Case 1:20-cv-00414-PLM-PJG ECF No. 44 filed 06/16/20 PageID.

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIDWEST INSTITUTE OF HEALTH, PLLC, )

d/b/a GRAND HEALTH PARTNERS, et al., )
Plaintiffs, )
) No. 1:20-cv-414
-v- )
) Honorable Paul L. Maloney
GRETCHEN WHITMER, et al., )
Defendants. )
)

ORDER

Pursuant to Local Rule 83.1 and Michigan Court Rule 7.308, the Court finds that

Counts I and II in the above-captioned case present unsettled issues of state law that are

likely to affect the outcome of the case, such that certification of the questions to the Michigan

Supreme Court is appropriate. The Court also finds that certification of the questions to the

Michigan Supreme Court will not cause undue delay or prejudice to the parties. Accordingly,

the Court certifies the following questions to the Michigan Supreme Court:

1. Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq.,
or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has
the authority after April 30, 2020 to issue or renew any executive orders related to the
COVID-19 pandemic.

2. Whether the Emergency Powers of the Governor Act and/or the Emergency
Management Act violates the Separation of Powers and/or the Non-Delegation
Clauses of the Michigan Constitution.

To aid the Michigan Supreme Court in resolving the legal questions, this Court

presents the following statement of facts:

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1. Plaintiff Midwest Institute of Health, PLLC, d/b/a Grand Health Partners

(“Grand Health”), is a Michigan limited liability company with its principal place of business

located at 2060 East Paris Ave., SE, Suite 100, Grand Rapids, MI 49546. Grand Health is a

medical provider that operates out of offices in Grand Rapids, Petoskey, and Grand Haven,

Michigan. Grand Health’s physicians provide both bariatric surgery services and general

surgery services, including laparoscopic cholecystectomy (gallbladder removal),

appendectomy, and various types of hernia surgery and repair. Grand Health also provides

endoscopic and colonoscopy services. All endoscopy services and pre- and post-operative

care and medical programs take place at Grand Health’s offices, but all surgeries occur at

area hospitals, at which Grand Health’s physicians have admitting privileges.

2. Plaintiff Wellston Medical Center, PLLC (“Wellston Medical Center”) is a

primary care center located at 14477 Caberfae Hwy Wellston, Michigan 49689.

3. Plaintiff Primary Health Services, PC (“Primary Health Services”) is a primary

care center located at 505 W Ludington Ave, Ludington, MI 49431.

4. Wellston Medical Center and Primary Health Services are primary care clinics

in West Michigan. They serve patients in primarily rural communities surrounding Wellston

and Ludington. Over 90% of their patients are on Medicaid or Medicare.

5. Plaintiff Jeffery Gulick is a resident of Owosso, Michigan, who was scheduled

to undergo knee replacement surgery on March 20, 2020.

6. Defendant Gretchen Whitmer is the Governor of Michigan and is being sued

in her official capacity.

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7. Defendant Dana Nessel is the Attorney General of Michigan and has authority

to enforce Michigan law. She is being sued in her official capacity.

8. Defendant Robert Gordon is the Director of the Michigan Department of

Health and Human Services. He is being sued in his official capacity.

9. On March 11, 2020, Governor Whitmer issued Executive Order 2020-04,

which proclaimed a state of emergency under both the Emergency Management Act, Mich.

Comp. Laws § 30.403, and the Emergency Powers of the Governor Act of 1945, Mich.

Comp. Laws § 10.31.

10. Governor Whitmer’s executive order identified the COVID-19 pandemic as

the basis for her declaration of a state of emergency under both statutory regimes.

11. On March 21, 2020, Governor Whitmer issued Executive Order 2020-17,

entitled “Temporary restrictions on non-essential medical and dental procedures,” which

remained in effect until it was rescinded effective May 28, 2020. In relevant part, Executive

Order 2020-17 provided that, until the termination of the Governor’s declaration of a state

of emergency, most medical providers were prohibited from providing any “medical or

dental procedure that is not necessary to address a medical emergency or to preserve the

health and safety of a patient, as determined by a licensed medical provider.” Executive

Order 2020-17 prohibited medical providers from providing any bariatric surgery and joint

replacement surgery services, “except for emergency or trauma-related surgery where

postponement would significantly impact the health, safety, and welfare of the patient.”

Executive Order 2020-17 provided that any willful violation of its provisions was a

misdemeanor.

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12. On March 23, 2020, Governor Whitmer issued Executive Order 2020-21,

commonly known as the ‘Stay Home, Stay Safe” order. In the ensuing weeks, Governor

Whitmer reissued this order periodically, extending its duration and modifying its scope.

13. On April 1, 2020, Governor Whitmer issued Executive Order 2020-33, which

replaced Executive Order 2020-04, declared a state of emergency pursuant to the Emergency

Powers of the Governor Act, and proclaimed a state of disaster and a state of emergency

under the Emergency Management Act. These declarations were based on the dangers

posed by the virus that causes COVID-19.

14. On April 1, 2020, Governor Whitmer also requested that the Michigan

Legislature extend the state of emergency by an additional 70 days, as contemplated by the

Emergency Management Act.

15. On April 7, 2020, the Michigan Senate and Michigan House of

Representatives denied Governor Whitmer’s request to extend the state of emergency for

an additional 70 days. Instead, the Michigan Legislature extended the state of emergency

declared by Governor Whitmer until April 30, 2020.

16. Meanwhile, Robert Gordon, the Director of the Michigan Department of

Health and Human Services (“HHS”), issued an emergency order on April 2, 2020.

17. On April 30, 2020, the Michigan Legislature did not extend Governor

Whitmer’s declarations of a state of emergency and a state of disaster.

18. After the Michigan Legislature did not extend her emergency declarations,

Governor Whitmer issued on April 30, 2020 three additional Executive Orders: 2020-66,

2020-67, and 2020-68.

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19. Executive Order 2020-66 terminated the Governor’s declarations of a state of

emergency and a state of disaster based upon the COVID-19 pandemic, as required under

the Emergency Management Act.

20. Executive Order 2020-68 declared states of disaster and emergency under the

Emergency Management Act. Executive Order 2020-68 stated that these renewed states of

disaster and emergency remained effective through May 28, 2020.

21. Executive Order 2020-67 stated that a “state of emergency remains declared

across Michigan” under the Emergency Powers of the Governor Act and that the state of

emergency remained in effect until May 28, 2020.

22. On May 7, 2020, Governor Whitmer issued Executive Order 2020-77, an

iteration of her previously issued “Stay Home” order. On May 18, 2020, the Governor

rescinded Executive Order 2020-77 and replaced it with Executive Order 2020-92.

23. Also on May 18, 2020, Director Gordon issued an updated emergency order,

which rescinded and replaced the April 2 HHS order.

24. On May 21, 2020, the Michigan Court of Claims, in Michigan House of

Representatives and Michigan Senate v. Whitmer, ruled that Executive Order 2020-67 was

a valid exercise of authority under the Emergency Powers of the Governor Act, but that

Executive Order 2020-68 was not a valid exercise of authority under the Emergency

Management Act. These rulings are currently being challenged on appeal in the Michigan

Court of Appeals.

25. On May 22, 2020, Governor Whitmer issued Executive Order 2020-99,

declaring an emergency under the Emergency Powers of the Governor Act and—subject to

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the ongoing litigation described above—states of emergency and disaster under the

Emergency Management Act, due to the COVID-19 pandemic. Executive Order 2020-99

provides that it shall remain in effect until June 19, 2020.

26. Governor Whitmer issued Executive Order 2020-114 on June 5, 2020.

Executive Order 2020-114 rescinded and replaced Executive Order 2020-97. Paragraph 9

of Executive Order 2020-114 requires outpatient healthcare facilities and other medical

providers to comply with additional industry-specific sanitation and safety protocols,

including specific waiting room procedures, limitations on the number of patient

appointments, and enhanced telehealth and telemedicine procedures.

27. Grand Health Partners, Wellston Medical Center, and Primary Health

Services operate outpatient healthcare facilities and medical offices and, as of June 12, 2020,

are required to comply with Executive Order 2020-110 and Executive Order 2020-114, to

the extent that those executive orders are enforceable.

28. Grand Health and its patients were impacted by Executive Order 2020-17’s

prohibition against the provision of bariatric and “non-essential” medical services between

March 21, 2020 and May 28, 2020. During that time, Grand Health was unable to provide

many of its patients with medical care due to Governor Whitmer’s prohibition against the

provision of nonessential medical treatment. Although Grand Health continued to provide

minimal levels of emergent care to its patients, Grand Health furloughed most of its

employees and pushed back almost all of its patients’ procedures and post-operative support

meetings.

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29. Wellston Medical Center and Primary Health Services were also impacted by

the Governor’s executive orders. Prior to March 2020, these clinics treated an average of 90-

100 patients per day, with 16 staff members. Under the Governor’s executive order

prohibiting non-essential medical treatment, the number of patients who were allowed to be

treated by the clinics dropped by 95%.

30. Plaintiff Jeffery Gulick was scheduled to undergo knee replacement surgery

on his right knee on March 20, 2020, at Memorial Hospital in Owosso. Due to the

Governor’s executive orders, his knee replacement surgery could not go forward.

Additionally, he could not receive follow up care for the knee replacement surgery that had

been performed on his left knee.

This case is hereby STAYED until the Michigan Supreme Court resolves the relevant

questions or declines to adjudicate the questions certified by this court.

IT IS SO ORDERED.

Date: June 16, 2020 /s/ Paul L. Maloney

Paul L. Maloney
United States District Judge