DETROIT — At least 51 state and federal lawsuits have challenged the rules that governed life in Michigan during the COVID-19 pandemic, creating an unprecedented crush of litigation.
One suit possessed the arguments that helped overturn Gov. Gretchen Whitmer's 188 pandemic executive orders when the Michigan Supreme Court decided a 1945 emergency powers law was unconstitutional.
But even that case remains active since it is being appealed by the Whitmer administration. Ten others remain pending as they seek to recoup financial losses endured during a now-unconstitutional lockdown and undo the state health department's epidemic orders that replaced Whitmer's executive orders after the high court's ruling.
Residents and businesses began filing lawsuits against Whitmer's orders April 1, 2020, and 21 had been filed within seven weeks. Just before the Supreme Court's ruling, the tally had grown to 31. Another 20 lawsuits were filed after the Oct. 2 decision in opposition to the epidemic orders.
The suits came from roller rinks and gyms, lawmakers and schools, protesters and restaurants, people wanting to visit their cottages and others wanting to drive a motorboat. A big chunk were filed by residents representing themselves, some handwritten.
Of the 11 still awaiting a final decision, three involve private schools, and one is by a group of roller rinks and bowling alleys looking to be paid back for the money they lost under Whitmer's orders.
The use of Michigan's emergency laws to regulate everyday activities during the pandemic "definitely put our legal system through a stress test," said Patrick Wright, director of the Mackinac Center Legal Foundation, which brought the suit that overturned Whitmer's executive orders.
"When we're through this pandemic and things have settled down a little bit, there's going to be a lot of questions about where the proper calibration is between how to respond to emergencies and how to maintain proper oversight," Wright said.
But Whitmer has defended her use of executive and epidemic orders to stem the tide of the pandemic, which her office said helped the state to reach and maintain relatively low virus numbers.
"Michigan's success in mitigating the spread of COVID-19 throughout the pandemic is due in large part to the smart public health protocols that Gov. Whitmer put in place at the advice of our state's top health experts, which bought us time until the vaccines could be safely manufactured and distributed," said Whitmer's spokesman Bobby Leddy.
Case that tipped the scales
When the Midland-based Mackinac Center filed suit against the state on May 12, 2020, it was picky about the type of case it took on.
"We were very strategic in recognizing the state's interest and that they were claiming that they were saving lives," Wright said. "We knew it was important to have a case where we could make those same claims."
So the Mackinac Center Legal Foundation filed on behalf of three medical centers and a patient who were prohibited and later restricted from providing or receiving non-emergent care in the early months of the pandemic. The centers argued that they were forced to delay care for several individuals whose conditions worsened into emergency issues.
Kalamazoo U.S. District Judge Paul Maloney, who was assigned 24 of Michigan's 51 pandemic rule cases, asked the state Supreme Court to rule on the constitutionality of the state law because of jurisdictional issues under a process called "certification."
The Supreme Court on Oct. 2 issued an opinion with binding precedent on the other 31 cases then at issue and unanimously ruled that Whitmer had violated the 1976 Emergency Management Act by not obtaining the Legislature's approval for a 28-day extension of the emergency declaration. The high court also ruled, 4-3, that the 1945 Emergency Powers of the Governor Act was an unconstitutional delegation of legislative authority.
The decision was later made permanent by the Unlock Michigan campaign — a petition initiative that successfully repealed the 1945 law after gaining the Legislature's approval in July.
Still, the medical center case remains under appeal by Attorney General Dana Nessel, representing the Whitmer administration. The attorney general has asked the Sixth Circuit U.S. Court of Appeals to reverse Maloney's decision to send the question of state constitutionality to the Michigan Supreme Court.
Nessel's office declined comment on the lawsuit, pointing to its arguments in legal filings.
Nessel argues that Maloney should have dismissed the case based on the state's 11th Amendment immunity, which limits lawsuits against states in federal court.
But Maloney opined Nessel didn't bring up the argument until after he certified the question to the state court. And the medical centers say the attorney general's arguments are moot because of the high court's Oct. 2 decision.
"Even if the district court's order is reversed, the questions will still have been certified and have already been answered," the medical centers said in their Sixth Circuit response. They plan to seek attorney fees and costs if an opinion is issued in their favor, according to the filing.
Cases challenge new orders
While Whitmer's use of the state's emergency management acts took a beating in court last fall, the public health code underpinning epidemic orders similar to the governor's executive orders appears to be on firmer legal grounds, experts said.
The Michigan Department of Health and Human Services began issuing epidemic orders in early October under the public health code and did so through June, when most restrictions were lifted.
None of the 20 suits filed after the Supreme Court's decision have been successful. But eight are still open, including three challenging the health department's mask mandate and the closure of in-person high school classes last fall.
Libertas Classical Academy in Hudsonville continues to pursue its claims against the state, first detailed on Oct. 18 in the early days of the state health department orders. The Christian school challenged the health department's mask and contact tracing requirements, raising constitutional objections that included freedom of religion.
"Here we are getting ready to start a new year and everybody's worried about new cases and new orders," said Ian Northon, a lawyer for the school. "Our problem hasn't gone away."
Two other private schools — Resurrection School in Lansing and St. Michael Academy in Petoskey — are raising similar objections.
Other pending cases against the health department orders include a catering company and Macomb County area restaurants closed and later restricted under health department orders.
Those claims may be more difficult to win, thanks in part to the precedent of a 1905 Massachusetts case that upheld the "protection of public health" during a challenge to compulsory small pox vaccinations.
"That has to be weighed against the larger need, the higher good," said Lance Gable, professor of law at Wayne State University. "There are limits to that. But the fact is that there is a balancing that goes on."
Following its successful repeal of the 1945 emergency powers law, Unlock Michigan has targeted the state health department's epidemic orders. The group's newest petition would limit state epidemic orders to 28 days and require legislative approval for an extension.
Peter Jacobson, professor emeritus of health law and policy at the University of Michigan School of Public Health, defended Whitmer's reliance on the public health code during the pandemic as necessary because of the GOP-led Legislature's reticence to back restrictions.
"You couldn't put the two sides in the same room together" after the Supreme Court decision, Jacobson said.
"You know as well as I do that these are two different ideological approaches. What's the governor supposed to do? Accept that?"
Jacobson expressed concern about Unlock Michigan's plans to try to curtail the public health code during the pandemic. If successful, he said, the effort would "undermine the public's health in the long term."
"I understand the motivation; I understand the objections," Jacobson said. "But the actions being taken are going to harm people, the people of Michigan."
Suing for restitution
Of the remaining active cases, one filed by a roller rink and three bowling alleys is seeking repayment for the time they were closed under Whitmer's unconstitutional executive orders. Other suits have raised similar claims but not with the same focus.
But the claims, made under the takings clause of the Constitution, are a tough ask, experts say. Not even the medical centers that brought the successful case against the state are asking for restitution for the business they lost. And there's a reason for that.
"It's a very difficult case," the Mackinac Center's Wright said. "Everybody had some portion of their liberty taken, or something taken from them by the emergency orders. ...The scale is probably going to be too large for any court to allow these cases to move forward."
Jacobson expressed similar concerns, noting that, in cases arguing a "regulatory taking," courts have "tended to defer to the government's need to regulate."
David Kallman, who is representing the recreational venues, acknowledged a ruling in his clients' favor would open a Pandora's box of claims. But he is determined to show that the government can't take property without just compensation.
The combined losses for his clients is well over seven figures, he estimated.
"It's going to be huge," Kallman said. "There's no question — it would cost the state a ton of money. But, you know, they might think twice next time before shutting down our economy."
Kallman has represented at least three other of the 51 plaintiffs challenging Michigan's executive orders — from churches to a farm to a chiropractor.
"We advised and helped probably a hundred businesses that called us," Kallman said. "We helped them maybe negotiate things with the state and that kept them out of court."
But his most well-known client was Owosso barber Karl Manke, who successfully bucked Whitmer's closure orders and survived several rounds of administrative and court orders seeking his shutdown.
It's cases like Manke's that comprise the hundreds of smaller administrative cases in which state agencies pursued penalties against individuals and businesses.
The Michigan Department of Agriculture and Rural Development cited 30 businesses for COVID-19 rule violations. The Michigan Liquor Control Commission issued 41 emergency suspensions of liquor licenses for COVID violations.
The Michigan Occupational Safety and Health Administration has cited about 504 employers for COVID-related violations, about 0.2% of the 235,000 Michigan employers the agency oversees. Fifty of the citations are being appealed and 200 remain open until the violation is abated or a penalty is assessed.
In large part, judges have gone along with the health department and state in enforcing COVID restrictions. But Kallman argued judges may have lost patience as the pandemic dragged on.
"The bottom line is we don't lose our constitutional rights because of a pandemic," Kallman said. "How do you balance that? That's the problem we're facing now."
