Friday, June 19, 2020

Federal Judge: Michigan Closure of Gyms Is Irrational, and Thus Unconstitutional

By Eugene Volokh - June 19, 2020 at 09:07PM

From today's decision by Judge Paul L. Maloney in League of Independent Fitness Facilities & Trainers, Inc. v. Whitmer (W.D. Mich.), holding that the continued prohibition on reopening gyms in Michigan fails even the very deferential "rational basis" test applicable to regulations of economic activity:

It is not this Court's place to second-guess the executive's pandemic plan, to apply its own policy judgments to that plan, or to use hindsight to craft a "better" plan. Rather, this Court must uphold the Governor's Executive Orders as long as they are supported by some relation to the public health. Unfortunately, on the record before it, the Court has not been presented with any evidence that shows a rational relation between the continued closure of indoor gyms and the preservation of public health.

While the standard is extremely deferential here—if the Court can conceive of any set of facts that would support the Orders, it must uphold them and deny the injunction—the Orders must still connect the challenged prohibition with some fact or facts. At oral argument, the Court pressed Defendants on what data, evidence, or rationale supported the continued closure of indoor gyms. Defendants cited to the preambles of the Executive Orders and vaguely stated that indoor gyms are a "petri dish" of infection, but Defendants could not point to any facts in the record to support that statement. Defendants emphasized the low bar: all that needed to be presented was a reasonably conceivable set of facts that connected the continued closure to protecting the public health.

But when asked, even counsel was unable to state a rational basis to support the position that indoor gyms must still be closed. Defendants merely reiterated that a threat of transmission exists at indoor gyms, and the threat of transmission must be minimized.

The Court accepts that statement as true, but it only carries Defendants so far. In March, when the pandemic was accelerating sharply and the science was unclear, the potential for virus transmission indoors was used to close much of the state of Michigan. The transmission and infection data, broad as it was at the time, was used to close broad swaths of the economy.

But the State has begun to chip away at that broad closure and make more specific policy decisions, which at least a scintilla of evidentiary support. The Court must look at what has been chipped away from the initial closure. Many indoor venues and indoor activities are now permitted: retail is now open with some restrictions, restaurants and bars may serve patrons at limited capacity, nail and hair salons and tattoo parlors can provide grooming services, children's camps can resume service, and even indoor gaming venues like bowling alleys, climbing facilities, and nightclubs can open subject to capacity limits. But indoor gyms and other fitness facilities remain closed.

With these changes, there is no longer a generally applicable closure of non-essential businesses. There must be some rational relation that distinguishes gyms from these now-opened businesses. Most of Governor Whitmer's executive orders refer to five factors that the State considers useful in evaluating changes to the pandemic response (See, e.g., EO 2020-115 at ¶ 14). The State is apparently looking at detailed data including the virus transmission rate, the availability and need for personal protective equipment, the capacity for testing, and the economy.

Again, when asked at oral argument what that rational relation for continued closure of gyms is, Defendants did not refer to those five factors or any other factor. Counsel could not articulate a reason beyond the bare assertion that gyms are dangerous. This Court fully recognizes that the bar is extremely low, but it is not that low. Defendants cannot rely on the categorization of gyms as "dangerous," without a single supporting fact, to uphold their continued closure. This is particularly true when almost all other indoor businesses have been opened, and indoor gatherings of up to 50 people are permitted—so long as they are not inside a gym. Gyms are being treated dissimilarly without any justification for the distinction, given the record before the Court.

The Court must also address Defendants' "slippery slope" argument. Defendants argue that if this injunction is granted, a veritable flood of litigation would ensue, with each sector of the economy seeking to reopen based on this opinion. The Court notes that both it and the Michigan Courts have already been deluged with litigation seeking the same.

The argument presented to the Court on this motion, however, points out a different slope the Defendants may create: if Defendants can open or close any sector of the economy, at will, with nothing more than a vague reference that it is "dangerous," the potential for abuse is palpable. To be sure, the coronavirus pandemic has devastated parts of the country and the state and containing the transmission of the virus is crucial. Activities that are dangerous should be avoided, for the public health. But after more than 90 days of closure, the scientific knowledge of the virus has grown and Michigan has made great gains in containing the pandemic. At this point, the bare assertion that gyms are dangerous is not enough to demonstrate a "real or substantial" connection to public health, nor is it a set of facts establishing rational basis to justify their continued closure.

The Court must emphasize that it does not wish to disturb the choices Governor Whitmer has made. While the last few months have been painful, physically for some and  economically for all, the Court recognizes that Michigan has made great strides towards containing the pandemic, in great part because of the choices Governor Whitmer has made. In the Governor's own words, those choices have been based on data and science, and the Court commends and respects that. But when asked what data, science, or even rationale supports the continued closure of indoor gyms, Defendants presented nothing beyond "trust us, they're still dangerous." From that vague statement and nothing more, the Court cannot create a set of facts that rationally connects the restriction with the legitimate government interest of protecting the public health.

In sum: on the record before it, the Court cannot conclude that ¶ 12(b) of EO 2020- 110 survives the deferential review it is due under Jacobson v. Massachusetts: Defendants offer nothing in support of the restriction, so it appears to have no "real or substantial" basis to protecting the public health. Nor can the Court identify any set of facts on which the gym restriction has a rational relation to public health, in light of the opening of similar venues and activities like swimming pools, restaurants and bars, and "personal touch" services like salons. Therefore, Plaintiffs have demonstrated a likelihood of success on the merits of at least some of their claims….

Faced with imminent harm, Plaintiffs presented Defendants with a simple question: why must we remain closed? Defendants answered with a blanket "trust us" statement that is insufficient to uphold a no-longer-blanket rule. The Court will grant Plaintiffs' motion and enjoin enforcement of ¶ 12(b) of Executive Order 2020-110.

Because of the way Governor Whitmer has set up the system of Executive Orders, when gyms reopen, they will be subject to the requirements set out in the operative workplace standards Order.   Thus, the Court need not edit or amend any of Governor Whitmer's practices, and the operation of gyms will begin in a modified manner that the Governor's office has deemed appropriate through the issuance of EO 2020-114. Further, the Court does not wish to "flip the switch" and open gyms immediately, as that would be inconsistent with  Governor  Whitmer's  practice. {For example, when Governor Whitmer announced that gyms would be allowed to open in part of the state, she did so on June 5 with an effective date of June 10. See EO 2020-110. The Court wishes to extend the same "grace period" to gyms in the remainder of the state.}

I'm not sure this is right, given the Supreme Court precedent allowing governments broad selectivity in deciding which facets of a problem to address first, see FCC v. Beach Communications, Inc. (1993) (quoting Williamson v. Lee Optical of Oklahoma (1955)):

The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.

(The same Equal Protection Clause rules apply to executive action as to legislative action.) And the state has sought a stay pending appeal, which the plaintiffs must respond to by 10 am Monday; presumably if it doesn't get a stay, it will seek emergency relief from the Court of Appeals, which it might be get. Still, the district court decision is worth noting.


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