Documente Academic
Documente Profesional
Documente Cultură
1 Page 1 of 21
STEVE MARTINKO,
an individual,
WENDY LACKOMAR,
an individual,
and
JERRY FROST,
an individual,
Plaintiffs,
v.
Defendant.
__________________________________________/
COMPLAINT
NOW COME Plaintiffs, by and through their attorneys, Helm Law PC, who hereby bring
this action for declaratory and injunction relief, and monetary damages, against GRETCHEN
WHITMER, in her official capacity as Governor of the State of Michigan (here after referred to
PARTIES
1
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.2 Page 2 of 21
State of Michigan.
corporation operating as a landscaping and disease and pest control company out of Oakland
County, with its principal place of business in Oakland County, State of Michigan.
State of Michigan.
Michigan.
5. Plaintiff, JERRY FROST is an individual and resident of Roscommon County in the State
of Michigan.
the State of Michigan is responsible for enforcing the laws of the State of Michigan, and is charged
with implementing policy through executive orders, including the Executive Orders which took
7. This Court has jurisdiction to hear this case under 28 U.S.C. §§ 1331, 1343(a)(3)- (4),
which confer original jurisdiction on federal district courts to hear suits alleging the violation of
8. This action is brought by Plaintiffs seek relief under 28 U.S.C. §§ 2201-2202, 42 U.S.C.
§§ 1983 and 1988, and the Fifth and Fourteenth Amendments. U.S. CONST. AMEND. V, XIV.
9. Venue is proper under 28 U.S.C. § 1391(b), because a substantial part of the events giving
2
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.3 Page 3 of 21
INTRODUCTION
10. Plaintiffs are individuals and businesses from across the State of Michigan and constitute
those affected by Governor Whitmer’s actions: (i) an affected business ordered to shutdown and
individuals whose fundamental rights to associate with friends and family and utilize their
privately owned property have been unjustifiably infringed by Governor Whitmer’s executive
11. An individual’s choice to maintain human relationships, whether with friends or family
and the right to associate with such individuals under the First Amendment must be secured
against undue intrusion by the State because safeguarding this kind of individual freedom is
central to our constitutional scheme. Roberts v. United States Jaycees, 468 U.S. 609 (1984).
12. “The Fifth Amendments guarantee that private property shall not be taken for a public use
without just compensation was designed to bar Government from forcing some people alone to
bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”
FACTS
13. The World Health Organization (“WHO”) and the Center for Disease Control and
14. Likewise, the U.S. Department of Health and Human Services (“HHS”) declared that
15. On March 10, 2020, Governor Whitmer proclaimed the existence of a state of emergency
16. Since March 10, 2020, Governor Whitmer has issued no less than 39 separate executive
3
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.4 Page 4 of 21
orders in response to COVID-19 but the orders at issue in this case are 2020-21 and 2020-42.
17. Executive Order 2020-21, attached as Exhibit 1, took effect on March 24, 2020. Order
2020-21 restricted travel throughout the State of Michigan and orders all business with limited
exception to cease operations. Order 2020-21 remained in effect originally until April 13, 2020
18. Executive Order 2020-42, attached as Exhibit 2, took effect on April 9, 2020. Order 2020-
42 revoked and replaced 2020-21, extends the timeline originally set by 2020-21 and grossly
19. Governor Whitmer states in her perambulatory language of 2020-42, that she relies upon
a number of different sources to justify the executive action she undertook to address the threat of
20. Specifically, Governor Whitmer asserted her authority 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” under MCL 10.31(1).
21. Under 2020-42 Governor Whitmer mandated the shutdown of all business not deemed
22. 2020-42 authorize “critical infrastructure workers” to remain operational at their physical
locations, so long as those businesses implemented safety precautions outlined in the order.
23. Any business operating out of compliance with 2020-42 is subject to the possibility of
24. 2020-42 further prevents any property owner from renting or leasing their property for
4
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.5 Page 5 of 21
25. Notably absent from 2020-42 or any other executive orders issued by Governor Whitmer
is any provision addressing the inherent financial burden inflicted by the Orders on individuals
26. Governor Whitmer’s restriction on businesses began on March 24, 2020 and were
extended on April 13, 2020. 2020-42 will remain in effect until May 1, 2020 and as of the filing
27. Under 2020-42, businesses such as CONTENDER’S TREE AND LAWN SPECIALISTS,
INC, who can safely operate while still observing social distancing have been ordered to close.
28. In 2020-42, CONTENDER’S TREE AND LAWN SPECIALISTS, INC’s business was
not categorized as an “essential” business that would be permitted to stay open when Governor
Whitmer ordered several categories of businesses to close for the stated public purpose of
29. CONTENDER’S TREE AND LAWN SPECIALISTS, INC’s busiest time of year is the
spring and summer when various pesticide and disease control chemical applications are essential
to control the spread of potentially dangerous tree and plant diseases and invasive insects.
30. Timing is crucial for the application of these chemicals. Any delay beyond the first weeks
of April may prevent the ability to control dangerous tree and plant diseases and invasive insects.
31. 2020-21 and 2020-42 closed CONTENDER’S TREE AND LAWN SPECIALISTS, INC
32. To enable it to perform this chemical application work, CONTENDER’S TREE AND
LAWN SPECIALISTS, INC had ordered and received hundreds of thousands of dollars in
33. With 2020-21 and 2020-42, CONTENDER’S TREE AND LAWN SPECIALISTS, INC
5
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.6 Page 6 of 21
was unable to book additional contracts or undertake the chemical applications that were already
scheduled.
34. Under threat of fines and criminal penalties CONTENDER’S TREE AND LAWN
SPECIALISTS, INC is substantially denied the use of its Tangible Property and its Physical
35. By denying CONTENDER’S TREE AND LAWN SPECIALISTS, INC access to its
Physical Locations, it is unable to generate any additional sales or other forms of revenue, to
collect the bulk of their outstanding receivables or pay many of their payables.
36. As a result, the working capital of CONTENDER’S TREE AND LAWN SPECIALISTS,
INC was severely constrained and it was forced to immediately reduce its expenses in order to
37. The same day as the 2020-21 was issued CONTENDER’S TREE AND LAWN
SPECIALISTS, INC was forced to lay off fifteen (15) workers, irreparably damaging its sterling
38. With her forced closures, Governor Whitmer caused considerable damage to
CONTENDER’S TREE AND LAWN SPECIALISTS, INC., to its reputations, and to its
39. Neither Governor Whitmer nor the State of Michigan have offered appropriate
compensation to CONTENDER’S TREE AND LAWN SPECIALISTS, INC. in exchange for the
property.
40. 2020-21 and 2020-42 prevent CONTENDER’S TREE AND LAWN SPECIALISTS, INC.
from using its Physical Location or its Tangible Property in any economically beneficial manner.
6
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.7 Page 7 of 21
The Orders require that CONTENDER’S TREE AND LAWN SPECIALISTS, INC. and its
Tangible Property sit idle in Physical Locations they are prohibited from accessing.
41. During the pendency of the 2020-21 and 2020-42 while it has no use of its Tangible
Property and their Physical Locations, the value of CONTENDER’S TREE AND LAWN
42. 2020-21 and 2020-42 make it commercially impracticable to use the property belonging
to CONTENDER’S TREE AND LAWN SPECIALISTS, INC. for any economically beneficial
purpose, and inflict very nearly the same effect for constitutional purposes as appropriating or
destroying [the property as a whole]. Tenn. Scrap Recyclers Ass'n v. Bredesen, 556 F.3d 442, 455,
(2009)
43. The property of CONTENDER’S TREE AND LAWN SPECIALISTS, INC., which
Governor Whitmer’s Orders render unusable, includes both the real property in which the business
is physically located (“Physical Location”) and the tangible property housed in such locations –
such as machinery, inventory, tools, business records, and other forms of tangible equipment used
in operating each business (“Tangible Property”) (both forms of property collectively referred to
as “Property”).
44. Despite issuing 2020-21 and 2020-42 for a readily-apparent public purpose, Governor
Whitmer did not provide compensation for those who suffered substantial – and perhaps total –
diminution of value in their property interests as a result. 2020-21 and 2020-42 by their operative
45. 2020-21 and 2020-42 constitute a regulatory taking implemented for a recognized public
purpose, and therefore the failure to pay just compensation contravenes the Takings Clause of the
7
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.8 Page 8 of 21
Fifth and Fourteenth Amendments. Coalition for Gov't Procurement v. Fed. Prison Indus., 365
F.3d 435, 478, (2004) see also Horne v. Dep't of Agric., 576 U.S. 350, 135 S. Ct. 2419, 2426
(2015) (“Nothing in the text or history of the Takings Clause, or our precedents, suggests that the
rule is any different when it comes to appropriation of personal property. The Government has a
categorical duty to pay just compensation when it takes your car, just as when it takes your
home.”).
46. Under 2020-21 individuals are restricted from leaving their residences for any reason not
47. 2020-42 expands the restrictions under 2020-21 and includes restriction whereby
individuals are permitted to leave one’s residence only to purchase groceries, medications, or
medical or dental care, to care for minors or adults in need of assistance; to care for pets; to take
a walk in the park, to travel to or from another state; and to attend court hearings. All other travel
is prohibited.
48. Order 2020-42 further and specifically outlaws the right of an individual to travel between
two residences, travel to vacation rentals, and to gather in any number of people not part of a
single household.
49. Under 2020-42 the individual named Plaintiffs have been prevented from exercising some
of their most fundamental rights enjoyed by citizens of the United States and the State of
Michigan.
50. 2020-42 imposes severe fines and criminal penalties for any resident of the State of
8
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.9 Page 9 of 21
51. 2020-42 will remain in effect until May 1, 2020 and as of the filing of this Complaint, it
remains in effect.
52. Plaintiff, STEVE MARTINKO, resides in Oakland County, Michigan and is the owner of
53. Under 2020-42, because MR. MARTINKO is barred from accessing his company’s
property.
54. Plaintiffs, MICHAEL LACKOMAR and WENDY LACKOMAR are a married couple
who reside in Oakland County, Michigan and own a cabin located in Sanilac County, Michigan.
56. The LACKOMARS were at their cabin in Sanilac County, when 2020-42 went into effect.
Pursuant to 2020-42, the LACKOMARS were not permitted to return to their residence in
Oakland County.
57. Neither Governor Whitmer nor the State of Michigan have offered appropriate
compensation to the LACKOMARS or any other resident in exchange for the total regulatory
58. 2020-42 requires Mr. MARTINKO and the LACKOMARS’ Property to sit idle.
59. Plaintiff, JERRY FROST resides in Roscommon County, Michigan. Mr. FROST lives
alone but has a longtime girlfriend of 14 years who resides nearby. Yet under 2020-42, because
Mr. FROST does not reside in the same household as his girlfriend, he cannot visit her or vice
versa.
60. Mr. FROST also has other friends and family in the area however under 2020-42, because
Mr. FROST does not reside in the same household with all of his friends and family, he is not
9
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.10 Page 10 of 21
61. Under threat of fines and criminal penalties 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 for the duration of 2020-42.
AUTHORITY
62. Governor Whitmer claimed her authority to enact the Orders by citing a set of broad
emergency statutes which she said authorized her actions to stem the spread of COVID-19 across
the State of Michigan. This suit does not seek to contest whether Governor Whitmer’s decision to
issue the COVID-19 Executive Orders were prudent or within her authority to issue.
63. This suit accepts as fact that Governor Whitmer took action for a public purpose. As she
stated in the preamble to her executive orders, “the World Health Organization and the Centers
for Disease Control and Prevention (“CDC”) have declared [COVID-19] a ‘public health
emergency of international concern,’ and the U.S. Department of Health and Human Services
(“HHS”) Secretary has declared that COVID-19 creates a public health emergency.”
64. Governor Whitmer’s actions were not designed to serve her private interests, nor did
65. Notwithstanding their legitimate public purpose, Governor Whitmer’s Orders halted all
economic activity and violates fundamental rights protected by the Constitution of the United
COUNT I
2020-21 and 2020-42 are an unconstitutional regulatory taking of property without just
compensation in violation of the fifth amendment’s takings clause as incorporated under the
fourteenth amendment
66. Plaintiffs hereby incorporate by reference the preceding paragraphs as though fully set
10
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.11 Page 11 of 21
forth herein.
67. Governor Whitmer has seized without compensation the property of businesses and
individuals across the State, by forcing the closures of business and restricting travel to second
68. These uncompensated seizures violate the Takings Clause of the Fifth Amendment, made
applicable to States through the Fourteenth Amendment, and also violate well-established notions
of Substantive and Procedural Due Process. Plaintiffs respectfully request that this Court (i)
declare the Governor Whitmer’s actions unconstitutional, and (ii) order the payment of just
compensation.
69. Governor Whitmer issued a series of Executive Orders for the public purpose of protecting
70. Governor Whitmer has placed the cost of these Orders – issued for the benefit of the public
– squarely upon the shoulders of private individuals and their families and has failed to justly
compensate affected parties for these takings undertaken for their benefit to the public.
71. Without extending constitutionally required just compensation to Plaintiffs, these Orders
jeopardize the sustainability of Plaintiff’s businesses and the rights of the Plaintiff’s rights with
72. The Takings Clause of the Fifth Amendment provides that private property shall not “be
taken for public use, without just compensation.” U.S. Const. Amend. V.
73. The Takings Clause “is designed not to limit the governmental interference with property
rights per se, but rather to secure compensation in the event of otherwise proper interference
amounting to a taking.” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 536–37 (2005) (quoting
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304,
11
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.12 Page 12 of 21
74. The Takings Clause bars government actors “from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the public as a whole.”
75. Governor Whitmer, issued 2020-21 and 2020-42 as a means of slowing the spread of the
novel coronavirus.
76. Governor Whitmer acted under color of state law, and 2020-21 and 2020-42 were issued
to serve a well-recognized public purpose by a duly elected state official and his designee.
77. 2020-21 and 2020-42 adversely impacted CONTENDER’S TREE AND LAWN
SPECIALISTS, INC. and the LACKOMARS’ use of their Tangible Property and Physical
Locations to such an extent that, at least temporarily, the Orders entirely diminished the
78. Under 2020-21 and 2020-42 all economically beneficial and profitable uses of
CONTENDER’S TREE AND LAWN SPECIALISTS, INC. Tangible Property and Physical
Location and the benefit of the LACKOMARS owning their Property; save bare ownership, the
79. 2020-21 and 2020-42 requires Physical Locations housing “non-critical infrastructure”
80. 2020-42 also prohibits the affected Physical Locations from being leased, subleased,
81. The Supreme Court “recognized that government regulation of private property may, in
some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster—
and that such ‘regulatory takings’ may be compensable under the Fifth Amendment.” Lingle, 544
U.S. at 537
12
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.13 Page 13 of 21
82. “The general rule at least is that while property may be regulated to a certain extent, if
regulation goes too far it will be recognized as a taking.” Pennsylvania Coal Co. v. Mahon, 260
83. Governor Whitmer’s executive Orders “go too far” and must “be recognized as a taking.”
See id.
CONTENDER’S TREE AND LAWN SPECIALISTS, INC., and the LACKOMARS will be
privately saddled with the cost of paying for government action undertaken for the common good.
85. CONTENDER’S TREE AND LAWN SPECIALISTS, INC., and the LACKOMARS have
suffered a complete loss of “all economically beneficial uses” of their Property while 2020-42
CONTENDER’S TREE AND LAWN SPECIALISTS, INC. and the LACKOMARS inability to
operate their businesses at their Physical Locations or their inability to exercise any of their other
property rights with regard to their Tangible Property. See Lucas v. S.C. Coastal Council, 505
86. CONTENDER’S TREE AND LAWN SPECIALISTS, INC. and the LACKOMARS have
been called upon to sacrifice all usage of their Properties in the name of the common good, that
is, to leave their properties economically and otherwise idle, and for this, they have suffered a
87. In the alternative, under the framework articulated by the Supreme Court in Penn Central,
2020-42 constitutes a taking based upon “the magnitude of [the Orders’] economic impact and
the degree to which [the Orders] interfere[] with legitimate property interests.” Lingle, 544 U.S.
528 at 540.
13
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.14 Page 14 of 21
88. The Supreme Court’s analysis in Penn Central sets forth the framework for assessing
whether government action is considered a regulatory taking, identifying “several factors that
have particular significance.” Penn Central Transp. Co. v. New York City, 438 U.S. 104, 124
(1978).
89. The court looks to three factors when analyzing a taking: (1) “[t]he economic impact of
the regulation on the claimant,” (2) “the extent to which the regulation has interfered with distinct
investment-backed expectations,” and (3) “the character of the governmental action,” Penn Cent.,
438 U.S. at 124, 98 S.Ct. 2646. While these factors provide “important guideposts,” “[t]he
Takings Clause requires careful examination and weighing of all the relevant circumstances.”
Palazzolo, 533 U.S. at 634, 636, 121 S.Ct. 2448 (O'Connor, J., concurring); see also Tahoe–
Sierra, 535 U.S. at 321, 122 S.Ct. 1465 (whether a taking has occurred “depends upon the
particular circumstances of the case”); Yee v. City of Escondido, 503 U.S. 519, 523, 112 S.Ct.
1522, 118 L.Ed.2d 153 (1992) (regulatory takings claims “entail[ ] complex factual assessments”).
Lost Tree Vill. Corp. v. United States, 115 Fed. Cl. 219, 228 (2014) (emphasis added).
90. Even if the regulation falls short of eliminating all economically beneficial use, a taking
nonetheless may have occurred, Palazzolo v. Rhode Island, 533 U.S. 606 at 617, (2001).
91. Since the onset of Governor Whitmer’s Orders, CONTENDER’S TREE AND LAWN
SPECIALISTS, INC. and the LACKOMARS have not been permitted to use their Physical
Locations to operate their businesses, nor have they been allowed to use their Tangible Property
92. 2020-21 and 2020-42 have either entirely drained Plaintiff’s Property of all economic
value during their pendency, or have nearly done so; in either event, the diminution of value and
14
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.15 Page 15 of 21
compensation.
Count II
SUBSTANTIVE DUE PROCESS—42 U.S.C. §1983
2020-21 and 2020-42 Deprive Plaintiffs of Life, Liberty and/or Property without Due
Process of Law in Violation of the Fourteenth Amendment
93. Plaintiffs hereby incorporate by reference the preceding paragraphs as though fully set
forth herein.
94. Never in the modern history of the United States – even in war time – has such an invasive
95. The Plaintiffs have a protected liberty interest in their right to live without arbitrary
governmental interference in their fundamental property right to use and enjoy land in which they
hold a recognized interest. See MFS, Inc. v. DiLazaro, 771 F. Supp. 2d 382, 440–41 (E.D. Pa.
2011) (citing DeBlasio v. Zoning Bd. of Adjustment for Twp. of W. Amwell, 53 F.3d 592, 600 (3d
Cir.1995)); see also Horne, 576 U.S. 350, 135 S. Ct. at 2426.
96. The Supreme Court “ha[s] emphasized time and again that “[t]he touchstone of due
Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558
(1974)).
97. “[T]he fault [may] lie[] in a denial of fundamental procedural fairness … or in the exercise
98. “‘[S]ubstantive due process’ prevents the government from engaging in conduct that
15
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.16 Page 16 of 21
‘shocks the conscience,’ ... or interferes with rights ‘implicit in the concept of ordered liberty[.]’”
United States v. Salerno, 481 U.S. 739, 746 (1987) (quoting Rochin v.California, 342 U.S. 165,
172 (1952), and Palko v. Connecticut, 302 U.S. 319, 325–326 (1937)).
99. “[T]he substantive component of the Due Process Clause is violated by executive action
100. 2020-21 and 2020-42 as set forth above, constitute arbitrary, capricious, irrational and
abusive conduct which unlawfully interferes with Plaintiffs’ liberty and property interests
protected by the due process clause of the Fourteenth Amendment to the United States
Constitution.
101. Defendant has acted under color of state law with the intent to unlawfully deprive the
Plaintiffs of their liberty and property without substantive due process in violation of the
102. Defendant’s actions, including issuance and enforcement of 2020-21 and 2020-42
constitute the official policy, custom, and practices of the State of Michigan.
103. 2020-21 and 2020-42 intrude upon the Plaintiffs’ use and enjoyment of their property and
separately impacts upon the use of its Tangible Property. See DeBlasio, 53 F.3d at 601. Therefore,
Governor Whitmer has violated CONTENDER’S TREE AND LAWN SPECIALISTS, INC. and
the LACKOMARS substantive due process rights. See also Nashville, C. & St. L. Ry. v. Walters,
104. Governor Whitmer has arbitrarily, irrationally and capriciously imposed upon
CONTENDER’S TREE AND LAWN SPECIALISTS, INC. and the LACKOMARS use and
enjoyment of their property by, inter alia, requiring both Plaintiffs to shutdown indefinitely and
16
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.17 Page 17 of 21
to privately bear the burden for such publicly beneficial decisions, which are aimed at slowing the
105. Governor Whitmer implemented 2020-21 and 2020-42 for the purpose of preserving
public health, safety and welfare. The implementation of these Orders, however, caused Plaintiffs,
harm which they are being asked to privately bear for a manifest public benefit.
106. The Governor Whitmer’s behavior does not comport with traditional ideas of fair play and
decency, Breithaupt v. Abram, 352 U.S. 432, 435 (1957), and shocks the conscience’ and violates
the ‘decencies of civilized conduct.’” See Lewis, 523 U.S. 833, 846–47 (citations omitted); and
107. Governor Whitmer has acted intentionally, willfully, wantonly, and with callous and
CONTENDER’S TREE AND LAWN SPECIALISTS, INC. and the LACKOMARS have and
will continue to sustain monetary damages including loss in the value of the Tangible Property
and Physical Locations, lost revenues, profits, expenses, attorneys’ fees, and other costs incurred.
COUNT III
SUBSTANTIVE DUE PROCESS—42 U.S.C. §1983
2020-21 and 2020-42 Deprive Plaintiffs of Life, Liberty and/or Property without Due
Process of Law in Violation of the Fourteenth Amendment
109. Plaintiffs hereby incorporate by reference the preceding paragraphs as though fully set
forth herein.
110. The Plaintiffs have a right to be free from intrusion into their familial relationships and the
fundamental freedom of their right to associate. Roberts v. United States Jaycees, 468 U.S. 609
17
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.18 Page 18 of 21
(1984).
111. Moreover, the constitutional shelter afforded such relationships reflects the realization that
individuals draw much of their emotional enrichment from close ties with others. Protecting these
relationships from unwarranted state interference therefore safeguards the ability independently
to define one's identity that is central to any concept of liberty. Id. at 619.
112. Family relationships, by their nature, involve deep attachments and commitments to the
necessarily few other individuals with whom one shares not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects of one's life. Id. at 619-620.
113. The Plaintiffs have a protected liberty interest in their right to associate with their friends,
family and significant others without arbitrary governmental interference. Loving v. Virginia, 388
U.S. 1 (1967).
114. The Supreme Court has emphasized time and again that the touchstone of due process is
protection of the individual against arbitrary action of government. Cty. of Sacramento v. Lewis,
523 U.S. 833, 845 (1998) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)).
115. The fault may lie in a denial of fundamental procedural fairness … or in the exercise of
power without any reasonable justification in the service of a legitimate governmental objective.
116. Choices to enter into and maintain certain intimate human relationships must be secured
against undue intrusion by the State because of the role of such relationships in safeguarding the
individual freedom that is central to our constitutional scheme. In this respect, freedom of
117. This Court has long recognized that freedom of personal choice in matters of marriage and
18
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.19 Page 19 of 21
family life is one of the liberties protected by the Due Process Clause of the Fourteenth
Amendment. Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639-640, (1974) see also
Roe v. Wade, 410 U.S. 113; Loving v. Virginia, 388 U.S. 1, 12; Griswold v. Connecticut, 381
U.S. 479; Pierce v. Society of Sisters, 268 U.S. 510; Meyer v. Nebraska, 262 U.S. 390.
118. The test for a substantive-due-process right is twofold: whether the right is “objectively,
deeply rooted in this Nation's history and tradition” and whether “the crucial guideposts” of “[o]ur
Nation's history, legal traditions, and practices” support the right. The fundamental rights
recognized under substantive due process include “personal decisions relating to marriage . . .
family relationships, child rearing, and education,” which often “involv[e] the most intimate and
personal choices a person may make in a lifetime.” Fakoya v. County of Clark, 2014 U.S. Dist.
119. 2020-21 and 2020-42 as set forth above, constitute arbitrary, capricious, irrational and
abusive conduct which unlawfully interferes with Plaintiffs’ liberty and the right to associate with
friends and family protected by the due process clause of the Fourteenth Amendment to the United
States Constitution.
120. Defendant has acted under color of state law with the intent to unlawfully deprive the
Plaintiffs of their liberty and property without substantive due process in violation of the
121. Defendant’s actions, including issuance and enforcement of 2020-21 and 2020-42
constitute the official policy, custom, and practices of the State of Michigan. Therefore, Governor
122. Governor Whitmer has acted intentionally, willfully, wantonly, and with callous and
19
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.20 Page 20 of 21
123. As a direct and proximate result of Governor Whitmer’s Executive Orders, the Plaintiffs
have and will continue to sustain damages including attorneys’ fees, and other costs incurred.
WHEREFORE, Plaintiffs demand judgment in their favor, against Defendant and seek relief for:
Orders 2020-21 and 2020-42 as a violation of Plaintiffs’ fundamental rights under the
b. A declaratory judgment that issuance and enforcement of Executive Orders 2020-21 and
c. Compensatory damages adequate to justly compensate Plaintiffs for the regulatory taking
d. Compensatory damages adequate to satisfy Plaintiffs in the amount owed for Defendants’
e. Punitive damages;
f. A declaratory judgment that issuance and enforcement of Executive Orders 2020-21 and
2020-42 as an unconstitutional taking without just compensation, under the Fifth and
Fourteenth Amendment;
g. A declaratory judgment that issuance and enforcement of Executive Orders 2020-21 and
h. A permanent injunction to prohibit Defendants from enforcing the Executive Orders 2020-
21 and 2020-42;
20
Case 2:20-cv-10931-BAF-MJH ECF No. 1 filed 04/14/20 PageID.21 Page 21 of 21
i. An award of costs and expenses, including reasonable attorneys’ fees under 42 U.S.C. §
1988; and,
Respectfully submitted,
JURY DEMAND
Respectfully submitted,
21
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.22 Page 1 of 12
Exhibit 1
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.23 Page 2 of 12
EXECUTIVE ORDER
No. 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. 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
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.24 Page 3 of 12
This order takes effect on March 24, 2020 at 12:01 am, and continues through April 13,
2020 at 11:59 pm.
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.
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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.25 Page 4 of 12
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.
b. In-person activities that are not necessary to sustain or protect life must be
suspended until normal operations resume.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.26 Page 5 of 12
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.
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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.27 Page 6 of 12
b. Such activities also include, but are not limited to, public transit, trash pick-up 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.
7. Exceptions.
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).
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.
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:
d. Energy.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.30 Page 9 of 12
g. Public works.
j. Critical manufacturing.
k. Hazardous materials.
l. Financial services.
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.
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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-1 filed 04/14/20 PageID.33 Page 12 of 12
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 COVID-19 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.
Given under my hand and the Great Seal of the State of Michigan.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.34 Page 1 of 16
Exhibit 2
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.35 Page 2 of 16
EXECUTIVE ORDER
No. 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 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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.36 Page 3 of 16
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. 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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.37 Page 4 of 16
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.
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.
a. Consistent with sections 8 and 9 of this order, businesses and operations must
determine which of their workers are critical infrastructure workers and inform
such workers of that designation. Businesses and operations must make such
designations in writing, whether by electronic message, public website, or other
appropriate means. Workers need not carry copies of their designations when
they leave the home or place of residence for work. Businesses and operations
need not designate:
b. In-person activities that are not necessary to sustain or protect life must be
suspended until normal operations resume.
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.
b. Such activities also include, but are not limited to, public transit, trash pick-up and
disposal (including recycling and composting), activities necessary to manage
and oversee elections, operations necessary to 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.
7. Exceptions.
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).
A. Individuals must secure such services or supplies via delivery to the maximum
extent possible. As needed, however, individuals may leave the home or place of
residence to purchase groceries, take-out food, gasoline, needed medical
supplies, and any other products necessary to maintain the safety, sanitation,
and basic operation of their residences. Individuals may also leave the home to
drop off a vehicle to the extent permitted under section 9(i) of this order.
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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.41 Page 8 of 16
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.
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.
3. Between two residences in this state, through April 10, 2020. After that date,
travel between two residences is not permitted.
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:
d. Energy.
g. Public works.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.43 Page 10 of 16
j. Critical manufacturing.
k. Hazardous materials.
• Financial services.
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.
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.
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.
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:
d. Keeping workers and patrons who are on premises at least six feet from one
another to the maximum extent possible.
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.
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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.47 Page 14 of 16
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.
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.
D. Paint.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.48 Page 15 of 16
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.
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
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.
Case 2:20-cv-10931-BAF-MJH ECF No. 1-2 filed 04/14/20 PageID.49 Page 16 of 16
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
COVID-19 cases and isolate infected people; and (5) economic conditions in the
state.
17. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is
a misdemeanor.
Given under my hand and the Great Seal of the State of Michigan.