Case 1:20-cv-00323-PLM-PJG ECF No. 31 filed 05/20/20 PageID.451 Page 1 of 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KIMBERLY BEEMER, and ROBERT MUISE, Plaintiffs, No. 1:20-cv-00323 v HON. PAUL L. MALONEY GRETCHEN WHITMER, in her MAG. PHILLIP J. GREEN official capacity as Governor for the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, Defendants. Robert J. Muise (P62849) Joseph T. Froehlich (P71887) American Freedom Law Center Joshua Booth (P53847) Attorney for Plaintiffs Christopher Allen (P75329) P.O. Box 131098 John Fedynsky (P65232) Ann Arbor, MI 48113 Michigan Dep’t of Attorney General 734.635.3756 Assistant Attorneys General [email protected] Attorneys for Def. Whitmer State Operations Division Joel C. Bryant (P79506) P.O. Box 30754 Sonal H. Mithani (P51984) Lansing, MI 48909 Miller Canfield Paddock & Stone PLC 517.335.7573 Attorneys for Def. Brian Mackie [email protected] 101 N. Main Street, 7th Floor [email protected] Ann Arbor, MI 48104 [email protected] 734.668.8908 [email protected] 734.668.7786 [email protected] [email protected] / DEFENDANT WHITMER’S MOTION TO DISMISS Case 1:20-cv-00323-PLM-PJG ECF No. 31 filed 05/20/20 PageID.452 Page 2 of 3 Defendant Gretchen Whitmer, by counsel, moves this Court to dismiss Plaintiffs’ complaint under Fed. R. Civ. P. 12, and based upon the following: 1. Plaintiffs’ claims are moot because Governor Whitmer has issued a series of executive orders that permit the very activities Plaintiffs alleged were prohibited. 2. Jacobson gives the State broad authority to implement emergency measures when faced with a society-threatening epidemic – including the measures that Plaintiffs challenge as burdening their constitutional rights. 3. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail. In further support of this motion, Governor Whitmer relies on the facts, law and argument more fully developed in the attached brief in support. The undersigned certifies that on May 18, 2020, concurrence in the relief requested was sought from Plaintiffs’ Counsel, and concurrence was expressly denied. Respectfully submitted, Dana Nessel Attorney General /s/ Joseph T. Froehlich Joseph T. Froehlich (P71887) Assistant Attorney General Attorney for Defendant Whitmer P.O. Box 30754 Lansing, MI 48909 517.335.7573 [email protected] P71887 Dated: May 20, 2020 2 Case 1:20-cv-00323-PLM-PJG ECF No. 31 filed 05/20/20 PageID.453 Page 3 of 3 CERTIFICATE OF SERVICE I certify that on May 20, 2020, I electronically filed the foregoing papers with the Clerk of the Court using the ECF system, which will provide electronic copies to counsel of record, and I certify that my secretary has mailed by U.S. Postal Service the papers to any non-ECF participant. /s/ Joseph T. Froehlich Joseph T. Froehlich Assistant Attorney General Attorney for Defendant Whitmer State Operations Division 3 Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.454 Page 1 of 43 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION KIMBERLY BEEMER, and ROBERT MUISE, Plaintiffs, No. 1:20-cv-00323 v HON. PAUL L. MALONEY GRETCHEN WHITMER, in her MAG. PHILLIP J. GREEN official capacity as Governor for the State of Michigan, BRIAN L. MACKIE, in his official capacity as Washtenaw County Prosecuting Attorney, Defendants. Robert J. Muise (P62849) Joseph T. Froehlich (P71887) American Freedom Law Center Joshua Booth (P53847) Attorney for Plaintiffs Christopher Allen (P75329) P.O. Box 131098 John Fedynsky (P65232) Ann Arbor, MI 48113 Michigan Dep’t of Attorney General 734.635.3756 Assistant Attorneys General [email protected] Attorneys for Def. Whitmer State Operations Division Joel C. Bryant (P79506) P.O. Box 30754 Sonal H. Mithani (P51984) Lansing, MI 48909 Miller Canfield Paddock & Stone PLC 517.335.7573 Attorneys for Def. Brian Mackie [email protected] 101 N. Main Street, 7th Floor [email protected] Ann Arbor, MI 48104 [email protected] 734.668.8908 [email protected] 734.668.7786 [email protected] [email protected] / BRIEF IN SUPPORT OF DEFENDANT WHITMER’S MOTION TO DISMISS Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.455 Page 2 of 43 CONCISE STATEMENT OF ISSUES PRESENTED 1. Plaintiffs’ claims are moot because Governor Whitmer has issued a series of executive orders that permit the very activities Plaintiffs alleged were prohibited. 2. Jacobson gives the State broad authority to implement emergency measures when faced with a society-threatening epidemic – including the measures that Plaintiffs challenge as burdening their constitutional rights. 3. Even absent Jacobson’s deferential standard, Plaintiffs’ constitutional challenges to the Governor’s prior Orders fail. i Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.456 Page 3 of 43 CONTROLLING OR MOST APPROPRIATE AUTHORITY Authority: Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905). ii Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.457 Page 4 of 43 INTRODUCTION “Upon the principle of self-defense, of paramount necessity, a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27 (1905). To that end, “[t]he possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community.” Id. at 26. This well-settled rule of law permits a state, in times of public health crises, to reasonably restrict the rights of individuals in order to secure the safety of the community. The scourge of COVID-19—a novel virus that quickly spread across the entire planet, infecting millions, and killing over a quarter of a million—presents such a crisis. Jurisdictions across the globe have had to impose aggressive measures to stem the viral tide that has overwhelmed healthcare systems worldwide. Schools have been shuttered, gatherings have been postponed, and business operations have been curtailed. Michigan is one of the states hardest hit by the pandemic. As of May 20, 2020, 52,350 have been confirmed infected and 5,017 have died, all in two months. There is no dispute that in the absence of any vaccine, social distancing has been the most effective way to combat the virus and keep these numbers from escalating. Recognizing this, Defendant Governor Gretchen Whitmer has taken bold, yet reasonable and necessary, steps to prioritize social distancing in Michigan. 1 Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.458 Page 5 of 43 In a series of executive orders, Governor Whitmer exercised her authority under Michigan law to put measures in place to suppress the spread of the virus and protect the public health. These measures, subject to various exceptions, have included: prohibiting in-person work that is not necessary to sustain or protect life; ordering individuals living in Michigan to stay at home or their place of residence; requiring those who do leave their home or place of residence to adhere to social- distancing practices; and prohibiting the operation of businesses that require workers to leave home if those workers are not necessary to sustain or protect life or to conduct minimum basic operations. Some of the exceptions include leaving a home or residence to: engage in recreational and outdoor physical activity; perform jobs as “critical infrastructure workers;” perform necessary government activities; perform tasks necessary to an individual’s or family member’s health and safety; obtain necessary services and supplies; and care for a family member in another household. These generally applicable, temporary, and content-neutral measures strike a reasonable balance between the need for unnecessary in-person contact to be regulated and the need for essential services to continue. Most importantly, they have worked for the benefit of the public health of everyone who lives in Michigan. As a result of them, countless lives have been saved, the curve of the virus’s spread has been flattening, and the Governor has been able to gradually and correspondingly lift a number of the previously imposed restrictions. This has, 2 Case 1:20-cv-00323-PLM-PJG ECF No. 32 filed 05/20/20 PageID.459 Page 6 of 43 among other things, rendered the Plaintiffs’ claims in this case moot, and those claims should be dismissed on that basis alone. The claims fare no better on their merits. Claims similar to those raised by the Plaintiffs have already been evaluated and rejected as unlikely to be successful on the merits in the Michigan Court of Claims. That Court’s reasoned analysis1 applies just as well in this case, recognizing judicial deference to the reasonable and temporary measures challenged here. Providing Plaintiffs with their requested relief would unlock exceptions to generally applicable, and effective, public health measures in a time of most dire need. The judicial creation of such exceptions on a case-by-case, piecemeal basis infringes on the state’s authority to act in a public health crisis and threatens its overarching plan to cope with the dangers and protect the lives, health, and welfare of all Michiganders. STATEMENT OF FACTS The complaint offers a glaringly sparse discussion of the public health crisis that has consumed not just Michigan, but the entire planet. Those facts are important to demonstrate the undisputed conditions warranting the Governor’s promulgation of the executive orders in question.