Whitmer's pandemic orders were 'necessary,' court finds in denying injunction

Mark Hicks
The Detroit News

The Michigan Court of Claims on Wednesday denied a motion for a preliminary injunction by several state residents who claimed that Gov. Gretchen Whitmer’s executive actions related to the pandemic infringe on their constitutional rights.

In a complaint last week with the Michigan Court of Claims, five residents alleged that the “mandatory quarantine” imposed by the Stay Home, Stay Safe order and the intrastate travel restrictions contained in an earlier version violated their rights to both procedural due process and substantive due process. 

Beverly Hills Penn Station East Coast Subs workers Jason Wiliams and Mia Zarka work in an empty dining room as Michigan Gov. Gretchen Whitmer issues a "Stay Home, Stay Safe" order on March 23.

It follows a federal lawsuit filed this month against state officials that argued provisions of the order were “arbitrary, capricious, irrational and abusive,” and said “the individual plaintiffs are prohibited from traveling freely within the state of Michigan, visiting family and friends, attending to or utilizing their privately owned property, and visiting their significant others.”

In his opinion and order Wednesday, Michigan Court of Claims Judge Christopher Murray said constitutional rights are “subject to reasonable regulation by the state.”

The judge noted “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," Murray said. "But the governor determined that severe measures were necessary, and had to be quickly implemented to prevent the uncontrolled spreading of the virus.”

Reached for comment Wednesday night, David Helm, the attorney who filed the federal lawsuit and the state case, said in email "we are disappointed in the judge’s ruling today but this does not end the case nor the fight. There are still many issues to be resolved and although we will not see any temporary relief, we are looking forward to setting precedence so that this kind of action cannot be taken by this governor or any future governors."

The Court of Claims case includes Steve Martinko, who owns Contender’s Tree and Lawn Specialists Inc. in Oakland County, which, according to the federal lawsuit filed this month, had to close amid spring chemical application after the business bought supplies for the work.

It also lists Oakland County residents Michael and Wendy Lackomar, who had been at their cabin in Sanilac County when the March executive order went into place and were not permitted to return home, the lawsuit said.

Murray noted Wednesday that Whitmer has since issued an executive order “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.”

Governor Gretchen Whitmer announces the extension of the Michigan's Stay Home, Stay Safe Order on Friday, April 24, 2020. She is accompanied by the Michigan Department of Health and Human Services Chief Medical Executive Dr. Joneigh Khaldun (left).

He acknowledged the residents’ rights as important but added “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 power to act for the public health of the entire state when faced with a public crisis,” he wrote.

Murray went on to address the plaintiffs' argument about a narrower order or quarantining only those who have the virus.

“… 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,” he wrote. 

The judge said “entry of a preliminary injunction would be more detrimental to the public than it would to plaintiffs.”

Michigan Attorney General Dana Nessel welcomed the decision, the first substantive ruling examining the constitutionality of the Whitmer's executive orders.

“This pandemic has already taken more than 3,600 lives in Michigan and many more around the world,” she said in a statement. “The primary goal of the Stay Home, Stay Safe order has always been to protect human life.”

The measures prompted protests this month calling for the governor to loosen her stay-at-home orders.

Since then, Whitmer has begun outlining her plans for reopening the state's economy, but Republicans want moves made more quickly. On Tuesday, the Senate formally urged Whitmer to expand the number of people who can go to work during the pandemic and allow elective procedures in hospitals.

Last week, Whitmer permitted lawn services, garden shops, landscapers and nurseries to begin operating again as long as they follow "enhanced" social-distancing rules.

Her office has confirmed a report that she will allow the construction industry to return to work on May 7.

A Legislature-approved emergency declaration granting the governor extraordinary powers is set to expire Friday.