therefore weighs against a preliminary injunction.
D. The balance of harms weighs in the Attorney General’s favor, and an injunction is contrary to the public interest.
The remaining factors, “harm to the opposing party and weighing the public interest, merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
Here, while there will be no irreparable harm to Plaintiffs absent an injunction, the issuance of an injunction would irreparably harm the State and its citizens. The Governor took the bold action she took in Executive Order 2020-17
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Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.489 Page 48 of 50 and Executive Order 2020-92 order to save lives in Michigan. And it is working. The number of COVID-19 cases and deaths have continued to drop dramatically. An injunction at this time threatens to undue that success. From the perspective of Attorney General Nessel as the State’s chief law enforcement officer, an injunction would prohibit her from enforcing these important restrictions.
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CONCLUSION AND RELIEF REQUESTED

For the reasons stated above, Defendant Attorney General Dana respectfully

requests that this Honorable Court deny Plaintiffs ‘request for a preliminary

injunction enjoining enforcement of the Governor’s Executive Order 2020-17 and

Executive Order 2020-92.

Respectfully submitted,

Dana Nessel Attorney General

Dated: May 22, 2020

/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

Certificate of Service
I hereby certify that on May 22, 2020, I electronically filed this Defendant
Attorney General Dana Nessel’s Response to Plaintiffs’ Motion for Preliminary
Injunction with the Clerk of the Court using the ECF system which will send
notification of such filing.
/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General

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Case 1:20-cv-00414-PLM-PJG ECF No. 15 filed 05/22/20 PageID.491 Page 50 of 50 Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov
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Case 1:20-cv-00414-PLM-PJG ECF No. 15-1 filed 05/22/20 PageID.492 Page 1 of 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

Defendants.

INDEX OF EXHIBITS FOR
DEFENDANT ATTORNEY GENERAL DANA NESSEL’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
1. Executive Order 2020-96
2. Michigan House and Senate v. Whitmer, Court of Claims No. 20-79-MZ, Opinion and Order

Case 1:20-cv-00414-PLM-PJG ECF No. 15-2 filed 05/22/20 PageID.493 Page 1 of 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT 1 OF
DEFENDANT ATTORNEY GENERAL DANA NESSEL’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
1. Executive Order 2020-96

Case 1:20-cv-00414-PLM-PJG ECF No. 15-2 filed 05/22/20 PageID.494 Page 2 of 14
EXECUTIVE ORDER
No. 2020-96
Temporary requirement to suspend certain activities that are not necessary to sustain or protect life
Rescission of Executive Orders 2020-17, 2020-34, and 2020-92
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 emergency, “the governor may promulgate reasonable orders, rules, and regulations as he
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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, 202077, and 2020-92, 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 these executive orders have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 20, 2020, Michigan reported 53,009 confirmed cases and 5,060 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.
With this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-92, while also allowing gatherings of no more than ten people statewide, effective immediately, and permitting retailers and motor vehicle dealerships to see customers by appointment, beginning on May 26, 2020. In addition, because our healthcare capacity has improved with respect to personal protective equipment, available beds, personnel, ventilators, and necessary supplies, I find it reasonable to rescind Executive Orders 2020-17 and 2020-34, which required health-care and veterinary facilities to implement plans to postpone some medical and dental procedures. Those rescissions will take effect on May 29.
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 2020-97 and any orders that may follow from 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 2020-97 and any orders that may follow from 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.
(b) They are performed by workers who are permitted to resume work under section 11 of this order.
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(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 2020-97 and any orders that may follow from 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 for themselves or a household or family member.
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(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 go to a motor vehicle dealership showroom by appointment, as permitted under section 11(p) of this order.
(C) Individuals may leave the home to have a bicycle repaired or maintained.
(D) 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.
(20) To go to a retail store by appointment, as permitted under section 11(q) of this order.
(21) To attend a social gathering of no more than 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. 7

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(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.
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
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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.
(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 until May 26, 2020 at 12:01 am.
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.
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(d) Workers for moving or storage operations.
(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 2020-97 and any orders that may follow from 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, 2020, workers necessary to perform retail activities. For purposes of this order, retail activities are defined:
(1) As the selling of goods and the rendering of services incidental to the sale of the goods (e.g., any packaging and processing to allow for or facilitate the sale and delivery of the goods).
(2) To exclude those places of public accommodation that are closed under Executive Order 2020-69 and any orders that may follow from it.
(m)For Regions 6 and 8, beginning at 12:01 am on May 22, 2020, workers who work
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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, 2020, workers in restaurants or bars, subject to the capacity constraints and workplace standards described in Executive Order 2020-97. 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. For restaurants and bars subject to this subsection, this subsection supersedes the limitations placed on those restaurants and bars by Executive Order 2020-69 and any order that may follow from it.
(o) Workers necessary to prepare a workplace to follow the workplace standards described in Executive Order 2020-97 and to otherwise ready the workplace for reopening.
(p) Beginning at 12:01 am on May 26, 2020, workers at motor vehicle dealerships, provided that showrooms are open only by appointment.
(q) Beginning at 12:01 am on May 26, 2020, workers necessary to perform retail activities by appointment, provided that the store is limited to 10 customers at any one time. For purposes of this order, retail activities are defined:
(1) As the selling of goods and the rendering of services incidental to the sale of the goods (e.g., any packaging and processing to allow for or facilitate the sale and delivery of the goods).
(2) To exclude those places of public accommodation that are closed under Executive Order 2020-69 and any orders that may follow from it.
(r) 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), section 11(c), or section 11(q) 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.
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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. An individual may also remove a face covering 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, 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. Except as otherwise expressly stated in this order, 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 22 of this order for allowing religious worship at such place. No individual is subject to penalty under section 22 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
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continues through May 28, 2020 at 11:59 pm.
19. Executive Order 2020-17, which imposed temporary requirements regarding the postponement of non-essential medical and dental procedures, is rescinded as of May 28, 2020 at 11:59 pm. Executive Order 2020-34, which imposed temporary requirements regarding the postponement of veterinary services, is rescinded as of May 28, 2020 at 11:59 pm. Outpatient health-care facilities, including veterinary offices, are subject to the workplace safety rules described in Executive Order 202097.
20. Executive Orders 2020-92 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.
21. 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.
22. 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 21 2020 Time: 9:49 am

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE 13

Case 1:20-cv-00414-PLM-PJG ECF No. 15-3 filed 05/22/20 PageID.507 Page 1 of 26

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT 2 OF
DEFENDANT ATTORNEY GENERAL DANA NESSEL’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
2. Michigan House and Senate v. Whitmer, Court of Claims No. 20-79-MZ, Opinion and Order

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STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES, and MICHIGAN SENATE,
Plaintiffs,
v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

OPINION AND ORDER
Case No. 20-000079-MZ Hon. Cynthia Diane Stephens

This matter arises out of Executive Orders issued by Governor Gretchen Whitmer in response to the COVID-19 pandemic. Neither the parties to this case nor any of the amici deny the emergent and widespread impact of Covid-19 on the citizenry of this state. Neither do they ask this court at this time to address the policy questions surrounding the scope and extent of contents of the approximately 90 orders issued by the Governor since the initial declaration of emergency on March 10, 2020 in Executive Order No. 2020-4. The Michigan House of Representatives and the Michigan Senate (Legislature) in their institutional capacities challenge the validity of Executive Orders 2020-67 and 2020-68, which were issued on April 30, 2020. They have asked this court to declare those Orders and all that rest upon them to be invalid and without authority as written. The orders cited two statutes, 1976 PA 390, otherwise known as the Emergency Management Act (EMA); and 1945 PA 302, otherwise known as the Emergency Powers of Governor Act (EPGA). In addition, the orders cite Const 1963, art 1, § 5, which generally vests the executive power of the state in the Governor. This court finds that:

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1. The issue of compliance with the verification language of MCL 600.6431 is abandoned. 2. The Michigan House of Representative and Michigan Senate have standing to pursue this
case. 3. Executive Order 2020-67 is a valid exercise of authority under the EPGA and plaintiffs
have not established any reason to invalidate any executive orders resting on EO 2020-67. 4. The EPGA is constitutionally valid. 5. Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.
I. BACKGROUND
The Court will dispense with a lengthy recitation of the pertinent facts and history and will instead jump to the Governor’s declaration of a state of emergency1 as well as a state of disaster2 under the EMA and the EPGA on April 1, 2020, in response to the COVID-19 pandemic. Executive Order No. 2020-33. Both chambers of the Legislature adopted Senate Joint Resolution No. 24 which approved “an extension of the state of emergency and state of disaster declared by Governor Whitmer in Executive Order 2020-4 and Executive Order 2020-33 through April 30, 2020. . . .” The Senate Concurrent Resolution cited the 28-day legislative extension referenced in MCL 30.403 of the EMA.
1 The EPGA does not define the term “state of emergency.” However, the EMA defines the term as follows: “an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(q). 2 While the EPGA does not use, let alone define, the term “state of disaster,” the EMA defines the term as “an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(p).

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The public record affirms that the governor asked the legislative leadership to extend the state of disaster and emergency on April 27, 2020. The Legislature demurred and instead passed SB 858, a bill without immediate effect, which addressed some the subject matter of several of the COVID-19-related Executive Orders, but did not extend the state of emergency or disaster or the stay-at-home order. The Governor vetoed SB 858.
On April 30, 2020, the Governor issued Executive Order 2020-66 which terminated the state of emergency and disaster that had previously been declared under Executive Order 202033. The order opined that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Executive Order No. 2020-66 (emphasis added). However, EO 2020-66 acknowledged that 28 days “have lapsed since [the Governor] declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33.” Id. The order declared there was a “clear and ongoing danger to the state . . . .” (Emphasis added).
On the same day, and only one minute later, the Governor issued two additional executive orders. First, she issued Executive Order No. 2020-67, which cited the EPGA. [In addition, the order contained a cursory citation to art 5, § 1.] EO 2020-67 noted the Governor’s authority under the EPGA to declare a state of emergency during “‘times of great public crisis . . . or similar public emergency within the state. . . .’” Id. quoting MCL 10.31(1). The order noted that such declaration does not have a fixed expiration date. Id. Then, and as a result of the ongoing COVID-19 pandemic, EO 2020-67 declared that a “state of emergency remains declared across the State of Michigan” under the EPGA. The order stated that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The order was to take immediate effect. Id.

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In addition to declaring that a state of emergency “remained” under the EPGA, the Governor simultaneously issued Executive Order No. 2020-68; this order declared a state of emergency and a state of disaster under the EMA. [In addition, like all previous orders, the order contained a vague citation to art 5, § 1 as well.] Hence, EO 2020-68 essentially reiterated the very same states of emergency and disaster that the Governor had, approximately one minute earlier, declared terminated. The order declared that the states of emergency and disaster extended through May 28, 2020 at 11:59 p.m., and that all orders that had previously relied on the prior states of emergency and disaster declaration in EO 2020-33 now rest on this order, i.e., EO 2020-68.
The House of Representative and the Senate subsequently filed this case asking for an expedited hearing and a declaration that EO 2020-67 and EO 2020-68, and any other Executive Orders deriving their authority from the same, were null and void.
COMPLIANCE WITH MCL 600.6431
The Governor noted in her reply brief that the complaint, as originally filed in this court did not meet the verification requirement of MCL 600.6431(2)(d). At oral argument the Governor acknowledged that the verification requirements were not met when the complaint was originally filed; however, a subsequent filing was notarized in accordance with the statute. The Governor also acknowledged that the failure to sign the verified pleading before a person authorized to administer oaths was not necessary for invoking this Court’s jurisdiction. Finally, the Governor agreed that she was not seeking dismissal of the action based on plaintiffs’ initial lack of compliance. For those reasons this Court will consider the issue moot and decline any analysis of the arguments predicated on MCL 600.6431.
STANDING

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The issue of standing is central to this case as it is with all litigation. Courts exist to manage actual controversies between parties to whom those controversies matter. The Legislature has cited MCR 2.605 in support of its standing to pursue this declaratory action. The Legislature asserts that it has a need for guidance from this Court in order to determine how it will proceed to protect what it articulates as its special institutional rights and responsibilities. The Governor challenges whether the Legislature has standing to bring this suit. The Governor argues that the institution of the Legislature has no more interest in the outcome of this suit than any member of the public. She further claims that the Legislature does not need the guidance of the Court to determine how to carry out its constitutional duties. It is the opinion of this Court that the Legislature has standing to pursue its claims before this Court.
Both parties cite the seminal case on the issue of standing, Lansing Schs Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). In that case, the Supreme Court refined the concept of standing under the Michigan Constitution. In doing so, the Court rejected the federal standing analysis and articulated an analytical framework rooted the Michigan Constitution. The Lansing Schs Ed Ass’n Court looked to whether a cause of action was authorized by the Legislature. Where the Legislature did not confer a right to a specific cause of action, a plaintiff must have “a special injury or right, or substantial interest, that will be detrimentally affected in a manner different than the citizenry at large . . . .” Id. at 372.
The Governor relies heavily on the recent case of League of Women Voters of Mich v Secretary of State, __ Mich App __; __ NW2d __ (2020) (Docket Nos. 350938; 351073), which is itself now on appeal to the Michigan Supreme Court. That case, similar to the instant case, was brought under the aegis of MCR 2.605 and asked the court to declare that an Attorney General Opinion’s interpretation of a statute was invalid. The Court of Appeals majority in League of

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Women Voters examined the issue through the lens of MCR 2.605 and found that in that case the institution of the Legislature had no standing: “Given the definition of ‘actual controversy’ for the purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgement is necessary to guide the Legislature’s future conduct in order to preserve its legal rights.” Id., slip op at p. 7.
League of Women Voters was the first examination of the issue of institutional standing in Michigan. For that reason, the court focused on the logic of the Supreme Court’s decision in Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), which analyzed a standing issue in relation to individual legislators. Dodak, like this case, presented a conflict between the executive and legislative branches of state government. That Court, like this one, is mindful that in such instances the issue of legislative standing requires a litigant to overcome “a heavy burden because, courts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government.” League of Women Voters, __ Mich App at __, slip op at p. 8 (citation and quotation marks omitted; cleaned up). There must be a “personal and legally cognizable interest peculiar” to the legislative body, rather than a “generalized grievance that the law is not being followed.” Id. (citations and quotation marks omitted). In Dodak four legislators pressed a case concerning what they asserted was an abrogation of their individual rights as members of the appropriations committees when the State Administrative Board was allowed to redistribute funds allocated by the Legislature between departments of state government. Ultimately the Supreme Court found that the chair of the appropriation committee did in fact have a peculiar and special right and a potential for a personal injury sufficient to acquire standing. In Dodak, 441 Mich at 557, the Supreme Court cited with approval federal authorities holding that an individual legislator “‘only has standing if he alleges a diminution of congressional influence

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which amounts to a complete nullification of his vote, with no recourse in the legislative process.’ Dodak, 441 Mich at 557, quoting Chiles v Thornburgh, 865 F3d 1197, 1207 (CA 11, 1989). In League of Women Voters the institution claimed its right was to have a constitutionally correct interpretation of certain legislation. The League of Women Voters Court found that indeed every citizen had such a right and the Legislature once it enacted a statute had no special relationship to it. League of Women Voters, __ Mich App at __, slip op at p. 8. The case did not, remarked the Court, concern the validity of any particular legislative member’s vote. Id.
While it is a close question, this Court finds that the issue presented in this case is whether the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the Legislature’s decision to decline to extend the states of emergency/disaster. The United States Court of Appeals for the Sixth Circuit recently found that a legislative body under certain circumstances does have standing. See Tennessee General Assembly v United States Dep’t of State, 931 F3d 499 (CA 6, 2019). The logic of their analysis is persuasive and compatible with both Dodak and League of Women Voters. In Tennessee General Assembly, the Sixth Circuit surveyed two cases from the Supreme Court of the United States to illustrate when a legislative body, or portion thereof, may have standing. Id. at 508, citing Coleman v Miller, 307 US 433; 59 S Ct 972; 83 L 3d 1385 (1939); and Ariz State Legislature v Ariz Independent Redistricting Comm, __ US __; 135 S Ct 2652; 192 L Ed 704 (2015). Surveying Coleman and its progeny, the Sixth Circuit explained that, “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Tennessee General Assembly, 931 F3d at 509 (citation and quotation marks omitted). The Sixth Circuit further noted that Arizona State Legislature Court also conferred standing under article III to a legislature. In

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that case, the legislature claimed that the power to redistrict accrued to them under the Arizona constitution. The challenged action in that case was “more similar to the ‘nullification’ injury in Coleman.” Tennessee General Assembly, 931 F3d at 510, citing Arizona State Legislature, __ US at __; 135 S Ct at 2665. To that end, the proposal at issue would have completely nullified any legislative vote, and there was “a sufficiently concrete injury to the Legislature’s interest in redistricting . . . that the Legislature had Article III standing.” Id., citing Arizona State Legislature, __ US at __; 135 S Ct 2665-2666.
The injury claimed in this case is that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster. The Legislature claims this right is exclusively theirs as an institution under the EMA and this state’s Constitution. Understanding that Lansing Schs Ed Ass’n specifically departed from the Article III analysis of its predecessor cases, the nullification argument is nevertheless not incompatible with the Lansing Schs Ed Ass’n focus on “special injury.” This type of injury sounds similar in the nature of the right that was taken from the one plaintiff who had standing in Dodak, 441 Mich at 559-560, i.e., the member of the House Appropriations Committee who lost his right to approve or disapprove transfers following the Governor’s actions.
In this respect the instant matter is distinguishable from League of Women’s Voters, __ Mich App at __, slip op at 9, where the Court of Appeals remarked that “the validity of any particular legislative member’s vote is not at issue[.]” Plaintiffs have at least a credible argument that they are not merely seeking to have this Court resolve a lost political battle, nor are plaintiffs only generally alleging that the law is not being followed. Cf. id. at 8. Rather, they are alleging that the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole. This is an injury that is unique to the Legislature and it shows a

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substantial interest that was (allegedly) detrimentally affected in a manner different than the citizenry at large. Cf. id. at 7 (discussing standing, generally).
As a final argument on standing, the Governor contends that the Legislature does not need declaratory relief to guide its future actions. She and at least one amicus brief note that the Legislature has in fact moved toward amending the EPGA. At oral argument the Legislature was almost invited to amend either the EMA or EPGA. However, while the legislative body is well aware of its power to enact, amend, and repeal statutes, this Court believes that guidance as to the issues presented in this case will avoid a multiplicity of litigation. The parties here have pled facts of an adverse interest which necessitate the sharpening of the issues raised.
ANALYSIS OF AUTHORITIES CITED IN THE CHALLENGED EXECUTIVE ORDERS
The Executive Orders at issue cite three sources of authority: the EMA, the EPGA, and Const 1963, art 5, § 1. The Court will examine each to determine whether the Governor possessed authority to issue the challenged orders.
ARTICLE 5 OF THE MICHIGAN CONSTITUTION
The challenged orders in this case all contain a brief citation to art 5, § 1. This section of the Michigan Constitution vests “executive power” in the Governor. See Const 1963, art 5, § 1. The Governor invokes this power in claiming authority to issue the challenged Executive Orders. The Legislature has argued that Governor errs in relying on her art 5, § 1 “executive power” to issue orders in response to the pandemic. This court agrees that “Executive power” is merely the “authority exercised by that department of government which is charged with the administration or execution of the laws.” People v Salsbury, 134 Mich 537, 545; 96 NW 936 (1903). In fact, the

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Governor has not claimed in her briefing or at oral argument that she had the authority to enact EO 2020-67 or EO 2020-68 absent an enabling statute. Through two distinct acts, stated in plain and certain terms, the Legislature has granted the Governor broad but focused authority to respond to emergencies that affect the State and its people. The Governor’s challenged actions—declaring states of disaster and emergency during a worldwide public health crisis—are required by the very statutes the Legislature drafted. Thus, the focus of this opinion, is on those two distinct acts, the EMA and EPGA.
THE EPGA AUTHORIZED EO 2020-67 AND SUBSEQUENT ORDERS RELIANT THEREON
The Court will first turn its attention to the EPGA and to plaintiffs’ arguments that the EPGA did not permit the Governor to issue a statewide emergency declaration in EO 2020-67 or any subsequent orders reliant on EO 2020-67. Plaintiffs advance two arguments in support of their position: (1) first, they contend that the EPGA, unlike the EMA, does not grant authority for a statewide declaration of emergency, but instead only confers upon the Governor the authority to issue a local or regional state of emergency; (2) second, plaintiffs argue that if the EPGA does grant authority for a statewide state of emergency, the delegation of legislative authority accomplished by the act is unconstitutional. The Court rejects both of plaintiffs’ contentions regarding the EPGA and concludes that EO 2020-67, and any orders relying thereon, remain valid.
Turning first to the scope of the EPGA, the Court notes that the statute bestows broad authority on the Governor to declare a state of emergency and to take necessary action in connection with that declaration. See MCL 10.31(1). Under the EPGA, 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.” Id.

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The Legislature stated that its intent in enacting MCL 10.32 was to “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” Section 2 of the EPGA continues, declaring that the provisions of the EPGA “shall be broadly construed to effectuate this purpose.” Id.
Reading the EPGA as a whole, as this Court must do, see McCahan v Brennan, 492 Mich 730, 738-739; 822 NW2d 747 (2012), the Court rejects plaintiffs’ attempt to limit the scope of the EPGA to local or regional emergencies only. Informing this decision is the statement of legislative intent in MCL 10.32, which declares that the EPGA was intended to confer “sufficiently broad power” on the Governor in order to enable her to respond to public disaster or crisis. It would be inconsistent with this intent to find that “sufficiently broad power” to respond to matters of great public crisis is constrained by contrived geographic limitations, as plaintiffs suggest. The Court also notes that this “sufficiently broad” power granted by the Legislature references “the police power of the state[.]” MCL 10.32. In general, the police power of the state refers to the state’s inherent power to “enact regulations to promote the public health, safety, and welfare” of the citizenry at large. See Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d 1 (1985). It cannot be overlooked that the police power of the state, which undeniably pertains to the state as a whole, see, e.g., Western Mich Univ Bd of Control v State, 455 Mich 531, 536; 565 NW2d 828 (1997), was given to a state official, the Governor, who possesses the executive power of the entire state. See Const 1963, art 5, § 1. Plaintiffs’ attempts to read localized restrictions on broad, statewide authority given to this state’s highest executive official are unconvincing.
The Act has a much broader application than plaintiffs suggest. The Act repeatedly uses terms such as “great public crisis,” “public emergency,” “public crisis,” “public disaster,” and

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“public safety” when referring to the types of events that can give rise to an emergency declaration. See MCL 10.31(1); MCL 10.32. These are not terms that suggest local or regional-only authority. See Black’s Law Dictionary (11th ed) (defining public safety). See also Merriam-Webster Online Dictionary, <https://www.merriam-webster.com/dictionary/public> (accessed May 11, 2020) (defining “public” to mean “of, relating to, or affecting all the people of the whole area of a nation or state”) (emphasis added). Taking these broad terms and imposing limits on them as plaintiffs suggest would run contrary to MCL 10.32’s directive to broadly construe the authority granted to the Governor under the EPGA. See Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010) (explaining that it is “well established that to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.”). And in this context, it is apparent the EPGA employs broad terminology that empowers the Governor to act for the best interests of all the citizens of this state, not just the citizens of a particular county or region. It would take a particularly strained reading of the plain text of the EPGA to conclude that a grant of authority to deal with a public crisis that affects all the people of this state would somehow be constrained to a certain locality. Moreover, adopting plaintiffs’ view would require the insertion into the EPGA of artificial barriers on the Governor’s authority to act which are not apparent from the text’s plain language. To that end, even plaintiffs would surely not quibble that the broad authority bestowed on the Governor under the act would permit her to respond to an emergency situation that affected one county, or perhaps even multiple counties. Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA because, according to plaintiffs, rendering emergency assistance to the state’s entire citizenry is not an option under the EPGA. While plaintiffs generally contend there

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are localized or regionalized limitations on the Governor’s authority under the EPGA, they do not explain how to demarcate the precise geographic limitations on the Governor’s authority under the EPGA—and this is for good reason: there are no such limitations.
In arguing for a contrary interpretation of the scope of the Governor’s authority under the EPGA, plaintiffs selectively rely on parts of the statute and ignore the contextual whole. For instance, they focus on the notion that a city or county official may apply for an emergency declaration in order to support their assertion that the EPGA only applies to local or regional emergency declarations. In doing so, plaintiffs ignore that the same sentence permitting local officials to apply for an emergency declaration also authorizes two state officials—one of whom is the Governor herself—to apply for or make an emergency declaration. See MCL 10.31(1). Equally unpersuasive is plaintiffs’ fixation on the word “within” as it appears in MCL 10.31(1). Plaintiffs note that MCL 10.31(1) permits the Governor to declare a state of emergency in response to “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state” (emphasis added). According to plaintiffs, the use of the word “within” means that an emergency can only be declared at a particular location within the state, and precludes the state of emergency from being declared for the entire state. However, a common understanding of the word “within,” including the same definition plaintiffs cite, demonstrates the flaw in plaintiffs’ position. The word “within” is generally used “as a function word to indicate enclosure or containment.” Merriam-Webster’s Online Dictionary, <https://www.merriam-webster.com/dictionary/within> (accessed May 20, 2020). For instance, it can refer to “the scope or sphere of” something, such as referring to that which is “within the jurisdiction of the state.” Id. In other words, the term “within” refers to the jurisdictional bounds of the state. The authority to declare an emergency “within” the state is, quite simply, the authority to declare an emergency across the entire state.

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Plaintiffs next argue that, when the EPGA is read together with the EMA, it is apparent that the EPGA is not meant to address matters of statewide concern. In general, both the EPGA and the EMA grant the Governor power to act during times of emergency. “Statutory provisions that relate to the same subject are in pari materia and should be construed harmoniously to avoid conflict.” Kazor v Dep’t of Licensing & Regulatory Affairs, 327 Mich App 420, 427; 934 NW2d 54 (2019). “The object of the in pari materia rule is to give effect to the legislative intent expressed in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that construction should control.” In re AGD, 327 Mich App 332, 344; 933 NW2d 751 (2019) (citation and quotation marks omitted).
Here, when the EMA and the EPGA are read together, it is apparent that there is no conflict between the two acts even though they address similar subjects. While plaintiffs are correct in their assertion that the EMA contains more sophisticated management tools, that does not mean that the EPGA is limited to local and regional emergencies only. Nor does the fact that both statues apply to statewide emergencies mean that one act renders the other nugatory. Instead, the Court can harmonize the two statutes, see In re AGD, 327 Mich App at 344, by recognizing that while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal. The use of these enhanced features comes at some cost, however, because the EMA is subject to the 28-day time limit contained in MCL 30.405(3)-(4), whereas an emergency declaration under the less sophisticated EPGA has no end date. Finally, plaintiffs’ contentions regarding a conflict between the EMA and the EPGA are belied by MCL 30.417. That section of the EMA expressly states that nothing in the EMA was intended to “Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of

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the Michigan Compiled Laws . . . .” MCL 30.417(d). In other words, the EMA explicitly recognizes the EPGA and it recognizes that the Governor possesses similar, but different, authority under the EPGA than she does under the EMA.
Plaintiffs’ final attempt to assert that the EPGA was intended as a local or regional act is to point to what they describe as the history of the EPGA. In general, the legislative history of an act and the historical context of a statute can be considered by a court in ascertaining legislative intent; however, these sources are generally considered to have little persuasive value. See, e.g., In re AGD, 327 Mich App 342 (generally rejecting legislative history as “a feeble indicator of legislative intent and . . . therefore a generally unpersuasive tool of statutory construction”) (citation and quotation marks omitted). Here, the history cited by plaintiffs is particularly unpersuasive because, having reviewed the same, the Court concludes that it does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA. Nor have plaintiffs directed the Court’s attention to a particular piece of history that expressly supports their claim; they instead rely on mere generalities and anecdotal commentary. Finally, the EPGA presents no ambiguity requiring explanation through extrinsic historical commentary.
In an alternative argument, plaintiffs argue that, assuming the Governor’s ability to act under the EPGA gives her statewide authority, the executive orders issued pursuant to the EPGA are nevertheless invalid. According to plaintiffs, the Governor’s exercise of lawmaking authority under the orders runs afoul of separation of powers principles.
Plaintiffs’ constitutional challenge to the EPGA fares no better than their attempt to limit the Act’s scope. This Court must, when weighing this constitutional challenge to the EPGA, remain mindful that a statute must be presumed constitutional, “unless its constitutionality is

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readily apparent.” Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 59; 669 NW2d 845 (2003) (citation and quotation marks omitted). Indeed, “[t]he power to declare a law unconstitutional should be exercised with extreme caution and never where serious doubt exists with regard to the conflict.” Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997).
Const 1963, art 3, § 2 declares that “[t]he powers of government are divided into three branches: legislative, executive and judicial.” The Constitution dictates that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Id. The issue in this case concerns what plaintiffs have alleged is an unconstitutional delegation of legislative power to the Governor. While the Legislature cannot delegate its legislative power to the executive branch of government, the prohibition against delegation does not prevent the Legislature “from obtaining the assistance of the coordinate branches.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003) (citation and quotation marks omitted). As explained by our Supreme Court, “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).
In general, the Supreme Court has recognized three “guiding principles” to be applied in non-delegation cases:
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The various and varying detail associated with managing the natural resources has led to

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recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. Third, if possible the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority. [State Conservation Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976) (internal citations and quotation marks omitted).] Any discussion of plaintiffs’ non-delegation issue must acknowledge that the policy goals and the complexity of issues presented under the EPGA do not concern ordinary, everyday issues. Rather, as the title of the act and its various provisions reflect, the EPGA is only invoked in times of emergency and of “great public crisis,” and when “public safety is imperiled[.]” MCL 10.31(1). Hence, while the Governor’s powers are not expanded by crisis, the standard by which this Court must view the standards ascribed to the delegation at issue must be informed by the complexities inherent in an emergency situation. Blue Cross & Blue Shield, 422 Mich at 51; State Conservation Dep’t, 396 Mich at 309.
With that backdrop, and when viewing the EPGA in its entirety, the Court concludes that the Act contains sufficient standards and that it is not an unconstitutional delegation of legislative authority. At the outset, MCL 10.31(1) provides parameters for when an emergency declaration can be made in the first instance. The power to declare an emergency only arises during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” Id. In addition, the statute provides a process for other officials, aside from the Governor, to request or aid in assessing whether an emergency should be declared. See id. (allowing input from “the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police”). Therefore, the EPGA places parameters and limitations on the Governor’s power to declare a state of emergency in the first instance, which weighs against plaintiffs’

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position. Cf. Blue Cross & Blue Shield, 422 Mich at 52-53 (finding an unconstitutional delegation of legislative authority where there were no guidelines provided to direct the pertinent official’s response and where the power of the official was “completely open-ended.”).
Furthermore, the EPGA provides standards on what a Governor can, and cannot, do after making an emergency declaration. As for what she can do, 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) (emphasis added). The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. See, e.g., MCL 500.3107(1)(a) (describing, in the context of personal injury protection insurance, “allowable expenses” that consist of “reasonable” charges incurred for “reasonably necessary products, services and accommodations . . . .”). Thus, the Court rejects any contention that these terms are too ambiguous to provide meaningful standards. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority which permitted an administrative body to continue to employ an individual for such a period of time as was “necessary” provided a sufficient standard, under the circumstances). See also Blank v Dept’ of Corrections, 462 Mich 103, 126; 611 NW2d 530 (2000) (opinion by Kelly, J.) (finding a constitutionally permissible delegation of authority, in part, based on the enabling legislation constrained rulemaking authority to only those matters that were “necessary for the proper administration of this act.”). Finally, in addition to the above standards, the EPGA goes on to expressly list examples of that which a Governor can and cannot do under the EPGA. See MCL

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10.31(1) (providing a non-exhaustive, affirmative list of subjects on which an order may be issued); MCL 10.31(3) (containing an express prohibition on orders affecting lawfully possessed firearms). Accordingly, the EPGA contains some restrictions on the Governor’s authority and it provides standards for the exercise of authority under the Act.3
In sum, the Court concludes that plaintiffs’ challenges to the Governor’s authority to declare a state of emergency under the EPGA and to issue Executive Orders in response to a statewide emergency situation under the EPGA are meritless. Thus, and for the avoidance of doubt, while the Court concludes that the Governor’s actions under the EMA were unwarranted— see discussion below—the Court concludes that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.
EXECUTIVE ORDER 2020-68 WAS NOT AUTHORIZED BY THE EMA
Turning next to the Governor’s orders issued pursuant to the EMA, the Court again notes that the legitimacy of the initial declaration of emergency and disaster, Executive Order No. 202004, is unchallenged in this case. The extension of that declaration under EO 2020-33 is likewise agreed to be a legitimate exercise of gubernatorial power. This court is not asked to review the scope of myriad emergency measures authorized under either declaration. The laser focus of this case is the legitimacy of EO 2020-68, which re-declared a state of emergency and state of disaster under the EMA only one minute after EO 2020-66 cancelled the same. The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees.
3 The Court notes that Judge Kelly reached a similar conclusion, albeit in the context of denying a motion for preliminary injunction, in the case of Mich United for Liberty v Whitmer, Docket No. 20-000061-MZ.

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The EMA allows circumvention of the traditional legislative process only under extraordinary circumstances and for a finite period of time. Enacted in 1976, the EMA grants the Governor sweeping powers to cope with “dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). These powers include the authority to issue executive orders and directives that have the force and effect of law. MCL 30.403(2). The Governor may also, by executive order, “Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL 30.405(1)(a). Additionally, the Governor may issue orders regarding the utilization of resources; may transfer functions of state government; may seize private property—with the payment of “appropriate compensation”—evacuate certain areas; control ingress and egress; and take “all other actions which are which are necessary and appropriate under the circumstances.” See, e.g., MCL 30.405(1)(b)-(j). This power is indeed awesome.
The question presented is whether the Governor could legally, by way of Executive Order 2020-68, declare the exact states of emergency and disaster that she had, only one minute before, terminated. The Legislature answer with an emphatic, “No,” and the Governor offers an equally emphatic, “Yes.”
As with most contracts, the Legislature asserts that time is of the essence in the limits of the extraordinary power afforded the executive under the EMA. The Act is replete with references to timing. MCL 30.403 provides as follows:
The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation

Case 1:20-cv-00414-PLM-PJG ECF No. 15-3 filed 05/22/20 PageID.528 Page 22 of 26 21
declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. [MCL 30.403(3) (emphasis added).]
Later the act addresses the duration of a “state of emergency,” and its extension under MCL
30.403(4):
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. [Emphasis added.]
The limitation of 28 days is repeated multiple times. A state of emergency or disaster, once
declared, terminates no later than 28 days after being initially declared. The Governor can
determine that the emergent conditions have been resolved earlier than 28 days. Alternatively, the
Governor may ask the Legislature to extend the emergency powers for a period of up to 28 days
from the issuance of the extension. Nothing in Act precludes legislative extension for multiple
additional 28-day periods. In this case the Governor stated in EO 2020-66 that she expressly
terminated the previously issued states of emergency and disaster—not because the disaster or
emergency condition ceased to exist—but because a period of 28 days had expired. In fact, EO
2020-66, the order that terminated the states of disaster and emergency under the EMA, expressly
acknowledged that the emergency and/or disaster had not subsided and still remained In this
respect, EO 2020-66 complied with MCL 30.403(3) and (4)’s directives that the Governor “shall,”

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after 28 days, “issue an executive order or proclamation declaring” that the state of emergency and/or disaster terminated.
However, the Governor argues that she may continue to exercise emergency powers under the EMA without legislative authorization in this case. She argues that she has a duty and the authority to do so because the Legislature failed to grant her the requested extension despite the fact that the emergent conditions continued to exist.
Neither party to this case denies that the COVID-19 emergency was abated as of April 30. No serious argument has been offered that had the Governor not issued EO 2020-68 that all of the emergency measures authorized by EO-33 would have terminated with the signing of EO 202066 on April 30 even if had the governor not vetoed SB 858, which purported to embody several of the expiring Executive Orders and which would not have been effective until 90 days later because the Legislature did not give that bill immediate effect. The Governor asserts she had a duty to act to address the void. She argues that MCL 30.403(3) and (4) compelled her, upon the termination of the states of emergency and disaster accomplished by way of time, to declare anew both states of emergency and disaster within minutes. The Governor makes this argument by emphasizing language in MCL 30.403(3) and (4) stating that, if the Governor finds that a disaster or emergency occurs, then she “shall” issue orders declaring states of emergency or disaster. Thus, argues the Governor, when the 28-day emergency and disaster declarations ended, but the disaster and emergency conditions remained, the Governor was compelled, irrespective of legislative approval, to re-declare states of emergency and disaster.
The EMA does not prohibit a governor from declaring multiple emergencies or disasters during a term of office or even more than on disaster at the same time. Indeed, the collapse of the

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dam at the Tittabawassee River sparked the issuance of a separate state of emergency and disaster during of this lawsuit. Clearly the collapse of the dam and the subsequent flooding was a new and different circumstance from the COVID-19 pandemic. Returning to the instant case, it could also be argued that the very fact that the Legislature had neither authorized the extension of the emergency powers of the Governor under the EMA nor put in place measures to address the emergent situation was itself a new emergency justifying gubernatorial action. However, the “new” circumstance was occasioned not by a mutation of the disease into something such as “COVID-20,” a precipitous spike in infection, or any other factor, except the Legislature’s failure to grant an extension.
Thus, while the Governor emphasizes the directive that she “shall” declares states of emergency and disaster, the Court concludes that the Governor takes these directives out of context and renders meaningless the legislative extension set forth in MCL 30.403(3) and (4). The Governor’s position ignores the other crucial “shall” in the statute. “After 28 days, the governor shall issue an executive order or proclamation declaring the state of” disaster or emergency terminated, “unless a request by the governor for an extension of the state of” disaster or emergency “for a specific number of days is approved by resolution of both houses of the legislature.” See MCL 30.403(3) (as to disasters); MCL 30.403(4) (as to emergencies). The language employed here is mandatory: The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it. See Smitter v Thornapple Twp., 494 Mich 121, 136; 833 NW2d 785 (2013) (explaining that the term “shall” denotes a mandatory directive). Stated otherwise, at the end of 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate”

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language is an affirmative grant of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. Nor does the statute permit the Governor to simply extend the same state of disaster and/or emergency that was otherwise due to expire. To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language. Whatever the merits of that might be as a matter of policy, that position conflicts with the plain statutory language. The Governor’s attempt to read MCL 30.403(2) as providing an additional, independent source of authority to issue sweeping orders would essentially render meaningless MCL 30.405(1)’s directive that such orders only issue upon an emergency declaration. It would also read into MCL 30.403(2) broad authority not expressed in the subsection’s plain language. See Robinson, 486 Mich at 21 (explaining that, when it interprets a statute, a reviewing court must “avoid a construction that would render part of the statute surplusage or nugatory”) (citation and quotation marks omitted). See also United States Fidelity & Guarantee Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009) (“As far as possible, effect should be given to every phrase, clause, and word in the statute.”). The Court is not free to “pick and choose what parts of a statute to enforce,” see Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 143; 892 NW2d 33 (2016), yet that is precisely what the Governor’s position has asked the Court to do. The language of MCL 30.403(3) and (4) requiring legislative approval of an emergency or disaster declaration should not so easily be cast aside.
Finally, and contrary to the Governor’s argument, the 28-day limit in the EMA does not amount to an impermissible legislative veto. See Blank v Dept’ of Corrections, 462 Mich 103, 113-114; 611 NW2d 530 (2000) (opinion by KELLY, J.) (declaring that, once the Legislature delegates authority, it does not have the right to retain veto authority over the actions of the

Case 1:20-cv-00414-PLM-PJG ECF No. 15-3 filed 05/22/20 PageID.532 Page 26 of 26 25
executive). The Governor’s characterization of the 28-day limit as a legislative veto is not accurate. The 28-day limit is not legislative oversight or a “veto” of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated. That is, the Governor is afforded with broad authority under the EMA to make rules and to issue orders; however, that authority is subject to a time limit imposed by the Legislature. The Legislature has not “vetoed” or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.
CONCLUSION
IT IS HEREBY ORDERED that the relief requested in plaintiffs’ motion for immediate declaratory judgment is DENIED. While the Governor’s action of re-declaring the same emergency violated the provisions of the EMA, plaintiffs’ challenges to the EPGA and the Governor’s authority to issue Executive Orders thereunder are meritless.
This order resolves the last pending claim and closes the case.

Dated: May 21, 2020

________________________________ Cynthia Diane Stephens, Judge Court of Claims

 
 Case 1:20-cv-00414-PLM-PJG ECF No. 20 filed 05/22/20 PageID.794 Page 1 of 57

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20 filed 05/22/20 PageID.795 Page 2 of 57

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

DEFENDANTS WHITMER AND GORDON’S RESPONSE TO PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

Dated: May 22, 2020

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigag.gov P65232

Case 1:20-cv-00414-PLM-PJG ECF No. 20 filed 05/22/20 PageID.796 Page 3 of 57
TABLE OF CONTENTS Page
Table of Contents ............................................................................................................ i Concise Statement of Issues Presented .......................................................................iii Controlling or Most Appropriate Authority................................................................. iv Introduction ................................................................................................................... 1 Statement of Facts......................................................................................................... 4 Standard for Preliminary Injunction .......................................................................... 10 Argument ..................................................................................................................... 11 I. Plaintiffs’ claims are moot because Governor Whitmer has issued a
series of executive orders that permit the very activities Plaintiffs alleged were prohibited..................................................................................... 11 A. Without a live case-or-controversy, Article III Courts lack
jurisdiction. ............................................................................................. 12 II. The Court should abstain and otherwise decline supplemental
jurisdiction over the novel claims brought under Michigan law and best decided in the first instance in Michigan courts.............................................. 16 A. Abstention............................................................................................... 16
1. Pullman abstention ..................................................................... 17 2. Thibodaux abstention.................................................................. 18 3. Colorado River abstention........................................................... 20 B. Supplemental Jurisdiction ..................................................................... 22 1. This Court should decline supplemental jurisdiction over
Counts I and II under 28 U.S.C. § 1367(c)(1). ............................ 24 2. This Court should decline supplemental jurisdiction over
Counts I and II under 28 U.S.C. § 1367(c)(2). ............................ 26 3. This Court should decline supplemental jurisdiction over
Counts I and II under 28 U.S.C. § 1367(c)(4). ............................ 27
i

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III. Plaintiffs are not likely to prevail on the merits of their claims..................... 28 A. Plaintiffs’ claims are not ripe................................................................. 29 B. The Governor acted pursuant to valid statutory authority under Michigan law. ......................................................................................... 30 C. The States have wide latitude in dealing with great dangers to public health. .......................................................................................... 31 1. Jacobson v. Commonwealth of Massachusetts ........................... 31 2. Application of Jacobson to the current health crisis and the restrictions challenged by Plaintiffs. .................................... 36 D. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges fail. ................................................................ 41 1. Plaintiffs do not have a viable void for vagueness challenge. ..................................................................................... 41 2. Plaintiffs do not have a viable procedural due process claim. ............................................................................................ 43 3. Plaintiffs do not have a viable substantive due process claim. ............................................................................................ 44 4. Plaintiffs do not have a viable dormant commerce clause claim. ............................................................................................ 45
IV. The remaining factors weigh against injunctive relief.................................... 48 A. Plaintiffs have shown no irreparable injury. ........................................ 48
Conclusion and Relief Requested ................................................................................ 50
ii

Case 1:20-cv-00414-PLM-PJG ECF No. 20 filed 05/22/20 PageID.798 Page 5 of 57 CONCISE STATEMENT OF ISSUES PRESENTED
1. Are Plaintiffs’ claims moot now that there is nothing to enjoin under the newly issued executive orders concerning non-essential medical care?
2. Should this federal court abstain or otherwise decline supplemental jurisdiction over Plaintiffs’ novel state law claims?
3. Do Plaintiffs otherwise fail to meet the requirements for preliminary injunctive relief, where they have not shown that they are likely to succeed on the merits, that they will suffer irreparable harm absent a preliminary injunction, or that such an injunction will serve the public interest?
iii

Case 1:20-cv-00414-PLM-PJG ECF No. 20 filed 05/22/20 PageID.799 Page 6 of 57 CONTROLLING OR MOST APPROPRIATE AUTHORITY
Authority: Chafin v. Chafin, 568 U.S. 165 (2013). Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959). Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). 28 U.S.C. § 1367(c).
iv

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INTRODUCTION What are Plaintiffs currently seeking to enjoin? Nothing, which should leave this Court nothing more to do at this time other than to cancel the motion hearing and deny the now moot request for a preliminary injunction on the briefs. The requirement that a case or controversy exist is one of the threshold conditions of every legal dispute in order for a court to have jurisdiction to resolve a legal matter. Yesterday, the Governor issued Executive Order 2020-96, which among other things rescinded Executive Order 2020-17effective May 29, 2020, removing any requirement that health care facilities continue to implement a plan to postpone nonessential medical procedures. Thus, as of May 29, nothing inhibits Plaintiffs from performing or undergoing a medical procedure.1 As a result, the case is moot both now and without doubt by the day following the hearing on this motion, which is set for May 28. This Court should deny preliminary injunctive relief for that reason alone. Mootness is far from the only impediment to Plaintiffs’ requested relief. The heart of Plaintiffs’ challenge rests upon a legal theory rooted in interpretation of Michigan statutes and constitutional provisions. Under the circumstances, a federal district court should abstain from deciding such issues and otherwise decline supplemental jurisdiction over such state law claims.
1 The one-week delay in the effective date of the rescission is designed to ensure adequate time for facilities to implement the workplace safeguards required under E.O. 2020-96’s companion order on that topic, E.O. 2020-97.
1

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The remaining federal 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 analysis2 applies just as well in this case, recognizing judicial deference to the reasonable and temporary measures challenged here. It is well recognized 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.” 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
2 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); see also Michigan United for Liberty v. Governor Whitmer, Michigan Court of Claims Case No. 20-61-MZ, May 19, 2020 Opinion and Order Denying Plaintiff’s Motion for a Preliminary Injunction (Attached as Exhibit M.)
2

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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 21, 2020, 53,510 have been confirmed infected and 5,129 have died, all in about 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 and Director Robert Gordon has taken bold, yet reasonable and necessary, steps to prioritize social distancing in Michigan.
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. The requirements that Plaintiffs challenge here, regarding the temporary postponement of non-essential medical procedures, are part of this broader network of response efforts to suppress the spread of COVID-19, protect the State’s health care resources from rapid depletion, and avoid scores of needless deaths.
These temporary response measures are designed to 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,
3

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and the Governor has been able to gradually and correspondingly lift a number of the previously imposed restrictions—including the very ones challenged here.
Providing Plaintiffs with their requested relief would unduly disregard the deference that is owed the executive branch’s management of this public health crisis and would undermine its effectiveness in a time of most dire need. The judicial creation of exceptions to the public health measures put in place by Governor Whitmer and Director Gordon 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 and welfare of all Michiganders. Even if they were not already moot, the claims Plaintiffs raise lack merit and they do not warrant the extraordinary remedy of a preliminary injunction.
STATEMENT OF FACTS Plaintiffs offer an inadequate 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. SARS-CoV-2 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, and no known treatment to combat the virus itself (as opposed to treatment to mitigate its symptoms).
4

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It is widely known and accepted that COVID-19, the disease that results from the virus, is highly contagious, spreading easily from person to person via “respiratory droplets.”3 Experts agree that being anywhere within six feet of an infected person puts you at a high risk of contracting the disease.4 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.5 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.”6 And as experience from prior pandemics such as smallpox
3 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). 4 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). 5 (Id.) 6 (Id.)
5

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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.7 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.8
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.9 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.10 Yet, even in the face of the social distancing
7 (Id.) 8 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. 9 E.O. No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. (Attached as Exhibit E). 10 E.O. No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. (Attached as Exhibit F).
6

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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.11 And on March 17, 2020, the Governor issued an order rescinding Executive Order 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.12
In response to impending healthcare shortages, the Governor orders certain medical care facilities to implement plans postponing nonessential medical procedures.
On March 20, 2020, the Governor issued Executive Order 2020-17, entitled “Temporary restrictions on non-essential medical and dental procedures.” E.O. 2020-17 required “all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all state-operated outpatient facilities . . . must implement a plan to temporarily postpone . . . all non-essential procedures.” (E.O. 2020-17, ¶ 1, Exhibit I.) As the order signaled in its preamble, this postponement-plan requirement was imposed “[t]o mitigate the spread of COVID-19, protect the public health, provide essential protections to Michiganders, and ensure the availability of
11 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). 12 E.O. No. 2020-11, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html. (Attached as Exhibit H).
7

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health care resources,” such as personal protective equipment, hospital beds, and other health care resources – which were in high and immediate demand as a result of this aggressively spreading pandemic, but in troublingly short supply.
The scope of the postponement plan required by the order was flexible and deferential to the judgment of the medical providers responsible for the care and treatment of the patient. Indeed, the order defined “non-essential procedure” as “a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (E.O. 2020-17, ¶ 1.) (emphasis added). The order was thus was designed to ensure that patients would continue to receive the treatment and care that, in the best clinical judgment of their medical providers, was necessary to preserve their health and safety during this pandemic.
Correspondingly, the order offered a few basic guideposts for its requisite postponement plan, which tracked this general principle. For instance, the order provided that “[a] plan . . . must exclude from postponement emergency or traumarelated procedures where postponement would significantly impact the health, safety, and welfare of the patient.” (Id. ¶ 2.) Similarly, a plan “must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient.” (Id.) And a plan should exclude from postponement:
surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would
8

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prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. [E.O. 2020-17, ¶ 2.] On May 21, 2020, the Governor issued Executive Order 2020-96, which rescinded Executive Order 2020-17 effective May 28, 2020 at 11:59 p.m. (E.O. 202096, ¶ 19, Exhibit J.) As that order’s preamble explained, the rescission was “reasonable” at that time because the urgent concerns that had required the order’s issuance had shown sufficiently reliable signs of abatement: “our health-care capacity has improved with respect to personal protective equipment, available beds, personnel, ventilators, and necessary supplies.” (E.O. 2020-96.)
The Governor issues and continually revises Stay Home orders to stem the tide of COVID-19 infections.
These concerns abated, and E.O. 2020-17 was able to be rescinded, as a result of a series of swift and targeted responsive measures the Governor took to mitigate the spread of COVID-19 across this State. Namely, three days after the issuance of E.O. 2020-17, on March 23, 2020, 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.13 The order also prohibited, with limited
13 E.O. No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. (Attached as Exhibit K).
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exceptions, all public and private gatherings of any number of people that are not part of a single household.14
Over the weeks that followed, the Governor reissued that Stay Home order periodically, adjusting its scope to as needed and appropriate to match the everchanging circumstances presented by this pandemic.15 The latest of those Stay Home executive orders, Executive Order 2020-96, issued May 21, 2020, permits, among other things, social gatherings of groups of ten or fewer people, retail businesses to re-open with certain social-distancing measures, and—as is relevant here—health care facilities to resume providing, and individuals to resume undergoing, non-essential medical procedures that had been temporarily postponed pursuant to E.O. 2020-17.
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)
14 (Id.) 15 See E.O. Nos. 2020-42, 2020-59, 2020-70, 2020-77, and 2020-92. Alongside these Stay Home executive orders, Director Gordon, acting pursuant to his authority under MCL 333.2253, issued emergency orders concluding that COVID-19 had reached epidemic status in Michigan and that the measures imposed in the Stay Home orders and certain related executive orders were necessary to control the epidemic and protect the public health. The first of these emergency orders was issued on April 2, 2018, with subsequent versions rescinding and replacing the prior versions of the order issued May 18, 2020 and May 21, 2020. As presented, Plaintiffs challenges appear directed primarily at the Governor’s executive orders and only nominally against Director Gordon’s April 2 Order.
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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).
ARGUMENT Here, not only do the traditional factors weigh against providing the Plaintiffs with a preliminary injunction, but, as an initial matter, there also are threshold jurisdictional and prudential legal reasons not to grant such relief. In particular, the Plaintiffs’ claims are moot, and this Court should abstain or otherwise decline supplemental jurisdiction over their state-law claims. 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 an executive order rescinding the challenged restrictions on non-essential medical procedures, effective May 29, 2020. Similarly, Plaintiffs’ claims regarding Director Gordon’s April 2, 2020 epidemic order are also moot. That order was expressly
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rescinded by Director Gordon through an order issued the same day Plaintiffs’ brought this motion, May 18th.16 And, following the Governor’s issuance of Executive Orders on May 21st, a new epidemic order rescinding the one from days earlier was issued. In their Complaint, Plaintiffs alleged the April 2 epidemic order was unlawful because it incorporated future Executive Orders and frequently asked questions that were being published to facilitate implementation. Neither of the successor orders issued by Director Gordon include text like that challenged by Plaintiffs. Thus, the legal analysis showing the mootness of Plaintiffs’ challenge to the Executive Orders applies with equal force to its claims against Director Gordon.
Considering this change in circumstances, the Plaintiffs have no legally cognizable interest in the outcome of this litigation and their claims are moot. This Court should deny injunctive relief on this basis alone.
A. Without a live case-or-controversy, Article III Courts lack jurisdiction.
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).
16 https://www.michigan.gov/documents/coronavirus/MDHHS_epidemic_order__reinforcing_governors_orders_5-18_SIGNED_691125_7.pdf
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In fact, “[n]o 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) (internal quotes omitted). “If a 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)).
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). A circumstance similar to legislative repeal has occurred here, where the Governor rescinded Executive Order 2020-17. See Executive Order 2020-96. Accordingly, there is nothing left to preliminarily enjoin. Plaintiffs’ claims are mooted.
In an attempt to avoid mootness, Plaintiffs may argue that the Governor’s action amounts to a “voluntary cessation.” While mere “voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the
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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 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 order is not mere “voluntary cessation.” In fact, the challenged executive order no longer has any legal force. It is extinct. See E.O. 2020-96. The lifting of the temporary restrictions, like the various other modifications made in these executive orders, is “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, and the new orders are simply a shadow to avoid litigation. As a general matter, the now-rescinded executive order imposed temporary regulations, see 2020-17’s Title (“Temporary restrictions on non-essential medical and dental procedures”), responding to the
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needs of the evolving public health crisis and the scarcity of medical resources. 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 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.
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The order challenged is rescinded. And, as mentioned, the above legal analysis showing the mootness of Plaintiffs’ challenge to the Executive Orders applies with equal force to its claims regarding the order issued by Director Gordon.
This Court should deny preliminary injunctive relief because Plaintiffs’ claims are moot.
II. The Court should abstain and otherwise decline supplemental jurisdiction over the novel claims brought under Michigan law and best decided in the first instance in Michigan courts. A. Abstention The precise questions raised in Counts I and II are currently being litigated
in the Michigan Courts. Identical questions about the scope of the EMA and EPGA are being litigated in Michigan House and Senate v. Gov. Whitmer, which was recently decided by the Court of Claims, Michigan Court of Claims Case No. 20-79MZ.17 Likewise, the question of whether the EMA and EPGA are impermissible delegations of legislative authority to the Governor is being litigated in Michigan United for Liberty v Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ and Martinko, et. al. v. Gov. Whitmer, et. al., Michigan Court of Claims Case No. 2062-MM. At the timing of this filing, both of these decisions either have been, or will imminently be, appealed. Given the gravity of the state law questions, and because the issues are currently being litigated in State court, this Court should abstain
17 See Exhibit L.
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from consideration of the claims under three distinct theories of abstention and deny preliminary injunctive relief.
1. Pullman abstention First, this Court should abstain from considering Counts I and II under the Pullman abstention doctrine. In Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499–500 (1941), the Supreme Court held that, when a challenged state statute requires interpretation by the judiciary, the “last word” on the meaning of the statute belongs to the state courts. The Court held: In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication. [Id. at 500] [internal citations removed]. In sum, “the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them.” Harrison v. Nat’l Ass’n for the Advancement of Colored People, 360 U.S. 167, 176 (1959). This “well-established procedure” promotes and protects federalism and it “spares the federal courts of unnecessary constitutional adjudication.” Id. at 176–77 (noting that Pullman abstention “is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system”)
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This Court should refrain from ruling on the cogency of the EMA and the EPGA because, for purposes of this argument, the statutes are “fairly open to interpretation” and “the state courts have [not] been afforded a reasonable opportunity to pass upon them.” Harrison, 360 U.S. at 176. Further, given the pending state court actions and the expected rapidity of their climb up the appellate ladder, a ruling by this Court on the EMA and EPGA would be “a tentative answer which may be displaced tomorrow by a state adjudication.” Pullman, 312 U.S. at 499–500.18 Such an abstention would not “involve the abdication of federal jurisdiction, but only the postponement of its exercise” while “serv[ing] the policy of comity inherent in the doctrine of abstention” and “spar[ing] the federal courts of unnecessary constitutional adjudication.” Harrison, 360 U.S. at 176–177. Because abstention is proper, injunctive relief should be denied.
2. Thibodaux abstention Second, this Court should abstain from considering Counts I and II under the Thibodaux abstention doctrine. While similar to Pullman abstention, Thibodaux abstention is more concerned with the type of state law at issue. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27–28 (1959). The Supreme Court has advised federal district courts to invoke Thibodaux abstention “where there have been presented difficult questions of state law bearing on policy
18 See also Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 511 (1972) (affirming the Eastern District of Michigan’s abstention in a case where a Michigan statute “has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars”).
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problems of substantial public import whose importance transcends the result in the case then at bar.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976).
In Thibodaux, the Supreme Court reviewed a Louisiana district court’s decision to abstain from ruling on the constitutionality of a Louisiana state law regarding eminent domain when the State’s Attorney General and cities in the State disagreed about the limits of eminent domain power. 360 U.S. at 30. The eminent domain power in question derived from a State statute that had never before been considered by the State courts. Id. The district court stayed the case and sought a declaratory ruling from the Louisiana Supreme Court. Id. The U.S. Supreme Court affirmed the decision of the district court to abstain, reasoning that “[i]nformed local courts may find meaning not discernible to the outsider” and that rendering a decision on the scope of the State statute may bind the litigants in the lawsuit “whereas the rights of all other litigants would be thereafter governed by a decision of the Supreme Court of Louisiana [which could be] quite different from ours.” Id.
In this case, this Court should defer to the Michigan state courts on Counts I and II. Importantly, the EMA and EPGA are solely related to police powers, powers inherent to the sovereignty of the State. Thibodaux, 360 U.S. at 30. The statutes invoked by the Governor are thus enactments going to the core of Michigan’s sovereignty. This once-in-a-generation pandemic is having a disproportionately
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deadly impact on the State of Michigan. And the Governor has responded by exercising powers that have been rarely needed or reviewed.
The scope and constitutionality of those powers is a question best left to the Michigan courts. Indeed, the COVID-19 pandemic and the emergency powers utilized by the Governor “present[] difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case . . . at bar.” Colorado River, 424 U.S. at 814 (emphasis added). This Court should abstain from exercising jurisdiction over Counts I and II under Thibodaux, and deny injunctive relief.
3. Colorado River abstention Finally, this Court should abstain from considering Counts I and II under the Colorado River abstention doctrine. Colorado River abstention should be invoked when there is concurrent litigation on the same grounds, no matter the type of claim at issue. Colorado River, 400 U.S. at 821. The Sixth Circuit has developed abstention factors to be considered where there is similar, concurrent litigation elsewhere: (1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; and (4) the order in which jurisdiction was obtained . . . (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiff’s rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction.
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Romine v. Compuserve Corp., 160 F.3d 337, 340-341 (6th Cir. 1998) (internal citations omitted)]. “These factors, however, do not comprise a mechanical checklist. Rather, they require ‘a careful balancing of the important factors as they apply in a given [sic] case’ depending on the particular facts at hand. Id. at 341 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15-16 (1983)).
In considering the factors above, this Court should invoke Colorado River and abstain from deciding Counts I and II. There has been no action in this case other than the complaint and the filing of the instant motion; this case involves important matters of State police power and authority that affect everybody in Michigan; and the Governor is a party to all the concurrent litigation related to the Governor’s Executive Orders. Colorado River, 400 U.S. at 820.
In addition, the Michigan courts have assumed jurisdiction over the concurrent litigation, and the source of governing law is state law. Likewise the litigation in the state courts will protect Plaintiffs’ rights as the relief sought is identical to the relief sought here, and Michigan Courts are the final arbiters of Michigan law. Romine, 160 F.3d at 340–41. Therefore, the factors enumerated by the Sixth Circuit favor this Court abstaining from adjudicating Counts I and II in this case. Id.
COVID-19 is a once-in-a-lifetime pandemic that threatens the safety and health of every single person in Michigan. To protect Michiganders, the Governor used statutory emergency powers to combat the spread of the virus. Michigan state
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courts are, right now, considering the scope and constitutionality of those powers. This Court should defer to the Michigan courts to avoid the possibility of inconsistent adjudications regarding matters of the upmost importance and immediacy, that would only add confusion and sow discord in already uncertain and trying times. This is just the sort of occasion where the friction of federalism should give way to appropriate prudential abstention doctrine. Because this Court should abstain from deciding Counts I and II, injunctive relief on the basis of those Counts should be denied.
B. Supplemental Jurisdiction In Count I, Plaintiffs maintain (incorrectly) that the Governor’s executive orders are not authorized by the Emergency Management Act, MCL 30.401 et. Seq., or the Emergency Powers of the Governor Act, MCL 10.31 et. seq. In Count II, Plaintiffs assert (again, incorrectly) that the EMA and EPGA are impermissible delegations of legislative authority to the Governor. But these claims have either already been decided by the Michigan Court of Claims, and the issues are quickly percolating in the state appellate courts right now.19 Exercising supplemental jurisdiction over these state law claims would be an affront to the comity this Court owes its state court counterparts, especially where several of these issues have been or will be decided in short order. Moreover,
19 See, e.g., Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ; Michigan United for Liberty v Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ and Martinko, et. al. v. Gov. Whitmer, et. al., Michigan Court of Claims Case No. 20-62-MM.
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deciding such state-law questions would not promote judicial economy or the convenience of the parties. Because this Court should ultimately decline to exercise supplemental jurisdiction over, and correspondingly dismiss, Counts I and II of the complaint, injunctive relief on the basis of those Counts would be improper.
A federal court may exercise supplemental jurisdiction over each claim in an action that shares a “common nucleus of operative facts” with a claim that invokes the court’s original jurisdiction. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); 28 U.S.C. § 1367. But the federal court need not exercise its authority to invoke supplemental jurisdiction in every case in which it is possible to do so. Id. at 726. Supplemental jurisdiction “is a doctrine of discretion, not of plaintiff’s right.” Id.
“In deciding whether to exercise supplemental jurisdiction . . . a judge must take into account concerns of comity, judicial economy, convenience, fairness, and the like.” Senra v. Smithfield, 715 F.3d 34, 41 (1st Cir. 2013). If these considerations are not present, “a federal court should hesitate to exercise jurisdiction over state claims.” Gibbs, 383 U.S. at 726. Additionally, supplemental jurisdiction may be denied “if the federal claims are dismissed before trial,” if “it appears that the state issues subsequently predominate,” or “if the likelihood of jury confusion” would be strong without separation of the claims. Id. at 726–27.
A court has the discretion to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) if:
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(1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Subsections one, two, and four are relevant to the present action.
1. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(1).
A district court may decline to exercise supplemental jurisdiction pursuant to § 1367(c)(1) if “the [state] claim raises a novel or complex issue of state law.” 28 U.S.C. § 1367(c)(1). In deciding whether to exercise supplemental jurisdiction, the “obscurity and the paucity of pertinent state judicial precedent [ ] argue[s] in favor of deferring in favor of the state courts.” Peters v. Cars to Go, Inc., 184 F.R.D. 270, 275 (W.D. Mich. Nov. 16, 1998) (quoting Scott v. Long Island Sav. Bank, FSB, 937 F.2d 738, 742 (2d Cir.1991)).
Here, there is scant Michigan authority interpreting or applying the statutes considered and challenged by Plaintiffs’ Counts I and II. Indeed, it is difficult to find any applicable Michigan precedent regarding the EMA or the EPGA. To be sure, the undersigned has been unable to locate a single Michigan case considering the scope or constitutionality of the EMA or EPGA under the circumstances as here. Nor are there any Michigan appellate cases considering whether the EMA and EPGA are impermissible delegations of legislative authority to the Governor.
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Similarly, there is no published case from a federal court that has ever attempted to resolve these legal issues.
Importantly, as mentioned, the precise questions raised in Counts I and II are currently being litigated in the Michigan courts. Identical questions about the scope of the EMA and EPGA are being litigated in Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ, and the question of whether the EMA and EPGA are impermissible delegations of legislative authority to the Governor is being litigated in that case as well as Michigan United for Liberty v Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ and Martinko, et. al. v. Gov. Whitmer, et. al., Michigan Court of Claims Case No. 20-62-MM.20 Comity considerations urge declining supplemental jurisdiction here.
There is no doubt that Counts I and II present novel questions of state law, and federal courts have an “interest in avoiding the unnecessary resolution of state law issues,” Hankins v. The Gap, Inc., 84 F.3d 797, 803 (6th Cir. 1996). See also Doe v. Sundquist, 106 F.3d 702, 708 (6th Cir.1997) (declining to exercise supplemental jurisdiction over the plaintiff’s state law claim that Tennessee law regarding disclosure of adoption records violated Tennessee constitution). Accordingly, this
20 In Michigan United for Liberty and Martinko, in separate preliminary rulings, the Michigan Court of Claims has determined that neither the Emergency Management Act nor the Emergency Powers of the Governor Act represent an impermissible delegation of legislative authority to the Governor. See Martinko v Whitmer, opinion of the Court of Claims, issued April 29, 2020 (Case No. 20-62-MM) (attached as Exhibit A); Michigan United for Liberty v Gov. Whitmer, opinion of the Court of Claims, issued May 18, 2019 (Case No. 20-61-MZ) (attached as Exhibit M).
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Court should decline supplemental jurisdiction over Counts I and II and deny injunctive relief.
2. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(2).
A district court may decline to exercise supplemental jurisdiction pursuant to § 1367(c)(2) if “the [state] claim substantially predominates over the claim or claims over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(2). Where “the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the state claims may be dismissed without prejudice and left for resolution to state tribunals.” Gibbs, 383 U.S. at 726–27. Here, the state law claims present disparate legal theories as to both claims and defenses that are wholly unrelated to the federal claims.
Indeed, Count I presents pure questions of statutory interpretation under state law, and Count II presents a pure question of constitutionality under the Michigan Constitution. These claims are completely independent from and unrelated to the federal claims. For these reasons, the state claims would predominate over the § 1983 federal claims over which this Court has original jurisdiction. Under 28 U.S.C. § 1367(c)(2), this Court should not exercise supplemental jurisdiction over Counts I and II and should deny preliminary injunctive relief.
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3. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(4).
Section 1367(c)(4) allows a district court to “decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c)(4). “Congress’s use of the word ‘other’ to modify ‘compelling reasons’ indicates that what ought to qualify as ‘compelling reasons’ for declining jurisdiction under subsection (c) (4) should be of the same nature as the reasons that gave rise to the categories listed in subsections (c)(1)-(3).” Executive Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994) (citing CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Once the court decides that there are compelling reasons to decline jurisdiction, the factors that inform this decision usually will demonstrate how the circumstances confronted are “exceptional.” Id. at 1558. Courts generally accept that “compelling reasons for the purposes of [§ 1367](c)(4) . . . should be those that lead a court to conclude that declining jurisdiction best accommodates the values of economy, convenience, fairness and comity.” Id. at 1557 (internal citations omitted); see also Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559, 1569 (11th Cir. 1994).
This is not a case where one relatively minor state law claim is brought along with federal causes of action that dominate the matter, nor is it a case where the federal and state causes of action parallel in terms of both elements and expected proofs. Any advantage that may have been gained by considering all the claims together are outweighed by the novel nature of the questions of state law presented,
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the considerations of comity, and deference to the state courts in allowing these important questions of state law to be resolved by state judicial authority in the first instance.
Because this Court should not exercise supplemental jurisdiction over Counts I and II, preliminary injunctive relief should be denied.
III. Plaintiffs are not likely to prevail on the merits of their claims. Even if Plaintiffs’ claims are not moot and this Court were to exercise
jurisdiction, Plaintiffs are unlikely to prevail. Although the four factors for injunctive relief “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 have not carried their burden of showing that they are likely to succeed on the merits of their claims for multiple reasons. First, as preenforcement claims with no imminent threat of enforcement, their claims are not ripe. Second, the restrictions in the Governor’s executive orders are a proper exercise of the expanded authority given to the States to combat a public health crisis. Third, even under a more standard analysis of the alleged constitutional violations, the restrictions pass muster.
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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 any 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. 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
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acknowledged they have not violated the executive orders 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 Governor acted pursuant to valid statutory authority under Michigan law.
Plaintiffs fail to present a viable theory under Michigan law for their claims that the EOs are unenforceable. For the reasons already stated, this federal forum should decline to reach those issues of Michigan law. Otherwise, this Court should reserve these issues and hold the questions in abeyance pending the resolution of the questions in state court.
In the alternative, Defendants rely upon the merits as argued by the Governor in her May 12, 2020 Response to Plaintiffs’ Motion for Immediate Declaratory Judgment. Michigan House of Representatives and Michigan Senate v. Gretchen Whitmer, Michigan Court of Claims No. 20-000079-MZ (Exhibit N.) See also 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). In light of this Court’s expedited briefing schedule, Defendants adopt and incorporate by reference the merits arguments as articulated by Exhibit N. Fed. R. Civ. P. 10(c). Upon the Court’s request and direction, however, Defendants will supplement this briefing.
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C. 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. The measures taken in the Governor’s executive orders were necessary to meet the demands of these extraordinary times and are reasonable and constitutional. Accordingly, preliminarily enjoining those orders is not warranted.
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. 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
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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. 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
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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 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
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merits of their claims challenging a complete abortion ban in Tennessee and a total
ban on group religious services in Kentucky. 21
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—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 health care system, and avoiding
needless deaths.22
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 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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Notably, Plaintiffs fail to cite 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-acentury 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.
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 are not likely to succeed on the merits of their complaint.
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2. Application of Jacobson to the current health crisis and the restrictions challenged by Plaintiffs.
Plaintiffs allege the impingement of constitutional rights as a result of E.O. 2020-17’s (now-rescinded) requirement that certain health care facilities temporarily implement a postponement plan for non-essential procedures, and E.O. 2020-92’s corresponding (and correspondingly now-amended) requirement that individuals travel only for certain necessary medical treatment (including for medical procedures that, in accordance with a duly adopted postponement plan, have not been postponed). These claims plainly fail under Jacobson’s duly deferential review.
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 the Governor’s executive orders be upheld in their entirety. While the impact of any restriction on some 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 and urgent goal of limiting the spread of this novel virus. A myopic, activity-specific framing of any issue is not a proper part of
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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, 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.
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 deadly pandemic such as this, the point—the necessity—is to only allow those risks to public health that can and must be taken; the stakes are too high to do otherwise.
To wit, a simple trip to a health care facility for non-emergency care might appear both innocuous and inoculated for purposes of the virus.
But appearances are deceiving. To get to that position, the individual patient likely had to handle multiple objects – vehicles, gas pumps, etc. – as did each of the workers at the care site. These individuals then all share space, breathe the same
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air, 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 do so much to avoid these harms and will present the downside of depleting limited resources critically needed to provide emergency care to those afflicted by COVID-19 and other conditions immediately threatening their health and safety.
This last point merits emphasis. Until recently, Michigan, like other states, had been in the throes of an impending and dangerous shortage of health care resources available to handle the steep and immediate demands created by this pandemic, from PPE for medical professionals (and other critical infrastructure workers), to ventilators and other necessary medical supplies, to hospital beds. As the virus began to ravage the State, health systems were quickly reaching or exceeding their 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 anticipation of local bed shortages.23 That it has not
23 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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seen thousands of patients is a blessing, and a result of the measures put in place— like E.O.s 2020-17 and 2020-92—to stem the tide.
Accordingly, there was ample good reason to temporarily regulate health care interactions and related travel, as the E.O.s challenged in this case did. Those restrictions served to protect the public health of the State and its residents, and to prevent its health care system from collapsing under the strain of easily transmittable, potentially fatal, and still untreatable virus. They—like the broader set of measures regarding travel and in-person work and activities that were put in place by the Governor’s emergency orders—were temporary, tailored, and aimed at guiding the state as swiftly and safely as possible through the severe dangers posed by this pandemic.
Plaintiffs complain that the restrictions they challenge lasted too long. But adequate time must be given for the public health goals to be served and a transition to economic normalcy to return—and due deference must be given under Jacobson to the Governor’s assessment and actions in that regard. And indeed, this careful and gradual transition is exactly what has been happening with the rescission of various executive orders—including E.O.s 2020-17 and 2020-92—and the promulgation of new ones. While circumstances rapidly escalated and the virus began to ravage the State, more restrictive measures were necessary to combat the spread and save lives. As circumstances have improved and the number of infections and deaths have trended downward, the restrictive measures have eased.
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This is the very essence of the emergency management authority afforded the Governor under the principles announced in Jacobson.
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.
In sum, the limited and 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 they most certainly do not constitute, “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 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. Under the applicable standards, they are. (Martinko Opinion, Ex A, p. 14, citation omitted). Accordingly, Plaintiffs cannot overcome Jacobson to obtain the preliminary relief they seek.
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D. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges fail. 1. Plaintiffs do not have a viable void for vagueness challenge.
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 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).
Plaintiffs’ brief quibbles with general (not vague) terms such as “health,” “non-essential procedures,” and “significantly impact.” (Pls’ Br. at 27–29.) There is, however, no claim here that any of the Plaintiffs have been subject to selective enforcement or otherwise unsure about what is or is not permitted in their particular situations. Indeed, the stated purpose of their motion is to reopen their health care businesses and to schedule a non-emergency joint replacement surgery. Even absent the mootness of this purpose in light of E.O. 2020-96, it would be unavailing.
By claiming the language of E.O. 2020-17 is vague, the Plaintiffs have flipped on its head the flexibility and discretion that the executive order permits them. Under the executive orders, the Plaintiffs were required to “implement a plan to
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temporarily postpone . . . all non-essential procedures.” Notably, other than a handful of specific measures that are included within the definition of “nonessential procedures” per Executive Order 2020-17—like non-emergency joint replacement or cosmetic surgery—the definition of “non-essential procedure” is “a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (E.O. 2020-17, ¶ 1) (emphasis added). Thus, beyond requiring a plan and identifying a few non-essential procedures, the scope and breadth of the plan was left to the discretion of the covered facilities and the professional judgment of their medical providers.
The terms of Executive Order 2020-17 are flexible and clear. The executive order requires creation and implementation of a plan, ¶¶ 1–2, and compliance with that plan, ¶ 4, and it largely grants licensed medical providers the latitude to “determine” what constitutes a non-essential procedures.
At bottom, Plaintiffs are attempting to use the doctrine of vagueness to secure exemptions from executive orders they have no problem understanding, but simply do not want to follow. While the orders’ restrictions have no doubt impacted the lives of many, Plaintiffs included, that impact has been necessary and tailored to meet an overarching, critical public health need. There is nothing unconstitutionally vague about the content of these restrictions, and Plaintiffs have shown no likelihood of success on their claims to that effect.
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2. Plaintiffs do not have a viable procedural due process claim.
It is difficult to discern what process Plaintiffs claim is lacking here for purposes of their procedural due process claim. Of course, the general touchstone for such claims is notice and an opportunity to be heard on a pre- or postdeprivation basis. See Mathews v. Eldridge, 424 U.S. 319, 332–33 (1976). But under the holding of Mathews, none of the instant Plaintiffs have suffered a final deprivation of any protected interest. The challenged executive orders contain temporary restrictions, not final ones. Additionally, Mathews concerned termination of disability benefits and not a generally applicable emergency order in a pandemic that need only be disseminated to the public through the usual media channels. Indeed, due process is “flexible and calls for such procedural protections as the particular situation demands.” Morissey v. Brewer, 408 U.S. 471, 481 (1972).
Here, Plaintiffs seem to be seeking some sort of process by which they can challenge a determination that a procedure is “non-essential,” while wholly overlooking the fact that, under the executive orders, that they themselves had broad flexibility and discretion to make that very determination on a case-by-case, patient-by-patient basis. Plaintiffs can point to nothing to indicate that, given this “particular situation,” due process would somehow “demand[]” further “procedural protections” regarding their determinations of what procedures are or are not necessary to preserve the health and safety of their patients during this pandemic. Id. And while Plaintiffs may very well prefer not to have had to make these determinations over the preceding weeks, it is inevitable that any effective response
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to a rapidly unfolding and deadly pandemic will involve some measure of disruption to the normal operations of healthcare businesses. Plaintiffs have offered nothing in the federal constitution or cases construing it that would have required any more here than general promulgation of the executive orders.
3. Plaintiffs do not have a viable substantive due process claim.
The Sixth Circuit has 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 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).
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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 rapid spread of an aggressive, untreatable, and potentially fatal disease, and to ensure this State’s health care system had the capacity and resources to manage that spread. “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. In addition, there is nothing conscience-shocking about prioritizing types of medical care during a pandemic for purposes of not depleting or misdirecting scarce health-care resources (PPE, drugs, emergency room capacity, ICE capacity, etc.), nor about placing temporary limitations on certain types of traffic within the State in order to strike a necessary and carefully tailored balance between reducing travel—and therefore human interactions and community spread of this deadly virus throughout the State—and allowing citizens to engage in essential functions. There is no substantive due process issue with these measures, and Plaintiffs’ claims on that basis are not likely to succeed.
4. Plaintiffs do not have a viable dormant commerce clause claim.
By empowering Congress to regulate interstate commerce, the Commerce Clause is interpreted to, correspondingly, prohibit states from interfering with the
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same. U.S. Const., Art. I, s. 8, cl. 3. This negative implication, commonly known as the “dormant commerce clause” “prohibit[s] outright economic protectionism or regulatory measures designed to benefit in-state economic actors by burdening outof-state actors.” E. Ky. Res. v. Fiscal Court, 127 F.3d 532, 540 (6th Cir. 1997). A two-tiered analysis applies to such claims. “The first prong targets the core concern of the dormant commerce clause, protectionism – that is ‘differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.’” Tenn. Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 449 (6th Cir. 2009) (quoting Or. Waste Sys. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994)). The second applies where, as here, the order invokes no inkling of in-state protectionism but, instead, applies to all businesses operating with this state. In this situation, the order is presumed valid unless its burden on interstate commerce is “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142, (1970). Plaintiffs bear the burden of demonstrating this second prong weighs in their favor. Their arguments fall far short.
Any burden of the executive orders on interstate commerce or out-of-state actors is minuscule compared to the benefit to the state and local communities as a whole. The challenges presented by the spread of COVID-19 required swift action throughout Michigan to stop the spread of a highly contagious and deadly disease. This includes the complained of restrictions on business and health care activity raised in Plaintiffs’ motion. Many businesses and individuals throughout the State have faced these necessary and temporary restrictions.
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But nothing in the executive orders regulates interstate commerce as interstate commerce. Impacts on such commerce may be inevitable, but that is not the focus of any of the challenged restrictions. This factor alone distinguishes this case from recognized dormant commerce clause challenges. Additionally, none of the challenged orders seek to regulate any conduct outside of the State of Michigan. While Plaintiffs were impacted by the restrictions and presumably engaged in interstate commerce, those factors alone fall far short of a viable commerce clause challenge.
Further, in Pike, the Supreme Court specifically recognized that its holding was influenced by the fact that it was not dealing with “state legislation in the field of safety where the propriety of local regulation has long been recognized.” Pike, 397 U.S. at 143. This is not the case here. Dealing with public health in general and a pandemic in particular fall squarely within deeply rooted local and state police powers, and Plaintiffs offer nothing to show that the restrictions they challenge were somehow “clearly excessive” in comparison to the critical protections those restrictions provided to the residents, communities and health care system of this State during this pandemic. Therefore, Plaintiffs have not demonstrated a likelihood of success – and much less a substantial likelihood of success – on their dormant commerce clause claim.
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IV. The remaining factors weigh against injunctive relief. A. Plaintiffs have shown no 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– 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 – other than bald assertions about loss of customers, goodwill, and future business.
Plaintiffs’ failure to offer any evidentiary support for their vague assertions of injury cannot be ignored in light of the heavy burden upon them. Nor is it appropriate to presume such injury from the existence of the Executive Orders in recent months. The fact that the need for social distancing has impacted some of the services Plaintiffs offer does not automatically translate into the doomsday
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outcomes they postulate. Society is adapting to mitigate the impact of COVID-19. The healthcare industry is no exception.
Further, The United States Department of Health and Human Services has issued guidance on tele-medicine. This includes a statement that, “We encourage health care providers to adopt and use telehealth as a way to safely provide care to your patients in appropriate situations, including: routine health care, like wellness visits; medication consultation; dermatology (skin care); eye exams; nutrition counseling; mental health counseling.”24
Plaintiffs also say nothing about the adjustments and accommodations they have made to provide supportive services to their patients while the temporary limitations on their normal operations were in place. Likewise, while it is asserted that Plaintiff Gulick cannot get pain medication for his surgically repaired knee until a meeting with his doctor on June 11th, no explanation is made about why this is or must be so.
In the absence of evidence to the contrary, this factor favors Defendants.
B. An injunction would harm third parties and the public interest.
The third and fourth factors are similar—whether an 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
24 https://www.hhs.gov/coronavirus/telehealth/index.html
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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 orders would harm third parties and would not benefit the public. The orders were put in place after careful consideration of the unique nature of the threat facing Michigan and the advice of numerous individuals 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. For the reasons already briefed, a particular party’s race to the courthouse should not control who is and is not excepted, particularly in a time of great public need when all in Michigan must grab hold of an oar and row in the same direction. As a result, the third and fourth factors favor Defendants as well.
CONCLUSION AND RELIEF REQUESTED Defendants Whitmer and Gordon respectfully request that the Court deny Plaintiffs’ motion for a preliminary injunction, cancel the hearing set for May 28, 2020, and grant any other appropriate relief to Defendants.
Respectfully submitted, /s/ John G. Fedynsky John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847)
50

Case 1:20-cv-00414-PLM-PJG ECF No. 20 filed 05/22/20 PageID.850 Page 57 of 57

Dated: May 22, 2020

Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fednyskyj@michigan.gov P65232

CERTIFICATE OF SERVICE

I certify that on May 22, 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/ John G. Fedynsky John G. Fedynsky Assistant Attorney General Attorney for Defendants Whitmer & Gordon State Operations Division

51

Case 1:20-cv-00414-PLM-PJG ECF No. 20-1 filed 05/22/20 PageID.851 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-1 filed 05/22/20 PageID.852 Page 2 of 3

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit A
B
C
D
E F G H I J K L

Index of Exhibits Description
Opinion and Order Denying Plaintiffs’ Motion for a Preliminary Injunction, Martinko, et. al. v. Governor Whitmer, et. al., Michigan Court of Claims Case No. 20-62-MM
Modes of transmission of virus causing COVID-19, World Health Organization
Social Distancing, Quarantine, and Isolation, Centers for Disease Control
Flattening the Coronavirus Curve (March 27, 2020), New York Times
E.O. No.2020-4
E.O. No. 2020-5
E.O. No. 2020-9
E.O. No. 2020-11
E.O. No. 2020-17
E.O. No. 2020-96
E.O. No. 2020-21
Opinion and Order of the Court issued May 21, 2020, Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ
2

Case 1:20-cv-00414-PLM-PJG ECF No. 20-1 filed 05/22/20 PageID.853 Page 3 of 3

M

Opinion and Order of the Court issued May 18, 2019, Michigan

United for Liberty v. Gov. Whitmer, Michigan Court of Claims

Case No. 20-61-MZ

N

Response to Plaintiffs’ Motion for Immediate Declaratory

Judgment, Michigan House of Representatives and Michigan

Senate v. Gretchen Whitmer, Michigan Court of Claims Case No.

20-79-MZ

3

Case 1:20-cv-00414-PLM-PJG ECF No. 20-2 filed 05/22/20 PageID.854 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-2 filed 05/22/20 PageID.855 Page 2 of 20

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit A

Case 1:20-cv-00414-PLM-PJG ECF No. 20-2 filed 05/22/20 PageID.856 Page 3 of 20
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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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-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.874 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.875 Page 2 of 8

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit B

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.876 Page 3 of 8

.cls-1{fill:#0093d5;}World Health

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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,
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Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.877 Page 4 of 8 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-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.878 Page 5 of 8 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-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.880 Page 7 of 8 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.
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Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00414-PLM-PJG ECF No. 20-3 filed 05/22/20 PageID.881 Page 8 of 8 © 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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Case 1:20-cv-00414-PLM-PJG ECF No. 20-4 filed 05/22/20 PageID.882 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-4 filed 05/22/20 PageID.883 Page 2 of 6

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit C

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00414-PLM-PJG ECF No. 20-4 filed 05/22/20 PageID.884 Page 3 of 6
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-00414-PLM-PJG ECF No. 20-4 filed 05/22/20 PageID.885 Page 4 of 6 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-00414-PLM-PJG ECF No. 20-4 filed 05/22/20 PageID.886 Page 5 of 6 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-00414-PLM-PJG ECF No. 20-4 filed 05/22/20 PageID.887 Page 6 of 6 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-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.888 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.889 Page 2 of 8

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit D

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.890 Page 3 of 8
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-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.891 Page 4 of 8
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-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.892 Page 5 of 8
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-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.893 Page 6 of 8
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
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-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.894 Page 7 of 8
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-00414-PLM-PJG ECF No. 20-5 filed 05/22/20 PageID.895 Page 8 of 8
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-00414-PLM-PJG ECF No. 20-6 filed 05/22/20 PageID.896 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-6 filed 05/22/20 PageID.897 Page 2 of 4

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit E

Case 1:20-cv-00414-PLM-PJG ECF No. 20-6 filed 05/22/20 PageID.898 Page 3 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 20-6 filed 05/22/20 PageID.899 Page 4 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 20-7 filed 05/22/20 PageID.900 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-7 filed 05/22/20 PageID.901 Page 2 of 4

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit F

Case 1:20-cv-00414-PLM-PJG ECF No. 20-7 filed 05/22/20 PageID.902 Page 3 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 20-7 filed 05/22/20 PageID.903 Page 4 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 20-8 filed 05/22/20 PageID.904 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-8 filed 05/22/20 PageID.905 Page 2 of 5

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit G

Case 1:20-cv-00414-PLM-PJG ECF No. 20-8 filed 05/22/20 PageID.906 Page 3 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 20-8 filed 05/22/20 PageID.907 Page 4 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 20-8 filed 05/22/20 PageID.908 Page 5 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 20-9 filed 05/22/20 PageID.909 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-9 filed 05/22/20 PageID.910 Page 2 of 5

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit H

Case 1:20-cv-00414-PLM-PJG ECF No. 20-9 filed 05/22/20 PageID.911 Page 3 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 20-9 filed 05/22/20 PageID.912 Page 4 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 20-9 filed 05/22/20 PageID.913 Page 5 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 20-10 filed 05/22/20 PageID.914 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-10 filed 05/22/20 PageID.915 Page 2 of 5

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit I

5/22/2020 Case 1:20-cv-00414-PLM-PJG ECWFhitmNeor .- E2x0ec-u1ti0vefOilrededr 200520/-2127 /(C2O0VIDP-1a9)geID.916 Page 3 of 5
OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-17 (COVID-19)

EXECUTIVE ORDER

No. 2020-17

Temporary restrictions on non-essential medical and dental procedures
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-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
 The Emergency 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).

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5/22/2020 Case 1:20-cv-00414-PLM-PJG ECWFhitmNeor .- E2x0ec-u1ti0vefOilrededr 200520/-2127 /(C2O0VIDP-1a9)geID.917 Page 4 of 5 To mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources, it is reasonable and necessary to impose temporary restrictions on non-essential medical and dental procedures.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. Beginning as soon as possible but no later than March 21, 2020 at 5:00 pm, and continuing while the state of emergency declared in Executive 2020-4 is in eﬀect, all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all state-operated outpatient facilities (collectively, “covered facilities”), must implement a plan to temporarily postpone, until the termination of the state of emergency under section 3 of Executive Order 2020-4, all non-essential procedures (“non-essential procedure postponement plan” or “plan”). For purposes of this order, “non-essential procedure” means a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.

2. A plan for a covered facility that performs medical procedures, including any medical center or oﬃce that performs elective surgery or cosmetic plastic surgery, must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would signiﬁcantly impact the health, safety, and welfare of the patient. A plan for a covered facility that performs medical procedures should exclude from postponement: surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancyrelated visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. A plan for a covered facility that performs medical procedures must exclude from postponement emergency or trauma-related procedures where
 postponement would signiﬁcantly impact the health, safety, and welfare of the patient.

3. A plan for a covered facility that performs dental procedures must postpone, at a minimum: any cosmetic or aesthetic procedures (such as veneers, teeth bleaching, or cosmetic bonding); any routine hygiene appointments; any orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; initiation of any crowns, bridges, or dentures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; any periodontal plastic surgery; any extractions of asymptomatic non-carious teeth; and any recall visits for periodontally healthy patients. If a covered facility that performs dental procedures chooses to remain

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5/22/2020 Case 1:20-cv-00414-PLM-PJG ECWFhitmNeor .- E2x0ec-u1ti0vefOilrededr 200520/-2127 /(C2O0VIDP-1a9)geID.918 Page 5 of 5 open, its plan must exclude from postponement emergency or trauma-related procedures where postponement would signiﬁcantly impact the health, safety, and welfare of the patient.
4. A covered facility must comply with the restrictions contained in its non-essential procedure postponement plan.
5. This order does not alter any of the obligations under law of an a ected health care facility to its employees or to the employees of another employer.
6. The director of the Department of Licensing and Regulatory Aﬀairs shall issue orders or directives pursuant to law as necessary to enforce this order.
7. 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-00414-PLM-PJG ECF No. 20-11 filed 05/22/20 PageID.919 Page 1 of 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-11 filed 05/22/20 PageID.920 Page 2 of 14

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit J

5/22/2020 Case 1:20-cv-00414-PLM-PJG ECWFhiNtmoer.-2E0xe-c1ut1ivefiOlerdder02052/02-926/2(C0OVIDP-1a9g) eID.921 Page 3 of 14
OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-96 (COVID-19)

EXECUTIVE ORDER
No. 2020-96
Temporary requirement to suspend certain activities that are not necessary to sustain or protect life
Rescission of Executive Orders 2020-17, 2020-34, and 2020-92
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
 emergency 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 202067 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

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5/22/2020 Case 1:20-cv-00414-PLM-PJG ECWFhiNtmoer.-2E0xe-c1ut1ivefiOlerdder02052/02-926/2(C0OVIDP-1a9g) eID.922 Page 4 of 14 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, 2020-70, 2020-77, and 202092, 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 these executive orders have been eﬀective: the number of new conﬁrmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 20, 2020, Michigan reported 53,009 conﬁrmed cases and 5,060 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.
With this order, I ﬁnd it reasonable and necessary to reaﬃrm the measures set forth in Executive Order 2020-92, while also allowing gatherings of no more than ten people statewide, eﬀective immediately, and permitting retailers and motor vehicle dealerships to see customers by appointment, beginning on May 26, 2020. In addition, because our health-care capacity has improved with respect to personal protective equipment, available beds, personnel, ventilators, and necessary supplies, I ﬁnd it reasonable to rescind Executive Orders 2020-17 and 2020-34, which required health-care and veterinary facilities to implement plans to postpone some medical and dental procedures. Those rescissions will take eﬀect on May 29.
 Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
I. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
II. 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. III. 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. IV. 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. V. 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. 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 2020-97 and any orders that may follow from it. c. Workers who perform resumed activities are deﬁned in section 11 of this order. VI. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following

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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 2020-97 and any orders that may follow from 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.
VII. 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. 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 2020-97 and any orders that may follow from it. VIII. Exceptions.
a. Individuals may leave their home or place of residence, and travel as necessary:

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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 for themselves or a household or family

member.

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 go to a motor vehicle

dealership showroom by appointment, as permitted under section 11(p)

of this order.



 C. Individuals may leave the home to have a bicycle repaired or maintained.

D. 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

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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 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. 20. To go to a retail store by appointment, as permitted under section 11(q) of this order. 21. To attend a social gathering of no more than 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. IX. 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.
 Consistent 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.

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k. Hazardous materials.

l. Financial services.

m. Chemical supply chains and safety.

n. Defense industrial base.

X. 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 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.



 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

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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 until May 26, 2020 at 12:01 am.

XI. 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.

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

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performed has been prepared to follow the workplace safeguards described in

section 4 of Executive Order 2020-97 and any orders that may follow from 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, 2020, workers necessary to

perform retail activities. For purposes of this order, retail activities are deﬁned:

1. As the selling of goods and the rendering of services incidental to the sale of the

goods (e.g., any packaging and processing to allow for or facilitate the sale and

delivery of the goods).

2. To exclude those places of public accommodation that are closed under

Executive Order 2020-69 and any orders that may follow from it.

m. For Regions 6 and 8, beginning at 12:01 am on May 22, 2020, 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, 2020, workers in restaurants

or bars, subject to the capacity constraints and workplace standards described in

Executive Order 2020-97. 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. For restaurants and bars subject to this

subsection, this subsection supersedes the limitations placed on those restaurants

and bars by Executive Order 2020-69 and any order that may follow from it.

o. Workers necessary to prepare a workplace to follow the workplace standards

described in Executive Order 2020-97 and to otherwise ready the workplace for

reopening.

p. Beginning at 12:01 am on May 26, 2020, workers at motor vehicle dealerships,

provided that showrooms are open only by appointment.

q. Beginning at 12:01 am on May 26, 2020, workers necessary to perform retail

activities by appointment, provided that the store is limited to 10 customers at any

one time. For purposes of this order, retail activities are deﬁned:

1. As the selling of goods and the rendering of services incidental to the sale of the

goods (e.g., any packaging and processing to allow for or facilitate the sale and

delivery of the goods).

2. To exclude those places of public accommodation that are closed under



Executive Order 2020-69 and any orders that may follow from it.



r. 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.

XII. Any store that is open for in-store sales under section 10(f), section 11(c), or section 11(q)

of this executive order:

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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.
XIII. 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.
XIV. 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.
XV. 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. An individual may also remove a face covering 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, 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.
XVI. Except as otherwise expressly stated in this order, 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 22 of this order for allowing religious worship at such place. No
individual is subject to penalty under section 22 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. XVII. 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. XVIII. This order takes eﬀect immediately, unless otherwise speciﬁed in this order, and continues through May 28, 2020 at 11:59 pm. XIX. Executive Order 2020-17, which imposed temporary requirements regarding the postponement of non-essential medical and dental procedures, is rescinded as of May 28,

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5/22/2020Case 1:20-cv-00414-PLM-PJG ECFWhNitmoe.r 2- E0x-e1cu1tivfeilOerdde0r 250/220-29/62(C0OVPIDa-1g9)eID.931 Page 13 of 14 2020 at 11:59 pm. Executive Order 2020-34, which imposed temporary requirements regarding the postponement of veterinary services, is rescinded as of May 28, 2020 at 11:59 pm. Outpatient health-care facilities, including veterinary oﬃces, are subject to the workplace safety rules described in Executive Order 2020-97.
XX. Executive Orders 2020-92 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.
XXI. 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 COVID-19 cases and isolate infected people; and (5) economic conditions in the state.
XXII. 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.
GRETCHEN WHITMER GOVERNOR
Date: May 21 2020
Time: 9:49 am

RELATED CONTENT
Executive Order 2020-95 (COVID-19) (May 21, 2020) Executive Order 2020-97 (COVID-19) (May 21, 2020) Executive Order 2020-93 (COVID-19) (May 20, 2020)
 Executive Order 2020-94 (May 19, 2020) - Declaration of State of Emergency Executive Order 2020-85 (COVID-19) Executive Order 2020-88 (COVID-19) Executive Order 2020-92 (COVID-19) (May 18, 2020) - Rescinded Executive Order 2020-91 (COVID-19) (May 18, 2020) - Rescinded Executive Order 2020-86 (COVID-19) Executive Order 2020-87 (COVID-19)
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-529860--,00.html


11/12

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

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Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.933 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

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Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit K

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Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.936 Page 4 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.937 Page 5 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.938 Page 6 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.939 Page 7 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.940 Page 8 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.941 Page 9 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-12 filed 05/22/20 PageID.942 Page 10 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 20-13 filed 05/22/20 PageID.943 Page 1 of 27

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

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Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit L

Case 1:20-cv-00414-PLM-PJG ECF No. 20-13 filed 05/22/20 PageID.945 Page 3 of 27 1
STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES, and MICHIGAN SENATE,
Plaintiffs,
v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

OPINION AND ORDER
Case No. 20-000079-MZ Hon. Cynthia Diane Stephens

This matter arises out of Executive Orders issued by Governor Gretchen Whitmer in response to the COVID-19 pandemic. Neither the parties to this case nor any of the amici deny the emergent and widespread impact of Covid-19 on the citizenry of this state. Neither do they ask this court at this time to address the policy questions surrounding the scope and extent of contents of the approximately 90 orders issued by the Governor since the initial declaration of emergency on March 10, 2020 in Executive Order No. 2020-4. The Michigan House of Representatives and the Michigan Senate (Legislature) in their institutional capacities challenge the validity of Executive Orders 2020-67 and 2020-68, which were issued on April 30, 2020. They have asked this court to declare those Orders and all that rest upon them to be invalid and without authority as written. The orders cited two statutes, 1976 PA 390, otherwise known as the Emergency Management Act (EMA); and 1945 PA 302, otherwise known as the Emergency Powers of Governor Act (EPGA). In addition, the orders cite Const 1963, art 1, § 5, which generally vests the executive power of the state in the Governor. This court finds that:

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1. The issue of compliance with the verification language of MCL 600.6431 is abandoned. 2. The Michigan House of Representative and Michigan Senate have standing to pursue this
case. 3. Executive Order 2020-67 is a valid exercise of authority under the EPGA and plaintiffs
have not established any reason to invalidate any executive orders resting on EO 2020-67. 4. The EPGA is constitutionally valid. 5. Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.
I. BACKGROUND
The Court will dispense with a lengthy recitation of the pertinent facts and history and will instead jump to the Governor’s declaration of a state of emergency1 as well as a state of disaster2 under the EMA and the EPGA on April 1, 2020, in response to the COVID-19 pandemic. Executive Order No. 2020-33. Both chambers of the Legislature adopted Senate Joint Resolution No. 24 which approved “an extension of the state of emergency and state of disaster declared by Governor Whitmer in Executive Order 2020-4 and Executive Order 2020-33 through April 30, 2020. . . .” The Senate Concurrent Resolution cited the 28-day legislative extension referenced in MCL 30.403 of the EMA.
1 The EPGA does not define the term “state of emergency.” However, the EMA defines the term as follows: “an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(q). 2 While the EPGA does not use, let alone define, the term “state of disaster,” the EMA defines the term as “an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(p).

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The public record affirms that the governor asked the legislative leadership to extend the state of disaster and emergency on April 27, 2020. The Legislature demurred and instead passed SB 858, a bill without immediate effect, which addressed some the subject matter of several of the COVID-19-related Executive Orders, but did not extend the state of emergency or disaster or the stay-at-home order. The Governor vetoed SB 858.
On April 30, 2020, the Governor issued Executive Order 2020-66 which terminated the state of emergency and disaster that had previously been declared under Executive Order 202033. The order opined that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Executive Order No. 2020-66 (emphasis added). However, EO 2020-66 acknowledged that 28 days “have lapsed since [the Governor] declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33.” Id. The order declared there was a “clear and ongoing danger to the state . . . .” (Emphasis added).
On the same day, and only one minute later, the Governor issued two additional executive orders. First, she issued Executive Order No. 2020-67, which cited the EPGA. [In addition, the order contained a cursory citation to art 5, § 1.] EO 2020-67 noted the Governor’s authority under the EPGA to declare a state of emergency during “‘times of great public crisis . . . or similar public emergency within the state. . . .’” Id. quoting MCL 10.31(1). The order noted that such declaration does not have a fixed expiration date. Id. Then, and as a result of the ongoing COVID-19 pandemic, EO 2020-67 declared that a “state of emergency remains declared across the State of Michigan” under the EPGA. The order stated that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The order was to take immediate effect. Id.

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In addition to declaring that a state of emergency “remained” under the EPGA, the Governor simultaneously issued Executive Order No. 2020-68; this order declared a state of emergency and a state of disaster under the EMA. [In addition, like all previous orders, the order contained a vague citation to art 5, § 1 as well.] Hence, EO 2020-68 essentially reiterated the very same states of emergency and disaster that the Governor had, approximately one minute earlier, declared terminated. The order declared that the states of emergency and disaster extended through May 28, 2020 at 11:59 p.m., and that all orders that had previously relied on the prior states of emergency and disaster declaration in EO 2020-33 now rest on this order, i.e., EO 2020-68.
The House of Representative and the Senate subsequently filed this case asking for an expedited hearing and a declaration that EO 2020-67 and EO 2020-68, and any other Executive Orders deriving their authority from the same, were null and void.
COMPLIANCE WITH MCL 600.6431
The Governor noted in her reply brief that the complaint, as originally filed in this court did not meet the verification requirement of MCL 600.6431(2)(d). At oral argument the Governor acknowledged that the verification requirements were not met when the complaint was originally filed; however, a subsequent filing was notarized in accordance with the statute. The Governor also acknowledged that the failure to sign the verified pleading before a person authorized to administer oaths was not necessary for invoking this Court’s jurisdiction. Finally, the Governor agreed that she was not seeking dismissal of the action based on plaintiffs’ initial lack of compliance. For those reasons this Court will consider the issue moot and decline any analysis of the arguments predicated on MCL 600.6431.
STANDING

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The issue of standing is central to this case as it is with all litigation. Courts exist to manage actual controversies between parties to whom those controversies matter. The Legislature has cited MCR 2.605 in support of its standing to pursue this declaratory action. The Legislature asserts that it has a need for guidance from this Court in order to determine how it will proceed to protect what it articulates as its special institutional rights and responsibilities. The Governor challenges whether the Legislature has standing to bring this suit. The Governor argues that the institution of the Legislature has no more interest in the outcome of this suit than any member of the public. She further claims that the Legislature does not need the guidance of the Court to determine how to carry out its constitutional duties. It is the opinion of this Court that the Legislature has standing to pursue its claims before this Court.
Both parties cite the seminal case on the issue of standing, Lansing Schs Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). In that case, the Supreme Court refined the concept of standing under the Michigan Constitution. In doing so, the Court rejected the federal standing analysis and articulated an analytical framework rooted the Michigan Constitution. The Lansing Schs Ed Ass’n Court looked to whether a cause of action was authorized by the Legislature. Where the Legislature did not confer a right to a specific cause of action, a plaintiff must have “a special injury or right, or substantial interest, that will be detrimentally affected in a manner different than the citizenry at large . . . .” Id. at 372.
The Governor relies heavily on the recent case of League of Women Voters of Mich v Secretary of State, __ Mich App __; __ NW2d __ (2020) (Docket Nos. 350938; 351073), which is itself now on appeal to the Michigan Supreme Court. That case, similar to the instant case, was brought under the aegis of MCR 2.605 and asked the court to declare that an Attorney General Opinion’s interpretation of a statute was invalid. The Court of Appeals majority in League of

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Women Voters examined the issue through the lens of MCR 2.605 and found that in that case the institution of the Legislature had no standing: “Given the definition of ‘actual controversy’ for the purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgement is necessary to guide the Legislature’s future conduct in order to preserve its legal rights.” Id., slip op at p. 7.
League of Women Voters was the first examination of the issue of institutional standing in Michigan. For that reason, the court focused on the logic of the Supreme Court’s decision in Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), which analyzed a standing issue in relation to individual legislators. Dodak, like this case, presented a conflict between the executive and legislative branches of state government. That Court, like this one, is mindful that in such instances the issue of legislative standing requires a litigant to overcome “a heavy burden because, courts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government.” League of Women Voters, __ Mich App at __, slip op at p. 8 (citation and quotation marks omitted; cleaned up). There must be a “personal and legally cognizable interest peculiar” to the legislative body, rather than a “generalized grievance that the law is not being followed.” Id. (citations and quotation marks omitted). In Dodak four legislators pressed a case concerning what they asserted was an abrogation of their individual rights as members of the appropriations committees when the State Administrative Board was allowed to redistribute funds allocated by the Legislature between departments of state government. Ultimately the Supreme Court found that the chair of the appropriation committee did in fact have a peculiar and special right and a potential for a personal injury sufficient to acquire standing. In Dodak, 441 Mich at 557, the Supreme Court cited with approval federal authorities holding that an individual legislator “‘only has standing if he alleges a diminution of congressional influence

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which amounts to a complete nullification of his vote, with no recourse in the legislative process.’ Dodak, 441 Mich at 557, quoting Chiles v Thornburgh, 865 F3d 1197, 1207 (CA 11, 1989). In League of Women Voters the institution claimed its right was to have a constitutionally correct interpretation of certain legislation. The League of Women Voters Court found that indeed every citizen had such a right and the Legislature once it enacted a statute had no special relationship to it. League of Women Voters, __ Mich App at __, slip op at p. 8. The case did not, remarked the Court, concern the validity of any particular legislative member’s vote. Id.
While it is a close question, this Court finds that the issue presented in this case is whether the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the Legislature’s decision to decline to extend the states of emergency/disaster. The United States Court of Appeals for the Sixth Circuit recently found that a legislative body under certain circumstances does have standing. See Tennessee General Assembly v United States Dep’t of State, 931 F3d 499 (CA 6, 2019). The logic of their analysis is persuasive and compatible with both Dodak and League of Women Voters. In Tennessee General Assembly, the Sixth Circuit surveyed two cases from the Supreme Court of the United States to illustrate when a legislative body, or portion thereof, may have standing. Id. at 508, citing Coleman v Miller, 307 US 433; 59 S Ct 972; 83 L 3d 1385 (1939); and Ariz State Legislature v Ariz Independent Redistricting Comm, __ US __; 135 S Ct 2652; 192 L Ed 704 (2015). Surveying Coleman and its progeny, the Sixth Circuit explained that, “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Tennessee General Assembly, 931 F3d at 509 (citation and quotation marks omitted). The Sixth Circuit further noted that Arizona State Legislature Court also conferred standing under article III to a legislature. In

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that case, the legislature claimed that the power to redistrict accrued to them under the Arizona constitution. The challenged action in that case was “more similar to the ‘nullification’ injury in Coleman.” Tennessee General Assembly, 931 F3d at 510, citing Arizona State Legislature, __ US at __; 135 S Ct at 2665. To that end, the proposal at issue would have completely nullified any legislative vote, and there was “a sufficiently concrete injury to the Legislature’s interest in redistricting . . . that the Legislature had Article III standing.” Id., citing Arizona State Legislature, __ US at __; 135 S Ct 2665-2666.
The injury claimed in this case is that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster. The Legislature claims this right is exclusively theirs as an institution under the EMA and this state’s Constitution. Understanding that Lansing Schs Ed Ass’n specifically departed from the Article III analysis of its predecessor cases, the nullification argument is nevertheless not incompatible with the Lansing Schs Ed Ass’n focus on “special injury.” This type of injury sounds similar in the nature of the right that was taken from the one plaintiff who had standing in Dodak, 441 Mich at 559-560, i.e., the member of the House Appropriations Committee who lost his right to approve or disapprove transfers following the Governor’s actions.
In this respect the instant matter is distinguishable from League of Women’s Voters, __ Mich App at __, slip op at 9, where the Court of Appeals remarked that “the validity of any particular legislative member’s vote is not at issue[.]” Plaintiffs have at least a credible argument that they are not merely seeking to have this Court resolve a lost political battle, nor are plaintiffs only generally alleging that the law is not being followed. Cf. id. at 8. Rather, they are alleging that the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole. This is an injury that is unique to the Legislature and it shows a

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substantial interest that was (allegedly) detrimentally affected in a manner different than the citizenry at large. Cf. id. at 7 (discussing standing, generally).
As a final argument on standing, the Governor contends that the Legislature does not need declaratory relief to guide its future actions. She and at least one amicus brief note that the Legislature has in fact moved toward amending the EPGA. At oral argument the Legislature was almost invited to amend either the EMA or EPGA. However, while the legislative body is well aware of its power to enact, amend, and repeal statutes, this Court believes that guidance as to the issues presented in this case will avoid a multiplicity of litigation. The parties here have pled facts of an adverse interest which necessitate the sharpening of the issues raised.
ANALYSIS OF AUTHORITIES CITED IN THE CHALLENGED EXECUTIVE ORDERS
The Executive Orders at issue cite three sources of authority: the EMA, the EPGA, and Const 1963, art 5, § 1. The Court will examine each to determine whether the Governor possessed authority to issue the challenged orders.
ARTICLE 5 OF THE MICHIGAN CONSTITUTION
The challenged orders in this case all contain a brief citation to art 5, § 1. This section of the Michigan Constitution vests “executive power” in the Governor. See Const 1963, art 5, § 1. The Governor invokes this power in claiming authority to issue the challenged Executive Orders. The Legislature has argued that Governor errs in relying on her art 5, § 1 “executive power” to issue orders in response to the pandemic. This court agrees that “Executive power” is merely the “authority exercised by that department of government which is charged with the administration or execution of the laws.” People v Salsbury, 134 Mich 537, 545; 96 NW 936 (1903). In fact, the

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Governor has not claimed in her briefing or at oral argument that she had the authority to enact EO 2020-67 or EO 2020-68 absent an enabling statute. Through two distinct acts, stated in plain and certain terms, the Legislature has granted the Governor broad but focused authority to respond to emergencies that affect the State and its people. The Governor’s challenged actions—declaring states of disaster and emergency during a worldwide public health crisis—are required by the very statutes the Legislature drafted. Thus, the focus of this opinion, is on those two distinct acts, the EMA and EPGA.
THE EPGA AUTHORIZED EO 2020-67 AND SUBSEQUENT ORDERS RELIANT THEREON
The Court will first turn its attention to the EPGA and to plaintiffs’ arguments that the EPGA did not permit the Governor to issue a statewide emergency declaration in EO 2020-67 or any subsequent orders reliant on EO 2020-67. Plaintiffs advance two arguments in support of their position: (1) first, they contend that the EPGA, unlike the EMA, does not grant authority for a statewide declaration of emergency, but instead only confers upon the Governor the authority to issue a local or regional state of emergency; (2) second, plaintiffs argue that if the EPGA does grant authority for a statewide state of emergency, the delegation of legislative authority accomplished by the act is unconstitutional. The Court rejects both of plaintiffs’ contentions regarding the EPGA and concludes that EO 2020-67, and any orders relying thereon, remain valid.
Turning first to the scope of the EPGA, the Court notes that the statute bestows broad authority on the Governor to declare a state of emergency and to take necessary action in connection with that declaration. See MCL 10.31(1). Under the EPGA, 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.” Id.

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The Legislature stated that its intent in enacting MCL 10.32 was to “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” Section 2 of the EPGA continues, declaring that the provisions of the EPGA “shall be broadly construed to effectuate this purpose.” Id.
Reading the EPGA as a whole, as this Court must do, see McCahan v Brennan, 492 Mich 730, 738-739; 822 NW2d 747 (2012), the Court rejects plaintiffs’ attempt to limit the scope of the EPGA to local or regional emergencies only. Informing this decision is the statement of legislative intent in MCL 10.32, which declares that the EPGA was intended to confer “sufficiently broad power” on the Governor in order to enable her to respond to public disaster or crisis. It would be inconsistent with this intent to find that “sufficiently broad power” to respond to matters of great public crisis is constrained by contrived geographic limitations, as plaintiffs suggest. The Court also notes that this “sufficiently broad” power granted by the Legislature references “the police power of the state[.]” MCL 10.32. In general, the police power of the state refers to the state’s inherent power to “enact regulations to promote the public health, safety, and welfare” of the citizenry at large. See Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d 1 (1985). It cannot be overlooked that the police power of the state, which undeniably pertains to the state as a whole, see, e.g., Western Mich Univ Bd of Control v State, 455 Mich 531, 536; 565 NW2d 828 (1997), was given to a state official, the Governor, who possesses the executive power of the entire state. See Const 1963, art 5, § 1. Plaintiffs’ attempts to read localized restrictions on broad, statewide authority given to this state’s highest executive official are unconvincing.
The Act has a much broader application than plaintiffs suggest. The Act repeatedly uses terms such as “great public crisis,” “public emergency,” “public crisis,” “public disaster,” and

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“public safety” when referring to the types of events that can give rise to an emergency declaration. See MCL 10.31(1); MCL 10.32. These are not terms that suggest local or regional-only authority. See Black’s Law Dictionary (11th ed) (defining public safety). See also Merriam-Webster Online Dictionary, <https://www.merriam-webster.com/dictionary/public> (accessed May 11, 2020) (defining “public” to mean “of, relating to, or affecting all the people of the whole area of a nation or state”) (emphasis added). Taking these broad terms and imposing limits on them as plaintiffs suggest would run contrary to MCL 10.32’s directive to broadly construe the authority granted to the Governor under the EPGA. See Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010) (explaining that it is “well established that to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.”). And in this context, it is apparent the EPGA employs broad terminology that empowers the Governor to act for the best interests of all the citizens of this state, not just the citizens of a particular county or region. It would take a particularly strained reading of the plain text of the EPGA to conclude that a grant of authority to deal with a public crisis that affects all the people of this state would somehow be constrained to a certain locality. Moreover, adopting plaintiffs’ view would require the insertion into the EPGA of artificial barriers on the Governor’s authority to act which are not apparent from the text’s plain language. To that end, even plaintiffs would surely not quibble that the broad authority bestowed on the Governor under the act would permit her to respond to an emergency situation that affected one county, or perhaps even multiple counties. Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA because, according to plaintiffs, rendering emergency assistance to the state’s entire citizenry is not an option under the EPGA. While plaintiffs generally contend there

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are localized or regionalized limitations on the Governor’s authority under the EPGA, they do not explain how to demarcate the precise geographic limitations on the Governor’s authority under the EPGA—and this is for good reason: there are no such limitations.
In arguing for a contrary interpretation of the scope of the Governor’s authority under the EPGA, plaintiffs selectively rely on parts of the statute and ignore the contextual whole. For instance, they focus on the notion that a city or county official may apply for an emergency declaration in order to support their assertion that the EPGA only applies to local or regional emergency declarations. In doing so, plaintiffs ignore that the same sentence permitting local officials to apply for an emergency declaration also authorizes two state officials—one of whom is the Governor herself—to apply for or make an emergency declaration. See MCL 10.31(1). Equally unpersuasive is plaintiffs’ fixation on the word “within” as it appears in MCL 10.31(1). Plaintiffs note that MCL 10.31(1) permits the Governor to declare a state of emergency in response to “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state” (emphasis added). According to plaintiffs, the use of the word “within” means that an emergency can only be declared at a particular location within the state, and precludes the state of emergency from being declared for the entire state. However, a common understanding of the word “within,” including the same definition plaintiffs cite, demonstrates the flaw in plaintiffs’ position. The word “within” is generally used “as a function word to indicate enclosure or containment.” Merriam-Webster’s Online Dictionary, <https://www.merriam-webster.com/dictionary/within> (accessed May 20, 2020). For instance, it can refer to “the scope or sphere of” something, such as referring to that which is “within the jurisdiction of the state.” Id. In other words, the term “within” refers to the jurisdictional bounds of the state. The authority to declare an emergency “within” the state is, quite simply, the authority to declare an emergency across the entire state.

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Plaintiffs next argue that, when the EPGA is read together with the EMA, it is apparent that the EPGA is not meant to address matters of statewide concern. In general, both the EPGA and the EMA grant the Governor power to act during times of emergency. “Statutory provisions that relate to the same subject are in pari materia and should be construed harmoniously to avoid conflict.” Kazor v Dep’t of Licensing & Regulatory Affairs, 327 Mich App 420, 427; 934 NW2d 54 (2019). “The object of the in pari materia rule is to give effect to the legislative intent expressed in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that construction should control.” In re AGD, 327 Mich App 332, 344; 933 NW2d 751 (2019) (citation and quotation marks omitted).
Here, when the EMA and the EPGA are read together, it is apparent that there is no conflict between the two acts even though they address similar subjects. While plaintiffs are correct in their assertion that the EMA contains more sophisticated management tools, that does not mean that the EPGA is limited to local and regional emergencies only. Nor does the fact that both statues apply to statewide emergencies mean that one act renders the other nugatory. Instead, the Court can harmonize the two statutes, see In re AGD, 327 Mich App at 344, by recognizing that while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal. The use of these enhanced features comes at some cost, however, because the EMA is subject to the 28-day time limit contained in MCL 30.405(3)-(4), whereas an emergency declaration under the less sophisticated EPGA has no end date. Finally, plaintiffs’ contentions regarding a conflict between the EMA and the EPGA are belied by MCL 30.417. That section of the EMA expressly states that nothing in the EMA was intended to “Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of

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the Michigan Compiled Laws . . . .” MCL 30.417(d). In other words, the EMA explicitly recognizes the EPGA and it recognizes that the Governor possesses similar, but different, authority under the EPGA than she does under the EMA.
Plaintiffs’ final attempt to assert that the EPGA was intended as a local or regional act is to point to what they describe as the history of the EPGA. In general, the legislative history of an act and the historical context of a statute can be considered by a court in ascertaining legislative intent; however, these sources are generally considered to have little persuasive value. See, e.g., In re AGD, 327 Mich App 342 (generally rejecting legislative history as “a feeble indicator of legislative intent and . . . therefore a generally unpersuasive tool of statutory construction”) (citation and quotation marks omitted). Here, the history cited by plaintiffs is particularly unpersuasive because, having reviewed the same, the Court concludes that it does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA. Nor have plaintiffs directed the Court’s attention to a particular piece of history that expressly supports their claim; they instead rely on mere generalities and anecdotal commentary. Finally, the EPGA presents no ambiguity requiring explanation through extrinsic historical commentary.
In an alternative argument, plaintiffs argue that, assuming the Governor’s ability to act under the EPGA gives her statewide authority, the executive orders issued pursuant to the EPGA are nevertheless invalid. According to plaintiffs, the Governor’s exercise of lawmaking authority under the orders runs afoul of separation of powers principles.
Plaintiffs’ constitutional challenge to the EPGA fares no better than their attempt to limit the Act’s scope. This Court must, when weighing this constitutional challenge to the EPGA, remain mindful that a statute must be presumed constitutional, “unless its constitutionality is

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readily apparent.” Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 59; 669 NW2d 845 (2003) (citation and quotation marks omitted). Indeed, “[t]he power to declare a law unconstitutional should be exercised with extreme caution and never where serious doubt exists with regard to the conflict.” Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997).
Const 1963, art 3, § 2 declares that “[t]he powers of government are divided into three branches: legislative, executive and judicial.” The Constitution dictates that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Id. The issue in this case concerns what plaintiffs have alleged is an unconstitutional delegation of legislative power to the Governor. While the Legislature cannot delegate its legislative power to the executive branch of government, the prohibition against delegation does not prevent the Legislature “from obtaining the assistance of the coordinate branches.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003) (citation and quotation marks omitted). As explained by our Supreme Court, “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).
In general, the Supreme Court has recognized three “guiding principles” to be applied in non-delegation cases:
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The various and varying detail associated with managing the natural resources has led to

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recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. Third, if possible the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority. [State Conservation Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976) (internal citations and quotation marks omitted).] Any discussion of plaintiffs’ non-delegation issue must acknowledge that the policy goals and the complexity of issues presented under the EPGA do not concern ordinary, everyday issues. Rather, as the title of the act and its various provisions reflect, the EPGA is only invoked in times of emergency and of “great public crisis,” and when “public safety is imperiled[.]” MCL 10.31(1). Hence, while the Governor’s powers are not expanded by crisis, the standard by which this Court must view the standards ascribed to the delegation at issue must be informed by the complexities inherent in an emergency situation. Blue Cross & Blue Shield, 422 Mich at 51; State Conservation Dep’t, 396 Mich at 309.
With that backdrop, and when viewing the EPGA in its entirety, the Court concludes that the Act contains sufficient standards and that it is not an unconstitutional delegation of legislative authority. At the outset, MCL 10.31(1) provides parameters for when an emergency declaration can be made in the first instance. The power to declare an emergency only arises during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” Id. In addition, the statute provides a process for other officials, aside from the Governor, to request or aid in assessing whether an emergency should be declared. See id. (allowing input from “the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police”). Therefore, the EPGA places parameters and limitations on the Governor’s power to declare a state of emergency in the first instance, which weighs against plaintiffs’

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position. Cf. Blue Cross & Blue Shield, 422 Mich at 52-53 (finding an unconstitutional delegation of legislative authority where there were no guidelines provided to direct the pertinent official’s response and where the power of the official was “completely open-ended.”).
Furthermore, the EPGA provides standards on what a Governor can, and cannot, do after making an emergency declaration. As for what she can do, 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) (emphasis added). The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. See, e.g., MCL 500.3107(1)(a) (describing, in the context of personal injury protection insurance, “allowable expenses” that consist of “reasonable” charges incurred for “reasonably necessary products, services and accommodations . . . .”). Thus, the Court rejects any contention that these terms are too ambiguous to provide meaningful standards. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority which permitted an administrative body to continue to employ an individual for such a period of time as was “necessary” provided a sufficient standard, under the circumstances). See also Blank v Dept’ of Corrections, 462 Mich 103, 126; 611 NW2d 530 (2000) (opinion by Kelly, J.) (finding a constitutionally permissible delegation of authority, in part, based on the enabling legislation constrained rulemaking authority to only those matters that were “necessary for the proper administration of this act.”). Finally, in addition to the above standards, the EPGA goes on to expressly list examples of that which a Governor can and cannot do under the EPGA. See MCL

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10.31(1) (providing a non-exhaustive, affirmative list of subjects on which an order may be issued); MCL 10.31(3) (containing an express prohibition on orders affecting lawfully possessed firearms). Accordingly, the EPGA contains some restrictions on the Governor’s authority and it provides standards for the exercise of authority under the Act.3
In sum, the Court concludes that plaintiffs’ challenges to the Governor’s authority to declare a state of emergency under the EPGA and to issue Executive Orders in response to a statewide emergency situation under the EPGA are meritless. Thus, and for the avoidance of doubt, while the Court concludes that the Governor’s actions under the EMA were unwarranted— see discussion below—the Court concludes that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.
EXECUTIVE ORDER 2020-68 WAS NOT AUTHORIZED BY THE EMA
Turning next to the Governor’s orders issued pursuant to the EMA, the Court again notes that the legitimacy of the initial declaration of emergency and disaster, Executive Order No. 202004, is unchallenged in this case. The extension of that declaration under EO 2020-33 is likewise agreed to be a legitimate exercise of gubernatorial power. This court is not asked to review the scope of myriad emergency measures authorized under either declaration. The laser focus of this case is the legitimacy of EO 2020-68, which re-declared a state of emergency and state of disaster under the EMA only one minute after EO 2020-66 cancelled the same. The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees.
3 The Court notes that Judge Kelly reached a similar conclusion, albeit in the context of denying a motion for preliminary injunction, in the case of Mich United for Liberty v Whitmer, Docket No. 20-000061-MZ.

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The EMA allows circumvention of the traditional legislative process only under extraordinary circumstances and for a finite period of time. Enacted in 1976, the EMA grants the Governor sweeping powers to cope with “dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). These powers include the authority to issue executive orders and directives that have the force and effect of law. MCL 30.403(2). The Governor may also, by executive order, “Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL 30.405(1)(a). Additionally, the Governor may issue orders regarding the utilization of resources; may transfer functions of state government; may seize private property—with the payment of “appropriate compensation”—evacuate certain areas; control ingress and egress; and take “all other actions which are which are necessary and appropriate under the circumstances.” See, e.g., MCL 30.405(1)(b)-(j). This power is indeed awesome.
The question presented is whether the Governor could legally, by way of Executive Order 2020-68, declare the exact states of emergency and disaster that she had, only one minute before, terminated. The Legislature answer with an emphatic, “No,” and the Governor offers an equally emphatic, “Yes.”
As with most contracts, the Legislature asserts that time is of the essence in the limits of the extraordinary power afforded the executive under the EMA. The Act is replete with references to timing. MCL 30.403 provides as follows:
The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation

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21
declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. [MCL 30.403(3) (emphasis added).]
Later the act addresses the duration of a “state of emergency,” and its extension under MCL
30.403(4):
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. [Emphasis added.]
The limitation of 28 days is repeated multiple times. A state of emergency or disaster, once
declared, terminates no later than 28 days after being initially declared. The Governor can
determine that the emergent conditions have been resolved earlier than 28 days. Alternatively, the
Governor may ask the Legislature to extend the emergency powers for a period of up to 28 days
from the issuance of the extension. Nothing in Act precludes legislative extension for multiple
additional 28-day periods. In this case the Governor stated in EO 2020-66 that she expressly
terminated the previously issued states of emergency and disaster—not because the disaster or
emergency condition ceased to exist—but because a period of 28 days had expired. In fact, EO
2020-66, the order that terminated the states of disaster and emergency under the EMA, expressly
acknowledged that the emergency and/or disaster had not subsided and still remained In this
respect, EO 2020-66 complied with MCL 30.403(3) and (4)’s directives that the Governor “shall,”

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after 28 days, “issue an executive order or proclamation declaring” that the state of emergency and/or disaster terminated.
However, the Governor argues that she may continue to exercise emergency powers under the EMA without legislative authorization in this case. She argues that she has a duty and the authority to do so because the Legislature failed to grant her the requested extension despite the fact that the emergent conditions continued to exist.
Neither party to this case denies that the COVID-19 emergency was abated as of April 30. No serious argument has been offered that had the Governor not issued EO 2020-68 that all of the emergency measures authorized by EO-33 would have terminated with the signing of EO 202066 on April 30 even if had the governor not vetoed SB 858, which purported to embody several of the expiring Executive Orders and which would not have been effective until 90 days later because the Legislature did not give that bill immediate effect. The Governor asserts she had a duty to act to address the void. She argues that MCL 30.403(3) and (4) compelled her, upon the termination of the states of emergency and disaster accomplished by way of time, to declare anew both states of emergency and disaster within minutes. The Governor makes this argument by emphasizing language in MCL 30.403(3) and (4) stating that, if the Governor finds that a disaster or emergency occurs, then she “shall” issue orders declaring states of emergency or disaster. Thus, argues the Governor, when the 28-day emergency and disaster declarations ended, but the disaster and emergency conditions remained, the Governor was compelled, irrespective of legislative approval, to re-declare states of emergency and disaster.
The EMA does not prohibit a governor from declaring multiple emergencies or disasters during a term of office or even more than on disaster at the same time. Indeed, the collapse of the

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dam at the Tittabawassee River sparked the issuance of a separate state of emergency and disaster during of this lawsuit. Clearly the collapse of the dam and the subsequent flooding was a new and different circumstance from the COVID-19 pandemic. Returning to the instant case, it could also be argued that the very fact that the Legislature had neither authorized the extension of the emergency powers of the Governor under the EMA nor put in place measures to address the emergent situation was itself a new emergency justifying gubernatorial action. However, the “new” circumstance was occasioned not by a mutation of the disease into something such as “COVID-20,” a precipitous spike in infection, or any other factor, except the Legislature’s failure to grant an extension.
Thus, while the Governor emphasizes the directive that she “shall” declares states of emergency and disaster, the Court concludes that the Governor takes these directives out of context and renders meaningless the legislative extension set forth in MCL 30.403(3) and (4). The Governor’s position ignores the other crucial “shall” in the statute. “After 28 days, the governor shall issue an executive order or proclamation declaring the state of” disaster or emergency terminated, “unless a request by the governor for an extension of the state of” disaster or emergency “for a specific number of days is approved by resolution of both houses of the legislature.” See MCL 30.403(3) (as to disasters); MCL 30.403(4) (as to emergencies). The language employed here is mandatory: The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it. See Smitter v Thornapple Twp., 494 Mich 121, 136; 833 NW2d 785 (2013) (explaining that the term “shall” denotes a mandatory directive). Stated otherwise, at the end of 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate”

Case 1:20-cv-00414-PLM-PJG ECF No. 20-13 filed 05/22/20 PageID.968 Page 26 of 27 24
language is an affirmative grant of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. Nor does the statute permit the Governor to simply extend the same state of disaster and/or emergency that was otherwise due to expire. To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language. Whatever the merits of that might be as a matter of policy, that position conflicts with the plain statutory language. The Governor’s attempt to read MCL 30.403(2) as providing an additional, independent source of authority to issue sweeping orders would essentially render meaningless MCL 30.405(1)’s directive that such orders only issue upon an emergency declaration. It would also read into MCL 30.403(2) broad authority not expressed in the subsection’s plain language. See Robinson, 486 Mich at 21 (explaining that, when it interprets a statute, a reviewing court must “avoid a construction that would render part of the statute surplusage or nugatory”) (citation and quotation marks omitted). See also United States Fidelity & Guarantee Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009) (“As far as possible, effect should be given to every phrase, clause, and word in the statute.”). The Court is not free to “pick and choose what parts of a statute to enforce,” see Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 143; 892 NW2d 33 (2016), yet that is precisely what the Governor’s position has asked the Court to do. The language of MCL 30.403(3) and (4) requiring legislative approval of an emergency or disaster declaration should not so easily be cast aside.
Finally, and contrary to the Governor’s argument, the 28-day limit in the EMA does not amount to an impermissible legislative veto. See Blank v Dept’ of Corrections, 462 Mich 103, 113-114; 611 NW2d 530 (2000) (opinion by KELLY, J.) (declaring that, once the Legislature delegates authority, it does not have the right to retain veto authority over the actions of the

Case 1:20-cv-00414-PLM-PJG ECF No. 20-13 filed 05/22/20 PageID.969 Page 27 of 27 25
executive). The Governor’s characterization of the 28-day limit as a legislative veto is not accurate. The 28-day limit is not legislative oversight or a “veto” of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated. That is, the Governor is afforded with broad authority under the EMA to make rules and to issue orders; however, that authority is subject to a time limit imposed by the Legislature. The Legislature has not “vetoed” or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.
CONCLUSION
IT IS HEREBY ORDERED that the relief requested in plaintiffs’ motion for immediate declaratory judgment is DENIED. While the Governor’s action of re-declaring the same emergency violated the provisions of the EMA, plaintiffs’ challenges to the EPGA and the Governor’s authority to issue Executive Orders thereunder are meritless.
This order resolves the last pending claim and closes the case.

Dated: May 21, 2020

________________________________ Cynthia Diane Stephens, Judge Court of Claims

Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.970 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.971 Page 2 of 11

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit M

Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.972 Page 3 of 11
STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN UNITED FOR LIBERTY, Plaintiff,

OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

Case No. 20-000061-MZ Hon. Michael J. Kelly

Pending before the Court is plaintiff’s motion for preliminary injunction.1 For the reasons that follow, the motion is DENIED.

I.

BACKGROUND

Plaintiff’s complaint and motion for preliminary injunction challenge the authority of

defendant Governor Gretchen Whitmer to issue executive orders in response to the COVID-19

pandemic. Defendant cited two acts, the Emergency Management Act (EMA), MCL 30.401 et

seq.; and the Emergency Powers of Governor Act (EPGA), MCL 10.31 et seq. when issuing the

orders at the heart of this case. At this juncture, the facts underlying the complaint are well known

to the parties and their recitation in this opinion would serve no meaningful purpose. The Court

will instead constrain its time and attention to the legal issues presented in plaintiff’s pleadings

1 The Court notes and appreciates the parties’ compliance with the expedited briefing schedule ordered in this case.
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Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.973 Page 4 of 11
and briefing. Distilled to the most basic level, plaintiff is asserting that the EMA and the EPGA are unconstitutional because they represent an impermissible delegation of legislative authority to the Governor. Plaintiff has asked the Court to issue a preliminary injunction enjoining defendant from enforcing and issuing any orders under the EMA or EPGA.
II. ANALYSIS Injunctive relief “represents an extraordinary and drastic use of judicial power that should be employed sparingly and only with full conviction of its urgent necessity.” Davis v Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d 896 (2012) (citation and quotation marks omitted). The Court utilizes four factors in determining whether to issue this extraordinary remedy:
(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. [Id. (citation and quotation marks omitted).] A. PLAINTIFF HAS NOT DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE
MERITS Turning first to the likelihood of success on the merits, the Court begins by noting that plaintiff asserts facial challenges to the validity of the EMA and the EPGA. This type of challenge presents significant obstacles a litigant must overcome in order to succeed. Initially, statutes are presumed to be constitutional, and a court has a “duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Oakland Co v State, 325 Mich App 247, 260; 926 NW2d 11 (2018). A court must “exercise the power to declare a law unconstitutional with extreme caution,” and the court must not exercise that power if serious doubt exists as to the alleged constitutional invalidity. Id. (citation omitted). Instead, “[e]very reasonable presumption or
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intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.” Id. (citation and quotation marks omitted).
Moreover, plaintiff’s facial challenge to the constitutionality of the statutes at issue requires a particularly difficult showing. A facial challenge considers the plain language of the statute at issue and it involves a “claim that the law is invalid in toto—and therefore incapable of any valid application.” League of Women Voters of Mich v Secretary of State, __ Mich App __, __; __ NW2d __ (Docket Nos. 350938; 351073), slip op at p. 10 (citation and quotation marks omitted). “To make a successful facial challenge to the constitutionality of a statute, the challenger must establish that no set of circumstances exists under which the act would be valid.” Oakland Co, 325 Mich App at 260 (citation and quotation marks omitted).
Here, in order for plaintiff to demonstrate a likelihood of success on the merits of the claims asserted in its briefing, it must demonstrate that the challenged statutes contain constitutionally infirm delegations of legislative authority to the Governor. In general, the principle of separation of powers, see Const 1963, art 3, § 2, precludes the legislative branch from delegating its lawmaking authority to the executive or judicial branches of government, Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003). However, the separation of powers does not preclude this state’s Legislature from “obtaining the assistance of the coordinate [b]ranches.” Id. at 8-9, quoting Mistretta v United States, 488 US 361, 371; 109 S Ct 647; 102 L Ed 2d 714 (1989). Caselaw counsels that “when properly prescribed standards exist, the Legislature has not abdicated its law-making or legislative power because the agency to which the power is delegated is limited in its action by the Legislature’s prescribed will; it cannot follow its own
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Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.975 Page 6 of 11
uncircumscribed will.” Westervelt v Nat Resources Comm, 402 Mich 412, 441; 263 NW2d 564 (1978) (opinion by WILLIAMS, J.) (quotation marks omitted). In Taylor, the Supreme Court remarked that, historically, these types of challenges “have been uniformly unsuccessful” across federal and state jurisprudence. Taylor, 468 Mich at 9.
In order to determine whether the challenged statutes at issue in this case contain sufficient standards to survive a constitutional challenge, the Court’s analysis must be guided by the following criteria:
1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits. The preciseness required of the standards will depend on the complexity of the subject. [Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).] The Court will first address plaintiff’s challenges to the EMA, which makes the Governor “responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). The Act permits the Governor to issue orders to implement the act and it empowers her to issue emergency and disaster declarations. MCL 30.403(3)-(4). That authority is not unchecked, however, as the statute sets forth definitions for “emergency,” and “disaster” that provide some measure of guidance for the Governor’s use of authority under the Act. See MCL 30.402(e); MCL 30.402(h). Furthermore, the EMA goes on to describe the authority and duties of the Governor under the Act, with MCL 30.405(1)(a)-(j) detailing ten subjects (nine particular subjects and one catch-all provision) on which the Governor can issue orders under the Act. Those orders can only be issued “upon the declaration of a state of disaster or a state of emergency . . . .” MCL 30.405(1).
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When viewing the statute as a whole and considering the complexity of the subject sought to be addressed, plaintiff cannot demonstrate a substantial likelihood of success on the assertion that the EMA is an unconstitutional, standard-less delegation of legislative authority to the Governor. See Blue Cross & Blue Shield, 422 Mich at 51. At the outset, the Court’s analysis on this issue must be informed by the notion that the EMA’s very purpose is to permit the Governor to deal with a highly complex emergency or disaster situation. Caselaw cautions that the more difficult a particular subject-matter is to regulate, the more impractical it is for the Legislature to provide specific, exacting standards for the delegation of authority. State Conservation Dep’t, 396 Mich at 309. Thus, generalized standards can be appropriate. Id. And here, the Court concludes that the parameters and standards set forth in the EMA, at least at this stage, are of the type that pass constitutional muster. The EMA is not an unfettered, unchecked grant of power to the Governor. Rather, the statute specifies that the Governor, in emergency or disaster situations, is to be given certain, defined authority. The fact that this authority is limited to statutorily defined “emergencies” or “disasters” provides some measure of standards. Additionally, the Legislature imposed regulations on the subject-matter to be reached by the Governor’s orders, as well as with respect to the duration of the orders. See MCL 30.405(1) (prescribing the subject-matter that can be regulated by way of executive order); MCL 30.405(3)-(4) (placing a 28-day limit on certain orders issued by the Governor). The Legislature also implemented a method by which the Governor can work with the Legislature after a certain period of time. See MCL 30.403(3)-(4). In sum, while the Court acknowledges that the authority granted under the EMA is undoubtedly broad in some respects, the grant of authority does not sound in the nature of statutes that have run afoul of the non-delegation doctrine. Cf. Blue Cross & Blue Shield, 441 Mich at 55 (finding an impermissible delegation of authority where the statute contained a “lack of standards defining
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Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.977 Page 8 of 11
and directing” the delegated authority). A plain reading of the EMA does not support the notion that the statute contains the kind of “uncontrolled, arbitrary power” that our Supreme Court has cautioned against in non-delegation cases. See State Conservation Dep’t, 396 Mich at 308-309.2
Plaintiff’s ability to succeed on its challenge to the delegation of authority contained in the EPGA is no less dubious. While the EPGA is a much less detailed act than its subsequently enacted counterpart, it nonetheless sets some standards for the Governor’s exercise of authority. The authority exercised by the Governor under the EPGA can only be invoked if public safety is or will be imperiled. MCL 10.31(1) makes clear that authority under the Act is only bestowed on the Governor. “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” The statute continues by describing that any rules or regulations imposed by the Governor must be “reasonable” and “necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). The Court concludes that the terms “reasonable” and “necessary” carry more significance than plaintiff assigns to them, particularly when they are read in light of the statute’s goals of protecting life and property and combating an emergency or disaster scenario. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority that empowered the decisionmaker to take action that was deemed “necessary” in response to a particular situation was a sufficiently precise standard in the context of the statute at issue). Moreover, when scanning the EPGA for additional criteria, the Court notes
2 The Court notes that Judge Murray reached a similar decision when denying injunctive relief in the case of Martinko v Whitmer, Docket No. 20-00062-MM (issued April 29, 2020).
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Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.978 Page 9 of 11
that the statute contains a list of subjects over which the Legislature granted the Governor authority, as well as one area where the Legislature expressly stated that the Governor was not permitted to act. See MCL 10.31(1) & (3) (permitting the Governor to control matters such as traffic, transportation, places of amusement and assembly, and to establish curfews, but expressly declaring that the Governor cannot seize, take, or confiscate lawfully possessed firearms or other weapons). Finally, the Act specifies that the Governor is to exercise the state’s police power in order “to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32. The Court concludes at this stage of the litigation that the phrase, “adequate control,” and the reference to that control lasting only for periods of public crisis or disaster guides the Governor’s exercise of authority. Hence, the plain language of the act, contrary to plaintiff’s contentions, describes standards and limitations on the Governor’s exercise of authority under the EPGA. While the level of authority conferred upon the Governor may be broad—and at times frustrating in practice—it does not appear on plaintiff’s motion to be the type that would warrant relief under the non-delegation doctrine.
Furthermore, in evaluating the EPGA, just as it did when evaluating the EMA, the Court must remain cognizant that the situation sought to be controlled by the EPGA is an unpredictable, dangerous emergency or disaster situation. A disaster or emergency is almost assuredly a dynamic, unpredictable situation fraught with complexity. It is unreasonable to expect a demanding or precise set of legislative standards be incorporated into the EPGA in order to deal with such a demanding scenario. See State Conservation Dep’t, 396 Mich at 309 (explaining that “[t]he preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.”).
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B. PLAINTIFF’S ALLEGED IRREPARABLE HARM FALLS SHORT AS WELL Although the above analysis in and of itself would cause the Court to deny injunctive relief, the Court finds plaintiff’s assertion of irreparable harm falls short of that which is required to demonstrate entitlement to preliminary injunctive relief. A “particularized showing of irreparable harm . . . is . . . an indispensable requirement to obtain a preliminary injunction.” Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1, 9; 753 NW2d 595 (2008) (citation and quotation marks omitted). The harm must be particularized; a “generalized argument that a constitutional violation would result in harm is insufficient because it is not particularized.” Hammel v Speaker of House of Representatives, 297 Mich App 641, 652; 825 NW2d 616 (2012). The problem in the instant case is that plaintiff has only generally asserted the harm it allegedly suffered by generically alleging constitutional violations. Plaintiff has not articulated particularized, individual harm. Furthermore, caselaw again cautions that, in the absence of bad faith on the part of a public body— which has not been alleged in this case—“there is no real and imminent danger of irreparable injury requiring issuance of an injunction.” Davis, 296 Mich App at 621. Plaintiff’s failure to assert a particularized irreparable injury in the absence of injunctive relief represents an independent reason to deny the motion for preliminary injunction.
III. CONCLUSION Both the EMA and the EPGA confer broad authority upon the office of the Governor. History will determine whether the Governor is judiciously exercising this authority in response to the COVID-19 pandemic. But, for the reasons stated herein:
IT IS HEREBY ORDERED that plaintiff’s motion for preliminary injunction is DENIED.
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Case 1:20-cv-00414-PLM-PJG ECF No. 20-14 filed 05/22/20 PageID.980 Page 11 of 11 This is not a final order and it does not resolve the last pending claim or close the case.

May 19, 2020

____________________________________ Michael J. Kelly Judge, Court of Claims

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Case 1:20-cv-00414-PLM-PJG ECF No. 20-15 filed 05/22/20 PageID.981 Page 1 of 64

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 20-15 filed 05/22/20 PageID.982 Page 2 of 64

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit N

Case 1:20-cv-00414-PLM-PJG ECF No. 20-15 filed 05/22/20 PageID.983 Page 3 of 64

STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES and MICHIGAN SENATE,
Plaintiffs,
v

No. 20-000079-MZ HON. CYNTHIA DIANE STEPHENS

GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan,

Defendant.

Patrick G. Seyferth (P47475)

Christopher Allen (P75329)

Susan M. McKeever (P73533)

Joseph T. Froehlich (P71887)

Attorneys for Plaintiffs

Joshua Booth (P53847)

Bush Seyferth PLLC

John Fedynsky (P65232)

100 W. Big Beaver Rd., Suite 400

Michigan Dep’t of Attorney General

Troy, MI 48084

Assistant Attorneys General

248.822.7800

Attorneys for Defendant

seyferth@bsplaw.com

P.O. Box 30754

mckeever@bsplaw.com

Lansing, MI 48909

517.335.7573

Hassan Beydoun (P76334)

allenc28@michigan.gov

General Counsel

froehlichj1@michigan.gov

Michigan House of Representatives

boothj2@michigan.gov

Attorney for Plaintiff

fedynksyj@michigan.gov

P.O. Box 30014

Lansing, MI 48909

Michael R. Williams (P79827)

hbeydoun@house.mi.gov

Frankie A. Dame (P81307)

Bush Seyferth PLLC

William R. Stone (P78580)

Attorneys for Plaintiffs

General Counsel

151 S. Rose Street, Suite 707

Michigan Senate

Kalamazoo, MI 49007

Attorney for Plaintiff

269.820.4100

P.O. Box 30036

williams@bsplaw.com

Lansing, MI 48909

dame@bsplaw.com

bstone@senate.michigan.gov

/

GRETCHEN WHITMER’S MAY 12, 2020 CORRECTED RESPONSE TO

PLAINTIFFS’ MOTION FOR IMMEDIATE DECLARATORY JUDGMENT

Case 1:20-cv-00414-PLM-PJG ECF No. 20-15 filed 05/22/20 PageID.984 Page 4 of 64

TABLE OF CONTENTS

Page

Introduction ................................................................................................................... 1
Counter-Statement of Facts and Proceedings .............................................................. 4
COVID-19 infects the globe. ............................................................................... 4
Michigan is hit hard by the expanding epidemic and the Governor declares states of disaster and emergency. ............................................. 6
As required by the EMA, the Governor terminates the states of emergency and disaster under the EMA after the Legislature refuses to extend them. ............................................................................ 8
Because the COVID-19 crisis persists, the EMA requires her to declare a state of disaster and emergency, which she promptly does................. 9
The Governor reaffirms her declaration of the state of emergency under the EPGA. .................................................................................... 10
The Legislative Plaintiffs bring suit. ............................................................... 10
Argument ..................................................................................................................... 11
I. The Legislative Plaintiffs lack standing. ......................................................... 11
A. The Legislative Plaintiffs lack standing because they have no special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large. ................................................................................... 13
B. The Legislative Plaintiffs cannot meet their obligation to show that an actual controversy exists under MCR 2.605. ........................... 16
II. The Governor has the independent authority and duty under both the EPGA and the EMA to declare states of emergency and disaster, and to issue orders to protect the health and safety of the State and its people....... 20
A. The State is granted broad latitude to respond to public health crises. ...................................................................................................... 20
B. Consistent with the proper exercise of police power, the Legislature passed laws granting the Governor emergency authority. ................................................................................................ 21

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C. The EPGA grants the Governor broad, but not unlimited authority during a “great public crisis” and “public emergency.” ........ 23
1. The Governor properly declared a state of emergency under the EPGA........................................................................... 23
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and the heavy reliance on the alleged history of the act is misplaced. .................................................................................... 25
D. In the EMA, the Legislature granted the Governor broad, general powers to cope with emergency conditions; the act also requires the Governor declare a state of emergency and disaster if she finds certain circumstances are present...................................... 33
1. The EMA grants a broad, general authority to the Governor to “cop[e] with dangers to the state or its people.” ......................................................................................... 33
2. The EMA also grants the Governor, upon an emergency or disaster proclamation, distinct authorizations. ......................... 35
3. Consistent with the EMA, the Governor terminated the original states of disaster and emergency; her subsequent disaster and emergency proclamations are required by law. ............................................................................................... 40
4. Because statewide disaster and emergency conditions continue to exist, the Governor is duty bound to activate the State’s response, as she did with Executive Order 2020-68. ........................................................................................ 41
5. The Legislative Plaintiffs’ responsive arguments fail to account for the language of the act. ............................................ 43
a. The Governor’s construction does not yield absurd results. ............................................................................... 43
b. No piece of the EMA is invalidated or rendered nugatory. ........................................................................... 44
c. If the Legislative Plaintiffs are right about the authority to effectively veto the Governor’s declarations under the EMA, the Legislature
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Case 1:20-cv-00414-PLM-PJG ECF No. 20-15 filed 05/22/20 PageID.986 Page 6 of 64 retained what amounts to an unconstitutional legislative veto under Chadha and Blank. ...................... 46
III. The EPGA contains standards to guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore are not susceptible to non-delegation challenges. ......................................................................................................... 49 A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given. ................................................................... 49 B. Michigan is one of many States that has largely entrusted emergency authority to the executive branch. ...................................... 53
Conclusion and Relief Requested ................................................................................ 58
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INTRODUCTION The Legislative Plaintiffs come to this Court seeking only to build a constitutional crisis atop a public health crisis in Michigan. There is no dispute about the persistence of the latter. Unfortunately, the scourge of COVID-19 is nowhere near its end. The novel coronavirus that causes COVID-19 has rapidly spread across the planet, infecting millions, and killing hundreds of thousands. In response, jurisdictions the world over have had to impose aggressive measures to stem the viral tide that has overwhelmed healthcare systems. Schools have been shuttered, gatherings postponed, and business operations curtailed. Here at home, Michigan is one of the states hardest hit by the pandemic. As of May 1, 2020, at least 42,356 were confirmed infected and 3,866 had died, all in less than eight weeks; today the numbers continue to increase. Governor Gretchen Whitmer declared states of emergency and disaster in response to the pandemic. Consistent with her duties to protect the health and welfare of the State and its citizens and respond to emergencies in the state, the Governor put measures in place to suppress the spread of the virus, incrementally loosening restrictions as the public health permits. Because of these efforts, the disease’s spread has been slowed and countless lives have been saved. But the crisis is far from over, and the virus remains ever-present—highly contagious, still untreatable, and potentially poised for resurgence. The current Michigan Legislature denies none of this. Yet the Legislative Plaintiffs now prefer to dictate the State’s emergency response through legislative action. Past Legislatures, however, have thought better of putting a slow and
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fractious multi-member body in charge of responding to public health emergencies that demand a rapid, coordinated, and nimble response. Through two laws—the Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA)—those Legislatures vested such authority in the executive branch, just as legislatures have done across the country.
The Legislative Plaintiffs, of course, remain free to amend these laws, even over the Governor’s objection, if they are dissatisfied with the authority they vest in the Governor or the Governor’s exercise of that authority. But they have not done so. Instead, the Legislative Plaintiffs now asks this Court to referee this political disagreement and do their legislative work for them. They cannot, however, use the courts in this manner, and they lack standing to bring this suit. The Legislative Plaintiffs have failed to show a sufficient injury to an institutional interest, and their action against the Governor raises separation of powers concerns. Moreover, nothing in the declaratory relief they seek is necessary to guide their future conduct and preserve their legal rights—they only seek to affect the Governor’s rights.
They fare no better on the merits of their challenges to the Governor’s exercise of her emergency authority, as both the EPGA and the EMA authorize the Governor’s actions in proclaiming and responding to the states of disaster and emergency. Under the EPGA, the Legislature plainly granted the Governor authority to proclaim an emergency and reasonably guided her discretion in doing so. And while Legislative Plaintiffs attempt to engraft limitations on this authority and cast doubt on its constitutionality, settled caselaw and the EPGA’s plainly
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stated text make short work of those arguments. The Governor’s declaration and reaffirmation of an emergency under the EPGA remains undisturbed.
Independently, the EMA contains both a general authority of the Governor to “cope with dangers to this state or the people of this state” and additional authority that is activated upon the Governor’s declaration of a state of emergency or disaster. If the states of emergency or disaster—which are defined by the act as “executive order[s]”—are not extended by the Legislature after 28 days, the Governor must terminate those executive orders. While the Legislative Plaintiffs contend that the Governor ignored this limitation, she in fact adhered closely to it—she timely terminated earlier declarations and issued new ones, consistent with her obligation to do so when disaster or emergency conditions afflict our State.
The Legislative Plaintiffs frame the Governor’s actions—particularly her new declarations—as unprecedented. But that flips the conversation on its head. The pandemic that Michigan is facing is unprecedented, as is the Legislative Plaintiffs’ refusal to ratify the declarations the Governor lawfully issued in response to this ongoing and deadly crisis. That refusal may be their right under the EMA, but the Governor’s responsibility to cope with the dangers presented by this pandemic, and to issue declarations activating necessary resources and powers to do so, is her duty. But even if this Court were to find that the Governor exceeded her authority under the EMA, that leaves her declaration under the EPGA undisturbed. Because the Governor’s declarations work as a belt and suspenders, even if the belt is removed, the suspenders remain.
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The Legislative Plaintiffs’ overarching claim is that the Governor has acted beyond her constitutional role (despite the Legislature granting her the very authority she has invoked and exercised). Yet rather than act with their own most fundamental power—to amend the laws they now challenge—they come to this Court. But the Governor has acted lawfully and there is no basis for this Court to upend the status quo in the midst of this public health crisis. The Constitution grants the Legislature the tools to do just that if it so chooses—amend its own laws, by veto override if it must. This Court should not be co-opted to short circuit that process still available to the Legislature. There is a clear path for the Legislative Plaintiffs to achieve what they seek: it runs not through this Court, but through their own chambers.
COUNTER-STATEMENT OF FACTS AND PROCEEDINGS While long on gripes about the Governor’s actions, the Legislative Plaintiffs’ brief offers a glaringly sparse discussion of the actual and undisputed public health crisis that has consumed not just Michigan, but the entire planet. Those facts—not political squabbles—are what matter here, as they demonstrate not only the circumstances under which the Governor acted, but also the reasons why those actions were necessary and warranted, both to protect the public health and safety of the State and to discharge her duties as Governor under the laws the Legislature has enacted. COVID-19 infects the globe. SARS-CoV-2 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
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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).
It is widely known and accepted that the virus is highly contagious, spreading easily from person to person via “respiratory droplets.”1 Experts agree that being anywhere within six feet of an infected person puts you at a high risk of contracting the disease, called COVID-19.2 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.3 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
1 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). 2 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). 3 (Id.)
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“avoid being exposed.”4 And as experience from prior pandemics such as smallpox and the 1918 Spanish Influenza have indicated, early intervention to slow 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.5 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.6 Michigan is hit hard by the expanding epidemic and the Governor declares states of disaster and emergency.
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—pursuant to her authority under the Emergency Powers of Governor Act (EPGA), the Emergency Management Act (EMA), and her constitutional authority under Article V, Section 1.7
4 (Id.) 5 (Id.) 6 See New York Times, Flattening the Coronavirus Curve (March 27, 2020), available at https://www.nytimes.com/article/flatten-curve-coronavirus.html. 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. (Attached as Exhibit C). 7 EO No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. (Attached as Exhibit D).
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On March 13, 2020, Governor Whitmer issued an executive order 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.8 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.9
Subsequently, on March 23, 2020, again in response to the spreading pandemic in Michigan, Governor Whitmer issued an executive order 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.10 Several other orders intended to address the pandemic in
8 EO No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. (Attached as Exhibit E). 9 EO No. 2020-9, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521789--,00.html. (Replaced by EO 2020-20). (Attached as Exhibit F). 10 EO No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. (Attached as Exhibit G). 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 at midnight. EO No. 2020-42, available at https://content.govdelivery.com/attachments/MIEOG/2020/04/09/file_attachments/1 423850/EO%202020-42.pdf. (Attached as Exhibit H).
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Michigan were issued pursuant to her authority under the EPGA, EMA, and the Constitution.11
On April 1, the Governor issued Executive Order 2020-33, which expanded upon the prior declaration of a state of emergency and, consistent with the virus’s aggressive and destructive spread, declared states of emergency and disaster across the State of Michigan. Under the EMA (though not the EPGA), the declarations must be terminated after 28 days absent resolution by both houses of the Legislature. MCL 30.403(3), (4). On April 7, the Michigan House and Senate approved an extension of the Governor’s declaration until April 30, 2020.12 As required by the EMA, the Governor terminates the states of emergency and disaster under the EMA after the Legislature refuses to extend them.
Prior to April 30, the Governor again asked the Legislature to extend the states of disaster and emergency under the EMA pursuant to MCL 30.403(3) and (4), but the Legislature did not do so. Notably, neither in public statements nor in its pleading to this Court have the Legislative Plaintiffs expressed disagreement that the conditions persist that warrant declarations of emergency and disaster.13
11 See generally “Executive Orders” http://www.legislature.mi.gov/(S(wskfimad5qtw1lrxuwq3z3jb))/mileg.aspx?page=exe cutiveorders 12 2020 SCR 24. (Attached as Exhibit I). 13 To the contrary, the Senate Majority Leader, the very morning after refusing to extend the prior declarations, responded with indignation when asked if the emergency was over: “No, not at all. Hell—heck no. I’d like to know where you would even come up with that question.” See https://jtv.tv/senate-majority-leadershirkey-on-legislative-showdown/ (thirty seconds into the interview).
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On April 30, 2020, then, the Governor issued three executive orders. First, in Executive Order 2020-66 (Exhibit J), the Governor terminated the states of emergency and disaster declared under the EMA as required by MCL 30.403(3) and (4). The Executive Order acknowledged and quoted the statutory language of MCL 30.401—including its requirement that “the governor shall issue an executive order or proclamation declaring the state of [disaster/emergency] terminated, unless a request by the governor for an extension of the state of [disaster/emergency] for a specific number of days is approved by resolution of both houses of the legislature.” EO 2020-66. Although noting that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created very much exist,” the Governor recognized that the Legislature—“despite the clear and ongoing emergency and disaster conditions afflicting our state—has refused to extend [the states of emergency and disaster] beyond today.” Id. Accordingly, she was required by the EMA’s plain language to issue an order “terminat[ing]” the states of emergency and disaster. Id. Because the COVID-19 crisis persists, the EMA requires her to declare a state of disaster and emergency, which she promptly does.
After terminating the prior declarations, the Governor again declared a state of emergency and a state of disaster under the EMA. Executive Order 2020-68 (Exhibit K). She also explained the basis for this new declaration. Although the measures issued pursuant to her emergency authority had been effective, “the need for them—like the unprecedented crisis posed by this global pandemic—is far from over.” Id. COVID-19, she said,
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remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster. [Id.] The Governor further found, “[t]he 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.” Id. Accordingly, the Governor stated: “I now declare a state of emergency and a state of disaster across the State of Michigan under the Emergency Management Act.” Id. Finally, the Governor ordered that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The Governor reaffirms her declaration of the state of emergency under the EPGA. In the third Executive Order, the Governor reaffirmed the state of emergency under the EPGA, ordering that “[a] state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945.” Executive Order 2020-67 (Exhibit L). And like in 2020-68, she ordered “Executive Order 2020-33 is rescinded and replaced. All previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The Legislative Plaintiffs bring suit. Membership of the House and Senate (the Legislative Plaintiffs) bring suit, seeking an expedited declaratory judgment that the Governor’s authority to act under the EMA ended April 30, 2020; the EPGA does not provide authority for the Governor’s COVID-19 executive orders; the Governor has no lawmaking power
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under Const 1963, art 5, § 1; and the Governor’s ongoing COVID-19 executive
orders violate the separation of powers. (Compl, Request for Relief.) The Governor
now responds.
ARGUMENT I. The Legislative Plaintiffs lack standing.
Dissatisfied by the Governor’s issuance of Executive Orders 2020-67 and
2020-68, the Legislative Plaintiffs have a clear, unique, and powerful remedy at
law: they can change the law, even over the Governor’s objection. Instead, they
have chosen to sue the Governor, asking this Court to do their work for them. This,
they cannot do: they lack standing under the law to use the courts in that way.14
On this basis alone, the request for a declaratory judgment should be denied.
“‘Standing is the legal term used to denote the existence of a party’s interest
in the outcome of the litigation; an interest that will assure sincere and vigorous
advocacy.’” League of Women Voters of Michigan v Secretary of State, ___ Mich App
14 Furthermore, the Legislative Plaintiffs have even failed to meet the requirements that their own laws impose on all who may seek relief from this Court. Namely, they failed to verify their complaint “before an officer authorized to administer oaths.” MCL 600.6431(1). As a condition precedent for bringing a claim against the state, Fairley v Dep’t of Corrections, 497 Mich 290, 297 (2015), this requirement renders the complaint legally lacking. Here, the Legislative Plaintiffs sue Governor Whitmer in her official capacity. And since “ ‘a suit against a state official in his or her official capacity is . . . no different from a suit against the State itself,’ ” Mays v Snyder, 323 Mich App 1, 88–89 (2018), quoting Will v Mich Dep’t of State Police, 491 US 58, 66 (1989), their claim is one “against the state” that is subject to the verification requirements of MCL 600.6431(1). Lacking proper verification, the Complaint is inadequate as a matter of law. The Legislative Plaintiffs’ failure to cure this dispositive defect would mean any action of this Court other than dismissing the complaint would be void ab initio. Fox v Board of Regents of the University of Michigan, 375 Mich 238, 242–243 (1965).
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___, ___ (2020) (Docket Nos. 350938, 351073), slip op at *6 (Exhibit M), quoting Allstate Ins Co v Hayes, 442 Mich 56, 68 (1993) (citations omitted). When standing is at issue, “the question is whether the person whose standing is challenged is a proper party to request adjudication of a particular issue and not whether the issue itself is justiciable.” Id., slip op at *6–7 (cleaned up). “[A] litigant has standing whenever there is a legal cause of action. Further, whenever a litigant meets the requirements of MCR 2.605, it is sufficient to establish standing to seek a declaratory judgment.” Id., slip op at *7, citing Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372 (2010).
“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.” League of Women Voters of Michigan, ___ Mich App at ___; slip op at *7, quoting Fieger v Comm’r of Ins, 174 Mich App 467, 471 (1988). Where a cause of action has not been provided by law, a plaintiff must have “a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large.” Id., slip op at *7, quoting Lansing Schools Ed Ass’n, 487 Mich at 372. Thus, relevant here, a litigant has standing if the litigant has a special right that will be detrimentally affected in a manner distinct from the citizenry at large, or has met the requirements of MCR 2.605. Id.
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A. The Legislative Plaintiffs lack standing because they have no special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large.
In House Speaker (Dodak) v State Administrative Board, 441 Mich 547 (1993), several individual members of the House and Senate sued challenging interdepartmental transfers by the State Administrative Board. Id. at 550–554. The Supreme Court observed that standing ensures that “a party’s interest in the outcome of litigation that will ensure sincere and vigorous advocacy.” Id. at 554. But evidence that a party will engage in full and vigorous advocacy, by itself, is insufficient. Instead, standing requires a demonstration that the plaintiff’s substantial interest will be detrimentally affected in a manner different from the citizenry at large. Id. at 554. In Dodak, the plaintiffs claimed “standing on the basis of their status as legislators” and alleged that the transfers “reduced their effectiveness as legislators and nullified the effect of their votes.” Id. at 555.
Citing federal precedent, the Dodak Court stated that “[u]nder limited circumstances, the standing of legislators to challenge allegedly unlawful executive actions has been recognized.” Id. at 555 (citation omitted). But a legislator bears a “heavy burden” to establish standing, especially where a dispute “may interfere with the separation of powers between the branches of government.” Id. (citation omitted). “For these reasons, plaintiffs who sue as legislators must assert more than ‘a generalized grievance that the law is not being followed.’ Instead, they must establish that they have been deprived of a ‘personal and legally cognizable interest peculiar to [them].’” Id. at 556 (emphasis added).
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Here, the plaintiffs are nominally the legislative bodies, but the Dodak analysis is relevant to both individual legislators and to the body as a whole. As with an individual legislator, to establish standing, a legislative body must allege that it has been deprived of a cognizable interest peculiar to the body. Tennessee General Assembly v US Dep’t of State, 931 F3d 499, 507 (CA 6, 2019), citing Ariz State Legislature v Ariz Independent Redistricting Comm, 135 S Ct 2652, 2664 (2015).
But just as “a generalized grievance that the law is not being followed” is not a sufficient injury to confer standing on an individual legislator, Dodak, 441 Mich at 556, neither is it a sufficient “institutional injury” to support standing as a legislative body. See, e.g, Virginia House of Delegates v Bethune-Hill, 139 S Ct 1945, 1953 (2019) (discussing legislative standing to defend constitutionality of statutes).
These principles were reaffirmed in League of Women Voters, where the Legislature brought an action against the Secretary of State. Slip op at *4. The suit sought a declaration that 2018 PA 608 was constitutional and a valid exercise of the Legislature’s authority. Id. The Legislature further sought an injunction compelling the Secretary to implement and enforce the Act in question. Id.
At the outset, the trial court determined that the Legislature had no standing to sue because it had not demonstrated a particularized injury. Id., slip op at *4. The Court, applying Dodak, ultimately affirmed, stating:
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the Legislature is suing to reverse actions by the Secretary, a member of the Executive Branch. The Legislature is thus plainly challenging the actions of members of the Executive Branch. Dodak stands for the proposition that courts should not confer standing in matters that have the real possibility of infringing upon the separation of powers. [Id., slip op at *8.] The situation at hand is analogous. Here, the Legislative Plaintiffs are suing to reverse the actions of the Governor and are plainly challenging executive action. Undoubtedly, their success in this case would infringe upon the separation of powers by invalidating her implementation of the law and her exercise of the powers vested in her by law. Indeed, that is explicitly the relief that the Legislative Plaintiffs seek. Under League of Women Voters and Dodak, they cannot obtain that relief in a judicial forum. The Legislative Plaintiffs claim that the Governor’s actions violate the EPGA and the EMA. But even if that were true (it is not), such an alleged injury is not personal or unique to them. Those allegations amount to a contention that the law as contained in the EPGA and EMA is not being followed, which is insufficient to confer standing on the Legislative Plaintiffs. As the court noted in League of Women Voters, “once the votes of legislators have been counted and the statute enacted, their special interest as lawmakers has ceased.” ___ Mich App at ___; slip op at *7. The Legislative Plaintiffs fare no better by attempting to cast their claims as Michigan constitutional violations. Whether they frame the Governor’s action as allegedly unlawful or unconstitutional, they lack standing to challenge the actions
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for the same reasons. In either instance, the alleged injury or deprivation is no different than that accruing to the ordinary citizen. As stated by the Court of Appeals in League of Women Voters:
To accept the Legislature’s argument that it has standing here would open the door for the Legislature to seek a declaratory judgment whenever the constitutionality of a statute was challenged. [___ Mich App at ___; slip op at *9.] In short, the Legislative Plaintiffs simply have not demonstrated a special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large. Where the Legislature has not shown a sufficient injury to an institutional interest, and where its action against the Governor raises separation of powers concerns, it has not “overcome [its] heavy burden” to establish standing. Dodak, 441 Mich at 555. B. The Legislative Plaintiffs cannot meet their obligation to show
that an actual controversy exists under MCR 2.605. Nor can the Legislative Plaintiffs sidestep this result by framing their claims as requests for declaratory relief; League of Women Voters makes that clear. MCR 2.605 states that “[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory judgment, whether or not other relief is or could be sought or granted.” An “actual controversy” under MCR 2.605(A)(1) exists when a declaratory judgment is necessary to guide a plaintiff’s future conduct in order to preserve that plaintiff’s legal rights. League of Women Voters of Michigan, ___ Mich App at ___, slip op at *7, citing UAW v Cent Michigan Univ Trustees, 295 Mich App 486, 495 (2012). Where no such actual controversy exists, a plaintiff does
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not have standing to bring a declaratory action. Id., slip op at *4, citing City of South Haven v Van Buren Cty Bd of Comm’rs, 478 Mich 518 (2007).
A case of actual controversy is a “condition precedent to invocation of declaratory relief.” Citizens for Common Sense in Gov’t v Attorney General, 243 Mich App 43, 55 (2000). “In the absence of an actual controversy, the trial court lacks subject-matter jurisdiction to enter a declaratory judgment.” Lansing Sch Educ Ass’n v Lansing Bd of Educ (On Remand), 293 Mich App 506, 515 (2011).
“In general, ‘actual controversy’ exists where a declaratory judgment or decree is necessary to guide a plaintiff’s future conduct in order to preserve his legal rights.” Pontiac Police & Fire Retiree Prefunded Grp Health & Ins Tr Bd of Trustees v Pontiac No 2, 309 Mich App 611, 624 (2015), quoting Shavers v Attorney General, 402 Mich 554, 588 (1978) (emphasis added). See also Associated Builders & Contractors v Dep’t of Consumer & Indus Servs Director, 472 Mich 117, 126 (2005), overruled in part on other grounds, 487 Mich at 371 n 18.
Here, the gravamen of the Legislative Plaintiffs’ complaint is that they passed laws that are not being followed by the Governor, and that the Governor’s actions violate the Michigan Constitution. But if that were enough to create an actual controversy, the Legislature would have standing to bring a lawsuit against any government entity that, in the Legislature’s eyes, has allegedly violated the Constitution or failed to enforce or comply with a statute. That outcome would be both an abuse of the court system and an improper curtailing of the legislative and political processes.
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Nor do the Legislative Plaintiffs adequately explain how declaratory relief is needed here to guide their future conduct in order to preserve their legal rights. Lansing Sch Ed Ass’n, 293 Mich App at 515. To be sure, the future conduct that the Legislative Plaintiffs seek to “guide”—that is, curtail—is the that of the Governor, not the Legislature. The law does not provide standing for the Legislature to seek such relief. Indeed, the Court of Appeals came to that conclusion in League of Women Voters:
Given the definition of “actual controversy” for purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgment is necessary to guide the Legislature’s future conduct in order to preserve its legal rights. The Legislature’s authority to enact laws is separate and distinct from this Court’s role in determining whether any law passes constitutional muster. These “rights” and obligations of the two separate branches of government will remain the same, no matter what the outcome in this matter, such that the preservation of the Legislature’s legal rights is not at issue. [League of Women Voters, ___ Mich App at ___, slip op at *7.] The Legislative Plaintiffs contend that they have a special right that is affected in a manner different from the citizenry at large in their right to enact legislation – but this is more spin than reality. Any such contention is belied by the allegations of the complaint, where the Legislative Plaintiffs acknowledge that they have continued significant legislative activities throughout the COVID-19 crisis notwithstanding the Governor’s executive orders. In fact, the complaint specifically alleges that the Legislature has passed more than 100 bills on COVID-19 related issues. (Compl, ¶ 43). There is nothing in the Governor’s actions that interferes
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with the Legislature’s ability to legislate. The Legislative Plaintiffs’ claim for declaratory relief fails because there is no threat to their power to enact legislation.
Courts are wisely reluctant to hear disputes that may interfere with the separation of powers between the branches of government. “It would be imprudent and violative of the doctrine of separation of powers to confer standing upon a legislator simply for failing in the political process.” Dodak, 441 Mich at 544–545. That is exactly the situation in this case.
“[A] proper understanding of the doctrine of separation of powers suggests that the personal desires of legislative and executive officers to exercise their authority are not within the ‘zone of interests’ protected by the provisions of the Constitution and laws conferring such authority. Only the interests of particular individuals who would be aided by the exercise of that authority—and have been harmed by its unlawful deprivation—come within that zone, since the authority was conferred for the benefit not of the governors but of the governed.” Dodak, 441 Mich at 544 n 17, quoting Moore v United States House of Representatives, 733 F.2d 946, 960 (CA DC, 1984). This is particularly applicable here, given that once the votes of the legislators have been counted and the statutes enacted, “their special interest as lawmakers has ceased.” League of Women Voters, ___ Mich App at ___, slip op at *9.
The Legislative Plaintiffs have not established an actual controversy under MCR 2.605, and they therefore lack standing to bring this lawsuit.
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II. The Governor has the independent authority and duty under both the EPGA and the EMA to declare states of emergency and disaster, and to issue orders to protect the health and safety of the State and its people. Even if the Legislative Plaintiffs could seek their requested relief from this
Court, they have not shown any entitlement to it. The Legislative Plaintiffs end the Introduction to their brief with a quote from the Supreme Court, stating, “[e]mergency does not create power.” Home Bldg & L Ass’n v Blaisdell, 290 US 398, 425 (1934). True enough. But reading the very next paragraph clarifies the Supreme Court’s point: “While emergency does not create power, emergency may furnish the occasion for the exercise of power.” Id. at 426. Through two distinct acts, stated in plain and certain terms, the Legislature has granted the Governor broad but focused authority to respond to emergencies that affect the State and its people. The Governor’s challenged actions—declaring states of disaster and emergency during a worldwide public health crisis—are required by the very statutes the Legislature drafted.
A. The State is granted broad latitude to respond to public health crises.
Faced with “great danger[ ],” state actors are permitted great latitude to secure the public health. Jacobson v Commonwealth of Massachusetts, 197 US 11, 29 (1905). In Jacobson, the Supreme Court considered a claim that the Massachusetts’ mandatory vaccination law, which applied to every person in Cambridge 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.” 197 US at 26. The Supreme Court upheld this sweeping, invasive measure
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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. [Id. at 29.] In holding that the Massachusetts law was constitutional, the Court refused 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. As Jacobson well illustrates, the police power has long been recognized as a fundamental and central means by which States can respond in an appropriate and effective fashion to changing political, economic, and social circumstances, and thus to maintain their vitality and order. See also, e.g., Mugler v Kansas, 123 US 623, 666 (1887). And as Jacobson further confirms, the effective exercise of that power is especially necessary when a State faces an imminent threat to its public health and safety. B. Consistent with the proper exercise of police power, the
Legislature passed laws granting the Governor emergency authority. The Governor possesses the executive power. Const 1963, art V, § 1. And through the EPGA and the EMA, the Legislature has ensured that the Governor has the necessary tools to deal with emergencies and disasters in this State. During this crisis (and always), the Legislature retains its lawmaking role; indeed, dozens
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of bills have been introduced regarding COVID-19 issues. (Pls Br, pp 10–11.) But rather than exercising that lawmaking authority to amend the statutes at issue in this case, it asks this Court to misconstrue them.
The EPGA and the EMA independently provide the Governor with the authority—indeed, the responsibility—to respond to emergency conditions in our State. The earlier-enacted EPGA is best thought of as an entrustment of the State’s police power to the Governor in designated public emergencies. The subsequent EMA is a detailed statutory rubric to activate and guide the State and local response efforts and resources in emergency and disaster circumstances.
And let us not forget that the Legislature has full constitutional authority to amend the EPGA and EMA as it sees fit, by veto override if necessary.15 If asking this Court to strike down one of its own statutes as unconstitutional is not ironic enough, Legislative Plaintiffs come to this Court seeking a shortcut to do what has not been done—amendment of the very laws challenged. Because both emergency acts grant the Governor the authority she has exercised, and because she has stringently abided by the very terms the Legislature used in granting that power, this Court should deny the relief sought.
15 The Michigan Constitution provides that “[n]o bill shall become law without the concurrence of a majority of the members elected to and serving in each house.” Const 1963, art 4, § 26. In addition, “[e]very bill passed by the legislature shall be presented to the governor before it becomes law. . . .” Const 1963, art 4, § 33. In the event of a Governor’s veto, the Legislature may override it by a two-thirds vote in each house, id.
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C. The EPGA grants the Governor broad, but not unlimited authority during a “great public crisis” and “public emergency.”
The first, independent source of authority relied on by the Governor to proclaim and respond to a state of emergency is the Emergency Powers of Governor Act (EPGA). See Executive Order 2020-67. The “clear and unambiguous language” of the EPGA makes clear the Legislature’s intent in enacting it, and fully authorizes the actions Governor Whitmer has taken in response to the COVID-19 pandemic. Aroma Wines & Equip, Inc v Columbian Distribution Services, Inc, 497 Mich 337, 345–346 (2015).
1. The Governor properly declared a state of emergency under the EPGA.
The EPGA, enacted in 1945, provides the Governor with broad and important powers “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state.” MCL 10.31(1). The Governor “may proclaim a state of emergency” during these times, or upon “reasonable apprehension of immediate danger” of such an emergency “when public safety is imperiled.” Id.
Upon the proclamation of 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.” Id. Any “orders, rules, and regulations promulgated . . . are effective from the date and in the manner prescribed in the orders, rules, and regulations.” MCL 10.31(2). And they “may be amended, modified, or rescinded . . .
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by the governor” and “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Id. As a whole, the EPGA “invest[s] the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster,” and must “be broadly construed to effectuate this purpose.” MCL 10.32.
This is undoubtedly a “time[ ] of great public crisis,” “disaster,” or “similar public emergency,” and “public safety is imperiled.” MCL 10.31(1). The world over has been ravaged by the COVID-19 crisis, with serious, often fatal, consequences for many due to the virus’s easy and rapid transmission, even by those individuals who lack symptoms, and the current lack of adequate treatment, let alone a vaccine. States of emergency exist across our country too, with stringent orders to effectuate social distancing, which is currently the best method to slow the spread of the virus. Since its origin in China, it has traveled to nearly every country on Earth, killing over a quarter million people. Unfortunately, it has hit Michigan particularly hard—if Michigan were a country, it would hover in the top 10 in the world for number of individuals killed. Indeed, in April, it killed more Michiganders than heart disease and cancer combined.16 As of filing, over 4,300 people have died. And the State (and the nation) “still lack[s] adequate means to fully test for it and trace
16 Michigan Department of Community Health, Number of Deaths by Select Causes of Death by Month. Available at https://www.mdch.state.mi.us/osr/Provisional/MontlyDxCounts.asp (Attached as Exhibit N).
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its spread,” EO 2020-67, virtually ensuring an undercount of the number infected and killed, and severely hampering the State’s ability to reduce the prohibitions.
These undisputed (and undisputable) facts form the basis of the Governor’s finding that a state of emergency exists under the EPGA, and well justify the “reasonable” and “necessary” measures she has taken “to protect life” throughout the State and to bring this pandemic’s aggressive and persistent spread “under control.” MCL 10.31(1).
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and the heavy reliance on the alleged history of the act is misplaced.
In an attempt to avoid the unfavorable result that flows from the EPGA’s plain and straightforward text, the Legislative Plaintiffs strain to narrowly read their own statute, suggesting that the EPGA is limited to quelling riots and other uprisings of local concern. (Pls Br, pp 27–38.) But this narrow construction is unwarranted.
First, such a limited reading is directly contrary to the Legislature’s own (duly enacted) direction, which mandates that the act be “broadly construed to effectuate [its] purpose.” MCL 10.32. And the “purpose” itself was plainly declared:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. [MCL 10.32.]
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But the Legislature’s direction—in its law, not its brief—to broadly interpret its words need not even be summoned because a reasonable construction of the plain language yields this broad authority.
Second, the Legislative Plaintiffs proffer a geographical limitation—an interpretation of the statute that limits a declaration’s reach to only local subsets of the State. (Pls Br, p 29.) (“These words—‘area,’ ‘zone,’ and ‘section’—all establish that the Governor’s power is intended to reach some subpart of the state as a whole.”) This is simply an attempt to recast the intended, and plainly stated, flexibility of the EPGA as a limitation. The EPGA simply provides that, when declaring an emergency, the Governor must “designate the area involved.” MCL 10.31(1). The EPGA then provides an illustrative, and expressly nonexhaustive, list of “orders, rules, and regulations” that the Legislature suggested may be appropriate in response to an emergency—which occasionally includes reference to “zones” or “section[s],” but just as often does not. Id. All of this simply and wisely recognizes that public emergencies, and necessary responses thereto, may come in many different shapes and sizes, depending on the nature of the threat to public safety. And none of it suggests that the Governor, when faced with a statewide threat to public safety, cannot declare a state of emergency commensurate with that threat. Here, the “area” designated by the Governor is the entire State—and rightfully so, given the nature of the threat posed to this state (not to mention the entire country, and indeed the world) by this highly contagious, often fatal, and still untreatable virus. See MCL 10.31(1) (permitting a declaration during a “public
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emergency” or “reasonable apprehension of immediate danger of a public emergency”).
Mackinac Island, one of our State’s crown jewels, well illustrates the statewide nature of this threat, and the corresponding need for a statewide emergency response under the EPGA. Mackinac Island typically “opens” for the season about this time of year. Although there are currently no known cases of COVID-19 on the Island, should the protective measures issued pursuant to the emergency declaration cease, a deluge of visitors from Michigan and countries across the globe may converge as they inevitably do, year after year. That is a recipe for another hot spot—a grander version of a March 6 pancake breakfast in Detroit that spread the virus and decimated the Detroit Police Department.17 And unlike in metro Detroit, where there are large health systems equipped to respond, a public health crisis in the Straits of Mackinac would present a qualitatively different challenge to contain and counteract.
Simply put, given the nature of this virus and the current limitations on our ability to test for, trace, and contain it, there is unquestionably a “reasonable apprehension of immediate danger of a public emergency” currently present in every portion of this State. MCL 10.31(1). The State is the “area involved,” and
17 Coronavirus Devastates Detroit Police, From the Chief on Down, NY Times, April 21, 2020, available at https://www.nytimes.com/2020/04/20/us/coronavirus-detroitpolice.html. (Attached as Exhibit O).
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under the plainly stated language and intent of the EPGA, the Governor is fully authorized to designate that area and respond accordingly.
Similarly misguided is the suggestion that a statewide declaration is contrary to the EPGA because it contemplates that the Governor may act during times of public emergency “within” the State. But even adopting the Legislative Plaintiffs’ definition of “within”—“‘Within’ means ‘on the inside or on the inner-side’ or ‘inside the bounds of a place or region’” (Pls Br, p 27, ultimately quoting Webster’s Third New International Dictionary 758 (1993))—the designated area here meets that definition. The entirety of the state is “inside the bounds” of the State’s borders. And again, this narrow and strained interpretation elides the plain statutory purpose, MCL 10.32, and should be discarded.
Third, like squeezing water from a stone, the Legislative Plaintiffs wish to engraft yet another limitation on the EPGA—let us call it the “rioting” limitation— in order to shrink the EPGA’s authority to reach only local emergencies of a very specific sort. (Pls Br, pp 30–31.) This, too, fails. Again, the EPGA concerns “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state.” MCL 10.31. The trusty canon of construction ejusdem generis is appropriate here, which applies “where a general term follows a series of specific terms,” requiring “the general term [to be] interpreted to include only things of the same kind, class, character, or nature as those specifically enumerated.” Neal v Wilkes, 470 Mich 661, 669 (2004) (cleaned up). With “public emergency” as the general term, the “similar” specific terms must inform the general term’s scope.
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The ample breadth of “public emergency” is confirmed by the distinct specific terms. While the Legislative Plaintiffs’ chosen specific term—rioting—is certainly covered, it sits adjacent “great public crisis,” which is quite general (and perfectly applicable), as are “disaster” and “catastrophe.”
The broad terms used by the Legislature, in conjunction with the liberalconstruction requirement in MCL 10.32, confirm that the Governor’s declaration and response measures under the EPGA are appropriate.
Fourth, the Legislative Plaintiffs spend pages stitching together their own narrative of the history and motivations behind the enactments of the EPGA and the EMA. (Pls Br, pp 2–6, 34–37.) Plaintiffs, of course, have told the story that helps their case, but its accuracy or completeness is fundamentally beside the point. The Legislature made its intentions in enacting the EPGA and EMA perfectly clear in the language of the statutes themselves, and Plaintiffs cannot rewrite those intentions to meet their own immediate desires. “Because the statute is clear, there is no ambiguity that would permit or justify looking outside the plain words of the statute.” In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109, 116 (2003) (cleaned up). In particular, courts “do not resort to legislative history to cloud a statutory text that is clear.” Id. See also Luttrell v Dept of Corr, 421 Mich 93, 103 (1984) (“Where ambiguity exists in a statute, a court may refer to the history of the legislation in order to determine the underlying intent of Legislature.”) (emphasis added); Aroma Wines & Equip, Inc, 497 Mich at 355 n 49 (where a statute is “unambiguous . . . the examination of legislative history of any
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form is not proper.”) (cleaned up; emphasis added). Lacking any ambiguity, the text of the EPGA, including its express directive to construe its terms broadly, controls.
Fifth, contrary to the Legislative Plaintiffs’ argument, the doctrine of in pari materia is inapplicable, and in any event using it here would support the Governor’s construction. This canon of construction, which can assist in reading laws on the same subject harmoniously, is not applicable to statutes that are unambiguous and do not present a “patent conflict.” See SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 74 n 26 (2017). Lacking ambiguity or conflict, it is of no assistance.
And any reliance of on the doctrine of in pari materia would only confirm that the EPGA is not limited to merely emergencies of a local nature. (Contra Pls Br, pp 30–32.) The doctrine regarding reading two statutes that address the same subject together (literally meaning “equal matter”) is most profitably applied to address two statutes that do not reference each other, so that this canon is employed to make sense of their interaction. See, e.g., People v Anderson, ___ Mich App ___, ___ (2019) (Docket No. 343272), slip op at *3 (the doctrine applies “even if the statutes do not reference one another and were enacted on different dates”). But there is no mystery here.
The second-in-time statute—the EMA—expressly explains that it does not “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant [the EPGA].” MCL 30.417(d). Thus, the statutes themselves tell us that they each are—and must be read as—independent and supplementary grants of authority to the Governor.
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Moreover, just as the EPGA plainly accommodates emergencies statewide in scope, so too is the EMA filled with references to the authority for addressing local states of emergencies. It defines a “local state of emergency,” MCL 30.402(j), grants local officials with the authority to declare such a state of emergency, MCL 30.410(1)(b), and provides guidance where a local emergency extends “beyond the control of the county,” MCL 30.414(1). Any claim that the EMA is only designed to address statewide emergencies, and the EPGA only local ones, is belied by the statutes’ plain terms. It also leads to the unfounded and insensible conclusion that, prior to the passage of the EMA in 1976, the law contemplated no means for the State to respond to a statewide emergency. The idea that the Governor would have had to issue 83 local emergency orders is not well taken, and is wholly unsupported by the text or express purpose of the EPGA.
Rather, the statutes perform distinct functions, providing the Governor different tools to address an emergency. As discussed at greater length below, the EMA provides for a more extensive structure of governmental action in response to an emergency, and a more detailed set of powers for the Governor to implement in that response. The EMA, however, expressly ensures that, underlying the mechanisms it provides for activating and implementing state and local emergency response resources, there remains the EPGA and its foundational assurance that, in times of public emergency, the executive branch shall be empowered to exercise the police power of the State to do what is reasonable and necessary to protect life and bring the emergency under control. The law provides more than one tool in the
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Governor’s toolbox, without any limitation against using them in tandem in a global pandemic.
Finally, and for these same reasons, the Legislative Plaintiffs’ attempt to engraft the EMA’s 28-day limitation period onto the EPGA must fail. There is simply nothing in the text of either statute that supports or even suggests it. Instead, the Legislature, in enacting the EPGA, wisely linked the end of the Governor’s “reasonable” emergency authority with the end of the emergency. The Governor’s proclamation only ceases “upon declaration by the governor that the emergency no longer exists.” MCL 10.31(2) (emphasis added). And the Legislature, in enacting the EMA thirty years later, wisely chose to leave that characteristic of the EPGA intact. The wisdom of this legal landscape is apparent in the case of a pandemic that respects no boundaries of time or space while impacting individuals, regional health systems, and all aspects of life in severe and unpredictable ways.
In Executive Order 2020-67, the Governor reaffirmed that the state of emergency under EPGA—which has been in effect since the virus first showed itself in Michigan, and as it has rapidly claimed thousands of lives across the State— “remains declared.” (Paragraph 1.) Thus, the EPGA state of emergency remains in place. And with that state of emergency in place, the Governor’s authorities under the EPGA, and the orders she has issued pursuant to those authorities to “protect life” and “bring [this pandemic] under control,” continue. MCL 10.31(1).
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D. In the EMA, the Legislature granted the Governor broad, general powers to cope with emergency conditions; the act also requires the Governor declare a state of emergency and disaster if she finds certain circumstances are present.
In addition to her authority under the EPGA, the Governor has an independent source of emergency-response authority in the EMA. Importantly, not only does the EMA grant the Governor certain powers upon a declaration of a state of disaster or emergency, see MCL 30.403(3), (4), that act provides for another, general source of authority to “issue executive orders, proclamations, and directives having the force and effect of law,” MCL 30.403(2), and the Governor is obligated do so in accordance with her “responsib[ility] for coping with dangers to this state or the people of this state . . . .” MCL 30.403(1).
Thus, the EMA grants the Governor emergency authority independent of any declaration. But the Governor has also declared states of emergency and disaster, which further support her substantive executive actions.
1. The EMA grants a broad, general authority to the Governor to “cop[e] with dangers to the state or its people.”
First enacted in 1976, the EMA sets forth several independent (though related) obligations, coordinating state and local responses to emergencies and disasters in the State. The Governor is not the only subject of the EMA—that act tasks county boards of commissioners, MCL 30.409, and directors in state government, MCL 30.408, among others, with emergency planning, including the designation of emergency management coordinators. See MCL 30.410. As noted, it grants those local coordinators the authority to declare a local state of emergency
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and permits them to, among other things, appropriate funds, provide emergency assistance to victims of a disaster, and enter into regional compacts with public and private entities to respond to the emergencies. MCL 30.410(1)(b).
The EMA also expressly grants “disaster relief forces”—including state and local governments, and “private and volunteer” personnel, MCL 30.402(f)—the legal rights and immunities enjoyed by state employees in carrying out their response duties. MCL 30.411(1).
Particular to the Governor, the EMA grants her the important responsibility to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). This broad charge places the Governor at the forefront of emergency and disaster responsiveness and serves as a baseline for the latitude given to the Governor by the Legislature in times of crisis. To that end, the Governor possesses the authority to “issues executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(2). The act grants the Governor, and only the Governor, the authority to amend or rescind those orders. Id.
Significantly, this section is not tied to a declaration of a state of emergency and disaster, discussed more fully below. Accordingly, by the EMA’s plain language, the Governor has this authority and obligation under the act, regardless of whether there has been any expression of legislative approval of a continued state of emergency or disaster. This is further reflected by § 5(1) of the Act, MCL 30.405(1), which provides that the additional powers of the Governor that flow from
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a declaration of a state of emergency or disaster are “[i]n addition to the general authority granted to the governor by th[e] act.” (Emphasis added.)
This distinct, general authority is confirmed throughout the EMA. For example, MCL 30.414(3), makes clear that the EMA “shall not be construed to restrain the governor from exercising on his own initiative any of the powers set forth in this act.” (Emphasis added). The act also emphasizes the breadth and strength it is intended to add to the Governor’s preexisting emergency response authority, stating that it does not “[l]imit, modify, or abridge” the authority of the Governor to proclaim a state of emergency under the EPGA “or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of the state independent of, or in conjunction with, this act.” MCL 30.417(d). As discussed above, the EPGA confers emergency authority on the Governor without any legislative invasion—a characteristic the EMA expressly preserved.
2. The EMA also grants the Governor, upon an emergency or disaster proclamation, distinct authorizations.
In Executive Order 2020-66, the Governor terminated the states of emergency and disaster declared under the EMA in Executive Order 2020-33 that were set to expire at midnight on April 30. Then, that same day, the Governor issued a new declaration of states of emergency and disaster under the EMA. Executive Order 2020-68 is the focus of the Legislative Plaintiffs’ ire, but the Governor’s issuance of it was not only permitted but compelled by the EMA.
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Separately, and in addition to the Governor’s “general authority” and
“responsib[ility] for coping with dangers to this state or the people of this state
presented by a disaster or emergency,” MCL 30.405(1) & 30.403(1), the Governor
“shall, by executive order or proclamation, declare a state of emergency if he or she
finds that an emergency has occurred or that the threat of an emergency exists.”
MCL 30.403(4) (emphasis added). Similarly, she “shall, by executive order or
proclamation, declare a state of disaster if he or she finds a disaster has occurred or
the threat of a disaster exists.” MCL 30.403(3) (emphasis added).18
Upon that order or proclamation, the law grants the Governor authority to
marshal both state and federal resources to adequately deal with the danger facing
the state.19 That executive order or proclamation also authorizes the Governor to
exercise additional broad powers, including but not limited to, “[s]uspending a
18 The EMA defines both “disaster” and “emergency.” Under MCL 30.402(e), “ ‘[d]isaster’ means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause. . . .” “Emergency” is defined as “any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.” MCL 30.402(h).
19 See, e.g., MCL 30.404(1) (“An executive order or proclamation of a state of disaster or a state of emergency shall serve to authorize the deployment and use of any forces to which the plan or plans apply and the use or distribution of supplies, equipment, materials, or facilities assembled or stockpiled . . . .”); MCL 30.404(2) (“Upon declaring a state of disaster or a state of emergency, the governor may seek and accept assistance, either financial or otherwise, from the federal government, pursuant to federal law or regulation.”); MCL 30.408(1) (“Upon the declaration of a state of disaster or a state of emergency by the governor, each state agency shall cooperate to the fullest possible extent with the director in the performance of the services that it is suited to perform, and . . . in the prevention, mitigation, response to, or recovery from the disaster or emergency.”).
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regulatory statute, order, or rule prescribing the procedures for conduct of state business” in certain circumstances, “commandeer[ing] . . . private property necessary to cope with the disaster or emergency,” and “[c]ontrol[ling] ingress and egress to and from a stricken or threatened area,” and “[d]irect[ing] all other actions which are necessary and appropriate under the circumstances.” MCL 30.405(1)(a), (d), (g), (j).
Notably, the EMA independently defines “state of disaster” and “state of emergency” independently from “disaster” and “emergency.” While “disaster” and “emergency” refer to certain conditions that the Governor may find to exist in the State, “state of emergency” and “state of disaster”—both of which were declared in 2020-68—are defined as types of executive order or proclamations that the Governor must issue upon finding emergency or disaster conditions exist. Per MCL 30.402(p), “‘state of disaster’ means an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” (Emphasis added.) Similarly, “‘state of emergency’ means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(p) (emphasis added). In other words, “state of emergency” and “state of disaster” are species of executive orders that activate certain response efforts and resources, and may be issued only upon a particular finding.
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In short, “if [the Governor] finds that an emergency [or disaster] has occurred or that the threat of an emergency [or disaster] exists,” the Governor “shall” declare as such in an executive order or proclamation. MCL 30.403(3), (4). Under longstanding Michigan precedent, “the word ‘shall’ is ordinarily construed in its imperative sense, excluding the idea of discretion.” State Bd of Ed v Houghton Lake Cmty Sch, 430 Mich 658, 670 (1988). See also Sauder v Dist Bd of Sch Dist No 10, Royal Oak Tp, Oakland Co, 271 Mich 413, 418 (1935) (when a statute uses “shall” and “the public are interested” that charge “is imperative”); Southfield Tp v Main, 357 Mich 59, 76 (1959) (“The use of the word ‘shall’ is mandatory and imperative and when used in a command to a public official.”).
The Governor thus has a duty to declare a state of emergency or a state of disaster if she determines a disaster or emergency has occurred or will occur. While the emergency or disaster declarations (which are, again, simply types of executive order) may expire after 28 days, it is “imperative” that she issue an emergency or disaster declaration if the conditions supporting them exist.20 This legal dynamic is reality-based, for it mirrors the undeniable fact that emergency circumstances can and do rise and fall over time, particularly in the case of a global pandemic.
Importantly, the Governor is not granted her emergency authority without limit, as the Legislative Plaintiffs’ seemingly warn. Indeed, although the Governor “shall” declare an emergency or disaster “if he or she finds” that an emergency or
20 Nor does her independent responsibility to “cope” with emergency circumstances, MCL 30.403(1)somehow evaporate after 28 days, as it is not contingent on any declaration.
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disaster has occurred or threat of either exists, she is not empowered to declare either in the absence of the conditions precedent. MCL 30.403(3) and (4); see also MCL 10.31(1) (permitting the Governor to proclaim a state of emergency in the event of a “public emergency within the state” or “reasonable apprehension” of such an emergency, when “public safety is imperiled”). These provisions establish clear textual limitations on the Governor’s authority, limitations that should silence the siren-decibel lamentations of the Governor’s purported “tyranny.” (Pls Br, p 41.)
And while a Governor’s factual finding of an emergency is entitled to great deference, it is not beyond judicial review. Straus v Governor, 459 Mich 526, 533 (1999), quoting People ex rel Johnson v Coffey, 237 Mich 591, 602 (1927) (“The Governor holds an exalted office. To him, and to him alone, a sovereign people has committed the power and the right to determine the facts in the proceeding before us. His decision of disputed question of fact is final. His finding of fact, if it has evidence to support it, is conclusive on this court. It would be unbecoming in us to impugn his motives, and unseemly and unlawful to invade his discretion.”) (emphasis added). Should a party choose to quibble with the factual support for the Governor’s findings, it may attempt redress in the courts. But, again, the Legislative Plaintiffs’ have expressed no disagreement with her considered finding that emergency and disaster conditions exist.
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3. Consistent with the EMA, the Governor terminated the original states of disaster and emergency; her subsequent disaster and emergency proclamations are required by law.
The Governor followed MCL 30.403(3) and (4), the provisions which provide for the expiration of the state of disaster or state of emergency; the provisions under which the Legislative Plaintiffs’ suggest they have been shut out. Those provisions each provide for three conditions for the end of a state of disaster or emergency— that is, the “termination” of those types of executive orders. MCL 30.402(p), (q). First, if “the governor finds that the threat or danger has passed,” the state of disaster or emergency does not “continue.” MCL 30.403(3), (4). This has not occurred. Second, if the “disaster has been dealt with to the extent that disaster conditions no longer exist,” the state of disaster or emergency does not “continue.” MCL 30.403(3), (4). Again, this has not occurred.
What did happen was that the executive orders were initially extended under the third option beyond 28 days—the Governor requested an extension and the Legislature approved that extension “for a specific number of days” by resolution until April 30. MCL 30.403(3), (4).
As April 30 approached, the Governor against sought an extension, which the Legislature refused, requiring that the Governor “issue an executive order or proclamation declaring the state of disaster [and emergency] terminated.” MCL 30.403(3), (4). As a consequence, the Governor did as the statute required and “terminated” the states of emergency and disaster declared under the EMA by
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Executive Order 2020-33. Executive Order 2020-66. Thus, MCL 30.403(3) and (4) were effectuated.
4. Because statewide disaster and emergency conditions continue to exist, the Governor is duty bound to activate the State’s response, as she did with Executive Order 2020-68.
Then, the Governor likewise did as she was required under the EMA to do through Executive Order 2020-68: issue an executive order declaring states of emergency and disaster under the EMA because she found “that an emergency [or disaster] has occurred or that the threat of an emergency [or disaster] exists,” triggering her duty to declare as such in an executive order or proclamation. MCL 30.403(3), (4); Executive Order 2020-68, Preamble. The Governor acknowledged that the measures issued pursuant to her authority under the EMA and the EPGA (like the Stay at Home order, among others), “have been effective, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over.” Executive Order 2020-68, Preamble. While acknowledging the economic and social hardships that Michiganders currently face in light of the novel virus and the measures taken to beat it back, she emphasized the continued lack of treatment for the virus, the ease of transmission, and the “lack [of] adequate means to fully test for it and trace its spread.” Executive Order 2020-68, Preamble. Ultimately, the Governor found that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Executive Order 2020-68, Preamble. Thus, given
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her findings and the facts on the ground, the Governor was obligated to issue Executive Order 2020-68.
Nothing in the EMA provides that, once an executive order declaring a state of emergency or disaster expires, the Governor is powerless to act on behalf of the State’s health and welfare. Quite the opposite. If she finds a disaster or emergency has occurred or is threatening to occur, MCL 30.402(e), (h), then she “shall” issue orders declaring states of disaster or emergency. MCL 30.403(3), (4); State Bd of Ed, 430 Mich at 670 (“shall” indicates an “imperative”). With Executive Order 2020-68, that is precisely what she did.
Any other reading would unduly fail to account for disasters or emergencies that simply have not ceased upon expiration of an earlier declaration. For example, at some point, the Governor’s states of emergency and disaster will expire because the conditions will not at that time be present to support their continuance.21 But what if the same virus rears its head again say, six months later? Is the Governor unable to declare a state of emergency or disaster because the earlier proclamations had expired on the very same subject? This would contravene not only the letter of the EMA but also its purpose in granting the Governor the latitude to respond to disasters and emergencies, and would permit the dead hand of the past to
21 Consistent with the EMA, and contrary to Legislative Plaintiffs’ suggestion otherwise, Executive Order 2020-68 specifies “the conditions permitting the termination of the state of disaster” and “of emergency,” MCL 30.403(3) & (4): when a “stable [economic] recovery [from this pandemic] 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 welfare of this state have been neutralized.” EO 2020-68, Preamble.
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jeopardize the health and safety of Michiganders, all without a plain requirement in the statutory language.
5. The Legislative Plaintiffs’ responsive arguments fail to account for the language of the act.
The Legislative Plaintiffs make several arguments why this Court should declare the Governor’s new declaration of a state of emergency and state of disaster under the EMA void. None have merit.
a. The Governor’s construction does not yield absurd results.
The Legislative Plaintiffs lean on the concept of absurd results (Pls Br, pp 21–23), arguing that the Governor issued contradictory orders by simultaneously terminating and declaring states of emergency and disaster. But this, again, shows a misunderstanding both of the Governor’s declarations and of the language of the EMA. Even if the absurd results doctrine exists in Michigan, Johnson v Recca, 492 Mich 169, 193 (2012) (questioning that premise), it involves a high standard: “[a] result is only absurd if it is quite impossible that the Legislature could have intended the result,” id. (cleaned up). Again, “state of emergency” and “state of disaster” are, by statutory definition, types of “executive orders.” MCL 30.402(p) and (q). And as the Governor made abundantly clear in Executive Order 2020-66, the termination of her previously declared states of emergency and disaster was not driven by any belief that the emergency and disaster conditions requiring them had ceased to exist. Rather, per the EMA, she terminated those executive orders only because the Legislature refused to ratify her declaration. MCL 30.403(3) and (4).
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Accordingly, Executive Order 2020-66 complies stringently with the law. The Legislature wrote the rules; the Governor followed them.
The ongoing existence of a “disaster” and an “emergency” in this State, see MCL 30.402(e), (h), is uncontested, yet the Governor was required by the EMA to terminate the “state of disaster” executive order and “state of emergency” executive order, which she did. It is the persistence of the underlying disaster and emergency that requires her, under the plain terms of the EMA, to declare those states again— just as she has.
b. No piece of the EMA is invalidated or rendered nugatory.
The Legislative Plaintiffs’ contend that, under the Governor’s reading, the concurrent-resolution procedure for extending states of emergency and disaster beyond 28 days in MCL 30.403(3) and (4) is rendered meaningless. Not so. A court’s construction of a statute should avoid rendering a provision surplusage or nugatory. Apsey v Mem Hosp, 477 Mich 120, 127 (2007). One plain purpose of this procedure is to give the Legislature a mechanism to hold the Governor accountable if the conditions supporting a declaration are questionable, or completely lacking. To that end, MCL 30.403(3) and (4) provide that the declaration “shall” include an explanation of the conditions causing the disaster or emergency and the area affected. By refusing to extend a declared state of emergency or disaster, the
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Legislature can force the Governor to prove her insistence that an emergency or disaster has not abated, creating an interbranch dialogue.22
But that is not the circumstance before the Court—the Legislature has not denied that Michigan continues to face a dire public health threat, nor could it in good faith do so. Nonetheless, the Legislature withheld. The statute it drafted, though, maintains the Governor’s duty to declare states of disaster and emergency, and to cope with the dangers facing the State, in spite of that withholding. In a wildfire, the firefighters holding the hose do not end their efforts if someone shuts off a ringing alarm. Instead, they fight the spread and respond to the conditions as they are, and not as others would like them to be.
The 28-day time period serves another purpose. It forces the Governor not only to show its work to the Legislature, but to explain to the People the grounds for any extension of the declarations. The proclamation must be “disseminated promptly” to “bring its contents to the attention of the general public.” Id. Thus, her justifications must be manifest to the whole State, to whom she answers.
The Legislature might have included a provision that prohibited the Governor from issuing a substantively similar declaration if the Legislature did not extend the earlier one. But the 1976 Legislature wisely did not draft so inflexible and short-sighted a statute. Myriad unforeseen disasters and emergencies awaited future generations, so the Legislature’s words requiring the Governor to issue a
22 Ultimately, as discussed above, this is a determination that, while subject to great deference, is within the courts’ authority to review. See Straus, 459 Mich at 533; Coffey, 237 Mich at 602.
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declaration where the real-world implications persist was a humble acknowledgement of our predictive limitations, and a solemn trust in the one statewide office equipped to lead a coordinated response.
c. If the Legislative Plaintiffs are right about the authority to effectively veto the Governor’s declarations under the EMA, the Legislature retained what amounts to an unconstitutional legislative veto under Chadha and Blank.
To read the EMA’s concurrent-resolution extension mechanism as the Legislative Plaintiffs do—a means for the Legislature to force the termination not only of certain orders, but of the Governor’s substantive emergency response authority under the EMA writ large—would go beyond contradicting the EMA’s plain text; it would be unconstitutional. As discussed more fully below, the Legislature may share its constitutional authority with the Governor provided it prescribes standards for guidance that are reasonably precise in light of the subject matter of the delegation. But once the Legislature does so, it may not retain what amounts to a legislative veto. If the Legislative Plaintiffs are correct about their interpretation of the concurrent-resolution provision, then that body has not just kept a modicum of oversight, but a “right to approve or disapprove” the Governor’s exercise of delegated authority—and to do so without itself abiding by constitutional requirements of bicameralism and presentment. Blank v Department of Corrections, 462 Mich 103, 113 (2000). Such invasive oversight would violate our Constitution.
In INS v Chadha, 462 US 919 (1983), the Supreme Court evaluated whether the Constitution permitted Congress to delegate authority to the executive but
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permit one house of Congress to retain veto authority over the actions of the executive. The Court held that such a maneuver violated the principle of bicameralism and presentment, circumventing the limitations set on Congress in the Constitution itself. Id. at 959. Just as in Chadha, where there was “[d]isagreement with the Attorney General’s decision on Chadha‘s deportation— that is, Congress’ decision to deport Chadha,” here, the Legislative Plaintiffs disagree with the Governor’s decision to declare states of disaster and emergency in Michigan and to activate the response resources that accompany those declarations. Id. at 954. Such “determinations of policy” by legislative branches may be implemented “in only one way”: bicameral passage and presentment to the President (or Governor). Id. at 954-955. “Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” Id. at 955.
In Blank, the Michigan Supreme Court applied the framework in Chadha in considering the constitutionality of a 1977 amendment to the Administrative Procedures Act (“APA”), which required an administrative agency to “obtain the approval of a joint committee of the Legislature or the Legislature itself before enacting new administrative rules.” Blank, 462 Mich at 108 (opinion of Kelly, J.). The Court framed the issue as follows: “[W]hether the Legislature, upon delegating [rulemaking authority to an executive-branch agency], may retain the right to approve or disapprove rules proposed by [the agency].” Id. at 113. In a plurality opinion, the Court ultimately answered that question in the negative, finding that the Legislature’s approval or disapproval of an executive-agency rule is “inherently
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legislative” and therefore “subject to the enactment and presentment requirements of the Michigan Constitution.” Id. at 115–116.
The same conclusion holds for any determination by the Legislature that the Governor can no longer exercise the emergency powers the Legislature has vested in her through the EMA. Effectuating such an inherently legislative determination requires legislative action, and “[w]hen the Legislature engages in ‘legislative action’ it must do so by enacting legislation.” Id. at 119. “[T]he Legislature cannot circumvent the enactment and presentment requirements [that must accompany legislative action] simply by labeling or characterizing its action as something other than ‘legislation.’” Id.; see also id. at 118 n 8 (“[T]he fact that the Legislature can delegate legislative power to others who are not bound by the enactment and presentment requirements does not mean that it can delegate the same power to itself and, in the process, escape from the constraints under which it must operate.”) (cleaned up).
The Legislative Plaintiffs thus cannot complain that the EMA’s concurrentresolution procedure has not been given the effect they would like it to have, because that effect—a legislative veto of the Governor’s delegated authority—would be unconstitutional. The Legislature plainly granted broad emergency authority to the Governor; it “must abide by its delegation of authority until that delegation is legislatively altered or revoked,” Chadha, 462 US at 955, through the proper channels set forth in our Constitution.
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III. The EPGA contains standards to guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore are not susceptible to non-delegation challenges. The Legislative Plaintiffs argue that the 1945 law, the EPGA, violates the
separation of powers because it lacks sufficient standards to guide the Governor’s decision-making, rendering it a violation of the non-delegation doctrine. Ample caselaw disagrees.
If the Legislature wishes to amend its own statutes, its rush to this Court is as unusual as it is unnecessary. The Legislature has the constitutional tools it needs within its own branch—legislative action through bicameralism and presentment. Instead we are here, with the Legislative Plaintiffs asking this Court to declare unconstitutional their own duly enacted law. With this staging in the background, the Legislative Plaintiffs’ protestations about the Governor’s supposed violation of the separation-of-powers ring hollow.
A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given.
The Michigan Constitution provides for the separation of powers among the three branches of state government. In particular, the Constitution provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch. Const 1963, art 3, §1. But Michigan courts have never interpreted the separation of powers doctrine as meaning there can never be any overlapping of functions between branches. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752 (1982). Rather,
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an overlap or sharing of power is constitutionally permissible provided that “the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other.” Judicial Attorneys Ass’n v Mich, 459 Mich 291, 297 (1998); see also id. (“It is simply impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws.”).
The separation of powers doctrine “ha[s] led to the constitutional discipline that is described as the nondelegation doctrine,” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8 (2003), which the Legislative Plaintiffs claim the EPGA violates. While, in general, the legislative power—the power “to make, alter, and amend laws”—remains with the Legislature, Harsha v City of Detroit, 261 Mich 586, 590 (1933), both the United States Supreme Court and the Michigan Supreme Court “ha[ve] recognized that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress [or our Legislature] from obtaining the assistance of the coordinate Branches.” Taylor, 468 Mich at 8, quoting Mistretta v United States, 488 US 361, 371 (1989).
The Michigan doctrine of non-delegation has been expressed in terms of a “standards test.” Westervelt v Natural Resources Comm, 402 Mich 412, 437 (1978). Under this test, “legislation which contains a delegation of power to . . . [another branch] must contain either explicitly or by reference . . . standards prescribed for guidance . . . .” Id. at 437–438, citing Osius v City of St Clair Shores, 344 Mich 693, 698 (1956). Significantly, such standards must only be “as reasonably precise as the
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subject matter requires or permits.” Id. at 438, citing Osius, 344 Mich at 698; see also State Conservation Dep’t v Seaman, 396 Mich 299, 309 (1976) (“The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.”).
And the statute carries a presumption of constitutionality; it “must be construed in such a way as to ‘render it valid, not invalid.’ ” Id., citing Argo Oil Corp v Atwood, 274 Mich 47, 53 (1935).
The standards set forth in the EPGA are as “reasonably as precise as the subject matter requires or permits.” Westervelt, 402 Mich at 439. The Legislature did not grant the Governor a blank check. The EPGA provides the Governor the authority, after declaring a state of emergency, to “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). Accordingly, there are several limits on the Governor’s authority. Her orders may come only after upon a “public emergency” and the orders must not only be reasonable and necessary; they must be directed at protection of “life and property” or “bring[ing] the emergency situation . . . under control” in the “affected area.” Id.
Michigan courts have consistently upheld similar language as sufficiently precise to avoid any nondelegation problem. In Klammer v Department of Transportation, 141 Mich App 253, 262 (1985), the Court of Appeals considered the that the word “necessary” was a sufficiently precise standard for the retirement
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board in the context of considering the length of time a certain state worker could continue after reaching the mandatory retirement age. See also G.F. Redmond & Co v Michigan Sec Comm’n, 222 Mich 1, 7 (1923) (“[T]he term ‘good cause’ for revocation of the license, relating, as it does, to the conduct of the business regulated by the policy declared in the statute, is sufficiently definite . . . .”); Smith v Behrendt, 278 Mich 91, 97–98 (1936) (holding that allowing the executive to grant oversize loads for freeway travel in “special cases” was a limited and proper delegation of legislative authority). These examples suffice to reveal that the courts are hesitant to invalidate laws on the basis of an allegedly improper delegation where the Legislature provides even a modicum of direction to the executive branch. This level of trust—in the Legislature, to delegate as it sees fit, and in the executive, to follow those guidelines—signifies a strong deference from this Court to its coordinate branches.
The Legislative Plaintiffs rely on Blue Cross & Blue Shield of Michigan v Milliken, which determined that “the power delegated to the Insurance Commissioner” regarding approval of actuarial risk factors “is completely open ended.” 422 Mich 1, 53 (1985). And for good reason—the commissioner’s authority was not guided at all. Instead, the commissioner was granted complete authority to “ ‘approve’ or ‘disapprove’ the proposed risk factors; the basis of the evaluation is not addressed.” Id. Blue Cross is a poor comparison.
And of course, the standards imposed on the Governor’s authority under the EPGA are not read in a vacuum—the “subject matter” of the delegation guides how
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strictly or narrowly drawn the standards must be. Westervelt, 402 Mich at 439. The context of a developing “crisis, disaster, rioting, catastrophe, or similar public emergency,” MCL 10.31(1), counsels granting substantial leeway to the decisionmaker. Public emergencies are not static events, nor do they unfold patiently or predictably. Response to such crises warrant—indeed require— nimbleness coupled with judgment to meet the needs of the moment. There is no specific one-size-fits-all response to a complex and ongoing emergency. This subject matter requires the broadest level of leeway permissible under the nondelegation doctrine. If “the management of natural resources is a difficult and complex task,” Seaman, 396 Mich at 311, surely the response to rapidly developing and everchanging public health crisis is even more so.
The EPGA provides substantial discretion to the Governor, but limits her ability to act upon a finding of an emergency, and then can only exercise her discretion to issue “reasonable” orders that are “necessary” to meet particular ends: the protection of “life and property” and to bring the emergency “under control.” MCL 10.31(1). These guideposts are more than sufficient, and for good reason they do not contemplate legislative or judicial second-guessing.
B. Michigan is one of many States that has largely entrusted emergency authority to the executive branch.
While it may be true that, with the EPGA, the Legislature did not attempt to set forth an elaborate scheme of detailed provisions designed to cover every conceivable type of situation that might arise in an emergency in granular detail, it was for good reason. The law has long demonstrated an understanding that
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emergency situations require prompt, decisive action that is not the subject of advance prediction. See, e.g., Ex parte McGee, 185 P 14, 16 (Kan, 1919) (in the wake of the influenza pandemic of 1918 accepting the “necessity for legislation” conferring broad authority on state health officials “to prevent the spread and dissemination of diseases dangerous to the public health”); State v Rackowski, 86 A 606, 607–608 (Conn, 1913) (calling such response as “a chief end of government”); Kirk v Wyman, 65 SE 387, 389 (SC, 1909) (the state must “act with promptness[] when the public health is endangered”); Blue v Beach, 56 NE 89, 92 (Ind, 1900) (the state has “an imperative obligation” “to take all necessary steps” to safeguard public health.)
Michigan’s scheme is in good company. Myriad States have similar regimes granting the executive broad authority to take reasonable and temporary measures during a public emergency. See, e.g., Ky Rev Stat Ann § 39A.100(1)(j) (granting the governor broad powers “to perform and exercise other functions, powers, and duties deemed necessary to promote and secure the safety and protection of the civilian population”); Miss Code Ann § 33-15-11(c)(4) (the governor may “perform and exercise such other functions, powers and duties as may be necessary to promote and secure the safety and protection of the civilian population in coping with a disaster or emergency”); Haw Rev Stat § 127A-13(3); 14(c) (granting the Hawaii governor—who “shall be the sole judge of the existence of the danger, threat, or circumstances giving rise to a declaration of a state of emergency”—broad powers to combat emergencies including suspending laws that “impede[] or tend[] to impede
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or be detrimental to the expeditious and efficient execution of, or to conflict with, emergency functions”); 20 Ill Comp Stat 3305/7 (giving the Illinois Governor the power to “utilize all available resources of the State government as reasonably necessary to cope with the disaster”). Unsurprisingly, many if not all States have looked to those and similar delegations in response to the COVID-19 pandemic.23
The need for flexibility and decisiveness in public health crises is reflected in the “standards test,” which requires standards of guidance to only be “as reasonably precise as the subject matter requires or permits.” Westervelt, 402 Mich at 437–438, citing Osius, 344 Mich at 698. Here, the Legislature spoke as precisely as a state of emergency requires and, in its wisdom, left to the Governor the important task of developing the appropriate response.
The Legislative Plaintiffs proffer the Legislature’s “nature and design” as best situated to handle the ongoing public health crisis. (Pls Br, p 44.) It offers the virtues of “consensus through rigorous parliamentary debate,” and considerable “distillation and refinement,” to make public policy choices. (Id.) The response necessary to combat a fast-moving, contagious disease is agile and flexible (as well as temporary and reasonable) action, not Robert’s Rules of Order.
As the authorities above illustrate, legislatures across the country acknowledge that they are not the institution best equipped to make and enforce
23 See Kaiser Family Foundation, State Data and Policy Actions to Address Coronavirus, available at https://www.kff.org/health-costs/issue-brief/state-dataand-policy-actions-to-address-coronavirus/
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quick judgments on evolving information.24 The Legislature knows that to meet the moment, proper delegation to the executive is the wisest course, which is why it granted the authorities it did to the Governor in the EPGA and the EMA.
This Court should honor that choice rather than allow itself to be co-opted to do the Legislative Plaintiffs’ bidding. Having extolled its virtues in making public policy choices (Pls Br, p 44), it is incumbent on the Legislature, not this Court, to make the changes it seeks. Bicameralism and presentment are the constitutional procedures that the Legislature is best equipped to effectuate, and if it thinks it is wise to take the reins in the middle of this crisis, it should exercise its legislative authority accomplish it.
The Legislative Plaintiffs have not done so. Instead, they sought to extract the authority duly entrusted by law with the Governor by refusing to acknowledge—contrary to undisputed science and data—the emergency and disaster conditions afflicting this State. Having lost that political gamble, they are doubling down on this lawsuit. But this is more than a political bluff for a dissatisfied coequal branch of government holding a losing hand under applicable law. It is a power grab cloaked in the fineries of unfounded legal reasoning begging for judicial imprimatur. As gatekeeper and interpreter of Michigan’s laws, the judiciary must appropriately respond and avoid the fray. Hence the common meaning and understanding of judicious.
24 In some emergency circumstances, even the constitutionally mandated quorum necessary to do business in the Legislature could pose logistical barriers. Const 1963, art IV, § 14.
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The Legislative Plaintiffs’ requested relief would not only sow confusion, it would unduly undermine each of the Governor’s substantive executive orders (like the Stay at Home Order, among others) that are properly rooted in her authority under the EPGA and the EMA, endangering the public. The emergency and disaster declarations issued by the Governor were executed after careful consideration of the unique nature of the threat facing Michigan and the advice of numerous individuals and entities with unique expertise. To judicially strip the Governor of her authority, contrary to her clear legal duties, would not just upset the separation of powers. It would work grievous harm on the State and its citizens. The end of the beginning of the ongoing pandemic is not the end of the Governor’s authority to protect the health and safety of everyone in Michigan.
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CONCLUSION AND RELIEF REQUESTED The Governor respectfully requests this Court deny Plaintiffs’ motion. The Governor further requests this Court render judgment in her favor, MCR 2.116(I)(1), (2), and grant any other appropriate relief.
Respectfully submitted, /s/ Christopher M. Allen Christopher Allen (P75329) Assistant Solicitor General /s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Joshua Booth (P53847) John Fedynsky (P65232) Assistant Attorneys General Michigan Dep’t of Attorney General Attorneys for Defendant P.O. Box 30754 Lansing, MI 48909 517.335.7573 allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov fedynksyj@michigan.gov
Dated: May 12, 2020
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 Case 1:20-cv-00414-PLM-PJG ECF No. 21 filed 05/26/20 PageID.1045 Page 1 of 12

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

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,

Plaintiffs, vs.
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,
Defendants.

Case No. 1:20-cv-00414
Hon. Paul L. Maloney
PLAINTIFFS’ REPLY REGARDING MOTION FOR PRELIMINARY INJUNCTION & REQUEST FOR SCHEDULING CONFERENCE IN LIEU OF PRELIMINARY INJUNCTION HEARING

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov berelsr1@michigan.gov

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

Christopher M. Allen Joshua O. Booth John G. Fedynsky Joseph T. Froehlich Assistant Attorneys General for Defendants Witmer and Gordon P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 Allenc28@michigan.gov Buthj2@michigan.gov fedynsky@michigan.gov Froehlichj1@michigan.gov

Case 1:20-cv-00414-PLM-PJG ECF No. 21 filed 05/26/20 PageID.1046 Page 2 of 12 Table of Contents Page
Index of Authorities ........................................................................................................................ ii Introduction ......................................................................................................................................1 Argument .........................................................................................................................................2 I. The Plaintiffs respectfully request that the Court hold a scheduling
conference on May 28 in lieu of a preliminary injunction hearing......................................2 II. Neither this case nor the preliminary injunction motion is moot.........................................2 III. The Defendants are wrong on the merits. ............................................................................5 Conclusion .......................................................................................................................................8
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Index of Authorities Page
Cases Ammex, Inc. v. Cox,
351 F.3d 697 (6th Cir. 2003) ...................................................................................................... 3 Carpenter-Barker v. Ohio Dep’t of Medicaid,
752 F. App’x 215 (6th Cir. 2018) ............................................................................................... 4 County of Los Angeles v. Davis,
440 U.S. 625 (1979).................................................................................................................... 4 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,
528 U.S. 167 (2000).................................................................................................................... 3 Jacobson v. Massachusetts,
197 U.S. 11 (1905)...................................................................................................................... 8 Speech First, Inc. v. Schlissel,
939 F.3d 756 (6th Cir. 2019) ...................................................................................................... 4 Trinity Lutheran Church of Columbia, Inc. v. Comer,
137 S. Ct. 2012.1 (2017)............................................................................................................. 4 Other Authorities Declaratory Judgment Act .............................................................................................................. 7 Emergency Management Act of 1976 ............................................................................................ 6 Emergency Powers of the Governor Act of 1945 ....................................................................... 6, 8
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Introduction In several of the other cases filed in this Court in which plaintiffs sought a preliminary injunction to enjoin Governor Whitmer’s coronavirus-related executive orders, the Governor issued new executive orders permitting the plaintiffs’ conduct shortly before this Court was scheduled to hear and decide the plaintiffs’ motions for injunctive relief. The same happened here. The Plaintiffs filed their motion for preliminary injunction on Monday, May 18, 2020. On May 19, this Court scheduled a preliminary injunction hearing for May 28 and ordered the Governor to file a response brief by May 22. (Order, DE 13, PageID.438). On May 21, Governor Whitmer issued EO 2020-96, which will rescind the Governor’s prohibition of “non-essential” medical procedures, but only on May 29, the day after the Court’s scheduled hearing. The Defendants then filed briefs on May 22, asserting that the Plaintiffs’ claims have been mooted. The Defendants are wrong. This case is far from moot. Governor Whitmer has repeatedly expressed concerns about a “second wave” of COVID-19 infections. In the Governor’s latest declaration of a state of emergency—EO 2020-99 issued just this past Friday, May 22, 2020—she argues that statewide stay-home measures continue to be necessary, not only to prepare for that second wave of infections, but also to address widespread economic, health, and social harms of the pandemic. Likewise, the Governor’s MI Safe Start Plan for reopening the economy warns that the Governor may need to revert to an earlier phase of the shutdown, possibly restricting “non-essential” procedures again as she did in EO 2020-17, if the risk increases or if people stop adhering to safe practices. Absent a ruling from this Court, Governor Whitmer can simply issue another executive order that re-imposes her ban on non-essential medical procedures. And in any event, Governor Whitmer’s executive orders still impose numerous requirements upon the Plaintiffs’ provision and receipt of medical care.
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The Plaintiffs recognize, however, that the Governor’s recent executive order reduces the exigency for preliminary injunctive relief. The Plaintiffs therefore withdraw their motion for a preliminary injunction, reserving the right to re-file it should the need arise. Because the Court has already scheduled proceedings to occur in this case at 9:00 a.m. on May 28, 2020, the Plaintiffs respectfully request that this Court hold a scheduling conference at that date and time so that the parties and the Court can determine, based on the unique posture of this case, the most efficient manner in which to proceed to judgment.
Argument I. The Plaintiffs respectfully request that the Court hold a scheduling conference on
May 28 in lieu of a preliminary injunction hearing. With the Plaintiffs’ motion for preliminary injunction withdrawn, this Court need
not go forward with the preliminary injunction hearing scheduled at 9:00 a.m. on May 28, 2020. (Order, DE 13, PageID.438). The Plaintiffs respectfully request that the Court instead hold an initial status or scheduling conference with the parties at that date and time in order to determine how best to streamline the issues for this Court’s resolution.
The parties have submitted substantial briefing on several significant issues. Some of the issues of state law are potentially wending their way through the Michigan state courts. Further, several cases challenging various aspects of Governor Whitmer’s executive orders have been filed in this Court. A scheduling conference would assist the Court and the parties to discuss and determine how to present the relevant issues and facts to the Court in the manner that would be most efficient and streamlined for the Court, particularly in view of other pending litigation. II. Neither this case nor the preliminary injunction motion is moot.
Even though Plaintiffs have withdrawn their request for a preliminary injunction, Plaintiffs address a few points in response to the Defendants’ arguments:
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First, the issues before the Court are not moot. Governor Whitmer’s new Stay Home, Stay Safe order—EO 2020-96 (Exhibit 1)—does not lift the restrictions on non-essential medical procedures imposed by EO 2020-17 until May 29, the day after the Court’s scheduled preliminary-injunction hearing.1 Even if EO 2020-96 mooted anything—and it does not, for the reasons stated below—it does not rescind the relevant order until the hearing is already over.
Second, even under EO 2020-96, the Plaintiffs will be subject to a host of new sanitation and workflow requirements under EO 2020-97 (Exhibit 2), with which they must comply. Governor Whitmer’s executive orders therefore still directly burden the Plaintiffs.
Third, the Defendants are entirely off track in arguing that their “voluntary cessation” of their activity moots the claim. “The heavy burden of demonstrating mootness rests on the party claiming mootness.” Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003). A defendant’s decision to voluntarily cease the challenged activity does not automatically moot a claim. “It is well settled that ‘a defendants voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.’ ... ‘[I]f it did, the courts would be compelled to leave [t]he defendant ... free to return to his old ways.’ ” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 189 (2000) (citation omitted). Instead, a case is mooted only if “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” id., and “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).
1 Delaying the rescission of EO 2020-17 produces odd results: For example, there are counties in northern lower Michigan and the Upper Peninsula (identified as regions 6 and 8 under EO 2020-96) where Michiganders today can enjoy a drink at a bar or dinner at a restaurant, yet the same individuals cannot undergo knee or bariatric surgery there or anywhere in the State.
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Where a governmental defendant changes its conduct by adopting a new regulation through a formal legislative process, the Sixth Circuit accords some solicitude to the government’s assertion that it will not repeat its conduct, reasoning that the government will not likely be able to immediately revert to its prior position. Speech First, Inc. v. Schlissel, 939 F.3d 756, 768 (6th Cir. 2019). But a different rule applies if the processes leading to the governmental actor’s change in conduct were “ad hoc, discretionary, and easily reversible actions.” Id. In other words, “[i]f the discretion to effect the change lies with one agency or individual, or there are no formal processes required to effect the change, significantly more than the bare solicitude itself is necessary to show that the voluntary cessation moots the claim.” Id. at 768-69. See also Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (changing a policy at the direction of the governor did not moot the case); Carpenter-Barker v. Ohio Dep’t of Medicaid, 752 F. App’x 215, 222–23 (6th Cir. 2018) (finding the case not mooted by voluntary cessation where rulemaking authority lay solely with the defendant).
That is precisely the case here. Governor Whitmer has sole discretion to issue these orders and may do so at any time. There is no formal legislative process or any other cumbersome process to slow down or modulate the issuance of her executive orders. None of the Governor’s current coronavirus-related orders has come with any advanced warning; they are simply announced at the Governor’s prerogative and often take effect immediately upon issuance.
There is also every reason to suspect that Governor Whitmer may again prohibit non-essential medical procedures. Governor Whitmer’s latest declaration of emergency— contained in EO 2020-99—warns of a “second wave” of coronavirus cases in Michigan: “A second wave of COVID-19 cases continues to pose a deadly threat to the people of this state. As various sectors of Michigan’s economy begin to reopen, we must be able to respond nimbly to new data
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about transmission and health risks of the virus.” (Exhibit 3). As pointed out in the Plaintiffs’ prior pleadings, Governor Whitmer’s phased reopening plans for Michigan specifically reference the possibility of re-closing operations in the event of a second wave, and Governor Whitmer has also likened the reopening of the State to a “dial,” which can be turned backwards as easily as it is turned forwards. (Plaintiffs’ Br., DE 10, PageID.253-254).
Governor Whitmer’s prolific issuance of executive orders shows just how easy that may be. In less than three months, Governor Whitmer has issued 97 executive orders related to the coronavirus pandemic—an astonishing average of more than one executive order per day. The Stay at Home orders themselves have gone through nine iterations: EOs 2020-21, 2020-42, 202059, 2020-70, 2020-77, 2020-90, 2020-91 & -92, 2020-96 & -97, and 2020-100. Assuming that Governor Whitmer is correct that she is entitled to proclaim an emergency under Michigan law and extend it for as long as she chooses, nothing stops the Governor from re-imposing a ban that again prohibits the Plaintiffs from receiving and providing non-essential medical care. This case is far from being moot. III. The Defendants are wrong on the merits.
Due to the Governor’s decision to re-permit the provision of non-essential medical care, the Plaintiffs expect that the parties will conduct discovery and fully brief the merits of the claims afterwards. At this point, it suffices to observe that the Defendants are wrong on the merits.
In their state-law claims, Plaintiffs asserted that the Governor’s executive orders are impermissible under two Michigan statutes: the Emergency Powers of the Governor Act of 1945 (the “EPGA”) and the Emergency Management Act of 1976 (the “EMA”). Last week, the Michigan Court of Claims correctly ruled that the executive orders violated the EMA. Although the Court of Claims upheld the Governor’s authority under the EPGA, the court emphasized that
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the EPGA allows the Governor to issue only “reasonable” orders that are “necessary” under the circumstances. (Ex. L to Governor’s Br., DE 17-15, PageID.709).
As pointed out in the Plaintiffs’ motion, Governor Whitmer admitted on May 1, 2020 that there was no longer a need to prohibit non-essential medical procedures, and she encouraged patients to have joint replacement surgeries performed—even though her own executive orders prohibited providers from performing those surgeries on pain of criminal penalty. (Plaintiffs’ Br., DE 10, PageID.242-243). Despite having admitted that there was no basis to prevent these procedures from occurring after May 1, Governor Whitmer chose to continue to criminalize these procedures for another full month: until May 29. It was neither reasonable nor necessary for her to do so.
Neither of the Defendants’ briefs responds to this point or even acknowledges the Governor’s comments. Instead, they ask the Court to avoid deciding the issue altogether, citing a hodge-podge of abstention and discretionary doctrines. But none of the abstention doctrines squarely applies. And despite the Governor’s insistence in her brief that the state-law issues be decided in state courts, her position in current state-court litigation is the opposite: the Governor argued in the Court of Claims that the Michigan Legislature lacked standing to prosecute the claims in state court. (Ex. L to Governor’s Br., DE 17-15, PageID.696). The Governor, in other words, is asking this Court to defer to the state court’s resolution of these questions on the merits, but is simultaneously asking the state courts to dismiss the current litigation without reaching the merits. The Defendants cannot have it both ways.
Nor would it serve any purpose for this Court to decline to exercise jurisdiction over portions of the Plaintiffs’ state-law claims under the Declaratory Judgment Act. Even if the Court declined jurisdiction over the claims for declaratory relief, the Court would still need to
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resolve the Plaintiffs’ claims for permanent injunctive relief and damages, which would require the same substantive analysis. The Court would also need to resolve the Plaintiffs’ federal claims, which turn on many of the same facts.
Nor would it be practical for the Court to refuse to exercise supplemental jurisdiction over the state-law claims, because there is substantial factual overlap between the state-law and the federal claims. Many of the facts that are relevant to whether the Governor’s conduct was “reasonable” and “necessary” under the EPGA are the same facts that are relevant to Plaintiffs’ federal claims as well. For example, the Plaintiffs’ substantive due process claim alleges that the Governor’s conduct was overbroad and unreasonable, especially given the Governor’s admission that the prohibition was no longer necessary at least a month before she determined to rescind it.
The Defendants’ responses to the remainder of the Plaintiffs’ claims are similarly uninspired. They claim that the Governor’s orders are not unconstitutionally vague because they gave broad discretion to licensed medical providers about whether and how to comply with them— which is almost the textbook definition of a vague criminal law. They agree that no procedural due process was provided to the Plaintiffs but assert that none is necessary—even if, presumably, the pandemic lasts for years to come.
The Defendants’ reliance upon Jacobson v. Massachusetts, 197 U.S. 11 (1905), does not get them very far, either. The Defendants cite Jacobson in support of the argument that the State’s conduct taken in response to a pandemic is virtually unreviewable by a court. (Governor’s Br., DE 17-2, PageID.581). But the Defendants have been telling the Michigan Court of Claims a different story: In that forum, Governor Whitmer has argued that the EPGA limits the Governor only to reasonable and necessary actions—an eminently reviewable standard. And, in
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fact, Jacobson—which involved only a compulsory smallpox vaccination, not a months-long

shutdown of the entire economic and social activity of a State—does not advocate limitless

deference to the executive in an epidemic. Instead, a regulation “purporting to have been enacted

to protect the public health, the public morals, or the public safety” is valid only if it has a “real or

substantial relation to those objects.” Jacobson, 197 U.S. at 31. “[The] acknowledged power of a

local community to protect itself against an epidemic threatening the safety of all might be

exercised in particular circumstances and in reference to particular persons in such an arbitrary,

unreasonable manner, or might go so far beyond what was reasonably required for the safety of

the public, as to authorize or compel the courts to interfere for the protection of such persons.” Id.

at 28. The executive orders that are at issue in this case go well beyond the scope of permissible

state action in response to an epidemic.

Conclusion The Plaintiffs agree to withdraw their motion for a preliminary injunction. The

Plaintiffs respectfully request that the Court hold a scheduling conference on May 28, 2020 to

discuss the most efficient manner of presenting the remaining issues to the Court for decision.

MILLER JOHNSON Attorneys for Plaintiffs

Dated: May 26, 2020

By /s/ James R. Peterson
James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

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Case 1:20-cv-00414-PLM-PJG ECF No. 21 filed 05/26/20 PageID.1056 Page 12 of 12 Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org
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MJ_DMS 31850835v2 47994-1

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EXHIBIT 1

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GRETCHEN W HITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR
LANSI NG

GARLIN G ILCHRIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-96
Temporary requirement to suspend certain activities that are not necessary to sustain or protect life
Rescission of Executive Orders 2020-17, 2020-34, and 2020-92
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 emergency, “the governor may promulgate reasonable orders, rules, and regulations as he
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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, 202077, and 2020-92, 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 these executive orders have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 20, 2020, Michigan reported 53,009 confirmed cases and 5,060 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.
With this order, I find it reasonable and necessary to reaffirm the measures set forth in Executive Order 2020-92, while also allowing gatherings of no more than ten people statewide, effective immediately, and permitting retailers and motor vehicle dealerships to see customers by appointment, beginning on May 26, 2020. In addition, because our healthcare capacity has improved with respect to personal protective equipment, available beds, personnel, ventilators, and necessary supplies, I find it reasonable to rescind Executive Orders 2020-17 and 2020-34, which required health-care and veterinary facilities to implement plans to postpone some medical and dental procedures. Those rescissions will take effect on May 29.
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 2020-97 and any orders that may follow from 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 2020-97 and any orders that may follow from 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.
(b) They are performed by workers who are permitted to resume work under section 11 of this order.
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(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 2020-97 and any orders that may follow from 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 for themselves or a household or family member.
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(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 go to a motor vehicle dealership showroom by appointment, as permitted under section 11(p) of this order.
(C) Individuals may leave the home to have a bicycle repaired or maintained.
(D) 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.
(20) To go to a retail store by appointment, as permitted under section 11(q) of this order.
(21) To attend a social gathering of no more than 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 -he-r-e). 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.
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(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.
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
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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.
(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 until May 26, 2020 at 12:01 am.
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.
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(d) Workers for moving or storage operations.
(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 2020-97 and any orders that may follow from 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, 2020, workers necessary to perform retail activities. For purposes of this order, retail activities are defined:
(1) As the selling of goods and the rendering of services incidental to the sale of the goods (e.g., any packaging and processing to allow for or facilitate the sale and delivery of the goods).
(2) To exclude those places of public accommodation that are closed under Executive Order 2020-69 and any orders that may follow from it.
(m)For Regions 6 and 8, beginning at 12:01 am on May 22, 2020, workers who work
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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, 2020, workers in restaurants or bars, subject to the capacity constraints and workplace standards described in Executive Order 2020-97. 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. For restaurants and bars subject to this subsection, this subsection supersedes the limitations placed on those restaurants and bars by Executive Order 2020-69 and any order that may follow from it.
(o) Workers necessary to prepare a workplace to follow the workplace standards described in Executive Order 2020-97 and to otherwise ready the workplace for reopening.
(p) Beginning at 12:01 am on May 26, 2020, workers at motor vehicle dealerships, provided that showrooms are open only by appointment.
(q) Beginning at 12:01 am on May 26, 2020, workers necessary to perform retail activities by appointment, provided that the store is limited to 10 customers at any one time. For purposes of this order, retail activities are defined:
(1) As the selling of goods and the rendering of services incidental to the sale of the goods (e.g., any packaging and processing to allow for or facilitate the sale and delivery of the goods).
(2) To exclude those places of public accommodation that are closed under Executive Order 2020-69 and any orders that may follow from it.
(r) 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), section 11(c), or section 11(q) 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.
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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. An individual may also remove a face covering 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, 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. Except as otherwise expressly stated in this order, 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 22 of this order for allowing religious worship at such place. No individual is subject to penalty under section 22 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
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continues through May 28, 2020 at 11:59 pm.
19. Executive Order 2020-17, which imposed temporary requirements regarding the postponement of non-essential medical and dental procedures, is rescinded as of May 28, 2020 at 11:59 pm. Executive Order 2020-34, which imposed temporary requirements regarding the postponement of veterinary services, is rescinded as of May 28, 2020 at 11:59 pm. Outpatient health-care facilities, including veterinary offices, are subject to the workplace safety rules described in Executive Order 202097.
20. Executive Orders 2020-92 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.
21. 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.
22. 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 21 2020 Time: 9:49 am

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE 13

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EXHIBIT 2

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GRETCHEN W HITMER
GOVERNOR

STATE OF MICHIGAN
OFFICE OF THE GOVERNOR
LANSI NG

GARLIN G ILCHRIST II
LT. GOVERNOR

EXECUTIVE ORDER
No. 2020-97
Safeguards to protect Michigan’s workers from COVID-19
Rescission of Executive Order 2020-91
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 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. In Executive Orders 2020-42, 2020-59, 2020-70, 202077, and 2020-92, 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 these executive orders have been effective: the number of new confirmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 20, 2020, Michigan reported 53,009 confirmed cases and 5,060 deaths— the strain on our health care system has begun to relent, even as our testing capacity has increased. We have now begun 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.
In particular, businesses must do their part to protect their employees, their patrons, and their communities. Many businesses have already done so by implementing robust safeguards to prevent viral transmission. But we can and must do more: no one should feel unsafe at work. With Executive Order 2020-91, I created an enforceable set of workplace standards that apply to all businesses across the state. I am now amending those standards to include new provisions governing outpatient health-care facilities.
Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
1. All businesses or operations that are permitted to require their employees to leave the homes or residences for work under Executive Order 2020-92, and any order that follows it, 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 - he-r-e. By June 1, 2020, or within two weeks of resuming in-person activities, whichever is later, a business’s or operation’s plan must be made readily available to employees, labor unions, and customers, whether via website, internal network, or by hard copy.
(b) Designate one or more worksite supervisors to implement, monitor, and report on the COVID-19 control strategies developed under subsection (a). The supervisor must remain on-site at all times when employees are present on site. An on-site employee may be designated to perform the supervisory role.
(c) Provide COVID-19 training to employees that covers, at a minimum:
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(1) Workplace infection-control practices.
(2) The proper use of personal protective equipment.
(3) Steps the employee must take to notify the business or operation of any symptoms of COVID-19 or a suspected or confirmed diagnosis of COVID-19.
(4) How to report unsafe working conditions.
(d) Conduct a daily entry self-screening protocol for all employees or contractors entering the workplace, including, at a minimum, a questionnaire covering symptoms and suspected or confirmed exposure to people with possible COVID19.
(e) Keep everyone on the worksite premises at least six feet from one another to the maximum extent possible, including through the use of ground markings, signs, and physical barriers, as appropriate to the worksite.
(f) Provide non-medical grade face coverings to their employees, with supplies of N95 masks and surgical masks reserved, for now, for health care professionals, first responders (e.g., police officers, fire fighters, paramedics), and other critical workers.
(g) Require face coverings to be worn when employees cannot consistently maintain six feet of separation from other individuals in the workplace, and consider face shields when employees cannot consistently maintain three feet of separation from other individuals in the workplace.
(h) Increase facility cleaning and disinfection to limit exposure to COVID-19, especially on high-touch surfaces (e.g., door handles), paying special attention to parts, products, and shared equipment (e.g., tools, machinery, vehicles).
(i) Adopt protocols to clean and disinfect the facility in the event of a positive COVID-19 case in the workplace.
(j) Make cleaning supplies available to employees upon entry and at the worksite and provide time for employees to wash hands frequently or to use hand sanitizer.
(k) When an employee is identified with a confirmed case of COVID-19, within 24 hours, notify both:
(1) The local public health department, and
(2) Any co-workers, contractors, or suppliers who may have come into contact with the person with a confirmed case of COVID-19.
(l) An employer will allow employees with a confirmed or suspected case of COVID19 to return to the workplace only after they are no longer infectious according to
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the latest guidelines from the Centers for Disease Control and Prevention (“CDC”).
(m)Follow Executive Order 2020-36, and any executive orders that follow it, that prohibit discharging, disciplining, or otherwise retaliating against employees who stay home or who leave work when they are at particular risk of infecting others with COVID-19.
(n) Establish a response plan for dealing with a confirmed infection in the workplace, including protocols for sending employees home and for temporary closures of all or part of the worksite to allow for deep cleaning.
(o) Restrict business-related travel for employees to essential travel only.
(p) Encourage employees to use personal protective equipment and hand sanitizer on public transportation.
(q) Promote remote work to the fullest extent possible.
(r) Adopt any additional infection-control measures that are reasonable in light of the work performed at the worksite and the rate of infection in the surrounding community.
2. Businesses or operations whose work is primarily and traditionally performed outdoors must:
(a) Prohibit gatherings of any size in which people cannot maintain six feet of distance from one another.
(b) 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.
(c) Provide and require the use of personal protective equipment such as gloves, goggles, face shields, and face coverings, as appropriate for the activity being performed.
(d) Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible and to ensure frequent and thorough cleaning and disinfection of tools, equipment, and frequently touched surfaces.
3. Businesses or operations in the construction industry must:
(a) Conduct a daily entry screening protocol for employees, 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.
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(b) Create dedicated entry point(s) at every worksite, if possible, for daily screening as provided in sub-provision (b) of this section, or in the alternative issue stickers or other indicators to employees to show that they received a screening before entering the worksite that day.
(c) Provide instructions for the distribution of personal protective equipment and designate on-site locations for soiled face coverings.
(d) Require the use of work gloves where appropriate to prevent skin contact with contaminated surfaces.
(e) Identify choke points and high-risk areas where employees 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.
(f) Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by employees.
(g) Notify contractors (if a subcontractor) or owners (if a contractor) of any confirmed COVID-19 cases among employees at the worksite.
(h) Restrict unnecessary movement between project sites.
(i) Create protocols for minimizing personal contact upon delivery of materials to the worksite.
4. Manufacturing facilities must:
(a) Conduct a daily entry screening protocol for employees, 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.
(b) Create dedicated entry point(s) at every facility for daily screening as provided in sub-provision (a) of this section, and ensure physical barriers are in place to prevent anyone from bypassing the screening.
(c) Suspend all non-essential in-person visits, including tours.
(d) Train employees on, at a minimum:
(1) Routes by which the virus causing COVID-19 is transmitted from person to person.
(2) Distance that the virus can travel in the air, as well as the time it remains viable in the air and on environmental surfaces.
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(3) The use of personal protective equipment, including the proper steps for putting it on and taking it off.
(e) 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.
(f) Implement rotational shift schedules where possible (e.g., increasing the number of shifts, alternating days or weeks) to reduce the number of employees in the facility at the same time.
(g) Stagger meal and break times, as well as start times at each entrance, where possible.
(h) Install temporary physical barriers, where practicable, between work stations and cafeteria tables.
(i) Create protocols for minimizing personal contact upon delivery of materials to the facility.
(j) Adopt protocols to limit the sharing of tools and equipment to the maximum extent possible.
(k) Ensure there are sufficient hand-washing or hand-sanitizing stations at the worksite to enable easy access by employees, and discontinue use of hand dryers.
(l) 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 employees or employees who received a positive test for COVID-19.
(m)Send potentially exposed individuals home upon identification of a positive case of COVID-19 in the facility.
(n) Require employees to self-report to plant leaders as soon as possible after developing symptoms of COVID-19.
(o) Shut areas of the manufacturing facility for cleaning and disinfection, as necessary, if an employee goes home because he or she is displaying symptoms of COVID-19.
5. Research laboratories, but not laboratories that perform diagnostic testing, must:
(a) Assign dedicated entry point(s) and/or times into lab buildings.
(b) Conduct a daily entry screening protocol for employees, contractors, suppliers, and any other individuals entering a worksite, including a questionnaire
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covering symptoms and suspected or confirmed exposure to people with possible COVID-19, together with, if possible, a temperature screening.
(c) Create protocols and/or checklists as necessary to conform to the facility’s COVID-19 preparedness and response plan under section 1(a).
(d) Suspend all non-essential in-person visitors (including visiting scholars and undergraduate students) until further notice.
(e) Establish and implement a plan for distributing face coverings.
(f) Limit the number of people per square feet of floor space permitted in a particular laboratory at one time.
(g) Close open workspaces, cafeterias, and conference rooms.
(h) As necessary, use tape on the floor to demarcate socially distanced workspaces and to create one-way traffic flow.
(i) Require all office and dry lab work to be conducted remotely.
(j) Minimize the use of shared lab equipment and shared lab tools and create protocols for disinfecting lab equipment and lab tools.
(k) Provide disinfecting supplies and require employees to wipe down their work stations at least twice daily.
(l) Implement an audit and compliance procedure to ensure that cleaning criteria are followed.
(m)Establish a clear reporting process for any symptomatic individual or any individual with a confirmed case of COVID-19, including the notification of lab leaders and the maintenance of a central log.
(n) Clean and disinfect the work site when an employee is sent home with symptoms or with a confirmed case of COVID-19.
(o) Send any potentially exposed co-workers home if there is a positive case in the facility.
(p) Restrict all non-essential work travel, including in-person conference events.
6. Retail stores that are open for in-store sales must:
(a) Create communications material for customers (e.g., signs or pamphlets) to inform them of changes to store practices and to explain the precautions the store is taking to prevent infection.
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(b) Establish lines to regulate entry in accordance with subsection (c) 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.
(c) 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. 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.
(2) 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.
(d) Post signs at store entrance(s) instructing customers of their legal obligation to wear a face covering when inside the store.
(e) Post signs at store entrance(s) informing customers not to enter if they are or have recently been sick.
(f) Design spaces and store activities in a manner that encourages employees and customers to maintain six feet of distance from one another.
(g) Install physical barriers at checkout or other service points that require interaction, including plexiglass barriers, tape markers, or tables, as appropriate.
(h) Establish an enhanced cleaning and sanitizing protocol for high-touch areas like restrooms, credit-card machines, keypads, counters, shopping carts, and other surfaces.
(i) Train employees on:
(1) Appropriate cleaning procedures, including training for cashiers on cleaning between customers.
(2) How to manage symptomatic customers upon entry or in the store.
8

Case 1:20-cv-00414-PLM-PJG ECF No. 21-2 filed 05/26/20 PageID.1080 Page 10 of 14
(j) Notify employees if the employer learns that an individual (including a customer or supplier) with a confirmed case of COVID-19 has visited the store.
(k) Limit staffing to the minimum number necessary to operate.
7. Offices must:
(a) Assign dedicated entry point(s) for all employees to reduce congestion at the main entrance.
(b) Provide visual indicators of appropriate spacing for employees outside the building in case of congestion.
(c) Take steps to reduce entry congestion and to ensure the effectiveness of screening (e.g., by staggering start times, adopting a rotational schedule in only half of employees are in the office at a particular time).
(d) Require face coverings in shared spaces, including during in-person meetings and in restrooms and hallways.
(e) Increase distancing between employees by spreading out workspaces, staggering workspace usage, restricting non-essential common space (e.g., cafeterias), providing visual cues to guide movement and activity (e.g., restricting elevator capacity with markings, locking conference rooms).
(f) Turn off water fountains.
(g) Prohibit social gatherings and meetings that do not allow for social distancing or that create unnecessary movement through the office.
(h) Provide disinfecting supplies and require employees wipe down their work stations at least twice daily.
(i) Post signs about the importance of personal hygiene.
(j) Disinfect high-touch surfaces in offices (e.g., whiteboard markers, restrooms, handles) and minimize shared items when possible (e.g., pens, remotes, whiteboards).
(k) Institute cleaning and communications protocols when employees are sent home with symptoms.
(l) Notify employees if the employer learns that an individual (including a customer, supplier, or visitor) with a confirmed case of COVID-19 has visited the office.
(m)Suspend all nonessential visitors.
(n) Restrict all non-essential travel, including in-person conference events. 9

Case 1:20-cv-00414-PLM-PJG ECF No. 21-2 filed 05/26/20 PageID.1081 Page 11 of 14
8. Restaurants and bars must:
(a) Limit capacity to 50% of normal seating.
(b) Require six feet of separation between parties or groups at different tables or bar tops (e.g., spread tables out, use every other table, remove or put up chairs or barstools that are not in use).
(c) Create communications material for customers (e.g., signs, pamphlets) to inform them of changes to restaurant or bar practices and to explain the precautions that are being taken to prevent infection.
(d) Close waiting areas and ask customers to wait in cars for a call when their table is ready.
(e) Close self-serve food or drink options, such as buffets, salad bars, and drink stations.
(f) Provide physical guides, such as tape on floors or sidewalks and signage on walls to ensure that customers remain at least six feet apart in any lines.
(g) Post sign(s) at store entrance(s) informing customers not to enter if they are or have recently been sick.
(h) Post sign(s) instructing customers to wear face coverings until they get to their table.
(i) Require hosts and servers to wear face coverings in the dining area.
(j) Require employees to wear face coverings and gloves in the kitchen area when handling food, consistent with guidelines from the Food and Drug Administration (“FDA”).
(k) Limit shared items for customers (e.g., condiments, menus) and clean highcontact areas after each customer (e.g., tables, chairs, menus, payment tools, condiments).
(l) Train employees on:
(1) Appropriate use of personal protective equipment in conjunction with food safety guidelines.
(2) Food safety health protocols (e.g., cleaning between customers, especially shared condiments).
(3) How to manage symptomatic customers upon entry or in the restaurant.
10

Case 1:20-cv-00414-PLM-PJG ECF No. 21-2 filed 05/26/20 PageID.1082 Page 12 of 14
(m)Notify employees if the employer learns that an individual (including an employee, customer, or supplier) with a confirmed case of COVID-19 has visited the store.
(n) Close restaurant immediately if an employee shows multiple symptoms of COVID-19 (fever, atypical shortness of breath, atypical cough) and perform a deep clean, consistent with guidance from the FDA and the CDC. Such cleaning may occur overnight.
(o) Install physical barriers, such as sneeze guards and partitions at cash registers, bars, host stands, and other areas where maintaining physical distance of six feet is difficult.
(p) To the maximum extent possible, limit the number of employees in shared spaces, including kitchens, break rooms, and offices, to maintain at least a sixfoot distance between employees.
9. Outpatient health-care facilities, including clinics, primary care physician offices, or dental offices, and also including veterinary clinics, must:
(a) Post signs at entrance(s) instructing patients to wear a face covering when inside.
(b) Limit waiting-area occupancy to the number of individuals who can be present while staying six feet away from one another and ask patients, if possible, to wait in cars for their appointment to be called.
(c) Mark waiting rooms to enable six feet of social distancing (e.g., by placing X’s on the ground and/or removing seats in the waiting room).
(d) Enable contactless sign-in (e.g., sign in on phone app) as soon as practicable.
(e) Add special hours for highly vulnerable patients, including the elderly and those with chronic conditions.
(f) Conduct a common screening protocol for all patients, including a temperature check and questions about COVID-19 symptoms.
(g) Place hand sanitizer and face coverings at patient entrance(s).
(h) Require employees to make proper use of personal protective equipment in accordance with guidance from the CDC and the U.S. Occupational Health and Safety Administration.
(i) Require patients to wear a face covering when in the facility, except as necessary for identification or to facilitate an examination or procedure.
11

Case 1:20-cv-00414-PLM-PJG ECF No. 21-2 filed 05/26/20 PageID.1083 Page 13 of 14
(j) Install physical barriers at sign-in, temperature screening, or other service points that normally require personal interaction (e.g., plexiglass, cardboard, tables).
(k) Employ telehealth and telemedicine to the greatest extent possible.
(l) Limit the number of appointments to maintain social distancing and allow adequate time between appointments for cleaning.
(m)Employ specialized procedures for patients with high temperatures or respiratory symptoms (e.g., special entrances, having them wait in their car) to avoid exposing other patients in the waiting room.
(n) Deep clean examination rooms after patients with respiratory symptoms and clean rooms between all patients.
(o) Establish procedures for building disinfection in accordance with CDC guidance if it is suspected that an employee or patient has COVID-19 or if there is a confirmed case.
10. Employers must maintain a record of the requirements set forth in Sections 1(c), (d), and (k).
11. The rules described in sections 1 through 10 have the force and effect of regulations adopted by the departments and agencies with responsibility for overseeing compliance with workplace health-and-safety standards and are fully enforceable by such agencies. Any challenge to penalties imposed by a department or agency for violating any of the rules described in sections 1 through 10 of this order will proceed through the same administrative review process as any challenge to a penalty imposed by the department or agency for a violation of its rules.
12. Any business or operation that violates the rules in sections 1 through 10 has failed to provide a place of employment that is free from recognized hazards that are causing, or are likely to cause, death or serious physical harm to an employee, within the meaning of the Michigan Occupational Safety and Health Act, MCL 408.1011.
13. Nothing in this order shall be taken to limit or affect any rights or remedies otherwise available under law.
12

Case 1:20-cv-00414-PLM-PJG ECF No. 21-2 filed 05/26/20 PageID.1084 Page 14 of 14 Given under my hand and the Great Seal of the State of Michigan.

Date: May 21, 2020 Time: 9:49 am

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

13

Case 1:20-cv-00414-PLM-PJG ECF No. 21-3 filed 05/26/20 PageID.1085 Page 1 of 5
EXHIBIT 3

¢6i Case 1:20-cv-00414-PLM-PJG ECF No. 21-3 filed 05/26/20 PageID.1086 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. 2020-99
Declaration of state of emergency and state of disaster related to the COVID-19 pandemic
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 new 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 and relentless 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 2020-68 to issue new emergency and disaster declarations under the Emergency Management Act.
GEORGE W. ROMNEY BUILDING • 111 SOUTH CAPITOL AVENUE • LANSING, MICHIGAN 48909 www.michigan.gov
PRINTED IN-HOUSE

Case 1:20-cv-00414-PLM-PJG ECF No. 21-3 filed 05/26/20 PageID.1087 Page 3 of 5
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 are likely to be appealed.
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 have 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 have 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 have taken steps to begin building the public health infrastructure in this state that is necessary to contain the infection.
My administration has also moved quickly to mitigate the economic and social harms of this pandemic. Through my orders, we have placed strict rules on businesses to prevent price gouging, put a temporary hold on evictions for families that cannot make their rent, 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, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over. Though its pace of growth has showed signs of slowing, the virus remains aggressive and persistent: to date, there have been 53,510 confirmed cases of COVID-19 in Michigan, and 5,129 deaths from the disease. There remains no treatment for the virus; it remains easy to transmit, passing from asymptomatic individuals and surviving on surfaces for days; and we still lack adequate means to fully test for it and trace its spread. COVID-19 remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit southeast Michigan hardest, the disease is now spreading more quickly in other parts of the state. For instance, cases in some counties in western and mid-Michigan are now doubling approximately every 10 days.
Michigan’s Safer at Home orders have aimed to reduce the spread of COVID-19 within the state. As summer approaches, Michigan’s more rural counties are beginning to see more out-of-town visitors. 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.
2

Case 1:20-cv-00414-PLM-PJG ECF No. 21-3 filed 05/26/20 PageID.1088 Page 4 of 5
The economic and social harms from this pandemic likewise persist. Michigan has experienced an uptick in individuals reaching out to domestic violence hotlines and many shelters across Michigan are already over capacity. Due to the pandemic and the responsive measures necessary to address it, businesses and government agencies have had to quickly and dramatically adjust how they work. Where working from home is not possible, businesses have closed or significantly restricted their normal operations.
The economic damage—already severe—will continue to compound with time. Between March 15 and May 13, Michigan had 1.8 million initial unemployment claims—the fifthhighest nationally, amounting to nearly 36% 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 has already reached 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 struggle 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. The closure of museums and theaters limits people’s ability to enrich themselves through the arts. And curtailing gatherings has left many seeking new ways to connect with their community during these challenging times.
A second wave of COVID-19 cases continues to pose a deadly threat to the people of this state. As various sectors of Michigan’s economy begin to reopen, we must be able to respond nimbly to new data about transmission and health risks of the virus. Over the past months, researchers have discovered that COVID-19 can attack not only the lungs, but also the heart, brain, kidneys, liver, and blood. While older individuals are at higher risk of contracting and dying from COVID-19, studies have shown that the disease may increase the severity of strokes in younger people.
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. While the virus has afflicted some regions of the state more severely than others, the extent of the virus’s spread, coupled with its elusiveness and its ease of transmission, render the virus difficult to contain and threaten the entirety of this state. Michigan’s fatality rate from COVID-19 remains the highest among neighboring states and sits around three percentage points higher than the national average. The underlying health factors that contribute to the severity of COVID-19 in Michigan remain present, as does the disease.
Although 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
3

Case 1:20-cv-00414-PLM-PJG ECF No. 21-3 filed 05/26/20 PageID.1089 Page 5 of 5
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 welfare of this state have been neutralized, statewide disaster and emergency conditions will exist.
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 June 19, 2020 at 11:59 pm. I will evaluate the continuing need for this order prior to its expiration.
4. Executive Orders 2020-67 and 2020-68 are rescinded. All previous orders that rested on those orders now rest on this order.
Given under my hand and the Great Seal of the State of Michigan.

Date: May 22, 2020 Time: 4:49 pm

___________________________________ GRETCHEN WHITMER GOVERNOR
By the Governor:
___________________________________ SECRETARY OF STATE
4

 
 Case 1:20-cv-00414-PLM-PJG ECF No. 26 filed 06/02/20 PageID.1370 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,
Defendants.

No. 1:20-cv-414
HON. PAUL L. MALONEY
MAG. PHILLIP J. GREEN
ATTORNEY GENERAL DANA NESSEL’S
MOTION TO DISMISS
ORAL ARGUMENT REQUESTED

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) Miller Johnson, Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517)335-7628 shermana@michigan.gov berelsr1@michigan.gov

Christopher M. Allen (P75329) Joshua O. Booth (P53847)

John G. Fedynsky (P65232) Joseph T. Froehlich (P71887)

Darrin F. Fowler (P53464)

Assistant Attorneys General for Defendants Whitmer and Gordon

Michigan Dep’t of Attorney General

P.O. Box 30754, Lansing, MI 48909 (517) 335-7573

allenc28@michigan.gov

boothj2@michigan.gov fedynskyj@michigan.gov

froehlichj1@michigan.gov

fowlerdf@michigan.gov

ATTORNEY GENERAL’S MOTION TO DISMISS ORAL ARGUMENT REQUESTED
Michigan Attorney General Dana Nessel moves to dismiss all the claims
against her in Midwest Institute of Health, PLLC, D/B/A Grand Health Partners,

Case 1:20-cv-00414-PLM-PJG ECF No. 26 filed 06/02/20 PageID.1371 Page 2 of 4
Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffery Gulick’s complaint and states as follows:
1. Plaintiffs filed their complaint on May 12, 2020, raising various federal constitutional claims including vagueness, procedural and substantive due process, and the dormant Commerce Clause, as well as state-law claims involving the authority of the Governor to issue certain executive orders under two state statutes: The Emergency Powers of the Governor Act and the Emergency Management Act.
2. Plaintiffs request declaratory and injunctive relief and money damages.
3. Plaintiffs claims are moot because the challenged Executive Orders have been rescinded and no exception to the mootness doctrine applies here.
4. This Court should decline to exercise supplemental jurisdiction under 42 U.S.C. § 1367 over the state-law claims, which involve novel legal issues regarding the interpretation of state statutes and arise in the extraordinary context of the COVID-19 pandemic and the State’s response to the pandemic.
5. This Court should decline to exercise its discretion to grant declaratory relief as to Count I because the Grand Trunk factors counsel against such relief. See Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984)
6. Additionally, the well-established factors for the extraordinary relief of a permanent injunction do not weigh in Plaintiffs’ favor.
7. On the merits, Plaintiffs’ claims against the Attorney General fail to state a claim under Federal Rule of Civil Procedure 12(b)(6) and the Attorney

Case 1:20-cv-00414-PLM-PJG ECF No. 26 filed 06/02/20 PageID.1372 Page 3 of 4

General should be dismissed from the case. Attorney General Nessel is entitled to

qualified immunity as to the money damages claims against her, and the remainder

of the claims are not viable.

8. Consistent with Local Rule 7.1(d), the undersigned contacted the lead

counsel for Plaintiffs, Mr. James Peterson, on May 27, 2020, to ask whether

Plaintiffs would concur in Defendant Attorney General Dana Nessel’s motion to

dismiss and explaining the grounds to be raised in support of the motion. Mr.

Peterson indicated that Plaintiffs did not concur in the motion, thus necessitating

the filing of the motion and brief in support. A separate certification accompanies

this motion.

For these reasons, and the reasons stated more fully in the accompanying

brief in support of this motion, Michigan’s Attorney General Dana Nessel

respectfully requests that this Honorable Court grant this motion to dismiss,

dismiss all claims against her, and dismiss her from the case.

Dated: June 2, 2020

Respectfully submitted,
Dana Nessel Attorney General
/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

Case 1:20-cv-00414-PLM-PJG ECF No. 26 filed 06/02/20 PageID.1373 Page 4 of 4
Certificate of Service
I hereby certify that on June 2, 2020, I electronically filed this ATTORNEY
GENERAL DANA NESSEL’S MOTION TO DISMISS with the Clerk of the Court
using the ECF system which will send notification of such filing.
A courtesy copy of the aforementioned document was placed in the mail
directed to:
THE HONORABLE PAUL L MALONEY 137 FEDERAL BLDG 410 W MICHIGAN AVE KALAMAZOO MI 49007
THE HONORABLE MAGISTRATE JUDGE PHILLIP J GREEN 601 FEDERAL BLDG 110 MICHIGAN ST NW GRAND RAPIDS MI 49503
/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1374 Page 1 of 57

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414
HON. PAUL L. MALONEY
MAG. PHILLIP J. GREEN
DEFENDANT ATTORNEY GENERAL
DANA NESSEL’S BRIEF IN SUPPORT OF
MOTION TO DISMISS

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) Miller Johnson, Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517)335-7628 shermana@michigan.gov berelsr1@michigan.gov

Christopher M. Allen (P75329) Joshua O. Booth (P53847)

John G. Fedynsky (P65232) Joseph T. Froehlich (P71887)

Darrin F. Fowler (P53464)

Assistant Attorneys General for Defendants Whitmer and Gordon

Michigan Dep’t of Attorney General

P.O. Box 30754, Lansing, MI 48909 (517) 335-7573

allenc28@michigan.gov

boothj2@michigan.gov fedynskyj@michigan.gov

froehlichj1@michigan.gov

fowlerdf@michigan.gov

DEFENDANT ATTORNEY GENERAL DANA NESSEL’S BRIEF IN SUPPORT OF MOTION TO DISMISS

Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1375 Page 2 of 57
TABLE OF CONTENTS
Page
Index of Authorities ......................................................................................................iii Concise Statement of Issues Presented ........................................................................ x Controlling or Most Appropriate Authority................................................................. xi Introduction ................................................................................................................... 1 Statement of Facts ......................................................................................................... 3 Argument ..................................................................................................................... 10 I. Plaintiffs’ claims are moot. ............................................................................... 10 II. This Court should decline to exercise supplemental jurisdiction over
Plaintiffs’ state-law authority issue. ................................................................ 13 III. This Court should not grant the requested declaratory or injunctive
relief................................................................................................................... 15 A. This Court should not grant declaratory relief on the state-law
issues....................................................................................................... 15 B. Plaintiffs are not entitled to permanent injunctive relief because
they do not meet the well-established factors for such extraordinary relief. ............................................................................... 17 1. Plaintiffs cannot succeed on the merits. ..................................... 17 2. The lack of a permanent injunction will not result in
irreparable injury to Plaintiffs. ................................................... 18 3. The balance of harms weighs in the Attorney General’s
favor, and an injunction is contrary to the public interest. ....... 20 IV. This Court should dismiss all claims against the Attorney General
because Plaintiffs have failed to state a claim on which relief can be granted. ............................................................................................................. 21 A. Plaintiffs’ allegations are sparse as to the Attorney General............... 22 B. Attorney General Nessel is entitled to qualified immunity as to
the request for money damages. ............................................................ 23
i

Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1376 Page 3 of 57
C. The challenged executive orders were reasonable under the EPGA (Count II). .................................................................................... 25
D. The challenged Executive Orders were not vague (Count III). ............ 28 E. The Attorney General’s enforcement of the challenged Executive
Orders did not violate procedural or substantive due process. ............ 34 1. The challenged Executive Orders did not violate
procedural due process (Count IV).............................................. 34 2. The Attorney General’s enforcement of Executive Orders
2020-17 and 2020-77 did not violate substantive due process (Count V). ........................................................................ 37 F. The Attorney General’s enforcement of the challenged Executive Orders did not violate the dormant Commerce Clause (Count VI). .......................................................................................................... 41 Conclusion and Relief Requested ................................................................................ 44 Certificate of Service ......................................................................................... 45
ii

Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1377 Page 4 of 57

INDEX OF AUTHORITIES

Page

Cases
Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) .................................................................................... 18
Albrecht v. Treon, 617 F.3d 890 (6th Cir. 2010) .................................................................................... 21
Anderson v. Creighton, 483 U.S. 635 (1987) .................................................................................................. 23
Ashcroft v. al-Kidd, 567 U.S. 731 (2011) ............................................................................................ 23, 24
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 21, 23
Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir. 1992) .................................................................................... 19
Bell Atlantic v. Twombly, 550 U.S. 544 (2007) ............................................................................................ 21, 23
Bigelow v. Virginia, 421 U.S. 809 (1975) .................................................................................................. 12
Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573 (1986) .................................................................................................. 42
Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886 (1961) .................................................................................................. 35
Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535 (6th Cir. 2007) .................................................................................... 18
City of Mesquite v. Aladdin’s Castle, 455 U.S. 283 (1983) .................................................................................................. 11
Collins v. Harker Heights, 503 U.S. 115 (1992) .................................................................................................. 38

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Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1378 Page 5 of 57
Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902) ............................................................................................ 34, 44
County of Sacramento v. Lewis, 523 U.S. 833 (1998) .................................................................................................. 38
Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997) .................................................................................... 13
E. Kentucky Res. v. Fiscal Court of Magoffin Cty., Ky., 127 F.3d 532 (6th Cir. 1997) .................................................................................... 42
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) .................................................................................................... 13
Gilbert v. Homar, 520 U.S. 924 (1997) .................................................................................................. 35
Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596 (1982) .................................................................................................. 11
Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984) .................................................................................... 16
Grayned v. City of Rockford, 408 U.S. 104 (1972) ............................................................................................ 29, 33
Hall v. Beals, 396 U.S. (1969) ......................................................................................................... 10
Hankins v. The Gap, Inc., 84 F.3d 797 (6th Cir. 1996) ...................................................................................... 15
Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264 (1981) .................................................................................................. 35
In re Abbott, 954 F.3d 772 (5th Cir. 2020) .............................................................................. 34, 44
Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (2010) ............................................................................................ 41, 42
Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) ............................................................................................ passim
Johnson v. Cincinnati, 310 F.3d 484 (6th Cir. 2002) .................................................................................... 38
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Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1379 Page 6 of 57
Jolivette v. Husted, 694 F.3d 760 (6th Cir. 2012) .................................................................................... 17
Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997) ........................................................................ 10, 11, 12
Kremens v. Bartley, 431 U.S. 119 (1977) ............................................................................................ 10, 12
Lewis v. BT Inv. Managers, Inc., 447 U.S. 27 (1980) .................................................................................................... 41
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) .................................................................................................. 35
Malley v. Briggs, 475 U.S. 335 (1986) .................................................................................................. 24
Martinko v. Whitmer, Michigan Court of Claims Docket No. 20-000062-MM........................................... 14
Matthews v. Eldridge, 424 U.S. 319 (1976) .................................................................................................. 35
Mazurek v. Armstrong, 520 U.S. 968 (1997) .................................................................................................. 17
Mich. House and Senate v. Whitmer, Michigan Court of Claims Docket No. 20-000079-MZ ...................................... 14, 24
Mich. United for Liberty v. Whitmer, Michigan Court of Claims Docket No. 20-000061-MZ ............................................ 14
Michigan Bell Telephone Co. v. Engler, 257 F.3d 587 (6th Cir. 2001) .................................................................................... 19
Morissey v. Brewer, 408 U.S. 471 (1972) .................................................................................................. 35
Morrissey v. Brewer, 408 U.S. 471 (1972) .................................................................................................. 35
Mosley v. Hairston, 920 F.2d 409 (6th Cir. 1990) .................................................................................... 12
Muhammad v. Paruk, 553 F. Supp. 2d 893 (E.D. Mich. 2008).................................................................... 16
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Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1380 Page 7 of 57
NDSL, Inc. v. Patnoude, 914 F. Supp. 2d 885 (W.D. Mich. 2012) ................................................................... 18
Nken v. Holder, 556 U.S. 418 (2009) .................................................................................................. 20
North Carolina v. Rice, 404 U.S. 244 (1971) .................................................................................................. 10
Overstreet v. Lexington–Fayette Urban County Gov’t, 305 F.3d 566 (6th Cir. 2002) .................................................................................... 18
Papasan v. Allain, 478 U.S. 265 (1986) .................................................................................................. 21
Pearson v. Callahan, 555 U.S. 223 (2009) .................................................................................................. 23
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) .................................................................................................. 42
Powell v. McCormack, '395 U.S. 486 (1969) ................................................................................................. 10
Public Service Comm’n of Utah v. Wycoff, 344 U.S. 237 (1952) .................................................................................................. 16
Saenz v. Roe, 526 U.S. 489 (1999) .................................................................................................. 38
S-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82 (1984) .................................................................................................... 41
Scottsdale Ins. Co v. Flowers, 513 F.3d 546 (6th Cir. 2008) .................................................................................... 16
Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963)............................................................................ 41
Soap & Detergent Ass’n v. Natural Resources Comm, 330 N.W.2d 346 (Mich. 1982)..................................................................................... 7
Steffel v. Thompson, 415 U.S. 452 (1974) .................................................................................................. 28
Terminiello v. City of Chicago, 337 U.S. 1 (1949) ...................................................................................................... 26
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Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430 (6th Cir. 2008) .................................................................................... 21
Traverse Bay Area Intermediate Sch. Dist. v. Michigan Dep’t of Educ., 615 F.3d 622 (6th Cir. 2010) .................................................................................... 21
United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) .................................................................................... 29
United Mine Workers of Am. v. Gibbs, 383 U.S. 715 (1966) .................................................................................................. 13
Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) .................................................................................................. 29
Washington v. Glucksberg, 521 U.S. 702 (1997) .................................................................................................. 38
Wilton v. Seven Falls Co., 515 U.S. 277 (1995) .................................................................................................. 15
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................................................................... 18
Wisc. Legislature v. Palm, __ N.W.2d __, No. 2020AP765-OA, 2020 WL 2465677 (Wisc. May 13, 2020)........ 44
Wolff v. McDonnell, 418 U.S. 539 (1974) .................................................................................................. 38
Statutes 1945 P.A. 302 ................................................................................................................. 3 1976 P.A. 390 ................................................................................................................. 4 28 U.S.C. § 1367(c)....................................................................................................... 13 28 U.S.C. § 1467(c)(4) .................................................................................................. 15 28 U.S.C. § 2201........................................................................................................... 16 Mich. Comp. Laws § 10.31............................................................................................. 3 Mich. Comp. Laws § 10.31 et seq. ........................................................................ passim
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Mich. Comp. Laws § 10.31(2) ...................................................................................... 26 Mich. Comp. Laws § 30.401 et seq. ...................................................................... 3, 7, 14 Mich. Comp. Laws § 30.403(1) ...................................................................................... 4 Mich. Comp. Laws § 30.417(d) ...................................................................................... 4 Other Authorities 38 Am. Jur. 2d, Governor .............................................................................................. 3 6A Moore’s Federal Practice ¶ 57.08[2] (1983) ........................................................... 16 Executive Order 2010-77 ............................................................................................. 25 Executive Order 2020-110 ................................................................................... passim Executive Order 2020-17 ..................................................................................... passim Executive Order 2020-17 § 1 ....................................................................................... 20 Executive Order 2020-21 ............................................................................................... 8 Executive Order 2020-33 ............................................................................................... 7 Executive Order 2020-4 ................................................................................................. 7 Executive Order 2020-42 ............................................................................................... 8 Executive Order 2020-59 ............................................................................................... 8 Executive Order 2020-66 ............................................................................................... 8 Executive Order 2020-67 ............................................................................................... 9 Executive Order 2020-68 ........................................................................................... 8, 9 Executive Order 2020-70 ............................................................................................... 8 Executive Order 2020-77 ..................................................................................... passim Executive Order 2020-77 § 4 ....................................................................................... 26 Executive Order 2020-77 § 8 ....................................................................................... 32 Executive Order 2020-92 ..................................................................................... 2, 8, 26
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Case 1:20-cv-00414-PLM-PJG ECF No. 27 filed 06/02/20 PageID.1383 Page 10 of 57 Executive Order 2020-96 ..................................................................................... 7, 8, 11 Executive Order 2020-96 § 19 ..................................................................................... 11 Executive Order 2020-96 § 8(a)(6) .............................................................................. 11 Executive Order 2020-99 ............................................................................................... 9 Rules Fed. R. Civ. P. 12(b)(6)................................................................................................. 21 Constitutional Provisions U.S. Const. art. I, § 8, cl. 3........................................................................................... 41 U.S. Const. art. V, § 2 .................................................................................................... 7
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CONCISE STATEMENT OF ISSUES PRESENTED 1. Does this Court lack jurisdiction to hear Plaintiffs’ claims, which are
moot? 2. Should this Court decline to exercise supplemental jurisdiction over
Plaintiffs’ state law authority claim challenging Michigan’s Emergency Powers of the Governor Act and its Emergency Management Act, especially where this issue is already squarely before Michigan’s highest court? 3. Should this Court decline to issue the requested declaratory relief where the Grand Trunk factors counsel against such relief, and should this Court deny the request for permanent injunctive relief where the well-established factors weigh in favor of the Attorney General? 4. Should this Court dismiss Plaintiffs’ claims against the Attorney General, where they fail to state a claim upon which relief may be granted because the Attorney General is entitled to qualified immunity as to Plaintiffs’ claim for money damages, and the underlying claims are not viable as to the Attorney General?
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Collins v. Harker Heights, 503 U.S. 115 (1992) Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380 (1902) Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323 (6th Cir. 1984) Grayned v. City of Rockford, 408 U.S. 104 (1972) In re Abbott, 954 F.3d 772 (5th Cir. 2020) Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (2010) Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905) NDSL, Inc. v. Patnoude, 914 F. Supp. 2d 885 (W.D. Mich. 2012) Overstreet v. Lexington–Fayette Urban County Gov’t, 305 F.3d 566 (6th Cir. 2002) Powell v. McCormack, 395 U.S. 486 (1969) United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341 (6th Cir. 1998) Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982)
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INTRODUCTION These are unprecedent times. Michigan, like the rest of the world, is at war. But not with an enemy it knows. Not with an enemy it can see. Michigan is at war with an invisible foe. A foe so stealthy that it took us by surprise and, as the battle rages on, continues to surprise us with its pervasiveness and reach. A foe so wily that we do not know who has been exposed to it, who is doing the exposing, and how we will ultimately arm ourselves against its pernicious attacks. A foe so deadly that it has taken the lives of thousands of Michiganders and sickened tens of thousands more in mere months. While our foe has no face, it has a name: SARS-CoV-2, or COVID-19. This public health battle has presented many challenges, and our key leaders have risen to meet them. The Governor, through her broad authority under the Emergency Powers of the Governor Act, declared a statewide emergency and issued reasonable executive orders consistent with that authority. Most notably, she has ensured that Michiganders employ the best, if not only, available weapon in this deadly fight: social distancing. The Governor’s swift, decisive action has saved, and is saving, countless lives. And the Attorney General has worked to enforce these important orders, exercising her constitutional role as the State’s chief law enforcement officer. Yet, on the heels of these victories, Plaintiffs challenge the Attorney General in her enforcement role, raising various claims related to 2020-17 and Executive Order 2020-77—neither of which remain in effect today—on various grounds, including that: (1) the Governor lacked the authority to issue the orders; (2)
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vagueness; (3) procedural and substantive due process; and (4) the dormant Commerce Clause. These claims fail for three reasons.
First, and as a threshold matter, because the challenged Executive Orders no longer remain in effect and the capable-of-repetition-but-evading-review exception does not apply, Plaintiffs’ claims are moot and the complaint should be dismissed in its entirety. Second, even looking past the mootness question, this Court should decline to exercise its discretion to issue declaratory relief and should not grant the requested permanent injunction because the factors required to grant those extraordinary relief are not met. Third and finally, the Attorney General should be dismissed from this case because Plaintiffs have failed to state a claim against her—she is entitled to qualified immunity on the money damages claims, and none of the claims are viable. Throughout this war with COVID-19, the Attorney General has properly overseen enforcement of Executive Orders 2020-17 and 202092 in her role as Michigan’s chief law enforcement officer.
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STATEMENT OF FACTS Sources of Michigan gubernatorial authority during an emergency.
As a general rule, “[e]mergencies do not create power or authority in a governor, as the executive, but they may afford occasions for the exercise of powers already existing.” 38 Am. Jur. 2d, Governor, § 4. The Michigan Constitution does not mention any gubernatorial emergency powers. Therefore, although the Governor has inherent constitutional authority to protect the health and welfare of the People of Michigan, her authority during an emergency largely stems from one of two statutes: either the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31 et seq. (EPGA), or the Emergency Management Act, Mich. Comp. Laws § 30.401 et seq. (EMA).1
The Legislature enacts the EPGA. In 1945 in the midst of World War II, the Michigan Legislature enacted the
EPGA, which authorizes “the governor to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto.”2 1945 P.A. 302; see also Mich. Comp. Laws § 10.31.
1 The Governor may also work with the Michigan Department of Health and Human Services to implement provisions of the Public Health Code. See Mich. Comp. Laws § 333.1101 et seq. 2 Since its promulgation, the EPGA has not been substantively amended. See 2006 P.A. 546 (containing minor, facial amendments).
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The Legislature enacts the EMA. Later, in 1976, the Legislature enacted the EMA, which, among other things,
is designed to “provide for planning, mitigation, response, and recovery from natural and human-made disaster within and outside this state.” 1976 P.A. 390. The EMA delegates the responsibility of “coping with dangers to this state or the people of this state presented by a disaster or emergency” to the Governor. Mich. Comp. Laws § 30.403(1). It also specifically references and recognizes the Governor’s broad powers under the EPGA and provides that the Governor may exercise those powers “independent of” the EMA. Mich. Comp. Laws § 30.417(d).
The world is hit with a pandemic: COVID-19. The coronavirus disease 2019 (COVID-19) is a severe acute respiratory
illness caused by SARS-CoV-2—a highly contagious virus that has quickly spread across the globe, killing tens of thousands and infecting millions more. The virus is thought to spread mainly through close, person-to-person contact3 via “respiratory droplets,”4 and experts say that coming within six feet of an infected person puts
3 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 4 World Health Organization, Modes of transmission of virus causing COVID-19, available at https://www.who.int/news-room/commentaries/detail/modesoftransmission-of-virus-causing-covid-19-implications-for-ipcprecautionrecommendations.
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one at a high risk of contracting the disease.5 That is, when a person is within six feet of an infected person, infected respiratory droplets can land in or around the healthy person’s mouth, nose, or eyes, and can even be inhaled into the lungs, thus infecting that person with the virus.6 Moreover, some people experience only mild symptoms of infection,7 and could spread the disease before they even realize they are infected. And, perhaps most troubling, some of those infected with COVID-19 are asymptomatic, yet still spread the virus.8
Social distancing is currently the only solution. The virus that causes 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 in humans.9 Accordingly, there is no approved vaccine or treatment. Since there is no way to prevent or treat COVID-19, the CDC has
5 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-gettingsick/socialdistancing.html. 6 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 7 World Health Organization, Q & A, What are the Symptoms of Covid-19?, available at https://www.who.int/emergencies/diseases/novel-coronavirus2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses 8 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 9 CDC, Coronavirus Disease 2019 Basics, available at https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019Basics.
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indicated that “[t]he best way to prevent illness is to avoid being exposed.”10 Therefore, experts recommend that the public engage in “social distancing,” that is, the practice of avoiding public spaces and limiting movement. A main objective of social distancing is “flattening the curve,” i.e., reducing the speed at which COVID19 spreads. Without a flattening of the curve, the disease will spread too quickly, overwhelm our healthcare system, and wipe out our already scarce healthcare resources—including staff, medical equipment, and personal protective equipment.
As a result of these expert recommendations, jurisdictions across the globe have imposed sweeping measures to stem the viral tide that has overwhelmed healthcare systems worldwide. In the United States alone, all 50 states and the District of Columbia have had emergency orders in place to fight the war against COVID-19.
Michigan’s Governor responds to COVID-19. Since Michigan has been among the states hardest hit by COVID-19, the
Governor has instituted aggressive measures in an effort to address Michigan’s staggering statistics and protect the health and safety of Michigan residents. Despite these aggressive efforts, COVID-19 remains present and pervasive in Michigan: As of May 21, 2020, at least 57,532 have been confirmed infected and 5,516 have died—all in under three months.11
10 CDC, How to Protect Yourself and Others, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html 11 Michigan.gov, Coronavirus, available at: https://www.michigan.gov/coronavirus/ (last accessed June 6, 2020 at 9:30 AM).
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The Governor’s containment efforts have included issuing various executive orders12 aimed at curbing the spread of COVID-19 as well as protecting Michiganders from the economic, social, and other ramifications of the crisis. In her first executive order related to COVID-19, issued on March 10, 2020, the Governor declared a state of emergency under both the EMA and the EPGA. EO 2020-4. The March 10, 2020 declaration was rescinded and replaced by an expanded declaration of emergency and disaster under both the EMA and the EPGA on April 1, 2020. EO 2020-33.
In the interim, on March 20, 2020, the Governor issued Executive Order 2020-17, which was rescinded on May 21, 2020, and replaced by Executive Order 2020-96 and subsequently, Executive Order 2020-110. EO 2020-17; EO 2020-96; EO 2020-110. Executive Order 2020-17 required the temporary postponement of all non-essential medical and dental procedures, EO 2020-17, and was imposed “[t]o mitigate the spread of COVID-19, protect the public health, provide essential protections to Michiganders, and ensure the availability of healthcare resources,” including personal protection equipment, ventilators, and hospital beds. Preamble to EO 2020-17. Another order—Executive Order 2020-21, i.e., Michigan’s “Stay Home, Stay Safe” Order—issued on March 23, 2020, and later replaced by other
12 An executive order is a directive handed down from the executive branch of government—in this case, the Governor—generally without input from the legislative or judicial branches. See U.S. Const. art. V, § 2; Soap & Detergent Ass’n v. Natural Resources Comm, 330 N.W.2d 346 (Mich. 1982). All of the Governor’s Executive Orders are available at: https://www.michigan.gov/whitmer/0,9309,7-38790499_90705---,00.html.
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orders with varying degrees of restrictiveness (including Executive Order 2020-77, Executive Order 2020-92, and Executive Order 2020-96), imposed temporary restrictions on activities that are not necessary to sustain or protect life. See EO 2020-21; EO 2020-42; EO 2020-59; EO 2020-70; EO 2020-77; EO 2020-92; EO 202096. On June 1, 2020, Michigan’s existing Stay Home, Stay Safe Order was ultimately rescinded and replaced by Executive Order 2020-110, which imposes temporary restrictions on certain events, gatherings, and businesses only, rather than on Michiganders as a whole. EO 2020-110.
The Governor requests extensions of the state of emergency under the EMA.
The state of emergency initially declared on March 10, 2020, under the EMA was set to expire on April 7, 2020, so the Governor requested a 70-day extension from the Legislature. In response to this request, the Legislature extended the declaration under the EMA for 23 days, or until April 30, 2020.13
The Governor subsequently requested a second extension under the EMA, but on April 30, 2020—the date the legislatively-extended state of emergency was set to expire—the Legislature declined. Therefore, the Governor, after terminating the existing state of emergency under the EMA, see EO 2020-66, issued an executive order declaring a new 28-day state of emergency under that Act. EO 2020-68. Via a separate order, the Governor extended the previously declared state of emergency
13 See Senate Concurrent Resolution 2020-24, http://www.legislature.mi.gov/(S(id4mutkghmrbux0ojtc0br1c))/mileg.aspx.
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under the EPGA to May 28, 2020. EO 2020-67. The Governor did the same in Executive Order 2020-99. See EO 2020-99. In each order, the Governor explicitly stated that all executive orders that rested on the previously declared states of emergency now rested on Executive Order 2020-67 and Executive Order 2020-68. See EO 2020-67; EO 2020-68; EO 2020-99.
On May 21, 2020, the Governor issued Executive Order 2020-96, which lifted some previous restrictions—for example, by permitting social gatherings of groups of ten or fewer people, and by allowing retail businesses to re-open with some socialdistricting measures in place. The Governor subsequently issued Executive Order 2020-110, which rescinds Executive Order 2020-96 and imposes even further lessened restrictions—for example, permitting many businesses that were previously closed to start to re-open, and allowing outdoor gatherings of 100 or fewer people. EO 2020-110. As they relate to this case, both EO 2020-96 and EO 2020-110 permit the non-essential medical procedures that EO 2020-17 had temporarily postponed.
Plaintiffs file suit. On May 12, 2020, Plaintiffs filed the instant action, and then filed a motion
for preliminary injunction, which they later withdrew. (Dkt. 1, 9, 10, 21.) The Attorney General now files this motion to dismiss because: (1) Plaintiffs’ claims are moot; (2) this Court should decline to issue the requested declaratory relief on the state-law authority issue; (3) Plaintiffs are not entitled to the extraordinary relief of a permanent injunction; (4) the Attorney General is entitled to qualified immunity
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on the money damages claims; and (5) Plaintiffs have failed to state a claim upon which relief may be granted.
ARGUMENT I. Plaintiffs’ claims are moot.
As a threshold matter, because the Governor has rescinded and replaced the Executive Orders at issue in this case with a new, less restrictive Executive Order that does not contain the restrictions that Plaintiffs now challenge, Plaintiffs’ claims are moot.
Mootness is a question of jurisdiction, which “derives from the requirement of Article III of the [United States] Constitution under which the exercise of judicial power depends upon the existence of a case or controversy.” North Carolina v. Rice, 404 U.S. 244, 246 (1971) (quotations omitted). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
Relevant here, repeal of a statute while a case is pending routinely renders an issue moot. See, e.g., Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637, 644 (6th Cir. 1997). That is because, as this Court has explained, “a statute must be analyzed by the appellate court in its present form.” See id. at 644 (citing Kremens v. Bartley, 431 U.S. 119, 129 (1977); Hall v. Beals, 396 U.S. (1969)).
In this case, on May 21, 2020, the Governor issued a new Executive Order— Executive Order 2020-96—which rescinded Executive Order 2020-17 and Executive Order 2020-92 (which replaced Executive Order 2020-77) and imposed significantly
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lessened restrictions as compared to its predecessors. EO 2020-96. Subsequently, on June 1, 2020, the Governor issued Executive Order 2020-110, which further lessens restrictions. EO 2020-110. Thus, the challenged executive orders no longer have any legal force. And notably, Executive Order 2020-96 did not, and Executive Order 2020-110 does not, impose any of the restrictions of Executive Order 2020-17 and Executive Order 2020-77 that Plaintiffs claim are invalid. Accordingly, the provider Plaintiffs were able to resume non-essential medical and dental procedures beginning May 29, 2020, at 11:59 pm. EO 2020-96 § 19. Similarly, as of that same timeframe, Mr. Gulick could schedule (if he had not already) and undergo his knee replacement surgery. Id. at §§ 8(a)(6), 19.
And, although there is an exception to the mootness rule for situations that are “capable of repetition, yet evading review,” e.g., Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 603 (1982), under the current circumstances there are no facts suggesting that the conduct is capable of repetition—i.e., that the restrictions of Executive Orders 2020-17 and Executive Order 2020-77 will be reenacted. For one, case law on this issue supports a finding of mootness: In Kentucky Right to Life, the Sixth Circuit rejected the plaintiffs’ argument that, because the state legislature remained free to reenact the prior statutory scheme, their claims were properly before the court even after the law had changed. Kentucky Right to Life, 108 F.3d at 643. On the other hand, in City of Mesquite v. Aladdin’s Castle, 455 U.S. 283, 289–90 (1983) the Supreme Court refused to dismiss the claims as moot because the governmental entity, in no uncertain terms,
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indicated that if the claims were dismissed as moot, it would definitely enact the unconstitutional ordinance again.
Here, like in Kentucky Right to Life, and unlike in Aladdin’s Castle, although there is a possibility that the Governor could issue a future executive order that places some restrictions on nonmedical procedures, it is far from a sure thing. A gubernatorial executive order is an official act—and one not entered into lightly. See Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990) (treating government action with “more solicitude” than action by a private party). And the possibility of such a re-issuance depends on circumstances that are not yet known—the path of COVID-19. In addition, based on the Governor’s new executive order, Executive Order 2020-110, she is clearly moving in the direction of lifting restrictions, not returning to more restrictive measures. EO 2020-110.
But even if some restrictions tighten in the future, the contours of a future executive order could be very different from those challenged here. See Kentucky Right to Life, 108 F.3d at 644 (citing Kremens, 431 U.S. at 129). This is particularly true with respect to Plaintiffs’ vagueness challenge. See id. (holding that overbreadth analysis is inappropriate if the challenged statute has been amended or repealed) (quoting Bigelow v. Virginia, 421 U.S. 809, 817–19 (1975)).
Ultimately, given the enactment of Executive Order 2020-96 and Executive Order 2020-110, Plaintiffs are no longer constrained by the restrictions of Executive Order 2020-17 and Executive Order 2020-77 that they claim are invalid. As such, Plaintiffs’ claims are moot.
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II. This Court should decline to exercise supplemental jurisdiction over Plaintiffs’ state-law authority issue. Plaintiffs first challenge the EPGA on its face, claiming it is open-ended and
permits unbridled lawmaking by the Governor, with no temporal, durational, substantive, or legislative checks in violation of the nondelegation doctrine and the separation-of-powers clause of the Michigan Constitution. (Dkt. 1, Compl. ¶ 106, PageID.26.) This is a state-law claim over which the Court should decline to exercise supplemental jurisdiction.
Supplemental jurisdiction is a matter of discretion, and “need not be exercised in every case in which it is found to exist.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). The purpose of joining claims in federal court is “judicial economy, convenience and fairness to litigants.” Id. Absent those criteria, “a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them.” Id. (citing Erie R. Co. v. Tompkins, 304 U.S. 64 (1938)). “Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties.” Gibbs, 383 U.S. at 726.
Under 28 U.S.C. § 1367(c), the court can decline to exercise supplemental jurisdiction over a claim in several circumstances: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” Illustratively, in Doe v. Sundquist, 106 F.3d 702, 704 (6th Cir. 1997), the plaintiffs
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sought a preliminary injunction to block the enforcement of a new state statute addressing the disclosure of adoption records. The complaint alleged both state and federal constitutional violations. The court declined to exercise supplemental jurisdiction since the issue was one of “peculiar relevance to the primary police functions of the state.” Id. at 707. The court determined that the state had an interest in “having the first opportunity to construe its own constitution and laws” and thus the court declined to exercise supplemental jurisdiction over the state law claim and dismissed the claims that relied on federal law. Id.
Here, too, Michigan should have the first opportunity to construe its own laws and determine whether they violate the State’s delegation and separation-ofpowers doctrines. In fact, two state-court judges have recently opined on the EPGA and EMA in the preliminary injunction context, (Mich. United for Liberty v. Whitmer, Michigan Court of Claims Docket No. 20-000061-MZ; Martinko v. Whitmer, Michigan Court of Claims Docket No. 20-000062-MM); and a third just addressed on the merits all the issues Plaintiffs raise in Counts I and II. (Mich. House and Senate v. Whitmer, Michigan Court of Claims Docket No. 20-000079-MZ, attached as Ex. 1). And the defendants in the House and Senate case, and the plaintiffs in the Martinko case each recently filed separate bypass applications to the Michigan Supreme Court. (Mich. House and Senate v. Whitmer, Mich. Docket No. 161377; Martinko v. Whitmer, Mich. Docket No. 161333.) Thus, this very issue is already squarely before Michigan’s highest court, and this Court has an interest
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in “avoiding the unnecessary resolution of state law issues.” Hankins v. The Gap, Inc., 84 F.3d 797, 803 (6th Cir. 1996).
There is yet another compelling reason to decline supplemental jurisdiction: the circumstances here are exceptional under § 1467(c)(4) because the state-law questions are novel and the COVID-19 pandemic is unprecedented, necessitating swift state action. For all these reasons, this Court should decline to exercise supplemental jurisdiction over the state-law claims.
III. This Court should not grant the requested declaratory or injunctive relief. This Court should exercise its discretion to deny the requested declaratory
relief, and it should deny Plaintiffs’ request for permanent injunctive relief because the factors weigh in the Attorney General’s favor.
A. This Court should not grant declaratory relief on the state-law issues.
Plaintiffs request declaratory relief on the issue of the validity of the EPGA or the EMA. (Dkt. 1, Compl.,¶¶ 83–99, PageID.22–25) as well as on their delegation and separation-of-powers arguments (Id. at ¶¶ 100–112, PageID.25–28.) This Court should decline to exercise its discretion to issue declaratory relief on these issue, as the well-established Grand Trunk factors counsel against such relief.
It is well-settled that the decision to exercise jurisdiction over a declaratory judgment action rests in the sound discretion of the court. Wilton v. Seven Falls Co., 515 U.S. 277, 286–288 (1995); Scottsdale Ins. Co v. Flowers, 513 F.3d 546, 544
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(6th Cir. 2008). The Declaratory Judgment Act provides that “[i]n a case of actual controversy within its jurisdiction . . . , any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration.” 28 U.S.C. § 2201; Public Service Comm’n of Utah v. Wycoff, 344 U.S. 237 (1952).
The Sixth Circuit considers the following factors in determining whether it is appropriate for a district court to issue a declaratory ruling: (1) whether the declaratory action would settle the controversy; (2) whether the declaratory action would serve a useful purpose in clarifying the legal relations in issue; (3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata;” (4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach upon state jurisdiction; and, (5) whether there is an alternative remedy which is better or more effective. Grand Trunk W. R. Co. v. Consol. Rail Corp., 746 F.2d 323, 326 (6th Cir. 1984) (citing 6A Moore’s Federal Practice ¶ 57.08[2] at 57–37 (1983)); see also Muhammad v. Paruk, 553 F. Supp. 2d 893 (E.D. Mich. 2008) (dismissing an action after weighing these factors).
Here, factors three, four, and five counsel against a grant of declaratory relief on these issues. When they filed this action, Plaintiffs understood that these issues had already been raised in state-court cases. It was a race to see if this Court would opine on this issue before the state courts. And, again, given that the state-law issue have already been decided by the Michigan Court of Claims and are now
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squarely before Michigan’s Supreme Court via a bypass application in the House & Senate case, Mich. Docket No. 161377, a federal court declaration would increase friction between state and federal courts. Also, the state courts are the appropriate courts to decide the issue of the validity of state laws. Letting the issue play itself out in Michigan courts is a more effective remedy than federal-court intervention.
Declaratory relief is therefore inappropriate.
B. Plaintiffs are not entitled to permanent injunctive relief because they do not meet the well-established factors for such extraordinary relief.
In considering whether to grant permanent injunctive relief, a court must consider four factors: (1) actual success on the merits, (2) whether failure to grant the injunction will result in irreparable injury, (3) whether issuance of the injunction would cause substantial harm to the opposing parties, and (4) whether the injunction will not disserve the public interest. Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012). A permanent injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997).
1. Plaintiffs cannot succeed on the merits. As explained more fully below in Argument IV, Plaintiffs cannot succeed on the merits of any of their claims against the Attorney General.
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2. The lack of a permanent injunction will not result in irreparable injury to Plaintiffs.
In considering whether to issue an injunction, courts must consider whether the plaintiff will suffer irreparable injury without the injunction. Certified Restoration Dry Cleaning Network v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007). “To demonstrate irreparable harm, the plaintiffs must show that . . . they will suffer actual and imminent harm rather than harm that is speculative or unsubstantiated.” Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). That is, a plaintiff seeking preliminary injunctive relief must do more than show that irreparable harm is merely possible; they must “demonstrate that it is likely in the absence of an injunction.” NDSL, Inc. v. Patnoude, 914 F. Supp. 2d 885, 899 (W.D. Mich. 2012) (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (emphasis in original). And harm is not irreparable if it can be fully compensated by monetary damages. Overstreet v. Lexington–Fayette Urban County Gov’t, 305 F.3d 566, 578 (6th Cir. 2002).
As an initial matter, because the challenged Executive Orders are no longer in force, Plaintiffs will suffer no harm absent a permanent injunction—let alone irreparable harm. That is, the provider Plaintiffs may now begin conducting medical procedures previously deemed non-essential. And Mr. Gulick can schedule (if he has not done so already) and undergo his knee replacement surgery.
Regardless, the injuries that Plaintiffs claim to have suffered are not irreparable. The provider Plaintiffs have not demonstrated that economic harm is likely—only that it is possible. Nor have they shown that their alleged harm cannot
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be fully compensated by monetary damages. For example, they have not demonstrated that their business will be threatened by insolvency, as opposed to merely taking a temporary financial hit, which losses would be calculable. And, as was true with the plaintiffs in Michigan Bell Telephone Co. v. Engler, 257 F.3d 587, 599 (6th Cir. 2001), where the court recognized that the telephone company could recoup its losses by raising rates, provider Plaintiffs can recoup their financial losses now that the restrictions imposed by Executive Order 2020-17 and Executive Order 2020-77 are eased. There is no reason to believe that patients who were previously postponed will not now reschedule their procedures.
The provider Plaintiffs also claim loss of goodwill as an irreparable harm. Id. While loss of customer goodwill can constitute irreparable harm, Basicomputer Corp. v. Scott, 973 F.2d 507, 512 (6th Cir. 1992) (internal citation omitted), here it is unlikely that Michigan citizens—most of whom are well aware of the various executive orders—will have any ill will toward businesses that were required to comply with executive orders and that did everything possible to keep Michiganders safe during the COVID-19 crisis. And there is no reason to believe that future customers will be deterred from using their services, since they were not singled out in the prohibition against non-essential medical procedures. All similar businesses faced the same restrictions under the challenged executive orders. Even those individuals who were unhappy with Executive Order 2020-17 and Executive Order 2020-77 are likely to blame the Governor, not the businesses who were compelled by law to comply with her orders, subject to criminal penalties for noncompliance.
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As to Mr. Gulick, he claims he could not have his scheduled knee replacement, could not receive follow up care for his previous knee replacement, is in “excruciating pain,” is unable to “get prescription pain medication until he can be seen on June 11, and has had to reduce his work hours by 80%.” (Dkt. 10, Br. Supp. PI, PageID.245.) The challenged orders did not prohibit his licensed medical providers from taking action to “address [his] medical emergency or to preserv[e] [his] health and safety.” (Dkt. 1, Compl., Ex. 4, EO 2020-17 § 1, PageID.69.) Nor did they prevent him from scheduling his surgery for a future date. And his reduced hours can be compensated by money damages.
Finally, as outlined in Argument IV below, Plaintiffs cannot demonstrate that their federal constitutional rights have been violated. This factor therefore weighs against a permanent injunction.
3. The balance of harms weighs in the Attorney General’s favor, and an injunction is contrary to the public interest.
The remaining factors, “harm to the opposing party and weighing the public interest, merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009).
Here, it is difficult to discuss the balance of harms and the public interest when the challenged Executive Orders no longer have any legal effect (which, again, underscores that Plaintiffs’ claims are moot.) But during the time they were in effect, Executive Order 2020-17 and Executive Order 2020-77 saved lives in Michigan by helping to “flatten the curve” of Michigan cases and deaths, and
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conserved valuable medical resources to allow our healthcare system to remain ready to treat an influx of cases. That was clearly in the public interest during this deadly pandemic. And the Attorney General enforced those Executive Orders in her role as Chief Law Enforcement Officer.
In conclusion, Plaintiffs have failed to meet the well-established permanent injunction factors and are therefore not entitled to injunctive relief.
IV. This Court should dismiss all claims against the Attorney General because Plaintiffs have failed to state a claim on which relief can be granted. Generally, when considering a motion to dismiss under Rule 12(b)(6), the
Court must construe the complaint in the light most favorable to plaintiff, accept the plaintiff’s factual allegations as true, and draw all reasonable factual inferences in plaintiff’s favor. See Total Benefits Planning Agency, Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). But “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ ” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “[A] plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555; see Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009); Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). “To survive a motion to dismiss, [plaintiff] must allege ‘enough facts to state a claim to relief that is plausible on its face.’ ” Traverse Bay Area Intermediate Sch. Dist. v. Michigan Dep’t of Educ., 615 F.3d 622, 627 (6th Cir. 2010).
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Here, for the various reasons detailed below, Plaintiffs have failed to state a
claim against the Attorney General that is plausible on its face.
A. Plaintiffs’ allegations are sparse as to the Attorney General.
To begin, Plaintiffs’ sparse allegations directly against the Attorney General
are embodied in just seven paragraphs of a 151-paragraph Complaint:
• ¶ 61: That on March 25, the Attorney General’s office admitted of EO 202021, “I think it’s a difficult executive order to really wrap your arms around,” and that “[t]he Attorney General’s office explained that its process of clarifying the meaning of the order occurred on an ad hoc, case-by-case basis: ‘Every instance we get a call asking about whether or not businesses essential is being first reviewed by our office and then shared with the governor’s office so that we can begin to get some clarity around the executive order. ’ ”;
• ¶ 62: That the portion of the Attorney General’s official website that provides guidance to businesses and law enforcement regarding the definition of “critical infrastructure workers” has linked to the updated CISA guidance, instead of to the March 19 CISA Guidance, which Executive Orders 2020-42, 2020-59, 2020-70, and 2020-77 explicitly reject;
• ¶ 63: That the Attorney General’s office reiterated that violating the order could result in criminal penalties and forced closure of a business by law enforcement;
• ¶ 80: That, after the Legislature refused to extend the Governor’s declaration of emergency past April 30, the Attorney General issued a letter to law enforcement officials asserting that the Governor’s executive orders— including her Stay Home, Stay Safe orders—continued to be valid under the Emergency Powers of the Governor Act and directing that law enforcement officials continue to enforce the Governor’s orders, but without defending the extension of the emergency under the Emergency Management Act;
• ¶ 120: Again, that the Attorney General’s Office said the standards adopted in Executive Order 2020-77 are “difficult . . . to really wrap your arms around” and that the office attempts to clarify the meaning of the order with the Governor’s office on an ad hoc basis, but had not outlined criteria under which those ad hoc determinations are evaluated.
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• ¶ 124: Again, that the Attorney General’s official website links to the updated CISA guidance, instead of to the March 19 CISA Guidance. These sparse allegations against the Attorney General do not state a claim
that is plausible on its face as to the Attorney General, and all claims against the Attorney General should therefore be dismissed. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 680–81.
B. Attorney General Nessel is entitled to qualified immunity as to the request for money damages.
Plaintiffs’ Complaint requests money damages. (Dkt. 1, Compl., Prayer for Relief (d), PageID.36.) The Attorney General has qualified immunity as to the money-damages claims.
Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing that the official violated a statutory or constitutional right, and that the right was “clearly established” at the time of the challenged conduct. Ashcroft v. al-Kidd, 567 U.S. 731, 735 (2011). Lower courts have discretion to decide which of the two prongs of qualified-immunity analysis to tackle first. See Pearson v. Callahan, 555 U.S. 223, 236 (2009).
The U.S. Supreme Court has explained that “[a] [g]overnment official’s conduct violates clearly established law when, at the time of the challenged conduct, ‘[t]he contours of [a] right [were] sufficiently clear” that every “reasonable official would [have understood] that what he is doing violates that right.’ ” al-Kidd, 567 U.S. at 741 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). Although courts do not require a case directly on point, existing precedent must have placed
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the statutory or constitutional question “beyond debate.” Id. And qualified immunity “gives government officials breathing room to make ‘reasonable but mistaken judgments about open legal questions.’ ” al-Kidd, 567 U.S. at 743 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986). The claims against the Attorney General for money damages fall far short of that threshold.
Here, as explained below in Argument IV.C, D, E, and F, Plaintiffs cannot prove a constitutional violation against the Attorney General. But even if they could, she would be entitled to qualified immunity because application of the challenged Executive Orders raise new legal questions, such that no case would have clearly established that the Attorney General was violating the Due Process Clause or the dormant Commerce Clause by enforcing the orders. To the contrary, what the Attorney General would have understood, based on the U.S. Supreme Court’s words in Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 26 (1905), was that in a pandemic, “[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. If that is somehow incorrect based on the COVID-19 pandemic here in Michigan, the Attorney General is entitled to breathing room to be mistaken in her judgment.
And as to Plaintiffs’ state-law claims (Counts I and II), a Michigan state court has already held that the Governor had the authority to issue orders under the EPGA. (Mich. House and Senate v. Whitmer, Michigan Court of Claims Docket No.
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20-000079-MZ, attached as Ex.1.) This is current Michigan law, and, as the State’s top lawyer and chief law enforcement officer, the Attorney General intends to abide by it unless it is overturned. Even if a court later rules differently, at a minimum, the issues were open legal questions and thus were not clearly established such that the Attorney General would have known she was violating state law by enforcing Executive Orders 2020-17 and 2010-77.
Therefore, the Attorney General is entitled to qualified immunity on Plaintiffs’ money-damages claims.
C. The challenged executive orders were reasonable under the EPGA (Count II).
Plaintiffs allege that the Governor has applied any authority granted to her under the EPGA arbitrarily, unreasonably and in violation of Michigan’s Separation of Powers Clause and has failed to comport with the terms of that Act. (Dkt. 1, Compl., ¶ 107, PageID.26.) But that is inaccurate as to the challenged orders.
Executive Order 2020-17 temporarily restricted non-essential medical procedures, with the goal of mitigating the spread of COVID-19, protecting public health, providing essential protections, and ensuring the availability of healthcare resources—including staffing, medical equipment, and personal protective equipment. Executive Order 2020-77 temporarily suspended certain activities that were not necessary to sustain or protect life, and prohibited a person or entity from operating a business or conducting operations “that require[ed] workers to leave their homes or places of residence except to the extent that those workers [we]re
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necessary to sustain or protect life, [or] to conduct minimum basic operations.” EO 2020-77 § 4.
To be a valid exercise of the authority granted under the EPGA, Executive Order 2020-17 and Executive Order 2020-77 must have been “reasonable orders” that the Governor “consider[ed] necessary to protect life and property or to bring the emergency situation within the affected area under control.” Mich. Comp. Laws § 10.31(2). In promulgating each of these executive orders, the Governor specifically stated that she considered the restrictions imposed by those orders to be “reasonable and necessary” to mitigate the spread of COVID-19 and protect the public health across the State of Michigan. See, e.g., EO 2020-17; EO 2020-92. She was correct in her assessment.
No one would dispute that these orders placed restrictions on liberties that would, in a “normal” context, be unreasonable. But these are not normal times. And while the Constitution does not disappear in the face of a public health crisis, neither is the Bill of Rights a “suicide pact.” See Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting). Instead, it is well-settled that, in times of public health crises, a state may restrict the rights of individuals in order to secure the safety of the community:
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
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essential to the safety, health, peace, good order, and morals of the community.” Id. at 26. Such conditions are unreasonable only if they have “no real or substantial relation to those objects [of securing public health and safety], or [are], beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31.
COVID-19 has created a public health crisis of unprecedented gravity in our lifetime. Responding to, having the resources to respond to, and stemming the spread of, COVID-19 are paramount to all our well-being. And it is widely accepted that, in the absence of any vaccine or treatment, the most effective—if not only— way to combat this highly infectious virus and flatten the curve so our healthcare system and its resources are not overwhelmed, is through social distancing.
In promulgating Executive Order 2020-17 and Executive Order 2020-77, which placed restrictions on certain activities to conserve medical resources and limit social interactions, the Governor had done just that. Michigan was able to flatten its curve, dropping from third in the nation in terms of the number of COVID-19 cases, to eighth in the nation on June 2, 2020.14 The absence of the restrictions imposed in both of the challenged executive orders would have opened gateways for the virus to reach every family and social network in every part of the State, leading to a significant spike in the number of cases and an overburdening of our healthcare system. And the absence of the restrictions imposed in Executive
14 CNN, Tracking Covid-19 cases in the US, available at: https://www.cnn.com/interactive/2020/health/coronavirus-us-maps-and-cases/ (last accessed June 2, 2020 at 11:00 AM).
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Order 2020-17 specifically would have led to shortages of medical supplies and equipment necessary to fight this virus—resources that were already in short supply.
Accordingly, Executive Order 2020-17 and Executive Order 2020-77 bore a real and substantial relationship to securing the public health and safety. Given the challenging circumstances presented by COVID-19, the Governor validly exercised the powers delegated in the EPGA to issue reasonable executive orders aimed at mitigating its spread and ensuring the health and safety of the People of Michigan. Therefore, the Executive Orders were reasonable, valid, and enforceable under the EPGA.
D. The challenged Executive Orders were not vague (Count III). Plaintiffs allege that Executive Order 2020-17 and Executive Order 2020-77 did not give any person of ordinary intelligence a reasonable opportunity to know what is prohibited and to be able to act accordingly. (Dkt. 1, Compl., ¶¶ 116, 118, PageID.28–29.) This argument is unavailing. As an initial matter, the United States Supreme Court has suggested that federal courts should not opine on whether a state statute is vague until the highest state court has had an opportunity to give the statute a narrowing or clarifying construction. See Steffel v. Thompson, 415 U.S. 452, 469 (1974). The Michigan Supreme Court has not yet had that opportunity with respect to the challenged executive orders. In any event, Executive Order 2020-17 and Executive Order 202017 were not vague.
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A law is void for vagueness if its prohibitive terms are not clearly defined such that a person of ordinary intelligence can readily identify the applicable standard for inclusion and exclusion. United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 358–59 (6th Cir. 1998) (citing Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)). Significantly, “the degree of vagueness that the Constitution tolerates—as well as the relative importance of fair notice and fair enforcement—depends in part on the nature of the enactment.” United Food & Commercial Workers Union, 163 F.3d at 498. The United States Supreme Court has also explained that “the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry.” Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). To succeed, Plaintiffs must demonstrate that the law is impermissibly vague in all of its applications. They have not made that showing.
With respect to Executive Order 2020-17, that order gave a medical provider fair notice of what was prohibited and thus was not vague in the context of the COVID-19 pandemic. The Order specifically defined a “non-essential procedure” as one that was “not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” EO 2020-17. The Governor gave discretion to medical providers to determine a what was non-essential and what constituted a medical emergency for each individual patient because providers were best suited to determine what was medically necessary. Medicine is a regulated profession, and doctors have extensive training
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in determining a what constitutes medical emergency and what steps are necessary to preserve a patient’s health. The medical Hippocratic Oath is similarly undefined, yet medical professionals understand what “help the sick” and “abstain from all intentional wrong-doing and harm” mean in any situation.
Further, the Executive Order 2020-17 enumerated procedures that must have been postponed, including joint replacement, bariatric surgery, and cosmetic surgery (except for emergency or trauma-related surgery where postponing would significantly impact the health or safety of the patient). It also indicated procedures that should have been excluded from postponement, such as surgeries related to advanced cardiovascular disease that would prolong life, oncological testing and treatment, pregnancy-related visits, labor and delivery, organ transplants, and procedures related to dialysis. Finally, the order detailed the procedures that must have been excluded from postponement, including emergency or trauma-related procedures, where delaying would significantly impact the health and welfare of the patient. In this way, the Order gave medical personnel examples on a continuum from those that must have been postponed to those that must not have been postponed, leaving the professional to determine where each patient was uniquely situated. Thus, the term “non-essential” procedure was limited by illustrative examples so there was not unfettered discretion, yet still allowed a degree of latitude for doctors in determining what this meant for each patient.
The Governor recognized that medical providers were intimately aware of their patients’ health and what was needed to thrive, and rightly gave them the
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necessary discretion rather than mandating a one-size-fits-all approach and an inflexible definition of non-essential procedures that would rob those providers of that discretion. As such, Executive Order 2020-17 was not unconstitutionally vague, and Plaintiffs have failed to state a void-for-vagueness claim.
With respect to Executive Order 2020-77, Plaintiffs argue that order is vague because it is unclear who qualifies as “critical infrastructure workers.” (Dkt. 1, Compl., ¶ 118–24, PageID.29–30.) The thrust of Plaintiffs’ claim is premised on their belief that there was no rational reason for the Governor’s decision as to what industries qualify as critical infrastructure. (Id. at ¶ 119, PageID.30.) But, even if that belief were true (which the Attorney General does not concede), that does not make the Executive Order vague. To the contrary, as Plaintiffs point out, the Executive Order referenced a list promulgated by the Cybersecurity and Infrastructure Security Agency (CISA) on March 19, 2020, see EO 2020-77, which contained a detailed description of what workers and industries constitute critical infrastructure.15 Such a list provided significant guidance for critical infrastructure designations to those subject to the Executive Order.
Despite this detailed list, Plaintiffs complain that the Governor’s use of the CISA guidance was insufficient because the guidance “superseded,” and the Governor provided no reason for continued use of “superseded” guidance. (Dkt. 1, Compl., ¶ 119, PageID.29.) Again, the Governor’s failure to provide a reason for her
15 Available at: https://www.cisa.gov/sites/default/files/publications/CISA-Guidanceon-Essential-Critical-Infrastructure-Workers-1-20-508c.pdf.
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decision to rely on the same guidance (though superseded) does not render the Executive Order vague. And, in any event, continually relying on one guidance actually provides more clarity than would repeatedly changing the standards as the guidance is revised. Indeed, to revise the Executive Order’s standards as the guidance is updated would require those subject to the Executive Order to keep abreast not only of changes within the text of the applicable Executive Orders, but also of changes within the CISA guidance.
While Plaintiffs argue that the Attorney General added confusion because her website linked to the updated CISA guidance, (Dkt. 1, Compl., PageID.30), they fail to recognize that the Executive Order itself linked to the March 19, 2020 guidance. See EO 2020-77 § 8. Moreover, there are no allegations that the Attorney General has been improperly enforcing based on incorrect guidance or that Plaintiffs have been harmed as a result. Second, with respect to what constitutes a critical infrastructure operation, the differences between the March 19 CISA guidance and the updated guidance are fairly minimal. (See comparison of March 19 and updated guidance.16) Indeed, although the updated guidance gives more specific examples, under either version of the guidance, Plaintiffs would know whether they constitute critical infrastructure.
Plaintiffs further argue that the Attorney General “admitted [Executive Order 2020-77] was vague because she said the standards adopted in Executive
16 Available at https://www.foxrothschild.com/content/uploads/2020/04/CISAComparison-Guidance-on-the-Essential-Critical-Infrastructure-Workforce-2.0-to3.0.pdf.
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Order 2020-77 are ‘difficult . . . to really wrap your arms around’ ” and she had attempted to clarify the meaning of the order with the Governor’s office on a caseby-case basis. (Dkt. 1, Compl., ¶ 120, PageID.29.) But the quoted statement was taken out of context and cannot be interpreted as an admission that EO 2020-77 was vague. Indeed, it is difficult to wrap your arms around the entire pandemic, particularly at the speed at which events are unfolding. And coordination as to consistency of enforcement, and determinations made on a case-by-case basis, are not tantamount to “ad hoc” enforcement.
Finally, with respect to both challenged executive orders, they should be viewed in the context of what their preambles state as their purpose: “To mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources.” EO 2020-17; EO 2020-77. This purpose provides an objective framework for determining the definition of the term “non-essential procedures” and “critical infrastructure workers,” much like the preamble and school context the court considered in Grayned v. City of Rockford, 408 U.S. 104 (1972). In Grayned, the plaintiff had alleged that an anti-noise ordinance was unconstitutionally vague as it prohibited noise that “disturb[ed] or tend[ed] to disturb” school sessions. Id. at 108. Even though enforcing the statute required some degree of police judgment, the Court determined that it was not unconstitutionally vague, especially when considering the ordinance’s preamble and the school context in which the statute
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was written. Id. at 110–11. Likewise, here, the purpose of the executive order gives both those subject to and those enforcing the order guidance and parameters.
In sum, Plaintiffs have failed to state a void-for-vagueness claim.
E. The Attorney General’s enforcement of the challenged Executive Orders did not violate procedural or substantive due process.
Plaintiffs’ claims also fail under both procedural and substantive due process.
1. The challenged Executive Orders did not violate procedural due process (Count IV).
Plaintiffs allege that Executive Order 2020-17 provides no procedure or process through which to challenge the determination that certain medical treatments—such as bariatric surgery or joint replacement—are non-essential. (Dkt. 1, Compl., ¶ 132, PageID.32.) They argue that Executive Order 2020-77 provides no process through which to challenge a business’s designation as noncritical infrastructure, does not outline the criteria that would serve as a reasonable guide to such a determination, and provides no pre-deprivation or post-deprivation process. (Id. at ¶ 131, PageID.31.) Plaintiffs’ arguments fall short.
In attempting to combat a public health emergency, “[a]ll constitutional rights may be reasonably restricted.” In re Abbott, 954 F.3d 772, 786 (5th Cir. 2020) (citing Jacobson, 197 U.S. at 11); see also Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health, 186 U.S. 380, 393 (1902) (upholding state quarantine of passengers on boat even when all were healthy). Indeed, “a community has the right to protect itself against an epidemic of disease which
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threatens the safety of its members.” Jacobson, 197 U.S. at 27. And the health and safety of the public is a “paramount governmental interest which justifies summary administrative action.” Hodel v. Virginia Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 300 (1981).
Relevant here, procedural due process is “not a technical conception with a fixed content unrelated to time, place and circumstance.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 895 (1961)). Rather, it is a flexible standard in which the court analyzes government and private interests. Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Government interests include the administrative burden the additional procedural requirements would impose on the state. Matthews v. Eldridge, 424 U.S. 319, 332 (1976). Other considerations include the length of time involved and the finality of the deprivation. Logan v. Zimmerman Brush Co., 455 U.S. 422, 434 (1982). In other words, due process is “calls for such procedural protections as the particular situation demands.” Morissey v. Brewer, 408 U.S. 471, 481 (1972).
In this case, the pandemic sets the stage for any process due to the citizens of the state of Michigan. COVID-19 hit Michigan quickly and furiously and did not allow for extended deliberation on how to best preserve individual liberties. In addressing this emergency, the Governor was expeditious and crafted a series of Executive Orders aimed at advancing the State’s interest in saving lives.
Specifically, the purpose of all of the Executive Orders is “[t]o mitigate the spread of COVID-19, protect the public health, provide essential protections to
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vulnerable Michiganders, and ensure the availability of health care resources.” E.g., EO 2020-97. And the effect of the Stay Home, Stay Safe orders is to mitigate the spread of the deadly virus and to save lives. The challenged Executive Orders and the restriction on Plaintiffs were temporary. And they were in force only until they were no longer necessary. There was no permanent taking and the Executive Orders did not result in an erroneous deprivation of liberty.
The Executive Orders were also narrowly tailored. They detailed who constituted critical infrastructure workers who could leave their homes for narrow purposes in order to keep the economy running. And they gave businesses—indeed, these Plaintiffs, flexibility and discretion to determine on a patient-by-patient basis which patients’ needs were “essential.” With each subsequent Executive Order that she enacts, the Governor evaluates the science, the number of cases, and the availability of medical supplies and medical professionals, in order to determine how much to relax the restrictions to continue saving lives while allowing for more businesses to open. Under these circumstances, procedural due process requires no more.
Plaintiffs’ private interests pale in comparison. Mr. Gulick experienced a temporary delay in surgery that was not essential to his survival. If it had been necessary, his doctor could have completed the surgery in accordance with the medical oath he took to do all that is necessary to save a life. Indeed, Executive Orders 2020-17 and 2020-77 did not prevent surgery if it was medically necessary. In fact, Executive Order 2020-17 provided an exception “for emergency or trauma-
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related surgery where postponement would significantly impact the health, safety, and welfare of the patient.” EO 2020-17. Further, all Plaintiffs’ financial loss from the restriction does not compare to the thousands of people who could have lost their lives but for the Governor’s swift action. The Executive Orders were necessary and a proper attempt to contain the virus.
On balance, the Governor’s stated purpose in implementing the Executive Orders and the very real possibility of the loss of more lives far outweighs the Plaintiffs’ procedural-due-process concerns. The inconvenience to Plaintiffs in postponing a non-essential surgery and loss of income are temporary losses. Had the Governor not acted swiftly in enacting the Executive Orders and keeping everyone in their homes, the results could be far reaching to society and include an immeasurable number of fatalities. As such, Plaintiffs have not stated a procedural due process claim.
2. The Attorney General’s enforcement of Executive Orders 2020-17 and 2020-77 did not violate substantive due process (Count V).
Plaintiffs allege that Executive Orders 2020-17 and 2020-77 violated the right to intrastate travel and the right to practice one’s chosen profession. (Dkt. 1, Compl., ¶ 136, PageID.32.) They assert that strict scrutiny applies. (Id. at ¶ 138, PageID.32–33.) In their application of strict scrutiny, Plaintiffs argue that: (1) once the curve has been flattened, the protection of public health in the face of a global pandemic is not compelling state interest, and (2) the government has made no
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attempt to narrowly tailor Executive Order 2020-17 or Executive Order 2020-92 to serve that interest. (Id. at ¶ 139, PageID.33.) Plaintiffs are mistaken.
The hallmark of substantive due process is to protect an individual against “arbitrary action of government.” Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (citing Dent v. West Virginia, 129 U.S. 114 (1889)) (emphasis added). The threshold question is “whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8 (1998). When a statute is enacted to protect the public safety, review is only available if it “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.” Jacobson, 197 U.S. at 31.
In engaging in a substantive due process analysis, the court determines whether there is a fundamental liberty at stake, and if so, the government can infringe on that liberty if there is a “compelling state interest” that is “narrowly tailored.” Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The U.S. Supreme Court, however, has been “reluctant to expand the concept of substantive due process.” Collins v. Harker Heights, 503 U.S. 115, 125 (1992).
While the Supreme Court has recognized interstate travel as a fundamental right, Saenz v. Roe, 526 U.S. 489, 498 (1999), it has not yet determined whether the Constitution protects a limited right of intrastate travel, Johnson v. Cincinnati, 310 F.3d 484, 496–97 (6th Cir. 2002). The Sixth Circuit is one of a few circuits that has acknowledged a right to intrastate travel as fundamental. Id. at 498.
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But even when there are personal liberties violated, a government’s quarantine can be constitutionally reasonable in a public health context. See Jacobson, 197 U.S. at 11. Indeed, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Id. at 27. The government can quarantine citizens until “the spread of the disease among the community at large has disappeared.” Id. at 29.
Here, as in Jacobson, there are compelling government interests at stake: controlling the pandemic and saving lives.
Plaintiffs argue that there was no compelling government interest since the curve of the pandemic had flattened. But that argument ignores science and medical knowledge. It has been widely publicized that, even if the curve flattens temporarily, the public is not out of danger since the virus has not been eradicated. COVID-19 is extremely contagious, and even though social distancing helped flatten the curve, the virus will be ever-present unless and until the medical profession finds a cure or a vaccine. Thus, the government’s interest is both compelling and continuous.
The Executive Orders were narrowly tailored to carry out that compelling interest in at least three ways. First, they were narrowly tailored to prevent the spread of COVID-19. Executive Order 2020-77 separated the various industries based on the essential nature of the workers and allowed at least some critical infrastructure workers to continue working in-person. While the Governor adopted the federal CISA guidelines regarding the definition of critical infrastructure
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workers, her failure to adopt subsequent iterations of the guidelines is of no merit. There is no requirement to do so, and, in fact, it is less confusing for the public to have one iteration of the definition of critical infrastructure workers than to have that definition change over time. As time went on and the curve began to flatten, the Governor issued subsequent Executive Orders that loosened restrictions and carefully determined the categories of workers that were less likely to come into close contact with others and the Orders relaxed restrictions for an increasing number of industries. These determinations were not arbitrary, but rather, calculated to slowly allow sections of the economy to open without sacrificing gains made through the original Stay Home, Stay Safe order.
Second, Executive Order 2020-17 was narrowly tailored to preserve precious medical resources that have been in short supply since the COVID crisis began.
Third, the Executive Orders provided the least restrictive way to control the spread of the virus while attempting to keep the economy afloat. The most restrictive method would have been to maintain a complete economic shutdown. Instead, the challenged Executive Orders provide for some level of autonomy under some circumstances, depending on whether the individuals were critical infrastructure workers and essential to the economy. And notably, with each subsequent Executive Order, the Governor released some restrictions, allowing for more autonomy for community members. Under these difficult circumstances, the Governor’s orders were necessary, tailored narrowly, and responded to “a terrible
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context [where] the consequences of mistaken indulgence can be irretrievably tragic.” Siegel v. Shinnick, 219 F. Supp. 789, 791 (E.D.N.Y. 1963).
In sum, Plaintiffs have failed to state a substantive due process claim.
F. The Attorney General’s enforcement of the challenged Executive Orders did not violate the dormant Commerce Clause (Count VI).
Lastly, Plaintiffs argue that Executive Order 2020-17 and Executive Order 2020-77 violated the dormant Commerce Clause. (Dkt. 1, Compl., PageID.34–35.) Not so.
Under the Commerce Clause of the United States Constitution, Congress is granted the power “[t]o regulate Commerce with foreign Nations, and among the several States.” U.S. Const. art. I, § 8, cl. 3. While the Clause is framed as an affirmative grant of power to Congress, it has also “long been recognized as a selfexecuting limitation on the power of the States to enact laws imposing substantial burdens on such commerce.” S-Cent. Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 87 (1984). This “dormant” form of the Commerce Clause “limits the power of states ‘to erect barriers against interstate trade.’ ” Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 644 (2010) (citing Lewis v. BT Inv. Managers, Inc., 447 U.S. 27, 35 (1980)).
In evaluating a dormant Commerce Clause challenge to a state law, courts engage in a two-step inquiry. Id. First, a court must determine whether “a state statute directly regulates or discriminates against interstate commerce, or [whether] its effect is to favor in-state economic interests over out-of-state interests.” Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 476 U.S. 573,
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579 (1986). If so, the statute is “generally struck down . . . without further inquiry.” Id. If not, that is, if the “statute has only indirect effects on interstate commerce and regulates evenhandedly,” id., a court must apply the balancing test enumerated in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Int’l Dairy Foods Ass’n, 622 F.3d at 644. Under this balancing test, a court must uphold “a state regulation unless the burden it imposes upon interstate commerce is ‘clearly excessive in relation to the putative local benefits.’ ” Id. (citing Pike, 397 U.S. at 142). The party challenging the statute bears the burden of proving that the burdens placed on interstate commerce outweigh the benefits that accrue to intrastate commerce. E. Kentucky Res. v. Fiscal Court of Magoffin Cty., Ky., 127 F.3d 532, 545 (6th Cir. 1997).
Here, the first prong of the dormant Commerce Clause analysis is not at issue: Plaintiffs make no claim that the challenged executive orders directly regulated or discriminated against interstate commerce or had the effect of favoring in-state economic interests over out-of-state interests. Rather, the thrust of Plaintiffs’ argument under the dormant Commerce Clause is directed at the second prong; specifically, that the burdens imposed by the challenged Executive Orders outweighed their public-health benefit. (Dkt. 1, Compl., ¶¶ 149–150, PageID.35.) But Plaintiffs fail to make any such showing, and therefore have failed to state a dormant Commerce Clause claim.
To be sure, the economic burden that Plaintiffs faced under the challenged Executive Orders was significant. But, in relation to the putative local benefits of
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those orders—which were far greater than Plaintiffs would have this Court believe, and which were not illusory as Plaintiffs claim—that burden was not clearly excessive. In fact, the balance tips sharply in favor of the benefits that accrued from the challenged Executive Orders.
As demonstrated in Sections I.B.1.c. and I.B.3. above, the challenged Executive Orders were highly effective in achieving their stated public-health goals. Both orders slowed the spread of COVID-19 across the State of Michigan, resulting in a flattening of the curve. Additionally, Executive Order 2020-17 preserved healthcare resources, including highly-sought-after personal protective equipment, to allow Michigan’s healthcare system to stand ready to treat an influx of cases.
Moreover, while Plaintiffs argue that less burdensome means were available to available to achieve the same ends, “[i]t is no part of the function of a court” to decide which measures are “likely to be the most effective for the protection of the public against disease.” Jacobson, 197 U.S. at, 30. Indeed, the Supreme Court has long recognized that the enactment of measures designed to protect the public health, including measures aimed at the prevention of the spread of disease such as those at issue here, rests at the heart of a State’s police power. Id. at 24–25. And, particularly relevant here, over a century ago, the Supreme Court recognized that, “until Congress has exercised its power on the subject, . . . state quarantine laws and state laws for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce. . . .”
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Compagnie Francaise de Navigation a Vapeur, 186 U.S. at 387 (1902).17 Thus, under established Supreme Court law, the Commerce Clause is not implicated by state laws aimed at controlling the spread of disease.
In sum, because Plaintiffs have failed to demonstrate that the burdens of the challenged executive orders were clearly excessive in relation to their public-health benefit, Plaintiffs have failed to state a dormant Commerce Clause claim.
CONCLUSION AND RELIEF REQUESTED For the reasons stated above, Defendant Attorney General Dana respectfully requests that this Honorable Court dismiss all of Plaintiffs’ against her, either because they are moot, because this Court should not exercise supplemental jurisdiction over Plaintiffs’ state-law claims, because the Court should not issue the requested declaratory and injunctive relief, or because in Plaintiffs’ sparse factual allegations against her, they fail to state a claim upon which relief may be granted as to any of the claims.
Respectfully submitted, Dana Nessel Attorney General /s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General
17 While this case was decided prior to current dormant commerce clause jurisprudence, it remains good law and has been cited with favor in recent cases related to the COVID-19 crisis from other jurisdictions. See In re Abbott, 954 F.3d 772, 783–84 (5th Cir. 2020); Wisc. Legislature v. Palm, __ N.W.2d __, No. 2020AP765-OA, 2020 WL 2465677, at *43 (Wisc. May 13, 2020).
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Dated: June 2, 2020

Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

Certificate of Service
I hereby certify that on June 2, 2020, I electronically filed this Defendant
Attorney General Dana Nessel’s Motion to Dismiss with the Clerk of the Court
using the ECF system which will send notification of such filing.
A courtesy copy of the aforementioned document was placed in the mail
directed to:
THE HONORABLE PAUL L MALONEY 137 FEDERAL BLDG 410 W MICHIGAN AVE KALAMAZOO MI 49007
THE HONORABLE MAGISTRATE JUDGE PHILLIP J GREEN 601 FEDERAL BLDG 110 MICHIGAN ST NW GRAND RAPIDS MI 49503

/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

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Case 1:20-cv-00414-PLM-PJG ECF No. 27-1 filed 06/02/20 PageID.1431 Page 1 of 26

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414
HON. PAUL L. MALONEY
MAG. PHILLIP J. GREEN
DEFENDANT ATTORNEY GENERAL
DANA NESSEL’S BRIEF IN SUPPORT OF
MOTION TO DISMISS

Defendants.

EXHIBIT 1 TO DEFENDANT ATTORNEY GENERAL DANA NESSEL’S
BRIEF IN SUPPORT OF MOTION TO DISMISS
Exhibit 1 – Order in Mich. House and Senate v. Whitmer, Michigan Court of Claims Docket No. 20-000079-MZ

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STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES, and MICHIGAN SENATE,
Plaintiffs,
v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

OPINION AND ORDER
Case No. 20-000079-MZ Hon. Cynthia Diane Stephens

This matter arises out of Executive Orders issued by Governor Gretchen Whitmer in response to the COVID-19 pandemic. Neither the parties to this case nor any of the amici deny the emergent and widespread impact of Covid-19 on the citizenry of this state. Neither do they ask this court at this time to address the policy questions surrounding the scope and extent of contents of the approximately 90 orders issued by the Governor since the initial declaration of emergency on March 10, 2020 in Executive Order No. 2020-4. The Michigan House of Representatives and the Michigan Senate (Legislature) in their institutional capacities challenge the validity of Executive Orders 2020-67 and 2020-68, which were issued on April 30, 2020. They have asked this court to declare those Orders and all that rest upon them to be invalid and without authority as written. The orders cited two statutes, 1976 PA 390, otherwise known as the Emergency Management Act (EMA); and 1945 PA 302, otherwise known as the Emergency Powers of Governor Act (EPGA). In addition, the orders cite Const 1963, art 1, § 5, which generally vests the executive power of the state in the Governor. This court finds that:

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1. The issue of compliance with the verification language of MCL 600.6431 is abandoned. 2. The Michigan House of Representative and Michigan Senate have standing to pursue this
case. 3. Executive Order 2020-67 is a valid exercise of authority under the EPGA and plaintiffs
have not established any reason to invalidate any executive orders resting on EO 2020-67. 4. The EPGA is constitutionally valid. 5. Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.
I. BACKGROUND
The Court will dispense with a lengthy recitation of the pertinent facts and history and will instead jump to the Governor’s declaration of a state of emergency1 as well as a state of disaster2 under the EMA and the EPGA on April 1, 2020, in response to the COVID-19 pandemic. Executive Order No. 2020-33. Both chambers of the Legislature adopted Senate Joint Resolution No. 24 which approved “an extension of the state of emergency and state of disaster declared by Governor Whitmer in Executive Order 2020-4 and Executive Order 2020-33 through April 30, 2020. . . .” The Senate Concurrent Resolution cited the 28-day legislative extension referenced in MCL 30.403 of the EMA.
1 The EPGA does not define the term “state of emergency.” However, the EMA defines the term as follows: “an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(q). 2 While the EPGA does not use, let alone define, the term “state of disaster,” the EMA defines the term as “an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(p).

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The public record affirms that the governor asked the legislative leadership to extend the state of disaster and emergency on April 27, 2020. The Legislature demurred and instead passed SB 858, a bill without immediate effect, which addressed some the subject matter of several of the COVID-19-related Executive Orders, but did not extend the state of emergency or disaster or the stay-at-home order. The Governor vetoed SB 858.
On April 30, 2020, the Governor issued Executive Order 2020-66 which terminated the state of emergency and disaster that had previously been declared under Executive Order 202033. The order opined that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Executive Order No. 2020-66 (emphasis added). However, EO 2020-66 acknowledged that 28 days “have lapsed since [the Governor] declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33.” Id. The order declared there was a “clear and ongoing danger to the state . . . .” (Emphasis added).
On the same day, and only one minute later, the Governor issued two additional executive orders. First, she issued Executive Order No. 2020-67, which cited the EPGA. [In addition, the order contained a cursory citation to art 5, § 1.] EO 2020-67 noted the Governor’s authority under the EPGA to declare a state of emergency during “‘times of great public crisis . . . or similar public emergency within the state. . . .’” Id. quoting MCL 10.31(1). The order noted that such declaration does not have a fixed expiration date. Id. Then, and as a result of the ongoing COVID-19 pandemic, EO 2020-67 declared that a “state of emergency remains declared across the State of Michigan” under the EPGA. The order stated that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The order was to take immediate effect. Id.

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In addition to declaring that a state of emergency “remained” under the EPGA, the Governor simultaneously issued Executive Order No. 2020-68; this order declared a state of emergency and a state of disaster under the EMA. [In addition, like all previous orders, the order contained a vague citation to art 5, § 1 as well.] Hence, EO 2020-68 essentially reiterated the very same states of emergency and disaster that the Governor had, approximately one minute earlier, declared terminated. The order declared that the states of emergency and disaster extended through May 28, 2020 at 11:59 p.m., and that all orders that had previously relied on the prior states of emergency and disaster declaration in EO 2020-33 now rest on this order, i.e., EO 2020-68.
The House of Representative and the Senate subsequently filed this case asking for an expedited hearing and a declaration that EO 2020-67 and EO 2020-68, and any other Executive Orders deriving their authority from the same, were null and void.
COMPLIANCE WITH MCL 600.6431
The Governor noted in her reply brief that the complaint, as originally filed in this court did not meet the verification requirement of MCL 600.6431(2)(d). At oral argument the Governor acknowledged that the verification requirements were not met when the complaint was originally filed; however, a subsequent filing was notarized in accordance with the statute. The Governor also acknowledged that the failure to sign the verified pleading before a person authorized to administer oaths was not necessary for invoking this Court’s jurisdiction. Finally, the Governor agreed that she was not seeking dismissal of the action based on plaintiffs’ initial lack of compliance. For those reasons this Court will consider the issue moot and decline any analysis of the arguments predicated on MCL 600.6431.
STANDING

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The issue of standing is central to this case as it is with all litigation. Courts exist to manage actual controversies between parties to whom those controversies matter. The Legislature has cited MCR 2.605 in support of its standing to pursue this declaratory action. The Legislature asserts that it has a need for guidance from this Court in order to determine how it will proceed to protect what it articulates as its special institutional rights and responsibilities. The Governor challenges whether the Legislature has standing to bring this suit. The Governor argues that the institution of the Legislature has no more interest in the outcome of this suit than any member of the public. She further claims that the Legislature does not need the guidance of the Court to determine how to carry out its constitutional duties. It is the opinion of this Court that the Legislature has standing to pursue its claims before this Court.
Both parties cite the seminal case on the issue of standing, Lansing Schs Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). In that case, the Supreme Court refined the concept of standing under the Michigan Constitution. In doing so, the Court rejected the federal standing analysis and articulated an analytical framework rooted the Michigan Constitution. The Lansing Schs Ed Ass’n Court looked to whether a cause of action was authorized by the Legislature. Where the Legislature did not confer a right to a specific cause of action, a plaintiff must have “a special injury or right, or substantial interest, that will be detrimentally affected in a manner different than the citizenry at large . . . .” Id. at 372.
The Governor relies heavily on the recent case of League of Women Voters of Mich v Secretary of State, __ Mich App __; __ NW2d __ (2020) (Docket Nos. 350938; 351073), which is itself now on appeal to the Michigan Supreme Court. That case, similar to the instant case, was brought under the aegis of MCR 2.605 and asked the court to declare that an Attorney General Opinion’s interpretation of a statute was invalid. The Court of Appeals majority in League of

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Women Voters examined the issue through the lens of MCR 2.605 and found that in that case the institution of the Legislature had no standing: “Given the definition of ‘actual controversy’ for the purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgement is necessary to guide the Legislature’s future conduct in order to preserve its legal rights.” Id., slip op at p. 7.
League of Women Voters was the first examination of the issue of institutional standing in Michigan. For that reason, the court focused on the logic of the Supreme Court’s decision in Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), which analyzed a standing issue in relation to individual legislators. Dodak, like this case, presented a conflict between the executive and legislative branches of state government. That Court, like this one, is mindful that in such instances the issue of legislative standing requires a litigant to overcome “a heavy burden because, courts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government.” League of Women Voters, __ Mich App at __, slip op at p. 8 (citation and quotation marks omitted; cleaned up). There must be a “personal and legally cognizable interest peculiar” to the legislative body, rather than a “generalized grievance that the law is not being followed.” Id. (citations and quotation marks omitted). In Dodak four legislators pressed a case concerning what they asserted was an abrogation of their individual rights as members of the appropriations committees when the State Administrative Board was allowed to redistribute funds allocated by the Legislature between departments of state government. Ultimately the Supreme Court found that the chair of the appropriation committee did in fact have a peculiar and special right and a potential for a personal injury sufficient to acquire standing. In Dodak, 441 Mich at 557, the Supreme Court cited with approval federal authorities holding that an individual legislator “‘only has standing if he alleges a diminution of congressional influence

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which amounts to a complete nullification of his vote, with no recourse in the legislative process.’ Dodak, 441 Mich at 557, quoting Chiles v Thornburgh, 865 F3d 1197, 1207 (CA 11, 1989). In League of Women Voters the institution claimed its right was to have a constitutionally correct interpretation of certain legislation. The League of Women Voters Court found that indeed every citizen had such a right and the Legislature once it enacted a statute had no special relationship to it. League of Women Voters, __ Mich App at __, slip op at p. 8. The case did not, remarked the Court, concern the validity of any particular legislative member’s vote. Id.
While it is a close question, this Court finds that the issue presented in this case is whether the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the Legislature’s decision to decline to extend the states of emergency/disaster. The United States Court of Appeals for the Sixth Circuit recently found that a legislative body under certain circumstances does have standing. See Tennessee General Assembly v United States Dep’t of State, 931 F3d 499 (CA 6, 2019). The logic of their analysis is persuasive and compatible with both Dodak and League of Women Voters. In Tennessee General Assembly, the Sixth Circuit surveyed two cases from the Supreme Court of the United States to illustrate when a legislative body, or portion thereof, may have standing. Id. at 508, citing Coleman v Miller, 307 US 433; 59 S Ct 972; 83 L 3d 1385 (1939); and Ariz State Legislature v Ariz Independent Redistricting Comm, __ US __; 135 S Ct 2652; 192 L Ed 704 (2015). Surveying Coleman and its progeny, the Sixth Circuit explained that, “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Tennessee General Assembly, 931 F3d at 509 (citation and quotation marks omitted). The Sixth Circuit further noted that Arizona State Legislature Court also conferred standing under article III to a legislature. In

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that case, the legislature claimed that the power to redistrict accrued to them under the Arizona constitution. The challenged action in that case was “more similar to the ‘nullification’ injury in Coleman.” Tennessee General Assembly, 931 F3d at 510, citing Arizona State Legislature, __ US at __; 135 S Ct at 2665. To that end, the proposal at issue would have completely nullified any legislative vote, and there was “a sufficiently concrete injury to the Legislature’s interest in redistricting . . . that the Legislature had Article III standing.” Id., citing Arizona State Legislature, __ US at __; 135 S Ct 2665-2666.
The injury claimed in this case is that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster. The Legislature claims this right is exclusively theirs as an institution under the EMA and this state’s Constitution. Understanding that Lansing Schs Ed Ass’n specifically departed from the Article III analysis of its predecessor cases, the nullification argument is nevertheless not incompatible with the Lansing Schs Ed Ass’n focus on “special injury.” This type of injury sounds similar in the nature of the right that was taken from the one plaintiff who had standing in Dodak, 441 Mich at 559-560, i.e., the member of the House Appropriations Committee who lost his right to approve or disapprove transfers following the Governor’s actions.
In this respect the instant matter is distinguishable from League of Women’s Voters, __ Mich App at __, slip op at 9, where the Court of Appeals remarked that “the validity of any particular legislative member’s vote is not at issue[.]” Plaintiffs have at least a credible argument that they are not merely seeking to have this Court resolve a lost political battle, nor are plaintiffs only generally alleging that the law is not being followed. Cf. id. at 8. Rather, they are alleging that the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole. This is an injury that is unique to the Legislature and it shows a

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substantial interest that was (allegedly) detrimentally affected in a manner different than the citizenry at large. Cf. id. at 7 (discussing standing, generally).
As a final argument on standing, the Governor contends that the Legislature does not need declaratory relief to guide its future actions. She and at least one amicus brief note that the Legislature has in fact moved toward amending the EPGA. At oral argument the Legislature was almost invited to amend either the EMA or EPGA. However, while the legislative body is well aware of its power to enact, amend, and repeal statutes, this Court believes that guidance as to the issues presented in this case will avoid a multiplicity of litigation. The parties here have pled facts of an adverse interest which necessitate the sharpening of the issues raised.
ANALYSIS OF AUTHORITIES CITED IN THE CHALLENGED EXECUTIVE ORDERS
The Executive Orders at issue cite three sources of authority: the EMA, the EPGA, and Const 1963, art 5, § 1. The Court will examine each to determine whether the Governor possessed authority to issue the challenged orders.
ARTICLE 5 OF THE MICHIGAN CONSTITUTION
The challenged orders in this case all contain a brief citation to art 5, § 1. This section of the Michigan Constitution vests “executive power” in the Governor. See Const 1963, art 5, § 1. The Governor invokes this power in claiming authority to issue the challenged Executive Orders. The Legislature has argued that Governor errs in relying on her art 5, § 1 “executive power” to issue orders in response to the pandemic. This court agrees that “Executive power” is merely the “authority exercised by that department of government which is charged with the administration or execution of the laws.” People v Salsbury, 134 Mich 537, 545; 96 NW 936 (1903). In fact, the

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Governor has not claimed in her briefing or at oral argument that she had the authority to enact EO 2020-67 or EO 2020-68 absent an enabling statute. Through two distinct acts, stated in plain and certain terms, the Legislature has granted the Governor broad but focused authority to respond to emergencies that affect the State and its people. The Governor’s challenged actions—declaring states of disaster and emergency during a worldwide public health crisis—are required by the very statutes the Legislature drafted. Thus, the focus of this opinion, is on those two distinct acts, the EMA and EPGA.
THE EPGA AUTHORIZED EO 2020-67 AND SUBSEQUENT ORDERS RELIANT THEREON
The Court will first turn its attention to the EPGA and to plaintiffs’ arguments that the EPGA did not permit the Governor to issue a statewide emergency declaration in EO 2020-67 or any subsequent orders reliant on EO 2020-67. Plaintiffs advance two arguments in support of their position: (1) first, they contend that the EPGA, unlike the EMA, does not grant authority for a statewide declaration of emergency, but instead only confers upon the Governor the authority to issue a local or regional state of emergency; (2) second, plaintiffs argue that if the EPGA does grant authority for a statewide state of emergency, the delegation of legislative authority accomplished by the act is unconstitutional. The Court rejects both of plaintiffs’ contentions regarding the EPGA and concludes that EO 2020-67, and any orders relying thereon, remain valid.
Turning first to the scope of the EPGA, the Court notes that the statute bestows broad authority on the Governor to declare a state of emergency and to take necessary action in connection with that declaration. See MCL 10.31(1). Under the EPGA, 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.” Id.

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The Legislature stated that its intent in enacting MCL 10.32 was to “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” Section 2 of the EPGA continues, declaring that the provisions of the EPGA “shall be broadly construed to effectuate this purpose.” Id.
Reading the EPGA as a whole, as this Court must do, see McCahan v Brennan, 492 Mich 730, 738-739; 822 NW2d 747 (2012), the Court rejects plaintiffs’ attempt to limit the scope of the EPGA to local or regional emergencies only. Informing this decision is the statement of legislative intent in MCL 10.32, which declares that the EPGA was intended to confer “sufficiently broad power” on the Governor in order to enable her to respond to public disaster or crisis. It would be inconsistent with this intent to find that “sufficiently broad power” to respond to matters of great public crisis is constrained by contrived geographic limitations, as plaintiffs suggest. The Court also notes that this “sufficiently broad” power granted by the Legislature references “the police power of the state[.]” MCL 10.32. In general, the police power of the state refers to the state’s inherent power to “enact regulations to promote the public health, safety, and welfare” of the citizenry at large. See Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d 1 (1985). It cannot be overlooked that the police power of the state, which undeniably pertains to the state as a whole, see, e.g., Western Mich Univ Bd of Control v State, 455 Mich 531, 536; 565 NW2d 828 (1997), was given to a state official, the Governor, who possesses the executive power of the entire state. See Const 1963, art 5, § 1. Plaintiffs’ attempts to read localized restrictions on broad, statewide authority given to this state’s highest executive official are unconvincing.
The Act has a much broader application than plaintiffs suggest. The Act repeatedly uses terms such as “great public crisis,” “public emergency,” “public crisis,” “public disaster,” and

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“public safety” when referring to the types of events that can give rise to an emergency declaration. See MCL 10.31(1); MCL 10.32. These are not terms that suggest local or regional-only authority. See Black’s Law Dictionary (11th ed) (defining public safety). See also Merriam-Webster Online Dictionary, <https://www.merriam-webster.com/dictionary/public> (accessed May 11, 2020) (defining “public” to mean “of, relating to, or affecting all the people of the whole area of a nation or state”) (emphasis added). Taking these broad terms and imposing limits on them as plaintiffs suggest would run contrary to MCL 10.32’s directive to broadly construe the authority granted to the Governor under the EPGA. See Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010) (explaining that it is “well established that to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.”). And in this context, it is apparent the EPGA employs broad terminology that empowers the Governor to act for the best interests of all the citizens of this state, not just the citizens of a particular county or region. It would take a particularly strained reading of the plain text of the EPGA to conclude that a grant of authority to deal with a public crisis that affects all the people of this state would somehow be constrained to a certain locality. Moreover, adopting plaintiffs’ view would require the insertion into the EPGA of artificial barriers on the Governor’s authority to act which are not apparent from the text’s plain language. To that end, even plaintiffs would surely not quibble that the broad authority bestowed on the Governor under the act would permit her to respond to an emergency situation that affected one county, or perhaps even multiple counties. Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA because, according to plaintiffs, rendering emergency assistance to the state’s entire citizenry is not an option under the EPGA. While plaintiffs generally contend there

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are localized or regionalized limitations on the Governor’s authority under the EPGA, they do not explain how to demarcate the precise geographic limitations on the Governor’s authority under the EPGA—and this is for good reason: there are no such limitations.
In arguing for a contrary interpretation of the scope of the Governor’s authority under the EPGA, plaintiffs selectively rely on parts of the statute and ignore the contextual whole. For instance, they focus on the notion that a city or county official may apply for an emergency declaration in order to support their assertion that the EPGA only applies to local or regional emergency declarations. In doing so, plaintiffs ignore that the same sentence permitting local officials to apply for an emergency declaration also authorizes two state officials—one of whom is the Governor herself—to apply for or make an emergency declaration. See MCL 10.31(1). Equally unpersuasive is plaintiffs’ fixation on the word “within” as it appears in MCL 10.31(1). Plaintiffs note that MCL 10.31(1) permits the Governor to declare a state of emergency in response to “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state” (emphasis added). According to plaintiffs, the use of the word “within” means that an emergency can only be declared at a particular location within the state, and precludes the state of emergency from being declared for the entire state. However, a common understanding of the word “within,” including the same definition plaintiffs cite, demonstrates the flaw in plaintiffs’ position. The word “within” is generally used “as a function word to indicate enclosure or containment.” Merriam-Webster’s Online Dictionary, <https://www.merriam-webster.com/dictionary/within> (accessed May 20, 2020). For instance, it can refer to “the scope or sphere of” something, such as referring to that which is “within the jurisdiction of the state.” Id. In other words, the term “within” refers to the jurisdictional bounds of the state. The authority to declare an emergency “within” the state is, quite simply, the authority to declare an emergency across the entire state.

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Plaintiffs next argue that, when the EPGA is read together with the EMA, it is apparent that the EPGA is not meant to address matters of statewide concern. In general, both the EPGA and the EMA grant the Governor power to act during times of emergency. “Statutory provisions that relate to the same subject are in pari materia and should be construed harmoniously to avoid conflict.” Kazor v Dep’t of Licensing & Regulatory Affairs, 327 Mich App 420, 427; 934 NW2d 54 (2019). “The object of the in pari materia rule is to give effect to the legislative intent expressed in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that construction should control.” In re AGD, 327 Mich App 332, 344; 933 NW2d 751 (2019) (citation and quotation marks omitted).
Here, when the EMA and the EPGA are read together, it is apparent that there is no conflict between the two acts even though they address similar subjects. While plaintiffs are correct in their assertion that the EMA contains more sophisticated management tools, that does not mean that the EPGA is limited to local and regional emergencies only. Nor does the fact that both statues apply to statewide emergencies mean that one act renders the other nugatory. Instead, the Court can harmonize the two statutes, see In re AGD, 327 Mich App at 344, by recognizing that while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal. The use of these enhanced features comes at some cost, however, because the EMA is subject to the 28-day time limit contained in MCL 30.405(3)-(4), whereas an emergency declaration under the less sophisticated EPGA has no end date. Finally, plaintiffs’ contentions regarding a conflict between the EMA and the EPGA are belied by MCL 30.417. That section of the EMA expressly states that nothing in the EMA was intended to “Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of

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the Michigan Compiled Laws . . . .” MCL 30.417(d). In other words, the EMA explicitly recognizes the EPGA and it recognizes that the Governor possesses similar, but different, authority under the EPGA than she does under the EMA.
Plaintiffs’ final attempt to assert that the EPGA was intended as a local or regional act is to point to what they describe as the history of the EPGA. In general, the legislative history of an act and the historical context of a statute can be considered by a court in ascertaining legislative intent; however, these sources are generally considered to have little persuasive value. See, e.g., In re AGD, 327 Mich App 342 (generally rejecting legislative history as “a feeble indicator of legislative intent and . . . therefore a generally unpersuasive tool of statutory construction”) (citation and quotation marks omitted). Here, the history cited by plaintiffs is particularly unpersuasive because, having reviewed the same, the Court concludes that it does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA. Nor have plaintiffs directed the Court’s attention to a particular piece of history that expressly supports their claim; they instead rely on mere generalities and anecdotal commentary. Finally, the EPGA presents no ambiguity requiring explanation through extrinsic historical commentary.
In an alternative argument, plaintiffs argue that, assuming the Governor’s ability to act under the EPGA gives her statewide authority, the executive orders issued pursuant to the EPGA are nevertheless invalid. According to plaintiffs, the Governor’s exercise of lawmaking authority under the orders runs afoul of separation of powers principles.
Plaintiffs’ constitutional challenge to the EPGA fares no better than their attempt to limit the Act’s scope. This Court must, when weighing this constitutional challenge to the EPGA, remain mindful that a statute must be presumed constitutional, “unless its constitutionality is

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readily apparent.” Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 59; 669 NW2d 845 (2003) (citation and quotation marks omitted). Indeed, “[t]he power to declare a law unconstitutional should be exercised with extreme caution and never where serious doubt exists with regard to the conflict.” Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997).
Const 1963, art 3, § 2 declares that “[t]he powers of government are divided into three branches: legislative, executive and judicial.” The Constitution dictates that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Id. The issue in this case concerns what plaintiffs have alleged is an unconstitutional delegation of legislative power to the Governor. While the Legislature cannot delegate its legislative power to the executive branch of government, the prohibition against delegation does not prevent the Legislature “from obtaining the assistance of the coordinate branches.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003) (citation and quotation marks omitted). As explained by our Supreme Court, “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).
In general, the Supreme Court has recognized three “guiding principles” to be applied in non-delegation cases:
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The various and varying detail associated with managing the natural resources has led to

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recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. Third, if possible the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority. [State Conservation Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976) (internal citations and quotation marks omitted).] Any discussion of plaintiffs’ non-delegation issue must acknowledge that the policy goals and the complexity of issues presented under the EPGA do not concern ordinary, everyday issues. Rather, as the title of the act and its various provisions reflect, the EPGA is only invoked in times of emergency and of “great public crisis,” and when “public safety is imperiled[.]” MCL 10.31(1). Hence, while the Governor’s powers are not expanded by crisis, the standard by which this Court must view the standards ascribed to the delegation at issue must be informed by the complexities inherent in an emergency situation. Blue Cross & Blue Shield, 422 Mich at 51; State Conservation Dep’t, 396 Mich at 309.
With that backdrop, and when viewing the EPGA in its entirety, the Court concludes that the Act contains sufficient standards and that it is not an unconstitutional delegation of legislative authority. At the outset, MCL 10.31(1) provides parameters for when an emergency declaration can be made in the first instance. The power to declare an emergency only arises during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” Id. In addition, the statute provides a process for other officials, aside from the Governor, to request or aid in assessing whether an emergency should be declared. See id. (allowing input from “the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police”). Therefore, the EPGA places parameters and limitations on the Governor’s power to declare a state of emergency in the first instance, which weighs against plaintiffs’

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position. Cf. Blue Cross & Blue Shield, 422 Mich at 52-53 (finding an unconstitutional delegation of legislative authority where there were no guidelines provided to direct the pertinent official’s response and where the power of the official was “completely open-ended.”).
Furthermore, the EPGA provides standards on what a Governor can, and cannot, do after making an emergency declaration. As for what she can do, 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) (emphasis added). The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. See, e.g., MCL 500.3107(1)(a) (describing, in the context of personal injury protection insurance, “allowable expenses” that consist of “reasonable” charges incurred for “reasonably necessary products, services and accommodations . . . .”). Thus, the Court rejects any contention that these terms are too ambiguous to provide meaningful standards. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority which permitted an administrative body to continue to employ an individual for such a period of time as was “necessary” provided a sufficient standard, under the circumstances). See also Blank v Dept’ of Corrections, 462 Mich 103, 126; 611 NW2d 530 (2000) (opinion by Kelly, J.) (finding a constitutionally permissible delegation of authority, in part, based on the enabling legislation constrained rulemaking authority to only those matters that were “necessary for the proper administration of this act.”). Finally, in addition to the above standards, the EPGA goes on to expressly list examples of that which a Governor can and cannot do under the EPGA. See MCL

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10.31(1) (providing a non-exhaustive, affirmative list of subjects on which an order may be issued); MCL 10.31(3) (containing an express prohibition on orders affecting lawfully possessed firearms). Accordingly, the EPGA contains some restrictions on the Governor’s authority and it provides standards for the exercise of authority under the Act.3
In sum, the Court concludes that plaintiffs’ challenges to the Governor’s authority to declare a state of emergency under the EPGA and to issue Executive Orders in response to a statewide emergency situation under the EPGA are meritless. Thus, and for the avoidance of doubt, while the Court concludes that the Governor’s actions under the EMA were unwarranted— see discussion below—the Court concludes that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.
EXECUTIVE ORDER 2020-68 WAS NOT AUTHORIZED BY THE EMA
Turning next to the Governor’s orders issued pursuant to the EMA, the Court again notes that the legitimacy of the initial declaration of emergency and disaster, Executive Order No. 202004, is unchallenged in this case. The extension of that declaration under EO 2020-33 is likewise agreed to be a legitimate exercise of gubernatorial power. This court is not asked to review the scope of myriad emergency measures authorized under either declaration. The laser focus of this case is the legitimacy of EO 2020-68, which re-declared a state of emergency and state of disaster under the EMA only one minute after EO 2020-66 cancelled the same. The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees.
3 The Court notes that Judge Kelly reached a similar conclusion, albeit in the context of denying a motion for preliminary injunction, in the case of Mich United for Liberty v Whitmer, Docket No. 20-000061-MZ.

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The EMA allows circumvention of the traditional legislative process only under extraordinary circumstances and for a finite period of time. Enacted in 1976, the EMA grants the Governor sweeping powers to cope with “dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). These powers include the authority to issue executive orders and directives that have the force and effect of law. MCL 30.403(2). The Governor may also, by executive order, “Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL 30.405(1)(a). Additionally, the Governor may issue orders regarding the utilization of resources; may transfer functions of state government; may seize private property—with the payment of “appropriate compensation”—evacuate certain areas; control ingress and egress; and take “all other actions which are which are necessary and appropriate under the circumstances.” See, e.g., MCL 30.405(1)(b)-(j). This power is indeed awesome.
The question presented is whether the Governor could legally, by way of Executive Order 2020-68, declare the exact states of emergency and disaster that she had, only one minute before, terminated. The Legislature answer with an emphatic, “No,” and the Governor offers an equally emphatic, “Yes.”
As with most contracts, the Legislature asserts that time is of the essence in the limits of the extraordinary power afforded the executive under the EMA. The Act is replete with references to timing. MCL 30.403 provides as follows:
The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation

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declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. [MCL 30.403(3) (emphasis added).]
Later the act addresses the duration of a “state of emergency,” and its extension under MCL
30.403(4):
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. [Emphasis added.]
The limitation of 28 days is repeated multiple times. A state of emergency or disaster, once
declared, terminates no later than 28 days after being initially declared. The Governor can
determine that the emergent conditions have been resolved earlier than 28 days. Alternatively, the
Governor may ask the Legislature to extend the emergency powers for a period of up to 28 days
from the issuance of the extension. Nothing in Act precludes legislative extension for multiple
additional 28-day periods. In this case the Governor stated in EO 2020-66 that she expressly
terminated the previously issued states of emergency and disaster—not because the disaster or
emergency condition ceased to exist—but because a period of 28 days had expired. In fact, EO
2020-66, the order that terminated the states of disaster and emergency under the EMA, expressly
acknowledged that the emergency and/or disaster had not subsided and still remained In this
respect, EO 2020-66 complied with MCL 30.403(3) and (4)’s directives that the Governor “shall,”

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after 28 days, “issue an executive order or proclamation declaring” that the state of emergency and/or disaster terminated.
However, the Governor argues that she may continue to exercise emergency powers under the EMA without legislative authorization in this case. She argues that she has a duty and the authority to do so because the Legislature failed to grant her the requested extension despite the fact that the emergent conditions continued to exist.
Neither party to this case denies that the COVID-19 emergency was abated as of April 30. No serious argument has been offered that had the Governor not issued EO 2020-68 that all of the emergency measures authorized by EO-33 would have terminated with the signing of EO 202066 on April 30 even if had the governor not vetoed SB 858, which purported to embody several of the expiring Executive Orders and which would not have been effective until 90 days later because the Legislature did not give that bill immediate effect. The Governor asserts she had a duty to act to address the void. She argues that MCL 30.403(3) and (4) compelled her, upon the termination of the states of emergency and disaster accomplished by way of time, to declare anew both states of emergency and disaster within minutes. The Governor makes this argument by emphasizing language in MCL 30.403(3) and (4) stating that, if the Governor finds that a disaster or emergency occurs, then she “shall” issue orders declaring states of emergency or disaster. Thus, argues the Governor, when the 28-day emergency and disaster declarations ended, but the disaster and emergency conditions remained, the Governor was compelled, irrespective of legislative approval, to re-declare states of emergency and disaster.
The EMA does not prohibit a governor from declaring multiple emergencies or disasters during a term of office or even more than on disaster at the same time. Indeed, the collapse of the

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dam at the Tittabawassee River sparked the issuance of a separate state of emergency and disaster during of this lawsuit. Clearly the collapse of the dam and the subsequent flooding was a new and different circumstance from the COVID-19 pandemic. Returning to the instant case, it could also be argued that the very fact that the Legislature had neither authorized the extension of the emergency powers of the Governor under the EMA nor put in place measures to address the emergent situation was itself a new emergency justifying gubernatorial action. However, the “new” circumstance was occasioned not by a mutation of the disease into something such as “COVID-20,” a precipitous spike in infection, or any other factor, except the Legislature’s failure to grant an extension.
Thus, while the Governor emphasizes the directive that she “shall” declares states of emergency and disaster, the Court concludes that the Governor takes these directives out of context and renders meaningless the legislative extension set forth in MCL 30.403(3) and (4). The Governor’s position ignores the other crucial “shall” in the statute. “After 28 days, the governor shall issue an executive order or proclamation declaring the state of” disaster or emergency terminated, “unless a request by the governor for an extension of the state of” disaster or emergency “for a specific number of days is approved by resolution of both houses of the legislature.” See MCL 30.403(3) (as to disasters); MCL 30.403(4) (as to emergencies). The language employed here is mandatory: The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it. See Smitter v Thornapple Twp., 494 Mich 121, 136; 833 NW2d 785 (2013) (explaining that the term “shall” denotes a mandatory directive). Stated otherwise, at the end of 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate”

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language is an affirmative grant of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. Nor does the statute permit the Governor to simply extend the same state of disaster and/or emergency that was otherwise due to expire. To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language. Whatever the merits of that might be as a matter of policy, that position conflicts with the plain statutory language. The Governor’s attempt to read MCL 30.403(2) as providing an additional, independent source of authority to issue sweeping orders would essentially render meaningless MCL 30.405(1)’s directive that such orders only issue upon an emergency declaration. It would also read into MCL 30.403(2) broad authority not expressed in the subsection’s plain language. See Robinson, 486 Mich at 21 (explaining that, when it interprets a statute, a reviewing court must “avoid a construction that would render part of the statute surplusage or nugatory”) (citation and quotation marks omitted). See also United States Fidelity & Guarantee Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009) (“As far as possible, effect should be given to every phrase, clause, and word in the statute.”). The Court is not free to “pick and choose what parts of a statute to enforce,” see Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 143; 892 NW2d 33 (2016), yet that is precisely what the Governor’s position has asked the Court to do. The language of MCL 30.403(3) and (4) requiring legislative approval of an emergency or disaster declaration should not so easily be cast aside.
Finally, and contrary to the Governor’s argument, the 28-day limit in the EMA does not amount to an impermissible legislative veto. See Blank v Dept’ of Corrections, 462 Mich 103, 113-114; 611 NW2d 530 (2000) (opinion by KELLY, J.) (declaring that, once the Legislature delegates authority, it does not have the right to retain veto authority over the actions of the

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executive). The Governor’s characterization of the 28-day limit as a legislative veto is not accurate. The 28-day limit is not legislative oversight or a “veto” of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated. That is, the Governor is afforded with broad authority under the EMA to make rules and to issue orders; however, that authority is subject to a time limit imposed by the Legislature. The Legislature has not “vetoed” or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.
CONCLUSION
IT IS HEREBY ORDERED that the relief requested in plaintiffs’ motion for immediate declaratory judgment is DENIED. While the Governor’s action of re-declaring the same emergency violated the provisions of the EMA, plaintiffs’ challenges to the EPGA and the Governor’s authority to issue Executive Orders thereunder are meritless.
This order resolves the last pending claim and closes the case.

Dated: May 21, 2020

________________________________ Cynthia Diane Stephens, Judge Court of Claims

 
 Case 1:20-cv-00414-PLM-PJG ECF No. 32 filed 06/05/20 PageID.1465 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,

Plaintiffs, vs.
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Case No. 1:20-cv-00414
Hon. Paul L. Maloney
PLAINTIFFS’ BRIEF REGARDING CERTIFICATION OF STATE-LAW ISSUES TO THE MICHIGAN SUPREME COURT

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov berelsr1@michigan.gov

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

Christopher M. Allen Joshua O. Booth John G. Fedynsky Joseph T. Froehlich Assistant Attorneys General for Defendants Witmer and Gordon P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 Allenc28@michigan.gov Buthj2@michigan.gov fedynsky@michigan.gov Froehlichj1@michigan.gov

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Introduction The Defendants have repeatedly asked this Court to permit the Michigan state courts to resolve the state-law issues that this Court proposes to certify to the Michigan Supreme Court. Although permanently abstaining from deciding the state-court issues would not be appropriate, the Plaintiffs agree that it would be appropriate to certify these issues to the Michigan Supreme Court in order to permit the state courts an opportunity to rule on them in the first instance. In the event that the Supreme Court does not accept the certified questions, then this Court will be able to resolve the state-law issues on the merits, having given the state courts an opportunity to rule on them.
Argument Local Civil Rule 83.1 authorizes this Court to certify an issue for decision to the Michigan Supreme Court. The local rule provides that the order of certification shall be accompanied by written findings that: (a) the issue certified is an unsettled issue of state law; (b) the issue certified will likely affect the outcome of the federal suit; and (c) certification of the issue will not cause undue delay or prejudice. Id. The order of certification must also include citation to authority authorizing the state court involved to resolve certified questions. Id. Finally, in cases certified to the Michigan Supreme Court, this Court must also approve a statement of facts to be transmitted to the Michigan Supreme Court by the parties as an appendix to the briefs that the parties will file in the Michigan Supreme Court. Id. Each of these requirements is or can be met here. I. The Michigan Supreme Court has authority to accept certified questions. First, it is abundantly clear that the Michigan Supreme Court has the authority to accept certified questions from this Court. See MCR 7.308(A)(2)(a). See also, e.g., In re Certified Question from U.S. Dist. Court for W. Mich., 825 N.W.2d 566, 572–73 (Mich. 2012) (Young, C.J.,
1

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dissenting) (“I continue to believe that this Court lacks the constitutional authority to issue advisory opinions other than as described in article 3, § 8 of Michigan's 1963 Constitution. My position regarding the Court’s constitutional authority did not prevail, and I accept that the Court has determined otherwise.”). II. The Court’s proposed questions are unsettled issues of state law.
This Court proposes to certify two questions of state law to the Michigan Supreme Court. (Order, DE 23, PageID.1092). The Defendants agree that these state-law issues are unsettled issues that the Michigan courts have not definitively resolved. In fact, the Defendants have repeatedly asked this Court to abstain from deciding these questions, arguing that these issues are “best left to the Michigan courts.” (Governor’s Motion to Dismiss, DE 24-2, PageID.1131; see also AG’s Motion to Dismiss, DE 27, PageID.1399-1400).
Although formal invocation of an abstention doctrine is not necessary in this case, the Plaintiffs agree that it would be appropriate under the circumstances to provide the state courts an opportunity to resolve these issues in the first instance through certifying the question to the Michigan Supreme Court. Specifically, the Plaintiffs agree with both of the Court’s proposed questions, with a slight edit to Question No. 1, as reflected in bold type below:
1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.
The fact that similar issues are currently percolating in the Michigan appellate courts does not obviate the need for certification. First, on June 4, 2020, the Michigan Supreme
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Court denied applications for leave to bypass the Michigan Court of Appeals and appeal directly to the Supreme Court in two cases challenging the Governor’s orders on state-law grounds, House of Representatives v. Whitmer, Michigan Supreme Court Docket No. 161377 (Exhibit 1, Order Denying Bypass), and Martinko v. Whitmer, Michigan Supreme Court Docket No. 16133 (Exhibit 2, Order Denying Bypass). Thus, the Michigan courts are not close to resolution of this issue.
Second, in the cases that are pending in the Michigan courts, the Defendants are actively urging the Michigan state courts to avoid ruling on the merits of the claims, arguing either that the plaintiffs lack standing or that their claims are moot. For example, in House of Representatives v. Whitmer, the Governor filed an answer and a cross-bypass application in which her lead argument was that the Legislature lacks standing to challenge her conduct under the Emergency Powers of the Governor Act (“EPGA”) and the Emergency Management Act (“EMA”). (Exhibit 3, Answer, at 13-19). If the Governor prevails on her standing argument in House of Representatives v. Whitmer, then the Michigan courts will never reach the merits of the state-law issues that are raised in that case. This is eminently possible. In fact, Justice Clement’s concurrence in the denial of the Legislature’s bypass application expresses concern that “the theory by which the Legislature asserts standing to bring this suit in the first place is entirely novel in Michigan.” (Exhibit 1, Order at 5 (Clement, J., concurring)).
Similarly, in Martinko v. Whitmer, the Governor filed an answer asserting that (1) the plaintiffs’ claims were all moot, because Governor Whitmer rescinded the particular executive orders that they challenged, and (2) the plaintiffs did not have standing to assert that the Governor’s executive orders violate Michigan non-delegation principles because those arguments were never raised in the trial court. (Exhibit 4, Answer, at 11-12, 28-29). As indicated, the Michigan Supreme Court agreed with the Governor and denied the bypass application. (Exhibit 2).
3

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In short, the Defendants are actively arguing in those other cases that the Michigan courts should not address the merits of the state-law claims that this Court proposes to certify to the Michigan Supreme Court. Even if the Michigan Legislature’s lawsuit makes its way back to the Michigan Supreme Court, it is very possible that the Michigan courts will deny the Legislature’s challenge to the Governor’s executive orders for lack of standing without reaching the merits of the state constitutional issues. Certifying those questions to the Supreme Court in this case will provide the Supreme Court the opportunity to reach the merits of those issues, in the event that the Legislature’s lawsuit is determined to be procedurally defective.
Given the Defendants’ position that the state-law claims should be resolved in the state courts, certifying the questions to the Supreme Court provides the state courts with the most ready opportunity to do what the Defendants wish. III. The certified issues will affect the outcome of the Plaintiffs’ claims.
There is no real dispute that the certified issues will affect the Plaintiffs’ claims for declaratory relief on Counts One and Two of their complaint. If the Michigan Supreme Court finds that the Governor may not exert her emergency powers under the EPGA or the EMA to issue COVID-19 related executive orders after April 30, 2020, then the Plaintiffs will be entitled to judgment in their favor on Counts One and Two.
Defendants have previously argued—and presumably will argue again—that the Plaintiffs’ claims are moot. As the Plaintiffs have already explained, that is not true.
First, the Governor continues to issue new executive orders, invoking her authority under the EPGA and the EMA and imposing new requirements on the Plaintiffs. As of the date of this filing, medical providers like Grand Health Partners, Wellston Medical Center, and Primary Health Services (collectively, the “Providers”) are permitted to provide non-essential medical treatment, but may only do so consistent with Executive Order 2020-97. That executive order
4

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requires that the Providers comply with a host of new sanitation and workflow requirements. (EO 2020-97, DE 21-1, PageID.1073-1074). Outpatient healthcare facilities like the facilities operated by the Providers must comply with no fewer than 17 additional sanitation requirements that are specific to medical treatment facilities. (Id., PageID.1082-1083).
The Governor specifically invoked her powers under the EPGA and the EMA in order to issue Executive Order 2020-97. (Id., PageID.1072-1073). If the Governor may not properly invoke her powers under the EPGA or the EMA, then Executive Order 2020-97 is invalid and may not be applied to the Plaintiffs. The Governor continues to assert her authority under the EMA and the EPGA to issue executive orders that proscribe certain aspects of the Plaintiffs’ conduct; the Plaintiffs continue to claim that the Governor may no longer issue orders under the EMA and the EPGA related to the COVID-19 pandemic and that the orders that apply to them are not enforceable. Given these circumstances, it is not evident why the Defendants continue to argue that this case is moot. It unmistakably is not.
Second, as Plaintiffs previously explained in greater detail (Reply, DE 21, PageID.1049-1052), Governor Whitmer’s rescission of her prior executive orders that specifically precluded the Plaintiffs from providing or receiving any non-essential medical treatment whatsoever is merely a voluntary cessation that does not moot the case, because it is eminently capable of reversal and repetition. “[I]f the discretion to effect the change lies with one agency or individual, or there are no formal processes required to effect the change, significantly more than the bare solicitude itself is necessary to show that the voluntary cessation moots the claim.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 768-69 (6th Cir. 2019). That is clearly the case here.
Justice Clement made a similar point when explaining her vote to deny the Michigan Legislature’s bypass application: “Until a vaccine for COVID-19 is invented, our society
5

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will be living with the risk of the spread of this disease and the argued necessity of emergency measures to mitigate that spread. There is little prospect of these disputes being rendered moot . . .” (Exhibit 1, Order at 5 (Clement, J., concurring)). The Defendants’ argument that the Plaintiffs’ claims are moot is not a valid reason to oppose certification to the Michigan Supreme Court of the state-law questions that this Court has proposed. IV. Certification will not cause undue delay or prejudice.
The Plaintiffs have an interest in speedy resolution of this matter. Nevertheless, given the relatively streamlined process for briefing certified questions before the Michigan Supreme Court, see MCR 7.308(A)(3), the Plaintiffs have not identified any undue delay or prejudice that would be occasioned by certifying the Court’s proposed questions to the Michigan Supreme Court. V. The relevant facts are undisputed.
Both Local Civil Rule 83.1 and MCR 7.308(A)(2)(b)(ii) require a statement of facts to be submitted to the Michigan Supreme Court. The facts relevant to the Court’s proposed questions are undisputed.
The Plaintiffs propose that, for purposes of certifying questions to the Michigan Supreme Court, the statement of facts should include the facts as recounted in the following Paragraphs of the Verified Complaint: 19 through 25, and 29 through 80. (Complaint, DE 1, PageID.1-21). The Plaintiffs also propose including these additional relevant facts:
1. During a press conference on May 1, 2020, Governor Whitmer admitted that it was no longer necessary to prohibit non-essential medical procedures. Governor Whitmer stated, “We are encouraging anyone who has been holding off on surgery that really needs to be done, to get that scheduled and to proceed. Early on, it was really necessary because we had so few N95 masks, and gloves, and all of the important things that we needed to keep people safe as we were dealing with this influx of COVID-19 patients, so that we could use all of that PPE. Now, we’ve been able to build up enough that we can proceed with these other procedures, and we are 6

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encouraging hospital systems to move forward with that. . . . [A]s for oncology surgeries, as for knee surgeries, those are things that should be scheduled and we’re encouraging people to get that done.”
2. On June 1, 2020, Governor Whitmer issued Executive Order 2020-110 (“EO 2020-110”), asserting her authority under both the EPGA and the EMA and imposing various requirements on individuals and businesses in light of the COVID-19 pandemic.
3. Paragraph 3 of EO 2020-110 provides, “Any business or operation that requires its employees to leave their home or place of residence for work is subject to the rules on workplace safeguards in Executive Order 2020-97 or any order that may follow from it.”
4. Governor Whitmer issued Executive Order 2020-97 (“EO 2020-97”) on May 21, 2020, asserting her authority under both the EPGA and the EMA.
5. Paragraph 1 of EO 2020-97 requires all businesses with in-person workers to comply with several specific workplace sanitation and safety protocols, as outlined in the order, including social distancing measures, personal protective equipment protocols, and employee screening protocols.
6. Paragraph 9 of EO 2020-97 requires outpatient healthcare facilities and other medical providers to comply with additional industry-specific sanitation and safety protocols, including specific waiting room procedures, limitations on the number of patient appointments, and enhanced telehealth and telemedicine procedures.
7. Grand Health Partners, Wellston Medical Center, and Primary Health Services (collectively, the “Providers”) operate outpatient healthcare facilities and medical offices and are required to comply with EO 2020-110 and EO 2020-97.
In the event that additional input on or stipulations regarding the statement of facts
would be useful to the Court, the Plaintiffs would welcome the opportunity to discuss with the
Court the appropriate contours of the statement of facts.
Conclusion
The Plaintiffs agree that it would be appropriate to certify the following questions
to the Michigan Supreme Court:
1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority
7

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after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.
MILLER JOHNSON Attorneys for Plaintiffs

Dated: June 5, 2020

By /s/ James R. Peterson
James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org

8
MJ_DMS 31900651v2

Case 1:20-cv-00414-PLM-PJG ECF No. 32-1 filed 06/05/20 PageID.1474 Page 1 of 19
EXHIBIT 1

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Order

Michigan Supreme Court Lansing, Michigan

June 4, 2020 161377 & (7)(13)(14)(15)(18) HOUSE OF REPRESENTATIVES and SENATE,
Plaintiffs-Appellants/ Cross-Appellees, and

Bridget M. McCormack,
Chief Justice
David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman Brian K. Zahra
Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh,
Justices

JOHN F. BRENNAN, MARK BUCCHI, SAMUEL H. GUN, MARTIN LEAF, and ERIC ROSENBERG,
Intervenors-Appellants, v
GOVERNOR, Defendant-Appellee/ Cross-Appellant.
_________________________________________/

SC: 161377 COA: 353655 Court of Claims: 20-000079-MZ

On order of the Court, the motions for immediate consideration and the motion to file brief amicus curiae are GRANTED. The application for leave to appeal prior to decision by the Court of Appeals and the application for leave to appeal as crossappellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals. The prospective intervenors’ motion to docket is DENIED.

BERNSTEIN, J. (concurring).

I agree with my fellow Justices that this case presents extremely significant legal issues that affect the lives of everyone living in Michigan today. And that is exactly why I join the majority of this Court in denying the parties’ bypass applications—because I believe that a case this important deserves full and thorough appellate consideration.

Additionally, with the issuance of Executive Order No. 2020-110, “shelter in place” is no longer mandated in the state of Michigan. While recognizing that not all restrictions have been lessened (and acknowledging the possibility of future restrictions being reimplemented), I believe the parties and this Court would benefit most from having the vital constitutional issues of this case fully argued in the Court of Appeals before receiving a final determination from our Court. See League of Women Voters v Secretary of State, 505 Mich 931 (2019) (denying the plaintiffs’ bypass application). Cases of the ultimate magnitude, such as this one, necessitate the complete and comprehensive consideration that our judicial process avails.

The significance of this case is undeniable. And with many of the restrictions on

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2
daily life having now been lifted, our eventual consideration of these issues must receive full appellate consideration before our Court can most effectively render a decision on the merits of this case.
CLEMENT, J. (concurring).
In this case, the Legislature advances several arguments asking us to hold that a law it enacted 75 years ago, 1945 PA 302, codified at MCL 10.31 et seq., is unconstitutional or the Governor’s actions are beyond the statutory authority contained in that statute, and that the Governor’s executive orders issued under that statute in response to the COVID-19 pandemic are consequently invalid. Contrary to what is suggested by the dissents from the Court’s order today, the Legislature is not litigating the civil liberties of all Michiganders. Moreover, to read the dissents, one might be left with the impression that this Court has declined altogether to decide this case. It has not—it has only declined to decide the case before the Court of Appeals does. I believe this is both compelled by our court rules and advisable as a matter of prudence. Because I believe the Court neither can nor should review this case before the Court of Appeals does, I concur with the Court’s order denying these bypass applications.
I believe, first, that the rules governing bypass applications are not satisfied here. Given that “the supreme court shall have . . . appellate jurisdiction as provided by rules of the supreme court,” Const 1963, art 6, § 4, whether the rules have been satisfied is seemingly of its own jurisdictional and constitutional significance. Our rules provide that, to grant a bypass application, “[t]he application must show” either that “delay in final adjudication is likely to cause substantial harm” or that “the appeal is from a ruling that . . . any . . . action of the . . . executive branch[] of state government is invalid[.]” MCR 7.305(B)(4)(a) and (b). I do not believe the Legislature satisfies either requirement. In its bypass application, the Legislature argues that the “substantial harm” prong is satisfied because “Michiganders . . . are living under a cloud of ambiguity” given the debate over whether the Governor’s executive orders responding to the COVID-19 pandemic are actually legal. But this case is not a class action filed on behalf of all Michiganders to litigate their civil liberties—it is a suit filed by the Legislature asserting that certain of its institutional prerogatives have been infringed by the Governor’s actions. The Legislature shows no substantial harm to the Legislature caused by going through the ordinary appellate process. As an institution, it is exactly as free to enact legislation—whether responsive to this pandemic or otherwise—as it was before any of the Governor’s executive orders were entered.1 As to the “invalidity of executive action”
1 Justice VIVIANO argues that the Legislature’s separation-of-powers argument, if vindicated, would be a “substantial harm,” and that “[a]t the bypass stage, we need not decide the merits of the Legislature’s separation-of-powers argument.” I agree that we need not decide those merits, and we are not by denying this bypass application. Given the novelty of the Legislature’s standing argument, however, I do not believe it can show

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3
prong, the Legislature argues that “this appeal involves a ruling that has already declared” Executive Order No. 2020-68 invalid. However, the Legislature does not appeal that ruling—rather, it appeals the ruling that Executive Order No. 2020-67 and its successors are valid. In my view, the Legislature’s inability to satisfy MCR 7.305(B)(4) is fatal to its bypass application.2 Since the Michigan Constitution commits to us the ability to prescribe our own appellate jurisdiction, we are obliged to scrupulously adhere to the restrictions we have imposed on ourselves if we are to sit in judgment of the constitutionality of 1945 PA 302 and the Governor’s actions under it.3
that it has suffered a substantial harm at this point with the certainty required to justify the extraordinary act of granting a bypass appeal. After Court of Appeals review, the Legislature would need to show only that either “the issue involves a substantial question about the validity of a legislative act,” “the issue has significant public interest and the case is one . . . against . . . an officer of the state . . . in the officer’s official capacity,” or that “the issue involves a legal principle of major significance to the state’s jurisprudence.” MCR 7.305(B)(1) through (3). I predict these showings will be much easier to make.
2 Justice ZAHRA argues that “even assuming there is a shortcoming in the Legislature’s application, that defect is cured by the Governor’s” bypass cross-appeal, but I disagree. The court rules list what an application for leave to appeal “must show,” MCR 7.305(B), and the Legislature’s application does not make the required showing. There is no indication under the rule that a party who fails to make a required showing can have its application rehabilitated by the other side. I am also unpersuaded by Justice VIVIANO’s citation of the rules of the Supreme Court of the United States. Justice VIVIANO does not deny that the language used there is different from our rules and requires a showing only “that the case is of such imperative public importance as to justify deviation from normal appellate practice . . . .” Sup Ct Rule 11. Our general rules governing leave to appeal require a similar showing, see MCR 7.305(B)(1) through (3), but for a bypass application our rules require the additional showing, beyond the importance of the issues, of either substantial harm or that the case is an appeal from a ruling that certain legislative or executive actions are invalid, MCR 7.305(B)(4). I do not believe such a showing is made here. Nor do I believe that the decisions of other state supreme courts, with different court rules, should control our application of our court rules.
3 Justice VIVIANO asserts that “[i]t is indisputable that our Court has jurisdiction over this case,” but with a plurality of this Court concluding otherwise, it is plainly disputable. An application “must show” the items included in the list. MCR 7.305(B). Echoing that language, commentary on our rules also characterizes it as mandatory. See GervilleRéache, Expediting Review, § 7.23, p 199 in Michigan Appellate Handbook (Shannon & Gerville-Réache eds, 3d ed, January 2018 update) (remarking that a bypass application “must show” the grounds listed in MCR 7.305(B)(4)). Moreover, the original form of the rule provided only that bypass applications show that “delay in final adjudication is likely to result in substantial harm”; the additional option in MCR 7.305(B)(4)(b) that a bypass

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I also concur with denying the Governor’s bypass cross-appeal. “It is a general rule in this state . . . that only a party aggrieved by a decision has a right to appeal from that decision,” meaning that “ ‘[a] party who could not benefit from a change in the judgment has no appealable interest.’ ” Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 225-226 (1976) (citation omitted). It is, at minimum, uncertain to me whether the Governor is aggrieved by the decision of the Court of Claims such that she would have appellate standing at this juncture. On the one hand, the Court of Claims ruled that EO 2020-68 was an invalid evasion of the requirement under MCL 30.403(3) and (4) of the Emergency Management Act (EMA), MCL 30.401 et seq., that the Legislature approve disaster and emergency declarations after 28 days; invalidating EO 2020-68 falls within the terms of MCR 7.305(B)(4)(b) and is arguably the sort of appealable interest an appealing party must possess. However, the Court of Claims also ruled that MCL 10.31(1) was an adequate basis for all of the Governor’s substantive orders that have purported to regulate much of life in Michigan after April 30, 2020.4 Because no substantive regulation issued by the Governor has been held invalid, I question whether the Court of Claims’ ruling that EO 2020-68 invalidly evaded the EMA is anything more than an advisory opinion.5 And, because “it is only opinions issued by the Supreme
application can also show that it is an appeal from a ruling that various forms of law or government action are invalid was added in 2002. See 466 Mich lxxxvi, lxxxix (2002). Since such a judicial declaration would already have fallen within the grounds listed in MCR 7.305(B)(1) through (3), the fact that MCR 7.305(B)(4)(b) was added to MCR 7.305(B)(4) indicates that we understood it to be mandatory for bypass applications; otherwise, it would be redundant of what is already stated in MCR 7.305(B)(1) through (3). Our past practice also indicates it is mandatory, as we have denied bypass applications on the basis that the grounds in the rule were not satisfied. See White v Detroit Election Comm, 495 Mich 884 (2013); Barrow v Detroit Election Comm, 495 Mich 884 (2013). (Note that at the time White and Barrow were decided, this requirement was found at MCR 7.302(B)(4). It was moved to MCR 7.305(B)(4) as part of a general rewrite of the rules governing practice in this Court. See 497 Mich xcxi, cxcv (2015).)
4 The Legislature approved an extension of the Governor’s initial emergency declaration under the EMA until April 30, see 2020 SCR 24, but did not adopt further extensions.
5 On the other hand, the Governor may have a viable contingent cross-appeal, in which she challenges the decision of the Court of Claims to the extent that the appellate courts reverse the Court of Claims’ decision upholding her executive orders under MCL 10.31(1). If “the cross-appellant, like any appellant, must be an aggrieved party in some respect, meaning it must be able to identify a concrete and particularized injury that can be redressed in the context of the cross-appeal,” Rose, Appeals of Right in the Court of Appeals, § 4.46, p 100, in Michigan Appellate Handbook (Shannon & Gerville-Réache eds, 3d ed, January 2018 update), it may be that the Governor’s interest in maintaining any cross-appeal would be contingent on the outcome of the Legislature’s appeal. Given

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Court and published opinions of the Court of Appeals that have precedential effect under the rule of stare decisis,” Detroit v Qualls, 434 Mich 340, 360 n 35 (1990), the Court of Claims’ remarks about EO 2020-68 will not control future litigation over the propriety of the Governor’s actions under the EMA—even future COVID-19 litigation.6 The Governor appears aware of this reality, because when she announced a subsequent extension of the COVID-19 state of emergency in Executive Order No. 2020-99, she continued to declare emergencies under both MCL 10.31(1) and—“[s]ubject to the ongoing litigation”—the EMA. Given my qualms, I am not convinced that Justice ZAHRA is correct to allege that the Governor’s bypass cross-appeal “cure[s]” any defects in the Legislature’s application. I am also unmoved by the fact that both parties ask us to grant these bypass applications. This Court writes the court rules; I do not believe the parties can rewrite the rules for us by their mutual agreement so as to bootstrap their way to jurisdiction.
I also do not believe it would be prudent to hear this case at this juncture. The statutes at issue have seen very little litigation arise under them, meaning there is little on-point authority. Moreover, the theory by which the Legislature asserts standing to bring this suit in the first place is entirely novel in Michigan. Further appellate review and development of the arguments will only assist this Court in reaching the best possible answers.7 Until a vaccine for COVID-19 is invented, our society will be living with the
these uncertainties, however, at minimum I do not believe it would be wise to exercise any discretion we may have to hear this case without allowing it full appellate review. For all these reasons, I do not think the Governor’s bypass cross-appeal rehabilitates the Legislature’s defective initial bypass application.
6 Justice VIVIANO questions whether my reasoning renders the bypass appeal provision nugatory given that, in bypassing the Court of Appeals, a party will necessarily “be appealing a nonbinding decision.” But this is clearly incorrect. Had the Governor been told that her substantive executive orders were invalid, she would have been ordered by a court to stop doing something she was doing, and exposed to contempt sanctions if she did not, without regard to whether the reasoning was binding on future disputes. I question whether the Court of Claims’ ruling here aggrieved the Governor because it essentially answered the hypothetical question of whether her executive orders would be valid if MCL 10.31(1) were not an adequate basis for them. Such a ruling does not appear to control her current orders, nor is its reasoning binding on future disputes. It is, at minimum, a sufficiently uncertain question that I do not believe this Court can properly predicate its review of this case on this foundation.
7 As Justice VIVIANO points out in his dissent, there are numerous cases relating to COVID-19 making their way through our state and federal courts. While many of these cases raise issues distinct from those raised by the Legislature in this case, in at least one, the Court of Appeals has granted leave to appeal on a very similar issue—“whether the trial court abused its discretion in ruling that plaintiff’s claim regarding the

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risk of the spread of this disease and the argued necessity of emergency measures to mitigate that spread. There is little prospect of these disputes being rendered moot, and I have little doubt that the Court will take them up in the future.
I also disagree that this Court should heavy-handedly direct the Court of Appeals in its management of this litigation. First of all, if there is a need for expedited consideration, the parties are free to request it from the Court of Appeals, which is better positioned to know how best to balance the need for expeditious review with the resources it has available to scrutinize the arguments being made. I disagree with Justice VIVIANO that the Court of Appeals will simply put this case on any “conveyor belt,” and I believe they will recognize “this is no ordinary case.” Second, the cases in which we most often direct expedited review are election cases in which the parties have externally imposed deadlines they must satisfy to submit paperwork or print ballots. See, e.g., League of Women Voters v Secretary of State, 505 Mich 931 (2019). Third, I believe many of the observations that justify denying this bypass application also justify declining to order an extraordinary schedule in the Court of Appeals. Justice ZAHRA argues that “the people of this state have a great interest in the final disposition of these issues,” but the people of this state are not a party to the case—the Legislature is, suing in its institutional capacity and arguing that its prerogatives are being violated. Until a final judicial resolution of these issues is reached, the Legislature is free in the interim to avail itself of the ordinary legislative process under the Constitution. That this Court has resolved this bypass application in less than two weeks is, I believe, evidence enough that we are treating these issues with appropriate urgency.
As noted, the issue before us is not whether we will ever decide these issues, but rather whether we will decide them before the Court of Appeals has considered them. Because I conclude that we neither can nor should grant these bypass applications, I concur with our order denying them.
MCCORMACK, C.J., and CAVANAGH, J., join the statement of CLEMENT, J.
MARKMAN, J. (dissenting).
I dissent from the majority’s decision to deny the parties’ applications to bypass the Court of Appeals in order to expedite the final resolution of the present dispute. Indeed, in all likelihood, the consequence of our decision today will be to ensure that this Court never issues a meaningful decision concerning the nature and required procedures of the emergency authority of this state. For the following reasons, I would grant these
unconstitutionality of the [emergency powers of the governor act], MCL 10.31 et seq., was unlikely to succeed.” Mich United for Liberty v Governor, order of the Court of Appeals, entered May 29, 2020 (Docket No. 353643).

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applications.
First, I would grant the applications because they pertain to an issue of the greatest practical importance to the more than 10 million people of this state: the validity of executive orders declaring a state of emergency and thereby enabling a single public official to restrict and regulate travel, assembly, business operations, educational opportunities, freedoms and civil liberties, and other ordinary aspects of the daily lives of these people, including matters of crime and punishment and public safety. To put it even more specifically, the present applications place into question the entirety of the processes and procedures by which the executive orders that have defined nearly every minute, and nearly every aspect, of the lives of “we the people” of Michigan for more than the past two months were fashioned into law.
Second, I would grant the applications because, notwithstanding their vast differences in apprehending the legal and constitutional preconditions required of an emergency order, the parties commonly argue that this Court should grant their bypass applications in light of the profound significance and practical impact of the present emergency orders.
Third, I would grant the applications because they implicate a “case or controversy” of the greatest historical consequence between the two representative and accountable branches of our state government: each in concurrence seeking the counsel of the third branch as to what is demanded by the constitutional charter that has guided the people’s government for the past 185 years. The Governor contends that her office possesses the authority to issue the executive orders in response to the present emergency, while the Legislature in response contends that her office lacks such authority absent its own participation. Put simply, what is at issue is how the extraordinary emergency powers of government are to be invoked and how the decisionmakers of our two most fundamental constitutional institutions are respectively to be engaged.
Fourth, I would grant the applications because time is an altogether relevant consideration to what is required of this judiciary. Our state continues in the midst of an emergency in which both the lives and the liberties of its people are being lost each day. By today’s action, it is unlikely that this Court will ever decisively resolve the present dispute and thus that whatever errors or excesses may have been made in the course of the present emergency will never be pronounced or remedied but left only to be repeated on the occasion of what inevitably will arise some day as our next emergency.
Fifth, I would grant the applications because this case cries out for the most expedited and final review of the highest court of this state. If there is a matter, if there is an obligation, that compels the most urgent action of this Court, it is the present matter, our present obligation. This case defines the very purpose and the fundamental

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responsibility of a supreme court of this union of states. By our decision to deny the applications for bypass, we bypass an exercise of authority to decide what is perhaps the most substantial dispute ever presented to this Court, not only diminishing our standing among the judicial institutions of our federal system but diminishing our relevance within the judicial institutions of this state itself.
ZAHRA, J., joins the statement of MARKMAN, J.
ZAHRA, J. (dissenting).
I dissent from this Court’s order denying both litigants’ applications for leave to appeal from the Court of Claims, thereby leaving intact without immediate review the Governor’s various emergency orders issued in response to the COVID-19 pandemic and the Court of Claims order ruling in part that the Governor acted erroneously under MCL 30.401 et seq. I would grant the applications and decide the matters forthwith. I also dissent from this Court’s inexplicable failure to direct the Court of Appeals to hear this case on an expedited basis. This case presents palpable constitutional questions that are of compelling interest to every resident, business, and employer in Michigan. The instant matter is arguably the most significant constitutional question presented to this Court in the last 50 years. By granting both applications, this Court could put to rest with finality whether and to what extent the legislation on which the Governor relied to issue the serial emergency COVID-19 orders remains a valid source of legal authority for those orders. Admittedly, deciding these difficult questions is no easy task. But the people of this state rightly demand that this Court resolve such difficult questions. Because each resident’s personal liberty is at stake, it is emphatically our duty to decide this case. I dissent from the Court’s failure to immediately undertake this duty.
Life for people throughout Michigan was turned on its head when on March 10, 2020, in response to the COVID-19 pandemic that threatened widespread contagion, serious and sometimes fatal illness, and a critical overload to our health system, the Governor issued Executive Order No. 2020-4, declaring a state of emergency under the authority of two separate statutory delegations of emergency authority: 1945 PA 302, known as the “emergency powers of the governor act” (EPGA), MCL 10.31 et seq.; and the Emergency Management Act (EMA), MCL 30.401 et seq. The EMA carries a 28-day limit on the amount of time in which the Governor can issue orders under a state of emergency before the act requires the Governor to declare an end to the emergency, unless both houses of the Legislature extend the period through a resolution.8
8 MCL 30.403(3). The Governor, however, argues that the Court of Claims erred by concluding that she cannot issue new orders reinstituting the effect of her prior orders at the end of each order issued under the EMA.

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Over the next several weeks, the Governor issued numerous additional statewide orders generally requiring people to stay at home unless their departure from home was essential, closing all nonessential9 businesses, closing all schools before the end of the school year, and seriously restricting travel, assembly, and other aspects of daily life. Law and nonemergency medical offices throughout Michigan were closed indefinitely. Both houses of the Michigan Legislature granted the Governor an extension of authority to April 30, 2020, but neither the House of Representatives nor the Senate passed a resolution to grant any further extension. On the day the EMA expressly required the declaration of emergency to be rescinded, the Governor rescinded the declaration and, within minutes, declared another statewide emergency on the basis of COVID-19, ordering that all the previous orders should now be considered effective under the new order. The Governor separately declared a state of emergency under the EPGA and ordered that all previous orders should be considered effective under that declaration as well.
People throughout Michigan were understandably frustrated over their inability to leave home to, among other things, work, engage in commerce, obtain preventative health care, visit friends and family, and maintain their personal appearance with salon and grooming services. Sporadic peaceful protests broke out throughout the state in which some residents practiced civil disobedience. The political branches of government divided over the issue. The Legislature believed it should be permitted a seat at the table in crafting emergency orders, and the Governor proclaimed unilateral authority to act.
The Michigan House of Representatives and the Michigan Senate sued the Governor in the Court of Claims, seeking a declaratory ruling that the Governor’s authority under the EMA had expired and that the EPGA pertained only to local matters and did not authorize a statewide declaration of emergency. The Governor responded that each source of statutory authority continued to provide her with the power to issue orders for the protection of the public health. The Court of Claims agreed with the Legislature that the Governor’s authority under the EMA had expired, but held that the EPGA granted the Governor independent authority to issue orders that would protect lives and control the emergency situation created by COVID-19. That same day, the Legislature filed an application for leave to appeal in the Court of Appeals and filed in this Court an application for leave to appeal under MCR 7.305(B)(4), which permits “an appeal before a decision of the Court of Appeals.”
The Governor filed a brief in response to the Legislature’s application in this Court as well as an application for leave to appeal challenging two holdings of the Court
9 Many of the Governor’s orders distinguished essential from nonessential activity. Still, in other areas, the people were left to wonder whether certain activities in which they wished to engage were permitted under the various orders. See note 3 of this statement.

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of Claims: (1) the conclusion that the Legislature has standing to bring a declaratory action, and (2) the holding that Executive Order No. 2020-68 was invalid because the Governor’s authority to act under the EMA had expired.
Significantly, both of our coequal branches of government (the parties to this litigation) recognize the gravity of this matter and have asked this Court to resolve the constitutional questions before the Court without the benefit of intermediary (and prolonged) review from our Court of Appeals. Because MCR 7.305(B)(4) is perfectly satisfied,10 this Court should forthwith decide the following three questions:

10 Not only would I accept the parties’ olive branch and address this matter to maintain comity within our state government, our court rules, namely MCR 7.305(B)(4), emphasize this Court’s defined role to determine matters in which:

(a) delay in final adjudication is likely to cause substantial harm, or

(b) the appeal is from a ruling that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branches of state government is invalid[.]

My concurring colleagues, by contrast, believe a bypass of the Court of Appeals is not warranted because the Legislature has failed to satisfy the requirements of MCR 7.305(B)(4). In arguing its case to bypass the Court of Appeals, the Legislature asserts:

Delaying final adjudication would do “substantial harm,” as citizens and lawmakers would be left in a state of uncertainty at a time when confident decision-making is a requirement for survival. Michiganders are living under and attempting to interpret orders that never should have been implemented over their Legislature’s objection; at the very least, they are living under a cloud of ambiguity that can be rectified by this Court. MCR 7.305(B)(4)(a). The ultra vires nature of the Governor’s actions puts at risk people who are relying on governmental direction to guide their conduct. Lastly, this appeal involves a ruling that has already declared one related “action of the . . . executive branch[] of state government invalid.” MCR 7.305(B)(4)(b). [Alterations in original.]

I am persuaded that the requirements of MCR 7.305(B)(4) are satisfied. As

representatives of the people, the Legislature clearly has an interest in providing certainty

“at a time when confident decision-making is a requirement for survival.” It is no secret

that many residents and businesses have struggled to understand the Governor’s

emergency executive orders related to the COVID-19 virus. See DesOrmeau, After 102

Executive Orders, Confusion is Commonplace on What’s Allowed in Michigan and What

Isn’t

<https://www.mlive.com/public-interest/2020/05/after-101-executive-orders-

confusion-is-commonplace-on-whats-allowed-in-michigan-and-what-isnt.html>

(accessed June 2, 2020) [https://perma.cc/K5WK-4RCY]. Further, the Governor makes

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(1) whether the Michigan Senate and the Michigan House of Representatives have standing in this case to seek declaratory relief in the Court of Claims,
(2) whether the Governor has continuing authority under the Emergency Management Act (EMA), MCL 30.401 et seq., to issue emergency executive orders related to the COVID-19 virus, and
(3) whether the Governor has continuing authority under the emergency powers of the governor act (EPGA), MCL 10.31 et seq., to issue emergency executive orders related to the COVID-19 virus.
The members of this Supreme Court, Michigan’s court of last resort, have been elected to serve as the final arbiters of law and constitutional questions that are of significant public interest and importance to our state. No issue is of greater public interest or importance than the resolution of whether the Governor was within her constitutional authority to deprive the 10-million-plus residents and the thousands of business owners of Michigan of their personal freedom and economic liberty. Unlike the legislative and executive branches of government, which make and enforce laws through a political process, the judiciary is the nonpolitical branch of government charged with the extremely limited but all-important role of interpreting only those laws and constitutional questions presented in cases and controversies brought to the Court by adversaries in litigation. It is exactly because this Court is the pinnacle of the apolitical branch of government and limited in the scope of its duties that the people trust and accept our resolution of disputes, even when we are sharply divided when rendering our opinions. This is all the more true where, as here, the case presents a constitutional question of significant magnitude that divides our political branches of government. The people of Michigan expect this Court to resolve this dispute. We should do so.
And yet, beyond declining to grant the Legislature’s application, the Court’s majority also fails to order the Court of Appeals to hear and resolve these issues on an expedited basis. I make no attempt to explicate this failure. Again, both of our coequal branches of government have asked for these significant constitutional questions to be answered as soon as possible. And the people of this state have a great interest in the final disposition of these issues as soon as possible. To the extent a majority of this Court
no attempt to rebut the Legislature’s assertion that it has been particularly harmed by the Governor’s usurpation of Legislative power through her emergency executive orders.
Moreover, even assuming there is a shortcoming in the Legislature’s application, that defect is cured by the Governor’s application, which expressly invites a challenge to the Court of Claims’ holding that the Governor’s actions were invalid under the EMA. See MCR 7.305(B)(4)(b). Again, both of our coequal branches of government want these questions answered. We should honor their requests.

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has concluded that the wisdom of our intermediate appellate court is essential to our resolution of these weighty issues, there is no reason why this Court should not order the Court of Appeals to hear and decide these questions forthwith. The Court’s failure to, at a minimum, require the Court of Appeals to decide these cases on an expeditious basis fails to accord the respect due to our coequal branches of government and displays insensitivity to the people of this state who are entitled to know with certainty whether the constraints of liberty imposed by the emergency orders under which they labor are constitutionally permissible.
MARKMAN, J., joins the statement of ZAHRA, J.
VIVIANO, J. (dissenting).
The Court today turns down an extraordinary request by the leaders of our coequal branches of government to immediately hear and decide a case that impacts the constitutional liberties of every one of Michigan’s nearly 10 million citizens.11 See Walsh v River Rouge, 385 Mich 623, 639 (1971) (“The invocation of a curfew or restriction on the right to assemble or prohibiting the right to carry on businesses licensed by the State of Michigan involves the suspension of constitutional liberties of the people.”). Because I believe we are duty-bound to give our immediate attention to this case, I cannot join an order that nonchalantly pushes it off for another day.
The Governor and the Legislature do not seem to agree on many things these days, but they both agree that this case merits our immediate attention. In addition, since they individually and collectively represent every single resident of our state, one can surmise that the views of the Governor and Legislature represent the diverse views of large numbers of our citizens. They are crying out to this Court for help because there is a significant amount of confusion in our state over what the Governor’s executive orders mean and whether they are enforceable.12 And the instant case is not the only one involving questions regarding the validity of the Governor’s actions to combat COVID-

11 Justice CLEMENT is of course correct that this case does not involve a direct claim of a constitutional rights violation. But, since the validity of the Governor’s executive orders are at stake, and it is indisputable that those orders impinge on the constitutional liberties of our citizens, it is rudimentary logic—not hyperbole—to say that the case impacts the civil liberties of our citizens.

12 See, e.g., DesOrmeau, After 102 Executive Orders, Confusion is Commonplace on

What’s Allowed in Michigan and What Isn’t <https://www.mlive.com/public-

interest/2020/05/after-101-executive-orders-confusion-is-commonplace-on-whats-

allowed-in-michigan-and-what-isnt.html>

(accessed

June

2,

2020)

[https://perma.cc/K5WK-4RCY].

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19.13 A substantive ruling on the merits of this case by our Court would not only provide clarity to the Governor, the Legislature, and the public, but it would also assist the lower courts as they continue to address these issues in other matters.
I agree with Justice ZAHRA that both applications easily satisfy the requirements of our bypass rule, MCR 7.305(B)(4). As an initial matter, it is clear that our Court has jurisdiction here under MCR 7.303, which governs the jurisdiction of the Supreme Court. Under MCR 7.303(B)(1), we have discretion to “review by appeal a case pending in the Court of Appeals or after decision by the Court of Appeals (see MCR 7.305).” Contrary to Justice CLEMENT’s suggestion, we have never held that the grounds for discretionary appeal are jurisdictional—I see no reason to do so now. It is indisputable that our Court has jurisdiction over this case, if we choose to assert it.
The Legislature’s bypass application clearly shows that a “delay in final adjudication is likely to cause substantial harm.]” MCR 7.305(B)(4)(a). The second question presented in the application is “whether the Emergency Powers of the Governor Act [MCL 10.31 et seq.] is consistent with the separation-of-powers doctrine in the Michigan Constitution, where the act . . . results in the usurpation of the Legislature’s role in formulating public policy[.]” The Legislature further asserts that “COVID-19 presents real problems that call for a comprehensive and deliberative governmental response. The Court should restore the proper constitutional order and allow the branches to get to work—together.”14 In short, the Legislature is arguing that because the
13 There are at least five other cases involving challenges to COVID restrictions in the lower courts: Martinko v Governor (Docket No. 353604); Slis v Michigan (Docket No. 351211); Dep’t of Health & Human Servs v Manke (Docket No. 353607); Mich United for Liberty v Governor (Docket No. 353643); and Associated Builders & Contractors of Mich v Governor (Docket No. 20-000092-MZ). Cases concerning the restrictions are also proliferating in the federal courts. See Mitchell v Whitmer (Case No. 1:20-cv-00384) (WD Mich); League of Indep Fitness Facilities & Trainers, Inc v Whitmer (Case No. 1:20-cv-00458) (WD Mich); Allen v Whitmer (Case No. 2:20-cv-11020) (ED Mich); Mich United Conservation Clubs v Whitmer (Case No. 1:20-cv-00335) (WD Mich); Mich Nursery & Landscape Ass’n v Whitmer (Case No. 1:20-cv-331) (WD Mich); Beemer v Whitmer (Case No. 1:20-cv-323) (WD Mich); VanderZwaag v Whitmer (Case No. 1:20cv-325) (WD Mich); Martinko v Whitmer (Case No. 2:20-cv-10931) (ED Mich); Thompson v Whitmer (Case No. 1:20-cv-00428) (WD Mich); Midwest Institute of Health, PLLC v Whitmer (Case No. 1:20-cv-00414) (WD Mich); Otworth v Whitmer (Case No. 1:20-cv-00405-PLM-RSK) (WD Mich); Signature Sotheby’s Int’l Realty, Inc v Whitmer (Case No. 1:20-cv-00360) (WD Mich). More are sure to follow.
14 See also Michigan Legislature’s Emergency Bypass Application for Leave to Appeal, p 27 (“In effectively exercising standardless lawmaking authority to formulate public policy rather than the democratic process, the Governor has usurped the Legislature’s

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Governor has claimed the authority to exercise core legislative powers for an indefinite period, the Legislature has been displaced from its normal constitutional role as the branch with “the authority to make, alter, amend, and repeal laws.” Harsha v Detroit, 261 Mich 586, 590 (1933). See Const 1963, art 4, § 1 (stating that with certain exceptions not relevant here, “the legislative power of the State of Michigan is vested in a senate and house of representatives”); Const 1963, art 4, § 51 (“The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”). At the bypass stage, we need not decide the merits of the Legislature’s separation-of-powers argument. It is enough to recognize the obvious, substantial, and ongoing institutional harm that is being caused if the Legislature’s claim has merit.
Justice CLEMENT asserts, not incorrectly, that the Legislature still has the power to enact laws. But that misses the point of the Legislature’s claim. Absent the Governor’s extraordinary exercise of core legislative powers during the pandemic, the normal constitutional order would prevail and the Governor and the Legislature would be compelled to work together to shape the public policy of our state. Instead of needing a supermajority vote to override the Governor’s veto and restore the status quo ante, the Legislature could enact laws and present them to the Governor by a simple majority vote of each house. And the Governor would have an incentive—the one our founders built into our system of government—to work with Legislature to develop bills that she found acceptable and would be willing to sign into law. The Legislature’s position, in short, is that by her ongoing and broad exercise of the legislative power, the Governor has usurped its power and diminished its institutional role. Being sidelined from its role in shaping public policy during this pandemic is undoubtedly a substantial harm to the institutional prerogatives of the Legislature.
The concurring justices give even shorter shrift to the Governor’s bypass application. For one thing, Justice CLEMENT’s concurrence never mentions or purports to apply our bypass rule with regard to the Governor’s application. Instead it offers a series of suppositions on topics other than whether the Governor is appealing the invalidation of executive action, which is all that MCR 7.305(B)(4)(b) requires and which is precisely what the Governor seeks to appeal here. The Court of Claims invalidated an executive order, No. 2020-68, which the Governor issued under the Emergency Management Act (EMA), MCL 30.401 et seq.
Justice CLEMENT seems to agree that the Governor has met the requirements of MCR 7.305(B)(4)(b). The thrust of Justice CLEMENT’s argument is that the Governor
power.”); id. at 33 (“Nor can the Governor usurp the lawmaking power merely because she disagrees with the Legislature’s response to the COVID-19 crisis.”).

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might not be an aggrieved party because, even though the court struck down her order under the EMA, she was able to retain all her substantive regulations in an identical order under the emergency powers of the governor act (EPGA). But the Governor has good reason for feeling that she is aggrieved even if her regulations remain standing at this point in the proceedings. “[T]o have standing on appeal [i.e., to be an aggrieved party], a litigant must have suffered a concrete and particularized injury” arising from the judgment below. Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291 (2006).15 The Governor argues that the “EMA provides for a more extensive structure of governmental action in response to an emergency, and a more detailed set of powers for the Governor to implement in that response.” A comparison of the two statutes at issue displays the EMA’s more elaborate provisions. Compare MCL 10.31 (setting forth the Governor’s general authority to promulgate orders after proclaiming a state of emergency) with, e.g., MCL 30.408 and MCL 30.409 (establishing emergency manager coordinators across various institutions and entities) and MCL 30.411 (providing limited immunity). And, importantly, the Governor contends that the EMA not only empowers her to act but affirmatively requires her to declare an emergency or disaster. Whether these provisions and others differentiate the EMA from the EPGA, so that the statutes do not conflict, goes to the merits of the statutory issue in this case, and thus I would not now suggest an answer. It is enough here that the Governor has raised a colorable argument that the decision below struck down her executive order, effectively cabined her statutory tools, and required her to disregard statutory obligations. This constitutes a concrete and particular injury.
Moreover, consider the implications of Justice CLEMENT’s hunch about the Governor’s aggrieved-party status. If the Legislature successfully appealed its claims— either here or in the Court of Appeals—and the EPGA no longer authorized Executive Order No. 2020-68, then the Governor would need to fall back on the EMA. But by that point it would doubtless be too late for her to appeal.16 In other words, the Governor would become aggrieved only when it would be too late for her to do anything about it.17
15 See also Attorney General v Bd of State Canvassers, 500 Mich 907, 908 n 6 (2016) (ZAHRA and VIVIANO, JJ., concurring) (“ ‘Aggrieved’ is a term of art defined as ‘having legal rights that are adversely affected; having been harmed by an infringement of legal rights.’ An ‘aggrieved party’ is ‘a party whose personal, pecuniary, or property rights have been adversely affected by another person’s actions or by a court’s decree or judgment.’ Thus, to be ‘aggrieved,’ a party must demonstrate that it has been harmed in some fashion.”) (citations omitted).
16 Under Justice CLEMENT’s logic, it would not be enough for the Governor that the Legislature could satisfy the bypass rule in order for her to bring her appeal.
17 In addition, Justice CLEMENT’s reminder that the Court of Claims’ decision is not binding is irrelevant: it would seemingly always be the case that a party seeking to bypass

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In sum, because the Governor is appealing the invalidation of her executive actions, her bypass application satisfies MCR 7.305(B)(4)(b). And she also has claimed sufficient injury from the judgment below. If the majority wishes to deny the application on other grounds, so be it. But it should not pretend the Court’s hands are tied by our procedural rules.18
the Court of Appeals will be appealing a nonbinding decision. If this is a meaningful consideration in rejecting a bypass, then one wonders why we have the rule at all.
18 By denying the bypass, the majority has not only written the bypass court rule out of the rulebook, it has also put us at odds with the highest courts of many other states who have not faltered in their responsibility to timely address the significant legal issues arising from their states’ responses to the COVID-19 pandemic. The Pennsylvania Supreme Court, exercising immediate jurisdiction in a challenge to executive orders, said it well: “[T]his case presents issues of immediate and immense public importance impacting virtually all Pennsylvanians and thousands of Pennsylvania businesses, and that continued challenges to the Executive Order will cause further uncertainty.” Friends of Danny DeVito v Wolf, ___ Pa ___, ___ (2020) (Docket No. 68 MM 2020), slip op at 17. In a similar case, the Kansas Supreme Court exercised expedited original jurisdiction, explaining that such jurisdiction lay when the court “determine[s] the issue is of sufficient public concern. Under the circumstances our state faces, we easily do.” Kelly v Legislative Coordinating Council, ___ Kan ___, ___ (2020) (Docket No. 122765), slip op at 9 (citation omitted). See also In re State of Texas, ___SW3d___ (2020) (Docket No. 20-0394) (addressing whether COVID-19 justified voting by mail); Seawright v New York City Bd of Elections, ___ NY2d ___ (2020) (Slip Op No. 02993) (addressing election requirements in light of COVID-19); Wisconsin Legislature v Palm, ___ Wis 2d___, ___; 2020 WI 42, ¶ 10 (Wis, May 13, 2020) (exercising original jurisdiction—which covered cases “ ‘that should trigger the institutional responsibilities of the Supreme Court’ ”—over the legislature’s challenge of executive orders because the “order . . . impacts every person in Wisconsin, as well as persons who come into Wisconsin, and every ‘non-essential business’ ”) (citation omitted); Cal Attorneys for Criminal Justice v Newsom, order of the California Supreme Court, entered May 13, 2020 (Case No. S261829), p 1 (“This mandate proceeding, like others that have recently come before this court, raises urgent questions concerning the responsibility of state authorities during the current pandemic to protect the health and safety of inmates . . . in light of the spread of the novel coronavirus . . . .”); id. at 4 (Liu, J., dissenting) (“As a prudential matter, we exercise [original mandamus] jurisdiction ‘only in cases in which “the issues presented are of great public importance and must be resolved promptly.” ’ If there is any case where exercising our mandamus jurisdiction is appropriate, this is it.”) (citations omitted); Comm for Pub Counsel Servs v Chief Justice of the Trial Court, 484 Mass 1029, 1029 (2020) (denying reconsideration of earlier holding that the court had superintending authority “to stay a final sentence that is being served, absent a pending

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17
appeal or a motion for new trial”); Goldstein v Secretary of the Commonwealth, 484 Mass 516 (2020) (addressing an election-signature requirement in light of COVID); In re Abbott, ___SW3d___, 63 Tex Sup Ct J 909 (2020) (holding that trial judges lacked standing to challenge an executive order applying to bail decisions); Comm for Pub Counsel Servs v Chief Justice of the Trial Court, 484 Mass 431, 446 (2020) (exercising general superintendence, under which the court could “remedy matters of public interest ‘that may cause further uncertainty within the courts’ ”) (citation omitted); Christie v Commonwealth, 484 Mass 397 (2020) (hearing petition for immediate release from custody due to COVID-19 concerns under the court’s general superintendence power); In re Interrogatory on House Joint Resolution 20-1006, ___P3d___, ___; 2020 CO 23, ¶ 28 (Colo, 2020) (“We conclude that the interrogatory [by the General Assembly asking for guidance in light of conditions posed by COVID-19 on a constitutional requirement] now before us presents an important question upon a solemn occasion. Accordingly, we exercise original jurisdiction. The General Assembly and the public at large urgently need an answer to the interrogatory to avoid uncertainty surrounding the length of the remaining regular session and its impact on pending bills and bills yet to be introduced.”); cf. Strizich v Mont Dep’t of Corrections, order of the Montana Supreme Court, entered May 5, 2020 (Case No. OP 20-0225) (declining to consider petition for injunctive relief because the case, involving COVID-19 and state correctional facilities, was fact-intensive); Disability Rights Mont v Mont Judicial Districts 1-22, order of the Montana Supreme Court, entered April 14, 2020 (Case No. OP 20-0189) (denying petition to exercise mandamus power because the request involved factual issues and the legal contention failed on the merits).
It is noteworthy, too, that in the United States Supreme Court, the significance of the issues would alone justify bypassing the court of appeals. See also Sup Ct Rule 11 (“A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”) (emphasis added). Indeed, “[t]he writ . . . has been granted in some of the most important cases in [the last] century.” Lindgren & Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup Ct Rev 259, 259 (1986); see Dames & Moore v Regan, 453 US 654, 667-668 (1981) (“Arguing that this is a case of ‘imperative public importance,’ petitioner then sought a writ of certiorari before judgment. Because the issues presented here are of great significance and demand prompt resolution, we granted the petition for the writ, adopted an expedited briefing schedule, and set the case for oral argument on June 24, 1981.”) (citations omitted).

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* * *
This case involves some of the most important legal principles that can arise in a free society. The parties’ briefs reverberate with weighty assertions about our constitutional structure, as well as the need for and the scope of the Governor’s emergency powers. These issues, and how we decide them, will have a direct impact on the constitutional liberties of every person who lives or owns property in, or simply visits, our state while the restrictions are in place. On a fundamental and practical level, they impact how our friends and neighbors live their lives on a daily basis, where they can go, with whom, how and when they can practice their religion, whether they can go out to eat or to the hardware store or to the beach—in short, nearly every decision they make about nearly everything that they do. Our Court exists to vindicate the constitutional rights of our citizens and to be the final expositor of state law; thus, we are uniquely situated to provide a prompt and final resolution of the issues presented in this case.
The leaders of our state government believe we should hear this case now. I agree. But instead of rising to the occasion, the majority order dodges these issues for now and defers them to the lower courts so they can weigh in first. Ordinarily, I would agree with this approach. But this is no ordinary case. It should not simply go on the conveyor belt with all of the others. Because my colleagues have decided to put it there at least for the time being, I respectfully dissent.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

s0601

June 4, 2020

Clerk

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EXHIBIT 2

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Order

Michigan Supreme Court Lansing, Michigan

June 4, 2020 161333 & (6)
STEVE MARTINKO, MICHAEL LACKOMAR, WENDY LACKOMAR, MARK GARMO, and STEVE HUDENKO,
Plaintiffs-Appellants, v GOVERNOR OF MICHIGAN, DEPARTMENT OF NATURAL RESOURCES DIRECTOR, and ATTORNEY GENERAL,
Defendants-Appellees.

Bridget M. McCormack,
Chief Justice
David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman Brian K. Zahra
Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh,
Justices
SC: 161333 COA: 353604 Ct of Claims: 20-000062-MM

_________________________________________/

On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal prior to decision by the Court of Appeals is treated as an application for leave to appeal the May 26, 2020 order of the Court of Appeals. The application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

b0601

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.
June 4, 2020
Clerk

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EXHIBIT 3

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STATE OF MICHIGAN IN THE SUPREME COURT

MICHIGAN HOUSE OF REPRESENTATIVES and MICHIGAN SENATE,

Supreme Court No. 161377 Court of Appeals No. 353655

Plaintiffs-Appellants/ Cross-Appellees,
v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan,

Court of Claims No. 20-79-MZ
The appeal involves a ruling that a provision of the Constitution, a statute, rule or regulation, or other State governmental action is invalid.

Defendant-Appellee/ Cross-Appellant.
/

GOVERNOR GRETCHEN WHITMER’S EMERGENCY BYPASS APPLICATION FOR LEAVE TO APPEAL AND
BRIEF IN RESPONSE TO PLAINTIFFS’ EMERGENCY BYPASS APPLICATION FOR LEAVE TO APPEAL

ORAL ARGUMENT REQUESTED

B. Eric Restuccia Deputy Solicitor General

Dated: May 29, 2020

Christopher M. Allen (P75329) Assistant Solicitor General Joseph T. Froehlich (P71887) Joshua Booth (P53847) John Fedynsky (P65232) Assistant Attorneys General Michigan Dep’t of Attorney General Attorney for Defendant-Appellee/ Cross-Appellant P.O. Box 30212, Lansing, MI 48909 (517) 335-7628

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TABLE OF CONTENTS Page
Index of Authorities ...................................................................................................... iv Statement of Jurisdiction ............................................................................................. ix Statement of Questions Presented................................................................................ x Constitutional Provisions and Statutes Involved....................................................... xii
Constitutional Provisions ................................................................................. xii Pertinent Provisions of the Emergency Powers of the Governor Act ............ xiii Pertinent Provisions of the Emergency Management Act ............................. xiv Introduction ................................................................................................................... 1 Statement of Facts and Proceedings ............................................................................. 5 Standard of Review...................................................................................................... 13 Argument ..................................................................................................................... 13 I. The Legislative Plaintiffs lack standing. ......................................................... 13 A. The Legislative Plaintiffs lack standing because they have no
special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large. ................................................................................... 14 B. The Legislative Plaintiffs cannot meet their obligation to show that an actual controversy exists under MCR 2.605. ........................... 17 II. The Governor has the authority under the EPGA to declare a state of emergency and to issue orders to protect the health and safety of the State and its people........................................................................................... 20 A. The State is generally granted broad latitude to respond to public health crises................................................................................. 20 B. Consistent with the proper exercise of police power, the Legislature enacted the EPGA. ............................................................. 21
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1. The EPGA’s broad, but not unlimited, grant of authority supports the Governor’s declared state of emergency................ 21
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and their heavy reliance on the alleged history of the act is misplaced.................................................................................. 23
III. The EPGA contains standards that guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore survives a non-delegation challenge. ................... 29
A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given. ................................................................... 29
B. The Legislature is not best equipped to address the exigencies of an emergency. ......................................................................................... 33
IV. In the EMA, the Legislature requires the Governor declare a state of emergency and disaster if she finds certain conditions exist. ......................... 34
A. The EMA sets out a statutory game-plan for state and local emergency response, and it grants the Governor broad powers and duties to “cop[e] with dangers to the state or its people.” ............. 35
B. If the conditions warrant it, the Governor has a duty under the EMA to declare states of emergency and disaster which actuates certain emergency response mechanisms. ............................................ 36
C. Pursuant to the EMA’s mandates, the Governor terminated her earlier declarations and issued new ones because there was an undisputed “disaster” and “emergency” in Michigan............................ 39
D. The construction of the Court of Claims and the Legislative Plaintiffs adds limitations on the Governor’s authority that the Legislature did not impose..................................................................... 40
E. The Legislative Plaintiffs’ responsive arguments do not fully account for the language of the act........................................................ 43
1. No piece of the EMA is invalidated or rendered nugatory......... 43
2. The Governor’s construction does not yield absurd results. ...... 45
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Conclusion and Relief Requested ................................................................................ 50
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INDEX OF AUTHORITIES

Page

Cases
Allstate Ins Co v Hayes, 442 Mich 56 (1993) ................................................................................................... 14
Argo Oil Corp v Atwood, 274 Mich 47 (1935) ................................................................................................... 30
Ariz State Legislature v Ariz Independent Redistricting Comm, 135 S Ct 2652 (2015) .......................................................................................... 14, 15
Assoc Builders & Contractors v Dep’t of Consumer & Indus Servs Director, 472 Mich 117 (2005) ................................................................................................. 18
Blank v Department of Corrections, 462 Mich 103 (2000) ........................................................................................... 46, 47
Blue Cross & Blue Shield of Michigan v Milliken, 422 Mich 1 (1985) ..................................................................................................... 32
City of South Haven v Van Buren Cty Bd of Comm’rs, 478 Mich 518 (2007) ................................................................................................. 18
DNR v Seaman, 396 Mich 299 (1976) ................................................................................................. 33
Dodak v State Admin Bd, 441 Mich 547 (1993) ................................................................................................. 14
G.F. Redmond & Co v Michigan Sec Comm’n, 222 Mich 1 (1923) ..................................................................................................... 31
Harsha v City of Detroit, 261 Mich 586 (1933) ................................................................................................. 30
In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109 (2003) ................................................................................................. 27
INS v Chadha, 462 US 919 (1983) .............................................................................................. 47, 49

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Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905) ................................................................................................ 20, 21
Johnson v Recca, 492 Mich 169 (2012) ................................................................................................. 45
Judicial Attorneys Ass’n v Mich, 459 Mich 291 (1998) ................................................................................................. 29
Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010) ........................................................................................... 14, 18
League of Women Voters of Michigan v Secy of State, ___ Mich App ___, ____ (Docket No. 350938), slip op at *6, app for lv pending 938 NW2d 244 (Mich 2020) ..................................................... 14, 15, 17, 19
Mich Dept of Transp v Tomkins, 481 Mich 184 (2008) ................................................................................................. 13
Neal v Wilkes, 470 Mich 661 (2004) ................................................................................................. 26
People ex rel Johnson v Coffey, 237 Mich 591 (1927) ........................................................................................... 42, 44
People v Anderson, ___ Mich App ___ (2019) (No. 343272)..................................................................... 27
People v Harris, 499 Mich 332 (2016) ................................................................................................. 44
Sauder v Dist Bd of Sch Dist No 10, Royal Oak Tp, Oakland Co, 271 Mich 413 (1935) ................................................................................................. 38
SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65 (2017) ................................................................................................... 27
Shavers v Attorney General, 402 Mich 554 (1978) ................................................................................................. 18
Smith v Behrendt, 278 Mich 91 (1936) ................................................................................................... 31
Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728 (1982) ................................................................................................. 29
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Southfield Tp v Main, 357 Mich 59 (1959) ................................................................................................... 38
State Bd of Ed v Houghton Lake Cmty Sch, 430 Mich 658 (1988) ................................................................................................. 38
Straus v Governor, 459 Mich 526 (1999) ........................................................................................... 42, 44
Taylor v Smithkline Beecham Corp, 468 Mich 1 (2003) ..................................................................................................... 30
Tennessee General Assembly v US Dep’t of State, 931 F3d 499 (CA 6, 2019)................................................................................... 14, 16
Westervelt v Natural Resources Comm, 402 Mich 412 (1978) ..................................................................................... 30, 31, 32
Statutes MCL 10.31 ............................................................................................................. xiii, 26 MCL 10.31 et seq ................................................................................................. passim MCL 10.31(1) ....................................................................................................... passim MCL 10.31(2) ......................................................................................................... 22, 28 MCL 10.32 ............................................................................................................ passim MCL 30.401 et seq ............................................................................................... passim MCL 30.402(e)....................................................................................................... xiv, 37 MCL 30.402(h) ...................................................................................................... xiv, 37 MCL 30.402(j) .............................................................................................................. 25 MCL 30.402(p) .......................................................................................... xiv, 37, 38, 46 MCL 30.402(q) ...................................................................................................... xiv, 46 MCL 30.403 ................................................................................................................. xiv MCL 30.403(1) ............................................................................................................. 35 MCL 30.403(2) ............................................................................................................. 35
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MCL 30.403(3) ..................................................................................................... passim MCL 30.403(4) ..................................................................................................... passim MCL 30.404(1) ............................................................................................................. 36 MCL 30.404(2) ............................................................................................................. 36 MCL 30.405(1)(a) ......................................................................................................... 37 MCL 30.405(1)(d) ......................................................................................................... 37 MCL 30.405(1)(g) ......................................................................................................... 37 MCL 30.405(1)(j) .......................................................................................................... 37 MCL 30.408 .................................................................................................................. 35 MCL 30.408(1) ............................................................................................................. 36 MCL 30.409 .................................................................................................................. 35 MCL 30.410 .................................................................................................................. 35 MCL 30.410(1)(b) ................................................................................................... 25, 35 MCL 30.414(1) ............................................................................................................. 25 MCL 30.414(3) ............................................................................................................. 35 MCL 30.417 ................................................................................................................. xvi MCL 30.417(d) ................................................................................................. 11, 28, 36 Other Authorities 2020 SCR 24 ................................................................................................................... 8 Executive Order 2020-20 ............................................................................................... 7 Executive Order 2020-21 ............................................................................................... 7 Executive Order 2020-33 ................................................................................... 8, 10, 39 Executive Order 2020-4 ................................................................................................. 6 Executive Order 2020-42 ............................................................................................... 7
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Executive Order 2020-5 ................................................................................................. 7 Executive Order 2020-66 ..................................................................................... passim Executive Order 2020-67 ........................................................................... 10, 11, 13, 50 Executive Order 2020-68 ..................................................................................... passim Executive Order 2020-9 ................................................................................................. 7 Webster’s Third New International Dictionary (1993) ............................................... 25 Rules MCR 2.605.............................................................................................................. 14, 17 MCR 7.305(B)(1) ............................................................................................................ 4 MCR 7.305(B)(2) ....................................................................................................... ix, 4 MCR 7.305(B)(3) ............................................................................................................ 4 MCR 7.305(B)(4)(a) ........................................................................................................ 4 MCR 7.305(B)(4)(b) ........................................................................................................ 4 Constitutional Provisions Const 1963, art 3, § 1 ................................................................................................... 29 Const 1963, art 4, § 14 ................................................................................................. 34 Const 1963, art 4, § 26 ..................................................................................... xii, 19, 33 Const 1963, art 4, § 33 ........................................................................................... xii, 19 Const 1963, art 5, § 1 ........................................................................................... passim Const 1963, art 5, § 8 ................................................................................................... 15
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STATEMENT OF JURISDICTION The Michigan House of Representatives and Michigan Senate (Legislative Plaintiffs) sought an immediate declaratory judgment that Governor Whitmer exceeded her authority under the Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA) during the COVID-19 pandemic. MCL 10.31 et seq; MCL 30.401 et seq. The Court of Claims issued an opinion denying Plaintiffs’ request for declaratory relief and entered a final order. (5/21/20 Ct of Claims Op and Order, p 25.) In its opinion, the Court of Claims found that the Governor’s declaration pf emergency and accompanying executive orders constituted a valid exercise of her authority under the EPGA. (Id. at 2.) The Court of Claims also determined that the Legislative Plaintiffs have standing in this case (id. at 4–9), and that the Governor acted outside of her authority when issuing Executive Order 2020-68 pursuant to the EMA, (id. at 2, 19–25.) The Governor seeks leave to appeal these adverse rulings. The Plaintiffs filed a claim of appeal in the Court of Appeals on May 22, 2020, and later that day, in this Court, filed an emergency application for leave to appeal the Court of Claims decision “before a decision of the Court of Appeals” (bypass application). MCR 7.305(B)(2). The Governor similarly filed a cross-claim of appeal on May 29, and here files an omnibus response to the Legislative Plaintiffs’ bypass application and bypass application regarding the two adverse rulings against her. The Governor asks this Court to grant her bypass application and the Legislative Plaintiffs’ bypass application, and to hear them on an expedited basis.
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STATEMENT OF QUESTIONS PRESENTED1

1. Legislative standing is available only where the body suffers an injury specific to it or to protect its legal rights. The House and Senate allege only injuries shared with the general citizenry, and any decision by this Court will not affect their constitutional authority to legislate. Do the Legislative Plaintiffs have standing?

Governor’s answer:

No.

Legislative Plaintiffs’ answer: Yes.

Court of Claims answer:

Yes.

Court of Appeals’ answer:

Did not answer.

2. The Emergency Powers of the Governor Act grants broad authority to the Governor to declare a state of emergency during great public crises where public safety is imperiled within the State. The Governor declared a state of emergency in response to a worldwide public health pandemic that has killed thousands of Michiganders. Did the Governor act within her statutory grant of authority?

Governor’s answer:

Yes.

Legislative Plaintiffs’ answer: No.

Court of Claims answer:

Yes.

Court of Appeals’ answer:

Did not answer.

1 Issues 2 and 3 are the subject of the Legislative Plaintiffs’ bypass application, and Issues 1 and 4 are the subject of the Governor’s bypass application as well as alternative bases to affirm the lower court’s decision in response to the Plaintiffs’ bypass application.
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3. The Emergency Powers of the Governor Act permits the Governor during public crises to issue “reasonable” orders “necessary to protect life and property” or bring the emergency under control. The Legislature may constitutionally grant broad authority to the executive branch provided there is sufficient guidance in light of the purpose of the delegation. Have the Legislative Plaintiffs proven their own law is an unconstitutional delegation?

Governor’s answer:

No.

Legislative Plaintiffs’ answer: Yes.

Court of Claims answer:

No.

Court of Appeals’ answer:

Did not answer.

4. The Emergency Management Act requires a Governor to declare a state of emergency or disaster if the conditions in the State warrant it, and to terminate those specific declarations if the Legislature does not extend them beyond 28 days by concurrent resolution. The Governor terminated unextended declarations, but issued new ones pursuant to her ongoing statutory duty. Did the Governor act within her authority under the EMA?

Governor’s answer:

Yes.

Legislative Plaintiffs’ answer: No.

Court of Claims answer:

No.

Court of Appeals’ answer:

Did not answer.

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CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
Constitutional Provisions Const 1963, art 5, § 1 provides:
Except to the extent limited or abrogated by article V, section 2, or article IV, section 6, the executive power is vested in the governor. Const 1963, art 4, § 26 provides, in pertinent part:
No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house. Const 1963, art 4, § 33 provides, in pertinent part:
Every bill passed by the legislature shall be presented to the governor before it becomes law, and the governor shall have 14 days measured in hours and minutes from the time of presentation in which to consider it. If he approves, he shall within that time sign and file it with the secretary of state and it shall become law. If he does not approve, and the legislature has within that time finally adjourned the session at which the bill was passed, it shall not become law. If he disapproves, and the legislature continues the session at which the bill was passed, he shall return it within such 14-day period with his objections, to the house in which it originated. That house shall enter such objections in full in its journal and reconsider the bill. If twothirds of the members elected to and serving in that house pass the bill notwithstanding the objections of the governor, it shall be sent with the objections to the other house for reconsideration. The bill shall become law if passed by two-thirds of the members elected to and serving in that house.
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Pertinent Provisions of the Emergency Powers of the Governor Act
MCL 10.31 provides:
(1) During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, 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. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
MCL 10.32 provides:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.
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Pertinent Provisions of the Emergency Management Act
MCL 30.402(e) provides:
“Disaster” means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, fire, flood, snowstorm, ice storm, tornado, windstorm, wave action, oil spill, water contamination, utility failure, hazardous peacetime radiological incident, major transportation accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation, explosion, or hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities, riots, or civil disorders.
MCL 30.402(h) provides:
(h) “Emergency” means any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.
MCL 30.402(p) provides:
(p) “State of disaster” means an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.
MCL 30.402(q) provides:
(q) “State of emergency” means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.
MCL 30.403 provides:
(1) The governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.
(2) The governor may issue executive orders, proclamations, and directives having the force and effect of law to implement this act. Except as provided in section 7(2), an executive order, proclamation, or directive may be amended or rescinded by the governor.
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(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and shall be promptly filed with the emergency management division of the department and the secretary of state, unless circumstances attendant upon the disaster prevent or impede its prompt filing.
(4) The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and shall be promptly filed with the emergency management division of the department and the secretary of state, unless circumstances attendant upon the emergency prevent or impede its prompt filing.
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INTRODUCTION The Legislative Plaintiffs come to the judiciary seeking only to build a constitutional crisis atop a public health crisis in Michigan. The law requires putting that effort to rest. Unfortunately, the scourge of COVID-19 will not lie down. The novel coronavirus that causes COVID-19 has rapidly spread across the planet, infecting millions, and killing hundreds of thousands in just a few months. In response, jurisdictions the world over have imposed bold measures to stem the viral tide that has overwhelmed healthcare systems. At home, Michigan is one of the states hardest hit by the pandemic. Since March 18, COVID-19 has claimed at least 5,372 lives, and countless others have suffered the excruciating health effects of the virus. Through wicked happenstance of this novel virus, many who are infected escape symptoms but unwittingly spread the virus to others, who may end up on ventilators, or worse. Such disparities still perplex medical experts, which only highlights the uncertainty ahead. In response to the threat of the pandemic, Governor Gretchen Whitmer declared states of emergency and disaster. Consistent with her duties to protect the health and welfare of the State and its citizens and respond to emergencies within its borders, the Governor put measures in place to suppress the spread of the virus, incrementally loosening restrictions as the public health permits. Because of these efforts, the disease’s spread has been slowed and countless lives have been saved. But the crisis is not over, and the virus remains highly contagious, still untreatable, and potentially poised for resurgence.
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The Legislative Plaintiffs deny none of this, but ask this Court to invalidate the Governor’s emergency response authority and declare their own delegation of this authority unconstitutional. Past Legislatures have thought better of putting a slow and fractious multi-member body in charge of responding to emergencies that demand a rapid, coordinated, and nimble response. Through two laws—the Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA)—the Legislature vested such responsibility in the executive branch.
The Legislative Plaintiffs, of course, remain free to amend these laws, even over the Governor’s objection, if they are dissatisfied with the authority generations have vested in the Governor or the Governor’s due exercise of that authority. But they have not done so. The courts are not the proper branch for lawmaking, and the Legislative Plaintiffs lack standing to bring this suit. The Legislative Plaintiffs have failed to show a sufficient injury to an institutional interest, and their action against the Governor raises separation of powers concerns. Moreover, nothing in the declaratory relief they seek is necessary to guide their future conduct and preserve their legal rights—they only seek to affect the Governor’s rights.
They fare no better on the merits of their challenges to the Governor’s exercise of her emergency authority. Under the EPGA, the Legislature plainly granted the Governor authority to proclaim an emergency and reasonably guided her discretion in doing so. And while the Legislative Plaintiffs attempt to engraft limitations on this authority and cast doubt on its constitutionality, settled caselaw and the EPGA’s plainly stated text make short work of those arguments, just as the
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Court of Claims did. The Governor’s declaration and reaffirmation of an emergency under the EPGA are valid, as are the executive orders issued under that authority.
Independently, the EMA contains authority that is activated upon the Governor’s declaration of a state of emergency or disaster. Importantly, the EMA requires the Governor to issue those declarations if the conditions warrant it. If the declarations of states of emergency or disaster—which are defined by the act as “executive order[s]”—are not extended by the Legislature after 28 days, the Governor must terminate those executive orders. While the Court of Claims agreed with the Legislative Plaintiffs’ contention that the Governor ignored this limitation, she in fact adhered closely to it and the EMA’s other mandates—she timely terminated the earlier declarations and then issued new ones, consistent with her legal duty to do so when disaster or emergency conditions afflict our State.
The Legislative Plaintiffs frame the Governor’s actions—particularly her new declarations—as unprecedented. But that flips the conversation on its head. The pandemic that Michigan is facing is unprecedented, as is the Legislative Plaintiffs’ refusal to ratify the declarations the Governor issued—declarations whose factual basis they do not and cannot dispute. That refusal may be their right under the EMA, but the Governor’s responsibility to act in response to the ongoing emergency and disaster remains her duty.
Even if this Court were to find that the Governor exceeded her authority under the EMA, that leaves her declaration under the EPGA undisturbed, as the
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Court of Claims concluded. Because the Governor’s declarations here work as a belt and suspenders, even if the belt is removed, the suspenders remain.
The Legislative Plaintiffs’ overarching claim is that the Governor has acted beyond her constitutional role (despite the Legislature granting her the very authority she has invoked and exercised). Yet rather than act with their own most fundamental power—to amend the laws they now challenge—they filed suit. But there is no legal basis for this Court to upend the status quo in the midst of this public health crisis. The Constitution grants the Legislature the tools to do just that if it so chooses—to amend its own laws, by veto override if it must. This Court should not short circuit that route still available to the Legislature, one that runs through their own chambers.
This case warrant answers from this State’s highest court because the issues involve the constitutional validity of the EPGA, MCR 7.305(B)(1), have “significant public interest,” MCR 7.305(B)(2), and touch on the Governor’s emergency authority and the propriety of the Legislative Plaintiffs’ standing, MCR 7.305(B)(3). Although the status quo will not cause substantial harm to the public because the Governor’s measures to protect the public health remain valid under the decision below, MCR 7.305(B)(4)(a), the Governor’s full authority to respond to a public crisis is currently undercut by part of the Court of Claims ruling, MCR 7.305(B)(4)(b).
The Governor asks this Court to grant her bypass application, and agrees that the Court should grant Legislative Plaintiffs’ own bypass application, to decide these important and consequential questions.
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STATEMENT OF FACTS AND PROCEEDINGS COVID-19 infects the globe.
SARS-CoV-2 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, no vaccine, and no known treatment to combat the virus itself.
It is widely known and accepted that the virus 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, called COVID-19.3 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 no symptoms or only mild ones, a person could spread the disease before he even realizes he is sick.4 Everyone is vulnerable either as a potential victim of this scourge or a carrier of it to a potential victim.
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. 3 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html. 4 (Id.)
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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 and the 1918 Spanish Influenza have indicated, early intervention to slow 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
Michigan is hit hard by the expanding epidemic and the Governor declares states of disaster and emergency.
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—pursuant to her authority under the Emergency Powers of the Governor Act (EPGA), the Emergency Management Act (EMA), and Article 5, § 1.8
5 (Id.) 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. 8 Executive Order 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-521576--,00.html.
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On March 13, 2020, Governor Whitmer issued an executive order 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
Subsequently, on March 23, 2020, again in response to the spreading
pandemic in Michigan, Governor Whitmer issued an executive order 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 (the Stay Home Order).11 Several other orders intended to
address the pandemic in Michigan were issued pursuant to her authority under the
EPGA and the EMA.12
9 Executive Order 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-521595--,00.html. 10 Executive Order 2020-9, available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-521789--,00.html. (Replaced by Executive Order 2020-20). 11 Executive Order 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html. 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, at midnight. Executive Order 2020-42, available at https://content.govdelivery.com/attachments/MIEOG/2020/04/09/file_attachments/1 423850/EO%202020-42.pdf. 12 See generally “Executive Orders” http://www.legislature.mi.gov /(S(wskfimad5qtw1lrxuwq3z3jb))/mileg.aspx?page=executiveorders
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On April 1, the Governor issued Executive Order 2020-33, which expanded upon the prior declaration of a state of emergency and, consistent with the virus’s aggressive and destructive spread, declared states of emergency and disaster across the State of Michigan. Under the EMA (though not the EPGA), the declarations must be terminated after 28 days absent resolution by both houses of the Legislature. MCL 30.403(3), (4). On April 7, the Michigan House and Senate approved an extension of the Governor’s declaration until April 30, 2020.13
As required by the EMA, the Governor terminates the states of emergency and disaster under the EMA after the Legislature refuses to extend them.
Prior to April 30, the Governor again asked the Legislature to extend the states of disaster and emergency under the EMA pursuant to MCL 30.403(3) and (4), but the Legislature did not do so. Notably, neither in public statements nor in its pleading to this Court have the Legislative Plaintiffs expressed disagreement that the conditions persist that warrant declarations of emergency and disaster.14
On April 30, 2020, then, the Governor issued three executive orders. First, in Executive Order 2020-66 (App’x A), the Governor terminated the executive orders of states of emergency and disaster declared under the EMA as required by MCL 30.403(3) and (4) because the Legislature refused to extend those executive orders.
13 2020 SCR 24. 14 To the contrary, the Senate Majority Leader, the very morning after refusing to extend the prior declarations, responded with indignation when asked if the emergency was over: “No, not at all. Hell—heck no. I’d like to know where you would even come up with that question.” See https://jtv.tv/senate-majority-leadershirkey-on-legislative-showdown/ (thirty seconds into the interview).
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Although noting that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created very much exist,” the Governor recognized that the Legislature— “despite the clear and ongoing emergency and disaster conditions afflicting our state—has refused to extend [the states of emergency and disaster] beyond today.” Id. Accordingly, she was required by the EMA’s plain language to issue an order “terminat[ing]” the states of emergency and disaster. Id.
Because the COVID-19 crisis persists, the EMA requires her to declare a state of disaster and emergency, which she promptly does.
After terminating the prior declarations, the Governor again declared a state of emergency and a state of disaster under the EMA. Executive Order 2020-68 (App’x B). She also explained the basis for this new declaration. Although the measures issued pursuant to her emergency authority had been working, “the need for them—like the unprecedented crisis posed by this global pandemic—is far from over.” Id. COVID-19, she said,
remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster. [Id.] The Governor further found, “[t]he 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.” Id. Accordingly, the Governor stated: “I now declare a state of emergency and a state of disaster across the State
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of Michigan under the Emergency Management Act.” Id. Finally, the Governor ordered that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id.
The Governor reaffirms her declaration of the state of emergency under the EPGA.
In the third Executive Order issued that day, the Governor reaffirmed the state of emergency under the EPGA, ordering that “[a] state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945.” Executive Order 2020-67 (App’x C). And like in Executive Order 2020-68, she ordered “Executive Order 2020-33 is rescinded and replaced. All previous orders that rested on Executive Order 2020-33 now rest on this order.” Id.
The Court of Claims denies declaratory relief and affirms the Governor’s authority under the EPGA.
The Legislative Plaintiffs brought suit, seeking an expedited declaratory judgment that the Governor’s authority to act under the EMA ended April 30, 2020; the EPGA does not provide authority for the Governor’s COVID-19 executive orders; the Governor has no lawmaking power under Const 1963, art 5, § 1; and the Governor’s ongoing COVID-19 executive orders violate the separation of powers. (Compl Request for Relief.)
On May 21, 2020, the Court of Claims issued an opinion and order denying the Plaintiffs’ requested relief. (5/21/20 Op and Order, p 25) (App’x D). First, the Court of Claims determined that the Legislative Plaintiffs have standing, but
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deemed it a “close question.” (Id. at 7.) The court construed the Legislative Plaintiffs’ claimed injury as being “that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster.” (Id. at 8.) More specifically, the court found the Legislative Plaintiffs’ allegation to be “the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole,” an injury “unique to the Legislature.” (Id. at 8–9.)
The court also held that that Executive Order 2020-67 (the EPGA declaration) was a valid exercise of the “broad authority” by the Governor. (Id. at 10.) The court rejected the Legislative Plaintiffs’ “attempt to limit the scope of the EPGA to local or regional emergencies only,” relying heavily on the Legislature’s plain statutory purpose in MCL 10.32 to confer “ ‘sufficiently broad power’ on the Governor in order to enable her to respond to public disaster or crisis.” (Id. at 11, quoting MCL 10.32.) The court rejected the attempt to impose “artificial barriers on the Governor’s authority to act,” noting that a “particularly strained reading of the plain text of the EPGA” was required to reach the Legislative Plaintiffs’ result. (Id. at 12.) Recognizing the Legislative Plaintiffs’ “selectively rely on parts of the statute and ignore the contextual whole,” the court affirmed the Governor’s authority to issue state-wide declarations under the EPGA. (Id. at 13–14.)
The court had no difficulty squaring this reading with the existence of the EMA, explaining that “while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal.” (Id. at 14.) And, citing MCL 30.417(d)—which makes clear that
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the EMA does not “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA]”—the court relied on the Legislature’s own textual “explicit recognition” in refusing to narrow the EPGA or the EMA as the Legislative Plaintiffs desire. (Id. at 15.)
The court also denied the Legislative Plaintiffs’ request to declare the EPGA unconstitutional as violative of the separation of powers. The court properly balanced the complexity of the underlying subject matter—response to an unknown future emergency situation—with the sufficient guidance the Legislature provided. (Id. at 16–18.) As the court summed up, citing several Michigan decisions:
The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. [Id. at 18.] Given the validity of the EPGA and the validity of the Governor’s declaration under it, the Court of Claims “conclude[d] that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.” (Id. at 19.) The court, again, denied the relief requested by the Legislative Plaintiffs. (Id. at 25.) Even though the court denied Legislative Plaintiffs’ relief, the opinion determined that the Governor acted outside of her authority with respect to her April 30 declarations under the EMA. See Op and Order, pp 2–3 (“This court finds that . . . Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.”); p 19 (“The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees” that 2020-68 is ultra vires).
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After describing the broad authorities a Governor has under the EMA, the court accurately noted that, in Executive Order 2020-66, the Governor “expressly terminated the previously issued states of emergency and disaster—not because the disaster or emergency condition ceased to exist—but because a period of 28 days had expired,” which is consistent with the statutory language in MCL 30.403(3) and (4). As the court correctly put it, “The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it.” (Id. at 23.) But the court found the Governor’s new declarations as contrary to that language, stating, “To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit.” (Id. at 24.) The court also disagreed that, construed in this way, the 28-day limit is an unconstitutional legislative veto, describing it as “a standard imposed on the authority so delegated.” (Id. at 25.)
STANDARD OF REVIEW This Court reviews questions of statutory and constitutional interpretation de novo. Mich Dept of Transp v Tomkins, 481 Mich 184, 190 (2008).
ARGUMENT I. The Legislative Plaintiffs lack standing.
Dissatisfied by the Governor’s issuance of Executive Orders 2020-67 and 2020-68, the Legislative Plaintiffs have a clear, unique, and powerful remedy: they can change the law, even over the Governor’s objection. Instead, they have chosen to sue the Governor, asking for a judicial solution to a perceived legislative problem.
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This, they cannot do. The Legislative Plaintiffs cannot claim an institutional interest in the enforcement of already-enacted legislation, and have not claimed an injury distinct from the citizenry at large. This Court should determine that the Legislative Plaintiffs lack standing.
A. The Legislative Plaintiffs lack standing because they have no special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large.
“Standing is the legal term used to denote the existence of a party’s interest in the outcome of the litigation . . . .” Allstate Ins Co v Hayes, 442 Mich 56, 68 (1993) (citations omitted). A litigant meeting the requirements of MCR 2.605 “is sufficient to establish standing to seek a declaratory judgment.” Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372 (2010). Moreover, a litigant may have standing if it “has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large.” Id. at 372.
As with an individual legislator, to establish standing, a legislative body must allege that it has been deprived of a cognizable interest peculiar to the body. Tennessee General Assembly v US Dep’t of State, 931 F3d 499, 507 (CA 6, 2019), citing Ariz State Legislature v Ariz Independent Redistricting Comm, 135 S Ct 2652, 2664 (2015). Importantly, a “generalized grievance that the law is not being followed,” is insufficient to establish standing. Dodak v State Admin Bd, 441 Mich 547, 556 (1993) (citation omitted); see also League of Women Voters of Michigan v Secy of State, ___ Mich App ___, ____ (Docket No. 350938), slip op at *6, app for lv pending 938 NW2d 244 (Mich 2020).
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The Legislative Plaintiffs seek to nullify the Governor’s acts of declaring states of emergency and disaster under the EMA and the EPGA. But constraining the Governor’s executive authority will not affect the Legislature as an institution entrusted with passing laws. The Legislative Plaintiffs’ success in this case would only infringe upon the separation of powers by invalidating the Governor’s implementation of the law and her exercise of the powers vested in her by law. Indeed, that is explicitly the relief that the Legislative Plaintiffs seek. Under League of Women Voters and Dodak, they cannot obtain that relief here.
The Legislative Plaintiffs claim that the Governor’s actions violate the EPGA and the EMA. But even if that were true (it is not), such an alleged injury is not personal or unique to them. As the court noted in League of Women Voters, “once the votes of legislators have been counted and the statute enacted, their special interest as lawmakers has ceased.” ___ Mich App at ___; slip op at *7. So too here, once the Legislature passed its laws, it exercised its legislative power. Execution of the laws is the purview of the executive. Const 1963, art 5, §§ 1, 8.
The Legislative Plaintiffs fare no better by attempting to cast their claims as Michigan constitutional violations. Whether they frame the Governor’s action as allegedly unlawful or unconstitutional, they lack standing to challenge the actions for the same reasons. In either instance, the alleged injury or deprivation is no different than that accruing to the ordinary citizen.15
15 Below, Plaintiffs relied heavily on the Arizona State Legislature case for the proposition that a legislature has an interest in protecting its lawmaking power from infringement. (5/15/2020 Hr’g Tr, p 10.) But Arizona State Legislature merely
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The Legislative Plaintiffs’ case is that the Governor did not follow the EMA and EPGA when declaring states of emergency and disaster—a claim of statutory interpretation—and that their own law is unconstitutional. The Governor has not asserted an inherent authority to act with legislative authority, only that the Legislature granted her authority by statute, which she has exercised. By acting as she did, the Governor did not work any infringement upon or dilution of the Legislature’s constitutional power to pass laws, or any other constitutionally granted authority. See Tennessee Gen Assembly, 931 F3d at 512 (noting that legislative standing is proper upon an allegation of “interference with a legislative body’s specific powers . . . or a constitutionally assigned power”).
To the contrary, the Legislature admittedly introduced dozens of bills during the pandemic (Compl, ¶ 43), and is not hampered from continuing to do so. Any and all legislative tools remain on the table and available for amending or repealing the laws on the books. That the Governor may also act (per the Legislature’s own delegation), does not squeeze out the Legislature from acting concurrently.
To sum it up, per the Court of Appeals in League of Women Voters: [T]he Legislature is suing to reverse actions by the [Governor], a member of the Executive Branch. The Legislature is thus plainly challenging the actions of members of the Executive Branch. Dodak stands for the proposition that courts should not confer standing in
stands for the proposition that, where a legislative body alleges that it is effectively barred from exercising its constitutional authority, it has standing. Id. at 2663– 2664; see also Tennessee Gen Assembly, 931 F3d at 511 (explaining that state legislatures had been found to have standing when they “alleged that an action at the state legislative level had interfered with their federal constitutional prerogatives”). That is miles from this case.
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matters that have the real possibility of infringing upon the separation of powers. [League of Women Voters, slip op at *7.] And League of Women Voters is all the more persuasive on this point because, in that case, the Legislature sought to protect the constitutionality of its laws. ___ Mich App at ___; slip op at *9 (“To accept the Legislature’s argument that it has standing here would open the door for the Legislature to seek a declaratory judgment whenever the constitutionality of a statute was challenged.”). Here, the Legislative Plaintiffs ask this Court to invalidate one of its own laws, seeking a declaration that the EPGA is unconstitutional. If the Legislature lacks standing to attempt to enforce its own laws, it must lack standing to nullify them. Finally, there is no room for concern in this case that, without standing for these plaintiffs, the executive’s actions might evade judicial review.16 A private party would have standing to challenge the Governor’s declarations if the litigant could point to an alleged harm stemming from one of the Governor’s substantive executive orders premised on her declarations under the EMA and/or the EPGA. B. The Legislative Plaintiffs cannot meet their obligation to show
that an actual controversy exists under MCR 2.605. Nor can the Legislative Plaintiffs generate standing by framing their claims as requests for declaratory relief. MCR 2.605 states that “[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory
16 See e.g., League of Women Voters of Michigan v Secretary of State (Docket No 160907-8), March 11, 2020 Oral Argument, Viviano, J., questioning at 52:26. Available at https://www.youtube.com/watch?v=9_AxvQNoa_4
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judgment.” Where no such actual controversy exists, a plaintiff does not have standing to bring a declaratory action. City of South Haven v Van Buren Cty Bd of Comm’rs, 478 Mich 518, 533–534 (2007).
“In general, ‘actual controversy’ exists where a declaratory judgment or decree is necessary to guide a plaintiff’s future conduct in order to preserve his legal rights.” Shavers v Attorney General, 402 Mich 554, 588 (1978) (emphasis added). See also Assoc Builders & Contractors v Dep’t of Consumer & Indus Servs Director, 472 Mich 117, 126 (2005), overruled in part on other grds, 487 Mich at 371 n 18.
Here, the gravamen of the Legislative Plaintiffs’ complaint is that they passed laws that are not being followed by the Governor, or that their own law (the EPGA) violates the Michigan Constitution. But if that were enough to create an actual controversy, the Legislature would have standing to bring a lawsuit against any government entity that has allegedly violated the Constitution or failed to enforce or comply with a statute. That outcome would be both an abuse of the court system and an improper curtailing of the legislative and political processes.
Nor do the Legislative Plaintiffs adequately explain how declaratory relief is needed here to guide their future conduct in order to preserve their legal rights. Lansing Sch Ed Ass’n, 293 Mich App at 515. To be sure, the future conduct that the Legislative Plaintiffs seek to “guide”—that is, curtail—is the that of the Governor, not the Legislature. The law does not provide standing for the Legislature to seek declaratory relief. As the Court of Appeals concluded in League of Women Voters:
No declaratory judgment is necessary to guide the Legislature’s future conduct in order to preserve its legal rights. The Legislature’s
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authority to enact laws is separate and distinct from this Court’s role in determining whether any law passes constitutional muster. These “rights” and obligations of the two separate branches of government will remain the same, no matter what the outcome in this matter, such that the preservation of the Legislature’s legal rights is not at issue. [League of Women Voters, ___ Mich App at ___, slip op at *7.] The Legislative Plaintiffs contend that they have a special right that is affected in a manner different from the citizenry at large in their right to enact legislation—but this is more spin than reality. There is nothing in the Governor’s actions that interferes with the Legislature’s ability to legislate. In fact, the complaint specifically alleges that the “Legislature has introduced almost 100 bills on COVID-19 related issues.” (Compl, ¶ 43.) The Legislative Plaintiffs’ claim for declaratory relief fails because there is no threat to their power to enact legislation, including their power to amend or repeal the very laws they challenge. 17 In sum, the Legislative Plaintiffs’ concern here is the Governor’s actions, not infringement of its own institutional rights or responsibilities. They have no special interest in challenging the Governor’s executive orders or advancing a strained interpretation of their own laws. Therefore, and in light of the separation-of-powers concerns pervading this suit, the Legislative Plaintiffs lack standing.
17 The Michigan Constitution provides that “[n]o bill shall become law without the concurrence of a majority of the members elected to and serving in each house.” Const 1963, art 4, § 26. “Every bill passed by the legislature shall be presented to the governor before it becomes law[.]” Const 1963, art 4, § 33. If the Governor vetoes a bill, the Legislature may override it by a two-thirds vote in each house. Id.
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II. The Governor has the authority under the EPGA to declare a state of emergency and to issue orders to protect the health and safety of the State and its people. Even if the Legislative Plaintiffs could seek their requested relief from this
Court, they have not shown entitlement to it. The EPGA grants the Governor broad police powers in times of public emergency to protect life and property and bring the emergency to its end.
A. The State is generally granted broad latitude to respond to public health crises.
Faced with “great danger[ ],” state actors are permitted great latitude to secure the public health. Jacobson v Commonwealth of Massachusetts, 197 US 11, 29 (1905). In Jacobson, the Supreme Court considered a claim that the Massachusetts’ mandatory vaccination law, which applied to every person in Cambridge 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.” 197 US 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. [Id. at 29.]
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In upholding the law, the Court refused 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. As Jacobson illustrates, the police power has long been recognized as a fundamental and central means by which States can respond in an effective fashion to an imminent threat to its citizens’ health and safety.
B. Consistent with the proper exercise of police power, the Legislature enacted the EPGA.
Through the EPGA, the Legislature has ensured that the Governor, who holds the executive power, has the necessary tools to deal with emergencies and disasters in this State, such as the crisis presented by COVID-19. Const 1963, art 5, § 1. The EPGA does not deprive the Legislature of any of its lawmaking tools or powers, and throughout this crisis, the Legislature has retained and been free to use them. But rather than exercise that lawmaking authority to amend the EPGA or EMA, the Legislative Plaintiffs asks this Court to misconstrue them.
1. The EPGA’s broad, but not unlimited, grant of authority supports the Governor’s declared state of emergency.
The EPGA, enacted in 1945, provides the Governor with broad powers “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state.” MCL 10.31(1). The Governor “may proclaim a state of emergency” during these times, or upon “reasonable apprehension of immediate danger” of such an emergency, “when public safety is imperiled.” Id.
Upon the proclamation of 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
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affected area under control.” Id. Any “orders, rules, and regulations promulgated . . . are effective from the date and in the manner prescribed in the orders, rules, and regulations.” MCL 10.31(2). And they “may be amended, modified, or rescinded . . . by the governor” and “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Id. As a whole, the EPGA must “be broadly construed to effectuate [its] purpose,” which is to “invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32.
Our State is undoubtedly facing a “time[ ] of great public crisis,” “disaster,” or “similar public emergency,” wherein “public safety is imperiled.” MCL 10.31(1). The world over has been ravaged by the COVID-19 crisis, with serious, often fatal, consequences for many due to the virus’s easy and rapid transmission. States of emergency exist across our country too, with orders effectuating social distancing. Since the virus’s origin in China, it has traveled to nearly every country on Earth, killing over 350,000 people. Indeed, in April, it killed more Michiganders than heart disease and cancer combined.18 As of filing, over 5,000 have died here, and over 100,000 have died in the United States.19
18 Michigan Department of Community Health, Number of Deaths by Select Causes of Death by Month, available at https://www.mdch.state.mi.us/osr/Provisional/MontlyDxCounts.asp 19 New York Times, An Incalculable Loss (May 27, 2020), available at https://www.nytimes.com/interactive/2020/05/24/us/us-coronavirus-deaths100000.html
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These undisputed (and undisputable) facts form the basis of the Governor’s finding that a state of emergency exists under the EPGA, and well justify the “reasonable” and “necessary” measures she has taken “to protect life” throughout the State and bring this pandemic “under control.” MCL 10.31(1).
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and their heavy reliance on the alleged history of the act is misplaced.
In an attempt to avoid the unfavorable result that flows from the EPGA’s plain and straightforward text, the Legislative Plaintiffs strain to narrowly read their own statute, suggesting that the EPGA is limited to quelling riots and other uprisings of local concern. (Pls Bypass App, pp 20–24.) But this narrow construction is unwarranted for as many as six reasons.
First, such a limited reading is directly contrary to the Legislature’s own (duly enacted) direction, which mandates that the act be “broadly construed to effectuate [its] purpose,” which was plainly stated:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. [MCL 10.32.] Second, the Legislative Plaintiffs proffer a geographical limitation—an interpretation of the statute that limits a declaration’s reach to only local subsets of the State. (Pls Bypass App, pp 20–22) (“These words—‘area,’ ‘zone,’ and ‘section’— all establish that the Governor’s power is intended to reach some subpart of the state as a whole.”). This is an attempt to recast the intended, and plainly stated,
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flexibility of the EPGA as a limitation. The EPGA provides that, when declaring an emergency, the Governor must “designate the area involved.” MCL 10.31(1). The EPGA then provides an illustrative, and expressly non-exhaustive, list of “orders, rules, and regulations” that the Legislature suggested may be appropriate in response to an emergency—which occasionally includes reference to “zones” or “section[s],” but just as often does not. Id.
All of this wisely recognizes that public emergencies, and necessary responses to them, may come in many different shapes and sizes, depending on the nature of the threat to public safety. And none of it suggests that the Governor, when faced with a statewide threat to public safety, cannot declare a state of emergency commensurate with that threat. Here, the “area” designated by the Governor is the entire State—and rightfully so, given the nature of the threat posed to this State (indeed the world) by this highly contagious, often fatal, and still untreatable virus. See MCL 10.31(1) (permitting a declaration during a “public emergency” or “reasonable apprehension of immediate danger of a public emergency”).
Simply put, given the nature of this virus and the current limitations on our ability to test for, trace, and contain it, there is unquestionably a “reasonable apprehension of immediate danger of a public emergency” currently present in every portion of this State. MCL 10.31(1). The State is the “area involved,” and
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under the plainly stated language and intent of the EPGA, the Governor is fully authorized to designate that area and respond accordingly.20
Also, any claim that the EPGA is only designed to address local emergencies, and the EMA only statewide ones, is further belied by the language of the EMA. (Pls Bypass App, pp 15–20.) Just as the EPGA plainly accommodates emergencies statewide in scope, so too is the EMA filled with references to the authority for addressing local states of emergencies. It defines a “local state of emergency,” MCL 30.402(j), grants local officials with the authority to declare such a state of emergency, MCL 30.410(1)(b), and provides guidance where a local emergency extends “beyond the control of the county,” MCL 30.414(1). It also leads to the unfounded conclusion that, prior to the passage of the EMA in 1976, the law contemplated no means for the State to respond to a statewide emergency. The idea that the Governor would have had to issue 83 local emergency orders is not well taken, and is wholly unsupported by the text or express purpose of the EPGA. (See 5/22/20 Ct of Claims Op, p 12 (“Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA[.]”).)
20 Similarly misguided is the suggestion that a statewide declaration is contrary to the EPGA because it contemplates that the Governor may act during times of public emergency “within” the State. But even adopting the Legislative Plaintiffs’ definition of “within”—“ ‘Within’ means ‘on the inside or on the inner-side’ or ‘inside the bounds of a place or region’ ” (Pls Bypass App, pp 20, ultimately quoting Webster’s Third New International Dictionary 758 (1993))—the designated area meets that definition. The entirety of the state is “inside the bounds” of the State.
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Third, like squeezing water from a stone, the Legislative Plaintiffs wish to engraft yet another limitation on the EPGA—let us call it the “rioting” limitation— in order to shrink the EPGA’s authority to reach only local emergencies of a very specific sort. (Pls Bypass App, pp 17–18, 25.) This, too, fails. While the Legislative Plaintiffs’ chosen specific term—rioting—is certainly covered by the EPGA, it sits adjacent “great public crisis,” which is quite general (and perfectly applicable), as are “disaster” and “catastrophe.” MCL 10.31. And the trusty canon of construction ejusdem generis is a handy reference, which applies “where a general term follows a series of specific terms,” requiring “the general term [to be] interpreted to include only things of the same kind, class, character, or nature as those specifically enumerated.” Neal v Wilkes, 470 Mich 661, 669 (2004) (cleaned up). With “public emergency” as the general term, the “similar” specific terms must inform the general term’s scope. The ample breadth of “public emergency” is confirmed by the distinct specific terms. The broad terms used by the Legislature, in conjunction with the liberal-construction requirement in MCL 10.32, confirm that the Governor’s declaration under the EPGA is appropriate.
Fourth, the Legislative Plaintiffs stitch together their own narrative of the history and motivations behind the enactment of the EPGA. (Pls Bypass App, pp 24–26.) Plaintiffs, of course, have told the story that helps their case, leaning heavily on a circumscribed review of prior Governors’ understanding of the law which definitionally bears little on the Legislature’s intent—the proper focus of statutory construction. As the Court of Claims found, the proffered history is
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“particularly unpersuasive” because it “does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA” and “rel[ies] on mere generalities and anecdotal commentary.” (5/21/20 Ct of Claims Op and Order, p 15.)
But the accuracy or completeness of that history is fundamentally beside the point. The Legislature made its intentions in enacting the EPGA perfectly clear in the language of the statute itself, and Plaintiffs cannot rewrite those intentions to meet their own considerations. “Because the statute is clear, there is no ambiguity that would permit or justify looking outside the plain words of the statute.” In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109, 116 (2003) (cleaned up). In particular, courts “do not resort to legislative history to cloud a statutory text that is clear.” Id. Lacking any ambiguity, the text of the EPGA, including its express directive to construe its terms broadly, controls.
Fifth, contrary to the Legislative Plaintiffs’ argument, the doctrine of in pari materia, which assists in reading laws on the same subject harmoniously, is generally inapplicable to statutes that are unambiguous and do not present a “patent conflict.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 74 n 26 (2017). And the doctrine is most profitably applied to address statutes that do not refer to each other, so this canon is employed to make sense of their interaction. See, e.g., People v Anderson, ___ Mich App ___ (2019) (No. 343272), slip op at *3 (the doctrine applies “even if the statutes do not reference one another”).
But there is no mystery here, the second-in-time statute—the EMA— expressly explains that it does not “[l]imit, modify, or abridge the authority of the
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governor to proclaim a state of emergency pursuant [the EPGA]” or any other law in place. MCL 30.417(d). Thus, the statutes themselves unambiguously tell us that they each are—and must be read as—independent, supplementary, and nonconflicting grants of authority to the Governor. This understanding of the EMA and EPGA as overlapping authorities makes practical sense too, as the unforeseen discovery of statutory gaps in the midst of an emergency or disaster could be devastating. Better to, as the 1976 Legislature made clear with MCL 30.417(d), complement one authority with another.
The EMA provides for a more extensive structure of governmental action in response to an emergency, and a more detailed set of powers for the Governor to implement in that response. The EMA, however, expressly ensures that, underlying the mechanisms it provides for activating implementing state and local emergency response resources, there remains the EPGA and its foundational assurance that, in times of public emergency, the executive branch is empowered to exercise the police power of the State to do what is reasonable and necessary to protect life and bring the emergency under control. The law provides more than one tool in the Governor’s toolbox, without any limitation against using them in tandem.
Sixth and finally, and for these same reasons, the Legislative Plaintiffs’ attempt to engraft the EMA’s 28-day limitation period onto the EPGA must fail. There is simply nothing in the text of either statute that supports or even suggests it. The Governor’s proclamation only ceases “upon declaration by the governor that the emergency no longer exists.” MCL 10.31(2) (emphasis added). And the
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Legislature, in enacting the EMA thirty years later, wisely chose to leave that characteristic of the EPGA intact. The wisdom of this legal landscape is apparent in the case of a pandemic that respects no boundaries while impacting individuals, regional health systems, and all aspects of life in severe and unpredictable ways.
III. The EPGA contains standards that guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore survives a non-delegation challenge. The Legislative Plaintiffs claim that the EPGA violates the separation of
powers because it lacks sufficient standards to guide the Governor’s decisionmaking, in violation of the non-delegation doctrine. Ample caselaw disagrees.
A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given.
The Michigan Constitution provides for the separation of powers among the three branches of state government. In particular, the Constitution provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch. [Const 1963, art 3, § 1.] But Michigan courts have never interpreted the separation of powers doctrine as meaning there can never be any overlapping of functions between branches. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752 (1982). Rather, an overlap or sharing of power is constitutionally permissible provided that “the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other.” Judicial Attorneys Ass’n v Mich, 459 Mich 291, 297 (1998); see also id. (“It is simply
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impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws.”).
The separation of powers doctrine “ha[s] led to the constitutional discipline that is described as the nondelegation doctrine,” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8 (2003), which the Legislative Plaintiffs claim the EPGA violates. While the legislative power—the power “to make, alter, and amend laws”—sits with the Legislature, Harsha v City of Detroit, 261 Mich 586, 590 (1933), both the U.S. Supreme Court and the Michigan Supreme Court “ha[ve] recognized that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress [or our Legislature] from obtaining the assistance of the coordinate Branches.” Taylor, 468 Mich at 8 (internal quotes omitted).
The Michigan doctrine of non-delegation has been expressed in terms of a “standards test.” Westervelt v Natural Resources Comm, 402 Mich 412, 437 (1978). Under this test, “legislation which contains a delegation of power to . . . [another branch] must contain either explicitly or by reference . . . standards prescribed for guidance . . . .” Id. at 437–438. Significantly, such standards must only be “as reasonably precise as the subject matter requires or permits.” Id. at 438.
And the statute carries a presumption of constitutionality; it “must be construed in such a way as to ‘render it valid, not invalid.’ ” Id., citing Argo Oil Corp v Atwood, 274 Mich 47, 53 (1935). In Michigan, like the federal system, successful nondelegation claims are exceedingly rare. See Taylor, 468 Mich at 9
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(“In the federal courts these improper delegation challenges to the power of federal regulatory agencies have been uniformly unsuccessful.”)
This case presents no exception to the rule; the standards set forth in the EPGA are as “reasonably as precise as the subject matter requires or permits.” Westervelt, 402 Mich at 439. The Legislature did not grant the Governor a blank check. The EPGA provides the Governor the authority, after declaring a state of emergency, to “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). Accordingly, there are several limits on the Governor’s authority. Her orders may come only upon a “public emergency” and the orders must not only be reasonable and necessary, they must be directed at protection of “life and property” or “bring[ing] the emergency situation . . . under control” in the “affected area.” Id.
Michigan courts have consistently upheld similar language as sufficiently precise to avoid any nondelegation problem. In G.F. Redmond & Co v Michigan Sec Comm’n, 222 Mich 1, 7 (1923), this Court held that “the term ‘good cause’ for revocation of the license, relating, as it does, to the conduct of the business regulated by the policy declared in the statute, is sufficiently definite.” See also Smith v Behrendt, 278 Mich 91, 97–98 (1936) (holding that allowing the executive to grant oversize loads for freeway travel in “special cases” was a limited and proper delegation of legislative authority). These examples suffice to reveal that the courts are hesitant to invalidate laws on the basis of an allegedly improper delegation
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where the Legislature provides even a modicum of direction to the executive branch. This level of trust—in the Legislature, to delegate as it sees fit, and in the executive, to follow those guidelines—justifies a strong deference from this Court to its coordinate branches.
The Legislative Plaintiffs rely on Blue Cross & Blue Shield of Michigan v Milliken, which determined that “the power delegated to the Insurance Commissioner” regarding approval of actuarial risk factors “is completely open ended.” 422 Mich 1, 53 (1985). And for good reason—the commissioner’s authority was not guided at all. Instead, the commissioner was granted complete authority to “ ‘approve’ or ‘disapprove’ the proposed risk factors; the basis of the evaluation is not addressed.” Id. Blue Cross is a poor comparison.
And of course, the standards imposed on the Governor’s authority under the EPGA are not read in a vacuum—the “subject matter” of the delegation guides how strictly or narrowly drawn the standards must be. Westervelt, 402 Mich at 439. The context of a developing “crisis, disaster, rioting, catastrophe, or similar public emergency,” MCL 10.31(1), counsels granting substantial leeway to the decisionmaker. Public emergencies are not static events, nor do they unfold patiently or predictably. Response to such crises warrant—indeed require— nimbleness coupled with judgment to meet the needs of the moment. There is no specific one-size-fits-all response to a complex and ongoing emergency. This subject matter requires the broadest level of leeway permissible under the nondelegation doctrine. If “the management of natural resources is a difficult and complex task,”
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DNR v Seaman, 396 Mich 299, 311 (1976), surely the response to a rapidly developing and ever-changing public health crisis is even more so.
The EPGA provides the Governor substantial discretion, but limits her ability to act upon a finding of an emergency, and even then only to exercise her discretion to issue “reasonable” orders “necessary” to protect “life and property” and to bring the emergency “under control.” MCL 10.31(1). These guideposts are more than sufficient, and do not contemplate legislative or judicial second-guessing.
B. The Legislature is not best equipped to address the exigencies of an emergency.
The Legislative Plaintiffs highlight the Legislature’s “nature and design” as best situated to handle the ongoing public health crisis. (Pls Ct of Claims Br, p 44.) They offer the virtues of “consensus through rigorous parliamentary debate,” and considerable “distillation and refinement,” to make public policy choices. (Id.) As explained in painstaking detail by an amicus filing in the Court of Claims (Senate Democrats Caucus Br, pp 6–12), the road from an idea to a bill to an enactment is a long one, filled with procedural requirements—most notably, the constitutional requirement that each bill must sit, at a minimum, for five days in each chamber before it can be passed, Const 1963, art 4, § 26. Though valuable in the normal course of legislative deliberation, the response necessary to combat a fast-moving, contagious disease is agile and flexible (as well as temporary and reasonable)
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action, not Robert’s Rules of Order.21 The Legislature knows that to meet the moment, proper delegation to the executive is the wisest course, which is why it granted the authorities it did to the Governor.
This Court should honor that choice. Having extolled its virtues in making public policy choices, it is incumbent on the Legislature, not this Court, to make the changes it seeks. Bicameralism and presentment are the procedures that the Legislature designed to effectuate such choices, and if it thinks it is wise to take the reins in the middle of this crisis, it should exercise its legislative authority to do so. IV. In the EMA, the Legislature requires the Governor declare a state of
emergency and disaster if she finds certain conditions exist. In addition to her authority under the EPGA, the Governor has an independent source of emergency-response authority in the EMA. In determining that the Governor acted outside of that statutory authority under the EMA when issuing Executive Order 2020-68, the Court of Claims made its only error on the merits. That error stems from an interpretation of the EMA’s provision concerning the effect of the Legislature’s decision not to extend the Governor’s declarations of emergency and disaster. (5/22/20 Ct of Claims Op, pp 19–25.) Before review of that provision, however, an understanding of the scope of the EMA sets the background.
21 In some emergency circumstances, even the constitutionally mandated quorum necessary to do business in the Legislature could pose logistical barriers. Const 1963, art 4, § 14.
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A. The EMA sets out a statutory game-plan for state and local emergency response, and it grants the Governor broad powers and duties to “cop[e] with dangers to the state or its people.”
First enacted in 1976, the EMA sets forth several independent (though related) obligations regarding state and local responses to emergencies and disasters in the State. The Governor is not the only subject of the EMA—that act tasks county boards of commissioners, MCL 30.409, and directors in state government, MCL 30.408, among others, with emergency planning, including the designation of emergency management coordinators. See MCL 30.410. It grants those local coordinators the authority to declare a local state of emergency and permits them to, among other things, appropriate funds, provide emergency assistance to victims of a disaster, and enter into regional compacts with public and private entities to respond to the emergencies. MCL 30.410(1)(b).
Particular to the Governor, the EMA grants her the important responsibility to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). This broad charge places the Governor at the forefront of emergency and disaster responsiveness and serves as a baseline for the latitude given to her by the Legislature in times of crisis. To that end, she possesses the authority to “issues executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(2). The act grants the Governor, and only the Governor, the authority to amend or rescind those orders. Id.
This broad statement of authority is confirmed throughout the EMA. For example, MCL 30.414(3), makes clear that the EMA “shall not be construed to restrain the governor from exercising on his own initiative any of the powers set
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forth in this act.” The act also emphasizes the breadth and strength it is intended to add to the Governor’s preexisting emergency response authority, stating that it does not “[l]imit, modify, or abridge” the authority of the Governor to proclaim a state of emergency under the EPGA “or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of the state independent of, or in conjunction with, this act.” MCL 30.417(d). As discussed above, the EPGA confers emergency authority on the Governor without mention of legislative involvement—a characteristic the EMA expressly preserved.
B. If the conditions warrant it, the Governor has a duty under the EMA to declare states of emergency and disaster which actuates certain emergency response mechanisms.
Consistent with this broad authority, the Governor has the obligation to declare states of disaster and emergency if the pertinent conditions exist. She “shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4) (emphasis added). Similarly, she “shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists.” MCL 30.403(3) (emphasis added).
Upon that order or proclamation, the law grants the Governor authority to marshal both state and federal resources to adequately deal with the danger facing the State.22 The executive order or proclamation also authorizes the Governor to
22 See, e.g., MCL 30.404(1) (authorizing deployment of forces and distribution of supplies); MCL 30.404(2) (the Governor may seek and accept federal assistance); MCL 30.408(1) (demanding cooperation among the state agencies).
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exercise additional broad powers, including “[s]uspending a regulatory statute, order, or rule prescribing the procedures for conduct of state business” in certain circumstances, “commandeer[ing] . . . private property necessary to cope with the disaster or emergency,” and “[c]ontrol[ling] ingress and egress to and from a stricken or threatened area,” and “[d]irect[ing] all other actions which are necessary and appropriate under the circumstances.” MCL 30.405(1)(a), (d), (g), (j).
And the EMA expressly defines “state of disaster” and “state of emergency” independently from “disaster” and “emergency.” “[D]isaster” and “emergency” refer to conditions that the Governor may find to exist in the State.23
Distinctly, “state of emergency” and “state of disaster”—both of which were declared in Executive Order 2020-68—are defined as types of executive orders or proclamations that the Governor must issue upon finding emergency or disaster conditions exist. Per MCL 30.402(p), “ ‘state of disaster’ means an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” (Emphasis added.) Similarly, “ ‘state of emergency’ means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency
23 The EMA defines both “disaster” and “emergency.” Under MCL 30.402(e), “ ‘[d]isaster’ means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause. . . .” “Emergency” is defined as “any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.” MCL 30.402(h).
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operations plans applicable to the counties or municipalities affected.” MCL 30.402(p) (emphasis added).
In short, “state of emergency” and “state of disaster” are species of executive orders that activate certain response efforts and resources and may—indeed, must—be issued only when “emergency” or “disaster” conditions are found to exist. These statutory definitions are important to understand the interplay between the Governor’s termination of her prior declarations and subsequent new declarations.
Importantly, “if [the Governor] finds that an emergency [or disaster] has occurred or that the threat of an emergency [or disaster] exists,” the Governor “shall” declare as such in an executive order or proclamation. MCL 30.403(3), (4). Under longstanding Michigan precedent, “the word ‘shall’ is ordinarily construed in its imperative sense, excluding the idea of discretion.” State Bd of Ed v Houghton Lake Cmty Sch, 430 Mich 658, 670 (1988).24 The Governor thus has a duty to declare a state of emergency or a state of disaster if she determines a disaster or emergency has occurred or will occur.
And just as she is required to declare a state of emergency if the real-world conditions merit it, she also has the duty to “terminate” a state of disaster or emergency, i.e., such executive orders, if the conditions cease or the Legislature refuses to extend those executive orders. MCL 30.403(3), (4).
24 See also Sauder v Dist Bd of Sch Dist No 10, Royal Oak Tp, Oakland Co, 271 Mich 413, 418 (1935) (when a statute uses “shall” and “the public are interested” that charge “is imperative”); Southfield Tp v Main, 357 Mich 59, 76 (1959) (“The use of the word ‘shall’ is mandatory and imperative and when used in a command to a public official.”).
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C. Pursuant to the EMA’s mandates, the Governor terminated her earlier declarations and issued new ones because there was an undisputed “disaster” and “emergency” in Michigan.
As April 30 approached and with it the expiration of the declared states of emergency and disaster under the EMA, see Executive Order 2020-33, the Legislature declined to extend those executive orders, despite the lack of dispute that that the conditions in our State remained dire. On April 30, then, in accordance the mandate that the Governor “terminate” the state of emergency and disaster declarations under the EMA absent legislative extension, MCL 30.403(3), (4), the Governor so terminated. Executive Order 2020-66.
Then, since the conditions on the ground undisputedly remained dire—just that day, over 100 Michiganders died from the virus and over 1,100 were confirmed infected25—the Governor found “that an emergency [or disaster] has occurred or that the threat of an emergency [or disaster] exists,” triggering her duty under the EMA to declare as such in an executive order or proclamation. MCL 30.403(3), (4); Executive Order 2020-68, Preamble.
In carrying out her statutory duty, the Governor acknowledged that the measures implemented pursuant to her authority under the EMA and the EPGA (like the Stay at Home order, among others) “have been effective, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over.” Id. She emphasized the continued lack of treatment for the virus, the ease of
25 MLive, Thursday, April 30: Latest developments on coronavirus in Michigan, available at https://www.mlive.com/public-interest/2020/04/thursday-april-30-latestdevelopments-on-coronavirus-in-michigan.html
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transmission, and the “lack [of] adequate means to fully test for it and trace its spread.” Id. Ultimately, the Governor found that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Id. Given her findings and the facts on the ground, the Governor was obligated to issue the declaration.
D. The construction of the Court of Claims and the Legislative Plaintiffs adds limitations on the Governor’s authority that the Legislature did not impose.
The Court of Claims erroneously ruled that the Governor was barred from issuing Executive Order 2020-68. Because the Legislature did not extend the emergency and disaster declarations set to expire on April 30, the Governor terminated them, just as she was required to do. Id. But her duty to issue states of emergency and disaster plainly remained, and was not the subject of those terminated declarations. So, because of the duty to issue such declarations whenever the conditions warrant it—the law states that she “shall” do so—she immediately issued new orders declaring states of emergency and disaster. Id.
The Legislative Plaintiffs’ position—that their refusal to extend requires not only termination of the executive orders, but bars the Governor from issuing distinct and subsequent executive orders—finds no mention in the text. (5/21/20 Ct of Claims Op at 23.) Rather, the Legislature seeks to engraft a second effect of their refusal to extend the Governor’s executive orders: the negation of her duty to respond to emergencies under the EMA.
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To illuminate the legal error (and the real-world stakes) in an all-too-possible factual context, barring the Governor from declaring a state of emergency or disaster on the same subject matter of a prior, un-extended declaration would prohibit her from activating the EMA’s emergency response resources to combat COVID-19, no matter how badly or urgently those resources are needed. How long would the Governor have to wait from the earlier termination before enough time had passed, if the Plaintiffs and the Court of Claims are correct that a minute is simply not long enough? How about a day? A week? Six months? No time period exists in the statute, and this Court should not add some extra-textual time-lapse before the Governor may fulfill her statutory duty to the State and its residents.
Nor is there any requirement in the statute, express or implied, that the Governor’s duty to declare an emergency or disaster may spring back up, but only if the conditions change. (5/21/20 Ct of Claims Op at 23.) And in the absence of any statutory guidance, how is the Governor to know, or a court to review, whether the conditions have sufficiently changed? The EMA does not contemplate this, nor would it make any sense as a matter of emergency response; the decision to declare states of emergency and disaster is entrusted to the sound discretion of the Governor and is based, as it should be, on what the existing conditions require, not on whether they have changed in some undefined and uncertain way. Imposing such extra-textual rules about how and when a Governor can reactivate needed emergency response resources is both unwarranted and dangerous.
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Public health experts warn of a possible second wave of this pandemic. The existence of such unknowns and uncertainties about the future impact of the coronavirus (as with many emergencies or disasters) further supports reading the law as it is, not as the Legislative Plaintiffs would like it to be. The Legislature wrote the law; the Governor followed it. Only the Legislature may amend it.
The Governor is not granted her emergency authority without limit, as the Legislative Plaintiffs’ seemingly warned below. Indeed, although the Governor “shall” declare an emergency or disaster “if he or she finds” that an emergency or disaster has occurred or threat of either exists, she is not empowered to declare either in the absence of the conditions precedent. MCL 30.403(3) and (4). These clear textual limitations should mute the siren-decibel lamentations of the Governor’s purported “tyranny.” (Pls Ct of Claims Br, p 41.)26
And while a Governor’s factual finding of an emergency is entitled to great deference, it is not beyond judicial review. Straus v Governor, 459 Mich 526, 533 (1999), quoting People ex rel Johnson v Coffey, 237 Mich 591, 602 (1927) (“The Governor holds an exalted office. To him, and to him alone, a sovereign people has committed the power and the right to determine the facts in the proceeding before us. His decision of disputed question of fact is final. His finding of fact, if it has
26 The Legislative Plaintiffs bludgeon the Governor’s supposed creation of “new crimes” and for criminalizing violation of her executive orders. (Pls Ct of Claims Reply Br, pp 4, 23–24.) Yet, it is the Legislature that criminalized violation of a Governor’s executive orders. MCL 30.405 (willfully disobeying or interfering with an order of the Governor is a misdemeanor); MCL 10.33 (violation of Governor’s orders “shall be punishable as a misdemeanor” where so stated).
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evidence to support it, is conclusive on this court.”) (emphasis added). If a party disputes the factual support for the Governor’s findings supporting a declaration, it may attempt redress in the courts. But, again, the Legislative Plaintiffs have agreed that emergency and disaster conditions exist.
E. The Legislative Plaintiffs’ responsive arguments do not fully account for the language of the act.
The Legislative Plaintiffs made several arguments below why the Governor’s April 30, 2020 declaration of a state of emergency and state of disaster under the EMA are void. None have merit.
1. No piece of the EMA is invalidated or rendered nugatory. The Court of Claims agreed with the Legislative Plaintiffs’ contention that, under the Governor’s reading, the concurrent-resolution procedure for extending states of emergency and disaster beyond 28 days in MCL 30.403(3) and (4) is rendered meaningless. (5/21/20 Ct of Claims Op and Order, p 24.) Not so. First, the lack of legislative extension after 28 days forces the Governor to terminate those executive orders. That is no mere technicality. This mechanism is a tool to hold the Governor accountable if the conditions supporting a declaration are questionable, or completely lacking. Recall that the declaration “shall” include an explanation of the conditions causing the disaster or emergency and the area affected. MCL 30.403(3) and (4). Therefore, by refusing to extend a declared state of emergency or disaster, the Legislature can force the Governor to prove her
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insistence that an emergency or disaster has not abated, creating an interbranch dialogue on a matter of utmost public importance.27
But that is not the circumstance before the Court—the Legislative Plaintiffs have not denied that Michigan faces a dire public health threat, nor could it in good faith do so. Nonetheless, the Legislature withheld. The statute it drafted, though, does not allow that withholding to override the Governor’s duty to declare states of disaster and emergency, and to cope with the dangers facing the State, when the conditions on the ground warrant it. And wisely so. In a wildfire, the firefighters holding the hose do not pack up if someone shuts off a ringing alarm. Instead, they fight the spread and respond to the conditions as they are.
The lack of legislative extension after 28 days also serves another purpose. It forces the Governor not only to show her work to the Legislature, but to explain to the People the grounds for any renewal of the declarations. This is because all emergency or disaster proclamations must be “disseminated promptly” to “bring its contents to the attention of the general public.” Id. Thus, at least every 28 days, her justifications must be manifest to the whole State, to whom she answers.
Of course, this Court has recognized that it “is not to second-guess those policy decisions or to change the words of a statute in order to reach a different result.” People v Harris, 499 Mich 332, 345 (2016). If the Legislative Plaintiffs now complain that the language they wrote grants them an insufficient measure of
27 Ultimately, as discussed above, this is a determination that, while subject to great deference, is within the courts’ authority to review. See Straus, 459 Mich at 533; Coffey, 237 Mich at 602.
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control over the Governor’s handling of an emergency or disaster, it is up to the Legislature, not this Court, to modify its statutes.
The Legislature had several options for writing its law differently. It could have set an expiration period on her legal duty to declare an emergency, rather than on the just the declaration. Or it could have prohibited the Governor from issuing a substantively similar declaration if the Legislature did not extend the earlier one. It could have constructed the definitions of “state of disaster” and “state of emergency” differently. But the 1976 Legislature wisely did not draft so inflexible and short-sighted a statute. Myriad unforeseen disasters and emergencies awaited future generations, so the Legislature’s words requiring the Governor to issue a declaration where the real-world implications persist was a humble acknowledgement of our predictive limitations, and a trust in the one statewide office equipped to lead a coordinated response.
2. The Governor’s construction does not yield absurd results.
Below, the Legislative Plaintiffs leaned on the concept of absurd results (Pls Ct of Claims Br, pp 21–23), arguing that the Governor issued contradictory orders by simultaneously terminating and declaring states of emergency and disaster. But this, again, shows a misunderstanding both of the Governor’s declarations and of the language of the EMA. Even if the absurd results doctrine exists in Michigan, Johnson v Recca, 492 Mich 169, 193 (2012) (questioning that premise), it involves a high standard: “[a] result is only absurd if it is quite impossible that the Legislature could have intended the result,” id. (cleaned up).
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Again, “state of emergency” and “state of disaster” are, by statutory definition, types of “executive orders.” MCL 30.402(p) and (q). And as the Governor made abundantly clear in Executive Order 2020-66, the termination of her previously declared states of emergency and disaster was not driven by any belief that the emergency and disaster conditions requiring them had ceased to exist. Rather, per the EMA, she terminated those executive orders only because the Legislature refused to extend them. MCL 30.403(3) and (4). Accordingly, Executive Order 2020-66 complies stringently with the law. The Legislature wrote the rules; the Governor followed them.
3. If the Legislative Plaintiffs are right about the authority to effectively veto the Governor’s declarations under the EMA, the Legislature retained an unconstitutional legislative veto under Chadha and Blank.
The Legislative Plaintiffs read the EMA’s concurrent-resolution extension mechanism as a means for the Legislature to force the termination not only of certain orders, but of the Governor’s substantive emergency response authority under the EMA. This reading not only goes beyond contradicting the EMA’s plain text—it is unconstitutional. As discussed above, the Legislature may share its constitutional authority with the Governor provided it prescribes standards for guidance that are reasonably precise in light of the subject matter of the delegation. But once the Legislature does so, it may not retain what amounts to a legislative veto. Blank v Department of Corrections, 462 Mich 103, 113 (2000). If the Legislative Plaintiffs are correct about their interpretation of the concurrentresolution provision, then that body has not just kept a modicum of oversight, but a
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“right to approve or disapprove” the Governor’s exercise of delegated authority—and to do so without itself abiding by constitutional requirements of bicameralism and presentment. Id. Such invasive oversight would violate our Constitution.
In INS v Chadha, 462 US 919 (1983), the U.S. Supreme Court evaluated whether the Constitution permitted Congress to delegate authority to the executive but permit one house of Congress to retain veto authority over the actions of the executive. The Court held that such a maneuver violated the principle of bicameralism and presentment. Id. at 959. Just as in Chadha, where there was “[d]isagreement with the Attorney General’s decision on Chadha‘s deportation— that is, Congress’ decision to deport Chadha,” here, the Legislative Plaintiffs disagree with the Governor’s decision to declare states of disaster and emergency in Michigan and to activate the response resources that accompany those declarations. Id. at 954. Such “determinations of policy” by legislative branches may be implemented “in only one way”: bicameral passage and presentment to the President (or Governor). Id. at 954–955. “Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” Id. at 955.
In Blank, this Court applied the framework in Chadha in considering the constitutionality of a 1977 amendment to the Administrative Procedures Act, which required an administrative agency to “obtain the approval of a joint committee of the Legislature or the Legislature itself before enacting new administrative rules.” 462 Mich at 108 (Kelly, J.). The Court framed the issue as follows: “[W]hether the Legislature, upon delegating [rulemaking authority to an executive-branch agency],
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may retain the right to approve or disapprove rules proposed by [the agency].” Id. at 113. The plurality opinion ultimately answered that question in the negative, finding that the Legislature’s approval or disapproval of an executive-agency rule is “inherently legislative” and therefore “subject to the enactment and presentment requirements of the Michigan Constitution.” Id. at 115–116.
The same conclusion holds for any determination by the Legislature that the Governor can no longer exercise the emergency powers the Legislature has vested in her through the EMA. Effectuating such an inherently legislative determination requires legislative action, and “[w]hen the Legislature engages in ‘legislative action’ it must do so by enacting legislation.” Id. at 119. “[T]he Legislature cannot circumvent the enactment and presentment requirements [that must accompany legislative action] simply by labeling or characterizing its action as something other than ‘legislation.’ ” Id. The Legislative Plaintiffs thus cannot complain that the EMA’s concurrent-resolution procedure has not been given the effect they would like it to have, because that effect—a legislative veto of the Governor’s delegated authority—would be unconstitutional.
The Court of Claims erred in concluding that “[t]he 28-day limit is not legislative oversight or a ‘veto’ of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated.” (5/21/20 Ct of Claims Op and Order, p 25.) But that conclusion is a consequence of the erroneous determination that the legislative extension provision does more work than the text provides. The Legislature’s withholding only results in the termination of certain executive
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orders; it does not operate as a “stop” button on the duty the Legislature delegated to the Governor to respond to emergencies and disaster. The Legislature “must abide by its delegation of authority until that delegation is legislatively altered or revoked,” Chadha, 462 US at 955, through the means set forth in the Constitution.
* * * The Legislative Plaintiffs ask this Court to nullify the Governor’s declarations and all of the executive orders derived from them, like the incrementally loosening Stay Home Order, among others. The emergency and disaster declarations issued by the Governor were executed after careful consideration of the unique nature of the threat facing Michigan and the advice of numerous individuals and entities with unique expertise. To judicially strip the Governor of her authority, contrary to her clear legal obligations, would not just upset the separation of powers, it would work grievous harm on the State and its citizens. If asking this Court to strike down its own statute as unconstitutional is not ironic enough, the Legislative Plaintiffs come to the judiciary seeking a shortcut to do something it already has the power to do—amend the challenged laws. Because both emergency acts grant the Governor the authority she has exercised, and because she has stringently abided by the very terms the Legislature used in granting that power, this Court should hold that the Governor’s executive orders were proper.
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CONCLUSION AND RELIEF REQUESTED The Governor asks this Court to grant the bypass applications, determine that the Michigan House of Representatives and Michigan Senate do not have standing, and hold in the alternative on the merits—that the Governor’s Executive Orders 2020-66, 2020-67, and 2020-68 are validly issued orders under the EPGA and EMA.
Respectfully submitted, B. Eric Restuccia Deputy Solicitor General

Dated: May 29, 2020

/s/ Christopher M. Allen Christopher M. Allen (P75329) Assistant Solicitor General
/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Assistant Attorney General
Joshua Booth (P53847) John Fedynsky (P65232) Assistant Attorneys General Michigan Dep’t of Attorney General Attorney for Defendant-Appellee/ Cross-Appellant P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov fedynksyj@michigan.gov

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STATE OF MICHIGAN IN THE SUPREME COURT

STEVE MARTINKO, an individual; MICHAEL LACKOMAR, an individual, WENDY LACKOMAR, an individual, MARK GARMO, an individual; and STEVE HUDENKO, an individual,

Supreme Court No. 161333 Court of Appeals No. 353604 Court of Claims No. 20-000062-MM

Plaintiffs-Appellants

v

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,

Defendants-Appellees. /

DEFENDANTS-APPELLEES’ BRIEF IN OPPOSITION TO PLAINTIFFS-APPELLANTS’ EMERGENCY BYPASS APPLICATION FOR
INTERLOCUTORY APPEAL AND MOTION FOR IMMEDIATE CONSIDERATION

Dana Nessel Attorney General

Fadwa A. Hammoud (P74185) Solicitor General Counsel of Record

Dated: May 20, 2020

Joseph T. Froehlich Assistant Attorney General Attorneys for Defendants-Appellees P.O. Box 30754 Lansing, MI 48909 517.335.7573

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TABLE OF CONTENTS

Page

Index of Authorities ......................................................................................................iii
Counter-Statement of Jurisdiction .............................................................................. vi
Counter-Statement of Questions Presented ............................................................... vii
Introduction ................................................................................................................... 1
Counter-Statement of Facts and Proceedings .............................................................. 4
Standard of Review...................................................................................................... 10
Argument ..................................................................................................................... 11
I. Plaintiffs’ interlocutory application for a bypass appeal should be denied. ............................................................................................................... 11
II. The Court of Claims did not abuse its discretion in denying Plaintiffs’ request for a preliminary injunction. ............................................................... 12
A. The Court of Claims did not abuse its discretion in holding that Plaintiffs were unlikely to succeed on the merits of their claims under Jacobson v Commonwealth of Massachusetts. ........................... 13
1. The Supreme Court has held that States are granted wide latitude to enact temporary measures to safeguard extreme challenges to the public health. .................................... 13
2. Applying Jacobson to the current public health crisis presented by COVID-19, the Court of Claims correctly held Plaintiffs are unlikely to succeed on the merits of their constitutional claims. ......................................................... 16
3. Even absent Jacobson’s deferential and controlling standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail. ....................................................... 19
a. Procedural Due Process .................................................... 20
b. Substantive Due Process .................................................. 21
4. The Court of Claims correctly held that Plaintiffs were unlikely to succeed on their nondelegation claim. ..................... 24

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Case 1:20-cv-00414-PLM-PJG ECF No. 32-4 filed 06/05/20 PageID.1566 Page 4 of 40 a. The Michigan Constitution provides for the coordinate branches to share authority. .......................... 24 b. The Court of Claims properly turned away a challenge to the Legislature’s detailed delegation of authority to the Governor in emergency circumstances in the EMA................................................ 26 c. Plaintiffs added a claim that is not ripe for review as it was not presented to the Court of Claims below.................................................................................. 28
B. The Court of Claims did not abuse its discretion in deciding the balancing of harms favored denying Plaintiffs’ request for a preliminary injunction. .......................................................................... 29
Conclusion and Relief Requested ................................................................................ 30
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INDEX OF AUTHORITIES

Page

Cases
AFT Mich v Michigan, 297 Mich App 597 (2012) ......................................................................................... 21
Al–Maliki v LaGrant, 286 Mich App 483 (2009) ......................................................................................... 20
Bonner v City of Brighton, 495 Mich 209 (2014) ................................................................................................. 21
Buck v Thomas Cooley Law School, 272 Mich App 93 (2006) ........................................................................................... 30
Compagnie Francaise de Navigation a Vapeur v La State Bd of Health, 186 US 380 (1902) .................................................................................................... 15
Detroit Fire Fighters Assn, IAFF Local 344 v City of Detroit, 482 Mich 18 (2008) ........................................................................................... passim
Dobrezenski v Dobrezenski, 208 Mich App 514 (1995) ......................................................................................... 20
Hughes v Almena Twp, 284 Mich App 50 (2009) ........................................................................................... 20
In re B & J, 279 Mich App 12 (2008) ........................................................................................... 23
In re TK cases, 306 Mich App 698 (2014) ......................................................................................... 20
Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905) .............................................................................................. passim
Judicial Attorneys Ass’n v Mich, 459 Mich 291 (1998) ................................................................................................. 25
Kansas v Hendricks, 521 US 346 (1997) .................................................................................................... 15

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Klammer v Dep’t of Transp, 141 Mich App 253 (1985) ......................................................................................... 28
Maldonado v Ford Motor Co, 476 Mich 372 (2006) ............................................................................... 10, 14, 24, 30
Mich Coalition of State Employee Unions, et al v Civil Service Comm, 465 Mich 212 (2001) ................................................................................................. 12
Mich State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152 (1984) ................................................................................................. 12
Michigan House of Representatives v Whitmer, Ct of Claims Docket No 20-79-MZ ........................................................................... 29
Michigan United for Liberty v Whitmer, Ct of Claims Docket No. 20-61-MZ .......................................................................... 29
Musto v Redford Twp, 137 Mich App 30 (1984) ........................................................................................... 22
Neinast v Bd of Trustees of Columbus Metro Library, 346 F3d 585 (CA 6, 2003)......................................................................................... 21
Northern Warehousing, Inc v Dep’t of Ed, 475 Mich 859 (2006) ........................................................................................... 13, 24
People ex rel Hill v Lansing Bd of Ed, 224 Mich 388 (1923) ................................................................................................. 19
Prince v Massachusetts, 321 US 158 (1944) .................................................................................................... 15
Smith v Behrendt, 278 Mich 91 (1936) ............................................................................................. 27, 28
Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728 (1982) ................................................................................................. 25
State Conservation Dep’t v Seaman, 396 Mich 299 (1976) ........................................................................................... 25, 28
Taylor v Smithkline Beecham Corp, 468 Mich 1 (2003) ............................................................................................... 25, 29
US v Salerno, 481 US 739 (1987) .................................................................................................... 22
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Case 1:20-cv-00414-PLM-PJG ECF No. 32-4 filed 06/05/20 PageID.1569 Page 7 of 40 Westervelt v Natural Resources Comm, 402 Mich 412 (1978) ........................................................................................... 25, 28 Statutes MCL 10.31 .................................................................................................................... 29 MCL 30.401 .................................................................................................................. 29 MCL 30.403 .................................................................................................................. 26 MCL 30.404 .................................................................................................................. 27 MCL 30.405 ............................................................................................................ 26, 27 Rules MCR 7.205.................................................................................................................... 11 MCR 7.305...................................................................................................................... 1
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Case 1:20-cv-00414-PLM-PJG ECF No. 32-4 filed 06/05/20 PageID.1570 Page 8 of 40 COUNTER-STATEMENT OF JURISDICTION
Defendants-Appellees Gretchen Whitmer, Daniel Eichinger, and Dana Nessel do not contest Plaintiffs-Appellants Steve Martinko, Michael Lackomar, Wendy Lackomar, Marck Garmo, and Steve Hudenko’s (collectively, “Plaintiffs”) statement of jurisdiction.
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COUNTER-STATEMENT OF QUESTIONS PRESENTED

1. Plaintiffs have not demonstrated that they will suffer substantial harm if this Court does not grant their emergency interlocutory bypass application for interlocutory appeal, which they waited two weeks to file. Indeed, Plaintiffs have failed to state a claim for which relief may be granted and have not grappled with the mootness of several of their claims. Should this Court deny Plaintiffs’ request for an emergency interlocutory bypass appeal?

Appellants’ answer:

No.

Appellees’ answer:

Yes.

Trial court’s answer: Did not answer.

2. The Court of Claims properly determined that Plaintiffs were unlikely to succeed on the merits of their constitutional and nondelegation claims. Long-standing statutory law and constitutional principles give the Governor the power to combat public health emergencies, and the public would be harmed by piecemeal or wholesale injunctions barring enforcement of the Governor’s executive orders. Did the Court of Claims abuse its discretion in denying Plaintiffs’ request for a preliminary injunction?

Appellant’s answer:

Yes.

Appellee’s answer:

No.

Trial court’s answer: Did not answer.

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INTRODUCTION While Plaintiffs style their application as seeking emergency relief from this Court, Plaintiffs have made no showing that they will suffer “substantial harm” without immediate intervention. MCR 7.305(B)(4)(a). Indeed, their two-week delay in seeking this claimed emergency relief only confirms that such intervention is not warranted. The Court of Claims denied Plaintiffs’ request for preliminary relief from important measures of the Governor’s emergency response to the COVID-19 pandemic, measures that no longer exist in large part and are constitutionally proper in any event. There is no need for expedited consideration of these claims, especially where the Court of Appeals has not yet considered Plaintiffs’ application for leave to appeal. Plaintiffs claim that the orders abridge their constitutional rights, but the law is clear 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.” Jacobson v Commonwealth of Massachusetts, 197 US 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
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crisis. 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.
Here, Plaintiffs attacked two of the most important, and successful, measures in protecting the public health – the restrictions on staying home and traveling. Providing Plaintiffs with their requested relief would endanger the public health and the progress that has been made toward a return to normalcy. Such judicial involvement would also infringe on the Governor’s authority to act in a public health crisis and threaten the overarching plan to cope with the dangers of that crisis and protect the lives, health, and welfare of all Michiganders.
In its discretion, and in harmony with controlling law, the Court of Claims denied Plaintiffs’ request.1 The Court of Claims noted it was unable to pass judgment on the “wisdom” of the executive orders; instead, the Court was tasked with deciding whether the executive orders were consistent with long-standing caselaw regarding the Governor’s responsibility to balance the health and safety of the population during a public-health emergency and the individual rights of its citizens. Under such circumstances, courts are not to strictly scrutinize government action, nor are they to engage in individualized assessments or search for more narrowly tailored prescriptions. In situations such as these, with the COVID-19 pandemic persisting across the planet and the State of Michigan, courts must
1 See Martinko v Whitmer, opinion of the Court of Claims, issued April 29, 2020 (Docket No. 20-62-MM) (attached as Exhibit A).
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simply decide whether the government’s action in response to such an emergency has a “real or substantial relation” to securing the 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.
The Court of Claims did just that. It properly held that the Plaintiffs were unlikely to succeed on the merits of their claims, recognizing the substantial leeway given to the Governor to respond to public health emergencies. The court also recognized the serious danger to the public at large presented by granting Plaintiffs their requested relief.
Now, two weeks after the Court of Claims denied their request for a preliminary injunction, and two weeks after the State filed a motion for summary disposition, Plaintiffs bring this interlocutory “emergency” bypass application for leave to appeal. Yet, Plaintiffs do not contest that most of their claims are moot. And they fail to identify any harm they would suffer if this Court does not grant them an interlocutory appeal. On the merits, Plaintiffs highlight mostly nonapplicable caselaw to tenuously support narrow, non-dispositive questions of law they believe the Court of Claims got wrong. In so doing, they ignore Jacobson and other cases outlining the proper legal standard for evaluating government action in a public health crisis. Indeed, nothing in this application requires this Court’s immediate action.
Their application should be denied.
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COUNTER-STATEMENT OF FACTS AND PROCEEDINGS 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, 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.
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).
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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 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
4 (Id.) 5 (Id.) 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.
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The Governor responds to the emergency with bold, reasonable measures to protect the public.
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 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
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). 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).
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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
Since the filing of the complaint, the Governor has issued additional executive orders that rescinded Executive Orders 2020-21 and 2020-42. 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 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
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.) 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).
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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, and began implementing a regional approach to the reopening of activities in the State.18
The Governor’s ongoing response continues to evolve and meet the changing conditions throughout the State. About a month ago, Plaintiffs bring suit to challenge prior restrictions, and the Court of Claims denies preliminary injunctive relief.
On April 22, 2020, Plaintiffs filed the instant lawsuit against the Governor. Plaintiffs alleged that the social-distancing restrictions found in EO 2020-42 violated their constitutional rights, and that the Emergency Management Act represented an unlawful delegation of law-making authority from the Legislature to the Governor. (Compl, pp 8-15.) Along with their complaint, Plaintiffs filed a motion for an ex parte temporary restraining order, a show cause order, and a preliminary injunction.
Soon after the Governor filed her response to Plaintiffs’ motion, the Court of Claims, Judge Murray presiding, issued an opinion denying Plaintiffs their
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). 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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requested preliminary injunction. (Op and Ord, p 18.) The court noted that, other than the stay-at-home provision and ban on intrastate travel between vacation residences, the provisions of the EO’s challenged by Plaintiffs were rescinded; thus, the court held those claims to be moot. (Id. at 3–4.)
The court then analyzed Plaintiffs’ remaining claims, applying the factors to be considered in evaluating a request for a preliminary injunction. The court held that Plaintiffs were not likely to succeed on their constitutional claims because the Governor’s executive orders had a “real or substantial relation” to the COVID-19 pandemic and were not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” (Id. at 11.) The court also held that Plaintiffs were unlikely to succeed on their nondelegation claim because the EMA “contain[s] specific procedures and certain criteria for the Governor to declare a state of disaster or emergency and . . . specific duties and powers when addressing any declared disaster or emergency.” (Id. at 17.)
Finally, the court balanced the harms between the parties and commented on the public’s interest in enjoining the Governor’s executive orders. The court found that “issuing injunctive relief would not serve the public interest, despite the temporary harm to [P]laintiffs’ constitutional rights” because the “difficulties of living under the executive orders” are temporary, while the result of contracting COVID-19 is potentially “all too permanent.” (Id.) Because the court determined Plaintiffs were unlikely to succeed on the merits of their claims and the balancing of
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harms favored leaving the executive orders in place, the court denied Plaintiffs’ request for a preliminary injunction.
Two days after the Court of Claims issued its opinion, the Governor filed a motion for summary disposition seeking dismissal of all of Plaintiffs’ claims. Instead of responding to the Governor’s motion for summary disposition, and two weeks after the Court of Claims issued its opinion, Plaintiffs filed an application for leave to appeal in the Court of Appeals and the instant “emergency” application for leave to appeal. Plaintiffs seek leave to appeal on an interlocutory basis as they appeal the Court of Claims’ denial of their motion for a preliminary injunction, a non-final order or judgment.
The Governor now files this opposition and asks this Court to deny leave for Plaintiffs to file an interlocutory appeal for the reasons stated below.
STANDARD OF REVIEW This Court reviews a trial court’s grant or denial of a temporary injunction for abuse of discretion. See Detroit Fire Fighters Assn, IAFF Local 344 v City of Detroit, 482 Mich 18, 28 (2008). “[A]n abuse of discretion standard acknowledges that there will be circumstances in which there will be no single correct outcome; rather, there will be more than one reasonable and principled outcome.” Maldonado v Ford Motor Co, 476 Mich 372, 388 (2006), quoting People v Babcock, 469 Mich 247, 269 (2003). “When the trial court selects one of these principled outcomes, the trial court has not abused its discretion and, thus, it is proper for the reviewing court to defer to the trial court’s judgment.” Babcock, 469 Mich at 269.
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Relief is warranted only when “the trial court’s decision falls outside the range of principled outcomes.” Detroit Fire Fighters Ass’n, 482 Mich at 28.
ARGUMENT I. Plaintiffs’ interlocutory application for a bypass appeal should be
denied. MCR 7.205(B)(1) requires that an application for an interlocutory appeal “set[ ] forth facts showing how the appellant would suffer substantial harm by awaiting final judgment before taking an appeal.” Plaintiffs have not done so, failing to even allege how they would suffer substantial harm by waiting for final judgment in this case. This omission is for good reason – Plaintiffs have failed to state a claim for which relief may be granted. Indeed, the Governor filed a motion for summary disposition two days after the Court of Claims issued its opinion denying Plaintiffs’ request for a preliminary injunction. But instead of responding to the Governor’s motion, Plaintiffs waited two weeks and filed this interlocutory, “emergency” application for bypass appeal. Given the strength and substance of the Court of Claims’ opinion, dismissal is warranted, not extraordinary consideration by this Court. Seeking to avoid the inevitable, Plaintiffs come to this Court requesting “emergency” relief, and flatly asserting that they will suffer substantial harm in waiting for a final order from the Court of Claims. But Plaintiffs’ two-week delay in seeking interlocutory review demonstrates that there is no emergency. Just as significantly, Plaintiffs do not contest that most of the claims brought in their original complaint are now moot. In fact, many were moot by the time the
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Court of Claims rendered its opinion denying the preliminary injunctions (Op and Ord, p 3), a finding the Plaintiffs do not challenge.
The only claims that were not moot at the time the Court of Claims issued its decision were the generalized challenge to the stay-at-home order, the restriction on intrastate travel to vacation rentals and the limited restriction regarding access to public lands. (Id.) Plaintiffs have not demonstrated that they will suffer substantial harm absent interlocutory review for these claims. Their bypass application should be denied. II. The Court of Claims did not abuse its discretion in denying
Plaintiffs’ request for a preliminary injunction. Because Plaintiffs acted precipitously in seeking interlocutory review in this case, the only issue before this Court is whether the Court of Claims abused its discretion in denying Plaintiffs a preliminary injunction. A temporary or preliminary injunction is extraordinary relief and “should issue only in extraordinary circumstances.” Mich State Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157, 158 (1984); see also Mich Coalition of State Employee Unions, et al v Civil Service Comm, 465 Mich 212, 226 n 11 (2001). The issuance of this extraordinary relief requires a court to engage in a four-factor analysis, determining whether: (1) the moving party made the required demonstration of irreparable harm, (2) the harm to the applicant absent such an injunction outweighs the harm it would cause to the adverse party, (3) the moving party showed that it is likely to prevail on the merits, and
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(4) there will be harm to the public interest if an injunction is issued. [Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit, 482 Mich 18, 34 (2008).] In its opinion, the Court of Claims properly determined that Plaintiffs were unlikely to succeed on the merits of their claims. The court also properly determined that granting Plaintiffs’ injunction would harm the public more than Plaintiffs.19 In the end, the court exercised its discretion and denied Plaintiffs’ request for a preliminary injunction. That decision should be left undisturbed. A. The Court of Claims did not abuse its discretion in holding that
Plaintiffs were unlikely to succeed on the merits of their claims under Jacobson v Commonwealth of Massachusetts. “In order to justify the extraordinary remedy of a preliminary injunction, the moving party must show a likelihood that it will succeed on the merits of the claim.” Northern Warehousing, Inc v Dep’t of Ed, 475 Mich 859, 859 (2006) (emphasis added). Relying on long-standing, unchallenged caselaw, the Court of Claims correctly held that Plaintiffs were unlikely to prove violations of their constitutional rights or an improper delegation of legislative power in the EMA. 1. The Supreme Court has held that States are granted wide
latitude to enact temporary measures to safeguard extreme challenges to the public health. The Court of Claims found that Plaintiffs were unlikely to succeed on the merits of their constitutional claims, a “reasonable and principled outcome” based on long-standing, unchallenged case law regarding the need for governmental action
19 Because the Governor issued EO 2020-59 in an attempt to protect the public from the spread of COVID-19, the Court of Claims’ opinion blends the two “harm factors” into one analysis.
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in the face of a public health crises even to the point of temporarily curtailing individual constitutional rights. Maldonado, 476 Mich at 388.
Faced with “great danger[ ],” state actors are permitted great latitude to secure the public health. Jacobson, 197 US at 29. 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 plaintiff’s Fourteenth Amendment right “to care for his own body and health in such way as to him seems best.” Id. 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. [Id. at 29.] Jacobson even highlighted the circumstance, without hesitation, in which seemingly healthy people were quarantined against their will aboard a ship on
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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 fitness of the judiciary to invade the authority of a co-equal branch, the Court refused 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.
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 US 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 US 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 US 346, 356 (1997) (block quoting Jacobson in support of the proposition that “an individual’s constitutionally protected interest in avoiding physical restraint may be
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overridden even in the civil context”), but courts across the country have recognized it as providing the proper frame for considering restrictions promulgated in response to the COVID-19 crisis that allegedly touch upon constitutional rights, including fundamental ones. See, e.g., In re Abbott, In re Abbott, opinion of the United States Court of Appeals for the Fifth Circuit, issued April 7, 2020 (Case No. 20-50264), p 8; 2020 WL 1685929. (“Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency.”) (emphasis in original).
Notably, Plaintiffs’ complaint and unsuccessful motion for preliminary injunction failed to meaningfully acknowledge Jacobson, or 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-acentury 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 the Governor’s authority responding to the crisis is paramount.
2. Applying Jacobson to the current public health crisis presented by COVID-19, the Court of Claims correctly held Plaintiffs are unlikely to succeed on the merits of their constitutional claims.
In its opinion, the Court of Claims relied on Jacobson—as well as several other cases—in holding that Plaintiffs were unlikely to succeed in their
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constitutional challenges to the Governor’s executive orders. 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. [April 29, 2020 Opinion and Order Denying Plaintiffs’ Motion for a Preliminary Injunction, p. 11]. The court correctly determined that Plaintiffs could not demonstrate that the Governor’s executive orders lacked a “real or substantial relation” to the COVID-19 pandemic or that it was “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Surely, the “stay home” provision has a real and substantial relation to the COVID-19 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, and the several life-sustaining exceptions. Likewise, 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.
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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 anticipation of local bed shortages.20
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 temporary limitations on travel to cottages and other, second residences.
The rural areas of Michigan are particularly vulnerable to the threat of COVID-19. These also happened to be the areas of the State where many vacation rentals and public lands are located. The higher risk to these areas called for special protection. The restrictions on travel are 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.
In sum, the temporary restrictions in the Governor’s orders have been necessary and appropriate, with a real and substantial relation to stopping the
20 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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spread of the virus, and do not result, beyond question, in a plain, palpable invasion of Plaintiffs’ rights. Jacobson, 197 US at 31. As properly stated by the 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. [April 29, 2020 Opinion and Order Denying Plaintiffs’ Motion for a Preliminary Injunction, p 14]. Under the circumstances, and the rule of Jacobson, the court rightly determined that Plaintiffs’ constitutional challenges to the Governor’s executive orders were unlikely to succeed on the merits.21
3. Even absent Jacobson’s deferential and controlling standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail.
Plaintiffs’ argument that the Court of Claims used the wrong standard in analyzing their claims is incorrect. (Pls’ App, p 7.) Plaintiffs maintain that strict scrutiny review is the appropriate standard, but that argument ignores the very existence of Jacobson and the other cases cited by the Court of Claims establishing the level of judicial deference given to governmental action taken in response to a public health crisis. Nevertheless, should this Court disagree that Jacobson is dispositive, even under a more traditional analysis, Plaintiffs claims fail as a matter of fact and law.
21 See also People ex rel Hill v Lansing Bd of Ed, 224 Mich 388, 390 (1923) (acknowledging “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 [a] dread[ed] disease”).
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a. Procedural Due Process There are two types of due process: procedural and substantive. “The essentials of procedural due process are adequate notice, an opportunity to be heard, and a fair and impartial tribunal.” Hughes v Almena Twp, 284 Mich App 50, 69 (2009). “Due process is a flexible concept, the essence of which requires fundamental fairness.” Al–Maliki v LaGrant, 286 Mich App 483, 485 (2009) Generally, three factors should be considered to determine what is required by procedural due process: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” [In re TK cases, 306 Mich App 698, 706-707 (2014), quoting In re Brock, 442 Mich 101, 111 (1993), in turn quoting Mathews v Eldridge, 424 US 319, 332 (1976).] Here, without any argument or citation to authority, Plaintiffs insist that they were entitled to the full panoply of procedural due process rights to challenge the executive orders prior to entry. Plaintiffs’ entitlement to due process, however, cannot be determined in a static environment, since due process is a “flexible concept calling ‘for such procedural protections as the particular situation demands.’” Dobrezenski v Dobrezenski, 208 Mich App 514, 515 (1995), quoting Mathews, 424 US at 334. Under the circumstances presented here, namely the onset and rapid spread of COVID-19 and the urgent need to act quickly to protect the citizens of Michigan
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from sickness and death, the Governor was not in a position to provide for notice and an opportunity to be heard by Plaintiffs and every other person in the state prior to promulgating the executive orders. That would be akin to asking the fire department to adhere to the administrative procedures act before spraying a house engulfed in flames. The result would have been to delay life-saving actions by weeks, months, or even years. This would be an entirely untenable result given the duties and obligations placed on the Governor to abate the looming disaster.
Moreover, the stay-at-home order is a generally applicable order, so a hearing is not required at all. See Neinast v Bd of Trustees of Columbus Metro Library, 346 F3d 585, 596–97 (CA 6, 2003) (“Governmental determinations of a general nature that affect all equally do not give rise to a due process right to be heard.”); see also Hartman v Acton, No. 2:20-CV-1952, 2020 WL 1932896, at *7 (SD Ohio Apr 21, 2020) (in the context of a TRO, rejecting a plaintiff business owner’s procedural due process challenge to Ohio’s COVID-19 related “Stay-at-home order” that “direct[ed] non-essential businesses to cease operating their physical locations”).
As a result, Plaintiffs were not entitled to notice and an opportunity to be heard regarding the promulgation of the stay-at-home orders.
b. Substantive Due Process The right to substantive due process is violated when legislation is unreasonable and clearly arbitrary, having no substantial relationship to the health, safety, morals, and general welfare of the public. Bonner v City of Brighton, 495 Mich 209, 223–232 (2014); see also AFT Mich v Michigan, 297 Mich App 597 (2012) (the right to substantive due process protects against the arbitrary
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deprivation of liberty or property interests). Here, however, there is nothing unreasonable or arbitrary about the Governor’s stay-at-home orders. As previously discussed, given the characteristics of the virus, the Governor’s actions are reasonably related to protecting 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.” US v Salerno, 481 US 739, 750–751 (1987). Now is such a time.
And while a right to intrastate travel under the Michigan Constitution was declared in Musto v Redford Twp, 137 Mich App 30, 34, n. 1 (1984), the executive orders do not ban all travel in the State of Michigan. Indeed, the orders allow for a substantial amount of travel for citizens engaged in various activities. Furthermore, the travel restrictions in the stay-at-home order are temporary, partially restricting intrastate travel for a few weeks. The exemptions from the general travel restriction represent a balance between reducing travel—and therefore human interactions and community spread of the virus throughout the State—and allowing citizens to engage in essential functions. Such a balance is necessary to maintain the efficacy of the fight against the virus because every time someone fills up their gas tank, they risk spreading the virus.22 And given that
22 The latest scientific data says that the virus can survive up to seventy-two (72) hours on plastic and stainless steel. The New England Journal of Medicine, Aerosol and Surface Stability of SARS-CoV-2 as Compared with SARS-CoV-1 (April 16, 2020), available at https://www.nejm.org/doi/10.1056/NEJMc2004973 (attached as Exhibit O).
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between 25% and 60% of people inflicted with coronavirus may not show any symptoms,23 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 travel restrictions do not deny any citizen of this State “access” to certain areas or roadways. Instead, the restrictions temporarily limit certain traffic, allowing citizens to engage in intrastate travel to, among other things, go to work, get groceries and household and pet supplies, take care of elderly family members or their children, volunteer, exercise, and recreate.
Even under the most demanding constitutional scrutiny, which is inapplicable here, the restrictions are constitutional. Under a strict scrutiny analysis, the government may not infringe upon a fundamental liberty interest unless the infringement is narrowly tailored to serve a compelling state interest. In re B & J, 279 Mich App 12, 22 (2008). As to the State interest at the heart of the travel restrictions, it seeks to “protect the health, safety, and welfare of citizens in” Michigan in the face of a deadly pandemic, a compelling interest. For the reasons discussed above, the temporary travel restriction serves the compelling government interest through the means least restrictive under the circumstances. Thus, it does not violate the Plaintiffs’ right to intrastate travel.
All told, even under a traditional analysis of Plaintiffs’ due process claims, the restrictions imposed in the Governor’s executive orders pass constitutional
23 NBC News, How many people have had coronavirus with no symptoms? (April 20, 2020), available at https://www.nbcnews.com/health/health-news/how-many-peoplehave-had-coronavirus-no-symptoms-n1187681 (Attached as Exhibit P).
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muster, and Plaintiffs claims fail. Plaintiffs cannot demonstrate that the Court of Claims abused its discretion in relying upon and applying well-settled caselaw to its review of their claims.24 Northern Warehousing, Inc, 475 Mich at 859.
4. The Court of Claims correctly held that Plaintiffs were unlikely to succeed on their nondelegation claim.
Similarly sound was the Court of Claims determination that Plaintiffs were unlikely to succeed on the merits of their claim that the Governor’s authority to issue the executive orders under the Emergency Management Act (EMA) was compromised in light of separation of power principles. The Court of Claims rejected the Plaintiffs’ nondelegation claim based on the plain text of the EMA and long-standing, unchallenged case law regarding the ability of the legislative branch to delegate power to the executive branch—an “outcome” that was most certainly “reasonable and principled” and does not warrant disruption or further review. Maldonado, 476 Mich at 388.
a. The Michigan Constitution provides for the coordinate branches to share authority.
The Michigan Constitution provides: The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch
24 Plaintiffs’ arguments regarding civil commitment are of no moment. The executive orders do not commit individuals to confinement in their homes. The orders provide numerous exceptions for the exercise of essential functions. The orders also apply equally and indiscriminately to everyone. Furthermore, the emergency nature of the COVID-19 pandemic renders the cases Plaintiffs cite on this point materially differentiable. Jacobson is analogous to the COVID-19 pandemic, not cases regarding civil commitment and individualized quarantine assessments during periods of normalcy.
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shall exercise powers properly belonging to another branch. Const 1963, art 3, §1. However, Michigan courts have never interpreted this separation of powers doctrine to mean that there can never be any overlapping of functions between branches. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752 (1982). Rather, an overlap or sharing of power is constitutionally permissible provided that “the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other.” Judicial Attorneys Ass’n v Mich, 459 Mich 291, 297 (1998). The separation of powers doctrine “ha[s] led to the constitutional discipline that is described as the nondelegation doctrine,” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8 (2003). And the Michigan doctrine of non-delegation has been expressed in terms of a “standards test.” Westervelt v Natural Resources Comm, 402 Mich 412, 437 (1978). Under this test, “legislation which contains a delegation of power to . . . [another branch] must contain either explicitly or by reference . . . “standards prescribed for guidance . . . .” Id. at 437–438, citing Osius v City of St Clair Shores, 344 Mich 693, 698 (1956). Significantly, such standards must be “as reasonably precise as the subject matter requires or permits.” Id. at 438, citing Osius, 344 Mich at 698; see also State Conservation Dep’t v Seaman, 396 Mich 299, 309 (1976) (“The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.”).
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b. The Court of Claims properly turned away a challenge to the Legislature’s detailed delegation of authority to the Governor in emergency circumstances in the EMA.
In its opinion, the Court of Claims correctly found that the EMA did not improperly delegate legislative power to the Governor because the EMA does not vest the Governor with “uncontrolled, arbitrary power,” and the statute “contain[s] specific procedures and certain criteria for the Governor to declare a state of disaster or emergency and . . . specific duties and powers when addressing any declared disaster or emergency.” (Op and Ord, p 17.)25
That ruling is borne out by the detailed language of the EMA. In addition to the Governor’s “general authority” and “responsib[ility] for coping with dangers to this state or the people of this state presented by a disaster or emergency,” MCL 30.405(1) & 30.403(1), the Governor “shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4) (emphasis added). Similarly, she “shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists.” MCL 30.403(3) (emphasis added).
Upon that order or proclamation, the law grants the Governor authority to marshal both state and federal resources to adequately deal with the danger facing
25 The Plaintiffs have not below, and do not here, challenge whether the Governor’s action was properly within her authority under the EMA.
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the state.26 That executive order or proclamation also authorizes the Governor to exercise additional powers, including but not limited to, “[s]uspending a regulatory statute, order, or rule prescribing the procedures for conduct of state business” in certain circumstances, “commandeer[ing] . . . private property necessary to cope with the disaster or emergency,” and “[c]ontrol[ling] ingress and egress to and from a stricken or threatened area,” and “[d]irect[ing] all other actions which are necessary and appropriate under the circumstances.” MCL 30.405(1)(a), (d), (g), (j).
The Court of Claims did not abuse its discretion in determining that this detailed guidance to the Governor more than sufficiently guided the Governor’s conduct. Given the lengthy list of “specific procedures and certain criteria” found in the EMA, it was not “outside the range of principled outcomes” for the court to conclude that Plaintiffs were unlikely to succeed on their nondelegation claims. Detroit Fire Fighters Ass’n, 482 Mich at 28. Indeed, its conclusion was consistent with the law in this State. See Smith v Behrendt, 278 Mich 91, 97–98 (1936) (holding that allowing the executive to grant oversize loads for freeway travel in “special cases” was a limited and proper delegation of legislative authority); see also
26 See, e.g., MCL 30.404(1) (“An executive order or proclamation of a state of disaster or a state of emergency shall serve to authorize the deployment and use of any forces to which the plan or plans apply and the use or distribution of supplies, equipment, materials, or facilities assembled or stockpiled . . . .”); MCL 30.404(2) (“Upon declaring a state of disaster or a state of emergency, the governor may seek and accept assistance, either financial or otherwise, from the federal government, pursuant to federal law or regulation.”); MCL 30.408(1) (“Upon the declaration of a state of disaster or a state of emergency by the governor, each state agency shall cooperate to the fullest possible extent with the director in the performance of the services that it is suited to perform, and . . . in the prevention, mitigation, response to, or recovery from the disaster or emergency.”)
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Klammer v Dep’t of Transp, 141 Mich App 253, 262 (1985) (holding that the term “necessary” was a sufficiently precise standard for the retirement board to follow).
In sum, the Court of Claims got it right: the EMA provides sufficient guideposts for the Governor such that it does not improperly delegate unfettered legislative power to the executive branch. See Westervelt, 402 Mich at 437; Seaman, 396 Mich at 309; Smith, 278 Mich at 97–98; Klammer, 141 Mich App at 262. The court certainly did not stray beyond the “range of principled outcomes” in exercising its discretion to determine Plaintiffs were unlikely to succeed on the merits of their nondelegation claim. Detroit Fire Fighters Ass’n, 482 Mich at 28.
c. Plaintiffs added a claim that is not ripe for review as it was not presented to the Court of Claims below.
In its application for leave, Plaintiffs stray beyond the lower court record and offer an additional challenge to the Governor’s authority that is not properly before this Court. Plaintiffs challenge the issuance of EO 2020-59 under the Emergency Powers of the Governor Act (EPGA)—for the first time in this case—and also argue that recent action by the Governor, which took place after the Court of Claims denied their request for a preliminary injunction, evidences a nondelegation issue. Those arguments and factual assertions were not considered by the Court of Claims and are irrelevant to review on appeal. Plaintiffs’ complaint and motion for preliminary injunction never challenged EO 2020-59 under the EPGA, and the
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Court of Claims did not—could not—consider gubernatorial action that took place
after it issued its opinion.27
B. The Court of Claims did not abuse its discretion in deciding the balancing of harms favored denying Plaintiffs’ request for a preliminary injunction.
The Court of Claims held that its determination that Plaintiffs were not
likely to succeed on the merits of their claims alone was dispositive of the request
for a preliminary injunction. Nevertheless, the Court of Claims also addressed the
harm factors. The Court of Claims held:
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. [Ex A, p 17.]
27 A similar challenge under the nondelegation doctrine is advanced against the Emergency Powers of the Governor Act in another action currently pending in the Court of Claims. See Michigan House of Representatives v Whitmer, Ct of Claims Docket No 20-79-MZ. A decision on that issue is expected in short order.
Also, in In Michigan United for Liberty v Whitmer, Ct of Claims Docket No. 20-61MZ, the Court determined that the plaintiff is unlikely to succeed on the merits of its claims because neither the Emergency Management Act, MCL 30.401 et seq, nor the Emergency Powers of the Governor Act, MCL 10.31 et seq, represent an impermissible delegation of legislative authority to the Governor. As noted by the Court, “[H]istorically, these types of challenges ‘have been uniformly unsuccessful’ across federal and state jurisprudence.” Taylor v Smithkline Beechap Corp, 468 Mich 1, 8; 658 NW2d 127 (2003). See Michigan United for Liberty v Whitmer, opinion of the Court of Claims, issued May 19, 2020 (Docket No. 20-61-MZ) (attached as Exhibit Q).
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In their application for leave, Plaintiffs argue that the Court should not have disturbed the “status quo”—meaning life before social distancing and stay-at-home orders—by denying their request for an injunction. However, COVID-19 will not disappear with a court decision; indeed, the “status quo” Plaintiffs speak of does not exist at present. Instead, the court protected the operative status quo by denying Plaintiffs’ request to enjoin the executive orders. The orders were put in place after careful consideration of the unique threat facing Michigan and the advice of numerous individuals and entities with unique expertise, to reduce the spread of COVID-19 and protect Michiganders.28
A piecemeal lifting of restrictions by the judiciary, without regard to the State’s carefully considered, deliberate, ongoing plan to combat the crisis and transition back to normalcy, would increase the risk and potential harm to everyone. It was entirely in the court’s discretion to determine the harm in upending the Governor’s carefully laid out plan to combat COVID-19 was greater than the individual harm claimed by Plaintiffs, and, given the seriousness of the threat faced by the people of Michigan, that decision was undoubtedly “reasonable and principled.” Maldonado, 476 Mich at 388.
CONCLUSION AND RELIEF REQUESTED Plaintiffs sought extraordinary relief from the Court of Claims in the form of a preliminary injunction and now they seek extraordinary relief from this Court in
28 See Buck v Thomas Cooley Law School, 272 Mich App 93, 98 n 4 (2006) (defining status quo as “the last actual, peaceable, noncontested status which preceded the pending controversy”) (citation omitted)
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the form of an “emergency” bypass application for interlocutory appeal. Plaintiffs are not entitled to the relief they seek. The Court of Claims properly declined to enjoin the enforcement of the Governor’s executive orders where Plaintiffs were unlikely to succeed on the merits of their claims, and where the risk and potential harm to the public caused by re-opening Michigan in one fell swoop would far outweigh any temporary harm to Plaintiffs.
Defendants-Appellees respectfully request that this Court deny PlaintiffsAppellants’ Emergency Bypass Application for Interlocutory Appeal.
Respectfully submitted, Dana Nessel Attorney General Fadwa A. Hammoud (P74185) Solicitor General Counsel of Record

Dated: May 20, 2020

/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Assistant Attorney General Attorneys for Defendants-Appellees State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573

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 Case 1:20-cv-00414-PLM-PJG ECF No. 33 filed 06/05/20 PageID.1603 Page 1 of 13

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v
GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-00414
HON. PAUL L. MALONEY
MAG. PHILLIP J. GREEN
DEFENDANTS WHITMER AND GORDON’S
BRIEF REGARDING CERTIFICATION

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov

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Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

DEFENDANTS WHITMER AND GORDON’S BRIEF REGARDING CERTIFICATION

Dated: June 5, 2020

Joseph T. Froehlich (P71887) John Fedynsky (P65232) Christopher M. Allen (P75329) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573

Case 1:20-cv-00414-PLM-PJG ECF No. 33 filed 06/05/20 PageID.1605 Page 3 of 13 CONCISE STATEMENT OF ISSUES PRESENTED
1. Plaintiffs’ state law claims are moot or otherwise non-justiciable and should be dismissed with prejudice. In the alternative, this Court should decline supplemental jurisdiction over the state law claims and dismiss Counts I and II without prejudice. A final alternative is to hold the state law claims in abeyance pending the outcome of several matters already pending in Michigan’s state courts. In any instance, this Court should decline to certify the state law claims to the Michigan Supreme Court.
i

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Authority: Western District Local Rule 83.1
ii

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INTRODUCTION This case presents two distinct categories of claims – federal civil rights claims and state law claims of statutory interpretation and state constitutional law. The federal civil rights claims raise constitutional challenges under the United State Constitution and are unambiguously within the federal question jurisdiction of this Court. But the state law claims are of a different breed all together. These questions regard the scope and state constitutionality of two Michigan statutes – the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31, et seq. (EPGA), and the Emergency Management Act, Mich. Comp. Laws § 30.401, et seq. (EMA). Identical questions about the scope of the EMA and EPGA are being litigated in Michigan’s state courts, and there is scant Michigan authority interpreting or applying the statutes. Nevertheless, this case is not a good candidate for certification of the issues to the Michigan Supreme Court. In Michigan House and Senate v. Gov. Whitmer, the scope of permissible action under the EMA and EPGA is being litigated, as is whether the EPGA is an impermissible delegation of legislative authority to the Governor. The constitutional delegation question regarding the EPGA is also being litigated in in Michigan United for Liberty v Gov. Whitmer and Ostergren, et. al. v. Governor
1

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Whitmer, et. al.1 All of these cases are currently pending in the Michigan Court of Appeals.
As briefed in Governor Whitmer and Director Gordon’s motion to dismiss, all of Plaintiffs’ claims are moot or otherwise non-justiciable. (R. 24-2, pp. 13-18, Page ID# 1119-24). Alternatively, as briefed in that motion to dismiss, this Court should abstain from and otherwise decline supplemental jurisdiction over Plaintiffs’ state law claims. (R. 24-2, pp. 21-32, Page ID# 1127-38). This Court should dismiss the entire case (including the state law claims in Counts I and II) based on any of these bases rather than certifying issues to the Michigan Supreme Court. It would be inappropriate and a waste of judicial resources to certify questions for claims that are non-justiciable. If the claims are justiciable, the legal issues should be developed in the lower state court prior to consideration by Michigan’s appellate courts.
Should this Court reach the merits of the certification question, the factors for certification are not met. While Counts I and II of the complaint present unsettled issues of state law, the state law issues to be certified may not control the outcome of this litigation. Rather than certification, this Court should dismiss the state law claims or, if this Court disagrees that dismissal is warranted, should hold
1 See Michigan United for Liberty v. Governor Whitmer, Michigan Court of Claims Case No. 20-61-MZ, Michigan Court of Appeals No. 353643; Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ, Michigan Court of Appeals No. 353655, Michigan Supreme Court No. 161377; Ostergren, et. al. v. Governor Whitmer, et. al., Michigan Court of Claims Case No. 20-53-MZ, Michigan Court of Appeals Case No. not assigned yet.
2

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them in abeyance pending the outcome of several already-pending Michigan state court matters.
ARGUMENT I. This Court should dismiss Counts I and II with prejudice as moot or
otherwise non-justiciable. In the alternative, this Court should abstain and otherwise decline supplemental jurisdiction over Counts I and II and dismiss those claims without prejudice. In their motion to dismiss, Governor Whitmer and Director Gordon have briefed at length the issues of mootness, abstention, and declination of supplemental jurisdiction. The Governor and Director has also raised other serious questions about the justiciability of Plaintiffs’ claims, including ripeness and standing considerations. (R. 24-2, pp. 12-32, Page ID# 1118-38). Those arguments need not be repeated in full here. Regarding mootness, there is no longer any live controversy underlying Plaintiffs’ challenges to the EMA and the EPGA, and Plaintiffs have no legally cognizable interest in the outcome of the litigation. This Court should not certify a question to the Michigan Supreme Court that is moot or otherwise non-justiciable. Instead, Plaintiffs’ state law claims should be dismissed with prejudice. If this Court is not inclined to dismiss Plaintiffs’ claims as moot (or otherwise not justiciable), this Court should dismiss the state law claims without prejudice, and Plaintiffs would be free to re-file their claims in a Michigan court of proper jurisdiction, where the claims may proceed in due course. This would allow for the legal issues in Plaintiffs’ claims to be developed by a lower court prior to consideration by Michigan’s appellate courts in which these issues are currently
3

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pending.2 In either instance, this Court should dismiss Counts I and II rather than
certifying issues to the Michigan Supreme Court.
II. The Court should not certify the state law questions in the complaint to the Michigan Supreme Court.
The district court local rules, Western District LR 83.1, provide the standard
for certification. That Rule states:
LR 83.1 - Certification of Issues to State Courts
Upon motion or after a hearing ordered by the judge sua sponte, the court may certify an issue for decision to the highest court of the state whose law governs any issue, claim or defense in the case. An order of certification shall be accompanied by written findings that: (a) the issue certified is an unsettled issue of state law; (b) the issue certified will likely affect the outcome of the federal suit; and (c) certification of the issue will not cause undue delay or prejudice. The order shall also include citation to authority authorizing the state court involved to resolve certified questions. In all such cases, the order of certification shall stay federal proceedings for a fixed time, which shall be subsequently enlarged only upon a showing that such additional time is required to obtain a state court decision. In cases certified to the Michigan Supreme Court, in addition to the findings required by this rule, the court must approve a statement of facts to be transmitted to the Michigan Supreme Court by the parties as an appendix to briefs filed therein.
While Counts I and II of the complaint present unsettled issues of state law,
the issues are already pending before Michigan’s appellate courts in multiple cases,
and the state law issues to be certified may not control the litigation’s outcome.
2 On June 4, 2020, in Michigan House and Senate v. Gov. Whitmer, the Michigan Supreme Court denied the parties’ cross-bypass applications for leave to appeal, based in part on the lack of a fully developed appellate record. (Attached as Exhibit A). This action by the Michigan Supreme Court is strong evidence that even if this Court certifies the questions, that the Court may not decide the issues in the absence of a developed Michigan appellate court record.
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A. The questions presented by Counts I and II of the complaint are unsettled issues of state law, but those issues are better resolved by cases already pending in Michigan’s state courts.
The questions raised in Counts I and II regard the scope and state constitutionality of the Michigan Emergency Powers of the Governor Act (EPGA) and the Michigan Emergency Management Act (EMA). The law is unsettled in these areas and these same legal issues are currently pending before the Michigan Court of Claims and the Michigan Court of Appeals. And while Counts I and II present novel questions of state law, and federal courts have an “interest in avoiding the unnecessary resolution of state law issues,” Hankins v. The Gap, Inc., 84 F.3d 797, 803 (6th Cir. 1996), this case is not a good candidate for certification.
The primary relief sought in this case—nullification of the executive actions concerning non-essential medical procedures and the corresponding limitation on travel—is simply no longer available because the executive orders no longer exist. Serious questions of mootness, standing, and ripeness pervade this case. With this serious problem of justiciability, certification within this case is simply unnecessary, and a poor vehicle for resolving the foundational issues regarding the Governor’s authority.
B. The state law issues to be certified are unlikely to affect the outcome of this suit.
If this Court certifies the issues, there is only one potential outcome in the Michigan Supreme Court that will control the outcome in this case. In Count I, Plaintiffs maintain (incorrectly) that the Governor’s executive orders are not authorized by the EMA or the EPGA. In Count II, Plaintiffs assert (again,
5

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incorrectly) that the EMA and EPGA are impermissible delegations of legislative
authority to the Governor.
These state-law questions will only matter in the unlikely scenario that the
Plaintiffs win on their challenges to both the EPGA and the EMA, since each of the
Governor’s executive orders challenged in Counts III, IV, V and VI was issued under
both statutes. Should this one scenario come to pass, the Court would not need to
reach the federal constitutional questions raised in those Counts.
But a more likely scenario is that the Governor’s position will carry the day
as to one or both statutes – that the Governor’s executive orders are within the
scope of the EMA and/or the EPGA, and that there is no constitutional delegation
problem with the EMA and/or the EPGA.3 Under those circumstances, the decision
of the Michigan Supreme Court will not control the outcome of this case, and this
Court will be required to take up the federal constitutional questions raised in
Counts III, IV, V and VI. And of course, for there to be any need for this Court (or
3 Claims similar to those raised by Plaintiffs have already been evaluated and rejected as unlikely to be successful on the merits in the Michigan Court of Claims. See 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, (Attached as Ex. B); Michigan United for Liberty v. Governor Whitmer, Michigan Court of Claims Case No. 20-61-MZ, May 19, 2020 Opinion and Order Denying Plaintiff’s Motion for a Preliminary Injunction (Attached as Ex. C), leave granted by the Michigan Court of Appeals on May 29, 2020 (COA No. 353643); Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ, May 21, 2020 Opinion and Order of Dismissal (Attached as Exhibit D), claim of appeal pending in Michigan Court of Appeals (COA No. 353655); Ostergren, et. al. v. Governor Whitmer, et. al., Michigan Court of Claims Case No. 20-53-MZ, Opinion and Order Granting Summary Disposition (Attached as Exhibit E), claim of appeal pending in the Michigan Court of Appeals (COA No. not assigned).
6

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any other court) to reach the merits of Plaintiffs’ state or federal claims, those claims must be justiciable – which, as discussed, they are not.
In sum, there is a chance that certification will control the outcome of this case – but it is a slim chance. Certification is not warranted. III. Another option is to hold the state law claims (or the entire case) in
abeyance pending the outcomes of the cases already pending in Michigan’s state courts. The final option would be to hold the state law claims in this case in abeyance pending the resolution of Michigan House and Senate v. Gov. Whitmer in the Michigan appellate courts, or any other cases concerning questions presented in Counts I and II. This Court could decide the federal questions raised in Counts III, IV, V and VI now, and later decide the state law questions in Counts I and II following the resolution of the issues by the state’s appellate courts. Or it could hold all of Plaintiffs’ claims in abeyance pending that resolution. There is a risk of inconsistent results if this Court decides the state law issues on the merits. There is potential that this Court could reach one conclusion on the state law questions, only to have the Michigan appellate courts reach a different conclusion. Abeyance will avoid the potential for inconsistent results altogether, as Michigan’s state courts are the proper forum to decide these issues of state law.
CONCLUSION AND RELIEF REQUESTED The question of the scope and state constitutionality of the EMA and EPGA are ultimately questions of state law. And there is no question that the highest court of the state is the final arbiter of such state law issues. But there are cases
7

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already pending in Michigan’s courts that raise these claims, thus making it
unnecessary for this Court to certify the questions based on executive orders that
have already been rescinded. Instead, this Court should dismiss Plaintiffs’ claims
as non-justiciable or, failing that, should allow Plaintiffs to refile their state law
claims in state court or hold them (or this case) in abeyance pending the resolution
of the already-pending state-court cases that present those same legal issues.
Governor Whitmer and Director Gordon respectfully request that this Court:
1. Dismiss Counts I and II of Plaintiffs’ Complaint with prejudice as moot or otherwise non-justiciable; or
2. Decline jurisdiction over Counts I and II and dismiss those state law claims without prejudice; or
3. Hold Counts I and II (or the entire case) in abeyance pending the resolution of the legal issues presented in Counts I and II in one of the already-pending state-court cases that present them.
Respectfully submitted,

Dated: June 5, 2020

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

8

Case 1:20-cv-00414-PLM-PJG ECF No. 33 filed 06/05/20 PageID.1615 Page 13 of 13 CERTIFICATE OF SERVICE
I certify that on June 5, 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 & Gordon State Operations Division
9

Case 1:20-cv-00414-PLM-PJG ECF No. 33-1 filed 06/05/20 PageID.1616 Page 1 of 19

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants. /

EXHIBIT A

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Order

Michigan Supreme Court Lansing, Michigan

June 4, 2020
161377 & (7)(13)(14)(15)(18)
HOUSE OF REPRESENTATIVES and SENATE,
Plaintiffs-Appellants/ Cross-Appellees, and
JOHN F. BRENNAN, MARK BUCCHI, SAMUEL H. GUN, MARTIN LEAF, and ERIC ROSENBERG,
Intervenors-Appellants,
v
GOVERNOR, Defendant-Appellee/ Cross-Appellant.
_________________________________________/

Bridget M. McCormack,
Chief Justice
David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman Brian K. Zahra
Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh,
Justices
SC: 161377 COA: 353655 Court of Claims: 20-000079-MZ

On order of the Court, the motions for immediate consideration and the motion to file brief amicus curiae are GRANTED. The application for leave to appeal prior to decision by the Court of Appeals and the application for leave to appeal as crossappellant are considered, and they are DENIED, because we are not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals. The prospective intervenors’ motion to docket is DENIED.

BERNSTEIN, J. (concurring).

I agree with my fellow Justices that this case presents extremely significant legal issues that affect the lives of everyone living in Michigan today. And that is exactly why I join the majority of this Court in denying the parties’ bypass applications—because I believe that a case this important deserves full and thorough appellate consideration.

Additionally, with the issuance of Executive Order No. 2020-110, “shelter in place” is no longer mandated in the state of Michigan. While recognizing that not all restrictions have been lessened (and acknowledging the possibility of future restrictions being reimplemented), I believe the parties and this Court would benefit most from having the vital constitutional issues of this case fully argued in the Court of Appeals before receiving a final determination from our Court. See League of Women Voters v Secretary of State, 505 Mich 931 (2019) (denying the plaintiffs’ bypass application). Cases of the ultimate magnitude, such as this one, necessitate the complete and comprehensive consideration that our judicial process avails.

The significance of this case is undeniable. And with many of the restrictions on

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2
daily life having now been lifted, our eventual consideration of these issues must receive full appellate consideration before our Court can most effectively render a decision on the merits of this case.
CLEMENT, J. (concurring).
In this case, the Legislature advances several arguments asking us to hold that a law it enacted 75 years ago, 1945 PA 302, codified at MCL 10.31 et seq., is unconstitutional or the Governor’s actions are beyond the statutory authority contained in that statute, and that the Governor’s executive orders issued under that statute in response to the COVID-19 pandemic are consequently invalid. Contrary to what is suggested by the dissents from the Court’s order today, the Legislature is not litigating the civil liberties of all Michiganders. Moreover, to read the dissents, one might be left with the impression that this Court has declined altogether to decide this case. It has not—it has only declined to decide the case before the Court of Appeals does. I believe this is both compelled by our court rules and advisable as a matter of prudence. Because I believe the Court neither can nor should review this case before the Court of Appeals does, I concur with the Court’s order denying these bypass applications.
I believe, first, that the rules governing bypass applications are not satisfied here. Given that “the supreme court shall have . . . appellate jurisdiction as provided by rules of the supreme court,” Const 1963, art 6, § 4, whether the rules have been satisfied is seemingly of its own jurisdictional and constitutional significance. Our rules provide that, to grant a bypass application, “[t]he application must show” either that “delay in final adjudication is likely to cause substantial harm” or that “the appeal is from a ruling that . . . any . . . action of the . . . executive branch[] of state government is invalid[.]” MCR 7.305(B)(4)(a) and (b). I do not believe the Legislature satisfies either requirement. In its bypass application, the Legislature argues that the “substantial harm” prong is satisfied because “Michiganders . . . are living under a cloud of ambiguity” given the debate over whether the Governor’s executive orders responding to the COVID-19 pandemic are actually legal. But this case is not a class action filed on behalf of all Michiganders to litigate their civil liberties—it is a suit filed by the Legislature asserting that certain of its institutional prerogatives have been infringed by the Governor’s actions. The Legislature shows no substantial harm to the Legislature caused by going through the ordinary appellate process. As an institution, it is exactly as free to enact legislation—whether responsive to this pandemic or otherwise—as it was before any of the Governor’s executive orders were entered.1 As to the “invalidity of executive action”
1 Justice VIVIANO argues that the Legislature’s separation-of-powers argument, if vindicated, would be a “substantial harm,” and that “[a]t the bypass stage, we need not decide the merits of the Legislature’s separation-of-powers argument.” I agree that we need not decide those merits, and we are not by denying this bypass application. Given the novelty of the Legislature’s standing argument, however, I do not believe it can show

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3
prong, the Legislature argues that “this appeal involves a ruling that has already declared” Executive Order No. 2020-68 invalid. However, the Legislature does not appeal that ruling—rather, it appeals the ruling that Executive Order No. 2020-67 and its successors are valid. In my view, the Legislature’s inability to satisfy MCR 7.305(B)(4) is fatal to its bypass application.2 Since the Michigan Constitution commits to us the ability to prescribe our own appellate jurisdiction, we are obliged to scrupulously adhere to the restrictions we have imposed on ourselves if we are to sit in judgment of the constitutionality of 1945 PA 302 and the Governor’s actions under it.3
that it has suffered a substantial harm at this point with the certainty required to justify the extraordinary act of granting a bypass appeal. After Court of Appeals review, the Legislature would need to show only that either “the issue involves a substantial question about the validity of a legislative act,” “the issue has significant public interest and the case is one . . . against . . . an officer of the state . . . in the officer’s official capacity,” or that “the issue involves a legal principle of major significance to the state’s jurisprudence.” MCR 7.305(B)(1) through (3). I predict these showings will be much easier to make.
2 Justice ZAHRA argues that “even assuming there is a shortcoming in the Legislature’s application, that defect is cured by the Governor’s” bypass cross-appeal, but I disagree. The court rules list what an application for leave to appeal “must show,” MCR 7.305(B), and the Legislature’s application does not make the required showing. There is no indication under the rule that a party who fails to make a required showing can have its application rehabilitated by the other side. I am also unpersuaded by Justice VIVIANO’s citation of the rules of the Supreme Court of the United States. Justice VIVIANO does not deny that the language used there is different from our rules and requires a showing only “that the case is of such imperative public importance as to justify deviation from normal appellate practice . . . .” Sup Ct Rule 11. Our general rules governing leave to appeal require a similar showing, see MCR 7.305(B)(1) through (3), but for a bypass application our rules require the additional showing, beyond the importance of the issues, of either substantial harm or that the case is an appeal from a ruling that certain legislative or executive actions are invalid, MCR 7.305(B)(4). I do not believe such a showing is made here. Nor do I believe that the decisions of other state supreme courts, with different court rules, should control our application of our court rules.
3 Justice VIVIANO asserts that “[i]t is indisputable that our Court has jurisdiction over this case,” but with a plurality of this Court concluding otherwise, it is plainly disputable. An application “must show” the items included in the list. MCR 7.305(B). Echoing that language, commentary on our rules also characterizes it as mandatory. See GervilleRéache, Expediting Review, § 7.23, p 199 in Michigan Appellate Handbook (Shannon & Gerville-Réache eds, 3d ed, January 2018 update) (remarking that a bypass application “must show” the grounds listed in MCR 7.305(B)(4)). Moreover, the original form of the rule provided only that bypass applications show that “delay in final adjudication is likely to result in substantial harm”; the additional option in MCR 7.305(B)(4)(b) that a bypass

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4
I also concur with denying the Governor’s bypass cross-appeal. “It is a general rule in this state . . . that only a party aggrieved by a decision has a right to appeal from that decision,” meaning that “ ‘[a] party who could not benefit from a change in the judgment has no appealable interest.’ ” Ford Motor Co v Jackson (On Rehearing), 399 Mich 213, 225-226 (1976) (citation omitted). It is, at minimum, uncertain to me whether the Governor is aggrieved by the decision of the Court of Claims such that she would have appellate standing at this juncture. On the one hand, the Court of Claims ruled that EO 2020-68 was an invalid evasion of the requirement under MCL 30.403(3) and (4) of the Emergency Management Act (EMA), MCL 30.401 et seq., that the Legislature approve disaster and emergency declarations after 28 days; invalidating EO 2020-68 falls within the terms of MCR 7.305(B)(4)(b) and is arguably the sort of appealable interest an appealing party must possess. However, the Court of Claims also ruled that MCL 10.31(1) was an adequate basis for all of the Governor’s substantive orders that have purported to regulate much of life in Michigan after April 30, 2020.4 Because no substantive regulation issued by the Governor has been held invalid, I question whether the Court of Claims’ ruling that EO 2020-68 invalidly evaded the EMA is anything more than an advisory opinion.5 And, because “it is only opinions issued by the Supreme
application can also show that it is an appeal from a ruling that various forms of law or government action are invalid was added in 2002. See 466 Mich lxxxvi, lxxxix (2002). Since such a judicial declaration would already have fallen within the grounds listed in MCR 7.305(B)(1) through (3), the fact that MCR 7.305(B)(4)(b) was added to MCR 7.305(B)(4) indicates that we understood it to be mandatory for bypass applications; otherwise, it would be redundant of what is already stated in MCR 7.305(B)(1) through (3). Our past practice also indicates it is mandatory, as we have denied bypass applications on the basis that the grounds in the rule were not satisfied. See White v Detroit Election Comm, 495 Mich 884 (2013); Barrow v Detroit Election Comm, 495 Mich 884 (2013). (Note that at the time White and Barrow were decided, this requirement was found at MCR 7.302(B)(4). It was moved to MCR 7.305(B)(4) as part of a general rewrite of the rules governing practice in this Court. See 497 Mich xcxi, cxcv (2015).)
4 The Legislature approved an extension of the Governor’s initial emergency declaration under the EMA until April 30, see 2020 SCR 24, but did not adopt further extensions.
5 On the other hand, the Governor may have a viable contingent cross-appeal, in which she challenges the decision of the Court of Claims to the extent that the appellate courts reverse the Court of Claims’ decision upholding her executive orders under MCL 10.31(1). If “the cross-appellant, like any appellant, must be an aggrieved party in some respect, meaning it must be able to identify a concrete and particularized injury that can be redressed in the context of the cross-appeal,” Rose, Appeals of Right in the Court of Appeals, § 4.46, p 100, in Michigan Appellate Handbook (Shannon & Gerville-Réache eds, 3d ed, January 2018 update), it may be that the Governor’s interest in maintaining any cross-appeal would be contingent on the outcome of the Legislature’s appeal. Given

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5
Court and published opinions of the Court of Appeals that have precedential effect under the rule of stare decisis,” Detroit v Qualls, 434 Mich 340, 360 n 35 (1990), the Court of Claims’ remarks about EO 2020-68 will not control future litigation over the propriety of the Governor’s actions under the EMA—even future COVID-19 litigation.6 The Governor appears aware of this reality, because when she announced a subsequent extension of the COVID-19 state of emergency in Executive Order No. 2020-99, she continued to declare emergencies under both MCL 10.31(1) and—“[s]ubject to the ongoing litigation”—the EMA. Given my qualms, I am not convinced that Justice ZAHRA is correct to allege that the Governor’s bypass cross-appeal “cure[s]” any defects in the Legislature’s application. I am also unmoved by the fact that both parties ask us to grant these bypass applications. This Court writes the court rules; I do not believe the parties can rewrite the rules for us by their mutual agreement so as to bootstrap their way to jurisdiction.
I also do not believe it would be prudent to hear this case at this juncture. The statutes at issue have seen very little litigation arise under them, meaning there is little on-point authority. Moreover, the theory by which the Legislature asserts standing to bring this suit in the first place is entirely novel in Michigan. Further appellate review and development of the arguments will only assist this Court in reaching the best possible answers.7 Until a vaccine for COVID-19 is invented, our society will be living with the
these uncertainties, however, at minimum I do not believe it would be wise to exercise any discretion we may have to hear this case without allowing it full appellate review. For all these reasons, I do not think the Governor’s bypass cross-appeal rehabilitates the Legislature’s defective initial bypass application.
6 Justice VIVIANO questions whether my reasoning renders the bypass appeal provision nugatory given that, in bypassing the Court of Appeals, a party will necessarily “be appealing a nonbinding decision.” But this is clearly incorrect. Had the Governor been told that her substantive executive orders were invalid, she would have been ordered by a court to stop doing something she was doing, and exposed to contempt sanctions if she did not, without regard to whether the reasoning was binding on future disputes. I question whether the Court of Claims’ ruling here aggrieved the Governor because it essentially answered the hypothetical question of whether her executive orders would be valid if MCL 10.31(1) were not an adequate basis for them. Such a ruling does not appear to control her current orders, nor is its reasoning binding on future disputes. It is, at minimum, a sufficiently uncertain question that I do not believe this Court can properly predicate its review of this case on this foundation.
7 As Justice VIVIANO points out in his dissent, there are numerous cases relating to COVID-19 making their way through our state and federal courts. While many of these cases raise issues distinct from those raised by the Legislature in this case, in at least one, the Court of Appeals has granted leave to appeal on a very similar issue—“whether the trial court abused its discretion in ruling that plaintiff’s claim regarding the

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risk of the spread of this disease and the argued necessity of emergency measures to mitigate that spread. There is little prospect of these disputes being rendered moot, and I have little doubt that the Court will take them up in the future.
I also disagree that this Court should heavy-handedly direct the Court of Appeals in its management of this litigation. First of all, if there is a need for expedited consideration, the parties are free to request it from the Court of Appeals, which is better positioned to know how best to balance the need for expeditious review with the resources it has available to scrutinize the arguments being made. I disagree with Justice VIVIANO that the Court of Appeals will simply put this case on any “conveyor belt,” and I believe they will recognize “this is no ordinary case.” Second, the cases in which we most often direct expedited review are election cases in which the parties have externally imposed deadlines they must satisfy to submit paperwork or print ballots. See, e.g., League of Women Voters v Secretary of State, 505 Mich 931 (2019). Third, I believe many of the observations that justify denying this bypass application also justify declining to order an extraordinary schedule in the Court of Appeals. Justice ZAHRA argues that “the people of this state have a great interest in the final disposition of these issues,” but the people of this state are not a party to the case—the Legislature is, suing in its institutional capacity and arguing that its prerogatives are being violated. Until a final judicial resolution of these issues is reached, the Legislature is free in the interim to avail itself of the ordinary legislative process under the Constitution. That this Court has resolved this bypass application in less than two weeks is, I believe, evidence enough that we are treating these issues with appropriate urgency.
As noted, the issue before us is not whether we will ever decide these issues, but rather whether we will decide them before the Court of Appeals has considered them. Because I conclude that we neither can nor should grant these bypass applications, I concur with our order denying them.
MCCORMACK, C.J., and CAVANAGH, J., join the statement of CLEMENT, J.
MARKMAN, J. (dissenting).
I dissent from the majority’s decision to deny the parties’ applications to bypass the Court of Appeals in order to expedite the final resolution of the present dispute. Indeed, in all likelihood, the consequence of our decision today will be to ensure that this Court never issues a meaningful decision concerning the nature and required procedures of the emergency authority of this state. For the following reasons, I would grant these
unconstitutionality of the [emergency powers of the governor act], MCL 10.31 et seq., was unlikely to succeed.” Mich United for Liberty v Governor, order of the Court of Appeals, entered May 29, 2020 (Docket No. 353643).

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applications.
First, I would grant the applications because they pertain to an issue of the greatest practical importance to the more than 10 million people of this state: the validity of executive orders declaring a state of emergency and thereby enabling a single public official to restrict and regulate travel, assembly, business operations, educational opportunities, freedoms and civil liberties, and other ordinary aspects of the daily lives of these people, including matters of crime and punishment and public safety. To put it even more specifically, the present applications place into question the entirety of the processes and procedures by which the executive orders that have defined nearly every minute, and nearly every aspect, of the lives of “we the people” of Michigan for more than the past two months were fashioned into law.
Second, I would grant the applications because, notwithstanding their vast differences in apprehending the legal and constitutional preconditions required of an emergency order, the parties commonly argue that this Court should grant their bypass applications in light of the profound significance and practical impact of the present emergency orders.
Third, I would grant the applications because they implicate a “case or controversy” of the greatest historical consequence between the two representative and accountable branches of our state government: each in concurrence seeking the counsel of the third branch as to what is demanded by the constitutional charter that has guided the people’s government for the past 185 years. The Governor contends that her office possesses the authority to issue the executive orders in response to the present emergency, while the Legislature in response contends that her office lacks such authority absent its own participation. Put simply, what is at issue is how the extraordinary emergency powers of government are to be invoked and how the decisionmakers of our two most fundamental constitutional institutions are respectively to be engaged.
Fourth, I would grant the applications because time is an altogether relevant consideration to what is required of this judiciary. Our state continues in the midst of an emergency in which both the lives and the liberties of its people are being lost each day. By today’s action, it is unlikely that this Court will ever decisively resolve the present dispute and thus that whatever errors or excesses may have been made in the course of the present emergency will never be pronounced or remedied but left only to be repeated on the occasion of what inevitably will arise some day as our next emergency.
Fifth, I would grant the applications because this case cries out for the most expedited and final review of the highest court of this state. If there is a matter, if there is an obligation, that compels the most urgent action of this Court, it is the present matter, our present obligation. This case defines the very purpose and the fundamental

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responsibility of a supreme court of this union of states. By our decision to deny the applications for bypass, we bypass an exercise of authority to decide what is perhaps the most substantial dispute ever presented to this Court, not only diminishing our standing among the judicial institutions of our federal system but diminishing our relevance within the judicial institutions of this state itself.
ZAHRA, J., joins the statement of MARKMAN, J.
ZAHRA, J. (dissenting).
I dissent from this Court’s order denying both litigants’ applications for leave to appeal from the Court of Claims, thereby leaving intact without immediate review the Governor’s various emergency orders issued in response to the COVID-19 pandemic and the Court of Claims order ruling in part that the Governor acted erroneously under MCL 30.401 et seq. I would grant the applications and decide the matters forthwith. I also dissent from this Court’s inexplicable failure to direct the Court of Appeals to hear this case on an expedited basis. This case presents palpable constitutional questions that are of compelling interest to every resident, business, and employer in Michigan. The instant matter is arguably the most significant constitutional question presented to this Court in the last 50 years. By granting both applications, this Court could put to rest with finality whether and to what extent the legislation on which the Governor relied to issue the serial emergency COVID-19 orders remains a valid source of legal authority for those orders. Admittedly, deciding these difficult questions is no easy task. But the people of this state rightly demand that this Court resolve such difficult questions. Because each resident’s personal liberty is at stake, it is emphatically our duty to decide this case. I dissent from the Court’s failure to immediately undertake this duty.
Life for people throughout Michigan was turned on its head when on March 10, 2020, in response to the COVID-19 pandemic that threatened widespread contagion, serious and sometimes fatal illness, and a critical overload to our health system, the Governor issued Executive Order No. 2020-4, declaring a state of emergency under the authority of two separate statutory delegations of emergency authority: 1945 PA 302, known as the “emergency powers of the governor act” (EPGA), MCL 10.31 et seq.; and the Emergency Management Act (EMA), MCL 30.401 et seq. The EMA carries a 28-day limit on the amount of time in which the Governor can issue orders under a state of emergency before the act requires the Governor to declare an end to the emergency, unless both houses of the Legislature extend the period through a resolution.8
8 MCL 30.403(3). The Governor, however, argues that the Court of Claims erred by concluding that she cannot issue new orders reinstituting the effect of her prior orders at the end of each order issued under the EMA.

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Over the next several weeks, the Governor issued numerous additional statewide orders generally requiring people to stay at home unless their departure from home was essential, closing all nonessential9 businesses, closing all schools before the end of the school year, and seriously restricting travel, assembly, and other aspects of daily life. Law and nonemergency medical offices throughout Michigan were closed indefinitely. Both houses of the Michigan Legislature granted the Governor an extension of authority to April 30, 2020, but neither the House of Representatives nor the Senate passed a resolution to grant any further extension. On the day the EMA expressly required the declaration of emergency to be rescinded, the Governor rescinded the declaration and, within minutes, declared another statewide emergency on the basis of COVID-19, ordering that all the previous orders should now be considered effective under the new order. The Governor separately declared a state of emergency under the EPGA and ordered that all previous orders should be considered effective under that declaration as well.
People throughout Michigan were understandably frustrated over their inability to leave home to, among other things, work, engage in commerce, obtain preventative health care, visit friends and family, and maintain their personal appearance with salon and grooming services. Sporadic peaceful protests broke out throughout the state in which some residents practiced civil disobedience. The political branches of government divided over the issue. The Legislature believed it should be permitted a seat at the table in crafting emergency orders, and the Governor proclaimed unilateral authority to act.
The Michigan House of Representatives and the Michigan Senate sued the Governor in the Court of Claims, seeking a declaratory ruling that the Governor’s authority under the EMA had expired and that the EPGA pertained only to local matters and did not authorize a statewide declaration of emergency. The Governor responded that each source of statutory authority continued to provide her with the power to issue orders for the protection of the public health. The Court of Claims agreed with the Legislature that the Governor’s authority under the EMA had expired, but held that the EPGA granted the Governor independent authority to issue orders that would protect lives and control the emergency situation created by COVID-19. That same day, the Legislature filed an application for leave to appeal in the Court of Appeals and filed in this Court an application for leave to appeal under MCR 7.305(B)(4), which permits “an appeal before a decision of the Court of Appeals.”
The Governor filed a brief in response to the Legislature’s application in this Court as well as an application for leave to appeal challenging two holdings of the Court
9 Many of the Governor’s orders distinguished essential from nonessential activity. Still, in other areas, the people were left to wonder whether certain activities in which they wished to engage were permitted under the various orders. See note 3 of this statement.

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of Claims: (1) the conclusion that the Legislature has standing to bring a declaratory action, and (2) the holding that Executive Order No. 2020-68 was invalid because the Governor’s authority to act under the EMA had expired.
Significantly, both of our coequal branches of government (the parties to this litigation) recognize the gravity of this matter and have asked this Court to resolve the constitutional questions before the Court without the benefit of intermediary (and prolonged) review from our Court of Appeals. Because MCR 7.305(B)(4) is perfectly satisfied,10 this Court should forthwith decide the following three questions:

10 Not only would I accept the parties’ olive branch and address this matter to maintain comity within our state government, our court rules, namely MCR 7.305(B)(4), emphasize this Court’s defined role to determine matters in which:

(a) delay in final adjudication is likely to cause substantial harm, or

(b) the appeal is from a ruling that a provision of the Michigan Constitution, a Michigan statute, a rule or regulation included in the Michigan Administrative Code, or any other action of the legislative or executive branches of state government is invalid[.]

My concurring colleagues, by contrast, believe a bypass of the Court of Appeals is not warranted because the Legislature has failed to satisfy the requirements of MCR 7.305(B)(4). In arguing its case to bypass the Court of Appeals, the Legislature asserts:

Delaying final adjudication would do “substantial harm,” as citizens and lawmakers would be left in a state of uncertainty at a time when confident decision-making is a requirement for survival. Michiganders are living under and attempting to interpret orders that never should have been implemented over their Legislature’s objection; at the very least, they are living under a cloud of ambiguity that can be rectified by this Court. MCR 7.305(B)(4)(a). The ultra vires nature of the Governor’s actions puts at risk people who are relying on governmental direction to guide their conduct. Lastly, this appeal involves a ruling that has already declared one related “action of the . . . executive branch[] of state government invalid.” MCR 7.305(B)(4)(b). [Alterations in original.]

I am persuaded that the requirements of MCR 7.305(B)(4) are satisfied. As

representatives of the people, the Legislature clearly has an interest in providing certainty

“at a time when confident decision-making is a requirement for survival.” It is no secret

that many residents and businesses have struggled to understand the Governor’s

emergency executive orders related to the COVID-19 virus. See DesOrmeau, After 102

Executive Orders, Confusion is Commonplace on What’s Allowed in Michigan and What

Isn’t

<https://www.mlive.com/public-interest/2020/05/after-101-executive-orders-

confusion-is-commonplace-on-whats-allowed-in-michigan-and-what-isnt.html>

(accessed June 2, 2020) [https://perma.cc/K5WK-4RCY]. Further, the Governor makes

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(1) whether the Michigan Senate and the Michigan House of Representatives have standing in this case to seek declaratory relief in the Court of Claims,
(2) whether the Governor has continuing authority under the Emergency Management Act (EMA), MCL 30.401 et seq., to issue emergency executive orders related to the COVID-19 virus, and
(3) whether the Governor has continuing authority under the emergency powers of the governor act (EPGA), MCL 10.31 et seq., to issue emergency executive orders related to the COVID-19 virus.
The members of this Supreme Court, Michigan’s court of last resort, have been elected to serve as the final arbiters of law and constitutional questions that are of significant public interest and importance to our state. No issue is of greater public interest or importance than the resolution of whether the Governor was within her constitutional authority to deprive the 10-million-plus residents and the thousands of business owners of Michigan of their personal freedom and economic liberty. Unlike the legislative and executive branches of government, which make and enforce laws through a political process, the judiciary is the nonpolitical branch of government charged with the extremely limited but all-important role of interpreting only those laws and constitutional questions presented in cases and controversies brought to the Court by adversaries in litigation. It is exactly because this Court is the pinnacle of the apolitical branch of government and limited in the scope of its duties that the people trust and accept our resolution of disputes, even when we are sharply divided when rendering our opinions. This is all the more true where, as here, the case presents a constitutional question of significant magnitude that divides our political branches of government. The people of Michigan expect this Court to resolve this dispute. We should do so.
And yet, beyond declining to grant the Legislature’s application, the Court’s majority also fails to order the Court of Appeals to hear and resolve these issues on an expedited basis. I make no attempt to explicate this failure. Again, both of our coequal branches of government have asked for these significant constitutional questions to be answered as soon as possible. And the people of this state have a great interest in the final disposition of these issues as soon as possible. To the extent a majority of this Court
no attempt to rebut the Legislature’s assertion that it has been particularly harmed by the Governor’s usurpation of Legislative power through her emergency executive orders.
Moreover, even assuming there is a shortcoming in the Legislature’s application, that defect is cured by the Governor’s application, which expressly invites a challenge to the Court of Claims’ holding that the Governor’s actions were invalid under the EMA. See MCR 7.305(B)(4)(b). Again, both of our coequal branches of government want these questions answered. We should honor their requests.

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has concluded that the wisdom of our intermediate appellate court is essential to our resolution of these weighty issues, there is no reason why this Court should not order the Court of Appeals to hear and decide these questions forthwith. The Court’s failure to, at a minimum, require the Court of Appeals to decide these cases on an expeditious basis fails to accord the respect due to our coequal branches of government and displays insensitivity to the people of this state who are entitled to know with certainty whether the constraints of liberty imposed by the emergency orders under which they labor are constitutionally permissible.
MARKMAN, J., joins the statement of ZAHRA, J.
VIVIANO, J. (dissenting).
The Court today turns down an extraordinary request by the leaders of our coequal branches of government to immediately hear and decide a case that impacts the constitutional liberties of every one of Michigan’s nearly 10 million citizens.11 See Walsh v River Rouge, 385 Mich 623, 639 (1971) (“The invocation of a curfew or restriction on the right to assemble or prohibiting the right to carry on businesses licensed by the State of Michigan involves the suspension of constitutional liberties of the people.”). Because I believe we are duty-bound to give our immediate attention to this case, I cannot join an order that nonchalantly pushes it off for another day.
The Governor and the Legislature do not seem to agree on many things these days, but they both agree that this case merits our immediate attention. In addition, since they individually and collectively represent every single resident of our state, one can surmise that the views of the Governor and Legislature represent the diverse views of large numbers of our citizens. They are crying out to this Court for help because there is a significant amount of confusion in our state over what the Governor’s executive orders mean and whether they are enforceable.12 And the instant case is not the only one involving questions regarding the validity of the Governor’s actions to combat COVID-

11 Justice CLEMENT is of course correct that this case does not involve a direct claim of a constitutional rights violation. But, since the validity of the Governor’s executive orders are at stake, and it is indisputable that those orders impinge on the constitutional liberties of our citizens, it is rudimentary logic—not hyperbole—to say that the case impacts the civil liberties of our citizens.

12 See, e.g., DesOrmeau, After 102 Executive Orders, Confusion is Commonplace on

What’s Allowed in Michigan and What Isn’t <https://www.mlive.com/public-

interest/2020/05/after-101-executive-orders-confusion-is-commonplace-on-whats-

allowed-in-michigan-and-what-isnt.html>

(accessed

June

2,

2020)

[https://perma.cc/K5WK-4RCY].

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19.13 A substantive ruling on the merits of this case by our Court would not only provide clarity to the Governor, the Legislature, and the public, but it would also assist the lower courts as they continue to address these issues in other matters.
I agree with Justice ZAHRA that both applications easily satisfy the requirements of our bypass rule, MCR 7.305(B)(4). As an initial matter, it is clear that our Court has jurisdiction here under MCR 7.303, which governs the jurisdiction of the Supreme Court. Under MCR 7.303(B)(1), we have discretion to “review by appeal a case pending in the Court of Appeals or after decision by the Court of Appeals (see MCR 7.305).” Contrary to JUSTICE CLEMENT’s suggestion, we have never held that the grounds for discretionary appeal are jurisdictional—I see no reason to do so now. It is indisputable that our Court has jurisdiction over this case, if we choose to assert it.
The Legislature’s bypass application clearly shows that a “delay in final adjudication is likely to cause substantial harm.]” MCR 7.305(B)(4)(a). The second question presented in the application is “whether the Emergency Powers of the Governor Act [MCL 10.31 et seq.] is consistent with the separation-of-powers doctrine in the Michigan Constitution, where the act . . . results in the usurpation of the Legislature’s role in formulating public policy[.]” The Legislature further asserts that “COVID-19 presents real problems that call for a comprehensive and deliberative governmental response. The Court should restore the proper constitutional order and allow the branches to get to work—together.”14 In short, the Legislature is arguing that because the
13 There are at least five other cases involving challenges to COVID restrictions in the lower courts: Martinko v Governor (Docket No. 353604); Slis v Michigan (Docket No. 351211); Dep’t of Health & Human Servs v Manke (Docket No. 353607); Mich United for Liberty v Governor (Docket No. 353643); and Associated Builders & Contractors of Mich v Governor (Docket No. 20-000092-MZ). Cases concerning the restrictions are also proliferating in the federal courts. See Mitchell v Whitmer (Case No. 1:20-cv-00384) (WD Mich); League of Indep Fitness Facilities & Trainers, Inc v Whitmer (Case No. 1:20-cv-00458) (WD Mich); Allen v Whitmer (Case No. 2:20-cv-11020) (ED Mich); Mich United Conservation Clubs v Whitmer (Case No. 1:20-cv-00335) (WD Mich); Mich Nursery & Landscape Ass’n v Whitmer (Case No. 1:20-cv-331) (WD Mich); Beemer v Whitmer (Case No. 1:20-cv-323) (WD Mich); VanderZwaag v Whitmer (Case No. 1:20cv-325) (WD Mich); Martinko v Whitmer (Case No. 2:20-cv-10931) (ED Mich); Thompson v Whitmer (Case No. 1:20-cv-00428) (WD Mich); Midwest Institute of Health, PLLC v Whitmer (Case No. 1:20-cv-00414) (WD Mich); Otworth v Whitmer (Case No. 1:20-cv-00405-PLM-RSK) (WD Mich); Signature Sotheby’s Int’l Realty, Inc v Whitmer (Case No. 1:20-cv-00360) (WD Mich). More are sure to follow.
14 See also Michigan Legislature’s Emergency Bypass Application for Leave to Appeal, p 27 (“In effectively exercising standardless lawmaking authority to formulate public policy rather than the democratic process, the Governor has usurped the Legislature’s

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Governor has claimed the authority to exercise core legislative powers for an indefinite period, the Legislature has been displaced from its normal constitutional role as the branch with “the authority to make, alter, amend, and repeal laws.” Harsha v Detroit, 261 Mich 586, 590 (1933). See Const 1963, art 4, § 1 (stating that with certain exceptions not relevant here, “the legislative power of the State of Michigan is vested in a senate and house of representatives”); Const 1963, art 4, § 51 (“The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”). At the bypass stage, we need not decide the merits of the Legislature’s separation-of-powers argument. It is enough to recognize the obvious, substantial, and ongoing institutional harm that is being caused if the Legislature’s claim has merit.
Justice CLEMENT asserts, not incorrectly, that the Legislature still has the power to enact laws. But that misses the point of the Legislature’s claim. Absent the Governor’s extraordinary exercise of core legislative powers during the pandemic, the normal constitutional order would prevail and the Governor and the Legislature would be compelled to work together to shape the public policy of our state. Instead of needing a supermajority vote to override the Governor’s veto and restore the status quo ante, the Legislature could enact laws and present them to the Governor by a simple majority vote of each house. And the Governor would have an incentive—the one our founders built into our system of government—to work with Legislature to develop bills that she found acceptable and would be willing to sign into law. The Legislature’s position, in short, is that by her ongoing and broad exercise of the legislative power, the Governor has usurped its power and diminished its institutional role. Being sidelined from its role in shaping public policy during this pandemic is undoubtedly a substantial harm to the institutional prerogatives of the Legislature.
The concurring justices give even shorter shrift to the Governor’s bypass application. For one thing, Justice CLEMENT’s concurrence never mentions or purports to apply our bypass rule with regard to the Governor’s application. Instead it offers a series of suppositions on topics other than whether the Governor is appealing the invalidation of executive action, which is all that MCR 7.305(B)(4)(b) requires and which is precisely what the Governor seeks to appeal here. The Court of Claims invalidated an executive order, No. 2020-68, which the Governor issued under the Emergency Management Act (EMA), MCL 30.401 et seq.
Justice CLEMENT seems to agree that the Governor has met the requirements of MCR 7.305(B)(4)(b). The thrust of Justice CLEMENT’s argument is that the Governor
power.”); id. at 33 (“Nor can the Governor usurp the lawmaking power merely because she disagrees with the Legislature’s response to the COVID-19 crisis.”).

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might not be an aggrieved party because, even though the court struck down her order under the EMA, she was able to retain all her substantive regulations in an identical order under the emergency powers of the governor act (EPGA). But the Governor has good reason for feeling that she is aggrieved even if her regulations remain standing at this point in the proceedings. “[T]o have standing on appeal [i.e., to be an aggrieved party], a litigant must have suffered a concrete and particularized injury” arising from the judgment below. Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291 (2006).15 The Governor argues that the “EMA provides for a more extensive structure of governmental action in response to an emergency, and a more detailed set of powers for the Governor to implement in that response.” A comparison of the two statutes at issue displays the EMA’s more elaborate provisions. Compare MCL 10.31 (setting forth the Governor’s general authority to promulgate orders after proclaiming a state of emergency) with, e.g., MCL 30.408 and MCL 30.409 (establishing emergency manager coordinators across various institutions and entities) and MCL 30.411 (providing limited immunity). And, importantly, the Governor contends that the EMA not only empowers her to act but affirmatively requires her to declare an emergency or disaster. Whether these provisions and others differentiate the EMA from the EPGA, so that the statutes do not conflict, goes to the merits of the statutory issue in this case, and thus I would not now suggest an answer. It is enough here that the Governor has raised a colorable argument that the decision below struck down her executive order, effectively cabined her statutory tools, and required her to disregard statutory obligations. This constitutes a concrete and particular injury.
Moreover, consider the implications of Justice CLEMENT’s hunch about the Governor’s aggrieved-party status. If the Legislature successfully appealed its claims— either here or in the Court of Appeals—and the EPGA no longer authorized Executive Order No. 2020-68, then the Governor would need to fall back on the EMA. But by that point it would doubtless be too late for her to appeal.16 In other words, the Governor would become aggrieved only when it would be too late for her to do anything about it.17
15 See also Attorney General v Bd of State Canvassers, 500 Mich 907, 908 n 6 (2016) (ZAHRA and VIVIANO, JJ., concurring) (“ ‘Aggrieved’ is a term of art defined as ‘having legal rights that are adversely affected; having been harmed by an infringement of legal rights.’ An ‘aggrieved party’ is ‘a party whose personal, pecuniary, or property rights have been adversely affected by another person’s actions or by a court’s decree or judgment.’ Thus, to be ‘aggrieved,’ a party must demonstrate that it has been harmed in some fashion.”) (citations omitted).
16 Under Justice CLEMENT’s logic, it would not be enough for the Governor that the Legislature could satisfy the bypass rule in order for her to bring her appeal.
17 In addition, Justice CLEMENT’s reminder that the Court of Claims’ decision is not binding is irrelevant: it would seemingly always be the case that a party seeking to bypass

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In sum, because the Governor is appealing the invalidation of her executive actions, her bypass application satisfies MCR 7.305(B)(4)(b). And she also has claimed sufficient injury from the judgment below. If the majority wishes to deny the application on other grounds, so be it. But it should not pretend the Court’s hands are tied by our procedural rules.18
the Court of Appeals will be appealing a nonbinding decision. If this is a meaningful consideration in rejecting a bypass, then one wonders why we have the rule at all.
18 By denying the bypass, the majority has not only written the bypass court rule out of the rulebook, it has also put us at odds with the highest courts of many other states who have not faltered in their responsibility to timely address the significant legal issues arising from their states’ responses to the COVID-19 pandemic. The Pennsylvania Supreme Court, exercising immediate jurisdiction in a challenge to executive orders, said it well: “[T]his case presents issues of immediate and immense public importance impacting virtually all Pennsylvanians and thousands of Pennsylvania businesses, and that continued challenges to the Executive Order will cause further uncertainty.” Friends of Danny DeVito v Wolf, ___ Pa ___, ___ (2020) (Docket No. 68 MM 2020), slip op at 17. In a similar case, the Kansas Supreme Court exercised expedited original jurisdiction, explaining that such jurisdiction lay when the court “determine[s] the issue is of sufficient public concern. Under the circumstances our state faces, we easily do.” Kelly v Legislative Coordinating Council, ___ Kan ___, ___ (2020) (Docket No. 122765), slip op at 9 (citation omitted). See also In re State of Texas, ___SW3d___ (2020) (Docket No. 20-0394) (addressing whether COVID-19 justified voting by mail); Seawright v New York City Bd of Elections, ___ NY2d ___ (2020) (Slip Op No. 02993) (addressing election requirements in light of COVID-19); Wisconsin Legislature v Palm, ___ Wis 2d___, ___; 2020 WI 42, ¶ 10 (Wis, May 13, 2020) (exercising original jurisdiction—which covered cases “ ‘that should trigger the institutional responsibilities of the Supreme Court’ ”—over the legislature’s challenge of executive orders because the “order . . . impacts every person in Wisconsin, as well as persons who come into Wisconsin, and every ‘non-essential business’ ”) (citation omitted); Cal Attorneys for Criminal Justice v Newsom, order of the California Supreme Court, entered May 13, 2020 (Case No. S261829), p 1 (“This mandate proceeding, like others that have recently come before this court, raises urgent questions concerning the responsibility of state authorities during the current pandemic to protect the health and safety of inmates . . . in light of the spread of the novel coronavirus . . . .”); id. at 4 (Liu, J., dissenting) (“As a prudential matter, we exercise [original mandamus] jurisdiction ‘only in cases in which “the issues presented are of great public importance and must be resolved promptly.” ’ If there is any case where exercising our mandamus jurisdiction is appropriate, this is it.”) (citations omitted); Comm for Pub Counsel Servs v Chief Justice of the Trial Court, 484 Mass 1029, 1029 (2020) (denying reconsideration of earlier holding that the court had superintending authority “to stay a final sentence that is being served, absent a pending

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17
appeal or a motion for new trial”); Goldstein v Secretary of the Commonwealth, 484 Mass 516 (2020) (addressing an election-signature requirement in light of COVID); In re Abbott, ___SW3d___, 63 Tex Sup Ct J 909 (2020) (holding that trial judges lacked standing to challenge an executive order applying to bail decisions); Comm for Pub Counsel Servs v Chief Justice of the Trial Court, 484 Mass 431, 446 (2020) (exercising general superintendence, under which the court could “remedy matters of public interest ‘that may cause further uncertainty within the courts’ ”) (citation omitted); Christie v Commonwealth, 484 Mass 397 (2020) (hearing petition for immediate release from custody due to COVID-19 concerns under the court’s general superintendence power); In re Interrogatory on House Joint Resolution 20-1006, ___P3d___, ___; 2020 CO 23, ¶ 28 (Colo, 2020) (“We conclude that the interrogatory [by the General Assembly asking for guidance in light of conditions posed by COVID-19 on a constitutional requirement] now before us presents an important question upon a solemn occasion. Accordingly, we exercise original jurisdiction. The General Assembly and the public at large urgently need an answer to the interrogatory to avoid uncertainty surrounding the length of the remaining regular session and its impact on pending bills and bills yet to be introduced.”); cf. Strizich v Mont Dep’t of Corrections, order of the Montana Supreme Court, entered May 5, 2020 (Case No. OP 20-0225) (declining to consider petition for injunctive relief because the case, involving COVID-19 and state correctional facilities, was fact-intensive); Disability Rights Mont v Mont Judicial Districts 1-22, order of the Montana Supreme Court, entered April 14, 2020 (Case No. OP 20-0189) (denying petition to exercise mandamus power because the request involved factual issues and the legal contention failed on the merits).
It is noteworthy, too, that in the United States Supreme Court, the significance of the issues would alone justify bypassing the court of appeals. See also Sup Ct Rule 11 (“A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”) (emphasis added). Indeed, “[t]he writ . . . has been granted in some of the most important cases in [the last] century.” Lindgren & Marshall, The Supreme Court’s Extraordinary Power to Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup Ct Rev 259, 259 (1986); see Dames & Moore v Regan, 453 US 654, 667-668 (1981) (“Arguing that this is a case of ‘imperative public importance,’ petitioner then sought a writ of certiorari before judgment. Because the issues presented here are of great significance and demand prompt resolution, we granted the petition for the writ, adopted an expedited briefing schedule, and set the case for oral argument on June 24, 1981.”) (citations omitted).

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* * *
This case involves some of the most important legal principles that can arise in a free society. The parties’ briefs reverberate with weighty assertions about our constitutional structure, as well as the need for and the scope of the Governor’s emergency powers. These issues, and how we decide them, will have a direct impact on the constitutional liberties of every person who lives or owns property in, or simply visits, our state while the restrictions are in place. On a fundamental and practical level, they impact how our friends and neighbors live their lives on a daily basis, where they can go, with whom, how and when they can practice their religion, whether they can go out to eat or to the hardware store or to the beach—in short, nearly every decision they make about nearly everything that they do. Our Court exists to vindicate the constitutional rights of our citizens and to be the final expositor of state law; thus, we are uniquely situated to provide a prompt and final resolution of the issues presented in this case.
The leaders of our state government believe we should hear this case now. I agree. But instead of rising to the occasion, the majority order dodges these issues for now and defers them to the lower courts so they can weigh in first. Ordinarily, I would agree with this approach. But this is no ordinary case. It should not simply go on the conveyor belt with all of the others. Because my colleagues have decided to put it there at least for the time being, I respectfully dissent.

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

s0601

June 4, 2020

Clerk

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants. /

EXHIBIT B

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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-00414-PLM-PJG ECF No. 33-2 filed 06/05/20 PageID.1653 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-00414-PLM-PJG ECF No. 33-3 filed 06/05/20 PageID.1654 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants. /

EXHIBIT C

Case 1:20-cv-00414-PLM-PJG ECF No. 33-3 filed 06/05/20 PageID.1655 Page 2 of 10
STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN UNITED FOR LIBERTY, Plaintiff,

OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

Case No. 20-000061-MZ Hon. Michael J. Kelly

Pending before the Court is plaintiff’s motion for preliminary injunction.1 For the reasons that follow, the motion is DENIED.

I.

BACKGROUND

Plaintiff’s complaint and motion for preliminary injunction challenge the authority of

defendant Governor Gretchen Whitmer to issue executive orders in response to the COVID-19

pandemic. Defendant cited two acts, the Emergency Management Act (EMA), MCL 30.401 et

seq.; and the Emergency Powers of Governor Act (EPGA), MCL 10.31 et seq. when issuing the

orders at the heart of this case. At this juncture, the facts underlying the complaint are well known

to the parties and their recitation in this opinion would serve no meaningful purpose. The Court

will instead constrain its time and attention to the legal issues presented in plaintiff’s pleadings

1 The Court notes and appreciates the parties’ compliance with the expedited briefing schedule ordered in this case.
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and briefing. Distilled to the most basic level, plaintiff is asserting that the EMA and the EPGA are unconstitutional because they represent an impermissible delegation of legislative authority to the Governor. Plaintiff has asked the Court to issue a preliminary injunction enjoining defendant from enforcing and issuing any orders under the EMA or EPGA.
II. ANALYSIS Injunctive relief “represents an extraordinary and drastic use of judicial power that should be employed sparingly and only with full conviction of its urgent necessity.” Davis v Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d 896 (2012) (citation and quotation marks omitted). The Court utilizes four factors in determining whether to issue this extraordinary remedy:
(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. [Id. (citation and quotation marks omitted).] A. PLAINTIFF HAS NOT DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE
MERITS Turning first to the likelihood of success on the merits, the Court begins by noting that plaintiff asserts facial challenges to the validity of the EMA and the EPGA. This type of challenge presents significant obstacles a litigant must overcome in order to succeed. Initially, statutes are presumed to be constitutional, and a court has a “duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Oakland Co v State, 325 Mich App 247, 260; 926 NW2d 11 (2018). A court must “exercise the power to declare a law unconstitutional with extreme caution,” and the court must not exercise that power if serious doubt exists as to the alleged constitutional invalidity. Id. (citation omitted). Instead, “[e]very reasonable presumption or
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intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.” Id. (citation and quotation marks omitted).
Moreover, plaintiff’s facial challenge to the constitutionality of the statutes at issue requires a particularly difficult showing. A facial challenge considers the plain language of the statute at issue and it involves a “claim that the law is invalid in toto—and therefore incapable of any valid application.” League of Women Voters of Mich v Secretary of State, __ Mich App __, __; __ NW2d __ (Docket Nos. 350938; 351073), slip op at p. 10 (citation and quotation marks omitted). “To make a successful facial challenge to the constitutionality of a statute, the challenger must establish that no set of circumstances exists under which the act would be valid.” Oakland Co, 325 Mich App at 260 (citation and quotation marks omitted).
Here, in order for plaintiff to demonstrate a likelihood of success on the merits of the claims asserted in its briefing, it must demonstrate that the challenged statutes contain constitutionally infirm delegations of legislative authority to the Governor. In general, the principle of separation of powers, see Const 1963, art 3, § 2, precludes the legislative branch from delegating its lawmaking authority to the executive or judicial branches of government, Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003). However, the separation of powers does not preclude this state’s Legislature from “obtaining the assistance of the coordinate [b]ranches.” Id. at 8-9, quoting Mistretta v United States, 488 US 361, 371; 109 S Ct 647; 102 L Ed 2d 714 (1989). Caselaw counsels that “when properly prescribed standards exist, the Legislature has not abdicated its law-making or legislative power because the agency to which the power is delegated is limited in its action by the Legislature’s prescribed will; it cannot follow its own
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uncircumscribed will.” Westervelt v Nat Resources Comm, 402 Mich 412, 441; 263 NW2d 564 (1978) (opinion by WILLIAMS, J.) (quotation marks omitted). In Taylor, the Supreme Court remarked that, historically, these types of challenges “have been uniformly unsuccessful” across federal and state jurisprudence. Taylor, 468 Mich at 9.
In order to determine whether the challenged statutes at issue in this case contain sufficient standards to survive a constitutional challenge, the Court’s analysis must be guided by the following criteria:
1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits. The preciseness required of the standards will depend on the complexity of the subject. [Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).] The Court will first address plaintiff’s challenges to the EMA, which makes the Governor “responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). The Act permits the Governor to issue orders to implement the act and it empowers her to issue emergency and disaster declarations. MCL 30.403(3)-(4). That authority is not unchecked, however, as the statute sets forth definitions for “emergency,” and “disaster” that provide some measure of guidance for the Governor’s use of authority under the Act. See MCL 30.402(e); MCL 30.402(h). Furthermore, the EMA goes on to describe the authority and duties of the Governor under the Act, with MCL 30.405(1)(a)-(j) detailing ten subjects (nine particular subjects and one catch-all provision) on which the Governor can issue orders under the Act. Those orders can only be issued “upon the declaration of a state of disaster or a state of emergency . . . .” MCL 30.405(1).
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When viewing the statute as a whole and considering the complexity of the subject sought to be addressed, plaintiff cannot demonstrate a substantial likelihood of success on the assertion that the EMA is an unconstitutional, standard-less delegation of legislative authority to the Governor. See Blue Cross & Blue Shield, 422 Mich at 51. At the outset, the Court’s analysis on this issue must be informed by the notion that the EMA’s very purpose is to permit the Governor to deal with a highly complex emergency or disaster situation. Caselaw cautions that the more difficult a particular subject-matter is to regulate, the more impractical it is for the Legislature to provide specific, exacting standards for the delegation of authority. State Conservation Dep’t, 396 Mich at 309. Thus, generalized standards can be appropriate. Id. And here, the Court concludes that the parameters and standards set forth in the EMA, at least at this stage, are of the type that pass constitutional muster. The EMA is not an unfettered, unchecked grant of power to the Governor. Rather, the statute specifies that the Governor, in emergency or disaster situations, is to be given certain, defined authority. The fact that this authority is limited to statutorily defined “emergencies” or “disasters” provides some measure of standards. Additionally, the Legislature imposed regulations on the subject-matter to be reached by the Governor’s orders, as well as with respect to the duration of the orders. See MCL 30.405(1) (prescribing the subject-matter that can be regulated by way of executive order); MCL 30.405(3)-(4) (placing a 28-day limit on certain orders issued by the Governor). The Legislature also implemented a method by which the Governor can work with the Legislature after a certain period of time. See MCL 30.403(3)-(4). In sum, while the Court acknowledges that the authority granted under the EMA is undoubtedly broad in some respects, the grant of authority does not sound in the nature of statutes that have run afoul of the non-delegation doctrine. Cf. Blue Cross & Blue Shield, 441 Mich at 55 (finding an impermissible delegation of authority where the statute contained a “lack of standards defining
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Case 1:20-cv-00414-PLM-PJG ECF No. 33-3 filed 06/05/20 PageID.1660 Page 7 of 10
and directing” the delegated authority). A plain reading of the EMA does not support the notion that the statute contains the kind of “uncontrolled, arbitrary power” that our Supreme Court has cautioned against in non-delegation cases. See State Conservation Dep’t, 396 Mich at 308-309.2
Plaintiff’s ability to succeed on its challenge to the delegation of authority contained in the EPGA is no less dubious. While the EPGA is a much less detailed act than its subsequently enacted counterpart, it nonetheless sets some standards for the Governor’s exercise of authority. The authority exercised by the Governor under the EPGA can only be invoked if public safety is or will be imperiled. MCL 10.31(1) makes clear that authority under the Act is only bestowed on the Governor. “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” The statute continues by describing that any rules or regulations imposed by the Governor must be “reasonable” and “necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). The Court concludes that the terms “reasonable” and “necessary” carry more significance than plaintiff assigns to them, particularly when they are read in light of the statute’s goals of protecting life and property and combating an emergency or disaster scenario. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority that empowered the decisionmaker to take action that was deemed “necessary” in response to a particular situation was a sufficiently precise standard in the context of the statute at issue). Moreover, when scanning the EPGA for additional criteria, the Court notes
2 The Court notes that Judge Murray reached a similar decision when denying injunctive relief in the case of Martinko v Whitmer, Docket No. 20-00062-MM (issued April 29, 2020).
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that the statute contains a list of subjects over which the Legislature granted the Governor authority, as well as one area where the Legislature expressly stated that the Governor was not permitted to act. See MCL 10.31(1) & (3) (permitting the Governor to control matters such as traffic, transportation, places of amusement and assembly, and to establish curfews, but expressly declaring that the Governor cannot seize, take, or confiscate lawfully possessed firearms or other weapons). Finally, the Act specifies that the Governor is to exercise the state’s police power in order “to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32. The Court concludes at this stage of the litigation that the phrase, “adequate control,” and the reference to that control lasting only for periods of public crisis or disaster guides the Governor’s exercise of authority. Hence, the plain language of the act, contrary to plaintiff’s contentions, describes standards and limitations on the Governor’s exercise of authority under the EPGA. While the level of authority conferred upon the Governor may be broad—and at times frustrating in practice—it does not appear on plaintiff’s motion to be the type that would warrant relief under the non-delegation doctrine.
Furthermore, in evaluating the EPGA, just as it did when evaluating the EMA, the Court must remain cognizant that the situation sought to be controlled by the EPGA is an unpredictable, dangerous emergency or disaster situation. A disaster or emergency is almost assuredly a dynamic, unpredictable situation fraught with complexity. It is unreasonable to expect a demanding or precise set of legislative standards be incorporated into the EPGA in order to deal with such a demanding scenario. See State Conservation Dep’t, 396 Mich at 309 (explaining that “[t]he preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.”).
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B. PLAINTIFF’S ALLEGED IRREPARABLE HARM FALLS SHORT AS WELL Although the above analysis in and of itself would cause the Court to deny injunctive relief, the Court finds plaintiff’s assertion of irreparable harm falls short of that which is required to demonstrate entitlement to preliminary injunctive relief. A “particularized showing of irreparable harm . . . is . . . an indispensable requirement to obtain a preliminary injunction.” Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1, 9; 753 NW2d 595 (2008) (citation and quotation marks omitted). The harm must be particularized; a “generalized argument that a constitutional violation would result in harm is insufficient because it is not particularized.” Hammel v Speaker of House of Representatives, 297 Mich App 641, 652; 825 NW2d 616 (2012). The problem in the instant case is that plaintiff has only generally asserted the harm it allegedly suffered by generically alleging constitutional violations. Plaintiff has not articulated particularized, individual harm. Furthermore, caselaw again cautions that, in the absence of bad faith on the part of a public body— which has not been alleged in this case—“there is no real and imminent danger of irreparable injury requiring issuance of an injunction.” Davis, 296 Mich App at 621. Plaintiff’s failure to assert a particularized irreparable injury in the absence of injunctive relief represents an independent reason to deny the motion for preliminary injunction.
III. CONCLUSION Both the EMA and the EPGA confer broad authority upon the office of the Governor. History will determine whether the Governor is judiciously exercising this authority in response to the COVID-19 pandemic. But, for the reasons stated herein:
IT IS HEREBY ORDERED that plaintiff’s motion for preliminary injunction is DENIED.
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Case 1:20-cv-00414-PLM-PJG ECF No. 33-3 filed 06/05/20 PageID.1663 Page 10 of 10 This is not a final order and it does not resolve the last pending claim or close the case.

May 19, 2020

____________________________________ Michael J. Kelly Judge, Court of Claims

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Case 1:20-cv-00414-PLM-PJG ECF No. 33-4 filed 06/05/20 PageID.1664 Page 1 of 26

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants. /

EXHIBIT D

Case 1:20-cv-00414-PLM-PJG ECF No. 33-4 filed 06/05/20 PageID.1665 Page 2 of 26 1
STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES, and MICHIGAN SENATE,
Plaintiffs,
v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

OPINION AND ORDER
Case No. 20-000079-MZ Hon. Cynthia Diane Stephens

This matter arises out of Executive Orders issued by Governor Gretchen Whitmer in response to the COVID-19 pandemic. Neither the parties to this case nor any of the amici deny the emergent and widespread impact of Covid-19 on the citizenry of this state. Neither do they ask this court at this time to address the policy questions surrounding the scope and extent of contents of the approximately 90 orders issued by the Governor since the initial declaration of emergency on March 10, 2020 in Executive Order No. 2020-4. The Michigan House of Representatives and the Michigan Senate (Legislature) in their institutional capacities challenge the validity of Executive Orders 2020-67 and 2020-68, which were issued on April 30, 2020. They have asked this court to declare those Orders and all that rest upon them to be invalid and without authority as written. The orders cited two statutes, 1976 PA 390, otherwise known as the Emergency Management Act (EMA); and 1945 PA 302, otherwise known as the Emergency Powers of Governor Act (EPGA). In addition, the orders cite Const 1963, art 1, § 5, which generally vests the executive power of the state in the Governor. This court finds that:

Case 1:20-cv-00414-PLM-PJG ECF No. 33-4 filed 06/05/20 PageID.1666 Page 3 of 26 2
1. The issue of compliance with the verification language of MCL 600.6431 is abandoned. 2. The Michigan House of Representative and Michigan Senate have standing to pursue this
case. 3. Executive Order 2020-67 is a valid exercise of authority under the EPGA and plaintiffs
have not established any reason to invalidate any executive orders resting on EO 2020-67. 4. The EPGA is constitutionally valid. 5. Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.
I. BACKGROUND
The Court will dispense with a lengthy recitation of the pertinent facts and history and will instead jump to the Governor’s declaration of a state of emergency1 as well as a state of disaster2 under the EMA and the EPGA on April 1, 2020, in response to the COVID-19 pandemic. Executive Order No. 2020-33. Both chambers of the Legislature adopted Senate Joint Resolution No. 24 which approved “an extension of the state of emergency and state of disaster declared by Governor Whitmer in Executive Order 2020-4 and Executive Order 2020-33 through April 30, 2020. . . .” The Senate Concurrent Resolution cited the 28-day legislative extension referenced in MCL 30.403 of the EMA.
1 The EPGA does not define the term “state of emergency.” However, the EMA defines the term as follows: “an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(q). 2 While the EPGA does not use, let alone define, the term “state of disaster,” the EMA defines the term as “an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(p).

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The public record affirms that the governor asked the legislative leadership to extend the state of disaster and emergency on April 27, 2020. The Legislature demurred and instead passed SB 858, a bill without immediate effect, which addressed some the subject matter of several of the COVID-19-related Executive Orders, but did not extend the state of emergency or disaster or the stay-at-home order. The Governor vetoed SB 858.
On April 30, 2020, the Governor issued Executive Order 2020-66 which terminated the state of emergency and disaster that had previously been declared under Executive Order 202033. The order opined that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Executive Order No. 2020-66 (emphasis added). However, EO 2020-66 acknowledged that 28 days “have lapsed since [the Governor] declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33.” Id. The order declared there was a “clear and ongoing danger to the state . . . .” (Emphasis added).
On the same day, and only one minute later, the Governor issued two additional executive orders. First, she issued Executive Order No. 2020-67, which cited the EPGA. [In addition, the order contained a cursory citation to art 5, § 1.] EO 2020-67 noted the Governor’s authority under the EPGA to declare a state of emergency during “‘times of great public crisis . . . or similar public emergency within the state. . . .’” Id. quoting MCL 10.31(1). The order noted that such declaration does not have a fixed expiration date. Id. Then, and as a result of the ongoing COVID-19 pandemic, EO 2020-67 declared that a “state of emergency remains declared across the State of Michigan” under the EPGA. The order stated that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The order was to take immediate effect. Id.

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In addition to declaring that a state of emergency “remained” under the EPGA, the Governor simultaneously issued Executive Order No. 2020-68; this order declared a state of emergency and a state of disaster under the EMA. [In addition, like all previous orders, the order contained a vague citation to art 5, § 1 as well.] Hence, EO 2020-68 essentially reiterated the very same states of emergency and disaster that the Governor had, approximately one minute earlier, declared terminated. The order declared that the states of emergency and disaster extended through May 28, 2020 at 11:59 p.m., and that all orders that had previously relied on the prior states of emergency and disaster declaration in EO 2020-33 now rest on this order, i.e., EO 2020-68.
The House of Representative and the Senate subsequently filed this case asking for an expedited hearing and a declaration that EO 2020-67 and EO 2020-68, and any other Executive Orders deriving their authority from the same, were null and void.
COMPLIANCE WITH MCL 600.6431
The Governor noted in her reply brief that the complaint, as originally filed in this court did not meet the verification requirement of MCL 600.6431(2)(d). At oral argument the Governor acknowledged that the verification requirements were not met when the complaint was originally filed; however, a subsequent filing was notarized in accordance with the statute. The Governor also acknowledged that the failure to sign the verified pleading before a person authorized to administer oaths was not necessary for invoking this Court’s jurisdiction. Finally, the Governor agreed that she was not seeking dismissal of the action based on plaintiffs’ initial lack of compliance. For those reasons this Court will consider the issue moot and decline any analysis of the arguments predicated on MCL 600.6431.
STANDING

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The issue of standing is central to this case as it is with all litigation. Courts exist to manage actual controversies between parties to whom those controversies matter. The Legislature has cited MCR 2.605 in support of its standing to pursue this declaratory action. The Legislature asserts that it has a need for guidance from this Court in order to determine how it will proceed to protect what it articulates as its special institutional rights and responsibilities. The Governor challenges whether the Legislature has standing to bring this suit. The Governor argues that the institution of the Legislature has no more interest in the outcome of this suit than any member of the public. She further claims that the Legislature does not need the guidance of the Court to determine how to carry out its constitutional duties. It is the opinion of this Court that the Legislature has standing to pursue its claims before this Court.
Both parties cite the seminal case on the issue of standing, Lansing Schs Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). In that case, the Supreme Court refined the concept of standing under the Michigan Constitution. In doing so, the Court rejected the federal standing analysis and articulated an analytical framework rooted the Michigan Constitution. The Lansing Schs Ed Ass’n Court looked to whether a cause of action was authorized by the Legislature. Where the Legislature did not confer a right to a specific cause of action, a plaintiff must have “a special injury or right, or substantial interest, that will be detrimentally affected in a manner different than the citizenry at large . . . .” Id. at 372.
The Governor relies heavily on the recent case of League of Women Voters of Mich v Secretary of State, __ Mich App __; __ NW2d __ (2020) (Docket Nos. 350938; 351073), which is itself now on appeal to the Michigan Supreme Court. That case, similar to the instant case, was brought under the aegis of MCR 2.605 and asked the court to declare that an Attorney General Opinion’s interpretation of a statute was invalid. The Court of Appeals majority in League of

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Women Voters examined the issue through the lens of MCR 2.605 and found that in that case the institution of the Legislature had no standing: “Given the definition of ‘actual controversy’ for the purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgement is necessary to guide the Legislature’s future conduct in order to preserve its legal rights.” Id., slip op at p. 7.
League of Women Voters was the first examination of the issue of institutional standing in Michigan. For that reason, the court focused on the logic of the Supreme Court’s decision in Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), which analyzed a standing issue in relation to individual legislators. Dodak, like this case, presented a conflict between the executive and legislative branches of state government. That Court, like this one, is mindful that in such instances the issue of legislative standing requires a litigant to overcome “a heavy burden because, courts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government.” League of Women Voters, __ Mich App at __, slip op at p. 8 (citation and quotation marks omitted; cleaned up). There must be a “personal and legally cognizable interest peculiar” to the legislative body, rather than a “generalized grievance that the law is not being followed.” Id. (citations and quotation marks omitted). In Dodak four legislators pressed a case concerning what they asserted was an abrogation of their individual rights as members of the appropriations committees when the State Administrative Board was allowed to redistribute funds allocated by the Legislature between departments of state government. Ultimately the Supreme Court found that the chair of the appropriation committee did in fact have a peculiar and special right and a potential for a personal injury sufficient to acquire standing. In Dodak, 441 Mich at 557, the Supreme Court cited with approval federal authorities holding that an individual legislator “‘only has standing if he alleges a diminution of congressional influence

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which amounts to a complete nullification of his vote, with no recourse in the legislative process.’ Dodak, 441 Mich at 557, quoting Chiles v Thornburgh, 865 F3d 1197, 1207 (CA 11, 1989). In League of Women Voters the institution claimed its right was to have a constitutionally correct interpretation of certain legislation. The League of Women Voters Court found that indeed every citizen had such a right and the Legislature once it enacted a statute had no special relationship to it. League of Women Voters, __ Mich App at __, slip op at p. 8. The case did not, remarked the Court, concern the validity of any particular legislative member’s vote. Id.
While it is a close question, this Court finds that the issue presented in this case is whether the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the Legislature’s decision to decline to extend the states of emergency/disaster. The United States Court of Appeals for the Sixth Circuit recently found that a legislative body under certain circumstances does have standing. See Tennessee General Assembly v United States Dep’t of State, 931 F3d 499 (CA 6, 2019). The logic of their analysis is persuasive and compatible with both Dodak and League of Women Voters. In Tennessee General Assembly, the Sixth Circuit surveyed two cases from the Supreme Court of the United States to illustrate when a legislative body, or portion thereof, may have standing. Id. at 508, citing Coleman v Miller, 307 US 433; 59 S Ct 972; 83 L 3d 1385 (1939); and Ariz State Legislature v Ariz Independent Redistricting Comm, __ US __; 135 S Ct 2652; 192 L Ed 704 (2015). Surveying Coleman and its progeny, the Sixth Circuit explained that, “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Tennessee General Assembly, 931 F3d at 509 (citation and quotation marks omitted). The Sixth Circuit further noted that Arizona State Legislature Court also conferred standing under article III to a legislature. In

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that case, the legislature claimed that the power to redistrict accrued to them under the Arizona constitution. The challenged action in that case was “more similar to the ‘nullification’ injury in Coleman.” Tennessee General Assembly, 931 F3d at 510, citing Arizona State Legislature, __ US at __; 135 S Ct at 2665. To that end, the proposal at issue would have completely nullified any legislative vote, and there was “a sufficiently concrete injury to the Legislature’s interest in redistricting . . . that the Legislature had Article III standing.” Id., citing Arizona State Legislature, __ US at __; 135 S Ct 2665-2666.
The injury claimed in this case is that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster. The Legislature claims this right is exclusively theirs as an institution under the EMA and this state’s Constitution. Understanding that Lansing Schs Ed Ass’n specifically departed from the Article III analysis of its predecessor cases, the nullification argument is nevertheless not incompatible with the Lansing Schs Ed Ass’n focus on “special injury.” This type of injury sounds similar in the nature of the right that was taken from the one plaintiff who had standing in Dodak, 441 Mich at 559-560, i.e., the member of the House Appropriations Committee who lost his right to approve or disapprove transfers following the Governor’s actions.
In this respect the instant matter is distinguishable from League of Women’s Voters, __ Mich App at __, slip op at 9, where the Court of Appeals remarked that “the validity of any particular legislative member’s vote is not at issue[.]” Plaintiffs have at least a credible argument that they are not merely seeking to have this Court resolve a lost political battle, nor are plaintiffs only generally alleging that the law is not being followed. Cf. id. at 8. Rather, they are alleging that the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole. This is an injury that is unique to the Legislature and it shows a

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substantial interest that was (allegedly) detrimentally affected in a manner different than the citizenry at large. Cf. id. at 7 (discussing standing, generally).
As a final argument on standing, the Governor contends that the Legislature does not need declaratory relief to guide its future actions. She and at least one amicus brief note that the Legislature has in fact moved toward amending the EPGA. At oral argument the Legislature was almost invited to amend either the EMA or EPGA. However, while the legislative body is well aware of its power to enact, amend, and repeal statutes, this Court believes that guidance as to the issues presented in this case will avoid a multiplicity of litigation. The parties here have pled facts of an adverse interest which necessitate the sharpening of the issues raised.
ANALYSIS OF AUTHORITIES CITED IN THE CHALLENGED EXECUTIVE ORDERS
The Executive Orders at issue cite three sources of authority: the EMA, the EPGA, and Const 1963, art 5, § 1. The Court will examine each to determine whether the Governor possessed authority to issue the challenged orders.
ARTICLE 5 OF THE MICHIGAN CONSTITUTION
The challenged orders in this case all contain a brief citation to art 5, § 1. This section of the Michigan Constitution vests “executive power” in the Governor. See Const 1963, art 5, § 1. The Governor invokes this power in claiming authority to issue the challenged Executive Orders. The Legislature has argued that Governor errs in relying on her art 5, § 1 “executive power” to issue orders in response to the pandemic. This court agrees that “Executive power” is merely the “authority exercised by that department of government which is charged with the administration or execution of the laws.” People v Salsbury, 134 Mich 537, 545; 96 NW 936 (1903). In fact, the

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Governor has not claimed in her briefing or at oral argument that she had the authority to enact EO 2020-67 or EO 2020-68 absent an enabling statute. Through two distinct acts, stated in plain and certain terms, the Legislature has granted the Governor broad but focused authority to respond to emergencies that affect the State and its people. The Governor’s challenged actions—declaring states of disaster and emergency during a worldwide public health crisis—are required by the very statutes the Legislature drafted. Thus, the focus of this opinion, is on those two distinct acts, the EMA and EPGA.
THE EPGA AUTHORIZED EO 2020-67 AND SUBSEQUENT ORDERS RELIANT THEREON
The Court will first turn its attention to the EPGA and to plaintiffs’ arguments that the EPGA did not permit the Governor to issue a statewide emergency declaration in EO 2020-67 or any subsequent orders reliant on EO 2020-67. Plaintiffs advance two arguments in support of their position: (1) first, they contend that the EPGA, unlike the EMA, does not grant authority for a statewide declaration of emergency, but instead only confers upon the Governor the authority to issue a local or regional state of emergency; (2) second, plaintiffs argue that if the EPGA does grant authority for a statewide state of emergency, the delegation of legislative authority accomplished by the act is unconstitutional. The Court rejects both of plaintiffs’ contentions regarding the EPGA and concludes that EO 2020-67, and any orders relying thereon, remain valid.
Turning first to the scope of the EPGA, the Court notes that the statute bestows broad authority on the Governor to declare a state of emergency and to take necessary action in connection with that declaration. See MCL 10.31(1). Under the EPGA, 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.” Id.

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The Legislature stated that its intent in enacting MCL 10.32 was to “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” Section 2 of the EPGA continues, declaring that the provisions of the EPGA “shall be broadly construed to effectuate this purpose.” Id.
Reading the EPGA as a whole, as this Court must do, see McCahan v Brennan, 492 Mich 730, 738-739; 822 NW2d 747 (2012), the Court rejects plaintiffs’ attempt to limit the scope of the EPGA to local or regional emergencies only. Informing this decision is the statement of legislative intent in MCL 10.32, which declares that the EPGA was intended to confer “sufficiently broad power” on the Governor in order to enable her to respond to public disaster or crisis. It would be inconsistent with this intent to find that “sufficiently broad power” to respond to matters of great public crisis is constrained by contrived geographic limitations, as plaintiffs suggest. The Court also notes that this “sufficiently broad” power granted by the Legislature references “the police power of the state[.]” MCL 10.32. In general, the police power of the state refers to the state’s inherent power to “enact regulations to promote the public health, safety, and welfare” of the citizenry at large. See Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d 1 (1985). It cannot be overlooked that the police power of the state, which undeniably pertains to the state as a whole, see, e.g., Western Mich Univ Bd of Control v State, 455 Mich 531, 536; 565 NW2d 828 (1997), was given to a state official, the Governor, who possesses the executive power of the entire state. See Const 1963, art 5, § 1. Plaintiffs’ attempts to read localized restrictions on broad, statewide authority given to this state’s highest executive official are unconvincing.
The Act has a much broader application than plaintiffs suggest. The Act repeatedly uses terms such as “great public crisis,” “public emergency,” “public crisis,” “public disaster,” and

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“public safety” when referring to the types of events that can give rise to an emergency declaration. See MCL 10.31(1); MCL 10.32. These are not terms that suggest local or regional-only authority. See Black’s Law Dictionary (11th ed) (defining public safety). See also Merriam-Webster Online Dictionary, <https://www.merriam-webster.com/dictionary/public> (accessed May 11, 2020) (defining “public” to mean “of, relating to, or affecting all the people of the whole area of a nation or state”) (emphasis added). Taking these broad terms and imposing limits on them as plaintiffs suggest would run contrary to MCL 10.32’s directive to broadly construe the authority granted to the Governor under the EPGA. See Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010) (explaining that it is “well established that to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.”). And in this context, it is apparent the EPGA employs broad terminology that empowers the Governor to act for the best interests of all the citizens of this state, not just the citizens of a particular county or region. It would take a particularly strained reading of the plain text of the EPGA to conclude that a grant of authority to deal with a public crisis that affects all the people of this state would somehow be constrained to a certain locality. Moreover, adopting plaintiffs’ view would require the insertion into the EPGA of artificial barriers on the Governor’s authority to act which are not apparent from the text’s plain language. To that end, even plaintiffs would surely not quibble that the broad authority bestowed on the Governor under the act would permit her to respond to an emergency situation that affected one county, or perhaps even multiple counties. Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA because, according to plaintiffs, rendering emergency assistance to the state’s entire citizenry is not an option under the EPGA. While plaintiffs generally contend there

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are localized or regionalized limitations on the Governor’s authority under the EPGA, they do not explain how to demarcate the precise geographic limitations on the Governor’s authority under the EPGA—and this is for good reason: there are no such limitations.
In arguing for a contrary interpretation of the scope of the Governor’s authority under the EPGA, plaintiffs selectively rely on parts of the statute and ignore the contextual whole. For instance, they focus on the notion that a city or county official may apply for an emergency declaration in order to support their assertion that the EPGA only applies to local or regional emergency declarations. In doing so, plaintiffs ignore that the same sentence permitting local officials to apply for an emergency declaration also authorizes two state officials—one of whom is the Governor herself—to apply for or make an emergency declaration. See MCL 10.31(1). Equally unpersuasive is plaintiffs’ fixation on the word “within” as it appears in MCL 10.31(1). Plaintiffs note that MCL 10.31(1) permits the Governor to declare a state of emergency in response to “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state” (emphasis added). According to plaintiffs, the use of the word “within” means that an emergency can only be declared at a particular location within the state, and precludes the state of emergency from being declared for the entire state. However, a common understanding of the word “within,” including the same definition plaintiffs cite, demonstrates the flaw in plaintiffs’ position. The word “within” is generally used “as a function word to indicate enclosure or containment.” Merriam-Webster’s Online Dictionary, <https://www.merriam-webster.com/dictionary/within> (accessed May 20, 2020). For instance, it can refer to “the scope or sphere of” something, such as referring to that which is “within the jurisdiction of the state.” Id. In other words, the term “within” refers to the jurisdictional bounds of the state. The authority to declare an emergency “within” the state is, quite simply, the authority to declare an emergency across the entire state.

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Plaintiffs next argue that, when the EPGA is read together with the EMA, it is apparent that the EPGA is not meant to address matters of statewide concern. In general, both the EPGA and the EMA grant the Governor power to act during times of emergency. “Statutory provisions that relate to the same subject are in pari materia and should be construed harmoniously to avoid conflict.” Kazor v Dep’t of Licensing & Regulatory Affairs, 327 Mich App 420, 427; 934 NW2d 54 (2019). “The object of the in pari materia rule is to give effect to the legislative intent expressed in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that construction should control.” In re AGD, 327 Mich App 332, 344; 933 NW2d 751 (2019) (citation and quotation marks omitted).
Here, when the EMA and the EPGA are read together, it is apparent that there is no conflict between the two acts even though they address similar subjects. While plaintiffs are correct in their assertion that the EMA contains more sophisticated management tools, that does not mean that the EPGA is limited to local and regional emergencies only. Nor does the fact that both statues apply to statewide emergencies mean that one act renders the other nugatory. Instead, the Court can harmonize the two statutes, see In re AGD, 327 Mich App at 344, by recognizing that while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal. The use of these enhanced features comes at some cost, however, because the EMA is subject to the 28-day time limit contained in MCL 30.405(3)-(4), whereas an emergency declaration under the less sophisticated EPGA has no end date. Finally, plaintiffs’ contentions regarding a conflict between the EMA and the EPGA are belied by MCL 30.417. That section of the EMA expressly states that nothing in the EMA was intended to “Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of

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the Michigan Compiled Laws . . . .” MCL 30.417(d). In other words, the EMA explicitly recognizes the EPGA and it recognizes that the Governor possesses similar, but different, authority under the EPGA than she does under the EMA.
Plaintiffs’ final attempt to assert that the EPGA was intended as a local or regional act is to point to what they describe as the history of the EPGA. In general, the legislative history of an act and the historical context of a statute can be considered by a court in ascertaining legislative intent; however, these sources are generally considered to have little persuasive value. See, e.g., In re AGD, 327 Mich App 342 (generally rejecting legislative history as “a feeble indicator of legislative intent and . . . therefore a generally unpersuasive tool of statutory construction”) (citation and quotation marks omitted). Here, the history cited by plaintiffs is particularly unpersuasive because, having reviewed the same, the Court concludes that it does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA. Nor have plaintiffs directed the Court’s attention to a particular piece of history that expressly supports their claim; they instead rely on mere generalities and anecdotal commentary. Finally, the EPGA presents no ambiguity requiring explanation through extrinsic historical commentary.
In an alternative argument, plaintiffs argue that, assuming the Governor’s ability to act under the EPGA gives her statewide authority, the executive orders issued pursuant to the EPGA are nevertheless invalid. According to plaintiffs, the Governor’s exercise of lawmaking authority under the orders runs afoul of separation of powers principles.
Plaintiffs’ constitutional challenge to the EPGA fares no better than their attempt to limit the Act’s scope. This Court must, when weighing this constitutional challenge to the EPGA, remain mindful that a statute must be presumed constitutional, “unless its constitutionality is

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readily apparent.” Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 59; 669 NW2d 845 (2003) (citation and quotation marks omitted). Indeed, “[t]he power to declare a law unconstitutional should be exercised with extreme caution and never where serious doubt exists with regard to the conflict.” Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997).
Const 1963, art 3, § 2 declares that “[t]he powers of government are divided into three branches: legislative, executive and judicial.” The Constitution dictates that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Id. The issue in this case concerns what plaintiffs have alleged is an unconstitutional delegation of legislative power to the Governor. While the Legislature cannot delegate its legislative power to the executive branch of government, the prohibition against delegation does not prevent the Legislature “from obtaining the assistance of the coordinate branches.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003) (citation and quotation marks omitted). As explained by our Supreme Court, “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).
In general, the Supreme Court has recognized three “guiding principles” to be applied in non-delegation cases:
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The various and varying detail associated with managing the natural resources has led to

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recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. Third, if possible the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority. [State Conservation Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976) (internal citations and quotation marks omitted).] Any discussion of plaintiffs’ non-delegation issue must acknowledge that the policy goals and the complexity of issues presented under the EPGA do not concern ordinary, everyday issues. Rather, as the title of the act and its various provisions reflect, the EPGA is only invoked in times of emergency and of “great public crisis,” and when “public safety is imperiled[.]” MCL 10.31(1). Hence, while the Governor’s powers are not expanded by crisis, the standard by which this Court must view the standards ascribed to the delegation at issue must be informed by the complexities inherent in an emergency situation. Blue Cross & Blue Shield, 422 Mich at 51; State Conservation Dep’t, 396 Mich at 309.
With that backdrop, and when viewing the EPGA in its entirety, the Court concludes that the Act contains sufficient standards and that it is not an unconstitutional delegation of legislative authority. At the outset, MCL 10.31(1) provides parameters for when an emergency declaration can be made in the first instance. The power to declare an emergency only arises during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” Id. In addition, the statute provides a process for other officials, aside from the Governor, to request or aid in assessing whether an emergency should be declared. See id. (allowing input from “the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police”). Therefore, the EPGA places parameters and limitations on the Governor’s power to declare a state of emergency in the first instance, which weighs against plaintiffs’

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position. Cf. Blue Cross & Blue Shield, 422 Mich at 52-53 (finding an unconstitutional delegation of legislative authority where there were no guidelines provided to direct the pertinent official’s response and where the power of the official was “completely open-ended.”).
Furthermore, the EPGA provides standards on what a Governor can, and cannot, do after making an emergency declaration. As for what she can do, 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) (emphasis added). The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. See, e.g., MCL 500.3107(1)(a) (describing, in the context of personal injury protection insurance, “allowable expenses” that consist of “reasonable” charges incurred for “reasonably necessary products, services and accommodations . . . .”). Thus, the Court rejects any contention that these terms are too ambiguous to provide meaningful standards. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority which permitted an administrative body to continue to employ an individual for such a period of time as was “necessary” provided a sufficient standard, under the circumstances). See also Blank v Dept’ of Corrections, 462 Mich 103, 126; 611 NW2d 530 (2000) (opinion by Kelly, J.) (finding a constitutionally permissible delegation of authority, in part, based on the enabling legislation constrained rulemaking authority to only those matters that were “necessary for the proper administration of this act.”). Finally, in addition to the above standards, the EPGA goes on to expressly list examples of that which a Governor can and cannot do under the EPGA. See MCL

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10.31(1) (providing a non-exhaustive, affirmative list of subjects on which an order may be issued); MCL 10.31(3) (containing an express prohibition on orders affecting lawfully possessed firearms). Accordingly, the EPGA contains some restrictions on the Governor’s authority and it provides standards for the exercise of authority under the Act.3
In sum, the Court concludes that plaintiffs’ challenges to the Governor’s authority to declare a state of emergency under the EPGA and to issue Executive Orders in response to a statewide emergency situation under the EPGA are meritless. Thus, and for the avoidance of doubt, while the Court concludes that the Governor’s actions under the EMA were unwarranted— see discussion below—the Court concludes that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.
EXECUTIVE ORDER 2020-68 WAS NOT AUTHORIZED BY THE EMA
Turning next to the Governor’s orders issued pursuant to the EMA, the Court again notes that the legitimacy of the initial declaration of emergency and disaster, Executive Order No. 202004, is unchallenged in this case. The extension of that declaration under EO 2020-33 is likewise agreed to be a legitimate exercise of gubernatorial power. This court is not asked to review the scope of myriad emergency measures authorized under either declaration. The laser focus of this case is the legitimacy of EO 2020-68, which re-declared a state of emergency and state of disaster under the EMA only one minute after EO 2020-66 cancelled the same. The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees.
3 The Court notes that Judge Kelly reached a similar conclusion, albeit in the context of denying a motion for preliminary injunction, in the case of Mich United for Liberty v Whitmer, Docket No. 20-000061-MZ.

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The EMA allows circumvention of the traditional legislative process only under extraordinary circumstances and for a finite period of time. Enacted in 1976, the EMA grants the Governor sweeping powers to cope with “dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). These powers include the authority to issue executive orders and directives that have the force and effect of law. MCL 30.403(2). The Governor may also, by executive order, “Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL 30.405(1)(a). Additionally, the Governor may issue orders regarding the utilization of resources; may transfer functions of state government; may seize private property—with the payment of “appropriate compensation”—evacuate certain areas; control ingress and egress; and take “all other actions which are which are necessary and appropriate under the circumstances.” See, e.g., MCL 30.405(1)(b)-(j). This power is indeed awesome.
The question presented is whether the Governor could legally, by way of Executive Order 2020-68, declare the exact states of emergency and disaster that she had, only one minute before, terminated. The Legislature answer with an emphatic, “No,” and the Governor offers an equally emphatic, “Yes.”
As with most contracts, the Legislature asserts that time is of the essence in the limits of the extraordinary power afforded the executive under the EMA. The Act is replete with references to timing. MCL 30.403 provides as follows:
The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation

Case 1:20-cv-00414-PLM-PJG ECF No. 33-4 filed 06/05/20 PageID.1685 Page 22 of 26 21
declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. [MCL 30.403(3) (emphasis added).]
Later the act addresses the duration of a “state of emergency,” and its extension under MCL
30.403(4):
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. [Emphasis added.]
The limitation of 28 days is repeated multiple times. A state of emergency or disaster, once
declared, terminates no later than 28 days after being initially declared. The Governor can
determine that the emergent conditions have been resolved earlier than 28 days. Alternatively, the
Governor may ask the Legislature to extend the emergency powers for a period of up to 28 days
from the issuance of the extension. Nothing in Act precludes legislative extension for multiple
additional 28-day periods. In this case the Governor stated in EO 2020-66 that she expressly
terminated the previously issued states of emergency and disaster—not because the disaster or
emergency condition ceased to exist—but because a period of 28 days had expired. In fact, EO
2020-66, the order that terminated the states of disaster and emergency under the EMA, expressly
acknowledged that the emergency and/or disaster had not subsided and still remained In this
respect, EO 2020-66 complied with MCL 30.403(3) and (4)’s directives that the Governor “shall,”

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after 28 days, “issue an executive order or proclamation declaring” that the state of emergency and/or disaster terminated.
However, the Governor argues that she may continue to exercise emergency powers under the EMA without legislative authorization in this case. She argues that she has a duty and the authority to do so because the Legislature failed to grant her the requested extension despite the fact that the emergent conditions continued to exist.
Neither party to this case denies that the COVID-19 emergency was abated as of April 30. No serious argument has been offered that had the Governor not issued EO 2020-68 that all of the emergency measures authorized by EO-33 would have terminated with the signing of EO 202066 on April 30 even if had the governor not vetoed SB 858, which purported to embody several of the expiring Executive Orders and which would not have been effective until 90 days later because the Legislature did not give that bill immediate effect. The Governor asserts she had a duty to act to address the void. She argues that MCL 30.403(3) and (4) compelled her, upon the termination of the states of emergency and disaster accomplished by way of time, to declare anew both states of emergency and disaster within minutes. The Governor makes this argument by emphasizing language in MCL 30.403(3) and (4) stating that, if the Governor finds that a disaster or emergency occurs, then she “shall” issue orders declaring states of emergency or disaster. Thus, argues the Governor, when the 28-day emergency and disaster declarations ended, but the disaster and emergency conditions remained, the Governor was compelled, irrespective of legislative approval, to re-declare states of emergency and disaster.
The EMA does not prohibit a governor from declaring multiple emergencies or disasters during a term of office or even more than on disaster at the same time. Indeed, the collapse of the

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dam at the Tittabawassee River sparked the issuance of a separate state of emergency and disaster during of this lawsuit. Clearly the collapse of the dam and the subsequent flooding was a new and different circumstance from the COVID-19 pandemic. Returning to the instant case, it could also be argued that the very fact that the Legislature had neither authorized the extension of the emergency powers of the Governor under the EMA nor put in place measures to address the emergent situation was itself a new emergency justifying gubernatorial action. However, the “new” circumstance was occasioned not by a mutation of the disease into something such as “COVID-20,” a precipitous spike in infection, or any other factor, except the Legislature’s failure to grant an extension.
Thus, while the Governor emphasizes the directive that she “shall” declares states of emergency and disaster, the Court concludes that the Governor takes these directives out of context and renders meaningless the legislative extension set forth in MCL 30.403(3) and (4). The Governor’s position ignores the other crucial “shall” in the statute. “After 28 days, the governor shall issue an executive order or proclamation declaring the state of” disaster or emergency terminated, “unless a request by the governor for an extension of the state of” disaster or emergency “for a specific number of days is approved by resolution of both houses of the legislature.” See MCL 30.403(3) (as to disasters); MCL 30.403(4) (as to emergencies). The language employed here is mandatory: The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it. See Smitter v Thornapple Twp., 494 Mich 121, 136; 833 NW2d 785 (2013) (explaining that the term “shall” denotes a mandatory directive). Stated otherwise, at the end of 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate”

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language is an affirmative grant of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. Nor does the statute permit the Governor to simply extend the same state of disaster and/or emergency that was otherwise due to expire. To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language. Whatever the merits of that might be as a matter of policy, that position conflicts with the plain statutory language. The Governor’s attempt to read MCL 30.403(2) as providing an additional, independent source of authority to issue sweeping orders would essentially render meaningless MCL 30.405(1)’s directive that such orders only issue upon an emergency declaration. It would also read into MCL 30.403(2) broad authority not expressed in the subsection’s plain language. See Robinson, 486 Mich at 21 (explaining that, when it interprets a statute, a reviewing court must “avoid a construction that would render part of the statute surplusage or nugatory”) (citation and quotation marks omitted). See also United States Fidelity & Guarantee Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009) (“As far as possible, effect should be given to every phrase, clause, and word in the statute.”). The Court is not free to “pick and choose what parts of a statute to enforce,” see Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 143; 892 NW2d 33 (2016), yet that is precisely what the Governor’s position has asked the Court to do. The language of MCL 30.403(3) and (4) requiring legislative approval of an emergency or disaster declaration should not so easily be cast aside.
Finally, and contrary to the Governor’s argument, the 28-day limit in the EMA does not amount to an impermissible legislative veto. See Blank v Dept’ of Corrections, 462 Mich 103, 113-114; 611 NW2d 530 (2000) (opinion by KELLY, J.) (declaring that, once the Legislature delegates authority, it does not have the right to retain veto authority over the actions of the

Case 1:20-cv-00414-PLM-PJG ECF No. 33-4 filed 06/05/20 PageID.1689 Page 26 of 26 25
executive). The Governor’s characterization of the 28-day limit as a legislative veto is not accurate. The 28-day limit is not legislative oversight or a “veto” of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated. That is, the Governor is afforded with broad authority under the EMA to make rules and to issue orders; however, that authority is subject to a time limit imposed by the Legislature. The Legislature has not “vetoed” or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.
CONCLUSION
IT IS HEREBY ORDERED that the relief requested in plaintiffs’ motion for immediate declaratory judgment is DENIED. While the Governor’s action of re-declaring the same emergency violated the provisions of the EMA, plaintiffs’ challenges to the EPGA and the Governor’s authority to issue Executive Orders thereunder are meritless.
This order resolves the last pending claim and closes the case.

Dated: May 21, 2020

________________________________ Cynthia Diane Stephens, Judge Court of Claims

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants. /

EXHIBIT E

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STATE OF MICHIGAN COURT OF CLAIMS

ERIC OSTERGREN, and JASON GILLMAN, JR.,
Plaintiffs,
v GOVERNOR GRETCHEN WHITMER, and STATE OF MICHIGAN,
Defendants. ___________________________/

OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION AND GRANTING SUMMARY DISPOSITION TO DEFENDANTS
Case No. 20-000053-MZ
Hon. Cynthia Diane Stephens

Pending before the Court is plaintiff Jason Gillman Jr.’s motion for preliminary injunction, as well as the parties’ competing motions for summary disposition. For the reasons that follow, the motion for preliminary injunction and plaintiffs’ motion for summary disposition will be DENIED, and summary disposition will be GRANTED in favor of defendants.

I.

BACKGROUND

A. EXECUTIVE ORDER NO. 2020-38

At the heart of this matter is Executive Order No. 2020-38 by the Governor in response to

the COVID-19 pandemic. The order, which cited the authority of the Governor under the

Emergency Management Act (EMA), MCL 30.401 et seq., as well as the Emergency Powers of

Governor Act (EPGA), MCL 10.31 et seq., pertained to deadlines associated with response times

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for requests made under the Freedom of Information Act (FOIA), MCL 15.231 et seq. The order
provides, in pertinent part:
To mitigate the spread of COVID-19, protect the public health, and provide essential protections to vulnerable Michiganders, it is crucial that all Michiganders limit in-person contact to the fullest extent possible. This includes practicing social distancing and restricting in-person work and interaction to only that which is strictly necessary. At the same time, and as memorialized by Michigan’s Freedom of Information Act (“FOIA”), 1976 PA 442, as amended, MCL 15.231 et seq., it remains the public policy of this state—and a priority of my administration—that Michiganders have access to “full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and public employees,” so that they “may fully participate in the democratic process.” MCL 15.231(2). To balance this core priority with the steep and urgent demands posed by the COVID-19 pandemic, it is reasonable and necessary to provide limited and temporary extensions of certain FOIA deadlines, so that Michiganders may remain informed and involved in their government during this unprecedented crisis without unduly compromising the health and safety of this state and its residents. [Executive Order No. 2020-38 (emphasis added).] The order applies to all “public bodies” as that term is defined in FOIA; pertinent to the instant
case, “public body” refers to local public health departments. See MCL 15.232(h).
B. PLAINTIFFS’ FOIA REQUEST According to plaintiffs’ allegations, plaintiff Jason Gillman, Jr. filed a FOIA request with
the Kent County Health Department for three categories of records: (1) all communications and
responsive records relating to a certain, petition filed by Kent County Health Officer Adam
London; (2) a copy of the petition; and (3) an order issued in response to the petition by a Kent
Circuit Judge. Plaintiff sent the request on or about April 18, 2020. Within one business day of
receiving the request, the Kent County Health Department responded with an estimate regarding
the time it would take to comply. The response stated that plaintiff Gillman’s request had been
uploaded and that “The court records are available through the court and communication will be
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gathered but in accordance with the extended timelines” in EO 2020-38 because the request required on-site work.
On or about April 7, 2020, plaintiffs filed a complaint challenging the validity of EO 202038 as it concerned FOIA requests. The complaint alleges that EO 2020-38 “ordered massive suspensions and alterations of” FOIA and that these alterations and suspensions ran contrary to this state’s Constitution and FOIA. Plaintiffs further allege that neither the EMA nor the EPGA provide the Governor with authority to issue EO 2020-38.
Shortly after submitting his FOIA request plaintiff Gillman moved this Court for a preliminary injunction and show-cause order. The Court notes that at no time did plaintiff Gillman pursue a FOIA claim in Kent Circuit Court as the Act required him to do in the event he believed his rights had been violated with respect to a particular request. See MCL 15.240(1)(b). He asserts that MCL 15.235(2) requires a public body to either grant or deny a FOIA request within 5 business days of receiving the request—unless it requests a one-time, 10-day extension as permitted under MCL 15.235(2)(d). He contends that there is no exception contained within the statute for a pandemic. Plaintiff Gillman contends he has been harmed by Kent County’s decision to rely on EO 2020-38 to delay its response to his request. His motion for preliminary injunction asked the Court to enjoin “the effectiveness of Executive Order No. 2020-38 . . . as to the Freedom of Information Act abridgement as outlined herein.”
The Court held a hearing on the motion for preliminary injunction on May 8, 2020. With respect to the particular harm asserted by plaintiff Gillman, plaintiffs’ counsel conceded that his client’s access to Kent Circuit Court to challenge the timeliness of Kent County’s response was in no way hindered by the issuance of EO 2020-38. Plaintiffs’ counsel argued that the ability to
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access Kent Circuit Court to redress the particular FOIA violation alleged by plaintiff Gillman was irrelevant, however, because the irreparable injury alleged by plaintiff Gillman was a general interference with his rights under FOIA.
II. ANALYSIS—MOTION FOR PRELIMINARY INJUNCTION A trial court must consider four factors when determining whether it is appropriate to issue preliminary injunctive relief:
(1) harm to the public interest if the injunction issues; (2) whether harm to the applicant in the absence of temporary relief outweighs the harm to the opposing party if relief is granted; (3) the likelihood that the applicant will prevail on the merits; and (4) a demonstration that the applicant will suffer irreparable injury if the relief is not granted. [Thermatool Corp v Borzym, 227 Mich App 366, 376; 575 NW2d 334 (1998).] Injunctive relief represents “an extraordinary and drastic use of judicial power that should be employed sparingly and only with full conviction of its urgent necessity.” Davis v Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d 896 (2012) (citation and quotation marks omitted).
The extraordinary remedy of preliminary injunctive relief is not warranted in the matter at hand. Overlooking for now plaintiff Gillman’s ability or inability to succeed on the merits, the Court concludes that plaintiff Gillman’s request for preliminary injunctive relief is not ripe. The record before the Court reveals that Kent County granted plaintiff Gillman’s request, stating that it would gather the records sought. On the surface at least, this response was permitted by MCL 15.234(8), which permits a public body to give a best-efforts estimate regarding the time it will take the public body to fulfill the request. There is thus no apparent, let alone irreparable, injury to plaintiff Gillman, because he cannot establish that there was a FOIA violation, let alone a FOIA violation brought on by EO 2020-38. “The doctrine of ripeness is designed to prevent the
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adjudication of hypothetical or contingent claims before an actual injury has been sustained. A claim that rests on contingent future events is not ripe.” Shaw v City of Dearborn, __ Mich App __, __; __ NW2d __ (2020) (Docket No. 341701), slip op at 8. Plaintiff Gillman’s conjecture about whether the fulfillment of his request will be delayed such that it amounts to a denial of the request, see King v Mich State Police Dep’t, 303 Mich App 162, 189; 841 NW2d 914 (2013) (explaining that a court will look past a public body’s labeling of its FOIA response), does not amount to a live controversy. Plaintiffs’ contention rests on speculation. and he has not presented a colorable claim of a FOIA violation based on EO 2020-38. Furthermore, any assertion by plaintiff Gillman that Kent County violated FOIA could have been, and should have been, pursued in Kent Circuit Court. Plaintiff Gillman failed to pursue vindication of his rights under the statute in Kent Circuit Court, as specified in MCL 15.240(1)(b). Nor was he prevented from doing so by anything in EO 2020-38 or otherwise. Preliminary injunctive relief is not warranted on the record before the Court.
Additionally, and for the reasons stated below, plaintiff Gillman’s request for preliminary injunctive relief fails because he has no likelihood of success on the merits of his claim regarding EO 2020-38.
III. DEFENDANTS ARE ENTITLED TO SUMMARY DISPOSITION The parties’ have, also filed competing requests for summary disposition. Plaintiffs argue that neither the EMA nor the EPGA provided the authority for the Governor to issue EO 2020-38. With respect to the EPGA in particular, plaintiffs argue that the statute would be an unconstitutional delegation of legislative authority if it permitted the Governor to suspend or alter portions of FOIA.
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The Court rejects plaintiffs’ contentions because, at a minimum, the EPGA authorized and continues to authorize the issuance of EO 2020-38 and because the EPGA is not an unconstitutional delegation of legislative authority. Turning first to the issue of whether the EPGA authorized the issuance of EO 2020-38, the statute provides that:
During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. [MCL 10.31(1).] When the Governor proclaims a state of emergency based on great public crisis, public emergency, or upon the imperiling of public safety, she “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). The EPGA states that the Legislature’s intent in passing the Act was:
to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose. [MCL 10.32.] Citing public health concerns, the benefits of social distancing, and the highly communicable nature of COVID-19, defendants’ briefing argues that EO 2020-38 was, consistent with MCL 10.31(1), reasonable and necessary to protect public health and safety. Plaintiffs have not seriously challenged the existence of the Covid-19 pandemic, but instead argue that the EPGA does not, and cannot, as a matter of constitutional law, grant the Governor authority to “amend” FOIA. This assertion is unavailing. EO 2020-38 requires a response “within 10 business days” of actual receipt of a written request at the public body’s physical address. The order modifies the FOIA time line with the insertion of “actual receipt”. Presumptively this change reflects the effects
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of the stay at home order which has closed the offices of many public body’s, reduced staff in others and delayed ordinary mail service. Under FOIA, a public body already had the right to request a one-time, 10-business day extension under MCL 15.235(2)(d). While EO 2020-38 eased response times and compliance times under FOIA, it did not eliminate or fundamentally alter a public body’s FOIA obligations. Thus, in light of the unchallenged public health concerns cited by defendants, the Court concludes that the order was within the scope of the Governor’s authority granted by the EPGA because it was reasonable and necessary for the protection of life and/or to bring the spread of COVID-19 under control.
On the question of whether the EPGA occasions an unconstitutional delegation of legislative authority, the Court once again disagrees with plaintiffs. For the reasons articulated more fully in the simultaneously issued decision in Mich House of Representatives v Governor, (Docket No. 20-000079-MZ), the delegation of authority to the Governor under the EPGA withstands constitutional muster. The Court adopts its pertinent analysis from the Mich House of Representatives decision and incorporates it herein.
IV. CONCLUSION IT IS HEREBY ORDERED that plaintiffs’ motion for preliminary injunction is DENIED. IT IS HEREBY FURTHER ORDERED that defendants’ motion for summary disposition is GRANTED pursuant to MCR 2.116(C)(8) and (C)(10), and plaintiffs’ competing motion for summary disposition is DENIED.
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This order resolves the last pending claim and closes the case.

Dated: May 21, 2020

________________________________ Cynthia Diane Stephens, Judge Court of Claims

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 Case 1:20-cv-00414-PLM-PJG ECF No. 34 filed 06/05/20 PageID.1699 Page 1 of 16

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414
HON. PAUL L. MALONEY
MAG. PHILLIP J. GREEN
ATTORNEY GENERAL DANA NESSEL’S SUPPLEMENTAL BRIEFING ON CERTIFICATION

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) Miller Johnson, Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517)335-7628 shermana@michigan.gov berelsr1@michigan.gov

Christopher M. Allen (P75329) Joshua O. Booth (P53847)

John G. Fedynsky (P65232) Joseph T. Froehlich (P71887)

Darrin F. Fowler (P53464)

Assistant Attorneys General for Defendants Whitmer and Gordon

Michigan Dep’t of Attorney General

P.O. Box 30754, Lansing, MI 48909 (517) 335-7573

allenc28@michigan.gov

boothj2@michigan.gov fedynskyj@michigan.gov

froehlichj1@michigan.gov

fowlerdf@michigan.gov

ATTORNEY GENERAL DANA NESSEL’S SUPPLEMENTAL BRIEFING ON CERTIFICATION

Case 1:20-cv-00414-PLM-PJG ECF No. 34 filed 06/05/20 PageID.1700 Page 2 of 16
TABLE OF CONTENTS Page
Index of Authorities ....................................................................................................... ii Concise Statement of Issue Presented ......................................................................... iv Controlling or Most Appropriate Authority.................................................................. v Introduction ................................................................................................................... 1 Argument ....................................................................................................................... 2 I. Certification is unnecessary because the claims are moot. ............................... 2 II. Because these issues are making their way through Michigan’s
appellate courts and will ultimately reach the Michigan Supreme Court on an expedited basis, this Court should hold this case in abeyance. ............................................................................................................. 3 III. Alternatively, this Court should decline to exercise supplemental jurisdiction over the state-law claims. ............................................................... 7 Conclusion and Relief Requested .................................................................................. 9 Certificate of Service.................................................................................................... 10
i

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INDEX OF AUTHORITIES

Page

Cases
Associate Builders & Contractors of Mich. v. Whitmer, Mich. Court of Claims Docket No. 20-000092-MZ .................................................... 6
Carnegie-Mellon University v. Cohill, 484 U.S. 343 (1988) .................................................................................................... 8
Carver v. Nassau County Interim Finance Authority, 730 F.3d 150 (2d Cir. 2013)........................................................................................ 8
City of New Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d 353 (S.D.N.Y. 2000) ......................................................................... 8
Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997) ...................................................................................... 8
Donohue v. Mangano, 886 F. Supp. 2d 126 (E.D.N.Y. 2012)......................................................................... 9
Harrison v. NAACP, 360 U.S. 167 (1959) .................................................................................................... 5
Martinko v. Whitmer, Mich. Docket No. 161333 ....................................................................................... 3, 5
Mich. United for Liberty v. Whitmer, Mich. Court of Claims Docket No. 20-00061-MZ ...................................................... 6
Michigan House of Representative and Michigan Senate v. Whitmer, Court of Claims No. 20-000079-MZ ................................................................... 3, 4, 5
Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941) ................................................................................................ 1, 5
Taylor v. First of Am. Bank–Wayne, 973 F.2d 1284 (6th Cir. 1992) .................................................................................... 7
United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) .................................................................................................... 7

ii

Case 1:20-cv-00414-PLM-PJG ECF No. 34 filed 06/05/20 PageID.1702 Page 4 of 16 Statutes 28 U.S.C. § 1367(c)................................................................................................. 7, 8, 9 Mich. Comp. Laws § 10.31, et seq. ............................................................................. 1, 3 Mich. Comp. Laws § 30.401, et seq. ........................................................................... 1, 3 Other Authorities Executive Order 2020-110 ............................................................................................. 2 Executive Order 2020-17 ............................................................................................... 2 Executive Order 2020-77 ............................................................................................... 2 Executive Order 2020-92 ............................................................................................... 2 Executive Order 2020-96 ............................................................................................... 2 Rules W.D. Mich. L.Civ.R. 83.1 ............................................................................................... 6
iii

Case 1:20-cv-00414-PLM-PJG ECF No. 34 filed 06/05/20 PageID.1703 Page 5 of 16 CONCISE STATEMENT OF ISSUE PRESENTED
1. Should this Court certify the following questions to the Michigan Supreme Court?
a. Whether, under the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31, et seq., or the Emergency Management Act, Mich. Comp. Laws § 30.401, et seq., Governor Whitmer has the authority to issue or renew any executive orders after April 30, 2020. [(Dkt. 23, Notice of Hr’g, PageID.1092.)]
b. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution. [(Id.)]
iv

Case 1:20-cv-00414-PLM-PJG ECF No. 34 filed 06/05/20 PageID.1704 Page 6 of 16 CONTROLLING OR MOST APPROPRIATE AUTHORITY
Authority: Doe v. Sundquist, 106 F.3d 702 (6th Cir. 1997) Harrison v. NAACP, 360 U.S. 167 (1959) Michigan House of Representative and Michigan Senate v. Whitmer, Mi. S. Ct. No. 161377, 6/4/2020 Order Taylor v. First of Am. Bank-Wayne, 973 F.2d 1284 (6th Cir. 1992) United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966)
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INTRODUCTION This Court has invited the parties to submit additional briefing regarding whether this Court should certify the following two issues to the Michigan Supreme Court:
1. Whether, under the Emergency Powers of the Governor Act, Mich. Comp. Laws § 10.31, et seq. [(EPGA)], or the Emergency Management Act, Mich. Comp. Laws § 30.401, et seq. [(EMA)], Governor Whitmer has the authority to issue or renew any executive orders after April 30, 2020. [(Dkt. 23, Notice of Hr’g, PageID.1092.)]
2. Whether the [EPGA] and/or the [EMA] violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution. [(Id.)]
Defendant Michigan Attorney General Dana Nessel’s answer to the question of whether this Court should certify these issues is “no.” While the Attorney General agrees with this Court that “the ‘last word’ on the meaning of state statutes requiring judicial interpretation belongs not to federal district courts, but to the state supreme court[,]” (Dkt. 23, Notice of Hr’g, PageID.1091 (quoting Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499–00 (1941))), certification is neither necessary nor the most expedient process to undertake in this case.
The Attorney General’s position is that: (1) the claims in this case are moot and should therefore be dismissed, (see Dkt. 27, Attorney General’s Mot. to Dismiss, PageID.1395–97); (2) if this Court does not dismiss the claims as moot and intends to exercise supplemental jurisdiction over the state-law claims, it should hold this case in abeyance until the issues—which, notably, have already been raised and
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decided in a lower state court—run their course (on a continued expedited basis) through the state appellate system, (see update below and Argument II in Attorney General’s Mot. to Dismiss, Dkt. 27, PageID.1399); or (3) this Court could simply decline to exercise supplemental jurisdiction over the state-law claims, (see Dkt. 27, Attorney General’s Mot. to Dismiss, PageID.1398–1400). None of these options requires certification from this Court.
ARGUMENT I. Certification is unnecessary because the claims are moot.
As the Attorney General argued in her motion to dismiss (Dkt. 27, Attorney General’s Mot. to Dismiss, PageID.1396), on May 21, 2020, the Governor issued a new Executive Order—Executive Order 2020-96—which rescinded Executive Order 2020-17 and Executive Order 2020-92 (which replaced Executive Order 2020-77) and imposed significantly lessened restrictions as compared to its predecessors. See E.O. 2020-96.1 Then, on June 1, 2020, the Governor issued Executive Order 2020110, which further lessens restrictions. See E.O. 2020-110. Thus, the challenged executive orders no longer have any legal force, and Plaintiffs’ claims are moot. (See Dkt. 27, Attorney General’s Mot. to Dismiss, PageID.1395–97.) It would be a waste of judicial resources to certify state-law issues on moot claims.
1 All of the Governor’s Executive Orders are available at: https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705---,00.html.
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II. Because these issues are making their way through Michigan’s appellate courts and will ultimately reach the Michigan Supreme Court on an expedited basis, this Court should hold this case in abeyance. The state-law issues that Plaintiffs raise in their Complaint have already
been raised and decided in a lower state court. (See Martinko v. Whitmer, Court of Claims No. 20-000062-MM, April 29,2020 Opinion and Order Regarding PlaintiffsAppellants’ April 23, 2020 Motion for A Preliminary Injunction; Michigan House of Representative and Michigan Senate v. Whitmer, Court of Claims No. 20-000079MZ, May 21, 2020 final opinion.) The House & Senate case in particular issue is making its way through the appellate courts, and raises issues concerning the Governor’s authority under the EPGA, whether the EPGA is an illegal delegation or violates the separation-of-powers doctrine, and the Governor’s authority under the EMA. (Ex. 1, House & Senate, Mich. Docket No. 151377, Bypass App., pp. 20–29, 34–36.)2 And given the importance of the issues involved, these cases have consistently been given expedited consideration.
While, in Martinko, the Michigan Supreme Court recently denied the plaintiffs’’ bypass application because it was “not persuaded that the questions should be reviewed by the Court[,]” (6/4/20 Martinko Order;3 6/4/20), the Court when it denied the bypass application in House & Senate (a 4-3 decision) did not use
2 The Attorney General notes that the House & Senate bypass application does raise an issue regarding the House & Senate’s standing to bring their claims in the first place. (Ex. 1, House & Senate Bypass App., pp. 14–17.) If that argument is successful, the Michigan Supreme Court would not reach the substantive issues. 3 Available at: https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/ RecentCourtOrders/19-20-Orders/161333%202020-06-04%20or.pdf
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that language, instead stating that it was not persuaded that it should review the issues “before consideration by the Court of Appeals.” (6/4/20 House & Senate Order4 (emphasis added).)
Too, the Court’s Order denying bypass in House & Senate underscores the Court’s interest in reviewing the case—after review by the Court of Appeals. One of the concurrences explained: “I agree with my fellow Justices that this case presents extremely significant legal issues that affect the lives of everyone living in Michigan today. And that is exactly why I join the majority of this Court in denying the parties’ bypass applications—because I believe that a case this important deserves full and thorough appellate consideration.” (Id., Bernstein, J., concurring). Another concurrence explained: “[O]one might be left with the impression that this Court has declined altogether to decide this case. It has not—it has only declined to decide the case before the Court of Appeals does. I believe this is both compelled by our court rules and advisable as a matter of prudence. Because I believe the Court neither can nor should review this case before the Court of Appeals does, I concur with the Court’s order denying these bypass applications.” Id. (Clement, J., concurring (emphasis added)).
Thus, the Court’s Order in House & Senate signals that it wants the benefit of the full briefing and analysis that occurs as a case makes its way through normal appellate channels. Presumably, if a majority of the Michigan Supreme Court was
4 Available at: https://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/ RecentCourtOrders/19-20-Orders/161333%202020-06-04%20or.pdf
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unwilling to entertain the House & Senate bypass application (which it treated differently than the Martinko bypass application), it is just as unlikely to agree to certify the same questions from this Court—especially if it believes, as the Attorney General and Governor have argued, that the federal claims raised in this case are moot.
In the meantime, holding this case in abeyance would serve to “postpone the exercise of [this Court’s] jurisdiction until the state court has had ‘a reasonable opportunity to pass upon’ the relevant questions of law,” Harrison v. NAACP, 360 U.S. 167, 176–77 (1959), in much the same way that the Pullman abstention operated to postpone the exercise of the federal court’s jurisdiction in Harrison. Id; See also Pullman Co., 312 U.S. at 499–500 (1941). Because the very issues that Plaintiffs raise in their Complaint and that this Court now flags as potential issues for certification are already making their way through Michigan’s appellate courts, abeyance—rather than engaging in the certification process—is in the interest of judicial economy. Additionally, the state cases challenging the EPGA and the EMA has been expedited in every court. (E.g. 6/4/20 House & Senate Order (granting immediate consideration); House & Senate, Mich. Court of Claims Docket No. 20000079-MZ;5 6/4/20 Martinko Order (granting immediate consideration); Martinko, Mich. Court of Claims Docket No. 20-000062-MM;6 Associate Builders &
5 Docket available at: https://webinquiry.courts.michigan.gov/WISearchResults/ ViewPage1?commoncaseid=823894 6 Docket available at: https://webinquiry.courts.michigan.gov/WISearchResults/ ViewPage1?commoncaseid=823831
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Contractors of Mich. v. Whitmer, Mich. Court of Claims Docket No. 20-000092-MZ;7 Mich. United for Liberty v. Whitmer, Mich. Court of Claims Docket No. 20-00061MZ;8 Mich. United for Liberty Motion to Expedite Appeal, Mich. App. Docket No. 353643.9) Consequently, there is no reason to believe there would be an unreasonable delay in these issues coming before Michigan’s highest court.
Finally, Local Rule 83.1 requires a number of steps prior to certification, including: (1) a written certification; (2) written findings that: (a) the issue certified is an unsettled issue of state law; (b) the issue certified will likely affect the outcome of the federal suit; and (c) certification of the issue will not cause undue delay or prejudice; (3) citation to authority authorizing the state court involved to resolve certified questions; and (4) a statement of facts to be transmitted to the Michigan Supreme Court by the parties as an appendix to the briefs. W.D. Mich. L.Civ.R. 83.1. Those steps could be avoided by holding this case in abeyance pending the conclusion of state-court proceedings in (at the very least) the House & Senate case. And since “the order of certification shall stay federal proceedings for a fixed time,” id., holding the case in abeyance achieves the same result.
7 Docket available at: https://webinquiry.courts.michigan.gov/WISearchResults/ ViewPage1?commoncaseid=823961 8 Docket available at: https://webinquiry.courts.michigan.gov/WISearchResults/ ViewPage1?commoncaseid=823825 9 Docket available at: https://courts.michigan.gov/opinions_orders/case_ search/pages/default.aspx?SearchType=1&CaseNumber=353643&CourtType_Case Number=2
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III. Alternatively, this Court should decline to exercise supplemental jurisdiction over the state-law claims. As an alternative to holding this case in abeyance, this Court could simply
decline to exercise supplemental jurisdiction over the state-law claims, as both Attorney General and the Governor argued in their motion to dismiss. (Dkt. 27, Attorney General’s Mot. to Dismiss, PageID.1398–1400; Dkt. 24-2, Governor’s Mot. to Dismiss, PageID.1119–24.)
Under 28 U.S.C. § 1367(c), the court can, in its discretion, decline to exercise supplemental jurisdiction over a claim in several circumstances: “(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” See also United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
Here, all four factors are present, meaning this Court should decline to exercise supplemental jurisdiction: First, as discussed in Argument I above, all of the federal claims are moot and should therefore be dismissed, implicating the third factor under § 1367(c). See Gibbs, 383 U.S. at 726 (“[I]f the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well.”); Taylor v. First of Am. Bank–Wayne, 973 F.2d 1284, 1287 (6th Cir. 1992) (“[W]hen ‘all federal claims are eliminated before
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trial, the balance of factors . . . will point toward declining to exercise jurisdiction.’ ” (quoting Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7 (1988))).
Second, the state-law claims are novel, and concern the State’s interest in the administration of its government, implicating the first factor under § 1367(c). See Doe v. Sundquist, 106 F.3d 702, 704, 707 (6th Cir. 1997) (dismissing the federal claim and declining to exercise supplemental jurisdiction over the state law claim since the issue was one of “peculiar relevance to the primary police functions of the state”); Carver v. Nassau County Interim Finance Authority, 730 F.3d 150, 154–55 (2d Cir. 2013) (“[W]here a pendent state claim turns on novel or unresolved questions of state law, especially where those questions concern the state’s interest in the administration of its government, principles of federalism and comity may dictate that these questions be left for decision by the state courts.” (quotations omitted)).
Third, the state-law issues in this case predominate over the federal claims, implicating the second factor under § 1368(c). That is, the predominant issues in this case concern the validity and scope of the Governor’s statutory authority to act during an emergency or disaster. See City of New Rochelle v. Town of Mamaroneck, 111 F. Supp. 2d 353, 369–71 (S.D.N.Y. 2000) (declining to exercise supplemental jurisdiction where the predominate issues of the case were state-law issues of first impression, concerning the authority of the state to govern, delegate to other governmental entities, and enact laws, the resolution of which would “have widereaching impact on issues fundamental to governance” of the state).
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And fourth, given the current COVID-19 crisis, as well as the fact that these issues are already before the state courts and working their way through the statecourt system, the circumstances presented are exceptional, implicating the fourth factor under § 1367(c). Donohue v. Mangano, 886 F. Supp. 2d 126, 149 (E.D.N.Y. 2012) (“[T]he existence of the parallel, ongoing state court proceeding also provides a compelling reason for declining supplemental jurisdiction under 28 U.S.C. § 1367(c)(4).” (quotations omitted)).
Therefore, this Court should decline to exercise supplemental jurisdiction over Plaintiffs’ state-law claims.

CONCLUSION AND RELIEF REQUESTED

For the reasons stated above, Defendant Attorney General Dana respectfully

requests that this Honorable Court decline to certify issues to the Michigan

Supreme Court.

Dated: June 5, 2020

Respectfully submitted,
Dana Nessel Attorney General
/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov

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CERTIFICATE OF SERVICE I hereby certify that on June 5, 2020, I electronically filed this Attorney General Dana Nessel’s Supplemental Briefing on Certification with the Clerk of the Court using the ECF system which will send notification of such filing. A courtesy copy of the aforementioned document was placed in the mail directed to: THE HONORABLE PAUL L MALONEY 137 FEDERAL BLDG 410 W MICHIGAN AVE KALAMAZOO MI 49007 THE HONORABLE MAGISTRATE JUDGE PHILLIP J GREEN 601 FEDERAL BLDG 110 MICHIGAN ST NW GRAND RAPIDS MI 49503
/s/ Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Attorney General Dana Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7628 ShermanA@michigan.gov BerelsR1@michigan.gov
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Case 1:20-cv-00414-PLM-PJG ECF No. 34-1 filed 06/05/20 PageID.1715 Page 1 of 59

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs, v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

No. 1:20-cv-414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

Defendants.

EXHIBIT 1 TO ATTORNEY GENERAL DANA NESSEL’S SUPPLEMENTAL BRIEFING ON CERTIFICATION

Exhibit 1 - House & Senate bypass application

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STATE OF MICHIGAN IN THE SUPREME COURT

MICHIGAN HOUSE OF REPRESENTATIVES and MICHIGAN SENATE,
Plaintiffs-Appellants,

Supreme Court No.
Court of Appeals No. 353655 Court of Claims No. 20-000079-MZ

v.
GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan,
Defendant-Appellee.

THIS APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A STATUTE, RULE, OR REGULATION OR OTHER STATE GOVERNMENTAL ACTION IS INVALID.

Patrick G. Seyferth (P47475) Stephanie A. Douglas (P70272) Susan M. McKeever (P73533) Bush Seyferth PLLC 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com douglas@bsplaw.com mckeever@bsplaw.com

Michael R. Williams (P79827) Frankie A. Dame (P81307) Bush Seyferth PLLC 151 S. Rose St., Ste. 707 Kalamazoo, MI 49007 (269) 820-4100 williams@bsplaw.com dame@bsplaw.com

Hassan Beydoun (P76334) General Counsel Michigan House of Representatives PO Box 30014 Lansing, MI 48909 hbeydoun@house.mi.gov

William R. Stone (P78580) General Counsel Michigan Senate PO Box 30036 Lansing, MI 48909 bstone@senate.michigan.gov

Attorneys for the Michigan House of Representatives and Michigan Senate

THE MICHIGAN LEGISLATURE’S EMERGENCY BYPASS APPLICATION FOR LEAVE TO APPEAL
BEFORE DECISION BY THE COURT OF APPEALS
ORAL ARGUMENT REQUESTED

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TABLE OF CONTENTS
TABLE OF AUTHORITIES .........................................................................................iii ORDER APPEALED FROM AND RELIEF SOUGHT ................................................ 1 STATEMENT OF QUESTIONS PRESENTED ........................................................... 2 INTRODUCTION AND REASONS FOR GRANTING THE EMERGENCY
BYPASS APPLICATION .................................................................................... 3 BACKGROUND ............................................................................................................. 5
The Governor’s Exercise of Broad Lawmaking Powers..................................... 5 The Court of Claims Decision ........................................................................... 10 STANDARD OF REVIEW ........................................................................................... 13 ARGUMENT ................................................................................................................ 13 I. The Court should grant leave to decide whether the Governor can use the EPGA to justify an indefinite, statewide state of emergency in light of COVID-19. ..................................................................................................... 13 A. The Governor’s interpretation of the EPGA creates an
irreconcilable conflict with the EMA. .................................................... 14 B. Even aside from the conflict with the EMA that the Governor
has created, the EPGA’s text confirms that it is a locally focused statute. .................................................................................................... 20 C. The historical context shows that the EPGA was meant for local matters, too............................................................................................. 24 D. The Legislature’s construction of the EPGA avoids constitutional concerns. ................................................................................................. 26 II. The Court should grant leave to decide whether the EPGA’s supposed delegation of broad lawmaking powers offends the separation of powers................................................................................................................ 27 A. The lawmaking power rests exclusively with the Legislature. ............ 27 B. The Governor is unilaterally making laws............................................ 30 C. The separation of powers is not diminished by crisis. .......................... 32
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CONCLUSION............................................................................................................. 45
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TABLE OF AUTHORITIES Cases Bd of Rd Comm’rs of Wayne Co v Lingeman,
293 Mich 229; 291 NW 879 (1940)........................................................................... 14 Blank v Dept of Corr,
462 Mich 103; 611 NW2d 530 (2000)....................................................................... 43 Blue Cross & Blue Shield of Mich v Milliken,
422 Mich 1; 367 NW2d 1 (1985)............................................................................... 43 Booth Newspapers, Inc v Univ of Michigan Bd of Regents,
444 Mich 211; 507 NW2d 422 (1993)....................................................................... 22 Civil Serv Comm’n of Michigan v Auditor Gen,
302 Mich 673; 5 NW2d 536 (1942)........................................................................... 28 Council of Organizations & Others for Ed About Parochiaid, Inc v Governor,
455 Mich 557; 566 NW2d 208, 221 (1997)............................................................... 27 Dept of Envtl Quality v Worth Tp,
491 Mich 227; 814 NW2d 646 (2012)....................................................................... 24 Dodak v State Admin Bd,
441 Mich 547; 495 NW2d 539 (1993)....................................................................... 10 Donkers v Kovach,
277 Mich App 366, 371; 745 NW2d 154 (2007) ....................................................... 16 Ex parte Landaal,
273 Mich 248; 262 NW 897 (1935)........................................................................... 16 Fahey v Mallonee,
332 US 245; 67 S Ct 1552; 91 L Ed 2030 (1947) ..................................................... 36 Fed Land Bank of Wichita v Story,
1988 OK 52; 756 P2d 588 (1988) ............................................................................. 33 Fieger v Cox,
274 Mich App 449; 734 NW2d 602 (2007) ............................................................... 28 Forrester Lincoln Mercury, Inc v Ford Motor Co,
No. 1:11-cv-1136, 2012 WL 1642760 (MD Pa, May 10, 2012) ................................ 21
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Gross v Gen Motors Corp, 448 Mich 147; 528 NW2d 707 (1995)....................................................................... 15
Hays v City of Kalamazoo, 316 Mich 443; 25 NW2d 787 (1947)......................................................................... 22
Henry v Dow Chem Co, 473 Mich 63; 701 NW2d 684 (2005)......................................................................... 29
Herald Wholesale, Inc v Dept of Treasury, 262 Mich App 688; 687 NW2d 172 (2004) ............................................................... 15
Home Bldg & L Ass'n v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934) ......................................................... 32
Horne v Dept of Agric, 576 US 350; 135 S Ct 2419; 192 L Ed 2d 388 (2015) .............................................. 32
Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009)....................................................................... 26
Klammer v Dept of Transp, 141 Mich App 253; 367 NW2d 78 (1985) ................................................................. 42
Koontz v Ameritech Services, Inc, 466 Mich 304; 645 NW2d 34 (2002)......................................................................... 20
Leonardson v City of E Lansing, 896 F2d 190 (CA 6, 1990)......................................................................................... 25
Lewis Consol Sch Dist of Cass Co v Johnston, 256 Iowa 236; 127 NW2d 118 (1964) ....................................................................... 40
Little Caesar Enterprises v Dept of Treasury, 226 Mich App 624; 575 NW2d 562 (1997)................................................................... 23 Maryville Baptist Church, Inc v Beshear,
No 20-5427, 957 F3d 610, ___ (CA 6, May 2, 2020) ................................................ 33 Matheson v Ferry,
641 P2d 674 (Utah, 1982) ........................................................................................ 33 Metro Life Ins Co v Stoll,
276 Mich 637; 268 NW 763 (1936)........................................................................... 16
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Mich Dept of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008)............................................................... 13
Michigan State Hwy Comm v Vanderkloot, 43 Mich App 56; 204 NW2d 22 (1972) ..................................................................... 37
Musselman v Governor, 200 Mich App 656; 505 NW2d 288 (1993) ......................................................... 28, 33
N Ottawa Cmty Hosp v Kieft, 457 Mich 394; 578 NW2d 267 (1998)....................................................................... 29
Naturalization Serv v Chadha, 462 US 919; 103 S Ct 2764; 77 L Ed 2d 317 (1983) ................................................ 34
O’Leary v O’Leary, 321 Mich App 647; 909 NW2d 518 (2017) ............................................................... 19
Oshtemo Charter Tp v Kalamazoo Co Rd Com’n, 302 Mich App 574; 841 NW2d 135 (2013) ......................................................... 37, 43
Osius v City of St Clair Shores, 344 Mich 693; 75 NW2d 25, 27 (1956)..................................................................... 38
Paige v City of Sterling Hts, 476 Mich 495; 720 NW2d 219 (2006)....................................................................... 18
Parise v Detroit Entmt, LLC, 295 Mich App 25; 811 NW2d 98 (2011) ................................................................... 16
People ex rel Twitchell v Blodgett, 3 Mich 127 (1865) ............................................................................................... 32, 45
People v Freedland, 308 Mich 449; 14 NW2d 62 (1944)........................................................................... 23
People v Hall, 499 Mich 446; 884 NW2d 561 (2016)................................................................. 13, 19
People v Hanrahan, 75 Mich 611; 42 NW 1124 (1889)............................................................................. 36
People v Mineau, 194 Mich App 244; 486 NW2d 72 (1992) ................................................................. 29
People v Morey, 230 Mich App 152; 583 NW2d 907 (1998) ............................................................... 15
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People v Smith, 87 Mich App 730; 276 NW2d 481 (1979) ................................................................. 25
People v Valentin, 457 Mich 1, 6; 577 NW2d 73 (1998)......................................................................... 14
Petition of Cammarata, 341 Mich 528; 67 NW2d 677 (1954)......................................................................... 13
Pike v N Michigan Univ, 327 Mich App 683; 935 NW2d 86 (2019) ................................................................. 18
Ranke v Michigan Corp & Sec Comm, 317 Mich 304; 26 NW2d 898 (1947)......................................................................... 35
S Dearborn Envtl Improvement Assn, Inc v Dept of Envtl Quality, 502 Mich 349; 917 NW2d 603 (2018)....................................................................... 20
SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65; 894 NW2d 535 (2017)......................................................................... 14
Soap and Detergent Ass’n v Nat Resources Comm’n, 415 Mich 728; 330 NW2d 346 (1982)....................................................................... 28
State Conservation Dept v Seaman, 396 Mich 299; 240 NW2d 206 (1976)....................................................................... 38
State ex rel Dept of Dev v State Bldg Com’n, 139 Wis 2d 1; 406 NW2d 728 (1987)........................................................................ 33
State v Thompson, 92 Ohio St 3d 584; 752 NE2d 276 (2001) ................................................................ 41
State v Turner, --- N.E.3d ----, No. CA2018-11-082 2019 WL 4744944 (Ohio Ct App, September 30, 2019) .......................................... 20
Synar v United States, 626 F Supp 1374 (DDC, 1986) ................................................................................. 38
Trentadue v Buckler Lawn Sprinkler, 479 Mich 378; 738 NW2d 664 (2007)....................................................................... 15
United States v Amirnazmi, 645 F3d 564 (CA 3, 2011)......................................................................................... 41
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United States v Robel, 389 US 258; 88 S Ct 419; 19 L Ed 2d 508 (1967) .................................................... 42
Van v Zahorik, 227 Mich App 90; 575 NW2d 566 (1997), aff’d 460 Mich 320; 597 NW2d 15 (1999)................................................................. 29
Walsh v City of River Rouge, 385 Mich 623; 189 NW2d 318 (1971)....................................................................... 25
Wayman v Southard, 23 US 1; 6 L Ed 253 (1825) ...................................................................................... 27
Westervelt v Nat’l Resources Comm’n, 402 Mich 412; 263 NW2d 564 (1978)................................................................. 27, 37
Wisconsin Legislature v Palm, No. 2020AP765-OA, 2020 WL 2465677 (Wis, May 13, 2020) ........................... 33, 41
Worthington v Fauver, 88 NJ 183; 440 A2d 1128 (1982) .............................................................................. 33
Yant v City of Grand Island, 279 Neb 935; 784 NW2d 101 (2010) ........................................................................ 40
Young v City of Ann Arbor, 267 Mich 241; 255 NW 579 (1934)........................................................................... 29
Youngstown Sheet & Tube Co v Sawyer, 343 US 579; 72 S Ct 863; 96 L Ed 1153 (1952) ....................................................... 33
Statutes La Stat 14:329.6........................................................................................................... 22 MCL 10.31 .............................................................................................................. 35, 39 MCL 10.31(1) ....................................................................................................... passim MCL 10.31–10.33 ........................................................................................................... 3 MCL 10.32 .............................................................................................................. 23, 39 MCL 28.6...................................................................................................................... 20 MCL 30.401–10.421 ....................................................................................................... 3
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MCL 30.402(e).............................................................................................................. 18 MCL 30.402(h) ............................................................................................................. 18 MCL 30.403(3), (4) ............................................................................................. 6, 16, 21 MCL 30.404(3) ............................................................................................................. 19 MCL 30.405(1) ............................................................................................................. 19 MCL 30.406 .................................................................................................................. 19 MCL 30.407–.408 ......................................................................................................... 19 MCL 30.409 .................................................................................................................. 19 MCL 500.3107(1)(a) ..................................................................................................... 42 MCL 550.1102(2).......................................................................................................... 43 MCR 7.305(B)(1) ............................................................................................................ 4 MCR 7.305(B)(2) ............................................................................................................ 4 MCR 7.305(B)(3) ............................................................................................................ 4 MCR 7.305(B)(4)(a) ........................................................................................................ 5 MCR 7.305(B)(4)(b) ........................................................................................................ 5 NY Exec Law 24........................................................................................................... 22 Other Authorities 1 Cooley, Constitutional Limitations (2d ed)........................................................ 30, 35 Black’s Law Dictionary (11th ed. 2019) .......................................................... 21, 22, 30 Kaden, Judicial Review of Executive Action in Domestic Affairs,
80 Colum L Rev 1535 (1980).................................................................................... 38 Opinion to the Governor,
75 RI 54; 63 A2d 724 (1949)..................................................................................... 33 Some Reflections on the Reading of Statutes,
47 Colum L Rev 527, 539 (1947).............................................................................. 14
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State Executive Lawmaking in Crisis, 56 Duke L J 237 (2006) ............................................................................................ 33
The Federalist No. 47 (Madison) ................................................................................. 28 Webster’s Third New International Dictionary 758 (1993) ........................................ 20 Rules MCR 7.305(B)............................................................................................................... 13 Regulations 1976 PA 390 ................................................................................................................. 18 1990 PA 50 ................................................................................................................... 18 Constitutional Provisions 1963 Const. Article 4, § 1............................................................................................. 28 1963 Const. Article 4, § 51........................................................................................... 29 1963 Const. Article 5, § 1............................................................................... 3, 6, 10, 30 1963 Const. Article 3, § 2............................................................................................. 28
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ORDER APPEALED FROM AND RELIEF SOUGHT On May 21, 2020, after the Michigan House of Representatives and Michigan Senate moved for declaratory judgment, the Court of Claims issued an opinion addressing the legality of certain executive orders issued by Governor Gretchen Whitmer in response to the COVID-19 pandemic. Those executive orders purportedly rested on two legislative acts: the Emergency Powers of the Governor Act of 1945 (“EPGA”) and the Emergency Management Act of 1976 (“EMA”). See MCL 10.31– 10.33; MCL 30.401–30.421. The court held that the Governor exceeded the authority granted to her in the EMA by declaring states of emergency and disaster in Executive Order 2020-68 over the Legislature’s objection. But the court upheld the Governor’s exercise of her authority under the EPGA in declaring a state of emergency in Executive Order 2020-67. Further, the court held that the EPGA’s broad grant of gubernatorial lawmaking power did not offend the separation-of-powers doctrine. The Legislature filed a claim of appeal in the Court of Appeals on May 22, 2020. The Legislature respectfully requests that this Court grant emergency-bypass review, reverse the decision of the Court of Claims in part, and hold (1) that the Governor exceeded her authority under the EPGA in declaring an indefinite statewide state of emergency in EO 2020-67; or (2) alternatively, that the EPGA violates the separation-of-powers doctrine in the 1963 Michigan Constitution because it upsets the balance of power that is central to the democratic process and does not provide sufficient standards to guide executive discretion. In either event, the Court should hold that the Governor’s declaration of emergency in EO 2020-67 and the orders that rest upon the same are improper and invalid.
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STATEMENT OF QUESTIONS PRESENTED 1. Should the Court grant bypass leave to appeal to determine whether the
Emergency Powers of the Governor Act grants the governor the power to declare an indefinite statewide state of emergency premised on a pandemic over the Legislature’s objection?
The Legislature answers: “Yes.” The Governor answers: “No.” This Court should answer: “Yes.”
2. Should the Court grant bypass leave to appeal to determine whether the Emergency Powers of the Governor Act is consistent with the separation-ofpowers doctrine in the Michigan Constitution, where the act provides no functional standards to constrain the exercise of the broad lawmaking powers it delegates and results in the usurpation of the Legislature’s role in formulating public policy? The Legislature answers: “Yes.” The Governor answers: “No.” This Court should answer: “Yes.”
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INTRODUCTION AND REASONS FOR GRANTING THE EMERGENCY BYPASS APPLICATION
This case concerns the power of a governor to exercise unconstrained lawmaking powers for an indefinite period throughout the state—all in the name of “emergency.” In response to the COVID-19 pandemic, Defendant Governor Gretchen Whitmer has asserted vast executive-branch power to implement sweeping executive orders. She has premised these executive orders—orders that affect the otherwise lawful activities of every Michigander’s day-to-day existence—on a series of separate executive orders declaring states of emergency and disaster. Governor Whitmer cited three supposed bases of authority to issue these declarations: Article 5, § 1, of Michigan’s 1963 Constitution; the 1945 Emergency Powers of the Governor Act (“EPGA”), MCL 10.31–10.33; and the 1976 Emergency Management Act (“EMA”), MCL 30.401–10.421.
After the Legislature filed an action for declaratory judgment to deem the Governor’s declarations invalid, the Governor abandoned any argument resting on any inherent authority found in Article 5, § 1. The Court of Claims then held that the Governor did not have authority to declare states of emergency or disaster premised on the EMA after April 30, 2020. Thus, the only remaining authority from which the Governor may draw to issue and sustain COVID-19-related declarations of emergency is the EPGA. That act, however, was only intended to address limited, localized emergencies, not the sort of statewide indefinite emergency that Governor Whitmer has sought to declare here. Even if it were not, the EPGA does not provide sufficiently definite standards or safeguards to render it constitutionally consistent
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with the separation-of-powers doctrine. The EPGA, then, is of no use to the Governor. And lacking any genuine source of authority, the Governor’s declarations—and the executive orders founded upon them—are all ultra vires acts that cannot be sustained.
If ever there were a case that warranted this Court’s immediate involvement, then this would be it. The suit involves “a substantial question about the validity of [multiple] legislative act[s].” MCR 7.305(B)(1). It presents a serious question as to the constitutionality of the EPGA and a serious question as to the validity of the quasi-legislative acts that the Governor has unilaterally undertaken in the wake of COVID-19. These issues are undeniably of “significant public interest,” in that they touch upon the daily lives of every person in Michigan (including those just passing through) and the republican form of government to which they are entitled. MCR 7.305(B)(2). The case involves a “subdivision” of the state on the one side (that is, the Legislature) and “an officer of the state … in [her] official capacity” (that is, the Governor) on the other. Id. The issue is one of “major significance to the state’s jurisprudence,” as it directly poses a central question of how the branches of government may exercise and balance their powers, particularly in a time of emergency. MCR 7.305(B)(3). Delaying final adjudication would do “substantial harm,” as citizens and lawmakers would be left in a state of uncertainty at a time when confident decision-making is a requirement for survival. Michiganders are living under and attempting to interpret orders that never should have been implemented over their Legislature’s objection; at the very least, they are living
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under a cloud of ambiguity that can be rectified by this Court. MCR 7.305(B)(4)(a). The ultra vires nature of the Governor’s actions puts at risk people who are relying on governmental direction to guide their conduct. Lastly, this appeal involves a ruling that has already declared one related “action of the … executive branch[] of state government invalid.” MCR 7.305(B)(4)(b).
The Legislature therefore respectfully asks the Court to order expedited merits briefing, schedule oral argument as soon as possible, and then issue a decision. It asks the Court to hold that the EPGA does not grant the Governor the broad powers that she claims it does. Alternatively, the Legislature asks the Court to hold that the EPGA is an unconstitutional delegation and usurpation of lawmaking power. The Governor’s ongoing emergency orders are improper and invalid as a matter of state constitutional and statutory law. COVID-19 presents real problems that call for a comprehensive and deliberative governmental response. The Court should restore the proper constitutional order and allow the branches to get to work—together.
BACKGROUND The Governor’s Exercise of Broad Lawmaking Powers As the Court of Claims recognized, the underlying facts of this case are undisputed. On March 10, 2020, on the same day that the first two presumptive-positive cases of COVID-19 were announced in Michigan, Governor Whitmer declared a state of emergency throughout Michigan. See EO 2020-4; State of Michigan, Michigan announces first presumptive positive cases of COVID-19 <https://bit.ly/2zVg2XH> (last accessed May 5, 2020). The Governor’s declaration of emergency cited three
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sources of authority: Article 5, § 1, of Michigan’s 1963 Constitution, the EMA, and the EPGA. EO 2020-4. A few weeks later, on April 1, 2020, the Governor issued an Executive Order titled “Expanded emergency and disaster declaration.” EO 2020-33. In rescinding and replacing the March 10 declaration, the new order declared an expanded “state of emergency and a state of disaster … across the State of Michigan.” Id. (emphasis added). This new declaration rested on the same three supposed sources of authority.
The EMA required the Governor to “declar[e] the state of emergency [or disaster] terminated, unless a request by the governor for an extension of the state of emergency [or disaster] for a specific number of days is approved by resolution of both houses of the legislature.” MCL 30.403(3), (4). After the Governor’s initial declarations, the Legislature by resolution approved the Governor’s requested “extension of the state of emergency and state of disaster” from the March 10, 2020 order and April 1, 2020 order, setting April 30, 2020 as its new expiration date. 2020 SCR 24. The “extension” resolution was required to extend the states of emergency and disaster, at an absolute minimum, by the EMA. MCL 30.403(3), (4).
On April 27, 2020, a few days before the as-extended state of emergency was to expire, the Governor announced that she would request that the Legislature further extend her declaration of state of emergency. Exhibit 3, April 27, 2020 Letter. But the Legislature and the Governor were unable to agree to terms, so the next day passed without the Legislature entering a resolution to further extend the state of emergency and state of disaster. Rather than continuing to let all public policy
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decisions be implemented via ad hoc executive orders, the Legislature offered to extend the states of emergency and disaster so long as any future “stay-at-home” requirements be passed as bipartisan legislation through the democratic process. This reflected the Legislature’s position: although the Governor is best equipped to swiftly respond to a pandemic’s more immediate challenges, the Legislature is equipped to arrive at more durable, consensus-based solutions through a deliberative process. The Legislature would have still permitted the Governor to supplement with executive orders as needed. The Governor refused and even vetoed legislation to codify many of her executive orders.
Even though the Legislature determined not to extend the declared states of emergency and disaster and instead revert to the ordinary democratic process to handle the state’s long-term pandemic response, the Governor decided to ignore that judgment and move ahead on her own. In particular, on April 30, 2020, less than five hours before the as-extended state of emergency and state of disaster were set to expire, the Governor issued a series of executive orders.
First, she issued EO 2020-66, terminating the state of emergency declared under the EMA in the April 1, 2020 order. See EO 2020-33. The order observed that the EMA called for her to terminate a declaration of a state of emergency or disaster after 28 days. See EO 2020-66. The Governor acknowledged that the statute bound her: “Twenty-eight days, however, have elapsed since I declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33. And while I have sought the legislature’s agreement that these declared states of
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emergency and disaster should be extended, the legislature … has refused to extend them beyond today.” Id.
Second, one minute later, the Governor issued another order: a declaration of state of emergency under the EPGA. See EO 2020-67. After citing the EPGA, the Governor ordered that “[a] state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945[.]” Id. (emphasis added). The Governor ordered that the declaration would continue through May 28, 2020, adding vaguely that she would “evaluate the continuing need for this order prior to its expiration.” Id. EO 2020-67 rescinded the April 1 order and stated that all previous executive orders that had rested on that earlier order now rested on this order. Id.
Third, the Governor issued EO 2020-68, an executive order that—in direct contradiction to her termination order issued moments earlier—declared “states of emergency and disaster under the [EMA].” This order, like the preceding order, specified that it would continue through May 28, 2020, and laid out no conditions for termination beyond the Governor’s evaluation of the “continuing need for this order” prior to that date. But unlike the EPGA order, which stated that a state of emergency remains, this third order played a semantics game: it was phrased to declare states of emergency and disaster now: “I now declare a state of emergency and a state disaster across the State of Michigan under the Emergency Management Act.” Id. All prior orders resting on the April 1, 2020, declaration of emergency and disaster were said to then rest on this order. Id.
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Using these declarations, the Governor has continued issuing broad orders at a rapid pace. Indeed, relying on the powers that she believed the EMA and EPGA declarations afforded her, the Governor has issued 98 COVID-19 executive orders— more than any other governor in the nation. See Council of State Governments, COVID-19 Response for State Leaders <https://web.csg.org/covid19/executiveorders/> (accessed May 22, 2020). The initial “stay-at-home” order has been modified six times, changing the scope of criminal and non-criminal activities in the state nearly every week. See EO 2020-96 (noting the extensions and modifications of the various state-at-home orders). As of May 22, 2020, there are 44 “live” COVID-19 executive orders. The Governor’s current declaration of emergency and disaster is EO 2020-99, under which the Governor declared an emergency under the EPGA and, despite the Court of Claim’s May 21 order, the EMA. In EO 2020-100, the Governor clarified the duration of 14 COVID-19 executive orders: EOs 2020-26, 28, 36, 39, 46, 52, 55, 58, 61–62, 64, 69, 76, and 96. In addition to those 16 orders, 28 other COVID19 executive orders are still effective: EOs 2020-14, 22, 27, 38, 63, 65, 71–75, 78–83, 85–89, 93, 95, 97, and 101–103.
These orders—including the “stay at home” orders—touch upon all aspects of life in Michigan; they confine Michiganders to their homes, limiting a broad swathe of available services and goods, changing legal rights, criminalizing a variety of otherwise ordinary activity, closing schools, and more. In public statements, the Governor has shown no intent to end the declared states of emergency or disaster any time soon. See Riley Beggin & Mike Wilkinson, Bridge, When Will Gov. Whitmer
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Reopen Michigan? It’s Complicated. And A Bit Vague. <https://bit.ly/2LLrcRw> (May 17, 2020) (quoting Governor Whitmer as saying that reopening “depends on human nature, it depends on human activity”).
The Court of Claims Decision Faced with a governor who was determined to unilaterally exercise broad lawmaking powers across the entire state for an undefined period, the Legislature was compelled to file suit against her. On April 30, 2020, both the House and the Senate authorized the suit. The Legislature then filed a complaint and motion for declaratory judgment in the Court of Claims on May 6. On May 21, the Court of Claims decided on the Legislature’s motion for immediate declaratory judgment. After briefly discussing an abandoned procedural requirement, the court concluded that the Legislature had standing. The court found that “the issue presented in this case is whether the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the Legislature’s decision to decline to extend the states of emergency/disaster.” See Exhibit 1, Court of Claims Op, p 7. The nullification of the Legislature’s decision was akin to the “special injury” required to justify standing in prior cases, including the one legislator who was deemed to have standing in Dodak v State Admin Bd, 441 Mich 547, 560; 495 NW2d 539 (1993). Id. at 8. The court further observed that “guidance as to the issues presented in this case will avoid a multiplicity of litigation.” Id. at 9. The court next dispensed with the Governor’s brief references to Article 5, § 1 of Michigan’s 1963 Constitution, which vests the “executive power” in the Governor. Although referenced in the executive orders at issue, the Governor had largely
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abandoned any reliance on this provision in the proceedings below. The court confirmed that the “executive power” only grants the Governor the power to administer or execute the laws, and she had no right to act in this instance without applicable enabling statutes. Id. at 9–10. Thus, the trial court was focused on the EPGA and EMA. Id. at 10.
The court then held that the EPGA authorized EO 2020-67 and the executive orders that relied upon it. The Court of Claims read the EPGA to “bestow[] broad authority on the Governor,” including police power extending across the entire state. Id. at 10. The court further believed that, notwithstanding legislative history to the contrary, certain terms used in the act were “not terms that suggest local or regionalonly authority,” and it noted that the terms were to be “broadly construe[d].” Id. at 12, 15. The court agreed with the Legislature that the EPGA must be read together with the EMA. Id. at 14. But it found no problem in allowing the evidently limitless authority of the EPGA to be extended to the same subjects as the expressly limited authority of the EMA. Id. “[T]he Court can harmonize the two statutes,” it said, “by recognizing that while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal.” Id. The court did not say what those tools or options might be, nor did it provide any functional explanation of how the two laws interact.
The court found that this broad construction of the EPGA did not present any separation-of-powers concerns under the Michigan Constitution. The court considered whether the EPGA afforded sufficient standards to channel the
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executive’s exercise of delegated power. Id. at 16–17. The court believed this evaluation was shaped by the emergency circumstances of this case. Id. at 17 (“[T]he standard by which this Court must view the standards ascribed to the delegation at issue must be informed by the complexities inherent in an emergency situation.”). With that more relaxed approach in mind, the court held that sufficient standards could be found in the EPGA because a declaration could only be issued during certain times or at the request of certain persons. Id. Further, once the declarations were issued, the Governor was empowered to take “reasonable” and “necessary” actions. Id. at 18. And the act contained “examples” of what a governor could or could not do after declaring a state of emergency. Id. at 18–19.
The court went on to hold, however, that the Governor’s post-April-30 exercise of authority under the EMA was “ultra vires.” Id. at 19. The Governor had taken the EMA’s instructions “out of context.” Id. at 23. Under the EMA, the Governor was obliged to terminate the declaration of emergency or disaster after 28 days absent a legislative extension, full stop. Id. at 23. The Governor’s formalistic approach— which would allow her to declare, terminate, and then redeclare states of emergency and disaster repeatedly—would render that provision “meaningless.” Id.; see also id. at 24 (“To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language. … [T]hat position conflicts with the plain statutory language.”). What is more, the court rejected the Governor’s attempt to extract from the EMA an “additional, independent source of authority” outside the context of a declaration of
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emergency or disaster. Id. at 24. Lastly, the court disagreed with the Governor that the 28-day extension provision was an impermissible legislative veto. Id. at 25–26.
The Legislature filed a timely claim of appeal with the Court of Appeals on May 22, 2020. This application for leave followed.
STANDARD OF REVIEW Whether to grant leave to appeal is within this Court’s discretion. To obtain review by this Court, an appellant must show only that his case meets one or more of the criteria set forth in MCR 7.305(B). Should this Court determine to grant leave to appeal, review will be de novo. See Mich Dept of Transp v Tomkins, 481 Mich 184, 190; 749 NW2d 716 (2008) (“Questions of constitutional interpretation and statutory interpretation are questions of law reviewed de novo by this Court.”); Petition of Cammarata, 341 Mich 528, 540; 67 NW2d 677 (1954) (applying de novo standard of review to allegation that executive action was ultra vires).
ARGUMENT I. The Court should grant leave to decide whether the Governor can use
the EPGA to justify an indefinite, statewide state of emergency in light of COVID-19. The Governor and the Court of Claims both embrace an interpretation of the EPGA that presents serious problems, particularly when read together with the EMA. This Court should grant leave to address those problems before more damage is done. The EPGA was meant for localized emergencies, not statewide ones.
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A. The Governor’s interpretation of the EPGA creates an irreconcilable conflict with the EMA.
“[S]tatutes that relate to the same subject or that share a common purpose” are in pari materia and “must be read together as one.” People v Hall, 499 Mich 446, 459 n 37; 884 NW2d 561 (2016) (cleaned up). “The application of in pari materia is not necessarily conditioned on a finding of ambiguity.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 73 n 26; 894 NW2d 535 (2017). Even “a statute that is unambiguous on its face can be rendered ambiguous by its interaction with and its relation to other statutes.” People v Valentin, 457 Mich 1, 6; 577 NW2d 73, 75 (1998) (cleaned up); see also Bd of Rd Comm’rs of Wayne Co v Lingeman, 293 Mich 229, 236; 291 NW 879 (1940) (“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words, and even the structure of the sentence.” (citation and quotation marks omitted)). Fundamentally, a statute “cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes.” Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum L Rev 527, 539 (1947). And here, the EPGA and EMA should be read in pari materia. They occupy the same realm of the law. The cover the same general topic: gubernatorial emergency powers. They have the same goal: immediate crisis control pending more durable legislative action.
If these statutes are properly read together, and the Governor’s approach is embraced, then the EMA becomes a purposeless redundancy to EPGA. The Governor,
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after all, insists that she can do most anything she wants under the EPGA that she could also do under the EMA. If the Governor were right, then all the statutory protections and safeguards found in the EMA—including, most notably, the 28-day automatic termination provision and the need for legislative approval—would be pointless. For why would a Governor acquiesce to the more rigid procedures of the EMA when she could have all she wanted through a brute-force application of the EPGA? Even the Court of Claims did not purport to answer that question; it could only suggest that the statutes could be “harmonize[d]” by “recognizing” that the “EMA equips the Governor with more sophisticated tools and options at her disposal.” Exhibit 1, p 14. But what tools? What options? When it comes to the power to issue executive orders deriving from a declared state of emergency, the reader of the Court of Claims opinion is only left guessing as to why the EMA would have ever be implicated at all. And now that the EPGA has been so thoroughly enlivened by the Court of Claims, the EMA might well become dead letter when a governor is looking to exercise broad authority via executive authority.
Of course, a court’s construction of a given statute should not operate like this, that is, it should not render a provision—let alone a whole separate statutory scheme—surplusage or nugatory. Apsey v Mem Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007) (citation omitted). A provision “is rendered nugatory when an interpretation fails to give it meaning or effect.” Id. Courts have also said that interpretations must avoid rendering a portion of a statute “meaningless,” Herald Wholesale, Inc v Dept of Treasury, 262 Mich App 688, 699; 687 NW2d 172 (2004);
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People v Morey, 230 Mich App 152, 158; 583 NW2d 907 (1998), or “unnecessary,” Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 399; 738 NW2d 664 (2007); Gross v Gen Motors Corp, 448 Mich 147, 159; 528 NW2d 707 (1995). However phrased, the Court must apply “any reasonable construction” before it accepts an interpretation that renders all or part of a statute “nugatory.” Ex parte Landaal, 273 Mich 248, 252; 262 NW 897 (1935). The Court of Claims’ order ignores that basic idea, stripping out the teeth from the EMA for the sake of building broader authority from the EPGA’s vaguer text.
Even if the court was correct in applying both laws to statewide emergencies, the odd result of allowing an earlier, broader statute (the EPGA) to effectively neuter a later, more specific one (the EMA) is inconsistent with other fundamental canons of construction, too. For one, “[w]hen two statutes are in pari materia but conflict with one another on an issue, the more specific statute must control over the more general statute.” Donkers v Kovach, 277 Mich App 366, 371; 745 NW2d 154 (2007). Yet the Court of Claims has done just the opposite: allowed what it interprets as the more general, abbreviated statute of the EGPA to remove the statutory guardrails found in the more specific and well-defined EMA. For example, regarding duration, the EMA provides a mechanism to decide the length of a state of emergency or disaster and a formal process to terminate the state of emergency or disaster, see MCL 30.403(3), (4), while the EPGA only refers vaguely to a “declaration by the governor that the emergency no longer exists” without providing guidance as to when or how that declaration is made, MCL 10.31(2). The EPGA, then, should be yielding
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to the EMA, not the other way around. For another, in construing two evidently conflicting statutes in pari materia, the older statute must yield to the newer one. See Metro Life Ins Co v Stoll, 276 Mich 637, 641; 268 NW 763 (1936); Parise v Detroit Entmt, LLC, 295 Mich App 25, 28; 811 NW2d 98 (2011). The EPGA was passed in 1945 and the EMA in 1976; thus, the EMA provisions should control as the more recent expression of legislative intent. And as the Court of Claims recognized, an indefinite statewide declaration of emergency without legislative approval is not contemplated by the EMA.
The Court of Claims accepted the Governor’s argument that these problems can be dismissed because of single fleeting provision in the EMA. That provision says that the EMA is not intended to “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA].” MCL 30.417(d) (emphasis added). Allowing the EMA to control as the more specific and recent statute, however, would only limit the Governor’s ability to extend an emergency over the Legislature’s objection, not her ability to proclaim a state of emergency at the onset under the EPGA. Even if it did, that problem is only caused by the lower court’s supposed harmonizing of the EMA and EPGA in which both apply to the same kinds of statewide crises. If, however, the EMA and the EPGA were confined to distinct spheres, then there would be no modification, implicit or otherwise. The conflict would disappear.
And indeed, there is a way to keep each statute in its proper lane: by acknowledging that the EPGA is meant for specific, localized emergencies. Reading
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the EPGA’s conception of an “emergency” against the EMA’s definition of the “emergency” highlights the former’s local bent. The EPGA contemplates, for example, that the Governor will act in “emergency” instances like “rioting”—a decidedly local problem. MCL 10.31(1). The later-enacted EMA references “emergency,” too, explaining that an emergency exists whenever the Governor decides “state assistance is needed to supplement local efforts.” MCL 30.402(h). In other words, even in the EMA, a declared “emergency” is a local problem that becomes so severe the State must help. But the EMA goes further, providing for the further power to declare a state of disaster. A disaster is an occurrence of “widespread” damage, including, among other things, “epidemic[s].” MCL 30.402(e). Other examples of disasters confirm their wide geographical scope; they include “blight, drought, infestation,” “hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities.” Id. Importantly, while the EPGA does briefly reference a “disaster,” it does not empower the Governor to declare a “state of disaster.” And when the EMA was originally passed, it gave the Governor the power to declare only disasters, leaving local emergencies to the EPGA. See 1976 PA 390. The Legislature expanded the scope of the EMA to include emergencies only to comply with the federal Emergency Planning and Community Right-To-Know Act—and even those amendments maintained a notably statewide focus. See Exhibit 4, Senate Fiscal Analysis, 1990 PA 50 (1990).
This deliberate distinction—wherein one statute has a “state of disaster” and the other does not—must be given meaning. See Pike v N Michigan Univ, 327 Mich
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App 683, 696; 935 NW2d 86 (2019) (“[W]hen the Legislature uses different words, the words are generally intended to connote different meanings.” (cleaned up)). On the other hand, “emergency,” which appears in both places, should be defined consistently across the two acts. See Paige v City of Sterling Hts, 476 Mich 495, 520; 720 NW2d 219 (2006) (rejecting the notion that “absolutely identical phrases in our statutes … [can] have different meanings in different statutes”). The net effect is that “emergencies” (of the kind that can trigger the EPGA or the EMA) are local, while “disasters” (of the kind that can justify action only under the EMA) are statewide events. (Of course, “disasters” might involve or cause one or more “emergencies,” but they still carry different meaning.)
Further, the EMA’s administrative components contemplate emergencies more in the order of a statewide or widespread crisis—or problems at least requiring statelevel resources. For example, it provides for federal aid, MCL 30.404(3), 30.405(1); includes detailed rules for compensation for property, MCL 30.406; establishes departments and department heads to oversee state administration, MCL 30.407– .408; provides for county representatives from each county, MCL 30.409; and many similar provisions. In contrast, the EPGA is barely a half-a-page of text—far more fitting for small, local management. It imagines only that the Governor will issue “orders, rules, and regulations” in an undefined way. MCL 10.31(1). The comparison is striking.
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The import of all this is obvious: the Governor should not be permitted to generate statutory conflict by using the EPGA to impose a statewide, indefinite state of emergency.
B. Even aside from the conflict with the EMA that the Governor has created, the EPGA’s text confirms that it is a locally focused statute.
The words of a statute should drive its interpretation. See Hall, 499 Mich at 453; O’Leary v O’Leary, 321 Mich App 647, 652; 909 NW2d 518 (2017). “[N]ontechnical words and phrases should be construed according to their plain meaning, taking into account the context in which the words are used.” S Dearborn Envtl Improvement Assn, Inc v Dept of Envtl Quality, 502 Mich 349, 361; 917 NW2d 603 (2018) (cleaned up). In doing so, the Court “may consult dictionary definitions.” Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Applying these principles to the EPGA confirms that the statute was intended to address only instances of local concern.
The statute starts by noting that the Governor may act during times of public emergency “within” the State. MCL 10.31(1). “Within” is a meaningful choice. “‘Within’ means ‘on the inside or on the inner-side’ or ‘inside the bounds of a place or region.’” State v Turner, --- N.E.3d ----, No. CA2018-11-082, 2019 WL 4744944, at *4 (Ohio Ct App, September 30, 2019) (quoting Webster’s Third New International Dictionary 758 (1993)). Thus, something defined as “within” relative to something else implies that the former is engulfed (and therefore smaller in size) than the latter. The Court of Claims assumed that “within” just marks the jurisdictional boundaries for the application of the statute. But it does not make sense to say that the state is
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“within” the state. And had the Legislature meant for the legislation to apply to the state writ large, it would have said so, as it has done in other legislation. See, e.g., MCL 28.6 (requiring the commissioner of the Michigan State Police to “put into effect plans and means of cooperating with the local police and peace officers throughout the state” (emphasis added)).
Similarly, the statute reaffirms its local, geographic focus in repeatedly referring to an “area,” “section,” or “zone.” The scope of the Governor’s emergency declaration power under the EPGA is limited to “the area involved,” and any orders she promulgates have to be calibrated to “the affected area.” MCL 10.31(1) (emphasis added). She may take measures “to bring the emergency situation within the affected area under control.” Id. The Governor’s powers include controlling traffic “within the area or any section of the area” designated as the emergency area. Id. (emphasis added). And when the Governor controls the “ingress and egress of persons and vehicles” to and from properties, she does so within “designat[ed] … zones within the area.” Id. (Contrast the EPGA’s contemplation of gubernatorial power over a single “area” with the EMA, which expressly contemplates that the Governor’s declaration under that act might reach “areas.” MCL 30.403(3).)
These words—“area,” “zone,” and “section”—all establish that the Governor’s power is intended to apply to some subpart of the state as a whole. For example, Merriam-Webster’s Online Dictionary defines “area,” in relevant part, as “a particular extent of space or one serving a special function,” such as “a geographic region.” Merriam-Webster’s Online Dictionary, Area <https://bit.ly/3c17JYu> (accessed May
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22, 2020). Similarly, Webster’s New World College Dictionary defines “area” as “a part of a house, lot district, city, etc. having a specific use or character.” Likewise, a “zone” contemplates “[a]n area that is different or is distinguished from surrounding areas.” Black’s Law Dictionary (11th ed. 2019), while a “section” is “a part of something” or “any of the more or less distinct parts into which something is or may be divided.” Forrester Lincoln Mercury, Inc v Ford Motor Co, No. 1:11-cv-1136, 2012 WL 1642760, at *4 n 6 (MD Pa, May 10, 2012) (quoting dictionary definitions). None of these words, then, imply that the Governor’s powers under the EPGA are intended to reach the entirety of the state. Yet the Court of Claims did not address them at all.
The EPGA’s structure and language is consistent with other states that have applied their emergency statutes locally. See also, e.g., NY Exec Law 24 (statute borrowing EPGA’s language but expressly noting that it creates a “local state of emergency”); La Stat 14:329.6 (statute borrowing EPGA’s language but expressly noting that the state of emergency is declared as to “any part or all of the territorial limits of [a] local government”).
The Court of Claims chose not to focus on all these textual provisions. Instead, the Court of Claims drew significant meaning from the statute’s frequent reference to “public” emergencies and determined that the statute vested the entire “police power” in the Governor. The court’s emphasis, one not even pressed by the Governor, is an unusual one. “Public” is used to emphasize the problem is one that reaches beyond an individual to affect a broader community. See, e.g., Black’s Law Dictionary (11th ed 2019) (defining “private” to mean “[o]f, relating to, or involving an individual,
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as opposed to the public or the government”). In other contexts, “public” is just used to refer to things that trigger the sovereign power of government; it is not a synonym for “statewide.” See, e.g., Booth Newspapers, Inc v Univ of Michigan Bd of Regents, 444 Mich 211, 225; 507 NW2d 422 (1993) (noting the Open Meetings Act’s definition of “public body” as one that “exercise[s] governmental or proprietary authority”); Hays v City of Kalamazoo, 316 Mich 443, 458; 25 NW2d 787 (1947) (finding a city’s participation in the Michigan Municipal League served a “public” purpose because “the welfare of the city was thereby served”); People v Freedland, 308 Mich 449, 455; 14 NW2d 62 (1944) (“[A]n individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public[.]”). It is not helpful—and entirely circular—to say that the EPGA is triggered by instances in which the power of the government should become involved.
The Court of Claims also repeatedly focused on a statutory declaration of intent. Yet that provision says only that the statute was meant to give the Governor “sufficiently broad power of action” to “provide adequate control” during crisis periods. MCL 10.32. The “power of action” refers to what acts the Governor may perform. The Legislature and the Governor agree that those acts—that is, the tools that the Governor may employ—are broad. But the “power of action” says nothing about where those actions may be done. And the expansive power granted to the Governor is more reason to believe that the statute did not contemplate statewide action, not less—for it defies common sense to think that the Legislature would have closely cabined the statewide powers of the EMA while at the same time recognizing
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even broader statewide powers within the EPGA. Aside from all that, a “rule of liberal construction does not override other rules if the application would defeat the evident meaning of the act.” Little Caesar Enterprises v Dept of Treasury, 226 Mich App 624, 629; 575 NW2d 562 (1997). The Governor’s interpretation would do just that, transforming an act meant for limited areas into one providing boundless power.
Thus, even when the EPGA’s words are read without reference to the EMA, they signify that the EPGA is intended to address specific, local concerns—not matters covering every inch of the state.
C. The historical context shows that the EPGA was meant for local matters, too.
Context also matters. A crucial factor in determining the Legislature’s original intent is the historical context in which the statute was passed and implemented. See Dept of Envtl Quality v Worth Tp, 491 Mich 227, 241; 814 NW2d 646 (2012) (holding that courts must read statutes “in conjunction with” the “historical context”).
The context of the EPGA’s enactment shows that the Act was designed for local issues. A Lansing State Journal article written on April 6, 1945 noted that the EPGA “result[ed] from the 1943 Detroit race riot” and would “give the governor wide powers to maintain law and order in times of public unrest and disaster.” Exhibit 5, Article; see also Michael Van Beek, Emergency Powers Under Michigan Law, available at <https://bit.ly/2z3f8rC> (last accessed May 5, 2020) (explaining that the EPGA “was enacted in response to race riots in Detroit in 1943,” a situation that had required troops and a curfew). It should come as no surprise then that provisions of the EPGA read like riot-control measures in a specific area within the state, under which the
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Governor can establish curfews, control public streets, and limit the dissemination of alcohol and explosives. See MCL 10.31(1). In sum, the EPGA’s historical context shows that it was passed to allow the Governor to address localized crises— specifically to preserve law and order in the face of civil unrest.
This “local riots” idea was the common understanding of the EPGA for decades and became part of the impetus for passage of the EMA. In the mid-1970s, for example, Governor Milliken expressed concern over the danger presented by highwater levels in the Great Lakes. In a special message to the Legislature on nonmanmade disasters in 1973, he reiterated that the EPGA was “pertinent to civil disturbances” and concluded that “[u]nder existing law, the powers of the Governor to respond to disasters is unduly restricted and limited.” See Exhibit 6, Milliken Special Message. Because the EPGA was insufficient to address a statewide, natural disaster, he asked “that the Legislature give the Governor plenary power to declare states of emergency both as to actual and impending disasters.” Id. He repeated this same message in 1974 and 1975. The Legislature responded by passing the EMA. This legislative leadup confirms that the EMA is the device for broader emergencies, not the EPGA. Again: why would Governor Milliken have thought the EMA necessary if he already had everything he needed in the EPGA?
Court cases show the same. The only three court cases that even mention the EPGA all confirm this local understanding. Two discuss the EPGA in the context of local responses to localized emergencies—local curfews. See Walsh v City of River Rouge, 385 Mich 623; 189 NW2d 318 (1971); People v Smith, 87 Mich App 730; 276
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NW2d 481 (1979). The last touches upon the EPGA’s potential preemption of a local law designed to corral university students during “a drunken, raucous semi-annual event.” Leonardson v City of E Lansing, 896 F2d 190, 192 (CA 6, 1990). Obviously, none of these concern widespread statewide disasters, let alone pandemics.
Past Governors understood the limited nature of the EPGA as well. To the Legislature’s knowledge, no prior Governor has used the EPGA in at least 30 years (as far back as electronic records are available) for any emergency, let alone statewide emergencies. Before the present administration, the Legislature is not aware of a single use of the EPGA to manage a statewide crisis. In fact, when the Michigan Department of Community Health conducted an assessment in cooperation with the Centers for Disease Control and Prevention of all laws that might be relevant in responding to a pandemic, the EPGA barely warranted a mention (particularly as compared to the EMA). See Exhibit 7, Social Distancing Law Project: Assessment of Legal Authorities (2007). The EPGA was referenced only in noting the Governor’s power to impose a curfew. Id. at 16. This Governor, however, has nevertheless invoked the EPGA almost 100 times in the last few months.
The Court of Claims’ endorsement of the Governor’s novel approach to the EPGA is inconsistent with the context in which this statute was first implemented and has since operated. It should not be credited.
D. The Legislature’s construction of the EPGA avoids constitutional concerns.
Lastly, the Court should find that the EPGA is limited to local matters because to do otherwise would raise constitutional concerns. “[A]s between two possible
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interpretations of a statute, by one of which it would be unconstitutional and by the other valid, [the Court’s] plain duty is to adopt that which will save the act.” Hunter v Hunter, 484 Mich 247, 264 n 32; 771 NW2d 694 (2009). Yet ignoring the EPGA’s geographic limitations is constitutionally fraught. As explained below, the Court of Claims’ interpretation of the EPGA creates an impermissible delegation of powers; it delegates too much raw power with too few standards for the Governor’s exercise of power—and no meaningful temporal limitation at that. The Court should therefore accept the Legislature’s argument, which preserves the EPGA’s constitutionality. “A statute may be constitutional although it lacks [express] provisions which meet constitutional requirements, if it has terms not excluding such requirements.” Council of Organizations & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 584; 566 NW2d 208, 221 (1997) (cleaned up). II. The Court should grant leave to decide whether the EPGA’s supposed
delegation of broad lawmaking powers offends the separation of powers. The Court could determine that the EPGA did not grant the Governor the power to declare a statewide state of emergency and stop there. But even if the Governor acted within her statutory authority, her ongoing declarations (and the attendant executive orders) face another problem: separation of powers. In effectively exercising standardless lawmaking authority to formulate public policy rather than the democratic process, the Governor has usurped the Legislature’s power. A. The lawmaking power rests exclusively with the Legislature. “[T]he legislature makes, the executive executes, and the judiciary construes the law.” Wayman v Southard, 23 US 1, 46; 6 L Ed 253 (1825). These are not civics-
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class platitudes, but the foundation of our constitutional system. Michigan’s 1963 Constitution adheres to these same separation-of-powers principles. See Westervelt v Nat’l Resources Comm’n, 402 Mich 412, 427–429; 263 NW2d 564 (1978) (repeating the same principles). In fact, every Michigan Constitution since our first in 1835 has included a provision making the separation of powers explicit. In Michigan’s 1963 Constitution, that provision is Article 3, § 2: “The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”
This separation exists because, “[w]hen the legislative and executive powers are united in the same person or body[,] . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Soap and Detergent Ass’n v Nat Resources Comm’n, 415 Mich 728, 751; 330 NW2d 346 (1982), quoting The Federalist No. 47 (Madison); see also Musselman v Governor, 200 Mich App 656, 665; 505 NW2d 288 (1993) (quote Justice Cooley’s exposition of the separation of powers). “By separating the powers of government, the framers of the Michigan Constitution sought to disperse governmental power and thereby to limit its exercise.” Fieger v Cox, 274 Mich App 449, 464; 734 NW2d 602 (2007) (cleaned up). Thus, “if there is any ambiguity, the doubt should be resolved in favor of the traditional separation of governmental powers.” Civil Serv Comm’n of Michigan v Auditor Gen, 302 Mich 673, 683; 5 NW2d 536 (1942).
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As part of this scheme, the lawmaking power is vested exclusively in the Legislature. Article 4, § 1, of Michigan’s 1963 Constitution says that all legislative power is vested in the Legislature. “The legislative power, under the Constitution of a state, is as broad, comprehensive, absolute, and unlimited as that of the Parliament of England, subject only to the” US and Michigan constitutions. Young v City of Ann Arbor, 267 Mich 241, 243; 255 NW 579 (1934). Even more specifically, Article 4, § 51, explicitly gives the lawmaking power to protect public health to the Legislature: “The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”
Michigan’s courts have accordingly held time and again that when public policy decisions are required, the Legislature is the branch best equipped to make them. Henry v Dow Chem Co, 473 Mich 63, 91 n 22; 701 NW2d 684 (2005) (stating that public policy must be set by “the Legislature—the branch of government best able to balance the relevant interests in light of the policy considerations at stake”); People v Mineau, 194 Mich App 244, 248; 486 NW2d 72 (1992) (stating “public policy issues are best addressed by the Legislature”). Indeed, the more complex the policy problem, the more appropriate that the Legislature decide it. See N Ottawa Cmty Hosp v Kieft, 457 Mich 394, 408 n 14; 578 NW2d 267 (1998) (“The public policy issues surrounding these circumstances are complex, and we think that such issues are best taken up by the Legislature[.]”); Van v Zahorik, 227 Mich App 90, 98; 575 NW2d 566 (1997), aff’d
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460 Mich 320; 597 NW2d 15 (1999) (citing the need to “defer[] to the Legislature in matters involving complex social and policy ramifications” (cleaned up)).
In contrast with Article 4’s articulation of the Legislature’s law-making power and processes, Article 5—which applies to the executive branch—says nothing about the lawmaking power, excepting two narrow sections on the veto power and reorganization of departments that are not relevant here. See Const 1963, art 5, § 1 (explaining that the executive power rests with the Governor).
B. The Governor is unilaterally making laws. The Governor’s ongoing COVID-19-related orders have strayed far into the realm of legislative power. In contrast with executive power—the authority to execute laws—“legislative power is the authority, under the Constitution, to make laws, and to alter and repeal them.” 1 Cooley, Constitutional Limitations (2d ed), pp 89–90. A law is any “regime that orders human activities and relations through systematic application of the force of politically organized society.” Black’s Law Dictionary (11th ed. 2019). There can be no reasonable debate that these executive orders do exactly that. The Governor’s flagship order, the stay-at-home order, EO 2020-96, provides just one example of how these executive orders have strayed far into the realm of lawmaking. The order commands all Michigan residents “to stay at home or at their place of residence,” subject to certain exceptions, and prohibits most gatherings. ¶ 3. Michiganders may leave home to get groceries, or to engage in outdoor recreational activities, exempted employment, care for others, or gather in groups with 10 or fewer people. Id. ¶ 8. But these exceptions have exceptions, too. For example, a citizen
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can get necessary groceries, but if she needs “non-necessary supplies” she can only get them curbside. Id. ¶ 8(a)(7)–(8). Besides a few categories, “travel is prohibited, including all travel to vacation rentals.” Id. ¶ 8(b)–(c). Michigan’s businesses are affected, too. Citizens who run businesses that the Governor has declared nonessential, must, among other things, suspend all non-basic operations that require people to leave home. Id. ¶ 5. There is, again, an exception for those “who perform resumed activities,” id. ¶ 5(c); and resumed activities include 18 different categories, but there are many additional exceptions that depend on which “region” the worker is in and what the date is. All “short-term vacation property” rentals are prohibited. Id. ¶ 13. Violating the order is punishable as a misdemeanor. Id. ¶ 20.
To be sure, this is not just about one order. The Governor has issued 98 COVID-19-related executive orders—more than any other governor. These orders are not only numerous, but the most expansive in scope. EO 2020-54 prohibits entering a building to evict someone. EO 2020-17 suspended all “non-essential medical and dental procedures.” EO 2020-58 purports to extend the statute of limitations, and EO 2020-38 to revise and suspend certain FOIA mandates. And EO 2020-70 restricted the ability of the faithful to congregate and freely exercise their religion. Five signatures, by one person, unilaterally overrode the legislativelyenacted laws, and imposed new laws, for whether Michigan’s property owners may regain control of their property, how Michigan’s doctors may practice medicine, which patients may seek what treatments, when Michigan defendants are relieved of lawsuits that the Legislature had declared stale, how long Michigan’s citizens can be
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made to wait for public documents, and how people choose to worship their creator. And these are just a few of the orders. The overwhelming majority of the Governor’s orders are in this same vein.
The Governor’s executive orders improperly exercise lawmaking power. They reorder the way Michigan’s citizens work, the way we shop, the way we realize our rights, the way we interact with our neighbors, the way we travel, the way we spend our leisure, and how we may see our family. Michigan residents are at this moment foregoing Governor-declared non-essential functions of civilization to “follow the law.” And Michigan’s businesses are refusing otherwise lawful transactions with willing patrons because the Governor has declared those transactions criminal. In fact, the threat of criminal enforcement looms over many otherwise unexceptional activities because the Governor says her orders are the law. This restructuring of the livelihoods and social interactions of Michigan’s citizens is incontrovertibly lawmaking.
C. The separation of powers is not diminished by crisis. “The Constitution … is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be consistent with the letter and spirit of the constitution.” Horne v Dept of Agric, 576 US 350; 135 S Ct 2419; 192 L Ed 2d 388 (2015). “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.” Id. “Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon
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power granted or reserved.” Home Bldg & L Ass’n v Blaisdell, 290 US 398, 425; 54 S Ct 231; 78 L Ed 413 (1934).
This Court, and many other state supreme courts, have said the same. See People ex rel Twitchell v Blodgett, 13 Mich 127, 139 (1865); see also, e.g., Fed Land Bank of Wichita v Story, 1988 OK 52; 756 P2d 588, 593 (1988); State ex rel Dept of Dev v State Bldg Com’n, 139 Wis 2d 1, 9; 406 NW2d 728 (1987); Matheson v Ferry, 641 P2d 674, 690 (Utah, 1982); Worthington v Fauver, 88 NJ 183, 207; 440 A2d 1128 (1982); Opinion to the Governor, 75 RI 54, 60; 63 A2d 724 (1949). Indeed, when state courts consider the “executive powers exercised by state officials during emergencies,” their decisions “consistently reinforce[] the understanding that there are no inherent executive powers under state constitutions, only delegated powers that must be managed by previously adopted statutes.” Rossi, State Executive Lawmaking in Crisis, 56 Duke L J 237, 252 (2006).
Nor can the Governor usurp the lawmaking power merely because she disagrees with the Legislature’s response to the COVID-19 crisis. The separation of powers must be respected, even when one branch’s “power is usurped or abused” by another. Even then, another branch may not “attempt[] to correct the wrong by asserting a superior authority over that which by the constitution is its equal.” Musselman, 200 Mich App at 665; see also, e.g., Maryville Baptist Church, Inc v Beshear, No 20-5427, 957 F3d 610, ___, at *7 (CA 6, May 2, 2020) (“[W]ith or without a pandemic, no one wants to ignore state law in creating or enforcing these [executive] orders.”); Wisconsin Legislature v Palm, No. 2020AP765-OA, 2020 WL 2465677, at
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*22 (Wis, May 13, 2020) (“Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic.”).
Many of these ideas were captured in Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co v Sawyer, 343 US 579; 72 S Ct 863; 96 L Ed 1153 (1952). There, Justice Jackson noted that the Executive Branch had functionally asked “for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.” Id. at 646. Though many thought that finding such power for the executive “would be wise,” that “is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” Id. at 649–650. Nevertheless, Justice Jackson explained, “emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.” Id. at 652. He concluded: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” Id. at 655. So too here.
Because the separation of powers is a cornerstone of our form of government, and because it is the foundational structural protection against the abuse of our liberties, the courts must resist all temptations to sacrifice it for expediency. “The hydraulic pressure inherent within each of the separate Branches to exceed the outer
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limits of its power, even to accomplish desirable objectives, must be resisted.” Immigration and Naturalization Serv v Chadha, 462 US 919, 951; 103 S Ct 2764; 77 L Ed 2d 317 (1983).
D. The EPGA’s supposed delegation of power cannot save the Governor’s COVID-19 executive orders.
Michigan’s foremost constitutional law expert, Justice Cooley, considered it a “settled maxim[] in constitutional law” that “the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.” 1 Cooley, Constitutional Limitations (2d ed), p 116 (“Where the sovereign power of the State has located the authority, there it must remain[.]”). The Legislature may not “relieve itself of the responsibility” to make laws, nor may it “substitute the judgment, wisdom, and patriotism of any other body” for its own. Id. at 116–117. At most, “the Legislature, within limits defined in the law, may confer authority on an administrative officer or board to make rules as to details, to find facts, and to exercise some discretion, in the administration of a statute.” Ranke v Michigan Corp & Sec Comm, 317 Mich 304, 309; 26 NW2d 898 (1947). These acts of execution are far different from lawmaking.
The EPGA, as interpreted by the Governor and affirmed by the Court of Claims, is functionally an open-ended grant of legislative power. The EPGA states that, after the Governor declares an emergency, she “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. As outlined above, the Governor believes this language entitles her to
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make rules touching the most intimate parts of Michiganders’ lives. Judging from the orders she has issued, the Governor has not felt constrained by the examples of statutory power reflected in the actual statutory text. She has even rendered many ordinary activities of daily life criminal. But the power to “declare what shall constitute a crime, and how it shall be punished, is an exercise of the sovereign power of a state, and is inherent in the legislative department of the government. Unless authorized by the constitution, this power cannot be delegated by the legislature to any other body or agency.” People v Hanrahan, 75 Mich 611, 619; 42 NW 1124 (1889); see also Fahey v Mallonee, 332 US 245, 249; 67 S Ct 1552; 91 L Ed 2030 (1947) (noting that in two prior cases where the US Supreme Court struck down statutes as violations of the non-delegation doctrine, both “dealt with delegation of a power to make federal crimes of acts that never had been such before and to devise novel rules of law in a field in which there had been no settled law or custom”).
The Governor construes the EPGA to mean that she can rule by executive fiat on any public policy issue remotely touched or affected by the COVID-19 pandemic. For example, her statute-of-limitations executive order is not aimed at controlling the COVID-19 pandemic itself—it is aimed at controlling the legal ramifications. Many of her COVID-19 executive orders aim to control the secondary social effects of the pandemic, not the pandemic itself. Some, in an exercise of power two or three degrees divorced from the pandemic, seek to regulate the effects of the executive orders themselves. See, e.g., EO 2020-63 (suspending the expiration of personal protective orders because “proceedings designed to protect vulnerable individuals” have in
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“some cases” become “exceedingly difficult” in part because of the Governor’s own control measures). If the EPGA can be interpreted to give the Governor power to control literally any aspect of our social structure that is affected by the pandemic, with no deadline for the end of that exercise of raw power, it provides her substantively limitless legislative power. With a little creativity, this approach would effectively transfer the entire legislative power of the State (if not more) to the Governor during an emergency. No statute can transfer that amount of raw legislative power to another branch. Cf. Michigan State Hwy Comm v Vanderkloot, 43 Mich App 56, 62; 204 NW2d 22 (1972) (“[A] statute which in effect reposes an absolute, unregulated, and undefined discretion in an administrative agency … pass[es] beyond the legitimate bounds of delegation of legislative power.”). If the Governor believes the EPGA did, she is wrong, and her actions unconstitutional. And if the Court of Claims were correct that the EPGA delegates such unlimited authority, the EPGA would be unconstitutional.
Even assuming that this amount of power is delegable, the EPGA contains insufficient standards to guide its use. To avoid an unconstitutional delegation of legislative power, a statute “must contain language, expressive of the legislative will, that defines the area within which an agency is to exercise its power and authority.” Westervelt, 402 Mich at 439. “[A] complete lack of standards is constitutionally impermissible.” Oshtemo Charter Tp v Kalamazoo Co Rd Com’n, 302 Mich App 574, 592; 841 NW2d 135 (2013). Importantly, standards exist on a spectrum—what is appropriate in one case will not be appropriate in another. “[D]elegation must be
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made not on the basis of the scope of the power alone, but on the basis of its scope plus the specificity of the standards governing its exercise. When the scope increases to immense proportions … the standards must be correspondingly more precise.” Synar v United States, 626 F Supp 1374, 1386 (DDC, 1986); accord Osius v City of St Clair Shores, 344 Mich 693, 698; 75 NW2d 25, 27 (1956) (explaining that “the standards prescribed for guidance [must be] as reasonably precise as the subjectmatter requires or permits”). To put it simply: greater delegation requires greater standards. And standards are especially important when delegating to the Governor; delegating to a chief executive “pose[s] the most difficult threat to separation of powers, and therefore require the strictest standards,” because a chief executive “is less closely scrutinized by [the Legislature] than are agencies.” Kaden, Judicial Review of Executive Action in Domestic Affairs, 80 Colum L Rev 1535, 1545 (1980). The Court should therefore exercise a heightened level of scrutiny and skepticism.
To decide whether a statute contains sufficient standards, the Court applies a three-step analysis. First, the statute “must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act.” State Conservation Dept v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). Second, the standard must be “as reasonably precise as the subject matter requires or permits.” Id. (cleaned up). And third, “if possible[,] the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority.” Id. (cleaned up).
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The EPGA, at least as the Court of Claims has interpreted it, fails each part of the relevant test.
First, taking the statute as a whole, there is little guidance for the Governor to be found in the EPGA. The statute is exceptionally short. It is comprised of three sections, only one of which is substantive. That substantive section says that “[d]uring times of great public crisis . . . the governor may proclaim a state of emergency.” MCL 10.31(1). After so declaring, 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.” Id. Although the section gives examples of such orders, it says the governor’s powers are not limited to those orders. Id. There is no temporal limitation. It set out just one thing that the Governor cannot do: seize guns. Id. In sum, the EPGA’s standard consists solely of two words: “reasonable” and “necessary.” And the statute itself (at least as read by the Court of Claims) suggests that this passing pair of words is not intended to provide any functional limit on the governor’s judgment, because the provision laying out the “construction of the act” emphasizes that the governor must be given “sufficiently broad power” to do what she reach some unspecified level of “adequate control over persons and conditions.” MCL 10.32.
Second, in the Court of Claims’ apparent view, the subject matter of the EPGA includes any possible public-policy area affected by COVID-19. Again, given the inherent nature of a contagious disease, this spin on the EPGA allows orders on practically every imaginable topic. Thus, as the Court of Claims has applied it here,
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the Legislature shifted to the executive branch vast lawmaking power over every corner of the economy and social life with only the guiding words “reasonable” and “necessary.” “Reasonableness” is already the lowest standard of acceptable governmental action; actions that fail to meet that standard—in other words, arbitrary and capricious conduct—are always unlawful. And importantly, the “necessary” referenced in MCL 10.31 isn’t even the formulaic “necessary to implement this act.” Rather, it is “necessary to protect life and property” or bring the crisis “under control”—a far broader mandate, which, as interpreted by the Governor, includes actions unrelated to the crisis at hand. The words grant pure discretion, unguided by any other standard. See, e.g., Yant v City of Grand Island, 279 Neb 935, 945; 784 NW2d 101 (2010) (“[R]easonable limitations and standards may not rest on indefinite, obscure, or vague generalities[.]”); Lewis Consol Sch Dist of Cass Co v Johnston, 256 Iowa 236, 247; 127 NW2d 118 (1964) (“Is it sufficient that an administrative officer, or body, be given power to do whatever is thought necessary to carry out their purposes and to enforce the laws, without other guide than that they must keep within the law? We think something more is required.”).
The Court of Claims believed that a provision referring to the need “to protect life and property or to bring the emergency situation within the affected area under control” provides additional standards. The ruling confuses the statute’s goals with its standards. The goal of the EPGA is to protect life and property and to manage unforeseen crises. Even that goal is rather ambiguous. But more to the point, how the Governor achieves that goal is signing “reasonable,” “necessary” executive orders.
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In short, these other phrases are not the standards, but objectives. The only standards guiding how the Governor achieves that objective are that her orders be “reasonable” and “necessary.” See Palm, 2020 WL 2465677, at *8 (holding that claimed delegation of lawmaking authority during existence of authority was improper given lack of procedural safeguards and standards accompanying the delegation); cf. United States v Amirnazmi, 645 F3d 564, 577 (CA 3, 2011) (holding that emergency statute was not improper delegation of authority only because it “struck a careful balance between affording the President a degree of authority to address the exigencies of national emergencies and restraining his ability to perpetuate emergency situations indefinitely by creating more opportunities for congressional input”).
Similarly, the Court of Claims appeared to deem an expressly non-exhaustive list of examples of appropriate actions under the EPGA as a silent constraint on the Governor’s abilities under the act. A list that says powers are “not limited to” those listed cannot constitute a “limit.” See, e.g., State v Thompson, 92 Ohio St 3d 584, 588; 752 NE2d 276 (2001) (explaining that “[t]he phrase ‘including, but not limited to’ ‘indicates that what follows is a nonexhaustive list of examples,’ such that a decisionmaker looking at a list of such factors may nevertheless consider whatever he deems relevant). Likewise, the Court of Claims found it important that the statute defined some moments when the Governor’s authority was said to be triggered under the act. But those times are determined at the discretion of the Governor. And that
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aside, defining when powers are triggered does very little to provide guidance in how to exercise those powers.
The Governor also rested her claimed authority on a permutation of the “emergencies justify laxity” approach. She has repeatedly said that EPGA’s subject matter—unforeseen crises—requires flexibility, such that the “reasonable” and “necessary” standards are as specific as they can be. The Court of Claims seemed to bite at this notion. Yet it sounds much like the argument from necessity that Justice Jackson so persuasively refuted in Youngstown. And it is a double-edged sword: as the breadth of her powers grow, so does the need for proportionally strong standards. If the EPGA really gives her such broad powers in the event of unforeseen crises, there must be better standards than “reasonable” and “necessary.” “Necessary” may be good enough when the question is whether an employee’s term of employment may be extended past a mandatory retirement age. See Klammer v Dept of Transp, 141 Mich App 253, 261–262; 367 NW2d 78 (1985) (explicitly limiting its holding regarding “necessary” to “the context of th[e] case”). But that is a far different determination than exercising minute-by-minute regulation of basic actions by all Michiganders with the bite of criminal sanctions lurking in the background. See United States v Robel, 389 US 258, 275; 88 S Ct 419; 19 L Ed 2d 508 (1967) (Brennan, J., concurring) (“The area of permissible indefiniteness [in delegation standards] narrows, however, when the regulation invokes criminal sanctions and potentially affects fundamental rights[.]”). Similarly, the Court of Claims was mistaken in finding authority in a Michigan no-fault insurance statute allowing for the recovery of “reasonable” medical
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charges. See MCL 500.3107(1)(a). That statute does not in any way concern a limit on the exercise of delegated authority, and a jury’s determination of “reasonableness” is far different from an executive’s exercise of constitutionally un-cabined authority.
In the end, this case is much like Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 55; 367 NW2d 1 (1985), in which this Court applied the Seaman factors and concluded that a statute was an impermissible delegation. There, the Court confronted a statute establishing a panel of three actuaries to resolve risk-factor disputes. The Court held the statute violated Seaman’s test where it simply provided the Insurance Commissioner with the discretion to “approve” or “disapprove” risk factors proposed by health care corporations. Id. at 53–54. Importantly, Blue Cross struck down the provision even though the statute had a clearly and specifically articulated public policy goal to guide execution of the act: “to . . . secure for all of the people of this state who apply for a certificate, the opportunity for access to health care services at a fair and reasonable price.” MCL 550.1102(2). Like the statute in Blue Cross, the EPGA, under the Court of Claims’ interpretation, includes statutory goals but vests the Governor with nearly discretion-less power to meet those goals. See also Oshtemo Charter Tp, 302 Mich App at 592 (expressing “extreme[] skeptic[ism]” towards a statute that “contain[ed] neither factors for the [decisionmaker] to consider … nor guiding standards”).
The Court of Claims thought this case was closer to Blank v Dept of Corr, 462 Mich 103, 124; 611 NW2d 530 (2000), but Blank is fundamentally different. There, this Court considered whether the Department of Correction’s (“DOC”) enabling act
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was an “unconstitutionally broad delegation of legislative power.” The Court held that the statute’s “many” limitations on the DOC’s authority were “sufficient guidelines and restrictions.” Id. at 125–126. These guidelines included, among many others, abiding by the Administrative Procedures Act (“APA”); promulgating “rules only for the effective control and management of DOC”; prohibiting rules that applied to smaller municipal jails; taking “necessary or expedient” action to properly administer the act; and forbidding rules on firearms and name changes. Id. at 126. The delegation was therefore “sufficiently limited to pass constitutional muster.” Id.
The DOC’s enabling statute’s standards included significant limitations; in contrast, the EPGA’s include two perfunctory words. Blank also required adherence to the APA; the EPGA does not. Blank further included specific substantive limitations; as interpreted by the Court of Claims, the EPGA does not. And Blank’s use of the “necessary or expedient” language was related to actions implementing the act, not a category so broad as “protecting life and property.” In short, the power the Governor claims under the EPGA is much greater than the power delegated to the DOC, but it is controlled by a fraction of the standards. The Court of Claims, however, took only one of the Blank standards (“necessary and expedient”), held it up in isolation, and declared the “necessary” and “reasonable” language at issue here was therefore good enough on its own.
Third, and finally, the Legislature has already offered the Court a construction of the EPGA that could save it from invalidation. That construction would, however, invalidate the Governor’s particular use of the EPGA in this instance. That is
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unavoidable. Because, as the Governor interprets it, the EPGA includes no real, substantive standards governing her exercise of an unparalleled delegation of authority, the Court should find that her interpretation, and that of the Court of Claims, is unconstitutional. If the Governor’s reading of the statute is wrong, then her acts are without authority. If she is right, then the act itself must fall.
CONCLUSION “[I]t may easily happen that specific [legal] provisions may, in unforeseen emergencies, turn out to have been inexpedient. This does not make these provisions any less binding.” Twitchell, 13 Mich at 139. The EPGA does not give the Governor the power that she insists it does. Even if it did, it would be an impermissible, standard-free delegation of the Legislature’s lawmaking power. In either event, the Governor’s declaration of a state of emergency—and all the executive orders that derive from it—cannot stand. For all these reasons, then, the Legislature respectfully asks that this Court grant the Legislature’s emergency bypass application for leave to appeal and reverse that part of the Court of Claims’ decision sustaining the Governor’s actions under the EPGA.
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Respectfully submitted,

By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Susan M. McKeever (P73533) Stephanie A. Douglas (P70272) Bush Seyferth PLLC 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com mckeever@bsplaw.com douglas@bsplaw.com

By: /s/ Michael R. Williams Michael R. Williams (P79827) Frankie A. Dame (P81307) Bush Seyferth PLLC 151 S. Rose St., Ste. 707 Kalamazoo, MI 49007 (269) 820-4100 williams@bsplaw.com dame@bsplaw.com

Hassan Beydoun (P76334) General Counsel Michigan House of Representatives PO Box 30014 Lansing, MI 48909 hbeydoun@house.mi.gov

William R. Stone (P78580) General Counsel Michigan Senate PO Box 30036 Lansing, MI 48909 bstone@senate.michigan.gov

Attorneys for the Michigan House of Representatives and Michigan Senate

Dated: May 22, 2020

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STATE OF MICHIGAN IN THE SUPREME COURT

MICHIGAN HOUSE OF REPRESENTATIVES and MICHIGAN SENATE,
Plaintiffs-Appellants,

Supreme Court No.
Court of Appeals No. Court of Claims No. 20-000079-MZ

v.
GRETCHEN WHITMER, in her official capacity as Governor for the State of Michigan,
Defendant-Appellee.

THIS APPEAL INVOLVES A RULING THAT A PROVISION OF THE CONSTITUTION, A STATUTE, RULE, OR REGULATION OR OTHER STATE GOVERNMENTAL ACTION IS INVALID.

Patrick G. Seyferth (P47475) Stephanie A. Douglas (P70272) Susan M. McKeever (P73533) Bush Seyferth PLLC 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com douglas@bsplaw.com mckeever@bsplaw.com

Michael R. Williams (P79827) Frankie A. Dame (P81307) Bush Seyferth PLLC 151 S. Rose St., Ste. 707 Kalamazoo, MI 49007 (269) 820-4100 williams@bsplaw.com dame@bsplaw.com

Hassan Beydoun (P76334) General Counsel Michigan House of Representatives PO Box 30014 Lansing, MI 48909 hbeydoun@house.mi.gov

William R. Stone (P78580) General Counsel Michigan Senate PO Box 30036 Lansing, MI 48909 bstone@senate.michigan.gov

Attorneys for the Michigan House of Representatives and Michigan Senate

INDEX OF EXHIBITS

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Exhibit 1

Description May 21, 2020 Order of Court of Claims

2

May 15, 2020 Transcript of Hearing Before Court of Claims

3

Governor’s April 27, 2020 Letter

4

Senate Fiscal Analysis, 1990 PA 50 (1990)

5

April 6, 1945 Lansing State Journal Article

6

Milliken Special Message

Social Distancing Law Project: Assessment 7
of Legal Authorities (2007)

 
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov

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Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

Ann Maurine Sherman (P67762) Deputy Solicitor General Attorney for Defendant Nessel P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

DEFENDANTS WHITMER, NESSEL AND GORDON’S JOINT MOTION FOR RECONSIDERATION REGARDING CERTIFICATION

Case 1:20-cv-00414-PLM-PJG ECF No. 38 filed 06/11/20 PageID.2058 Page 3 of 9 CONCISE STATEMENT OF ISSUES PRESENTED
1. This Court lacks jurisdiction over Plaintiffs’ state law claims under the Eleventh Amendment. As a result, this Court lacks jurisdiction to certify the state law issues to the Michigan Supreme Court in the first instance. This Court should not certify the issues in Counts I and II to the Michigan Supreme Court and should instead dismiss Counts I and II without prejudice.
CONTROLLING OR MOST APPROPRIATE AUTHORITY WD Local Rule 7.4 Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 121 (1984).
i

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ARGUMENT
I. This Court lacks jurisdiction over Plaintiffs’ state law claims under the Eleventh Amendment. As a result, this Court lacks jurisdiction to certify the state law issues to the Michigan Supreme Court in the first instance. This Court should not certify the issues in Counts I and II to the Michigan Supreme Court and should instead dismiss Counts I and II without prejudice. WD Local Rule 7.4 regards motions for reconsideration, and states: Generally, and without restricting the discretion of the court, motions for reconsideration which merely present the same issues ruled upon by the court shall not be granted. The movant shall not only demonstrate a palpable defect by which the court and the parties have been misled, but also show that a different disposition of the case must result from a correction thereof.
In this motion, Defendants raise Eleventh Amendment immunity regarding the certification issue and in response to Plaintiffs’ state law claims in Counts I and II. Defendants do not merely present the same issues already ruled upon by the Court.
Eleventh Amendment immunity is a dispositive issue requiring a different disposition of the state law claims. Under the Eleventh Amendment, the Court lacks jurisdiction over Counts I and II, and must dismiss those claims rather than certifying the issue to the Michigan Supreme Court. Certification of issues over which this Court lacks jurisdiction is a palpable defect, and the parties and the Court have been misled.
A. The Eleventh Amendment bars the adjudication of Counts I and II against the State in federal court.
As the Supreme Court has explained, “[t]he ultimate guarantee of the Eleventh Amendment is that non-consenting States may not be sued by private
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individuals in federal court.” Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001). Counts I and II present state law claims regarding the scope and state constitutionality of the Michigan Emergency Powers of the Governor Act (EPGA) and the Michigan Emergency Management Act (EMA). In Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 121 (1984), the Supreme Court held that the Eleventh Amendment forbids federal courts from enjoining state institutions and state officials on the basis of state law and that the doctrine of pendent jurisdiction does not override the Eleventh Amendment. The Sixth Circuit has also emphasized that “the States’ constitutional [Eleventh Amendment] immunity from suit prohibits all state-law claims filed against a State in federal court, whether those claims are monetary or injunctive in nature.” Ernst v. Rising, 427 F.3d 351, 368 (6th Cir. 2005).
Moreover, where, as here, a claim is asserted against a state official in her official capacity, the claim is functionally equivalent to a claim asserted against the state itself. See Kentucky v. Graham, 473 U.S. 159, 166 (1985) (explaining that “an official capacity suit is, in all respects other than name, to be treated as a suit against the [governmental] entity” for which the official serves as an agent); Cady v. Arenac County, 574 F.3d 334, 342 (6th Cir. 2009) (noting that “a lawsuit against an officer in his official capacity and against the governmental entity [for which he serves] ... are functionally the same and should therefore be subjected to the same analysis”). The sole exception to this rule—i.e., an official-capacity claim for prospective injunctive relief under Ex parte Young—does not apply to claims
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alleging non-compliance with state law. See Ernst, 427 F.3d at 368–69; Freeman v. Michigan Department of State, 808 F.2d 1174, 1179 (6th Cir. 1987). Consequently, the Court lacks jurisdiction over Counts I and II under the Eleventh Amendment, and the state laws are subject to dismissal without prejudice. This Court should not certify the issues in Counts I and II where the Court lacks jurisdiction over those claims. To do so would be a palpable error.
B. Defendants have not waived Eleventh Amendment immunity. As the Supreme Court has recognized, “[a] State remains free to waive its Eleventh Amendment immunity from suit in a federal court.” Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 618, (2002). A state may waive its immunity through its litigation conduct; but the touchstone of waiver doctrine is intent—the state’s litigation conduct must clearly indicate the state’s intent to waive its immunity. Id. at 620. A clear intent to waive immunity may be inferred when a state’s litigation conduct displays an inconsistent and unfair invocation of immunity “to achieve litigation advantages”—such as removing a case to federal court only to later seek dismissal from that court under the Eleventh Amendment. Id. . Waiver is a case-specific inquiry, focused on the intent clearly indicated by the course of a state’s litigation conduct as a whole. For example, the Sixth Circuit has held that where a state loses its case on the merits after extensive discovery, a state may not then claim sovereign immunity. Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir. 2003); see also Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 756–58,
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760–63 (9th Cir. 1999) (holding state waived sovereign immunity when it did not raise it until the opening day of trial, after it had filed two motions to dismiss and an answer that did not assert it, consented to have a magistrate try the case, conducted discovery, moved to compel discovery and for sanctions, participated in a pre-trial conference, and filed trial material).
Barachkov v. Davis, 580 Fed. Appx. 288 (6th Cir. 2014) (Exhibit A) is instructive. In that case, the plaintiffs contended that the defendant waived its sovereign immunity by asserting the defense primarily in its summary-judgment reply brief. Id. at 300. The defendant first raised the issue of sovereign immunity in its answer to the complaint and again in its amended affirmative defenses. Id. While the defendant did not file a Rule 12(b)(1) motion to dismiss on sovereign immunity grounds, neither did it file a motion to dismiss on the merits. Id. Less than two months later, the defendant filed its summary-judgment brief where it failed to raise its sovereign immunity. Id. Three weeks after the plaintiff filed her response to the motion for summary judgment, the defendant reasserted its sovereign immunity in its reply. Id.
In determining that the defendant had not waived Eleventh Amendment Immunity, the Sixth Circuit held that
We have never held that the failure to raise sovereign immunity in an opening summary-judgment brief per se constitutes a waiver. Rather, properly focusing on the whole of [the defendant’s] litigation conduct demonstrates that it did not clearly intend to waive its sovereign immunity and consent to federal jurisdiction. Id.
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Here, Defendants have done nothing that evidences a clear intent to waive immunity. This case is in its infancy. Service of the complaint was effectuated less than 30 days ago. Defendants filed their motions to dismiss only nine days ago, and Plaintiffs have not yet responded. Defendants have yet to even file an answer or raise affirmative defenses to the complaint. And throughout the short life of this case, Defendants have consistently challenged this Court’s exercise of jurisdiction over Plaintiffs’ state law claims. Eleventh Amendment Immunity only provides further support for that position. The litigation conduct of the Defendants thus has not waived sovereign immunity under the Eleventh Amendment.
CONCLUSION AND RELIEF REQUESTED This Court lacks jurisdiction over Plaintiffs’ state law claims under the Eleventh Amendment. As a result, this Court lacks jurisdiction to certify the state law issues to the Michigan Supreme Court in the first instance. This Court should not certify the issues in Counts I and II to the Michigan Supreme Court and should instead dismiss Counts I and II without prejudice.
Respectfully submitted,
/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) John Fedynsky (P65232) Christopher M. Allen (P75329) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754
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Case 1:20-cv-00414-PLM-PJG ECF No. 38 filed 06/11/20 PageID.2064 Page 9 of 9 Lansing, MI 48909 517.335.7573 s/Ann M. Sherman Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212, Lansing, MI 48909 (517)335-7628
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov

Case 1:20-cv-00414-PLM-PJG ECF No. 38-1 filed 06/11/20 PageID.2066 Page 2 of 12

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

Ann Maurine Sherman (P67762) Deputy Solicitor General Attorney for Defendant Nessel P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/
Exhibit A

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580 Fed.Appx. 288 This case was not selected for publication in West's Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 6th Cir. Rule 32.1. United States Court of Appeals,
Sixth Circuit.
Patricia BARACHKOV, Carol Diehl, and Nancy Englar, Plaintiffs–Appellees/Cross–Appellants,
v. Linda DAVIS, Chief Judge of the 41B, individually and in her official capacity, Defendant–Appellant/Cross–Appellee.
Nos. 13–1320, 13–1399, 13–1765. |
Aug. 28, 2014.
Synopsis Background: Terminated employees of township division of Michigan trial court filed § 1983 action alleging that court, chief judge, and township had violated their First and Fourteenth Amendment rights by ending their employment because of interview statements they made as part of management oversight review conducted by Michigan State Court Administrative Office (SCAO). The United States District Court for the Eastern District of Michigan, Paul D. Brenneman, J., 2012 WL 6015891 and 2013 WL 594015, denied defendants' post-trial motions after jury verdict in employees favor in part. Parties appealed.
Holdings: The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that:
[1] evidence was sufficient from which reasonable juror could conclude that employees had legitimate expectation of justcause employment;
[2] reasonable official would not have known that terminating employees without pre-termination hearing was unlawful; and

Affirmed in part, vacated in part, and remanded.

West Headnotes (3)

[1] Constitutional Law discharge

Termination or

Municipal Corporations Proceedings

Public Employment Requisites and sufficiency of hearing

Evidence was sufficient from which reasonable juror could conclude in action under § 1983 that government employees had legitimate expectation of just-cause employment, and thus they were entitled to pre-termination due process, where prior supervisor testified that he communicated his just-cause policy to workforce in general and current and former employees testified that it was understood that supervisor adopted just-cause standard. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983.

2 Cases that cite this headnote

[2] Civil Rights Employment practices
Reasonable official would not have known that terminating government employees without pretermination hearing was unlawful, and thus official who did so was entitled to qualified immunity in employees' § 1983 procedural due process action; even if employee had informed official that employees could not be terminated without just cause, there was no written policy on that issue, official reasonably undertook to determine employees' employment status, official had not been informed by prior supervisor, despite his opportunity to do so, that employees could not be terminated without just cause, and default status for those employees was at-will employment. U.S.C.A. Const.Amend. 14; 42 U.S.C.A. § 1983.
4 Cases that cite this headnote

[3] Michigan trial court did not clearly indicate its consent to federal jurisdiction.

[3] Federal Courts Litigation conduct

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Federal Courts Courts Michigan trial court did not clearly indicate its consent to federal jurisdiction in lawsuit under § 1983, and thus did not waive its Eleventh Amendment sovereign immunity, by not filing motion to dismiss and by not raising its immunity in its initial summary-judgment brief, since court first raised issue of sovereign immunity in its answer to complaint and again in its amended affirmative defenses, its somewhat belated assertion of sovereign immunity did not appear to be strategic decision, and court raised sovereign immunity in its summary judgment briefing and raised it before merits of case had been ruled upon. U.S.C.A. Const.Amend. 11; 42 U.S.C.A. § 1983.
4 Cases that cite this headnote
*289 On Appeal from the United States District Court for the Eastern District of Michigan.
BEFORE: COLE, Chief Judge; NORRIS and GIBBONS, Circuit Judges.
Opinion
*290 JULIA SMITH GIBBONS, Circuit Judge.
In July 2004, Linda Davis, Chief Judge of Michigan's 41B District Court, fired Patricia Barachkov, Nancy Englar, and Carol Diehl (collectively “the Employees”). The Employees filed suit against Davis in her individual and official capacities, alleging violations of their procedural due process rights under the Fourteenth Amendment. The case was tried to a jury, which returned a verdict in favor of the Employees and awarded compensatory and punitive damages. Davis appeals the denial of her motions for judgment as a matter of law, motion for a new trial, and motion to remit damages. For the following reasons, we hold that Davis is entitled to qualified immunity, vacate the award of damages against her, and remand for consideration of the Employees' entitlement to equitable relief.
I.

This case has been before this court once before. In 2012, we heard an appeal from the district court's grant of Davis's motion for summary judgment, and while the factual record at trial supersedes the summary-judgment record, Nolfi v. Ohio Ky. Oil Corp., 675 F.3d 538, 545 (6th Cir.2012), our prior opinion lays out some of the basic and undisputed factual background.
[The] 41B District Court is a Michigan trial court assigned jurisdiction over traffic violations, civil and criminal infractions, small claims, and probation oversight. At times relevant to this case, 41B District Court was comprised of two physically separate divisions, one serving the city of Mt. Clemens, and the other serving Clinton Township. Each municipality was responsible for maintaining, financing and operating its respective division of the court.
Appellants were employees of the Clinton Township division of the court until their terminations in July, 2004. Appellants Barachkov and Englar were employed as court clerks, while Appellant Diehl was a court cashier. During Appellants' employment, Linda Davis was Chief Judge of the 41B District Court and was assigned supervisory authority over personnel in both locations by law, and possessed the authority to hire, fire, discipline, or discharge employees. Chief Judge Davis and Judge John Foster sat in the Mt. Clemens location, while Judge William Cannon sat in Clinton Township.
Barachkov v. 41B Dist. Court, 311 Fed.Appx. 863, 865 (6th Cir.2009).
Starting well before Davis's chief judgeship, Cannon was permitted almost unfettered discretion in formulating policy for the Clinton Township court location. This included discretion to formulate a termination policy for court employees working in the Clinton location. 1 Clinton Township first memorialized its personnel policies in the 1990s in the form of the Disciplinary Action Procedure (“DAP”), which provided in part for just-cause employment. Cannon was neither required to adopt the DAP nor did he implement it in its entirety. He “used [his] own judgment and followed through on what [his] policy had always been since [he] was elected.” He testified that he applied the DAP to his employees to the extent it conformed to his preexisting policy, which was to provide notice, progressive discipline, and good cause for termination.

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Cannon testified that his employees were aware that he employed a just-cause standard, in part because he told them so. *291 He also testified that he circulated the DAP to his employees. The Employees testified that they received the DAP and understood themselves to be just-cause employees. Other employees executed affidavits attesting that they were at-will employees and there was additional testimony at trial that it was understood that Cannon maintained an at-will policy.
Davis became aware of the Clinton Township location's personnel policies in early 2004 when she participated in a comprehensive feasibility study into the merger of the Clinton Township and Mt. Clemens locations. A primary focus of the feasibility study was to determine 41B's human resources and personnel policies. Davis attended regular meetings about the potential merger with judges and representatives from the court locations, advisors from the townships, and Deborah Green from the State Court Administrator's Office (“SCAO”). At these meetings, the advisory board on which Davis sat requested personnel policies from Cannon and his representatives. Davis testified on both direct and cross examination that when personnel policies were requested of Cannon, his representatives, and the Clinton Township court location, the advisory board received nothing.
Q: And as it related to that HR analysis, that personnel analysis, did you ask representatives from Clinton Township and the Clinton Township location for any union contracts that they had?
A: We asked them for all contracts that they had.
Q: So that would include individual employment contracts?
A: Yeah.
Q: And did you ask them for employee handbooks, policies and procedures?
A: We asked them to give us all the policies and procedures and did the same thing with Mt. Clemens court so we could start meshing the two together.
Q: Was that request made to each of the judges in each of the courts?
A: The judges were in the meetings where we made the requests. So it wasn't directly made to them, but they certainly were privy to it.

Q: And was that information requested from the administrators of each court, the chief judge, Judge Cannon and the court administrators.
A: Yes.
Q: And was that same information requested from the funding units from each of the courts?
A: Yes.
Q: Did you receive from the Clinton Township location a collective bargaining agreement?
A: No.
Q: Did you receive an employment contract?
A: No.
Q: Did you receive a written policies or procedures manual?
A: No.
Q: Did you receive any written policy or procedure regarding personnel issues, personnel management, justcause employment status?
A: No....
Q: Did you personally have discussions with Judge Cannon about those documents?
A: Yes.
Q: Did you personally have discussions with the HR representative from the township regarding those documents?
A: I did.
Q: Out of those discussions were any additional documentation or materials *292 provided to you regarding the policies and procedures from that court?
A: None.
Q: Did you reach a conclusion as to whether the Clinton Township employees were at-will employees at that time?
A: Yes.

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She testified: “We asked him, when we were doing the merger of the courts, what his policies and practices were, and he said he did not have any, that he didn't really have to discipline people very often at the township. So to my knowledge there were none.”
Green, who was also present in the meetings, testified to the same.
Q: Did you look at personnel and staffing issues as it related to the consolidation?
A: Yes.
Q: Now, as it related to those personnel and staffing issues, would you have asked both courts for their personnel and staffing information as it relates to each court?
A: Yes.
Q: Did you ask that in Mt. Clemens?
A: Yes.
Q: Did you ask that in Clinton Township?
A: Yes.
Q: And would you have made that request from Judge Cannon?
A: Yes....
Q: And did you ask for personnel policies and procedures from Clinton Township?
A: Yes.
Q: Did you get it?
A: No.
Q: Did anybody give you an employee handbook of any kind?
A: No. I got one—I remember seeing one page or one or two pages about sick time and vacation time. I never saw anything more than that.
Q: Okay. Did you ever see a ... personnel policy or procedure from anyone at Clinton Township?
A: No.

Q: Anyone describe to you during these meetings any kind of formal practice or informal practice that had been taking place at the Clinton Township court regarding personnel issues.
A: There was no formal practice.
Q: Okay. Did you reach a conclusion as it relates to the Clinton Township employees as to whether they were atwill employees?
A: I believe they were at will.
Based on the information collected during the feasibility study, both women concluded that Cannon's employees served at will.
When the merger inquiry disclosed personnel problems, SCAO commenced a management oversight review of 41B. We explained:
In late May 2004, Deborah Green, a representative of the SCAO, informed Chief Judge Davis that the SCAO would soon be conducting a management oversight review into the operations and performance of the 41B District Court. On June 28, 2004, Chief Judge Davis held a staff meeting in which she advised the district court staff that, as part of the SCAO investigation, each employee of the court would be interviewed. At this meeting, Chief Judge Davis emphasized the serious nature of the investigation and that the need for honesty was paramount. She informed the employees that no one would be disciplined for previous wrongs, and that no one would lose their jobs if they were honest with the interviewer.
*293 Green independently interviewed each court employee; Chief Judge Davis did not participate in the investigation. Following completion of the interviews, Green concluded that Appellants Barachkov, Diehl, and Englar had lied and withheld information, and had coerced others to do the same. Appellants allege that their answers to Green's questions were honest and that Green asked questions about topics on which they had no personal knowledge.
On July 15, 2004, Chief Judge Davis fired the Appellants. Along with a representative of the SCAO, Chief Judge Davis met individually with each Appellant and informed her that she was being terminated due to her responses during the interview. Appellants were not provided with

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advance notice of the terminations or a hearing in which they could dispute the reasons for their dismissal. Appellants contend that their terminations were a result of Chief Judge Davis' desire to advance her political and personal agenda by forcing Judge Cannon to retire, and that they were fired for failing to provide false information about Judge Cannon's management of the Clinton Township division of the 41B District Court....
Appellant Barachkov commenced an action pursuant to § 1983 and various state laws in the United States District Court for the Eastern District of Michigan in October, 2004. Shortly after, Appellants Diehl and Englar followed suit and filed identical actions. On March 31, 2006, the district court consolidated the cases into a single action. Appellees thereafter filed motions for summary judgment alleging that Clinton Township and the 41B District Court were entitled to sovereign immunity and that Appellants could not, as a matter of law, establish any constitutional violations. The district court agreed and granted Appellees' motion.
Barachkov, 311 Fed.Appx. at 865–66.
We reversed the district court's grant of summary judgment on the Employees' Fourteenth Amendment due process claim, holding that

cause. The case proceeded to trial. Davis moved for judgment as a matter of law, which the district court denied. Davis then requested a jury instruction on qualified immunity, which the district court denied, stating that Davis would be free to raise the issue post-verdict. The jury found in favor of the Employees and returned a verdict awarding compensatory and punitive damages in the amount of $2,277,688. Davis filed a renewed motion for judgment as a matter of law, a motion for a new trial, and a motion to amend the judgment regarding damages, all of which the district court denied. Davis timely appealed. The Employees conditionally crossappealed in the event the jury verdict is disturbed.
*294 II.
Davis was sued in her individual and official capacities. Qualified immunity shields a defendant sued in his or her individual capacity from monetary liability; it does not shield a defendant from official-capacity claims for equitable relief, Hall v. Tollett, 128 F.3d 418, 430 (6th Cir.1997), nor does it shield a defendant from individual-capacity claims for equitable relief, Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir.2001). Because the Employees may be entitled to equitable relief notwithstanding the fact that Davis may be entitled to qualified immunity, we begin by considering whether the Employees' constitutional rights were violated.

there exists a direct conflict in the evidence regarding the exact contours of the termination policy—if any existed—employed by Judge Cannon, and whether such a policy was ever communicated to, and understood by, all of his employees. This is a genuine issue of material fact which requires further development of the record and cannot be properly resolved on summary judgment.
Id. at 872. We also reversed the district court's dismissal of the Employees' claim for prospective injunctive relief against Davis in her official capacity. Id. at 873.
On remand, the district court held that Davis was not entitled to qualified immunity because there was a fact question as to whether the Employees could be terminated only for just

A.
Davis seeks reversal of the district court's denial of her motions for judgment as a matter of law and in the alternative for a new trial on the ground that the Employees could not establish a violation of their constitutional rights. We review de novo a district court's denial of a motion for judgment as a matter of law, applying the same deferential standard as the district court. Radvansky v. City of Olmsted Falls, 496 F.3d 609, 614 (6th Cir.2007). “ ‘District courts should grant judgment as a matter of law only if a complete absence of proof exists on a material issue in the action, or if no disputed issue of fact exists on which reasonable minds could differ.’ ” Karam v. Sagemark Consulting, Inc., 383 F.3d 421, 427 (6th Cir.2004) (quoting LaPerriere v. Int'l Union UAW, 348 F.3d 127, 132 (6th Cir.2003)). We view the evidence in the light most favorable to the non-moving party. Radvansky, 496 F.3d at 614. “Neither the district court nor the reviewing court may reweigh the evidence or assess the credibility of witnesses.” Id.

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A district court's denial of a motion for a new trial is reviewed for abuse of discretion. Id. We will reverse only if we have “ ‘a definite and firm conviction that the trial court committed a clear error of judgment.’ ” Id. (quoting Barnes v. Owens– Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir.2000)).

(1998). Michigan courts apply a two-step inquiry to evaluate legitimate-expectations claims. Id. First, the court determines what the employer promised. Id. Second, the court determines “whether the promise is reasonably capable of instilling a legitimate expectation of just-cause employment.” Rood v. Gen. Dynamics Corp., 444 Mich. 107, 507 N.W.2d 591, 607 (1993).

1.
[1] The focus of Davis's appeal is the district court's conclusion that the Employees adduced sufficient evidence of a property interest protected by the Due Process Clause. 2 At the outset, to the extent that Davis argues that the Employees' evidence could not establish a property interest a matter of law, this issue was decided by our prior opinion in this case. Barachkov, 311 Fed.Appx. at 872. What remains for our consideration in this appeal is a question of evidentiary sufficiency: whether the Employees adduced sufficient evidence from which a reasonable juror could conclude that the Employees had an interest protected by the Due Process Clause.
“An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ ” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane *295 v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). There are two components to a procedural due process claim: whether a protected interest exists and whether, if that interest exists, constitutionally sufficient procedures were used to protect that interest. See Singfield v. Akron Metro. Hous. Auth., 389 F.3d 555, 565 (6th Cir.2004). This dispute centers on whether the Employees had a property interest in continued employment.

Certain promises do not suffice. “[O]nly policies and procedures reasonably related to employee termination are capable of instilling such expectations.” Id. The fact that an employer follows a disciplinary system is not alone enough to establish just-cause employment. Biggs v. Hilton Hotel Corp., 194 Mich.App. 239, 486 N.W.2d 61, 62–63 (1992). And “[a] lack of specificity of policy terms or provisions, or a policy to act in a particular manner as long as the employer so chooses, is grounds to defeat any claim that a recognizable promise in fact has been made.” Lytle, 579 N.W.2d at 911. Finally, the policy must be communicated “ ‘to the work force in general or to specific classifications of the work force, rather than an individual employee.’ ” Rood, 507 N.W.2d at 606 n. 3 (quoting Bankey v. Storer Broad. Co., 432 Mich. 438, 443 N.W.2d 112, 114 n. 3 (1989)). “[A] mere subjective expectation on the part of an employee is insufficient to create a jury question as to whether an employment contract may be terminated only for just cause.” Grow v. Gen. Prods., Inc., 184 Mich.App. 379, 457 N.W.2d 167, 169 (1990).
As relates to this appeal, the question before the jury was whether Cannon communicated his just-cause policy to the workforce in general. Rood, 507 N.W.2d at 607. Davis attempts to retry this issue, pointing to evidence from which we could conclude that Cannon did not disseminate his policy to the workforce at large. But the fact remains that there was ample evidence to the contrary.
Cannon testified:

The Employees claim that Cannon's policies created a contract implied at law for just-cause employment by instilling a legitimate expectation of continued employment. Just-cause employment is a cognizable property interest, Barachkov, 311 Fed.Appx. at 871 (citing Farhat v. Jopke, 370 F.3d 580, 595 (6th Cir.2004)), and Michigan recognizes a legitimate-expectation theory as one way to establish justcause employment, see Singfield, 389 F.3d at 565 (property interests are defined, inter alia, by state law). “Generally, and under Michigan law by presumption, employment relationships are terminable at the will of either party.” Lytle v. Malady, 458 Mich. 153, 579 N.W.2d 906, 910

Q: Now this practice that you had adopted, did anyone compel you to adopt that practice?
A: No.
Q: And you said you didn't document that practice in any way. Did you circulate the fact that that was your practice to anybody?
A: Oh the employees knew.
Q: The employees knew?

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A: Sure?
Q: How did they know?
A: I told them....
*296 Q: Now let's talk about your practice, You said the employees knew about your practice. How did they know about your practice?
A: I told them.
Q: When did you do that?
A: At meetings and if they asked me individually, I explained it to them. Which didn't happen very often. But certainly at meetings it was discussed. Not at great lengths or every meeting or anything like that, but they understood what the policy was and if they say they didn't —because Deborah Green would say that[—it] would be disingenuous.”

is entitled to qualified immunity is a question we review de novo. Id. at 693.
We have, at times, elaborated a three-part qualifiedimmunity standard. See Williams v. Mehra, 186 F.3d 685, 691 (6th Cir.1999) (en banc ). After determining whether a constitutional violation occurred and whether the constitutional right was clearly established, we consider whether “what the official allegedly did was objectively unreasonable in light of the clearly established constitutional rights.” Id. This third requirement is implicit in the two-part framework and flows from Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). See Sample v. Bailey, 409 F.3d 689, 696 n. 3 (6th Cir.2005). In a procedural due process case such as this, the relevant inquiry is whether a reasonable official would have known that terminating the Employees without a pre-termination hearing was unlawful. See Silberstein v. City of Dayton, 440 F.3d 306, 316–18 (6th Cir.2006); Miller v. Admin. Office of the Courts, 448 F.3d 887, 896–97 (6th Cir.2006).

Cannon also testified that he circulated the DAP to employees, consistent with the fact that the DAP mirrored his policies.
The Employees testified that it was understood that Cannon adopted a just-cause standard and that they had received the DAP. Monica Sylvester, a former court employee, also testified that Cannon informed court employees that they followed Clinton Township's personnel policies, including a just-cause standard.
Viewing this evidence in the light most favorable to the Employees, there is sufficient evidence from which a reasonable juror could conclude that the Employees had a legitimate expectation of just-cause employment. Accordingly, because it is undisputed that the Employees received no pre-termination process, they have established that their constitutional rights were violated. See Loudermill, 470 U.S. at 542–43, 105 S.Ct. 1487.
B.

The Employees dispute this characterization of the law. They assert that the qualified immunity analysis has two parts and that there is no inquiry into the reasonableness of the Davis's conduct in light of the facts confronting her. The Employees maintain that “no reasonable official could misunderstand the need to provide process to a just-cause employee” and that it is irrelevant whether Davis was objectively reasonable in concluding that the Employees served at will.
For this proposition, the Employees rely on Pucci v. Nineteenth District Court, 628 F.3d 752 (6th Cir.2010). There, Julie Pucci was terminated from her administrative position at a Michigan court and brought a procedural due process claim against Somers, *297 the court's chief judge. Id. at 755. On the issue of qualified immunity, we held: “Obviously, if Pucci is ultimately found to have a property interest in her employment, her right to at least some pre-termination process was clearly established. Since she received no process, Somers is not entitled to qualified immunity.” Id. at 767. There was no discussion of whether Somers was objectively unreasonable in concluding that Pucci was an atwill employee.

[2] A defendant sued in his or her individual capacity enjoys immunity from civil damages unless the defendant's conduct violated a clearly established constitutional right. Kovacic v. Cuyahoga Cnty. Dep't of Children & Family Servs., 724 F.3d 687, 695 (6th Cir.2013). Whether a defendant official

But that there was no analysis of this element of the qualifiedimmunity standard in Pucci, in the factual context of that case, does not mean that Pucci fundamentally altered our qualifiedimmunity analysis. Indeed, Pucci applied the framework set out in Silberstein, where we observed that “the inquiry

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over whether a constitutional right is ‘clearly established’ must be undertaken in light of the specific context of the case, not as a broad general proposition.” 440 F.3d at 316 (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151). There, the officials' qualified-immunity defense relied exclusively on the argument that a reasonable official in their positions would not have known that Silberstein was entitled to a pretermination hearing. Id. at 316.
The Board Members do not dispute that a City of Dayton employee in the classified service had a clearly established right to a pre-termination hearing at the time of Silberstein's termination; rather, they argue that Silberstein's status as a classified employee is disputable such that a reasonable person would not know that he or she was violating Silberstein's rights.
Id. Canvassing the facts as they would have appeared to a reasonable official, we held “the [officials'] argument that an objectively reasonable official could misunderstand Silberstein's employment [status was] unpersuasive,” as “Silberstein's position was clearly established.” Id. at 317.
Silberstein and in turn Pucci thus reflect wellestablished qualified-immunity law. The “ ‘objective legal reasonableness' standard analyzes claims of immunity on a fact-specific, case-by-case basis to determine whether a reasonable official in the defendant's position could have believed that his conduct was lawful, judged from the perspective of the reasonable official on the scene.” Cochran v. Gilliam, 656 F.3d 300, 306 (6th Cir.2011); Gardenhire v. Schubert, 205 F.3d 303, 311 (6th Cir.2000) (same); see also Rodgers, 529 Fed.Appx. at 651 (“The district court erred, however, by failing to consider whether a reasonable official in [defendant's] position would have understood that she was violating the plaintiffs' constitutional rights in light of the circumstances at the time.”). Again, the relevant inquiry in a procedural due process case is whether a reasonable official would have known that terminating the Employees without a pre-termination hearing was unlawful. See Silberstein, 440 F.3d at 316–18; Miller, 448 F.3d 887 at 896–97. Thus, we turn to whether Davis was objectively unreasonable, based

on the circumstances confronting her, in concluding that the Employees served at will.
We hold that she was not. As discussed above, beginning in early 2004, a few months before Davis terminated the Employees, she personally participated in a feasibility study into the merger of the 41B District Court locations designed in large part to determine the personnel policies at each location. Davis attended regular meetings about the potential merger. At those meetings, both Cannon and his representatives from the Clinton Township location were asked to provide any personnel policies pertaining to Cannon's employees. Davis received nothing from Cannon, his representatives, or the Clinton Township *298 location to suggest that the Employees were anything other than at-will employees. Indeed, Davis testified: “We asked [Cannon], when we were doing the merger of the courts, what his policies and practices were, and he said he did not have any, that he didn't really have to discipline people very often at the township. So to my knowledge there were none.”
Based on the undisputed facts confronting her, Davis made an objectively reasonable determination that the Employees served at will. The default status for court employees was at-will employment. For the Employees to be just-cause employees, Cannon would have had to affirmatively adopt that policy. On request for personnel policies, a matter of considerable import, a reasonable official could expect to receive a written policy and, at the very least, a reasonable official in Davis's position would have expected Cannon to inform her of his non-written policy when the issue was broached. Davis's personal participation in the feasibility study, a measure designed in part to determine the status of court employees, was an adequate “precautionary measure [.]” Miller, 448 F.3d at 897.
Nor was Davis objectively unreasonable, as the district court suggested, because she did not re-determine the Employees' status in the period between when the feasibility inquiry was conducted and their terminations. The feasibility study was conducted at some point at the beginning of 2004. Davis terminated the Employees in July 2004. It was not objectively unreasonable to conclude that the status of the Employees did not change between the beginning of 2004 and July of that year, absent some reason to believe it had changed.
The Employees make numerous contrary arguments, none of which is availing. Englar testified that she told Davis at her termination that she was a just-cause employee. But Davis

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was not objectively unreasonable in relying on information collected from the policymakers rather than the employee being terminated. The Employees also argue that Davis was aware of a Michigan Supreme Court administrative order requiring courts to mirror as closely as possible the personnel policies of their respective funding units. Because the Clinton Township location's funding unit was a just-cause employer, the Employees contend Davis should have known that the Employees could be fired only for just cause. The district court rejected this argument unequivocally and we agree: “[T]he proposed conclusion does not follow as a matter of fact, or law, because despite this administrative order, it was undisputed at trial that ‘at the end of the day’ Judge Cannon was permitted to develop his own personnel policies.”
The Employees argue that Green established that it was prevailing common knowledge among Cannon's staff that Cannon had a just-cause policy. Whether this was common knowledge among Cannon's staff is beside the point; what matters is whether the policy was known to the extent that a reasonable person in Davis's position would have been aware of its existence. See, e.g., Silberstein, 440 F.3d at 306 (“This court has held that a plaintiff satisfied the second prong of qualified immunity analysis by presenting evidence that for twenty-five years it had been generally understood that employees in his position were entitled to a hearing before their positions were terminated, and the defendant presented no evidence that he did not share such an understanding.” (citing Singfield, 389 F.3d at 567–68)). Davis presented evidence that she did not share such an understanding and that she reasonably undertook to determine the Employees' employment status. Davis was *299 not objectively unreasonable in crediting the information collected from the investigation, including from Cannon himself, over a contested assertion that Cannon's employment policies were common knowledge to his employees.
The district court erred in denying Davis qualified immunity.
III.
[3] The Employees cross-appeal the district court's dismissal of 41B as a defendant, contending that 41B's litigation conduct waived its Eleventh Amendment sovereign immunity. 3 “Whether sovereign immunity exists is a question of constitutional law,” which we review de novo. S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507 (6th Cir.2008).

Sovereign immunity is a quasi-jurisdictional doctrine, under which “[a] State remains free to waive its Eleventh Amendment immunity from suit in a federal court.” Lapides v. Bd. of Regents of the Univ. Sys. of Ga., 535 U.S. 613, 618, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). A state may waive its immunity through its litigation conduct; but the touchstone of waiver doctrine is intent—the state's litigation conduct must clearly indicate the state's intent to waive its immunity. Id. at 620, 122 S.Ct. 1640. A clear intent to waive immunity may be inferred when a state's litigation conduct is inconsistent and unfair. Id. Waiver doctrine thus prevents the state from gaining an unfair litigation advantage by prohibiting a state from testing the waters with respect to the merits of its claim only to assert sovereign immunity once it believes its claim will fail. That is, a state waives its sovereign immunity where its dilatory assertion of immunity is a “tactical decision.” In re Bliemeister, 296 F.3d 858, 862 (9th Cir.2002); Hill v. Blind Indus. & Servs. of Md., 179 F.3d 754, 763 (9th Cir.1999) (“The Eleventh Amendment was never intended to allow a state to appear in federal court and actively litigate the case on the merits, and only later belatedly assert its immunity from suit in order to avoid an adverse result.”); see also Lapides, 535 U.S. at 620, 122 S.Ct. 1640 (characterizing a purpose of the doctrine constructive-waiver doctrine as prohibiting states from selectively using immunity “to achieve litigation advantages”).
Waiver is a case-specific inquiry, focused on the course of a state's litigation conduct. For example, this court has held that where a state loses its case on the merits after extensive discovery, a state may not then claim sovereign immunity. Ku v. Tennessee, 322 F.3d 431, 435 (6th Cir.2003). Likewise, the Ninth Circuit has held that a state waived its sovereign immunity when it filed a limited response, an answer, and a motion for summary judgment; attended an oral hearing and argued the merits; and heard the court announce its preliminary leanings, all without raising its sovereign immunity. See Bliemeister, 296 F.3d at 862 (“To allow a state to assert sovereign immunity after listening to a court's substantive comments on the merits of a case would give the state an unfair advantage when litigating suits.”); see also Hill, 179 F.3d at 756–58, 760–63 (holding state waived sovereign immunity when it did not raise it until the opening day of trial, after it had filed two motions to dismiss and an answer that did not assert it, consented to have a magistrate try the case, conducted discovery, moved to compel discovery and for sanctions, participated in a pre-trial conference, and filed trial material).

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*300 The Employees argue that 41B waived its sovereign immunity by asserting the defense primarily in its summaryjudgment reply brief. We have never held that the failure to raise sovereign immunity in an opening summary-judgment brief per se constitutes a waiver. Rather, properly focusing on the whole of 41B's litigation conduct demonstrates that it did not clearly intend to waive its sovereign immunity and consent to federal jurisdiction.
41B first raised the issue of sovereign immunity in its answer to the complaint and again in its amended affirmative defenses. While 41B did not file a Rule 12(b)(1) motion to dismiss on sovereign immunity grounds, neither did it file a motion to dismiss on the merits. Less than two months later, 41B filed its summary-judgment brief where it failed to raise its sovereign immunity. Three weeks after Barachkov filed her response, 41B reasserted its sovereign immunity in its reply. Thus, while 41B did not file a motion to dismiss and did not raise its immunity in its initial summary-judgment brief, neither does 41B's somewhat belated assertion of sovereign immunity appear to be a strategic decision. 41B raised sovereign immunity in its summary judgment briefing and, importantly, raised it before the district court had ruled on

the merits of the case. 41B's litigation conduct was neither unfair nor inconsistent, and it cannot be said that its dilatory assertion of sovereign immunity was but a tactical decision. Cf. Ku, 322 F.3d at 435. 41B has not clearly indicated its consent to federal jurisdiction and thus has not waived its sovereign immunity.
IV.
Although the district court correctly found that there was sufficient basis for the jury to conclude that the Employees were in fact just-cause employees, the award of damages cannot stand because the district court erred in determining that Davis was not entitled to qualified immunity. Accordingly, we vacate the award of damages. We remand to the district court to determine the Employees' entitlement to equitable relief. And we affirm the district court's judgment holding that 41B was entitled to sovereign immunity.
All Citations
580 Fed.Appx. 288

Footnotes

1

Employees of the court were not Clinton Township employees.

2

Davis also asserts that she is entitled to judgment as a matter of law because the Employees failed to plead the

inadequacy of state remedies. In 2004, we clarified that a plaintiff only needs to plead the inadequacy of state remedies

when the deprivation is the result of random or unauthorized state action. Mitchell v. Fankhauser, 375 F.3d 477, 483–

84 (6th Cir.2004); see also Rodgers v. 36th Dist. Court, 529 Fed.Appx. 642, 649–50 (6th Cir.2013). Davis's acts were

neither random nor unauthorized. The Employees were therefore not required to plead or prove the inadequacy of post-

termination, state-law remedies. See Mitchell, 375 F.3d at 484.

3

The Employees abandon any argument that Clinton Township was improperly dismissed.

End of Document

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10

 
 Case 1:20-cv-00414-PLM-PJG ECF No. 35 filed 06/05/20 PageID.1774 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-0414 HON. PAUL L. MALONEY MAG. PHILLIP G. GREEN

GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 (616) 831-1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 (989) 631-0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorney for Defendants Whitmer and Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel P.O. Box 30212

Case 1:20-cv-00414-PLM-PJG ECF No. 35 filed 06/05/20 PageID.1775 Page 2 of 3
Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov
Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7650 berelsr1@michigan.gov
DEFENDANTS WHITMER AND GORDON’S MOTION TO DISMISS
Defendants Gretchen Whitmer and Robert Gordon, through counsel, move
this Court to dismiss Plaintiffs’ complaint under Fed. R. Civ. P. 12(b)(1) and (6), and
based upon the following:
1. Governor Whitmer and Director Gordon are entitled to Eleventh Amendment immunity for any official capacity and damages claims.
2. Plaintiffs’ claims are moot because Governor Whitmer has issued executive orders that permit the very activities Plaintiffs alleged were prohibited.
3. Plaintiffs lack standing to bring this lawsuit for lack of a particularized concrete injury to remedy.
4. Plaintiffs’ claims are not ripe in the absence of actual enforcement or credible threat of enforcement.
5. The Court should abstain and otherwise decline supplemental jurisdiction over Counts I and II, which raise novel issues of Michigan law better left for decision in State courts.
6. 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.
2

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7. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail.
8. Plaintiffs otherwise fail to state a claim for relief for any of the alleged federal constitutional violations.
In further support of this motion, Governor Whitmer and Director Gordon rely on
the facts, law and argument more fully developed in the attached brief in support.
The undersigned certifies that on May 27, 2020, concurrence in the relief
requested was sought from Plaintiffs’ Counsel, and concurrence was denied.
Respectfully submitted,
Dana Nessel Attorney General
/s/ John G. Fedynsky John G. Fedynsky (P65232) Assistant Attorney General Attorney for Defendants Whitmer and Gordon Michigan Dep’t of Attorney General State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 fedynskyj@michigan.gov
Dated: June 2, 2020
CERTIFICATE OF SERVICE
I certify that on June 2, 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.
/s/ John G. Fedynsky John G. Fedynsky (P65232) Assistant Attorney General
3

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1777 Page 1 of 59

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-0414 HON. PAUL L. MALONEY MAG. PHILLIP G. GREEN

GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 (616) 831-1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 (989) 631-0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorney for Defendants Whitmer and Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel P.O. Box 30212

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1778 Page 2 of 59
Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov
Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7650 berelsr1@michigan.gov
BRIEF IN SUPPORT OF DEFENDANTS WHITMER AND GORDON’S MOTION TO DISMISS

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1779 Page 3 of 59
TABLE OF CONTENTS Page
Table of Contents ............................................................................................................ i Concise Statement of Issues Presented .......................................................................iii Controlling or Most Appropriate Authority................................................................. iv Introduction ................................................................................................................... 1 Statement of Facts......................................................................................................... 5 Standard of Review...................................................................................................... 11 Argument ..................................................................................................................... 12 I. The Court lacks subject matter jurisdiction over the Plaintiffs’ claims. ........ 12
A. Plaintiffs’ claims for money damages are barred by the Eleventh Amendment. ........................................................................................... 12
B. Plaintiffs’ claims are moot because Governor Whitmer has issued a series of executive orders that permit the very activities Plaintiffs alleged were prohibited.......................................................... 13
C. Plaintiffs’ claims fail for lack of standing.............................................. 18 D. Plaintiffs’ claims are not ripe................................................................. 19 II. The Court should abstain and otherwise decline supplemental jurisdiction over the novel claims brought under Michigan law and best decided in the first instance in Michigan courts.............................................. 21 A. Abstention............................................................................................... 21
1. Pullman abstention ..................................................................... 22 2. Thibodaux abstention.................................................................. 23 3. Colorado River abstention........................................................... 25 B. Supplemental Jurisdiction ..................................................................... 27 1. This Court should decline supplemental jurisdiction over
Counts I and II under 28 U.S.C. § 1367(c)(1). ............................ 29
i

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2. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(2). ............................ 30
3. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(4). ............................ 31
III. Plaintiffs’ claims lack merit. ............................................................................. 32 A. The Governor acted pursuant to valid statutory authority under Michigan law. ......................................................................................... 33 B. The States have wide latitude in dealing with great dangers to public health. .......................................................................................... 33 1. Jacobson v. Commonwealth of Massachusetts ........................... 34 2. Application of Jacobson to the current health crisis and the restrictions challenged by Plaintiffs. .................................... 39 C. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges fail. ................................................................ 44 1. Plaintiffs fail to state a viable void for vagueness challenge. ..................................................................................... 44 2. Plaintiffs fail to state a viable procedural due process claim. ............................................................................................ 46 3. Plaintiffs fail to state a viable substantive due process claim. ............................................................................................ 47 4. Plaintiffs fail to state a viable dormant commerce clause claim. ............................................................................................ 49
Conclusion and Relief Requested ................................................................................ 51
ii

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1781 Page 5 of 59 CONCISE STATEMENT OF ISSUES PRESENTED
1. Are Plaintiffs’ claims justiciable given that the restrictions they challenge no longer exist?
2. Should this federal court abstain or otherwise decline supplemental jurisdiction over Plaintiffs’ novel state law claims?
3. Do Plaintiffs fail to state a claim concerning their federal constitutional challenges?
iii

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1782 Page 6 of 59 CONTROLLING OR MOST APPROPRIATE AUTHORITY
Authority: Chafin v. Chafin, 568 U.S. 165 (2013). Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976). Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25 (1959). Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941). Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014). U.S. Const., Am. XI. 28 U.S.C. § 1367(c).
iv

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INTRODUCTION Plaintiffs’ own briefing and the Court’s order disposing of their motion for preliminary injunction prove that this case presents no exigency. This motion proves the case largely is brought at the wrong time in an incorrect forum and it otherwise lacks merit on its face. The necessary and appropriate legal outcome is dismissal of all of Plaintiffs’ claims. The requirement that a case or controversy exist is one of the threshold conditions of every legal dispute for a court to have jurisdiction to resolve a legal matter. On May 21, 2020, the Governor issued Executive Order 2020-96, which among other things rescinded Executive Order 2020-17 effective May 29, 2020, removing any requirement that health care facilities continue to implement a plan to postpone nonessential medical procedures. As of May 29, nothing inhibits Plaintiffs from performing or undergoing a medical procedure.1 As a result, the case is moot. This Court should dismiss the case for that reason alone. Mootness is far from the only impediment to Plaintiffs’ requested relief. Plaintiffs’ claims also fail for lack of standing, for lack of ripeness, and by virtue of the immunity afforded by the Eleventh Amendment. Furthermore, the heart of Plaintiffs’ challenge rests upon a legal theory rooted in interpretation of Michigan statutes and constitutional provisions. Under the circumstances, a federal district
1 The one-week delay in the effective date of the rescission was designed to ensure adequate time for facilities to implement the workplace safeguards required under E.O. 2020-96’s companion order on that topic, E.O. 2020-97.
1

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court should abstain from deciding such issues and otherwise decline supplemental jurisdiction over such state law claims, particularly given that these claims and issues are currently and actively being litigated in the state-court system.
The remaining federal 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 analysis applies just as well in this case, recognizing judicial deference to the reasonable and temporary measures challenged here. 2 It is well recognized 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.” 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. And when acting on questions fraught with medical and scientific uncertainties, the broad authority given to and duly exercised by state officials should not be “subject to second-guessing by an ‘unelected federal
2 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); see also Michigan United for Liberty v. Governor Whitmer, Michigan Court of Claims Case No. 20-61-MZ, May 19, 2020 Opinion and Order Denying Plaintiff’s Motion for a Preliminary Injunction (Attached as Exhibit M), leave granted by the Michigan Court of Appeals on May 29, 2020 (COA No. 353643).
2

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judiciary,’ which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, 509 U.S. ___, ___ (2020) slip op., p. 2 (summary order released May 29, 2020) (Roberts, C.J., concurring) (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985)).
This well-settled rule of law from Jacobson 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 three hundred and fifty thousand—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 June 1, 2020, there have been 57,532 persons confirmed infected and 5,516 have died, all in less than three 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 and Director Robert Gordon have taken bold, yet reasonable and necessary, steps to prioritize social distancing in Michigan.
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
3

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1786 Page 10 of 59
and protect the public health. The requirements that Plaintiffs challenge here, regarding the temporary postponement of non-essential medical procedures, are part of this broader network of response efforts to suppress the spread of COVID-19, protect the State’s health care resources from rapid depletion, and avoid scores of needless deaths.
These temporary response measures are designed to 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—including the very ones challenged here.
Providing Plaintiffs with their requested relief would unduly disregard the deference that is owed the executive branch’s management of this public health crisis and would undermine its effectiveness in a time of most dire need. The judicial creation of exceptions to these public health measures 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 and welfare of all Michiganders. Even if they were justiciable, the claims Plaintiffs raise lack merit and they should be dismissed.
4

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STATEMENT OF FACTS Plaintiffs offer an inadequate 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 promulgation of the executive orders in question. SARS-CoV-2 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, 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, the disease that results from the virus, is highly contagious, spreading easily from person to person via “respiratory droplets.”3 Experts agree that being anywhere within six feet of an infected person puts you at a high risk of contracting the disease.4 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,
3 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). 4 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).
5

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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.5 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.”6 And as experience from prior pandemics such as smallpox 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.7 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.8
5 (Id.) 6 (Id.) 7 (Id.) 8 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.
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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.9 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.10 Yet, even in the face of the social distancing recommendations and the six-foot rule, 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.11 And on March 17, 2020, the Governor issued an order rescinding Executive Order 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.12
9 E.O. No. 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521576--,00.html. (Attached as Exhibit E). 10 E.O. No. 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521595--,00.html. (Attached as Exhibit F). 11 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). 12 E.O. No. 2020-11, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-521890--,00.html. (Attached as Exhibit H).
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In response to impending healthcare shortages, the Governor orders certain medical care facilities to implement plans postponing nonessential medical procedures.
On March 20, 2020, the Governor issued Executive Order 2020-17, entitled “Temporary restrictions on non-essential medical and dental procedures.” E.O. 2020-17 required “all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all state-operated outpatient facilities . . . must implement a plan to temporarily postpone . . . all non-essential procedures.” (E.O. 2020-17, ¶ 1, Exhibit I.) As the order signaled in its preamble, this postponement-plan requirement was imposed “[t]o mitigate the spread of COVID-19, protect the public health, provide essential protections to Michiganders, and ensure the availability of health care resources,” such as personal protective equipment, hospital beds, and other health care resources – which were in high and immediate demand as a result of this aggressively spreading pandemic, but in troublingly short supply.
The scope of the postponement plan required by the order was flexible and deferential to the judgment of the medical providers responsible for the care and treatment of the patient. Indeed, the order defined “non-essential procedure” as “a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (E.O. 2020-17, ¶ 1.) (emphasis added). The order was thus was designed to ensure that patients would continue to receive the treatment and care that, in the best clinical judgment of their medical providers, was necessary to preserve their health and safety during this pandemic.
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Correspondingly, the order offered a few basic guideposts for its requisite postponement plan, which tracked this general principle. For instance, the order provided that “[a] plan . . . must exclude from postponement emergency or traumarelated procedures where postponement would significantly impact the health, safety, and welfare of the patient.” (Id. ¶ 2.) Similarly, a plan “must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, and welfare of the patient.” (Id.) And a plan should exclude from postponement:
surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. [E.O. 2020-17, ¶ 2.] On May 21, 2020, the Governor issued Executive Order 2020-96, which rescinded Executive Order 2020-17 effective May 28, 2020 at 11:59 p.m. (E.O. 202096, ¶ 19, Exhibit J.) As that order’s preamble explained, the rescission was “reasonable” at that time because the urgent concerns that had required the order’s issuance had shown sufficiently reliable signs of abatement: “our health-care capacity has improved with respect to personal protective equipment, available beds, personnel, ventilators, and necessary supplies.” (E.O. 2020-96.) The Governor issues and continually revises Stay Home orders to stem the tide of COVID-19 infections. These concerns abated, and E.O. 2020-17 was able to be rescinded, as a result of a series of swift and targeted responsive measures the Governor took to mitigate
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the spread of COVID-19 across this State. Namely, three days after the issuance of E.O. 2020-17, on March 23, 2020, 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.13 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.14
Over the weeks that followed, the Governor reissued that Stay Home order periodically, adjusting its scope to as needed and appropriate to match the everchanging circumstances presented by this pandemic.15 As is particularly relevant here, on May 21, 2020, the Governor issued Executive Order 2020-96, a version of the Stay Home order that, among other things, allowed health care facilities to
13 E.O. No. 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-38790499_90705-522626--,00.html. (Attached as Exhibit K). 14 (Id.) 15 See E.O. Nos. 2020-42, 2020-59, 2020-70, 2020-77, and 2020-92. Alongside these Stay Home executive orders, Director Gordon, acting pursuant to his authority under MCL 333.2253, issued emergency orders concluding that COVID-19 had reached epidemic status in Michigan and that the measures imposed in the Stay Home orders and certain related executive orders were necessary to control the epidemic and protect the public health. The first of these emergency orders was issued on April 2, 2018, with subsequent versions rescinding and replacing the prior versions of the order issued May 18, 2020 and May 21, 2020. As presented, Plaintiffs challenges appear directed primarily at the Governor’s executive orders and only nominally against Director Gordon’s April 2 Order.
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resume providing, and individuals to resume undergoing, non-essential medical procedures that had been temporarily postponed pursuant to E.O. 2020-17.16
STANDARD OF REVIEW In a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(1) and (6), this Court must accept as true the allegations of the complaint and then determine whether the statements are sufficient to make out a right of relief. United States v. Gaubert, 499 U.S. 315, 327 (1991). However, although it must accept well-pled facts as true, the Court is not required to accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). In evaluating the sufficiency of a plaintiff’s pleadings, this Court may make reasonable inferences in the non-moving party’s favor, “but [this Court is] not required to draw [p]laintiffs’ inference.” Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, conclusory allegations are “not entitled to be assumed true.” Iqbal, 556 U.S. at 681. A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. See Iqbal, 556 U.S. at 679 (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”).
16 Yesterday, June 1, 2020, the Governor issued another executive order, E.O. 2020110, which continued the incremental and data-driven reopening of the State by rescinding E.O. 2020-96 and replacing its Stay Home restrictions with narrower and more permissive limitations on certain gatherings, events, and businesses. Plaintiffs remain free under this order to engage in the conduct they allege was unduly restricted under E.O.s 2020-17 and 2020-92.
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Though this is a motion for judgment on the pleadings, the court may consider an attached document without converting the motion into one for summary judgment if the attached document is: (1) central to the plaintiff’s claim; and (2) undisputed as to authenticity. See Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir. 1999); Beddall v. State Street Bank and Trust Co., 137 F.3d 12, 16–17 (1st Cir. 1998); see also Commercial Money Ctr, Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007).
ARGUMENT As an initial matter, there are threshold jurisdictional and prudential legal reasons to dismiss this case. In particular, the Plaintiffs’ claims are moot, and this Court should abstain or otherwise decline supplemental jurisdiction over their state-law claims. I. The Court lacks subject matter jurisdiction over the Plaintiffs’ claims. A. Plaintiffs’ claims for money damages are barred by the
Eleventh Amendment. Plaintiffs have sued Governor Whitmer and Director Gordon in their official capacities, and among the relief they seek is “[d]amages for the violation of the Plaintiffs’ constitutional rights, in an amount to be proven at trial.” (Complaint, p. 36.) It is well established, however, that this relief is foreclosed by the immunity provided under the Eleventh Amendment: while “a federal court may enjoin a ‘state official’ from violating federal law, . . . retroactive relief, such as money damages, is
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not permitted . . . .” Lawson v. Shelby Cnty., Tenn., 211 F.3d 331, 334 (6th Cir. 2000). Accordingly, Plaintiffs’ claims for money damages must be dismissed.
B. Plaintiffs’ claims are moot because Governor Whitmer has issued a series of executive orders that permit the very activities Plaintiffs alleged were prohibited.
This Court also lacks subject matter jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief. Since the filing of the complaint, the Governor has issued an executive order rescinding the challenged restrictions on non-essential medical procedures, effective May 29, 2020. Similarly, Plaintiffs’ claims regarding Director Gordon’s April 2, 2020 epidemic order are also moot. That order was expressly rescinded by Director Gordon through an order issued on May 18, 2020.17 And, following the Governor’s issuance of Executive Order 2020-96 on May 21, a new epidemic order rescinding the one from days earlier was issued.
In their Complaint, Plaintiffs alleged the April 2 epidemic order was unlawful because it incorporated future Executive Orders and frequently asked questions that were being published to facilitate implementation. Neither of the successor orders issued by Director Gordon include text like that challenged by Plaintiffs. Thus, the legal analysis showing the mootness of Plaintiffs’ challenge to the Executive Orders applies with equal force to its claims against Director Gordon.
17 https://www.michigan.gov/documents/coronavirus/MDHHS_epidemic_order__reinforcing_governors_orders_5-18_SIGNED_691125_7.pdf
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Considering this change in circumstances, the Plaintiffs have no legally cognizable interest in the outcome of this litigation and their claims are moot. This Court should dismiss on this basis alone.
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).
In fact, “[n]o 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) (internal quotes omitted). “If a 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)).
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
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legislative amendment of the challenged statute while the case was pending rendered the issue moot). A circumstance similar to legislative repeal has occurred here, where the Governor rescinded Executive Order 2020-17. See Executive Order 2020-96. Accordingly, there is nothing left to preliminarily enjoin. Plaintiffs’ claims are mooted.
In an attempt to avoid mootness, Plaintiffs may argue that the Governor’s action amounts to a “voluntary cessation.” 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, a course change “has been treated with more solicitude by the courts than similar action by private parties.” Id. (cleaned up). Official government action “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)).
The Governor’s new executive order is not mere “voluntary cessation.” In fact, the challenged executive order no longer has any legal force. It is extinct. See E.O. 2020-96. The lifting of the temporary restrictions, like the various other
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modifications made in these executive orders, is “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 or is dead-set on enjoining specific activities, and the new orders are simply a shadow to avoid litigation. As a general matter, the now-rescinded executive order imposed temporary regulations, see 2020-17’s Title (“Temporary restrictions on non-essential medical and dental procedures”), responding to the needs of the evolving public health crisis and the scarcity of medical resources. 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 (and continue to change), with additional executive orders, the Governor has modified 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.
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 ever-changing 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 speculative, and the notion that identical conditions will exist in this dynamic situation is an impossibility.
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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 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, to match the changed needs and conditions presented by this pandemic. Those needs and conditions will surely continue to change, but whether, as a result, Plaintiffs might at some point find themselves again subject to and aggrieved by the same restrictions challenged in this case is a matter of pure speculation, not “reasonable expectation.” And, as mentioned, the above legal analysis showing the mootness of Plaintiffs’ challenge to the Executive Orders applies with equal force to its claims
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regarding the order issued by Director Gordon. Accordingly, Plaintiffs’ claims are moot and should be dismissed.
C. Plaintiffs’ claims fail for lack of standing. Even if Plaintiffs’ claims were somehow not moot, they would nonetheless be nonjusticiable for lack of standing. To have Article III standing, a plaintiff must have a personal stake in the outcome of a controversy, 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. And as the Supreme Court has made clear, when—as here—the merits of a constitutional question pit the judiciary to pass on the constitutionality of the other branches of government, the standing inquiry is “especially rigorous.” Clapper, 568 U.S. at 408. Plaintiffs bring their claims in a pre-enforcement posture. As such, to satisfy the “injury-in-fact” requirement of Article III standing, they 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 satisfied neither of these requirements. They face no credible threat of prosecution for violating the restrictions in E.O. 2020-17 and E.O. 2020-92 because the restrictions they challenge no longer exist. And furthermore, even when the orders were in effect, Plaintiffs commendably acknowledge that they did not violate the orders and they have given no reason to believe that they had
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any intent to do so. Plaintiffs’ standing cannot survive cursory scrutiny, let alone the “especially rigorous” sort that applies to their claims. Clapper, 568 U.S. at 408. As a result, dismissal for lack of Article III standing is warranted.
D. Plaintiffs’ claims are not ripe. Plaintiffs’ claims are also unripe. “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 preenforcement 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 these standards, Plaintiffs’ pre-enforcement challenges are plainly not ripe. With the challenged restrictions in E.O.s 2020-17 and 2020-92 fully rescinded, “the enforcement authority’s legal position” has already changed prior to Plaintiffs experiencing any enforcement action under those orders, and Plaintiffs face no limitation in, or threat of enforcement for, engaging in their desired conduct. The
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restrictions which Plaintiffs now challenge were never held out to be anything other than temporary, and so they have proven to be. While Plaintiffs claim the restrictions may return, that assertion, as discussed, is entirely speculative and based only on the general possibility that a resurgence of COVID-19 at some point in the future might require the imposition of emergency response measures that are currently not necessary. But there is nothing to indicate that any such resurgence is at all certain or imminent; indeed, the Governor and Director are doing, and will continue to do, everything in their power to avert it. Nor is there anything to indicate that, should a resurgence occur at some undetermined point in the future, it will be necessary to reimpose the same particular restrictions that were required to combat the virus’s initial surge. The necessary response will instead depend on a number of factors, including the nature and extent of the resurgence and the state’s preparation for it—all of which may differ substantially from the circumstances the State has confronted over these past few months.
None of these factors, or how they might impact the Plaintiffs at some point in the future, is (or even can be) known at this time: there is no “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 have challenged. 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
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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 284. Plaintiffs’ claims are thus not ripe, and they warrant dismissal on that basis as well. II. The Court should abstain and otherwise decline supplemental
jurisdiction over the novel claims brought under Michigan law and best decided in the first instance in Michigan courts.18 A. Abstention The precise questions raised in Counts I and II are currently being litigated in the Michigan Courts. Identical questions about the scope of the EMA and EPGA are being litigated in Michigan House and Senate v. Gov. Whitmer, which was recently decided by the Court of Claims, Michigan Court of Claims Case No. 20-79MZ, and is on application to the Michigan Supreme Court with both parties seeking a decision before intermediate appellate court review on an expedited basis.19 Likewise, the question of whether the EMA and EPGA are impermissible delegations of legislative authority to the Governor is being litigated in Michigan United for Liberty v Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ and Martinko, et. al. v. Gov. Whitmer, et. al., Michigan Court of Claims Case No. 2062-MM. Appellate review is pending for each of these cases, too. Given the gravity
18 On May 28, 2020, this Court entered a notice of hearing on June 10 and invited briefing by June 5 on whether it should certify certain issues of Michigan law to be decided in the first instance by the Michigan Supreme Court. (R. 23.) 19 See Exhibit L.
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of the state law questions, and because the issues are currently being litigated in State court, this Court should abstain from consideration of the claims under three distinct theories of abstention.
1. Pullman abstention First, this Court should abstain from considering Counts I and II under the Pullman abstention doctrine. In Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499–500 (1941), the Supreme Court held that, when a challenged state statute requires interpretation by the judiciary, the “last word” on the meaning of the statute belongs to the state courts. The Court held: In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court. The resources of equity are equal to an adjustment that will avoid the waste of a tentative decision as well as the friction of a premature constitutional adjudication. [Id. at 500] [internal citations removed]. In sum, “the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them.” Harrison v. Nat’l Ass’n for the Advancement of Colored People, 360 U.S. 167, 176 (1959). This “well-established procedure” promotes and protects federalism and it “spares the federal courts of unnecessary constitutional adjudication.” Id. at 176–77 (noting that Pullman abstention “is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system”)
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This Court should refrain from ruling on the cogency of the EMA and the EPGA because, for purposes of this argument, the statutes are “fairly open to interpretation” and “the state courts have [not] been afforded a reasonable opportunity to pass upon them.” Harrison, 360 U.S. at 176. Further, given the pending state court actions and the expected rapidity of their climb up the appellate ladder, a ruling by this Court on the EMA and EPGA would be “a tentative answer which may be displaced tomorrow by a state adjudication.” Pullman, 312 U.S. at 499–500.20 Such an abstention would not “involve the abdication of federal jurisdiction, but only the postponement of its exercise” while “serv[ing] the policy of comity inherent in the doctrine of abstention” and “spar[ing] the federal courts of unnecessary constitutional adjudication.” Harrison, 360 U.S. at 176–177. Because abstention is proper, Counts I and II should be dismissed.
2. Thibodaux abstention Second, this Court should abstain from considering Counts I and II under the Thibodaux abstention doctrine. While similar to Pullman abstention, Thibodaux abstention is more concerned with the type of state law at issue. See Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 27–28 (1959). The Supreme Court has advised federal district courts to invoke Thibodaux abstention “where there have been presented difficult questions of state law bearing on policy
20 See also Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 511 (1972) (affirming the Eastern District of Michigan’s abstention in a case where a Michigan statute “has not been construed in any Michigan court, and, as appellants themselves suggest in attacking it for vagueness, its terms are far from clear in particulars”).
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problems of substantial public import whose importance transcends the result in the case then at bar.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976).
In Thibodaux, the Supreme Court reviewed a Louisiana district court’s decision to abstain from ruling on the constitutionality of a Louisiana state law regarding eminent domain when the State’s Attorney General and cities in the State disagreed about the limits of eminent domain power. 360 U.S. at 30. The eminent domain power in question derived from a State statute that had never before been considered by the State courts. Id. The district court stayed the case and sought a declaratory ruling from the Louisiana Supreme Court. Id. The U.S. Supreme Court affirmed the decision of the district court to abstain, reasoning that “[i]nformed local courts may find meaning not discernible to the outsider” and that rendering a decision on the scope of the State statute may bind the litigants in the lawsuit “whereas the rights of all other litigants would be thereafter governed by a decision of the Supreme Court of Louisiana [which could be] quite different from ours.” Id.
In this case, this Court should defer to the Michigan state courts on Counts I and II. Importantly, the EMA and EPGA are solely related to police powers, powers inherent to the sovereignty of the State. Thibodaux, 360 U.S. at 30. The statutes invoked by the Governor are thus enactments going to the core of Michigan’s sovereignty. This once-in-a-generation pandemic is having a disproportionately
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deadly impact on the State of Michigan. And the Governor has responded by exercising powers that have been rarely needed or reviewed.
The scope and constitutionality of those powers is a question best left to the Michigan courts. Indeed, the COVID-19 pandemic and the emergency powers utilized by the Governor “present[] difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case . . . at bar.” Colorado River, 424 U.S. at 814 (emphasis added). This Court should abstain from exercising jurisdiction over Counts I and II under Thibodaux, and dismiss these claims.
3. Colorado River abstention Finally, this Court should abstain from considering Counts I and II under the Colorado River abstention doctrine. Colorado River abstention should be invoked when there is concurrent litigation on the same grounds, no matter the type of claim at issue. Colorado River, 400 U.S. at 821. The Sixth Circuit has developed abstention factors to be considered where there is similar, concurrent litigation elsewhere: (1) whether the state court has assumed jurisdiction over any res or property; (2) whether the federal forum is less convenient to the parties; (3) avoidance of piecemeal litigation; and (4) the order in which jurisdiction was obtained . . . (5) whether the source of governing law is state or federal; (6) the adequacy of the state court action to protect the federal plaintiff’s rights; (7) the relative progress of the state and federal proceedings; and (8) the presence or absence of concurrent jurisdiction. Romine v. Compuserve Corp., 160 F.3d 337, 340-341 (6th Cir. 1998) (internal citations omitted)].
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These factors are to be carefully balanced in light of the facts of each case; they are not a “mechanical checklist.” Id. at 341 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15–16 (1983)).
In applying these factors, this Court should invoke Colorado River and abstain from deciding Counts I and II. There has been no action in this case other than the complaint and the filing of initial motion practice. This case involves important matters of State police power and authority that affect everybody in Michigan. Moreover, the Governor is a party to all the concurrent litigation related to the Governor’s Executive Orders. Colorado River, 400 U.S. at 820.
In addition, the Michigan courts have assumed jurisdiction over the concurrent litigation, and the source of governing law is state law. Likewise, the litigation in the state courts will protect Plaintiffs’ rights as the relief sought is identical to the relief sought here, and Michigan Courts are the final arbiters of Michigan law. Romine, 160 F.3d at 340–41. Therefore, the factors enumerated by the Sixth Circuit favor this Court abstaining from adjudicating Counts I and II in this case. Id.
COVID-19 is a once-in-a-lifetime pandemic that threatens the safety and health of every single person in Michigan. To protect Michiganders, the Governor used statutory emergency powers to combat the spread of the virus. Michigan state courts are, right now, considering the scope and constitutionality of those powers. This Court should defer to the Michigan courts to avoid the possibility of inconsistent adjudications regarding matters of the upmost importance and
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immediacy, that would only add confusion and sow discord in already uncertain and trying times. This is just the sort of occasion where the friction of federalism should give way to appropriate prudential abstention doctrine. Because this Court should abstain from deciding Counts I and II, those Counts should be dismissed.
B. Supplemental Jurisdiction In Count I, Plaintiffs maintain (incorrectly) that the Governor’s executive orders are not authorized by the Emergency Management Act, MCL 30.401 et seq., or the Emergency Powers of the Governor Act, MCL 10.31 et seq. In Count II, Plaintiffs assert (again, incorrectly) that the EMA and EPGA are impermissible delegations of legislative authority to the Governor. But these claims have either already been decided by the Michigan Court of Claims, and the issues are quickly percolating in the state appellate courts right now.21 Exercising supplemental jurisdiction over these state law claims would be an affront to the comity this Court owes its state court counterparts, especially where several of these issues have been or will be decided in short order. Moreover, deciding such state-law questions would not promote judicial economy or the convenience of the parties. A federal court may exercise supplemental jurisdiction over each claim in an action that shares a “common nucleus of operative facts” with a claim that invokes
21 See, e.g., Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ; Michigan United for Liberty v Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ and Martinko, et. al. v. Gov. Whitmer, et. al., Michigan Court of Claims Case No. 20-62-MM.
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the court’s original jurisdiction. United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 725 (1966); 28 U.S.C. § 1367. But the federal court need not exercise its authority to invoke supplemental jurisdiction in every case in which it is possible to do so. Id. at 726. Supplemental jurisdiction “is a doctrine of discretion, not of plaintiff’s right.” Id.
“In deciding whether to exercise supplemental jurisdiction . . . a judge must take into account concerns of comity, judicial economy, convenience, fairness, and the like.” Senra v. Smithfield, 715 F.3d 34, 41 (1st Cir. 2013). If these considerations are not present, “a federal court should hesitate to exercise jurisdiction over state claims.” Gibbs, 383 U.S. at 726. Additionally, supplemental jurisdiction may be denied “if the federal claims are dismissed before trial,” if “it appears that the state issues subsequently predominate,” or “if the likelihood of jury confusion” would be strong without separation of the claims. Id. at 726–27.
A court has the discretion to decline to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c) if:
(1) the claim raises a novel or complex issue of state law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Subsections one, two, and four are relevant to the present action.
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1. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(1).
A district court may decline to exercise supplemental jurisdiction pursuant to § 1367(c)(1) if “the [state] claim raises a novel or complex issue of state law.” 28 U.S.C. § 1367(c)(1). In deciding whether to exercise supplemental jurisdiction, the “obscurity and the paucity of pertinent state judicial precedent [ ] argue[s] in favor of deferring in favor of the state courts.” Peters v. Cars to Go, Inc., 184 F.R.D. 270, 275 (W.D. Mich. Nov. 16, 1998) (quoting Scott v. Long Island Sav. Bank, FSB, 937 F.2d 738, 742 (2d Cir.1991)).
Here, there is scant Michigan authority interpreting or applying the statutes considered and challenged by Plaintiffs’ Counts I and II. Indeed, it is difficult to find any applicable Michigan precedent regarding the EMA or the EPGA. To be sure, the undersigned has been unable to locate a single appellate Michigan case considering the scope or constitutionality of the EMA or EPGA under the circumstances as here. Nor are there any Michigan appellate cases considering whether the EMA and EPGA are impermissible delegations of legislative authority to the Governor. Similarly, there is no published case from a federal court that has ever attempted to resolve these legal issues.
Importantly, as mentioned, the precise questions raised in Counts I and II are currently being litigated in the Michigan courts. Identical questions about the scope of the EMA and EPGA are being litigated in Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ, and the question of whether the EMA and EPGA are impermissible delegations of legislative authority
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to the Governor is being litigated in that case as well as Michigan United for Liberty v Gov. Whitmer, Michigan Court of Claims Case No. 20-61-MZ and Martinko, et al. v. Gov. Whitmer, et al., Michigan Court of Claims Case No. 20-62-MM.22 Comity considerations urge declining supplemental jurisdiction here.
There is no doubt that Counts I and II present novel questions of state law, and federal courts have an “interest in avoiding the unnecessary resolution of state law issues,” Hankins v. The Gap, Inc., 84 F.3d 797, 803 (6th Cir. 1996). See also Doe v. Sundquist, 106 F.3d 702, 708 (6th Cir. 1997) (declining to exercise supplemental jurisdiction over the plaintiff’s state law claim that Tennessee law regarding disclosure of adoption records violated Tennessee constitution). Accordingly, this Court should decline supplemental jurisdiction over Counts I and II.
2. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(2).
A district court may decline to exercise supplemental jurisdiction pursuant to § 1367(c)(2) if “the [state] claim substantially predominates over the claim or claims over which the district court has original jurisdiction.” 28 U.S.C. § 1367(c)(2). Where “the state issues substantially predominate, whether in terms of proof, of the scope of the issues raised, or of the comprehensiveness of the remedy sought, the
22 In Michigan United for Liberty and Martinko, in separate preliminary rulings, the Michigan Court of Claims has determined that neither the EMA nor the EPGA represent an impermissible delegation of legislative authority to the Governor. See Martinko v Whitmer, opinion of the Court of Claims, issued April 29, 2020 (Case No. 20-62-MM) (attached as Exhibit A); Michigan United for Liberty v Gov. Whitmer, opinion of the Court of Claims, issued May 18, 2019 (Case No. 20-61-MZ) (attached as Exhibit M).
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state claims may be dismissed without prejudice and left for resolution to state tribunals.” Gibbs, 383 U.S. at 726–27. Here, the state law claims present disparate legal theories as to both claims and defenses that are wholly unrelated to the federal claims.
Indeed, Count I presents pure questions of statutory interpretation under state law, and Count II presents a pure question of constitutionality under the Michigan Constitution. These claims are completely independent from to the federal claims. For these reasons, the state claims would predominate over the § 1983 federal claims over which this Court has original jurisdiction. Under 28 U.S.C. § 1367(c)(2), this Court should not exercise supplemental jurisdiction.
3. This Court should decline supplemental jurisdiction over Counts I and II under 28 U.S.C. § 1367(c)(4).
Section 1367(c)(4) allows a district court to “decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . in exceptional circumstances, there are other compelling reasons for declining jurisdiction.” 28 U.S.C. § 1367(c)(4). “Congress’s use of the word ‘other’ to modify ‘compelling reasons’ indicates that what ought to qualify as ‘compelling reasons’ for declining jurisdiction under subsection (c)(4) should be of the same nature as the reasons that gave rise to the categories listed in subsections (c)(1)-(3).” Executive Software N. Am., Inc. v. U.S. Dist. Court, 24 F.3d 1545, 1557 (9th Cir. 1994) (citing CarnegieMellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Once the court decides that there are compelling reasons to decline jurisdiction, the factors that inform this decision usually will demonstrate how the circumstances confronted are “exceptional.” Id. at
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1558. Courts generally accept that “compelling reasons for the purposes of [§ 1367](c)(4) . . . should be those that lead a court to conclude that declining jurisdiction best accommodates the values of economy, convenience, fairness and comity.” Id. at 1557 (internal citations omitted); see also Palmer v. Hosp. Auth. of Randolph County, 22 F.3d 1559, 1569 (11th Cir. 1994).
This is not a case where one relatively minor state law claim is brought along with federal causes of action that dominate the matter, nor is it a case where the federal and state causes of action parallel in terms of both elements and expected proofs. Any advantage that may have been gained by considering all the claims together are outweighed by the novel nature of the questions of state law presented, the considerations of comity, and deference to the state courts in allowing these important questions of state law to be resolved by state judicial authority in the first instance. III. Plaintiffs’ claims lack merit.
Even if Plaintiffs’ claims were justiciable and this Court were to exercise jurisdiction over them, dismissal would still be warranted because Plaintiffs fail to state any viable claim for relief. The restrictions in the Governor’s executive orders are a proper exercise of the statutory authority given to her to combat a public health crisis, and they fall comfortably within the long-settled, deferential standard of review that governs constitutional challenges to such exercises of authority. Third, even under a more standard analysis of the alleged constitutional violations, the restrictions plainly pass muster.
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A. The Governor acted pursuant to valid statutory authority under Michigan law.
Plaintiffs fail to present a viable theory under Michigan law for their claims that the EOs were ultra vires and are unenforceable. Defendants rely upon the merits as argued by the Governor in her May 29, 2020 Emergency Bypass Application for Leave to Appeal. Michigan House of Representatives and Michigan Senate v. Gretchen Whitmer, Michigan Supreme Court No. 161377 (Exhibit N.) See also 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). Defendants adopt and incorporate by reference the merits arguments as articulated by Exhibit N. Fed. R. Civ. P. 10(c). Upon the Court’s request and direction, however, Defendants will supplement this briefing.
B. The States have wide latitude in dealing with great dangers to public health.
Plaintiffs’ constitutional claims also 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 measures taken in the Governor’s executive orders were necessary to meet the demands of these extraordinary times and are reasonable and constitutional. Accordingly, judicial invalidation of those orders is not warranted.
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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. 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 certain restrictions 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).
Recently, 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.23
23 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
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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—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 health care system, and avoiding needless deaths.24
And just last week, the U.S. Supreme Court in a 5-to-4 order refused to grant injunctive relief for a party challenging an California executive order that created limitations on public gatherings, including those of public worship, based on considerations of health and safety. South Bay United Pentecostal Church, et al. v. Gavin Newsom, Governor of California, 509 U.S. ___ (2020) (summary order released May 29, 2020) (Attached as Exhibit O). In his opinion concurring in the
v. Northam, 2020 WL 2110416 (E.D. Va., May 1, 2020); Shows v. Curtis, 2020 WL 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). 24 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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denial of relief, Chief Justice Roberts expressly relied on Jacobson in explaining that the Constitution “principally entrusts” these questions of safety to “the politically accountable officials of the States.” Id. at slip op., p. 2 (citing Jacobson, 197 U.S. at 38). Notably, as here, when those officials act “in areas fraught with medical and scientific uncertainties,” Chief Justice Roberts explained that “their latitude ‘must be especially broad.’ ” Id. (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)). And when operating within those broad limits, he explained, these officials “should not be subject to second-guessing” by the federal judiciary, which lacks comparable expertise in public health. Id. (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985).)
There is no 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 oncein-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.
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
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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.) Plaintiffs’ claims cannot survive this settled standard. Therefore, the Court should dismiss the complaint.
2. Application of Jacobson to the current health crisis and the restrictions challenged by Plaintiffs.
Plaintiffs allege the impingement of constitutional rights as a result of E.O. 2020-17’s (now-rescinded) requirement that certain health care facilities temporarily implement a postponement plan for non-essential procedures, and E.O. 2020-92’s corresponding (and correspondingly now-rescinded) requirement that individuals travel only for certain necessary medical treatment (including for medical procedures that, in accordance with a duly adopted postponement plan, have not been postponed). These claims plainly fail under Jacobson’s duly deferential review.
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 the Governor’s executive orders be upheld in their entirety. While the impact of any restriction on some aspect of normalcy outside of a pandemic is no doubt important, the restrictions
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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 and urgent 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, judicial deference is owed to the Governor’s assessment of how to most effectively 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.
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 deadly pandemic such as this, the point—the necessity—is to only allow those risks to public health that can and must be taken; the stakes are too high to do otherwise.
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To wit, a simple trip to a health care facility for non-emergency care might appear both innocuous and inoculated for purposes of the virus.
But appearances are deceiving. To get to that position, the individual patient likely had to handle multiple objects – vehicles, gas pumps, handles and door knobs, etc. – as did each of the workers at the care site. These individuals then all share space, breathe the same air, 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 do so much to avoid these harms and presents the downside of depleting resources critically needed to provide emergency care to those afflicted by COVID-19 and other conditions immediately threatening their health and safety.
This last point merits emphasis. Until recently, Michigan, like other states, had been in the throes of an impending and dangerous shortage of health care resources available to handle the steep and immediate demands created by this pandemic, from PPE for medical professionals (and other critical infrastructure workers), to ventilators and other necessary medical supplies, to hospital beds. As the virus began to ravage the State, health systems were quickly reaching or exceeding their 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
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Center) – typically the home of auto shows and black-tie galas – was retrofitted as a makeshift field hospital in anticipation of local bed shortages.25 That it has not seen thousands of patients is a blessing, and a result of the carefully calibrated measures put in place—like E.O.s 2020-17 and 2020-92—to stem the tide.
Accordingly, there was ample good reason to temporarily regulate health care interactions and related travel, as the E.O.s challenged in this case did. Those restrictions served to protect the public health of the State and its residents, and to prevent its health care system from collapsing under the strain of easily transmittable, potentially fatal, and still untreatable virus. They—like the broader set of measures regarding travel and in-person work and activities that were put in place by the Governor’s emergency orders—were temporary, tailored, and aimed at guiding the state as swiftly and safely as possible through the severe dangers posed by this pandemic.
Plaintiffs complain that the restrictions they challenge lasted too long. But adequate time must be given for the public health goals to be served and a transition to economic normalcy to return—and due deference must be given under Jacobson to the Governor’s assessment and actions in that regard. And indeed, this careful and gradual transition is exactly what has been happening with the
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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rescission of various executive orders—including E.O.s 2020-17 and 2020-92—and the promulgation of new ones. While circumstances rapidly escalated and the virus began to ravage the State, more restrictive measures were necessary to combat the spread and save lives. 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.
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.
In sum, the limited and 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 they most certainly do not constitute, “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” 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. Under the applicable standards, they are.
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(Martinko Opinion, Ex A, p. 14, citation omitted). Just as in South Bay United Pentecostal Church, it is “quite improbable” that the Plaintiffs have made it “ ‘indisputably clear’ that the Government’s limitations are unconstitutional.” (Roberts, C.J., concurring, slip op., p. 3.) Accordingly, Plaintiffs cannot overcome Jacobson and their claims fail as a matter of law.
C. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges fail. 1. Plaintiffs fail to state a viable void for vagueness challenge.
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 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).
Plaintiffs quibble with general (not vague) terms such as “health,” “nonessential procedures,” and “significantly impact.” (Pls’ Prel. Inj. Br. at 27–29.) There is, however, no claim here that any of the Plaintiffs have been subject to selective enforcement or otherwise unsure about what is or is not permitted in their particular situations. Indeed, the stated purpose of their lawsuit is to fully reopen their health care businesses and to schedule a non-emergency joint replacement
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surgery. Even absent the mootness of this purpose in light of E.O. 2020-96, nothing signals any vagueness in the restrictions that Plaintiffs claim to have improperly impeded it.
By claiming the language of the challenged orders is vague, the Plaintiffs have flipped on their head the flexibility and discretion that the orders permit them. Under the executive orders, the Plaintiffs were required to “implement a plan to temporarily postpone . . . all non-essential procedures.” Notably, other than a handful of specific measures that are included within the definition of “nonessential procedures” per Executive Order 2020-17—like non-emergency joint replacement or cosmetic surgery—the definition of “non-essential procedure” is “a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” (E.O. 2020-17, ¶ 1) (emphasis added). Thus, beyond requiring a plan and identifying certain essential and non-essential procedures as guideposts, the scope and breadth of the plan was expressly left to the discretion of the covered facilities and the professional judgment of their medical providers.
The terms of Executive Order 2020-17 were flexible and clear. The executive order required creation and implementation of a plan, ¶¶ 1–2, and compliance with that plan, ¶ 4. It provided some general guidance and outer boundaries for the content of a plan, and it largely granted licensed medical providers the latitude to “determine” what constitutes a non-essential procedure that can be postponed under their plan. E.O. 2020-92, like prior iterations of the Stay Home order, was
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correspondingly clear, permitting individuals to travel to (among other things) receive treatment deemed essential by their medical providers under E.O. 2020-17.
At bottom, Plaintiffs are attempting to use the doctrine of vagueness to secure exemptions from executive orders they had no problem understanding, but simply would have rather not followed. While the orders’ restrictions have no doubt impacted the lives of many, Plaintiffs included, that impact has been necessary and tailored to meet an overarching, critical public health need. There is nothing unconstitutionally vague about the content of these restrictions, and Plaintiffs have failed to state a viable void for vagueness challenge.
2. Plaintiffs fail to state a viable procedural due process claim.
It is difficult to discern what process Plaintiffs claim is lacking here for purposes of their procedural due process claim. Of course, the general touchstone for such claims is notice and an opportunity to be heard on a pre- or postdeprivation basis. See Mathews v. Eldridge, 424 U.S. 319, 332–33 (1976). But under the holding of Mathews, none of the instant Plaintiffs have suffered a final deprivation of any protected interest. The challenged executive orders contain temporary restrictions, not final ones. Additionally, Mathews concerned termination of disability benefits and not a generally applicable emergency order in a pandemic that need only be disseminated to the public through the usual media channels. Indeed, due process is “flexible and calls for such procedural protections as the particular situation demands.” Morissey v. Brewer, 408 U.S. 471, 481 (1972).
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Here, Plaintiffs seem to be seeking some sort of process by which they can challenge a determination that a procedure is “non-essential,” while wholly overlooking the fact that, under the executive orders, they themselves had broad flexibility and discretion to make that very determination on a case-by-case, patient-by-patient basis. Plaintiffs can point to nothing to indicate that, given this “particular situation,” due process would somehow “demand[]” further “procedural protections” regarding their own determinations of what procedures are or are not necessary to preserve the health and safety of their patients during this pandemic. Id. And while Plaintiffs may very well prefer not to have had to make these determinations over the preceding weeks, it is inevitable that any effective response to a rapidly unfolding and deadly pandemic will involve some measure of disruption to the normal operations of healthcare businesses. Plaintiffs have offered nothing in the federal constitution or cases construing it that would have required any more here than general promulgation of the executive orders issued under emergency authority.
3. Plaintiffs fail to state a viable substantive due process claim.
The Sixth Circuit has 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 locality’s action “has no foundation in reason and is a mere arbitrary or irrational
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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 rapid spread of an aggressive, untreatable, and potentially fatal disease, and to ensure this State’s health care system had the capacity and resources to manage that spread. The same is true of any of the challenged pandemic orders signed by Director Gordon. “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. In addition, there is nothing conscience-shocking about prioritizing types of medical care during a pandemic for purposes of not depleting or misdirecting scarce health-care resources (PPE, drugs, emergency room capacity, ICE capacity, etc.), nor about placing
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temporary limitations on certain types of traffic within the State in order to strike a necessary and carefully calibrated balance between reducing travel—and therefore human interactions and community spread of this deadly virus throughout the State—and allowing citizens to engage in essential functions. Indeed, given the temporary and tailored nature of the challenged restrictions, and the compelling state interest they served—mitigating the spread of this deadly pandemic, preventing the rapid depletion of critical healthcare resources, and averting countless needless deaths—the restrictions would pass muster under even the strictest level of constitutional scrutiny. There is no substantive due process issue with these measures, and Plaintiffs’ claims on that basis should be dismissed for failure to state a recognized claim for relief.
4. Plaintiffs fail to state a viable dormant commerce clause claim.
By empowering Congress to regulate interstate commerce, the Commerce Clause is interpreted to, correspondingly, prohibit states from interfering with the same. U.S. Const., Art. I, s. 8, cl. 3. This negative implication, commonly known as the “dormant commerce clause” “prohibit[s] outright economic protectionism or regulatory measures designed to benefit in-state economic actors by burdening outof-state actors.” E. Ky. Res. v. Fiscal Court, 127 F.3d 532, 540 (6th Cir. 1997). A two-tiered analysis applies to such claims. “The first prong targets the core concern of the dormant commerce clause, protectionism – that is ‘differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter.’” Tenn. Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 449 (6th Cir.
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2009) (quoting Or. Waste Sys. v. Dep't of Envtl. Quality, 511 U.S. 93, 99 (1994)). The second applies where, as here, the order invokes no inkling of in-state protectionism but, instead, applies to all businesses operating with this state. In this situation, the order is presumed valid unless its burden on interstate commerce is “clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970). Plaintiffs bear the burden of demonstrating this second prong weighs in their favor. It is a burden they cannot meet here.
Any burden of the executive orders on interstate commerce or out-of-state actors is minuscule compared to the benefit to the state and local communities as a whole. The challenges presented by the spread of COVID-19 required swift action throughout Michigan to stop the spread of a highly contagious and deadly disease. This includes the complained of restrictions on business and health care activity raised in Plaintiffs’ motion. Many businesses and individuals throughout the State have faced these necessary and temporary restrictions.
But nothing in the executive orders regulates interstate commerce as interstate commerce. Impacts on such commerce may be inevitable, but that is not the focus of any of the challenged restrictions. This factor alone distinguishes this case from recognized dormant commerce clause challenges. Additionally, none of the challenged orders seek to regulate any conduct outside of the State of Michigan. While Plaintiffs were impacted by the restrictions and presumably engaged in interstate commerce, those factors alone fall far short of a viable commerce clause challenge.
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Further, in Pike, the Supreme Court specifically recognized that its holding was influenced by the fact that it was not dealing with “state legislation in the field of safety where the propriety of local regulation has long been recognized.” Pike, 397 U.S. at 143. This is not the case here. Dealing with public health in general and a pandemic in particular fall squarely within deeply rooted local and state police powers, and Plaintiffs offer nothing to show that the restrictions they challenge were somehow “clearly excessive” in comparison to the critical protections those restrictions provided to the residents, communities and health care system of this State during this pandemic. Therefore, Plaintiffs fail to state a valid claim for relief under dormant commerce clause doctrine.
CONCLUSION AND RELIEF REQUESTED Judicial invalidation that precludes enforcement of any part of the Governor’s or the Director’s orders would mean dire, cascading outcomes and untold unintended consequences. The challenged restrictions were put in place, and then lifted, after careful consideration of the unique nature of the threat facing Michigan and the advice of numerous individuals and entities with unique expertise. That process was statutorily and constitutionally sound, and Plaintiffs have no justiciable or viable basis to challenge it. Their claims fail as a matter of law, and they merit nothing more from this Court than dismissal. Indeed, what Plaintiffs want—a piecemeal lifting of restrictions by this Court, without the ability to globally coordinate the State’s carefully considered, deliberate, ongoing plan to combat the crisis and transition back to normalcy—is not only legally unwarranted
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but also increases the risk and potential harm to everyone. For the reasons already briefed, a particular party’s race to the courthouse should not control who is and is not excepted, particularly in a time of great public need when all in Michigan must grab hold of an oar and row in the same direction.
Defendants Whitmer and Gordon respectfully request that the grant this motion, dismissal all claims, and grant any other appropriate relief to Defendants.
Respectfully submitted, /s/ John G. Fedynsky John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fednyskyj@michigan.gov Dated: June 2, 2020
52

Case 1:20-cv-00414-PLM-PJG ECF No. 35-1 filed 06/05/20 PageID.1835 Page 59 of 59 CERTIFICATE OF SERVICE
I certify that on June 2, 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/ John G. Fedynsky John G. Fedynsky Assistant Attorney General Attorney for Defendants Whitmer & Gordon State Operations Division
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-2 filed 06/05/20 PageID.1836 Page 1 of 3

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-2 filed 06/05/20 PageID.1837 Page 2 of 3

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit A
B
C
D
E F G H I J K L

Index of Exhibits Description
Opinion and Order Denying Plaintiffs’ Motion for a Preliminary Injunction, Martinko, et. al. v. Governor Whitmer, et. al., Michigan Court of Claims Case No. 20-62-MM
Modes of transmission of virus causing COVID-19, World Health Organization
Social Distancing, Quarantine, and Isolation, Centers for Disease Control
Flattening the Coronavirus Curve (March 27, 2020), New York Times
E.O. No.2020-4
E.O. No. 2020-5
E.O. No. 2020-9
E.O. No. 2020-11
E.O. No. 2020-17
E.O. No. 2020-96
E.O. No. 2020-21
Opinion and Order of the Court issued May 21, 2020, Michigan House and Senate v. Gov. Whitmer, Michigan Court of Claims Case No. 20-79-MZ
2

Case 1:20-cv-00414-PLM-PJG ECF No. 35-2 filed 06/05/20 PageID.1838 Page 3 of 3

M

Opinion and Order of the Court issued May 18, 2019, Michigan

United for Liberty v. Gov. Whitmer, Michigan Court of Claims

Case No. 20-61-MZ

N

Governor Gretchen Whitmer’s Emergency Bypass Application

for Leave to Appeal and Brief in Response to Plaintiffs’

Emergency Bypass Application for Leave to Appeal, Michigan

House of Representatives and Michigan Senate v. Gretchen

Whitmer, Michigan Supreme Court Case No. 161377

O

Summary Order released May 29, 2020, South Bay United

Pentecostal Church, et al. v. Gavin Newsom, Governor of

California, 509 U.S. ___ (2020)

3

Case 1:20-cv-00414-PLM-PJG ECF No. 35-3 filed 06/05/20 PageID.1839 Page 1 of 20

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-3 filed 06/05/20 PageID.1840 Page 2 of 20

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit A

Case 1:20-cv-00414-PLM-PJG ECF No. 35-3 filed 06/05/20 PageID.1841 Page 3 of 20
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.
-1-

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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-
-3-

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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-00414-PLM-PJG ECF No. 35-3 filed 06/05/20 PageID.1858 Page 20 of 20 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-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1859 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1860 Page 2 of 8

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit B

Modes of transmission of virus causing COVID-19: implications for IPC precaution recommendations
Case 1:20-cv-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1861 Page 3 of 8

.cls-1{fill:#0093d5;}World Health

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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-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1862 Page 4 of 8 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-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1863 Page 5 of 8 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
Case 1:20-cv-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1864 Page 6 of 8
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-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1865 Page 7 of 8 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-00414-PLM-PJG ECF No. 35-4 filed 06/05/20 PageID.1866 Page 8 of 8 © 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-00414-PLM-PJG ECF No. 35-5 filed 06/05/20 PageID.1867 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-5 filed 06/05/20 PageID.1868 Page 2 of 6

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit C

Social Distancing, Quarantine, and Isolation
Case 1:20-cv-00414-PLM-PJG ECF No. 35-5 filed 06/05/20 PageID.1869 Page 3 of 6
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-00414-PLM-PJG ECF No. 35-5 filed 06/05/20 PageID.1870 Page 4 of 6 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-00414-PLM-PJG ECF No. 35-5 filed 06/05/20 PageID.1871 Page 5 of 6 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-00414-PLM-PJG ECF No. 35-5 filed 06/05/20 PageID.1872 Page 6 of 6 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-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1873 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1874 Page 2 of 8

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit D

How to Flatten the Curve on Coronavirus - The New York Times
Case 1:20-cv-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1875 Page 3 of 8
SCIENCE |
SUBSSCUBSRCRIIBBE NEOWNOWAccount
› The Coronavirus Outbreak

LIVE 
Latest Updates Maps and Tracker Markets Stimulus Checks What You Can Do Newsletter
ADVERTISEMENT
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-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1876 Page 4 of 8
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-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1877 Page 5 of 8
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-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1878 Page 6 of 8
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
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-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1879 Page 7 of 8
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-00414-PLM-PJG ECF No. 35-6 filed 06/05/20 PageID.1880 Page 8 of 8
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-00414-PLM-PJG ECF No. 35-7 filed 06/05/20 PageID.1881 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-7 filed 06/05/20 PageID.1882 Page 2 of 4

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit E

Case 1:20-cv-00414-PLM-PJG ECF No. 35-7 filed 06/05/20 PageID.1883 Page 3 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 35-7 filed 06/05/20 PageID.1884 Page 4 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 35-8 filed 06/05/20 PageID.1885 Page 1 of 4

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-8 filed 06/05/20 PageID.1886 Page 2 of 4

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit F

Case 1:20-cv-00414-PLM-PJG ECF No. 35-8 filed 06/05/20 PageID.1887 Page 3 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 35-8 filed 06/05/20 PageID.1888 Page 4 of 4

Case 1:20-cv-00414-PLM-PJG ECF No. 35-9 filed 06/05/20 PageID.1889 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-9 filed 06/05/20 PageID.1890 Page 2 of 5

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit G

Case 1:20-cv-00414-PLM-PJG ECF No. 35-9 filed 06/05/20 PageID.1891 Page 3 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 35-9 filed 06/05/20 PageID.1892 Page 4 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 35-9 filed 06/05/20 PageID.1893 Page 5 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 35-10 filed 06/05/20 PageID.1894 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-10 filed 06/05/20 PageID.1895 Page 2 of 5

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit H

Case 1:20-cv-00414-PLM-PJG ECF No. 35-10 filed 06/05/20 PageID.1896 Page 3 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 35-10 filed 06/05/20 PageID.1897 Page 4 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 35-10 filed 06/05/20 PageID.1898 Page 5 of 5

Case 1:20-cv-00414-PLM-PJG ECF No. 35-11 filed 06/05/20 PageID.1899 Page 1 of 5

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-11 filed 06/05/20 PageID.1900 Page 2 of 5

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit I

5/22/2020 Case 1:20-cv-00414-PLM-PJG ECF No. 35-11 filed 06/05/20 PageID.1901 Page 3 of 5
OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-17 (COVID-19)

EXECUTIVE ORDER

No. 2020-17

Temporary restrictions on non-essential medical and dental procedures
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-.421, and the Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL 10.31-.33.
 The Emergency 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).

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5/22/2020 Case 1:20-cv-00414-PLM-PJG ECF No. 35-11 filed 06/05/20 PageID.1902 Page 4 of 5 To mitigate the spread of COVID-19, protect the public health, provide essential protections to vulnerable Michiganders, and ensure the availability of health care resources, it is reasonable and necessary to impose temporary restrictions on non-essential medical and dental procedures.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. Beginning as soon as possible but no later than March 21, 2020 at 5:00 pm, and continuing while the state of emergency declared in Executive 2020-4 is in eﬀect, all hospitals, freestanding surgical outpatient facilities, and dental facilities, and all state-operated outpatient facilities (collectively, “covered facilities”), must implement a plan to temporarily postpone, until the termination of the state of emergency under section 3 of Executive Order 2020-4, all non-essential procedures (“non-essential procedure postponement plan” or “plan”). For purposes of this order, “non-essential procedure” means a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.

2. A plan for a covered facility that performs medical procedures, including any medical center or oﬃce that performs elective surgery or cosmetic plastic surgery, must postpone, at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would signiﬁcantly impact the health, safety, and welfare of the patient. A plan for a covered facility that performs medical procedures should exclude from postponement: surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancyrelated visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis. A plan for a covered facility that performs medical procedures must exclude from postponement emergency or trauma-related procedures where
 postponement would signiﬁcantly impact the health, safety, and welfare of the patient.

3. A plan for a covered facility that performs dental procedures must postpone, at a minimum: any cosmetic or aesthetic procedures (such as veneers, teeth bleaching, or cosmetic bonding); any routine hygiene appointments; any orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; initiation of any crowns, bridges, or dentures that do not relieve pain or infection, do not restore oral function, or are not trauma-related; any periodontal plastic surgery; any extractions of asymptomatic non-carious teeth; and any recall visits for periodontally healthy patients. If a covered facility that performs dental procedures chooses to remain

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5/22/2020 Case 1:20-cv-00414-PLM-PJG ECF No. 35-11 filed 06/05/20 PageID.1903 Page 5 of 5 open, its plan must exclude from postponement emergency or trauma-related procedures where postponement would signiﬁcantly impact the health, safety, and welfare of the patient.
4. A covered facility must comply with the restrictions contained in its non-essential procedure postponement plan.
5. This order does not alter any of the obligations under law of an a ected health care facility to its employees or to the employees of another employer.
6. The director of the Department of Licensing and Regulatory Aﬀairs shall issue orders or directives pursuant to law as necessary to enforce this order.
7. 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-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1904 Page 1 of 14

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1905 Page 2 of 14

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit J

5/22/2020Case 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1906 Page 3 of 14
OFFICIAL WEBSITE OF MICHIGAN.GOV

THE OFFICE OF
GOVERNOR GRETCHEN WHITMER



WHITMER / NEWS / EXECUTIVE ORDERS

Executive Order 2020-96 (COVID-19)

EXECUTIVE ORDER
No. 2020-96
Temporary requirement to suspend certain activities that are not necessary to sustain or protect life
Rescission of Executive Orders 2020-17, 2020-34, and 2020-92
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
 emergency 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 202067 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

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5/22/2020Case 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1907 Page 4 of 14 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, 2020-70, 2020-77, and 202092, 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 these executive orders have been eﬀective: the number of new conﬁrmed cases each day has started to drop. Although the virus remains aggressive and persistent—on May 20, 2020, Michigan reported 53,009 conﬁrmed cases and 5,060 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.
With this order, I ﬁnd it reasonable and necessary to reaﬃrm the measures set forth in Executive Order 2020-92, while also allowing gatherings of no more than ten people statewide, eﬀective immediately, and permitting retailers and motor vehicle dealerships to see customers by appointment, beginning on May 26, 2020. In addition, because our health-care capacity has improved with respect to personal protective equipment, available beds, personnel, ventilators, and necessary supplies, I ﬁnd it reasonable to rescind Executive Orders 2020-17 and 2020-34, which required health-care and veterinary facilities to implement plans to postpone some medical and dental procedures. Those rescissions will take eﬀect on May 29.
 Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:
I. This order must be construed broadly to prohibit in-person work that is not necessary to sustain or protect life.
II. 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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5/22/2020Case 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1908 Page 5 of 14
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. III. 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. IV. 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. V. 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. 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 2020-97 and any orders that may follow from it. c. Workers who perform resumed activities are deﬁned in section 11 of this order. VI. Businesses and operations that employ critical infrastructure workers or workers who perform resumed activities may continue in-person operations, subject to the following

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5/22/2020Case 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1909 Page 6 of 14
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 2020-97 and any orders that may follow from 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.
VII. 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. 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 2020-97 and any orders that may follow from it. VIII. Exceptions.
a. Individuals may leave their home or place of residence, and travel as necessary:

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5/22/2020Case 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1910 Page 7 of 14

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 for themselves or a household or family

member.

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 go to a motor vehicle

dealership showroom by appointment, as permitted under section 11(p)

of this order.



 C. Individuals may leave the home to have a bicycle repaired or maintained.

D. 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

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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 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. 20. To go to a retail store by appointment, as permitted under section 11(q) of this order. 21. To attend a social gathering of no more than 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. IX. 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.
 Consistent 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.

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k. Hazardous materials.

l. Financial services.

m. Chemical supply chains and safety.

n. Defense industrial base.

X. 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 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.



 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

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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 until May 26, 2020 at 12:01 am.

XI. 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.

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

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performed has been prepared to follow the workplace safeguards described in

section 4 of Executive Order 2020-97 and any orders that may follow from 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, 2020, workers necessary to

perform retail activities. For purposes of this order, retail activities are deﬁned:

1. As the selling of goods and the rendering of services incidental to the sale of the

goods (e.g., any packaging and processing to allow for or facilitate the sale and

delivery of the goods).

2. To exclude those places of public accommodation that are closed under

Executive Order 2020-69 and any orders that may follow from it.

m. For Regions 6 and 8, beginning at 12:01 am on May 22, 2020, 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, 2020, workers in restaurants

or bars, subject to the capacity constraints and workplace standards described in

Executive Order 2020-97. 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. For restaurants and bars subject to this

subsection, this subsection supersedes the limitations placed on those restaurants

and bars by Executive Order 2020-69 and any order that may follow from it.

o. Workers necessary to prepare a workplace to follow the workplace standards

described in Executive Order 2020-97 and to otherwise ready the workplace for

reopening.

p. Beginning at 12:01 am on May 26, 2020, workers at motor vehicle dealerships,

provided that showrooms are open only by appointment.

q. Beginning at 12:01 am on May 26, 2020, workers necessary to perform retail

activities by appointment, provided that the store is limited to 10 customers at any

one time. For purposes of this order, retail activities are deﬁned:

1. As the selling of goods and the rendering of services incidental to the sale of the

goods (e.g., any packaging and processing to allow for or facilitate the sale and

delivery of the goods).

2. To exclude those places of public accommodation that are closed under



Executive Order 2020-69 and any orders that may follow from it.



r. 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.

XII. Any store that is open for in-store sales under section 10(f), section 11(c), or section 11(q)

of this executive order:

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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.
XIII. 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.
XIV. 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.
XV. 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. An individual may also remove a face covering 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, 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.
XVI. Except as otherwise expressly stated in this order, 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 22 of this order for allowing religious worship at such place. No
individual is subject to penalty under section 22 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. XVII. 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. XVIII. This order takes eﬀect immediately, unless otherwise speciﬁed in this order, and continues through May 28, 2020 at 11:59 pm. XIX. Executive Order 2020-17, which imposed temporary requirements regarding the postponement of non-essential medical and dental procedures, is rescinded as of May 28,

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5/22/2020CCase 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1916 Page 13 of 144 2020 at 11:59 pm. Executive Order 2020-34, which imposed temporary requirements regarding the postponement of veterinary services, is rescinded as of May 28, 2020 at 11:59 pm. Outpatient health-care facilities, including veterinary oﬃces, are subject to the workplace safety rules described in Executive Order 2020-97.
XX. Executive Orders 2020-92 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.
XXI. 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 COVID-19 cases and isolate infected people; and (5) economic conditions in the state.
XXII. 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.
GRETCHEN WHITMER GOVERNOR
Date: May 21 2020
Time: 9:49 am

RELATED CONTENT
Executive Order 2020-95 (COVID-19) (May 21, 2020) Executive Order 2020-97 (COVID-19) (May 21, 2020) Executive Order 2020-93 (COVID-19) (May 20, 2020)
 Executive Order 2020-94 (May 19, 2020) - Declaration of State of Emergency Executive Order 2020-85 (COVID-19) Executive Order 2020-88 (COVID-19) Executive Order 2020-92 (COVID-19) (May 18, 2020) - Rescinded Executive Order 2020-91 (COVID-19) (May 18, 2020) - Rescinded Executive Order 2020-86 (COVID-19) Executive Order 2020-87 (COVID-19)
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-529860--,00.html


11/12

5/22/2020CCase 1:20-cv-00414-PLM-PJG ECF No. 35-12 filed 06/05/20 PageID.1917 Page 14 of 144 Executive Order 2020-89 (COVID-19) Executive Order 2020-90 (COVID-19) Executive Order 2020-84 (COVID-19) - Rescinded Executive Order 2020-81 (COVID-19) Executive Order 2020-83 (COVID-19) Executive Order 2020-82 (COVID-19) Executive Order 2020-79 (COVID-19) Executive Order 2020-80 (COVID-19) Executive Order 2020-78 (COVID-19) Executive Order 2020-75 (COVID-19)
MICHIGAN.GOV HOME ADA MICHIGAN NEWS POLICIES COPYRIGHT 2020 STATE OF MICHIGAN

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Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1918 Page 1 of 10

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1919 Page 2 of 10

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit K

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Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1921 Page 4 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1922 Page 5 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1923 Page 6 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1924 Page 7 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1925 Page 8 of 10

Case 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1926 Page 9 of 10

CCase 1:20-cv-00414-PLM-PJG ECF No. 35-13 filed 06/05/20 PageID.1927 Page 10 of 100

Case 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1928 Page 1 of 27

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1929 Page 2 of 27

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit L

Case 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1930 Page 3 of 27 1
STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES, and MICHIGAN SENATE,
Plaintiffs,
v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

OPINION AND ORDER
Case No. 20-000079-MZ Hon. Cynthia Diane Stephens

This matter arises out of Executive Orders issued by Governor Gretchen Whitmer in response to the COVID-19 pandemic. Neither the parties to this case nor any of the amici deny the emergent and widespread impact of Covid-19 on the citizenry of this state. Neither do they ask this court at this time to address the policy questions surrounding the scope and extent of contents of the approximately 90 orders issued by the Governor since the initial declaration of emergency on March 10, 2020 in Executive Order No. 2020-4. The Michigan House of Representatives and the Michigan Senate (Legislature) in their institutional capacities challenge the validity of Executive Orders 2020-67 and 2020-68, which were issued on April 30, 2020. They have asked this court to declare those Orders and all that rest upon them to be invalid and without authority as written. The orders cited two statutes, 1976 PA 390, otherwise known as the Emergency Management Act (EMA); and 1945 PA 302, otherwise known as the Emergency Powers of Governor Act (EPGA). In addition, the orders cite Const 1963, art 1, § 5, which generally vests the executive power of the state in the Governor. This court finds that:

Case 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1931 Page 4 of 27 2
1. The issue of compliance with the verification language of MCL 600.6431 is abandoned. 2. The Michigan House of Representative and Michigan Senate have standing to pursue this
case. 3. Executive Order 2020-67 is a valid exercise of authority under the EPGA and plaintiffs
have not established any reason to invalidate any executive orders resting on EO 2020-67. 4. The EPGA is constitutionally valid. 5. Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.
I. BACKGROUND
The Court will dispense with a lengthy recitation of the pertinent facts and history and will instead jump to the Governor’s declaration of a state of emergency1 as well as a state of disaster2 under the EMA and the EPGA on April 1, 2020, in response to the COVID-19 pandemic. Executive Order No. 2020-33. Both chambers of the Legislature adopted Senate Joint Resolution No. 24 which approved “an extension of the state of emergency and state of disaster declared by Governor Whitmer in Executive Order 2020-4 and Executive Order 2020-33 through April 30, 2020. . . .” The Senate Concurrent Resolution cited the 28-day legislative extension referenced in MCL 30.403 of the EMA.
1 The EPGA does not define the term “state of emergency.” However, the EMA defines the term as follows: “an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(q). 2 While the EPGA does not use, let alone define, the term “state of disaster,” the EMA defines the term as “an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” MCL 30.402(p).

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The public record affirms that the governor asked the legislative leadership to extend the state of disaster and emergency on April 27, 2020. The Legislature demurred and instead passed SB 858, a bill without immediate effect, which addressed some the subject matter of several of the COVID-19-related Executive Orders, but did not extend the state of emergency or disaster or the stay-at-home order. The Governor vetoed SB 858.
On April 30, 2020, the Governor issued Executive Order 2020-66 which terminated the state of emergency and disaster that had previously been declared under Executive Order 202033. The order opined that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Executive Order No. 2020-66 (emphasis added). However, EO 2020-66 acknowledged that 28 days “have lapsed since [the Governor] declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33.” Id. The order declared there was a “clear and ongoing danger to the state . . . .” (Emphasis added).
On the same day, and only one minute later, the Governor issued two additional executive orders. First, she issued Executive Order No. 2020-67, which cited the EPGA. [In addition, the order contained a cursory citation to art 5, § 1.] EO 2020-67 noted the Governor’s authority under the EPGA to declare a state of emergency during “‘times of great public crisis . . . or similar public emergency within the state. . . .’” Id. quoting MCL 10.31(1). The order noted that such declaration does not have a fixed expiration date. Id. Then, and as a result of the ongoing COVID-19 pandemic, EO 2020-67 declared that a “state of emergency remains declared across the State of Michigan” under the EPGA. The order stated that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id. The order was to take immediate effect. Id.

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In addition to declaring that a state of emergency “remained” under the EPGA, the Governor simultaneously issued Executive Order No. 2020-68; this order declared a state of emergency and a state of disaster under the EMA. [In addition, like all previous orders, the order contained a vague citation to art 5, § 1 as well.] Hence, EO 2020-68 essentially reiterated the very same states of emergency and disaster that the Governor had, approximately one minute earlier, declared terminated. The order declared that the states of emergency and disaster extended through May 28, 2020 at 11:59 p.m., and that all orders that had previously relied on the prior states of emergency and disaster declaration in EO 2020-33 now rest on this order, i.e., EO 2020-68.
The House of Representative and the Senate subsequently filed this case asking for an expedited hearing and a declaration that EO 2020-67 and EO 2020-68, and any other Executive Orders deriving their authority from the same, were null and void.
COMPLIANCE WITH MCL 600.6431
The Governor noted in her reply brief that the complaint, as originally filed in this court did not meet the verification requirement of MCL 600.6431(2)(d). At oral argument the Governor acknowledged that the verification requirements were not met when the complaint was originally filed; however, a subsequent filing was notarized in accordance with the statute. The Governor also acknowledged that the failure to sign the verified pleading before a person authorized to administer oaths was not necessary for invoking this Court’s jurisdiction. Finally, the Governor agreed that she was not seeking dismissal of the action based on plaintiffs’ initial lack of compliance. For those reasons this Court will consider the issue moot and decline any analysis of the arguments predicated on MCL 600.6431.
STANDING

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The issue of standing is central to this case as it is with all litigation. Courts exist to manage actual controversies between parties to whom those controversies matter. The Legislature has cited MCR 2.605 in support of its standing to pursue this declaratory action. The Legislature asserts that it has a need for guidance from this Court in order to determine how it will proceed to protect what it articulates as its special institutional rights and responsibilities. The Governor challenges whether the Legislature has standing to bring this suit. The Governor argues that the institution of the Legislature has no more interest in the outcome of this suit than any member of the public. She further claims that the Legislature does not need the guidance of the Court to determine how to carry out its constitutional duties. It is the opinion of this Court that the Legislature has standing to pursue its claims before this Court.
Both parties cite the seminal case on the issue of standing, Lansing Schs Ed Ass’n v Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). In that case, the Supreme Court refined the concept of standing under the Michigan Constitution. In doing so, the Court rejected the federal standing analysis and articulated an analytical framework rooted the Michigan Constitution. The Lansing Schs Ed Ass’n Court looked to whether a cause of action was authorized by the Legislature. Where the Legislature did not confer a right to a specific cause of action, a plaintiff must have “a special injury or right, or substantial interest, that will be detrimentally affected in a manner different than the citizenry at large . . . .” Id. at 372.
The Governor relies heavily on the recent case of League of Women Voters of Mich v Secretary of State, __ Mich App __; __ NW2d __ (2020) (Docket Nos. 350938; 351073), which is itself now on appeal to the Michigan Supreme Court. That case, similar to the instant case, was brought under the aegis of MCR 2.605 and asked the court to declare that an Attorney General Opinion’s interpretation of a statute was invalid. The Court of Appeals majority in League of

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Women Voters examined the issue through the lens of MCR 2.605 and found that in that case the institution of the Legislature had no standing: “Given the definition of ‘actual controversy’ for the purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to pursue a declaratory action here. No declaratory judgement is necessary to guide the Legislature’s future conduct in order to preserve its legal rights.” Id., slip op at p. 7.
League of Women Voters was the first examination of the issue of institutional standing in Michigan. For that reason, the court focused on the logic of the Supreme Court’s decision in Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), which analyzed a standing issue in relation to individual legislators. Dodak, like this case, presented a conflict between the executive and legislative branches of state government. That Court, like this one, is mindful that in such instances the issue of legislative standing requires a litigant to overcome “a heavy burden because, courts are reluctant to hear disputes that may interfere with the separation of powers between the branches of government.” League of Women Voters, __ Mich App at __, slip op at p. 8 (citation and quotation marks omitted; cleaned up). There must be a “personal and legally cognizable interest peculiar” to the legislative body, rather than a “generalized grievance that the law is not being followed.” Id. (citations and quotation marks omitted). In Dodak four legislators pressed a case concerning what they asserted was an abrogation of their individual rights as members of the appropriations committees when the State Administrative Board was allowed to redistribute funds allocated by the Legislature between departments of state government. Ultimately the Supreme Court found that the chair of the appropriation committee did in fact have a peculiar and special right and a potential for a personal injury sufficient to acquire standing. In Dodak, 441 Mich at 557, the Supreme Court cited with approval federal authorities holding that an individual legislator “‘only has standing if he alleges a diminution of congressional influence

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which amounts to a complete nullification of his vote, with no recourse in the legislative process.’ Dodak, 441 Mich at 557, quoting Chiles v Thornburgh, 865 F3d 1197, 1207 (CA 11, 1989). In League of Women Voters the institution claimed its right was to have a constitutionally correct interpretation of certain legislation. The League of Women Voters Court found that indeed every citizen had such a right and the Legislature once it enacted a statute had no special relationship to it. League of Women Voters, __ Mich App at __, slip op at p. 8. The case did not, remarked the Court, concern the validity of any particular legislative member’s vote. Id.
While it is a close question, this Court finds that the issue presented in this case is whether the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the Legislature’s decision to decline to extend the states of emergency/disaster. The United States Court of Appeals for the Sixth Circuit recently found that a legislative body under certain circumstances does have standing. See Tennessee General Assembly v United States Dep’t of State, 931 F3d 499 (CA 6, 2019). The logic of their analysis is persuasive and compatible with both Dodak and League of Women Voters. In Tennessee General Assembly, the Sixth Circuit surveyed two cases from the Supreme Court of the United States to illustrate when a legislative body, or portion thereof, may have standing. Id. at 508, citing Coleman v Miller, 307 US 433; 59 S Ct 972; 83 L 3d 1385 (1939); and Ariz State Legislature v Ariz Independent Redistricting Comm, __ US __; 135 S Ct 2652; 192 L Ed 704 (2015). Surveying Coleman and its progeny, the Sixth Circuit explained that, “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” Tennessee General Assembly, 931 F3d at 509 (citation and quotation marks omitted). The Sixth Circuit further noted that Arizona State Legislature Court also conferred standing under article III to a legislature. In

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that case, the legislature claimed that the power to redistrict accrued to them under the Arizona constitution. The challenged action in that case was “more similar to the ‘nullification’ injury in Coleman.” Tennessee General Assembly, 931 F3d at 510, citing Arizona State Legislature, __ US at __; 135 S Ct at 2665. To that end, the proposal at issue would have completely nullified any legislative vote, and there was “a sufficiently concrete injury to the Legislature’s interest in redistricting . . . that the Legislature had Article III standing.” Id., citing Arizona State Legislature, __ US at __; 135 S Ct 2665-2666.
The injury claimed in this case is that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster. The Legislature claims this right is exclusively theirs as an institution under the EMA and this state’s Constitution. Understanding that Lansing Schs Ed Ass’n specifically departed from the Article III analysis of its predecessor cases, the nullification argument is nevertheless not incompatible with the Lansing Schs Ed Ass’n focus on “special injury.” This type of injury sounds similar in the nature of the right that was taken from the one plaintiff who had standing in Dodak, 441 Mich at 559-560, i.e., the member of the House Appropriations Committee who lost his right to approve or disapprove transfers following the Governor’s actions.
In this respect the instant matter is distinguishable from League of Women’s Voters, __ Mich App at __, slip op at 9, where the Court of Appeals remarked that “the validity of any particular legislative member’s vote is not at issue[.]” Plaintiffs have at least a credible argument that they are not merely seeking to have this Court resolve a lost political battle, nor are plaintiffs only generally alleging that the law is not being followed. Cf. id. at 8. Rather, they are alleging that the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole. This is an injury that is unique to the Legislature and it shows a

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substantial interest that was (allegedly) detrimentally affected in a manner different than the citizenry at large. Cf. id. at 7 (discussing standing, generally).
As a final argument on standing, the Governor contends that the Legislature does not need declaratory relief to guide its future actions. She and at least one amicus brief note that the Legislature has in fact moved toward amending the EPGA. At oral argument the Legislature was almost invited to amend either the EMA or EPGA. However, while the legislative body is well aware of its power to enact, amend, and repeal statutes, this Court believes that guidance as to the issues presented in this case will avoid a multiplicity of litigation. The parties here have pled facts of an adverse interest which necessitate the sharpening of the issues raised.
ANALYSIS OF AUTHORITIES CITED IN THE CHALLENGED EXECUTIVE ORDERS
The Executive Orders at issue cite three sources of authority: the EMA, the EPGA, and Const 1963, art 5, § 1. The Court will examine each to determine whether the Governor possessed authority to issue the challenged orders.
ARTICLE 5 OF THE MICHIGAN CONSTITUTION
The challenged orders in this case all contain a brief citation to art 5, § 1. This section of the Michigan Constitution vests “executive power” in the Governor. See Const 1963, art 5, § 1. The Governor invokes this power in claiming authority to issue the challenged Executive Orders. The Legislature has argued that Governor errs in relying on her art 5, § 1 “executive power” to issue orders in response to the pandemic. This court agrees that “Executive power” is merely the “authority exercised by that department of government which is charged with the administration or execution of the laws.” People v Salsbury, 134 Mich 537, 545; 96 NW 936 (1903). In fact, the

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Governor has not claimed in her briefing or at oral argument that she had the authority to enact EO 2020-67 or EO 2020-68 absent an enabling statute. Through two distinct acts, stated in plain and certain terms, the Legislature has granted the Governor broad but focused authority to respond to emergencies that affect the State and its people. The Governor’s challenged actions—declaring states of disaster and emergency during a worldwide public health crisis—are required by the very statutes the Legislature drafted. Thus, the focus of this opinion, is on those two distinct acts, the EMA and EPGA.
THE EPGA AUTHORIZED EO 2020-67 AND SUBSEQUENT ORDERS RELIANT THEREON
The Court will first turn its attention to the EPGA and to plaintiffs’ arguments that the EPGA did not permit the Governor to issue a statewide emergency declaration in EO 2020-67 or any subsequent orders reliant on EO 2020-67. Plaintiffs advance two arguments in support of their position: (1) first, they contend that the EPGA, unlike the EMA, does not grant authority for a statewide declaration of emergency, but instead only confers upon the Governor the authority to issue a local or regional state of emergency; (2) second, plaintiffs argue that if the EPGA does grant authority for a statewide state of emergency, the delegation of legislative authority accomplished by the act is unconstitutional. The Court rejects both of plaintiffs’ contentions regarding the EPGA and concludes that EO 2020-67, and any orders relying thereon, remain valid.
Turning first to the scope of the EPGA, the Court notes that the statute bestows broad authority on the Governor to declare a state of emergency and to take necessary action in connection with that declaration. See MCL 10.31(1). Under the EPGA, 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.” Id.

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The Legislature stated that its intent in enacting MCL 10.32 was to “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” Section 2 of the EPGA continues, declaring that the provisions of the EPGA “shall be broadly construed to effectuate this purpose.” Id.
Reading the EPGA as a whole, as this Court must do, see McCahan v Brennan, 492 Mich 730, 738-739; 822 NW2d 747 (2012), the Court rejects plaintiffs’ attempt to limit the scope of the EPGA to local or regional emergencies only. Informing this decision is the statement of legislative intent in MCL 10.32, which declares that the EPGA was intended to confer “sufficiently broad power” on the Governor in order to enable her to respond to public disaster or crisis. It would be inconsistent with this intent to find that “sufficiently broad power” to respond to matters of great public crisis is constrained by contrived geographic limitations, as plaintiffs suggest. The Court also notes that this “sufficiently broad” power granted by the Legislature references “the police power of the state[.]” MCL 10.32. In general, the police power of the state refers to the state’s inherent power to “enact regulations to promote the public health, safety, and welfare” of the citizenry at large. See Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d 1 (1985). It cannot be overlooked that the police power of the state, which undeniably pertains to the state as a whole, see, e.g., Western Mich Univ Bd of Control v State, 455 Mich 531, 536; 565 NW2d 828 (1997), was given to a state official, the Governor, who possesses the executive power of the entire state. See Const 1963, art 5, § 1. Plaintiffs’ attempts to read localized restrictions on broad, statewide authority given to this state’s highest executive official are unconvincing.
The Act has a much broader application than plaintiffs suggest. The Act repeatedly uses terms such as “great public crisis,” “public emergency,” “public crisis,” “public disaster,” and

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“public safety” when referring to the types of events that can give rise to an emergency declaration. See MCL 10.31(1); MCL 10.32. These are not terms that suggest local or regional-only authority. See Black’s Law Dictionary (11th ed) (defining public safety). See also Merriam-Webster Online Dictionary, <https://www.merriam-webster.com/dictionary/public> (accessed May 11, 2020) (defining “public” to mean “of, relating to, or affecting all the people of the whole area of a nation or state”) (emphasis added). Taking these broad terms and imposing limits on them as plaintiffs suggest would run contrary to MCL 10.32’s directive to broadly construe the authority granted to the Governor under the EPGA. See Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010) (explaining that it is “well established that to discern the Legislature’s intent, statutory provisions are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read as a whole.”). And in this context, it is apparent the EPGA employs broad terminology that empowers the Governor to act for the best interests of all the citizens of this state, not just the citizens of a particular county or region. It would take a particularly strained reading of the plain text of the EPGA to conclude that a grant of authority to deal with a public crisis that affects all the people of this state would somehow be constrained to a certain locality. Moreover, adopting plaintiffs’ view would require the insertion into the EPGA of artificial barriers on the Governor’s authority to act which are not apparent from the text’s plain language. To that end, even plaintiffs would surely not quibble that the broad authority bestowed on the Governor under the act would permit her to respond to an emergency situation that affected one county, or perhaps even multiple counties. Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA because, according to plaintiffs, rendering emergency assistance to the state’s entire citizenry is not an option under the EPGA. While plaintiffs generally contend there

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are localized or regionalized limitations on the Governor’s authority under the EPGA, they do not explain how to demarcate the precise geographic limitations on the Governor’s authority under the EPGA—and this is for good reason: there are no such limitations.
In arguing for a contrary interpretation of the scope of the Governor’s authority under the EPGA, plaintiffs selectively rely on parts of the statute and ignore the contextual whole. For instance, they focus on the notion that a city or county official may apply for an emergency declaration in order to support their assertion that the EPGA only applies to local or regional emergency declarations. In doing so, plaintiffs ignore that the same sentence permitting local officials to apply for an emergency declaration also authorizes two state officials—one of whom is the Governor herself—to apply for or make an emergency declaration. See MCL 10.31(1). Equally unpersuasive is plaintiffs’ fixation on the word “within” as it appears in MCL 10.31(1). Plaintiffs note that MCL 10.31(1) permits the Governor to declare a state of emergency in response to “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state” (emphasis added). According to plaintiffs, the use of the word “within” means that an emergency can only be declared at a particular location within the state, and precludes the state of emergency from being declared for the entire state. However, a common understanding of the word “within,” including the same definition plaintiffs cite, demonstrates the flaw in plaintiffs’ position. The word “within” is generally used “as a function word to indicate enclosure or containment.” Merriam-Webster’s Online Dictionary, <https://www.merriam-webster.com/dictionary/within> (accessed May 20, 2020). For instance, it can refer to “the scope or sphere of” something, such as referring to that which is “within the jurisdiction of the state.” Id. In other words, the term “within” refers to the jurisdictional bounds of the state. The authority to declare an emergency “within” the state is, quite simply, the authority to declare an emergency across the entire state.

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Plaintiffs next argue that, when the EPGA is read together with the EMA, it is apparent that the EPGA is not meant to address matters of statewide concern. In general, both the EPGA and the EMA grant the Governor power to act during times of emergency. “Statutory provisions that relate to the same subject are in pari materia and should be construed harmoniously to avoid conflict.” Kazor v Dep’t of Licensing & Regulatory Affairs, 327 Mich App 420, 427; 934 NW2d 54 (2019). “The object of the in pari materia rule is to give effect to the legislative intent expressed in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that construction should control.” In re AGD, 327 Mich App 332, 344; 933 NW2d 751 (2019) (citation and quotation marks omitted).
Here, when the EMA and the EPGA are read together, it is apparent that there is no conflict between the two acts even though they address similar subjects. While plaintiffs are correct in their assertion that the EMA contains more sophisticated management tools, that does not mean that the EPGA is limited to local and regional emergencies only. Nor does the fact that both statues apply to statewide emergencies mean that one act renders the other nugatory. Instead, the Court can harmonize the two statutes, see In re AGD, 327 Mich App at 344, by recognizing that while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal. The use of these enhanced features comes at some cost, however, because the EMA is subject to the 28-day time limit contained in MCL 30.405(3)-(4), whereas an emergency declaration under the less sophisticated EPGA has no end date. Finally, plaintiffs’ contentions regarding a conflict between the EMA and the EPGA are belied by MCL 30.417. That section of the EMA expressly states that nothing in the EMA was intended to “Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of

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the Michigan Compiled Laws . . . .” MCL 30.417(d). In other words, the EMA explicitly recognizes the EPGA and it recognizes that the Governor possesses similar, but different, authority under the EPGA than she does under the EMA.
Plaintiffs’ final attempt to assert that the EPGA was intended as a local or regional act is to point to what they describe as the history of the EPGA. In general, the legislative history of an act and the historical context of a statute can be considered by a court in ascertaining legislative intent; however, these sources are generally considered to have little persuasive value. See, e.g., In re AGD, 327 Mich App 342 (generally rejecting legislative history as “a feeble indicator of legislative intent and . . . therefore a generally unpersuasive tool of statutory construction”) (citation and quotation marks omitted). Here, the history cited by plaintiffs is particularly unpersuasive because, having reviewed the same, the Court concludes that it does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA. Nor have plaintiffs directed the Court’s attention to a particular piece of history that expressly supports their claim; they instead rely on mere generalities and anecdotal commentary. Finally, the EPGA presents no ambiguity requiring explanation through extrinsic historical commentary.
In an alternative argument, plaintiffs argue that, assuming the Governor’s ability to act under the EPGA gives her statewide authority, the executive orders issued pursuant to the EPGA are nevertheless invalid. According to plaintiffs, the Governor’s exercise of lawmaking authority under the orders runs afoul of separation of powers principles.
Plaintiffs’ constitutional challenge to the EPGA fares no better than their attempt to limit the Act’s scope. This Court must, when weighing this constitutional challenge to the EPGA, remain mindful that a statute must be presumed constitutional, “unless its constitutionality is

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readily apparent.” Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 59; 669 NW2d 845 (2003) (citation and quotation marks omitted). Indeed, “[t]he power to declare a law unconstitutional should be exercised with extreme caution and never where serious doubt exists with regard to the conflict.” Council of Orgs & Others for Ed About Parochiaid, Inc v Governor, 455 Mich 557, 570; 566 NW2d 208 (1997).
Const 1963, art 3, § 2 declares that “[t]he powers of government are divided into three branches: legislative, executive and judicial.” The Constitution dictates that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Id. The issue in this case concerns what plaintiffs have alleged is an unconstitutional delegation of legislative power to the Governor. While the Legislature cannot delegate its legislative power to the executive branch of government, the prohibition against delegation does not prevent the Legislature “from obtaining the assistance of the coordinate branches.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003) (citation and quotation marks omitted). As explained by our Supreme Court, “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).
In general, the Supreme Court has recognized three “guiding principles” to be applied in non-delegation cases:
First, the act in question must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act. Second, the standard should be as reasonably precise as the subject matter requires or permits. The preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation. The various and varying detail associated with managing the natural resources has led to

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recognition by the courts that it is impractical for the Legislature to provide specific regulations and that this function must be performed by the designated administrative officials. Third, if possible the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority. [State Conservation Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976) (internal citations and quotation marks omitted).] Any discussion of plaintiffs’ non-delegation issue must acknowledge that the policy goals and the complexity of issues presented under the EPGA do not concern ordinary, everyday issues. Rather, as the title of the act and its various provisions reflect, the EPGA is only invoked in times of emergency and of “great public crisis,” and when “public safety is imperiled[.]” MCL 10.31(1). Hence, while the Governor’s powers are not expanded by crisis, the standard by which this Court must view the standards ascribed to the delegation at issue must be informed by the complexities inherent in an emergency situation. Blue Cross & Blue Shield, 422 Mich at 51; State Conservation Dep’t, 396 Mich at 309.
With that backdrop, and when viewing the EPGA in its entirety, the Court concludes that the Act contains sufficient standards and that it is not an unconstitutional delegation of legislative authority. At the outset, MCL 10.31(1) provides parameters for when an emergency declaration can be made in the first instance. The power to declare an emergency only arises during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” Id. In addition, the statute provides a process for other officials, aside from the Governor, to request or aid in assessing whether an emergency should be declared. See id. (allowing input from “the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police”). Therefore, the EPGA places parameters and limitations on the Governor’s power to declare a state of emergency in the first instance, which weighs against plaintiffs’

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position. Cf. Blue Cross & Blue Shield, 422 Mich at 52-53 (finding an unconstitutional delegation of legislative authority where there were no guidelines provided to direct the pertinent official’s response and where the power of the official was “completely open-ended.”).
Furthermore, the EPGA provides standards on what a Governor can, and cannot, do after making an emergency declaration. As for what she can do, 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) (emphasis added). The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. See, e.g., MCL 500.3107(1)(a) (describing, in the context of personal injury protection insurance, “allowable expenses” that consist of “reasonable” charges incurred for “reasonably necessary products, services and accommodations . . . .”). Thus, the Court rejects any contention that these terms are too ambiguous to provide meaningful standards. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority which permitted an administrative body to continue to employ an individual for such a period of time as was “necessary” provided a sufficient standard, under the circumstances). See also Blank v Dept’ of Corrections, 462 Mich 103, 126; 611 NW2d 530 (2000) (opinion by Kelly, J.) (finding a constitutionally permissible delegation of authority, in part, based on the enabling legislation constrained rulemaking authority to only those matters that were “necessary for the proper administration of this act.”). Finally, in addition to the above standards, the EPGA goes on to expressly list examples of that which a Governor can and cannot do under the EPGA. See MCL

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10.31(1) (providing a non-exhaustive, affirmative list of subjects on which an order may be issued); MCL 10.31(3) (containing an express prohibition on orders affecting lawfully possessed firearms). Accordingly, the EPGA contains some restrictions on the Governor’s authority and it provides standards for the exercise of authority under the Act.3
In sum, the Court concludes that plaintiffs’ challenges to the Governor’s authority to declare a state of emergency under the EPGA and to issue Executive Orders in response to a statewide emergency situation under the EPGA are meritless. Thus, and for the avoidance of doubt, while the Court concludes that the Governor’s actions under the EMA were unwarranted— see discussion below—the Court concludes that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.
EXECUTIVE ORDER 2020-68 WAS NOT AUTHORIZED BY THE EMA
Turning next to the Governor’s orders issued pursuant to the EMA, the Court again notes that the legitimacy of the initial declaration of emergency and disaster, Executive Order No. 202004, is unchallenged in this case. The extension of that declaration under EO 2020-33 is likewise agreed to be a legitimate exercise of gubernatorial power. This court is not asked to review the scope of myriad emergency measures authorized under either declaration. The laser focus of this case is the legitimacy of EO 2020-68, which re-declared a state of emergency and state of disaster under the EMA only one minute after EO 2020-66 cancelled the same. The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees.
3 The Court notes that Judge Kelly reached a similar conclusion, albeit in the context of denying a motion for preliminary injunction, in the case of Mich United for Liberty v Whitmer, Docket No. 20-000061-MZ.

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The EMA allows circumvention of the traditional legislative process only under extraordinary circumstances and for a finite period of time. Enacted in 1976, the EMA grants the Governor sweeping powers to cope with “dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). These powers include the authority to issue executive orders and directives that have the force and effect of law. MCL 30.403(2). The Governor may also, by executive order, “Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL 30.405(1)(a). Additionally, the Governor may issue orders regarding the utilization of resources; may transfer functions of state government; may seize private property—with the payment of “appropriate compensation”—evacuate certain areas; control ingress and egress; and take “all other actions which are which are necessary and appropriate under the circumstances.” See, e.g., MCL 30.405(1)(b)-(j). This power is indeed awesome.
The question presented is whether the Governor could legally, by way of Executive Order 2020-68, declare the exact states of emergency and disaster that she had, only one minute before, terminated. The Legislature answer with an emphatic, “No,” and the Governor offers an equally emphatic, “Yes.”
As with most contracts, the Legislature asserts that time is of the essence in the limits of the extraordinary power afforded the executive under the EMA. The Act is replete with references to timing. MCL 30.403 provides as follows:
The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation

CCase 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1950 Page 23 of 277 21
declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. [MCL 30.403(3) (emphasis added).]
Later the act addresses the duration of a “state of emergency,” and its extension under MCL
30.403(4):
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. [Emphasis added.]
The limitation of 28 days is repeated multiple times. A state of emergency or disaster, once
declared, terminates no later than 28 days after being initially declared. The Governor can
determine that the emergent conditions have been resolved earlier than 28 days. Alternatively, the
Governor may ask the Legislature to extend the emergency powers for a period of up to 28 days
from the issuance of the extension. Nothing in Act precludes legislative extension for multiple
additional 28-day periods. In this case the Governor stated in EO 2020-66 that she expressly
terminated the previously issued states of emergency and disaster—not because the disaster or
emergency condition ceased to exist—but because a period of 28 days had expired. In fact, EO
2020-66, the order that terminated the states of disaster and emergency under the EMA, expressly
acknowledged that the emergency and/or disaster had not subsided and still remained In this
respect, EO 2020-66 complied with MCL 30.403(3) and (4)’s directives that the Governor “shall,”

CCase 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1951 Page 24 of 277 22
after 28 days, “issue an executive order or proclamation declaring” that the state of emergency and/or disaster terminated.
However, the Governor argues that she may continue to exercise emergency powers under the EMA without legislative authorization in this case. She argues that she has a duty and the authority to do so because the Legislature failed to grant her the requested extension despite the fact that the emergent conditions continued to exist.
Neither party to this case denies that the COVID-19 emergency was abated as of April 30. No serious argument has been offered that had the Governor not issued EO 2020-68 that all of the emergency measures authorized by EO-33 would have terminated with the signing of EO 202066 on April 30 even if had the governor not vetoed SB 858, which purported to embody several of the expiring Executive Orders and which would not have been effective until 90 days later because the Legislature did not give that bill immediate effect. The Governor asserts she had a duty to act to address the void. She argues that MCL 30.403(3) and (4) compelled her, upon the termination of the states of emergency and disaster accomplished by way of time, to declare anew both states of emergency and disaster within minutes. The Governor makes this argument by emphasizing language in MCL 30.403(3) and (4) stating that, if the Governor finds that a disaster or emergency occurs, then she “shall” issue orders declaring states of emergency or disaster. Thus, argues the Governor, when the 28-day emergency and disaster declarations ended, but the disaster and emergency conditions remained, the Governor was compelled, irrespective of legislative approval, to re-declare states of emergency and disaster.
The EMA does not prohibit a governor from declaring multiple emergencies or disasters during a term of office or even more than on disaster at the same time. Indeed, the collapse of the

CCase 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1952 Page 25 of 277 23
dam at the Tittabawassee River sparked the issuance of a separate state of emergency and disaster during of this lawsuit. Clearly the collapse of the dam and the subsequent flooding was a new and different circumstance from the COVID-19 pandemic. Returning to the instant case, it could also be argued that the very fact that the Legislature had neither authorized the extension of the emergency powers of the Governor under the EMA nor put in place measures to address the emergent situation was itself a new emergency justifying gubernatorial action. However, the “new” circumstance was occasioned not by a mutation of the disease into something such as “COVID-20,” a precipitous spike in infection, or any other factor, except the Legislature’s failure to grant an extension.
Thus, while the Governor emphasizes the directive that she “shall” declares states of emergency and disaster, the Court concludes that the Governor takes these directives out of context and renders meaningless the legislative extension set forth in MCL 30.403(3) and (4). The Governor’s position ignores the other crucial “shall” in the statute. “After 28 days, the governor shall issue an executive order or proclamation declaring the state of” disaster or emergency terminated, “unless a request by the governor for an extension of the state of” disaster or emergency “for a specific number of days is approved by resolution of both houses of the legislature.” See MCL 30.403(3) (as to disasters); MCL 30.403(4) (as to emergencies). The language employed here is mandatory: The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it. See Smitter v Thornapple Twp., 494 Mich 121, 136; 833 NW2d 785 (2013) (explaining that the term “shall” denotes a mandatory directive). Stated otherwise, at the end of 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate”

CCase 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1953 Page 26 of 277 24
language is an affirmative grant of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. Nor does the statute permit the Governor to simply extend the same state of disaster and/or emergency that was otherwise due to expire. To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language. Whatever the merits of that might be as a matter of policy, that position conflicts with the plain statutory language. The Governor’s attempt to read MCL 30.403(2) as providing an additional, independent source of authority to issue sweeping orders would essentially render meaningless MCL 30.405(1)’s directive that such orders only issue upon an emergency declaration. It would also read into MCL 30.403(2) broad authority not expressed in the subsection’s plain language. See Robinson, 486 Mich at 21 (explaining that, when it interprets a statute, a reviewing court must “avoid a construction that would render part of the statute surplusage or nugatory”) (citation and quotation marks omitted). See also United States Fidelity & Guarantee Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009) (“As far as possible, effect should be given to every phrase, clause, and word in the statute.”). The Court is not free to “pick and choose what parts of a statute to enforce,” see Sau-Tuk Indus, Inc v Allegan Co, 316 Mich App 122, 143; 892 NW2d 33 (2016), yet that is precisely what the Governor’s position has asked the Court to do. The language of MCL 30.403(3) and (4) requiring legislative approval of an emergency or disaster declaration should not so easily be cast aside.
Finally, and contrary to the Governor’s argument, the 28-day limit in the EMA does not amount to an impermissible legislative veto. See Blank v Dept’ of Corrections, 462 Mich 103, 113-114; 611 NW2d 530 (2000) (opinion by KELLY, J.) (declaring that, once the Legislature delegates authority, it does not have the right to retain veto authority over the actions of the

CCase 1:20-cv-00414-PLM-PJG ECF No. 35-14 filed 06/05/20 PageID.1954 Page 27 of 277 25
executive). The Governor’s characterization of the 28-day limit as a legislative veto is not accurate. The 28-day limit is not legislative oversight or a “veto” of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated. That is, the Governor is afforded with broad authority under the EMA to make rules and to issue orders; however, that authority is subject to a time limit imposed by the Legislature. The Legislature has not “vetoed” or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.
CONCLUSION
IT IS HEREBY ORDERED that the relief requested in plaintiffs’ motion for immediate declaratory judgment is DENIED. While the Governor’s action of re-declaring the same emergency violated the provisions of the EMA, plaintiffs’ challenges to the EPGA and the Governor’s authority to issue Executive Orders thereunder are meritless.
This order resolves the last pending claim and closes the case.

Dated: May 21, 2020

________________________________ Cynthia Diane Stephens, Judge Court of Claims

Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1955 Page 1 of 11

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1956 Page 2 of 11

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit M

Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1957 Page 3 of 11
STATE OF MICHIGAN COURT OF CLAIMS

MICHIGAN UNITED FOR LIBERTY, Plaintiff,

OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

v
GOVERNOR GRETCHEN WHITMER,
Defendant. ___________________________/

Case No. 20-000061-MZ Hon. Michael J. Kelly

Pending before the Court is plaintiff’s motion for preliminary injunction.1 For the reasons that follow, the motion is DENIED.

I.

BACKGROUND

Plaintiff’s complaint and motion for preliminary injunction challenge the authority of

defendant Governor Gretchen Whitmer to issue executive orders in response to the COVID-19

pandemic. Defendant cited two acts, the Emergency Management Act (EMA), MCL 30.401 et

seq.; and the Emergency Powers of Governor Act (EPGA), MCL 10.31 et seq. when issuing the

orders at the heart of this case. At this juncture, the facts underlying the complaint are well known

to the parties and their recitation in this opinion would serve no meaningful purpose. The Court

will instead constrain its time and attention to the legal issues presented in plaintiff’s pleadings

1 The Court notes and appreciates the parties’ compliance with the expedited briefing schedule ordered in this case.
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1958 Page 4 of 11
and briefing. Distilled to the most basic level, plaintiff is asserting that the EMA and the EPGA are unconstitutional because they represent an impermissible delegation of legislative authority to the Governor. Plaintiff has asked the Court to issue a preliminary injunction enjoining defendant from enforcing and issuing any orders under the EMA or EPGA.
II. ANALYSIS Injunctive relief “represents an extraordinary and drastic use of judicial power that should be employed sparingly and only with full conviction of its urgent necessity.” Davis v Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d 896 (2012) (citation and quotation marks omitted). The Court utilizes four factors in determining whether to issue this extraordinary remedy:
(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. [Id. (citation and quotation marks omitted).] A. PLAINTIFF HAS NOT DEMONSTRATED A LIKELIHOOD OF SUCCESS ON THE
MERITS Turning first to the likelihood of success on the merits, the Court begins by noting that plaintiff asserts facial challenges to the validity of the EMA and the EPGA. This type of challenge presents significant obstacles a litigant must overcome in order to succeed. Initially, statutes are presumed to be constitutional, and a court has a “duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Oakland Co v State, 325 Mich App 247, 260; 926 NW2d 11 (2018). A court must “exercise the power to declare a law unconstitutional with extreme caution,” and the court must not exercise that power if serious doubt exists as to the alleged constitutional invalidity. Id. (citation omitted). Instead, “[e]very reasonable presumption or
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intendment must be indulged in favor of the validity of an act, and it is only when invalidity appears so clearly as to leave no room for reasonable doubt that it violates some provision of the Constitution that a court will refuse to sustain its validity.” Id. (citation and quotation marks omitted).
Moreover, plaintiff’s facial challenge to the constitutionality of the statutes at issue requires a particularly difficult showing. A facial challenge considers the plain language of the statute at issue and it involves a “claim that the law is invalid in toto—and therefore incapable of any valid application.” League of Women Voters of Mich v Secretary of State, __ Mich App __, __; __ NW2d __ (Docket Nos. 350938; 351073), slip op at p. 10 (citation and quotation marks omitted). “To make a successful facial challenge to the constitutionality of a statute, the challenger must establish that no set of circumstances exists under which the act would be valid.” Oakland Co, 325 Mich App at 260 (citation and quotation marks omitted).
Here, in order for plaintiff to demonstrate a likelihood of success on the merits of the claims asserted in its briefing, it must demonstrate that the challenged statutes contain constitutionally infirm delegations of legislative authority to the Governor. In general, the principle of separation of powers, see Const 1963, art 3, § 2, precludes the legislative branch from delegating its lawmaking authority to the executive or judicial branches of government, Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127 (2003). However, the separation of powers does not preclude this state’s Legislature from “obtaining the assistance of the coordinate [b]ranches.” Id. at 8-9, quoting Mistretta v United States, 488 US 361, 371; 109 S Ct 647; 102 L Ed 2d 714 (1989). Caselaw counsels that “when properly prescribed standards exist, the Legislature has not abdicated its law-making or legislative power because the agency to which the power is delegated is limited in its action by the Legislature’s prescribed will; it cannot follow its own
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1960 Page 6 of 11
uncircumscribed will.” Westervelt v Nat Resources Comm, 402 Mich 412, 441; 263 NW2d 564 (1978) (opinion by WILLIAMS, J.) (quotation marks omitted). In Taylor, the Supreme Court remarked that, historically, these types of challenges “have been uniformly unsuccessful” across federal and state jurisprudence. Taylor, 468 Mich at 9.
In order to determine whether the challenged statutes at issue in this case contain sufficient standards to survive a constitutional challenge, the Court’s analysis must be guided by the following criteria:
1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits. The preciseness required of the standards will depend on the complexity of the subject. [Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).] The Court will first address plaintiff’s challenges to the EMA, which makes the Governor “responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). The Act permits the Governor to issue orders to implement the act and it empowers her to issue emergency and disaster declarations. MCL 30.403(3)-(4). That authority is not unchecked, however, as the statute sets forth definitions for “emergency,” and “disaster” that provide some measure of guidance for the Governor’s use of authority under the Act. See MCL 30.402(e); MCL 30.402(h). Furthermore, the EMA goes on to describe the authority and duties of the Governor under the Act, with MCL 30.405(1)(a)-(j) detailing ten subjects (nine particular subjects and one catch-all provision) on which the Governor can issue orders under the Act. Those orders can only be issued “upon the declaration of a state of disaster or a state of emergency . . . .” MCL 30.405(1).
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1961 Page 7 of 11
When viewing the statute as a whole and considering the complexity of the subject sought to be addressed, plaintiff cannot demonstrate a substantial likelihood of success on the assertion that the EMA is an unconstitutional, standard-less delegation of legislative authority to the Governor. See Blue Cross & Blue Shield, 422 Mich at 51. At the outset, the Court’s analysis on this issue must be informed by the notion that the EMA’s very purpose is to permit the Governor to deal with a highly complex emergency or disaster situation. Caselaw cautions that the more difficult a particular subject-matter is to regulate, the more impractical it is for the Legislature to provide specific, exacting standards for the delegation of authority. State Conservation Dep’t, 396 Mich at 309. Thus, generalized standards can be appropriate. Id. And here, the Court concludes that the parameters and standards set forth in the EMA, at least at this stage, are of the type that pass constitutional muster. The EMA is not an unfettered, unchecked grant of power to the Governor. Rather, the statute specifies that the Governor, in emergency or disaster situations, is to be given certain, defined authority. The fact that this authority is limited to statutorily defined “emergencies” or “disasters” provides some measure of standards. Additionally, the Legislature imposed regulations on the subject-matter to be reached by the Governor’s orders, as well as with respect to the duration of the orders. See MCL 30.405(1) (prescribing the subject-matter that can be regulated by way of executive order); MCL 30.405(3)-(4) (placing a 28-day limit on certain orders issued by the Governor). The Legislature also implemented a method by which the Governor can work with the Legislature after a certain period of time. See MCL 30.403(3)-(4). In sum, while the Court acknowledges that the authority granted under the EMA is undoubtedly broad in some respects, the grant of authority does not sound in the nature of statutes that have run afoul of the non-delegation doctrine. Cf. Blue Cross & Blue Shield, 441 Mich at 55 (finding an impermissible delegation of authority where the statute contained a “lack of standards defining
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1962 Page 8 of 11
and directing” the delegated authority). A plain reading of the EMA does not support the notion that the statute contains the kind of “uncontrolled, arbitrary power” that our Supreme Court has cautioned against in non-delegation cases. See State Conservation Dep’t, 396 Mich at 308-309.2
Plaintiff’s ability to succeed on its challenge to the delegation of authority contained in the EPGA is no less dubious. While the EPGA is a much less detailed act than its subsequently enacted counterpart, it nonetheless sets some standards for the Governor’s exercise of authority. The authority exercised by the Governor under the EPGA can only be invoked if public safety is or will be imperiled. MCL 10.31(1) makes clear that authority under the Act is only bestowed on the Governor. “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” The statute continues by describing that any rules or regulations imposed by the Governor must be “reasonable” and “necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). The Court concludes that the terms “reasonable” and “necessary” carry more significance than plaintiff assigns to them, particularly when they are read in light of the statute’s goals of protecting life and property and combating an emergency or disaster scenario. See Klammer v Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of authority that empowered the decisionmaker to take action that was deemed “necessary” in response to a particular situation was a sufficiently precise standard in the context of the statute at issue). Moreover, when scanning the EPGA for additional criteria, the Court notes
2 The Court notes that Judge Murray reached a similar decision when denying injunctive relief in the case of Martinko v Whitmer, Docket No. 20-00062-MM (issued April 29, 2020).
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1963 Page 9 of 11
that the statute contains a list of subjects over which the Legislature granted the Governor authority, as well as one area where the Legislature expressly stated that the Governor was not permitted to act. See MCL 10.31(1) & (3) (permitting the Governor to control matters such as traffic, transportation, places of amusement and assembly, and to establish curfews, but expressly declaring that the Governor cannot seize, take, or confiscate lawfully possessed firearms or other weapons). Finally, the Act specifies that the Governor is to exercise the state’s police power in order “to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32. The Court concludes at this stage of the litigation that the phrase, “adequate control,” and the reference to that control lasting only for periods of public crisis or disaster guides the Governor’s exercise of authority. Hence, the plain language of the act, contrary to plaintiff’s contentions, describes standards and limitations on the Governor’s exercise of authority under the EPGA. While the level of authority conferred upon the Governor may be broad—and at times frustrating in practice—it does not appear on plaintiff’s motion to be the type that would warrant relief under the non-delegation doctrine.
Furthermore, in evaluating the EPGA, just as it did when evaluating the EMA, the Court must remain cognizant that the situation sought to be controlled by the EPGA is an unpredictable, dangerous emergency or disaster situation. A disaster or emergency is almost assuredly a dynamic, unpredictable situation fraught with complexity. It is unreasonable to expect a demanding or precise set of legislative standards be incorporated into the EPGA in order to deal with such a demanding scenario. See State Conservation Dep’t, 396 Mich at 309 (explaining that “[t]he preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.”).
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CCase 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1964 Page 10 of 111
B. PLAINTIFF’S ALLEGED IRREPARABLE HARM FALLS SHORT AS WELL Although the above analysis in and of itself would cause the Court to deny injunctive relief, the Court finds plaintiff’s assertion of irreparable harm falls short of that which is required to demonstrate entitlement to preliminary injunctive relief. A “particularized showing of irreparable harm . . . is . . . an indispensable requirement to obtain a preliminary injunction.” Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich 1, 9; 753 NW2d 595 (2008) (citation and quotation marks omitted). The harm must be particularized; a “generalized argument that a constitutional violation would result in harm is insufficient because it is not particularized.” Hammel v Speaker of House of Representatives, 297 Mich App 641, 652; 825 NW2d 616 (2012). The problem in the instant case is that plaintiff has only generally asserted the harm it allegedly suffered by generically alleging constitutional violations. Plaintiff has not articulated particularized, individual harm. Furthermore, caselaw again cautions that, in the absence of bad faith on the part of a public body— which has not been alleged in this case—“there is no real and imminent danger of irreparable injury requiring issuance of an injunction.” Davis, 296 Mich App at 621. Plaintiff’s failure to assert a particularized irreparable injury in the absence of injunctive relief represents an independent reason to deny the motion for preliminary injunction.
III. CONCLUSION Both the EMA and the EPGA confer broad authority upon the office of the Governor. History will determine whether the Governor is judiciously exercising this authority in response to the COVID-19 pandemic. But, for the reasons stated herein:
IT IS HEREBY ORDERED that plaintiff’s motion for preliminary injunction is DENIED.
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CCase 1:20-cv-00414-PLM-PJG ECF No. 35-15 filed 06/05/20 PageID.1965 Page 11 of 111 This is not a final order and it does not resolve the last pending claim or close the case.

May 19, 2020

____________________________________ Michael J. Kelly Judge, Court of Claims

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Case 1:20-cv-00414-PLM-PJG ECF No. 35-16 filed 06/05/20 PageID.1966 Page 1 of 69

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

Case 1:20-cv-00414-PLM-PJG ECF No. 35-16 filed 06/05/20 PageID.1967 Page 2 of 69

Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit N

2

Case 1:20-cv-00414-PLM-PJG ECF No. 35-16 filed 06/05/20 PageID.1968 Page 3 of 69

RECEIVED by MSC 5/29/2020 2:04:04 PM

STATE OF MICHIGAN IN THE SUPREME COURT

MICHIGAN HOUSE OF REPRESENTATIVES and MICHIGAN SENATE,

Supreme Court No. 161377 Court of Appeals No. 353655

Plaintiffs-Appellants/ Cross-Appellees,
v
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan,

Court of Claims No. 20-79-MZ
The appeal involves a ruling that a provision of the Constitution, a statute, rule or regulation, or other State governmental action is invalid.

Defendant-Appellee/ Cross-Appellant.
/

GOVERNOR GRETCHEN WHITMER’S EMERGENCY BYPASS APPLICATION FOR LEAVE TO APPEAL AND
BRIEF IN RESPONSE TO PLAINTIFFS’ EMERGENCY BYPASS APPLICATION FOR LEAVE TO APPEAL

ORAL ARGUMENT REQUESTED

B. Eric Restuccia Deputy Solicitor General

Dated: May 29, 2020

Christopher M. Allen (P75329) Assistant Solicitor General Joseph T. Froehlich (P71887) Joshua Booth (P53847) John Fedynsky (P65232) Assistant Attorneys General Michigan Dep’t of Attorney General Attorney for Defendant-Appellee/ Cross-Appellant P.O. Box 30212, Lansing, MI 48909 (517) 335-7628

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TABLE OF CONTENTS Page
Index of Authorities ...................................................................................................... iv Statement of Jurisdiction ............................................................................................. ix Statement of Questions Presented................................................................................ x Constitutional Provisions and Statutes Involved....................................................... xii
Constitutional Provisions ................................................................................. xii Pertinent Provisions of the Emergency Powers of the Governor Act ............ xiii Pertinent Provisions of the Emergency Management Act ............................. xiv Introduction ................................................................................................................... 1 Statement of Facts and Proceedings............................................................................. 5 Standard of Review...................................................................................................... 13 Argument ..................................................................................................................... 13 I. The Legislative Plaintiffs lack standing. ......................................................... 13 A. The Legislative Plaintiffs lack standing because they have no
special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large. ................................................................................... 14 B. The Legislative Plaintiffs cannot meet their obligation to show that an actual controversy exists under MCR 2.605. ........................... 17 II. The Governor has the authority under the EPGA to declare a state of emergency and to issue orders to protect the health and safety of the State and its people........................................................................................... 20 A. The State is generally granted broad latitude to respond to public health crises................................................................................. 20 B. Consistent with the proper exercise of police power, the Legislature enacted the EPGA. ............................................................. 21
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1. The EPGA’s broad, but not unlimited, grant of authority supports the Governor’s declared state of emergency................ 21
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and their heavy reliance on the alleged history of the act is misplaced.................................................................................. 23
III. The EPGA contains standards that guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore survives a non-delegation challenge. ................... 29
A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given. ................................................................... 29
B. The Legislature is not best equipped to address the exigencies of an emergency. ......................................................................................... 33
IV. In the EMA, the Legislature requires the Governor declare a state of emergency and disaster if she finds certain conditions exist. ......................... 34
A. The EMA sets out a statutory game-plan for state and local emergency response, and it grants the Governor broad powers and duties to “cop[e] with dangers to the state or its people.” ............. 35
B. If the conditions warrant it, the Governor has a duty under the EMA to declare states of emergency and disaster which actuates certain emergency response mechanisms. ............................................ 36
C. Pursuant to the EMA’s mandates, the Governor terminated her earlier declarations and issued new ones because there was an undisputed “disaster” and “emergency” in Michigan............................ 39
D. The construction of the Court of Claims and the Legislative Plaintiffs adds limitations on the Governor’s authority that the Legislature did not impose..................................................................... 40
E. The Legislative Plaintiffs’ responsive arguments do not fully account for the language of the act........................................................ 43
1. No piece of the EMA is invalidated or rendered nugatory......... 43
2. The Governor’s construction does not yield absurd results. ...... 45
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Conclusion and Relief Requested ................................................................................ 50
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INDEX OF AUTHORITIES

Page

Cases
Allstate Ins Co v Hayes, 442 Mich 56 (1993) ................................................................................................... 14
Argo Oil Corp v Atwood, 274 Mich 47 (1935) ................................................................................................... 30
Ariz State Legislature v Ariz Independent Redistricting Comm, 135 S Ct 2652 (2015) .......................................................................................... 14, 15
Assoc Builders & Contractors v Dep’t of Consumer & Indus Servs Director, 472 Mich 117 (2005) ................................................................................................. 18
Blank v Department of Corrections, 462 Mich 103 (2000) ........................................................................................... 46, 47
Blue Cross & Blue Shield of Michigan v Milliken, 422 Mich 1 (1985) ..................................................................................................... 32
City of South Haven v Van Buren Cty Bd of Comm’rs, 478 Mich 518 (2007) ................................................................................................. 18
DNR v Seaman, 396 Mich 299 (1976) ................................................................................................. 33
Dodak v State Admin Bd, 441 Mich 547 (1993) ................................................................................................. 14
G.F. Redmond & Co v Michigan Sec Comm’n, 222 Mich 1 (1923) ..................................................................................................... 31
Harsha v City of Detroit, 261 Mich 586 (1933) ................................................................................................. 30
In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109 (2003) ................................................................................................. 27
INS v Chadha, 462 US 919 (1983) .............................................................................................. 47, 49

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Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905) ................................................................................................ 20, 21
Johnson v Recca, 492 Mich 169 (2012) ................................................................................................. 45
Judicial Attorneys Ass’n v Mich, 459 Mich 291 (1998) ................................................................................................. 29
Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349 (2010) ........................................................................................... 14, 18
League of Women Voters of Michigan v Secy of State, ___ Mich App ___, ____ (Docket No. 350938), slip op at *6, app for lv pending 938 NW2d 244 (Mich 2020) ..................................................... 14, 15, 17, 19
Mich Dept of Transp v Tomkins, 481 Mich 184 (2008) ................................................................................................. 13
Neal v Wilkes, 470 Mich 661 (2004) ................................................................................................. 26
People ex rel Johnson v Coffey, 237 Mich 591 (1927) ........................................................................................... 42, 44
People v Anderson, ___ Mich App ___ (2019) (No. 343272)..................................................................... 27
People v Harris, 499 Mich 332 (2016) ................................................................................................. 44
Sauder v Dist Bd of Sch Dist No 10, Royal Oak Tp, Oakland Co, 271 Mich 413 (1935) ................................................................................................. 38
SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65 (2017) ................................................................................................... 27
Shavers v Attorney General, 402 Mich 554 (1978) ................................................................................................. 18
Smith v Behrendt, 278 Mich 91 (1936) ................................................................................................... 31
Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728 (1982) ................................................................................................. 29
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Southfield Tp v Main, 357 Mich 59 (1959) ................................................................................................... 38
State Bd of Ed v Houghton Lake Cmty Sch, 430 Mich 658 (1988) ................................................................................................. 38
Straus v Governor, 459 Mich 526 (1999) ........................................................................................... 42, 44
Taylor v Smithkline Beecham Corp, 468 Mich 1 (2003) ..................................................................................................... 30
Tennessee General Assembly v US Dep’t of State, 931 F3d 499 (CA 6, 2019)................................................................................... 14, 16
Westervelt v Natural Resources Comm, 402 Mich 412 (1978) ..................................................................................... 30, 31, 32
Statutes MCL 10.31 ............................................................................................................. xiii, 26 MCL 10.31 et seq ................................................................................................. passim MCL 10.31(1) ....................................................................................................... passim MCL 10.31(2) ......................................................................................................... 22, 28 MCL 10.32 ............................................................................................................ passim MCL 30.401 et seq ............................................................................................... passim MCL 30.402(e)....................................................................................................... xiv, 37 MCL 30.402(h) ...................................................................................................... xiv, 37 MCL 30.402(j) .............................................................................................................. 25 MCL 30.402(p) .......................................................................................... xiv, 37, 38, 46 MCL 30.402(q) ...................................................................................................... xiv, 46 MCL 30.403 ................................................................................................................. xiv MCL 30.403(1) ............................................................................................................. 35 MCL 30.403(2) ............................................................................................................. 35
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MCL 30.403(3) ..................................................................................................... passim MCL 30.403(4) ..................................................................................................... passim MCL 30.404(1) ............................................................................................................. 36 MCL 30.404(2) ............................................................................................................. 36 MCL 30.405(1)(a) ......................................................................................................... 37 MCL 30.405(1)(d) ......................................................................................................... 37 MCL 30.405(1)(g) ......................................................................................................... 37 MCL 30.405(1)(j) .......................................................................................................... 37 MCL 30.408 .................................................................................................................. 35 MCL 30.408(1) ............................................................................................................. 36 MCL 30.409 .................................................................................................................. 35 MCL 30.410 .................................................................................................................. 35 MCL 30.410(1)(b) ................................................................................................... 25, 35 MCL 30.414(1) ............................................................................................................. 25 MCL 30.414(3) ............................................................................................................. 35 MCL 30.417 ................................................................................................................. xvi MCL 30.417(d) ................................................................................................. 11, 28, 36 Other Authorities 2020 SCR 24 ................................................................................................................... 8 Executive Order 2020-20 ............................................................................................... 7 Executive Order 2020-21 ............................................................................................... 7 Executive Order 2020-33 ................................................................................... 8, 10, 39 Executive Order 2020-4 ................................................................................................. 6 Executive Order 2020-42 ............................................................................................... 7
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Executive Order 2020-5 ................................................................................................. 7 Executive Order 2020-66 ..................................................................................... passim Executive Order 2020-67 ........................................................................... 10, 11, 13, 50 Executive Order 2020-68 ..................................................................................... passim Executive Order 2020-9 ................................................................................................. 7 Webster’s Third New International Dictionary (1993) ............................................... 25 Rules MCR 2.605.............................................................................................................. 14, 17 MCR 7.305(B)(1) ............................................................................................................ 4 MCR 7.305(B)(2) ....................................................................................................... ix, 4 MCR 7.305(B)(3) ............................................................................................................ 4 MCR 7.305(B)(4)(a) ........................................................................................................ 4 MCR 7.305(B)(4)(b) ........................................................................................................ 4 Constitutional Provisions Const 1963, art 3, § 1 ................................................................................................... 29 Const 1963, art 4, § 14 ................................................................................................. 34 Const 1963, art 4, § 26 ..................................................................................... xii, 19, 33 Const 1963, art 4, § 33 ........................................................................................... xii, 19 Const 1963, art 5, § 1 ........................................................................................... passim Const 1963, art 5, § 8 ................................................................................................... 15
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STATEMENT OF JURISDICTION The Michigan House of Representatives and Michigan Senate (Legislative Plaintiffs) sought an immediate declaratory judgment that Governor Whitmer exceeded her authority under the Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA) during the COVID-19 pandemic. MCL 10.31 et seq; MCL 30.401 et seq. The Court of Claims issued an opinion denying Plaintiffs’ request for declaratory relief and entered a final order. (5/21/20 Ct of Claims Op and Order, p 25.) In its opinion, the Court of Claims found that the Governor’s declaration pf emergency and accompanying executive orders constituted a valid exercise of her authority under the EPGA. (Id. at 2.) The Court of Claims also determined that the Legislative Plaintiffs have standing in this case (id. at 4–9), and that the Governor acted outside of her authority when issuing Executive Order 2020-68 pursuant to the EMA, (id. at 2, 19–25.) The Governor seeks leave to appeal these adverse rulings. The Plaintiffs filed a claim of appeal in the Court of Appeals on May 22, 2020, and later that day, in this Court, filed an emergency application for leave to appeal the Court of Claims decision “before a decision of the Court of Appeals” (bypass application). MCR 7.305(B)(2). The Governor similarly filed a cross-claim of appeal on May 29, and here files an omnibus response to the Legislative Plaintiffs’ bypass application and bypass application regarding the two adverse rulings against her. The Governor asks this Court to grant her bypass application and the Legislative Plaintiffs’ bypass application, and to hear them on an expedited basis.
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STATEMENT OF QUESTIONS PRESENTED1

1. Legislative standing is available only where the body suffers an injury specific to it or to protect its legal rights. The House and Senate allege only injuries shared with the general citizenry, and any decision by this Court will not affect their constitutional authority to legislate. Do the Legislative Plaintiffs have standing?

Governor’s answer:

No.

Legislative Plaintiffs’ answer: Yes.

Court of Claims answer:

Yes.

Court of Appeals’ answer:

Did not answer.

2. The Emergency Powers of the Governor Act grants broad authority to the Governor to declare a state of emergency during great public crises where public safety is imperiled within the State. The Governor declared a state of emergency in response to a worldwide public health pandemic that has killed thousands of Michiganders. Did the Governor act within her statutory grant of authority?

Governor’s answer:

Yes.

Legislative Plaintiffs’ answer: No.

Court of Claims answer:

Yes.

Court of Appeals’ answer:

Did not answer.

1 Issues 2 and 3 are the subject of the Legislative Plaintiffs’ bypass application, and Issues 1 and 4 are the subject of the Governor’s bypass application as well as alternative bases to affirm the lower court’s decision in response to the Plaintiffs’ bypass application.
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3. The Emergency Powers of the Governor Act permits the Governor during public crises to issue “reasonable” orders “necessary to protect life and property” or bring the emergency under control. The Legislature may constitutionally grant broad authority to the executive branch provided there is sufficient guidance in light of the purpose of the delegation. Have the Legislative Plaintiffs proven their own law is an unconstitutional delegation?

Governor’s answer:

No.

Legislative Plaintiffs’ answer: Yes.

Court of Claims answer:

No.

Court of Appeals’ answer:

Did not answer.

4. The Emergency Management Act requires a Governor to declare a state of emergency or disaster if the conditions in the State warrant it, and to terminate those specific declarations if the Legislature does not extend them beyond 28 days by concurrent resolution. The Governor terminated unextended declarations, but issued new ones pursuant to her ongoing statutory duty. Did the Governor act within her authority under the EMA?

Governor’s answer:

Yes.

Legislative Plaintiffs’ answer: No.

Court of Claims answer:

No.

Court of Appeals’ answer:

Did not answer.

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CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED
Constitutional Provisions Const 1963, art 5, § 1 provides:
Except to the extent limited or abrogated by article V, section 2, or article IV, section 6, the executive power is vested in the governor. Const 1963, art 4, § 26 provides, in pertinent part:
No bill shall be passed or become a law at any regular session of the legislature until it has been printed or reproduced and in the possession of each house for at least five days. Every bill shall be read three times in each house before the final passage thereof. No bill shall become a law without the concurrence of a majority of the members elected to and serving in each house. Const 1963, art 4, § 33 provides, in pertinent part:
Every bill passed by the legislature shall be presented to the governor before it becomes law, and the governor shall have 14 days measured in hours and minutes from the time of presentation in which to consider it. If he approves, he shall within that time sign and file it with the secretary of state and it shall become law. If he does not approve, and the legislature has within that time finally adjourned the session at which the bill was passed, it shall not become law. If he disapproves, and the legislature continues the session at which the bill was passed, he shall return it within such 14-day period with his objections, to the house in which it originated. That house shall enter such objections in full in its journal and reconsider the bill. If twothirds of the members elected to and serving in that house pass the bill notwithstanding the objections of the governor, it shall be sent with the objections to the other house for reconsideration. The bill shall become law if passed by two-thirds of the members elected to and serving in that house.
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Pertinent Provisions of the Emergency Powers of the Governor Act
MCL 10.31 provides:
(1) During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, 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. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
MCL 10.32 provides:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.
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Pertinent Provisions of the Emergency Management Act
MCL 30.402(e) provides:
“Disaster” means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, fire, flood, snowstorm, ice storm, tornado, windstorm, wave action, oil spill, water contamination, utility failure, hazardous peacetime radiological incident, major transportation accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation, explosion, or hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities, riots, or civil disorders.
MCL 30.402(h) provides:
(h) “Emergency” means any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.
MCL 30.402(p) provides:
(p) “State of disaster” means an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.
MCL 30.402(q) provides:
(q) “State of emergency” means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.
MCL 30.403 provides:
(1) The governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.
(2) The governor may issue executive orders, proclamations, and directives having the force and effect of law to implement this act. Except as provided in section 7(2), an executive order, proclamation, or directive may be amended or rescinded by the governor.
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(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and shall be promptly filed with the emergency management division of the department and the secretary of state, unless circumstances attendant upon the disaster prevent or impede its prompt filing.
(4) The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and shall be promptly filed with the emergency management division of the department and the secretary of state, unless circumstances attendant upon the emergency prevent or impede its prompt filing.
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Case 1:20-cv-00414-PLM-PJG ECF No. 35-16 filed 06/05/20 PageID.1984 Page 19 of 69 MCL 30.417 provides, in pertinent part: This act shall not be construed to do any of the following: * * * (d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act.
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INTRODUCTION The Legislative Plaintiffs come to the judiciary seeking only to build a constitutional crisis atop a public health crisis in Michigan. The law requires putting that effort to rest. Unfortunately, the scourge of COVID-19 will not lie down. The novel coronavirus that causes COVID-19 has rapidly spread across the planet, infecting millions, and killing hundreds of thousands in just a few months. In response, jurisdictions the world over have imposed bold measures to stem the viral tide that has overwhelmed healthcare systems. At home, Michigan is one of the states hardest hit by the pandemic. Since March 18, COVID-19 has claimed at least 5,372 lives, and countless others have suffered the excruciating health effects of the virus. Through wicked happenstance of this novel virus, many who are infected escape symptoms but unwittingly spread the virus to others, who may end up on ventilators, or worse. Such disparities still perplex medical experts, which only highlights the uncertainty ahead. In response to the threat of the pandemic, Governor Gretchen Whitmer declared states of emergency and disaster. Consistent with her duties to protect the health and welfare of the State and its citizens and respond to emergencies within its borders, the Governor put measures in place to suppress the spread of the virus, incrementally loosening restrictions as the public health permits. Because of these efforts, the disease’s spread has been slowed and countless lives have been saved. But the crisis is not over, and the virus remains highly contagious, still untreatable, and potentially poised for resurgence.
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The Legislative Plaintiffs deny none of this, but ask this Court to invalidate the Governor’s emergency response authority and declare their own delegation of this authority unconstitutional. Past Legislatures have thought better of putting a slow and fractious multi-member body in charge of responding to emergencies that demand a rapid, coordinated, and nimble response. Through two laws—the Emergency Powers of the Governor Act (EPGA) and the Emergency Management Act (EMA)—the Legislature vested such responsibility in the executive branch.
The Legislative Plaintiffs, of course, remain free to amend these laws, even over the Governor’s objection, if they are dissatisfied with the authority generations have vested in the Governor or the Governor’s due exercise of that authority. But they have not done so. The courts are not the proper branch for lawmaking, and the Legislative Plaintiffs lack standing to bring this suit. The Legislative Plaintiffs have failed to show a sufficient injury to an institutional interest, and their action against the Governor raises separation of powers concerns. Moreover, nothing in the declaratory relief they seek is necessary to guide their future conduct and preserve their legal rights—they only seek to affect the Governor’s rights.
They fare no better on the merits of their challenges to the Governor’s exercise of her emergency authority. Under the EPGA, the Legislature plainly granted the Governor authority to proclaim an emergency and reasonably guided her discretion in doing so. And while the Legislative Plaintiffs attempt to engraft limitations on this authority and cast doubt on its constitutionality, settled caselaw and the EPGA’s plainly stated text make short work of those arguments, just as the
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Court of Claims did. The Governor’s declaration and reaffirmation of an emergency under the EPGA are valid, as are the executive orders issued under that authority.
Independently, the EMA contains authority that is activated upon the Governor’s declaration of a state of emergency or disaster. Importantly, the EMA requires the Governor to issue those declarations if the conditions warrant it. If the declarations of states of emergency or disaster—which are defined by the act as “executive order[s]”—are not extended by the Legislature after 28 days, the Governor must terminate those executive orders. While the Court of Claims agreed with the Legislative Plaintiffs’ contention that the Governor ignored this limitation, she in fact adhered closely to it and the EMA’s other mandates—she timely terminated the earlier declarations and then issued new ones, consistent with her legal duty to do so when disaster or emergency conditions afflict our State.
The Legislative Plaintiffs frame the Governor’s actions—particularly her new declarations—as unprecedented. But that flips the conversation on its head. The pandemic that Michigan is facing is unprecedented, as is the Legislative Plaintiffs’ refusal to ratify the declarations the Governor issued—declarations whose factual basis they do not and cannot dispute. That refusal may be their right under the EMA, but the Governor’s responsibility to act in response to the ongoing emergency and disaster remains her duty.
Even if this Court were to find that the Governor exceeded her authority under the EMA, that leaves her declaration under the EPGA undisturbed, as the
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Court of Claims concluded. Because the Governor’s declarations here work as a belt and suspenders, even if the belt is removed, the suspenders remain.
The Legislative Plaintiffs’ overarching claim is that the Governor has acted beyond her constitutional role (despite the Legislature granting her the very authority she has invoked and exercised). Yet rather than act with their own most fundamental power—to amend the laws they now challenge—they filed suit. But there is no legal basis for this Court to upend the status quo in the midst of this public health crisis. The Constitution grants the Legislature the tools to do just that if it so chooses—to amend its own laws, by veto override if it must. This Court should not short circuit that route still available to the Legislature, one that runs through their own chambers.
This case warrant answers from this State’s highest court because the issues involve the constitutional validity of the EPGA, MCR 7.305(B)(1), have “significant public interest,” MCR 7.305(B)(2), and touch on the Governor’s emergency authority and the propriety of the Legislative Plaintiffs’ standing, MCR 7.305(B)(3). Although the status quo will not cause substantial harm to the public because the Governor’s measures to protect the public health remain valid under the decision below, MCR 7.305(B)(4)(a), the Governor’s full authority to respond to a public crisis is currently undercut by part of the Court of Claims ruling, MCR 7.305(B)(4)(b).
The Governor asks this Court to grant her bypass application, and agrees that the Court should grant Legislative Plaintiffs’ own bypass application, to decide these important and consequential questions.
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STATEMENT OF FACTS AND PROCEEDINGS COVID-19 infects the globe.
SARS-CoV-2 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, no vaccine, and no known treatment to combat the virus itself.
It is widely known and accepted that the virus 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, called COVID-19.3 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 no symptoms or only mild ones, a person could spread the disease before he even realizes he is sick.4 Everyone is vulnerable either as a potential victim of this scourge or a carrier of it to a potential victim.
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. 3 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html. 4 (Id.)
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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 and the 1918 Spanish Influenza have indicated, early intervention to slow 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
Michigan is hit hard by the expanding epidemic and the Governor declares states of disaster and emergency.
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—pursuant to her authority under the Emergency Powers of the Governor Act (EPGA), the Emergency Management Act (EMA), and Article 5, § 1.8
5 (Id.) 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. 8 Executive Order 2020-4, available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-521576--,00.html.
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On March 13, 2020, Governor Whitmer issued an executive order 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
Subsequently, on March 23, 2020, again in response to the spreading
pandemic in Michigan, Governor Whitmer issued an executive order 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 (the Stay Home Order).11 Several other orders intended to
address the pandemic in Michigan were issued pursuant to her authority under the
EPGA and the EMA.12
9 Executive Order 2020-5, available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-521595--,00.html. 10 Executive Order 2020-9, available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-521789--,00.html. (Replaced by Executive Order 2020-20). 11 Executive Order 2020-21, available at https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html. 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, at midnight. Executive Order 2020-42, available at https://content.govdelivery.com/attachments/MIEOG/2020/04/09/file_attachments/1 423850/EO%202020-42.pdf. 12 See generally “Executive Orders” http://www.legislature.mi.gov /(S(wskfimad5qtw1lrxuwq3z3jb))/mileg.aspx?page=executiveorders
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On April 1, the Governor issued Executive Order 2020-33, which expanded upon the prior declaration of a state of emergency and, consistent with the virus’s aggressive and destructive spread, declared states of emergency and disaster across the State of Michigan. Under the EMA (though not the EPGA), the declarations must be terminated after 28 days absent resolution by both houses of the Legislature. MCL 30.403(3), (4). On April 7, the Michigan House and Senate approved an extension of the Governor’s declaration until April 30, 2020.13
As required by the EMA, the Governor terminates the states of emergency and disaster under the EMA after the Legislature refuses to extend them.
Prior to April 30, the Governor again asked the Legislature to extend the states of disaster and emergency under the EMA pursuant to MCL 30.403(3) and (4), but the Legislature did not do so. Notably, neither in public statements nor in its pleading to this Court have the Legislative Plaintiffs expressed disagreement that the conditions persist that warrant declarations of emergency and disaster.14
On April 30, 2020, then, the Governor issued three executive orders. First, in Executive Order 2020-66 (App’x A), the Governor terminated the executive orders of states of emergency and disaster declared under the EMA as required by MCL 30.403(3) and (4) because the Legislature refused to extend those executive orders.
13 2020 SCR 24. 14 To the contrary, the Senate Majority Leader, the very morning after refusing to extend the prior declarations, responded with indignation when asked if the emergency was over: “No, not at all. Hell—heck no. I’d like to know where you would even come up with that question.” See https://jtv.tv/senate-majority-leadershirkey-on-legislative-showdown/ (thirty seconds into the interview).
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Although noting that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created very much exist,” the Governor recognized that the Legislature— “despite the clear and ongoing emergency and disaster conditions afflicting our state—has refused to extend [the states of emergency and disaster] beyond today.” Id. Accordingly, she was required by the EMA’s plain language to issue an order “terminat[ing]” the states of emergency and disaster. Id.
Because the COVID-19 crisis persists, the EMA requires her to declare a state of disaster and emergency, which she promptly does.
After terminating the prior declarations, the Governor again declared a state of emergency and a state of disaster under the EMA. Executive Order 2020-68 (App’x B). She also explained the basis for this new declaration. Although the measures issued pursuant to her emergency authority had been working, “the need for them—like the unprecedented crisis posed by this global pandemic—is far from over.” Id. COVID-19, she said,
remains present and pervasive in Michigan, and it stands ready to quickly undo our recent progress in slowing its spread. Indeed, while COVID-19 initially hit Southeast Michigan hardest, the disease is now increasing more quickly in other parts of the state. For instance, cases in some counties in Western and Northern Michigan are now doubling every 6 days or faster. [Id.] The Governor further found, “[t]he 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.” Id. Accordingly, the Governor stated: “I now declare a state of emergency and a state of disaster across the State
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of Michigan under the Emergency Management Act.” Id. Finally, the Governor ordered that “[a]ll previous orders that rested on Executive Order 2020-33 now rest on this order.” Id.
The Governor reaffirms her declaration of the state of emergency under the EPGA.
In the third Executive Order issued that day, the Governor reaffirmed the state of emergency under the EPGA, ordering that “[a] state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945.” Executive Order 2020-67 (App’x C). And like in Executive Order 2020-68, she ordered “Executive Order 2020-33 is rescinded and replaced. All previous orders that rested on Executive Order 2020-33 now rest on this order.” Id.
The Court of Claims denies declaratory relief and affirms the Governor’s authority under the EPGA.
The Legislative Plaintiffs brought suit, seeking an expedited declaratory judgment that the Governor’s authority to act under the EMA ended April 30, 2020; the EPGA does not provide authority for the Governor’s COVID-19 executive orders; the Governor has no lawmaking power under Const 1963, art 5, § 1; and the Governor’s ongoing COVID-19 executive orders violate the separation of powers. (Compl Request for Relief.)
On May 21, 2020, the Court of Claims issued an opinion and order denying the Plaintiffs’ requested relief. (5/21/20 Op and Order, p 25) (App’x D). First, the Court of Claims determined that the Legislative Plaintiffs have standing, but
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deemed it a “close question.” (Id. at 7.) The court construed the Legislative Plaintiffs’ claimed injury as being “that EO 2020-67 and EO 2020-68 nullified the decision of the Legislature to not extend the state of emergency or disaster.” (Id. at 8.) More specifically, the court found the Legislative Plaintiffs’ allegation to be “the Governor eschewed the Legislature’s role under the EMA and nullified an act of the legislative body as a whole,” an injury “unique to the Legislature.” (Id. at 8–9.)
The court also held that that Executive Order 2020-67 (the EPGA declaration) was a valid exercise of the “broad authority” by the Governor. (Id. at 10.) The court rejected the Legislative Plaintiffs’ “attempt to limit the scope of the EPGA to local or regional emergencies only,” relying heavily on the Legislature’s plain statutory purpose in MCL 10.32 to confer “ ‘sufficiently broad power’ on the Governor in order to enable her to respond to public disaster or crisis.” (Id. at 11, quoting MCL 10.32.) The court rejected the attempt to impose “artificial barriers on the Governor’s authority to act,” noting that a “particularly strained reading of the plain text of the EPGA” was required to reach the Legislative Plaintiffs’ result. (Id. at 12.) Recognizing the Legislative Plaintiffs’ “selectively rely on parts of the statute and ignore the contextual whole,” the court affirmed the Governor’s authority to issue state-wide declarations under the EPGA. (Id. at 13–14.)
The court had no difficulty squaring this reading with the existence of the EMA, explaining that “while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal.” (Id. at 14.) And, citing MCL 30.417(d)—which makes clear that
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the EMA does not “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA]”—the court relied on the Legislature’s own textual “explicit recognition” in refusing to narrow the EPGA or the EMA as the Legislative Plaintiffs desire. (Id. at 15.)
The court also denied the Legislative Plaintiffs’ request to declare the EPGA unconstitutional as violative of the separation of powers. The court properly balanced the complexity of the underlying subject matter—response to an unknown future emergency situation—with the sufficient guidance the Legislature provided. (Id. at 16–18.) As the court summed up, citing several Michigan decisions:
The Legislature’s use of the terms “reasonable” and “necessary” are not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather than being mere abstract concepts that fail to provide a meaningful standard, the terms “reasonable” and “necessary” have historically proven to provide standards that are more than amenable to judicial review. [Id. at 18.] Given the validity of the EPGA and the validity of the Governor’s declaration under it, the Court of Claims “conclude[d] that plaintiffs have failed to establish a reason to invalidate Executive Orders that rely on the EPGA.” (Id. at 19.) The court, again, denied the relief requested by the Legislative Plaintiffs. (Id. at 25.) Even though the court denied Legislative Plaintiffs’ relief, the opinion determined that the Governor acted outside of her authority with respect to her April 30 declarations under the EMA. See Op and Order, pp 2–3 (“This court finds that . . . Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.”); p 19 (“The Legislature contends that the issuance of EO 2020-68 was ultra vires, and this Court agrees” that 2020-68 is ultra vires).
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After describing the broad authorities a Governor has under the EMA, the court accurately noted that, in Executive Order 2020-66, the Governor “expressly terminated the previously issued states of emergency and disaster—not because the disaster or emergency condition ceased to exist—but because a period of 28 days had expired,” which is consistent with the statutory language in MCL 30.403(3) and (4). As the court correctly put it, “The Governor “shall” terminate the state of emergency or disaster unless the Legislature grants a request to extend it.” (Id. at 23.) But the court found the Governor’s new declarations as contrary to that language, stating, “To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit.” (Id. at 24.) The court also disagreed that, construed in this way, the 28-day limit is an unconstitutional legislative veto, describing it as “a standard imposed on the authority so delegated.” (Id. at 25.)
STANDARD OF REVIEW This Court reviews questions of statutory and constitutional interpretation de novo. Mich Dept of Transp v Tomkins, 481 Mich 184, 190 (2008).
ARGUMENT I. The Legislative Plaintiffs lack standing.
Dissatisfied by the Governor’s issuance of Executive Orders 2020-67 and 2020-68, the Legislative Plaintiffs have a clear, unique, and powerful remedy: they can change the law, even over the Governor’s objection. Instead, they have chosen to sue the Governor, asking for a judicial solution to a perceived legislative problem.
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This, they cannot do. The Legislative Plaintiffs cannot claim an institutional interest in the enforcement of already-enacted legislation, and have not claimed an injury distinct from the citizenry at large. This Court should determine that the Legislative Plaintiffs lack standing.
A. The Legislative Plaintiffs lack standing because they have no special interest in challenging the executive orders of the Governor that differs in any way from the general interest of the citizenry at large.
“Standing is the legal term used to denote the existence of a party’s interest in the outcome of the litigation . . . .” Allstate Ins Co v Hayes, 442 Mich 56, 68 (1993) (citations omitted). A litigant meeting the requirements of MCR 2.605 “is sufficient to establish standing to seek a declaratory judgment.” Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372 (2010). Moreover, a litigant may have standing if it “has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large.” Id. at 372.
As with an individual legislator, to establish standing, a legislative body must allege that it has been deprived of a cognizable interest peculiar to the body. Tennessee General Assembly v US Dep’t of State, 931 F3d 499, 507 (CA 6, 2019), citing Ariz State Legislature v Ariz Independent Redistricting Comm, 135 S Ct 2652, 2664 (2015). Importantly, a “generalized grievance that the law is not being followed,” is insufficient to establish standing. Dodak v State Admin Bd, 441 Mich 547, 556 (1993) (citation omitted); see also League of Women Voters of Michigan v Secy of State, ___ Mich App ___, ____ (Docket No. 350938), slip op at *6, app for lv pending 938 NW2d 244 (Mich 2020).
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The Legislative Plaintiffs seek to nullify the Governor’s acts of declaring states of emergency and disaster under the EMA and the EPGA. But constraining the Governor’s executive authority will not affect the Legislature as an institution entrusted with passing laws. The Legislative Plaintiffs’ success in this case would only infringe upon the separation of powers by invalidating the Governor’s implementation of the law and her exercise of the powers vested in her by law. Indeed, that is explicitly the relief that the Legislative Plaintiffs seek. Under League of Women Voters and Dodak, they cannot obtain that relief here.
The Legislative Plaintiffs claim that the Governor’s actions violate the EPGA and the EMA. But even if that were true (it is not), such an alleged injury is not personal or unique to them. As the court noted in League of Women Voters, “once the votes of legislators have been counted and the statute enacted, their special interest as lawmakers has ceased.” ___ Mich App at ___; slip op at *7. So too here, once the Legislature passed its laws, it exercised its legislative power. Execution of the laws is the purview of the executive. Const 1963, art 5, §§ 1, 8.
The Legislative Plaintiffs fare no better by attempting to cast their claims as Michigan constitutional violations. Whether they frame the Governor’s action as allegedly unlawful or unconstitutional, they lack standing to challenge the actions for the same reasons. In either instance, the alleged injury or deprivation is no different than that accruing to the ordinary citizen.15
15 Below, Plaintiffs relied heavily on the Arizona State Legislature case for the proposition that a legislature has an interest in protecting its lawmaking power from infringement. (5/15/2020 Hr’g Tr, p 10.) But Arizona State Legislature merely
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The Legislative Plaintiffs’ case is that the Governor did not follow the EMA and EPGA when declaring states of emergency and disaster—a claim of statutory interpretation—and that their own law is unconstitutional. The Governor has not asserted an inherent authority to act with legislative authority, only that the Legislature granted her authority by statute, which she has exercised. By acting as she did, the Governor did not work any infringement upon or dilution of the Legislature’s constitutional power to pass laws, or any other constitutionally granted authority. See Tennessee Gen Assembly, 931 F3d at 512 (noting that legislative standing is proper upon an allegation of “interference with a legislative body’s specific powers . . . or a constitutionally assigned power”).
To the contrary, the Legislature admittedly introduced dozens of bills during the pandemic (Compl, ¶ 43), and is not hampered from continuing to do so. Any and all legislative tools remain on the table and available for amending or repealing the laws on the books. That the Governor may also act (per the Legislature’s own delegation), does not squeeze out the Legislature from acting concurrently.
To sum it up, per the Court of Appeals in League of Women Voters: [T]he Legislature is suing to reverse actions by the [Governor], a member of the Executive Branch. The Legislature is thus plainly challenging the actions of members of the Executive Branch. Dodak stands for the proposition that courts should not confer standing in
stands for the proposition that, where a legislative body alleges that it is effectively barred from exercising its constitutional authority, it has standing. Id. at 2663– 2664; see also Tennessee Gen Assembly, 931 F3d at 511 (explaining that state legislatures had been found to have standing when they “alleged that an action at the state legislative level had interfered with their federal constitutional prerogatives”). That is miles from this case.
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matters that have the real possibility of infringing upon the separation of powers. [League of Women Voters, slip op at *7.] And League of Women Voters is all the more persuasive on this point because, in that case, the Legislature sought to protect the constitutionality of its laws. ___ Mich App at ___; slip op at *9 (“To accept the Legislature’s argument that it has standing here would open the door for the Legislature to seek a declaratory judgment whenever the constitutionality of a statute was challenged.”). Here, the Legislative Plaintiffs ask this Court to invalidate one of its own laws, seeking a declaration that the EPGA is unconstitutional. If the Legislature lacks standing to attempt to enforce its own laws, it must lack standing to nullify them. Finally, there is no room for concern in this case that, without standing for these plaintiffs, the executive’s actions might evade judicial review.16 A private party would have standing to challenge the Governor’s declarations if the litigant could point to an alleged harm stemming from one of the Governor’s substantive executive orders premised on her declarations under the EMA and/or the EPGA. B. The Legislative Plaintiffs cannot meet their obligation to show
that an actual controversy exists under MCR 2.605. Nor can the Legislative Plaintiffs generate standing by framing their claims as requests for declaratory relief. MCR 2.605 states that “[i]n a case of actual controversy within its jurisdiction, a Michigan court of record may declare the rights and other legal relations of an interested party seeking a declaratory
16 See e.g., League of Women Voters of Michigan v Secretary of State (Docket No 160907-8), March 11, 2020 Oral Argument, Viviano, J., questioning at 52:26. Available at https://www.youtube.com/watch?v=9_AxvQNoa_4
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judgment.” Where no such actual controversy exists, a plaintiff does not have standing to bring a declaratory action. City of South Haven v Van Buren Cty Bd of Comm’rs, 478 Mich 518, 533–534 (2007).
“In general, ‘actual controversy’ exists where a declaratory judgment or decree is necessary to guide a plaintiff’s future conduct in order to preserve his legal rights.” Shavers v Attorney General, 402 Mich 554, 588 (1978) (emphasis added). See also Assoc Builders & Contractors v Dep’t of Consumer & Indus Servs Director, 472 Mich 117, 126 (2005), overruled in part on other grds, 487 Mich at 371 n 18.
Here, the gravamen of the Legislative Plaintiffs’ complaint is that they passed laws that are not being followed by the Governor, or that their own law (the EPGA) violates the Michigan Constitution. But if that were enough to create an actual controversy, the Legislature would have standing to bring a lawsuit against any government entity that has allegedly violated the Constitution or failed to enforce or comply with a statute. That outcome would be both an abuse of the court system and an improper curtailing of the legislative and political processes.
Nor do the Legislative Plaintiffs adequately explain how declaratory relief is needed here to guide their future conduct in order to preserve their legal rights. Lansing Sch Ed Ass’n, 293 Mich App at 515. To be sure, the future conduct that the Legislative Plaintiffs seek to “guide”—that is, curtail—is the that of the Governor, not the Legislature. The law does not provide standing for the Legislature to seek declaratory relief. As the Court of Appeals concluded in League of Women Voters:
No declaratory judgment is necessary to guide the Legislature’s future conduct in order to preserve its legal rights. The Legislature’s
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authority to enact laws is separate and distinct from this Court’s role in determining whether any law passes constitutional muster. These “rights” and obligations of the two separate branches of government will remain the same, no matter what the outcome in this matter, such that the preservation of the Legislature’s legal rights is not at issue. [League of Women Voters, ___ Mich App at ___, slip op at *7.] The Legislative Plaintiffs contend that they have a special right that is affected in a manner different from the citizenry at large in their right to enact legislation—but this is more spin than reality. There is nothing in the Governor’s actions that interferes with the Legislature’s ability to legislate. In fact, the complaint specifically alleges that the “Legislature has introduced almost 100 bills on COVID-19 related issues.” (Compl, ¶ 43.) The Legislative Plaintiffs’ claim for declaratory relief fails because there is no threat to their power to enact legislation, including their power to amend or repeal the very laws they challenge. 17 In sum, the Legislative Plaintiffs’ concern here is the Governor’s actions, not infringement of its own institutional rights or responsibilities. They have no special interest in challenging the Governor’s executive orders or advancing a strained interpretation of their own laws. Therefore, and in light of the separation-of-powers concerns pervading this suit, the Legislative Plaintiffs lack standing.
17 The Michigan Constitution provides that “[n]o bill shall become law without the concurrence of a majority of the members elected to and serving in each house.” Const 1963, art 4, § 26. “Every bill passed by the legislature shall be presented to the governor before it becomes law[.]” Const 1963, art 4, § 33. If the Governor vetoes a bill, the Legislature may override it by a two-thirds vote in each house. Id.
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II. The Governor has the authority under the EPGA to declare a state of emergency and to issue orders to protect the health and safety of the State and its people. Even if the Legislative Plaintiffs could seek their requested relief from this
Court, they have not shown entitlement to it. The EPGA grants the Governor broad police powers in times of public emergency to protect life and property and bring the emergency to its end.
A. The State is generally granted broad latitude to respond to public health crises.
Faced with “great danger[ ],” state actors are permitted great latitude to secure the public health. Jacobson v Commonwealth of Massachusetts, 197 US 11, 29 (1905). In Jacobson, the Supreme Court considered a claim that the Massachusetts’ mandatory vaccination law, which applied to every person in Cambridge 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.” 197 US 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. [Id. at 29.]
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In upholding the law, the Court refused 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. As Jacobson illustrates, the police power has long been recognized as a fundamental and central means by which States can respond in an effective fashion to an imminent threat to its citizens’ health and safety.
B. Consistent with the proper exercise of police power, the Legislature enacted the EPGA.
Through the EPGA, the Legislature has ensured that the Governor, who holds the executive power, has the necessary tools to deal with emergencies and disasters in this State, such as the crisis presented by COVID-19. Const 1963, art 5, § 1. The EPGA does not deprive the Legislature of any of its lawmaking tools or powers, and throughout this crisis, the Legislature has retained and been free to use them. But rather than exercise that lawmaking authority to amend the EPGA or EMA, the Legislative Plaintiffs asks this Court to misconstrue them.
1. The EPGA’s broad, but not unlimited, grant of authority supports the Governor’s declared state of emergency.
The EPGA, enacted in 1945, provides the Governor with broad powers “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state.” MCL 10.31(1). The Governor “may proclaim a state of emergency” during these times, or upon “reasonable apprehension of immediate danger” of such an emergency, “when public safety is imperiled.” Id.
Upon the proclamation of 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
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affected area under control.” Id. Any “orders, rules, and regulations promulgated . . . are effective from the date and in the manner prescribed in the orders, rules, and regulations.” MCL 10.31(2). And they “may be amended, modified, or rescinded . . . by the governor” and “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” Id. As a whole, the EPGA must “be broadly construed to effectuate [its] purpose,” which is to “invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32.
Our State is undoubtedly facing a “time[ ] of great public crisis,” “disaster,” or “similar public emergency,” wherein “public safety is imperiled.” MCL 10.31(1). The world over has been ravaged by the COVID-19 crisis, with serious, often fatal, consequences for many due to the virus’s easy and rapid transmission. States of emergency exist across our country too, with orders effectuating social distancing. Since the virus’s origin in China, it has traveled to nearly every country on Earth, killing over 350,000 people. Indeed, in April, it killed more Michiganders than heart disease and cancer combined.18 As of filing, over 5,000 have died here, and over 100,000 have died in the United States.19
18 Michigan Department of Community Health, Number of Deaths by Select Causes of Death by Month, available at https://www.mdch.state.mi.us/osr/Provisional/MontlyDxCounts.asp 19 New York Times, An Incalculable Loss (May 27, 2020), available at https://www.nytimes.com/interactive/2020/05/24/us/us-coronavirus-deaths100000.html
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These undisputed (and undisputable) facts form the basis of the Governor’s finding that a state of emergency exists under the EPGA, and well justify the “reasonable” and “necessary” measures she has taken “to protect life” throughout the State and bring this pandemic “under control.” MCL 10.31(1).
2. The Legislative Plaintiffs’ narrow construction of the EPGA is not borne out by the statute’s plain language, and their heavy reliance on the alleged history of the act is misplaced.
In an attempt to avoid the unfavorable result that flows from the EPGA’s plain and straightforward text, the Legislative Plaintiffs strain to narrowly read their own statute, suggesting that the EPGA is limited to quelling riots and other uprisings of local concern. (Pls Bypass App, pp 20–24.) But this narrow construction is unwarranted for as many as six reasons.
First, such a limited reading is directly contrary to the Legislature’s own (duly enacted) direction, which mandates that the act be “broadly construed to effectuate [its] purpose,” which was plainly stated:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. [MCL 10.32.] Second, the Legislative Plaintiffs proffer a geographical limitation—an interpretation of the statute that limits a declaration’s reach to only local subsets of the State. (Pls Bypass App, pp 20–22) (“These words—‘area,’ ‘zone,’ and ‘section’— all establish that the Governor’s power is intended to reach some subpart of the state as a whole.”). This is an attempt to recast the intended, and plainly stated,
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flexibility of the EPGA as a limitation. The EPGA provides that, when declaring an emergency, the Governor must “designate the area involved.” MCL 10.31(1). The EPGA then provides an illustrative, and expressly non-exhaustive, list of “orders, rules, and regulations” that the Legislature suggested may be appropriate in response to an emergency—which occasionally includes reference to “zones” or “section[s],” but just as often does not. Id.
All of this wisely recognizes that public emergencies, and necessary responses to them, may come in many different shapes and sizes, depending on the nature of the threat to public safety. And none of it suggests that the Governor, when faced with a statewide threat to public safety, cannot declare a state of emergency commensurate with that threat. Here, the “area” designated by the Governor is the entire State—and rightfully so, given the nature of the threat posed to this State (indeed the world) by this highly contagious, often fatal, and still untreatable virus. See MCL 10.31(1) (permitting a declaration during a “public emergency” or “reasonable apprehension of immediate danger of a public emergency”).
Simply put, given the nature of this virus and the current limitations on our ability to test for, trace, and contain it, there is unquestionably a “reasonable apprehension of immediate danger of a public emergency” currently present in every portion of this State. MCL 10.31(1). The State is the “area involved,” and
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under the plainly stated language and intent of the EPGA, the Governor is fully authorized to designate that area and respond accordingly.20
Also, any claim that the EPGA is only designed to address local emergencies, and the EMA only statewide ones, is further belied by the language of the EMA. (Pls Bypass App, pp 15–20.) Just as the EPGA plainly accommodates emergencies statewide in scope, so too is the EMA filled with references to the authority for addressing local states of emergencies. It defines a “local state of emergency,” MCL 30.402(j), grants local officials with the authority to declare such a state of emergency, MCL 30.410(1)(b), and provides guidance where a local emergency extends “beyond the control of the county,” MCL 30.414(1). It also leads to the unfounded conclusion that, prior to the passage of the EMA in 1976, the law contemplated no means for the State to respond to a statewide emergency. The idea that the Governor would have had to issue 83 local emergency orders is not well taken, and is wholly unsupported by the text or express purpose of the EPGA. (See 5/22/20 Ct of Claims Op, p 12 (“Under plaintiffs’ view, if that emergency became too large and it affected the entire state, the Governor would have to pick and choose which citizens could be assisted by the powers granted by the EPGA[.]”).)
20 Similarly misguided is the suggestion that a statewide declaration is contrary to the EPGA because it contemplates that the Governor may act during times of public emergency “within” the State. But even adopting the Legislative Plaintiffs’ definition of “within”—“ ‘Within’ means ‘on the inside or on the inner-side’ or ‘inside the bounds of a place or region’ ” (Pls Bypass App, pp 20, ultimately quoting Webster’s Third New International Dictionary 758 (1993))—the designated area meets that definition. The entirety of the state is “inside the bounds” of the State.
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Third, like squeezing water from a stone, the Legislative Plaintiffs wish to engraft yet another limitation on the EPGA—let us call it the “rioting” limitation— in order to shrink the EPGA’s authority to reach only local emergencies of a very specific sort. (Pls Bypass App, pp 17–18, 25.) This, too, fails. While the Legislative Plaintiffs’ chosen specific term—rioting—is certainly covered by the EPGA, it sits adjacent “great public crisis,” which is quite general (and perfectly applicable), as are “disaster” and “catastrophe.” MCL 10.31. And the trusty canon of construction ejusdem generis is a handy reference, which applies “where a general term follows a series of specific terms,” requiring “the general term [to be] interpreted to include only things of the same kind, class, character, or nature as those specifically enumerated.” Neal v Wilkes, 470 Mich 661, 669 (2004) (cleaned up). With “public emergency” as the general term, the “similar” specific terms must inform the general term’s scope. The ample breadth of “public emergency” is confirmed by the distinct specific terms. The broad terms used by the Legislature, in conjunction with the liberal-construction requirement in MCL 10.32, confirm that the Governor’s declaration under the EPGA is appropriate.
Fourth, the Legislative Plaintiffs stitch together their own narrative of the history and motivations behind the enactment of the EPGA. (Pls Bypass App, pp 24–26.) Plaintiffs, of course, have told the story that helps their case, leaning heavily on a circumscribed review of prior Governors’ understanding of the law which definitionally bears little on the Legislature’s intent—the proper focus of statutory construction. As the Court of Claims found, the proffered history is
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“particularly unpersuasive” because it “does not even address or suggest the local limit plaintiffs attempt to impose on the EPGA” and “rel[ies] on mere generalities and anecdotal commentary.” (5/21/20 Ct of Claims Op and Order, p 15.)
But the accuracy or completeness of that history is fundamentally beside the point. The Legislature made its intentions in enacting the EPGA perfectly clear in the language of the statute itself, and Plaintiffs cannot rewrite those intentions to meet their own considerations. “Because the statute is clear, there is no ambiguity that would permit or justify looking outside the plain words of the statute.” In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109, 116 (2003) (cleaned up). In particular, courts “do not resort to legislative history to cloud a statutory text that is clear.” Id. Lacking any ambiguity, the text of the EPGA, including its express directive to construe its terms broadly, controls.
Fifth, contrary to the Legislative Plaintiffs’ argument, the doctrine of in pari materia, which assists in reading laws on the same subject harmoniously, is generally inapplicable to statutes that are unambiguous and do not present a “patent conflict.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 74 n 26 (2017). And the doctrine is most profitably applied to address statutes that do not refer to each other, so this canon is employed to make sense of their interaction. See, e.g., People v Anderson, ___ Mich App ___ (2019) (No. 343272), slip op at *3 (the doctrine applies “even if the statutes do not reference one another”).
But there is no mystery here, the second-in-time statute—the EMA— expressly explains that it does not “[l]imit, modify, or abridge the authority of the
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governor to proclaim a state of emergency pursuant [the EPGA]” or any other law in place. MCL 30.417(d). Thus, the statutes themselves unambiguously tell us that they each are—and must be read as—independent, supplementary, and nonconflicting grants of authority to the Governor. This understanding of the EMA and EPGA as overlapping authorities makes practical sense too, as the unforeseen discovery of statutory gaps in the midst of an emergency or disaster could be devastating. Better to, as the 1976 Legislature made clear with MCL 30.417(d), complement one authority with another.
The EMA provides for a more extensive structure of governmental action in response to an emergency, and a more detailed set of powers for the Governor to implement in that response. The EMA, however, expressly ensures that, underlying the mechanisms it provides for activating implementing state and local emergency response resources, there remains the EPGA and its foundational assurance that, in times of public emergency, the executive branch is empowered to exercise the police power of the State to do what is reasonable and necessary to protect life and bring the emergency under control. The law provides more than one tool in the Governor’s toolbox, without any limitation against using them in tandem.
Sixth and finally, and for these same reasons, the Legislative Plaintiffs’ attempt to engraft the EMA’s 28-day limitation period onto the EPGA must fail. There is simply nothing in the text of either statute that supports or even suggests it. The Governor’s proclamation only ceases “upon declaration by the governor that the emergency no longer exists.” MCL 10.31(2) (emphasis added). And the
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Legislature, in enacting the EMA thirty years later, wisely chose to leave that characteristic of the EPGA intact. The wisdom of this legal landscape is apparent in the case of a pandemic that respects no boundaries while impacting individuals, regional health systems, and all aspects of life in severe and unpredictable ways.
III. The EPGA contains standards that guide the Governor’s exercise of authority concomitant with the nature of broad, developing emergencies and therefore survives a non-delegation challenge. The Legislative Plaintiffs claim that the EPGA violates the separation of
powers because it lacks sufficient standards to guide the Governor’s decisionmaking, in violation of the non-delegation doctrine. Ample caselaw disagrees.
A. The branches of government are not barred from working together, and sharing their authority is permitted so long as adequate guidance is given.
The Michigan Constitution provides for the separation of powers among the three branches of state government. In particular, the Constitution provides:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch. [Const 1963, art 3, § 1.] But Michigan courts have never interpreted the separation of powers doctrine as meaning there can never be any overlapping of functions between branches. Soap & Detergent Ass’n v Natural Resources Comm, 415 Mich 728, 752 (1982). Rather, an overlap or sharing of power is constitutionally permissible provided that “the grant of authority to one branch is limited and specific and does not create encroachment or aggrandizement of one branch at the expense of the other.” Judicial Attorneys Ass’n v Mich, 459 Mich 291, 297 (1998); see also id. (“It is simply
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impossible for a judge to do nothing but judge; a legislator to do nothing but legislate; a governor to do nothing but execute the laws.”).
The separation of powers doctrine “ha[s] led to the constitutional discipline that is described as the nondelegation doctrine,” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8 (2003), which the Legislative Plaintiffs claim the EPGA violates. While the legislative power—the power “to make, alter, and amend laws”—sits with the Legislature, Harsha v City of Detroit, 261 Mich 586, 590 (1933), both the U.S. Supreme Court and the Michigan Supreme Court “ha[ve] recognized that the separation of powers principle, and the nondelegation doctrine in particular, do not prevent Congress [or our Legislature] from obtaining the assistance of the coordinate Branches.” Taylor, 468 Mich at 8 (internal quotes omitted).
The Michigan doctrine of non-delegation has been expressed in terms of a “standards test.” Westervelt v Natural Resources Comm, 402 Mich 412, 437 (1978). Under this test, “legislation which contains a delegation of power to . . . [another branch] must contain either explicitly or by reference . . . standards prescribed for guidance . . . .” Id. at 437–438. Significantly, such standards must only be “as reasonably precise as the subject matter requires or permits.” Id. at 438.
And the statute carries a presumption of constitutionality; it “must be construed in such a way as to ‘render it valid, not invalid.’ ” Id., citing Argo Oil Corp v Atwood, 274 Mich 47, 53 (1935). In Michigan, like the federal system, successful nondelegation claims are exceedingly rare. See Taylor, 468 Mich at 9
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(“In the federal courts these improper delegation challenges to the power of federal regulatory agencies have been uniformly unsuccessful.”)
This case presents no exception to the rule; the standards set forth in the EPGA are as “reasonably as precise as the subject matter requires or permits.” Westervelt, 402 Mich at 439. The Legislature did not grant the Governor a blank check. The EPGA provides the Governor the authority, after declaring a state of emergency, to “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). Accordingly, there are several limits on the Governor’s authority. Her orders may come only upon a “public emergency” and the orders must not only be reasonable and necessary, they must be directed at protection of “life and property” or “bring[ing] the emergency situation . . . under control” in the “affected area.” Id.
Michigan courts have consistently upheld similar language as sufficiently precise to avoid any nondelegation problem. In G.F. Redmond & Co v Michigan Sec Comm’n, 222 Mich 1, 7 (1923), this Court held that “the term ‘good cause’ for revocation of the license, relating, as it does, to the conduct of the business regulated by the policy declared in the statute, is sufficiently definite.” See also Smith v Behrendt, 278 Mich 91, 97–98 (1936) (holding that allowing the executive to grant oversize loads for freeway travel in “special cases” was a limited and proper delegation of legislative authority). These examples suffice to reveal that the courts are hesitant to invalidate laws on the basis of an allegedly improper delegation
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where the Legislature provides even a modicum of direction to the executive branch. This level of trust—in the Legislature, to delegate as it sees fit, and in the executive, to follow those guidelines—justifies a strong deference from this Court to its coordinate branches.
The Legislative Plaintiffs rely on Blue Cross & Blue Shield of Michigan v Milliken, which determined that “the power delegated to the Insurance Commissioner” regarding approval of actuarial risk factors “is completely open ended.” 422 Mich 1, 53 (1985). And for good reason—the commissioner’s authority was not guided at all. Instead, the commissioner was granted complete authority to “ ‘approve’ or ‘disapprove’ the proposed risk factors; the basis of the evaluation is not addressed.” Id. Blue Cross is a poor comparison.
And of course, the standards imposed on the Governor’s authority under the EPGA are not read in a vacuum—the “subject matter” of the delegation guides how strictly or narrowly drawn the standards must be. Westervelt, 402 Mich at 439. The context of a developing “crisis, disaster, rioting, catastrophe, or similar public emergency,” MCL 10.31(1), counsels granting substantial leeway to the decisionmaker. Public emergencies are not static events, nor do they unfold patiently or predictably. Response to such crises warrant—indeed require— nimbleness coupled with judgment to meet the needs of the moment. There is no specific one-size-fits-all response to a complex and ongoing emergency. This subject matter requires the broadest level of leeway permissible under the nondelegation doctrine. If “the management of natural resources is a difficult and complex task,”
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DNR v Seaman, 396 Mich 299, 311 (1976), surely the response to a rapidly developing and ever-changing public health crisis is even more so.
The EPGA provides the Governor substantial discretion, but limits her ability to act upon a finding of an emergency, and even then only to exercise her discretion to issue “reasonable” orders “necessary” to protect “life and property” and to bring the emergency “under control.” MCL 10.31(1). These guideposts are more than sufficient, and do not contemplate legislative or judicial second-guessing.
B. The Legislature is not best equipped to address the exigencies of an emergency.
The Legislative Plaintiffs highlight the Legislature’s “nature and design” as best situated to handle the ongoing public health crisis. (Pls Ct of Claims Br, p 44.) They offer the virtues of “consensus through rigorous parliamentary debate,” and considerable “distillation and refinement,” to make public policy choices. (Id.) As explained in painstaking detail by an amicus filing in the Court of Claims (Senate Democrats Caucus Br, pp 6–12), the road from an idea to a bill to an enactment is a long one, filled with procedural requirements—most notably, the constitutional requirement that each bill must sit, at a minimum, for five days in each chamber before it can be passed, Const 1963, art 4, § 26. Though valuable in the normal course of legislative deliberation, the response necessary to combat a fast-moving, contagious disease is agile and flexible (as well as temporary and reasonable)
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action, not Robert’s Rules of Order.21 The Legislature knows that to meet the moment, proper delegation to the executive is the wisest course, which is why it granted the authorities it did to the Governor.
This Court should honor that choice. Having extolled its virtues in making public policy choices, it is incumbent on the Legislature, not this Court, to make the changes it seeks. Bicameralism and presentment are the procedures that the Legislature designed to effectuate such choices, and if it thinks it is wise to take the reins in the middle of this crisis, it should exercise its legislative authority to do so. IV. In the EMA, the Legislature requires the Governor declare a state of
emergency and disaster if she finds certain conditions exist. In addition to her authority under the EPGA, the Governor has an independent source of emergency-response authority in the EMA. In determining that the Governor acted outside of that statutory authority under the EMA when issuing Executive Order 2020-68, the Court of Claims made its only error on the merits. That error stems from an interpretation of the EMA’s provision concerning the effect of the Legislature’s decision not to extend the Governor’s declarations of emergency and disaster. (5/22/20 Ct of Claims Op, pp 19–25.) Before review of that provision, however, an understanding of the scope of the EMA sets the background.
21 In some emergency circumstances, even the constitutionally mandated quorum necessary to do business in the Legislature could pose logistical barriers. Const 1963, art 4, § 14.
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A. The EMA sets out a statutory game-plan for state and local emergency response, and it grants the Governor broad powers and duties to “cop[e] with dangers to the state or its people.”
First enacted in 1976, the EMA sets forth several independent (though related) obligations regarding state and local responses to emergencies and disasters in the State. The Governor is not the only subject of the EMA—that act tasks county boards of commissioners, MCL 30.409, and directors in state government, MCL 30.408, among others, with emergency planning, including the designation of emergency management coordinators. See MCL 30.410. It grants those local coordinators the authority to declare a local state of emergency and permits them to, among other things, appropriate funds, provide emergency assistance to victims of a disaster, and enter into regional compacts with public and private entities to respond to the emergencies. MCL 30.410(1)(b).
Particular to the Governor, the EMA grants her the important responsibility to “cop[e] with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). This broad charge places the Governor at the forefront of emergency and disaster responsiveness and serves as a baseline for the latitude given to her by the Legislature in times of crisis. To that end, she possesses the authority to “issues executive orders, proclamations, and directives having the force and effect of law.” MCL 30.403(2). The act grants the Governor, and only the Governor, the authority to amend or rescind those orders. Id.
This broad statement of authority is confirmed throughout the EMA. For example, MCL 30.414(3), makes clear that the EMA “shall not be construed to restrain the governor from exercising on his own initiative any of the powers set
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forth in this act.” The act also emphasizes the breadth and strength it is intended to add to the Governor’s preexisting emergency response authority, stating that it does not “[l]imit, modify, or abridge” the authority of the Governor to proclaim a state of emergency under the EPGA “or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of the state independent of, or in conjunction with, this act.” MCL 30.417(d). As discussed above, the EPGA confers emergency authority on the Governor without mention of legislative involvement—a characteristic the EMA expressly preserved.
B. If the conditions warrant it, the Governor has a duty under the EMA to declare states of emergency and disaster which actuates certain emergency response mechanisms.
Consistent with this broad authority, the Governor has the obligation to declare states of disaster and emergency if the pertinent conditions exist. She “shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4) (emphasis added). Similarly, she “shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists.” MCL 30.403(3) (emphasis added).
Upon that order or proclamation, the law grants the Governor authority to marshal both state and federal resources to adequately deal with the danger facing the State.22 The executive order or proclamation also authorizes the Governor to
22 See, e.g., MCL 30.404(1) (authorizing deployment of forces and distribution of supplies); MCL 30.404(2) (the Governor may seek and accept federal assistance); MCL 30.408(1) (demanding cooperation among the state agencies).
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exercise additional broad powers, including “[s]uspending a regulatory statute, order, or rule prescribing the procedures for conduct of state business” in certain circumstances, “commandeer[ing] . . . private property necessary to cope with the disaster or emergency,” and “[c]ontrol[ling] ingress and egress to and from a stricken or threatened area,” and “[d]irect[ing] all other actions which are necessary and appropriate under the circumstances.” MCL 30.405(1)(a), (d), (g), (j).
And the EMA expressly defines “state of disaster” and “state of emergency” independently from “disaster” and “emergency.” “[D]isaster” and “emergency” refer to conditions that the Governor may find to exist in the State.23
Distinctly, “state of emergency” and “state of disaster”—both of which were declared in Executive Order 2020-68—are defined as types of executive orders or proclamations that the Governor must issue upon finding emergency or disaster conditions exist. Per MCL 30.402(p), “ ‘state of disaster’ means an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.” (Emphasis added.) Similarly, “ ‘state of emergency’ means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency
23 The EMA defines both “disaster” and “emergency.” Under MCL 30.402(e), “ ‘[d]isaster’ means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause. . . .” “Emergency” is defined as “any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.” MCL 30.402(h).
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operations plans applicable to the counties or municipalities affected.” MCL 30.402(p) (emphasis added).
In short, “state of emergency” and “state of disaster” are species of executive orders that activate certain response efforts and resources and may—indeed, must—be issued only when “emergency” or “disaster” conditions are found to exist. These statutory definitions are important to understand the interplay between the Governor’s termination of her prior declarations and subsequent new declarations.
Importantly, “if [the Governor] finds that an emergency [or disaster] has occurred or that the threat of an emergency [or disaster] exists,” the Governor “shall” declare as such in an executive order or proclamation. MCL 30.403(3), (4). Under longstanding Michigan precedent, “the word ‘shall’ is ordinarily construed in its imperative sense, excluding the idea of discretion.” State Bd of Ed v Houghton Lake Cmty Sch, 430 Mich 658, 670 (1988).24 The Governor thus has a duty to declare a state of emergency or a state of disaster if she determines a disaster or emergency has occurred or will occur.
And just as she is required to declare a state of emergency if the real-world conditions merit it, she also has the duty to “terminate” a state of disaster or emergency, i.e., such executive orders, if the conditions cease or the Legislature refuses to extend those executive orders. MCL 30.403(3), (4).
24 See also Sauder v Dist Bd of Sch Dist No 10, Royal Oak Tp, Oakland Co, 271 Mich 413, 418 (1935) (when a statute uses “shall” and “the public are interested” that charge “is imperative”); Southfield Tp v Main, 357 Mich 59, 76 (1959) (“The use of the word ‘shall’ is mandatory and imperative and when used in a command to a public official.”).
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C. Pursuant to the EMA’s mandates, the Governor terminated her earlier declarations and issued new ones because there was an undisputed “disaster” and “emergency” in Michigan.
As April 30 approached and with it the expiration of the declared states of emergency and disaster under the EMA, see Executive Order 2020-33, the Legislature declined to extend those executive orders, despite the lack of dispute that that the conditions in our State remained dire. On April 30, then, in accordance the mandate that the Governor “terminate” the state of emergency and disaster declarations under the EMA absent legislative extension, MCL 30.403(3), (4), the Governor so terminated. Executive Order 2020-66.
Then, since the conditions on the ground undisputedly remained dire—just that day, over 100 Michiganders died from the virus and over 1,100 were confirmed infected25—the Governor found “that an emergency [or disaster] has occurred or that the threat of an emergency [or disaster] exists,” triggering her duty under the EMA to declare as such in an executive order or proclamation. MCL 30.403(3), (4); Executive Order 2020-68, Preamble.
In carrying out her statutory duty, the Governor acknowledged that the measures implemented pursuant to her authority under the EMA and the EPGA (like the Stay at Home order, among others) “have been effective, but the need for them—like the unprecedented crisis posed by this global pandemic—is far from over.” Id. She emphasized the continued lack of treatment for the virus, the ease of
25 MLive, Thursday, April 30: Latest developments on coronavirus in Michigan, available at https://www.mlive.com/public-interest/2020/04/thursday-april-30-latestdevelopments-on-coronavirus-in-michigan.html
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transmission, and the “lack [of] adequate means to fully test for it and trace its spread.” Id. Ultimately, the Governor found that “the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” Id. Given her findings and the facts on the ground, the Governor was obligated to issue the declaration.
D. The construction of the Court of Claims and the Legislative Plaintiffs adds limitations on the Governor’s authority that the Legislature did not impose.
The Court of Claims erroneously ruled that the Governor was barred from issuing Executive Order 2020-68. Because the Legislature did not extend the emergency and disaster declarations set to expire on April 30, the Governor terminated them, just as she was required to do. Id. But her duty to issue states of emergency and disaster plainly remained, and was not the subject of those terminated declarations. So, because of the duty to issue such declarations whenever the conditions warrant it—the law states that she “shall” do so—she immediately issued new orders declaring states of emergency and disaster. Id.
The Legislative Plaintiffs’ position—that their refusal to extend requires not only termination of the executive orders, but bars the Governor from issuing distinct and subsequent executive orders—finds no mention in the text. (5/21/20 Ct of Claims Op at 23.) Rather, the Legislature seeks to engraft a second effect of their refusal to extend the Governor’s executive orders: the negation of her duty to respond to emergencies under the EMA.
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To illuminate the legal error (and the real-world stakes) in an all-too-possible factual context, barring the Governor from declaring a state of emergency or disaster on the same subject matter of a prior, un-extended declaration would prohibit her from activating the EMA’s emergency response resources to combat COVID-19, no matter how badly or urgently those resources are needed. How long would the Governor have to wait from the earlier termination before enough time had passed, if the Plaintiffs and the Court of Claims are correct that a minute is simply not long enough? How about a day? A week? Six months? No time period exists in the statute, and this Court should not add some extra-textual time-lapse before the Governor may fulfill her statutory duty to the State and its residents.
Nor is there any requirement in the statute, express or implied, that the Governor’s duty to declare an emergency or disaster may spring back up, but only if the conditions change. (5/21/20 Ct of Claims Op at 23.) And in the absence of any statutory guidance, how is the Governor to know, or a court to review, whether the conditions have sufficiently changed? The EMA does not contemplate this, nor would it make any sense as a matter of emergency response; the decision to declare states of emergency and disaster is entrusted to the sound discretion of the Governor and is based, as it should be, on what the existing conditions require, not on whether they have changed in some undefined and uncertain way. Imposing such extra-textual rules about how and when a Governor can reactivate needed emergency response resources is both unwarranted and dangerous.
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Public health experts warn of a possible second wave of this pandemic. The existence of such unknowns and uncertainties about the future impact of the coronavirus (as with many emergencies or disasters) further supports reading the law as it is, not as the Legislative Plaintiffs would like it to be. The Legislature wrote the law; the Governor followed it. Only the Legislature may amend it.
The Governor is not granted her emergency authority without limit, as the Legislative Plaintiffs’ seemingly warned below. Indeed, although the Governor “shall” declare an emergency or disaster “if he or she finds” that an emergency or disaster has occurred or threat of either exists, she is not empowered to declare either in the absence of the conditions precedent. MCL 30.403(3) and (4). These clear textual limitations should mute the siren-decibel lamentations of the Governor’s purported “tyranny.” (Pls Ct of Claims Br, p 41.)26
And while a Governor’s factual finding of an emergency is entitled to great deference, it is not beyond judicial review. Straus v Governor, 459 Mich 526, 533 (1999), quoting People ex rel Johnson v Coffey, 237 Mich 591, 602 (1927) (“The Governor holds an exalted office. To him, and to him alone, a sovereign people has committed the power and the right to determine the facts in the proceeding before us. His decision of disputed question of fact is final. His finding of fact, if it has
26 The Legislative Plaintiffs bludgeon the Governor’s supposed creation of “new crimes” and for criminalizing violation of her executive orders. (Pls Ct of Claims Reply Br, pp 4, 23–24.) Yet, it is the Legislature that criminalized violation of a Governor’s executive orders. MCL 30.405 (willfully disobeying or interfering with an order of the Governor is a misdemeanor); MCL 10.33 (violation of Governor’s orders “shall be punishable as a misdemeanor” where so stated).
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evidence to support it, is conclusive on this court.”) (emphasis added). If a party disputes the factual support for the Governor’s findings supporting a declaration, it may attempt redress in the courts. But, again, the Legislative Plaintiffs have agreed that emergency and disaster conditions exist.
E. The Legislative Plaintiffs’ responsive arguments do not fully account for the language of the act.
The Legislative Plaintiffs made several arguments below why the Governor’s April 30, 2020 declaration of a state of emergency and state of disaster under the EMA are void. None have merit.
1. No piece of the EMA is invalidated or rendered nugatory. The Court of Claims agreed with the Legislative Plaintiffs’ contention that, under the Governor’s reading, the concurrent-resolution procedure for extending states of emergency and disaster beyond 28 days in MCL 30.403(3) and (4) is rendered meaningless. (5/21/20 Ct of Claims Op and Order, p 24.) Not so. First, the lack of legislative extension after 28 days forces the Governor to terminate those executive orders. That is no mere technicality. This mechanism is a tool to hold the Governor accountable if the conditions supporting a declaration are questionable, or completely lacking. Recall that the declaration “shall” include an explanation of the conditions causing the disaster or emergency and the area affected. MCL 30.403(3) and (4). Therefore, by refusing to extend a declared state of emergency or disaster, the Legislature can force the Governor to prove her
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insistence that an emergency or disaster has not abated, creating an interbranch dialogue on a matter of utmost public importance.27
But that is not the circumstance before the Court—the Legislative Plaintiffs have not denied that Michigan faces a dire public health threat, nor could it in good faith do so. Nonetheless, the Legislature withheld. The statute it drafted, though, does not allow that withholding to override the Governor’s duty to declare states of disaster and emergency, and to cope with the dangers facing the State, when the conditions on the ground warrant it. And wisely so. In a wildfire, the firefighters holding the hose do not pack up if someone shuts off a ringing alarm. Instead, they fight the spread and respond to the conditions as they are.
The lack of legislative extension after 28 days also serves another purpose. It forces the Governor not only to show her work to the Legislature, but to explain to the People the grounds for any renewal of the declarations. This is because all emergency or disaster proclamations must be “disseminated promptly” to “bring its contents to the attention of the general public.” Id. Thus, at least every 28 days, her justifications must be manifest to the whole State, to whom she answers.
Of course, this Court has recognized that it “is not to second-guess those policy decisions or to change the words of a statute in order to reach a different result.” People v Harris, 499 Mich 332, 345 (2016). If the Legislative Plaintiffs now complain that the language they wrote grants them an insufficient measure of
27 Ultimately, as discussed above, this is a determination that, while subject to great deference, is within the courts’ authority to review. See Straus, 459 Mich at 533; Coffey, 237 Mich at 602.
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control over the Governor’s handling of an emergency or disaster, it is up to the Legislature, not this Court, to modify its statutes.
The Legislature had several options for writing its law differently. It could have set an expiration period on her legal duty to declare an emergency, rather than on the just the declaration. Or it could have prohibited the Governor from issuing a substantively similar declaration if the Legislature did not extend the earlier one. It could have constructed the definitions of “state of disaster” and “state of emergency” differently. But the 1976 Legislature wisely did not draft so inflexible and short-sighted a statute. Myriad unforeseen disasters and emergencies awaited future generations, so the Legislature’s words requiring the Governor to issue a declaration where the real-world implications persist was a humble acknowledgement of our predictive limitations, and a trust in the one statewide office equipped to lead a coordinated response.
2. The Governor’s construction does not yield absurd results.
Below, the Legislative Plaintiffs leaned on the concept of absurd results (Pls Ct of Claims Br, pp 21–23), arguing that the Governor issued contradictory orders by simultaneously terminating and declaring states of emergency and disaster. But this, again, shows a misunderstanding both of the Governor’s declarations and of the language of the EMA. Even if the absurd results doctrine exists in Michigan, Johnson v Recca, 492 Mich 169, 193 (2012) (questioning that premise), it involves a high standard: “[a] result is only absurd if it is quite impossible that the Legislature could have intended the result,” id. (cleaned up).
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Again, “state of emergency” and “state of disaster” are, by statutory definition, types of “executive orders.” MCL 30.402(p) and (q). And as the Governor made abundantly clear in Executive Order 2020-66, the termination of her previously declared states of emergency and disaster was not driven by any belief that the emergency and disaster conditions requiring them had ceased to exist. Rather, per the EMA, she terminated those executive orders only because the Legislature refused to extend them. MCL 30.403(3) and (4). Accordingly, Executive Order 2020-66 complies stringently with the law. The Legislature wrote the rules; the Governor followed them.
3. If the Legislative Plaintiffs are right about the authority to effectively veto the Governor’s declarations under the EMA, the Legislature retained an unconstitutional legislative veto under Chadha and Blank.
The Legislative Plaintiffs read the EMA’s concurrent-resolution extension mechanism as a means for the Legislature to force the termination not only of certain orders, but of the Governor’s substantive emergency response authority under the EMA. This reading not only goes beyond contradicting the EMA’s plain text—it is unconstitutional. As discussed above, the Legislature may share its constitutional authority with the Governor provided it prescribes standards for guidance that are reasonably precise in light of the subject matter of the delegation. But once the Legislature does so, it may not retain what amounts to a legislative veto. Blank v Department of Corrections, 462 Mich 103, 113 (2000). If the Legislative Plaintiffs are correct about their interpretation of the concurrentresolution provision, then that body has not just kept a modicum of oversight, but a
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“right to approve or disapprove” the Governor’s exercise of delegated authority—and to do so without itself abiding by constitutional requirements of bicameralism and presentment. Id. Such invasive oversight would violate our Constitution.
In INS v Chadha, 462 US 919 (1983), the U.S. Supreme Court evaluated whether the Constitution permitted Congress to delegate authority to the executive but permit one house of Congress to retain veto authority over the actions of the executive. The Court held that such a maneuver violated the principle of bicameralism and presentment. Id. at 959. Just as in Chadha, where there was “[d]isagreement with the Attorney General’s decision on Chadha‘s deportation— that is, Congress’ decision to deport Chadha,” here, the Legislative Plaintiffs disagree with the Governor’s decision to declare states of disaster and emergency in Michigan and to activate the response resources that accompany those declarations. Id. at 954. Such “determinations of policy” by legislative branches may be implemented “in only one way”: bicameral passage and presentment to the President (or Governor). Id. at 954–955. “Congress must abide by its delegation of authority until that delegation is legislatively altered or revoked.” Id. at 955.
In Blank, this Court applied the framework in Chadha in considering the constitutionality of a 1977 amendment to the Administrative Procedures Act, which required an administrative agency to “obtain the approval of a joint committee of the Legislature or the Legislature itself before enacting new administrative rules.” 462 Mich at 108 (Kelly, J.). The Court framed the issue as follows: “[W]hether the Legislature, upon delegating [rulemaking authority to an executive-branch agency],
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may retain the right to approve or disapprove rules proposed by [the agency].” Id. at 113. The plurality opinion ultimately answered that question in the negative, finding that the Legislature’s approval or disapproval of an executive-agency rule is “inherently legislative” and therefore “subject to the enactment and presentment requirements of the Michigan Constitution.” Id. at 115–116.
The same conclusion holds for any determination by the Legislature that the Governor can no longer exercise the emergency powers the Legislature has vested in her through the EMA. Effectuating such an inherently legislative determination requires legislative action, and “[w]hen the Legislature engages in ‘legislative action’ it must do so by enacting legislation.” Id. at 119. “[T]he Legislature cannot circumvent the enactment and presentment requirements [that must accompany legislative action] simply by labeling or characterizing its action as something other than ‘legislation.’ ” Id. The Legislative Plaintiffs thus cannot complain that the EMA’s concurrent-resolution procedure has not been given the effect they would like it to have, because that effect—a legislative veto of the Governor’s delegated authority—would be unconstitutional.
The Court of Claims erred in concluding that “[t]he 28-day limit is not legislative oversight or a ‘veto’ of the Governor’s emergency declaration; rather, it is a standard imposed on the authority so delegated.” (5/21/20 Ct of Claims Op and Order, p 25.) But that conclusion is a consequence of the erroneous determination that the legislative extension provision does more work than the text provides. The Legislature’s withholding only results in the termination of certain executive
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orders; it does not operate as a “stop” button on the duty the Legislature delegated to the Governor to respond to emergencies and disaster. The Legislature “must abide by its delegation of authority until that delegation is legislatively altered or revoked,” Chadha, 462 US at 955, through the means set forth in the Constitution.
* * * The Legislative Plaintiffs ask this Court to nullify the Governor’s declarations and all of the executive orders derived from them, like the incrementally loosening Stay Home Order, among others. The emergency and disaster declarations issued by the Governor were executed after careful consideration of the unique nature of the threat facing Michigan and the advice of numerous individuals and entities with unique expertise. To judicially strip the Governor of her authority, contrary to her clear legal obligations, would not just upset the separation of powers, it would work grievous harm on the State and its citizens. If asking this Court to strike down its own statute as unconstitutional is not ironic enough, the Legislative Plaintiffs come to the judiciary seeking a shortcut to do something it already has the power to do—amend the challenged laws. Because both emergency acts grant the Governor the authority she has exercised, and because she has stringently abided by the very terms the Legislature used in granting that power, this Court should hold that the Governor’s executive orders were proper.
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CONCLUSION AND RELIEF REQUESTED The Governor asks this Court to grant the bypass applications, determine that the Michigan House of Representatives and Michigan Senate do not have standing, and hold in the alternative on the merits—that the Governor’s Executive Orders 2020-66, 2020-67, and 2020-68 are validly issued orders under the EPGA and EMA.
Respectfully submitted, B. Eric Restuccia Deputy Solicitor General

Dated: May 29, 2020

/s/ Christopher M. Allen Christopher M. Allen (P75329) Assistant Solicitor General
/s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Assistant Attorney General
Joshua Booth (P53847) John Fedynsky (P65232) Assistant Attorneys General Michigan Dep’t of Attorney General Attorney for Defendant-Appellee/ Cross-Appellant P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov fedynksyj@michigan.gov

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, AND JEFFERY GULICK,
Plaintiffs,
v

No. 1:20-cv-00414 HON. PAUL L. MALONEY MAG. PHILLIP J. GREEN

GRETCHEN WHITMER in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Defendants.

Amy Elizabeth Murphy (P82369) Steven James van Stempvoort (P79828) James Richard Peterson (P43102) Miller Johnson PLC (Grand Rapids) Attorneys for Plaintiffs 45 Ottawa SW, Suite 1100 Grand Rapids, MI 49503 616.831.1700 murphya@millerjohnson.com vanstempvoorts@millerjohnson.com petersonj@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-Counsel for Plaintiffs 140 W. Main Street Midland, MI 48640 989.631.0900 wright@mackinac.org

John G. Fedynsky (P65232) Christopher M. Allen (P75329) Joseph T. Froehlich (P71887) Joshua O. Booth (P53847) Assistant Attorneys General Attorneys for Defendants Whitmer & Gordon State Operations Division P.O. Box 30754 Lansing, MI 48909 517.335.7573 fedynskyj@michigan.gov allenc28@michigan.gov froehlichj1@michigan.gov boothj2@michigan.gov
Ann Maurine Sherman (P67762) Solicitor General Attorney for Defendant Nessel

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Rebecca Ashley Berels (P81977) Assistant Attorney General Attorney for Defendant Nessel Criminal Appellate Division P.O Box 30217 Lansing, MI 48909 517.335.7650 berelsr1@michigan.gov

P.O. Box 30212 Lansing, MI 48909 517.335.7628 shermana@michigan.gov
/

Exhibit O

2

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Cite as: 590 U. S. (2020)

1

ROBERTS, C. J., concurring
SUPREME COURT OF THE UNITED STATES

No. 19A1044
SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[May 29, 2020]
The application for injunctive relief presented to JUSTICE KAGAN and by her referred to the Court is denied.
JUSTICE THOMAS, JUSTICE ALITO, JUSTICE GORSUCH, and JUSTICE KAVANAUGH would grant the application.
CHIEF JUSTICE ROBERTS, concurring in denial of application for injunctive relief.
The Governor of California’s Executive Order aims to limit the spread of COVID–19, a novel severe acute respiratory illness that has killed thousands of people in California and more than 100,000 nationwide. At this time, there is no known cure, no effective treatment, and no vaccine. Because people may be infected but asymptomatic, they may unwittingly infect others. The Order places temporary numerical restrictions on public gatherings to address this extraordinary health emergency. State guidelines currently limit attendance at places of worship to 25% of building capacity or a maximum of 100 attendees.
Applicants seek to enjoin enforcement of the Order. “Such a request demands a significantly higher justification than a request for a stay because, unlike a stay, an injunction does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.” Respect Maine PAC v. McKee, 562 U. S. 996 (2010) (internal quotation marks omitted). This

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2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
ROBERTS, C. J., concurring
power is used where “the legal rights at issue are indisputably clear” and, even then, “sparingly and only in the most critical and exigent circumstances.” S. Shapiro, K. Geller, T. Bishop, E. Hartnett & D. Himmelfarb, Supreme Court Practice §17.4, p. 17-9 (11th ed. 2019) (internal quotation marks omitted) (collecting cases).
Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.
The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.” Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905). When those officials “undertake[ ] to act in areas fraught with medical and scientific uncertainties,” their latitude “must be especially broad.” Marshall v. United States, 414 U. S. 417, 427 (1974). Where those broad limits are not exceeded, they should not be subject to second-guessing by an “unelected federal judiciary,” which lacks the background, competence, and expertise to assess public health and is not accountable to the people. See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 545 (1985).
That is especially true where, as here, a party seeks

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Cite as: 590 U. S. (2020)

3

ROBERTS, C. J., concurring
emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground. The notion that it is “indisputably clear” that the Government’s limitations are unconstitutional seems quite improbable.

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Cite as: 590 U. S. (2020)

1

KAVANAUGH, J., dissenting
SUPREME COURT OF THE UNITED STATES

No. 19A1044
SOUTH BAY UNITED PENTECOSTAL CHURCH, ET AL. v. GAVIN NEWSOM, GOVERNOR OF CALIFORNIA, ET AL.
ON APPLICATION FOR INJUNCTIVE RELIEF
[May 29, 2020]
JUSTICE KAVANAUGH, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting from denial of application for injunctive relief.
I would grant the Church’s requested temporary injunction because California’s latest safety guidelines discriminate against places of worship and in favor of comparable secular businesses. Such discrimination violates the First Amendment.
In response to the COVID–19 health crisis, California has now limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower. The basic constitutional problem is that comparable secular businesses are not subject to a 25% occupancy cap, includ-
ing factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.
South Bay United Pentecostal Church has applied for temporary injunctive relief from California’s 25% occupancy cap on religious worship services. Importantly, the Church is willing to abide by the State’s rules that apply to comparable secular businesses, including the rules regarding social distancing and hygiene. But the Church objects to a 25% occupancy cap that is imposed on religious worship services but not imposed on those comparable secular businesses.

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2 SOUTH BAY UNITED PENTECOSTAL CHURCH v. NEWSOM
KAVANAUGH, J., dissenting
In my view, California’s discrimination against religious worship services contravenes the Constitution. As a general matter, the “government may not use religion as a basis of classification for the imposition of duties, penalties, privileges or benefits.” McDaniel v. Paty, 435 U. S. 618, 639 (1978) (Brennan, J., concurring in judgment). This Court has stated that discrimination against religion is “odious to our Constitution.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U. S. , (2017) (slip op., at 15); see also, e.g., Good News Club v. Milford Central School, 533 U. S. 98 (2001); Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 (1993); Lamb’s Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384 (1993); McDaniel, 435 U. S. 618.
To justify its discriminatory treatment of religious worship services, California must show that its rules are “justified by a compelling governmental interest” and “narrowly tailored to advance that interest.” Lukumi, 508 U. S., at 531–532. California undoubtedly has a compelling interest in combating the spread of COVID–19 and protecting the health of its citizens. But “restrictions inexplicably applied to one group and exempted from another do little to further these goals and do much to burden religious freedom.” Roberts v. Neace, 958 F. 3d 409, 414 (CA6 2020) (per curiam). What California needs is a compelling justification for distinguishing between (i) religious worship services and (ii) the litany of other secular businesses that are not subject to an occupancy cap.
California has not shown such a justification. The Church has agreed to abide by the State’s rules that apply to comparable secular businesses. That raises important questions: “Assuming all of the same precautions are taken, why can someone safely walk down a grocery store aisle but not a pew? And why can someone safely interact with a brave deliverywoman but not with a stoic minister?” Ibid.

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Cite as: 590 U. S. (2020)

3

KAVANAUGH, J., dissenting
The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.” Ibid.
California has ample options that would allow it to combat the spread of COVID–19 without discriminating against religion. The State could “insist that the congregants adhere to social-distancing and other health requirements and leave it at that—just as the Governor has done for comparable secular activities.” Id., at 415. Or alternatively, the State could impose reasonable occupancy caps across the board. But absent a compelling justification (which the State has not offered), the State may not take a looser approach with, say, supermarkets, restaurants, factories, and offices while imposing stricter requirements on places of worship.
The State also has substantial room to draw lines, especially in an emergency. But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.
In sum, California’s 25% occupancy cap on religious worship services indisputably discriminates against religion, and such discrimination violates the First Amendment. See Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S. 1312 (1986) (Scalia, J., in chambers). The Church would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities. I would therefore grant the Church’s request for a temporary injunction. I respectfully dissent.

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

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,

Plaintiffs, vs.
GRETCHEN WHITMER, in her official capacity as Governor of the State of Michigan, DANA NESSEL, in her official capacity as Attorney General of the State of Michigan, and ROBERT GORDON, in his official capacity as Director of the Michigan Department of Health and Human Services,

Case No. 1:20-cv-00414
Hon. Paul L. Maloney
PLAINTIFFS’ RESPONSE BRIEF OPPOSING DEFENDANTS’ JOINT MOTION FOR RECONSIDERATION

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

Ann M. Sherman (P67762) Deputy Solicitor General Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov berelsr1@michigan.gov

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

Christopher M. Allen Joshua O. Booth John G. Fedynsky Joseph T. Froehlich Assistant Attorneys General for Defendants Witmer and Gordon P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 Allenc28@michigan.gov Buthj2@michigan.gov fedynsky@michigan.gov Froehlichj1@michigan.gov

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Introduction The Defendants are not entitled to reconsideration of this Court’s decision to certify certain state law questions. The Defendants’ belated attempt to invoke sovereign immunity—after they filed voluminous motions to dismiss, submitted two sets of opposition briefs, and participated in a hearing on the state law questions without objection—is the type of litigation conduct demonstrating a clear intent to waive sovereign immunity. That the Defendants asserted sovereign immunity only after they suffered an adverse ruling crystallizes the unfair tactical advantage they seek to gain. Moreover, it remains appropriate for this Court to certify the questions of state law to the Michigan Supreme Court, whose resolution may obviate the need for this Court to weigh in on any of the claims in this case.
Argument I. The Eleventh Amendment defense does not divest this Court of jurisdiction.
At the outset, the Defendants are incorrect that the Eleventh Amendment divests this Court of subject matter jurisdiction over Counts I and II of the Plaintiffs’ Complaint. The Supreme Court has held that the Eleventh Amendment “does not automatically destroy original jurisdiction. Rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so.” Wisconsin Dep’ of Corr. v. Schacht, 524 U.S. 381, 389 (1998).
It is well established that parties may not, by their conduct, confer subject matter jurisdiction on a federal court. Franzel v. Kerr Mfg. Co., 959 F.2d 628, 629 (6th Cir. 1992) (collecting cases). Yet it is also well established that the State may waive its sovereign immunity. See, e.g., Lapides v. Bd. of Regents of Univ. Sys. of Georgia, 535 U.S. 613, 623 (2002). Moreover, a federal court has no obligation to raise an Eleventh Amendment issue on its own. “Unless the State raises the matter, a court can ignore it.” Schacht, 524 U.S. at 389.
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That the sovereign immunity defense can be waived by the State and ignored by a court demonstrates that it is a defense of immunity and not of subject matter jurisdiction. See Kovacevich v. Kent State Univ., 224 F.3d 806, 816 (6th Cir. 2000) (reasoning that the Supreme Court has stated that “the Eleventh Amendment is not jurisdictional, and is not akin to the complete diversity requirement”). The key question is not whether the Court has subject matter jurisdiction over Counts I and II, but whether Defendants timely invoked the sovereign immunity defense, and, even so, whether that defense prevents this Court from certifying questions of state law to the Michigan Supreme Court. The answer to both questions is no. II. The Defendants waived Eleventh Amendment immunity by filing two separate
opposition briefs and moving to dismiss without ever invoking immunity—and only raising the defense after they lost.
As the Defendants concede, the State may waive its sovereign immunity through its litigation conduct. The doctrine of waiver by litigation conduct rests upon the “judicial need to avoid inconsistency, anomaly, and unfairness.” Lapides, 535 U.S. at 620. It prevents the State from selectively invoking immunity “to achieve unfair tactical advantages.” Id. at 621. The Defendants are correct that there is no per se rule regarding when a state defendant waives the sovereign immunity defense. Instead, the focus of the inquiry is on “the litigation act the State takes that creates the waiver.” Lapides, 535 U.S. at 620.
Cases addressing waiver by litigation conduct illustrate that the State may not actively litigate the case, only to belatedly assert the sovereign immunity defense to gain a tactical advantage. For example, the Sixth Circuit held in Ku v. State of Tennessee, 322 F.3d 431 (6th Cir. 2003), that where a state defendant “appear[s] without objection and defend[s] on the merits in a case over which the district court otherwise has original jurisdiction,” that litigation conduct “is sufficient to waive a State’s defense of Eleventh Amendment immunity.” Id. at 435. In that case, the state defendant waited until after it received an adverse judgment to invoke sovereign
2

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immunity, “reveal[ing] that it had its fingers crossed behind its metaphorical back the whole time.” 322 F.3d at 435. The court rejected that strategic behavior, holding that the state defendant waived sovereign immunity by its conduct. Likewise, in In re Bliemeister, 296 F.3d 858 (9th Cir. 2002), the Ninth Circuit held that a state defendant waived sovereign immunity when it filed a response, answer, and motion for summary judgment, then attended an oral argument and heard the court announce its preliminary leanings, all without raising the issue of sovereign immunity. Id. at 862. Only after the court indicated its preliminary ruling did the state defendant assert that the claims were barred by sovereign immunity. Id. The court rejected the defendant’s attempt, reasoning that “[t]o allow a state to assert sovereign immunity after listening to a court’s substantive comments on the merits of a case would give the state an unfair advantage when litigating suits.” Id.
In this case, the Defendants committed several substantial litigation acts without once invoking their sovereign immunity. These acts demonstrate their intent to waive their immunity defense, and they underscore the unfair advantage that Defendants now seek to gain:
First, on May 22, 2020, the Defendants filed hundreds of pages in opposition to the Plaintiffs’ motion for preliminary injunction. PageID.442-532 (Defendant Nessel’s response and exhibits); PageID.794-1044 (Defendants Whitmer and Gordon’s response and exhibits). In support of the Plaintiffs’ motion, the Plaintiffs principally argued that they were likely to succeed on the merits of the state law claims in Counts I and II and spent the majority of their brief addressing those claims. PageID.255-266. Yet in the Defendants’ voluminous responsive briefs, the Defendants did not once claim that they enjoyed sovereign immunity from Counts I and II. Instead, the Defendants made several arguments, including ones that addressed the merits of the Plaintiffs’ state law claims, and argued that the Governor’s Executive Orders at issue in this case
3

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were valid and reasonable given the severity of the pandemic. PageID.467-471; PageID.829-839. None of the Defendants raised the Eleventh Amendment at this stage.
Second, on June 2, and June 5, 2020, the Defendants filed lengthy motions to dismiss, but again they did not invoke the sovereign immunity defense. PageID.1370-1456 (Defendant Nessel’s motion to dismiss, supporting brief, and exhibits); PageID.1774-2042 (Defendant Whitmer and Gordon’s motion to dismiss, supporting brief, and exhibits). Though the Defendants moved to dismiss Counts I and II, they never once uttered “sovereign immunity” in addressing those claims. Instead, they spent many pages arguing that the state law claims were moot, that this Court should decline to exercise supplemental jurisdiction over them because they raise novel issues of Michigan law, and that the claims failed on the merits. The Defendants’ failure to invoke sovereign immunity as to Counts I and II was tactical: Defendants Whitmer and Gordon did not ignore sovereign immunity altogether but instead argued that the Eleventh Amendment barred only the Plaintiffs’ claims for money damages. PageID. 1794-1795.
Third, on June 5, 2020, the Defendants filed even more voluminous briefing requesting that this Court decline to certify questions of state law to the Michigan Supreme Court. PageID.1603-1698 (Defendants Whitmer and Gordon’s brief and exhibits); PageID.1699-1773 (Defendant Nessel’s brief and exhibits). All Defendants raised arguments for why this Court should either dismiss Counts I and II or decline to exercise supplemental jurisdiction over them. They acknowledged that these were state law claims concerning “the scope and state constitutionality of two Michigan statutes.” PageID.1607; see also PageID.1712 (“the predominant issues in this case concern the validity and scope of the Governor’s statutory authority to act during an emergency or disaster”). But they did not invoke sovereign immunity.
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Fourth, on June 10, 2020, the Defendants participated in a hearing conducted by this Court to determine whether to certify state law questions to the Michigan Supreme Court. Defendants appeared at that hearing without objection. Though they raised many arguments for not certifying the state law questions—and even requested that the Court dismiss the Plaintiffs’ claims with prejudice—they never raised sovereign immunity. The Court decided to certify the state law questions over the Defendants’ objections. The very next day, June 11, 2020, the Defendants asserted sovereign immunity for the first time. PageID.2045 (“By this filing, Defendants also raise Eleventh Amendment Immunity regarding Plaintiffs’ state law claims in Counts I and II . . . .”)
As in Ku and Bleimester, the Defendants’ belated assertion of the sovereign immunity defense would give the Defendants an unfair tactical advantage. The Defendants have now made several attempts to air their arguments and resolve Counts I and II both on jurisdictional grounds and on the merits. Though the case may be relatively young in age, the urgency of the case has caused proceedings to mature rapidly, and Defendants have already amassed a huge volume of briefs and filed more pages than many cases see in the entirety of their proceedings. In some of the briefing, Defendants Whitmer and Gordon even acknowledge that the Eleventh Amendment would apply to the Plaintiffs’ claims for damages (but not to Counts I and II). Until June 11, Defendants did not assert sovereign immunity as to Counts I and II in any brief or filing, including any of the motion to dismiss briefing. That fact distinguishes this case from Barachkov v. Davis, 580 F. App’x 288 (6th Cir. 2014), where the defendant did not file a motion to dismiss but raised the issue of sovereign immunity in its answer to the complaint and again in its amended affirmative defenses.
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Moreover, the Defendants appeared, without objection, at a hearing before this Court that centered on the potentially dispositive state law questions. At the hearing, the Defendants had the opportunity to test their arguments and to listen to this Court’s comments on the state law claims. Only after the Defendants lost on the issue of certification—a result they fought hard to avoid, and which effectively denied their request that this Court dismiss the Plaintiffs’ claims with prejudice—did they invoke the sovereign immunity defense for the first time. Under Lapides, the Defendants’ tactical decision to invoke sovereign immunity after they actively litigated the case and received an adverse ruling should be rejected. III. Certification of the state law questions gives the highest state court the opportunity
to resolve state law issues that may obviate the need for this Court to rule on the Plaintiffs’ federal constitutional claims.
Even if this Court determines that the Defendants did not waive sovereign immunity, certification of the state law questions is nonetheless proper. Thus, a different disposition would not result from the Plaintiffs’ motion for reconsideration.
Under MCR 7.308(A)(2)(a), when this Court “considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent,” it may certify the question to the Michigan Supreme Court. Likewise, under Local Rule 83.1, this Court “may certify an issue for decision to the highest court of the state whose law governs any issue, claim or defense in the case.”
The Michigan Supreme Court’s answer to the state law questions may make it unnecessary for this Court to rule on the Plaintiff’s federal constitutional claims in Counts III through VI of the complaint. For example, the Michigan Supreme Court may determine that the Governor’s Executive Orders are invalid under the Emergency Powers of the Governor Act or Emergency Management Act. Or the Michigan Supreme Court may hold that those acts violate the Separation of Powers or Non-Delegation Clauses of the Michigan Constitution. Either answer
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may obviate the need for this Court to weigh in on the remaining counts and allow the Court to

avoid answering the constitutional questions. Accordingly, certification remains the proper course

in this case, regardless of the Defendants’ belated assertion of immunity.

Conclusion The Plaintiffs respectfully request that this Court deny Defendants’ Joint Motion

for Reconsideration and proceed with certifying the following questions to the Michigan Supreme

Court:

1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.
MILLER JOHNSON Attorneys for Plaintiffs

Dated: June 12, 2020

By /s/ James R. Peterson
James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com

MJ_DMS 31920193v2

Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org
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 Case 1:20-cv-00414-PLM-PJG ECF No. 42 filed 06/16/20 PageID.2097 Page 1 of 8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC,

)

d/b/a GRAND HEALTH PARTNERS, et al.,

)

Plaintiffs,

)

) No. 1:20-cv-414

-v-

)

) Honorable Paul L. Maloney

GRETCHEN WHITMER, et al.,

)

Defendants.

)

)

ORDER DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION

This matter is before the Court on Defendants’ motion for reconsideration (ECF

No. 38). Plaintiffs oppose the motion (ECF No. 40). For the reasons to be explained, the

Court will deny the motion.

A motion for reconsideration may be granted when the moving party demonstrates a

“palpable defect” by which the Court and parties have been misled and a showing that a

different disposition of the case must result from the correction of the mistake. W.D. Mich.

LCivR 7.4(a). The decision to grant or deny a motion for reconsideration under this Local

Rule is within the district court’s discretion. See Evanston Ins. Co. v. Cogswell Properties,

LLC, 683 F.3d 684, 691 (6th Cir. 2012) (citation omitted).

A motion for reconsideration is not an opportunity to present new arguments that

could have been presented before the court issued its ruling, but an opportunity for the court

to reconsider those arguments already presented. Sault Ste. Marie Tribe of Chippewa

Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998); see also Evanston Ins., 683 F.3d at 692

(reviewing the district court’s application of the palpable defect standard and upholding the

Case 1:20-cv-00414-PLM-PJG ECF No. 42 filed 06/16/20 PageID.2098 Page 2 of 8
denial of the motion for reconsideration because the arguments advanced in the motion were not raised during the prior proceedings). Nor is a motion for reconsideration a second opportunity for a party to present “new explanations, legal theories, or proofs.” Jinks v. AlliedSignal, Inc., 250 F.3d 381, 385 (6th Cir. 2001). This rule can only be overlooked “in exceptional cases,” or when the rule would produce a “plain miscarriage of justice.” Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 552 (6th Cir. 2008) (quoting Foster v. Barilow, 6 F.3d 405, 407 (6th Cir. 1993)).
Despite submitting briefs and presenting oral argument on the issue of whether to certify questions to the Michigan Supreme Court, no Defendant has raised the issue of Eleventh Amendment immunity as a bar to certification until the present motion for reconsideration. Thus, the Court would normally not consider the issue: the time to raise this argument has passed. See Evanston Ins., 683 F.3d at 692; Jinks, 250 F.3d at 385.
However, the Court recognizes that “Eleventh Amendment issues are jurisdictional in nature.” Russell v. Lundergan-Grimes, 784 F.3d 1037, 1046 (6th Cir. 2015). Once the Eleventh Amendment has been raised as a jurisdictional defect, the Court must address the issue before moving to the merits of the case. Id. Accordingly, the motion for reconsideration presents an “exceptional case” such that the Court will consider it on the motion for reconsideration. See Scottsdale Ins., 513 F.3d at 552.
“The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363 (2001). Suits brought against state officials in their official capacity are equivalent to suits against the state itself. See Kentucky v. Graham, 473
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U.S. 159, 166 (1985); Cady v. Arenac County, 574 F.3d 334, 342 (6th Cir. 2009). Plaintiffs bring this case against Defendants solely in their official capacities, so the Defendants may be sheltered from suit by the Eleventh Amendment.
The Eleventh Amendment provides broad constitutional immunity to state actors, but the Supreme Court has long recognized an exception for forward-looking injunctive relief: federal courts may enjoin state officials from the future enforcement of state legislation that violates federal law. Ex parte Young, 209 U.S. 123, 159-60 (1908). However, the “purposes of Ex parte Young do not apply to a lawsuit designed to bring a State into compliance with state law.” Ernst v. Rising, 427 F.3d 351, 368 (2005); see also Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 106. It follows that state officials enjoy Eleventh Amendment immunity for all lawsuits that bring state-law claims against state officials in federal court, whether the claims are monetary or injunctive in nature. Id; see also Freeman v. Michigan Department of State, 808 F.2d 1174, 1179 (6th Cir. 1987).
Plaintiffs do seek prospective injunctive relief: they wish to enjoin Defendants from enforcing the “Stay at Home” executive orders that are still in place in Michigan. But they do so, in part, by requesting that this Court bring Defendants in line with Michigan law, not federal law. In Count I, Plaintiffs request a declaration that all executive orders Governor Whitmer has issued since April 30, 2020 are unlawful exercises of authority under state law. In Count II, Plaintiffs request a declaration that all executive orders Governor Whitmer has issued regarding the pandemic, regardless of timing, are unlawful because she has justified them with two state laws that are unconstitutional delegations of legislative authority under the Michigan constitution. In these two Counts, Plaintiffs seek to bring Defendants in line
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with Michigan law and the Michigan constitution. Plaintiffs have brought two state-law claims against state officials in federal court. Accordingly, Defendants may be entitled to Eleventh Amendment immunity on Counts I and II.
But the Eleventh Amendment does simply not provide an exit ticket on Defendants, to be shown at any time during litigation. States may waive their Eleventh Amendment immunity by their conduct in federal court. Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 618 (2002). The waiver doctrine prevents states from selectively invoking immunity “to achieve unfair tactical advantages.” Id. at 621. Evaluating whether the state has waived its Eleventh Amendment immunity is a case-specific analysis, focused on the whole of the state’s conduct in the litigation.
The Sixth Circuit has held that Eleventh Immunity was waived when the state “engaged in extensive discovery and then invited the district court to enter judgment on the merits. It was only after judgment was adverse to the State that it revealed that it had its fingers crossed behind its metaphorical back the whole time.” Ku v. State of Tennessee, 322 F.3d 431, 435 (6th Cir. 2003). That conduct – appearing without objection and defending the case on the merits – was sufficient to waive the state’s defense of Eleventh Amendment immunity, and Tennessee could not raise it post-judgment. Id. Similarly, the Ninth Circuit has held that Eleventh Amendment immunity is waived where a state files an answer, moves for summary judgment, presents oral argument on the merits of the case, hears the Court’s preliminary (adverse) findings, and then moves to dismiss on immunity grounds. In re Bliemeister, 296 F.3d 858, 862 (9th Cir. 2002). Again, that conduct was “clearly a tactical decision,” and allowing the state “to assert sovereign immunity after listening to a court's substantive
4

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comments on the merits of a case would give the state an unfair advantage when litigating suits.” Id.
While the Court appreciates that this case is barely a month old, Defendants’ statements and actions evidence an intent to waive their Eleventh Amendment immunity. In the face of Plaintiffs’ motion for a preliminary injunction, the Defendants filed a combined 107 pages of briefing. Defendants Whitmer and Gordon raised multiple abstention doctrines, but in the alternative, presented arguments on the merits of Counts I and II (See ECF No. 20 at § III.B). There is no mention of Eleventh Amendment immunity. Defendant Nessel argued that the case was moot, but in the alternative, addressed the merits of Counts I and II (See ECF No. 15 at § I.B.1). She makes no mention of Eleventh Amendment immunity.
In early June, the Defendants filed lengthy motions to dismiss. Again, Defendants Whitmer and Gordon make multiple arguments that this Court should not adjudicate the case, including abstention, ripeness, mootness, standing, and issues with supplemental jurisdiction (ECF No. 35-1). However, this motion contains only a passing reference to the Eleventh Amendment to state that Plaintiffs are not entitled to money damages (Id. at § I.A). And again, the motion makes arguments on the merits of Counts I and II (Id. at § III.A). Defendant Nessel presents a similar motion to dismiss, arguing that there are several reasons why this Court should not adjudicate the case, but like the other Defendants, makes only a passing reference to the Eleventh Amendment as it relates to money damages (ECF No. 27 at § IV.B).
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At the Court’s invitation, all parties filed briefs regarding the certification of issues of state law to the Michigan Supreme Court. In their opposition to certification, Defendants Whitmer and Gordon argued that the case was moot or non-justiciable but did so without invoking the Eleventh Amendment (ECF No. 33). Similarly, Defendant Nessel argued that the case was moot, or that the case should be held in abeyance, but did not invoke Eleventh Amendment immunity (ECF No. 34). When the Court heard argument on the certification issue, Defendants appeared without objection. They made several arguments against certification and offered several options to the Court: dismiss Counts I and II with prejudice because they were moot, not yet ripe, or Plaintiffs lacked standing; dismiss Counts I and II without prejudice to allow Plaintiffs to file those claims in Michigan Courts; hold Counts I and II in abeyance pending resolution of the issues in the Michigan Courts; or hold the entire case in abeyance pending the same. At no time during the hearing did any Defendant claim they were entitled to Eleventh Amendment immunity on Counts I and II. At the close of the hearing, the Court indicated that it would certify the questions presented in Counts I and II to the Michigan Supreme Court and that a written opinion would issue. The following day, Defendants brought this motion for reconsideration, raising Eleventh Amendment immunity for the first time.
As in Ku and Bliemester, the Defendants have waited until after they received an unfavorable decision from the Court to raise the Eleventh Amendment as a defense. By the Court’s count, the Defendants have put forth at least seven different arguments as to why this Court does not have jurisdiction over, or should not exercise its jurisdiction to hear, Counts I and II. Defendants have also repeatedly put forth alternative arguments on the merits of
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Counts I and II. And perhaps most telling, Defendants have repeatedly asked this Court to postpone the exercise of its jurisdiction over Counts I and II until the Michigan Courts can resolve the question. At that point, they say, the Court can proceed to adjudicate this case. But when the Court attempted to do just that by certifying questions of law to the Michigan Supreme Court, Defendants suddenly invoked Eleventh Amendment Immunity.
Unlike Ku and Bliemester, this case has not lingered on the Court’s docket for months, nor has it proceeded through discovery or extensive motion practice. However, given the rapidly changing circumstances that underpin this case, as well as the gravity of the issues presented, the case has progressed quickly and voluminously.1
Given the totality of the circumstances, the Court finds that Defendants have waived their Eleventh Amendment immunity. Despite filing multiple briefs urging the Court not to hear Counts I and II, Defendants did not assert the Eleventh Amendment until after receiving an apparently unfavorable decision on June 10, 2020. At that point, they decided they wanted out and invoked the Eleventh Amendment. Defendants selectively, belatedly invoked Eleventh Amendment immunity to “achieve unfair tactical advantages.” Lapides, 535 U.S. at 621. Therefore, the Court finds that defendants have waived their Eleventh Amendment immunity. Accordingly,
1 In 30 days, the parties have filed over 2,000 pages of briefing and exhibits.
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IT IS HEREBY ORDERED that Defendants’ motion for reconsideration (ECF No.

38) is DENIED.

IT IS SO ORDERED.

Date: June 16, 2020

/s/ Paul L. Maloney Paul L. Maloney United States District Judge

8

Case 1:20-cv-00414-PLM-PJG ECF No. 43 filed 06/16/20 PageID.2105 Page 1 of 6

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC,

)

d/b/a GRAND HEALTH PARTNERS, et al.,

)

Plaintiffs,

)

) No. 1:20-cv-414

-v-

)

) Honorable Paul L. Maloney

GRETCHEN WHITMER, et al.,

)

Defendants.

)

)

OPINION

This case presents extremely important issues of Michigan state law. The issues

presented here, however, have never been considered by the Michigan Court of Appeals or

the Michigan Supreme Court. This Court notified the parties that it was considering certifying

two questions to the Michigan Supreme Court on May 28, 2020 (See ECF No. 23). The

Court held a hearing on June 10, 2020 and heard argument on the issue. For the reasons to

be explained, the Court will certify the following questions to the Michigan Supreme Court:

1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.

2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.

As a preliminary matter, Defendants argue that certification is not proper at this

juncture because Plaintiffs’ claims are completely moot. The Court disagrees. Certainly, the

primary relief Plaintiffs requested – the repeal of EO 2020-17 – has occurred. However, the

Case 1:20-cv-00414-PLM-PJG ECF No. 43 filed 06/16/20 PageID.2106 Page 2 of 6
remainder of the relief Plaintiffs request may still be granted to them. Throughout the complaint, Plaintiffs challenge the “Stay at Home” orders issued by Governor Whitmer.1 In Count I, Plaintiffs allege that the Stay at Home orders are unlawful exercises of authority under state law; in Count II, Plaintiffs allege that the Stay at Home orders are unenforceable because they are based on impermissible delegations of legislative authority. Thus, the question of the Stay at Home orders’ legality lingers as long as the Stay at Home orders remain in place.
Moreover, while Plaintiffs have been allowed to reopen their healthcare businesses to some degree, EO 2020-114 places 15 new workplace safety requirements on healthcare facilities, including limiting the number of appointments Plaintiffs can schedule daily. While Plaintiffs did volunteer to put in place some protective practices (see, e.g., Complaint at ¶ 32), they did not volunteer to operate at a limited capacity. The Governor is still placing restrictions on Plaintiffs and as above, the Plaintiffs have challenged the validity of the executive orders propagating those restrictions. Given the continued restrictions on Plaintiffs’ ability to operate and the ongoing challenge to the validity of the Stay at Home executive orders, the Court finds that the case is not moot at this time.
The process of certification is governed by two court rules: Local Civil Rule 83.1 and Michigan Court Rule 7.208. Local Civil Rule 83.1 provides:
Certification of issues to state courts - Upon motion or after a hearing ordered by the judge sua sponte, the court may certify an issue for decision to the highest court of the state whose law governs any issue, claim or defense in the case. An order of certification shall be accompanied by written findings that: (a) the issue certified is an unsettled issue of state law; (b) the issue certified will
1 At the time the Complaint was filed, Plaintiffs challenged EO 2020-77. That order has since been rescinded and replaced multiple times. At the time of writing, the operative “Stay at Home” order is EO 2020-115.
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likely affect the outcome of the federal suit; and (c) certification of the issue will not cause undue delay or prejudice. The order shall also include citation to authority authorizing the state court involved to resolve certified questions. In all such cases, the order of certification shall stay federal proceedings for a fixed time, which shall be subsequently enlarged only upon a showing that such additional time is required to obtain a state court decision. In cases certified to the Michigan Supreme Court, in addition to the findings required by this rule, the court must approve a statement of facts to be transmitted to the Michigan Supreme Court by the parties as an appendix to briefs filed therein.
W.D. Mich. L. Civ. R. 83.1. The relevant portion of the Michigan Court Rule provides:
(a) When a federal court, another state's appellate court, or a tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Court. (b) A certificate may be prepared by stipulation or at the certifying court's direction, and must contain
(i) the case title; (ii) a factual statement; and (iii) the question to be answered. The presiding judge must sign it, and the clerk of the federal, other state, or tribal court must certify it.
M.C.R. 7.308(A)(2).
Certifying an issue to a state supreme court is appropriate “when the question is new
and state law is unsettled.” Sherwood v. Tennessee Valley Authority, 925 F. Supp. 2d 906,
916 (quoting Pennington v. State Farm Mutual Auto. Ins. Co., 553 F.3d 447, 449-50 (6th
Cir. 2009)). Moreover, submitting uncertain questions of state law to a state’s highest court
“acknowledges that court's status as the final arbiter on matters of state law and avoids the
potential for ‘friction-generating error’ which exists whenever a federal court construes a state
law in the absence of any direction from the state courts.” Planned Parenthood of Cincinnati
Region v. Strickland, 531 F.3d 406, 410 (6th Cir, 2008) (quoting Arizonans for Official
English v. Arizona, 520 U.S. 43, 79 (1997)).
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In the Court’s judgment, the three requirements for certification set out in Local Rule 83.1 are met. The parties do not dispute that the issues to be certified are unsettled questions of state law, nor does any party argue that certification would cause undue delay or prejudice. The parties disagree about whether the issues to be certified will likely affect the outcome of this suit.
The issues to be certified are, essentially, Counts I and II of the complaint. The parties acknowledge that if Plaintiffs do succeed on either Count I or Count II, the Court need not evaluate the remainder of Plaintiffs’ claims (which are all constitutional claims). Defendants Whitmer and Gordon argue that it is unlikely that the case will be completely resolved on the state law issues, because for Plaintiffs to succeed on Counts I and II, a Court would have to find that Governor Whitmer’s COVID-19 related executive orders issued since April 30, 2020 violate the EPA, the EPGA, and the Michigan Constitution. In these Defendants’ eyes, the likelihood of Plaintiffs winning on all three grounds is slim, so the Court will eventually be required to address the federal constitutional claims anyway.
What these Defendants have failed to consider is the doctrine of constitutional avoidance. The Court is required to consider issues of state law that may resolve a case before reaching questions of constitutional law because the Court must avoid evaluating purely hypothetical constitutional questions. See Torres v. Precision Industries, Inc., 938 F.3d 752, 756-57 (6th Cir. 2019). Put differently, even if Plaintiffs’ chance of succeeding on Count I or Count II is slim, a victory on either count would relieve the Court from evaluating the remainder of the complaint and the constitutional claims presented therein. This requires the Court to consider the questions presented in Count I and Count II before reaching any
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other claims. Put differently, the state law issues are not only likely to affect the outcome of the suit; they are certainly going to affect the outcome because they must be decided before an outcome will be reached.
Having determined that this Court must interpret Michigan statutes that have never before been interpreted by the Michigan Courts, the Court is guided by the Supreme Court’s instruction to employ certification. If the “unconstrued state statute is susceptible of a construction by the state judiciary ‘which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem,’ ” the Supreme Court has held that district courts should utilize the certification process. Bellotti v. Baird, 428 U.S. 132, 146-47 (1976) (quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). Therefore, the Court finds that certification is appropriate and that all three requirements for certification set out in the Local Rule are met.
Finally, the Court emphasizes the considerations of comity and federalism, which caution federal courts from “needlessly addressing questions of state law and deciding statelaw issues of first impression.” Lozada v. Dale Baker Oldsmobile, Inc., 145 F. Supp 2d 878, 895 (W.D. Mich. 2001). The “last word” on interpretations of state law belongs with the State Supreme Court, not the federal district court. See Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 499-500 (1941). Thus, rather than interpret a novel question of state law for the first time – particularly a question of state law that might affect every citizen in the state of Michigan – this Court turns to the ultimate authority on what Michigan law is: the Michigan Supreme Court. Additionally, the guidance sought today prevents this Court from overstepping its role, eliminates the risk that this Court interprets the relevant state law
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differently than the Michigan Supreme Court might, and eliminates the risk of conflicting

federal and state decisions.

In sum: this case has not been rendered moot. The factors for certification set out in

Local Rule 83.1 are met. And the principle of federalism virtually requires this Court to

certify these questions to the Michigan Supreme Court. Therefore, the Court will enter an

order certifying the two identified questions of law to the Michigan Supreme Court and hold

this case in abeyance until that court reaches a decision on the matter.

An order will be entered consistent with this opinion.

IT IS SO ORDERED.

Date: June 16, 2020

/s/ Paul L. Maloney Paul L. Maloney United States District Judge

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STATE OF MICHIGAN

IN THE SUPREME COURT

IN RE CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION,
/

Supreme Court No. 161492 USDC-WD: 1:20-cv-414

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs, v

PLAINTIFFS’ OPENING BRIEF
**ORAL ARGUMENT REQUESTED**

GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156 Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

Ann M. Sherman (P67762) Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov berelsr1@michigan.gov
Christopher M. Allen Joshua O. Booth John G. Fedynsky Joseph T. Froehlich Assistant Attorneys General for Defendants Whitmer and Gordon P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 Allenc28@michigan.gov Buthj2@michigan.gov fedynsky@michigan.gov Froehlichj1@michigan.gov

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Table of Contents
Page
INDEX OF AUTHORITIES.......................................................................................................... iv
JURISDICTIONAL STATEMENT .............................................................................................. xi
QUESTIONS PRESENTED......................................................................................................... xii
INTRODUCTION ...........................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................3
A. Governor Whitmer Issues an Executive Order Declaring a State of Emergency on March 10, 2020, and Takes Other Action by Executive Orders......................................................................................................3
B. Governor Whitmer Declares a State of Emergency and State of Disaster on April 1, 2020 and Issues Drastic Executive Orders. .............................4
C. The Legislature Declines to Extend the Governor’s Emergency Declaration, and the Governor Unilaterally Extends It Anyway. ............................6
D. Governor Whitmer Issues Numerous, Sweeping Executive Orders After April 30, 2020.................................................................................................7
E. Governor Whitmer Admits the Ban on “Non-Essential” Medical Procedures Is No Longer Necessary on May 1, 2020, Yet Does Not Lift It Until May 29..................................................................................................8
F. Governor Whitmer Announces a Long-Term Plan to Address the Challenges Posed by the Pandemic..........................................................................9
G. Governor Whitmer Issues More Than 140 Executive Orders Based on COVID-19 and Has Extended the State of Emergency Through August 11. ..............................................................................................................10
H. The Plaintiffs Are Medical Providers and a Patient, Each of Whom Was Restricted from Providing (or Receiving) “Non-Essential” Medical Care Due to EO 2020-17. ........................................................................11
ARGUMENT .................................................................................................................................12
I. After April 30, 2020, the Governor no longer has authority under the Emergency Management Act to issue executive orders related to the COVID-19 pandemic. ........................................................................................................12
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Table of Contents (continued) Page
A. The EMA prohibits the Governor from continuing an emergency beyond 28 days. .....................................................................................................12
B. The Legislature’s inaction cannot amount to a legislative veto.............................14
II. As a matter of statutory interpretation, the EPGA does not support Governor Whitmer’s executive orders. ..............................................................................................17
A. The EPGA authorizes only limited orders for time-limited emergencies, and a years-long pandemic is not an “emergency.” .........................17
1. An “emergency” for purposes of the EPGA is a set of exigent circumstances that calls for immediate action, not a yearslong public health problem. .......................................................................18
2. The Governor’s declarations of “emergency” contemplate that the state of emergency will last until the end of the epidemic, even if that takes years. .............................................................20
3. MCL § 10.32 does not permit the Governor to extend an emergency declaration indefinitely............................................................22
B. Governor Whitmer has already terminated the only “emergency” that supported her declaration of emergency under the EPGA..............................24
III. To the extent that the EPGA gives Governor Whitmer discretion to declare an emergency across the entire State for an indefinite period of time, it violates the Separation of Powers and Non-Delegation Clauses. ......................................29
A. A delegation of power to the executive is unconstitutional if it does not confine the executive’s conduct within specific parameters in order to avoid executive law-making.....................................................................29
B. To the extent that the EPGA does not contain a durational limit, then it violates separation of powers and non-delegation principles. ....................33
C. The EPGA’s requirement that the Governor’s orders be “reasonable” and “necessary” does not impose any true parameters to guide the executive’s conduct............................................................................36
D. Separation of powers concerns are accorded particularly important weight because they implicate the very structure of our government. ...........................................................................................................39
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Table of Contents (continued) Page
IV. The Governor cannot collaterally attack the federal district court’s decisions. ............................................................................................................................45
CONCLUSION ..............................................................................................................................46
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Index of Authorities Page
Cases
ALA Schechter Poultry Corp v United States, 295 US 495 (1935).................................................................................................................... 33
Blank v Dep’t of Corr, 462 Mich 103; 611 NW2d 530 (2000)...................................................................................... 14
Blue Cross and Blue Shield of Mich. v. Milliken, 367 N.W.2d 1 (Mich. 1985).................................................................................... 30, 31, 32, 33
Brown v Argosy Gaming Co, LP, 360 F3d 703 (CA 7, 2004) ........................................................................................................ 46
California v Trump, ___ F3d ___, No. 19-16299, 2020 WL 3480841 (CA 9, June 26, 2020) ................................. 42
Civil Serv Comm’n v Auditor Gen, 302 Mich 673; 5 NW2d 536 (1942).......................................................................................... 30
Clinton v City of NY, 524 US 417 (1998).............................................................................................................. 43, 44
Cty of Hudson v State of New Jersey Dep't of Corr, No. A-2552-07T1, 2009 WL 1361546 (NJ Super Ct App Div, May 18, 2009) ....................... 22
Dillon v Mr Unknown, 61 Mich App 588; 233 NW2d 96 (1975).................................................................................. 23
District of Columbia v Wash Home Ownership Council, Inc, 415 A2d 1349 (DC, 1980) ........................................................................................................ 13
Elkhorn Baptist Church v Brown, 366 Or 506 (Or, 2020) .............................................................................................................. 41
Free Enter Fund v Pub Co Accounting Oversight Bd, 561 US 477 (2010).................................................................................................................... 43
Hoitt v Vitek, 497 F2d 598 (CA 1, 1974) ........................................................................................................ 22
Home Bldg & Loan Ass’n v Blaisdell, 290 US 398 (1934).................................................................................................................... 43
House of Representatives v. Whitmer, unpublished opinion of the Court of Claims, issued May 21, 2020 (Docket No. 20-000079-MZ)........................................................................................ 12, 14, 17
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Index of Authorities (continued) Page
INS v Chadha, 462 US 919 (1983).................................................................................................................... 15
Jacobson v Massachusetts, 197 US 11 (1905)...................................................................................................................... 38
Jefferson v Southworth, 447 F Supp 179 (DRI, 1978) ................................................................................................... 29
League of Indep Fitness Facilities & Trainers, Inc v Whitmer, No. 20-1581, 2020 WL 3468281 (CA 6, June 24, 2020) ......................................................... 38
Lewis Consol Sch Dist of Cass Co v Johnston, 256 Iowa 236; 127 NW2d 118 (1964) ...................................................................................... 37
Maple BPA, Inc v Bloomfield Charter Twp, 302 Mich App 505; 838 NW2d 915 (2013).............................................................................. 37
Mich. Deferred Presentment Servs. Ass'n v. Comm'r of Office of Fin. & Ins. Regulation, 788 N.W.2d 842 (Mich. Ct. App. 2010) ............................................................................. 26, 27
Mistretta v United States, 488 US 361 (1989).............................................................................................................. 32, 44
Nemours Found v Manganaro Corp, 878 F2d 98 (CA 3, 1989) .......................................................................................................... 46
Oshtemo Charter Twp v Kalamazoo Cty Rd Comm’n, 302 Mich App 574; 841 NW2d 135 (2013).............................................................................. 32
Osius v. City of St. Clair Shores, 75 N.W.2d 25 (Mich. 1956).......................................................................................... 30, 32, 35
Palmigiano v Garrahy, 616 F2d 598 (CA 1, 1980) ........................................................................................................ 29
Panama Refining Co v Ryan, 293 U.S. 388 (1935)............................................................................................................ 33, 42
People v Jacques, 456 Mich 352; 572 NW2d 195 (1998)................................................................................ 18, 19
People v McKinley, 496 Mich 410; 852 NW2d 770 (2014)................................................................................ 17, 26
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Index of Authorities (continued) Page
People v Stephan, 241 Mich App 482; 616 NW2d 188 (2000).............................................................................. 26
People v Turmon, 417 Mich 638; 340 NW2d 620 (1983)................................................................................ 30, 33
People v. Rea, 902 NW2d 362 (Mich. 2017).................................................................................................... 28
Plaut v Spendthrift Farm, Inc, 514 US 211 (1995).................................................................................................................... 44
SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65; 894 NW2d 535 (2017)........................................................................................ 27
State Highway Comm’n v Vanderkloot, 392 Mich 159; 220 NW2d 416 (1974)...................................................................................... 31
Stern v Marshall, 564 US 462 (2011).................................................................................................................... 44
Taxpayers of Mich Against Casinos v State, 471 Mich 306; 685 NW2d 221 (2004)................................................................................ 15, 35
Taylor v Smithkline Beecham Corp, 468 Mich 1; 658 NW2d 127 (2003).......................................................................................... 32
United States Fid & Guar Co v Mich Catastrophic Claims Ass’n, 484 Mich 1; 795 NW2d 101 (2009).......................................................................................... 14
United States v Amirnazmi, 645 F3d 564 (CA 3, 2011) ................................................................................ 33, 34, 36, 37, 38
United States v Bishop, 555 F2d 771 (CA 10, 1977) ...................................................................................................... 40
Valiant Steel & Equip, Inc v Goldschmidt, 499 F Supp 410 (DDC, 1980) ................................................................................................... 22
Westervelt v Nat Res Comm’n, 402 Mich 412; 263 NW2d 564 (1978).......................................................................... 31, 34, 37
Whitman v Am Trucking Associations, 531 US 457 (2001).............................................................................................................. 32, 38
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Index of Authorities (continued) Page
Wisconsin Legislature v Palm, 942 NW2d 900 (Wis, 2020)................................................................................................ 24, 36
Wolf v Scarnati, No. 104 MM 2020, 2020 WL 3567269 (Pa. July 1, 2020) ....................................................... 16
Worthington v. Fauver, 440 A.2d 1128 (N.J. 1982) ....................................................................................................... 13
Youngstown Sheet & Tube Co v Sawyer, 343 US 579 (1952).................................................................................................................... 36
Statutes 20 Ill. Comp. Stat. Ann. 3305/7 .................................................................................................... 40 20 V.S.A. § 13............................................................................................................................... 41 30 R.I. Gen. Laws Ann. § 30-15-9(b) ........................................................................................... 41 35 Pa. Stat. and Cons. Stat. Ann. § 7301(c).................................................................................. 41 50 U.S.C. § 1622........................................................................................................................... 40 50 U.S.C. § 1706(b) ...................................................................................................................... 40 Alaska Stat. Ann. § 26.23.020(c) .................................................................................................. 40 Ariz. Rev. Stat. Ann. § 26-303(F)................................................................................................. 40 Ark. Code Ann. § 12-75-107(c)(1) ............................................................................................... 40 Cal. Gov't Code § 8629 ................................................................................................................. 40 Colo. Rev. Stat. Ann. § 24-33.5-704(4) ........................................................................................ 40 Fla. Stat. Ann. § 252.36(2)............................................................................................................ 40 Ga. Code Ann. § 38-3-51(a) ......................................................................................................... 40 Idaho Code Ann. § 46-1008(2) ..................................................................................................... 40 Ind. Code Ann. § 10-14-3-12 ........................................................................................................ 40 Iowa Code Ann. § 29C.3(3) .......................................................................................................... 40
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Index of Authorities (continued) Page
Kan. Stat. Ann. § 48-924(3).......................................................................................................... 40 La. Stat. Ann. § 29:724(B)(2) ....................................................................................................... 40 MD Public Safety §14-107(4)(i) ................................................................................................... 40 Me. Rev. Stat. tit. 37-B, § 743(2).................................................................................................. 40 Mich. Comp. Laws § 10.31....................................................... 3, 18, 19, 24, 25, 26, 27, 33, 34, 36 Mich. Comp. Laws § 10.32............................................................................................... 22, 23, 35 Mich. Comp. Laws § 30.403............................................................................. 3, 13, 14, 15, 16, 28 Mich. Comp. Laws § 30.417(d) .................................................................................................... 28 Mich. Comp. Laws § 333.5201, et seq. ........................................................................................ 44 Minn. Stat. Ann. § 12.31 (2)(b) .................................................................................................... 40 Mo. Ann. Stat. § 44.100(2) ........................................................................................................... 40 Mont. Code Ann. § 10-3-302 (3) .................................................................................................. 40 N.D. Cent. Code Ann. § 37-17.1-05(3)......................................................................................... 41 N.H. Rev. Stat. Ann. § 4:45(II)(c) ................................................................................................ 40 N.Y. Exec. Law § 28(3) ................................................................................................................ 41 Neb. Rev. Stat. Ann. § 81-829.40(3) ............................................................................................ 40 Nev. Rev. Stat. Ann. § 414.070 (West) ........................................................................................ 40 Okla. Stat. Ann. tit. 63, § 6405(C) ................................................................................................ 41 Or. Rev. Stat. Ann. § 401.204(2) .................................................................................................. 41 S.C. Code Ann. § 25-1-440) ......................................................................................................... 41 Tex. Gov't Code Ann. § 418.014(c).............................................................................................. 41 Utah Code Ann. § 53-2a-206(3) ................................................................................................... 41 W. Va. Code Ann. § 15-5-6(b) ..................................................................................................... 41
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Index of Authorities (continued) Page
Wis. Stat. Ann. § 323.10 ............................................................................................................... 41
Other Authorities
1 Official Record, Constitutional Convention 1961 ..................................................................... 29
39 Mich. Senate J. 655 (May 7, 2020) .......................................................................................... 22
Cooley, Constitutional Limitations (6th ed.) ................................................................................ 31
Georgia Executive Order 07.15.20.01 .......................................................................................... 41
John Locke, Two Treatises on Government § 141........................................................................ 31
Mich. Const. (1963) art. III, Section 2 .......................................................................................... 29
Mich. House Fiscal Agency Bill Analysis, H.B. 5496, 1/24/2002................................................................................................................ 13
Mich. Senate Bill 0858 (passed April 30, 2020)........................................................................... 22
Michigan Governor Gretchen Whitmer Coronavirus Briefing Transcript March 23, available at https://www.rev.com/blog/transcripts/michigan-governorgretchen-whitmer-coronavirus-briefing-transcript-march-23..................................................... 4
Michigan Governor Gretchen Whitmer Press Conference Transcript April 27, available at https://www.rev.com/blog/transcripts/michigan-governorgretchen-whitmer-press-conference-transcript-april-27 ............................................................. 6
Michigan Governor Gretchen Whitmer Press Conference Transcript May 1, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchenwhitmer-press-conference-transcript-may-1............................................................................... 8
Michigan Governor Gretchen Whitmer Press Conference Transcript May 7, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchenwhitmer-press-conference-transcript-may-7............................................................................... 9
Texas Executive Order GA-28...................................................................................................... 41
Texas Executive Order GA-29 (July 2, 2020) .............................................................................. 41
Virginia Gordan, Local police to handle reports of violations of Gov. Whitmer’s stay-at-home order, Michigan Radio, Mar. 25, 2020, available at https://www.michiganradio.org/post/local-police-handle-reports-violationsgov-whitmers-stay-home-order .................................................................................................. 4
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Index of Authorities (continued) Page
Webster’s New International Dictionary 837 (2d ed. 1942)............................................. 18, 19, 20 Rules MCR 7.308(A)(3) .......................................................................................................................... xi
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JURISDICTIONAL STATEMENT This Court has jurisdiction to answer the certified questions under MCR 7.308(A)(3).
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QUESTIONS PRESENTED

I. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.

Plaintiffs say:

No.

Defendants say: Yes.

II. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.

Plaintiffs say:

Yes.

Defendants say: No.

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INTRODUCTION In moments of imminent public danger where a rapid legislative response is impossible, swift executive action may be needed in order to triage the situation until the Legislature can assemble to determine the State’s appropriate response. But short-term emergencies pose unique, long-term temptations. When an executive is able to wield sweeping, unilateral power to rapidly respond to an emergency situation, it can be tempting for the executive to retain unilateral power, unhindered by the compromise of competing interests that are inherent in the legislative process. If the executive chooses to continue the emergency indefinitely and sidelines the Legislature in the interim, governance of the State becomes unrecognizable, because the same branch of government that enforces the rules also has the power to make them. That is why the Legislature, when enacting the Emergency Management Act, carefully imposed a strict, 28-day limit on the Governor’s emergency powers. The durational limit gives the Legislature the ability to approve or disapprove the continuation of the executive’s unilateral governance. Only by including an appropriate durational limit on the Governor’s emergency powers can an emergency-powers statute pass constitutional muster. Without a durational limit, the executive can continue to exercise broad emergency powers—including broad rule-making powers that affect every aspect of Michigan’s economy and civic life—for as long as the executive determines that an “emergency” continues to exist, even if the “emergency” consists of a long-term policy problem rather than a short-term crisis in which legislative action would be impossible. That danger is precisely what is posed here. The Michigan Legislature permitted Governor Whitmer to take extraordinary and immediate executive action during the first month of Michigan’s response to the COVID-19 pandemic. It even granted a 23-day extension of the Governor’s initial emergency declaration. Nevertheless, the Michigan Legislature declined to

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extend Governor Whitmer’s declaration of a state of emergency beyond April 30, 2020. The Legislature’s decision not to extend the state of emergency constituted its determination that, now that Michigan had found its bearings about the nature of the pandemic, the Legislature could resume its constitutionally mandated role of legislating based upon policy for what is no longer an emergency but a long-term public health challenge.
Instead of accepting the Legislature’s decision to resume its ordinary policy-setting and law-making role or compromising with the Legislature in order to obtain an additional extension of the extraordinary powers given to her under the enabling statutes, Governor Whitmer simply re-declared exactly the same state of emergency that Michigan law required—and the Legislature directed—to be terminated. Governor Whitmer has continued to unilaterally re-extend the state of emergency for months. By the time that this appeal will be argued, Governor Whitmer will have been governing Michigan unilaterally for almost half of a year. Under Governor Whitmer’s interpretation of the enabling statutes, the executive branch may re-declare a state of emergency serially, for as long as the Governor believes that there is an “emergency.”
The certified questions that are presented to this Court do not require any determination about whether Governor Whitmer’s policy decisions in combating the COVID-19 epidemic are wise or effective. This case is instead about the nature of Michigan’s government— about whether the executive branch may displace Michigan’s Legislature and continue to indefinitely extend and exercise its immensely broad emergency powers throughout the entirety of a pandemic that has no clear end in sight.
The relevant statutes—the Emergency Powers of the Governor Act and the Emergency Management Act—do not permit the Governor to do so. Nor does Michigan’s Constitution. The long-term policy decisions regarding Michigan’s response to the COVID-19
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pandemic lie with the legislative branch, not the executive branch. Having declined to involve the Legislature and having been denied by the Legislature the opportunity to continue emergency rule, Governor Whitmer lacks the authority to issue emergency orders related to the COVID-19 pandemic after April 30, 2020.
STATEMENT OF FACTS A. Governor Whitmer Issues an Executive Order Declaring a State of Emergency
on March 10, 2020, and Takes Other Action by Executive Orders. On March 10, 2020, after the first two presumed-positive cases of COVID-19 were identified in Michigan, Governor Whitmer issued Executive Order (“EO”) 2020-4, which proclaimed a state of emergency under both the Emergency Management Act (“EMA”), MCL § 30.403, and the Emergency Powers of the Governor Act of 1945 (“EPGA”), MCL § 10.31. The order identified the COVID-19 pandemic as the basis for the Governor’s declaration of a state of emergency under both statutory regimes. (App. 83a). In the ensuing weeks, Governor Whitmer issued numerous additional executive orders, invoking emergency powers that the Governor claims flow from the state of emergency declared under EO 2020-4. Among other far-reaching actions, the Governor closed elementary and secondary school buildings (EO 2020-5); restricted the public from accessing bars, restaurants, theaters, libraries, museums, and gyms (EO 2020-9); and prohibited gatherings of more than 50 people (EO 2020-11). On March 21, 2020, the Governor issued EO 2020-17, which prohibited medical providers from providing any “medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” A willful violation of EO 2020-17 was a criminal misdemeanor. These
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restrictions, the order explained, were necessary to “ensure the availability of health care resources.” (App. 85a).
On March 23, 2020, the Governor issued EO 2020-21, which ordered all residents “to stay at home” (with limited exceptions), prohibited any public or private gathering of any size, and restricted in-person business operations except those “necessary to sustain or protect life or to conduct minimum basic operations.” A willful violation of EO 2020-21 was a criminal misdemeanor. In a press conference announcing the first “Stay at Home” order, Governor Whitmer explained that this drastic action was needed to prevent an overwhelmed healthcare system: “COVID-19 is a global pandemic. It’s a novel virus. There is no cure. There is no vaccine. The only tool that we have to fight it at the moment and to support our healthcare system to respond is to give them the opportunity by buying some time.”1 Despite widespread confusion about the scope of the Governor’s orders, the Attorney General’s office advised that violating the order could result in criminal penalties and the forced closure of businesses by law enforcement.2
B. Governor Whitmer Declares a State of Emergency and State of Disaster on April 1, 2020 and Issues Drastic Executive Orders. On April 1, 2020, Governor Whitmer issued EO 2020-33, which replaced EO 2020-
4, declared a state of emergency pursuant to the EPGA, and proclaimed a state of disaster and a state of emergency under the EMA. These declarations were based on the same circumstances— that is, the dangers posed by the virus that causes COVID-19—that formed the basis of EO 20204. (App. 88a).
1 Michigan Governor Gretchen Whitmer Coronavirus Briefing Transcript March 23, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-coronavirus-briefing-transcript-march23 (last visited July 21, 2020). 2 Virginia Gordan, Local police to handle reports of violations of Gov. Whitmer’s stay-at-home order, Michigan Radio, Mar. 25, 2020, available at https://www.michiganradio.org/post/local-police-handle-reports-violations-gov-whitmersstay-home-order (last visited July 21, 2020).
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On April 1, 2020, Governor Whitmer also requested that the Michigan Legislature extend the state of emergency by an additional 70 days (through June 3, 2020), as contemplated by the EMA. On April 7, 2020, the Michigan Legislature voted to pass a resolution extending the state of emergency through April 30, 2020, but not beyond. Mich. Senate Concurrent Resolution No. 24 (passed April 7, 2020).
Throughout April, the Governor issued numerous executive orders that created and changed substantive state law and regulations and affected wide swaths of the economy. On April 9, 2020, the Governor issued EO 2020-42, the second in the series of “Stay at Home” orders. Among other things, the order criminalized the sale of paint, furniture, and flooring, and prohibited large retail stores from engaging in almost all advertising. (App. 99a). After widespread concern over the breadth of EO 2020-42, the Governor issued a third Stay at Home order, EO 2020-59, on April 24, 2020.
The Governor also issued orders requiring employees to stay home from work if they experience symptoms of, have tested positive for, or have been exposed to COVID-19, and governing employers’ obligations in those circumstances (EO 2020-36); and suspending K-12 instruction for the remainder of the 2019-2020 school year (EO 2020-35), among other actions. As of April 30, 2020, Governor Whitmer had issued 65 executive orders related to the COVID-19 pandemic.
Governor Whitmer justified those 65 executive orders, including her initial declarations of a state of emergency, on the important goal to “flatten the curve” and avoid overwhelming Michigan’s healthcare system and hospitals. Thankfully, the dire predictions of
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overwhelmed hospitals did not come to pass. And during a press conference on Monday, April 27, 2020, Governor Whitmer acknowledged that the curve had flattened in Michigan.3
C. The Legislature Declines to Extend the Governor’s Emergency Declaration, and the Governor Unilaterally Extends It Anyway. Under the statutes that grant emergency powers to the executive, the Governor has
the power to declare an emergency, but the Legislature determines how long that emergency—and the Governor’s attendant powers to make laws on an emergency basis—lasts. The EMA requires the Governor to issue an order declaring that a state of emergency is terminated after 28 days if the Legislature does not extend the emergency. In turn, the EPGA states that any emergency declared under that statute terminates when the Governor declares that the emergency is terminated.
As stated above, the Michigan Legislature agreed to extend the state of emergency declaration through April 30, 2020. On April 30, 2020, the Michigan Legislature declined to extend Governor Whitmer’s declarations of a state of emergency and a state of disaster. Immediately afterward, Governor Whitmer issued three additional Executive Orders: 2020-66, 2020-67, and 2020-68.
EO 2020-66 terminated the Governor’s declarations of a state of emergency and a state of disaster based upon the COVID-19 pandemic, as required under the EMA. (App. 104a).
EO 2020-67, issued only one minute after EO 2020-66, stated that a “state of emergency remains declared across Michigan” under the EPGA and that the state of emergency remains in effect until May 28, 2020. The state of emergency that EO 2020-67 referenced is exactly
3 Michigan Governor Gretchen Whitmer Press Conference Transcript April 27, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-press-conference-transcript-april-27 (last visited July 21, 2020).
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the same state of emergency that the Governor declared to be terminated in EO 2020-66. (App. 107a).
EO 2020-68, issued simultaneously with EO 2020-67, purported to re-declare under the EMA exactly the same states of disaster and emergency that the Legislature refused to extend and which had just been terminated under EO 2020-66. These renewed states of disaster and emergency purported to remain effective through May 28, 2020. (App. 112a).
D. Governor Whitmer Issues Numerous, Sweeping Executive Orders After April 30, 2020. After renewing the emergency declarations based on COVID-19, Governor
Whitmer took additional sweeping action by executive orders. In May alone, the Governor issued four more Stay at Home orders: EO 2020-70 (issued on May 1), EO 2020-77 (issued on May 7), EO 2020-92 (issued on May 18), and EO 2020-96 (issued on May 21). (The Governor also issued the first and second in a series of executive orders establishing numerous workplace safeguards for all businesses as well as many industry-specific requirements: EO 2020-91 (issued on May 18) and EO 2020-97 (issued on May 21). The rules and protocols in these orders are far-reaching. Among other things, all businesses must conduct daily health screenings of employees, require employees to wear face coverings when they cannot sufficiently maintain distance from one other, and restrict non-essential business travel.
The Governor’s decision to re-declare an emergency and issue multiple additional emergency orders after the Legislature declined to extend the Governor’s declaration of emergency past April 30 caused great confusion and doubt. On May 4, 2020, Attorney General Nessel issued a letter to law enforcement officials asserting that, “regardless of what you may have heard,” the
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Governor’s post-April 30 executive orders continued to be valid under the EPGA and directing
that law enforcement officials continue to enforce the Governor’s orders. (App. 43a).
E. Governor Whitmer Admits the Ban on “Non-Essential” Medical Procedures Is No Longer Necessary on May 1, 2020, Yet Does Not Lift It Until May 29. At a press conference on May 1, 2020, Governor Whitmer admitted that the
restrictions on medical procedures were no longer necessary and explained that the need to protect
the supply of personal protective equipment for an influx of COVID-19 patients in hospitals no
longer existed. The Governor stated:
We are encouraging anyone who has been holding off on surgery that really needs to be done, to get that scheduled and to proceed. Early on, it was really necessary because we had so few N95 masks, and gloves, and all of the important things that we needed to keep people safe as we were dealing with this influx of COVID-19 patients, so that we could use all of that PPE. Now, we’ve been able to build up enough that we can proceed with these other procedures, and we are encouraging hospital systems to move forward with that.
* * * [A]s for oncology surgeries, as for knee surgeries, those are things that should be scheduled and we’re encouraging people to get that done.4 Despite the Governor’s admission that there was no longer a need to prohibit knee
surgeries and other non-essential medical procedures as of May 1, 2020, EO 2020-17 remained in
effect until EO 2020-96 lifted the ban almost a month later, on May 29, 2020. (App. 125a). And
with the reopening of medical facilities came additional restrictions. Under EO 2020-97, outpatient
healthcare facilities were subject to numerous obligations concerning signs, waiting area
occupancy, contactless sign-in, special hours for vulnerable populations, temperature checks of
4 Michigan Governor Gretchen Whitmer Press Conference Transcript May 1, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-press-conference-transcript-may-1 (last visited July 21, 2020).
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patients, provision of hand sanitizer and face coverings, personal protective equipment for employees, physical barriers at sign-in, telehealth and telemedicine options, limitations on the number of appointments, and cleaning and disinfection protocols. (App. 136a-137a).
F. Governor Whitmer Announces a Long-Term Plan to Address the Challenges Posed by the Pandemic. On May 7, 2020, Governor Whitmer announced a six-phase plan to reopen
Michigan’s economy titled “MI Safe Start.” (App. 68a). Governor Whitmer stated that Michigan was in the third phase, called the “Flattening” phase,5 in which “[c]ase growth is gradually declining.” In the Flattening phase, the reopening of the economy is strictly limited to only “[s]pecified lower-risk businesses with strict workplace safety measures.” (App. 69a).
MI Safe Start is not the sort of document that one would expect could be drawn up during an emergency. Instead, it is a detailed blueprint addressing every aspect of daily life through every phase of the pandemic, including the sixth “Post-pandemic” phase. And Michigan will not reach the sixth “Post-pandemic” phase anytime soon. From the Governor’s perspective, Michigan enters that phase only once the state has achieved “sufficient community immunity” and there is “high uptake of an effective therapy or vaccine.” (App. 69a). Phase 6 could be years down the road.
Governor Whitmer’s MI Safe Start plan warns that at any time, “it is also possible to move backwards”—and reenter earlier phases of the MI Safe Start plan—“if risk increases and if we stop adhering to safe practices.” (App. 69a). There is a real possibility that the Governor will continue for many months, if not years, to make law by executive order, enacting measures that significantly impact the rights and liberties of Michigan citizens without legislative input.
5Michigan Governor Gretchen Whitmer Press Conference Transcript May 7, available at https://www.rev.com/blog/transcripts/michigan-governor-gretchen-whitmer-press-conference-transcript-may-7 (last visited July 21, 2020).
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G. Governor Whitmer Issues More Than 140 Executive Orders Based on COVID-19 and Has Extended the State of Emergency Through August 11. Governor Whitmer has continued to issue coronavirus-related executive orders at
an extraordinary pace. On May 22, 2020, the Governor issued EO 2020-99, which purported to extend the state of emergency declaration through June 19, 2020. (App. 142a).
In June, the Governor issued two more orders governing the reopening of businesses across the state as well as the steps that must be taken by individuals who leave their homes: EO 2020-110 (issued on June 1) and EO 2020-115 (issued on June 5). Under EO 2020110 and EO 2020-115, which remain in effect, Regions 6 and 8 (as defined by the orders, covering counties in the Upper Peninsula and northern lower Michigan) are in Phase 5 of the MI Safe Start Plan, while the rest of Michigan remains in Phase 4. The Governor also updated the required workplace safeguards in EO 2020-114 (issued on June 5). And in EO 2020-127, the Governor purported to extend the state of emergency through July 16, 2020. (App. 146a).
In July, the Governor issued yet another updated set of workplace safeguards in EO 2020-145 (issued on July 9). In EO 2020-147, the Governor ordered all individuals to wear face coverings in indoor public spaces and crowded outdoor events. And in EO 2020-151, the Governor purported to extend the state of emergency again—this time through August 11, 2020. (App. 150a).
From March 10 through July 21, 2020, the Governor has issued more than 140 emergency executive orders based on COVID-19. The Governor has also made it clear that the state of emergency will not end any time soon. According to EO 2020-151, “[l]ife will not be back to normal for some time to come.” (App. 149a). In fact, the “statewide disaster and emergency conditions will exist” until “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 welfare of this state have been neutralized.” (App. 149a).
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H. The Plaintiffs Are Medical Providers and a Patient, Each of Whom Was Restricted from Providing (or Receiving) “Non-Essential” Medical Care Due to EO 2020-17. The plaintiffs in the underlying lawsuit, which was filed in the federal District Court
for the Western District of Michigan, are medical providers and a patient. They challenge Governor Whitmer’s authority to criminalize the provision of all “non-essential” medical treatments, as well as her prohibition against patients’ ability to travel to obtain such medical treatment. They filed the underlying lawsuit on May 12, 2020, after the Legislature declined to extend the Governor’s declaration of emergency and after Governor Whitmer admitted that a ban on non-essential medical procedures was no longer necessary yet continued to prohibit them. (App. 1a). The Governor rescinded EO 2020-17 (which had banned non-essential medical treatments) effective May 29, 2020—the day after a preliminary injunction hearing was scheduled to occur in the plaintiffs’ lawsuit. (App. 125a).
The medical provider plaintiffs in the underlying litigation—Grand Health, Wellston Medical Center, and Primary Health Services—provide medical procedures that were deemed non-essential under EO 2020-17 and were restricted from providing “non-essential” medical care for over two months, from March 21 through May 29, 2020. After the lifting of the restrictions in EO 2020-17 on May 29, 2020, these plaintiffs reopened safely and resumed their provision of care. They remain subject to numerous workplace restrictions under EO 2020-145.
The Governor’s earlier ban risked the financial ruin of these medical providers. It also forced the postponement or cancellation of important medical procedures that the Governor, solely focused on COVID-19, deemed “non-essential.” The delay and cancellation of these procedures had grievous effects on some of the plaintiffs’ patients. (App. 9a-11a). The Governor’s ban, and her decision to continue it until the end of May, illustrate the shortcomings with having the executive branch, rather than the representative legislature, make the laws: Focusing on one
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public-health concern (the COVID-19 pandemic), the Governor failed to fully accommodate other public-health concerns, embodied in the needs of the plaintiffs’ patients.
On June 16, 2020, the federal district court certified two questions to this Court: (1) Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et
seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic; and (2) Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution. On June 30, 2020, this Court ordered expedited briefing on the certified questions and scheduled oral argument for September 2, 2020.
ARGUMENT I. After April 30, 2020, the Governor no longer has authority under the Emergency
Management Act to issue executive orders related to the COVID-19 pandemic. The analysis under the EMA is relatively uncomplicated. As the Court of Claims
properly held, Governor Whitmer cannot re-declare an emergency under the EMA that the Legislature specifically refused to renew. “The EMA allows circumvention of the traditional legislative process only under extraordinary circumstances and for a finite period of time.” House of Representatives v. Whitmer, unpublished opinion of the Court of Claims, issued May 21, 2020 (Docket No. 20-000079-MZ), slip op. at 20 (App. 211a). The Governor may not circumvent the statute’s unambiguous textual prohibition against emergency declarations in excess of 28 days by indefinitely re-declaring the same emergency in serial 28-day increments.
A. The EMA prohibits the Governor from continuing an emergency beyond 28 days. The EMA unambiguously states that, unless both houses of the Michigan
Legislature approve the Governor’s request for an extension of a declared state of disaster or state
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of emergency with 28 days, then “the governor shall issue an executive order or proclamation declaring the state of disaster [or emergency] terminated.” MCL § 30.403(3) & (4). The term “terminated” connotes finality. The clear purpose for imposing a 28-day limit on the Governor’s exercise of her emergency powers was to ensure that the Legislature retained the ability to override the Governor’s authority to rule unilaterally. The legislative history, for example, suggests that, when the Legislature adopted the 28-day limit in 2002, it did so only because “sometimes the legislature may not be in session during the time when a state of emergency or disaster needs extending.” Mich. House Fiscal Agency Bill Analysis, H.B. 5496, 1/24/2002. (App. 48a). The Legislature recognized that more lengthy extensions of emergency power could give rise to “abuses of executive power.” (App. 49a). Thus, the language requiring that the Legislature have the ability to terminate the state of emergency operates as a safety valve to ensure that legislative democracy does not devolve into an indeterminate unilateral rule by the executive.
On April 30, 2020, Governor Whitmer terminated the states of disaster and emergency in EO 2020-66, as the Legislature directed. Then, one minute later, the Governor redeclared in EO 2020-68 exactly the same emergency and disaster declarations that she had just declared terminated—and which the Legislature had specifically refused to renew. Such a maneuver is an end run around the EMA and is incompatible with the statute’s clear language. The statute requires that the Governor “terminate” the declaration of emergency, not that she simply sign two pieces of paper and continue the same emergency that the Legislature refused to extend. Courts routinely reject the attempt to prolong emergencies indefinitely by reissuing emergency declarations seriatim. See, e.g., Worthington v Fauver, 440 A2d 1128, 1138–39 (NJ, 1982) (noting that an executive order would be invalid if it invoked the same emergency each year indefinitely); District of Columbia v Wash Home Ownership Council, Inc, 415 A2d 1349, 1365 (DC, 1980)
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(Gallagher, J., concurring) (rejecting the ability of the D.C. Council to engage in “repeated enactments of numerous ‘emergency’ measures,” which had the practical effect of “permanent legislation”).
Further, as the Court of Claims observed, the Governor’s position that she can redeclare the same emergency indefinitely despite the Legislature’s express disapproval “renders meaningless the legislative extension [provisions] set forth in MCL 30.403(3) and (4).” House of Representatives, slip op. at 23 (App. 214a). No Governor would ever seek the Legislature’s approval if she could simply re-declare the same emergency for repeated 28-day periods under MCL § 30.403(2) without bothering with MCL §§ 30.403(3) and (4).
This Court is careful under even ordinary circumstances not to interpret statutes in a manner that reads portions of them as nugatory. See United States Fid & Guar Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009). In this case, the Governor’s interpretation of the EMA would render nugatory the portion of the statute in which the Legislature sought to preserve its own ability to regain the authority to govern. The Legislature would never have intended this provision to become an ineffective, dead letter. The plain language of the statute unmistakably demonstrates the Legislature’s careful attempt to yield to the executive law-making authority for a maximum of only 28 days—not more—without the Legislature’s consent. The Governor’s re-declaration of the identical emergency declaration after the Legislature refused to extend it is a transparent attempt to evade the clear barriers imposed by the statutory text.
B. The Legislature’s inaction cannot amount to a legislative veto. To the extent that the Governor contends that the Legislature’s refusal to approve
the Governor’s request for an extension of the emergency under the EMA constitutes an improper “legislative veto,” the Governor is wrong. See Blank v Dep’t of Corr, 462 Mich 103, 113-15; 611 NW2d 530 (2000) (opinion of Kelly, J.). A legislative veto occurs only where the legislature
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delegates authority to the executive branch by statute but then passes a resolution taking back a portion of that previously delegated power. In such a circumstance, the resolution is invalid because it effectively amounts to a new statute that has not been presented to the executive for signature. Id. at 113-15 (discussing INS v Chadha, 462 US 919, 956 (1983)). Thus, in order for the Legislature to be able to take back power that it has previously given to the executive, the Legislature must pass a new statute taking that power back from the executive, rather than simply trying to regain it via resolution. See Taxpayers of Mich Against Casinos v State, 471 Mich 306, 330; 685 NW2d 221 (2004).
That is not what happened here. Under the EMA, the Legislature never gave the Governor the power to declare indefinite emergencies. Instead, the EMA parcels out the legislative power to the Governor in 28-day increments. The statute is very clear about this, placing a full stop on any emergency or disaster declaration after 28 days have elapsed: “After 28 days, the governor shall issue an executive order or proclamation declaring the state of [disaster or emergency] terminated . . .” MCL §§ 30.403(3) & (4). The default, in other words, is that the Governor’s power lapses after 28 days. Only if the Legislature affirmatively approves an extension may the Governor have another 28-day at the reins. If the Legislature does nothing, then the Governor’s power expires after 28 days, under the plain terms of the statute.
The legislative veto analysis is therefore entirely inapposite. It is not a legislative veto for the Legislature to decline to approve the Governor’s request for an additional 28-day increment, because the Legislature is not taking away any power that the EMA granted to the Governor. The Legislature is not even passing a resolution. Instead, the Legislature is simply declining to extend the Governor’s power, and the Governor’s power under the EMA comes to an end under the plain terms and ordinary operation of the statute.
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The recent decision in Wolf v Scarnati, No. 104 MM 2020, 2020 WL 3567269, at *1 (Pa. July 1, 2020) (attached at App. 221a), provides a useful contrast. There, the Pennsylvania statute authorizing an emergency declaration gave the Governor the power to declare an emergency, and further provided that “no state of disaster emergency may continue for longer than 90 days unless renewed by the Governor. The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.” Id. at *1 (quoting the applicable statute). In other words, the Pennsylvania legislature gave the Governor the power unilaterally to renew the state of emergency as long as he chose; if the Legislature did nothing, then the Governor would be able to continue the emergency indefinitely. The Pennsylvania Supreme Court ruled that the legislature could not terminate the emergency and regain its legislative authority by simply passing a resolution, because the resolution would amount to a legislative veto. Id. at *8. Here, by contrast, the Legislature does not need to pass a resolution at all: it simply needs to do nothing, at which point the Governor’s emergency powers expire automatically.6
The Governor cannot explain how a legislative veto could arise on the basis of inaction by the Legislature—that is, as a result of the Legislature’s decision to do nothing and allow the Governor’s power to expire under the plain terms of the statute. The Legislature has not engaged in any sort of veto, legislative or otherwise. Instead, the Legislature has simply allowed
6 To be clear, the Pennsylvania Supreme Court’s reasoning in Wolf is troubling for other reasons. The Wolf court ruled that the Pennsylvania legislature gave the Governor emergency power to re-extend the emergency declaration indefinitely, but that the legislature’s inclusion in the statute of a provision to turn off the executive’s emergency power (i.e., a joint resolution) was an unconstitutional legislative veto. The net effect of this ruling is a conclusion that the legislature gave all of its governing power to the executive indefinitely and now has no way to get it back, because the method that the legislature included in the statute in order to permit it to take back its powers is fatally defective. Such a ruling fundamentally re-orders the political branches’ relative power. Michigan’s Constitution does not tolerate such an upheaval. And in any event, the joint-resolution provisions of MCL §§ 30.403(3) & (4) are not severable from the remainder of the statute, because the grant to the Governor of a 28-day period of emergency powers is conditioned on the ability of the legislature to decline approval of an extension of emergency powers. Thus, if these provisions were deemed to be unconstitutional legislative vetoes, then the entirety of MCL § 30.403 would need to be invalidated.
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the Governor’s power under the EMA to be exhausted after 28 days, precisely as the statutory language requires.
Nothing prevents the Governor from issuing emergency declarations under the EMA with respect to “a new and different circumstance from the COVID-19 pandemic.” House of Representatives, slip op. at 23 (App. 214a). And nothing prevents the Legislature from determining—should the need arise—to provide the Governor with further periods of emergency authority under the EMA in order to facilitate a response to the pandemic. But the EMA does not permit the Governor to continue exercising extraordinary unilateral powers on her own, without the involvement of the Legislature. Under the EMA, the Governor’s executive orders related to the COVID-19 pandemic are invalid beyond April 30, 2020, unless the Legislature chooses to extend them. II. As a matter of statutory interpretation, the EPGA does not support Governor
Whitmer’s executive orders. Governor Whitmer also lacks authority under the EPGA to continue to issue
executive orders related to the COVID-19 pandemic. Statutes like the EPGA that pose significant constitutional concerns must be interpreted—if at all possible—in a manner that avoids constitutional infirmity. People v McKinley, 496 Mich 410, 415; 852 NW2d 770 (2014) (noting “the widely accepted and venerable rule of constitutional avoidance”). Such an interpretation is called for here.
A. The EPGA authorizes only limited orders for time-limited emergencies, and a years-long pandemic is not an “emergency.” The EPGA does not authorize orders that mandate long-lasting, sweeping changes
to generally applicable legislation. Instead, it authorizes extraordinary executive action only during “emergencies” and under circumstances that pose “immediate danger”—that is, during temporary,
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time-limited crises. A years-long pandemic—no matter how serious of a policy matter it is—is not an “emergency” within the meaning of the EPGA.
1. An “emergency” for purposes of the EPGA is a set of exigent circumstances that calls for immediate action, not a years-long public health problem.
Unlike the EMA, the EPGA provides that the Governor may proclaim only a state of “emergency”; it does not permit the Governor to proclaim a state of “disaster.” MCL § 10.31(1). The term “emergency” as used when the EPGA was enacted in 1945 referred only to exigencies that exist for a relatively limited period of time. The 1942 edition of Webster’s New International Dictionary, for example, defines “emergency” as “[a]n unforeseen combination of circumstances which calls for immediate action; also, less properly, exigency.” Webster’s New International Dictionary 837 (2d ed. 1942). The fact that the EPGA applies only in “emergency” circumstances means that the Governor’s powers under the EPGA are limited to circumstances that are timesensitive, rather than to long-term public health challenges.
Further, the EPGA permits the Governor to proclaim a state of emergency only under certain circumstances: namely, “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind.” MCL § 10.31(1). The inclusion of this illustrative list within the text of the statute is no mistake. When interpreting statutes, Michigan courts employ the doctrine of ejusdem generis, which directs that, where a statute defines a category by reference to a list of illustrative terms, the general category “will ordinarily be presumed to be and construed as restricted by the particular designation and as including only things of the same kind, class, character or nature as those specifically enumerated.” People v Jacques, 456 Mich 352, 355; 572 NW2d 195 (1998).
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Unlike the EMA, the EPGA does not refer to “epidemics” as an example of circumstances over which the EPGA gives the Governor emergency powers. Instead, the EPGA defines an “emergency” by reference to a list of scenarios in which an urgent, time-sensitive response is required: “crisis,” “disaster,” “rioting,” “catastrophe,” and circumstances causing “immediate danger” of a similar public emergency. MCL § 10.31(1). A years-long public health challenge like an epidemic does not fit within that list and is therefore outside the scope of the statute. Jacques, 456 Mich at 355. Defining the term “emergency” by reference to this illustrative list confirms that the term is intended to carry its ordinary meaning. The term “emergency” typically refers only to exigencies that exist for a relatively limited period of time, and those are the types of scenarios that populate the illustrative list. Webster’s New International Dictionary 837 (2d ed. 1942).
This interpretation of the statutory language is further supported by the second list of exemplars contained in the EPGA; namely, the EPGA’s illustrative list of the types of orders that the Governor may issue during the emergency. See MCL § 10.31(1). The EPGA contemplates that the Governor’s orders will be of primarily brief duration and circumscribed scope, affecting matters such as traffic control, controls of alcohol sales and explosives storage, and limitations on public assembly and imposition of curfews (which would necessarily be time-limited, due to the strictures of the First Amendment). See MCL § 10.31(1). This illustrative list clearly contemplates that the Governor would take action in relatively time-limited circumstances, not for months or years on end.
Other clues confirm this interpretation. First, the EPGA empowers certain local officials to request an emergency declaration, suggesting that the concerns that the statute was intended to cover are primarily local in nature, rather than state-wide. See MCL § 10.31(1). Second,
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the historical context suggests that the EPGA was enacted in 1945 in response to localized riots in Detroit in 1943. (App. 51a). Thus, both internal and external clues strongly suggest that the EPGA does not authorize the Governor to continue to rule unilaterally in the context of an ongoing, lengthy pandemic.
In other words, the EPGA (1) allows the Governor to issue only a declaration of “emergency,” (2) lists only time-limited crises as the types of “public emergencies” in which such a declaration is permissible, and (3) provides exemplar orders and scenarios that would necessarily be brief in duration and limited in scope. Under the plain language of the EPGA, a long-term public health challenge does not constitute an “emergency” that empowers the Governor to rule by executive order for months or years on end.
2. The Governor’s declarations of “emergency” contemplate that the state of emergency will last until the end of the epidemic, even if that takes years.
There is no need for this Court to engage in exquisite line-drawing when determining whether the COVID-19 pandemic is an “emergency” within the meaning of this language. It clearly is not. Under the plain statutory language, an “emergency” is “[a]n unforeseen combination of circumstances which calls for immediate action.” Webster’s New International Dictionary 837 (2d ed. 1942). There is widespread agreement that the COVID-19 pandemic likely will last for years, requiring significant policy decisions to be made for years to come. The need for significant policy decisions is no longer “unforeseen.” And—as of the date of this brief— Governor Whitmer’s emergency declarations have continued for almost half of a year. The pandemic is assuredly an important and concerning challenge. But “vitally important” is not the same as “emergent.” The pandemic is now an ongoing situation, not an “emergency” one.
Governor Whitmer’s initial emergency declaration occurred on March 10, 2020. (App. 84a). The basis for the Governor’s emergency declaration and subsequent executive orders
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was articulated as the concern that Michigan’s hospitals would be extended beyond capacity if extraordinary measures were not imposed in order to slow the pace of COVID-19 infections. (App. 83a, 85a). But, as the Governor admitted on May 1, 2020, that is no longer a concern.7 The focus has now shifted to a discussion of the measures that are appropriate to contain the pandemic over the long term.
For example, the Governor has outlined her own set of policies, set forth in the sixphase MI Safe Start plan, which was implemented on May 7, 2020. (App. 68a). Whether the Governor’s six-phase plan is or is not good policy is not at issue in this Court. Instead, the salient point is that the Governor’s plan contemplates long-term and even permanent alterations to policy in order to contain the pandemic. Phase Six, for example, refers to the “post-pandemic” phase. Phase Six is not triggered until after there has been “[h]igh uptake of an effective therapy or a vaccine.” (App. 69a). And even then, the Governor contemplates permanent changes. Her plan for Phase Six provides that all events and gatherings are permitted but that they will be subject to “new safety guidance and procedures.” (App. 69a). In other words, the “emergency” may continue even after the epidemic is over. See also EO 2020-154, § IV(1) (providing that the executive order will remain in effect even after the conclusion of the declaration of emergency).
As a matter of policy, the Governor’s phased approach may or may not be an appropriate response. But there is no question that the Governor may not implement such a policy on her own. The Governor’s plan unambiguously extends her unilateral policy decisions beyond the expiration of the pandemic, long after the “emergency” is over. Once the pressing exigency has concluded, a pandemic constitutes a lengthy public-health crisis, not the sort of relatively timelimited “emergency” in which the EPGA authorizes the Governor to take unilateral action.
7 See supra note 4.
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Moreover, the justification for giving the Governor emergency law-making power—namely, that the Michigan Legislature may be unable to immediately respond to exigent circumstances—is not present here, either. The Legislature was able to assemble, debate a policy response to the COVID19 epidemic, and pass legislation to address the pandemic. See Mich. Senate Bill 0858 (passed April 30, 2020). The reason that the Legislature’s policy decisions are not currently controlling the State’s response to the pandemic is not because the Legislature lacked adequate time to debate and enact them, but because the Governor vetoed them. See 39 Mich. Senate J. 655 (May 7, 2020).
“Emergencies . . . cease to be emergencies when they continue indefinitely.” Hoitt v Vitek, 497 F2d 598, 600 (CA 1, 1974) (citation omitted). The EPGA simply does not permit the Governor to make the sorts of long-term policy decisions that she is invoking the EPGA in order to impose. See Valiant Steel & Equip, Inc v Goldschmidt, 499 F Supp 410, 413 (DDC, 1980) (“[D]efendants cannot be allowed to continue to rely indefinitely on an emergency which at this date is almost two years old.”); Cty of Hudson v State of New Jersey Dep't of Corr, No. A-255207T1, 2009 WL 1361546, at *7 (NJ Super Ct App Div, May 18, 2009) (declared emergency under state Disaster Control Act was no longer an “emergency” after nine years had passed since initial declaration of emergency).
3. MCL § 10.32 does not permit the Governor to extend an emergency declaration indefinitely.
None of these arguments is undercut by MCL § 10.32. Section 10.32 provides, It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose. Id.
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The Governor has argued that § 10.32 supports her authority to maintain an indefinite state of emergency under the EPGA. But § 10.32 recognizes that the Governor shall have “broad” authority only “during such periods of impending or actual public crisis or disaster”—that is, only during circumstances that qualify as an “emergency” under § 10.31(1). In other words, § 10.32 does not expand the circumstances in which the Governor may issue an emergency declaration such that the Governor may also declare emergencies even in nonemergency scenarios. Instead, it simply permits the Governor to exercise broad authority once an emergency has been declared in the limited set of circumstances in which such a declaration is permissible. Because a years-long pandemic is not an “emergency” within the meaning of the EPGA, § 10.32 does not expand the Governor’s authority to exercise extraordinary powers in order to implement long-term policy responses to it.
For similar reasons, § 10.32’s direction that “[t]he provisions of this act shall be broadly construed to effectuate this purpose” does not help the Governor, either. First, even a direction that the statutory language be broadly construed does not mean that the Governor can avoid the ordinary meaning of the statutory text. A broad construction of a statutory term is one thing; interpreting the term to mean something other than what it says is another. See Dillon v Mr Unknown, 61 Mich App 588, 591; 233 NW2d 96 (1975) (even if statutory text must be construed broadly, “where the language of the statute is plain, we are left no room for judicial construction”). Second, the “purpose” that broad construction is intended to “effectuate” is the authority of the Governor to take action within circumstances that already qualify as “emergencies.” It does not further the statutory purpose to interpret the EPGA as allowing the Governor to continue to take action in circumstances that do not qualify as “emergencies” under the plain meaning of the term.
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At bottom, the analysis here is the same as the analysis that carried the day in Wisconsin:
[T]he Governor’s emergency powers are premised on the inability to secure legislative approval given the nature of the emergency. For example, if a forest fire breaks out, there is no time for debate. Action is needed. The Governor could declare an emergency and respond accordingly. But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely. Wisconsin Legislature v Palm, 942 NW2d 900, 914 (Wis, 2020). Because a years-long pandemic is not the type of “emergency” to which the EPGA applies, Governor Whitmer’s continuing declarations of emergency related to the COVID-19 pandemic under the EPGA are invalid. B. Governor Whitmer has already terminated the only “emergency” that supported her declaration of emergency under the EPGA. The EPGA also provides that any orders issued by the Governor during the emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” MCL § 10.31(2). Governor Whitmer has terminated the only emergency upon which her declaration under the EPGA rested. The Governor rested her emergency declaration under the EPGA on precisely the same set of facts upon which her declaration of a state of disaster and a state of emergency under the EMA were based. The initial declaration of emergency, contained in EO 2020-4, declared a single “emergency” due to the COVID-19 pandemic and did not describe separate emergencies or separate facts or circumstances giving rise to independent emergencies under the EMA and the EPGA. The renewed declaration of emergency, found in EO 2020-33, declared a “state of emergency and a state of disaster.” The basis for these declarations was, again, the COVID-19 pandemic. The Governor did not identify any new or different emergency; there was only one “emergency” identified in all of her executive orders.
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This sole “emergency” was terminated in EO 2020-66. There, the Governor stated that “[t]he 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.” (EO 2020-66). The Governor added, “[T]he threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” (Id.). Nevertheless, the Governor acknowledged that 28 days had elapsed since the declarations of disaster and emergency in EO 2020-33, and that while the Governor “sought the legislature’s agreement” to further extend those declarations, the Legislature “refused to extend them beyond today.” (Id.). Accordingly, the Governor acknowledged and complied with the statutory obligation to declare that the states of emergency and disaster were terminated. (Id.).
Although EO 2020-66 purported to limit this termination to the state of emergency that had been declared under the EMA, that is word play. Only one emergency was ever identified in Governor Whitmer’s executive orders: the COVID-19 pandemic. In fact, the first 11 paragraphs of EO 2020-66, EO 2020-67, and EO 2020-68—reciting the factual basis for the renewed declarations of emergency—are exactly identical in all three orders. Each of the executive orders specifically recognizes that the basis for the ongoing disaster declarations is exactly the same as the basis for the emergency declarations in EO 2020-4 and EO 2020-33. Because this emergency was terminated in EO 2020-66, all executive orders purporting to be based on the same emergency no longer have any effect under the EPGA. MCL § 10.31(2).
EO 2020-67 does not salvage the Governor’s attempt to exercise authority under the EPGA, for at least two reasons. First, instead of declaring a new emergency based on a different set of facts, EO 2020-67 simply asserts that a state of emergency “remains declared” across Michigan due to the COVID-19 pandemic. EO 2020-67 recites exactly the same facts that, only
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60 seconds before, EO 2020-66 recited when terminating the very same emergency. But the EPGA allows the Governor to issues an emergency declaration only if there is a “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state.” MCL § 10.31(1). The Governor cannot manufacture a new emergency merely by reiterating exactly the same facts that the Governor had just recited when terminating the emergency literally one minute before. Allowing the Governor to re-declare a new “emergency” based on entirely unchanged facts without identifying any changed circumstances or new urgency would permit the Governor to use the EPGA to support indefinite unilateral rule through serial emergency declarations. The statutory text does not permit the executive to do so.
Second, particularly because the Governor predicated her declaration of emergency under the EPGA on exactly the same facts that formed the basis of her declaration of emergency under the EMA, the 28-day limitation contained in the EMA applies to the Governor’s declaration of emergency under the EPGA. Under Michigan law, “[s]tatutes that relate to the same subject or that share a common purpose are in pari materia and must be read together as one law, even if they contain no reference to one another and were enacted on different dates.” Mich Deferred Presentment Servs Ass’n v Comm’r of Office of Fin & Ins Regulation, 287 Mich App 326, 334; 788 NW2d 842 (2010). “[S]tatutes in pari materia are to be taken together in ascertaining the intention of the legislature, and ... courts will regard all statutes upon the same general subject matter as part of 1 system.” People v McKinley, 496 Mich 410, 421 n11; 852 NW2d 770 (2014). “The object of the in pari materia rule is to further legislative intent by finding an harmonious construction of related statutes, so that the statutes work together compatibly to realize that legislative purpose.” People v Stephan, 241 Mich App 482, 497–98; 616 NW2d 188 (2000). Statutes need not be ambiguous for the in pari materia doctrine to apply; all that matters is that the
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two statutes speak to the same subject matter. SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 74 n26; 894 NW2d 535 (2017).
The EPGA and EMA are in pari materia, because they relate to the same subject and share a common purpose; namely, describing the parameters of the executive’s emergency power. This is particularly the case when a single set of facts forms the basis for emergency declarations under both statutes. In such a scenario, the statutes should be read together to control the executive branch’s emergency powers with respect to precisely the same set of underlying circumstances.
When the statutes are read together, the EMA provides the outer time limit on the executive’s exercise of emergency power under both the EPGA and the EMA. On its face, the EPGA does not impose a time limit on the Governor’s exercise of her emergency powers, whereas the EMA does. Unless the two statutes are harmonized, they would cause contradictory results: Under the EPGA, the Governor could exercise emergency power over precisely the same emergency circumstances with respect to which the Legislature had denied her the authority to exercise her emergency powers under the EMA. This would render the time limit in the EMA meaningless. In fact, it would render the entirety of the EMA meaningless, because the Governor could simply ground her emergency declarations on the far broader language of the EPGA and dispense with any need to rely upon the EMA whatsoever.
“To the extent that statutes that are in pari materia are unavoidably in conflict and cannot be reconciled, the more specific statute controls.” Mich Deferred Presentment Servs, 287 Mich App at 334. The EPGA generally provides that any orders issued by the Governor during the emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” MCL § 10.31(2). The EMA, in turn, provides the specific mechanism under which
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the Governor must declare an emergency terminated. As a result, particularly where the same emergency forms the basis for declarations under both the EMA and the EPGA, then the more specific EMA controls: The emergency cannot be extended beyond 28 days, absent the Legislature’s consent, as provided in the EMA. MCL § 30.403(4).
To read the statutes as separate regimes that do not speak to each other leads to absurd results. If the EPGA allows the Governor carte blanche to declare an emergency and rule unilaterally indefinitely, then the careful balance of power reflected in the considered language of the EMA is entirely pointless, and the EMA is wholly irrelevant. A court “must give effect to every word, phrase, and clause and avoid an interpretation that would render any part of the statute surplusage or nugatory.” People v Rea, 500 Mich 422, 428 (2017). Applying the doctrine of in pari materia avoids the absurdity of rendering the EMA entirely surplusage.
Reading the EPGA and the EMA together in this manner does not contradict MCL § 30.417(d), which provides that the EMA was not intended to “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA].” Id. (emphasis added). The EMA’s 28-day time limit does not detract in any way from the Governor’s power to “proclaim” a state of emergency under the EPGA. But once the Governor proclaims an emergency, the Governor cannot extend it beyond 28 days, unless the Legislature approves that extension. Reading the two statutes together does not abridge the executive’s powers to “proclaim” a state of emergency under the EPGA.
Finally, on May 1, 2020, Governor Whitmer admitted that there was no longer an imminent threat that Michigan’s hospitals would be overtaxed, meaning that the initial basis for the emergency was ended. “Any deference, properly accorded an administrative determination that an emergency situation justifies a general lockup, is not appropriate when, by the administration’s
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own admission, the emergency no longer exists.” Jefferson v Southworth, 447 F Supp 179, 189 (DRI, 1978), aff’d sub nom Palmigiano v Garrahy, 616 F2d 598 (CA 1, 1980). An “emergency” no longer exists—both because of the EMA and by virtue of the Governor’s admissions—and the Governor may no longer issue executive orders related to it. III. To the extent that the EPGA gives Governor Whitmer discretion to declare an
emergency across the entire State for an indefinite period of time, it violates the Separation of Powers and Non-Delegation Clauses.
In the event that the EPGA is not interpreted in the manner set forth above, then the EPGA is an impermissible delegation of legislative authority in violation of the Separation of Powers and Non-Delegation Clauses of the Michigan Constitution. Without a time limit or a limitation on the EPGA’s applicability to long-term pandemics that pose years-long (and potentially permanent) public health policy implications, the EPGA would contain no check on the Governor’s authority to govern unilaterally. As such, the EPGA would be unconstitutional.
A. A delegation of power to the executive is unconstitutional if it does not confine the executive’s conduct within specific parameters in order to avoid executive law-making. The Separation of Powers Clause in the Michigan Constitution provides that “[t]he
powers of government are divided into three branches: legislative, executive, and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Mich. Const. (1963) art. III, Section 2. This provision reflects the Constitutional Convention’s intent to “prevent[ ] the collection of governmental powers into the hands of 1 man, thus protecting the rights of the people.” 1 Official Record, Constitutional Convention 1961, p. 601. (App. 67a). This “fundamental” principle “is as
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old as our American governmental system” and means, with respect to the executive branch, that “he who enforces a law shall not make or change it . . .” Id.
Similarly, Article IV, Section 1 of the Michigan Constitution prohibits the delegation of “legislative power.” The essential purpose of this prohibition is to “protect the public from misuses of delegated power.” Blue Cross and Blue Shield of Mich v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985). If there is any ambiguity about whether an impermissible delegation has occurred, “the doubt should be resolved in favor of the traditional separation of governmental powers.” Civil Serv Comm’n v Auditor Gen, 302 Mich 673, 683; 5 NW2d 536 (1942).8
Because “[t]here is no doubt that a legislative body may not delegate to another its lawmaking powers,” a delegation of power to the executive through legislation is not lawful if it permits executive law making. Osius v City of St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956). A delegation of power is improper if it gives the executive wide discretion to make substantive rules, because such a delegation cedes the legislature’s core function to the executive branch. The Legislature “must promulgate, not abdicate.” Id.
Instead, a delegation is valid only if it provides “reasonably precise” parameters to guide the executive’s exercise of its authority “to say when the law shall operate, or as to whom, or upon what occasion.” Id. There must be “sufficient standards and safeguards . . . provided to circumscribe the agencies’ use of legislative power, thereby insuring effectuation of legislatively declared policies and a means to ‘check’ agency action.” People v Turmon, 417 Mich 638, 649– 50; 340 NW2d 620 (1983). Only if the scope of the executive’s action is limited may the executive
8 The Governor’s executive orders suggest that the executive has free-standing power under the Constitution to take unilateral control of the reins of state in the midst of an emergency. There is no support for the assertion that, if the executive believes it to be truly necessary, the executive may sideline the other branches absent enabling legislation. See House of Representatives, slip op. at 9 (App. 200a) (rejecting the ability of the executive to exert emergency powers in the absence of enabling legislation).
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branch be deemed not to be “‘legislating’ in the essential sense of the word, because the [executive] is acting within specified limitations (‘standards’) established by the Legislature and is not acting in accordance with its own will.” Westervelt v Nat Res Comm’n, 402 Mich 412, 441; 263 NW2d 564 (1978). If no such limitations are in place and the executive branch is able to “follow its own uncircumscribed will,” then the statute consists of an improper delegation and is unconstitutional. Id.9
“The preciseness required of the standards will depend on the complexity of the subject.” Blue Cross, 422 Mich at 51. Nevertheless, “[o]ne of the requirements of substantive due process is the existence of reasonably precise standards to be utilized by [the executive] in the performance of delegated legislative tasks.” State Highway Comm’n v Vanderkloot, 392 Mich 159, 169–70; 220 NW2d 416 (1974).
Blue Cross shows how this principle is applied. The statute at issue in that case established a panel of three actuaries to resolve risk-factor disputes and provided the Insurance Commissioner with the discretion to “approve” or “disapprove” risk factors proposed by health care corporations. 422 Mich at 53. The statute did not provide any parameters that would guide the exercise of this discretion: “The act is completely devoid of any indication why one factor should be preferred over another; no underlying policy has been articulated, nor has the Legislature detailed the criteria to be employed by the panel in making this determination.” Id. at 55. In other
9 This Court in Westervelt quoted Thomas Cooley’s explanation that, “One of the settled maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. . . . The power to whose judgment, wisdom, and patriotism this high prerogative has been intrusted cannot relieve itself of the responsibility by choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom, and patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust.” Westervelt, 402 Mich at 427–28 (quoting Cooley, Constitutional Limitations (6th ed.), p. 137). See also John Locke, Two Treatises on Government § 141 (“The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.”).
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words, the statute allowed the executive to engage in lawmaking by determining the substance of the rules to be applied, rather than by determining simply when or to whom the rules should be applied. Osius, 344 Mich at 698. As a result, the court struck this portion of the statute as unconstitutional. Blue Cross, 422 Mich at 55. See also Oshtemo Charter Twp v Kalamazoo Cty Rd Comm’n, 302 Mich App 574, 592; 841 NW2d 135 (2013) (suggesting that a statute that “contain[ed] neither factors for the [decisionmaker] to consider … nor guiding standards” was likely unconstitutional).
Michigan courts have also looked to federal precedent on questions of nondelegation and separation of powers. See Taylor v Smithkline Beecham Corp, 468 Mich 1, 10; 658 NW2d 127 (2003). The federal courts have explained that a statute violates the federal nondelegation principle if “there is an absence of standards for the guidance of the [executive’s] action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed . . .” Mistretta v United States, 488 US 361, 379 (1989). Moreover, the more sizable the amount of power that the legislature delegates to the executive, the more precise the standards constraining the executive’s exercise of those powers must be. Whitman v Am Trucking Associations, 531 US 457, 475 (2001) (“While Congress need not provide any direction to the EPA regarding the manner in which it is to define ‘country elevators,’ . . . it must provide substantial guidance on setting air standards that affect the entire national economy.”).
The federal courts have demonstrated how this analysis works in the context of emergency management statutes that—like the Governor’s executive orders—allow the executive to impose criminal penalties. For example, the Third Circuit upheld the delegation to the President of certain economic powers during national-emergency situations under the International Emergency Economic Powers Act—but it did so only because the statute “subjected the
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President’s authority to a host of procedural limitations designed to ensure Congress would retain its essential legislative superiority in the formulation of sanctions regimes erected under the Act’s delegation of emergency power.” United States v Amirnazmi, 645 F3d 564, 572 (CA 3, 2011). These procedural restrictions embedded in the statute included provisions that provided for “congressional consultation, review, and termination.” Id. at 577. Due to these procedural limitations on the executive’s power, the court concluded that the statutory scheme “struck a careful balance between affording the President a degree of authority to address the exigencies of national emergencies and restraining his ability to perpetuate emergency situations indefinitely . . .” Id. at 577. By contrast, federal statutes violate the non-delegation principle if, for example, they provide literally no guidance for the executive’s exercise of discretion, see Panama Refining Co v Ryan, 293 U.S. 388, 426 (1935), or confer authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring “fair competition,” see ALA Schechter Poultry Corp v United States, 295 US 495 (1935).
B. To the extent that the EPGA does not contain a durational limit, then it violates separation of powers and non-delegation principles. The situation here is similar to that in Blue Cross and in Panama Refining. The
EPGA—as interpreted by the Governor—contains no standards guiding the Governor’s exercise of her emergency powers, nor is there any manner in which the EPGA insures that the Governor implements “legislatively declared policies,” nor is there any ability for the Legislature to “check” the executive’s action. Turmon, 417 Mich at 649–50. The EPGA allows the Governor to proclaim a state of emergency “upon his or her own volition” and to promulgate “orders, rules, and regulations as he or she considers necessary” during the state of emergency. MCL § 10.31(1). There is no substantive limitation regarding the types of orders or types of conduct that the Governor’s orders may affect: in fact, the Governor has asserted that the EPGA permits her to
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unilaterally regulate every aspect of Michigan’s economy as well as every public interaction by every resident or visitor across the state. And that is exactly what the Governor has done. The Governor has used these powers to criminalize residents who travel to their cottages, attorneys who drive to work, and homeowners who purchase paint. (App. 99a).
Under the EPGA, the Governor is not required to make any particular findings prior to declaring an emergency or issuing an executive order; the Governor is not required to permit the Legislature an opportunity to provide input or review of the Governor’s decisions; the Governor is not required to defer to the Legislature’s determination to terminate the emergency. On its terms, the EPGA contains no substantive limitations on the Governor’s authority, nor does it contain any procedural limitations on the Governor’s authority. Instead, the EPGA permits the executive branch to “follow its own uncircumscribed will”—the hallmark of an unconstitutional delegation. Westervelt, 402 Mich at 441. There is nothing in the EPGA that prevents the executive from “perpetuat[ing] emergency situations indefinitely.” Amirnazmi, 645 F3d at 577.
In fact, that is exactly how the Governor is interpreting the EPGA. According to the Governor, the EPGA contains no time limit: it permits the executive to continue the state of emergency for as long as the executive deems necessary—even if the Legislature explicitly disagrees with the executive’s continued elimination of the legislative role. MCL § 10.31(2). As interpreted by the Governor, the EPGA permits the Governor to assert one-person rule over the entire State for as long as it takes to respond to an infectious disease that is almost certain to remain a global challenge for years to come. The Governor’s six-phase plan, on its face, prescribes detailed, long-term policies that will remain in place even after the pandemic has been resolved. (App. 69a). There is no question that the Governor is engaged in “law-making.” These are longterm policy changes that apply to everyone in the State of Michigan, presumably for months and
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years to come. The Governor—not the Legislature—has determined the substance of each of the Governor’s executive orders. That action is legislative in nature, not executive. See Taxpayers of Michigan Against Casinos, 471 Mich at 318 (defining “legislation” as “unilateral regulation”). The Legislature cannot validly give the Governor the power to make long-term laws: that is the Legislature’s duty, and it cannot abdicate that duty by giving it to the Governor. Osius, 344 Mich at 698.
The absence of any standards to guide the proper subject matter of the executive’s emergency orders is troubling enough on its own, but combined with the absence of any time limit on the executive’s authority to declare an emergency, it is fatal. “[A] complete lack of standards is constitutionally impermissible.” Oshtemo, 302 Mich App at 592. If, as the Governor argues, the EPGA reflects an open-ended delegation that leaves the length of the emergency solely within the executive’s discretion, it is an impermissible delegation. This is especially true if, as the Governor contends, the EPGA requires that it be “broadly construed” to permit the Governor to take any action that she deems necessary within the context of an emergency that she has seen fit to declare. If, under MCL § 10.32, the EPGA is interpreted as giving the Governor the authority to leverage the entire “police power of the state” indefinitely, then the EPGA constitutes a wholesale delegation to the Governor of the entirety of the legislative power for an indefinite period of time— a result that is incompatible with Michigan’s long-standing separation of powers jurisprudence.
The Governor has articulated no limitation on her powers under the EPGA, other than an assertion that her powers end whenever she determines that the “emergency” is over. It has been almost half of a year already, and the Governor’s assertion that the emergency will continue until “the threats posed by COVID-19 to life . . . have been neutralized” indicates that the Governor’s emergency declaration will continue potentially for years, depending on how long it
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takes for an effective vaccine to be tested, approved, manufactured, and then disseminated in sufficient quantities to achieve herd immunity. (App. 149a). In fact, the Governor’s MI Safe Start plan provides that Michigan will remain in Phase 5, with citizens subject to substantial “additional safety measures,” until there is “a permanent solution to the epidemic”—that is, “[h]igh uptake of an effective therapy or vaccine.” (App. 69a). It almost certainly will take years for the epidemic to be permanently resolved.
The Michigan Constitution cannot simply be put on the shelf for several years and then dusted off when the epidemic is over. The Constitution does not permit the executive to rule the State for years to come, through emergency decree. Cf. Wisconsin Legislature, 942 NW2d at 914 (“[T]he Governor cannot rely on emergency powers indefinitely.”). Nor does it permit the executive to persist in unilateral rule by continually overruling the Legislature’s attempts to regain its legislative power. See Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 652 (1952) (Jackson, J., concurring) (“[E]mergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them.”).
C. The EPGA’s requirement that the Governor’s orders be “reasonable” and “necessary” does not impose any true parameters to guide the executive’s conduct. The Governor likely will contend that the EPGA sufficiently limits the Governor’s
discretion by requiring that her orders be “reasonable” and “necessary.” See MCL § 10.31(1). But this argument is incorrect. The plaintiffs have not found any case in which any statute—even an emergency-powers statute—has been saved from a non-delegation challenge by virtue of such amorphous statutory language. To the contrary, cases like Amirnazmi demonstrate that much more is required. 645 F3d at 577.
There are several reasons why the requirement that the Governor’s conduct be “reasonable” and “necessary” are not the sort of “specified limitations” that are necessary in order
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to ensure that the executive is following the legislature’s will rather than its own. Westervelt, 402 Mich at 441.
First, they are no limit at all. As the Iowa Supreme court observed when invalidating a statute that allowed an executive official to “[p]erform such duties prescribed by law as it may find necessary,” the non-delegation principle prohibits the legislature from giving the executive the “power to do whatever is thought necessary to carry out their purposes and to enforce the laws, without other guide than that they must keep within the law.” Lewis Consol Sch Dist of Cass Co v Johnston, 256 Iowa 236, 247; 127 NW2d 118 (1964). In fact, if the Governor’s actions were not reasonable or necessary, then they would be arbitrary. But substantive due process already prohibits the Governor from taking arbitrary action. Maple BPA, Inc v Bloomfield Charter Twp, 302 Mich App 505, 518; 838 NW2d 915 (2013). In other words, the Governor’s argument amounts to an assertion that the EPGA allows the Governor to do anything that does not violate substantive due process. That is not anything close to a “standard” or criteria that saves the EPGA from being an improper delegation. The relevant question is whether the statute contains any standard that “meaningfully constrains the Executive’s discretion.” Amirnazmi, 645 F3d at 577. The EPGA does not provide any limitations upon the Governor’s discretion, because due process already requires the Governor to exercise her powers in a non-arbitrary manner.
Second, the Governor herself has repeatedly argued that the EPGA’s use of the terms “reasonable” and “necessary” does not provide any real limitation on her authority. In each of the lawsuits filed against the Governor related to the COVID-19 pandemic, the Governor has argued that the courts must defer to her judgment over the appropriate response to the pandemic. And the courts have largely agreed. The Sixth Circuit, for example, recently held that the Governor’s epidemic-related decisions ordinarily cannot be challenged under the federal
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Constitution even if the Governor’s decisions are “unsupported by evidence or empirical data.” League of Indep Fitness Facilities & Trainers, Inc v Whitmer, No. 20-1581, 2020 WL 3468281, at *3 (CA 6, June 24, 2020) (App. 219a). That is because, under Jacobson v Massachusetts, 197 US 11, 29 (1905), “the police power retained by the states empowers state officials to address pandemics such as COVID-19 largely without interference from the courts.” League of Indep Fitness Facilities, 2020 WL 3468281, at *2. The Governor has repeatedly argued that the courts must defer to her judgment about public-health related matters under the EPGA. Having taken that position, the Governor cannot claim that the EPGA imposes any real limitations on her authority.
As the Sixth Circuit put it, “[t]he decision to impose those costs [associated with COVID-19 shutdown orders] rests with the political branches of government, in this case, Governor Whitmer.” Id. at *4. Michigan is therefore in a constitutionally perilous position. If the Governor is correct that the EPGA allows her to continue the emergency without heeding the Legislature’s refusal to extend it, then the Governor’s conduct under the EPGA is not subject to review or limitation by either the Legislature or the courts.
Third, the Governor’s position is ultimately self-defeating. The Governor argues that, due to the unforeseen nature of an “emergency” or a “disaster,” she necessarily needs a broadly defined range of action in order to be able to appropriately respond to whatever unique circumstances are posed by the particular emergency. But that cuts against the principle that, the greater the delegation of power, the more precise the standards constraining the executive’s exercise of those powers must be. Whitman, 531 US at 475. And in any event, to pass muster, even emergency-powers statutes must impose at least some constraints on the executive. Amirnazmi, 645 F3d at 577. The EPGA contains—literally—none. If the Governor is correct that a monthslong pandemic can be an “emergency,” and if there is no time limit on the executive’s power to
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issue executive orders that have the effect of law, the Governor has open-ended authority to impose long-term policy solutions with the effect of law on every person in Michigan, even over the Legislature’s explicit objection. Those longer-term policy solutions, like the Governor’s six-phase plan that purports to control Michigan’s response to the COVID-19 pandemic even after the pandemic is over, are quintessentially legislative, not executive.
If the EPGA neither is time-limited nor affords the Legislature the ability to terminate the emergency declaration, then the Governor’s power under the EPGA has been transformed into an improper law-making power, rather than a short-term imposition of limited curfews, alcohol-sales controls, and the like.
D. Separation of powers concerns are accorded particularly important weight because they implicate the very structure of our government. Troublingly, the Governor has never identified a principle that adequately limits
the expansive nature of her argument. In fact, the linchpin of the Governor’s argument is that the Legislature, having enacted the EPGA more than 75 years ago, has irrevocably ceded to the executive the authority to continue an emergency declaration indefinitely—and the Legislature may not take that power back, unless it either amends the statute by overriding the Governor’s veto or impeaches the executive.
That is a sobering assertion. Indefinite extensions of emergency declarations have always been recognized as posing unique and troubling implications for separation of powers. For example, the Tenth Circuit, ruling on President Ford’s assertion that a 16-year-old federal declaration of emergency remained in place, observed,
If President Ford was correct in his position that the provision of the National Emergencies Act for termination of an emergency by act of Congress is unconstitutional and, if the government is correct in the position which it takes in the instant case that the judiciary may not terminate an emergency, the awesome power of the President to declare an emergency and thereby activate 470 federal laws is
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unfettered. . . . With all regard to separation of powers it seems clear that the indefinite prolongation of an emergency by presidential non-action long after the causative facts have ceased to exist is antithetical to our system of checks and balances and could present a serious threat to the concept of limited executive power.
United States v Bishop, 555 F2d 771, 776 (CA 10, 1977).
For good reason, then, both the federal government and the vast majority of states
do not permit the executive to extend an emergency declaration indefinitely without approval from
the legislature.10 The ability of the legislature to provide a check on the executive’s power by
10 See, e.g., 50 U.S.C. § 1706(b) (“The authorities described in subsection (a)(1) may not continue to be exercised under this section if the national emergency is terminated by the Congress by concurrent resolution . . .”); 50 U.S.C. § 1622(a), (b) (outlining the procedure whereby Congress must consider termination of the emergency by joint resolution every six months); Alaska Stat. Ann. § 26.23.020(c) (“A proclamation of disaster emergency may not remain in effect longer than 30 days unless extended by the legislature by a concurrent resolution.”); Ariz. Rev. Stat. Ann. § 26-303(F) (“The powers granted the governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the governor or by concurrent resolution of the legislature declaring it at an end.”); Ark. Code Ann. § 12-75-107(c)(1) ( “The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.”); Cal. Gov't Code § 8629 (“All of the powers granted the Governor by this chapter with respect to a state of emergency shall terminate when the state of emergency has been terminated by proclamation of the Governor or by concurrent resolution of the Legislature declaring it at an end.”); Colo. Rev. Stat. Ann. § 24-33.5-704(4) (“The general assembly, by joint resolution, may terminate a state of disaster emergency at any time.”); Fla. Stat. Ann. § 252.36(2) (“The Legislature by concurrent resolution may terminate a state of emergency at any time.”); Ga. Code Ann. § 38-3-51(a) (“The General Assembly by concurrent resolution may terminate a state of emergency or disaster at any time.”); Idaho Code Ann. § 46-1008(2) (“The legislature by concurrent resolution may terminate a state of disaster emergency at any time.”); 20 Ill. Comp. Stat. Ann. 3305/7 (“Upon such proclamation, the Governor shall have and may exercise for a period not to exceed 30 days the following emergency powers”); Ind. Code Ann. § 10-14-3-12 (“The general assembly, by concurrent resolution, may terminate a state of disaster emergency at any time.”); Iowa Code Ann. § 29C.3(3) (“The general assembly may, by concurrent resolution, rescind a proclamation of a state of public disorder emergency.”); Kan. Stat. Ann. § 48-924(3) (“Upon making such findings the governor shall terminate the state of disaster emergency by proclamation, but except as provided in paragraph (4), no state of disaster emergency may continue for longer than 15 days unless ratified by concurrent resolution of the legislature.”); La. Stat. Ann. § 29:724(B)(2) “The legislature, by petition signed by a majority of the surviving members of either house, may terminate a state of disaster or emergency at any time.”); Me. Rev. Stat. tit. 37-B, § 743(2) (“The Legislature, by joint resolution, may terminate a state of emergency at anytime.”); MD Public Safety § 14-107(4)(i) (“The General Assembly by joint resolution may terminate a state of emergency at any time.”); Minn. Stat. Ann. § 12.31 (2)(b) (“By majority vote of each house of the legislature, the legislature may terminate a peacetime emergency extending beyond 30 days.”); Mo. Ann. Stat. § 44.100(2) (“Any emergency, whether proclaimed by the governor or by the legislature, shall terminate upon the proclamation thereof by the governor, or the passage by the legislature, of a resolution terminating such emergency.”); Mont. Code Ann. § 10-3-302 (3) (“A state of emergency may not continue for longer than 30 days unless continuing conditions of the state of emergency exist, which must be determined by a declaration of an emergency by the president of the United States or by a declaration of the legislature by joint resolution of continuing conditions of the state of emergency.”); Neb. Rev. Stat. Ann. § 81-829.40(3) (“The Legislature by resolution may terminate a state of emergency proclamation at any time.”); Nev. Rev. Stat. Ann. § 414.070 (West) (“Any such emergency or disaster, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination thereof by the Governor, or the passage by the Legislature of a resolution terminating the emergency or disaster.”); N.H. Rev. Stat. Ann. § 4:45(II)(c) (“The legislature may terminate a state of emergency by concurrent resolution adopted by a majority vote of each
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terminating the emergency ordinarily is requisite to a finding that an emergency-powers statute is
valid. For example, the Supreme Court of Oregon repeatedly noted when it upheld a challenge to
Oregon Governor Brown’s COVID-19-related orders that the legislature was able to terminate the
declaration of emergency, if it so chose. See Elkhorn Baptist Church v Brown, 366 Or 506, 526
(Or, 2020) (“[T]he Governor’s emergency powers are limited in that they can be terminated by the
legislature.”).
The concern of executive overreach is not a partisan one; it is a structural one.
Executives on both sides of the aisle have used “emergency” powers in ways that have sparked
controversy. The Governors of both Georgia and Texas, for example, used their emergency powers
to prohibit local jurisdictions from imposing any penalty for individuals who failed to wear face-
coverings during the COVID-19 pandemic. See Georgia Executive Order 07.15.20.01, at 32 (July
15, 2020); Texas Executive Order GA-28, at ¶ 15 (June 26, 2020).11 On the federal level, the
chamber.”); N.Y. Exec. Law § 28(3) (“The executive order shall include a description of the disaster, and the affected area. Such order or orders shall remain in effect for a period not to exceed six months or until rescinded by the governor, whichever occurs first. The governor may issue additional orders to extend the state disaster emergency for additional periods not to exceed six months.”); N.D. Cent. Code Ann. § 37-17.1-05(3) (“The legislative assembly by concurrent resolution may terminate a state of disaster or emergency at any time.”); Okla. Stat. Ann. tit. 63, § 6405(C) (“The State Legislature by concurrent resolution may terminate a state of catastrophic health emergency at any time.”); Or. Rev. Stat. Ann. § 401.204(2) (“The state of emergency proclaimed by the Governor may be terminated at any time by joint resolution of the Legislative Assembly.”); 35 Pa. Stat. and Cons. Stat. Ann. § 7301(c) (“The General Assembly by concurrent resolution may terminate a state of disaster emergency at any time.”); 30 R.I. Gen. Laws Ann. § 30-159(b) (“The general assembly by concurrent resolution may terminate a state of disaster emergency at any time.”); S.C. Code Ann. § 25-1-440) (“A declared state of emergency shall not continue for a period of more than fifteen days without the consent of the General Assembly.”); Tex. Gov't Code Ann. § 418.014(c) (“A declared state of emergency shall not continue for a period of more than fifteen days without the consent of the General Assembly.”); Utah Code Ann. § 53-2a-206(3) (“A state of emergency may not continue for longer than 30 days unless extended by joint resolution of the Legislature, which may also terminate a state of emergency by joint resolution at any time.”); 20 V.S.A. § 13 (“Upon receiving notice that a majority of the legislative body of a municipality affected by a natural disaster no longer desires that the state of emergency continue within its municipality, shall declare the state of emergency terminated within that particular municipality.”); W. Va. Code Ann. § 15-5-6(b) (“Any state of emergency or state of preparedness, whether proclaimed by the Governor or by the Legislature, terminates upon the proclamation of the termination by the Governor, or the passage by the Legislature of a concurrent resolution terminating the state of emergency or state of preparedness: Provided, That in no case shall a state of preparedness last longer than thirty days.”); Wis. Stat. Ann. § 323.10 (“A state of emergency shall not exceed 60 days, unless the state of emergency is extended by joint resolution of the legislature.”). 11 The Governor of Texas subsequently reversed this portion of the executive order. See Texas Executive Order GA29 (July 2, 2020).
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President controversially declared a national emergency on the southern border of the United States in order to fund a border wall. See California v Trump, ___ F3d ___, No. 19-16299, 2020 WL 3480841, at *1 (CA 9, June 26, 2020) (App. 153a). The structural separation of powers principles that are reflected in both the federal and the Michigan constitutions are designed to restrain the executive—of any political party—from exceeding the appropriate bounds of their authority. If those boundaries are ignored in the present instance, then future executives will be given the same carte blanche to act under indefinite emergency declarations.
That is why it makes no difference to this case whether the Governor’s motivations and policies are either wise or mistaken. “The question whether such a delegation of legislative power is permitted by the Constitution is not answered by the argument that it should be assumed that the President has acted, and will act, for what he believes to be the public good. The point is not one of motives, but of constitutional authority, for which the best of motives is not a substitute.” Panama Refining, 293 US at 420. Here, the Governor’s attempt in Phase Six of her reopening plan to impose unilateral policy solutions even to post-pandemic circumstances illustrates the danger of granting an executive the power both to define the existence of an “emergency” as well as to extend its duration indefinitely. Even the best-intentioned executive declarations are susceptible to mission creep.
Nor does it matter that the Legislature in 1945 acquiesced in the improper delegation of its authority to the executive. As Justice Kennedy noted in the federal context,
It is no answer, of course, to say that Congress surrendered its authority by its own hand; nor does it suffice to point out that a new statute, signed by the President or enacted over his veto, could restore to Congress the power it now seeks to relinquish. That a congressional cession of power is voluntary does not make it innocuous. The Constitution is a compact enduring for more than our time, and one Congress cannot yield up its own powers, much less those of other Congresses to follow.
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Clinton v City of NY, 524 US 417, 451–52 (1998) (Kennedy, J., concurring). See also Free Enter Fund v Pub Co Accounting Oversight Bd, 561 US 477, 497 (2010) (“[T]he separation of powers does not depend on the views of individual Presidents, nor on whether ‘the encroached-upon branch approves the encroachment.’” (internal citation omitted)).
The fact that the EPGA addresses the emergency context does not alter the analysis, either. “Emergency does not create power.” Home Bldg & Loan Ass’n v Blaisdell, 290 US 398, 425 (1934). Like the federal Constitution, the Michigan Constitution’s “structure requires a stability which transcends the convenience of the moment.” Clinton, 524 US at 449 (Kennedy, J., concurring).
To the extent that the Governor argues that invalidation of the EPGA would eliminate the executive’s authority to respond to public health problems like an epidemic, that argument is incorrect. First, the EMA gives the Governor 28 days in which to respond to an emergency circumstance, with a substantial amount of discretion. Second, the Legislature can extend the 28-period as it deems necessary. In other words, instead of going solo, the Governor can make her case to the Legislature that she is taking appropriate action and can be entrusted not to issue unreasonable executive orders under her emergency powers.12 If the Governor has been able to compromise with the Legislature to that degree, then the Legislature can extend the emergency declaration, and the Governor can continue to manage the government’s response to the situation. That dynamic ensures that the Legislature is kept apprised of the executive’s exercise of its extraordinary powers and that the State’s government presents a unified response to an
12 Notably, the Legislature decided to decline the Governor’s request to extend the Governor’s declaration of emergency shortly after the Governor issued EO 2020-42, which, among other things, criminalized the sale of paint, furniture, and flooring, and prohibited large retail stores from engaging in almost any advertising—a restriction that is almost certainly a facial violation of the First Amendment. (App. 99a). If the Legislature disagreed with the Governor’s decisions, the Legislature was within its rights to decline to continue to give the Governor carte blanche— regardless of whether the Governor or the Legislature is correct, as a matter of policy, about the appropriate response to the pandemic.
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important public health challenge, rather than a fractured one. Third, the Legislature can pass statutes that are targeted to the pandemic and that grant the Governor the authority to implement a specific range of options to respond to the pandemic. The Legislature has substantial practice in passing statutes that both impose intelligible limits on the executive’s conduct and nevertheless allow the executive branch to respond to public health concerns. See, e.g., Hazardous Communicable Diseases Act, MCL § 333.5201, et seq. (providing procedures for quarantine and detention of individuals suspected of having infectious diseases).
Finally, the separation of powers problems posed by the EPGA endanger not just the careful balance of powers among our three branches of government but also the individual liberties protected by that government. “The structural principles secured by the separation of powers protect the individual as well.” Stern v Marshall, 564 US 462, 483 (2011). Arguably, the structure of the Constitution plays an even greater role in protecting personal liberties than does any bill of rights. See Mistretta, 488 US at 381 (citing The Federalist No. 47)). In fact, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton, 524 US at 450 (1998) (Kennedy, J., concurring).
That is why it is critical to carefully preserve the appropriate boundaries between the governmental branches. “[T]he doctrine of separation of powers is a structural safeguard . . . [I]t is a prophylactic device, establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Plaut v Spendthrift Farm, Inc, 514 US 211, 239 (1995). “Slight encroachments” of one branch into another branch’s domain “create new boundaries from which legions of power can seek new territory to capture.” Stern, 564 US at 503. As interpreted by the Governor, the EPGA represents not merely a “slight encroachment” of the executive into the realm of the legislature; it is an enormous breach.
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IV. The Governor cannot collaterally attack the federal district court’s decisions. Finally, the Governor previously filed a motion in this Court, seeking an
opportunity to apprise this Court of alleged infirmities in the underlying federal-court litigation, such as the Governor’s assertion that the federal lawsuit is moot. The Governor’s assertions about those alleged infirmities should not carry the day, because the federal court has already assessed those arguments and rejected them. If this Court accepts the Governor’s argument that this Court should not answer the certified questions, then the district court is poised to answer them on the merits itself. It is critical, however, that these certified questions be answered—by the Court that is the final authority on issues of Michigan law.
To the extent that the Governor continues to argue that this particular case is not an appropriate vehicle in which to answer the certified questions, the Governor’s argument misses the mark. For example, the Governor may claim that the federal lawsuit is moot or is otherwise non-justiciable. But the federal district court rejected that argument. (App. 65a). The argument is also quite obviously wrong. The plaintiffs are still subject to various restrictions on their provision of medical services under EO 2020-145. And in any event, numerous states have reversed their attempts to re-open and have renewed prohibitions on non-essential medical procedures, and there is no certainty that Michigan will not follow suit. In fact, the Governor has extended Michigan’s emergency declaration until mid-August (EO 2020-157)—marking fully five months of “emergency” rule—almost half of the current legislative session and almost a quarter of the tenure of the 100th Legislature. The notion that this case is moot was rightly rejected by the district court.
The Governor may also argue that she asked the federal district court to abstain from answering the state-law questions presented to this Court. The district court rejected that request, too, determining to certify them to this Court instead. (Id.). The Governor may assert that the federal-court claims are barred by the Eleventh Amendment. But the district court has rejected
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that assertion, as well. (App. 58a). The Governor has attempted to appeal the federal court’s order denying the Governor’s motion to reconsider its determination to certify the state-law questions to this Court, but the district court’s order is an unappealable interlocutory order, such that the Sixth Circuit lacks jurisdiction over the appeal. See Brown v Argosy Gaming Co, LP, 360 F3d 703, 705– 06 (CA 7, 2004) (order certifying questions to the state supreme court is not an appealable interlocutory order); Nemours Found v Manganaro Corp, 878 F2d 98, 100 (CA 3, 1989) (same).
In any event, the primary consideration is not whether this Court disagrees with any of the federal court’s rulings on these procedural matters. The Governor cannot collaterally attack the federal court’s rulings on those issues in this Court. Instead, the primary consideration is whether this Court prefers to answer the certified questions itself or is willing to defer to the federal district court’s determination of them.
CONCLUSION The questions presented to this Court are not a referendum on whether Governor Whitmer is making sound policy decisions in response to the COVID-19 epidemic. The questions before this Court are instead about the interpretation of two statutes and Michigan’s Constitution. The medical providers’ interpretation of the EMA and the EPGA harmonizes the statutes with the Constitution. If the Governor’s expansive interpretation of executive power is accepted, however, future executives will be emboldened to declare emergencies and extend them indefinitely— knowing that they can sideline the Legislature for as long as they choose. That result would fundamentally re-order the balance of power between Michigan’s branches of government. The Court should rule that the Governor does not have the authority under the EMA or the EPGA to continue to issue emergency orders related to the COVID-19 pandemic, either as a matter of statutory construction, or because the EPGA violates Michigan’s Constitution.
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Dated: July 21, 2020

By /s/ James R. Peterson James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) Miller Johnson Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation Co-counsel for Plaintiffs 140 W Main St. Midland, Michigan 48640-5156 (989) 631-0900 wright@mackinac.org

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MJ_DMS 32021162v2 47994-1

 
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STATE OF MICHIGAN IN THE SUPREME COURT

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION.

Supreme Court No. 161492 USDC-WD: 1:20-cv-414

MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a

GRAND HEALTH PARTNERS, WELLSTON

MEDICAL CENTER, PLLC, PRIMARY HEALTH

SERVICES, PC, and JEFFERY GULICK,

Plaintiffs,

The appeal involves a ruling

v

that a statute or other state

governmental action is

GOVERNOR OF MICHIGAN,

invalid.

MICHIGAN ATTORNEY GENERAL, and

MICHIGAN DEPARTMENT OF HEALTH AND

HUMAN SERVICES DIRECTOR,

Defendants.

/

BRIEF OF MICHIGAN ATTORNEY GENERAL DANA NESSEL

ORAL ARGUMENT REQUESTED

Dana Nessel Attorney General

Fadwa A. Hammoud (P74185) Solicitor General Counsel of Record

Ann M. Sherman (P67762) Deputy Solicitor General

Rebecca A. Berels (P81977) Assistant Attorney General

Dated: August 6, 2020

Department of Attorney General Attorneys for the Attorney General P.O. Box 30212, Lansing, MI 48909 (517) 335-7656 ShermanA@michigan.gov BerelsR1@michigan.gov

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TABLE OF CONTENTS Page
Index of Authorities ......................................................................................................iii Statement of Jurisdiction ............................................................................................. xi Counter-Statement of Questions Presented ............................................................... xii Constitutional Provisions, Statutes, Rules Involved................................................. xiii Introduction ................................................................................................................... 1 Counter-Statement of Facts and Proceedings .............................................................. 2 Standard of Review...................................................................................................... 13 Summary of Argument ................................................................................................ 14 Argument ..................................................................................................................... 15 I. This Court should decline to consider the certified questions because
the federal district court should have dismissed the state-law claims........... 15 A. The state-law claims should have been dismissed as moot. ................. 15 B. The federal claims should have been dismissed because they are
barred by the Eleventh Amendment. .................................................... 19 II. Under the EPGA, Governor Whitmer had the authority after April 30,
2020, to issue or renew executive orders related to the COVID-19 pandemic. .......................................................................................................... 21 A. The plain language of the EPGA gives the governor continued
authority. ................................................................................................ 21 1. The COVID-19 pandemic is an emergency................................. 23
a. The plain language of the EPGA places no durational restrictions on an emergency. ........................ 23
b. The Legislature defined an “emergency” through its context—as a public crisis or disaster that imperils public safety—and the pandemic meets that definition. .......................................................................... 26
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c. The plain language of the EPGA encompasses many types of orders and emergencies. ........................... 31
d. The EPGA’s plain language does not limit a governor’s powers to local emergencies............................ 32
2. The Governor’s Executive Orders were reasonable and necessary. ..................................................................................... 34
3. The Governor never terminated the emergency that supported her declaration of emergency under the EPGA. ....... 36
B. The EPGA gives the Governor sufficient authority to issue and re-issue executive orders after April 30, 2020, even if the EPA does not, because the Acts are independent.......................................... 37 1. The Governor’s authority under the EMA expired on April 30, 2020, when the Legislature refused to grant an extension. ..................................................................................... 37 2. The expiration of authority under the EMA has no bearing on the Governor’s continuing authority under the EPGA because the EPGA is independent................................... 40 a. The EMA’s 28-day temporal restriction cannot be read into the EPGA........................................................... 41 b. The Governor’s termination of the declared state of emergency and disaster under the EMA did not terminate the state of emergency under the EPGA. ....... 45
III. Neither the EPGA nor the EMA violates the Separation-of-Powers or Non-Delegation doctrines of the Michigan Constitution. ................................ 48 A. The EPGA is facially constitutional. ..................................................... 48 B. The EMA is likewise facially constitutional.......................................... 54
Conclusion and Relief Requested ................................................................................ 59
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INDEX OF AUTHORITIES
Cases
Adams & Boyle, PC v Slatery, 956 F3d 913 (CA 6, 2020)........................................................................................... 1
Alan v Wayne Cnty, 388 Mich 210 (1972) ................................................................................................. 44
Argo Oil Corp v Atwood, 274 Mich 47 (1935) ................................................................................................... 48
Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505 (1982) ................................................................................................. 26
Barachkov v Davis, 580 Fed Appx 288 (CA 6, 2014) ............................................................................... 20
Blank v Dep’t of Corr, 462 Mich 103 (2000) ........................................................................................... 38, 49
Blue Cross & Blue Shield v Milliken, 422 Mich 1 (1985) ......................................................................................... 48, 53, 54
Cassell v Snyders, 2020 WL 2112374, opinion of the United States District Court for the Northern District of Illinois, issued May 3, 2020 (Case No. 20 C 50153) .............. 50
City of Mesquite v Aladdin’s Castle, 455 US 283 (1983) .................................................................................................... 17
Colvin v Inslee, 2020 WL 4211571, opinion of the Washington Supreme Court, issued July 23, 2020 (Case No. 98317-8) .................................................................................... 28
County of Gloucester v State, 623 A2d 763 (NJ, 1993)...................................................................................... 28, 50
County of Hudson v State of NJ Dep’t of Corrections, 2009 WL 1361546, unpublished decision of the Superior Court of New Jersey, Appellate Division, issued May 18, 2009 (Case No. A-2552-07T1) ........... 28
Dep’t of Natural Resources v Seaman, 396 Mich 299 (1976) ................................................................................................. 48
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Dye by Siporin & Assocs, Inc v Esurance Prop & Cas Ins Co, 504 Mich 167 (2019) ................................................................................................. 24
GC Timmis & Co v Guardian Alarm Co, 468 Mich 416 (2003) ........................................................................................... 26, 57
Gen Motors Corp v Erves (On Rehearing), 399 Mich 241 (1976) ................................................................................................. 26
Globe Newspaper Co v Superior Court for Norfolk Cty, 457 US 596 (1982) .................................................................................................... 17
Hagen v Dep’t of Ed, 431 Mich 118 (1988) ................................................................................................. 26
Iliades v Dieffenbacher N Am Inc, 501 Mich 326 (2018) ................................................................................................. 41
In re Bliemeister, 296 F3d 858 (CA 9, 2002)......................................................................................... 20
In re Certified Question from Sixth Circuit Court of Appeals, 468 Mich 109 (2003) ................................................................................................. 31
In re Mosby, 360 Mich 186 (1960) ................................................................................................. 30
Int’l Bus Machines Corp v Dep’t of Treasury, 496 Mich 642 (2014) ........................................................................................... 42, 44
Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905) .................................................................................... 25, 35, 51, 53
Judicial Attorneys Ass’n v State, 459 Mich 291 (1998) ................................................................................................. 52
Kentucky Right to Life, Inc v Terry, 108 F3d 637 (CA 6, 1997)................................................................................... 16, 17
Klammer v Dep’t of Transp, 141 Mich App 253 (1985) ......................................................................................... 50
Kremens v Bartley, 431 US 119 (1977) .................................................................................................... 16
Ku v Tennessee, 322 F3d 431 (CA 6, 2003)......................................................................................... 20
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Lapides v Bd of Regents of the Univ Sys of Ga, 535 US 613 (2002) .................................................................................................... 19
Maryville Baptist Church v Beshear, 957 F3d 610 (CA 6, 2020)......................................................................................... 18
McCarthy v Bronson, 500 US 136 (1991) .................................................................................................... 26
Michigan House of Representatives and Michigan Senate v Whitmer, Case No. 20-000079-MZ (May 21, 2020) ................................................................... 9
Mingus v Butler, 591 F3d 474 (CA 6, 2010)......................................................................................... 19
Mosley v Hairston, 920 F2d 409 (CA 6, 1990)......................................................................................... 18
Natsch v City of Southfield, 154 Mich App 317 (1986) ......................................................................................... 30
People v Vasquez, 465 Mich 83 (2001) ................................................................................................... 26
Powell v McCormack, 395 US 486 (1969) .................................................................................................... 16
Rowland v Washtenaw Cnty Rd Comm’n, 477 Mich 197 (2007) ................................................................................................. 21
Sanchick v State Bd of Optometry, 342 Mich 555 (1955) ................................................................................................. 27
SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65 (2017) ................................................................................................... 42
Shelby Cty, Ala v Holder, 570 US 529 (2013) ...................................................................................................... 2
Soap & Detergent Ass’n v Natural Resources Comm, 330 NW2d 346 (Mich 1982)............................................................................ 7, 52, 53
State Highway Comm v Vanderkloot, 392 Mich 159 (1974) ................................................................................................. 49
Sun Valley Foods Co v Ward, 460 Mich 230 (1999) ........................................................................................... 21, 39
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Sweatt v Dep’t of Corrections, 468 Mich 172 (2019) ................................................................................................. 40
Taylor v Smithkline Beecham Corp, 468 Mich 1 (2003) ............................................................................................... 48, 54
Terminiello v City of Chicago, 337 US 1 (1949) ........................................................................................................ 35
Tyler v Livonia Pub Sch, 459 Mich 382 (1999) ................................................................................................. 41
Utica State Savings Bank v Village of Oak Park, 279 Mich 568 (1937) ................................................................................................. 30
Voorhies v Faust, 220 Mich 155 (1922) ................................................................................................. 41
Westervelt v Natural Resources Comm’n, 402 Mich 412 (1978) ........................................................................................... 48, 51
Statutes 1945 PA 302 ................................................................................................................... 3 1976 PA 390 ................................................................................................................... 3 2006 PA 546 ................................................................................................................... 3 MCL 10.31 ......................................................................................................... xiii, 3, 29 MCL 10.31 et seq. ................................................................................................. passim MCL 10.31(1) ....................................................................................................... passim MCL 10.31(2) ................................................................................................... 22, 44, 45 MCL 10.32 ............................................................................................................ passim MCL 30.401 et seq. ............................................................................................... passim MCL 30.402 ................................................................................................................. xiv MCL 30.402(e)........................................................................................................ 55, 57 MCL 30.402(h) ....................................................................................................... 55, 57
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MCL 30.403 ................................................................................................................. xvi MCL 30.403(1) ......................................................................................................... 3, 55 MCL 30.403(2) ............................................................................................................. 55 MCL 30.403(3) ............................................................................................................. 38 MCL 30.403(4) ............................................................................................................. 38 MCL 30.404 .......................................................................................................... xvii, 56 MCL 30.405 ............................................................................................................... xviii MCL 30.405(1) ............................................................................................................. 57 MCL 30.405(1)(a) ......................................................................................................... 57 MCL 30.405(1)(j) .......................................................................................................... 57 MCL 30.407 ................................................................................................................. xix MCL 30.407(1) ............................................................................................................. 56 MCL 30.416 ............................................................................................................ xx, 56 MCL 30.417 .................................................................................................................. xx MCL 30.417(d) ............................................................................................................. 43 MCL 30.419 ........................................................................................................... xxi, 56 MCL 333.1101 et seq. ..................................................................................................... 3 MCL 40.403(3) ............................................................................................................. 57 MCL 40.403(4) ............................................................................................................. 57
Other Authorities 38 Am Jur 2d, Governor, § 4 ......................................................................................... 2 ABC News, May 7, 2020, “Yes, COVID-19 is mutating, here’s what you need
to know,” ................................................................................................................... 28 Center for Disease Control, Clinical Care Guidance ................................................... 5 Center for Disease Control, Coronavirus Disease 2019 Basics .................................... 6
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Center for Disease Control, How COVID-19 Spreads .............................................. 4, 5 Center for Disease Control, How to Protect Yourself and Others ................................ 6 Centers for Disease Control, Social Distancing, Quarantine, and Isolation .............. 4 Clodfelter, Warfare and Armed Conflicts: A Statistical Encyclopedia of
Casualty and Other Figures, 1492–2015 (North Carolina: McFarland & Company, Inc., 4th ed, 2017) ..................................................................................... 7 E. Borchard, Declaratory Judgments (2d ed. 1941) ................................................... 16 Executive Order 2020-110 ............................................................................... 10, 11, 16 Executive Order 2020-114 ........................................................................................... 11 Executive Order 2020-115 ..................................................................................... 10, 11 Executive Order 2020-127 ............................................................................................. 9 Executive Order 2020-143 ........................................................................................... 12 Executive Order 2020-145 ........................................................................................... 11 Executive Order 2020-151 ............................................................................... 7, 8, 9, 11 Executive Order 2020-153 ........................................................................................... 12 Executive Order 2020-17 ............................................................................. 9, 12, 16, 17 Executive Order 2020-21 ............................................................................................... 9 Executive Order 2020-33 ......................................................................................... 8, 38 Executive Order 2020-4 ............................................................................................... 38 Executive Order 2020-42 ............................................................................................. 10 Executive Order 2020-59 ............................................................................................. 10 Executive Order 2020-66 ............................................................................. 8, 39, 45, 46 Executive Order 2020-67 ..................................................................................... 8, 9, 46 Executive Order 2020-68 ..................................................................................... 8, 9, 39 Executive Order 2020-70 ............................................................................................. 10
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Executive Order 2020-77 ........................................................................... 10, 12, 16, 17 Executive Order 2020-91 ............................................................................................. 11 Executive Order 2020-92 ....................................................................................... 10, 16 Executive Order 2020-96 ................................................................................... 9, 10, 16 Executive Order 2020-96 § 19 ..................................................................................... 17 Executive Order 2020-96 § 8(a)(6) .............................................................................. 17 Executive Order 2020-97 ............................................................................................. 11 Imperial College London, Report 23 from the MCR Centre for Global
Infectious Disease Analysis, state-level tracking of COVID-19 in the United States ............................................................................................................ 10, 25, 34 Julie Mazziotta, “If All Americans Wore Masks ‘We Could Drive This Epidemic to the Ground,’ Says CDC Director,” People.com ................................... 24 Senate Concurrent Resolution 2020-24 ........................................................................ 8 The Modern Webster Dictionary for Home and School, 1941 ed ............................... 28 Webster’s Dictionary of Synonyms, 1st ed, 1942........................................................ 29 Webster’s Giant illustrated dictionary, 1943 (p 172) ................................................. 28 Webster’s New International Dictionary (2d ed 1942)............................................... 27 WHO, Coronavirus Disease (COVID-19) Dashboard ................................................... 5 WHO, Coronavirus Disease (COVID-19) Pandemic: Cases in the US ......................... 5 WHO, Modes of transmission of virus causing COVID-19........................................... 4 WHO, Q & A, What are the Symptoms of Covid-19? .................................................... 5
Rules MCR 7.301(A)(5) .......................................................................................................... 13 MCR 7.303(B)(4) .......................................................................................................... 13 MCR 7.308(A)(3) ........................................................................................................... xi WD Mich LCivR 83.1 ................................................................................................... 15
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Constitutional Provisions Const 1963, art 3, § 2 ............................................................................................ xiii, 51 Const 1963, art 4, § 1 ............................................................................................. 48, 53 Const 1963, art 5, § 2 ..................................................................................................... 7 US Const, Am XI.................................................................................................. passim
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STATEMENT OF JURISDICTION This Court has jurisdiction to answer the certified questions under MCR 7.308(A)(3).
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COUNTER-STATEMENT OF QUESTIONS PRESENTED

1. This Court has discretion to decline to consider certified questions. Here, the federal district court should have dismissed the state-law claims based on mootness and Eleventh Amendment immunity. Should this Court decline to consider the certified questions?

Plaintiffs’ answer:

No.

Attorney General’s answer: Yes.

Federal district court’s answer: No.

2. The Emergency Powers of the Governor Act (EPGA), MCL 10.31 et seq., does not limit the duration of an emergency and gives the governor the discretion to determine when an emergency has ended and when executive orders related to the emergency are no longer needed. Here, the exigencies still exist, Governor Whitmer has not yet terminated the state of emergency under the EPGA, and the EPGA functions independent of the Emergency Management Act (EMA). Even though the Governor did not have the authority to re-declare an emergency on April 30, 2020 under the EMA, does the Governor nonetheless have the authority under the EPGA after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic?

Plaintiffs’ answer:

No.

Attorney General’s answer: Yes.

Federal district court’s answer: Did not answer.

3. A statute violates non-delegation and separation-of-powers principles when it does not contain reasonably precise standards. Both the EPGA and the EMA contain reasonably precise standards based on the subject matter and the complexities of an emergency. Does either the EPGA or the EMA violate the Separation-of-Powers or Non-Delegation doctrines of the Michigan Constitution?

Plaintiffs’ answer:

Yes.

Attorney General’s answer: No.

Federal district court’s answer: Did not answer.

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CONSTITUTIONAL PROVISIONS, STATUTES, RULES INVOLVED
Const 1963, art 3, § 2. Separation of powers of government
Sec. 2. The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.
MCL 10.31. Proclamation of state of emergency; promulgation of orders, rules, and regulations
Sec. 1. During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, 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. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
(3) Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.
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MCL 10.32. Powers of governor; legislative intent
Sec. 2. It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.
MCL 30.402. Definitions
Sec. 2. As used in this act:
(a) “Chief executive official” means:
(i) In the case of a county with an elected county executive, the county executive.
(ii) In the case of a county without an elected county executive, the chairperson of the county board of commissioners, or the appointed administrator designated by appropriate enabling legislation.
(iii) In the case of a city, the mayor or the individual specifically identified in the municipal charter.
(iv) In the case of a township, the township supervisor.
(v) In the case of a village, the village president or the individual specifically identified in the village charter.
(b) “Council” means the Michigan emergency management advisory council.
(c) “Department” means the department of state police.
(d) “Director” or “state director of emergency management” means the director of the department of state police or his or her designee.
(e) “Disaster” means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, fire, flood, snowstorm, ice storm, tornado, windstorm, wave action, oil spill, water contamination, utility failure, hazardous peacetime radiological incident, major transportation accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation, explosion, or
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hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities, riots, or civil disorders.
(f) “Disaster relief forces” means all agencies of state, county, and municipal government, private and volunteer personnel, public officers and employees, and all other persons or groups of persons having duties or responsibilities under this act or pursuant to a lawful order or directive authorized by this act.
(g) “District coordinator” means the state police emergency management division district coordinator.
(h) “Emergency” means any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.
(i) “Emergency management coordinator” means a person appointed pursuant to section 9 to coordinate emergency management within the county or municipality. Emergency management coordinator includes a civil defense director, civil defense coordinator, emergency services coordinator, emergency program manager, or other person with a similar title and duties.
(j) “Local state of emergency” means a proclamation or declaration that activates the response and recovery aspects of any and all applicable local or interjurisdictional emergency operations plans and authorizes the furnishing of aid, assistance, and directives under those plans.
(k) “Michigan emergency management plan” means the plan prepared and maintained by the emergency management division of the department and signed by the governor.
(l) “Municipality” means a city, village, or township.
(m) “Person” means an individual, partnership, corporation, association, governmental entity, or any other entity.
(n) “Political subdivision” means a county, municipality, school district, or any other governmental unit, agency, body, board, or commission which is not a state department, board, commission, or agency of state government.
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(o) “Rule” means a rule promulgated pursuant to the administrative procedures act of 1969, Act No. 306 of the Public Acts of 1969, being sections 24.201 to 24.328 of the Michigan Compiled Laws.
(p) “State of disaster” means an executive order or proclamation that activates the disaster response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.
(q) “State of emergency” means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected.
MCL 30.403. Responsibility of governor; powers and duties; declaration of state of disaster or emergency
Sec. 3. (1) The governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.
(2) The governor may issue executive orders, proclamations, and directives having the force and effect of law to implement this act. Except as provided in section 7(2) 1, an executive order, proclamation, or directive may be amended or rescinded by the governor.
(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and shall be promptly filed with the emergency management division of the department and the secretary of state, unless circumstances attendant upon the disaster prevent or impede its prompt filing.
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(4) The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. An executive order or proclamation issued pursuant to this subsection shall indicate the nature of the emergency, the area or areas threatened, the conditions causing the emergency, and the conditions permitting the termination of the state of emergency. An executive order or proclamation shall be disseminated promptly by means calculated to bring its contents to the attention of the general public and shall be promptly filed with the emergency management division of the department and the secretary of state, unless circumstances attendant upon the emergency prevent or impede its prompt filing.
MCL 30.404. Declaration of state of disaster or emergency; deployment of forces; federal assistance; reciprocal aid agreements
Sec. 4. (1) An executive order or proclamation of a state of disaster or a state of emergency shall serve to authorize the deployment and use of any forces to which the plan or plans apply and the use or distribution of supplies, equipment, materials, or facilities assembled or stockpiled pursuant to this act.
(2) Upon declaring a state of disaster or a state of emergency, the governor may seek and accept assistance, either financial or otherwise, from the federal government, pursuant to federal law or regulation.
(3) The governor may, with the approval of the state administrative board, enter into a reciprocal aid agreement or compact with another state, the federal government, or a neighboring state or province of a foreign country. A reciprocal aid agreement shall be limited to the furnishing or exchange of food, clothing, medicine, and other supplies; engineering services; emergency housing; police services; the services of the national guard when not mobilized for federal service or state defense force as authorized by the Michigan military act, Act No. 150 of the Public Acts of 1967, as amended, being sections 32.501 to 32.851 of the Michigan Compiled Laws, and subject to federal limitations on the crossing of national boundaries by organized military forces;
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health, medical, and related services; fire fighting, rescue, transportation, and construction services and equipment; personnel necessary to provide or conduct these services; and other necessary equipment, facilities, and services. A reciprocal aid agreement shall specify terms for the reimbursement of costs and expenses and conditions necessary for activating the agreement. The legislature shall appropriate funds to implement a reciprocal aid agreement.
MCL 30.405. Additional duties of governor
Sec. 5. (1) In addition to the general authority granted to the governor by this act, the governor may, upon the declaration of a state of disaster or a state of emergency do 1 or more of the following:
(a) Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency. This power does not extend to the suspension of criminal process and procedures.
(b) Utilize the available resources of the state and its political subdivisions, and those of the federal government made available to the state, as are reasonably necessary to cope with the disaster or emergency.
(c) Transfer the direction, personnel, or functions of state departments, agencies, or units thereof for the purpose of performing or facilitating emergency management.
(d) Subject to appropriate compensation, as authorized by the legislature, commandeer or utilize private property necessary to cope with the disaster or emergency.
(e) Direct and compel the evacuation of all or part of the population from a stricken or threatened area within the state if necessary for the preservation of life or other mitigation, response, or recovery activities.
(f) Prescribe routes, modes, and destination of transportation in connection with an evacuation.
(g) Control ingress and egress to and from a stricken or threatened area, removal of persons within the area, and the occupancy of premises within the area.
(h) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles.
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(i) Provide for the availability and use of temporary emergency housing.
(j) Direct all other actions which are necessary and appropriate under the circumstances.
(2) Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms or ammunition.
(3) A person who willfully disobeys or interferes with the implementation of a rule, order, or directive issued by the governor pursuant to this section is guilty of a misdemeanor.
MCL 30.407. Powers and duties of director
Sec. 7. (1) The director shall implement the orders and directives of the governor in the event of a disaster or an emergency and shall coordinate all federal, state, county, and municipal disaster prevention, mitigation, relief, and recovery operations within this state. At the specific direction of the governor, the director shall assume complete command of all disaster relief, mitigation, and recovery forces, except the national guard or state defense force, if it appears that this action is absolutely necessary for an effective effort.
(2) If the governor has issued a proclamation, executive order, or directive under section 3 regarding state of disaster or state of emergency declarations, section 5 regarding actions directed by the governor, or section 21 regarding heightened state of alert, the director may, with the concurrence of the governor, amend the proclamation or directive by adding additional counties or municipalities or terminating the orders and restrictions as considered necessary.
(3) The director shall comply with the applicable provisions of the Michigan emergency management plan in the performance of the director’s duties under this act.
(4) The director’s powers and duties shall include the administration of state and federal disaster relief funds and money; the mobilization and direction of state disaster relief forces; the assignment of general missions to the national guard or state defense force activated for active state duty to assist the disaster relief operations; the receipt, screening, and investigation of requests for assistance from county and municipal governmental entities; making recommendations to the governor; and other appropriate actions within the general authority of the director.
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(5) In carrying out the director’s responsibilities under this act, the director may plan for and utilize the assistance of any volunteer group or person having a pertinent service to render.
(6) The director may issue a directive relieving the donor or supplier of voluntary or private assistance from liability for other than gross negligence in the performance of the assistance.
MCL 30.416. Acceptance and disbursement of federal grants; agreements with federal government
Sec. 16. After the president of the United States declares an emergency or a major disaster, as defined in the disaster relief act of 1974, Public Law 93-288, 88 Stat. 143, to exist in this state, the governor may apply for, accept, and disburse grants from the federal government pursuant to the disaster relief act of 1974. To implement and administer the grant program and to make financial grants, the governor may enter into an agreement with the federal government or any officer, or agency of the federal government, pledging the state’s share for the financial grants.
MCL 30.417. Construction of act
Sec. 17. This act shall not be construed to do any of the following:
(a) Interfere with the course or conduct of a labor dispute. However, actions otherwise authorized by this act or other laws may be taken when necessary to forestall or mitigate imminent or existing danger to public health or safety.
(b) Interfere with the dissemination of news or comment on public affairs. However, any communications facility or organization, including radio and television stations, wire services, and newspapers, may be requested to transmit or print public service messages furnishing information or instructions in connection with a disaster or emergency.
(c) Affect the jurisdiction or responsibilities of law enforcement agencies, fire fighting forces, and units or personnel of the armed forces of the United States when on active duty. However, state, local, and interjurisdictional emergency operations plans shall place reliance upon the forces available for performance of functions related to disasters or emergencies.
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(d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act.
(e) Relieve any state or local official, department head, or agency of its normal responsibilities.
(f) Limit or abridge the power, duty, or responsibility of the chief executive official of a county or municipality to act in the event of a disaster or emergency except as expressly set forth in this act.
MCL 30.419. Expenditure from disaster and emergency contingency fund
Sec. 19. (1) Under extraordinary circumstances, upon the declaration of a state of disaster or a state of emergency by the governor and subject to the requirements of this subsection, the governor may authorize an expenditure from the disaster and emergency contingency fund to provide state assistance to counties and municipalities when federal assistance is not available. If the governor proclaims a state of disaster or a state of emergency, the first recourse for disaster related expenses shall be to funds of the county or municipality. If the demands placed upon the funds of a county or municipality in coping with a particular disaster or emergency are unreasonably great, the governing body of the county or municipality may apply, by resolution of the local governing body, for a grant from the disaster and emergency contingency fund. The resolution shall certify that the affected county or municipality emergency operations plan was implemented in a timely manner. The resolution shall set forth the purpose for which the assistance is sought, the extent of damages sustained, and certify an exhaustion of local efforts. The assistance under this subsection is to provide grants, excluding reimbursement for capital outlay expenditures, in mitigation of the extraordinary burden of a county or municipality in relation to its available resources. Assistance grants under this section shall not exceed the following amounts or 10% of the total annual operating budget for the preceding fiscal year of the county or municipality, whichever is less:
(a) For a county or municipality with a population under 25,000 according to the most recent federal decennial census, $250,000.00.
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(b) For a county or municipality with a population of 25,000 or more and less than 75,000 according to the most recent federal decennial census, $500,000.00.
(c) For a county or municipality with a population of 75,000 or more according to the most recent federal decennial census, $1,000,000.00.
(2) The director shall promulgate rules governing the application and eligibility for the use of the state disaster and emergency contingency fund. Rules that have been promulgated prior to December 31, 1988 to implement this section shall remain in effect until revised or replaced. The rules shall include, but not be limited to, all of the following:
(a) Demonstration of exhaustion of local effort.
(b) Evidence that the applicant is a county that actively maintains an emergency management program, reviewed by and determined to be current and adequate by the emergency management division of the department, before the disaster or emergency for which assistance is being requested occurs. If the applicant is a municipality with a population of 10,000 or more, evidence that the municipality either maintains a separate emergency management program, reviewed by and determined to be current and adequate by the emergency management division of the department, before the disaster or emergency for which assistance is being requested or occurs, or the municipality is incorporated in the county emergency management program.
(c) Evidence that the applicable county or municipal emergency operations plan was implemented in a timely manner at the beginning of the disaster or emergency.
(d) Reimbursement for expenditures shall be limited to public damage and direct loss as a result of the disaster or emergency, or expenses incurred by the applicant for reimbursing employees for disaster or emergency related activities which were not performed as a part of their normal duties, or for other needs required specifically for the mitigation of the effects, or in response to the disaster or emergency.
(e) A disaster assessment team established by the emergency management division of the department has substantiated the damages claimed by the applicant. Damage estimates submitted by the applicant shall be based upon a disaster assessment carried out by the applicant according to standard procedures recommended by the emergency management division.
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INTRODUCTION There are compelling reasons for this Court to decline to answer the certified questions and to instead await the cases that raise the same issues and are rapidly making their way through the State’s appellate system. This federal case—and its threshold jurisdictional issues—does not afford a sound vehicle for this Court to address these issues. But if this Court does decide to reach the merits of the questions presented, they are, as members of this Court have recognized, among the most important issues to come before this Court—questions that strike at the very heart of the democracy we so treasure. And, because of their importance to our basic system of governance, the answers to these questions cannot hinge on political party preference. Nor can the answers focus solely on this Governor or this crisis. Ultimately, this Court’s answers to the certified questions will provide critical guidance as Michigan charts a course in handling not only today’s emergency, but also future emergencies in circumstances we cannot now fathom. Still, today’s emergency—and, contrary to Plaintiffs’ assertion, COVID-19 is an emergency—provides the backdrop out of which these important legal questions have arisen. These are unprecedented times. Indeed, as the Sixth Circuit has said, “[W]e are not living in normal times; we are living in pandemic times.” Adams & Boyle, PC v Slatery, 956 F3d 913, 925 (CA 6, 2020). COVID-19 has hit Michigan hard. Just ask the tens of thousands who have been stricken with COVID-19, or the thousands more who have lost a loved one to this pernicious virus in the past four months. Ask ordinary citizens, who, practically overnight, have had to change
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the patterns of their life, their work, their personal associations, and even their once-mundane tasks. And ask all the medical professionals who are still scrambling to keep up with the pandemic’s evolving challenges.
Finally, ask the Governor, who has been forced to act swiftly and decisively to meet the many challenges that have arisen. Each day of this crisis, the Governor has had the unenviable task of navigating uncharted legal issues in an everchanging environment. This has required that she make significant decisions on a remarkably short deadline to save the lives of the People of her State. Few governors have had to face challenges of this magnitude. Yet, the Governor has faced these challenges head-on, and her actions have resulted in an extraordinary, though temporary, flattening of the curve in Michigan.
Despite these significant victories, Plaintiffs ask this Court to effectively strip the Governor of her emergency powers and interrupt the continuity needed to eradicate the virus. As Justice Ginsburg once said, that is “like throwing away your umbrella in a rainstorm because you are not getting wet.” Shelby Cty, Ala v Holder, 570 US 529, 590 (2013) (Ginsburg, J., dissenting). For the reasons that follow, this Court should refuse to do so.
COUNTER-STATEMENT OF FACTS AND PROCEEDINGS Michigan gubernatorial authority during an emergency.
As a general rule, “[e]mergencies do not create power or authority in a governor, as the executive, but they may afford occasions for the exercise of powers already existing.” 38 Am Jur 2d, Governor, § 4. The governor has the inherent
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constitutional authority to protect the health and welfare of the People of Michigan. While the Michigan Constitution does not mention any gubernatorial emergency powers, her authority during an emergency largely stems from one of two statutes: either the Emergency Powers of the Governor Act, MCL 10.31 et seq. (EPGA), or the Emergency Management Act, MCL 30.401 et seq. (EMA).1
The Legislature enacts the EPGA. In 1945 during World War II, the Michigan Legislature enacted the EPGA,
which authorizes “the governor to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto.”2 1945 PA 302; see also MCL 10.31.
The Legislature enacts the EMA. Later, in 1976, the Legislature enacted the EMA, which, among other things,
is designed to “provide for planning, mitigation, response, and recovery from natural and human-made disaster within and outside this state.” 1976 PA 390. The EMA delegates the responsibility of “coping with dangers to this state or the people of this state presented by a disaster or emergency” to the governor. MCL 30.403(1). The EMA specifically references and recognizes the governor’s
1 The governor may also work with the Michigan Department of Health and Human Services to implement provisions of the Public Health Code. See MCL 333.1101 et seq. 2 Since its promulgation, the EPGA has not been substantively amended. See 2006 PA 546 (containing minor, facial amendments).
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broad powers under the EPGA and provides that the governor may exercise those powers “independent of” the EMA. MCL 30.417(d).
The world goes to war against an invisible enemy in the form of a global pandemic: COVID-19.
The coronavirus disease 2019 (COVID-19) is a severe acute respiratory illness caused by SARS-CoV-2— a highly contagious virus that has quickly spread across the globe. The virus is thought to spread mainly through close, person-toperson contact3 via “respiratory droplets,”4 and experts say that coming within six feet of an infected person puts you at a high risk of contracting the disease.5 That is, when a person is within six feet of an infected person, infected respiratory droplets can land in or around the healthy person’s mouth, nose, or eyes, and can even be inhaled into the lungs, thus infecting that person with the virus.6
3 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 4 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. 5 Centers for Disease Control, Social Distancing, Quarantine, and Isolation, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/socialdistancing.html. 6 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html.
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Moreover, some people experience only mild symptoms of infection,7 or are
asymptomatic, yet may still spread the virus to any number of people, becoming
“super spreaders”8 before even realizing they are infected.9 Since the maximum
incubation period is up to 14 days, an infected person can spread to others at any
point without showing symptoms, resulting in an exponential number of cases
resulting from just one initial infection.10
On March 11, 2020, the World Health Organization (WHO) declared a
pandemic, and, two days later, the President issued a “Proclamation on Declaring a
National Emergency Concerning the Novel Coronavirus Disease Outbreak.” Since
then, the virus spread furiously so that, as of August 4, 2020, there have been
18,142,718 confirmed cases of COVID-19 and 691,013 deaths, occurring in 216
countries.11 In the United States, COVID-19 is present in all 50 states, and there
has been a total 4,649,102 confirmed cases and 154,471 deaths.12
7 World Health Organization, Q & A, What are the Symptoms of Covid-19?, available at https://www.who.int/emergencies/diseases/novel-coronavirus2019/question-and-answers-hub/q-a-detail/q-a-coronaviruses. 8 https://theconversation.com/a-few-superspreaders-transmit-the-majority-ofcoronavirus-cases-139950. 9 Center for Disease Control, How COVID-19 Spreads, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covidspreads.html. 10 Center for Disease Control, Clinical Care Guidance, available at https://www.cdc.gov/coronavirus/2019-ncov/hcp/clinical-guidance-managementpatients.html. 11 WHO, Coronavirus Disease (COVID-19) Dashboard, available at https://covid19.who.int/. 12 WHO, Coronavirus Disease (COVID-19) Pandemic: Cases in the US, available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.
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Social distancing is the main defense to win the war. The virus that causes 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 in humans.13 Accordingly, there is no approved vaccine or treatment. Since there is no way to prevent or treat COVID-19 (as opposed to treating its symptoms), the CDC has indicated that “[t]he best way to prevent illness is to avoid being exposed.”14 Therefore, experts recommend that the public engage in “social distancing,” that is, the practice of avoiding public spaces and limiting movement. A main objective of social distancing is “flattening the curve,” i.e., reducing the speed at which COVID-19 spreads. Without a flattening of the curve, the disease will spread too quickly, overwhelm our healthcare system, and wipe out our already scarce healthcare resources—including staff, medical equipment, and personal protective equipment.
As a result of these expert recommendations, jurisdictions across the globe have imposed sweeping measures to stem the viral tide that has overwhelmed healthcare systems worldwide. In the United States alone, all 50 states and the District of Columbia have had emergency orders in place to arm them in fighting the war against COVID-19.
13 CDC, Coronavirus Disease 2019 Basics, available at https://www.cdc.gov/coronavirus/2019-ncov/faq.html#Coronavirus-Disease-2019Basics. 14 CDC, How to Protect Yourself and Others, available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/prevention.html.
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Michigan’s Governor gathers armor to lead the battle against COVID-19. Since Michigan has been hard-hit by COVID-19, Governor Whitmer has
instituted aggressive measures to address Michigan’s staggering statistics and protect the health and safety of Michigan residents. Despite these efforts, COVID19 remains present and pervasive in Michigan. As of August 4, 2020, there have been 83,386 confirmed cases in Michigan and 6,212 deaths as a result of COVID19.15 The state is currently ranked ninth regarding total deaths.16 Thus far, the number of fatalities in Michigan from the virus exceeds the number of Michigan lives lost in World War I and the Vietnam War combined.17
The Governor’s containment efforts have included issuing various executive orders18 aimed at curbing the spread of COVID-19 as well as protecting Michiganders from the economic, social, and other ramifications of the crisis. In her first Executive Order related to COVID-19, issued on March 10, 2020, the Governor declared a state of emergency under both the EMA and the EPGA. (Executive Order 2020-4, App 083a–084a.) Within three weeks of that declaration, there were 9,334 COVID-19 cases and 337 deaths.19 The declaration of emergency was
15 https://www.michigan.gov/coronavirus/0,9753,7-406-98163_98173---,00.html. 16 https://www.cdc.gov/covid-data-tracker/#cases. 17 Clodfelter, Warfare and Armed Conflicts: A Statistical Encyclopedia of Casualty and Other Figures, 1492–2015 (North Carolina: McFarland & Company, Inc., 4th ed, 2017), p 433, available at https://fas.org/sgp/crs/natsec/RL32492.pdf. 18 An executive order is a directive handed down from the executive branch of government—in this case, the Governor—generally without input from the legislative or judicial branches. See Const 1963, art 5, § 2; see generally Soap & Detergent Ass’n v Natural Resources Comm, 330 NW2d 346 (Mich 1982). 19 (Executive Order 2020-151, App 147a–150a.)
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rescinded and replaced by an expanded declaration of emergency and disaster under both the EMA and the EPGA on April 1, 2020. (Executive Order 2020-33, App 088a–090a.) One month later, there were 42,356 positive COVID-19 cases and 3,866 deaths20— a tenfold increase—making it clear that the war had begun.
The war continues, so Governor Whitmer requests extensions of the declared states of emergency and disaster under the EMA.
The state of emergency that the Governor declared on March 10, 2020, under the EMA was set to expire on April 7, 2020, so the Governor requested a 70-day extension from the Legislature. In response to this request, the Legislature extended the declaration under the EMA for just 23 days, or until April 30, 2020.21
The Governor subsequently requested a second extension under the EMA, but on April 30, 2020—the date the legislatively-extended state of emergency was set to expire—the Legislature declined. Therefore, the Governor, after terminating the existing states of emergency and disaster under the EMA, (see Executive Order 2020-66, App 101a–104a), issued an Executive Order declaring a new 28-day state of emergency and disaster under that Act. (Executive Order 2020-68, App 109a– 112a.) Via a separate order, the Governor extended the previously declared state of emergency under the EPGA to May 28, 2020. (Executive Order 2020-67, App 105a– 108a.) In each order, the Governor explicitly stated that all executive orders that rested on the previously declared states of emergency now rested on Executive
20 (Executive Order 2020-151, App 147a–150a.) 21 See Senate Concurrent Resolution 2020-24, available at http://legislature.mi.gov/doc.aspx?2020-SCR-0024.
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Order 2020-67 and Executive Order 2020-68. (See Executive Order 2020-67, App 105a–108a; Executive Order 2020-68, App 109a–112a.)22 On May 21, 2020, in a related Court of Claims case, the court ruled that, even though the Governor’s actions of re-declaring the state of emergency were not authorized by the EMA, the Governor had authority to issue Executive Orders under the EPGA during a statewide emergency, and that the plaintiffs’ challenges regarding that authority were “meritless.”23
Governor Whitmer implements responsive executive orders. Throughout the battle, the Governor issued other executive orders to promote
social distancing, thereby saving lives. On March 20, 2020, she issued Executive Order 2020-17, which was rescinded on May 21, 2020, and replaced by Executive Order 2020-96. (Executive Order 2020-17, App 085a–087a; Executive Order 202096, App 113a–125a.) Executive Order 2020-17 required the temporary postponement of all non-essential medical and dental procedures. Another order— Executive Order 2020-21, i.e., Michigan’s “Stay Home, Stay Safe” Order—issued on March 23, 2020, and later replaced by other orders with varying degrees of restrictiveness, imposed temporary restrictions on activities that are not necessary to sustain or protect life. (See Executive Order 2020-21, Vol II, App 138c–145c;
22 The current Executive Order declaring a state of emergency is Executive Order 2020-151, (App 147a–150a), which rescinded Executive Order 2020-127 and is in effect through August 11, 2020. 23 Michigan House of Representatives and Michigan Senate v Whitmer, Case No. 20000079-MZ (May 21, 2020).
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Executive Order 2020-42, App 091a–100a; Executive Order 2020-59, Vol II, App 146c–157c; Executive Order 2020-70, Vol II, App 158c–171c; Executive Order 202077, Vol II, App 172c–188c; Executive Order 2020-92, Vol II, App 201c–213c; Executive Order 2020-96, App 113a–125a; Executive Order 2020-110, Vol II, App 214c–220c; Executive Order 2020-115, Vol II, App 237c–242c.) These measures temporarily succeeded in keeping COVID-19 contained, thereby flattening the curve, and preventing our health care systems from becoming overwhelmed.
That success is borne out in a recent study by Imperial College London:24
24 https://content.govdelivery.com/attachments/fancy_images/MIEOG/2020/06/ 3441508/imperial-college-report_original.png, referencing Imperial College London, Report 23 from the MCR Centre for Global Infectious Disease Analysis, state-level tracking of COVID-19 in the United States, available at https://www.imperial.ac. uk/media/imperial-college/medicine/mrc-gida/2020-05-21-COVID19-Report-23.pdf.
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The Governor’s success allows for a loosening of restrictions. Since the initial iterations of the “Stay Home, Stay Safe” Orders were
successful in saving lives, the Governor released some of the restrictions as the number of COVID-19 cases temporarily slowed. On June 1, 2020, retailers in most of the State could resume operations, and two weeks later, hair salons and personal care services followed. (See Executive Order 2020-110, Vol II, App 214c–220c.) On June 10, 2020, the northern portion of the State was reopened so that theaters and gyms could resume business. (See Executive Order 2020-115, Vol II, App 237c– 242c.) As businesses reopened, the Governor carefully implemented safeguards so in-person activities could resume safely, thus minimizing transmission of the virus. (See Executive Order 2020-91, Vol II, App 189c–200c; Executive Order 2020-97, App 126a–138a; Executive Order 2020-114, Vol II, App 221c–236c; Executive Order 2020-145, Vol II, App 248c–265c.)
The Governor reinforces armor in the face of spikes in COVID-19, and issues executive orders that close bars and require masks.
Despite the temporary flattening of the curve, the virus again began to thrive as the state reopened and person-to-person contact increased, resulting in an “acute risk of a second wave.”25 At one East Lansing bar, reopening resulted in over 180 positive cases.26 The steadily increasing number of cases made restrictions and
25 (Executive Order 2020-151, App 147a–150a); https://www.washingtonpost.com/health/2020/04/21/coronavirus-secondwavecdcdirector/. 26 https://www.clickondetroit.com/news/local/2020/07/11/184-coronavirus-covid-19cases-now-linked-to-outbreak-at-east-lansing-bar/.
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safeguards necessary once again: closure of indoor service at bars and mandatory face mask usage. (See Executive Order 2020-143, Vol II, App 243c–247c; Executive Order 2020-153, Vol II, App 266c–270c.)
As the battle rages on, Plaintiffs file suit. On May 12, 2020, Plaintiffs filed the instant action in the United States
District Court for the Western District of Michigan, and on May 18, 2020, filed a motion for preliminary injunction. (Complaint, App 001a–040a.) The action challenges two Executive Orders related to provision of non-essential medical services—Executive Order 2020-17, (App 085a–087a), and Executive Order 2020-77, (Vol II, App 172c–188c)—and raises various federal constitutional claims including vagueness, procedural and substantive due process, and the dormant Commerce Clause, as well as state-law claims involving the Governor’s authority under the EPGA and the EMA.
The federal court issued an invitation sua sponte to the parties to file briefs addressing the certification to this Court of the state-law claims. On June 10, 2020, after briefing and oral argument, the federal court certified the state-law claims to this Court, later issuing an opinion regarding certification. (App 060a–065a.) It subsequently denied Defendants’ motion for reconsideration of this order, which raised Eleventh Amendment immunity, on June 16, 2020. (App 052a–059a.)
In the interim, Defendants filed motions to dismiss, which are still pending, and which raise many jurisdictional issues, including mootness and qualified
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immunity. (Vol I, App 001c–061c.) Defendants later raised Eleventh Amendment immunity in a supplemental filing to their motions. (Vol I, App 078c–082c.)
Ultimately, due to the certification of the state-law issues to this Court, the federal case was held in abeyance until this Court reaches a decision.
STANDARD OF REVIEW Under Michigan Court Rules 7.303(B)(4) and 7.301(A)(5), this Court’s review of a request from a federal court to answer a certified question is discretionary. The federal district court did not rule on the certified questions presented; thus no standard of review is applicable.
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SUMMARY OF ARGUMENT Governor Whitmer had and has the authority to issue or renew executive orders related to the COVID-19 pandemic—even after April 30, 2020. The EPGA grants the Governor broad yet reasonable powers to respond to an emergency such as a pandemic. And the Act’s plain language does not place durational restrictions on an emergency; it simply requires that the “great public crisis” or “disaster” that “imperils public safety” continue to exist. MCL 10.31(1); MCL 10.32. Nor does it limit the Governor’s emergency powers to traffic control, sale of alcohol, or the transport of explosives (the Legislature specified that its list was not exhaustive) or merely to local circumstances. Finally, the Governor never terminated the emergency that supported her declaration of a state of emergency under the EPGA. Even if this Court determines that the EMA did not allow the Governor to redeclare an emergency on April 30, 2020, that does not create a problem for the Governor’s ultimate exercise of authority after that date because the EPGA is an independent source of power by which the Governor can continue to save lives. Both the EPGA and the EMA are facially valid and are important sources of emergency powers. In 1945, the Legislature gave all future governors in Michigan much-needed tools to handle a crisis such as the crisis we are currently facing. Then, in 1976, the Legislature responded to changing times by providing more sophisticated tools in the EMA. Both are appropriate delegations of power, and therefore do not offend separation-of-powers principles, because they include reasonably precise standards that are appropriate to the complexities of an emergency, under which many unforeseen circumstances and challenges arise.
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ARGUMENT I. This Court should decline to consider the certified questions because
the federal district court should have dismissed the state-law claims. Although it is usually far preferable for this Court—rather than a federal court—to interpret significant state law on which this Court has not opined, this Court should decline to answer the certified questions presented here because the state-law claims in the underlying federal lawsuit should have been dismissed based on, among other things, mootness and Eleventh Amendment immunity. A better alternative to certification would have been for the federal court to hold the state-law questions in abeyance pending the outcome of: (1) in this case, the Defendants’ appeal to the Sixth Circuit based on the denial of Eleventh Amendment immunity; and (2) this Court’s resolution of these same state-law issues in House & Senate v Whitmer, which has been expedited by the Court of Appeals and will be briefed to this Court at the application stage prior to the date set for oral argument on the certified questions. Because the district court’s certification order stays federal proceedings, WD Mich LCivR 83.1, holding the case in abeyance rather than certifying the case would not further delay the federal proceeding.
A. The state-law claims should have been dismissed as moot. Attorney General Nessel filed a motion to dismiss the federal case on June 2, 2020, arguing, among other things that the state-law claims are moot. (Grand Health v Whitmer, AG Motion to Dismiss and Brief in Support, Vol I, App 001c– 061c.) The federal district court has yet to rule on that motion. But the Attorney
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General also raised mootness with respect to certification. (Grand Health v Whitmer, AG Supplemental Briefing on Certification, Vol I, App 062c–077c.) In certifying the questions to this court, the federal court improperly rejected the Attorney General’s mootness argument.
When considering mootness, this Court’s inquiry must be driven by federal— not state—caselaw on this issue. In the federal system, “a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v McCormack, 395 US 486, 496 (1969), citing E. Borchard, Declaratory Judgments 35–37 (2d ed. 1941). Repeal of a statute while a case is pending routinely renders an issue moot, e.g., Kentucky Right to Life, Inc v Terry, 108 F3d 637, 644 (CA 6, 1997), because “a statute must be analyzed by the appellate court in its present form,” see id. (emphasis added), citing Kremens v Bartley, 431 US 119, 129 (1977) (“[W]e apply the law as it is now, not as it stood below.”).
Here, on May 21, 2020, the Governor issued a new Executive Order—202096—which rescinded the challenged Executive Orders and imposed significantly lessened restrictions as compared to its predecessors. (Executive Order 2020-96, App 113a–125a (rescinding and replacing Executive Order 2020-17 and Executive Order 2020-92, the order that replaced Executive Order 2020-77).) Thus, the challenged Executive Orders no longer have any legal force.
Moreover, there is no longer a live controversy. Plaintiffs’ claims of harm are based on an inability to provide or receive preventative care. But notably, Executive Order 2020-96 and Executive Order 2020-110 did not impose any of the
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restrictions of Executive Order 2020-17 and Executive Order 2020-77 that Plaintiffs claim are invalid. Indeed, the provider Plaintiffs were able to resume non-essential medical and dental procedures beginning May 29, 2020, at 11:59 pm. (Executive Order 2020-96 § 19, App 113a–125a.) Likewise, Mr. Gulick could schedule and undergo his knee replacement surgery. (Id. at §§ 8(a)(6), 19.)
Nevertheless, in the context of certification, the federal district court rejected Defendants’ mootness arguments on the basis that Plaintiffs still had to comply with safety measures imposed by the Governor’s later Executive Orders. (App 060a–065a, p 2.) But Plaintiffs’ own complaint belies that harm, as it stated that, if allowed to reopen, “there is no question that Grand Health can conduct its operations in a manner that will take precautions to prevent the transmission of the virus that causes COVID-19.” (Complaint, ¶ 18, App 001a–040a.)
And, while there is an exception to the mootness rule for situations that are “capable of repetition, yet evading review,” Globe Newspaper Co v Superior Court for Norfolk Cty, 457 US 596, 603 (1982), not only would the statute have to be reenacted in its exact form, but it would also have to be clear that the defendant insists on doing so.
In Kentucky Right to Life, for example, the Sixth Circuit dismissed the allegations as moot and rejected the plaintiffs’ argument that, because the state legislature remained free to reenact the prior statutory scheme, their claims were properly before the court even after the law had changed. 108 F3d at 643. Compare that with City of Mesquite v Aladdin’s Castle, 455 US 283, 289–90 (1983), where the
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Supreme Court refused to dismiss the claims as moot because the governmental entity, in no uncertain terms, indicated that, if the claims were dismissed as moot, it would definitely enact the unconstitutional ordinance again.
Here, as in Kentucky Right to Life, and unlike in Aladdin’s Castle, although there is a possibility that the Governor could issue a future Executive Order that places some restrictions on non-essential medical procedures, it is far from a sure thing. A gubernatorial executive order is an official act—and one not entered into lightly. See Mosley v Hairston, 920 F2d 409, 415 (CA 6, 1990) (treating government action with “more solicitude” than action by a private party). And because the possibility of greater restrictions on non-essential medical procedures in the future depends on circumstances that are not yet known—namely, the path of COVID— the contours of future executive order could differ from those challenged in this federal action.
Maryville Baptist Church v Beshear, 957 F3d 610 (CA 6, 2020), is remarkably on point. There, in a similar challenge to gubernatorial emergency orders prohibiting drive-in church services based on COVID-19—and despite the possibility of greater restrictions at some point in the future—the Sixth Circuit expedited its decision, noting that “time is of the essence. The case will become moot just over three Sundays from now . . . when the Governor has agreed to permit places of worship to reopen.” Id. at 612.
Under binding federal caselaw, Plaintiffs’ state-law claims should have been dismissed as moot.
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B. The federal claims should have been dismissed because they are barred by the Eleventh Amendment.
Both Defendants raised Eleventh Amendment immunity in a joint motion for reconsideration of the federal district court’s decision to certify, as well as in a joint supplemental authority to their separate motions to dismiss. (Grand Health v Whitmer, Joint Motion for Reconsideration, Vol I, App 090c–098c; Joint Notice of Supplemental Authority and Exhibit A, Vol I, App 078c–089c.) The federal district court denied the motion for reconsideration on the grounds that Defendants waived Eleventh Amendment immunity by not raising it in their motions to dismiss or in the briefing or argument regarding certification. (Grand Health v Whitmer, Denial of Motion for Reconsideration, App 052a–095a.) The Attorney General and the Governor have each appealed that ruling to the Sixth Circuit,27 The district court erred in holding that Defendants waived Eleventh Amendment immunity.
Sovereign immunity is a quasi-jurisdictional doctrine, meaning it can be waived through a state’s litigation conduct. Lapides v Bd of Regents of the Univ Sys of Ga, 535 US 613, 618 (2002). But the touchstone of the waiver doctrine is intent— the state’s litigation conduct must clearly indicate the state’s intent to waive its immunity. Id. at 620. That is, a state waives its sovereign immunity where its dilatory assertion of immunity is a “tactical decision” giving the party an unfair
27 Plaintiffs argue that “the Sixth Circuit lacks jurisdiction over the appeal” because it is taken from an “unappealable interlocutory order.” (Plaintiffs’ Brief, p 46.) But Plaintiffs fail to recognize that “the district court’s denial of a claim of sovereign immunity by a state or state entity is immediately appealable under the collateral order doctrine.” Mingus v Butler, 591 F3d 474, 481 (CA 6, 2010) (emphasis added).
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advantage. In re Bliemeister, 296 F3d 858, 862 (CA 9, 2002). Where a state loses its case on the merits after extensive discovery, for example, a state may not then claim sovereign immunity. See Ku v Tennessee, 322 F3d 431, 435 (CA 6, 2003). But the Sixth Circuit has made clear that failure to raise sovereign immunity even in a motion for summary judgment is not a per se waiver—waiver occurs only where there is a clear intent to use the failure to raise immunity for strategic advantage:
We have never held that the failure to raise sovereign immunity in an opening summary-judgment brief per se constitutes a waiver. Rather, properly focusing on the whole of [the defendant’s] litigation conduct demonstrates that it did not clearly intend to waive its sovereign immunity and consent to federal jurisdiction. [Barachkov v Davis, 580 Fed Appx 288, 300 (CA 6, 2014), (Exhibit A to Joint Motion for Reconsideration, App 99c–110c).] Here, Defendants have done nothing that evidences a clear intent to waive immunity. This case is still in its infancy. Service of the complaint was effectuated less than 30 days prior to the filing of Defendants’ motion for reconsideration; Defendants filed their motions to dismiss only 9 days prior to the filing of the motion for reconsideration (and Plaintiffs had not yet responded); and Defendants have yet to even file an answer or raise affirmative defenses to the complaint. Moreover, there is no plausible strategic advantage to not having raised the defense earlier, as it would only have helped—not harmed—Defendants’ case. The litigation conduct of the Defendants demonstrates that they have not waived sovereign immunity under the Eleventh Amendment and that dismissal of the state-law claims was appropriate. In short, this case does not present a good vehicle for answering the certified questions, despite their import. Abeyance, not certification, is the preferable route.
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II. Under the EPGA, Governor Whitmer had the authority after April 30, 2020, to issue or renew executive orders related to the COVID-19 pandemic. Under the EPGA, “[d]uring times of great public crisis, disaster, rioting,
catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled” the governor may, “upon . . . her own volition, . . . proclaim a state of emergency and designate the area involved.” MCL 10.31(1). Following such a proclamation or declaration, the governor is authorized to “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.” Id. As demonstrated below, the plain language of this Act granted Governor Whitmer the authority to issue or renew executive orders related to the COVID-19 crisis after April 30, 2020. And, even if this Court determines that the Governor did not have the authority to re-declare a state of emergency and disaster under the EMA on April 30, 2020, the EPGA nevertheless is an independent source of power from which the Governor could draw to continue to take the action necessary to save lives.
A. The plain language of the EPGA gives the governor continued authority.
The primary goal of statutory interpretation is to give effect to legislative intent. Rowland v Washtenaw Cnty Rd Comm’n, 477 Mich 197, 202 (2007). And the best indicator of legislative intent is the plain language of the statute. Sun Valley Foods Co v Ward, 460 Mich 230, 237 (1999).
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Here, the plain, unambiguous language of the EPGA grants the governor the authority to respond to a public emergency and provides the tools needed to effectively do so. That is, if the governor finds that the State is facing or is in reasonable apprehension of facing a “great public crisis, disaster, rioting, catastrophe, or similar public emergency,” the governor may declare a state of emergency under the EPGA and issue reasonable executive orders that she believes necessary to protect the people of this state. MCL 10.31(1) (emphasis added). Importantly, such orders remain in effect until a “declaration by the governor that the emergency no longer exists.” MCL 10.31(2).
The Legislature’s expressed purpose in enacting the EPGA was to provide the governor with “sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32. Moreover, the Legislature has explicitly indicated that the provisions of the EPGA “shall be broadly construed to effectuate this purpose.” Id.
On April 30, 2020, all of the requirements of MCL 10.31(1) were satisfied. The COVID-19 pandemic is a great public crisis that existed on March 10, 2020, when the Governor declared the first state of emergency under the EPGA. That crisis was still present on April 30, 2020; indeed, it still exists to this day, given the constant presence of the virus, the rapidly changing information about the virus, and the real threat of a second wave. Moreover, the Governor’s executive orders were, and are, reasonable and necessary to address the emergency. Finally, the
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Governor had not, and still has not, declared that the emergency no longer exists. Accordingly, the Governor had, and has, ongoing authority under the EPGA to issue reasonable, necessary executive orders to protect life and property and to bring the emergency situation under control.
In arguing that the EPGA does not support the Governor’s actions, Plaintiffs attempt to erect artificial barriers to the Governor’s exercise of her emergency authority by way of two main arguments. First, they boldly pronounce that the COVID-19 pandemic is not an “emergency” as that term is understood in the EPGA, because: (1) a “years-long public health problem” is not an emergency; (2) the dictionary definition of “emergency” does not encompass an extended public health crisis; (3) the EPGA allows only for narrowly defined, limited orders; and (4) the EPGA contemplates a local—not a statewide—emergency. (Plaintiffs’ Brief, pp 17– 24.) Second, they argue that the Governor terminated the emergency that supported her declaration of a state of emergency under the EPGA. (Id. at pp 24– 29.) These arguments fail.
1. The COVID-19 pandemic is an emergency. The plain language of the EPGA refutes each one of Plaintiffs’ arguments that the pandemic is not an emergency.
a. The plain language of the EPGA places no durational restrictions on an emergency.
As an initial matter, it is not yet known whether COVID-19 will be a yearslong public health problem. In fact, just this month Dr. Robert Redfield, Director of
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the Centers for Disease Control and Prevention, said that nationwide use of face masks could significantly slow the spread of COVID-19 and end the epidemic in just four to six weeks.28 The Governor certainly has not said that the COVID-19 emergency will last indefinitely.
But even if the pandemic lasts for some time, nothing in the EPGA precludes that set of circumstances from continuing to be an emergency. The EPGA’s references to timing are few: The governor can promulgate reasonable orders as soon as she makes a proclamation or declares an emergency; her emergency measures become effective from the date indicated in the order; and, relevant here, she has discretion to determine when the emergency no longer exists and, at that point, the orders shall cease to be in effect. See MCL 10.31(1). The plain language of the EPGA—the best indicator of legislative intent, and the only tool a court should consult where, as here, the statute is unambiguous—simply does not contain the durational limitations that Plaintiffs seek to read into it. See Dye by Siporin & Assocs, Inc v Esurance Prop & Cas Ins Co, 504 Mich 167, 180 (2019) (internal footnotes omitted) (“Where the statutory language is clear and unambiguous, the statute must be applied as written. A court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” (quotations and citations omitted)). Not only that, but
28 Julie Mazziotta, “If All Americans Wore Masks ‘We Could Drive This Epidemic to the Ground,’ Says CDC Director,” People.com, available at https://people.com/health/americans-wore-masks-drive-this-epidemic-to-the-groundsays-cdc-director.
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the governor’s authority to make a determination about when an emergency exists and when it ends must be “broadly construed,” MCL 10.32, and she has “sufficiently broad power of action in the exercise of the police power of the state.” Id.
Resting this discretion in the hands of the governor is consistent with U.S. Supreme Court caselaw, which has long recognized that the enactment of measures designed to protect the public health, including measures aimed at the prevention of the spread of disease such as those at issue here, rests at the heart of a state’s police power. Jacobson v Commonwealth of Massachusetts, 197 US 11, 24–25 (1905). Indeed, “[i]t is no part of the function of a court” to decide which measures are “likely to be the most effective for the protection of the public against disease.” Id. at 30.
At some point the emergency will end. But what we know now is that the emergency is far from over. As the Imperial College Study warns, “the epidemic is not under control in much of the US” and “caution must be taken in loosening current restrictions if effective additional measures are not put in place.”29 And the plain language of the EPGA simply does not provide for a premature termination of a state of emergency declared under that Act in the face of ongoing danger.
At bottom, the plain language of the EPGA contains no restriction on the duration of an emergency, and Plaintiffs’ claims to the contrary are unavailing.
29 Imperial College London Report, “Summary.”
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b. The Legislature defined an “emergency” through its context—as a public crisis or disaster that imperils public safety—and the pandemic meets that definition.
Plaintiffs next resort to contemporaneous dictionary definitions of the word “emergency” in an effort to persuade this Court that the pandemic is not an emergency under the EPGA. (Plaintiffs’ Brief, p 20.) But it is not necessary to consult a dictionary to understand what the Legislature meant by the word “emergency.” The word’s context illuminates its meaning.
This Court has said time and time again that statutory language must be read in context. E.g., GC Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421 (2003), quoting Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516 (1982) (“[T]he emphasized language does not stand alone, and thus it cannot be read in a vacuum. Instead, ‘[i]t exists and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute. . . .’ ”); Gen Motors Corp v Erves (On Rehearing), 399 Mich 241, 255 (1976) (opinion by Coleman, J.) (“[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole.”); Timmis, 468 Mich at 421, citing McCarthy v Bronson, 500 US 136, 139 (1991) & Hagen v Dep’t of Ed, 431 Mich 118, 130–131 (1988) (“Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context.”); People v Vasquez, 465 Mich 83, 89 (2001), quoting
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Optometry, 342 Mich 555, 559 (1955) (“[I]n seeking meaning, words and clauses will not be divorced from those which precede and those which follow.”).
Under the EPGA, to constitute an “emergency” there must be an “impending or actual public crisis or disaster,” MCL 10.32—in fact, it must be a “great public crisis,” a “disaster,” a “catastrophe,” or something similar. MCL 10.31(1) (emphasis added). Additionally, the public safety must be “imperiled.” Id. While, in Plaintiffs’ view, the ongoing pandemic does not qualify as a “public crisis,” “disaster,” “catastrophe,” or “similar public emergency,” the tens of thousands of Michigan residents who have already battled COVID-19, the many who have lost or are losing loved ones to the disease, and the countless Michiganders who do not feel safe leaving their homes and interacting freely in the public sphere, beg to differ.
Even if this Court consults dictionary definitions instead of relying on context, those definitions support the Governor’s determination that an emergency still exists. Plaintiffs’ own cited definition from Webster’s New International Dictionary 837 (2d ed 1942)—“[a]n unforeseen combination of circumstances which calls for immediate action”—is applicable to the pandemic. Although the world has contemplated pandemics in a general sense, COVID-19, with its unique combination of virility and diverse medical effects, was not foreseen. (Had it been foreseen, we would not be calling it a “novel” coronavirus, and the world might have been more prepared.) And it arose quickly, calling for immediate responses nationwide, including gathering PPE, rethinking medical responses and equipment availability, and reassessing social customs. At this point, as both information and the virus
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itself continue to change,30 COVID-19 is still a moving target—in other words, an
unforeseen combination of circumstances requiring immediate action.31 As the
Washington Supreme Court aptly said of COVID-19, “[O]ur understanding of this
public health threat is evolving and incomplete. The virus’s virulence and severity
are unclear because there has been insufficient time to develop accurate, reliable,
and widespread testing both for the virus and the presence of its antibodies.”
Colvin v Inslee, 2020 WL 4211571, opinion of the Washington Supreme Court,
issued July 23, 2020 (Case No. 98317-8), p *2 (Vol I, App 125c–137c).32
Other contemporaneous definitions of “emergency” are similarly applicable to
the pandemic. Two dictionaries define the word as a “crisis”—one of the words used
in the EPGA. See The Modern Webster Dictionary for Home and School, 1941 ed (p
137) & Webster’s Giant illustrated dictionary, 1943 (p 172) (both sources defining
30 ABC News, May 7, 2020, “Yes, COVID-19 is mutating, here’s what you need to know,” available at https://abcnews.go.com/Health/covid-19mutating/story?id=70535183. 31 Plaintiffs take issue with the Governor’s six-phase plan, stating that these longterm policies “will remain in place even after the pandemic has been resolved.” (Plaintiffs’ Brief, pp 34–35.) But the plan is just that—policy. It sets forth expectations and guidance for the State’s future response, but does not have the force of law and can be adapted to changing circumstances. 32 These factors, at least at present, differentiate the pandemic from circumstances such as prison overcrowding, which courts have recognized as a long-term problem that needs a legislative solution. (See Plaintiffs’ Brief, p 21, citing County of Hudson v State of NJ Dep’t of Corrections, 2009 WL 1361546, unpublished decision of the Superior Court of New Jersey, Appellate Division, issued May 18, 2009 (Case No. A-2552-07T1), p * 7 (App 186a–191a).) See also County of Gloucester v State, 623 A2d 763, 768 (NJ, 1993) (internal citations omitted).
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emergency as “a sudden occasion; pressing necessity; crisis”).33 And Webster’s Dictionary of Synonyms lists the words “[e]xigency, contingency, crisis, pass, juncture, pinch, strait” as synonyms for “emergency.” (Webster’s Dictionary of Synonyms, 1st ed, 1942 (p 290).34 All are applicable to the COVID-19 pandemic.
Notably, too, crisis is synonymous with “emergency,” id. at 249; “catastrophe” is synonymous with “disaster,” id. at 142, and “disaster” is synonymous with “catastrophe,” id. at 256. And the words “disaster” and “catastrophe” “come into comparison when they denote an event or situation that is regarded as a terrible misfortune.” Id. at 256. Thus, even if this Court uses dictionaries, they underscore that the EPGA defines the word “emergency” through its context.
Plaintiffs next argue that an emergency must pose an “immediate danger.” (Plaintiffs’ Brief, p 17.) First, COVID-19 does pose an immediate danger. Second, Plaintiffs remove that phrase from its context. The EPGA does not actually say that an emergency requires immediate danger. Rather, it says there must be a “great public crisis, disaster, rioting, catastrophe, or similar public emergency” or (note the use of the disjunctive) a “reasonable apprehension of immediate danger of a public emergency of that kind.” MCL 10.31. The phrase “public emergency of that kind” refers back to the broad terms “public crisis,” “disaster,” and “catastrophe”—again, all of which encompass a pandemic.
33 Available at https://openlibrary.org/books/OL24223490M/Webster’s_Giant_ illustrated_dictionary_new. 34 Available at https://archive.org/details/in.ernet.dli.2015.178721/page/n5 /mode/2up.
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Finally, Plaintiffs evoke an improper application of the doctrine of ejusdem generis, arguing that the list of what constitutes an emergency does not specifically mention “epidemics,” and that all specific terms within the list are “exigencies that exist for a relatively limited period of time,” meaning the general term, i.e. “or similar public emergency,” must also be read to apply to circumstances of limited duration. (Plaintiffs’ Brief, pp 18–19.) However, as demonstrated above, Plaintiffs’ attempt to frame these terms as only applying to short-term occurrences is unavailing. And, under their proper interpretation, a pandemic is subsumed into many terms in the illustrative list. Indeed, a pandemic that has affected 83,386 individuals and has killed 6,212 in just over 4 months35 certainly constitutes a public emergency that is (or is similar to) a great public crisis, a disaster, or a catastrophe. MCL 10.31(1) (“[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state”).
In any event, “the doctrine [of ejusdem generis, like other canons of statutory construction,] does not apply when it would defeat the plain purpose and intent of the Legislature.” Natsch v City of Southfield, 154 Mich App 317, 320 (1986), citing In re Mosby, 360 Mich 186, 192 (1960); Utica State Savings Bank v Village of Oak Park, 279 Mich 568, 573 (1937). Here, the plain meaning of “emergency” in the EPGA is clear and encompasses the COVID-19 pandemic. To employ the ejusdem generis canon to defeat that plain meaning, as Plaintiffs attempt, is improper.
35 COVID-19 statistics available at https://www.michigan.gov/coronavirus/0,9753,7406-98163_98173---,00.html.
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c. The plain language of the EPGA encompasses many types of orders and emergencies.
Plaintiffs then argue that MCL 10.31(1)’s illustrative list of the types of
orders that the governor may issue during an emergency contemplates that they
will be of brief duration and circumscribed scope.36 (Plaintiffs’ Brief, p 19.) Not so.
True, some of the enumerated types of orders are narrower, such as
controlling traffic and the sale of alcohol, or prohibiting the transport of explosives.
MCL 10.31(1). But others are quite broad, almost prescient of the widespread
restrictions the Governor has put into place in response to the COVID-19
emergency: controlling the ingress and egress of persons from buildings; controlling
the assembly of persons on public streets and thoroughfares; and controlling places
of amusement and assembly. Id. Most importantly, the Legislature clearly
signaled that this list of examples was non-inclusive: “Those orders, rules, and
regulations may include, but are not limited to . . . ” controlling traffic, occupancy of
buildings, ingress and egress, places of amusement and assembly, curfews,
transportation, sale of alcohol, and dangerous flammable materials. MCL 10.31(1)
(emphasis added).
36 Plaintiffs assert that the historical context suggests that the EPGA was enacted in 1945 in response to localized riots in Detroit in 1943. (Plaintiffs’ Brief, pp 19–20; App 050a–051a). But this Court need not consider legislative history where, as here, the plain language is unambiguous. In re Certified Question from Sixth Circuit Court of Appeals, 468 Mich 109, 113 (2003) (“When a legislature has unambiguously conveyed its intent in a statute, the statute speaks for itself and there is no need for judicial construction.”). In any event, the fact that a particular emergency triggered the need for emergency powers does not signal that only a similar type of emergency would suffice, especially where, as here, the plain language indicates otherwise.
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Similarly, not all the examples need be applicable to a given situation. No one would argue, for example, that the EPGA does not apply simply because no dangerous flammable materials are involved in a flood, or because the sale of alcohol need not be banned during a gas spill. The same is true here. Not every possible action item listed in MCL 10.31(1) need apply to the COVID-19 pandemic.
d. The EPGA’s plain language does not limit a governor’s powers to local emergencies.
Finally, Plaintiffs suggest that the EPGA applies only to local emergencies. (Plaintiffs’ Brief, pp 19–20.) There is no textual support for this argument. Again, the Legislature defined the type of the possible emergency in the broadest terms: “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled . . . .” MCL 10.31(1) (emphasis added). And again, it is hard to argue that COVID-19 is not a great public crisis or disaster that imperils public safety. The COVID-19 virus spreads very quickly—to date it has affected at least 83,386 individuals and cause at least 6,212 deaths. Those numbers alone demonstrate the threat COVID-19 presents to public safety. The EPGA does not limit “public safety” to only local emergencies. The EPGA’s broad language encompasses a public health crisis—a pandemic—that places the public in harms’ way.
Moreover, MCL 10.31(1) references the “area involved,” which could be a neighborhood, a city, a county, or, as here, the entire State. The EPGA places no
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limitations on that phrase. And the phrase must be read in light of the EPGA’s description of an emergency—a great public crisis or disaster.
In similar fashion, “the affected area” referenced in MCL 10.31(1) (“to bring the emergency situation within the affected area under control”) can be local or statewide, as there are likewise no words of limitation in that phrase. Had the Legislature wanted to signal that the emergency was limited in geographical scope, it could have inserted the word “local” before the phrase “emergency situation”— “bring the local emergency situation. . . . under control.” It certainly knew how to do so but did not. This demonstrates that the Legislature did not intend to limit the emergency to a local occurrence. It is also quite unbelievable that the Legislature, after having in 1945 recognized the need for the governor to have emergency powers, would have left the governor without those powers for a statewide emergency.
Additionally, the Act’s reference to the “affected area” allows for two separate but related purposes: (1) to protect life and property; or (2) to bring the emergency situation within the affected area under control. The first purpose— protecting life and property—does not depend on the language “within the affected area.” The two phrases are disjunctive.
In short, the plain language does not support the narrow reading Plaintiffs suggest.
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2. The Governor’s Executive Orders were reasonable and necessary.
Though Plaintiffs apparently do not challenge the reasonableness or the necessity of the Governor’s Executive Orders, such an analysis is important in understanding the propriety of the Governor’s actions under the EPGA. In promulgating each of her Executive Orders, the Governor specifically stated that she considered the restrictions imposed by those orders to be “reasonable and necessary” to mitigate the spread of COVID-19 and protect the public health across the State of Michigan. And indeed, the Executive Orders she issued were both necessary “to bring the emergency situation within the affected area under control” and “reasonable” under the circumstances. MCL 10.31(1).
With respect to necessity, statistics have borne out that Michigan’s restrictions mitigated the spread of COVID-19. It is well-documented that they helped Michigan temporarily flatten its curve,37 as the recent study by Imperial College London confirms.38 And as restrictions have lifted, Michigan’s numbers have climbed.39
With respect to reasonableness, the Executive Orders were reasonable under the circumstances. No one would dispute that these orders place restrictions on
37 https://www.bridgemi.com/michigan-health-watch/now-michigan-success-storyflattening-pandemic-curve. 38 Imperial College London, Report 23 state-level tracking of COVID-19, available at https://www.imperial.ac.uk/mrc-global-infectious-disease-analysis/covid-19/report23-united-states/. 39 https://www.freep.com/story/news/health/2020/06/24/michigan-coronavirus-casesrising-again-after-flattening-the-curve/3251993001/.
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liberties that would, in a “normal” context, be unreasonable. But, while the Constitution does not disappear in the face of a public health crisis, neither is the Bill of Rights a “suicide pact.” Terminiello v City of Chicago, 337 US 1, 37 (1949) (Jackson, J., dissenting). Instead, it is well-settled that, in times of public health crises, a state may restrict the rights of individuals in order to secure the safety of the community: “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, 197 US at 27.
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 (internal citations omitted). Such conditions are unreasonable only if they have “no real or substantial relation to those objects [of securing public health and safety], or [are], beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Id. at 31.
COVID-19 has created a public health crisis of unprecedented gravity in our lifetime. Responding to, and stemming the spread of, COVID-19 is paramount to all of our well-being. And it is widely accepted that, in the absence of any vaccine, the most effective—if not only—way to combat this highly infectious virus and control its escalation is through “social distancing,” the practice of avoiding interactions with persons outside of an individual’s household. The objective of social distancing is what has been termed “flattening the curve,” that is, reducing the speed at which
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COVID-19 spreads to save lives and conserve the limited resources of our healthcare system.
The statistics show that the Governor’s Executive Orders did just that. Due to the Executive Orders limiting contact, Michigan was able to temporarily flatten its curve, dropping from third in the nation in terms of the number of COVID cases, to seventeenth in the nation as of August 4, 2020.40 And the rising numbers in Michigan and elsewhere in the country as restrictions have been lifted further demonstrate how necessary and effective those restrictions were in preventing a spike in the number of cases that could lead to an overburdening of our healthcare system.
Accordingly, the Governor’s Executive Orders bore, and still bear, a real and substantial relationship to securing the public health and safety, and, under the circumstances presented by COVID-19, did not result in a palpable invasion of fundamental rights. To the contrary, they were and are necessary, reasonable, valid, and enforceable under the EPGA.
3. The Governor never terminated the emergency that supported her declaration of emergency under the EPGA.
In Plaintiffs’ second challenge to the validity of the Governor’s actions after April 30, 2020, Plaintiffs presuppose that the pandemic is an emergency, but argue that, by April 30, the Governor had already terminated the only “emergency” that supported her declaration of emergency under the EPGA. (Plaintiffs’ Brief, p 24.)
40 https://www.cdc.gov/covid-data-tracker/#cases.
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However, as explained below in Argument II.B.2.b, when the Governor terminated and re-declared a state of emergency and disaster under the EMA, she did not declare that the emergency no longer existed, and therefore did not terminate the state of emergency under the EPGA.
B. The EPGA gives the Governor sufficient authority to issue and re-issue executive orders after April 30, 2020, even if the EPA does not, because the Acts are independent.
As an initial matter, the federal court need not address the validity of the Governor’s actions under the EMA because the Governor’s authority under the EPGA is dispositive of Plaintiffs’ state-law claims in the underlying federal case. That said, if this Court addresses the EMA, then despite the fact that the emergency related to the COVID-19 pandemic still existed on April 30, 2020—and endures to this day—the plain language of the EMA does not support the Governor’s redeclaration on April 30, 2020. Regardless, the EPGA, which is independent from the EMA, provided sufficient authority on which the Governor could rely to act post-April 30.
1. The Governor’s authority under the EMA expired on April 30, 2020, when the Legislature refused to grant an extension.
Under the EMA, a state of disaster or emergency “shall continue until[:]” (1) “the governor finds that the threat or danger has passed,” (2) the governor finds that the disaster or emergency “has been dealt with to the extent that” disaster or emergency “conditions no longer exist,” or (3) the declared state of disaster or
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emergency “has been in effect for 28 days.” MCL 30.403(3)–(4). If, after 28 days, the state of emergency or disaster is still in effect, the governor “shall issue an executive order or proclamation declaring the state of” disaster or emergency “terminated, unless a request by the governor for an extension of the state of” disaster or emergency “for a specific number of days is approved by resolution of both houses of the legislature.” Id.
Here, the Governor first declared a state of emergency under the EMA due to the COVID-19 pandemic on March 10, 2020. (See Executive Order 2020-4, App 083a–084a.) The Governor rescinded and replaced that declaration with a declaration of a state of emergency and disaster on April 1, 2020. (See Executive Order 2020-33, App 088a–090a.) On April 7, 2020 (i.e., 28 days from the initial declaration of a state of emergency), and in response to the Governor’s request for a 70-day extension, the Legislature extended the declarations for 23 days, or until April 30, 2020.
Prior to the April 30, 2020 expiration, the Governor requested a second extension expiration. Despite the continuing emergency presented by the COVID19 pandemic, the rapidly changing circumstances, and the ongoing necessity for swift responses, the Legislature took no action to further extend the declarations.41
41 By failing to take such action, the Legislature did not exercise a legislative veto. The Legislature retains a legislative veto where, “upon delegating [the] authority [to adopt rules and regulations to the executive branch], . . . retain[s] the right to approve or disapprove [those] rules [and regulations].” Blank v Dep’t of Corr, 462 Mich 103, 113 (2000). Here, the 28-day temporal restriction is not a retention of approval or disapproval authority, but a durational limit on the governor’s exercise of delegated authority.
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Consistent with the plain language of the EMA, the Governor then properly declared the states of emergency and disaster terminated under that Act. (See Executive Order 2020-66, App 101a–104a.)
Soon after, however, the Governor issued a new executive order that purported to re-declare a state of emergency and disaster under the EMA. (See Executive Order 2020-68, App 109a–112a.) The COVID-19 emergency undoubtedly persisted at that time, and the Governor, faced with an interpretive question of first impression and utmost urgency, read the EMA to permit her re-declaration in the face of such legislative inaction. Nonetheless, that re-declaration was beyond the scope of actions intended by the Legislature in enacting the EMA.
Again, the best indicator of legislative intent is the plain language of the statute. Sun Valley Foods Co, 460 Mich at 237. Here, the plain language of the EMA provides the governor with 28 days in which to take action to implement that Act and cope with the dangers presented by the disaster or emergency. But, after 28 days, both houses of the Legislature must approve the governor’s request for an extension, or the governor “shall” declare the state of disaster or emergency terminated.
The plain language of the EMA provides that a state of disaster or emergency declared under that Act cannot continue for more than 28 days without legislative approval. This shows that the Legislature intended to provide a governor with the authority and flexibility to act quickly and unilaterally when initially presented with an emergency or disaster, but only for a limited period of time. Allowing the
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Governor to repeatedly rescind and immediately replace the declared states of disaster and emergency would risk shortchanging this intent and rendering the Legislature’s involvement in the extension process mere surplusage. See Sweatt v Dep’t of Corrections, 468 Mich 172, 183 (2019) (internal citations omitted) (courts must avoid interpreting a statute in a way that would render any part of it “meaningless” or “nugatory”).
In the end, it is unfortunate that the Legislature did not extend the state of disaster and emergency, given Michigan’s remarkable progress in temporarily flattening the curve under the Governor’s bold leadership. Time and the progression of COVID-19—including the recent spikes and resultant regression in states that attempted to reopen—have confirmed that extending the state of emergency and, consequently, the Governor’s authority under the EMA, would have been wise. That said, the Governor’s action in rescinding and replacing the declaration of the state of emergency and disaster under the EMA, while taken in good faith and motivated by a desire to save the lives of Michigan residents, was beyond what the Legislature contemplated in enacting the EMA.
2. The expiration of authority under the EMA has no bearing on the Governor’s continuing authority under the EPGA because the EPGA is independent.
Regardless, this expiration of authority under the EMA has no bearing on the underlying case or on the Governor’s ultimate authority to issue or renew executive orders related to the COVID-19 pandemic because the Governor’s authority under the EPGA is independent of the EMA. That is, contrary to Plaintiffs’ claims, the
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EMA’s 28-day temporal restriction cannot be read into the EPGA, and the Governor’s termination of the declared state of emergency and disaster under the EMA did not also terminate the state of emergency under the EPGA.
a. The EMA’s 28-day temporal restriction cannot be read into the EPGA.
To read the EMA’s 28-day temporal restriction into the EPGA would be to judicially rewrite the EPGA in violation of well-established rules of statutory construction.
This Court has long held that “[i]f the statute’s language is clear and unambiguous, then the statute must be enforced as written.” Iliades v Dieffenbacher N Am Inc, 501 Mich 326, 336 (2018). And “[a] necessary corollary of this principle is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself.” Id. (quotations and citations omitted). Here, Plaintiffs do not claim that the EPGA is ambiguous (in fact, they argue that both the EMA and the EPGA are unambiguous), yet invite this Court to read into the EPGA a 28-day limitation on the Governor’s emergency powers. This Court should decline the invitation.
For the same reason, this Court should disregard Plaintiffs’ use of the in pari materia canon of statutory construction. The doctrine of in pari materia is an “interpretive aid . . . [that] can only be utilized in a situation where the section of the statute under examination is itself ambiguous.” Tyler v Livonia Pub Sch, 459 Mich 382, 392 (1999), citing Voorhies v Faust, 220 Mich 155, 157 (1922). Because
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Plaintiffs do not suggest that the EPGA is ambiguous, “in pari materia techniques are inappropriate.” Id.
Although this Court has recently suggested that the application of the in pari materia canon is “not necessarily conditioned on a finding of ambiguity,” it appears to have limited the application of that tool to cases where there is a patent conflict between two unambiguous statutes. See SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 74 n 26 (2017), citing Int’l Bus Machines Corp v Dep’t of Treasury, 496 Mich 642, 651–653 (2014) (plurality opinion by Viviano, J.) (suggesting the application of in pari materia to resolve a patent conflict between two unambiguous statutes).
In this case, Plaintiffs attempt to manufacture a conflict between the EMA and the EPGA by arguing that, without “harmonizing” the statutes by reading the 28-day temporal restriction into the EPGA, the EMA is rendered meaningless. (Plaintiffs’ Brief, pp 26–28.) But, as noted below in Argument III.B, though the EMA and the EPGA concern the same subject matter—i.e., gubernatorial authority during an emergency—the scope of authority granted and the sophistication of the tools provided within each statute are different. Indeed, as the Court of Claims aptly recognized, “EMA equips the Governor with more sophisticated tools and options at her disposal. The use of these enhanced features comes at some cost, however, because the EMA is subject to [a] 28-day time limit . . . , whereas an emergency declaration under the less sophisticated EPGA has no end date.” (House
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& Senate 5/21/20 Order, p 14, App 192a–216a.) As such, the operation of the EPGA does not render the EMA mere surplusage.
In fact, the language of the EMA explicitly recognizes the independence and continuing validity of the EPGA:
This act shall not be construed to do any of the following: * * *
(d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws [(i.e., the EPGA)], or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act. [MCL 30.417(d).] Plaintiffs attempt to limit the applicability of this recognition to simply the “proclamation” of a state of emergency under the EPGA. (Plaintiffs’ Brief, p 28.) But, in so doing, they fail to recognize the import of the remainder of MCL 30.417(d), which declares the Legislature’s intent that the EMA not be read to “[l]limit, modify, or abridge the authority of the governor to . . . exercise any other powers vested in him or her under . . . statutes . . . independent of, or in conjunction with, this act.” MCL 30.417(d) (emphasis added). This broad recognition includes the other powers vested in the governor under the EPGA over and above the proclamation of a state of emergency. Reading the 28-day temporal restriction into the EPGA would limit, modify, or abridge such powers under the EPGA.
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In addition, when the Legislature enacted the EMA, it could have abrogated the EPGA, but it chose not to.42 Similarly, the Legislature could have amended the EPGA to include a temporal restriction similar to that within the EMA, but it did not. Instead, within the EMA, the Legislature plainly stated its intent that the EPGA continue to provide the governor with an independent source of authority under which to act in a time of public crisis. See Alan v Wayne Cnty, 388 Mich 210, 285 (1972) (recognizing that where the Legislature’s intent is not to amend or alter another statute, both acts should be treated as valid and interpreted as written “unaffected by subsequent statutes”). In so doing, the Legislature expressed its intent that the EMA and the EPGA operate independently.
Therefore, the temporal restriction within the EMA has no legal impact on the question of the Governor’s authority under the EPGA. Both prior to and since April 30, 2020, the Governor has had authority “[d]uring times of great public crisis” to “proclaim a state of emergency” and issue and reissue “reasonable orders” under the EPGA. MCL 10.31(1)–(2).
42 Nor is there any indication that the EPGA was repealed by implication. Indeed, implied repeals “are disfavored” and a court must “presume, in most circumstances, that if the Legislature had intended to repeal a statute or statutory provision, it would have done so explicitly.” Int’l Bus Machines Corp, 496 Mich at 651 (footnotes, citations, and quotations omitted).
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b. The Governor’s termination of the declared state of emergency and disaster under the EMA did not terminate the state of emergency under the EPGA.
To construe the Governor’s termination of the declared state of emergency and disaster under EMA as terminating the emergency itself would be an unreasonable reading of the Governor’s Executive Orders.
Under the plain language of the EPGA, executive orders issued following a declaration of emergency “shall cease to be in effect upon declaration by the governor that the emergency no longer exists.” MCL 10.31(2) (emphasis added). Here, Plaintiffs claim that, through the issuance of Executive Order 2020-66 (App 101a–104a) (which terminated the declared states of emergency and disaster under the EMA), the Governor made such a declaration. (Plaintiffs’ Brief, p 25.) That is not a reasonable reading of Executive Order 2020-66.
The Governor never declared in Executive Order 2020-66 “that the emergency no longer exists.” MCL 10.31(2) (emphasis added). To the contrary, Executive Order 2020-66 laid out in significant detail the ongoing emergency conditions related to COVID-19 and concluded, “For the reasons set forth above, the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist.” (Executive Order 2020-66, App 101a–104a (emphasis added).) Thus, far from declaring that the emergency no longer existed, Executive Order 2020-66 clearly stated that the emergency was ever-present.
Despite this ongoing emergency, the Governor recognized the temporal restriction under the EMA and properly terminated the declared state of emergency
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and disaster under that Act. (Id.) Plaintiffs repeatedly claim that, by terminating the states of emergency and disaster under the EMA, the Governor declared that the emergency itself no longer existed and that the limitation of the termination to the EMA is “word play.” (Plaintiffs’ Brief, pp 24–26.) But Plaintiffs fail to recognize that Executive Order 2020-66 carefully distinguished between, on the one hand, the emergency itself, and on the other hand, the declared states of emergency and disaster under the EMA. As noted above, Executive Order 2020-66 clearly stated that the COVID-19 emergency persisted. And the termination language of Executive Order 2020-66—“[t]he state[s] of emergency [and disaster] declared under the Emergency Management Act . . . [are] terminated,” (Executive Order 2020-66, App 101a–104a) does not alter that conclusion. As such, Executive Order 2020-66 did not have any effect on the underlying and sustained emergency that was the basis for the Governor’s exercise of authority under the EPGA.
The issuance of Executive Order 2020-67 (App 105a–108a), which indicated that a state of emergency remains declared under the EPGA, bolsters this conclusion. Contrary to Plaintiffs’ argument, Executive Order 2020-67 did not “manufacture a new emergency.” (Plaintiffs’ Brief, p 26.) Instead, it reiterated Executive Order 2020-66’s detailed background of the ongoing emergency conditions presented by COVID-19 and declared that, due to these ongoing conditions, an emergency still existed, and therefore, a state of emergency under the EPGA remained declared. (Executive Order 2020-67, App 105a–108a.)
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Finally, the Governor’s May 1, 2020 statement that hospitals had sufficient stocks of personal protective equipment to allow for the resumption of non-essential medical care does not constitute an admission that the COVID-19 emergency no longer existed as of that date. (Plaintiffs’ Brief, p 28–29.) First, this is not, as Plaintiffs claim, an assertion that hospitals were no longer in danger of being overrun, (id.), as a second wave of the virus could present such a danger of maxing out hospital capacity. Second, the danger that hospitals could lack the capacity and equipment to provide the necessary care was (and is) just one of the facts underlying the Governor’s declaration of a state of emergency under the EPGA. Another fact underlying that declaration—indeed, the most significant fact—is the need to employ measures that save the lives of people within the State. That basis undoubtedly persists to this day.
In sum, the Governor never “terminated the . . . emergency” under the EPGA, as Plaintiffs claim. (Plaintiffs’ Brief, p 24.) Rather, the Governor merely terminated the declared states of emergency and disaster under the EMA as was required by the plain language of that Act, while also clearly indicating that the emergency itself still existed. As such, the termination of the declared state of emergency and disaster under the EMA has no bearing on the ongoing emergency presented by COVID-19 and, consequently, the declaration of a state of emergency under the EPGA.
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III. Neither the EPGA nor the EMA violates the Separation-of-Powers or Non-Delegation doctrines of the Michigan Constitution. The federal district court has asked this Court to consider whether either the
EPGA or the EMA violates the Separation-of-Powers or Non-Delegation doctrines of the Michigan Constitution. The answer is no.
A. The EPGA is facially constitutional. Delegation of authority is an important issue. The Michigan Constitution vests legislative power in the House and Senate, and that power generally cannot be delegated. Const 1963, art 4, § 1; Taylor v Smithkline Beecham Corp, 468 Mich 1, 8 (2003). When the Legislature does desire to vest the executive branch with legislative authority, separation-of-powers principles require that the delegation of such authority contain “reasonably precise” standards. See generally Westervelt v Natural Resources Comm’n, 402 Mich 412, 438 (1978). This Court has indicated that, when a court is faced with a question of the validity of a statute under the Non-Delegation and Separation-of-Powers doctrines, it should keep in mind the following considerations: “1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51 (1985) (emphasis added), citing Dep’t of Natural Resources v Seaman, 396 Mich 299 (1976). Importantly, “the preciseness required of the standards will depend on the complexity of the subject.” Id. at 51– 52, citing Argo Oil Corp v Atwood, 274 Mich 47, 53 (1935). Finally, for a statute to
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pass constitutional muster, due process requirements must be satisfied. Id. at 52, citing State Highway Comm v Vanderkloot, 392 Mich 159 (1974).
Applying those considerations here, the EPGA is a constitutionally acceptable delegation of power to the executive branch. The EPGA as a whole contains standards that are as reasonably precise as they can be, given the Act’s applicability to a wide range of potential, but as-of-yet unknown, emergencies and the concomitant, diverse complexities that are inherent in every emergency situation. (Case in point: A rapidly evolving, unforeseen global pandemic.) The plain language of the EPGA provides limitations: First, the initial declaration of a state of emergency may only occur during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled. . . .” MCL 10.31(1).
Second, the governor’s executive orders, rules, and regulations must be “reasonable,” “necessary,” and designed to “protect life and property or to bring the emergency situation within the affected area under control.” Id. Plaintiffs argue that “reasonable” and “necessary” provide no standard at all. (Plaintiffs’ Brief, pp 33–36.) But this Court and the Court of Appeals have repeatedly held that such terms are sufficient standards to cabin the executive branch’s exercise of delegated authority. See Blank v Dep’t of Corrections, 462 Mich 103, 126 (2000) (opinion by Kelly, J.) (finding a constitutionally permissible delegation of authority based, in part, on enabling legislation that constrained rulemaking authority to only those
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matters that were “necessary for the proper administration of this act.”) See also Klammer v Dep’t of Transp, 141 Mich App 253, 262 (1985) (concluding that a delegation which permitted the continued employment of an individual for such a period of time as was “necessary” provided a sufficient standard, under the circumstances).
And third, the police power the governor may exercise under the EPGA is broad enough to provide only “adequate control,” MCL 10.32 (emphasis added), not total control. Any greater detail within the standards would run the risk of hamstringing the Governor in her ability to adequately respond to the particular emergency that arises.
Finally, as to due process, the governor’s decision as to whether an emergency exists or has ended is subject to judicial review. See Cassell v Snyders, 2020 WL 2112374, opinion of the United States District Court for the Northern District of Illinois, issued May 3, 2020 (Case No. 20 C 50153), p *14 ( “[S]hould this or any future Governor abuse his or her authority by issuing emergency declarations after a disaster subsides, affected parties will be able to challenge the sufficiency of those declarations in court.”) (Vol I, App 111c–124c). Other courts have certainly grappled with how to determine when gubernatorial emergency powers no longer exist. See, e.g., County of Gloucester, 623 A2d at 768 (internal citations omitted) (considering the passage of time and factors such as the extent to which the problem is within the government’s control and the extent to which remedial efforts have been undertaken). Above and beyond that, emergencies do
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not demand greater due process than the EPGA affords, as the U.S. Supreme Court has recognized. See Jacobson, 197 US at 26 (“[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.”).
Because the EPGA is not an illegal delegation of legislative authority, under this Court’s precedent it also passes muster under the Separation-of-Powers Clause of the Michigan Constitution. Again, the Separation-of-Powers Clause provides that “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2. And the non-delegation doctrine was created to ensure adherence to separation-of-powers principles: If the Legislature properly delegates authority to another branch (i.e., provides sufficient standards), it does not violate the non-delegation doctrine and, as such, does not violate separation-of-powers principles. On the other hand, if the Legislature improperly delegates authority, it violates the non-delegation doctrine and separation of powers. See Westervelt, 402 Mich at 439 (reaffirming that the “standards test” satisfies separation-of-powers principles, and observing that when standards are as reasonably precise as the subject matter requires or permits, the principle that the Legislature may not delegate or abdicate “law-making” or “legislative” power “becomes merely a principle of description or convenience, not substance.”).
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This Court has also explained that, in Michigan, the Separation-of-Powers doctrine does not require “so strict a separation as to provide no overlap of responsibilities and powers” across the branches. Judicial Attorneys Ass’n v State, 459 Mich 291, 296 (1998) (citing various cases). That is, if the grant of authority to one branch “does not create encroachment or aggrandizement of one branch at the expense of the other, a sharing of power may be constitutionally permissible.” Id., citing Soap & Detergent Ass’n, 415 Mich at 752–753. In fact, in Soap & Detergent this Court held that even “broad legislative power” that had been “delegated to the Governor to effectuate executive reorganization” did not violate the Separation-ofPowers doctrine because the power was clearly limited. 415 Mich at 752–753. (emphasis added) (explaining that the area of executive exercise of legislative power, though broad, was very limited and specific; that the executive branch was not the sole possessor of the power, and the Legislature had concurrent power to transfer functions and powers of the executive agencies; and that the Legislature could still exercise veto power).
Here, because the EPGA’s delegation of power to the executive branch is reasonable, there is no incursion into the legislative sphere of authority, but merely a tolerable potential overlap depending on the nature of the emergency. As in Soap & Detergent, the governor’s powers under the EPGA, while broad, are nevertheless limited. Although the Legislature defers to the executive branch in determining what constitutes a crisis or disaster or what constitutes sufficient risk to property and life, there still must be an impending or actual public crisis or disaster, MCL
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10.32, and the governor’s orders must be reasonable in relation to the crisis and necessary “to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). Also, the governor cannot continue to issue emergency orders, rules, or regulations after the public crisis or disaster has ended. Most importantly, the governor’s emergency powers under the EPGA do not strip the Legislature of its lawmaking role. See Const 1963, art 4, § 1. The Legislature retains its lawmaking authority even if there is some temporary overlap during the crisis or disaster. 43
The thrust of Plaintiffs’ argument to the contrary is that, if this Court does not interpret the EPGA as Plaintiffs do—i.e., as expressing a durational limit and addressing only local emergencies—then the Act violates separation-of-powers and non-delegation principles. (Plaintiffs’ Brief, p 29.) Notably, Plaintiffs do not acknowledge or discuss this Court’s caselaw regarding the permissible overlap between the authority of the branches of government. See Soap & Detergent, 415 Mich at 752–753. Nor do they acknowledge that state statutes carry a presumption of constitutionality. See Blue Cross & Blue Shield, 422 Mich at 51. Likewise, they do not factor in the U.S. Supreme Court’s recognition that due-process rights are necessarily curtailed during an emergency. See Jacobson, 197 US at 24–25, 30.
43 Plaintiffs complain that the Legislature does not have concurrent lawmaking authority during this pandemic because the Governor vetoes legislative efforts (Plaintiffs’ Brief, pp 21–22). But gubernatorial veto is a normal part of the checks and balances that apply to all lawmaking.
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Regardless, as to narrowing the EPGA to only local emergencies, that argument is not supported by the plain language of the Act. See Argument II.A.1.d. With respect to duration, Plaintiffs acknowledge—at least in theory—that the complexity of the subject matter is an important consideration in determining the degree of precision required. (Plaintiffs’ Brief, p 31.) But they do not appropriately apply the concept, which is why they liken the EPGA, which must encompass all the complexities and moving parts of emergencies yet unknown, to the far more narrow Nonprofit Health Care Corporation Reform Act at issue in Blue Cross & Blue Shield, 422 Mich at 54–55, a portion of which gave open-ended authority to the Insurance Commissioner in the face of established actuarially sound practices proposed by the health care corporation. (Plaintiffs’ Brief, pp 31–32).44
In sum, the EPGA does not violate the Non-Delegation or Separation-ofPowers doctrines.
B. The EMA is likewise facially constitutional. As with the Governor’s actions under the EMA, the federal court can dispose of Plaintiffs’ state-law claims in the underlying case without reaching the facial constitutionality of the Act itself. In any event, because Plaintiffs’ brief to this Court does not argue otherwise, Plaintiffs appear to concede that the EMA is
44 Plaintiffs also cite federal caselaw. But as this Court noted in 2003, “[t]he United States Supreme Court has not used the nondelegation doctrine to invalidate a federal statute since the New Deal period.” Taylor, 468 Mich at 9 n 8.
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neither an illegal delegation nor a violation of separation-of-powers principles, and therefore is facially valid. Rightly so.
Under the EMA, “[t]he governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.” MCL 30.403(1). The Act defines “disaster” as “an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or humanmade cause, including, but not limited to . . . epidemic. . . .” MCL 30.402(e) (emphasis added). The Act defines emergency as “any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state.” MCL 30.402(h) (emphasis added).
As noted above, the first subsection of the EMA places the “responsibility” for “coping with dangers” on the governor. MCL 30.403(1). The second subsection is an actual grant of authority: “The governor may issue executive orders, proclamations, and directives having the force and effect of law to implement this act.” MCL 30.403(2). Per the plain language of this subsection, the governor’s authority is restricted to issuing orders that “implement th[e] act.” Id. Taken together, the first and second subsections provide the governor with the authority and mechanism by which to utilize the tools established in the EMA to “cope” with an emergency or disaster.
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The EMA’s tools include the authority to seek assistance from the federal
government, MCL 30.404; to disburse federal funds, MCL 30.416; to authorize
expenditures from the disaster contingency fund, MCL 30.419; to direct the state
director of emergency management to assume command of all disaster relief and
recovery forces, MCL 30.407(1); and to:
(a) Suspend a regulatory statute, order, or rule prescribing the procedures for conduct of state business, when strict compliance with the statute, order, or rule would prevent, hinder, or delay necessary action in coping with the disaster or emergency. This power does not extend to the suspension of criminal process and procedures.
(b) Utilize the available resources of the state and its political subdivisions, and those of the federal government made available to the state, as are reasonably necessary to cope with the disaster or emergency.
(c) Transfer the direction, personnel, or functions of state departments, agencies, or units thereof for the purpose of performing or facilitating emergency management.
(d) Subject to appropriate compensation, as authorized by the legislature, commandeer or utilize private property necessary to cope with the disaster or emergency.
(e) Direct and compel the evacuation of all or part of the population from a stricken or threatened area within the state if necessary for the preservation of life or other mitigation, response, or recovery activities.
(f) Prescribe routes, modes, and destination of transportation in connection with an evacuation.
(g) Control ingress and egress to and from a stricken or threatened area, removal of persons within the area, and the occupancy of premises within the area.
(h) Suspend or limit the sale, dispensing, or transportation of alcoholic beverages, explosives, and combustibles.
(i) Provide for the availability and use of temporary emergency housing.
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(j) Direct all other actions which are necessary and appropriate under the circumstances. [MCL 30.405(1).] These tools are narrowly defined and of limited applicability. And even the broadest of these provisions—granting the governor the authority to “[d]irect all other actions which are necessary and appropriate under the circumstances,” MCL 30.405(1)(j)—must be read in the context of the act as a whole. See Timmis, 468 Mich at 416. When read as a whole with the remainder of the EMA, the provision means that the governor may direct only those actions that are “necessary and appropriate” to implement the EMA. Along with the limits placed on its tools, the EMA contains a temporal restriction, which prevents impermissible incursion into the sphere of authority occupied by the Legislature. The EMA, which provides the governor with more specifically enumerated emergency-management tools than does the EPGA, in some cases affords the governor more overlap into the legislative sphere than does the EPGA. For example, the EMA allows the governor to “suspend” certain regulatory statutes, orders, or rules that relate to conducting state business to the extent they “prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL 30.405(1)(a). Moreover, the EMA allows the governor to declare a state of emergency or a state of disaster based on the mere “threat” of either, as opposed to only during such an emergency or upon “reasonable apprehension of immediate danger,” as contemplated under the EPGA. See MCL 30.402(e), (h); MCL 40.403(3), (4); MCL 10.31(1).
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Accordingly, the temporal restriction provides a reasonably precise standard that allows the Legislature to re-evaluate the state of the declared emergency or disaster and make a determination as to whether the use of the EMA’s tools, particularly those that are more legislative in nature, should be extended. Given the various standards within the EMA—including its temporal restriction—the EMA is not an unconstitutional delegation of legislative authority, nor does it violate the Separation-of-Powers Clause of the Michigan Constitution.
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CONCLUSION AND RELIEF REQUESTED This Court should decline to consider the certified questions because the district court should have dismissed the state-law questions based on mootness and Eleventh Amendment immunity. If the Court does consider them, the plain language and the circumstances of the COVID-19 pandemic dictate that, while the Governor did not have the authority to re-declare an emergency or disaster under the Emergency Management Act (EMA) on April 30, 2020, she had the authority under the Emergency Powers of the Governor Act (EPGA) to issue and re-issue emergency orders after April 30, 2020. Additionally, both the EPGA and the EMA are facially constitutional because neither violates the Separation-of-Powers or NonDelegation doctrines of the Michigan Constitution. WHEREFORE, Defendant Michigan Attorney General Dana Nessel respectfully requests that if this Court considers the certified questions, it hold that (1) Governor Whitmer had authority under the EPGA to issue and re-issue emergency orders after April 30, 2020; and (2) neither the EPGA or the EMA violates the Separation-of-Powers or Non-Delegation doctrines of the Michigan Constitution.
Respectfully submitted, Dana Nessel Attorney General Fadwa A. Hammoud (P74185) Solicitor General Counsel of Record
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Dated: August 6, 2020

s/Ann M. Sherman
Ann M. Sherman (P67762) Deputy Solicitor General
Rebecca A. Berels (P81977) Assistant Attorney General
Department of Attorney General Attorneys for the Attorney General P.O. Box 30212 Lansing, Michigan 48909 (517) 335-7656 ShermanA@michigan.gov BerelsR1@michigan.gov

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 Syllabus

Michigan Supreme Court Lansing, Michigan

Chief Justice:
Bridget M. McCormack
Chief Justice Pro Tem:
David F. Viviano

Justices:
Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.

Reporter of Decisions:
Kathryn L. Loomis

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION (MIDWEST INSTITUTE OF HEALTH, PLLC v GOVERNOR)
Docket No. 161492. Argued on request to answer certified questions September 9, 2020. Decided October 2, 2020.
Midwest Institute of Health, PLLC; Wellston Medical Center, PLLC; Primary Health Services, PC; and Jeffery Gulick brought an action in the United States District Court for the Western District of Michigan against the Governor of Michigan, the Michigan Attorney General, and the Michigan Department of Health and Human Services Director, challenging the Governor’s Executive Order (EO) No. 2020-17, which prohibited healthcare providers from performing nonessential procedures. The order was issued by Governor Gretchen Whitmer as part of a series of executive orders issued in response to the COVID-19 pandemic. On March 10, 2020, the Governor issued EO 2020-04, declaring a “state of emergency” under the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq., and the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq. On April 1, 2020, she issued EO 2020-33, which declared a “state of emergency” under the EPGA and a “state of emergency” and “state of disaster” under the EMA. She then requested that the Legislature extend the state-of-emergency and state-of-disaster declarations by 70 days. In response, the Legislature adopted Senate Concurrent Resolution 2020-24, extending the state of emergency and state of disaster through April 30, 2020. On April 30, 2020, the Governor issued EO 202066, which terminated the declaration of a state of emergency and state of disaster under the EMA. But, immediately thereafter, she issued EO 2020-67, which indicated that a state of emergency remained declared under the EPGA. At the same time, she issued EO 2020-68, which redeclared a state of emergency and state of disaster under the EMA. Plaintiffs in the underlying federal case are healthcare providers that were prohibited from performing nonessential procedures while EO 2020-17 was in effect and a patient who was unable to undergo a knee-replacement surgery that had been scheduled for the end of March. Although EO 2020-17 has been rescinded, the federal district court held that the case is not moot because subsequent executive orders have continued to impose restrictions on healthcare providers. The federal court further determined that certain issues raised in the case involved unsettled areas of state law such that certification of those questions to the Michigan Supreme Court was appropriate. The federal district court certified the following questions to the Michigan Supreme Court:

1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic.
2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the NonDelegation Clauses of the Michigan Constitution.
The Michigan Supreme Court ordered and heard oral argument on the certified questions. 505 Mich ___ (2020).
The Michigan Supreme Court, in opinions by Justice MARKMAN, Chief Justice MCCORMACK, Justice VIVIANO, and Justice BERNSTEIN, unanimously held:
The first certified question is partially answered in the negative: The Governor did not have authority after April 30, 2020, to issue or renew any executive orders related to the COVID19 pandemic under the EMA.
The Michigan Supreme Court, in an opinion by Justice MARKMAN joined in full by Justices ZAHRA and CLEMENT and joined as to Parts III(A), (B), (C)(2), and IV by Justice VIVIANO, further held:
The second certified question is partially answered in the affirmative: The Governor did not possess the authority to exercise emergency powers under the EPGA because the act unlawfully delegates legislative power to the executive branch in violation of the Michigan Constitution.
Justice MARKMAN, joined by Justices ZAHRA and CLEMENT, concluded that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely. First, under the EMA, the Governor only possessed the authority or obligation to declare a state of emergency or state of disaster once and then had to terminate that declaration when the Legislature did not authorize an extension; the Governor possessed no authority to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature’s limitation on her authority. Second, regarding the statutory language of the EPGA, plaintiffs’ argument that an emergency must be short-lived and the Legislature’s argument that the EPGA was only intended to address local emergencies were textually unconvincing. And while the EPGA only allows the Governor to declare a state of emergency when public safety is imperiled, public-health emergencies such as the COVID-19 pandemic can be said to imperil public safety. Third, as the scope of the powers conferred upon the Governor by the Legislature becomes increasingly broad, in regard to both the subject matter and their duration, the standards imposed upon the Governor’s discretion by the Legislature must correspondingly become more detailed and precise. MCL 10.31(1) of the EPGA delegated broad powers to the Governor to enter orders “to protect life and property or to bring the emergency situation within the affected area under

control,” and under MCL 10.31(2), the Governor could exercise those powers until a “declaration by the governor that the emergency no longer exists.” Thus, the Governor’s emergency powers were of indefinite duration, and the only standards governing the Governor’s exercise of emergency powers were the words “reasonable” and “necessary,” neither of which supplied genuine guidance to the Governor as to how to exercise the delegated authority nor constrained the Governor’s actions in any meaningful manner. Accordingly, the EPGA constituted an unlawful delegation of legislative power to the executive and was unconstitutional under Const 1963, art 3, § 2, which prohibits exercise of the legislative power by the executive branch. Finally, the unlawful delegation of power was not severable from the EPGA as a whole because the EPGA is inoperative when the power to “protect life and property” is severed from the remainder of the EPGA. Accordingly, the EPGA was unconstitutional in its entirety.
Justice VIVIANO, concurring in part and dissenting in part, joined Justice MARKMAN’s opinion to the extent that it concluded that the certified questions should be answered, held that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA, and held that the EPGA, as construed by the majority in Justice MARKMAN’s opinion, constituted an unconstitutional delegation of legislative power. Justice VIVIANO would have concluded that the EPGA, which only allows the Governor to declare a state of emergency when public safety is imperiled, does not allow for declarations of emergency to confront public-health events like pandemics because “public health” and “public safety” are not synonymous and, in light of this conclusion resolving the issue on statutory grounds, would not have decided the constitutional question whether the EPGA violates the separation of powers. However, because the rest of the Court interpreted the statute more broadly, Justice VIVIANO addressed the constitutional issue and joined Justice MARKMAN’s holding that the EPGA is an unconstitutional delegation of legislative power. Justice VIVIANO also indicated that in an appropriate future case, he would consider adopting the approach to nondelegation advocated by Justice Gorsuch in Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2131 (2019) (Gorsuch, J., dissenting).
Chief Justice MCCORMACK, joined by Justices BERNSTEIN and CAVANAGH, concurring in part and dissenting in part, concurred with Justice MARKMAN’s opinion to the extent that it concluded that the certified questions should be answered; held that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA; and rejected plaintiffs’ statutory arguments that the EPGA did not authorize the Governor’s executive orders. However, Chief Justice MCCORMACK dissented from the majority’s constitutional ruling striking down the EPGA. The United States Supreme Court and the Michigan Supreme Court have struck down statutes under the nondelegation doctrine only when the statutes contain no standards to guide the decision-maker’s discretion, and the delegation in the EPGA had standards—for the Governor to invoke the EPGA, her actions must be “reasonable” and “necessary,” they must “protect life and property” or “bring the emergency situation . . . under control,” and they may be taken only at a time of “public emergency” or “reasonable apprehension of immediate danger” when “public safety is imperiled.” Those standards were as reasonably precise as the statute’s subject matter permitted. Accordingly, the delegation in the EPGA did not violate the nondelegation doctrine.
Justice BERNSTEIN, concurring in part and dissenting in part, disagreed with the majority’s conclusion that the EPGA is unconstitutional. An examination of caselaw from both

the Michigan Supreme Court and the United States Supreme Court supported the conclusion that, under current law, the grant of power in the EPGA does not offend the separation of powers. Justice BERNSTEIN would continue to apply the “standards” test that the Michigan Supreme Court has consistently used to analyze nondelegation challenges, would leave the decision whether to revisit the nondelegation doctrine to the United States Supreme Court, and would leave to the people of Michigan the right to mount challenges to individual orders issued under the EPGA.
©2020 State of Michigan

OPINION

Michigan Supreme Court Lansing, Michigan

Chief Justice:
Bridget M. McCormack
Chief Justice Pro Tem:
David F. Viviano

Justices:
Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

FILED October 2, 2020

STATE OF MICHIGAN SUPREME COURT

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION ______________________________________
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs,
v
GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,
Defendants.

No. 161492 USDC-WD: 1:20-cv-414

BEFORE THE ENTIRE BENCH MARKMAN, J.
This case concerns the nature and scope of our state’s public response to one of the most threatening public-health crises of modern times. In response to a global, national, and state outbreak of the severe acute respiratory disease named COVID-19, Michigan’s Governor has issued a succession of executive orders over the past six months limiting public and private gatherings, closing and imposing restrictions upon certain businesses, and regulating a broad variety of other aspects of the day-to-day lives of our state’s citizens in an effort to contain the spread of this contagious and sometimes deadly disease.
The ongoing validity of these executive orders has been the subject of much public debate as well as litigation in both state and federal courts. In the interest of comity, the United States District Court for the Western District of Michigan has asked this Court to resolve critical questions concerning the constitutional and legal authority of the Governor to issue such orders. We hereby respond to the federal court in the affirmative by choosing to answer the questions the federal court has certified, concluding as follows: first, the Governor did not possess the authority under the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq., to declare a “state of emergency” or “state of disaster” based on the COVID-19 pandemic after April 30, 2020; and second, the Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq., because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan
2

Constitution. Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.1
I. FACTS & HISTORY The coronavirus (COVID-19) is a respiratory disease that can result, and has resulted, in significant numbers of persons suffering serious illness or death. In response to COVID-19, on March 10, 2020, one day before it was declared a pandemic by the World Health Organization, the Governor issued Executive Order (EO) No. 2020-04, declaring a “state of emergency” under the EPGA and the EMA. On March 20, 2020, the Governor issued EO 2020-17, which prohibited medical providers from performing nonessential procedures. On March 23, 2020, she issued EO 2020-21, which ordered all residents to stay at home with limited exceptions. On April 1, 2020, she issued EO 2020-33, which declared a “state of emergency” under the EPGA and a “state of emergency” and “state of disaster” under the EMA. She then requested that the Legislature extend the state of emergency and state of disaster by 70 days, and a resolution was adopted, extending the state of emergency and state of disaster, but only through April 30, 2020. Senate Concurrent Resolution No. 2020-24.
1 Our decision leaves open many avenues for the Governor and Legislature to work together to address this challenge and we hope that this will take place. See Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2145; 204 L Ed 2d 522 (2019) (Gorsuch, J., dissenting) (“Respecting the separation of powers forecloses no substantive outcomes. It only requires us to respect along the way one of the most vital of the procedural protections of individual liberty found in our Constitution.”).
3

On April 30, 2020, the Governor issued EO 2020-66, which terminated the declaration of a state of emergency and state of disaster under the EMA. But, immediately thereafter, she issued EO 2020-67, which provided that a state of emergency remained declared under the EPGA. At the same time, she issued EO 2020-68, which redeclared a state of emergency and state of disaster under the EMA.2 Although the Governor subsequently lifted the ban on nonessential medical procedures, she then issued EO 202097, which imposed numerous obligations on healthcare providers, including specific waiting-room procedures, limitations on the number of patient appointments, adding special hours for highly vulnerable patients, and establishing enhanced telehealth and telemedicine procedures.3
Plaintiffs in the underlying federal case are healthcare providers that were prohibited from performing nonessential procedures while EO 2020-17 was in effect and a patient who was prohibited from undergoing knee-replacement surgery. Defendants are the Governor, the Attorney General, and the Director of the Michigan Department of Health and Human Services. Although EO 2020-17 has been rescinded, the federal district court held that the case is not moot because at that time EO 2020-114 (now EO 2020-184) continued to impose restrictions on healthcare providers. After the federal district court decided to certify the questions to this Court, defendants moved for reconsideration,
2 EOs 2020-67 and 2020-68 were later rescinded by orders that themselves were subsequently rescinded. Most recently, the Governor extended the state of emergency and state of disaster in EO 2020-186, relying on both the EPGA and the EMA. 3 EO 2020-97 was later rescinded by an order that itself was subsequently rescinded. Most recently, the Governor issued EO 2020-184 which continues to impose a variety of restrictions on healthcare providers.
4

raising-- for the first time-- Eleventh Amendment immunity. The federal district court denied this motion and held that defendants had waived such immunity by not timely raising it in either the principal briefs of their motions to dismiss or in their initial responses to the court’s invitation to brief the propriety of certification to this Court. Defendants appealed that ruling, and the matter remains pending in the United States Court of Appeals for the Sixth Circuit.
The federal district court has asked this Court to address two certified questions: (1) whether, under the EMA or the EPGA, the Governor has had the authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic; and (2) whether the EPGA and/or the EMA violate the Separation of Powers and/or the Nondelegation Clauses of the Michigan Constitution. We heard oral argument on these questions on September 9, 2020.
II. STANDARD OF REVIEW “Matters of constitutional and statutory interpretation are reviewed de novo.” People v Skinner, 502 Mich 89, 99; 917 NW2d 292 (2018). “ ‘[S]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.’ ” Id. at 100, quoting In re Sanders, 495 Mich 394, 404; 852 NW2d 524 (2014), in turn citing Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003).
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III. ANALYSIS
A. CERTIFIED QUESTIONS
MCR 7.308(A)(2)(a) provides:
When a federal court, another state’s appellate court, or a tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Court.
MCR 7.308(A)(5) provides:
The Supreme Court may deny the request for a certified question by order, issue a peremptory order, or render a decision in the ordinary form of an opinion to be published with other opinions of the Court. The clerk shall send a paper copy or provide electronic notice of the Court’s decision to the certifying court.
Defendants argue that we should not answer the certified questions, both because the case
is moot4 and because defendants are entitled to Eleventh Amendment immunity.5 The
4 Defendants argue that the case is moot because plaintiffs originally challenged the prohibition against nonessential medical procedures established by EO 2020-17 and EO 2020-17 as well as the challenged prohibition itself have since been lifted.
5 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 or Subjects of any Foreign State.” “The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Bd of Trustees of Univ of Alabama v Garrett, 531 US 356, 363; 121 S Ct 955; 148 L Ed 2d 866 (2001). Suits brought against state officials in their official capacities are equivalent to suits against the state itself. Kentucky v Graham, 473 US 159, 166; 105 S Ct 3099; 87 L Ed 2d 114 (1985). However, a state may waive its Eleventh Amendment immunity through its conduct in federal court. Lapides v Bd of Regents of the Univ Sys of Georgia, 535 US 613, 618; 122 S Ct 1640; 152 L Ed 2d 806 (2002). The doctrine of waiver prevents states from selectively invoking immunity “to achieve unfair tactical advantages.” Id. at 621. Here, in response to plaintiffs’ motion for a preliminary injunction, defendants filed 107 pages of briefing with no mention of Eleventh Amendment immunity. Subsequently, defendants filed lengthy
6

federal district court held that the case is not moot because although nonessential medical procedures are no longer prohibited, plaintiffs remain subject to many restrictions, including in particular those pertaining to the number of appointments they can schedule on a daily basis. The federal district court also held that defendants had waived Eleventh Amendment immunity by waiting to raise this issue until their motion for reconsideration.
We agree with plaintiffs that this Court should not address-- much less secondguess-- the federal district court’s decision to certify certain questions to this Court and not to certify others. Both mootness and Eleventh Amendment immunity are matters that fall within the jurisdiction of the federal courts, and neither matter is included within the federal court’s certified questions. And those matters this Court is best equipped to answer are precisely those the federal court has certified. Therefore, those are the questions we will answer herein.
B. THE EMA The first question before this Court is whether the Governor possessed the authority under the EMA to renew her declaration of a state of emergency and state of disaster based
motions to dismiss with only passing reference to the Eleventh Amendment to assert that plaintiffs are not entitled to monetary damages. Finally, defendants filed briefs-- and oral arguments were held-- regarding the certification of the issues to this Court, and never once was Eleventh Amendment immunity raised. Defendants did not raise this matter until they filed their motion for reconsideration after the federal district court indicated that it was going to certify the questions to this Court.
7

on the COVID-19 pandemic after April 30, 2020.6 MCL 30.403 of the EMA provides, in
pertinent part:
(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature. . . .
(4) The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of
6 The parties do not dispute that the Governor possessed the authority under the EMA to issue executive orders concerning the COVID-19 pandemic prior to April 30, 2020. Moreover, as a general proposition, it cannot be denied that executive orders may be given the force of law if authorized by a statute that constitutionally delegates power to the executive or, indeed, as a function of any other constitutional authority, including that inherent within the executive power. Cunningham v Neagle, 135 US 1; 10 S Ct 658; 34 L Ed 55 (1890). However, not only has no such “other” or “inherent” constitutional authority been argued, but it cannot readily be imagined that such a basis of authority would exist in support of a broad and general exercise of legislative authority by the executive branch. We specifically reject the argument offered by amicus Restore Freedom that the Governor’s authority to issue executive orders is restricted to the circumstances contemplated by Const 1963, art 5, § 2, which provides that the Governor “may make changes in the organization of the executive branch or in the assignment of functions among its units which he considers necessary for efficient administration.”
8

days is approved by resolution of both houses of the legislature. [Emphasis added.] Critically, MCL 30.403(3) and (4) provide that “[a]fter 28 days, the governor shall issue an executive order or proclamation declaring the state of [disaster/emergency] terminated, unless a request by the governor for an extension of the state of [disaster/emergency] for a specific number of days is approved by resolution of both houses of the legislature.” Because the Legislature here did not approve an extension of the “state of emergency” or “state of disaster” beyond April 30, 2020, the Governor was required to issue an executive order declaring these to be terminated. While the Governor did so, she acted immediately thereafter to issue another executive order, again declaring a “state of emergency” and “state of disaster” under the EMA for the identical reasons as the declarations that had just been terminated-- the public-health crisis created by COVID-19. Given that MCL 30.403(3) and (4) required the Governor to terminate a declaration of a state of emergency or state of disaster after 28 days in the absence of a legislatively authorized extension, we do not believe that the Legislature intended to allow the Governor to redeclare under the EMA the identical state of emergency and state of disaster under these circumstances. To allow such a redeclaration would effectively render the 28-day limitation a nullity. The Governor argues that because MCL 30.403(3) and (4) provide that “[t]he governor shall, by executive order or proclamation, declare a state of [disaster/emergency] if he or she finds [a disaster/an emergency] has occurred or the threat of [a disaster/an emergency] exists,” the Governor had no choice here but to redeclare a state of emergency and state of disaster. However, when the cited language is read in reasonable conjunction with the language imposing the 28-day limitation, it is clear that the Governor only
9

possesses the authority or obligation to declare a state of emergency or state of disaster
once and then must terminate that declaration after 28 days if the Legislature has not
authorized an extension. The Governor possesses no authority-- much less obligation-- to
redeclare the same state of emergency or state of disaster and thereby avoid the
Legislature’s limitation on her authority under the EMA. As the Court of Claims correctly
stated in Mich House of Representatives v Governor,7 unpublished opinion of the Court of
Claims, issued May 21, 2020 (Docket No. 20-000079-MZ); slip op at 23-24:
[A]t the end of the 28 days, the EMA contemplates only two outcomes: (1) the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate” language is an affirmative grant
7 In that case, the Michigan House of Representatives and Senate filed their own cause of action against the Governor, arguing that she lacked the authority under the EMA or the EPGA to renew her declaration of a state of emergency or state of disaster based on the COVID-19 pandemic after April 30, 2020, and that, if those statutes did grant her such authority, they are unconstitutional. The Court of Claims held that the Governor lacked the authority under the EMA to renew a declaration of a state of emergency or state of disaster after April 30, 2020, based on the COVID-19 pandemic. However, the Court of Claims held that she did possess the authority under the EPGA to renew her declaration of a state of emergency after April 30, 2020, based on the COVID-19 pandemic and that the EPGA is constitutionally valid. The Court of Appeals subsequently held in a divided opinion that “the Governor’s declaration of a state of emergency, her extension of the state of emergency, and her issuance of related executive orders fell within the scope of the Governor’s authority under the EPGA” and that “the EPGA is constitutionally sound.” House of Representatives v Governor, ___ Mich App ___; ___ NW2d ___ (2020) (Docket No. 353655); slip op at 1. The Court of Appeals “decline[d] to address whether the Governor was additionally authorized to take those same measures under the EMA . . . .” Id. at 1-2. Judge TUKEL, in dissent, concluded that with regard to the EPGA, “at least in a case such as this involving an ‘epidemic,’ . . . the EMA’s 28-day time limit controls”; “the Governor’s actions violate the EMA”; and “the Governor’s actions violate the separation of powers . . . .” Id. at 3-4 (TUKEL, J., concurring in part and dissenting in part). The Legislature’s application for leave to appeal remains pending in this Court.
10

of an extension from the Legislature. There is no third option for the Governor to continue the state of emergency and/or disaster on her own, absent legislative approval. . . . To adopt the Governor’s interpretation of the statute would render nugatory the express 28-day limit and it would require the Court to ignore the plain statutory language.
Furthermore, and contrary to the Governor’s argument, the 28-day limitation in the
EMA does not amount to an impermissible “legislative veto.”8 Once again, MCL
30.403(3) and (4) provide that “[a]fter 28 days, the governor shall issue an executive order
or proclamation declaring the state of [emergency/disaster] terminated, unless a request by
the governor for an extension of the state of [emergency/disaster] for a specific number of
days is approved by resolution of both houses of the legislature.” These provisions impose
nothing more than a durational limitation on the Governor’s authority. The Governor’s
declaration of a state of emergency or state of disaster may only endure for 28 days absent
legislative approval of an extension. So, if the Legislature does nothing, as it did here, the
Governor is obligated to terminate the state of emergency or state of disaster after 28 days.
A durational limitation is not the equivalent of a veto.
8 In Immigration & Naturalization Serv v Chadha, 462 US 919; 103 S Ct 2764; 77 L Ed 2d 317 (1983), the United States Supreme Court concluded that a provision of the Immigration and Nationality Act that authorized “one House of Congress, by resolution, to invalidate the decision of the Executive Branch, pursuant to authority delegated by Congress to the Attorney General of the United States, to allow a particular deportable alien to remain in the United States” was unconstitutional. Id. at 923, citing 8 USC 1254(c)(2). And in Blank v Dep’t of Corrections, 462 Mich 103, 113; 611 NW2d 530 (2000) (opinion by KELLY, J.), a plurality of this Court applied the reasoning of Chadha to conclude that statutes purporting to “retain [in the Legislature] the right to approve or disapprove rules proposed by executive branch agencies” were unconstitutional. The statutes at issue in Chadha and Blank were described as imposing “legislative vetoes.”
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As the Court of Claims again correctly explained in Mich House of Representatives v Governor, unpublished opinion of the Court of Claims, issued May 21, 2020 (Docket No. 20-000079-MZ); slip op at 25, “The Legislature has not ‘vetoed’ or negated any action by the executive branch by imposing a temporal limit on the Governor’s authority; instead, it limited the amount of time the Governor can act independently of the Legislature in response to a particular emergent matter.” Indeed, Immigration & Naturalization Serv v Chadha, 462 US 919, 955 n 19; 103 S Ct 2764; 77 L Ed 2d 317 (1983), itself expressly recognized that “durational limits on authorizations . . . lie well within Congress’ constitutional power.” That is exactly what the 28-day limitation establishes-- a durational limitation on an authorization. Nothing prohibits the Legislature from placing such a limitation on authority delegated to the Governor, and such a limitation does not render illusory in any way the delegation itself.
For these reasons, we conclude that the Governor did not possess the authority under the EMA to renew her declaration of a state of emergency or state of disaster based on the COVID-19 pandemic after April 30, 2020.9
C. THE EPGA The second question before this Court is whether the Governor possessed the authority under the EPGA to proclaim a state of emergency based on the COVID-19 pandemic after April 30, 2020.
9 Given that we conclude that the Governor did not possess the authority under the EMA to renew her declaration of a state of emergency or state of disaster based on the COVID19 pandemic after April 30, 2020, it is unnecessary for us to decide whether the EMA violates the Michigan Constitution, a question also certified to this Court.
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1. STATUTORY INTERPRETATION
MCL 10.31(1) of the EPGA sets forth the circumstances in which the Governor may
proclaim a state of emergency and the authorized subject matter of his or her emergency
powers:
During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, 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. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
MCL 10.31(2) of the EPGA sets forth the effectiveness of the emergency powers, including
the time at which those powers are no longer in effect:
The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
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MCL 10.32 explains the legislative intentions of the EPGA:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose.[10]
Plaintiffs argue that a genuine emergency must necessarily be short-lived and that because our state has been dealing with COVID-19 for more than six months, it is no longer an emergency. We respectfully disagree. “Emergency” is defined as “an urgent need for assistance or relief.” Merriam-Webster’s Collegiate Dictionary (11th ed). Simply because something has been ongoing for some extended period of time does not signify that there is no longer an “urgent need for assistance or relief.” That a fire, for example, has been burning for months does not mean that there is no longer an “urgent need for assistance or relief,” and the same is obviously true of an epidemic. In short, an emergency is an emergency for as long as it persists as an emergency.
Furthermore, the Legislature argues that the EPGA only encompasses local-- not statewide-- emergencies. It relies on the fact that the EPGA refers to a public emergency “within the state,” MCL 10.31(1), and contends that a statewide emergency is not “within” the state. Again, we disagree and believe that such a reading does not constitute a reasonable understanding of the language of the statute. “Within” simply means “the inside
10 The EPGA includes two other provisions, neither of which is relevant here. MCL 10.31(3) provides that “Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons,” and MCL 10.33 provides that “[t]he violation of any such orders, rules and regulations made in conformity with this act shall be punishable as a misdemeanor, where such order, rule or regulation states that the violation thereof shall constitute a misdemeanor.”
14

of.” Merriam-Webster’s Collegiate Dictionary (11th ed). A statewide emergency is an emergency “within the inside of the state,” with the entirety of Michigan’s counties, cities, and townships fairly described as being located “within the inside of the state.”
The Legislature also argues that the EPGA’s references to the “area involved,” the “affected area,” “any section of the area,” and “specific zones within the area” signify that the EPGA was only intended to apply to local emergencies. Again, we disagree and do not find this to be a reasonable understanding of the EPGA. “Area” is defined as “a geographic region.” Merriam-Webster’s Collegiate Dictionary (11th ed). The “area involved” or the “affected area” may comprise the entire state, or it may comprise some more localized geographical part of the state. Indeed, the EMA, which all agree is applicable to statewide emergencies such as the present pandemic, also refers repeatedly to the “threatened area.” See MCL 30.403(3) and (4); MCL 30.405(1)(e) and (g). And that the Governor may promulgate rules that pertain to the “affected area,” to a “section” of the affected area, or to a “specific zone” within the affected area does not indicate that the Governor cannot declare a statewide emergency. It simply means that once the Governor has declared a statewide emergency, she is not obligated to treat the entire state in an identical manner.11
Additionally, both plaintiffs and the Legislature argue that the historical context of the EPGA, enacted in 1945 in response to riots in Detroit in 1943, suggests that it was
11 Plaintiffs also argue that because the EPGA empowers certain local officials to seek an emergency declaration, the concerns of the statute are primarily local in nature. However, the EPGA also empowers the commissioner of the Michigan state police to request such a declaration, and of course, it allows the Governor herself to proclaim a state of emergency upon her own volition.
15

intended to apply only to local emergencies. However, even if an undisputed or a principal purpose of the EPGA was to enable the Governor to respond to a local emergency such as a riot, that does not indicate that enabling the Governor to respond to a local emergency was the EPGA’s exclusive purpose. “[T]he remedy [of a legal provision] often extends beyond the particular act or mischief which first suggested the necessity of the law.” Dist of Columbia v Heller, 554 US 570, 578; 128 S Ct 2783; 171 L Ed 2d 637 (2008) (quotation marks and citations omitted). That is, historical context and rationale, while often helpful in giving reasonable meaning to a statute, cannot ultimately take priority over its actual language. What is dispositive here is that the actual terms of the EPGA do not preclude the Governor from proclaiming a state of emergency in response to a statewide emergency.
In House of Representatives v Governor, ___ Mich App___; ___ NW2d ___ (2020) (Docket No. 353655) (TUKEL, J., concurring in part and dissenting in part); slip op at 3, Judge TUKEL concluded in a thoughtful dissent that “at least in a case such as this involving an ‘epidemic,’ . . . the EMA’s 28-day time limit controls.” He relied on the fact that the definition of “disaster” within the EMA includes an “epidemic” while the EPGA does not include that term. However, the definition of “disaster” within the EMA includes a variety of examples of types of disasters, and if all of those types of disasters were excluded from the EPGA using Judge TUKEL’s reasoning, the EPGA would be effectively rendered a nullity,12 running afoul of the interpretive maxim that “a court should avoid a construction
12 The EMA defines “disaster” as “an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, fire, flood, snowstorm, ice storm, tornado, windstorm, wave action, oil spill, water contamination, utility failure, hazardous peacetime radiological incident, major
16

that would render any part of the statute surplusage or nugatory.” In re MCI Telecom
Complaint, 460 Mich 396, 414; 596 NW2d 164 (1999). Such an understanding of the
EPGA would also run afoul of the EMA, which provides, in pertinent part:
This act shall not be construed to do any of the following:
* * *
(d) Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA] or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act. [MCL 30.417.]
To rely on the inclusion of the word “epidemic” within the EMA to conclude that the EPGA
does not apply, or that the 28-day limitation of the EMA does apply to the EPGA, would,
in our judgment, be to construe the EMA to “[l]imit, modify, or abridge the authority of
the governor” under the EPGA, which is prohibited by MCL 30.417.13
Finally, Justice VIVIANO concludes after a thorough and considered analysis that the
EPGA does not apply “in the sphere of public health generally or to an epidemic like
transportation accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation, explosion, or hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities, riots, or civil disorders.” MCL 30.402(e). If the EPGA does not apply to emergencies arising from one of the above circumstances, we are uncertain as to what type of emergencies the EPGA would apply. Judge TUKEL opined that the Legislature could not have intended for both the EPGA and the EMA to apply to epidemics. However, both the EPGA and the EMA explicitly state that they apply to riots. Accordingly, the Legislature obviously intended for there to be some level of overlap between the two acts.
13 Similarly, reading the 28-day time limitation of the EMA into the EPGA on the basis that these two statutes stand in pari materia, as argued by plaintiffs, is also, in our judgment, precluded by MCL 30.417.
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COVID-19 in particular” because the EPGA only allows the Governor to declare a state of emergency “when public safety is imperiled,” MCL 10.31(1), and “public safety” does not encompass “public health.” Although we agree with Justice VIVIANO that the EPGA only allows the Governor to declare a state of emergency “when public safety is imperiled,” we respectfully disagree that public-health emergencies such as the COVID-19 pandemic cannot be said to imperil “public safety.” “Public” is defined as “relating to people in general,” Merriam-Webster’s Collegiate Dictionary (11th ed), and “safety” is defined as “the condition of being safe from undergoing or causing hurt, injury, or loss,” id. Given that COVID-19 has resulted in the deaths of many thousands in Michigan and hundreds of thousands across the country,14 COVID-19, in our judgment, can reasonably be said to imperil “public safety.”
The people of this state, as well as their public officials, deserve to be able to read and to comprehend their own laws. See, e.g., Garg v Macomb Co Community Mental Health Servs, 472 Mich 263, 284 n 10; 696 NW2d 646 (2005) (“[L]aws are also made more accessible to the people when each of them is able to read the law and thereby understand his or her rights and responsibilities. When the words of the law bear little or no relationship to what courts say the law means . . . , then the law increasingly becomes the exclusive province of lawyers and judges.”); Robinson v Detroit, 462 Mich 439, 467; 613

14 See Centers for Disease Control and Prevention, Provisional Death Counts for

Coronavirus

Disease

2019

(COVID-19)

<https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm> (accessed October 1, 2020)

[https://perma.cc/6UPD-RHZ3].

18

NW2d 307 (2000) (“[I]f the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts.”). As Justice COOLEY once explained:
[Courts] may give a sensible and reasonable interpretation to legislative expressions which are obscure, but they have no right to distort those which are clear and intelligible. The fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern[.] [People ex rel Twitchell v Blodgett, 13 Mich 127, 167-168 (1865).]
See also MCL 8.3a (“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”). We disagree with Justice VIVIANO that “public safety” constitutes a legal term of art. There is nothing “obscure,” “peculiar,” or “technical” about the phrase “public safety.” Rather, this phrase is reasonably “clear,” “intelligible,” and “common”-- so much so that prior to Justice VIVIANO first asserting his analysis at oral argument, nobody had argued on their own accord in either this case or in House of Representatives v Governor that COVID-19 did not imperil “public safety.”15 Moreover, it is telling that not one of the sources cited by Justice VIVIANO asserts, as does he, that a public-health emergency such as COVID-19 does not, reasonably understood, imperil “public safety.” Indeed, both the United States
15 Indeed, before Justice VIVIANO presented his analysis at oral argument, plaintiffs themselves effectively conceded that COVID-19 imperiled “public safety.” See Plaintiffs’ Reply Brief (August 20, 2020) at 1 (“Plaintiffs acknowledge that for 51 days following the Governor’s first declaration of a state of emergency based on COVID-19, the Governor acted within the bounds of the enabling statutes and the Michigan Constitution.”); id. at 3 (“The Governor acted within the limits of her authority for 51 days.”).
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Supreme Court and this Court have long recognized to the contrary. See, e.g., Jacobson v Massachusetts, 197 US 11, 37; 25 S Ct 358; 49 L Ed 643 (1905) (“It seems to the court that an affirmative answer to these questions [in Jacobson] would practically strip the legislative department of its function to care for the public health and the public safety when endangered by epidemics of disease.”) (emphasis added); People ex rel Hill v Lansing Bd of Ed, 224 Mich 388, 391; 195 NW 95 (1923) (“[A] community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”) (quotation marks and citation omitted; emphasis added).
Once again, “[t]his Court ‘must presume a statute is constitutional and construe it as such, unless the only proper construction renders the statute unconstitutional.’ ” Grebner v State, 480 Mich 939, 940 (2007) (citation omitted). Accordingly, “assuming that there are two reasonable ways of interpreting [a statute]-- one that renders the statute unconstitutional and one that renders it constitutional-- we should choose the interpretation that renders the statute constitutional.” Skinner, 502 Mich at 110-111 (emphasis added). However, we are not prepared to rewrite the EPGA or to construe it in an overly narrow or strained manner to avoid rendering it unconstitutional under the nondelegation doctrine or any other constitutional doctrine.16 To do so would read the EPGA in a way that does not
16 In addressing the constitutionality of a statute, this Court itself must be regardful of the separation of powers. We are not empowered to add, subtract, or modify a statute out of judicial preference. Rather, it is the province of the Legislature to make the law through the process of bicameral passage and presentment to the executive, and it is our duty only to state, to the best of our judgment, what that law requires. By the same token, it is also the responsibility of this Court in recognizing the separation of powers to ensure that the Legislature does not exceed its constitutional authority in “making the law” either by
20

reflect the genuine intentions of the statute’s framers, an approach that would be in ironic conflict with the fundamental premise of the nondelegation doctrine itself, which is that the laws of our state are to be determined by the Legislature. For these reasons, we conclude that there is one predominant and reasonable construction of the EPGA-- the construction given to it by the Governor. This is not to say, however, that the construction advanced by the Governor and the other defendants renders the EPGA a constitutionally permissible delegation of legislative power to the executive. To the contrary, while the EPGA purports to grant the Governor the power to proclaim a state of emergency based on the COVID-19 pandemic, and accordingly to exercise broad emergency powers, the EPGA by that very construction stands in violation of the Michigan Constitution.
2. NONDELEGATION DOCTRINE Const 1963, art 3, § 2 summarizes the separation-of-powers principle in Michigan as follows:
The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. “[T]he principal function of the separation of powers . . . is to . . . protect individual liberty[.]” Clinton v City of New York, 524 US 417, 482; 118 S Ct 2091; 141 L Ed 2d 393 (1998) (Breyer, J., dissenting). “ ‘[T]he accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary,
encroaching upon the powers of another branch or by relinquishing its own powers to another branch.
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self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ ” 46th Circuit Trial Court v Crawford Co, 476 Mich 131, 141; 719 NW2d 553 (2006), quoting The Federalist No. 47 (Madison) (Rossiter ed, 1961), p 301. And as Montesquieu explained, “[w]hen the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Baron de Montesquieu, The Spirit of the Laws (London: J. Nourse and P. Vaillant, 1758), Book XI, ch 6, p 216.
Const 1963, art 4, § 1 provides that “the legislative power of the State of Michigan is vested in a senate and a house of representatives.” “The ‘legislative power’ has been defined as the power ‘to regulate public concerns, and to make law for the benefit and welfare of the state.’ ” 46th Circuit Trial Court, 476 Mich at 141, quoting Cooley, Constitutional Limitations (1886), p 92. “The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.” Locke, Two Treatises of Government (New York: New American Library, Laslett ed, 1963), pp 408-409. Accordingly, “[o]ne of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.” Cooley, Constitutional Limitations (1886), pp 116-117.
“Strictly speaking, there is no acceptable delegation of legislative power.” Mistretta v United States, 488 US 361, 419; 109 S Ct 647; 102 L Ed 2d 714 (1989) (Scalia, J.,
22

dissenting). “The true distinction . . . is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” Marshall Field & Co v Clark, 143 US 649, 693-694; 12 S Ct 495; 36 L Ed 294 (1892) (quotation marks and citation omitted). “[A] certain degree of discretion, and thus of lawmaking, inheres in most executive or judicial action . . . .” Mistretta, 488 US at 417 (Scalia, J., dissenting). “The focus of controversy . . . has been whether the degree of generality contained in the authorization for exercise of executive or judicial powers in a particular field is so unacceptably high as to amount to a delegation of legislative powers.” Id. at 419.
We have explained that “[c]hallenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of the delegated power.” Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985). “The preciseness required of the standards will depend on the complexity of the subject.” Id. “In making this determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power in the hands of administrative officials.” Dep’t of Natural Resources v Seaman, 396 Mich 299, 308-309; 240 NW2d 206 (1976). “[T]he standards prescribed for guidance [must be] as reasonably precise as the subject-matter requires or permits.” Osius v St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956).
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The United States Supreme Court17 has explained that “[s]o long as Congress ‘shall
lay down by legislative act an intelligible principle to which the person or body authorized
to exercise the delegated authority is directed to conform, such legislative action is not a
forbidden delegation of legislative power.’ ” Mistretta, 488 US at 372, quoting J W
Hampton, Jr & Co v United States, 276 US 394, 409; 48 S Ct 348; 72 L Ed 624 (1928)
(brackets omitted).18 That is, “[t]he constitutional question is whether Congress has
supplied an intelligible principle to guide the delegee’s use of discretion.” Gundy v United
States, 588 US ___, ___; 139 S Ct 2116, 2123; 204 L Ed 2d 522 (2019) (opinion by Kagan,
J.). “[T]he answer requires construing the challenged statute to figure out what task it
delegates and what instructions it provides.” Id.
The scope of the delegation is also relevant when assessing the sufficiency of the
standards. “[T]he degree of agency discretion that is acceptable varies according to the
17 In Taylor, 468 Mich at 10, we observed that our nondelegation caselaw is “similar to the federally developed” nondelegation caselaw.
18 The “intelligible principle” test has been subject to growing criticism by some members of the United States Supreme Court in recent years for failing to sufficiently protect the separation of powers. See, e.g., Dep’t of Transp v Ass’n of American Railroads, 575 US 43, 77; 135 S Ct 1225; 191 L Ed 2d 153 (2015) (Thomas, J., concurring) (“Implicitly recognizing that the power to fashion legally binding rules is legislative, we have nevertheless classified rulemaking as executive (or judicial) power when the authorizing statute sets out ‘an intelligible principle’ to guide the rulemaker’s discretion. . . . I would return to the original understanding of the federal legislative power and require that the Federal Government create generally applicable rules of private conduct only through the constitutionally prescribed legislative process.”); Gundy, 588 US at ___; 139 S Ct at 2140 (Gorsuch, J., dissenting) (asserting that the “intelligible principle” test “has been abused to permit delegations of legislative power that on any other conceivable account should be held unconstitutional”). Nonetheless, the “intelligible principle” test remains as the dominant expression of what is required to sustain a constitutional delegation of powers.
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scope of the power . . . conferred.” Whitman v American Trucking Associations, Inc, 531
US 457, 475; 121 S Ct 903; 149 L Ed 2d 1 (2001). Consequently, “the ultimate judgment
regarding the constitutionality of a delegation must be made not on the basis of the scope
of the power alone, but on the basis of its scope plus the specificity of the standards
governing its exercise. When the scope increases to immense proportions . . . the standards
must be correspondingly more precise.” Synar v United States, 626 F Supp 1374, 1386 (D
DC, 1986). See also Int’l Refugee Assistance Project v Trump, 883 F3d 233, 293 (CA 4,
2018) (Gregory, C.J., concurring) (“When broad power is delegated with few or no
constraints, the risk of an unconstitutional delegation is at its peak. . . . Therefore, whether
a delegation is unconstitutional depends on two factors—the amount of discretion and the
scope of authority.”), vacated by Trump v Int’l Refugee Assistance Project, 585 US ___;
138 S Ct 2710 (2018). As the federal Court of Appeals for the District of Columbia Circuit
has recognized in a series of cases, a critical component of the scope of the delegated
“power” is the breadth of subjects to which the power can be applied:
But petitioners have ignored a limit to the nondelegation doctrine that we relied on in American Trucking and even more emphatically in its immediate precursor, International Union, UAW v. OSHA (“Lockout/Tagout I”), 938 F.2d 1310 (D.C.Cir.1991). There we noted that the scope of the agency’s “claimed power to roam” was “immense, encompassing all American enterprise.” Id. at 1317. Quoting verbatim from Synar v. United States, 626 F.Supp. 1374, 1383 (D.D.C.1986) (three-judge panel), aff’d sub nom. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), we said, “When the scope increases to immense proportions, as in [Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) ], the standards must be correspondingly more precise.” Lockout/Tagout I, 938 F.2d at 1317. We noted that a mass of cases in courts had upheld delegations of effectively standardless discretion, and distinguished them precisely on the ground of the narrower scope within which the agencies could deploy that discretion. Id. [Michigan v US
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Environmental Protection Agency, 341 US App DC 306, 323; 213 F3d 663 (2000) (brackets in original).] In other words, it is one thing if a statute confers a great degree of discretion, i.e., power, over a narrow subject; it is quite another if that power can be brought to bear on something as “immense” as an entire economy. See Schechter Poultry Corp v United States, 295 US 495, 539; 55 S Ct 837; 79 L Ed 1570 (1935) (striking down a delegation to the President to approve trade standards when the “authority relates to a host of different trades and industries, thus extending the President’s discretion to all the varieties of laws which he may deem to be beneficial in dealing with the vast array of commercial and industrial activities throughout the country”). Furthermore, “[t]he area of permissible indefiniteness narrows . . . when the regulation invokes criminal sanctions and potentially affects fundamental rights . . . .” United States v Robel, 389 US 258, 275; 88 S Ct 419; 19 L Ed 2d 508 (1967) (Brennan, J., concurring in the result). Finally, the durational scope of the delegated power also has some relevant bearing, in our judgment, on whether the statute violates the nondelegation doctrine. Of course, an unconstitutional delegation is no less unconstitutional because it lasts for only two days. But it is also true, as common sense would suggest, that the conferral of indefinite authority accords a greater accumulation of power than does the grant of temporary authority. Courts have recognized this consideration, although they have also acknowledged that it is not often dispositive. In Gundy, for example, the plurality thought it relevant to the delegation analysis in that case that the statute accorded the executive “only temporary authority.” Gundy, 588 US at ___; 139 S Ct at 2130; see also United States v Touby, 909 F2d 759, 767 (CA 3, 1990) (“[I]t was reasonable for Congress to broadly delegate special authority to
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the Attorney General, particularly when the delegation permits scheduling to be effective only for a limited period of time.”); United States v Emerson, 846 F2d 541, 545 (CA 9, 1988) (upholding delegation because, in part, the delegated power was temporary); Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v Connally, 337 F Supp 737, 754 (D DC, 1971) (“It is also material, though not dispositive, to note the limited time frame established by Congress for the stabilization authority delegated to the President.”); Marran v Baird, 635 A2d 1174, 1181 (RI, 1994) (upholding a delegation because, in part, the danger of “administrative abuse” was diminished given the limited duration of the delegated authority).
It is therefore impossible to ascertain whether the standards set forth in the EPGA that guide the Governor’s discretionary exercise of her emergency powers satisfy the nondelegation doctrine without first assessing the precise scope of these powers. Simply put, as the scope of the powers conferred upon the Governor by the Legislature becomes increasingly broad, in regard to both the subject matter and their duration, the standards imposed upon the Governor’s discretion by the Legislature must correspondingly become more detailed and precise.
a. SCOPE OF DELEGATED POWER Concerning the subject matter of the emergency powers conferred by the EPGA, it is remarkably broad, authorizing the Governor to enter orders “to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). It is indisputable that such orders “to protect life and property” encompass a substantial part of the entire police power of the state. See Connor v Herrick, 349 Mich 201, 217; 84 NW2d 427 (1957) (“[T]here seems to be no doubt that [the police power] does extend to
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the protection of the lives, health, and property of the citizens, and to the preservation of good order and public morals.”) (emphasis added). And the police power is legislative in nature. See Bolden v Grand Rapids Operating Corp, 239 Mich 318, 321; 214 NW 241 (1927) (“The power we allude to is rather the police power, the power vested in the Legislature by the Constitution, to make, ordain and establish all manner of wholesome and reasonable laws . . . .”) (quotation marks and citation omitted). The EPGA “in effect, suspends normal civil government.” Walsh v River Rouge, 385 Mich 623, 639; 189 NW2d 318 (1971). “The invocation of a curfew or restriction on the right to assemble or prohibiting the right to carry on businesses licensed by the State of Michigan involves the suspension of constitutional liberties of the people.” Id.
To illustrate the breadth of the emergency powers contemplated by the EPGA, we note that during the COVID-19 pandemic the Governor has, by way of executive orders specifically issued under the EPGA, effected the following public policies: requiring all residents to stay home with limited exceptions; requiring all residents to wear face coverings in indoor public spaces and when outdoors if unable to consistently maintain a distance of six feet or more from individuals who are not members of their household, including requiring children to wear face coverings while playing sports; requiring all residents to remain at least six feet away from people outside one’s household to the extent feasible under the circumstances; requiring businesses to comply with numerous workplace safeguards, including daily health screenings of employees; closing restaurants, food courts, cafes, coffeehouses, bars, taverns, brew pubs, breweries, microbreweries, distilleries, wineries, tasting rooms, clubs, hookah bars, cigar bars, vaping lounges, barbershops, hair salons, nail salons, tanning salons, tattoo parlors, schools, churches,
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theaters, cinemas, libraries, museums, gymnasiums, fitness centers, public swimming pools, recreation centers, indoor sports facilities, indoor exercise facilities, exercise studios, spas, casinos, and racetracks; closing places of public amusement, including arcades, bingo halls, bowling alleys, indoor climbing facilities, skating rinks, and trampoline parks; prohibiting nonessential travel, in-person work that is not necessary to sustain or protect life, and nonessential in-person business operations; prohibiting the sale of carpet, flooring, furniture, plants, and paint; prohibiting advertisements for nonessential goods, nonessential medical and dental procedures, and nonessential veterinary services; prohibiting visitors at healthcare facilities, residential care facilities, congregate care facilities, and juvenile justice facilities; and prohibiting boating, golfing, and public and private gatherings of persons not part of a single household. Each of these policies was putatively ordered “to protect life and property” and/or to “bring the emergency situation within the affected area under control.” What is more, these policies exhibit a sweeping scope, both with regard to the subjects covered and the power exercised over those subjects. Indeed, they rest on an assertion of power to reorder social life and to limit, if not altogether displace, the livelihoods of residents across the state and throughout wide-ranging industries.
b. DURATION OF DELEGATED POWER Concerning the duration of the emergency powers conferred by the EPGA, those powers may be exercised until a “declaration by the governor that the emergency no longer exists.” MCL 10.31(2). Thus, the Governor’s emergency powers are of indefinite duration. This, of course, is very much unlike the EMA, which provides that “[t]he state of emergency shall continue until the governor finds that the threat or danger has passed,
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the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days.” MCL 30.403(4) (emphasis added). And as the present circumstances illustrate, if the emergency is unresolved for a period of months or longer, the emergency powers under the EPGA may be exercised for a period of months or longer.19 The fact that the EPGA authorizes indefinite exercise of emergency powers for perhaps months-- or even years-- considerably broadens the scope of authority conferred by that statute. See Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 652-653; 72 S Ct 863; 96 L Ed 1153 (1952) (Jackson, J., concurring) (explaining that “Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency” but that those “authorities” are perhaps best characterized as “temporary law”). Thus, under the EPGA, the state’s legislative authority, including its police powers, may conceivably be delegated to the state’s executive authority for an indefinite period.
19 When Justice BERNSTEIN questioned counsel for the Governor during oral argument concerning the ending point of the Governor’s exercise of emergency powers under the EPGA, counsel replied:
Regarding this pandemic in terms of timing, while I have no crystal ball, the reasonable prognostication is that we’re talking about a matter of months. So we’re looking at certain benchmarks: sufficient immunity, vaccination, therapeutic interventions, and a combination of those things. [Michigan Supreme Court, Oral Arguments in In re Certified Questions <https://www.youtube.com/watch?v=HyBanqtCLvo> at 1:44:20 to 1:44:38 (accessed September 29, 2020).]
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c. STANDARDS OF DELEGATED POWER It is against the above backdrop that the constitutionality of the standards, or legislative direction to the executive branch, set forth in the EPGA must be considered. What standards or legislative direction are sufficient to transform a delegation of power in which what is being delegated consists of pure legislative policymaking power into a delegation in which what is being delegated has been made an essentially executive “carrying-out of policy” power by virtue of the accompanying direction given by the Legislature to the executive in the delegation? When the scope of the power delegated “increases to immense proportions . . . the standards must be correspondingly more precise.” Synar, 626 F Supp at 1386. Under the EPGA, the standards governing the Governor’s exercise of emergency powers include only the words “reasonable” and “necessary.” See MCL 10.31(1) (“After making the proclamation or declaration, 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.”) (emphasis added). Concerning the term “reasonableness,” that word places a largely (if not entirely) illusory limitation upon the Governor’s discretion because the Legislature is presumed not to delegate the authority to act unreasonably in the first place. In this regard, in Mich Farm Bureau v Bureau of Workmen’s Compensation, 408 Mich 141; 289 NW2d 699 (1980), we explained that an administrative rule is valid “ ‘if it is (a) within the granted power, (b) issued pursuant to proper procedure, and (c) reasonable. The requirement of reasonableness stems both from the idea of constitutional due process and from the idea of statutory interpretation that legislative bodies are assumed to intend to avoid the delegation
31

of power to act unreasonably.’ ” Id. at 149, quoting 1 Davis, Administrative Law, § 5.03, p 299. See also American Radio Relay League, Inc v Fed Communications Comm, 199 US App DC 293, 297; 617 F2d 875 (1980) (“We fail to find significance in the fact that Congress said ‘reasonable regulations’ instead of simply ‘regulations.’ . . . Here, the word ‘reasonable’ clearly is nothing more than surplusage, for we cannot assume that Congress would ever intend anything other than reasonable agency action.”). Although those cases addressed delegated agency powers, we see no reason why the same principle would not apply to all powers delegated to the executive. Accordingly, the reference in MCL 10.31(1) to “reasonable orders, rules, and regulations” communicates little more than simply “orders, rules, and regulations.” The word “reasonable”-- far from imposing a significant or in any way meaningful standard upon the Governor-- is essentially surplusage. It neither affords direction to the Governor for how to carry out the powers that have been delegated to her nor constrains her conduct in any realistic manner.
Concerning the term “necessary,” that word means “absolutely needed : REQUIRED.” Merriam-Webster’s Collegiate Dictionary (11th ed). Given the exceptionally broad scope of the EPGA, which authorizes indefinite orders that are “necessary to protect life and property,” we believe that such a standard is also insufficient to satisfy the nondelegation doctrine when considered both in isolation and alongside the word “reasonable.” It is elementary that “life” and “property” may be threatened by a virtually unlimited array of conduct, circumstances, and serendipitous occurrences. A person driving on the road instead of staying inside at home, for example, may fairly be understood as posing a threat to “life” and “property” because there is perpetual risk that he or she will be involved in an automobile accident. Thus, the Governor under the EPGA
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may find that an order prohibiting a person from driving is warranted merely on the basis
of this rationale. The contagions, accidents, misfortunes, risks, and acts of God, ordinarily
and inevitably associated with the human condition and with our everyday social
experiences, are simply too various for this standard to supply any meaningful limitation
upon the exercise of the delegated power. Simply put, the EPGA, in setting forth a
“necessary” standard, just as in setting forth a “reasonable” standard, neither supplies
genuine guidance to the Governor as to how to exercise the authority delegated to her by
the EPGA nor constrains her actions in any meaningful manner.20
20 In Touby v United States, 500 US 160; 111 S Ct 1752; 114 L Ed 2d 219 (1991), the United States Supreme Court upheld as constitutional 21 USC 811(h) of the Controlled Substances Act, 21 USC 801 et seq., which provided that “the Attorney General can schedule a substance on a temporary basis when doing so is ‘necessary to avoid an imminent hazard to the public safety.’ ” Id. at 163, quoting 21 USC 811(h). The Court explained that the statute satisfied the nondelegation doctrine because the surrounding statutes imposed other standards upon the Attorney General’s discretion to temporarily schedule a substance:
Although it features fewer procedural requirements than the permanent scheduling statute, § 201(h) meaningfully constrains the Attorney General’s discretion to define criminal conduct. To schedule a drug temporarily, the Attorney General must find that doing so is “necessary to avoid an imminent hazard to the public safety.” § 201(h)(1), 21 U.S.C. § 811(h)(1). In making this determination, he is “required to consider” three factors: the drug’s “history and current pattern of abuse”; “[t]he scope, duration, and significance of abuse”; and “[w]hat, if any, risk there is to the public health.” §§ 201(c)(4)-(6), 201(h)(3), 21 U.S.C. §§ 811(c)(4)-(6), 811(h)(3). Included within these factors are three other factors on which the statute places a special emphasis: “actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.” § 201(h)(3), 21 U.S.C. § 811(h)(3). The Attorney General also must publish 30-day notice of the proposed scheduling in the Federal Register, transmit notice to the Secretary of HHS, and “take into consideration any comments
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In this regard, we also find illuminating an advisory opinion written in the midst of World War II by the Supreme Judicial Court of Massachusetts. Opinion of the Justices, 315 Mass 761; 52 NE2d 974 (1944). The statute at issue was a wartime measure allowing the governor to “ ‘have and . . . [to] exercise any and all authority over persons and property, necessary or expedient for meeting the supreme emergency of such a state of war,’ ” as consistent with the state constitution. Id. at 766, citing Mass Acts of 1942, ch 13, special session. The question posed was whether this statute allowed the governor to modify statutes establishing the date of state primaries so as to allow soldiers to vote. Id. at 765. The majority recognized that this statute would allow the governor “to render inoperative any law inconsistent with” his orders and to wield “all authority of every kind over persons or property which it could constitutionally confer upon him by specific enactments wherein the precise powers intended to be granted and the manner of their exercise should be particularly stated, subject only to the limitation that the action taken by the Governor shall be ‘necessary or expedient for meeting the supreme emergency’ of war.” Id. at 767. The majority did not believe that the state constitution allowed the Legislature to confer upon the governor “a roving commission to repeal or amend by executive order unspecified provisions included anywhere in the entire body of” state law. Id. The standard given in the statute-- “necessary” and “expedient’ for the war
submitted by the Secretary in response.” §§ 201(h)(1), 201(h)(4), 21 U.S.C. §§ 811(h)(1), 811(h)(4). [Id. at 166 (brackets in original).] As Touby illustrates, the word “necessary” may be a part of a sufficient standard imposed upon the executive branch, but we do not believe that it is by itself a sufficient standard, at least not in the context of the remarkably broad powers conferred by the EPGA.
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“emergency”-- was “a limitation so elastic that it is impossible to imagine what might be done within its extent in almost every field of administration and of jurisprudence.” Id. at 768. The statute thus surrendered legislative power to the executive by granting him “without specification or definition of means or ends all the powers which it could grant by specific enactment in all fields which may be affected by a factor so all pervasive as war.” Id. The emergency-- the war-- did “not abrogate the Constitution.” Id. See also Home Bldg & Loan Ass’n v Blaisdell, 290 US 398, 425; 54 S Ct 231; 78 L Ed 413 (1934) (“Emergency does not create power. Emergency does not increase granted power or remove or diminish the restrictions imposed upon power granted or reserved.”).
The consequence of such illusory “non-standard” standards in this case is that the Governor possesses free rein to exercise a substantial part of our state and local legislative authority-- including police powers-- for an indefinite period of time. There is, in other words, nothing within either the “necessary” or “reasonable” standards that serves in any realistic way to transform an otherwise impermissible delegation of legislative power into a permissible delegation of executive power. This is particularly true in the specific context of the EPGA, a statute that delegates power of immense breadth and is devoid of all temporal limitations. These facets of the EPGA-- its expansiveness, its indefinite duration, and its inadequate standards-- are simply insufficient to sustain this delegation. While, in the context of a less-encompassing delegation, the standard might be sufficient to sustain the delegation, that is not the case the Court entertains today.
We accordingly conclude that the delegation of power to the Governor to “promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property,” MCL 10.31(1), constitutes an unlawful delegation of legislative
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power to the executive and is therefore unconstitutional under Const 1963, art 3, § 2, which
prohibits exercise of the legislative power by the executive branch. The powers conferred
by the EPGA simply cannot be rendered constitutional by the standards “reasonable” and
“necessary,” either separately or in tandem.21
d. SEVERABILITY
Having reached this conclusion, we must then address whether the unlawful
delegation is severable from the EPGA as a whole. MCL 8.5 provides as follows:
In the construction of the statutes of this state the following rules shall be observed, unless such construction would be inconsistent with the manifest intent of the legislature, that is to say:
If any portion of an act or the application thereof to any person or circumstances shall be found to be invalid by a court, such invalidity shall not affect the remaining portions or applications of the act which can be given
21 Although we disagree with the Chief Justice concerning the legal definition that has been set forth by the United States Supreme Court of the nondelegation doctrine, we acknowledge in accord with her and Justice BERNSTEIN that it has been exceedingly rare for a delegation of power to have been actually invalidated by the United States Supreme Court on the basis of that doctrine. The United States Supreme Court has “found the requisite ‘intelligible principle’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’ ” Whitman, 531 US at 474, citing Panama Refining Co v Ryan, 293 US 388; 55 S Ct 241; 79 L Ed 446 (1935), and Schechter Poultry Corp, 295 US 495. Yet, just as the nondelegation doctrine constitutes an extraordinary doctrine, not routinely to be invoked, it is precisely our point that the delegation in the instant case is also extraordinary and justifies our constitutional objections. We are unaware of any other law of this state that has delegated such vast police power to the executive branch with such anemic “standards” imposed upon its discretion. If the Chief Justice and Justice BERNSTEIN would not invoke the nondelegation doctrine here, it is difficult to imagine when, if ever, they would invoke it. They would transform an admittedly rarely imposed doctrine, but one serving a critical purpose in upholding our system of separated powers, into an entirely obsolete and defunct doctrine.
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effect without the invalid portion or application, provided such remaining portions are not determined by the court to be inoperable, and to this end acts are declared to be severable. “This Court has long recognized that ‘[i]t is the law of this State that if invalid or unconstitutional language can be deleted from an ordinance and still leave it complete and operative then such remainder of the ordinance be permitted to stand.’ ” In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich 295, 345; 806 NW2d 683 (2011), quoting Eastwood Park Amusement Co v East Detroit Mayor, 325 Mich 60, 72; 38 NW2d 77 (1949). We are convinced that severing the unlawful delegation from the remainder of the EPGA would be “inconsistent with the manifest intent of the legislature.” See MCL 8.5. Our task in discerning the manifest intent of the Legislature in this regard is rather straightforward. MCL 10.32 of the EPGA provides that “[i]t is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” Without conferring the power “to protect life and property,” the EPGA only confers the power “to bring the emergency situation within the affected area under control.” MCL 10.31(1). That is, if the unlawful delegation is severed, the EPGA confers no power to “control . . . persons and conditions” unless that power is exercised to “bring the emergency situation within the affected area under control.” Id. In our judgment, the EPGA is inoperative when we sever the power to “protect life and property” from the remainder of the EPGA; therefore, the EPGA is unconstitutional in its entirety.
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IV. RESPONSE TO THE CHIEF JUSTICE First, in her concurring and dissenting opinion, our Chief Justice is correct (or, at least, I hope she is) that “[e]very eighth-grade civics student learns about the separation of powers and checks and balances—design features of our government to prevent one branch from accumulating too much power.” At the same time (again, I hope), every student also learns in that same classroom that these “design features” both define the distinctive authorities of the three branches of our government and empower each of these branches to “check and balance” the authorities of the others. And specifically relevant to the instant case is the authority of the judicial branch, in which the judiciary must identify whether the Constitution has been breached and undo such breaches, in order that the rights of the people may be upheld or that facets of our constitutional structure, including its separated powers and checks and balances that preserve and protect these same rights, may be upheld. These students will also learn that these “design features” have operated throughout our nation’s history to maintain a stable, limited, and representative form of government. The nondelegation doctrine-- the constitutional doctrine at issue in this case-- sets forth a foundational principle of our system of separated powers and checks and balances precisely because it acts in support of the logical proposition that just as no branch may act to breach the authority of another, so too may no branch act to breach its own authority by relinquishing it to another branch.22 And despite what is suggested by the Chief Justice, separation-of-powers disputes do not invariably give rise to something akin to a “political
22 “To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?” Marbury v Madison, 5 US (1 Cranch) 137, 176; 2 L Ed 60 (1803).
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question” to be avoided by the judiciary and resolved exclusively by the quarreling branches themselves. When President Nixon asserted his “executive privilege” to disregard a subpoena from a special prosecutor, it was no “political question”; when President Clinton asserted his authority to dismiss a lawsuit on “presidential immunity” grounds, it was no “political question”; when Congress asserted its authority to exercise a one-house legislative veto, it was no “political question”; and when Presidents have claimed the authority to issue executive orders, to impound appropriated funds, or to exercise line-item vetoes, these too did not invariably become “political questions.”23 Similarly, that the political process itself may afford potential relief to an aggrieved party does not, as the Chief Justice suggests, somehow relieve the judiciary of its obligation to expound upon the meaning of the law and the Constitution.
Second, the Chief Justice suggests that we have “announced” a new principle as part of the nondelegation doctrine because, while caselaw from the United States Supreme Court and this Court “require some standards for the delegation of legislative authority,” such that “in theory, an inadequate standard would be insufficient,” “until today, the United States Supreme Court and this Court have struck down statutes under the nondelegation doctrine only when the statutes contained no standards to guide the decision-maker’s discretion.” However, it is not this majority that has “announced” any novel proposition; rather, it is the Chief Justice who has announced a new principle by stating that repeated
23 See United States v Nixon, 418 US 683; 94 S Ct 3090; 41 L Ed 2d 1039 (1974); Clinton v Jones, 520 US 681; 117 S Ct 1636; 137 L Ed 2d 945 (1997); Chadha, 462 US 919; Trump v Hawaii, 585 US ___; 138 S Ct 2392; 201 L Ed 2d 775 (2018); Train v City of New York, 420 US 35; 95 S Ct 839; 43 L Ed 2d 1 (1975); Clinton, 524 US 417.
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judicial statements espousing the necessity of meaningful legislative standards in support
of a delegation do not mean what they say. Instead, all that is required is a standard-- some
standard, any standard, a standard however illusory or meaningless or ineffectual in
achieving its obvious and fundamental purpose-- to transform a delegation of “legislative”
power into a delegation of “executive” power. And as a result, the only delegation that
will ever actually run afoul of the Constitution will be one in which there are “no standards
to guide the decision-maker’s discretion.” By this understanding, the Legislature may
dissipate and reconfigure its own constitutional authority through empty and standardless
delegations, and this Court will have no recourse but to affirm these delegations and
acquiesce in the transformation of our system of separated powers and checks and balances,
facilitating the dilution of perhaps the greatest constitutional barrier to abuse of public
power. We do not believe that such a proposition is supported by either federal or state
caselaw, and for good reason.24 Rather, we have explained that a statute must at least
24 It is questionable to assert that the United States Supreme Court has never invalidated a statute that included some standard. In Schechter Poultry Corp, the statute invalidated by the United States Supreme Court as violating the nondelegation doctrine arguably did include a standard: “fair competition.” See Schechter Poultry Corp, 295 US at 521-522. See also Whitman, 531 US at 474 (observing that in Schechter Poultry Corp, the Court invalidated a statute “which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring ‘fair competition’ ”); Clinton, 524 US at 486 (Breyer, J., dissenting) (“[Schechter Poultry Corp] involved a delegation through the National Industrial Recovery Act, 48 Stat. 195, that contained not simply a broad standard (‘fair competition’), but also the conferral of power on private parties to promulgate rules applying that standard to virtually all of American industry.”) (citations omitted). But tallying up the number of such cases is not the point and is mere distraction; we acknowledge that there are not a large number of such cases. See note 21 of this opinion. What is relevant, however, is this: (a) there is a constitutional test, articulated by both the United States Supreme Court and this Court, imposing limits
40

“contain[] sufficient limits or standards . . . .” Seaman, 396 Mich at 308 (emphasis added).
And the United States Supreme Court has used similar language as well. See, e.g.,
Mistretta, 488 US at 374 (“[W]e harbor no doubt that Congress’ delegation of authority to
the Sentencing Commission is sufficiently specific and detailed to meet constitutional
requirements.”) (emphasis added). It is a very real and meaningful demand upon this Court
that we ensure that delegations of authority are properly undertaken. As Justice Gorsuch
opined:
[Enforcing the separation of powers is] about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And [it is] about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law. So when a case or controversy comes within the judicial competence, the Constitution does not permit judges to look the other way; we must call foul when the constitutional lines are crossed. [Gundy, 588 US at ___; 139 S Ct at 2135 (Gorsuch, J., dissenting).]
Third, the Chief Justice also believes that this majority has “announced” a new
principle to the effect that the standards imposed upon the executive must become more
rigorous as the scope of the powers conferred becomes greater. Again, we disagree. As
already noted, the United States Supreme Court has stated that “the degree of agency
discretion that is acceptable varies according to the scope of the power . . . conferred.”
Whitman, 531 US at 475. It then explained that the standards imposed must be
upon excessive delegations of power; (b) that test has regularly been considered and applied by each of those Courts; (c) that test is predicated upon both the language and the logic of our federal and state Constitutions, see, e.g., US Const, art I, § 1; Const 1963, art 4, § 1; Const 1963, art 3, § 2; and (d) there is in the present dispute a delegation of power by the Legislature that is unparalleled in Michigan legal history. The critical question is this-- if the EPGA does not constitute an excessive delegation of power under our Constitution, what ever would?
41

“substantial” when the scope of the powers conferred is great: “While Congress need not provide any direction to the [Environmental Protection Agency] regarding the manner in which it is to define ‘country elevators,’ which are to be exempt from new-stationarysource regulations governing grain elevators, see 42 U.S.C. § 7411(i), it must provide substantial guidance on setting air standards that affect the entire national economy.” Id. Although we are obviously not bound by Whitman or the lower federal courts that have applied this same principle, see, e.g., People v Tanner, 496 Mich 199, 221; 853 NW2d 653 (2014), it is hardly novel for this Court, as suggested by the Chief Justice, to invoke federal judicial decisions, including those of the United States Supreme Court, for their persuasiveness.
Fourth, the Chief Justice disagrees with our conclusion that the EPGA includes only the words “reasonable” and “necessary” as defining the standards governing the Governor’s emergency orders. She states that “[t]he EPGA does not use ‘reasonable’ or ‘necessary’ in a vacuum; the Governor’s action must be ‘reasonable’ or ‘necessary’ to ‘protect life and property or to bring the emergency situation within the affected area under control.’ ” We respectfully disagree concerning the pertinent “standards” in the present analysis. Although we have already quoted from part of Justice Kagan’s explanation of a nondelegation analysis in her Gundy lead opinion, we do so again with more of the surrounding language:
[A] nondelegation inquiry always begins (and often almost ends) with statutory interpretation. The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee’s use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides. [Gundy, 588 US at ___; 139 S Ct at 2123 (opinion by Kagan, J.).]
42

Here, the “task” that the EPGA delegates to the Governor is to promulgate “orders, rules,
and regulations” to “protect life and property” and to “bring the emergency situation within
the affected area under control.” MCL 10.31(1). The “instructions,” i.e., the standards,
that the EPGA provides are that such “orders, rules, and regulations” be “reasonable” and
“necessary” for the enumerated tasks. Id. Thus, the only standards are that the Governor’s
orders be “reasonable” and “necessary.”
Fifth, to the extent the Chief Justice suggests our decision is inconsistent with the
cases of the United States Supreme Court sustaining various broad delegations, we
respectfully disagree and find the following sampling of cases illustrative and useful:
In New York Central Securities Corp v United States, 287 US 12; 53 S Ct 45; 77 L
Ed 138 (1932), the Interstate Commerce Commission (ICC) authorized a set of railroad-
system leases pursuant to the Interstate Commerce Act, which provided that the ICC may
authorize such leases when in the “public interest.” Id. at 19, 20 n 1. At issue before the
United States Supreme Court was whether the “public interest” standard constituted an
invalid delegation because it was “uncertain.” Id. at 24. The Court sustained the
delegation, reasoning as follows:
Appellant insists that the delegation of authority to the Commission is invalid because the stated criterion is uncertain. That criterion is the “public interest.” It is a mistaken assumption that this is a mere general reference to public welfare without any standard to guide determinations. The purpose of the Act, the requirements it imposes, and the context of the provision in question show the contrary. . . . [T]he term “public interest” as thus used is not a concept without ascertainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation facilities, questions to which the [ICC] has constantly addressed itself in the exercise of the authority conferred. [Id. at 24-25.]
43

Thus, the standard in New York Central Securities Corp was not simply “public interest” but also “adequacy of transportation service,” “essential conditions of economy and efficiency,” and “appropriate provision and best use of transportation facilities.”
In Fed Radio Comm v Nelson Bros Bond & Mortgage Co, 289 US 266; 53 S Ct 627; 77 L Ed 1166 (1933), the Court was confronted with a delegation challenge to the Radio Act of 1927, which provided that the Federal Radio Commission may allow radio frequency use by a particular entity “ ‘from time to time, as public convenience, interest, or necessity requires . . . .’ ” Id. at 279, quoting 47 USC 84. The Court rejected the challenge, reasoning that when 47 USC 84 was read in context, the standard was limited by several specific concerns:
In granting licenses the commission is required to act “as public convenience, interest or necessity requires.” This criterion is not to be interpreted as setting up a standard so indefinite as to confer an unlimited power. . . . The requirement is to be interpreted by its context, by the nature of radio transmission and reception, by the scope, character, and quality of services, and, where an equitable adjustment between states is in view, by the relative advantages in service which will be enjoyed by the public through the distribution of facilities. [Id. at 285.]
Thus, the standard in Fed Radio Comm was not simply “public convenience, interest, or necessity” but also “the nature of radio transmission and reception,” “the scope, character, and quality of services,” and in certain cases “the relative advantages in service which will be enjoyed by the public through the distribution of facilities.”
In Yakus v United States, 321 US 414; 64 S Ct 660; 88 L Ed 834 (1944), the United States Supreme Court considered a nondelegation challenge to § 2(a) of the Emergency Price Control Act, which authorized the “Price Administrator” to fix commodity prices at a level that “ ‘in his judgment will be generally fair and equitable and will effectuate the
44

purposes of this Act’ . . . .” Id. at 420, quoting § 2(a). In rejecting the challenge, the Court
explained:
The boundaries of the field of the Administrator’s permissible action are marked by the statute. It directs that the prices fixed shall effectuate the declared policy of the Act to stabilize commodity prices so as to prevent wartime inflation and its enumerated disruptive causes and effects. In addition the prices established must be fair and equitable, and in fixing them the Administrator is directed to give due consideration, so far as practicable, to prevailing prices during the designated base period, with prescribed administrative adjustments to compensate for enumerated disturbing factors affecting prices. In short the purposes of the Act specified in § 1 denote the objective to be sought by the Administrator in fixing prices—the prevention of inflation and its enumerated consequences. The standards set out in § 2 define the boundaries within which prices having that purpose must be fixed. It is enough to satisfy the statutory requirements that the Administrator finds that the prices fixed will tend to achieve that objective and will conform to those standards . . . . [Yakus, 321 US at 423.]
Thus, the standard in Yakus was not simply “fair and equitable” but also “prevailing prices
during the designated base period” and “administrative adjustments to compensate for
enumerated disturbing factors affecting prices.”
And in Whitman, the United States Supreme Court considered a nondelegation
challenge to § 109(b)(1) of the Clean Air Act (CAA), which “instructs the EPA to set
‘ambient air quality standards the attainment and maintenance of which in the judgment of
the Administrator, based on [the] criteria [documents of § 108] and allowing an adequate
margin of safety, are requisite to protect the public health.’ ” Whitman, 531 US at 472,
quoting 42 USC 7409(b)(1) (brackets in original). In addressing the challenge, the Court
first noted its agreement with the Solicitor General’s interpretation of § 109(b)(1):
We agree with the Solicitor General that the text of § 109(b)(1) of the CAA at a minimum requires that “[f]or a discrete set of pollutants and based on published air quality criteria that reflect the latest scientific knowledge,
45

[the] EPA must establish uniform national standards at a level that is requisite to protect public health from the adverse effects of the pollutant in the ambient air.” Requisite, in turn, “mean[s] sufficient, but not more than necessary.” [Id. at 473 (citations omitted; brackets in original).]
The Court then rejected the challenge:
Section 109(b)(1) of the CAA, which to repeat we interpret as requiring the EPA to set air quality standards at the level that is “requisite” that is, not lower or higher than is necessary—to protect the public health with an adequate margin of safety, fits comfortably within the scope of discretion permitted by our precedent. [Id. at 475-476.]
Thus, the standard in Whitman was not simply “requisite to protect the public health” but also included consideration of “a discrete set of pollutants” and “published air quality criteria that reflect the latest scientific knowledge.” See 42 USC 7408.
As these cases suggest, it reflects an incomplete understanding of United States Supreme Court nondelegation law to assert that vague terms such as “public interest” are ordinarily or typically sufficient to sustain a statute against a nondelegation challenge, even those statutes whose breadth and purview is far more narrow than that of the EPGA. Indeed, if the Chief Justice is correct that a statute only violates the nondelegation doctrine when “the statute[] contain[s] no standards to guide the decision-maker’s discretion,” why would the United States Supreme Court continually hear such appeals only to decide whether the standards in these cases are sufficient?
Sixth, in the end, if the standards in support of the EPGA’s delegation of power satisfy the Constitution, our response can only be: what standards would ever not satisfy the Constitution? As laid out earlier in this opinion, the EPGA confers an unprecedentedly broad power in Michigan that is restrained by only two words-- “reasonable” and “necessary”-- that do almost nothing to cabin either the authority or the discretion of the
46

person in whom this power has been vested. Put simply, and our criticism is not of the Governor in this regard but of the statute in dispute-- almost certainly, no individual in the history of this state has ever been vested with as much concentrated and standardless power to regulate the lives of our people, free of the inconvenience of having to act in accord with other accountable branches of government and free of any need to subject her decisions to the ordinary interplay of our system of separated powers and checks and balances, with even the ending date of this exercise of power reposing exclusively in her own judgment and discretion. It is in no way to diminish the present pandemic for this Court to assert, as we now do, that with respect to the most fundamental propositions of our system of constitutional governance, with respect to the public institutions that have most sustained our freedoms over the past 183 years, there must now be some rudimentary return to normalcy.
Finally, we observe in response to the Chief Justice that this decision should be understood as it has been explained throughout this opinion. It is not, we believe, a decision that does anything other than apply ordinary principles of administrative law, essentially balancing the required specificity of legislative standards that must accompany a grant of delegated powers with the breadth of those powers. What principally is extraordinary in this case is the scope of the statute under consideration, the EPGA, and the expansiveness of the authority it concentrates in a single public official. We do not believe that the conflation of circumstances giving definition to the delegated powers in this case-- the breadth of the delegation, the indefiniteness of the delegation, and the inadequacy of the standards limiting the delegation-- will soon come before this Court again. We have not sought here to redefine the constitutional relationship between the legislative and executive
47

branches but only to maintain that relationship as it has existed for as long as our state has been a part of this Union. Although singular assertions of governmental authority may sometimes be required in response to a public emergency-- and the present pandemic is clearly such an emergency-- the sheer magnitude of the authority in dispute, as well as its concentration in a single individual, simply cannot be sustained within our constitutional system of separated powers.
V. CONCLUSION We conclude that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government-- including its plenary police powers-- and to allow the exercise of such powers indefinitely. As a consequence, the EPGA cannot continue to provide a basis for the Governor to exercise emergency powers.25
Stephen J. Markman Brian K. Zahra David F. Viviano (as to Parts
III(A), (B), (C)(2), and IV) Elizabeth T. Clement
25 We note that majorities of this Court have joined in full Part III(B) of this opinion, in which we hold that the Governor lacked the authority to declare a “state of emergency” or a “state of disaster” under the EMA after April 30, 2020, and Part III(C)(2), in which we hold that the EPGA is unconstitutional. The former is a unanimous holding of this Court.
48

STATE OF MICHIGAN SUPREME COURT

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION ______________________________________
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs,
v
GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,
Defendants.

No. 161492 USDC-WD: 1:20-cv-414

VIVIANO, J. (concurring in part and dissenting in part). According to the Centers for Disease Control and Prevention, the severe acute
respiratory disease known as COVID-19 has been involved in the deaths of thousands of Michiganders and over 190,000 people nationwide.1 There is little doubt that COVID-19

1 See Centers for Disease Control and Prevention, Provisional Death Counts for

Coronavirus

Disease

2019

(COVID-19)

is one of the most significant public-health challenges our state has ever faced. To limit the spread of the disease, Governor Gretchen Whitmer has issued scores of executive orders regulating many of the daily activities of our state’s inhabitants. It is not the Court’s place here to adjudge the efficacy or reasonableness of those orders. Instead, we must determine whether they are lawful, i.e., whether the power the Governor has asserted in issuing those orders is validly claimed under the Constitution and laws of this state.
While the majority decides this case on constitutional grounds, I believe it is easily resolved by the correct interpretation of the statute at issue, the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq. Contrary to the majority, I would conclude that the EPGA does not allow for declarations of emergency to confront publichealth events like pandemics. In light of this conclusion, it would be unnecessary to decide the constitutional question of whether the EPGA violates the separation of powers. Yet, because the rest of the Court, both majority and dissent, have interpreted the statute much more broadly, I believe it is incumbent upon me to decide the constitutional issue as well. In doing so, I agree with the majority and join its analysis holding that the EPGA (under the majority’s construction) is an unconstitutional delegation of legislative power. I also agree with the majority that the Governor lacked authority to renew her declarations under the Emergency Management Act (the EMA), MCL 30.401 et seq. Accordingly, I join Parts III(A), (B), (C)(2), and IV of the majority opinion and concur in part and dissent in part.
<https://www.cdc.gov/nchs/nvss/vsrr/covid19/index.htm> (accessed October 1, 2020) [https://perma.cc/8HKP-SN6A].
2

I. THE EPGA: HISTORY, TEXT, AND CONTEXT
The EPGA’s history is a good place to begin because, in this case, it helps illuminate the statute’s meaning.2 In the summer of 1943, a little less than two years before the EPGA’s enactment, Detroit experienced a violent riot sparked by racial tensions. Thousands of soldiers entered the city, 34 individuals were killed, property damages amounted to $2 million, and countless injuries occurred. Capeci & Wilkerson, Layered Violence: The Detroit Rioters of 1943 (Jackson: University Press of Mississippi, 1991), pp 17-18. One of the most difficult problems officials faced was how to authorize the use of federal troops to control the rioting. See Shogan & Craig, The Detroit Race Riot: A Study in Violence (New York: Da Capo Press, 1976), pp 68-76. Although thousands of police officers had been deployed, officials believed that something more was needed. Id. at 70. In the midst of the crisis, Governor Harry Kelly was informed that martial law had to be declared in order to obtain federal assistance. Id. at 75-76. That would have required suspending all local and state laws in the city, depriving the city council and police departments of all authority, and suspending state-government operations in the area. Id.
Understandably, Governor Kelly was reluctant to take that step. Id. Instead, without relying on any apparent authority, he proclaimed a “ ‘state of emergency,’ ” authorizing the use of the “State Troops”—at that time, an “inexperienced” and “volunteer organization
2 It is true that we generally do not look to contemporaneous history when interpreting a statute unless its meaning is doubtful. See People v Hall, 391 Mich 175, 191; 215 NW2d 166 (1974). I believe the correct interpretation of the EPGA—that it does not encompass public health—is not doubtful. But given the significance of the issues at stake in this case, and that a majority of a Court of Appeals panel, the Court of Claims, and my colleagues here have all reached a different conclusion, it is worth examining whether the historical context supports or undermines my conclusion.
3

set up . . . to replace National Guard units called into federal service during” World War
II. Id. at 76-77, 79. In his proclamation, Governor Kelly also banned the sale of alcohol,
closed “[a]ll places of amusement,” established a curfew, and prohibited assembly and the
carrying of weapons. Kelly, Declaration and Proclamation (June 21, 1943), reprinted in
The Detroit Race Riot, pp 144-145. Later the same day, federal officials found a way to
offer assistance short of declaring martial law. The Detroit Race Riot, p 80. President
Franklin D. Roosevelt issued a presidential proclamation, and army troops moved in to
bring the situation under control. Id. at 80-82, 153-154.
When the EPGA was introduced and enacted in 1945, it was well known that the
legislation stemmed from the recent race riot and the perceived inability to order troops
without declaring martial law; indeed, when it was first introduced in the Legislature, it
was dubbed the “Anti-Riot Bill.”3 The text reflects this emphasis. The first section is the
most important for our purposes. Its first sentence describes when and how the statute may
be invoked:
During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of
3 See Senators Offer Anti-Riot Bill, Detroit Free Press (April 7, 1945), p 2 (“A bill to equip the Governor with authority to deal with rioting without declaring martial law was introduced in the Senate . . . . [Senator] Hittle said the bill was proposed by State Police Commissioner Oscar H. Olander and results from experience in the 1943 Detroit riot.”); see also Governor Gets Great Powers: Can Suppress Civil Disorders Quickly, The HeraldPress (May 26, 1945), p 2 (noting that the law gives “wide powers to suppress civil disorder without proclaiming martial law” and “was requested by state police as an aftermath of the Detroit race riots” due to their discovery that “there was no middle ground legally between minor laws forbidding unlawful assembly and the drastic ordering of martial law, suspending civil rights”); The Sebewaing Blade (May 4, 1945), p 2 (“This measure is designed to remedy a legal handicap which arose in the Detroit race riots two years ago . . . .”).
4

immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. [MCL 10.31(1) (emphasis added).]
The provision for proclaiming “a state of emergency” very clearly reflects Governor
Kelly’s declaration, which used the same term (albeit without any statutory authorization
to do so).
The second two sentences pertain to the scope of the Governor’s authority to address
an emergency situation once an emergency has been declared:
After making the proclamation or declaration, 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. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety. [Id.]
The list of possible emergency orders comes, in large part, from the 1943 proclamation.
Both speak of controlling “places of amusement” and “assembly,” and both contain
provisions for curfews and prohibitions on the “sale . . . of alcoholic beverages.” And as
originally passed, the EPGA also allowed the Governor “control of the possession, sale,
carrying and use of firearms [and] other dangerous weapons,” 1945 PA 302(1), repealed
by 2006 PA 546, just as the proclamation had prohibited the carrying of “arms or weapons
of any description,” Kelly, Declaration and Proclamation (June 21, 1943), reprinted in The
5

Detroit Race Riot, p 145. Thus, the very structure of the act and its key terms largely reflect the 1943 proclamation.
The second section also describes the powers the Governor wields once an emergency has been declared, but as the Governor’s counsel conceded at argument, this section does not address or expand the types of situations that qualify as emergencies:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose. [MCL 10.32 (emphasis added).]
The final section makes it a misdemeanor to violate rules or orders prescribed pursuant to the statute. MCL 10.33.
The dispositive issue here is whether this statute applies in the sphere of public health generally or to an epidemic like COVID-19 in particular. The statute provides a list of events—for example, disaster, rioting, and catastrophe—justifying a declaration of emergency. MCL 10.31(1). But tacked to the end of the list is the stipulation that the Governor may take such action only “when public safety is imperiled.” The Attorney General in this case has correctly recognized that it modifies the entire series that precedes it. See generally Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), p 147 (straightforward, parallel constructions of nouns in a series are normally all modified by postpositive modifiers). In other words, not just any catastrophe will do; it must be one that imperils “public safety.”
The Governor reads “public safety” expansively to encompass “public health.” She does not provide a source defining this exact term, however. By itself, the ordinary
6

meaning of “safety” at the time the EPGA was enacted in 1945 might lend some support to the Governor’s reading. The dictionary she cites defined safety as the “[c]ondition of being safe; freedom from danger or hazard.” Webster’s New Collegiate Dictionary (1949). “Safety” could, therefore, cover health issues.4 But, as we shall see below, four justices from this Court read the same lay dictionary definition (from an earlier edition) as excluding health considerations. Chicago & N W R Co v Pub Utilities Comm, 233 Mich 676, 696; 208 NW 62 (1926) (opinion by SHARPE, J.). Moreover, we are looking for the meaning of “public safety.” None of the everyday dictionaries defines that term. Nor do the legal dictionaries from the period. See, e.g., Black’s Law Dictionary (4th ed).
The statutory context makes clear that the EPGA uses “public safety” as a term of art with a narrower meaning than the one the Governor posits. Recall that MCL 10.32 gives the Governor “sufficiently broad power of action in the exercise of the police power of the state . . . .” (Emphasis added.) As we have explained, “It has been long recognized that the state, pursuant to its inherent police power, may enact regulations to promote the public health, safety, and welfare.” Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d 1 (1985); see also Osborn v Charlevoix Circuit Judge, 114 Mich 655, 664; 72 NW 982 (1897) (same). In other words, “public safety” was one of the objectives for which the police power could be exercised; so was “public health.” See Legarre, The Historical Background of the Police Power, 9 U Pa J Const L 745, 791 (2007) (noting caselaw standing for the proposition “that the state’s police power existed only for certain limited objectives, namely, the promotion of public health, safety, and morals”).
4 The last entry in Webster’s definition for “safety” characterized it as “[a] keeping of oneself or others safe, esp. from danger of accident or disease.” Id.
7

Thus, when terms from the police-power context like “public safety” crop up in statutes, as they frequently do, courts treat them as terms of art. Cf. Lincoln Ctr v Farmway Co-Op, Inc, 298 Kan 540, 552; 316 P3d 707 (2013) (noting that the meaning of the terms “public health” and “public safety” is “widely understood in legal circles”); CLEAN v Washington, 130 Wash 2d 782, 804; 928 P2d 1054 (1996) (en banc) (noting that the “terms ‘public peace, health or safety’ ” are “synonymous with an exercise of the State’s ‘police power’ ”). In light of the lengthy history and pervasive use of the terms “police power” and “public safety,” the Legislature’s intent in employing them in the EPGA is unmistakable. By invoking “public safety” and placing it alongside “police power,” the Legislature incorporated the specialized legal meanings of these terms.
Another contextual clue supports this conclusion. If the term “public safety” is given the ordinary meaning offered by the Governor and embraced by the majority, it would render as surplusage the phrase “when public safety is imperiled.” Courts, however, strive to avoid interpretations that read statutes as containing terms that are surplusage or nugatory. People v Pinkney, 501 Mich 259, 282; 912 NW2d 535 (2018). As noted, the full phrase—“when public safety is imperiled”—modifies the entire preceding list of triggering events (i.e., “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state”). The term “public” already precedes and modifies this list, so interpreting it under its ordinary meaning in the phrase “public safety” inevitably leads to surplusage. And by defining “safety” broadly as “ ‘the condition of being safe from undergoing or causing hurt, injury, or loss,’ ” the majority also fails to give it any real meaning. It is hard to imagine a “great . . . crisis, disaster, riot[], catastrophe, or similar public emergency” that does not risk “causing hurt, injury, or loss” to “people in general.”
8

Thus, ignoring context and reading “public safety” as a term of ordinary meaning renders it nugatory by giving it no meaning at all.
So our task is to decide whether “public safety,” as a term of art related to the “police power,” includes public-health issues like epidemics.
II. THE DISTINCTION BETWEEN PUBLIC SAFETY AND PUBLIC HEALTH
A. CASELAW The distinction between “public safety” and “public health” is borne out in caselaw from this Court and others.5 Most directly, in 1931 this Court defined public safety as it was used in a constitutional provision allowing laws to take immediate effect if necessary “ ‘for the preservation of the public peace, health or safety,’ ” i.e., if they invoked the police power. Naudzius v Lahr, 253 Mich 216, 227; 234 NW 581 (1931) (citation omitted). Our core interpretation suggests that public health is not within the scope of “public safety”: “ ‘Laws in regard to “public safety” are allied in their application and effect to those enacted to promote the public peace, preserve order, and provide that security to the individual which comes from an observance of law.’ ” Id. at 228, quoting Pollock v Becker,
5 The distinction stretches at least as far back as Lord Blackstone, who distinguished offenses against the “public peace” (e.g., murder, public fighting, and destruction of public property) and offenses against “public health,” which involved communicable diseases. 4 Blackstone, Commentaries on the Laws of England, pp **142-149, 161. Blackstone’s contemporary, Jeremy Bentham, similarly carved up the police powers “into eight distinct branches,” including “the prevention of offences,” “the prevention of calamities,” and “the prevention of endemic diseases.” Bentham, A General View of a Complete Code of Laws, in 3 Bentham, The Works of Jeremy Bentham (Bowring ed, 1843), p 169 (emphasis added).
9

289 Mo 660; 233 SW 641, 649 (1921) (en banc). This definition of “public safety” matches others from both that period and now.6
Our adoption of Pollock’s definition is particularly meaningful because Pollock was interpreting a similar constitutional provision and went on to define each of the terms in that provision. “Public peace,” according to Pollock, was “that quiet, order and freedom from disturbance guaranteed by law.” Pollock, 233 SW at 649. “By the ‘public health,’ ” the court explained, “is meant the wholesome sanitary condition of the community at large.” Id.
We had also acknowledged the distinctions earlier in Newberry v Starr, 247 Mich 404; 225 NW 885 (1929). Examining the same constitutional provision, we answered whether an act creating school districts could be given immediate effect because it bore “any real or substantial relation to preservation of public health, peace, or safety[.]” Id. at 411. We treated these as three separate categories, noting that “school districts have most important duties relating to preservation of health,” during such epidemics, “and less important duties respecting peace and safety,” including building safety and the safety of students in attendance. Id.
We again addressed the distinction in Chicago, 233 Mich at 699 (opinion by SHARPE, J.). There, a state law requiring cab curtains for the health of railroad employees
6 See Graves, American State Government (Boston: DC Heath & Co, 3d ed, 1946), p 784 (stating that public safety included laws on criminal control, protection of life and property, industrial safety, fireworks, firearms, building codes, and motor vehicles); 16A CJS, Constitutional Law (June 2020 update), § 707 (stating that public-safety laws concern “dangerous persons, restraining dangerous practices, and prohibiting dangerous structures”) (citations omitted).
10

was challenged as conflicting with federal railroad legislation that expressly stated its
purpose was safety. Justice SHARPE, writing for four justices on a Court of eight,
explained:
In my opinion, the words “health” and “safety,” as used in these acts, are not synonymous terms. “Health” is defined by Webster as “The state of being hale, sound, or whole, in body, mind, or soul; especially, the state of being free from physical disease or pain,” and “safety” as “freedom from danger or hazard; exemption from hurt, injury, or loss.” While some of the safety provisions of the federal acts may tend to protect the health of the employees, such protection is but incidental to the main purpose, that of safeguarding the lives and limbs of the employees and protecting th[at] which is being transported, be it passengers or freight. [Id. at 696.][7]
Thus, four justices rejected the conflation of safety and health, using an earlier version of
the same dictionary the Governor cites here. The other four justices did not reject this
argument but instead thought the federal legislation “covered ‘the entire locomotive and
tender and all their parts’ . . . .” Id. at 689.8
And the distinction has persisted in more recent cases from our sister state courts as
well. In Olivette v St Louis Co, 507 SW3d 637, 638, 645-646 (Mo App, 2017), the court
7 That conclusion reflected the majority position of the Wisconsin Supreme Court in Chicago & N W R Co v R Comm of Wisconsin, 188 Wis 232; 205 NW 932, 934 (1925) (“[T]he public health and the public safety afford two distinct fields of legislation. It is true that to some extent regulations promoting public safety also promote public health, but that fact alone cannot make a health regulation of a regulation distinctly in the interest of safety.”), rev’d on other grounds by Napier v Atlantic Coast Line R Co, 272 US 605 (1926).
8 That was also the conclusion of the United States Supreme Court when it decided the issue in Napier v Atlantic Coast Line R Co, 272 US 605; 47 S Ct 207; 71 L Ed 432 (1926). Again, the distinction drawn between health and safety was not rejected, however. The Court merely observed that regulations for health or comfort may incidentally promote safety. Id. at 611-612.
11

rejected a county’s effort to ground an ordinance establishing minimum police-force standards on a 1945 statute allowing it to promulgate rules to promote the “ ‘public health’ ” and prevent contagious diseases. Id. at 642 (citation omitted). In doing so, the court declined to adopt a broad definition of “public health,” noting that the legislature had created “different departments to address ‘public safety’ and ‘public health,’ ” indicating that “it considers these two different and distinct areas of government authority.” Id. at 645. In addition, the Legislature had enacted numerous statutes distinguishing the terms, “such as in the phrase ‘public health, safety and welfare[.]’ ” Id.; see also Winterfield v Palm Beach, 455 So 2d 359, 361 (Fla, 1984) (“At the very least, the public safety purpose of the police and fire projects is separate and distinct from the public health purpose of the sewer projects.”).
B. STATUTORY CONTEXT The statutory structure in place when the Legislature enacted the EPGA also confirms the distinct meanings of “public safety” and “public health” and demonstrates that the Legislature did not mean to conflate the two concepts in the EPGA. As far back as 1873, the Legislature had created the State Board of Health (the Board), which was given “general supervision of the interests of the health and life of the citizens of this State.” 1873 PA 81, § 2.9 The Board was to “make sanitary investigations and inquiries respecting the causes of disease, and especially of epidemics[.]” Id. Around
9 Even further back, our earliest statutes devoted a separate statutory title to “Public Health” (providing for local boards of health and quarantines, among other things), as distinct from the title dealing with the “Internal Police of the State” (providing for the regulation of disorderly persons, taverns, and “the law of the road,” among other things). See 1838 RS, Part 1, Titles VIII and IX.
12

the same time, the Legislature enacted a framework for localities to address contagious diseases, once again under the rubric of “health” rather than “safety.” In 1883, the Legislature authorized municipal health officers to investigate any outbreaks of “communicable disease dangerous to the public health” and order isolation of the sick, require vaccinations, and mandate other sanitary measures to combat the disease. 1883 PA 137, § 1. Violations of the health officer’s orders was a finable offense. 1883 PA 137, § 2. Ten years later, the Legislature granted similar powers to the State Board of Health, allowing it to isolate individuals suspected of having communicable diseases—the Governor’s only role was to draw money from the general fund for the Board’s use. 1893 PA 47.
The statutory structure in place in 1945 took shape in the wake of the influenza epidemic of 1918. In the midst of that epidemic, Governor Albert Sleeper banned by order various public meetings. State Closing is “Flu” Order, Lansing State Journal (October 19, 1918), p 1. The order did not cite any authority allowing the Governor to take such action, but the closures lasted only a few weeks. Id. (reprinting order); Governor Lifts “Flu” Ban, The Sebewaing Blade (November 7, 1918), p 1. Perhaps in response, just months after the ban, the Legislature overhauled the statutory framework for addressing statewide epidemics and public health more generally. In an act “to protect the public health,” the Legislature replaced the State Board of Health with a State Health Commissioner, who was given authority over the health laws as well as public meetings. 1919 PA 146, §§ 1, 2, and 9.
13

As things stood in 1945, the Commissioner had “general charge and supervision of
the enforcement of the health laws” of the state. 1948 CL 325.2.10 And there was a lot to
supervise—the health code stretched over multiple chapters and sections, involving
statistics, local health boards, handling of dead bodies, mental diseases, hospitals, and
communicable diseases, among others. One of the first provisions in the code came from
1919 PA 146, § 9—the section of the act addressing public meetings:
In case of an epidemic of any infectious or dangerous communicable disease within this state or any community thereof, the state health commissioner may, if he deem it necessary to protect the public health, forbid the holding of public meetings of any nature whatsoever except church services which may be restricted as to number in attendance at 1 time, in said community, or may limit the right to hold such meetings in his discretion. Such action shall not be taken, however, without the consent and approval of the advisory council of health. . . . Such order shall be signed by the health commissioner and if applicable to the entire state be countersigned by the governor. [1948 CL 325.9]
An entire chapter of the code contained detailed provisions applicable to
communicable diseases. Upon finding that, among other things, a “dangerous
communicable disease” existed inside or outside the state “whereby the public health is
imperiled,” the State Health Commissioner was “authorized to establish a system of
quarantine for the state of Michigan and the governor shall have authority to order the state
militia to any section of the state on request of the state board of health to enforce such
quarantine.” 1948 CL 329.1. The purpose of the quarantine was to prevent travel within
the state and detain individuals exposed to the disease. 1948 CL 329.2. Railroad cars and
“public or private conveyances” could also be detained under rules produced by the
10 Although the citations are to the 1948 compiled laws, all statutes cited appeared the same in 1945.
14

Commissioner if they contained persons or property carrying the infection, which could then be isolated. 1948 CL 329.3. Violation of the Commissioner’s rules was a misdemeanor. 1948 CL 329.6.
Local health boards also played a large role in the response to epidemics. Most directly, local health boards had authority to quarantine those “infected with a dangerous communicable disease.” 1948 CL 327.15; see also 1948 CL 327.27 and 1948 CL 327.28 (allowing townships to set up quarantine grounds and establish joint quarantine areas); 1948 CL 327.29 (permitting the township board of health to quarantine vessels). Localities bordering other states could examine any travelers from “infected places in other states” for “any infection which may be dangerous to the public health” and restrain their entry if necessary. 1948 CL 327.17. Localities could also establish hospitals specifically for dealing with any “disease which may be dangerous to the public health.” 1948 CL 327.35.11 During outbreaks, the township board of health had to “immediately provide such hospital[s]” or places for the infected and had to remove infected individuals to that place. 1948 CL 327.39; 1948 CL 327.40. Boards of health had a general duty to “use all possible care to prevent the spreading of the infection . . . .” 1948 CL 327.41. Many other statutes mentioned both “health” and “safety,” indicating that these terms had different meanings—if they meant the same thing, the Legislature would not likely have used each term. See, e.g., 1948 CL 42.17 (providing that charter townships had the same authority
11 See also 1948 CL 327.49 (applying township standards to cities and villages); 1948 CL 331.202 (authorizing certain counties to build and maintain “a hospital for the treatment of persons suffering from contagious and infectious diseases”); 1948 CL 67.52 (authorizing village councils to provide for a hospital for persons with infectious or contagious diseases and authorizing the council to order detention and treatment of those individuals).
15

as cities “to provide for the public peace and health and for the safety of persons and
property”).
Other provisions, both in the health code and elsewhere, constructed elaborate rules
on how epidemics were to be handled, spanning from the appointment of state medical
officials to specific instructions for railroads and summer resorts to criminal penalties for
spreading communicable diseases.12
An entirely different batch of statutes addressed public safety.13 Just as it had
announced when it was legislating for “public health,” the Legislature did so with “public
12 See, e.g., 1948 CL 329.4 and 1948 CL 329.5 (disinfection of persons and property); 1948 CL 329.51 (appointment of a state medical inspector); 1948 CL 325.23 (creating a state bacteriology position tasked with examining and analyzing materials “in localities where there is an outbreak of any contagious disease or epidemic” if the examination or analysis was “necessary to the public health and welfare”); 1948 CL 327.43 (providing duties with regard to any “disease dangerous to the public health” in boarding houses and hotels); 1948 CL 327.44 (obligating physicians to report any cases of diseases “dangerous to the public health”); 1948 CL 125.485 (allowing an officer of the health department to order that a dwelling be vacated if it was “infected with contagious disease”); 1948 CL 462.5(a) (prohibiting railroads from offering free transportation except in limited circumstances, including offering free passage “with the object of providing relief in cases of general epidemic, pestilence or otherwise calamitous visitation”); 1948 CL 455.212 (allowing the board of summer resorts to enact bylaws “to protect all occupants from contagious diseases and to remove from said lands any and all persons afflicted with contagious diseases”); 1948 CL 750.473 (“No person sick with . . . any other communicable disease, dangerous to the public health, and no article which has been infected or is liable to propagate or convey any such disease, shall come or be brought into any township, city or village in Michigan . . . .”); 1948 CL 125.757d (requiring owners of trailer-coach parks to report to a board of health any person suspected of having a “communicable disease”).
13 It is true that a few health statutes mentioned “safety” or “public safety.” For example, the statute allowing local boards of health to quarantine individuals with diseases gave the boards the power to “make effectual provision in the manner in which it shall judge best for the safety of the inhabitants and it may remove such sick or infected person to a separate house or hospital . . . .” 1948 CL 327.15. But it seems likely that the Legislature invoked safety because these statutes involved removing individuals. That would explain why the
16

safety.” The title to the 1935 legislation creating the state police began, “An Act to provide
for the public safety[.]” 1935 PA 59, title. In creating the state police, the Legislature
transferred to it the “department of public safety” and made the state police commissioner
the state’s deputy oil inspector and fire marshal. 1948 CL 28.5; 1948 CL 28.13 (“Whenever
reference is made in any law to the ‘commissioner of public safety’ or to the ‘department
of public safety’ such reference shall be construed to mean, respectively, the commissioner
of the Michigan state police and department of Michigan state police . . . .”). In other
words, the state had a separate department assigned to “public safety,” and it fell within
the state police force’s purview. None of the relevant statutes regarding that department
or the police force referred to epidemics or communicable diseases.14 Rather, the police
were assigned to enforce the criminal laws. 1948 CL 28.6. Other matters also fell within
the concept of public safety, such as highway traffic regulation. In 1941, the Legislature
Legislature provided for justices of the peace to make out warrants directing law enforcement to conduct the removals. 1948 CL 327.18. Other courts have made this connection. See Haverty v Bass, 66 Me 71, 73 (1874) (“[The statute] enables [officials charged with enforcing the statute] to command the services of others. It might be difficult to obtain the necessary assistance, in an undertaking so hazardous to health. But, by means of a warrant, they can compel executive officers to act. They can remove a sick person without the aid of a warrant, or they can use that instrumentality to enforce obedience to their commands, if a resort to such means of assistance becomes necessary.”). For this reason, the cases cited by the majority that addressed statutes referring to both health and safety—Jacobson v Massachusetts, 197 US 11, 37; 25 S Ct 358; 49 L Ed 643 (1905); People ex rel Hill v Lansing Bd of Ed, 224 Mich 388, 391; 195 NW 95 (1923)—are distinguishable.
14 Some statutes regulating the police mentioned “public health.” The title to one such act for inspection of kerosene and petroleum products referred to “the protection of public health and safety[.]” 1939 PA 114, title. Of course, an explosive substance poses a safety risk unlike an epidemic, and thus it makes sense that it would fall under the purview of the police.
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created the “Michigan state safety commission” for the express purpose of “promot[ing] . . . greater safety on the public highways and other places within the state . . . .” 1941 PA 188, title.
This was the state of the law in 1945 when the Legislature passed the EPGA. These statutes, like the caselaw, support the conclusion that “public health” and “public safety” represented distinct legal concepts. The statutory context does more than that, however. Reading the EPGA in light of this context also demonstrates how improbable it is that the Legislature meant to depart from the historical understanding of “public safety” by expanding the concept to include “public health” emergencies.
In general, we interpret statutes in the manner “most compatible with the surrounding body of law into which the provision must be integrated[.]” Green v Bock Laundry Machine Co, 490 US 504, 528; 109 S Ct 1981; 104 L Ed 2d 557 (1989) (Scalia, J., concurring). The statutory terms and phrases a court interprets are not only part of a whole statute but more broadly are “part of an entire corpus juris. So, if possible, it should no more be interpreted to clash with the rest of that corpus than it should be interpreted to clash with other provisions of the same law.” Reading Law, p 252. One way we do so is by adhering to the “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.” Kungys v United States, 485 US 759, 778; 108 S Ct 1537; 99 L Ed 2d 839 (1988) (plurality opinion by Scalia, J.); see also Grimes v Dep’t of Transp, 475 Mich 72, 89-90; 715 NW2d 275 (2006) (courts avoid interpretations that render text surplusage). “If possible, every word and every provision is to be given effect . . . . None should needlessly be given an interpretation that causes it to duplicate another provision . . . .” Reading Law, p 174. In a like manner, when a statute specifically
18

addresses a topic, that statute will control over a more general statute that might otherwise apply. See TOMRA of North America, Inc v Dep’t of Treasury, ___ Mich ___, ___; ___ NW2d ___ (2020) (Docket Nos. 158333 and 158335); slip op at 13-14.
The Governor’s broad reading of the EPGA does not comport with these longstanding interpretive principles. For her to be correct, we would have to assume that the Legislature in 1945 meant to lay waste to the extensive statutory provisions specifically addressing epidemics and communicable diseases. Under her reading, this body of statutory law would have been mere surplusage. An epidemic would constitute a “public safety” event justifying a state of emergency. At that point, the actual “public health” statutes would have been totally eclipsed by a statute that, on its face, does not even refer to public health or epidemics. The powerful but limited tools given to the Governor and the State Health Commissioner under the health code would have been superfluous—the Governor, applying the EPGA, could have fashioned any tools she thought fit and transgressed any limitations prescribed by the health code.
The same problem arises in the statutory context today. When the meaning of a term is questionable, as “public safety” might be thought of here, courts should “construe it to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law.” West Virginia Univ Hosps, Inc v Casey, 499 US 83, 100; 111 S Ct 1138; 113 L Ed 2d 68 (1991). This is “because it is our role to make sense rather than nonsense out of the corpus juris.” Id. at 101.
19

The Governor’s interpretation makes nonsense out of the current body of statutes.
Many laws similar to those above remain on the books.15 Most notably, the 1919 law
passed in the wake of the influenza epidemic and Governor Sleeper’s actions is still the
law, albeit in slightly modified form. See MCL 333.2253 (allowing the director of the
health department to “prohibit the gathering of people for any purpose and [to] establish
procedures to be followed during the epidemic to insure continuation of essential public
health services and enforcement of health laws”). But this law is redundant alongside the
EPGA. As if to prove this, the Director of the Department of Health and Human Services
(DHHS) has issued a series of orders under MCL 333.2253 simply “reinforcing” key
executive orders on COVID-19, such as those mandating masks and instituting the Safe
Start Program, which itself contains the Governor’s overarching regulatory response to
COVID-19 (e.g., remote-work requirements, public-accommodation restrictions, and
prohibitions on large gatherings). Emergency Order Under MCL 333.2253 – Regarding
Executive Orders 2020-153, 2020-160, and 2020-161, order of the Director of the DHHS,
15 See, e.g., MCL 333.2221(1) (charging the Department of Public Health with the responsibility to “continually and diligently endeavor to prevent disease”); see also MCL 333.2221(2)(a) and (d) (giving the department “general supervision of the interests of the health and life of the people of this state” and making it responsible for investigating “[t]he causes of disease and especially of epidemics”); MCL 333.5115 (the department must establish standards for “the discovery and care of an individual having or suspected of having a communicable disease or a serious communicable disease or infection”); MCL 333.5203(1) (the department must issue warnings to individuals with communicable diseases deemed to be “health threat[s] to others”); MCL 333.5205 (those warnings can be enforced in court); MCL 333.5207 (the individuals can be temporarily detained, tested, and treated); MCL 333.9621 (allowing local health departments, state institutions, and physicians to require microbiological examinations in locations “where there is an outbreak of a communicable disease or epidemic requiring the examination or analysis to protect the public health”); MCL 331.202 (allowing counties with a certain population to construct and maintain hospitals for individuals with “contagious and infectious diseases”).
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entered July 29, 2020 (“reinforcing” EOs 2020-153, 2020-160, and 2020-161). In other words, nearly everything the Governor has done under the EPGA, she has also purported to do, via the DHHS Director, under MCL 333.2253.
The contextual clues within the EPGA all lead to the same conclusion. To begin with, nowhere does the EPGA refer to terms or tools traditionally associated with publichealth emergencies. This stands in stark contrast to the provisions from the 1945 health code discussed above. Those statutes referred to quarantines, removal of the sick, and medical treatment—the common responses to epidemics for centuries. See Zuckerman, Plague and Contagionism in Eighteenth-Century England: The Role of Richard Mead, 78 Bull Hist Med 273, 287-289 (2004); Link, Public Health History: Toward a New Synthesis, 19 Reviews Am Hist 528, 529 (1991) (book review).
Instead, what we find in the EPGA are terms suggesting safety concerns of the sort law-enforcement agencies have a duty to confront. Consider the nonexhaustive list of example orders the Governor can issue controlling matters such as traffic, places of amusement, alcoholic beverages, and explosives. These all appear to anticipate events like riots, in which the behavior of the public is what poses the safety risk. None of the examples relates to contagious diseases or epidemics. The references to designated “area[s]” and “specific zones” also suggest a focus on safety issues like civil disturbances. Although the statute does not expressly or impliedly limit the geographic scope of the emergency, it was evidently crafted with local emergencies in mind. That focus is also evident in the provision allowing city mayors and county sheriffs to seek emergency declarations. The accommodation for localities seems designed for civil disturbances and the like, not epidemics that could easily spread from place to place across the state. Read
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as part of the larger statutory context, then, the EPGA suggests a focus on public safety rather than public health.
C. PRACTICAL CONSTRUCTION OF THE EPGA Another relevant interpretive consideration is how governors have used and construed the EPGA in the past. See Westbrook v Miller, 56 Mich 148, 151-152; 22 NW 256 (1885) (noting that “great deference is always” owed to an executive’s practical construction of a statute it enforces); 2B Singer, Sutherland Statutory Construction (7th ed, October 2019 update), § 49:3 (noting that “long-continued contemporaneous and practical interpretation of a statute by executive officers . . . is an invaluable aid to construction” and “is closely related to the doctrine that statutes are given their common and ordinary meaning”). In this regard, although “public health” was mentioned in past emergency declarations and orders under the EPGA, none ever involved public-health emergencies.16 Rather, prior to the adoption of the EMA in 1976, in the handful of times it was invoked, governors had employed the EPGA for events like riots, energy shortages, and violent strikes or protests. See, e.g., Executive Order No. 1967-3 (riots). Since the passage of the EMA in 1976, the EPGA has been mostly dormant. The only executive order expressly
16 It has been observed that Governor William Milliken ostensibly used the EPGA in 1970 to ban fishing in Lake St. Clair and the St. Clair River due to pollution concerns; two weeks after issuing that order, he issued a similar order banning commercial walleye fishing on Lake Erie. See Van Beek, A History of Michigan’s Controversial 1945 Emergency Powers Law (August 31, 2020), p 3. But even assuming that this falls within the realm of “public health,” Governor Milliken’s orders did not cite the EPGA or declare an emergency. Executive Order No. 1970-6; Executive Order No. 1970-7.
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citing the EPGA in the past 50 years was in response to an oil spill—but the EMA was also
invoked. Executive Order No. 2010-7. That is it.
This limited, practical use of the EPGA was perhaps a result of Governor Milliken’s
belief, expressed in his “Special Message to the Legislature on Natural Disasters,” that the
statute was “pertinent to civil disturbances . . . .” 1973 House Journal 861 (No. 41, April
11, 1973). Whatever the reason for its limited use, the Governor’s current application of
the statute to cover public-health emergencies is unprecedented.17 Thus, an examination
of the statute’s prior uses also supports the narrower interpretation given above.
17 Not only is the Governor’s use of the statute unprecedented in Michigan, it is unique across the entire country. The statutory authority invoked in the COVID-19 emergency declarations by nearly every other state governor explicitly contemplates public-health emergencies. See Ala Code 31-9-1 and Ala Code 31-9-3(4); Alas Stat 26.23.020(i); Ariz Rev Stat Ann 26-301(15), Ariz Rev State Ann 26-303(D) and Ariz Rev Stat Ann 36-787; Ark Code Ann 12-75-102 and Ark Code Ann 20-7-110; Cal Gov Code 8558; Colo Rev Stat 24-33.5-704.5; Conn Gen Stat 19a-131a; Del Code Ann, tit 20, §§ 3102(2) and 3132(11); Fla Stat 381.00315; Ga Code Ann 38-3-51(a); Hawaii Rev Stat 127A-2; Idaho Code 46-1002 and Idaho Code 46-1007; Ill Comp Stat, ch 20, 3305/4; Ind Code 10-14-312 and Ind Code 10-14-3-1; Iowa Code 29C.6(1); Kan Stat Ann 48-904; Ky Rev Stat Ann 39A.020(12); La Stat Ann 29:762; Me Stat, tit 37-B, § 703 and Me Stat, tit 22, § 801(4-A); Md Code Ann, Pub Safety, 14-101(c); Mass Gen Laws, ch 17, § 2A; Minn Stat 4.035(2); Miss Code Ann 33-15-5(g); Mont Code Ann 10-3-103(4); NJ Stat Ann 26:13-2; NM Stat Ann 12-10A-3 and NM Stat Ann 12-10-4(B); NY Exec Law 20 (McKinney); NC Gen Stat 166A-19.3(6); ND Cent Code 37-17.1-04; Ohio Rev Code Ann 5502.21; Okla Stat, tit 63, §§ 683.2(A) and 683.3; Or Rev Stat 401.025; Pa Cons Stat, tit 35, § 7102; RI Gen Laws, tit 30, § 30-15-3; SC Code Ann 25-1-440 and SC Code Ann 44-4-130; SD Codified Laws 34-48A-1; Tenn Code Ann 58-2-102; Tex Gov’t Code Ann 418.014; Utah Code Ann 532a-202(1); Vt Stat Ann, tit 20, § 1(a); Va Code Ann 44-146.14(a) and Va Code Ann 44146.16; Wash Rev Code 38.52.010 and Wash Rev Code 38.52.020(1); W Va Code 15-51; Wis Stat 323.10; Wy Stat Ann 19-13-103(a) and Wy Stat Ann 35-4-115(a)(i); see also Nev Rev Stat 414.0335 and Nev Rev Stat 414.0345 (the governor did not cite specific statutes in the COVID-19 declaration of emergency but instead broadly invoked the “laws” of the state—these statutes allow emergency declarations for public-health events).
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III. CONSTITUTIONAL DOUBT
If, after all this, I had any lingering doubts about the meaning of the statute, then, as
plaintiffs point out, I would still be forced to choose the narrower interpretation. That is
because it avoids the grave constitutional questions raised by the Governor’s exceedingly
broad reading of the statute. “ ‘When the validity of an act . . . is drawn in question, and
even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court
will first ascertain whether a construction of the statute is fairly possible by which the
question may be avoided.’ ” Workman v Detroit Auto Inter-Ins Exch, 404 Mich 477, 508;
274 NW2d 373 (1979), quoting Ashwander v Tennessee Valley Auth, 297 US 288, 348; 56
S Ct 466; 80 L Ed 688 (1936). This principle, known as the constitutional-doubt canon,
“rests on the reasonable presumption that Congress did not intend the alternative which
raises serious constitutional doubts.” Clark v Martinez, 543 US 371, 381; 125 S Ct 716;
160 L Ed 2d 734 (2005).18
In the remaining few states, the respective governors have invoked statutes that at least arguably define emergencies or disasters with enough breadth to cover public health. See Neb Rev Stat 81-829.39(2) and (3) (defining “emergency” and “disaster” to mean, in relevant part, “any event or the imminent threat thereof causing serious damage, injury, or loss of life or property resulting from any natural or manmade cause”); Mo Rev Stat 44.010 (defining emergencies to include natural disasters that affect the “safety and welfare” of the residents, including things like bioterrorism); NH Stat 21-P:35(VIII) (defining “state of emergency” as a “condition, situation, or set of circumstances deemed to be so extremely hazardous or dangerous to life or property that it is necessary and essential to invoke, require, or utilize extraordinary measures, actions, and procedures to lessen or mitigate possible harm”).
18 This rule of interpretation is often invoked alongside a separate rule of judicial procedure: the rule of constitutional avoidance. See Reading Law, p 251. The latter rule is also deeply rooted in our constitutional jurisprudence. See Powell v Eldred, 39 Mich 552, 553 (1878) (“It is a cardinal principle with courts not to pass upon the constitutionality of acts of the Legislature, unless where necessary to a determination of the case.”). Courts should be
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Here, plaintiffs claim that the statute, under the Governor’s interpretation, would
violate the separation of powers by improperly delegating legislative authority and by
failing to articulate standards to guide the Governor’s exercise of the statutory power. Our
Constitution divides the powers of government among the three branches and states that
“[n]o person exercising powers of one branch shall exercise powers properly belonging to
another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2.
As I explain below, I believe that if the Governor’s and the majority’s interpretation
is correct, then the EPGA is in trouble. The spin the Governor and the majority give the
statute allows her to wield staggering powers across the entire terrain of our lives and our
laws. And once declared, an emergency ends only when she says it ends. Until then, the
Governor has vast powers. Using these powers here, she has unilaterally suspended
statutes and determined which businesses can open, what they can sell, and how they can
sell it; which homes residents can use; whether and how people socialize; what outdoor
reluctant—and indeed should refuse—“to undertake the most important and the most delicate of the Court’s functions . . . until necessity compels it in the performance of constitutional duty.” Rescue Army v Muni Court of Los Angeles, 331 US 549, 569; 67 S Ct 1409; 91 L Ed 1666 (1947). The rule of constitutional avoidance protects the separation of powers. See id. at 570 (noting that the rule is “basic to the federal system and this Court’s appropriate place within that structure”); id. at 571 (noting that the rule is founded on, among other things, “the necessity, if government is to function constitutionally, for each to keep within its power, including the courts”). Indeed, we have said that the “avoidance of unnecessary constitutional issues” is a core aspect of “judicial power.” Nat’l Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 614-615; 684 NW2d 800 (2004), rev’d on other grounds by Lansing Sch Ed Ass’n, MEA/NEA v Lansing Bd of Ed, 487 Mich 349 (2010); see also Mich Citizens for Water Conservation v Nestlé Waters North America Inc, 479 Mich 280, 292-293; 737 NW2d 447 (2007) (citing Nat’l Wildlife’s definition of “judicial power” and stating that preservation of the separation of powers depends on the judiciary confining itself to this definition), rev’d on other grounds by Lansing Sch, 487 Mich 349.
25

recreation is acceptable; what medical services individuals can obtain; and much more besides.19 All of this raises serious doubts about the statute’s constitutionality. Indeed, below I explain that, assuming the Governor and the majority are correct on what the statute means, I agree with the majority that the EPGA constitutes an unconstitutional delegation of legislative power. But I would avoid these determinations by adopting the more reasonable (and, in my opinion, clearly correct) interpretation above.
IV. RESPONSE TO THE MAJORITY By focusing on ordinary meaning, the majority opinion fails to seriously consider the fundamental principle that “[w]ords are to be understood in their ordinary, everyday meanings—unless the context indicates that they bear a technical sense.” See Reading Law, p 69 (emphasis added). It is true that “[i]nterpreters should not be required to divine arcane nuances or to discover hidden meanings” and that “we should not make [interpretation] gratuitously roundabout and complex.” Id. at 69-70. And it is also true, as I have pointed out elsewhere, that “ ‘[o]ne should assume the contextually appropriate ordinary meaning unless there is reason to think otherwise.’ ” In re Erwin Estate, 503 Mich 1, 33 n 15; 921 NW2d 308 (2018) (VIVIANO, J., dissenting), quoting Reading Law, p 70. But, as Scalia and Garner are quick to point out, “[s]ometimes there is reason to think otherwise, which ordinarily comes from context.” Reading Law, p 70.

19 See Governor Gretchen Whitmer, MI Safe Start: A Plan to Re-Engage Michigan’s

Economy

(May 7,

2020),

available

at

<https://www.michigan.gov/documents/whitmer/MI_SAFE_START_PLAN_689875_7.pdf>

(accessed October 1, 2010) [https://perma.cc/CM42-6JDS]; Executive Order Nos. 2020-4,

2020-5, 2020-6, 2020-14, 2020-17, and 2020-21.

26

As the authors explain, in somewhat elementary fashion, “[e]very field of serious endeavor develops its own nomenclature—sometimes referred to as terms of art,” and “[s]ometimes context indicates that [this] technical meaning applies.” Id. at 73. This is not a new principle. See, e.g., 1 Kent, Commentaries on American Law (1826), p 432 (“The words of a statute are to be taken in their natural and ordinary signification and import; and if technical words are used, they are to be taken in a technical sense.”). It is deeply embedded in our law. See MCL 8.3a (“All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.”).
The majority ignores the obvious contextual clues that inexorably lead to the conclusion that “public safety” is a term of art—i.e., it is an object of the police power and is referenced in a statute that explicitly delegates the police power to the Governor. Instead, the majority rejects the technical meaning without any serious analysis by asserting in conclusory fashion that the statute is “common” and “clear” and by rejecting such “fine” distinctions in a case of this magnitude.
But that is not all. As described above, by reading “public safety” according to the ordinary meanings of its two words, the majority opinion ignores the statutory context and renders the entire phrase “when public safety is imperiled” nugatory. This disregards yet
27

another widely accepted and routinely applied canon of interpretation: the surplusage canon.20
Perhaps most troubling—in a case in which the majority endeavors to protect the separation of powers—is the majority’s disregard of yet another fundamental and longstanding interpretive rule: the constitutional-doubt canon. Although I believe my reading of the EPGA is the most reasonable interpretation of the statute, even if I were inclined to accept the Governor’s interpretation, courts have an obligation to go further to see if “a construction of the statute is fairly possible by which the question may be avoided.” Workman, 404 Mich at 508 (quotation marks and citation omitted). The majority opinion not only overlooks basic interpretive principles in the first instance, but it also fails to take a second look to see if there is another reasonable construction of the statute. This failure to grapple with the constitutional-doubt canon deprives the majority of an indispensable interpretive tool that functions both to uncover the meaning of statutory text and also to respect separation-of-powers principles by “minimiz[ing] the occasions on which [the courts] confront and perhaps contradict the legislative branch.” Reading Law, p 249.
20 The majority opinion also finds it significant that I was the first to raise the question of whether “public safety” should be interpreted as a legal term of art when I did so at oral argument and notes that plaintiffs “effectively conceded” this argument. However, the Court requested supplemental briefing on the issue, and all parties and amici have had an opportunity to be heard on this issue. In any event, the Court is certainly not bound by the concession. Compare Bisio v The City of the Village of Clarkston, ___ Mich ___, ___; ___ NW2d ___ (2020) (Docket No. 158240) (adopting an interpretation of a statute favoring a party contrary to that party’s concession when the issue was raised at the eleventh hour by amicus, the issue was not addressed at oral argument, and the parties were not given an opportunity for supplemental briefing).
28

I would not suspend the sound principles of interpretation that have guided our interpretive efforts for centuries for this or any case. Instead, I would give the EPGA its fair meaning, as outlined above.
V. DELEGATION
It should be abundantly clear by now that I do not believe we need to reach the constitutional question in this case because the statute simply does not apply. But six justices disagree, and so my interpretation is not binding. Instead, the interpretation that now governs reads the EPGA to cover nearly everything under the sun, thus bringing the delegation issue into focus. This is, moreover, a certified-question case in which we are presented two discrete issues, one of which involves delegation. Therefore, I consider it my duty to answer whether the EPGA, as construed by the majority, constitutes an impermissible delegation of legislative powers.21
I fully agree with and join the majority’s analysis and conclusion that the EPGA is an unconstitutional delegation. I write only to explain why, in an appropriate future case, I would consider adopting the approach to nondelegation advocated by Justice Gorsuch in Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2131; 204 L Ed 2d 522 (2019) (Gorsuch, J., dissenting). The framework he advanced is firmly grounded in history and makes short work of the modern view, illustrated by the Chief Justice’s “any standards”
21 Cf. Jefferson Co v Acker, 527 US 423, 448; 119 S Ct 2069; 144 L Ed 2d 408 (1999) (Scalia, J., concurring in part and dissenting in part) (“For the foregoing reasons, I would hold that this case was improperly removed. In view, however, of the decision of a majority of the Court to reach the merits, I join Parts I, III, and IV of the Court’s opinion. Cf. Edgar v. MITE Corp., 457 U.S. 624, 646, 102 S.Ct. 2629, 73 L.Ed.2d 269 (1982) (Powell, J., concurring in part); United States v. Jorn, 400 U.S. 470, 488, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971) (Black, J., concurring in judgment).”).
29

test here, that a legislature can cede immense power to the executive so long as it sprinkles in a few vague adjectives that a court can pass off as standards.
As Justice Gorsuch stated, the core principle underlying the nondelegation doctrine—and one that is enshrined in our own Constitution, Const 1963, art 3, § 2—is that the Legislature simply may not “ ‘delegate . . . powers which are strictly and exclusively legislative.’ ” Gundy, 139 S Ct at 2133 (Gorsuch, J., dissenting), quoting Wayman v Southard, 23 US (10 Wheat) 1, 42-43; 6 L Ed 253 (1825). Lawmaking, the framers of the federal Constitution believed, should be difficult because it poses dangers to liberty; thus, federal statutes require passage by two legislative bodies and approval by the executive to become law. Id. at 2134. Our own Constitution, of course, reflects these same requirements. Const 1963, art 4, §§ 26 and 33. And throughout our constitutional history, especially near the beginning of our statehood, the same fears of excessive lawmaking by the legislative branch were prevalent. See, e.g., Campbell, Judicial History of Michigan (1886), p 44 (noting that the 1850 Constitution contained a “number of provisions which seem to indicate that it was supposed the people could not trust their agents and representatives”); see generally Shugerman, The People’s Courts: Pursuing Judicial Independence in America (Cambridge: Harvard University Press, 2012), pp 6, 123-143 (describing popular distrust of legislatures in the mid-nineteenth century).
The strict requirements for legislation would mean nothing, Justice Gorsuch observed, if the legislative branch “could pass off its legislative power to the executive branch . . . .” Gundy, 588 US at ___; 139 S Ct at 2134 (Gorsuch, J., dissenting). More important still, these hedges against hasty lawmaking and the separation of powers were not an experiment designed to preserve “institutional prerogatives or governmental turf”;
30

they were, instead, meant to “respect[] the people’s sovereign choice to vest the legislative power” in one branch alone and to “safeguard[] a structure designed to protect their liberties, minority rights, fair notice, and the rule of law.” Id. at 2135. So when a court throws up its hands and says an airy standard like “reasonableness” is enough to make a delegation proper, the court is not simply letting the Legislature recalibrate its institutional interests—it is allowing the Legislature to pass off responsibility for legislating, thereby endangering the liberties of the people, as the present case has vividly demonstrated.22
How, then, are courts to discern improper delegations? Justice Gorsuch offered three standards covering the circumstances in which delegations are permissible. “First, we know that as long as Congress makes the policy decisions when regulating private conduct, it may authorize another branch to ‘fill up the details.’ ” Id. at 2136. This standard comes from United States Supreme Court Chief Justice Marshall, who, in an early decision, “distinguished between those ‘important subjects, which must be entirely regulated by the legislature itself,’ and ‘those of less interest, in which a general provision may be made, and the power given to those who are to act . . . to fill up the details.’ ” Id., quoting Wayman, 23 US (10 Wheat) at 31, 43. We have similarly recognized that “[t]he leaving of
22 In outlining the problems that would arise in such a scenario, Justice Gorsuch described a situation eerily similar to the present case:
Without the involvement of representatives from across the country or the demands of bicameralism and presentment, legislation would risk becoming nothing more than the will of the current President. And if laws could be simply declared by a single person, they would not be few in number, the product of widespread social consensus, likely to protect minority interests, or apt to provide stability and fair notice. [Gundy, 588 US at ___; 139 S Ct at 2135 (Gorsuch, J., dissenting).]
31

details of operation and administration” to the executive “is not an objectionable delegation of legislative power.” People v Babcock, 343 Mich 671, 680; 73 NW2d 521 (1955); see also Argo Oil Corp v Atwood, 274 Mich 47, 52; 264 NW 285 (1935) (“It is too well settled to need the citation of supporting authorities that the Legislature, within limits defined in the law, may confer authority on an administrative officer or board to make rules as to details, to find facts, and to exercise some discretion, in the administration of a statute. The difficulty is in determining whether the limits are sufficiently defined to avoid delegation of legislative powers.”).
“Second,” Justice Gorsuch continued, “once Congress prescribes the rule governing private conduct, it may make the application of that rule depend on executive fact-finding.” Gundy, 588 US at ___; 139 S Ct at 2136 (Gorsuch, J., dissenting). For example, a statute might impose trade restrictions on another country if the President determines that that country has taken or not taken certain actions. Id. Once again, our caselaw contains this same standard. See Argo Oil Corp, 274 Mich at 52; see also Tribbett v Marcellus, 294 Mich 607, 615; 293 NW 872 (1940) (“While the legislature cannot delegate its power to make a law, nevertheless it can enact a law to delegate a power to determine a fact or a state of things upon which the application of the law depends.”).
In fact, we have noted that “for many years this and other courts evaluated delegation challenges in terms of whether a legislative (policymaking) or administrative (factfinding) function was the subject of the delegation . . . .” Blue Cross & Blue Shield of Mich, 422 Mich at 51. But we jettisoned this more restrained and historically grounded test in favor of the regnant “standards” test, i.e., the “intelligible principle” test. Id. Why? Not because this new test better reflected the Constitution’s original meaning or historical
32

practice. Rather, we adopted the new position because we deemed the “standards” test to reflect the “essential purpose of the delegation doctrine” and because we better liked the consequences of this new test, i.e., that the Legislature could gather “the resources and expertise of agencies and individuals to assist the formulation and execution of legislative policy.” Id. These are not considerations that normally justify a constitutional interpretation. See Citizens Protecting Michigan’s Constitution v Secretary of State, 503 Mich 42, 59; 921 NW2d 247 (2018) (the object of constitutional interpretation is uncovering the text’s original public meaning); Tyler v People, 8 Mich 320, 333 (1860) (“The expediency or policy of the statute has nothing to do with its constitutionality[.]”). As Justice Gorsuch described, the same mutation occurred in federal law, whereby a stray statement about intelligible principles “began to take on a life of its own” and eventually overwhelmed the traditional tests. Gundy, 588 US at ___; 139 S Ct at 2138-2140 (Gorsuch, J., dissenting).
Finally, the third realm of permissible delegation is the assignment of nonlegislative tasks to the executive (or judicial) branches. Id. at 2137. Almost by definition, if the delegated authority is not legislative, but already falls within the scope of executive authority, then no improper delegation has occurred. Our earlier caselaw similarly reflects this view. See, e.g., People v Collins, 3 Mich 343, 415-416 (1854) (“That the legislature may confer upon others, in their discretion, administrative powers necessary or proper for carrying on the government, not otherwise vested by the constitution, and in some cases involving the exercise of a discretion which the legislature itself might, but could not conveniently have exercised, no one will question. These, however, are not the law-making powers, and therefore do not here require particular notice. . . . But the power of enacting
33

general laws cannot be delegated—not even to the people. There is nothing in the constitution which authorizes or contemplates it; nothing in the nature of the power which requires it; nothing in the usages of our American government which sanctions it; no single adjudication of a court of last resort, in any state, which affirms it; and such delegation would be contrary to the intent manifested by the very structure of the legislative department of the government.”).
Our holding today could be explained through this traditional framework. The power the Governor holds under the EPGA is no mere “filling in the details.” Nor could the EPGA be thought of as a fact-finding statute or a grant of nonlegislative power. Instead, the EPGA bestows upon the Governor pure lawmaking authority, precisely what the separation of powers is designed to prevent.
No one in this case has requested that we consider the analytical framework sketched by Justice Gorsuch. It is, however, a possible path toward a nondelegation doctrine that reflects the original public meaning of our Constitution—every version of which contains more explicit language bearing upon nondelegation than does our federal counterpart.23 Thus, if the issue is properly presented in a future case, I would consider
23 See 1963 Const, art 3, § 2 (“No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.”); 1908 Const, art 4, § 2 (“No person belonging to 1 department shall exercise the powers properly belonging to another, except in the cases expressly provided in this constitution.”); 1850 Const, art 3, § 2 (same); 1835 Const, art 3, § 1 (“[O]ne department shall never exercise the powers of another, except in such cases as are expressly provided for in this constitution.”). See Cooley, Constitutional Limitations (1868), p 116 (“One of the settled maxims in constitutional law is, that the power conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.”).
34

whether, and to what extent, we should adopt this framework.24 But in the present matter, I fully concur with the majority’s holding that the EPGA constitutes an unconstitutional delegation of legislative power.
V. CONCLUSION As discussed above, I believe that this case can be resolved on statutory grounds. In particular, I do not believe that the EPGA applies to public-health events like pandemics. Because my colleagues disagree and proceed to decide the constitutional issue, I consider it my duty to reach that issue as well. I agree with and join the majority’s analysis and holding that the EPGA represents an unconstitutional delegation of legislative authority. To my mind, the case also raises a larger point that the Court would do well to examine in an appropriate case: does the current “standards” test in the nondelegation doctrine reflect our Constitution’s original public meaning? For now, however, I fully agree with the majority’s articulation and application of the current standard here. I also agree with the majority’s holding as to the EMA. For these reasons, I join Parts III(A), (B), (C)(2), and IV of the majority opinion and concur in part and dissent in part.
David F. Viviano

24 The Chief Justice apparently disagrees with this framework and asserts that it is based

on “armchair history.” Others disagree. See Wurman, Nondelegation at the Founding,

130

Yale L J

(forthcoming),

abstract,

available

at

<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559867#> (accessed October 1,

2020) [https://perma.cc/PVG7-8Y3M] (refuting the attempt by Professors Julian

Mortenson and Nicholas Bagley to “challenge the conventional wisdom that, as an

originalist matter, Congress cannot delegate its legislative power”).

35

STATE OF MICHIGAN SUPREME COURT

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION ______________________________________
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs,
v
GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,
Defendants.

No. 161492 USDC-WD: 1:20-cv-414

MCCORMACK, C.J. (concurring in part and dissenting in part). Every eighth-grade civics student learns about the separation of powers and checks
and balances—design features of our government to prevent one branch from accumulating too much power. The principle of separation of powers is fundamental to democracy. As James Madison put it: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many . . . may justly be pronounced

the very definition of tyranny.” The Federalist No. 47 (Madison) (Rossiter ed, 1961), p 301.
In this light, the Legislature’s delegation of authority to the Governor in the Emergency Powers of the Governor Act (the EPGA), MCL 10.31 et seq., may appear concerning at a superficial glance, given that it vests the Governor, and the Governor alone, with the authority to exercise the whole of the state’s police power in some emergencies. But our job is to apply the law. And all our precedent (and that of the United States Supreme Court) vindicates the Legislature’s choice to delegate authority to the Governor in an emergency.
That does not insulate the Governor’s exercise of that authority from checks and balances. To the contrary, there are many ways to test the Governor’s response to this lifeand-death pandemic.
Some of these are judicial. For example, the statute allows a legal challenge to the Governor’s declaration that COVID-19, as a threshold matter, constitutes a “great public crisis” that “imperil[s]” “public safety.” MCL 10.31(1). For another example, any order issued under the statute could be challenged as not “necessary” or “reasonable” to “protect life and property or to bring the emergency situation within the affected area under control.” Id. In these ways and others, the courts can easily be enlisted to assess the exercise of executive power, measuring the adequacy of its factual and legal bases against the statute’s language.
There are legislative mechanisms available too. The Legislature might revisit its longstanding decision to have passed the EPGA. If the Legislature saw fit, it could repeal
2

the statute. Or, the Legislature might amend the law to alter its standards or limit its scope. Changing the statute provides a ready mechanism for legislative balance.
What is more, Michigan’s citizens can initiate petition drives to repeal the EPGA (and they are) and to recall the Governor (and they are), exercising yet other constitutional safeguards to curb executive overreach. Citizens by petition could alternatively amend the statute. And with or without a citizens’ petition, the Governor undoubtedly will be politically accountable to voters for her actions in our next gubernatorial election, the ultimate check.
Not content with available constitutional devices and unwilling to acknowledge the limitations expressed by the EGPA’s terms, the majority forges its own path. It announces a new constitutional rule to strike down a 75-year-old statute passed to address emergencies. In so doing, the majority needlessly inserts the Court into what has become an emotionally charged political dispute. Because our precedent does not support the majority’s decision, because I would not make new rules to address a once-in-a-century global pandemic, and because there are many other remedies available to curb executive overreach, I respectfully dissent in part.1
1 I concur in the majority’s opinion to the extent that it concludes that we should answer the certified questions; holds that the Governor’s executive orders issued after April 30, 2020, were not valid under the Emergency Management Act (the EMA), MCL 30.401 et seq.; and rejects the plaintiffs’ statutory arguments that the EPGA does not authorize the Governor’s executive orders. I therefore concur in Parts III(A) and (B) and all but the last paragraph of Part III(C)(1) of the majority opinion.
3

I. THE NONDELEGATION DOCTRINE As the majority observes, “[s]tatutes are presumed to be constitutional, and courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.” Taylor v Gate Pharm, 468 Mich 1, 6; 658 NW2d 127 (2003). In Dep’t of Natural Resources v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976), this Court adopted a three-pronged standard for evaluating whether a statute has provided sufficient standards for the delegation of legislative power to be constitutional. First, the act in question must be read as a whole. Second, the standard must be as reasonably precise as the subject matter requires or permits. And third, if possible, the statute must be construed in a way that renders it valid, not invalid; as conferring administrative, not legislative, power; and as vesting discretionary, not arbitrary, authority. The second prong is at the center of this dispute. In applying this standard, we have consistently upheld statutes with broad and indefinite delegations of legislative authority. See, e.g., G F Redmond & Co v Mich Securities Comm, 222 Mich 1, 7; 192 NW 688 (1923) (concluding that the statutory term “good cause” for revocation of a license was “sufficiently definite” to constitute an adequate standard); Smith v Behrendt, 278 Mich 91, 93-94, 96; 270 NW 227 (1936) (upholding a statute that delegated the authority to grant permits to operate otherwiseprohibited oversize vehicles on public highways “in special cases”); State Highway Comm v Vanderkloot, 392 Mich 159, 172; 220 NW2d 416 (1974) (holding that “ ‘necessity’ is an adequate standard in the context of delegated eminent domain authority” and noting that “ ‘[n]ecessity’ is also a recognized standard guiding administrative bodies in making other discretionary determinations based upon delegated legislative authority”).
4

The United States Supreme Court takes a similar approach: a delegation of legislative authority is valid if it provides an “ ‘intelligible principle’ ” to guide the decision-maker’s authority. Mistretta v United States, 488 US 361, 372; 109 S Ct 647; 102 L Ed 2d 714 (1989), quoting J W Hampton, Jr & Co v United States, 276 US 394, 409; 48 S Ct 348; 72 L Ed 624 (1928). Under this standard, the United States Supreme Court has approved of “broad standards” for congressional delegation of legislative power. Mistretta, 488 US at 373. There is a reason for this: “Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. at 372. Using such delegations, “Congress gives its delegee the flexibility to deal with real-world constraints in carrying out his charge.” Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2130; 204 L Ed 2d 522 (2019) (opinion by Kagan, J.).
The United States Supreme Court has only invalidated a statute under the nondelegation doctrine in two cases, both from 1935. Panama Refining Co v Ryan, 293 US 388; 55 S Ct 241; 79 L Ed 446 (1935); ALA Schechter Poultry Corp v United States, 295 US 495; 55 S Ct 837; 79 L Ed 1570 (1935). By contrast, the Court has “over and over upheld even very broad delegations” of authority in numerous cases spanning various decades. Gundy, 588 US at ___; 139 S Ct at 2129 (opinion by Kagan, J.). For a far-fromexhaustive list, see Gundy, 588 US at ___; 139 S Ct at 2129 (opinion by Kagan, J.); id. at 2131 (Alito, J., concurring in the judgment); Whitman v American Trucking Associations, Inc, 531 US 457, 472; 121 S Ct 903; 149 L Ed 2d 1 (2001); Mistretta, 488 US at 379; United States v Mazurie, 419 US 544, 556-557; 95 S Ct 710; 42 L Ed 2d 706 (1975); United States v Sharpnack, 355 US 286, 296-297; 78 S Ct 291; 2 L Ed 2d 282 (1958); American Power & Light Co v Securities & Exch Comm, 329 US 90, 104-106; 67 S Ct 133; 91 L Ed
5

103 (1946); Yakus v United States, 321 US 414, 425-426; 64 S Ct 660; 88 L Ed 834 (1944);
Mulford v Smith, 307 US 38, 47-49; 59 S Ct 648; 83 L Ed 1092 (1939); J W Hampton, Jr
& Co, 276 US at 409-411; United States v Grimaud, 220 US 506, 516-517, 521; 31 S Ct
480; 55 L Ed 563 (1911); Marshall Field & Co v Clark, 143 US 649, 693-694; 12 S Ct
495; 36 L Ed 294 (1892); Wayman v Southard, 23 US (10 Wheat) 1; 6 L Ed 253 (1825).
Thus, the current state of the law is such that a successful nondelegation challenge in that
Court is very hard to come by.2
Both Courts have tests that require some standards for the delegation of legislative
authority—in theory, an inadequate standard would be insufficient. But until today, the
United States Supreme Court and this Court have struck down statutes under the
nondelegation doctrine only when the statutes contained no standards to guide the decision-
maker’s discretion. See Mistretta, 488 US at 373 n 7 (discussing Panama Refining Co and
ALA Schechter Poultry Corp); Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1,
2 Gundy suggests that some members of the current United States Supreme Court are prepared to revisit the doctrine in a future case. Justice VIVIANO finds Justice Gorsuch’s approach potentially persuasive and suggests we might adopt it in a future case. But for now, Justice Gorsuch’s approach is not the law, and Panama Refining Co and ALA Schechter Poultry Corp remain the only nondelegation challenges that have succeeded in that Court. And it is armchair history to suggest that the founding generation believed that the constitutional settlement imposed restrictions on the delegation of legislative power or that it empowered the judiciary to police the Legislature’s delegations. As Professors Bagley and Mortenson have shown, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. See Mortenson & Bagley, Delegation at the Founding, 121 Columbia L Rev (forthcoming 2021), available at <https://originalismblog.typepad.com/the-originalism-blog/2020/01/julian-davis-mortensonnicholas-bagley-delegation-at-the-founding-with-a-response-from-ilan-wurmanmi.html> (accessed October 1, 2020) [https://perma.cc/9BF5-8SUX]; see generally Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: The University of North Carolina Press, 1996).
6

52; 367 NW2d 1 (1985) (agreeing with the plaintiff that the statute at issue contained “ ‘absolutely no standards’ ”); Osius v St Clair Shores, 344 Mich 693, 700; 75 NW2d 25 (1956) (invalidating an ordinance giving a zoning board of appeals authority to approve or deny the erection of gas stations but providing no standards to guide its decisions). The bar for what standards qualify as constitutional is low.
The delegation in the EPGA plainly has standards that surmount that bar. For the Governor to invoke the EPGA, her actions must be “reasonable” and “necessary,” they must “protect life and property” or “bring the emergency situation . . . under control,” and they may be taken only at a time of “public emergency” or “reasonable apprehension of immediate danger” when “public safety is imperiled.” MCL 10.31(1). Those are standards. Reasonable people might disagree about their rigor, but this Court and the United States Supreme Court have consistently held similar standards constitutional. Until today, a delegation was invalid only when there were no standards. Panama Refining Co, 293 US 388; Blue Cross & Blue Shield of Mich, 422 Mich 1.
It is not my view that only delegations with no standards are unconstitutional. But until today this Court and the United States Supreme Court upheld every delegation that had some standards to guide the decision-maker’s discretion. The particular standards in the EPGA are as reasonably precise as the statute’s subject matter permits. Given the unpredictability and range of emergencies the Legislature identified in the statute, it is difficult to see how it could have been more specific. Indeed the EPGA contains multiple limitations on the Governor’s authority, each limitation requiring more of the Governor
7

when exercising authority.3 Therefore, our precedent holds that it does not violate the
nondelegation doctrine.
The majority believes that Whitman provides the foundation for its decision that a
delegation as broad as this one requires more specific standards guiding the Governor’s
discretion. But Whitman cannot bear the weight that they place on it. Whitman does state
3 The majority concludes otherwise by asserting that the EPGA contains only the limitations that the Governor’s actions be “reasonable” and “necessary,” but as the majority notes, the United States Supreme Court has observed that the word “necessary” may be part of a sufficient standard imposed upon the executive branch. Touby v United States, 500 US 160; 111 S Ct 1752; 114 L Ed 2d 219 (1991).
So too here. The EPGA does not use “reasonable” or “necessary” in a vacuum; the Governor’s action must be “reasonable” or “necessary” to “protect life and property or to bring the emergency situation within the affected area under control.” What more important objectives does a Governor have in an emergency than to protect life and property and bring the emergency situation under control? And given the variety, breadth, and scope of potential emergencies, how much more specific could the Legislature have been in setting the standards guiding the Governor’s discretion to accomplish those goals? Far from “illusory,” as the majority calls them, these standards are specifically targeted to allow the Governor to remedy the dire consequences flowing from the emergency. For that reason, the United States Supreme Court precedent discussed in the majority opinion that holds that a “necessity” or some comparable standard might not have been sufficient in and of itself, but was enough when coupled with some criterion, applies to the EPGA. In other words, the authority that the majority cites says the statute is constitutional. The majority’s discussion of those cases also contradicts its claim that the standards in the EPGA are confined to “reasonable” or “necessary.” For example, the majority admits that the standard in New York Central Securities Corp v United States, 287 US 12; 53 S Ct 45; 77 L Ed 138 (1932), was not simply confined to the “public interest” but also included “adequacy of transportation service,” “essential conditions of economy and efficiency,” and “appropriate provision and best use of transportation facilities” because those terms supplied some criterion. But the majority fails to recognize that the EPGA similarly contains some criterion when it states that the Governor’s orders must be necessary to “protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1).
8

(sensibly) that the degree of discretion that is acceptable varies according to the scope of
the power conferred. But it then sets broad parameters that can’t be cast aside here:
[E]ven in sweeping regulatory schemes we have never demanded, as the Court of Appeals did here, that statutes provide a “determinate criterion” for saying “how much [of the regulated harm] is too much.” In Touby [v United States, 500 US 160; 111 S Ct 1752; 114 L Ed 2d 219 (1991)], for example, we did not require the statute to decree how “imminent” was too imminent, or how “necessary” was necessary enough, or even—most relevant here— how “hazardous” was too hazardous. [Whitman, 531 US at 475 (citation omitted).]
And the Whitman Court upheld the delegation in that case. Thus, even in a “sweeping”
law (like the EPGA), the United States Supreme Court’s rules have said—and ours were
in accordance until today—that the standards provided are enough to guide the Governor’s
exercise of her discretion.4
The majority reaches a contrary conclusion only by breaking new ground in our
nondelegation jurisprudence. And what is its justification for doing so? Essentially this—
the scope of the Governor’s power under the EPGA is unprecedented, so we need a new
nondelegation rule to contain it. But creating new constitutional doctrine to respond to a
4 The majority finds some light in the language from Synar v United States, 626 F Supp 1374, 1386 (D DC, 1986), that “[w]hen the scope increases to immense proportions . . . the standards must be correspondingly more precise.” Synar, of course, is not binding on us or any other court outside the DC Circuit, and it cited no authority for its claim. Why we would (or should) rely on that standard, which has no support in our law or that of the United States Supreme Court, is anyone’s guess. But if we were to rely on it, it cuts against the majority’s assertion that the duration of the delegation in the EPGA makes it unconstitutional. See id. at 1386-1387 (stating that “while extremely limited duration has been invoked as one of the elements sustaining a delegation, lengthy duration has never been held to render one void” and noting that “[t]he delegations upheld in [J W Hampton, Jr & Co, 276 US at 394], and [Marshall Field & Co, 143 US at 649] . . . were for indefinite terms”).
9

problem that has many other solutions puts the Court in a precarious position. If, as
Aristotle said, “the law is reason free from passion,” an emotionally charged case seems
like a terrible candidate for making new law. When there is a settled rule that has been in
place for decades, discarding it to respond to an outlier case (especially when there are
other solutions available) is imprudent.
Breaking new constitutional ground here to facially invalidate the EPGA is
unnecessary because there are other judicial remedies. If the citizens of this state believe
that the Governor has overstepped, they can challenge her determination that this public-
health crisis is an emergency that imperils public safety and seek a declaration that she no
longer has the authority to act under the EPGA.5 Or those aggrieved by her orders can
challenge any or all of them. (Indeed, that’s exactly what the plaintiffs here did.) If any
order is not reasonable and necessary because it is not directed at protecting life and
property or bringing the emergency situation under control, or not issued at a time of public
emergency or reasonable apprehension of immediate danger that imperils public safety, it
will fall. There are justiciable questions as to whether the Governor can continue to declare
5 When the Governor issued the initial state of emergency back in March and a very real danger existed of hospitals being overrun with COVID-19 patients or running out of ventilators and personal-protection equipment, there was a specific set of facts to justify her declaration that the pandemic was a disaster that threatened public safety. Whether she can make a persuasive case that a disaster threatening public safety continues today is a question a court could decide. Resolving the Governor’s authority to act under the EPGA by adjudicating such a challenge rather than striking the act altogether (an act that the Legislature believed gave the Governor necessary and important tools for combatting emergencies) would be a more modest use of our judicial power. I therefore strongly disagree with the majority that the Governor’s powers under the EPGA are of indefinite duration. And for that same reason, I don’t view the lack of a specific durational limitation in the EPGA as “considerably broaden[ing] the scope of authority” conferred by the statute.
10

an ongoing emergency and invoke the EPGA generally, as well as to the propriety of

specific individual executive orders.6

Political remedies abound too. The people could convince their elected

representatives to repeal (or amend) the EPGA, or attempt to do so themselves. Indeed, a

petition to repeal the EPGA is circulating, and recent news reports suggest that it may

already have enough signatures to proceed. See, e.g., Hermes & Booth, Michigan Group

Surpasses Signatures Needed for Petition Against Gov. Whitmer’s Emergency Powers

(September

14,

2020),

available

at

<https://www.clickondetroit.com/news/michigan/2020/09/14/group-gathers-signatures-

to-petition-against-gov-whitmers-emergency-powers/> (accessed October 1, 2020)

[https://perma.cc/98ZL-REE8]. Not to mention the most potent political remedy of all: the

ballot box. If citizens are unhappy with the Governor’s actions, they can launch a petition

to recall her (and again, at least one is already circulating)—or vote against her in the next

election.

Our nondelegation jurisprudence does not support the majority’s decision to facially

invalidate the EPGA. And the availability of other remedies makes this case a poor vehicle

for reshaping the law. I dissent from the majority’s sweeping constitutional ruling.7

6 Of course, separation-of-powers disputes do not always involve political questions to be avoided by the judiciary (the majority’s straw man offering). This separation-of-powers dispute is best resolved by the many other remedies available (including judicial remedies) before facially invalidating the EPGA.
7 I also question whether the facial validity of the EPGA is properly before the Court, even though I concede that is how the federal court presented the issues to us. The plaintiffs in
11

Finally, the plaintiffs seek a declaration prohibiting the defendants from enforcing
Department of Health and Human Services orders issued by defendant Director Robert
Gordon. Those orders proclaim to draw their authority not from the EMA or EPGA but
from MCL 333.2253. The federal district court did not certify to this Court any question
regarding the validity of those orders, and this Court does not offer any opinion on the
validity or continued enforcement of those orders.
the federal district court sought only as-applied relief. See Plaintiffs’ Complaint (May 12, 2020) at 35-36, requesting the following relief:
a. A declaratory judgment that the Provider Plaintiffs are permitted under Executive Order 2020-17, Executive Order 2020-77, and the HHS order to continue their business operations and Mr. Gulick is permitted under Executive Order 2020-17, Executive Order 2020-77, and the HHS order to obtain knee replacement surgery and other vital medical treatment;
b. Alternatively, a declaration that Executive Order 2020-17 and Executive Order 2020-77, as applied to the Plaintiffs, violates the Michigan Constitution, the Fourteenth Amendment, and the Commerce Clause of the United States Constitution;
c. Preliminary and permanent injunctive relief preventing the Defendants from enforcing Executive Order 2020-17, Executive Order 202077, and the HHS order against the Plaintiffs;
d. Damages for the violation of the Plaintiffs’ constitutional rights, in an amount to be proven at trial;
e. Costs and expenses of this action, including reasonable attorneys’ fees, in accordance with 42 U.S.C. § 1988; and
f. Any further relief that the Court deems appropriate.
Yet the federal district court certified to this Court the question whether the Governor has the authority under the EPGA or EMA after April 30, 2020, to issue any executive order related to the COVID-19 crisis.
12

II. CONCLUSION I agree with the majority that the Governor’s executive orders issued after April 30, 2020, were not valid under the EMA. But I dissent from its holding that the EPGA is facially unconstitutional under the nondelegation doctrine. I would uphold the EPGA as a valid delegation of legislative authority under our settled jurisprudence.
Bridget M. McCormack Richard H. Bernstein Megan K. Cavanagh
13

STATE OF MICHIGAN SUPREME COURT

In re CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION ______________________________________
MIDWEST INSTITUTE OF HEALTH, PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK,
Plaintiffs,
v
GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,
Defendants.

No. 161492 USDC-WD: 1:20-cv-414

BERNSTEIN, J. (concurring in part and dissenting in part). Like Chief Justice MCCORMACK, whose separate opinion I join in full, I concur in
the majority’s opinion in part but dissent from its ultimate holding that the Emergency Powers of the Governor Act (EPGA), MCL 10.31 et seq., is unconstitutional. I write separately to express how I came to this difficult conclusion.
The Centers for Disease Control and Prevention report that, in the United States, there have been more than 7,000,000 confirmed cases of COVID-19, and more than

200,000 associated deaths.1 This data confirms that the United States is the worldwide leader in both confirmed cases and deaths.2 In Michigan alone, there have been more than 100,000 confirmed cases of COVID-19, and more than 6,000 associated deaths.3 Although many of the measures enacted by executive order have led to the containment of these numbers in Michigan, history warns us that deadlier second or third waves may still await us.4
In short, the situation we all are facing is tremendously grave. COVID-19 has posed and continues to pose a very real threat to both the lives and livelihoods of everyone in Michigan. This is, of course, an understatement to everyone who has lost a loved one or their very way of life. We are truly experiencing a global health crisis of unprecedented scope, and the fact that the Governor of Michigan has attempted to curb the threat by issuing executive orders is understandable. However, as my fellow Justices have
1 Centers for Disease Control and Prevention, COVID Data Tracker <https://covid.cdc.gov/covid-data-tracker/#cases_casesinlast7days> (accessed September 30, 2020) [https://perma.cc/9BCR-6CAL]. 2 World Health Organization, Coronavirus Disease (COVID-19) Dashboard <https://covid19.who.int/> (accessed September 30, 2020) [https://perma.cc/ME95PTFZ]. 3 Michigan, Coronavirus <https://www.michigan.gov/coronavirus/> (accessed September 30, 2020) [https://perma.cc/Z2NE-XRLE]. 4 “The first pandemic influenza wave appeared in the spring of 1918, followed in rapid succession by much more fatal second and third waves in the fall and winter of 1918–1919, respectively . . . .” Taubenberger & Morens, 1918 Influenza: The Mother of All Pandemics, 12(1) Emerg Infect Dis 15, 16 (2006), available at <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3291398/> (accessed September 30, 2020).
2

recognized, it is not our role to consider or debate the practicality of any of these
measures—instead, our job is to determine whether the Governor had the legal authority
to act in the first place.
The separation of powers is one of the fundamental principles of our form of
government.5 As one of the Framers put it:
If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. [The Federalist No. 51 (Madison) (Rossiter ed, 1961), p 322.]
Our entire government is built on the understanding that a system of checks and balances
between the branches is necessary for a fully functioning democracy. Our interest in
policing the boundaries between the separate branches of government is more than merely
academic. I am reminded of a passage in the Bible, which reads, “Now there arose a new
king over Egypt, who did not know Joseph.” Exodus 1:8. It is this concern over a new
king that propels my unease here. It is not enough to be content with how a specific
5 “The Framers recognized that, in the long term, structural protections against abuse of power were critical to preserving liberty.” Seila Law LLC v Consumer Fin Protection Bureau, 591 US ___, ___; 140 S Ct 2183, 2202; 207 L Ed 2d 494 (2020), quoting Bowsher v Synar, 478 US 714, 730; 106 S Ct 3181; 92 L Ed 2d 583 (1986). “ ‘There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates’ . . . .” The Federalist No. 47 (Madison) (Rossiter ed, 1961), p 302, quoting Montesquieu. “Even a cursory examination of the Constitution reveals the influence of Montesquieu’s thesis that checks and balances were the foundation of a structure of government that would protect liberty. The Framers provided a vigorous Legislative Branch and a separate and wholly independent Executive Branch, with each branch responsible ultimately to the people.” Bowsher, 478 US at 722.
3

individual may be wielding their power. Instead, we are concerned with the inherent authority to act, because in our system of government, leaders may come and go depending on the will of the electorate. That a specific leader can be credited with acting in good faith does not prevent a successor from behaving differently. It can only help sharpen our understanding of how best to protect our democracy to think about how an unknown future actor might exercise this authority and what concerns that might raise.6
That said, after a thorough examination of prior caselaw from both this Court and the Supreme Court of the United States, I agree with Chief Justice MCCORMACK that the grant of power found in the EPGA does not offend the separation of powers. To be clear, I find this conclusion inherently troubling. Again, we are a government of checks and balances, and at first blush, it seems more than a little strange that a delegation of this scope could be constitutionally appropriate. However, as Justice Alito recently acknowledged, “[S]ince 1935, the [Supreme Court of the United States] has uniformly rejected nondelegation arguments and has upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Gundy v United States, 588 US ___, ___; 139 S Ct 2116, 2130-2131; 204 L Ed 2d 522 (2019) (Alito, J., concurring
6 See Somin, Obama’s Constitutional Legacy, 65 Drake L Rev 1039, 1041-1046 (2017); Prokop, Vox, How Barack Obama Is Expanding Presidential Power – and What It Means for the Future <https://www.vox.com/2014/9/9/5964421/obama-lawsuit-republicansabuse-of-power> (posted September 9, 2014) (accessed September 30, 2020) (“So future Republic presidents will inevitably cite the new precedents Obama is setting to justify actions of their own. ‘I think Democrats are going to rue the day they did not push back against Obama on these things,’ says [Mitchel] Sollenberger, the University of Michigan professor [of Political Science]. ‘Just as Republicans regretted the same thing when they didn’t push back against Bush.’ ”).
4

in the judgment).7 Consistent with decades of jurisprudence from both this Court and the
Supreme Court of the United States, I therefore agree with Chief Justice MCCORMACK that
the nondelegation doctrine, as it is currently understood, is ill-suited to address the unique
problem placed before us now. As Justice Alito noted:
7 For years, legal commentators have noted that the nondelegation doctrine does very little work. Eskridge & Ferejohn, The Article I, Section 7 Game, 80 Geo L J 523, 561 (1992) (“Although contrary to the Framers’ apparent understanding in 1789, we agree with Mistretta [v United States, 488 US 361; 109 S Ct 647; 102 L Ed 2d 714 (1989),] that the nondelegation is essentially unenforceable as a constructional doctrine.”); Wilkins & Hunt, Agency Discretion and Advances in Regulatory Theory: Flexible Agency Approaches Toward the Regulated Community as a Model for the Congress-Agency Relationship, 63 Geo Wash L Rev 479, 541 (1995) (stating that “the New Deal-era nondelegation decisions have seemed virtually toothless since 1935 . . . .”); Young, The Constitution Outside the Constitution, 117 Yale L J 408, 446 (2007) (“For example, Congress’s ability to shift lawmaking responsibility to the executive branch was once limited by the nondelegation doctrine, which permitted shifting implementation functions to agencies but insisted that Congress make the basic policy decisions by articulating an ‘intelligible principle’ to guide agency discretion. But the courts found the concept of excessive delegation very difficult to define and police, and they eventually gave up trying.”); Watts, Rulemaking as Legislating, 103 Geo L J 1003, 1016 (2015) (“So how is it that the Court continues to insist pursuant to the nondelegation doctrine’s central premise that Congress may not delegate legislative power while, at the same time, Congress routinely delegates broad rulemaking powers to federal agencies and enables agencies to promulgate legislative rules on wideranging subjects that carry the force and effect of law? The answer lies in what is known as the intelligible principle requirement—a requirement that might sound substantial but, in reality, is quite toothless.”) See also Gundy, 588 US at ___ n 62; 139 S Ct at 2140 n 62 (Gorsuch, J., dissenting).
To the extent that this commentary is understood to be limited to a federal context, this Court has also noted that application of the intelligible-principle requirement has led to “uniformly unsuccessful” delegation challenges since the New Deal era. Taylor v Gate Pharm, 468 Mich 1, 9; 658 NW2d 127 (2003). “In Michigan, this Court has considered similar claims regarding statutes where the claims included an allegation of improperly delegating the Legislature’s power to a Michigan agency, and we have rejected the claims on a basis similar to the federally developed rationale.” Id. at 10.
5

If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment. [Id. at 2131.]
Given that this Court considers its understanding of the nondelegation doctrine to be similar
to that of the Supreme Court of the United States,8 I would continue to apply the standards
test that this Court has consistently used to analyze nondelegation challenges.9 Because I
agree with Chief Justice MCCORMACK that a straightforward application of that test leads
to the conclusion that the EPGA satisfies the constitutional principle of the separation of
powers, I would leave to the Supreme Court of the United States to decide whether it is
now time to revisit the nondelegation doctrine.
To conclude, as I do, that Governor Whitmer has the legal authority to issue orders
under the EPGA would not prevent the people of Michigan from otherwise expressing their
frustrations with the COVID-19 orders. Efforts to repeal the EPGA are already underway.
As with all elected officials, the Governor herself is politically accountable to the
electorate, via the recall process or at the next gubernatorial election.10 The enforcement
8 See Taylor, 468 Mich at 10. 9 See Westervelt v Natural Resources Comm, 402 Mich 412, 439-440; 263 NW2d 564 (1978). 10 As Alexander Hamilton has stated in referring to executive power, “it is far more safe there should be a single object for the jealousy and watchfulness of the people[.]” The Federalist No. 70 (Hamilton) (Rossiter ed, 1961), p 430. This appears to have been borne out in practice, as the Board of State Canvassers notes that 20 recall petitions against Governor Whitmer have been filed in 2020 alone. Michigan Secretary of State, Board of State Canvassers, 2020 Recall Petitions Submission and Status, available at <https://www.michigan.gov/documents/sos/2020_BSC_Recall_Petitions_v2_703097_7.pdf> (accessed on September 30, 2020) [https://perma.cc/X4AD-ZAH2].
6

of individual executive orders could and has already been challenged, as evidenced in the underlying case before us, as not being “reasonable” or “necessary to protect life and property.” MCL 10.31(1).11 As a hypothetical example, Executive Order No. 2020-180 states:
[A]thletes training for, practicing for, or competing in an organized sport must wear a facial covering (except when swimming) or consistently maintain 6 feet of social distance (except for occasional and fleeting moments). For example, an athlete participating in a football, soccer, or volleyball game would not be able to consistently maintain 6 feet of distance, and therefore would need to wear a facial covering.
One could mount a challenge to the enforcement of this order in a region with a lower incidence of COVID-19, as a mask mandate might not be necessary to protect life and property under those circumstances. The very duration and scope of the executive orders could also be challenged under the same language, as some of the more invasive restrictions may no longer be reasonable or necessary if a vaccine were to be widely distributed or if a spike of infections were to be successfully flattened. All of these options would remain available to the people of Michigan even if this Court concluded that the Governor had the authority to issue orders under the EPGA.
In conclusion, on the basis of settled caselaw from this Court and the Supreme Court of the United States, I would hold that the EPGA does not offend the nondelegation doctrine, and I would leave to the people of Michigan the right to mount challenges to individual orders issued under the EPGA.
Richard H. Bernstein
11 See also Dep’t of Health & Human Servs v Manke, 505 Mich ___; 943 NW2d 397 (2020).
7

 
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STATE OF MICHIGAN

IN THE SUPREME COURT

IN RE CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION, ______________________________________/

Supreme Court No.161492 USDC-WD: 1:20-cv-414

MIDWEST INSTITUTE OF HEALTH PLLC, d/b/a GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFERY GULICK

The appeal involves a question that a provision of the Constitution, a statute, rule or regulation, or other State governmental action is invalid.

Plaintiffs,

v.

GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,

Defendants.

James R. Peterson (P43102) Stephen J. van Stempvoort (P79828) Amy E. Murphy (P82369) MILLER JOHNSON Co-counsel for Plaintiffs 45 Ottawa Avenue SW, Suite 1100 Grand Rapids, Michigan 49503 (616) 831-1700 petersonj@millerjohnson.com vanstempvoorts@millerjohnson.com murphya@millerjohnson.com
Patrick J. Wright (P54052) Mackinac Center Legal Foundation 140 W Main St. Midland, Michigan 48640-5156

Ann M. Sherman (P67762) Rebecca Berels (P81977) Assistant Attorney General Attorneys for Defendant Nessel Michigan Dep’t of Attorney General P.O. Box 30212 Lansing, MI 48909 (517) 335-7628 shermana@michigan.gov berelsr1@michigan.gov
Christopher M. Allen Joshua O. Booth John G. Fedynsky Joseph T. Froehlich Assistant Attorneys General for

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Co-counsel for Plaintiffs (989) 631-0900 wright@mackinac.org

Defendants Whitmer and Gordon P.O. Box 30754 Lansing, MI 48909 (517) 335-7573 Allenc28@michigan.gov Buthj2@michigan.gov fedynsky@michigan.gov Froehlichj1@michigan.gov

AMICUS BRIEF OF THE MICHIGAN HOUSE OF REPRESENTATIVES
AND THE MICHIGAN SENATE

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TABLE OF CONTENTS
INDEX OF AUTHORITIES .......................................................................................... v
STATEMENT OF INTEREST ...................................................................................... 1
INTRODUCTION .......................................................................................................... 1
SUMMARY OF THE ARGUMENT .............................................................................. 3
ARGUMENT .................................................................................................................. 6
I. The Governor’s interpretation of her authority fundamentally alters the 1963 Michigan Constitution’s political incentive structures, under which the legislature legislates, even in an emergency. ........................ 6
A. The Michigan Constitution assigns the Legislature to regulate health, safety, and welfare of Michigan’s citizens and equips it as the proper forum to determine the State’s long-term response to a crisis......................................................................................... 6
B. The EMA & EPGA must be read to complement the constitutional incentive structure, not to undermine it............................. 13
C. The executive’s interpretation upends the constitutional incentives, and it has already disrupted the legislative process. .............. 15
II. Neither the EMA nor EPGA gives the governor the power to disrupt the constitutional balance of power, even in times of emergency. .................. 21
A. As the Plaintiffs and Attorney General correctly argue, the Governor’s authority under the EMA expired on April 30, 2020. ............. 21
B. The Governor cannot use the EPGA to justify an indefinite, statewide state of emergency. ..................................................................... 22
1. The executive branch’s interpretation creates an irreconcilable conflict between the EPGA and the EMA. ..................... 22
2. The EPGA’s text confirms that it is a locally focused statute, not intended for long-term, worldwide events like COVID-19. .............................................................................................. 29
3. The historical context also shows that the EPGA was meant for local matters...................................................................................... 31
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III. Ignoring the EPGA’s geographic and scope-of-authority limitations creates an impermissible delegation of lawmaking powers. ........................... 33 A. The lawmaking power rests exclusively with the Legislature. ................. 33 B. The Governor is unilaterally making laws. ................................................ 35 C. Crisis does not diminish the separation of powers..................................... 36 D. The EPGA’s supposed delegation of power cannot save the Governor’s COVID-19 executive orders. ..................................................... 38
CONCLUSION............................................................................................................. 45 APPENDIX................................................................ Error! Bookmark not defined.
iv

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Cases

INDEX OF AUTHORITIES

Advisory Op to the Gov, 88 So 2d 131 (Fla 1956) .......................................................................................... 10

Apsey v Mem Hosp, 477 Mich 120; 730 NW2d 695 (2007) ..................................................................... 23

Blank v Dept of Corr, 462 Mich 103; 611 NW2d 530 (2000) ..................................................................... 44

Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1; 367 NW2d 1 (1985) ............................................................................. 44

City of Gaylord v Beckett, 378 Mich 273; 144 NW2d 460 (1966) ....................................................................... 7

Civil Serv Comm’n of Michigan v Auditor Gen, 302 Mich 673; 5 NW2d 536 (1942) ......................................................................... 34

Clean v State, 130 Wash 2d 782; 928 P2d 1054 (1996) ................................................................. 10

Dept of Envtl Quality v Worth Tp, 491 Mich 227; 814 NW2d 646 (2012) ..................................................................... 31

Donkers v Kovach, 277 Mich App 366; 745 NW2d 154 (2007) ............................................................. 25

Ex parte Landaal, 273 Mich 248; 262 NW 897 (1935) ......................................................................... 23

Food & Drug Admin v Brown & Williamson Tobacco Corp, 529 US 120; 120 S Ct 1291; 146 L Ed 2d 121 (2000) ............................................ 27

Forrester Lincoln Mercury, Inc v Ford Motor Co, No. 1:11-cv-1136, 2012 WL 1642760 (MD Pa, May 10, 2012)............................... 30

Foster v Graves, 168 Ark 1033; 275 SW 653 (1925).......................................................................... 10

Fruge v Bd of Trustees of La State Employees’ Ret Sys, 6 So 3d 124 (La, 2008) ............................................................................................ 10

Gannon v State, 304 Kan 490; 372 P3d 1181 (2016) ........................................................................ 18

v

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Gross v Gen Motors Corp, 448 Mich 147; 528 NW2d 707 (1995) ..................................................................... 23
Gundy v United States, ____US____; 139 S Ct 2116; 204 L Ed 2d 522 (2019) ............................................ 36
Henry v Dow Chem Co, 473 Mich 63; 701 NW2d 684 (2005) ....................................................................... 34
Herald Wholesale, Inc v Dept of Treasury, 262 Mich App 688; 687 NW2d 172 (2004) ............................................................. 23
Home Bldg & L Ass'n v Blaisdell, 290 US 398; 54 S Ct 231; 78 L Ed 413 (1934) ....................................................... 37
Horne v Dept of Agric, 576 US 350; 135 S Ct 2419; 192 L Ed 2d 388 (2015) ............................................ 36
House of Representatives, et al. v Governor, 943 NW2d 365, reconsideration denied, 944 NW2d 706 (Mich, 2020) ................. 13
Hoyt Bros v City of Grand Rapids, 260 Mich 447; 245 NW 509 (1932) ......................................................................... 44
Hunter v Hunter, 484 Mich 247; 771 NW2d 694 (2009) ..................................................................... 33
In re Advisory Op to the Gov, 732 A2d 55 (RI 1999) .............................................................................................. 13
Indus Union Dept, AFL-CIO v Am Petroleum Inst, 448 US 607; 100 S Ct 2844; 65 L Ed 2d 1010 (1980) ............................................ 36
INS v Chadha, 462 US 919; 103 S Ct 2764; 77 L Ed 2d 317 (1983) ................................................ 7
Judicial Attorneys Ass’n v Mich, 459 Mich 291; 586 NW2d 894 (1998) ..................................................................... 35
Kean v Clark, 56 F Supp 2d 719 (S.D. Miss. 1999)....................................................................... 19
King v Lindberg, 63 Ill 2d 159; 345 NE2d 474 (1976) ....................................................................... 18
Klammer v Dept of Transp, 141 Mich App 253; 367 NW2d 78 (1985) ............................................................... 43
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Leonardson v City of E Lansing, 896 F2d 190 (CA 6, 1990) ....................................................................................... 33
Lewis Consol Sch Dist of Cass Co v Johnston, 256 Iowa 236; 127 NW2d 118 (1964) ..................................................................... 42
Little Caesar Enterprises v Dept of Treasury, 226 Mich App 624; 575 NW2d 562 (1997) ............................................................. 31
Makowski v Governor, 495 Mich 465; 852 NW2d 61 (2014) ....................................................................... 20
Marbury v Madison, 5 US 137; 2 L Ed 60 (1803) .............................................................................. 20, 21
Marine Forests Soc’y v Cal Coastal Com, 36 Cal 4th 1; 113 P3d 1062 (2005) ......................................................................... 13
Marshall Field & Co v Clark, 143 US 649; 12 S Ct 495; 36 L Ed 294 (1892) ....................................................... 36
Maryville Baptist Church, Inc v Beshear, No 20-5427, 957 F3d 610, ___ (CA 6, May 2, 2020)............................................... 37
MDHHS v Manke, Docket No. 353607 (Mich Ct App, May 28, 2020) ................................................. 39
Metro Life Ins Co v Stoll, 276 Mich 637; 268 NW 763 (1936) ......................................................................... 25
Milford v People’s Cmty Hosp Auth, 380 Mich 49; 155 NW2d 835 (1968) ....................................................................... 44
Nixon v Adm’r of Gen Servs, 433 US 425; 97 S Ct 2777; 53 L Ed 2d 867 (1977) ................................................ 18
NLRB v Noel Canning, 573 US 513; 134 S Ct 2550; 189 L Ed 2d 538 (2014) ............................................ 13
O’Leary v O’Leary, 321 Mich App 647; 909 NW2d 518 (2017) ............................................................. 29
Op of the Justices, 121 NH 552, 431 A2d 783 (1981) ........................................................................... 18
Or Educ Ass’n v Phillips, 302 Or 87; 727 P2d 602 (1986) ............................................................................... 18
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Oshtemo Charter Tp v Kalamazoo Co Rd Com’n, 302 Mich App 574; 841 NW2d 135 (2013) ....................................................... 40, 44
Osius v City of St Clair Shores, 344 Mich 693; 75 NW2d 25, 27 (1956) ................................................................... 40
Parise v Detroit Entmt, LLC, 295 Mich App 25; 811 NW2d 98 (2011) ................................................................. 25
People ex rel Twitchell v Blodgett, 13 Mich 127, 139 (1865) ......................................................................................... 37
People v Arnold, 502 Mich 438; 918 NW2d 164 (2018) ..................................................................... 27
People v Cannon, 481 Mich 152; 749 NW2d 257 (2008) ..................................................................... 23
People v Hall, 499 Mich 446; 884 NW2d 561 (2016) ............................................................... 24, 29
People v Hanrahan, 75 Mich 611; 42 NW 1124 (1889) ........................................................................... 39
People v Jensen, 231 Mich App 439; 586 NW2d 748 (1998) ............................................................. 10
People v Kern, 288 Mich App 513; 794 NW2d 362 (2010) ............................................................. 27
People v Morey, 230 Mich App 152; 583 NW2d 907 (1998) ............................................................ 23
People v Smith, 87 Mich App 730; 276 NW2d 481 (1979) ............................................................... 33
People v Valentin, 457 Mich 1; 577 NW2d 73 (1998) ........................................................................... 24
Perrin v Kitzhaber, 191 Or App 439; 83 P3d 368 (2004) ....................................................................... 13
Pike v N Michigan Univ, 327 Mich App 683; 935 NW2d 86 (2019) ............................................................... 26
Ranke v Michigan Corp & Sec Comm, 317 Mich 304; 26 NW2d 898 (1947) ....................................................................... 38
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SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65; 894 NW2d 535 (2017) ....................................................................... 27
Soap and Detergent Ass’n v Nat Resources Comm’n, 415 Mich 728; 330 NW2d 346 (1982) ..................................................................... 34
State Conservation Dept v Seaman, 396 Mich 299; 240 NW2d 206 (1976) ..................................................................... 41
State ex rel Inv Corp of S Fla v Harrison, 247 So 2d 713 (Fla 1971) ........................................................................................ 18
State ex rel Kennedy v Reeves, 22 Wash 2d 677; 157 P2d 721 (1945) ..................................................................... 10
State of Ohio v US Dep’t of the Interior, 880 F2d 432; 279 US App DC 109 (1989) .............................................................. 21
State v Thompson, 92 Ohio St 3d 584; 752 NE2d 276 (2001)............................................................... 42
State v Turner, 145 N.E.3d 985, (Ohio Ct App, 2019) ................................................ 29 Synar v United States,
626 F Supp 1374 (DDC, 1986) ............................................................................... 40 Taxpayers of Mich Against Casinos v State,
471 Mich 306; 685 NW2d 221 (2004) ....................................................................... 6 Taylor v Smithkline Beecham Corp,
468 Mich 1; 658 NW2d 127 (2003) ......................................................................... 35 Trentadue v Buckler Lawn Sprinkler,
479 Mich 378; 738 NW2d 664 (2007) ..................................................................... 23 US Term Limits, Inc v Thornton,
514 US 779; 115 S Ct 1842; 131 L Ed 2d 881 (1995) ............................................ 18 Wal-Mart Stores, Inc v Knickrehm,
101 F Supp 2d 749 (E.D. Ark 2000) ....................................................................... 19 Walsh v City of River Rouge,
385 Mich 623; 189 NW2d 318 (1971) ......................................................... 32, 33, 40 Wayman v Southard,
23 US 1; 6 L Ed 253 (1825) .................................................................................... 33
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Westervelt v Nat’l Resources Comm’n, 402 Mich 412; 263 NW2d 564 (1978) ............................................................... 34, 40
Whitman v Am Trucking Associations, 531 US 457; 121 S Ct 903; 149 L Ed 2d 1 (2001) .................................................. 43
Winters v Ill State Bd of Elections, 197 F Supp 2d 1110 (ND Ill, 2001), aff’d, 535 US 967, 122 S Ct 1433 (2002) ................................................................ 13
Wisconsin Legislature v Palm, No. 2020AP765-OA, 2020 WL 2465677 (Wis, May 13, 2020) ................... 37, 38, 42
Yant v City of Grand Island, 279 Neb 935; 784 NW2d 101 (2010) ...................................................................... 42
Young v City of Ann Arbor, 267 Mich 241; 255 NW 579 (1934) ......................................................................... 34
Youngstown Sheet & Tube Co v Sawyer, 343 US 579; 72 S Ct 863; 96 L Ed 1153 (1952) ................................................ 8, 37
Statutes La Stat 14:329.6 ........................................................................................................... 31 MCL 10.31 .............................................................................................................. 39, 41 MCL 10.31(1) ............................................................................................. 25, 26, 29, 30 MCL 10.31(2) ............................................................................................................... 25 MCL 10.32 .................................................................................................................... 31 MCL 28.6 ...................................................................................................................... 30 MCL 30.402(e).............................................................................................................. 25 MCL 30.402(h) ............................................................................................................. 25 MCL 30.403(3), (4) ........................................................................................... 25, 26, 30 MCL 30.404(3) ............................................................................................................. 26 MCL 30.405 .................................................................................................................. 26 MCL 30.405(1) ............................................................................................................. 26 MCL 30.406 .................................................................................................................. 26
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MCL 30.407–.408 ......................................................................................................... 26 MCL 30.409 .................................................................................................................. 26 MCL 30.417(d) ............................................................................................................. 27 MCL 550.1102(2).......................................................................................................... 44 NY Exec Law 24........................................................................................................... 30
Other Authorities Black’s Law Dictionary (11th ed. 2019) ................................................................ 30, 35 Detroit Free Press, Ice Storm to Blame, January 3, 1985.......................................... 28 Riots, Civil and Criminal Disorders
1235–1236 (US Government Printing Office, 1967) ............................................. 28 The Federalist No. 47 (Madison) ................................................................................. 34 Webster’s Third New International Dictionary 758 (1993) ........................................ 29
Constitutional Provisions 1963 Const., Article 3, § 2............................................................................................ 34 1963 Const., Article 4, § 1............................................................................................ 34 1963 Const., Article 4, § 14............................................................................................ 7 1963 Const., Article 4, § 17............................................................................................ 7 1963 Const., Article 4, § 18............................................................................................ 7 1963 Const., Article 4, § 21............................................................................................ 8 1963 Const., Article 4, § 22............................................................................................ 7 1963 Const., Article 4, § 24...................................................................................... 7, 39 1963 Const., Article 4, § 26................................................................................ 7, 12, 39 1963 Const., Article 4, § 27.............................................................................. 7, 8, 9, 19 1963 Const., Article 4, § 28............................................................................................ 9 1963 Const., Article 4, § 29...................................................................................... 7, 14 1963 Const., Article 4, § 33............................................................................................ 7
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1963 Const., Article 4, § 35............................................................................................ 7 1963 Const., Article 4, § 39............................................................................................ 9 1963 Const., Article 4, § 51...................................................................................... 6, 34 1963 Const., Article 5, § 1............................................................................................ 35 1963 Const., Article 5, § 15............................................................................................ 9 1963 Const., Article 5, § 16............................................................................................ 8
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STATEMENT OF INTEREST The Michigan House of Representatives and the Michigan Senate together comprise the sole lawmaking body for the State of Michigan. Const 1963, art 4, § 1. Among other things, the Michigan Constitution charges the Legislature with “pass[ing] suitable laws for the protection and promotion of the public health.” Const 1963, art 4, § 51. This proceeding raises issues of vital importance to that exclusive power to legislate. And no party is more interested in these issues than Michigan’s first branch of government, the Legislature, which has asserted many of the same challenges to the Governor’s unilateral exercise of statewide, indefinite lawmaking power in its own suit. In inviting the Legislature to submit a brief here, the Court recognized the Legislature’s substantial interest.
INTRODUCTION This case ultimately reduces to a straightforward question: whether this governor, and any governor to come, can exercise broad, statewide, and indefinite policy-making powers—over the Legislature’s objection—whenever the governor, and the governor alone, determines that an emergency exists. Governor Gretchen Whitmer insists that the Emergency Powers of the Governor Act (“EPGA”) and Emergency Management Act (“EMA”) give her that all-encompassing power. In so arguing, the Governor stretches statutory text to its breaking point, upends constitutional structures, and uses a legitimate crisis to justify illegitimate assertions of power.
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To uphold our constitutional allocation of power, the Court should hold that neither the EPGA nor the EMA grant the Governor the broad powers that she is currently exercising. Were it otherwise—if a statutory delegation of emergency authority permitted the Governor to regulate the health, safety, and welfare of Michigan’s citizens, with statewide effect, unilaterally, immediately, and indefinitely—then that delegation of authority would be an unconstitutional delegation and usurpation of lawmaking power.
This Court should return the balance of power to the division allocated in the Michigan constitution. Only the Legislature can make laws. Those who designed Michigan’s constitutional system purposefully favored consensus-based policy making over unilateral executive action. The system equips the Governor to act swiftly and the Legislature to act deliberately in times of crisis; to be effective, the State’s response to this crisis must be both swift and deliberate. And yet, for almost six months, the Governor has insisted that the present is no time for deliberation, and the inconvenience of the legislative process justifies a go-it-alone approach. But remember, for example, that two-thirds of both houses, in addition to the Governor, must agree before legislation can take immediate effect. This increased level of cooperation through deliberation in times of emergency is not a bug, it is a feature— one that the constitutional framers fully intended. This Court should restore that intention. The Court should answer the certified questions and inform the U.S. District Court for the Western District of Michigan that the Governor had no power to enter her post-April 30 declarations of disaster and emergency.
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SUMMARY OF THE ARGUMENT The Governor’s actions in unilaterally imposing an indefinite, statewide state of emergency and disaster cannot stand. The Governor has fundamentally rearranged the political structures enshrined in the 1963 Michigan Constitution, warping the incentives that were baked into it. The Constitution sets up many hoops for legislation to jump through before it becomes law—even in emergencies, which the Constitution foresaw. The Constitution requires inter- and intra-branch compromise and consensus in normal times; it requires heightened cooperation in times of crisis. But with the executive now empowered with primary policy-making authority, legislators from the Governor’s party have no incentive to work with legislators of the other side. Nor does the Governor have incentive to compromise with the legislative majority. The constitutional mandate that crisis-time laws have strong bipartisan support is then replaced with rule-by-one. This reshuffling of authority has already undermined the Legislature’s ability to address the COVID-19 pandemic. Even so, the Legislature has, a few times, overcome this rearrangement and passed meaningful COVID-19 legislation—though never on an issue the Governor has decided is exclusively hers and always with a less desirable result than the Legislature could reach absent the threat of executive fiat. These bright spots show that once the Governor’s actions are declared unlawful and the normal political structure is restored, the Legislature can effectively govern alongside the Governor. It can, and it should.
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Neither the EMA nor EPGA supports the expansive delegation of emergency powers the Governor advocates. As Plaintiffs and the Attorney General have explained, any authority the Governor could exercise under the EMA expired on April 30, when the Legislature chose not to extend the states of emergency and disaster. Meanwhile, the previously all-but-dormant EPGA does not license the Governor to declare indefinitely a statewide state of emergency. The EPGA’s language describing the geographical scope of the emergency and the Governor’s permissible response show that the EPGA’s authority applies only to localized, not statewide, crises. The EPGA’s historical context—it was passed to allow an effective state response to civil unrest—confirms this localized-crisis reading. If the EPGA meant what the Governor says, and if it were co-extensive with the EMA, then the entire (later) EMA was an exercise in lawmaking futility. As the Governor applies these acts, there was no reason for the Legislature to pass the EMA, no reason for the Governor to sign it, and apparently, no way for anyone to enforce it. That view of the EPGA and EMA violates core rules of statutory interpretation. One is the maxim that lawmakers know the law when they pass new law. Another is that that every word in every law is presumed to have meaning. Rather than run roughshod over fundamental precepts like these, the Court should interpret the passage of the EMA as specific, purposeful lawmaking that governs the Governor’s emergency authorities, not as mere performance art.
If problems of statutory authority are not enough, the Governor’s interpretation of the EPGA faces another significant hurdle: it violates the separation
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of powers. In Michigan, the constitution gives all lawmaking power to the Legislature, which cannot delegate that power. Yet the Governor’s COVID-19 executive orders incontrovertibly make law. And contrary to the Governor’s repeated intimations, emergency does not create power, and constitutional structure may not be sacrificed for efficiency and seeming necessity. The Legislature could never constitutionally delegate the amount and kind of power the Governor thinks it did. Even if such power were delegable, the EPGA lacks the standards required to guide that power. As a delegation’s scope increases, the strength of the guiding standards must increase commensurately. In the Governor’s view, the EPGA gives her the largest conceivable delegation of power. The statute places no constraints on the Governor’s initial decision to declare a state of emergency, and according to the Governor, the only standards it imposes on her actions are that they must be “reasonable” and “necessary” to protect life and property or bring the crisis under control. That standardless half-page of text is insufficient to guide the vast delegation the Governor has found within the EPGA. The Court should avoid this constitutional thicket and interpret the EPGA consistent with its text and history.
The Governor’s post-April 30 declarations of emergency and disaster were ultra vires acts that cannot stand. The Court should answer the federal district court’s questions accordingly.
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ARGUMENT I. The Governor’s interpretation of her authority fundamentally alters
the 1963 Michigan Constitution’s political incentive structures, under which the legislature legislates, even in an emergency. The Governor’s approach to exercising emergency powers has substantially damaged the carefully calibrated levers of government that the Michigan Constitution creates. By insisting on unilateral control, the Governor has offended “the Constitution’s separation of powers doctrine, its legislative processes, and the specific limitations it places upon the individual branches of government.” Taxpayers of Mich Against Casinos v State, 471 Mich 306, 410 n 66; 685 NW2d 221 (2004) (Markman, J., concurring in part and dissenting in part).
A. The Michigan Constitution assigns the Legislature to regulate health, safety, and welfare of Michigan’s citizens and equips it as the proper forum to determine the State’s long-term response to a crisis.
Above all, the drafters of the Michigan Constitutions emphasized individual liberties of Michigan’s citizens, intentionally making it difficult for those in power to infringe the freedoms of the people. Both the law-making power and the responsibility to protect citizens’ health, safety, and welfare primarily rests not with the executive branch, but with the Legislature—the peoples’ elected representatives. Const 1963, art 4, § 51 (“The public health and general welfare of the people of the state are hereby declared to be matters of primary public concern. The legislature shall pass suitable laws for the protection and promotion of the public health.”). Article 4’s myriad requirements and duties—and, indeed, the Legislature’s very nature—make legislating difficult, both because it is “time consuming,” City of
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Gaylord v Beckett, 378 Mich 273, 322; 144 NW2d 460 (1966), and requires a “step-bystep, deliberate[,] and deliberative process.” INS v Chadha, 462 US 919, 959; 103 S Ct 2764; 77 L Ed 2d 317 (1983).
The crafting of public policy is supposed to be difficult. Legislation is not, as a rule, supposed to morph from nascent thought to binding law at the snap of the government’s fingers. Thought and time are key ingredients. The Legislature must take time to fully consider policy ramifications, and people must have notice of pending changes. For example, the Legislature can only do business when it has a quorum. Const 1963, art 4, § 14 Legislation must be introduced as a bill. Id. § 22. A bill may not “embrace more than one object,” and its fundamental character may not be changed by amendment. Id. § 24. Bills must sit in each house five days and be read three times before final passage. Id. § 26. Every vote on every piece of legislation in committee must be recorded and the journals made “available for public inspection.” See id. § 17, § 18. Every final-passage vote must be recorded in the journal. Id. § 18. The Legislature cannot use a local or special act if a general act will do; if a local or special act is necessary, it requires a two-thirds vote. Id. § 29. As does a legislative override of a governor’s veto. Id. § 33. All laws must be published no longer than 60 days after session ends, id. § 35, and by default cannot go into effect earlier than 90 days after session, id. § 27.
Of course, the drafters of the 1963 Michigan Constitution were no strangers to emergencies; even so, they saw value in deliberation. They had lived through the Great Depression and World War II, and many through the First World War as well.
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They, like the Founding Fathers, “knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.” Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 650; 72 S Ct 863; 96 L Ed 1153 (1952) (Jackson, J., concurring). Despite that firsthand knowledge, they prized legislative consensus over unilteral control.
Indeed, in times of crisis, the Constitution incentivizes more cooperation within and with the Legislature, not unilateral action by the Governor. Michigan’s framers, like the national framers, “made no express provision for exercise of extraordinary [executive] authority because of a crisis.” Id. To the contrary, even in times of crisis, the same fundamental power and incentive structures remain in place: legislation for the health, safety, and welfare of Michigan remains the duty of the Legislature. And the Constitution permits the Legislature to act with haste, but only on actions on which two-thirds of its members agree. Const 1963, art 4, § 27.
Several constitutional safety valves allow certain wheels of government to turn more easily during a crisis, but crucially, not in different directions. The center of governance in an emergency remains the Legislature. For example, if “the seat of government becomes dangerous from any cause,” the “governor may convene the legislature at some other place.” Const 1963, art 5, § 16. Even in those types of emergencies, “[n]either house shall, without the consent of the other, adjourn for more than two intervening calendar days.” Const 1963, art 4, § 21. The governor may also, on “extraordinary occasions,” convene the Legislature for a special session. Const
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1963, art 5, § 15. On those occasions, the Legislature may pass a bill only on subjects “expressly stated in the governor’s proclamation or submitted by special message.” Const 1963, art 4, § 28. In a section titled, “Continuity of government in emergencies,” the 1963 Michigan Constitution commands the Legislature to provide for “continuity of state and local governmental operations in periods of emergency.” Const 1963, art 4, § 39. To this end, the Legislature “may provide by law for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices.” Id. Even so, “elections shall always be called as soon as possible to fill any vacancies in elective offices temporarily occupied by operation of any legislation enacted pursuant to the provisions of this section.” Id. Thus, in times of crisis, the Constitution expressly provides that the Legislature will continue to meet regularly and continue to pass legislation that governs the public health, safety, and welfare of Michigan’s diverse citizenry.
The Constitution also permits legislation with speed, but increased speed concomitantly requires heightened cooperation. Ordinarily, the Legislature can pass laws for the governor’s signature by majority vote, and the effect of those laws is delayed until 90 days after a legislative session ends (and at least 30 days after publication of the law). The Legislature can override this delay and pass legislation with immediate effect, but only by vote of two thirds of both houses. See id. § 27. In short, where legislation is required to go into immediate effect to protect the health,
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safety, and welfare of Michigan’s citizens in the short or long term, the Constitution’s incentive system requires a super-majority of elected representatives to hammer out bipartisan agreements.
The executive branch’s briefing repeatedly intimates that these choices are wrong—that during an emergency the executive branch must, for the good of the state, take over the policymaking role, replacing legislation with executive orders that must in turn be imposed in an instant. But courts in Michigan and across the country have recognized that during emergencies—and specifically epidemics— legislation should continue to come from the Legislature. The “Legislature has the ability to protect the public health, welfare, and safety through legislation” combatting “incurable epidemics” as they are happening. People v Jensen, 231 Mich App 439, 454, n 6; 586 NW2d 748 (1998); see also Fruge v Bd of Trustees of La State Employees’ Ret Sys, 6 So 3d 124, 131 (La, 2008) (contemplating that the Legislature will meet and pass legislation during an epidemic); Clean v State, 130 Wash 2d 782, 832; 928 P2d 1054 (1996) (holding that the Legislature had a duty and role to legislate especially during an “epidemic of vast proportions,” quoting State ex rel Kennedy v Reeves, 22 Wash 2d 677, 681; 157 P2d 721 (1945)); Advisory Op to the Gov, 88 So 2d 131, 132 (Fla 1956) (noting that, under Florida’s constitutional structure, the Legislature should take “needed legislative action to meet public emergencies”); Foster v Graves, 168 Ark 1033; 275 SW 653, 655 (1925) (holding that emergencies such as “widespread epidemics” may “requir[e] the instant convening of the Legislature” to address the epidemic via legislation).
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And the public record shows that the Legislature is ready and willing to act here. Since the Governor first declared an emergency on March 10, 2020, the Legislature has done tremendous legislative work. It has, for example, introduced over 700 bills and 100 resolutions. Over the same time, it passed about 240 bills and adopted 60 resolutions. It has also enrolled over 90 bills. And nearly all of those enrolled bills have become laws on topics including criminal law, criminal procedure, probate law, civil procedure, telecommunications, insurance law, contract law, municipal law, tax law, primary and higher education, watercraft, municipal bonds, public parks, financial institutions, liquor law, property law, the courts, unemployment benefits, environmental law, traffic laws, licensing, economic development, state identification cards, election law, mental health services, health law, Medicaid, vehicle registration, law enforcement, agriculture, infrastructure, and labor law. See 2020 Michigan Public Acts Table https://bit.ly/2XTvgFE (last accessed August 12, 2020). These legislative acts are based on dozens of committee meetings and hours and hours of testimony and debate.
Much of this legislative work specifically addresses the COVID-19 pandemic and its ripple effects. For example, just a few days ago, the Legislature passed the signature bipartisan “Return to Learn” education bill package, providing for the safe return of students to school this fall. In late July, the Legislature passed HB 5265, SB 145, and SB 373—three bills that address a $2.2 billion budget hole caused by COVID-19. These bills passed nearly unanimously with only a handful of nay votes out of hundreds of votes cast. The Legislature also appropriated and distributed $880
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million from the Coronavirus Relief Fund via SB 690 without a single “nay” vote. The Legislature’s appropriations committees approved both spending reductions proposed by the Governor in EO 2020-155 as well as several ad hoc transfer requests by the Governor. And finally, in mid-March, the Legislature appropriated, and the Governor signed, a $150 million funding package to support current and future COVID-19 public health efforts. See HB 4729; SB 151. This included additional funding for COVID-19 health care capacity, preparedness and response activities, and a reserve fund for future needs.
Not only can the Legislature reach substantive consensus, it can still do so quickly. On April 7, for example, Senate Majority Leader Shirkey introduced Senate Concurrent Resolution 24 to extend the state of emergency under the EMA. That same day, both the Senate and House of Representatives adopted SCR 24, extending the state of emergency 23 days to April 30. The Legislature can also call a special session via a joint letter and 18-hour notice (or, in some circumstances, sooner). It has done so multiple times during the pandemic, convening a special session on April 24 for both chambers, on August 15 for the Senate, and on August 17 for the House. The Legislature also has COVID-19-related bills sitting in both chambers, which could immediately be passed and sent to the other chamber, thus halving the constitutional five-day waiting requirements. Const 1963, art 4, § 26.
In short, the Legislature’s deliberative role was and is central to our State’s system of governance—and remains so even in the midst of challenge as unprecedent as COVID-19.
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B. The EMA & EPGA must be read to complement the constitutional incentive structure, not to undermine it.
The Legislature offers the proper reading of the EMA and EPGA. That reading is described below; no doubt Legislature will have more to say on that subject if it or the Governor brings the Legislature’s own challenge to the Governor’s flawed interpretations of those statutes to this Court. See House of Representatives, et al. v Governor, 943 NW2d 365, reconsideration denied, 944 NW2d 706 (Mich, 2020). But for now, it’s enough to say that the Governor’s view is not consistent with the constitutional incentive structure and separation of powers.
In reviewing these statutes, the Court should take careful account of these incentive structures. Perrin v Kitzhaber, 191 Or App 439, 446; 83 P3d 368 (2004) (recognizing the effect of its interpretation and the constitution on “incentive[s] to resolve political disagreements in the appropriate forum: the legislature”); Marine Forests Soc’y v Cal Coastal Com, 36 Cal 4th 1, 62; 113 P3d 1062 (2005) (Baxter, J., concurring) (noting that a court should be aware of the “political incentives” when interpreting statutes). It cannot close its eyes to other-branch actions that “fundamentally alter[] the constitutional structure of th[e] state.” In re Advisory Op to the Gov, 732 A2d 55, 71 (RI 1999); accord NLRB v Noel Canning, 573 US 513, 573; 134 S Ct 2550; 189 L Ed 2d 538 (2014). Honoring the incentive structure that the framers baked into the 1963 Michigan Constitution, this Court should interpret the EPGA and EMA to “give both political parties an incentive to compromise.” Winters v Ill State Bd of Elections, 197 F Supp 2d 1110, 1114 (ND Ill, 2001), aff’d, 535 US 967, 122 S Ct 1433 (2002).
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The EMA, for example, as explained below, allows the Governor to immediately act statewide in the case of an emergency, but not permanently. The permanent statewide response is the Legislature’s job. So, the EMA’s 28-day period gives the Legislature time to gather, brainstorm, draft legislation, hold committee meetings, and line up votes to obtain the super-majority needed for immediate effect. It also gives the Legislature and the Governor time to work together on solutions and determine the extent to which emergency executive authority is necessary to respond to a crisis. And in requiring a jointly passed resolution for an emergency to be extended, the EMA, just like the Michigan Constitution, forces legislative agreement—and not just standard political agreement, but the sort of additional bipartisan cooperation the Michigan Constitution requires in cases of emergencies. Consensus and time still respected in the exercise of awesome, statewide power.
The EPGA, in allowing the Governor to assist locally, respects the requirements of Const 1963, art 4, § 29. Section 29 prohibits the Legislature from passing a local or special act if a general act will suffice. The EPGA is a general act the Governor implements locally. It does not delegate the same powers the EMA does; it does not, for example, allow the Governor to suspend and amend statutes. Instead, it allows the Governor to swiftly direct state resources to help local officials with immediate crisis control—the kind of thing the Constitution envisioned would be done by the executive branch, not the Legislature. Immediacy can be favored over consensus in that act because of its limited reach; the entire system of governance is not upended, but only a local problem is resolved.
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Of course, if the Governor did not interpret her authority to be both independent and unbounded in the case of an emergency, then she, too, would have an incentive to work with the Legislature to pass laws that a super-majority of elected legislators agree are best for Michigan. Michigan’s emergency powers laws sufficiently empower state government to offer a unified response to crises without using them to supplant the Legislature’s role. The EMA and EPGA should be construed in this way to complement the constitution’s structure.
C. The executive’s interpretation upends the constitutional incentives, and it has already disrupted the legislative process.
The constitutional framers recognized that that bipartisanship and consensus are critical precisely when the State is facing a tremendous challenge. The executive branch’s view of the EMA and EPGA sacrifices compromise and consensus on the altar of efficiency. The Legislature asks this Court to restore the political balance the constitutional framers struck—and with it, the incentives for legislative and executive cooperation in times of emergency.
The executive branch’s interpretation of the EMA and EPGA allows the Governor to easily alter the rules that govern Michigan citizens—something the framers intended only the Legislature would do, and even then only with great consensus and accountability. No longer are public health and economic issues across the entire state being controlled by the people’s direct representatives. No longer is the threat of criminal sanctions a tool of the Legislature. The Governor now wields them at her total discretion. And, of course, the Governor’s formation and promulgation of policy does not require agreement of two-thirds of elected legislators
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to take immediate effect. In fact, it does not require any interbranch cooperation whatsoever. Policy decisions that have both short-term and long-term consequences on Michigan’s diverse citizenry are being unilaterally made by a single official who is, by constitutional design, ill-equipped to process the needs and concerns of the thousands of stakeholders and communities across the state. And those decisions can (and do) change at any time and at a moment’s notice.
The executive’s interpretation of the EPGA has the Legislature delegating its constitutional duty to regulate public health, safety, and welfare to the Governor, while simultaneously dropping all of Article 4’s lawmaking protections. It takes the power to decide “reasonable and necessary” long-term health and safety measures that must go into immediate effect away from a two-thirds majority of both houses and gives that vast power to a single person—the then-Governor—with no meaningful checks or balances. Gone is the heightened need for compromise and bipartisanship the constitutional drafters called for in times of emergency; and in its place, the rule-by-one structure that the drafters imposed so many protections seeking to avoid.
The executive branch’s interpretation of the EMA and EPGA also has deceptively subtle but significant effects on the Legislature’s internal incentives. With the governor wresting the power to implement any policy his or her party seeks unilaterally, legislators who are members of that party have no incentive to cooperate toward the constitutionally required legislative consensus. Why bother compromising, deliberating, or striking deals with a super-majority when the
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governor can make policy dreams come true in mere seconds with the stroke of a pen? Indeed, accepting the executive branch’s view of the EMA and EPGA means that, in this and future emergencies, members of the then-governor’s party are better off not engaging in meaningful discussions and debate with fellow legislators. Put another way, whereas the 1963 Michigan Constitution requires bipartisan cooperation in times of emergency—the legislators working together to solve a puzzle—the executive branch’s interpretation encourages some members to take their puzzle pieces, go home, and await the governor’s solo solution. Better to let a single, ideologically aligned official craft and maximize shared policy preferences via executive orders than risk compromising in a bipartisan bill. This dangerously upends political incentives.
These are not abstract fears; these sorts of distortions are already affecting the Legislature. For example, when the Legislature tried a few months ago to codify several of the Governor’s executive orders via SB 858, legislative members of the Governor’s party refused to vote for the bill—despite fully and publicly supporting the bill’s substance. This refusal meant that although SB 858 passed, it did not get the two-thirds vote necessary for immediate effect. In a victory for circular reasoning, the Governor then vetoed SB 858 because it would not take immediate effect and would “constrain [her] ability,” preserving her executive orders as the sole actions addressing those COVID-19-related issues. Senate Journal 39, May 7, 2020, p 655 https://bit.ly/3fV2hrp. And just last week the Governor vetoed SB 899, which would have codified the same type of long-term immunity to healthcare workers and
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facilities during an emergency or disaster declaration that the Governor previously requested and subsequently provided by executive order. The Governor felt that doing so by legislation encroached on her own extensions of immunity, so she vetoed it. Veto Letter, August 10, 2020 https://bit.ly/3fVX1n4 (mocking the bill as “an attempt to mop up one consequence” of the Legislature’s decision not to extend the Governor’s emergency powers).
These disruptions to the political balance matter: state supreme courts consistently “recognize the political realities of the legislative branch”—especially to better understand statutory interplay with the constitutional structure. Gannon v State, 304 Kan 490, 517; 372 P3d 1181 (2016); see also King v Lindberg, 63 Ill 2d 159, 162; 345 NE2d 474 (1976) (“[W]e cannot overlook the practical political reality . . . .”); State ex rel Inv Corp of S Fla v Harrison, 247 So 2d 713, 717 (Fla 1971) (using “logic and political reality” to understand the interplay of a constitutional provision and statute); Op of the Justices, 121 NH 552, 556, 431 A2d 783 (1981) (noting that the “drafters of [New Hampshire’s] constitution recognized [ ] political realit[ies]”); Or Educ Ass’n v Phillips, 302 Or 87, 108; 727 P2d 602 (1986) (Linde, J., concurring) (opposing an interpretation that “subordinates political reality to a verbal fiction”). The United States Supreme Court and other federal courts do, too. See US Term Limits, Inc v Thornton, 514 US 779, 842; 115 S Ct 1842; 131 L Ed 2d 881 (1995) (Kennedy, J., concurring) (using the “political reality” of our government to understand our constitution); Nixon v Adm’r of Gen Servs, 433 US 425, 483–484; 97 S Ct 2777; 53 L Ed 2d 867 (1977) (“We, of course, are not blind to appellant’s plea
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that we recognize the social and political realities of 1974.”); Wal-Mart Stores, Inc v Knickrehm, 101 F Supp 2d 749, 761 (E.D. Ark 2000) (“The court understands that political realities cannot be ignored.”); Kean v Clark, 56 F Supp 2d 719, 726 n 9 (S.D. Miss. 1999) (recognizing that some “justiciable political issue involv[e] the intersection of constitutional rights and political realities”).
Nor is it a response to argue, as the Governor has, that the Governor may do what is necessary and reasonable for public health under the EPGA. The Michigan Constitution explicitly gives the role of protecting public health to the Legislature. And as should be plain enough by now, it allows the Legislature to act with immediate effect in times of emergency, but only when a super-majority agree. Const 1963, art 4, § 27. At a time when the constitution calls for legislative cooperation, the EPGA cannot be interpreted to have delegated away the legislature’s role in its entirety, and with it all constitutional protections that govern lawmaking.
The disruption of the constitutional incentive structure also rebuts the oftrepeated argument that this Legislature can return incentive structures to the constitutional norm by amending or repealing the EPGA. Putting aside that the Governor’s interpretation of the law and not the law itself is the problem, this argument blinks reality. The Governor seems to recognize that the broken incentive system she has created in turn prevents some legislators from voting even for legislation they agree is reasonable and necessary—leaving the Governor to enact the same by executive order. But the Governor ignores that the same broken incentive system prevents amendment of the law she says gives her those powers—especially
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with enough votes to go into immediate effect and to override the Governor’s certain veto. The reality is, if the EPGA is interpreted as broadly as the Governor claims, repeal or amendment is possible only with a legislative super-majority that is not the governor’s party.
Our constitutional system simply does not envision a substantial number of legislators being statutorily disincentivized from participating in the legislative process, thus making a two-thirds vote effectively impossible. The executive branch’s implementation of the EMA and EPGA has broken our constitutional incentive system—the very thing the Governor is telling the Legislature it must use to fix the problem. It is like breaking a tool-and-dye machine and then telling the machine operator that if she needs any parts to fix it, she’ll have to make them with her broken machine.
Fundamentally, it has been the function of the courts since Marbury v. Madison to rectify improper exercises of executive power. See Marbury v Madison, 5 US 137, 177; 2 L Ed 60 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”). No Michigan court has agreed that it must stand silent whenever the Legislature might have a remedy of its own. See Makowski v Governor, 495 Mich 465, 475; 852 NW2d 61 (2014) (“[The distribution of power between the Legislature and the Governor . . . creates a legal question that this Court must answer.”). After all, why should the Legislature be forced to resort to self-help, without the aid of courts, merely because one person has chosen to wield a given statute in a wholly improper way? See State of Ohio v US Dep’t of the Interior, 880
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F2d 432, 458; 279 US App DC 109 (1989) (effectively refusing to penalize a legislature for its failure to “amend an already-clear statutory command”). It seems especially grotesque to insist on that course when the possible legislative “remedy” is entirely illusory. Marbury, 5 US at 176 (“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?”).
The executive branch’s interpretation of the EPGA and EMA have upset the political incentives baked into the 1963 Michigan Constitution. Without them, the system simply does not work as intended. The Court should return state government’s levers to their proper places. II. Neither the EMA nor EPGA gives the governor the power to disrupt
the constitutional balance of power, even in times of emergency. The Governor, finding no constitutional authority to legislate the health, safety, and welfare of Michigan citizens in times of emergency, advances two statutory provisions as the source of her power. Neither gives her the power she purports to wield. A. As the Plaintiffs and Attorney General correctly argue, the
Governor’s authority under the EMA expired on April 30, 2020. The Legislature has little to add to the Plaintiffs’ and Attorney General’s explanation that any authority the Governor may have had under the EMA expired on April 30, 2020, when the Legislature chose not to extend the state of emergency or disaster under the EMA. Pl’s Br, pp 17–22; Attorney General’s (“AG’s”) Br, pp 37– 40. The Governor’s contrary view ignores the plain text of the act and renders the
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Legislature’s responsibility under the act a nullity. Pl’s Br, p 14; AG’s Br, pp 39–40 (“Allowing the Governor to repeatedly rescind and immediately replace the declared states of disaster and emergency would risk shortchanging [the legislative] intent and rendering the Legislature’s involvement in the extension process mere surplusage.”). The Governor’s argument that the Legislature’s refusal to extend an emergency or disaster is a legislative “veto” is flatly wrong. Pl’s Br, pp 14–17; AG’s Br, p 38 n 41. No more needs to be said on that.
B. The Governor cannot use the EPGA to justify an indefinite, statewide state of emergency.
All parties agree that the EPGA and the EMA cover the same subject matter: gubernatorial emergency powers. Under fundamental principles of statutory construction, therefore, the two statutes must be harmonized and read so that every word is given meaning. The executive branch’s position—that the statutes independently authorize every COVID-19 executive order issued—renders every word of the 1976 EMA’s 12 pages surplusage. The Court should instead read the two statutes as having separate purposes: the EPGA is to assist with localized emergencies, while the EMA allows executive response to statewide disasters.
1. The executive branch’s interpretation creates an irreconcilable conflict between the EPGA and the EMA.
The Governor says her lack of authority under the EMA is no concern because she possesses the same authority under a statute passed thirty years earlier. Respectfully, she does not, and that’s not how lawmaking works.
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The rules of statutory interpretation require the Court to apply “any reasonable construction” before it accepts an interpretation that renders all or part of any statute “nugatory.” Ex parte Landaal, 273 Mich 248, 252; 262 NW 897 (1935) (emphasis added). Not even one word can be sacrificed. People v Cannon, 481 Mich 152, 158; 749 NW2d 257 (2008).
Contrary to this fundamental rule, the executive branch’s interpretation renders the entire EMA—its 1976 passage, every word in it, and every exercise of authority under it—a purposeless redundancy of the EPGA. See Apsey v Mem Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007) (“Whenever possible, every word of a statute should be given meaning. And no word should be treated as surplusage or made nugatory.”) (citation omitted). Interpretations must avoid rendering a portion of a statute “meaningless,” Herald Wholesale, Inc v Dep’t of Treasury, 262 Mich App 688, 699; 687 NW2d 172 (2004), or “unnecessary,” Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 399; 738 NW2d 664 (2007).
If the EPGA’s few paragraphs could swallow the EMA’s disaster-response provisions whole, then Governor Milliken and the 1976 Legislature engaged in a meaningless and empty exercise in calling for the EMA, passing it, and signing it into law. The Legislature often passes later statutes to broaden more primitive statutory schemes, but it makes no sense for it to pass a later statute that is total surplusage from the moment it passes. If the Governor really could do anything under the EPGA that she can under the EMA, then the EMA statute—including its substantive and temporal safeguards—are pointless. Why would the Legislature pass and the
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Governor sign the EMA, if the acts it authorizes were already permitted under the EPGA? And why would any Governor accept the more rigid procedures of the EMA when she could have all that authority (and more) through a brute-force application of the EPGA?
The executive branch has no answer to these questions, and, indeed, has never provided a plausible way to read the EPGA as broadly as it does while maintaining the integrity of both statutes. Even when expressly called on to do so before the Court of Appeals and the Court of Claims, the Governor simply could not.
Statutes relating “to the same subject” or sharing “a common purpose” are in pari materia and “must be read together as one.” People v Hall, 499 Mich 446, 459 n 37; 884 NW2d 561 (2016) (cleaned up). Even a facially unambiguous statute can be made “ambiguous by its interaction with and its relation to other statutes.” People v Valentin, 457 Mich 1, 6; 577 NW2d 73 (1998) (cleaned up). Here, the EPGA and EMA occupy the same realm of the law. They cover the same general topic: gubernatorial emergency powers. And they advance the same underlying concept: immediate executive crisis control pending more durable legislative action. The Governor cannot contend that they govern different subjects, having cited both as authority for her COVID-related actions.
But fundamental canons of construction prevent the Governor’s reading that the statutes provide identical powers. Under fundamental principles, for example, an earlier, broader statute (like the EPGA) cannot render a later, more specific one (like the EMA) an empty shell. When two statutes govern the same subject and are
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in conflict, “the more specific statute must control over the more general statute.” Donkers v Kovach, 277 Mich App 366, 371; 745 NW2d 154 (2007). And the older statute must yield to the newer. Metro Life Ins Co v Stoll,276 Mich 637, 641; 268 NW 763 (1936); Parise v Detroit Entmt, LLC, 295 Mich App 25, 28; 811 NW2d 98 (2011). Yet the executive branch’s interpretation allows the older, more general, 1945 EGPA to remove the statutory guardrails found in the newer, more specific 1976 EMA. E.g., MCL 30.403(3), (4), and MCL 10.31(2) (conflicting directions for terminating a declaration of emergency). That gets the matter exactly backwards: if the two statutes conflict, the EPGA must yield to the EMA, not the other way around.
Reading the EPGA’s conception of “emergency” against the EMA’s definition of “emergency” highlights the former’s local and narrow powers, as compared to the latter’s statewide and broader (but time limited) grant of authority. For example, the EPGA contemplates that the Governor will act in “emergency” instances like “rioting”—a local problem. MCL 10.31(1). And the EMA explains that an emergency exists whenever the Governor decides “state assistance” must “supplement local efforts.” MCL 30.402(h). So, even in the EMA, an “emergency” is a local problem that is nevertheless so severe it requires State help. But the EMA goes further, giving the power to declare a state of disaster. A disaster involves “widespread” damage, including, among other things, “epidemic[s].” MCL 30.402(e). Other examples confirm a disaster’s wide geographical scope: “blight, drought, infestation,” “hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities.” Id. Importantly, while the EPGA does mention “disaster,” it does not use
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it as a term of art or to empower the Governor to declare a “state of disaster.” See Pike v N Mich Univ, 327 Mich App 683, 696; 935 NW2d 86 (2019) (holding that, in statutes, different words are “are generally intended to connote different meanings.” (cleaned up)). An epidemic is nowhere to be found in the EPGA, either.
The EMA’s administrative components contemplate problems requiring statewide resources. See, e.g., MCL 30.404(3), 30.405(1) (providing for federal aid); MCL 30.406 (providing rules for compensation for property); MCL 30.407–.408 (setting up departments and department heads to oversee state administration); MCL 30.409 (providing for county representatives from each county). The EMA enumerates specific things the governor may do, most all of which have a broad reach. See MCL 30.405. And a declaration under the EMA must describe “the nature of the disaster, the area or areas threatened, the conditions causing the disaster, and the conditions permitting the termination of the state of disaster.” MCL 30.403(3), (4).
In contrast, the EPGA contains a brief statement of authority with some loose examples, all spanning a few terse paragraphs. MCL 10.31(1). The specific examples of power it offers are all directed to local issues (particularly civil unrest), including the power to control traffic, implement curfews, control “ingress,” control “places of amusement and assembly,” and regulate alcohol and explosive sales. Id. Rules guiding declarations of emergency and disaster are slimmer, and there are no structural checks other than the governor’s self-determination of emergency. Id.
The executive branch’s interpretation improperly allows the Governor to use the EPGA to capture the statewide powers in the EMA while leaving that statute’s
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limitations on those powers behind. The Legislature put tight limits on the EMA— including the 28-day automatic termination provision—because it can be used statewide. One cannot assume, as the executive branch does, that the EPGA, a statute with the vaguest of terms and slenderest of protections, affords a governor unchecked power over all aspects of Michiganders’ lives. “[T]he Legislature does not, one might say, hide elephants in mouseholes[.]” People v Arnold, 502 Mich 438, 480 n 18; 918 NW2d 164 (2018) (cleaned up); accord Food & Drug Admin v Brown & Williamson Tobacco Corp, 529 US 120, 160; 120 S Ct 1291; 146 L Ed 2d 121 (2000).
The executive branch cannot be permitted to create statutory conflict by using the EPGA to impose an indefinite, statewide state of emergency. And contrary to the executive branch’s assertions, “[t]he application of in pari materia is not necessarily conditioned on a finding of ambiguity” in any statute. SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 73 n 26; 894 NW2d 535 (2017). That the EMA and EPGA refer to one another is more reason to read them together, not less. People v Kern, 288 Mich App 513, 519–520; 794 NW2d 362 (2010).
MCL 30.417(d) does not change this. MCL 30.417(d) says the EMA does not “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to [the EPGA]” (emphasis added). First, this provision itself recognizes that the EPGA is separate, and whatever it is, it is not what the legislature passed in the 1976 EMA statute. Second, allowing the EMA to control as the more specific and recent statute does not limit the Governor’s ability to proclaim a state of emergency—only her ability to extend it over the Legislature’s objection. Third, if the
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EMA and the EPGA are confined to their appropriate spheres, then there would be no modification, implicit or otherwise. A “limit” or “abridge[ment]” only arises if the EPGA can infringe on the EMA’s turf, as the Governor maintains it does. But the Legislature is not arguing that EMA acts as some implied repeal of the EPGA. The Legislature’s reading of the EPGA merely acknowledges its already-existent scope— the scope that the 1976 Legislature and Governor found insufficient to address the emergency and disaster response baked into the EMA. Considering the EMA’s related scope does not “abridge” the EPGA in any way.
A few examples help highlight the relationship between the EPGA and EMA. The first of the only two ever pre-COVID-19 declarations under the EPGA came in the summer of 1967. When race riots erupted in Detroit, Governor Romney immediately invoked the EPGA to quell the riots. See Riots, Civil and Criminal Disorders 1235–1236 (US Government Printing Office, 1967). He issued a proclamation declaring “that a public crisis, emergency, rioting, and civil disturbances exist within the City of Detroit, Michigan, within the City of Highland Park, Michigan, and within the City of Hamtramck, Michigan, in the County of Wayne.” July 23, 1967 Proclamation. The second and last time, pre-COVID-19, the EPGA was used was over 20 years later. On New Year’s Day in 1985, an ice storm blanketed several southern-Michigan counties. Detroit Free Press, Ice Storm to Blame, January 3, 1985, at A1. With hundreds of thousands out of power in several specific counties, Governor Blanchard acted under the EMA, but also declared an emergency under the EPGA. Michigan Hazard Analysis, https://bit.ly/3hfalVd, p 326
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(April 2019). This was the last time, pre-COVID-19, the EPGA was used. By comparison, the EMA is used to address statewide emergencies. For example, when Great Lakes water levels were rising statewide in the 1970s, Governor Milliken needed the EMA to address it. When just last year extreme cold afflicted every corner of the state, Governor Whitmer dealt with it using the EMA. Imagine instead of local rioting that the police hear of a terrorist attack planned on an as-yet unknown public place somewhere in the state. If the Governor wanted to take defensive measures throughout every part of the state, she could do so only under the EMA. And similarly, when combatting a global pandemic, the EMA is the proper tool. All this is to say that the two statutes serve complementary roles with attendant limits, yet the Governor has sought to muddle those roles into one unrestrained act of executive rule.
2. The EPGA’s text confirms that it is a locally focused statute, not intended for long-term, worldwide events like COVID-19.
A statute’s text drives its interpretation. See Hall, 499 Mich at 453. The EPGA’s text confirms it is intended to address localized crises, not statewide pandemics. The EPGA allows a governor to act “within” the State. MCL 10.31(1). “‘Within’ means ‘on the inside or on the inner-side’ or ‘inside the bounds of a place or region.’” State v Turner, 145 NE3d 985, 992 (Ohio Ct App, 2019) (quoting Webster’s Third New International Dictionary 758 (1993)). Thus, something defined as “within” relative to something else implies that the former is engulfed (and therefore smaller in size) than the latter. It is illogical to say that the state is “within” the state. If the
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Legislature intended the EPGA to apply to the entire state, it would have said so, as it has elsewhere. See, e.g., MCL 28.6.
The EPGA reaffirms its local, geographic focus by repeatedly referring to an “area,” “section,” or “zone.” MCL 10.31(1). Merriam-Webster’s Online Dictionary, Area https://bit.ly/3c17JYu (accessed August 12, 2020), defines “area,” in part, as “a particular extent of space” such as “a geographic region.” Webster’s New World College Dictionary similarly defines “area” as “a part of a house, lot district, city, etc. having a specific use or character.” “Zone” contemplates “[a]n area that is different or is distinguished from surrounding areas,” Black’s Law Dictionary (11th ed. 2019), while a “section” is “a part of something” or “any of the more or less distinct parts into which something is . . . divided,” Forrester Lincoln Mercury, Inc v Ford Motor Co, No. 1:11-cv-1136, 2012 WL 1642760, at *4 n 6 (MD Pa, May 10, 2012) (quoting definitions). These words imply that the EPGA’s emergency powers do not reach the whole state.
Indeed, contrast the EPGA’s then-existing idea of gubernatorial power over an “area” with the EMA’s grant of emergency powers over not just an “area” but also “areas.” MCL 30.403(3). If the 1976 Legislature believed the EPGA reached the whole state, why would it add the “or areas” surplusage? This understanding of EPGA’s language accords with similar laws in other states that used more pointed language to emphasize these laws’ local purposes. See, e.g., NY Exec Law 24 (mirroring EPGA’s language and noting it creates a “local state of emergency”); La
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Stat 14:329.6 (mirroring EPGA’s language and noting that a state of emergency is declared as to “any part or all of the territorial limits of [a] local government”).
The executive branch makes much of MCL 10.32, which says the EPGA gives the Governor “sufficiently broad power of action” to “provide adequate control” during crisis periods. This focus is misplaced. “[P]ower of action” refers to what acts the Governor may take—not where they may be taken. That the 1976 Legislature would closely cabin the EMA’s statewide powers while simultaneously recognizing far broader statewide powers already existed under the EPGA is absurd. But aside from all that, a “rule of liberal construction does not override other rules if the application would defeat the evident meaning of the act.” Little Caesar Enters v Dep’t of Treasury, 226 Mich App 624, 629; 575 NW2d 562 (1997). The executive’s interpretation does just that, transforming an act meant for limited areas and limited authority into one providing boundless power.
Thus, the EPGA’s words signify that statute is intended to address specific, local concerns and the need to obtain “control” over a geographic region—not matters covering every inch of the state and all aspects of Michiganders’ lives.
3. The historical context also shows that the EPGA was meant for local matters.
The Court must also consider a statute’s historical context. See Dep’t of Envtl Quality v Worth Tp, 491 Mich 227, 241; 814 NW2d 646 (2012). Here, the EPGA’s context shows it was designed for local issues. A 1945 Lansing State Journal article for example, noted that it “result[ed] from the 1943 Detroit race riot” and would “give the governor wide powers to maintain law and order in times of public unrest and
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disaster.” Docket No. 161377, Legislature’s Emergency Bypass App, Exhibit 5; see also Michael Van Beek, Emergency Powers Under Michigan Law, available at https://bit.ly/2z3f8rC (last accessed August 12, 2020) (same). It is thus no surprise that EPGA sections read as riot-control measures.
This “local riots” response concept was the common understanding of the EPGA for decades and became part of the impetus for passing the EMA. In the mid1970s, Governor Milliken, worried about the danger of rising water levels in the Great Lakes, sent a special message to the Legislature on non-manmade disasters. He confirmed the EPGA was “pertinent to civil disturbances” and concluded that “[u]nder existing law, the powers of the Governor to respond to disasters is unduly restricted and limited.” Docket No. 161377, Legislature’s Emergency Bypass App, Exhibit 6. Because the EPGA did not address statewide, natural disasters, he asked that the Legislature give him “plenary power to declare states of emergency both as to actual and impending disasters.” Id. The Legislature—evidently agreeing with him— passed the EMA to give him that power, subject to certain checks. See Walsh v City of River Rouge, 385 Mich 623, 632–633; 189 NW2d 318 (1971) (considering gubernatorial statements, including Governor Milliken’s, to construe the EPGA).
Past governors similarly understood the limited nature of the EPGA. To the Legislature’s knowledge, not one used the EPGA in at least 30 years for any emergency—and never for statewide emergencies. In fact, when the executive branch, in cooperation with the federal CDC, assessed all Michigan laws that might be relevant in responding to a pandemic, the EMA was cited as the primary source of
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authority and the EPGA was barely mentioned—and only with regard to curfews. Docket No. 161377, Legislature’s Emergency Bypass App, p 26, Exhibit 7. Governor Whitmer has nevertheless invoked the EPGA well over 100 times in the last few months. And while the executive branch believes past governors’ practice does not matter, it is wrong. Under this Governor’s interpretation, vast reserves of power lay waiting in the EPGA, untapped until now; in passing the EMA, the 1976 Legislature wrote more law to give the executive less power.
The scant three cases that mention the EPGA confirm this local understanding. Two discuss the EPGA in the context of local responses to localized emergencies—local curfews. Walsh, 385 Mich at 623; People v Smith, 87 Mich App 730; 276 NW2d 481 (1979). The last discusses the EPGA governing on “a drunken, raucous semi-annual event.” Leonardson v City of E Lansing, 896 F2d 190, 192 (CA 6, 1990). Historical context backs the Legislature, and the Governor does not dispute it. III. Ignoring the EPGA’s geographic and scope-of-authority limitations
creates an impermissible delegation of lawmaking powers. Ignoring the statutory limitations on the EPGA would create a constitutional crisis and violate the separation of powers. Under the doctrine of constitutional avoidance, the Court should adopt the Legislature’s reasonable reading of the EPGA. See Hunter v Hunter, 484 Mich 247, 264 n 32; 771 NW2d 694 (2009). A. The lawmaking power rests exclusively with the Legislature. “[T]he legislature makes, the executive executes, and the judiciary construes the law.” Wayman v Southard, 23 US 1, 46; 6 L Ed 253 (1825). These are not civics-
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class platitudes but the bedrock of our constitutional system. Michigan’s 1963 Constitution adheres to these same principles. See Westervelt v Nat’l Resources Comm’n, 402 Mich 412, 427–429; 263 NW2d 564 (1978). Every Michigan Constitution since our first in 1835 has made this separation of powers explicit. E.g., Const 1963, art 3, § 2. This separation exists because, “[w]hen the legislative and executive powers are united in the same person or body[,] . . . there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Soap and Detergent Ass’n v Nat Resources Comm’n, 415 Mich 728, 751; 330 NW2d 346 (1982), quoting The Federalist No. 47 (Madison). Any doubt must “be resolved in favor of the traditional separation of [ ] powers.” Civil Serv Comm’n of Mich v Auditor Gen, 302 Mich 673, 683; 5 NW2d 536 (1942).
As part of this system, the Constitution vests all lawmaking power exclusively in the Legislature. Const 1963, art 4, § 1; Young v City of Ann Arbor, 267 Mich 241, 243; 255 NW 579 (1934) (holding that the Legislature’s power is “as broad, comprehensive, absolute, and unlimited as that of the Parliament of England, subject only to” the federal and state constitutions). Even more specifically, the Legislature explicitly has the lawmaking power to protect “public health.” Const 1963, art 4, § 51. Michigan’s courts have accordingly held time and again that when difficult public policy decisions are required, the Legislature is the branch best equipped to make them. See, e.g., Henry v Dow Chem Co, 473 Mich 63, 91 n 22; 701 NW2d 684 (2005).
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Article 5, on the other hand, which applies to the executive branch, says nothing about the lawmaking power, excepting two narrow sections on the veto power and reorganization of departments not relevant here. See Const 1963, art 5, § 1.
Even so, the executive branch continues to act as if those separation-of-powers lines may be blurred. But the cases it cites in support are insufficient. For example, Judicial Attorneys Ass’n v Mich, 459 Mich 291, 297; 586 NW2d 894 (1998), was only about the judiciary’s inherent power to exercise executive-like authority to control and administer its own internal operations. Id. at 297–298. Each branch’s smooth functioning “necessarily includes some ancillary inherent capacity” to complete “housekeeping chores” usually done by other branches. Id. (cleaned up). And while the Legislature may “obtain[] the assistance of coordinate branches” to, for example, implement a law, it “cannot delegate its power to make a law.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 9 n 7; 658 NW2d 127 (2003) (cleaned up).
B. The Governor is unilaterally making laws. A law is defined as any “regime that orders human activities and relations through systematic application of the force of politically organized society.” Black’s Law Dictionary (11th ed. 2019). The Governor’s COVID-19 executive orders make law. At issue here is not just an impermissible extension of an emergency and disaster declaration. The Governor has used these declarations as the basis of over 150 COVID-19-related executive orders, some of the most expansive scope. See, e.g., EO 2020-54 (prohibiting evictions); EO 2020-17 (suspending “non-essential medical
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and dental procedures”); EO 2020-58 (extending the statute of limitations); EO 202038 (revising and suspending FOIA mandates); and EO 2020-70 (restricting church attendance). But most troublingly, the Governor asserts she has the power to indefinitely confine all Michiganders to their homes under threat of criminal prosecution. See, e.g., EO 2020-96. These actions, which restructure livelihoods and social interactions, are lawmaking.
“[I]t would frustrate the ‘system of government ordained by the Constitution’ if [the Legislature] could merely announce vague aspirations and then assign others the responsibility of adopting legislation to realize its goals.” Gundy v United States, ____US____; 139 S Ct 2116, 2133; 204 L Ed 2d 522 (2019) (Gorsuch, J., dissenting) (quoting Marshall Field & Co v Clark, 143 US 649, 692; 12 S Ct 495; 36 L Ed 294 (1892)). The EPGA as the executive branch interprets it does just that. Cf. Indus Union Dep’t, AFL-CIO v Am Petroleum Inst, 448 US 607, 687; 100 S Ct 2844; 65 L Ed 2d 1010 (1980) (Rehnquist, J., concurring in the judgment) (“If we are ever to reshoulder the burden of ensuring that Congress itself make the critical policy decisions, these are surely the cases in which to do it.”).
C. Crisis does not diminish the separation of powers. “The Constitution … is concerned with means as well as ends.” Horne v Dep’t of Agric, 576 US 350; 135 S Ct 2419, 2428; 192 L Ed 2d 388 (2015). A strong desire to help the general welfare cannot “warrant achieving the desire by a shorter cut than the constitutional way.” Id. (cleaned up). “Emergency does not create power,”
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“increase granted power,” or “diminish the restrictions imposed upon power granted.” Home Bldg & L Ass’n v Blaisdell, 290 US 398, 425; 54 S Ct 231; 78 L Ed 413 (1934).
This Court has said the same. See People ex rel Twitchell v Blodgett, 13 Mich 127, 139 (1865). So have other courts. See, e.g., Maryville Baptist Church, Inc v Beshear, No 20-5427, 957 F3d 610, ___, at *7 (CA 6, May 2, 2020) (“[W]ith or without a pandemic, no one wants to ignore state law in creating or enforcing these [executive] orders.”); Wisconsin Legislature v Palm, ___ NW3d ___, No. 2020AP765-OA, 2020 WL 2465677, at *22 (Wis, May 13, 2020) (“Fear never overrides the Constitution. Not even in times of public emergencies, not even in a pandemic.”).
Justice Jackson captured many of these ideas in his concurrence in Youngstown, 343 US at 579. He noted that the executive had asked for “power to deal with” “an emergency according to the necessities of the case.” Id. at 646. Some thought finding such power “would be wise,” but it “is something the forefathers omitted. They knew what emergencies were [and] knew the pressures they engender for authoritative action.” Id. at 649–650. “With all its defects, delays and inconveniences,” he concluded, “men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” Id. at 655.
Some emergencies require immediate and unilateral executive action, but not COVID-19—at least not any longer. Health professionals agree it will drag on for months or years; it has already been affecting Michiganders for almost half of this year. Thus, unilateral control is counterproductive and dysfunctional, especially
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when the Legislature has already shown it can act fast when it must. This is not the type of case presenting a need for instantaneous action in response to a flashpoint event. See Palm, 2020 WL 2465677, at *9 (“[I]f a forest fire breaks out, there is no time for debate. Action is needed. . . . But in the case of a pandemic, which lasts month after month, the Governor cannot rely on emergency powers indefinitely.”).
The Governor herself recently seemed to acknowledge the truths. When the President issued executive orders a few weeks ago to address the pandemic, the Governor criticized his “refus[al] to work together with Congress on a bipartisan recovery package” and urged him “to do the right thing, stop playing political games, and work with Congress on a recovery package that will help us fight this virus.” See Governor Whitmer Statement, <https://bit.ly/3aL7CAr> (August 9, 2020). If the Governor believes the time for necessary and unilateral executive action has passed at the federal level and that a comprehensive legislative response is now more appropriate, then surely the same must be said of her own state’s response.
D. The EPGA’s supposed delegation of power cannot save the Governor’s COVID-19 executive orders.
The Legislature can, at most, “confer authority on an” executive branch officer “to make rules as to details, to find facts, and to exercise some discretion” to “administ[er] . . . a statute.” Ranke v Mich Corp & Sec Comm, 317 Mich 304, 309; 26 NW2d 898 (1947). But the EPGA, as interpreted by the executive branch, is an openended grant of legislative power. Truth is, it “ha[s] few, if any, real restrictions on the Governor’s authority or even standards to guide that authority.” MDHHS v
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Manke, unpublished order of the Court of Appeals, entered May 28, 2020 (Docket No. 353607) (Swartzle, J., concurring in part and dissenting in part).
The EPGA says that 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. The Governor believes this entitles her to make new policies touching the most intimate parts of Michiganders’ lives, including making many ordinary activities of daily life criminal. But the power to “declare what shall constitute a crime, and how it shall be punished, . . . is inherent in the legislative department of the government. Unless authorized by the constitution, this power cannot be delegated by the legislature to any other body or agency.” People v Hanrahan, 75 Mich 611, 619; 42 NW 1124 (1889).
What’s more, the Governor believes that the power delegated by EPGA allows her to make laws in a way that the Legislature constitutionally cannot. For example, to ensure public accountability and transparency, a single legislative bill cannot “embrace more than one object”—i.e., amend more than one law at once. Const 1963, art 4, § 24. But the Governor has used single executive orders to amend or suspend multiple laws at once. A bill that amends another law must be “in the possession of each house for at least five days” before final passage. Const 1963, art 4, § 26. But citing the EPGA, the Governor has issued executive orders amending and suspending laws in seconds. These are just two such examples; Article 4 contains many others. Because the 1963 Michigan Constitution prohibits the Legislature from suspending
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or amending multiple laws at once and in mere seconds, among other things, it was impossible for the Legislature to delegate that power to the Governor. And these impermissible acts have follow-on effects, such as the abrogation of notice-andcomment requirements under Michigan’s Administrative Procedures Act.
But, even if this amount and kind of power were delegable, the EPGA contains insufficient standards to guide its use. To avoid impermissible delegation, a statute “must contain language . . . that defines the area within which an agency is to exercise its power and authority.” Westervelt, 402 Mich at 439. “[A] complete lack of standards is constitutionally impermissible.” Oshtemo Charter Tp v Kalamazoo Co Rd Com’n, 302 Mich App 574, 592; 841 NW2d 135 (2013). Standards exist on a spectrum—what is appropriate in one case will not be appropriate in another. “When the scope” of a delegation reaches “immense proportions . . . the standards must be correspondingly more precise.” Synar v United States, 626 F Supp 1374, 1386 (DDC, 1986); accord Osius v City of St Clair Shores, 344 Mich 693, 698; 75 NW2d 25 (1956) (explaining that “standards” must be “as reasonably precise as the subject-matter requires or permits” (emphasis added)). In short, greater delegation requires greater standards. And this Court has recognized that the use of EPGA powers “involves the suspension of constitutional liberties of the people. It, in effect, suspends normal civil government.” Walsh, 385 Mich 623 at 639. The Court has equated it with the “war powers of the federal government,” including “martial law.” Id. Thus, this delegation is decidedly one of “immense proportions.” Synar, 626 F Supp at 1386.
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To decide whether a statute contains sufficient standards, a three-step analysis applies. First, the statute “must be read as a whole; the provision in question should not be isolated but must be construed with reference to the entire act.” State Conservation Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976). Second, the standard must be “as reasonably precise as the subject matter requires or permits.” Id. (cleaned up). And third, “if possible[,] the statute must be construed in such a way as to render it valid, not invalid, as conferring administrative, not legislative power and as vesting discretionary, not arbitrary, authority.” Id. (cleaned up).
Applying the test, the EPGA, as the executive branch interprets it, is an improper delegation. First, taking the EPGA as a whole, it gives the Governor no functional guidance. It is exceptionally short. It has just three sections, only one of which is substantive. That one section allows a declaration of emergency “[d]uring times of great public crisis.” MCL 10.31(1). And the governor may issue any “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.” Id. There is no temporal limitation. The only thing the Governor cannot do is seize guns. Id. In sum, the EPGA’s standards consist solely of two words: “reasonable” and “necessary.”
Second, as interpreted by the executive branch, the EPGA allows orders on every possible public-policy area affected by COVID-19. This means the Legislature has, though the EPGA, shifted to the executive branch vast lawmaking power over every corner of the economy and social life with just the words “reasonable” and
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“necessary.” Reasonableness is already the lowest standard of lawful governmental action; unreasonable conduct—i.e., arbitrary and capricious conduct—violates substantive due process and is per se unlawful. And “necessary” means “necessary to protect life and property” or bring the crisis “under control”—a sweeping mandate, which, as interpreted by the Governor, includes actions unrelated to the crisis at hand. See, e.g., Yant v City of Grand Island, 279 Neb 935, 945; 784 NW2d 101 (2010) (“[R]easonable limitations and standards may not rest on indefinite, obscure, or vague generalities[.]”); Lewis Consol Sch Dist of Cass Co v Johnston, 256 Iowa 236, 247; 127 NW2d 118 (1964) (explaining that “something more is required” than telling an executive to “do whatever is thought necessary to carry out their purposes”).
There are no additional standards in the phrase “to protect life and property or to bring the emergency situation within the affected area under control,” either. It is hard to imagine what kind of order that so-called limitation would prohibit. The phrase identifies the EPGA’s goals; it does not impose standards. The EPGA’s goal is to protect life and property and manage unforeseen crises. The way the Governor achieves that goal is signing “reasonable” and “necessary” executive orders. Palm, 2020 WL 2465677, at *8 (holding delegation of lawmaking authority improper given lack of procedural safeguards and standards accompanying it). The EPGA’s nonexhaustive list of example actions a governor may take is equally unlimiting. See, e.g., State v Thompson, 92 Ohio St 3d 584, 588; 752 NE2d 276 (2001) (explaining that “[t]he phrase ‘including, but not limited to’ indicates that what follows is a
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nonexhaustive list of examples,” so that a decisionmaker looking at the list may consider whatever she chooses).
Further, as delegated powers grow so does the need for proportionally strong standards. If the EPGA really gives the Governor the broad powers that she claims, then those powers must be guided by more fulsome standards than “reasonable” and “necessary.” “Necessary” may be good enough if the issue is whether an employee’s term of employment may be extended past mandatory retirement age. See Klammer v Dep’t of Transp, 141 Mich App 253, 261–262; 367 NW2d 78 (1985) (explicitly limiting its holding about “necessary” to “the context of th[e] case”). But that is far different than regulating day-to-day actions of all Michiganders with the bite of criminal sanctions. In Whitman v Am Trucking Assoc, for example, the United States Supreme Court held that “the degree of agency discretion that is acceptable varies according to the scope of the power congressionally conferred.” 531 US 457, 475; 121 S Ct 903; 149 L Ed 2d 1 (2001) (citations omitted). While Congress would not have to “provide any direction” to the EPA regarding the definition of a “country [grain] elevator,” “it must provide substantial guidance on setting air standards that affect the entire national economy.” Id. (emphasis added). The EPGA’s delegation, as the Governor has described it elsewhere, lies at the latter end of the spectrum; it consists of the “broadest level” of power to functionally control Michigan’s entire economy. Gov’s Br, p 43.
The standards governing the executive’s discretion are as flaccid as those governing the panel of actuaries created by the Nonprofit Health Care Corporation
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Reform Act, which was held in Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 55; 367 NW2d 1 (1985), to violate the delegation rule. This Court held that part of the statute violated Seaman’s test where it simply provided the Insurance Commissioner with the discretion to “approve” or “disapprove” risk factors proposed by health care corporations, and, if he disapproved them, a panel of three actuaries were to determine a risk factor for each line of business, with no further standards. Id. at 53–54. This was despite the clearly and specifically articulated public policy goal to secure reasonably priced healthcare for all Michiganders. See MCL 550.1102(2). Like that statute, which vested unfettered power in the actuaries to determine risk factors to help control costs, the EPGA, under the executive branch’s interpretation, vests the Governor with nearly unconstrained power to meet the EPGA’s goals. This will not do. See also Milford v People’s Cmty Hosp Auth, 380 Mich 49, 61–62; 155 NW2d 835 (1968) (finding a “best interest” standard impermissible); Hoyt Bros v City of Grand Rapids, 260 Mich 447, 451; 245 NW 509 (1932) (finding a “worthy” standard impermissible); Oshtemo Charter Tp, 302 Mich App at 592 (expressing “extreme[] skeptic[ism]” towards a statute without either “factors for the [decisionmaker] to consider . . . []or guiding standards”).
Blank v Dep’t of Corr, 462 Mich 103, 124; 611 NW2d 530 (2000), relied upon by the Governor, is inapposite. The Court there held that the Department of Corrections enabling act’s “many” limitations on the DOC’s authority were “sufficient guidelines and restrictions.” Id. at 125–126. These included, among many others, abiding by
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the Administrative Procedures Act (“APA”); promulgating “rules only for the effective control and management of DOC”; prohibiting rules that applied to municipal jails; taking “necessary or expedient” action to properly administer the act; and forbidding rules on firearms and name changes. Id. at 126. In contrast to these significant limitations, the EPGA includes (at most) two perfunctory words. And it does not require adherence to the APA and its oversight mechanisms. In short, the EPGA’s power is much greater than the power at issue in Blank, but it is controlled by a fraction of the standards.
Third, and finally, the proper construction of the EPGA saves it from invalidation, but it invalidates the particular use of the EPGA here. The executive’s interpretation of the EPGA includes no real, substantive standards guiding the exercise of an unparalleled delegation of power, and therefore the Court should find the Governor’s actions taken under it unconstitutional.
If the Governor’s reading of the statute is wrong, then her acts are without authority. If she is right, then the statute itself must fall.
CONCLUSION For all these reasons, the Court should rule that the Governor does not have authority under the EMA or the EPGA to continue to issue emergency orders related to the COVID-19 pandemic over the Legislature’s objection.
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Respectfully submitted,

By: /s/ Patrick G. Seyferth Patrick G. Seyferth (P47475) Stephanie A. Douglas (P70272) Susan M. McKeever (P73533) Bush Seyferth PLLC 100 W. Big Beaver Rd., Ste. 400 Troy, MI 48084 (248) 822-7800 seyferth@bsplaw.com douglas@bsplaw.com mckeever@bsplaw.com

By: /s/ Michael R. Williams Michael R. Williams (P79827) Frankie A. Dame (P81307) Bush Seyferth PLLC 151 S. Rose St., Ste. 707 Kalamazoo, MI 49007 (269) 820-4100 williams@bsplaw.com dame@bsplaw.com

Hassan Beydoun (P76334) General Counsel Michigan House of Representatives PO Box 30014 Lansing, MI 48909 hbeydoun@house.mi.gov

William R. Stone (P78580) General Counsel Michigan Senate PO Box 30036 Lansing, MI 48909 bstone@senate.michigan.gov

Attorneys for the Michigan House of Representatives and Michigan Senate

Dated: August 20, 2020

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STATE OF MICHIGAN IN THE SUPREME COURT

IN RE CERTIFIED QUESTIONS FROM THE UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION,
MIDWEST INSTITUTE OF HEALTH, PLLC, D/B/A GRAND HEALTH PARTNERS, WELLSTON MEDICAL CENTER, PLLC, PRIMARY HEALTH SERVICES, PC, and JEFFREY GULICK,

Supreme Court No. 161492 USDC-WD: 1:20-cv-414 Filed Under AO 2019-6

Plaintiffs,

v

GOVERNOR OF MICHIGAN, MICHIGAN ATTORNEY GENERAL, and MICHIGAN DEPARTMENT OF HEALTH AND HUMAN SERVICES DIRECTOR,

Defendants. __________________________________/

BRIEF OF HOUSE DEMOCRATIC LEADER CHRISTINE GREIG AND THE HOUSE DEMOCRATIC CAUCUS AS AMICI CURIAE IN SUPPORT OF DEFENDANTS

Samuel R. Bagenstos (P73971)

Nathan Triplett (P76683)

625 S. State St.

Democratic Legal Counsel

Ann Arbor, MI 48109

Michigan House of Representatives

(734)647-7584

PO Box 30014

sbagen@gmail.com

Lansing, MI 48909-7514

(517)373-5894

NTriplett@house.mi.gov

Attorneys for Amici Curiae

Filed:

August 7, 2020

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TABLE OF CONTENTS INDEX OF AUTHORITIES ........................................................................................ ii QUESTIONS PRESENTED....................................................................................... vi INTRODUCTION AND INTEREST OF AMICI CURIAE ........................................ 1 ARGUMENT ................................................................................................................ 3
I. This Court Should Decline to Answer the Certified Questions........................ 3 II. The Emergency Powers of the Governor Act Authorizes the Governor’s
Executive Orders............................................................................................... 5 A. The Plain Text of the EPGA Authorizes the Governor’s Emergency
Orders........................................................................................................... 5 B. Nothing in the In Pari Materia Doctrine Justifies Engrafting the EMA’s
28-Day Limit Onto the EPGA ................................................................... 10 III.The EPGA Does Not Violate the Separation of Powers ................................ 15 CONCLUSION........................................................................................................... 24 CERTIFICATE OF COMPLIANCE.......................................................................... 25
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Cases:

INDEX OF AUTHORITIES

Adams & Boyle, P.C. v. Slatery, 956 F3d 913 (6th Cir 2020)............................. 17

Anway v Grand Rapids Ry Co, 211 Mich 592; 179 NW 350 (1920) ..................... 2

Apsey v. Mem'l Hosp, 477 Mich 120; 730 NW2d 695 (2007) .............................. 13

Ass’n of Jewish Camp Operators v Cuomo, 2020 WL 3766496 (NDNY, July 6, 2020) .................................................................................................................. 8

Bayley’s Campground Inc v Mills, 2020 WL 2791797 (D Me, May 29, 2020), reconsideration den 2020 WL 3037252 (D Me, June 5, 2020) ........................ 8

Blue Cross & Blue Shield of Michigan v. Milliken, 422 Mich 1; 367 NW2d 1 (1985) ............................................................................................................... 18

Carmichael v Ige, 2020 WL 3630738 (D Hawaii, July 2, 2020) ........................... 8

Chevron U.S.A. Inc. v. Echazabal, 536 US 73 (2002) ......................................... 14

Clark v. Martinez, 543 US 371 (2005) ................................................................. 13

Co of Hudson v State of New Jersey Dept of Corr, 2009 WL 1361546 (NJ Super Ct App Div, May 18, 2009) .................................................................................... 9

Daniels v Williams, 474 US 327 (1986)............................................................... 21

Elkhorn Baptist Church v Brown, 366 Or 506; 466 P3d 30 (2020)........ 14, 16, 18

Ernst v Rising, 427 F3d 351, 368 (CA 6, 2005) (en banc), cert denied, 547 US 1021 (2006) ........................................................................................................ 4

Friends of DeVito v. Wolf, 227 A3d 872 (Pa 2020), stay denied, 2020 WL 2177482 (US May 6, 2020)............................................................................................. 18

GF Redmond & Co v Michigan Sec Comm’n, 222 Mich 1; 192 NW 688 (1923) ................................................................................................... 16, 21, 22

Hoitt v Vitek, 497 F2d 598 (CA 1, 1974) ................................................................ 9

House of Representatives v Governor, No. 20-000079-MZ (Ct Cl, May 21, 2020) ...................................................................................................... 5, 14, 15

Illinois Republican Party v Pritzker, 2020 WL 3604106 (ND Ill, July 2, 2020) ................................................................................................................ 17

In re Certified Questions from US Court of Appeals for Sixth Circuit, 472 Mich 1225; 696 NW2d 687 (2005).............................................................................. 2

In re Certified Question from US Dist Court for Dist of New Jersey, 489 Mich 870; 795 NW2d 815 (2011)........................................................................................ 2

In re Certified Question from US Dist Court for W Michigan, 493 Mich 70; 825 NW2d 566 (2012)........................................................................................... 2, 4

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Cases, ctd.: In re Indiana Michigan Power Co, 297 MichApp 332; 824 NW2d 246 (2012) .. 12 In re Ohio Execution Protocol Litig, 709 Fed Appx 779 (CA 6, 2017) .................. 4 Kimel v Florida Bd of Regents, 528 US 62 (2000) .............................................. 21 Lewis Consolidated School District of Cass County v Johnston, 256 Iowa 236; 127 NW2d 118 (1964)............................................................................................. 20 Mistretta v United States, 488 US 361 (1989)..................................................... 22 National Broadcasting Company v United States, 319 US 190 (1943) ............. 22 Osius v City of St. Clair Shores, 344 Mich 693; 75 NW2d 25 (1956) ..... 15, 16, 19 Panama Refining Company v Ryan, 293 US 388 (1935)........................ 18, 19, 20 Pennhurst State Sch & Hosp v Halderman, 465 US 89 (1984)........................ 4, 5 People v Gardner, 482 Mich 41; 753 NW2d 78 (2008) .......................................... 5 People v Hall, 499 Mich 446; 884 NW2d 561 (2016)........................................... 12 People v. Pinkney, 501 Mich 259; 912 NW2d 535 (2018).................................... 13 People v Soule, 238 Mich 130; 213 NW 195 (1927) ............................................. 20 Puerto Rico Aqueduct & Sewer Auth v Metcalf & Eddy, Inc, 506 US 139 (1993) ................................................................................................................. 5 SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65; 894 NW2d 535 (2017) ............................................................................................................... 12 South Bay United Pentecostal Church v Newsom, 140 S Ct 1613 (2020).......... 17 State Conservation Dep’t v. Seaman, 396 Mich 299; 240 NW2d 206 (1976) ............................................................................................... 3, 15, 16, 23 Summer v. Southfield Bd of Educ, 324 MichApp 81; 919 NW2d 641 (2018), appeal denied, 503 Mich 953; 923 NW2d 256 (2019) .................................... 12 Valiant Steel & Equip, Inc v Goldschmidt, 499 F Supp 410 (DDC, 1980) .......... 9 Westervelt v Nat Res Comm’n, 402 Mich 412; 263 NW2d 564 (1978) ............................................................................................. 15, 16, 20, 23 Whitman v American Trucking Associations, 531 US 457 (2001) ..................... 23 World Gym, Inc v Baker, 2020 WL 4274557 (D Mass, July 24, 2020) ................. 5 Yakus v United States, 321 US 414 (1944) ......................................................... 22
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Constitutional and Statutory Provisions, Executive Orders, and Rules: US Const, amdt 11 ......................................................................................... 3, 4, 5 Const 1963, art 4, § 33 ........................................................................................... 3 Emergency Management Act, MCL 30.401 et seq. ......................................passim MCL 30.403 ..................................................................................................... 10 MCL 30.404 ..................................................................................................... 13 MCL 30.411 ..................................................................................................... 13 MCL 30.417 ............................................................................................... 10, 12 Emergency Powers of the Governor Act, MCL 10.31 et seq. .......................passim MCL 10.31 ................................................................................................passim MCL 10.32 ............................................................................................. 6, 7, 8, 9 MCL 600.2102 ...................................................................................................... 13 Or Rev Stat 401.168 ............................................................................................. 18 MCR 7.212 .............................................................................................................. 1 MCR 7.308 .......................................................................................................... 2, 3 EO 2020-66 ........................................................................................................... 11 EO 2020-67 ........................................................................................................... 11 EO 2020-160 ........................................................................................................... 6
Other Authorities: Joel Achenbach, Rachel Weiner & Chelsea James, Coronavirus Threat Rises Across U.S.: “We Just Have to Assume the Monster Is Everywhere,” Wash. Post., Aug. 1, 2020, https://perma.cc/X4J2-8YVN ........................................... 1 Julie Bosman, Manny Fernandez & Thomas Fuller, After Plummeting, the Virus Soars Back in the Midwest, N.Y. Times, Aug. 1, 2020, https://perma.cc/G7P22T5U .................................................................................................................. 2 Benedict Carey, Birx Says U.S. Epidemic is in a “New Phase,” N.Y. Times, Aug. 2, 2020, https://perma.cc/HC4E-ERNY ............................................................ 2 Jennifer Couzin-Frankel, From ‘Brain Fog’ to Heart Damage, COVID-19’s Lingering Problems Alarm Scientists, Science, July 31, 2020, https://perma.cc/K42F-2FF3............................................................................. 8 Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law (3d ed. 2016) ..... 18
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Other Authorities, ctd.: Christina Maxouris & Amir Vega, US is Still “Knee-Deep” in the First Wave of the Coronavirus Pandemic, Fauci Says, CNN, July 7, 2020, https://perma.cc/2WH5-R494............................................................................ 1 New Oxford American Dictionary (3d ed 2010) .................................................... 7 Peter R. Orszag, Covid Fear Will Keep the World in a Slump, Bloomberg Opinion, July 13, 2020, https://perma.cc/5AA4-RD2Q.................................... 8 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts (2012) ................................................................................................................. 9
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QUESTIONS PRESENTED Amici, House Democratic Leader Christine Greig and the Members of the House Democratic Caucus, file this brief to address the following questions, which the United States District Court for the Western District of Michigan certified to this Court: 1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020 to issue or renew any executive orders related to the COVID-19 pandemic. Amici answer: Yes. 2. Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution. Amici answer: No.
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INTRODUCTION AND INTEREST OF AMICI CURIAE1
Plaintiffs attempt to frame this matter as presenting the question whether the Governor may exercise authority under the Emergency Powers of the Governor Act for years into the future. That framing is evident from the section headings in their brief, as well as the bulk of their arguments throughout. See, e.g., Pltf. Br. 17 (“The EPGA authorizes only limited orders for time-limited emergencies, and a years-long pandemic is not an ‘emergency.’”); id. at 18 (“An ‘emergency’ for purposes of the EPGA is a set of exigent circumstances that calls for immediate action, not a years-long public health problem.”); id. at 20 (“The Governor’s declarations of ‘emergency’ contemplate that the state of emergency will last until the end of the epidemic, even if that takes years.”); id. at 29 (arguing that the EPGA is unconstitutional without “a limitation on [its] applicability to long-term pandemics that pose yearslong (and potentially permanent) public health policy implications”).
Any argument about the Governor’s power to address a “yearslong” event is wildly premature, however. The first COVID-19 case was diagnosed in Michigan in March. It is now just a few months later. As the Director of the National Institute of Allergy and Infectious Diseases said last month, “[w]e are still knee-deep in the first wave” of the pandemic. Christina Maxouris & Amir Vega, US is Still “Knee-Deep” in the First Wave of the Coronavirus Pandemic, Fauci Says, CNN, July 7, 2020, https://perma.cc/2WH5-R494. Just this past week came reports that “[t]he coronavirus is spreading at dangerous levels across much of the United States, and public health experts are demanding a dramatic reset in the national response, one that recognizes that the crisis is intensifying and that current piecemeal strategies aren’t working.” Joel Achenbach, Rachel Weiner & Chelsea James, Coronavirus Threat Rises Across U.S.: “We Just Have to Assume the Monster Is Everywhere,” Wash. Post., Aug. 1, 2020, https://perma.cc/X4J2-8YVN. Of particular
1 Pursuant to MCR 7.212(H)(3), Amici state that no counsel for a party authored this brief in whole or in part, nor did anyone, other than Amici or their counsel, make a monetary contribution intended to fund the preparation or submission of the brief.
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note for the State of Michigan, “the virus is again picking up dangerous speed in much of the Midwest.” Julie Bosman, Manny Fernandez & Thomas Fuller, After Plummeting, the Virus Soars Back in the Midwest, N.Y. Times, Aug. 1, 2020, https://perma.cc/G7P2-2T5U. And the White House’s coronavirus coordinator recently explained that interstate travel has ensured that the outbreak is “extraordinarily widespread” in all areas of the country. Benedict Carey, Birx Says U.S. Epidemic is in a “New Phase,” N.Y. Times, Aug. 2, 2020, https://perma.cc/HC4E-ERNY.
Whether the Governor has power under the EPGA to address a “years-long” event—and whether, if so, the statute is constitutional—is a purely hypothetical question at this point. This Court does not sit to decide such “abstract propositions.” Anway v Grand Rapids Ry Co, 211 Mich 592, 605; 179 NW 350, 355 (1920). That is doubly true where the Court is asked to exercise its authority to answer a certified question under MCR 7.308(B)—authority that is purely discretionary, and that, as several justices have concluded in the past, might well exceed this Court’s constitutional power. See, e.g., In re Certified Question from US Dist Court for Dist of New Jersey, 489 Mich 870; 795 NW2d 815 (2011); In re Certified Questions from US Court of Appeals for Sixth Circuit, 472 Mich 1225; 696 NW2d 687 (2005). Particularly because the underlying action seeks relief that would violate the Eleventh Amendment to the U.S. Constitution, this Court should decline to answer the certified questions. The Court “should accept and answer certified questions from the federal courts sparingly and only when the Michigan legal issue is a debatable one and pivotal to the federal case that prompted the request for the certified question.” In re Certified Question from US Dist Court for W Michigan, 493 Mich 70, 83–84; 825 NW2d 566, 573 (2012) (Young, C.J., dissenting) (emphasis added).
If the Court chooses to answer the questions, it should keep the actual factual context in mind. We are nowhere close to the “postpandemic” phase to which Plaintiffs repeatedly refer. Pltf. Br. 9, 21, 34, 42. We are not even in a stable but chronic phase of the pandemic— what Plaintiffs describe as “no longer an emergency but a long-term public health challenge.” Id. at 2. Rather, we remain in the midst of a rapidly evolving (and devolving) emergency situation. Responding to
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such a situation is precisely the sort of “difficult and complex task” in a “constantly changing environment” in which this Court has previously held that the Legislature may delegate broad authority to the Governor. State Conservation Dep’t v. Seaman, 396 Mich 299, 311; 240 NW2d 206, 211 (1976). And that is precisely what the Legislature did in enacting the EPGA.
The only questions squarely presented here are these: Whether the Governor’s actions, in the midst of a crisis that is still emergent in every meaningful sense, are supported by the statutes the Legislature adopted to grant emergency powers to the executive branch; and whether those statutes are constitutional. Under the plain text of the Emergency Powers of the Governor Act, and under this Court’s longstanding nondelegation jurisprudence, the answer to each of those questions is yes.
Plaintiffs claim to be defending the powers of the Legislature, against a Governor who has exercised her veto power to prevent “the Legislature’s policy decisions” from becoming law. Br. 22. But the veto power is a part of the constitutional process. Const 1963, art 4, § 33. Under the Michigan Constitution, the only relevant “policy decisions” of the Legislature are the ones that can be found in the enacted laws of this State, notably the EPGA.
Amici are House Democratic Leader Christine Greig and the Members of the House Democratic Caucus. They submit this brief to vindicate the powers of the Legislature—by giving full effect to the text of the laws the Legislature has adopted to address emergencies like the present one, and by ensuring that the Legislature’s power is not hamstrung in the future by an unduly restrictive nondelegation doctrine.
ARGUMENT
I. This Court Should Decline to Answer the Certified Questions
Under MCR 7.308, this Court has discretion whether to answer a certified question. This Court should exercise its discretion to decline to answer the questions here. The Eleventh Amendment bars the Plaintiffs from obtaining relief for their alleged state-law violations in
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federal court. This Court’s resolution of the certified questions, far from being “pivotal to the federal case,” In re Certified Question from US Dist Court for W Michigan, 493 Mich at 83–84; 825 NW2d at 573 (Young, C.J., dissenting), will have no effect on its outcome.
In the underlying federal case, the Plaintiffs seek relief against the Defendant state officials for alleged violations of the United States Constitution and of state law in the promulgation and implementation of Governor Whitmer’s emergency orders. The certified questions involve only the state law claims. On those claims, the Plaintiffs contend that the Governor’s orders exceed the authority delegated to her by the Legislature. In the alternative, they contend that if the Governor did have statutory authority the relevant statutes violate the Michigan Constitution. The Plaintiffs seek declaratory and injunctive relief against the Defendants in their official capacities. See Federal Court Complaint at 1 (caption); id. at 36 (prayer for relief).
The federal courts lack jurisdiction over those state-law claims. Under the U.S. Supreme Court’s landmark Pennhurst case, “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.” Pennhurst State Sch & Hosp v Halderman, 465 US 89, 121 (1984). A federal court lacks jurisdiction over such a claim even when the plaintiff seeks purely prospective relief. See id. at 106. The Sixth Circuit has repeatedly held that Pennhurst bars federal courts from hearing state-law claims against state officials in their official capacities, regardless of the relief sought. See, e.g., In re Ohio Execution Protocol Litig, 709 Fed Appx 779, 782 (CA 6, 2017) (recognizing that “a federal court may issue prospective injunctive and declaratory relief compelling a state official to comply with federal law” but noting that the same principle “does not extend to prospective injunctive or declaratory relief based on alleged violations of state law”); Ernst v Rising, 427 F3d 351, 368 (CA 6, 2005) (en banc) (holding that “because the purposes of Ex parte Young do not apply to a lawsuit designed to bring a State into compliance with state law, the States’ constitutional immunity from suit prohibits all state-law claims filed against a State in federal court, whether those claims are monetary or injunctive in
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nature,” and applying that principle to an official-capacity suit), cert denied, 547 US 1021 (2006). See also World Gym, Inc v Baker, 2020 WL 4274557, at *3 (D Mass, July 24, 2020) (holding that state-law challenges to Massachusetts governor’s COVID emergency orders “are barred by the Eleventh Amendment”).
Because the federal court lacks jurisdiction over the state-law claims under the Eleventh Amendment as interpreted in Pennhurst, the Plaintiffs could not succeed on those claims in the underlying litigation even if this Court were to answer the certified questions in their favor. To recognize this point is not, as Plaintiffs suggest, to “collaterally attack” on the federal district court’s decision. Pltfs. Br. 45. That decision is currently on appeal to the Sixth Circuit, which has jurisdiction over interlocutory appeals raising Eleventh Amendment issues under Puerto Rico Aqueduct & Sewer Auth v Metcalf & Eddy, Inc, 506 US 139 (1993). In light of the Sixth Circuit’s prior Pennhurst precedent, Defendants’ appeal of that decision is highly likely to succeed. And any resolution of the certified questions would be purely advisory. This Court should not allow its discretionary certification power to be used for such an academic exercise.
II. The Emergency Powers of the Governor Act Authorizes the Governor’s Executive Orders
In the state-court litigation challenging Governor Whitmer’s executive orders, the Court of Claims held that those orders validly rest on the powers the Legislature granted in the Emergency Powers of the Governor Act of 1945 (EPGA), MCL 10.31 et seq. See House of Representatives v Governor, No. 20-000079-MZ (Ct Cl, May 21, 2020), Slip Op. 2, 10. That holding was correct.
A. The Plain Text of the EPGA Authorizes the Governor’s Emergency Orders
This Court has explained that “[t]he touchstone of legislative intent is the statute’s language.” People v Gardner, 482 Mich 41, 50; 753 NW2d 78, 84–85 (2008). If statutory text is “clear and unambiguous,” this Court “enforce[s] the statute as written.” Id. (internal quotation marks omitted). The text of the EPGA plainly authorizes Governor
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Whitmer’s orders—notably including her current Amended Safe Start Order, EO 2020-160, and all of the orders that the Plaintiffs claim to adversely affect them.
The Legislature specifically empowered the Governor to “proclaim a state of emergency” during “times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind.” MCL 10.31(1). There can be no doubt that the COVID-19 pandemic, which even with aggressive mitigation measures has killed more than 6,400 people in the State and more than 157,000 people nationwide at last count, represents a “great public crisis”—or at least raises a “reasonable apprehension of immediate danger of a public emergency of that kind.” The recent developments we discussed above highlight the continuing nature of that crisis. See pp. 1-2, supra.
But the Legislature did not stop by simply authorizing the Governor to “proclaim” the emergency. It went on to specify the broad powers that follow from such a proclamation: “After making the proclamation or declaration, 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). And the Legislature gave a broad— but explicitly nonexclusive—list of examples of the types of “orders, rules, and regulations” that it empowered the Governor to issue. These include “providing for the control of traffic”; limiting or even prohibiting the “occupancy and use of buildings and ingress and egress of persons and vehicles”; “control of places of amusement and assembly and of persons on public streets and thoroughfares”; and imposing a “curfew.” Id. The only power the Legislature excluded was “the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.” MCL 10.31(3). For good measure, the statute explicitly declared it “the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32.
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The Legislature directed that the statute be “broadly construed to effectuate this purpose.” Id.
Plaintiffs’ principal argument is that “a years-long pandemic is not an ‘emergency.’” Br. 17. Looking to dictionary definitions of the word “emergency,” Plaintiffs contend that the statute should be read to apply only “to circumstances that are time-sensitive, rather than to longterm public health challenges.” Id. at 18. There are four fundamental flaws with that argument.
First, there is nothing in the definitions offered by the Plaintiffs that offers any particular time limitation on an “emergency.” If dangerous circumstances develop over time in ways that continue to “call[] for immediate action,” they constitute an emergency under the Plaintiffs’ own definition. Pltf. Br. 18 (internal quotation marks omitted).
Second, the statutory text is not limited to “emergenc[ies]” but, by its terms, extends to any “great public crisis.” MCL 10.31(1). Standard definitions of “crisis” embrace any “time of intense difficulty, trouble, or danger: the current economic crisis.” E.g., New Oxford American Dictionary (3d ed 2010). A “crisis,” so defined, can last for months or even years, as did the economic crisis caused by the Great Depression, or more recently the 2007-2008 Financial Crisis.
Third, the text itself declares that the Governor’s power should be construed “broadly.” MCL 10.32. Any effort to read the “crisis” language narrowly to limit it to a single point in time would fly in the face of the Legislature’s express interpretive instruction.
But the fourth flaw in the Plaintiffs’ argument is dispositive: Whatever may prove to be the case “years” from now, we are not yet in a chronic “long-term public health challenge[].” Rather, we remain in an acute state of crisis. The first wave of the pandemic continues to rage and change by the day, with a concomitant need for “time-sensitive” action to avoid life-threatening consequences.
The pandemic is neither stable nor under control. See pp. 1-2, supra. Continued outbreaks throughout the country, which are readily spread through interstate travel, ensure that we are still in a “period[]
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of impending or actual public crisis or disaster.” MCL 10.32. Cf. Ass’n of Jewish Camp Operators v Cuomo, 2020 WL 3766496, at *9 (NDNY, July 6, 2020) (finding “the recent dramatic rise in COVID-19 cases and deaths in several other states” to be “particularly worrisome,” because it indicated that even though the rate of infection had “momentar[il]y” decreased in New York it could readily reverse course “if the conditions imposed by Defendant’s executive orders are not sufficiently followed”); Carmichael v Ige, 2020 WL 3630738, at *7 (D Hawaii, July 2, 2020) (rejecting argument “that no [COVID-related] emergency exists here or throughout the United States” by noting that, as of July, “across the country, there is a resurgence in cases following the loosening of restrictions”).
Contrary to Plaintiffs’ suggestion (Br. 20-21), the prospect that hospitals would be overwhelmed by coronavirus patients is not the only emergent problem that has been caused by the pandemic. The continued uncontrolled spread of a deadly disease—one that appears to have debilitating effects on even many of those who survive2—is itself an exigent matter that requires swift action. And if the government cannot act quickly and decisively in response to the changing patterns in the pandemic, the state’s economy will freeze up. See, e.g., Peter R. Orszag, Covid Fear Will Keep the World in a Slump, Bloomberg Opinion, July 13, 2020, https://perma.cc/5AA4-RD2Q (describing academic studies demonstrating that it is fear of contracting COVID-19, and not governmental lockdown orders, that have led to economic contraction).
COVID-19 remains a rapidly evolving situation demanding an immediate government response—exactly the sort of situation Plaintiffs say the EPGA reaches. See also Bayley’s Campground Inc v Mills, 2020 WL 2791797, at *12 (D Me, May 29, 2020) (“[T]he COVID-19 scenario is the kind of scenario for which emergency action would be expected.”), reconsideration den 2020 WL 3037252 (D Me, June 5, 2020). Should the Governor continue to impose emergency orders after the virus is under
2 See, e.g., Jennifer Couzin-Frankel, From ‘Brain Fog’ to Heart Damage, COVID-19’s Lingering Problems Alarm Scientists, Science, July 31, 2020, https://perma.cc/K42F-2FF3.
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control, there will be time enough then to consider whether the EPGA supports those actions.3
Plaintiffs note that “the EPGA does not refer to ‘epidemics’ as an example of circumstances over which the EPGA gives the Governor emergency powers.” Br. 19. But that is irrelevant. The statute gives only one specific example of the sort of emergency to which it empowers the Governor to respond—“rioting.” MCL 10.31. Otherwise, it speaks in general terms: “great public crisis,” “disaster,” “catastrophe,” and “similar public emergency.” Id. A deadly pandemic plainly fits within each of those general terms. And the Court should not interpret them more narrowly than their broad language permits. See Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts § 9 (2012) (“[T]he presumed point of using general words is to produce general coverage—not to leave room for courts to recognize ad hoc exceptions.”). That is doubly true in light of the Legislature’s express instruction to interpret the statute “broadly” to “effectuate th[e] purpose” of “invest[ing] the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32.
3 In light of the ongoing crisis, which has lasted for mere months, the cases cited by Plaintiffs rejecting “indefinite” emergency powers (Br. 22) are entirely inapposite. The Governor is not asserting an “open-ended or time unlimited” authority that “unreasonabl[y]” continues “after the termination of an emergency.” Hoitt v Vitek, 497 F2d 598, 600 (CA 1, 1974). Nor is she “continu[ing] to rely indefinitely on an emergency which at this date is almost two years old.” Valiant Steel & Equip, Inc v Goldschmidt, 499 F Supp 410, 413 (DDC, 1980). Much less has she asserted that an emergency situation has lasted for “nine years.” Co of Hudson v State of New Jersey Dept of Corr, 2009 WL 1361546, at *1 (NJ Super Ct App Div, May 18, 2009). (For what it’s worth, none of these cases involved the construction of the EPGA in any event, and only one—County of Hudson—even involved an analogous statute.)
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B. Nothing in the In Pari Materia Doctrine Justifies Engrafting the EMA’s 28-Day Limit Onto the EPGA
Plaintiffs argue that the Governor’s emergency powers under the EPGA lapsed at the end of 28 days absent an extension granted by the Legislature. Br. 24-29. They recognize that the EPGA itself contains no 28-day limit. But they ask the Court to read into that statute the limitations that the Legislature placed on the Governor’s authority under a different law—the Emergency Management Act (EMA), MCL § 30.401 et seq.
The EMA, adopted more than 30 years after the EPGA, layers additional and more detailed emergency authorities atop those that existed in the earlier statute. When the Legislature adopted the EMA, it imposed a 28-day limitation on the Governor’s unilateral power under the new law. See MCL 30.403(3) (“After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature.”); MCL 30.403(4) (similar). But it specifically preserved all of the authority granted to the Governor under the EPGA. See MCL 30.417(d) (stating that the EMA “shall not be construed” to “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws”).
Despite the Legislature’s clear instruction that the EMA did not in any way limit the Governor’s power under the EPGA, Plaintiffs contend that Governor Whitmer’s authority under the EPGA is bounded by the 28-day limitation in the EMA. Plaintiffs say that when the Governor issued an order terminating her original declaration of a state of emergency and disaster under the EMA (in recognition of the Legislature’s failure to grant an extension), that order necessarily also terminated the state of emergency that she had declared under the EPGA. Because both the original EMA declaration and the original EPGA declaration responded to the same event—“the COVID-19
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pandemic”—they assert that the two declarations must stand or fall together. Br. 25.
But that hardly follows. The Governor’s termination of her original EMA disaster declaration did not reflect the conclusion that the emergency was over. It instead simply acceded to the Legislature’s refusal to grant an extension under that statute. That is apparent from the plain text of EO 2020-66 (emphasis added):
For the reasons set forth above, the threat and danger posed to Michigan by the COVID-19 pandemic has by no means passed, and the disaster and emergency conditions it has created still very much exist. Twenty-eight days, however, have elapsed since I declared states of emergency and disaster under the Emergency Management Act in Executive Order 2020-33. And while I have sought the legislature’s agreement that these declared states of emergency and disaster should be extended, the legislature— despite the clear and ongoing danger to the state—has refused to extend them beyond today.
That executive order specifically terminated the emergency and disaster declarations under the EMA only, see id. (operative clauses), without withdrawing the prior emergency declaration under the EPGA. Indeed, on the very same day, the Governor issued EO 2020-67 (emphasis added), which reiterated that “[a] state of emergency remains declared across the State of Michigan under the Emergency Powers of the Governor Act of 1945.” Contrary to Plaintiffs’ suggestion, it is their argument on this point, not the Governor’s, that is mere “word play.” Pltf. Br. 25. 4
4 Plaintiffs’ argument in this regard is also too clever by half. That argument suggests that the 28-day EMA limitation might not apply to the EPGA emergency if the Governor had originally issued two separate executive orders declaring emergencies—one under the EMA and one under the EPGA. But there is no reason why it should matter whether the declarations appeared in one order or two.
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Plaintiffs also rely on the in pari materia and surplusage doctrines. Br. 26-29. They argue that the Court should read the EMA’s 28-day limitation into the EPGA, which contains no such limitation. If the Court does not do so, Plaintiffs contend, the subsequently adopted EMA would be rendered “surplusage.” Br. 28. There are three basic flaws in that argument.
First, Plaintiffs’ argument flies in the face of the plain text of the EMA. Far from seeking to limit the Governor’s pre-existing powers under the EPGA, the EMA’s language explicitly preserved those powers. See MCL 30.417(d). The Legislature could not have been clearer that the EMA merely added to, and did not in any way narrow, the power it had granted the Governor three decades earlier when it adopted the EPGA.
Plaintiffs suggest that this language, at best, preserves only the Governor’s authority to initially “proclaim” an emergency—but not her authority to issue further orders pursuant to that declaration. Br. 28. Their argument entirely ignores the “or exercise any other powers vested in him or her” language in MCL 30.417(d). That language makes clear that the EMA preserved not just the authority to “proclaim” an emergency but also all of the other powers attendant to such a proclamation under the EPGA.
Second, Plaintiffs’ argument distorts the in pari materia and surplusage doctrines. This Court has made clear that the in pari materia doctrine is not a mechanism for “rewriting … unambiguous language.” SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 73–74 & n26; 894 NW2d 535, 539–40 & n26 (2017). As this Court has explained, “[i]f a statute is unambiguous, a court should not apply preferential or ‘dice-loading’ rules of statutory interpretation.” People v Hall, 499 Mich 446, 454; 884 NW2d 561, 565 (2016) (internal quotation marks omitted). See also Summer v. Southfield Bd of Educ, 324 MichApp 81, 93; 919 NW2d 641, 649 (2018), appeal denied, 503 Mich 953; 923 NW2d 256 (2019) (“in pari materia rule of statutory construction is not implicated” where “the language of the statute is unambiguous”) (internal quotation marks omitted); In re Indiana Michigan Power Co, 297 MichApp 332, 344; 824 NW2d 246, 252–53
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(2012) (observing that “the interpretive aid of the doctrine of in pari materia can only be utilized in a situation where the section of the statute under examination is itself ambiguous”) (internal quotation marks omitted).
As we have shown, both the EPGA and the EMA are unambiguous. The EPGA unambiguously contains no 28-day limitation. And the EMA unambiguously preserves—without limitation—the powers granted to the Governor under the earlier statute. The in pari materia doctrine offers Plaintiffs no help.
The same goes for the surplusage doctrine. The canon against surplusage is merely an inferential means of uncovering legislative intent, one that does not apply where the text is clear. See People v. Pinkney, 501 Mich 259, 285 n.63; 912 NW2d 535, 548 n.63 (2018). Here, there is no need for inference, for the Legislature made its intent clear in the plain text of the EMA: The EMA merely adds to, and does not narrow, the authority the Legislature granted the Governor in the EPGA. Cf. Apsey v. Mem'l Hosp, 477 Mich 120, 131; 730 NW2d 695, 701 (2007) (“We question how the Legislature could have signaled more clearly its intent that the URAA should function as an alternative to MCL 600.2102 than by stating that the URAA ‘provides an additional method of proving notarial acts.’ The Legislature need not repeal every law in a given area before it enacts new laws that it intends to operate in addition to their preexisting counterparts.”) (citation omitted).5
5 Plaintiffs’ reliance on the canon of constitutional avoidance (Br. 17) fails for the same reason. “The canon of constitutional avoidance comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them.” Clark v. Martinez, 543 US 371, 385 (2005) (emphasis in original). The EPGA’s text is not susceptible of Plaintiffs’ construction. In any event, as we show in the next section, there is no difficult constitutional question here.
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Third, there is simply no surplusage here. As the Court of Claims held, “the EMA equips the Governor with more sophisticated tools and options at her disposal” than if she relied on the EPGA alone. House of Representatives, supra, slip op. 14. For example, it is only the EMA that authorizes the Governor to “enter into a reciprocal aid agreement or compact with another state, the federal government, or a neighboring state or province of a foreign country.” MCL 30.404(3). And Governor Whitmer has stated that the portions of her orders granting immunity from civil liability to certain parties depend on the EMA. See MCL 30.411. Likewise, the provisions of the EMA that authorize expanded scope of practice for specified medical professionals during a declared state of disaster. MCL 30.411(5).
None of Plaintiffs’ alleged injuries stem from orders or provisions that rest on the EMA alone. To the extent that the Governor seeks to invoke authorities that exist under the EMA but not the EPGA, she must use the procedures of the more recent statute. Even if, as here, the authorities granted by the two statutes overlap in many significant ways, that does not render the latter statute surplusage. See Chevron U.S.A. Inc. v. Echazabal, 536 US 73, 87 (2002) (“A provision can be useful even without congressional attention being indispensable.”). There is no basis for reading the EMA’s 28-day limitation into the EPGA.6
6 The Oregon Supreme Court recently rejected a similar argument. The governor had issued COVID-related orders pursuant to her authority under a general emergency-powers law, which contained no time limitation. Plaintiffs argued that the orders should terminate after 28 days, the period set by the state statute specifically relating to public health emergencies. The court held that the Governor’s authorities under the general emergency law were “not subject to the 28-day time limit.” Elkhorn Baptist Church v Brown, 366 Or 506, 537; 466 P3d 30, 49 (2020).
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III. The EPGA Does Not Violate the Separation of Powers
Plaintiffs argue that Governor Whitmer’s emergency orders constitute lawmaking in violation of the constitutional separation of powers. As we have shown, however, those orders rested on the authority the Legislature itself granted in the Emergency Powers of the Governor Act. They can therefore violate the separation of powers only if the EPGA itself violates the constitutional nondelegation doctrine. See Westervelt v Nat Res Comm’n, 402 Mich 412, 430–31; 263 NW2d 564, 571–72 (1978). As the Court of Claims properly held, the statute fully satisfies the standards set forth in the cases applying that doctrine. House of Representatives, supra, slip op. 16-19. Governor Whitmer, by exercising the authority granted to her by the statute, is merely executing, not making, the laws. Accordingly, her orders are constitutional.
This Court has long made clear that the Executive Branch may carry out powers delegated by the Legislature, so long as the delegation is “limited by the imposition of ‘defined legislative limits’ or legislatively prescribed standards.” Westervelt, 402 Mich at 430; 263 NW2d at 571. When the delegating legislation contains such standards, the Executive’s action “is not in fact, ‘law-making’ and is therefore not an unconstitutional violation of the separation of powers.” Id. at 431; 263 NW2d at 572.
In determining what limits are sufficient to guide a delegation, the Court has “recognized the fact that a flexible, adaptable rule regarding ‘standards’ is necessitated by the exigencies of modern day legislative and administrative government.” Id. at 436; 263 NW2d at 574. It has thus held “that ‘standards prescribed for guidance’ need only be ‘as reasonably precise as the subject-matter requires or permits.’” Id. at 435; 263 NW2d at 574 (quoting Osius v City of St. Clair Shores, 344 Mich 693, 698; 75 NW2d 25, 27 (1956)). In particular, “[t]he preciseness of the standard will vary with the complexity and/or the degree to which subject regulated will require constantly changing regulation.” Seaman, 396 Mich at 309; 240 NW2d at 210. Where “it is impractical for the Legislature to provide specific regulations,” it is fully constitutional for a statute to provide “that this function must be performed by the
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designated administrative officials.” Id. See also id. at 311; 240 NW2d at 211 (recognizing that broader delegation was appropriate where the government was faced with “a difficult and complex task” in a “constantly changing environment”). The Court has recognized that the Legislature can satisfy these standards in appropriate contexts by using “quite general language,” GF Redmond & Co v Michigan Sec Comm’n, 222 Mich 1, 5; 192 NW 688, 689 (1923), or “paint[ing] ‘with a rather broad stroke of the brush,’” Westervelt, 402 Mich at 448; 263 NW2d at 580, so long as it makes its policy judgments sufficiently clear.
The EPGA satisfies those standards. It does not give the Governor unfettered authority. Instead, it limits that power in key respects. First, the Governor may issue an emergency proclamation only in cases of a “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind.” MCL 10.31(1). That is a significant limitation, because it ensures that the emergency authorities exist only in response to truly extraordinary threats rather than as a tool of day-to-day governance in ordinary times. Second, once the Governor has issued an emergency proclamation, the statute limits the rules she can issue. They must be both “reasonable” and “necessary to protect life and property or to bring the emergency situation within the affected area under control.” Id. Although the Governor will necessarily receive deference in making her determinations under this provision, it provides key substantive standards to guide her discretion and permit review.
Those standards may “paint[] ‘with a rather broad stroke of the brush.’” Cf. Westervelt, 402 Mich at 448; 263 NW2d at 580. But they are “‘as reasonably precise as the subject-matter requires or permits.’” Id. at 435; 263 NW2d at 574 (quoting Osius, 344 Mich at 698; 75 NW2d at 27. Responding to an emergency is perhaps the paradigm case of “a difficult and complex task” undertaken in a “constantly changing environment.” Cf. Seaman, 396 Mich at 311; 240 NW2d at 211.
That is particularly true for COVID-19—“a global pandemic caused by a new and rapidly spreading virus, during which conditions change on a daily basis.” Elkhorn Baptist, 366 Or at 510; 466 P3d at 35.
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“COVID-19 is highly contagious and continues to spread, requiring public officials to constantly evaluate the best method by which to protect residents’ safety against the economy and a myriad of other concerns.” Illinois Republican Party v Pritzker, 2020 WL 3604106, at *7 (ND Ill, July 2, 2020). In “just a few short months,” it “has killed tens of thousands of people worldwide and infected hundreds of thousands more.” Adams & Boyle, P.C. v. Slatery, 956 F3d 913, 918 (6th Cir 2020). (Indeed, in the short time since the Sixth Circuit issued its opinion in Adams & Boyle, the United States death toll has passed the 150,000 mark.)
Responding to the pandemic “is a dynamic and fact-intensive matter.” South Bay United Pentecostal Church v Newsom, 140 S Ct 1613, 1613 (2020) (Roberts, C.J., concurring). It requires assessment of (among other things) epidemiological, biological, and economic data from across the State, the Nation, and other parts of the world that are experiencing the same crisis. The information is ever-developing as the pandemic spreads, without effective control, throughout the country. See pp. 1-2, supra. An effective response thus requires officials to “actively shap[e] their response to changing facts on the ground.” South Bay United Pentecostal Church, 140 S Ct at 1614. The stakes are the greatest ones imaginable: the preservation of life and health against needless deprivation, as well as ensuring that the economy of the State can continue in a safe and sustainable way. Immediate action—and immediate changes when the facts change—are necessary to protect these core interests during the crisis.
Even if the EPGA were limited to “great public cris[es]” caused by pandemics, it would be impossible to specify the standards governing the Executive Branch’s emergency action more precisely. And given the range of potential emergencies beyond pandemics for which the State must be prepared—emergencies that might not be predicted or even predictable—it was entirely appropriate for the Legislature to craft the EPGA’s delegation in the terms that it did.
Michigan’s Legislature is hardly alone in having granted flexible authority to the Governor to respond to pandemics and similar emergencies. Across the Nation, state legislatures have adopted
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statutes “broadly authorizing action where necessary to protect others from infection” in “the face of a novel infectious disease.” Lawrence O. Gostin & Lindsay F. Wiley, Public Health Law 426 (3d ed. 2016). The Pennsylvania Supreme Court recently upheld, against a separation-ofpowers challenge, orders promulgated by that state’s governor in response to the COVID-19 pandemic. The court concluded that the authority to issue those orders was “inherent in the broad powers authorized by the General Assembly.” Friends of DeVito v. Wolf, 227 A3d 872, 893 (Pa 2020), stay denied, 2020 WL 2177482 (US May 6, 2020). And the Oregon Supreme Court recently upheld COVID-related orders issued under a broad emergency statute that gave the governor “‘the right to exercise, within the area designated in the proclamation, all police powers vested in the state by the Oregon Constitution in order to effectuate the purposes of this chapter.’” Elkhorn Baptist, 366 Or at 524; 466 P3d at 42 (quoting Or Rev Stat 401.168(1)). The same result is appropriate here.
The broad-but-not-unlimited power that the Legislature granted the Governor in the EPGA contrasts sharply with the powers at issue in the cases on which Plaintiffs rely. Plaintiffs place principal reliance on this Court’s decision in Blue Cross & Blue Shield of Michigan v. Milliken, 422 Mich 1, 51; 367 NW2d 1, 27 (1985), and on the U.S. Supreme Court’s decision in Panama Refining Company v Ryan, 293 US 388 (1935). Pltf. Br. 33. Each of these cases involved statutes that imposed literally no standards to guide the discretion of the executive branch. Neither is apposite here.
In Blue Cross, this Court invalidated part of an insurance reform law that authorized the Insurance Commissioner and an actuarial panel to approve or disapprove proposed risk factors. The Court explained that the statute provided the Insurance Commissioner and the actuaries with “absolutely no standards” to guide their decisions. Id. at 52; 367 NW2d at 27 (emphasis added). That characterization was entirely apt, as the Court’s description of the relevant provisions makes clear:
Second, the Insurance Commissioner must either “approve” or “disapprove” the factors proposed by the health care corporation,
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§ 205(5). No guidelines are provided to direct the Insurance Commissioner’s response.
Third, if the risk factors are disapproved, a panel of three actuaries “shall determine a risk factor for each line of business,” § 205(6). No further directions are set forth to guide the panel.
Id. at 52–53; 367 NW2d at 27–28 (footnote omitted). The Court explained that “the power delegated to the Insurance Commissioner is completely open-ended.” Id. at 53; 367 NW2d at 28. The statute was “completely devoid of any indication why one factor should be preferred over another; no underlying policy has been articulated, nor has the Legislature detailed the criteria to be employed by the panel in making this determination.” Id. at 55; 367 NW2d at 29.7
Panama Refining presented essentially the same situation. Section 9(c) of the National Industrial Recovery Act authorized the President to bar the interstate transport of hot oil, but it provided absolutely no standards to govern the President’s decision:
“The President is authorized to prohibit the transportation in interstate and foreign commerce of petroleum and the products thereof produced or withdrawn from storage in excess of the amount permitted to be produced or withdrawn from storage by any State law or valid regulation or order prescribed thereunder, by any board, commission, officer, or other duly authorized agency of a State.”
Panama Ref Co 293 US at 406 (quoting Section 9(c)). The Court concluded that the provision violated the nondelegation doctrine because “Congress has declared no policy, has established no standard, has laid down no rule. There is no requirement, no definition of
7 Osius, 344 Mich at 700; 75 NW2d at 28, was also a case in which an administrative body had absolutely no standards to guide its exercise of discretion: “The zoning board of appeals is simply given authority to permit, and obviously to refuse to permit, the erection of gasoline stations after public hearings. But what standards prescribe the grant or refection of the permission? We find none.”
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circumstances and conditions in which the transportation is to be allowed or prohibited.” Panama Ref Co, 293 US at 430.
The EPGA, by contrast, does both articulate an “underlying policy” and provide standards to guide the exercise of the power delegated to the Governor. The Governor’s orders must be “reasonable” and within the realm of what could be considered “necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). Once the “emergency situation” passes, and the orders are no longer a “reasonable” response to it, the Governor’s statutory authority goes away. Plaintiffs’ suggestion that the law could authorize emergency orders “for years to come” and “even after the pandemic has been resolved” (Br. 34) is not just premature; it is simply incorrect.
Considering the grammar and structure of the statutory text, it is apparent that “to protect life or property [etc.]” is an operative provision—a standard that governs the Executive Branch—and not merely a generic policy goal. The relevant language does not appear in a prefatory provision, or one stating general statutory purposes. Rather, it appears in the very sentence authorizing the Governor to issue “orders, rules, and regulations,” and it specifically modifies that noun phrase. It thus provides the “‘defined legislative limits’ and ‘ascertained conditions’ (i.e., ‘standards’),” Westervelt, 402 Mich at 431; 263 NW2d at 572 (quoting People v Soule, 238 Mich 130, 139; 213 NW 195, 197-98 (1927)), that restrict the Governor’s discretion.8
8 Unlike the Iowa statute invalidated in Lewis Consolidated School District of Cass County v Johnston, 256 Iowa 236, 247; 127 NW2d 118, 125 (1964), the EPGA does not simply leave it to the executive to do as it wishes. See id. (interpreting the statute there to give “the superintendent, with the approval of the board, unlimited authority to do whatever he deems best in furthering the educational interests of the state”). Rather, it expressly requires that any regulations be “reasonable.” And it keys the “necessary” requirement not to the
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Plaintiffs state that they “have not found any case in which any statute—even an emergency-powers statute—has been saved from a non-delegation challenge by virtue of such amorphous statutory language” as appears in the EPGA. Br. 36. But far from being “amorphous,” the terms “reasonable” and “necessary” are generally understood in the law to provide binding standards that guide and limit primary conduct. “Reasonable care,” which frequently determines what steps individuals and entities must take to prevent harm to others on pain of monetary and even criminal sanction, is perhaps the most ubiquitous liability rule applied by courts throughout the State and Nation.
Arguing that the statutory language imposes no “real limitation on [the Governor’s] authority,” Plaintiffs point to several cases that have applied the rational basis test to reject federal constitutional challenges to Governor Whitmer’s orders. Br. 37-38. But Plaintiffs mix apples and oranges. It is axiomatic that the rational basis test that applies to federal constitutional claims is uncommonly deferential. See, e.g., Kimel v Florida Bd of Regents, 528 US 62, 85 (2000) (classification satisfies rational basis review even if it is based on a generalization that “is far from true” in all cases, “is probably not true” in most cases, and indeed “may not be true at all”) (internal quotation marks omitted). The whole point of such a deferential test is to leave to state law questions regarding the reasonableness of state officials’ action. See Daniels v Williams, 474 US 327, 333–36 (1986) (federal Constitution does not require state officials to exercise “reasonable” care, but state law may do so). The EPGA imposes just such a reasonableness requirement.
The terms “reasonable” and “necessary” in the EPGA compare favorably to the “quite general” terms that the Michigan courts have found in the past to impose sufficient limitations to satisfy the nondelegation doctrine. G.F. Redmond & Co., 222 Mich at 5; 192 NW at 689. In G.F. Redmond, for example, the Supreme Court upheld a “Blue Sky” statute granting the Michigan Securities Commission power to
Governor’s unfettered judgment but to the protection of life and property and the bringing of the emergency under control. MCL 10.31(1).
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suspend a business license if it found “good cause” for doing so. Although the delegation was phrased in broad terms, the Court concluded that “the term ‘good cause’ for revocation takes its sense from [the] policy” underlying the Blue Sky laws—to protect the public from fraud and sharp business practices. Id. at 5–6; 192 NW at 689.
Plaintiffs do not so much as cite this Court’s decision G.F. Redmond. The delegation here is attended with much more specific limits than the one there. Given the complex and fast-moving actions that emergency response demands, there is even more justification for a broad delegation here.
Nor do Plaintiffs cite the many federal cases that have upheld statutory delegations based on far more “amorphous statutory language” than the EPGA’s—even though Plaintiffs themselves note that “Michigan courts have … looked to federal precedent on questions of nondelegation and separation of powers.” Br. 32. In Yakus v United States, 321 US 414, 426–27 (1944), the Supreme Court upheld a statute that delegated to the Price Administrator the power “to promulgate regulations fixing prices of commodities which ‘in his judgment will be generally fair and equitable and will effectuate the purposes of this Act’ when, in his judgment, their prices ‘have risen or threaten to rise to an extent or in a manner inconsistent with the purposes of this Act.’” Id. at 420 (emphasis added; quoting the statute). In National Broadcasting Company v United States, 319 US 190, 216–17 (1943), the Court upheld a statute that delegated to the Federal Communications Commission the power to regulate broadcasting “‘as public convenience, interest, or necessity requires.’” Id. at 214 (quoting the statute).
Plaintiffs do not cite Yakus or National Broadcasting. They do cite the U.S. Supreme Court’s decision in Mistretta v United States, 488 US 361 (1989). Br. 32. But they fail to mention two key aspects of that case: First, the Court rejected the delegation challenge in Mistretta, 488 US at 379. Second, the Court specifically reaffirmed the holdings in Yakus and National Broadcasting, which had held that statutory requirements to regulate in the “public interest” were sufficient to satisfy the nondelegation doctrine. Mistretta, 488 US at 378–79. Similarly, although Plaintiffs cite the U.S. Supreme Court’s decision in
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Whitman v American Trucking Associations, 531 US 457 (2001), they fail to note that the Court there upheld, against a nondelegation challenge, a statute that delegated to the executive the authority to set air quality standards at a level “‘requisite to protect the public health’ with ‘an adequate margin of safety.’” Id. at 465 (quoting the statute); see id. at 473 (rejecting the nondelegation argument).
The limitations on the Governor’s emergency authority under the EPGA compare favorably to the limitations found sufficient in each of these cases. The statute thus readily satisfies the nondelegation doctrine.
Even beyond the limits that appear in the EPGA itself, the Governor faces other constraints on the exercise of her authority under the statute. To the extent that her orders violate constitutional rights, the affected individuals may challenge them in court. See, e.g., Seaman, 396 Mich at 313; 240 NW2d at 212 (noting that due process challenges are available to ensure that “authority, although properly delegated,” is not “subject to abuse”). Moreover, the Governor is also constrained by the ultimate check—accountability at the polls through the normal political process. When the Legislature delegates authority to an official with a “high degree of proximity to the elective process,” the ready availability of political checks provides “an additional, substantial factor assuring that the public is not left unprotected from uncontrolled, arbitrary power in the hands of remote administrative officials.” Westervelt, 402 Mich at 449; 263 NW2d at 580. Of all state officials, the Governor is the one with the most salient “proximity to the elective process.”
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CONCLUSION
The Court should decline to answer the certified questions. If it chooses to answer them, it should affirm the legality of the Governor’s emergency orders.
Respectfully submitted.
/s Samuel R. Bagenstos Samuel R. Bagenstos (P73971) 625 S. State St. Ann Arbor, MI 48109 734-647-7584 sbagen@gmail.com

Nathan Triplett (P76683) Democratic Legal Counsel Michigan House of Representatives PO Box 30014 Lansing, MI 48909-7514 517-373-5894 NTriplett@house.mi.gov

Attorneys for Amici Curiae

Dated:

August 7, 2020

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CERTIFICATE OF COMPLIANCE I hereby certify that this document complies with the formatting rules in Administrative Order No. 2019-6. I certify that this document contains 8,034 countable words. The document is set in Century Schoolbook. The text is in 12-point type with 18-point line spacing and 6 points of additional spacing between paragraphs.
/s Samuel R. Bagenstos Samuel R. Bagenstos (P73971) 625 S. State St. Ann Arbor, MI 48109 734-647-7584 sbagen@gmail.com
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