Petition for Writ of Certiorari — Kimberly Beemer, et al., Petitioners v. Gretchen Whitmer, Governor of Michigan, et al.

No. ______

In the Supreme Court of the United States

__________________

KIMBERLY BEEMER AND ROBERT JOSEPH MUISE,

Petitioners,

v.

MICHIGAN GOVERNOR GRETCHEN WHITMER AND

MICHIGAN ATTORNEY GENERAL DANA NESSEL,

Respondents.

__________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

ROBERT JOSEPH MUISE

Counsel of Record

AMERICAN FREEDOM LAW CENTER

P.O. Box 131098

Ann Arbor, Michigan 48113

(734) 635-3756

rmuise@americanfreedomlawcenter.org

DAVID YERUSHALMI

AMERICAN FREEDOM LAW CENTER

2020 Pennsylvania Avenue NW

Suite 189

Washington, D.C. 20006

(646) 262-0500

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

The COVID-19 pandemic was as much a

constitutional crisis as it was a public health crisis.

For years, American citizens, specifically including

Michigan residents, were subject to constantly

changing orders that imposed extreme burdens on

fundamental freedoms in a way that our nation has

never experienced in its history. The cost of these

burdens is incalculable. Unfortunately, many courts

did nothing, abdicating their duty to say what the law

is and allowing this frontal assault on liberty to

proceed largely unchecked.

1. Is this constitutional challenge to the Michigan

Governor’s emergency restrictions that directly

infringed fundamental rights moot when the

restrictions are capable of repetition yet so short in

duration that they evade review and the Governor

voluntary ceased the allegedly unlawful action while

this lawsuit was pending?

ii

PARTIES TO THE PROCEEDING

Petitioners are Kimberly Beemer and Robert Joseph

Muise (collectively referred to as “Petitioners”).

Respondents are Michigan Governor Gretchen

Whitmer and Michigan Attorney General Dana Nessel

(collectively referred to as “Respondents”).

STATEMENT OF RELATED PROCEEDINGS

There are no related proceedings.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ........................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR WRIT OF CERTIORARI ................. 1

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

CONSTITUTIONAL PROVISION INVOLVED ........ 1

STATEMENT OF THE CASE .................................... 2

I.

Procedural Background ...................................... 2

II.

Decisions Below................................................... 3

III. Statement of Facts .............................................. 5

LIFTING THE PANDEMIC VEIL............................ 14

REASONS FOR GRANTING THE PETITION........ 17

ARGUMENT .............................................................. 19

I.

Petitioners’ Claims Are Not Moot .................... 19

iv

A.

Petitioners’ Claims Are Not Moot as the

Challenged Restrictions Are Capable of

Repetition, yet Evading Review ............... 21

B.

Governor Whitmer’s Voluntary Cessation

of EO 2020-42 Does Not Moot Petitioners’

Claims ....................................................... 24

CONCLUSION .......................................................... 27

APPENDIX

Appendix A

Opinion in the United States Court of Appeals for the

Sixth Circuit

(September 22, 2022) .......................................... App. 1

Appendix B

Order Dismissing Motion and Dismissing Lawsuit in

the United States District Court for the Western

District of Michigan Southern Division

(February 24, 2022) .......................................... App. 11

Appendix C

Judgment in the United States District Court for the

Western District of Michigan Southern Division

(February 24, 2022) .......................................... App. 17

Appendix D

Stipulated Order Resolving Plaintiffs’ Motion for

Temporary Restraining Order and Preliminary

Injunction in the United States District Court for the

Western District of Michigan Southern Division

(April 27, 2020) ................................................. App. 19

v

TABLE OF AUTHORITIES

Cases

Adarand Constructors, Inc. v. Slater,

528 U.S. 216 (2000) .......................................... 25, 26

Brach v. Newsom,

38 F.4th 6 (9th Cir. 2022)....................................... 19

City of Mesquite v. Aladdin’s Castle, Inc.,

455 U.S. 283 (1982) ................................................ 25

Coolidge v. N.H.,

403 U.S. 443 (1971) ................................................ 17

Elrod v. Burns,

427 U.S. 347 (1976) ................................................ 18

Honig v. Doe,

484 U.S. 305 (1988) ................................................ 23

House of Representatives v. Governor,

943 N.W.2d 365 (Mich. 2020)................................. 22

In re Certified Questions from United States

District Court, 958 N.W.2d 1 (Mich. 2020) .......... 3, 4

Kingdomware Techs., Inc. v. United States,

136 S. Ct. 1969 (2016) ............................................ 22

Korematsu v. United States,

323 U.S. 214 (1944)) ............................................... 17

vi

Marbury v. Madison,

5 U.S. (1 Cranch) 137 (1803) .................................. 17

Meyer v. Neb.,

262 U.S. 390 (1923) ................................................ 19

Roman Catholic Diocese v. Cuomo,

141 S. Ct. 63 (2020) .............................. 19, 20, 23, 24

S. Bay United Pentecostal Church v. Newsom,

141 S. Ct. 716 (2021) .............................................. 24

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) .................................. 26

Tandon v. Newsom,

141 S. Ct. 1294 (2021) (per curiam) ....................... 24

Trump v. Haw.,

138 S. Ct. 2392 (2018) ............................................ 17

Tucker v. Gaddis,

40 F.4th 289 (5th Cir. 2022)............................. 19, 21

United States v. W. T. Grant Co.,

345 U.S. 629 (1953) ................................................ 25

Weinstein v. Bradford,

423 U.S. 147 (1975) ................................................ 21

Wis. Right to Life,

551 U.S. 449 (2007) ................................................ 23

vii

Constitution and Statutes

U.S. Const. amend. I ................................................... 1

U.S. Const. amend. II .................................................. 1

U.S. Const. amend. XIV, § 1........................................ 2

28 U.S.C. § 1254(1) ...................................................... 1

42 U.S.C. § 1983 .......................................................... 2

Mich. Comp. Laws § 30.401 et seq. ........................... 18

Mich. Comp. Laws § 30-403(3) .................................. 22

Rules

Sup. Ct. R. 10(c) ......................................................... 18

Bible

Matthew 18:20 ........................................................... 12

Other Authorities

https://www.cdc.gov/coronavirus/2019ncov/variants/about-variants.html ........................... 13

https://www.detroitnews.com/story/news/local/Mich

igan/2020/05/05/university-michigan-healthsystem-lays-off-1400-health-careworkers/3084104001/ ................................................. 15

1

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals appears at App.

1 and is available at No. 22-1232, 2022 U.S. App.

LEXIS 26758 (6th Cir. Sep. 22, 2022). The opinion of

the district court appears at App. 11 and is available at

No. 1:20-cv-323, 2022 U.S. Dist. LEXIS 32719 (W.D.

Mich. Feb. 24, 2022).

JURISDICTION

The opinion of the court of appeals was entered on

September 22, 2022. App. 1. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment provides, in relevant part,

“Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech

. . . .” U.S. Const. amend. I.

The Second Amendment provides, “A well regulated

Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not

be infringed.” U.S. Const. amend. II.

The Fourteenth Amendment provides, in relevant

part, “No State shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

2

person of life, liberty, or property, without due process

of law; nor deny to any person within its jurisdiction

the equal protection of the laws.” U.S. Const. amend.

XIV, § 1.

STATEMENT OF THE CASE

I.

Procedural Background.

On April 15, 2020, Petitioners filed this action

challenging Governor Whitmer’s Executive Order (EO)

2020-42. Petitioners alleged violations of Equal

Protection, Due Process, the Contract Clause, the

Second Amendment, and the Right of Association

under the United States Constitution, Article 1, § 6 of

the Michigan Constitution, and 42 U.S.C. § 1983. R.1,

Compl.

Petitioners sought a temporary restraining order,

and the court set a hearing for April 30, 2020. The U.S.

magistrate judge held a status conference on April 24,

2020, and that same day Governor Whitmer issued

Executive Order 2020-59, which rescinded EO 2020-42.

On April 26, 2020, the parties submitted a

stipulation resolving Petitioners’ request for a

temporary restraining order and for a preliminary

injunction, which the Court entered on April 27, 2020.

App. 12, 19-25.

On April 28, 2020, Petitioners filed a First Amended

Complaint. R.25. Petitioners continued to assert their

claims challenging EO 2020-42.

However, they

dropped the Contracts Clause claim and added a Free

3

Exercise claim. Petitioners argued that while the

stipulation remedied the immediate harm, it did not

resolve the underlying constitutional issues. App. 13.

On May 21, 2020, Respondents filed an amended

motion to dismiss. In their motion, Respondents

argued, inter alia, that Petitioners’ claims were moot.

R.35.

On February 24, 2022, the district court issued its

Order, concluding that Respondents’ motion and

Petitioners’ claims in the amended complaint were

moot. App. 11-16. That same day, the court entered

judgment, dismissing the case and terminating the

action. App. 17. Petitioners appealed, and the Sixth

Circuit affirmed. App. 1-10.

This petition follows.

II.

Decisions Below.

The district court dismissed this case on mootness

grounds. In its opinion, the district court relied heavily

on the opinion issued by the Michigan Supreme Court

in In re Certified Questions from United States District

Court, 958 N.W.2d 1 (Mich. 2020). App. 14-16. In that

case, the state’s highest court held, in relevant part,

(1) that the Emergency Management Act (EMA) did not

permit the Governor to extend a declaration of a state

of emergency or state of disaster beyond April 30, 2020

(twenty-eight days), and (2) that the Emergency

Powers of the Governor Act (EPGA) violated the

nondelegation doctrine of Michigan’s Constitution and

4

was therefore unconstitutional. 958 N.W.2d at 9-11,

16-25.

Notably, the Michigan Supreme Court did not rule

that the EMA was unconstitutional. That law, which

served as the primary authority and basis for Governor

Whitmer to issue EO 2020-42, remains in effect.

Additionally, the Michigan Supreme Court did not hold

that EO 2020-42 violated any provision of the Michigan

Constitution. The court did not address the matter.

Nonetheless, the district court concluded as follows:

The Court concludes [Petitioners’] claims and

their requested remedies are moot. Whitmer

rescinded EO 2020-42. The parties stipulated

that EO 2020-59 did not prohibit [Petitioners]

from doing what they alleged, in the initial

complaint, they were prohibited from doing by

EO 2020-42. And, the Michigan Supreme

Court’s ruling eliminated all reasonable

possibilities that Whitmer could extend the state

of emergency and reinstitute the restrictions

about which [Petitioners] complain. The Court

cannot enjoin [Respondents] from issuing and

enforcing restrictions that they no longer have

the authority [to] enact. And, following these

events, there no longer exists a “substantial

controversy, between parties having adverse

legal interests, of sufficient immediacy and

reality to warrant the issuance of a declaratory

judgment.”

App. 15-16.

5

The Sixth Circuit affirmed. In its opinion, the court

cited a number of cases challenging emergency

executive orders—cases which the court concluded were

moot in large part because the Michigan Governor

voluntarily rescinded the challenged restrictions, App.

7-10—and concluded as follows in this case:

These same considerations hold true here; the

stay-at-home order has long been rescinded, and

the [Petitioners] have not set forth any

likelihood of Whitmer reissuing it in a similar

form. Therefore, we see no reason to depart

from this line of cases, and the [Petitioners’]

claims are moot.

App. 10. In other words, it was a regular practice of

Governor Whitmer to rescind an emergency executive

order when faced with a legal challenge.

III.

Statement of Facts.

On March 23, 2020, Governor Whitmer issued EO

2020-21, which was described as a “[t]emporary

requirement to suspend activities that are not

necessary to sustain or protect life.” R.25, First Am.

Compl. ¶ 21.

On April 9, 2020, Governor Whitmer issued EO

2020-42, which “reaffirm[ed] the measures set forth in

Executive 2020-21, clarif[ied] them, and extend[ed]

their duration to April 30, 2020.” The executive order

took effect “on April 9, 2020 at 11:59 pm.” When EO

2020-42 took effect, it rescinded EO 2020-21. R.25,

First Am. Compl. ¶ 22.

6

By its own terms, EO 2020-42 was to remain in

effect until April 30, 2020 at 11:59 pm. Though EO

2020-42 was rescinded by Governor Whitmer, today she

retains the power under the EMA to declare a state of

emergency and to institute measures identical to those

found in EO 2020-42 for at least twenty-eight days.

And a “willful violation” of such orders is a

misdemeanor. App. 23-24.

EO 2020-42 put in place draconian measures that

arbitrarily and unreasonably imposed restrictions and

thus criminal sanctions on Petitioners’ fundamental

rights and liberty. The order stated, in relevant part,

the following:

2. Subject to the exceptions in section 7, all

individuals currently living within the State of

Michigan are ordered to stay at home or at their

place of residence. Subject to the same

exceptions, all public and private gatherings of

any number of people occurring among persons

not part of a single household are prohibited.

***

7. Exceptions.

a. Individuals may leave their home or place of

residence, and travel as necessary:

1. To engage in outdoor physical activity,

consistent with remaining at least six feet from

people from outside the individual’s household.

Outdoor physical activity includes walking,

hiking, running, cycling, kayaking, canoeing, or

other similar physical activity, as well as any

comparable activity for those with limited

mobility.

7

***

6. To obtain necessary services or supplies for

themselves, their family or household members,

their pets, and their vehicles.

***

7. To care for a family member or a family

member’s pet in another household.

***

b. Individuals may leave their home or place of

residence, and travel as necessary:

1. To return to a home or place of residence from

outside the state.

2. To leave this state for a home or residence

elsewhere.

3. Between two residences in this state, through

April 10, 2020. After that date, travel between

two residences is not permitted.

***

c. All other travel is prohibited, including all

travel to vacation rentals.

R.25, First Am. Compl. ¶¶ 25, 26 (emphasis added).

Petitioner Beemer and members of her household

frequently travel to her cottage, property which she

owns, located in Charlevoix County. She would often

leave from her residence in Saginaw, Michigan and

travel to the cottage on a Thursday, remaining at her

cottage over the weekend and returning late on Sunday

or early Monday morning. Her cottage is a second

home, and it is her private retreat from the daily grind

of her law practice. R.25, First Am. Compl. ¶ 27.

8

Under the measures set forth in EO 2020-42, if

Petitioner Beemer travelled to her cottage, she would

have committed a criminal offense, subjecting her to

prosecution for violating the executive order. As a

result, Petitioner Beemer ceased her travel and was

thus denied the use and enjoyment of her private

property by the government while this order was in

effect. Petitioner Beemer had no recourse for this

deprivation of her property rights other than seeking

redress in a court of law by bringing this action. R.25,

First Am. Compl. ¶ 28.

There is little to no chance that Petitioner Beemer

would have caused the spread of COVID-19 by

travelling with members of her household from her

residence in Saginaw, Michigan to her cottage in

Charlevoix County. In fact, she and members of her

household are more isolated at the cottage than when

they are at their home in Saginaw. R.25, First Am.

Compl. ¶ 29.

EO 2020-42 permitted individuals to travel from

Saginaw to Charlevoix County to purchase pet food,

gasoline, marijuana, Lotto tickets, and liquor, among

other reasons. Under EO 2020-42, a Wisconsin or Ohio

resident could have travelled from his State to his

cottage in Charlevoix County, Michigan without

violating the order. Thus, the order discriminated

against individuals, including Petitioner Beemer, based

upon their State of residence, it impaired their right to

travel, and it deprived them of the use and enjoyment

of their property.

Prohibiting individuals from

traveling from one place of residence in the State to

another place of residence or cottage within the State

9

had no real or substantial relation to promoting the

objectives of EO 2020-42, particularly in light of the

exceptions permitted by the order. R.25, First Am.

Compl. ¶¶ 30-32.

Following the issuance of EO 2020-21, and

reaffirmed in EO 2020-42 and EO 2020-59, Governor

Whitmer refused to close abortion centers in Michigan

even though abortion is an elective procedure and is

contrary to the stated goal of the executive orders “to

sustain or protect life.” Moreover, it is impossible to

practice social distancing in an abortion center due to

the nature of the procedure. Governor Whitmer also

permitted marijuana businesses to remain open during

this pandemic, and she allowed these businesses “to

sell or transfer marijuana” to a purchaser “who has an

expired driver license or government-issued

identification card during home delivery and curbside

sales.” R.25, First Am. Compl. ¶¶ 33, 34.

In contrast, there is little to no chance that a

landscaping business, for example, will spread COVID19.

Yet, EO 2020-42 closed these businesses.

Landscaping businesses could easily practice social

distancing and other safety measures recommended by

the CDC. There is far less likelihood of a landscaping

business spreading COVID-19 than other businesses

that Governor Whitmer permitted to remain open

under her executive orders, specifically including

hardware stores, convenience stores, grocery stores, gas

stations, marijuana businesses, and abortion centers.

R.25, First Am. Compl. ¶ 35.

10

During her free time, Petitioner Beemer enjoys

boating on Lake Charlevoix. However, EO 2020-42

prohibited this activity. Under this executive order,

Governor Whitmer permitted kayaking and canoeing,

but arbitrarily prohibited the use of boats with motors.

R.25, First Am. Compl. ¶ 36.

Petitioner Muise is professionally trained in the use

of firearms, he legally owns firearms, and he is a

staunch defender of the Second Amendment, which

constitutionally guarantees him the right to bear arms

for self-defense, defense of his family, and for the

defense of a free State. He also uses firearms to hunt

in Michigan and in other States. To support his right

to bear arms, which necessarily includes the right to

purchase firearms and ammunition, Petitioner Muise

patronizes local gun shops, specifically including a gun

shop located in Washtenaw County. R.25, First Am.

Compl. ¶¶ 38, 39.

EO 2020-42 ordered all non-essential businesses

and activities to cease. Though this order exempted

“critical

infrastructure,”

Governor

Whitmer

purposefully referenced an outdated list of such

industries (issued March 19, 2020) rather than the

more current federal guidelines (issued March 28,

2020) that designated firearm and ammunition

retailers as critical. This deliberate action shut down

gun stores 1 in order to deny citizens, including

Petitioner Muise, access to their Second Amendment

rights. Thus, for reasons that can only be explained as

1 Governor Whitmer conceded in her brief filed in the district court

that gun stores were closed because she considered them “nonessential.” R.32, Governor’s Br. at 35.

11

political, Governor Whitmer considered Lotto,

marijuana, liquor, and abortion to be essential but not

firearms and ammunition. Consequently, the order

also banned travel to gun stores but permitted

individuals to travel to buy pet food, marijuana, liquor,

and Lotto tickets, among other items. R.25, First Am.

Compl. ¶¶ 40-42.

Accordingly, EO 2020-42 prohibited Petitioner

Muise from traveling to gun stores to purchase

firearms and ammunition and to travel to gun ranges

to train with his firearms. Because he did not want to

be subject to criminal or other sanctions for violating

the executive order, Petitioner Muise did not travel to

any guns stores or ranges while EO 2020-42 was in

effect. R.25, First Am. Compl. ¶ 43.

Due to the panic caused by the pandemic and the

uncertainty caused by Governor Whitmer’s executive

orders, owning and possessing firearms was critically

important at this time. EO 2020-42 deprived Michigan

residents, including Petitioner Muise, of their

fundamental right to use arms in defense of their

“hearth and home.” R.25, First Am. Compl. ¶ 44.

Petitioner Muise and his wife have been blessed

with twelve children and eleven grandchildren (his

family continues to grow). 2 At the time this lawsuit

was filed, three of his adult children were married, and

all reside locally in Michigan. Two of his adult children

resided locally in rental properties in Michigan. And

2 R.40-1, Muise Decl. ¶ 5.

12

his other seven children resided at his home in

Superior Township. 3 R.25, First Am. Compl. ¶ 45.

On most Sundays, Holy Days, and other special

events, the family would gather at Petitioner Muise’s

home for a meal, fellowship, and prayer. The family’s

faith is the center of their family life. R.25, First Am.

Compl. ¶ 46.

Petitioner Muise and his family are devout

Catholics. Because of COVID-19, there were no public

Masses in the Lansing Diocese. However, Jesus Christ

taught that where two or more gather in His name, He

is present. (Matthew 18:20). Petitioner Muise wanted

his family to gather together on Sundays, other Holy

Days, and special events to associate for a meal,

fellowship, and prayer, and thus gather as a family in

Christ’s name. Such gatherings are religious worship

for Petitioner Muise. However, under the measures

expressly set forth in EO 2020-42, it was a crime in

Michigan to engage in such family associations and

gatherings. EO 2020-42 stated that “a place of

religious worship, when used for religious worship, is

not subject to penalty.” But there were no definitions

or guidance within the executive order to explain how

this exemption applied. EO 2020-59 stated that

“neither a place of religious worship nor its owner is

subject to penalty under section 20 of this order for

allowing religious worship at such place.” But again,

there were no definitions or guidance within the

3 As of this filing, four of Petitioner Muise’s children are married

and reside locally, three children reside locally in rental properties

in Michigan, and the other five children reside at his home in

Superior Township.

13

executive order to explain how this exemption applied.

R.25, First Am. Compl. ¶¶ 47-49. Moreover, per the

order, “[s]ubject to [the exceptions in section 7], all

public and private gatherings of any number of people

occurring among persons not part of a single household

are prohibited.” R.25, First Am. Compl. ¶ 26.

In addition to criminal sanctions for violating an

executive order, Petitioners also feared that they could

jeopardize their Michigan law practices and related forprofit and non-profit business interests if they violated

an executive order. Governor Whitmer was quoted in

the news on or about April 1, 2020, as follows: “You

know, just about every business in the state has some

sort of license, from the state of Michigan or not, and so

we’ve encouraged them not to play fast and loose with

this order because their licenses could be in jeopardy as

a result.” R.25, First Am. Compl. ¶ 51.

Governor Whitmer has expressly stated her

willingness to “return to her old ways,” stating that the

State must “be nimble enough to go backward, on

occasion.” Indeed, new variants of COVID continue to

emerge, 4 and each year there is a flu season. Some

years are far worse than others. Consequently,

restrictions like those challenged here will easily and

predictably become the “new norm.” R.25, First Am.

Compl. ¶¶ 57-60.

The public interest in determining the legality of

the executive orders was on full display on April 15,

4 Per the CDC, “New variants of the [COVID-19] virus are

expected to occur.”

(https://www.cdc.gov/coronavirus/2019ncov/variants/about-variants.html).

14

2020, when thousands of Michigan residents and other

demonstrators descended upon the State Capitol in

Lansing, Michigan in what was called “Operation

Gridlock” to publicly protest Governor Whitmer’s

restrictions on their liberty. R.25, First Am. Compl.

¶ 61.

LIFTING THE PANDEMIC VEIL

It is the government’s burden to justify its

restriction on a fundamental liberty; it is not a private

citizen’s burden to justify his freedom. The Bill of

Rights is a brake on the power of government; it is not

a conferring of rights by the government only to be

withheld at the whim of a government official.

Throughout the pandemic, government officials

(including Governor Whitmer) kept moving the goal

posts. They felt compelled to lord over nearly every

detail of our lives, and they justified this power grab by

relying on fear and a parade of horribles. For example,

in their brief filed in the district court, Governor

Whitmer and Attorney General Nessel asserted,

without supporting evidence or data, that “[a]s the

virus ravaged southeastern Michigan, health systems

were quickly at or above capacity. Medical supplies

were dwindling, and beds in intensive care units were

in short supply.” R.32, Governor’s Br. at 22. The facts

did not support this assertion.

Based on (widely considered inflated) data from the

Michigan Department of Health and Human Services,

the CDC, and USAfacts.org (which the CDC has cited

and relied upon for some of its data), during the month

15

of April 2020, the average weekly percentage of

available ICU beds in Michigan ranged from 20.89% to

31.50%, and the average weekly percentage of available

inpatient hospital beds in Michigan ranged from

36.17% to 39.54%. R.40-2, Korkes Decl. ¶¶ 3-5, Ex. A.

During the first two weeks in May 2020, the

average weekly percentage of available ICU beds in

Michigan ranged from 31.80% to 33.93%, and the

average weekly percentage of available inpatient

hospital beds in Michigan ranged from 35.24% to

36.60%. Id. There never was a shortage of hospital

capacity. And Governor Whitmer’s ban on “elective”

medical procedures (except abortion) was destroying

Michigan’s healthcare system. 5

According to the “Official Website of Michigan.Gov,”

as of May 27, 2020, there were reportedly 55,608

confirmed COVID-19 cases and 5,334 deaths statewide.

The City of Detroit and Wayne County accounted for

19,999 of the cases and 2,406 of the deaths. In

comparison, Saginaw County, where Petitioner Beemer

resides, reported only 1,002 cases and 107 deaths, and

Washtenaw County, where Petitioner Muise resides,

reported only 1,305 cases and 97 deaths.

Charlevoix County, where Petitioner Beemer’s

cottage is located, reported only 15 cases and 1 death.

In fact, according to Michigan’s statistics as of May 27,

2020, fifty-seven (57) out of the eighty (80) counties

5 See https://www.detroitnews.com/story/news/local/Michigan/

2020/05/05/university-michigan-health-system-lays-off-1400health-care-workers/3084104001/.

16

reporting had ten (10) or fewer deaths associated with

COVID-19. 6

Indeed, the State’s pandemic was largely confined to

the City of Detroit (10,872 cases), the surrounding

Wayne County (9,127 cases), and the suburbs of

Oakland (8,260 cases) and Macomb (6,558 cases)

counties, accounting for 34,817 reported cases as of

May 27, 2020. And the same jurisdictions reported

4,151 COVID-19 deaths during this time, which was

nearly 78% percent of the statewide total of 5,334

deaths. The rest of Michigan had been relatively

unaffected.

Yet, Governor Whitmer’s statewide

restrictions took no account of regional differences.

Additionally, when you evaluate the data based on

age, 87% of the deaths occurred in people 60 or older

(69% of which were 70 or older). The median age of

death was 77 years. 7 Yet, Governor Whitmer’s

restrictions took no account of this difference.

Moreover, during the peak period of this pandemic

(March through May 2020), far more people died in

Michigan from cancer and heart disease (7,329) than

from the virus (4,349). R.40-17, Muise Decl. ¶ 3, Ex. B.

Fear mongering was used to justify unprecedented

and overly broad (not to mention, unconstitutional)

restrictions on personal liberty. In short, the facts do

not support this frontal assault on freedom. And the

6 R.40-1, Muise Decl. ¶ 2, Ex. A.

7 R.40-1, Muise Decl. ¶ 2, Ex. A.

17

Constitution is intended to be a bulwark against it, but

only if the courts are willing to say so.

REASONS FOR GRANTING THE PETITION

While the fear engendered by war, pandemic, or

some other crisis might lead politicians, their

attorneys, and yes, even judges of the highest order, to

assert that patent violations of the Constitution are

acceptable (or beyond judicial scrutiny) because public

safety interests demand an exception to our most

fundamental liberties, history teaches that we will look

back on these arguments as “gravely wrong . . .

overruled in the court of history . . . and . . . [having] no

place in law under the Constitution.” Trump v. Haw.,

138 S. Ct. 2392, 2423 (2018) (repudiating Korematsu v.

United States, 323 U.S. 214 (1944)).

During times such as these, “[i]t is emphatically the

province and duty of the judicial department to say

what the law is.” Marbury v. Madison, 5 U.S. (1

Cranch) 137, 177 (1803). The importance of doing so

during (and in the immediate aftermath of) a crisis is

essential to ensure the protection of our system of

constitutional liberties for it is in such times that the

need for protection is at its zenith. See generally

Coolidge v. N.H., 403 U.S. 443, 455 (1971) (“In times of

unrest, whether caused by crime or racial conflict or

fear of internal subversion, this basic law [the Fourth

Amendment] and the values that it represents may

appear unrealistic or ‘extravagant’ to some. But the

values were those of the authors of our fundamental

constitutional concepts.”).

18

The Emergency Management Act (EMA), which

spawned the egregious constitutional violations at

issue in this case, is alive and well. Mich. Comp. Laws

§ 30.401, et seq. We have witnessed during this

COVID-19 crisis, most of us firsthand, the abuse that

accompanies such executive power when left

unchecked. Lord Acton was famously suspicious of

power for the sake of power, which led to his famous

quote: “Power tends to corrupt, and absolute power

corrupts absolutely.”

By declaring an “emergency”—this time the

“emergency” was a pandemic and next it will be climate

change, gun violence, or the political issue de jure—the

Michigan Governor is granted unfettered powers for at

least twenty-eight days. Our Constitution does not

permit such a tyrannical reign even if it is of short

duration. Elrod v. Burns, 427 U.S. 347, 373 (1976)

(“The loss of First Amendment freedoms, for even

minimal periods of time, unquestionably constitutes

irreparable injury.”).

The only meaningful check on such power is the

judiciary. A new norm has been established by the

Michigan Governor, and it is the duty of this Court to

“say what the law is,” particularly when the challenged

restrictions are patently unconstitutional.

Review by this Court is necessary because the Sixth

Circuit committed precedent-setting errors of

exceptional public importance and issued an opinion

that directly conflicts with this Court’s precedent. Sup.

Ct. R. 10(c). Moreover, lower courts do not uniformly

apply this Court’s voluntary cessation and capable of

19

repetition yet evading review doctrines when reviewing

cases involving the enforcement of emergency orders.

See, e.g., Tucker v. Gaddis, 40 F.4th 289, 293-94 (5th

Cir. 2022) (Ho, J., concurring); Brach v. Newsom, 38

F.4th 6, 18 (9th Cir. 2022) (Paez, J., dissenting) (“I

would side with the First, Third, Fourth, and Seventh

Circuits—and follow the Supreme Court’s guidance”).

And the Sixth Circuit’s application of these doctrines

ensures the continuation of a practice that directly

conflicts with fundamental liberties enshrined in our

Constitution.

ARGUMENT

I.

Petitioners’ Claims Are Not Moot.

“Determination by the [government] of what

constitutes proper exercise of police power is not final

or conclusive but is subject to supervision by the

courts.” Meyer v. Neb., 262 U.S. 390, 400 (1923). But

this supervision is only effective if the courts are

willing to exercise their authority to decide important

constitutional questions. Unfortunately, the courts’

mootness doctrine has become a convenient excuse for

courts to surrender their duty to say what the law is,

particularly when dealing with the draconian and

historic restrictions imposed during the recent

pandemic crisis.

The court’s primary role is to safeguard freedom—it

would be wrong to surrender that role because of the

pandemic. As stated by Justice Gorsuch, “[Courts] may

not shelter in place when the Constitution is under

attack. Things never go well when [they] do.” Roman

20

Catholic Diocese v. Cuomo, 141 S. Ct. 63, 71 (2020)

(Gorsuch, J., concurring).

Indeed, this case reflects a growing trend of

allowing government defendants to moot a pending

case by rescinding the challenged regulation prior to a

court deciding the constitutionality of the claims

against them, thus allowing government officials to

remain unaccountable for the legal ramifications of

their enacted policies.

Some circuits rightfully caution against such

decisions as an abuse of the doctrine of mootness. As

recently stated by Judge Ho in the Fifth Circuit:

To be clear, it’s not supposed to be this way. It

shouldn’t be that easy for the government to

avoid accountability by abusing the doctrine of

mootness. But judges too often dismiss cases as

moot when they’re not—whether out of an

excessive sense of deference to public officials,

fear of deciding controversial cases, or simple

good faith mistake. And when that happens,

fundamental constitutional freedoms frequently

suffer as a result.

That’s why legal commentators have bemoaned

that acts of “strategic mooting litter the Federal

Reporter.” Joseph C. Davis & Nicholas R.

Reaves, The Point Isn’t Moot: How Lower Courts

Have Blessed Government Abuse of the

Voluntary Cessation Doctrine, 129 Yale L.J.

Forum 325, 328 (2019).

Because judicial

acceptance of such gamesmanship “harm[s] both

21

good sense and [] individual rights” and

“depriv[es] the citizenry of certainty and clarity

in the law” by “preventing the final resolution of

important legal issues.” Id.

I am thankful that our court does not make that

same mistake today. But I continue to worry

that judges may be tempted to misapply

mootness in other cases—not to ensure that we

decide only actual cases or controversies, but to

avoid deciding cases that happen to be

controversial.

Tucker, 40 F.4th at 293-94 (Ho, J., concurring).

A. Petitioners’ Claims Are Not Moot as the

Challenged Restrictions Are Capable of

Repetition, yet Evading Review.

Petitioners’ claims come within the “capable of

repetition, yet evading review” exception to the

mootness doctrine. This exception applies to situations

where: “(1) the challenged action was in its duration too

short to be fully litigated prior to its cessation or

expiration; and (2) there was a reasonable expectation

that the same complaining party would be subjected to

the same action again.” Weinstein v. Bradford, 423

U.S. 147, 148 (1975) (emphasis added).

Petitioners satisfy both requirements for this

exception. First, the challenged executive order (EO

2020-42) was issued on April 9, 2020, and the EO

stated that it would continue through April 30, 2020.

App. 12. This Order derived its authority from the

22

EMA, which limits the emergency powers of a governor

to twenty-eight days unless additional authority is

granted by the Legislature. “The EMA carries a 28-day

limit on the amount of time in which the Governor can

issue orders under a state of emergency before the act

requires the Governor to declare an end to the

emergency, unless both houses of the Legislature

extend the period through a resolution.” House of

Representatives v. Governor, 943 N.W.2d 365, 371 n.8

(Mich. 2020) (citing Mich. Comp. Laws § 30-403(3)).

Governor Whitmer had authority under the EMA to

extend her emergency powers through April 30, 2020.

Id. at 368 n.4 (“The Legislature approved an extension

of the Governor’s initial emergency declaration under

the EMA until April 30.”). Thus, the challenged

executive order was valid under the EMA and not

affected by the Michigan Supreme Court’s ruling on the

Emergency Powers of the Governor Act in House of

Representatives.

This Court has found periods of up to two years to

be too short to be fully litigated.

See, e.g.,

Kingdomware Techs., Inc. v. United States, 136 S. Ct.

1969, 1976 (2016) (holding that a procurement contract

that expires in two years does not permit judicial

review). Petitioners satisfy the first requirement.

Petitioners also satisfy the second requirement of

the “capable of repetition, yet evading review”

exception because this standard is a forgiving one.

That is, “reasonable” in this context is not an exacting

bar. Indeed, this Court has indicated that it is

somewhat less than probable:

23

[W]e have found controversies capable of

repetition based on expectations that, while

reasonable, were hardly demonstrably probable .

. . Our concern in these cases . . . was whether

the controversy was capable of repetition and

not . . . whether the claimant had demonstrated

that a recurrence of the dispute was more

probable than not.

Honig v. Doe, 484 U.S. 305, 318 n.6 (1988) (emphasis in

original) (internal citations omitted).

In other words, recurrence of the issue need not be

more probable than not; instead, the controversy must

be capable of repetition. This standard provides that

the chain of potential events does not have to be certain

or even probable to support the court’s finding of nonmootness.

This Court has repeatedly found restrictions issued

during the COVID-19 pandemic capable of repetition.

In Roman Catholic Diocese of Brooklyn v. Cuomo, the

Court found that a church’s challenge to New York’s

pandemic restrictions was not moot where “[t]he

Governor regularly change[d] the classification of

particular areas without prior notice” and retained the

authority to continue doing so. 141 S. Ct. 63, 68 (2020)

(per curiam). And while the Court did not identify

which mootness exception applied, it cited to Wisconsin

Right to Life’s discussion of the “capable of repetition,

yet evading review” exception. Id. (citing Wis. Right to

Life, 551 U.S. 449, 462 (2007)).

24

The Court applied Roman Catholic Diocese in

Tandon v. Newsom and held that a challenge to

California’s restrictions on religious gatherings was not

moot because California officials “retain[ed] authority

to reinstate” the challenged restrictions “at any time.”

141 S. Ct. 1294, 1297 (2021) (per curiam) (citing S. Bay

United Pentecostal Church v. Newsom, 141 S. Ct. 716,

720, 209 (2021) (Gorsuch, J.) (explaining that the case

was not moot because California officials have a record

of “moving the goalposts”)).

Because the Michigan Governor’s executive order at

issue here was “lawfully” issued pursuant to the

EMA—a law which is alive and well in Michigan—its

restrictions are “capable” of repetition. Under the

EMA, the Governor could declare another state of

emergency based upon a new COVID variant or some

other asserted basis for invoking her emergency powers

under the EMA and issue precisely the same restrictions

on constitutional freedoms. There is no legislative

action nor court decision preventing her from doing so.

In the final analysis, the challenged restrictions

found in EO 2020-42 are capable of repetition, and

these emergency executive orders by their very nature

are short in duration, thus evading review. Petitioners’

important constitutional challenge is not moot.

B. Governor Whitmer’s Voluntary Cessation of

EO 2020-42 Does Not Moot Petitioners’

Claims.

When a party seeks to escape liability by claiming

that it has voluntarily ceased the offending conduct,

25

“the heavy burden of persuading the court that the

challenged conduct cannot reasonably be expected to

start up again lies with the party” seeking to avoid

liability. Adarand Constructors, Inc. v. Slater, 528 U.S.

216, 222 (2000) (internal quotations and citation

omitted) (emphasis added).

As this Court noted, not only is a defendant “free to

return to his old ways,” but also the public has an

interest “in having the legality of the practices settled.”

United States v. W. T. Grant Co., 345 U.S. 629, 632

(1953) (emphasis added); see also City of Mesquite v.

Aladdin’s Castle, Inc., 455 U.S. 283, 289, n.10 (1982).

Consequently, “[a]long with its power to hear the

case, the court’s power to grant injunctive relief

survives discontinuance of the illegal conduct.” W. T.

Grant Co., 345 U.S. at 633. Thus, a claim for injunctive

relief may be improper only “if the defendant can

demonstrate that ‘there is no reasonable expectation

that the wrong will be repeated.’ The [defendant’s]

burden is a heavy one.” Id. (citation omitted) (emphasis

added).

This Court has also instructed the lower courts to be

particularly vigilant in cases such as this, warning that

“[i]t is the duty of the courts to beware of efforts to

defeat injunctive relief by protestations of repentance

and reform, especially when abandonment seems timed

to anticipate suit, and there is probability of

resumption.” Id. at 632, n.5.

As the Court concluded, denying a plaintiff

prospective relief “would be justified only if it were

26

absolutely clear that the litigant no longer had any

need of the judicial protection that it sought.” Adarand

Constructors, Inc., 528 U.S. at 224 (emphasis added);

see also Speech First, Inc. v. Schlissel, 939 F.3d 756,

767-70 (6th Cir. 2019) (finding the challenge to a

university’s speech restrict not moot and stating that

“[i]f the discretion to effect the change lies with one

agency or individual, or there are no formal processes

required to effect the change, significantly more than

the bare solicitude itself is necessary to show that the

voluntary cessation moots the claim”).

Here, Governor Whitmer eased her restrictions just

days before the Court was to hold a hearing on

Petitioners’ motion for a preliminary injunction. App.

12.

Governor Whitmer has also expressed her

willingness to “return to her old ways,” stating that the

State must “be nimble enough to go backward, on

occasion.” R.25, First Am. Compl. ¶ 57. Moreover,

COVID has not gone away (nor will it), and each year

there is a flu season. Some years are far worse than

others.

Consequently, restrictions like those

challenged here will easily and predictably become

the “new norm,” resulting in the loss of liberty. Id.

¶ 60.

In sum, Governor Whitmer is free to return to her

old ways, and the public has a very strong interest in

having the legality of the challenged restrictions

settled, as evidenced by the public protests spurred

by her orders. Id. ¶ 61. This case is not moot, and a

federal court should decide the important

constitutional claims presented. Things won’t go well

if they don’t.

27

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

ROBERT JOSEPH MUISE

Counsel of Record

AMERICAN FREEDOM LAW CENTER

P.O. Box 131098

Ann Arbor, Michigan 48113

(734) 635-3756

rmuise@americanfreedomlawcenter.org

DAVID YERUSHALMI

AMERICAN FREEDOM LAW CENTER

2020 Pennsylvania Avenue NW

Suite 189

Washington, D.C. 20006

(646) 262-0500

Counsel for Petitioners