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Case Name Midwest Institute of Health, PLLC v. Whitmer PR-MI-0004
Docket / Court 1:20-cv-00414 ( W.D. Mich. )
Additional Docket(s) 161492  [ -161492 ]  Supreme Court (MI)
State/Territory Michigan
Case Type(s) Presidential/Gubernatorial Authority
Special Collection COVID-19 (novel coronavirus)
Case Summary
COVID-19 Summary: This lawsuit was filed by four medical providers and an individual seeking medical services to challenge the state’s executive orders related to the COVID-19 pandemic. The plaintiffs sought declaratory and injunctive relief. On May 28, the court filed a notice of hearing ... read more >
COVID-19 Summary: This lawsuit was filed by four medical providers and an individual seeking medical services to challenge the state’s executive orders related to the COVID-19 pandemic. The plaintiffs sought declaratory and injunctive relief. On May 28, the court filed a notice of hearing regarding certification of issues to the Michigan Supreme Court. On June 16 the court stayed the case until the Michigan Supreme Court resolved the state law questions. On June 25, the defendants appealed the decision to the Sixth Circuit. The Michigan Supreme Court held that the Governor's executive orders exceeded her authority on October 2, 2020. The case is ongoing.


On May 12, 2020, four medical providers and an individual seeking medical services filed a suit against Michigan’s Attorney General, Governor, and Director of the Michigan Department of Health and Human Services to challenge the state’s executive orders related to the COVID-19 pandemic. The plaintiffs sued under 42 U.S.C § 1983 for declaratory and injunctive relief. Specifically, the plaintiffs sought a declaration that executive orders 2020-17 and 2020-77 violated the Michigan Constitution, the Fourteenth Amendment and Commerce Clause of the U.S. Constitution, or, alternatively, that the plaintiffs were permitted to continue their business operations. They also sought injunctive relief preventing the defendants from enforcing the orders against the plaintiffs. The plaintiffs also sought attorneys' fees and monetary damages, and they were represented by the Mackinac Center Legal Foundation and private attorneys. The case was filed in the U.S. District Court for the Western District of Michigan, and assigned to District Judge Paul L. Maloney.

On March 11, The Governor of Michigan proclaimed a state of emergency under both the Emergency Management Act and the Emergency Powers of the Governor Act of 1945 (the Emergency Powers Act). Under the initial announcement, the Governor issued various stay at home orders and restrictions, including order 2020-17, which prohibited any bariatric or joint replacement surgeries except for emergencies starting March 21. On May 7, the Governor issued order 2020-77, which continued the restrictions of the previous stay at home orders with limited exceptions to “critical infrastructure workers,” defined as those “necessary to sustain or protect life.”

The plaintiffs argued that the Governor did not have the authority to issue executive orders 2020-17 and 2020-77 under the Emergency Powers Act and the Emergency Management Act beyond the 28 days after the announcement of the state of emergency without the approval of the Michigan Legislature. The plaintiffs also claimed that the Emergency Powers Act violated the Separation of Powers and the nondelegation clauses of the Michigan Constitution. The plaintiffs also alleged that the executive orders violated due process and were void for vagueness. The plaintiffs argued that executive order 2020-17 did not give the plaintiffs a reasonable opportunity to know what is prohibited, as the assessment of which medical treatments are deemed essential are largely left to the discretion of healthcare providers. Additionally, they alleged that order 2020-77 did not provide any explicit standards for determining whether particular operations were “critical infrastructure” activity. Lastly, the plaintiffs alleged that the executive orders violated the Fourteenth Amendment and Commerce Clause under the U.S. Constitution.

The plaintiffs also filed a motion for a preliminary injunction to enjoin the defendants from enforcing order 2020-17 and 2020-77 on May 18, which was dismissed on May 27.

On May 28, the court filed a notice of hearing regarding certification of issues to the Michigan Supreme Court. The district court noted that parts of the plaintiff’s complaint presented questions that required interpretation by the Michigan Supreme Court since they had never been considered by the Michigan Court of Appeals or the Michigan Supreme Court before. The following questions were at issue: (1) whether the Governor of Michigan had the authority to renew executive orders related to the pandemic under the Emergency Powers Act and Emergency Management Act; and, (2) whether the Emergency Powers Act violated the separation of powers or nondelegation clauses under the Michigan Constitution?

Michigan’s Attorney General filed a motion to dismiss on June 2, and the Governor of Michigan and Director of the Michigan Department of Health and Human Services also filed a motion to dismiss on June 5. The defendants argued that the plaintiffs lacked standing and that the public health benefits of the executive orders outweighed the burden to the plaintiffs. The defendants also argued that the plaintiffs failed to state a dormant Commerce Clause claim.

In response to the district court’s notice of hearing regarding certification of issues, the plaintiffs submitted a brief requesting the two questions to be taken to the Michigan Supreme Court. The defendants also filed a brief requesting the court to either dismiss the questions as moot, decline jurisdiction of the issues as state law claims, or hold the questions in abeyance pending resolution. A hearing was held on the issue on June 10.

On June 11, the defendants filed a motion opposing certification. The defendants asked the court to dismiss the questions as state law claims, arguing that the district court lacked jurisdiction under the Eleventh Amendment. The request was denied on June 16; instead, the district court certified the two questions. 2020 WL 3248785. The same day, the court stayed the case until the Michigan Supreme Court resolved the state law questions. On June 25, the defendants appealed the decision to the Sixth Circuit (No. 20-1650).

On June 30, the Michigan Supreme Court scheduled an oral argument on the two questions for September 2. 2020 WL 3571909.

The Michigan Supreme Court held on October 2, 2020 that (1) the Governor lacked authority under the Emergency Management Act to issue or renew any executive orders related to COVID-19 after her first order expired on April 30, 2020; and (2) the Emergency Powers Act violated the Michigan Constitution's nondelegation clause.

The Court's decision as to the Emergency Management Act was unanimous. Justice Stephen J. Markman explained that the Act's requirement that "[a]fter 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension . . . is approved by resolution of both houses of the legislature" implied that the Governor could not bypass the legislature by issuing an executive order terminating a state of emergency and then immediately declaring a new state of emergency for "identical reasons."

The Court produced several opinions about the Emergency Powers Act. Justice Markman, joined by Justices Brian K. Zahra and Elizabeth T. Clement, wrote that the Act authorized emergency action by the Governor because the phrase "public emergency" included the COVID-19 pandemic. But he held that the Act violated the Michigan Constitution's nondelegation clause because it allowed the Governor to exercise "a substantial part of the entire police power of the state" for an "indefinite duration" subject only to the constraints that the governor's actions be "reasonable" and "necessary," which failed to supply "genuine guidance to the Governor as to how to exercise the authority delegated [or] constrain[] . . . in any meaningful manner."

Justice David F. Viviano concurred. He noted that the Emergency Powers Act only allowed the Governor to declare emergencies "when public safety is imperiled" and argued that public health emergencies like the COVID-19 pandemic did not imperil public safety.

Chief Justice Bridget M. McCormack argued that the Emergency Powers Act was constitutional. She noted that the Act allowed only "reasonable" and "necessary" actions to protect public safety during emergencies, so it supplied an intelligible principle for the Governor as federal nondelegation precedent required. Justices Richard Bernstein and Megan K. Cavanagh agreed; Justice Bernstein also wrote a concurrence expressing similar themes. 2020 WL 5877599.

The appeal before the Sixth Circuit is pending as of October 5, 2020, on December 18, 2020, Judge Maloney stayed the case pending the Sixth Circuit's resolution of the appellate motions.

Averyn Lee - 07/12/2020
Timothy Leake - 10/05/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Commerce Power
Due Process
Due Process: Procedural Due Process
Due Process: Substantive Due Process
Defendant-type
Jurisdiction-wide
Plaintiff Type
Private Plaintiff
Causes of Action 42 U.S.C. § 1983
Declaratory Judgment Act, 28 U.S.C. § 2201
State law
Defendant(s) Governor of the State of Michigan
Attorney General of the State of Michigan
Director of the Michigan Department of Health and Human Services
Plaintiff Description Four medical providers and an individual seeking medical services who could not provide or obtain medical services due to executive orders Michigan's Governor issued in response to the COVID-19 pandemic.
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 05/12/2020
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
Court Docket(s)
W.D. Mich.
12/18/2020
1:20-cv-00414-PLM-PJG
PR-MI-0004-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
W.D. Mich.
05/12/2020
Verified Complaint [ECF# 1 (incl. 1-1 to 1-19)]
PR-MI-0004-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
05/18/2020
Motion for Preliminary Injunction [ECF# 9, 10 (incl. 10-1 to 10-18)]
PR-MI-0004-0002.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
05/22/2020
Defendant Attorney General Dana Nessel's Response to Plaintiffs' Motion for Preliminary Injunction [ECF# 15, 15-1, 15-2, 15-3]
PR-MI-0004-0003.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
05/22/2020
Defendants Whitmer and Gordon's Response to Plaintiffs' Motion for Preliminary Injunction [ECF# 20 (incl. 20-1 to 20-15)]
PR-MI-0004-0004.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
05/26/2020
Plaintiffs' Reply Regarding Motion for Preliminary Injunction & Request for Scheduling Conference in Lieu of Preliminary Injunction Hearing [ECF# 21, 21-1, 21-2, 21-3]
PR-MI-0004-0005.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/02/2020
Attorney General Dana Nessel's Motion to Dismiss [ECF# 26, 27, 27-1]
PR-MI-0004-0006.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/05/2020
Plaintiffs' Brief Regarding Certification of State-Law Issues to the Michigan Supreme Court [ECF# 32, (incl. 32-1 to 32-4)]
PR-MI-0004-0007.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/05/2020
Defendants Whitmer and Gordon's Brief Regarding Certification [ECF# 33 (incl. 33-1 to 33-5)]
PR-MI-0004-0008.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/05/2020
Attorney General Dana Nessel's Supplemental Briefing on Certification [ECF# 34, 34-1]
PR-MI-0004-0009.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/05/2020
Defendants Whitmer and Gordon's Motion to Dismiss [ECF# 35 (incl. 35-1 to 35-17)]
PR-MI-0004-0011.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/11/2020
Defendants Whitmer, Nessel and Gordon's Joint Motion for Reconsideration Regarding Certification [ECF# 38, 38-1]
PR-MI-0004-0010.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/12/2020
Plaintiffs' Response Brief Opposing Defendants' Joint Motion for Reconsideration [ECF# 40]
PR-MI-0004-0012.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
W.D. Mich.
06/16/2020
Order Denying Defendants' Motion for Reconsideration [ECF# 42, 43] (2020 WL 3248785)
PR-MI-0004-0013.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
State Supreme Court
07/21/2020
Plaintiff's Opening Brief
PR-MI-0004-0014.pdf | Detail
Source: State Court Website
State Supreme Court
08/06/2020
Brief of Michigan Attorney General Dana Nessel
PR-MI-0004-0015.pdf | Detail
Source: State Court Website
State Supreme Court
08/07/2020
Brief of House Democratic Leader Christine Greig and the House Democratic Caucus as Amici Curiae in Support of Defendants
PR-MI-0004-0018.pdf | Detail
Source: State Court Website
State Supreme Court
08/20/2020
Amicus Brief of the Michigan House of Representatives and the Michigan Senate
PR-MI-0004-0017.pdf | Detail
Source: State Court Website
State Supreme Court
10/02/2020
Opinion (958 N.W.2d 1)
PR-MI-0004-0016.pdf | WESTLAW| LEXIS | Detail
Source: State Court Website
show all people docs
Judges Bernstein, Richard H. Court not on record show/hide docs
PR-MI-0004-0016
Cavanagh, Megan K Court not on record show/hide docs
PR-MI-0004-0016
Clement, Elizabeth T Court not on record show/hide docs
PR-MI-0004-0016
Green, Phillip J. Court not on record [Magistrate] show/hide docs
PR-MI-0004-9000
Maloney, Paul Lewis (W.D. Mich.) show/hide docs
PR-MI-0004-0013 | PR-MI-0004-9000
Markman, Stephen J. Court not on record show/hide docs
PR-MI-0004-0016
McCormack, Bridget Court not on record show/hide docs
PR-MI-0004-0016
Viviano, David F Court not on record show/hide docs
PR-MI-0004-0016
Zahra, Brian K. (State Supreme Court) show/hide docs
PR-MI-0004-0016
Plaintiff's Lawyers Murphy, Amy Elizabeth (Michigan) show/hide docs
PR-MI-0004-0001 | PR-MI-0004-0002 | PR-MI-0004-0005 | PR-MI-0004-0007 | PR-MI-0004-0012 | PR-MI-0004-0014 | PR-MI-0004-9000
Peterson, James Richard (Michigan) show/hide docs
PR-MI-0004-0001 | PR-MI-0004-0002 | PR-MI-0004-0005 | PR-MI-0004-0007 | PR-MI-0004-0012 | PR-MI-0004-0014 | PR-MI-0004-9000
van Stempvoort, Stephen James (Michigan) show/hide docs
PR-MI-0004-0001 | PR-MI-0004-0002 | PR-MI-0004-0005 | PR-MI-0004-0007 | PR-MI-0004-0012 | PR-MI-0004-0014 | PR-MI-0004-9000
Wright, Patrick J. (Michigan) show/hide docs
PR-MI-0004-0001 | PR-MI-0004-0002 | PR-MI-0004-0005 | PR-MI-0004-0007 | PR-MI-0004-0012 | PR-MI-0004-0014
Defendant's Lawyers Allen, Christopher M. (Michigan) show/hide docs
PR-MI-0004-0004 | PR-MI-0004-0010 | PR-MI-0004-0011 | PR-MI-0004-9000
Berels, Rebecca Ashley (Michigan) show/hide docs
PR-MI-0004-0003 | PR-MI-0004-0006 | PR-MI-0004-0009 | PR-MI-0004-0015 | PR-MI-0004-9000
Booth, Joshua O. (Michigan) show/hide docs
PR-MI-0004-0004 | PR-MI-0004-0010 | PR-MI-0004-0011 | PR-MI-0004-9000
Fedynsky, John G. (Michigan) show/hide docs
PR-MI-0004-0004 | PR-MI-0004-0010 | PR-MI-0004-0011 | PR-MI-0004-9000
Fowler, Darrin F. (Michigan) show/hide docs
PR-MI-0004-9000
Froehlich, Joseph T. (Michigan) show/hide docs
PR-MI-0004-0004 | PR-MI-0004-0008 | PR-MI-0004-0010 | PR-MI-0004-0011 | PR-MI-0004-9000
Hammoud, Fadwa Alawieh (Michigan) show/hide docs
PR-MI-0004-0015
Sherman, Ann (Michigan) show/hide docs
PR-MI-0004-0003 | PR-MI-0004-0006 | PR-MI-0004-0009 | PR-MI-0004-0010 | PR-MI-0004-0015 | PR-MI-0004-9000
Other Lawyers Bagenstos, Samuel R. (Michigan) show/hide docs
PR-MI-0004-0018
Beydoun, Hassan (Michigan) show/hide docs
PR-MI-0004-0017
Dame, Frankie A (Michigan) show/hide docs
PR-MI-0004-0017
Douglas, Stephanie A (Michigan) show/hide docs
PR-MI-0004-0017
McKeever, Susan M (Michigan) show/hide docs
PR-MI-0004-0017
Seyferth, Patrick G (Michigan) show/hide docs
PR-MI-0004-0017
Stone, William R (Michigan) show/hide docs
PR-MI-0004-0017
Triplett, Nathan (Michigan) show/hide docs
PR-MI-0004-0018
Williams, Michael R. (Michigan) show/hide docs
PR-MI-0004-0017

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