Expert: Lawsuit over Whitmer’s coronavirus orders likely to fail

Coronavirus

GRAND RAPIDS, Mich. (WOOD) — Gov. Gretchen Whitmer is being sued as plaintiffs allege she violated their constitutional rights with her executive orders during the coronavirus pandemic.

At least one expert says the lawsuit isn’t likely to go very far given the circumstances surrounding the governor’s moves.

The lawsuit (PDF) filed in federal court Tuesday accuses Whitmer of violating the constitutional “takings clause,” which prohibits a government from taking people’s property without compensation. The plaintiffs in the suit, four people from the Detroit area and a lawn care business, claim that the governor took from them when forcing their businesses to shutter. 

They also accuse the governor of “interference with property interest” by prohibiting travel to secondary homes and “interference with right to associate” when banning nonessential travel to private residences of friends and relatives.

“Arbitrary, capricious and overly broad,” David Helm, the Detroit-area attorney for the plaintiffs, summarized the concerns about Whitmer’s executive orders. “This last executive order is so over-broad and so overreaching, it runs afoul of the Constitution.”

Attorney David Helm speaks with News 8 via video call on April 14, 2020.

Helm said he is taking on the case at no charge.

“Everyone needs to chip in with regard to curtailing (coronavirus) or COVID-19 and when it comes to your constitutional rights, I think everyone needs to chip in as well,” Helm said. “If she’s allowed to get away with this, that will establish a precedence and we want to make sure that that’s not happening.”

The governor’s office declined to discuss the suit when reached by News 8 Tuesday.

“We don’t comment on pending litigation,” a spokesperson said in an emailed statement.

Michael McDaniel is a Western Michigan University Cooley Law School professor who worked in the state attorney general’s office from 1983 to 2002. He has defended governors against litigation before. He analyzed the suit at News 8’s request and said he believed it is unlikely to be successful. 

He said under “normal circumstance,” the litigants might have a case against the governor’s office.

“But the problem he has here… is these are not normal times,” McDaniel said. “(The plaintiffs) have a very steep uphill battle.”

Western Michigan University Cooley Law School Professor Michael McDaniel speaks with News 8 via video call on April 14, 2020.

McDaniel said case law provides tremendous latitude and protections for governors and other state officials when they are protecting the public from the spread of a disease.

“The courts have said it does not apply — the idea of takings does not apply when the public power is being used to protect the public generally,” McDaniel said.

He said the governor has general immunity from state and federal suits under most circumstances while acting in her official capacity, but litigants can bring claims against a governor in the event that he or she acts unconstitutionally on purpose. The burden of proof for the plaintiffs is high, McDaniel said.

“It has to not only be intentional, it has to shock the conscience of the court,” McDaniel said.

While McDaniel said he doesn’t believe the governor has violated the Constitution to date, he does believe she is reaching the outer edge of the authority she has to control the virus.

Helm said he is prepared to fight his case with confidence.

“This is a sledge hammer she’s taken to kill an ant and it’s over broad and overreaching,” Helm said. “I think it is definitely an emergency. People need to be out and doing what they need to be doing. You can’t put the world on hold.

“It is kind of David and Goliath,” he continued. “But it wouldn’t be the first time we’ve gone up against the Attorney General’s Office and so we hope to be successful again.”


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