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Monday, November 23, 2020
By Michael Nichols
Categories: Michael J. Nichols
It is hard to blame the Michigan Restaurant and Lodging Association for the fact that they filed suit in federal court over the latest Executive Orders from the Public Health Director for the State of Michigan … little data has linked a definite and almost irrefutable cause and effect between inside dining and the recent spike in Coronavirus cases. If the data exists, it is not easily findable or perhaps has never been released by Dr. Khaldun.
Recognizing that many people believe that the COVID-19 outbreak is nothing more than a government conspiracy, this article will for the sake of arguendo assume that the upward spike in positive case numbers and hospitalizations is a reality and not a conspiracy. After all, a safe assumption can be made that people do not go to the hospital and ask to be admitted to a bed, with almost no liberty to move about unless it is really necessary. Think about that, few people want to voluntarily cabin their ability to move freely about – this resurgence it seems – is the real deal. So, will Michigan Governor Gretchen Whitmer be thwarted again with the recent spate of orders from the Michigan Department of Health and Human Services is the question. The 21-day Order that took effect November 18th is here:
https://www.michigan.gov/coronavirus/0,9753,7-406-98178_98455-545136--,00.html
A harbinger of things to come may be via the Order issued by Federal Judge Paul Maloney on Friday, November 20 denying the TRO. You can find the Order on “PACER” – the United States District Court’s electronic filing and docket system:
https://ecf.miwd.uscourts.gov/doc1/09915971836
What I found most helpful is the Court’s analysis of the public health code that the Governor Whitmer’s Executive team relies on now, in light of the Michigan Supreme Court’s opinion that the Governor’s Emergency Powers Act was unconstitutional.
The MRLA filed a federal complaint, which is drafted excellently, on November 17th. The complaint alleges a violation of the dormant commerce clause of the United States Constitution; the takings clause of the 5th Amendment of the Constitution as applied to the states through the 14th Amendment and that the order issued on the evening of Sunday, November 15th, fails to comply with the statute.
The statute is here:
http://www.legislature.mi.gov/(S(j1ibgskout2cpdtmf3ohys3l))/mileg.aspx?page=GetObject&objectname=mcl-333-2253
The statute empowers the director of Public Health to prohibit the gathering of people for any purpose and establish procedures to be following during the epidemic. The MRLA’s complaint argued that the order did not prohibit the gathering of people, but it specifically targeted 1 specific sector of the economy: in-restaurant dining. The complaint argued that doing so when the cold weather will make outdoor dining impossible and at a time when there is no federal or state aid on the way will be the death knell for many restaurants.
Judge Maloney, the same judge who certified the question of the constitutionality of the governor’s powers under the EPGA, wrote the opinion on the MRLA’s request for an injunction and issued it Friday. The MRLA wanted a “temporary restraining order (TRO),” (see Rule 65 of the Federal Rules of Civil Procedure) which is a temporary restraining order that is often sought immediately without the other side being heard to return the status quo before the act that is the subject of the lawsuit.
The seeker of the TRO has a high burden: 1) show a strong likelihood of success on the merits; 2) the time it takes to “notify” the defendant or the other side/parties will be so harmful as to make the relief requested pointless; 3) a balancing of the harms that does not put the other side at an unfair disadvantage and 4) that a TRO would not be contrary to the public policy.
It was very interesting that Judge Maloney cited to the concurring opinion of Michigan Supreme Court Justice Viviano that specifically recognized that MCL 333.2253 under the public health code addresses epidemics and public health issues generally. Judge Maloney stated: “[i]t would be extraordinary for a federal judge to find a state statute unconstitutional on state-law grounds without the benefit of hearing from the State itself.”
He went on to say: “[w]hile the Court may have concerns about the statute, the Court can infer from Justice Viviano’s concurrence that the Michigan’s Public Health Code does provides some legal basis for executive action in response to COVID-19.”
A hearing is set for Monday, November 30th. Reading between the “tea leaves” is always a bit precarious BUT it seems that from some of the other language of the judge’s Friday opinion that he seems prepared to give the EO’s issued November 15th from the health director deference in light of the fact that they have a fairly short shelf life of 3 weeks and appear to have some basis in their purpose connected to protecting health. Another little tell came today (November 23rd): the judge re-scheduled the hearing so that it will not be live at the courthouse in Kalamazoo: but via video conference … apparently to keep people apart.
The MRLA lawsuit is not the only one that was filed since the 15th of November (opening day for firearm deer season means “ready, aim, fire” and not just for hunters). Others have been popping up in state or federal court. Business owners are scared, anxious and tired of the uncertainty. Where does it end? Probably with many different state supreme courts interpreted similar statutes to Michigan and at some point, the SCOTUS may be asked to weigh in … that is unless a vaccine stops the spread; leads to immunity and the COVID-19 pandemic is quashed.