The attorney who filed the lawsuit says that, while Whitmer’s intent is good, the order is unconstitutional.
Four Michigan residents have filed a federal lawsuit against Gov. Gretchen Whitmer, alleging her stay-at-home directive is bankrupting their businesses and violating their constitutional rights.
According to The Detroit News, the lawsuit—filed Tuesday in U.S. Eastern District Court—doesn’t question the “legitimate public purpose” of Whitmer’s order. However, it does assert that several of its provisions conflict with constitutional provisions extant at the state and federal levels.
Broadly, the complaint calls Whitmer’s order “arbitrary, capricious, irrational and abusive.” The plaintiffs—thee of whom are from Oakland County, among the regions hardest hit by Michigan’s coronavirus outbreak—say the stay-at-home directive violates their First Amendment rights to freedom of association. It also invokes the takings clause of the Fifth Amendment, suggesting business-owning Michiganders who’ve financially suffered as a consequence of the order are entitled to immediate compensation.
“Never in the history of the modern United States—even in war time—has such an invasive action stripping citizens of fundamental rights been taken by a government order,” the lawsuit states.
The suit, says the Detroit News, seeks a temporary restraining order and permanent injunction against the executive order. It also demands a bevy of fines and fees, from attorney costs to compensatory and punitive damages.
“Under threat of fines and criminal penalties[,] the individual plaintiffs are prohibited from traveling freely within the state of Michigan, visiting family and friends, attending to or utilizing their privately owned property, and visiting their significant others,” the suit says.
One of the plaintiffs—Roscommon County resident Jerry Frost—complained that he was unable to visit his girlfriend of 14 years because they don’t share a residence. And Steve Martinko, owner of Contender’s Tree and Lawn Specialists Inc. in Oakland County, said he was forced to shut down after spending “hundreds of thousands of dollars” on supplies.
David Helm, the attorney who filed the lawsuit, suggested that the executive order is overly expansive.
“It’s like taking a sledgehammer to an ant,” Helm said of the pandemic, which has killed 30,000 Americans in the past three weeks. “We believe it is over-broad and over-reaching. There is no way to do it appropriately without infringing on constitutional rights like the governor has.”
“We are not arguing for political dissidence or any sort of protest,” he added. “What we are saying is that people have the right to associate with their friends and family. And that is just being unjustly infringed.”
Somewhat surprisingly, Helm said he and his clients are in favor of most of the restrictions detailed within the governor’s order. The lawsuit, at least as Helm frames it, is a simple challenge to the constitutional contradictions within Whitmer’s directive.
“We have a hard time reconciling how you can go to the store, but you can’t go out on your fishing boat,” Helm said. “Or you can go to [an] employer who is essential but a one-man tree trimming operation is not.”
While Helm’s questions don’t seem to have particularly hard answers, he did tell Fox2Detroit that he believes Whitmer’s intent is correct.
“I do believe the governor is doing it in the best interest of the people,” he said, “but it doesn’t necessarily mean it is right or constitutional, either.”
Whitmer’s officer has declined to comment on litigation pending against it, noting that shelter-in-place is the only way to contain a disease which spreads through respiratory contact.