Martinko et al v. Whitmer

Filing 1

COMPLAINT filed by All Plaintiffs against Gretchen Whitmer with Jury Demand. Plaintiff requests summons issued. Receipt No: AMIEDC-7739870 - Fee: $ 400. County of 1st Plaintiff: Oakland - County Where Action Arose: State of Michigan - County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Exhibit, # 2 Exhibit) (Helm, David)

Exhibit 2

EXECUTIVE ORDER

No. 2020-42

Temporary requirement to suspend activities that
are not necessary to sustain or protect life

Rescission of Executive Order 2020-21

The novel coronavirus (COVID-19) is a respiratory disease that can result in serious
illness or death. It is caused by a new strain of coronavirus not previously identified in
humans and easily spread from person to person. There is currently no approved
vaccine or antiviral treatment for this disease.

On March 10, 2020, the Michigan Department of Health and Human Services identified
the first two presumptive-positive cases of COVID-19 in Michigan. On that same day, I
issued Executive Order 2020-4. This order declared a state of emergency across the
state of Michigan under section 1 of article 5 of the Michigan Constitution of 1963, the
Emergency Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the
Emergency Powers of the Governor Act of 1945, 1945 PA 302, as amended, MCL
10.31 et seq.

In the three weeks that followed, the virus spread across Michigan, bringing deaths in
the hundreds, confirmed cases in the thousands, and deep disruption to this state’s
economy, homes, and educational, civic, social, and religious institutions. On April 1,
2020, in response to the widespread and severe health, economic, and social harms
posed by the COVID-19 pandemic, I issued Executive Order 2020-33. This order
expanded on Executive Order 2020-4 and declared both a state of emergency and a
state of disaster across the State of Michigan under section 1 of article 5 of the
Michigan Constitution of 1963, the Emergency Management Act, and the Emergency
Powers of the Governor Act of 1945.

The Emergency Management Act vests the governor with broad powers and duties to
“cop[e] with dangers to this state or the people of this state presented by a disaster or
emergency,” which the governor may implement through “executive orders,
proclamations, and directives having the force and effect of law.” MCL 30.403(1)-(2).
Similarly, the Emergency Powers of the Governor Act of 1945 provides that, after
declaring a state of emergency, “the governor may promulgate reasonable orders, rules,
and regulations as he or she considers necessary to protect life and property or to bring
the emergency situation within the affected area under control.” MCL 10.31(1).

To suppress the spread of COVID-19, to prevent the state’s health care system from
being overwhelmed, to allow time for the production of critical test kits, ventilators, and
personal protective equipment, and to avoid needless deaths, it is reasonable and
necessary to direct residents to remain at home or in their place of residence to the
maximum extent feasible. To that end, on March 23, 2020, I issued Executive Order
2020-21, ordering all people in Michigan to stay home and stay safe. The order limited
gatherings and travel, and required workers who are not necessary to sustain or protect
life to stay home.

The measures put in place by Executive Order 2020-21 have been effective, but this
virus is both aggressive and persistent: on April 8, 2020, Michigan reported 20,346
confirmed cases of COVID-19 and 959 deaths from it. To win this fight, and to protect
the health and safety of our state and each other, we must be just as aggressive and
persistent. Though we have all made sacrifices, we must be steadfast. Accordingly, with
this order, I find it reasonable and necessary to reaffirm the measures set forth in
Executive Order 2020-21, clarify them, and extend their duration to April 30, 2020. This
order takes effect on April 9, 2020 at 11:59 pm. When this order takes effect, Executive
Order 2020-21 is rescinded.

Acting under the Michigan Constitution of 1963 and Michigan law, I order the following:

1. This order must be construed broadly to prohibit in-person work that is not
necessary to sustain or protect life.

2. Subject to the exceptions in section 7 of this order, 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.

3. All individuals who leave their home or place of residence must adhere to social
distancing measures recommended by the Centers for Disease Control and
Prevention (“CDC”), including remaining at least six feet from people from
outside the individual’s household to the extent feasible under the circumstances.

4. No person or entity shall operate a business or conduct operations that require
workers to leave their homes or places of residence except to the extent that
those workers are necessary to sustain or protect life or to conduct minimum
basic operations.

a. For purposes of this order, workers who are necessary to sustain or protect life
are defined as “critical infrastructure workers,” as described in sections 8 and 9 of
this order.

b. For purposes of this order, workers who are necessary to conduct minimum
basic operations are those whose in-person presence is strictly necessary to
allow the business or operation to maintain the value of inventory and equipment,
care for animals, ensure security, process transactions (including payroll and
employee benefits), or facilitate the ability of other workers to work remotely.

Businesses and operations must determine which of their workers are
necessary to conduct minimum basic operations and inform such workers
of that designation. Businesses and operations must make such
designations in writing, whether by electronic message, public website, or
other appropriate means. Workers need not carry copies of their
designations when they leave the home or place of residence for work.

Any in-person work necessary to conduct minimum basic operations must
be performed consistently with the social distancing practices and other
mitigation measures described in section 10 of this order.

5. Businesses and operations that employ critical infrastructure workers may
continue in-person operations, subject to the following conditions:

a. Consistent with sections 8 and 9 of this order, businesses and operations must
determine which of their workers are critical infrastructure workers and inform
such workers of that designation. Businesses and operations must make such
designations in writing, whether by electronic message, public website, or other
appropriate means. Workers need not carry copies of their designations when
they leave the home or place of residence for work. Businesses and operations
need not designate:

1. Workers in health care and public health.

2. Workers who perform necessary government activities, as described in section 6
of this order.

3. Workers and volunteers described in section 9(d) of this order.

b. In-person activities that are not necessary to sustain or protect life must be
suspended until normal operations resume.

c. Businesses and operations maintaining in-person activities must adopt social
distancing practices and other mitigation measures to protect workers and
patrons, as described in section 10 of this order. Stores that are open to the
public must also adhere to the rules described in section 11 of this order.

6. All in-person government activities at whatever level (state, county, or local) that
are not necessary to sustain or protect life, or to support those businesses and
operations that are necessary to sustain or protect life, are suspended.

a. For purposes of this order, necessary government activities include activities
performed by critical infrastructure workers, including workers in law
enforcement, public safety, and first responders.

b. Such activities also include, but are not limited to, public transit, trash pick-up and
disposal (including recycling and composting), activities necessary to manage
and oversee elections, operations necessary to enable transactions that support
the work of a business’s or operation’s critical infrastructure workers, and the
maintenance of safe and sanitary public parks so as to allow for outdoor activity
permitted under this order.

c. For purposes of this order, necessary government activities include minimum
basic operations, as described in section 4(b) of this order. Workers performing
such activities need not be designated.

d. Any in-person government activities must be performed consistently with the
social distancing practices and other mitigation measures to protect workers and
patrons described in section 10 of this order.

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.

2. To perform their jobs as critical infrastructure workers after being so designated
by their employers. (Critical infrastructure workers who need not be designated
under section 5(a) of this order may leave their home for work without being
designated.)

3. To conduct minimum basic operations, as described in section 4(b) of this order,
after being designated to perform such work by their employers.

4. To perform necessary government activities, as described in section 6 of this
order.

5. To perform tasks that are necessary to their health and safety, or to the health
and safety of their family or household members (including pets). Individuals
may, for example, leave the home or place of residence to secure medication or
to seek medical or dental care that is necessary to address a medical emergency
or to preserve the health and safety of a household or family member (including
procedures that, in accordance with a duly implemented nonessential procedures
postponement plan, have not been postponed).

6. To obtain necessary services or supplies for themselves, their family or
household members, their pets, and their vehicles.

A. Individuals must secure such services or supplies via delivery to the maximum
extent possible. As needed, however, individuals may leave the home or place of
residence to purchase groceries, take-out food, gasoline, needed medical
supplies, and any other products necessary to maintain the safety, sanitation,
and basic operation of their residences. Individuals may also leave the home to
drop off a vehicle to the extent permitted under section 9(i) of this order.

B. Individuals should limit, to the maximum extent that is safe and feasible, the
number of household members who leave the home for any errands.

7. To care for a family member or a family member’s pet in another household.

8. To care for minors, dependents, the elderly, persons with disabilities, or other
vulnerable persons.

9. To visit an individual under the care of a health care facility, residential care
facility, or congregate care facility, to the extent otherwise permitted.

10. To attend legal proceedings or hearings for essential or emergency purposes as
ordered by a court.

11. To work or volunteer for businesses or operations (including both religious and
secular nonprofit organizations) that provide food, shelter, and other necessities
of life for economically disadvantaged or otherwise needy individuals, individuals
who need assistance as a result of this emergency, and people with disabilities.

12. To attend a funeral, provided that no more than 10 people are in attendance at
the funeral.

b. Individuals may also travel:
1. To return to a home or place of residence from outside this 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.

4. As required by law enforcement or a court order, including the transportation of
children pursuant to a custody agreement.

c. All other travel is prohibited, including all travel to vacation rentals.
8. For purposes of this order, critical infrastructure workers are those workers
described by the Director of the U.S. Cybersecurity and Infrastructure Security
Agency in his guidance of March 19, 2020 on the COVID-19 response
(available here). This order does not adopt any subsequent guidance document
released by this same agency.

Consistent with the March 19, 2020 guidance document, critical infrastructure
workers include some workers in each of the following sectors:

a. Health care and public health.

b. Law enforcement, public safety, and first responders.

c. Food and agriculture.

d. Energy.

e. Water and wastewater.

f. Transportation and logistics.

g. Public works.

h. Communications and information technology, including news media.

i.

Other community-based government operations and essential functions.

j.

Critical manufacturing.

k. Hazardous materials.

•

Financial services.

m. Chemical supply chains and safety.



Defense industrial base.

9. For purposes of this order, critical infrastructure workers also include:

a. Child care workers (including workers at disaster relief child care centers), but
only to the extent necessary to serve the children or dependents of workers
required to perform in-person work as permitted under this order. This category
includes individuals (whether licensed or not) who have arranged to care for the
children or dependents of such workers.

b. Workers at suppliers, distribution centers, or service providers, as described
below.

1. Any suppliers, distribution centers, or service providers whose continued
operation is necessary to enable, support, or facilitate another business’s or
operation’s critical infrastructure work may designate their workers as critical
infrastructure workers, provided that only those workers whose in-person
presence is necessary to enable, support, or facilitate such work may be so
designated.

2. Any suppliers, distribution centers, or service providers whose continued
operation is necessary to enable, support, or facilitate the necessary work of
suppliers, distribution centers, or service providers described in subprovision (1)
of this subsection may designate their workers as critical infrastructure workers,
provided that only those workers whose in-person presence is necessary to
enable, support, or facilitate such work may be so designated.

3. Consistent with the scope of work permitted under subprovision (2) of this
subsection, any suppliers, distribution centers, or service providers further down
the supply chain whose continued operation is necessary to enable, support, or
facilitate the necessary work of other suppliers, distribution centers, or service
providers may likewise designate their workers as critical infrastructure workers,
provided that only those workers whose in-person presence is necessary to
enable, support, or facilitate such work may be so designated.

4. Suppliers, distribution centers, and service providers that abuse their designation
authority under this subsection shall be subject to sanctions to the fullest extent
of the law.

c. Workers in the insurance industry, but only to the extent that their work cannot be
done by telephone or remotely.

d. Workers and volunteers for businesses or operations (including both religious
and secular nonprofit organizations) that provide food, shelter, and other
necessities of life for economically disadvantaged or otherwise needy individuals,
individuals who need assistance as a result of this emergency, and people with
disabilities.

e. Workers who perform critical labor union functions, including those who
administer health and welfare funds and those who monitor the well-being and
safety of union members who are critical infrastructure workers, provided that
any administration or monitoring should be done by telephone or remotely where
possible.

f. Workers at retail stores who sell groceries, medical supplies, and products
necessary to maintain the safety, sanitation, and basic operation of residences,
including convenience stores, pet supply stores, auto supplies and repair stores,
hardware and home maintenance stores, and home appliance retailers.

g. Workers at laundromats, coin laundries, and dry cleaners.

h. Workers at hotels and motels, provided that the hotels or motels do not offer
additional in-house amenities such as gyms, pools, spas, dining, entertainment
facilities, meeting rooms, or like facilities.

i.

Workers at motor vehicle dealerships who are necessary to facilitate remote and
electronic sales or leases, or to deliver motor vehicles to customers, provided
that showrooms remain closed to in-person traffic.

10. Businesses, operations, and government agencies that continue in-person work
must adhere to sound social distancing practices and measures, which include
but are not limited to:

a. Developing a COVID-19 preparedness and response plan, consistent with
recommendations in Guidance on Preparing Workplaces for COVID-19,
developed by the Occupational Health and Safety Administration and
available here. Such plan must be available at company headquarters or the
worksite.

b. Restricting the number of workers present on premises to no more than is strictly
necessary to perform the business’s, operation’s, or government agency’s critical
infrastructure functions or its minimum basic operations.

c. Promoting remote work to the fullest extent possible.

d. Keeping workers and patrons who are on premises at least six feet from one
another to the maximum extent possible.

e. Increasing standards of facility cleaning and disinfection to limit worker and
patron exposure to COVID-19, as well as adopting protocols to clean and
disinfect in the event of a positive COVID-19 case in the workplace.

f. Adopting policies to prevent workers from entering the premises if they display
respiratory symptoms or have had contact with a person with a confirmed
diagnosis of COVID-19.

g. Any other social distancing practices and mitigation measures recommended by
the CDC.

11. Any store that remains open for in-person sales under section 5 or 9(f) of this
order must:

a. Establish lines to regulate entry in accordance with subsections (c) and (d) of this
section, with markings for patrons to enable them to stand at least six feet apart
from one another while waiting. Stores should also explore alternatives to lines,
including by allowing customers to wait in their cars for a text message or phone
call, to enable social distancing and to accommodate seniors and those with
disabilities.

b. Consider establishing curbside pick-up to reduce in-store traffic and mitigate
outdoor lines.

c. For stores of less than 50,000 square feet of customer floor space, limit the
number of people in the store (including employees) to 25% of the total
occupancy limits established by the State Fire Marshal or a local fire marshal.

d. For stores of more than 50,000 square feet:

1. Limit the number of customers in the store at one time (excluding employees) to
4 people per 1,000 square feet of customer floor space. The amount of customer
floor space must be calculated to exclude store areas that are closed under
subprovision (2) of this subsection.

2. Close areas of the store—by cordoning them off, placing signs in aisles, posting
prominent signs, removing goods from shelves, or other appropriate means—that
are dedicated to the following classes of goods:

A. Carpet or flooring.

B. Furniture.

C. Garden centers and plant nurseries.

D. Paint.

3. By April 13, 2020, refrain from the advertising or promotion of goods that are not
groceries, medical supplies, or items that are necessary to maintain the safety,
sanitation, and basic operation of residences.

4. Create at least two hours per week of dedicated shopping time for vulnerable
populations, which for purposes of this order are people over 60, pregnant
women, and those with chronic conditions like heart disease, diabetes, and lung
disease.

e. The director of the Department of Health and Human Services is authorized to
issue an emergency order varying the capacity limits described in subsections (c)
and (d) of this section as necessary to protect the public health.

12. No one shall advertise or rent a short-term vacation property except as
necessary to assist in housing a health care professional or volunteer aiding in
the response to the COVID-19 crisis.

13. Nothing in this order should be taken to supersede another executive order or
directive that is in effect, except to the extent this order imposes more stringent
limitations on in-person work, activities, and interactions. Consistent with prior
guidance, a place of religious worship, when used for religious worship, is not
subject to penalty under section 17 of this order.

14. Nothing in this order should be taken to interfere with or infringe on the powers of
the legislative and judicial branches to perform their constitutional duties or
exercise their authority.

15. This order takes effect on April 9, 2020 at 11:59 pm and continues through April
30, 2020 at 11:59 pm. When this order takes effect, Executive Order 2020-21 is
rescinded. All references to that order in other executive orders, agency rules,
letters of understanding, or other legal authorities shall be taken to refer to this
order.

16. I will evaluate the continuing need for this order prior to its expiration. In
determining whether to maintain, intensify, or relax its restrictions, I will consider,
among other things, (1) data on COVID-19 infections and the disease’s rate of
spread; (2) whether sufficient medical personnel, hospital beds, and ventilators
exist to meet anticipated medical need; (3) the availability of personal protective
equipment for the health-care workforce; (4) the state’s capacity to test for
COVID-19 cases and isolate infected people; and (5) economic conditions in the
state.

17. Consistent with MCL 10.33 and MCL 30.405(3), a willful violation of this order is
a misdemeanor.

Given under my hand and the Great Seal of the State of Michigan.