Judge Says Michigan’s Stay-at-Home Order Does Not Violate Constitutional Rights and Does Only ‘Temporary Harm’

April 30, 2020 Updated: April 30, 2020

A Michigan court on Wednesday refused to block Gov. Gretchen Whitmer’s stay-at-home order, ruling that the constitutional rights of the plaintiffs were not infringed but only subjected to “temporary harm” by measures meant to protect the public amid the pandemic.

Five businesses filed a lawsuit (pdf) against Whitmer and Michigan Department of Health and Human Services Director Robert Gordon, accusing them of violating constitutional rights by lockdown measures imposed to curb the spread of COVID-19, the disease caused by the CCP (Chinese Communist Party) virus.

The Michigan Court of Claims rejected the allegations, ruling that an injunction against Whitmer’s order “would not serve the public interest, despite the temporary harm to plaintiffs’ constitutional rights.”

Court of Claims judge Christopher M. Murray, who was appointed by former Gov. John Engler, stated in an 18-page opinion that constitutional rights are fundamental but not absolute, and under extraordinary circumstances, they may be restricted.

“But those liberty interests are, and always have been, subject to society’s interests—society being our fellow residents. They—our fellow residents—have an interest to remain unharmed by a highly communicable and deadly virus, and since the state entered the Union in 1837, it has had the broad power to act for the public health of the entire state when faced with a public crisis,” the judge wrote.

“Although the Court is painfully aware of the difficulties of living under the restrictions of these executive orders, those difficulties are temporary, while to those who contract the virus and cannot recover (and to their family members and friends), it is all too permanent,” he wrote.

“I am pleased with the court’s decision,” Attorney General Dana Nessel said in a statement. “This pandemic has already taken more than 3,600 lives in Michigan and many more around the world. The primary goal of the Stay Home, Stay Safe order has always been to protect human life.”

The lawsuit alleged that Whitmer’s “Stay Home, Stay Safe” order, recently extended through May 15 though in an amended form that loosened some restrictions, was based on unproven assumptions about how deadly the CCP virus really is.

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Protesters attend a rally outside the State Capitol in Lansing, Michigan, on April 15, 2020. (Paul Sancya/AP Photo)

Also, they argued that by suspending the Freedom of Information Act through June 4, Whitmer stymied efforts at assessing whether the models that predict COVID-19 case and death counts in the state of Michigan are sound.

The plaintiffs also alleged that the Emergency Management Act was an unconstitutional delegation of legislative power to the governor. This the judge rejected, claiming the act does not confer “uncontrolled, arbitrary power” to the governor but that it provides highly specific criteria for declaring a disaster or emergency.

The plaintiffs—which included a residential brokerage, an executive property maintenance company, and an exporter of architectural and automotive glass—were seeking “a declaratory and injunctive relief,” meaning a judicial statement and corresponding action blocking the stay-at-home order.

“Such a declaration, and a corresponding injunction, will yield a more rational, pragmatic response to the virus that saves lives, saves livelihoods, and preserves constitutional norms all at the same time,” the complaint stated.

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People in their vehicles protest against excessive quarantine orders from Michigan Gov. Gretchen Whitmer around the Michigan State Capitol in Lansing, Mich., on April 15, 2020. (Jeff Kowalsky/AFP via Getty Images)

Whitmer’s initial stay-at-home order was due to lapse on Thursday. Announcing its extension on April 24, Whitmer lifted some personal and economic constraints, citing data showing the epidemic curve had flattened.

The looser restrictions pertain to some outdoor activities like boating and golfing, and letting some people go back to work.

Further, Whitmer’s Director of Communications Zack Pohl said Wednesday that the governor would be signing an executive order Friday that would reopen construction work on May 7.

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Michigan Gov. Gretchen Whitmer addresses the state during a speech in Lansing, Michigan, on April 13, 2020. (Michigan Office of the Governor via AP, Pool)

Whitmer said Monday she would lift restrictions on construction and if the case and death counts continue to fall, other categories of business activity would resume.

Announcing the extension of the amended stay at home order last week, Whitmer said: “I want to be crystal clear: the overarching message today is still the same. We must all do our part by staying home and staying safe as much as possible.”

Despite actions like the lawsuit and protests against lockdowns, polls show that most Americans support shelter-in-place measures to stem the spread of the virus.

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