Kimberly Beemer v. Gretchen Whitmer

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 22, 2022
• Docket: 22-1232
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 22a0381n.06

No. 22-1232

UNITED STATES COURT OF APPEALS FILED Sep 22, 2022 FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk

KIMBERLY BEEMER; ROBERT JOSEPH ) ) MUISE, ) Plaintiffs-Appellants, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE WESTERN GRETCHEN WHITMER, in her official ) DISTRICT OF MICHIGAN capacity as Governor for the State of Michigan; ) DANA NESSEL, in her official capacity as the ) Attorney General for the State of Michigan, OPINION ) Defendants-Appellees. ) )

Before: SUTTON, Chief Judge; DONALD and MURPHY, Circuit Judges.

BERNICE BOUIE DONALD, Circuit Judge. We are once again faced with legal

challenges to the executive orders issued by Michigan Governor Gretchen Whitmer during the

global COVID-19 pandemic. Like most states during the pandemic, the State of Michigan issued

a stay-at-home order to combat the opening surge of the virus. The order mandated a temporary

suspension of all activities deemed not essential to sustain or protect life. Among those activities

were extended family gatherings, recreational travel within the state, and the operation of firearm

stores. Alleging several constitutional deprivations, two Michigan residents, Kimberly Beemer

and Robert Muise, brought suit against Whitmer and other state officials to block the order. Eight

days later, Whitmer rescinded the order, and the district court terminated the action as moot. On No. 22-1232, Beemer, et al. v. Whitmer, et al.

appeal, the plaintiffs assert two well-known (and, unfortunately for them, well-litigated)

exceptions to the mootness doctrine. For the following reasons, we affirm.

I.

On March 10, 2020, the Michigan Department of Health and Human Services identified

the first two presumptive-positive cases of COVID-19 in the state. That same day, Governor

Whitmer declared a “state of emergency” pursuant to the Emergency Powers of the Governor Act

of 1945 (the “EPGA”) and the Emergency Management Act of 1976 (the “EMA”). Over the

following weeks, the number of positive cases surged. By April 8, 2020, the state had reported

20,346 confirmed cases of COVID-19 and 959 deaths from it.

On April 9, 2020, Whitmer issued Executive Order 2020-42 (“EO 2020-42”), the second

iteration of her “Stay Home, Stay Safe” order.1 She again cited the EPGA and the EMA as

authority. The stated purpose of EO 2020-42 was “[t]o 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[.]”

R. 25-1, Page ID#: 419.

The order provided, in pertinent part:

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. ... 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

1 Whitmer issued the first iteration of her “Stay Home, Stay Safe” order, Executive Order 2020-21, seventeen days prior on March 23, 2020. 2 No. 22-1232, Beemer, et al. v. Whitmer, et al.

activity includes walking, hiking, running, cycling, kayaking, canoeing, or other similar physical activity[.] (2) To perform their jobs as critical infrastructure workers[.] ... (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). ... (6) To obtain necessary services or supplies for themselves, their family or household members, their pets, and their vehicles. ... (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. ... (c) All other travel is prohibited, including all travel to vacation rentals.

Id. at Page ID#: 419-22. The order took effect on “April 9, 2020 at 11:59 pm” and, by its terms,

“continue[d] through April 30, 2020 at 11:59 pm.” Id. at Page ID#: 427. However, Whitmer

avowed to “evaluate the continuing need for this order prior to its expiration.” Id. Of particular

importance, Whitmer would consider “(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.” Id.

As residents of Michigan, the plaintiffs found themselves directly within the scope of these

provisions; Kimberly Beemer had to cease all recreational travel to her in-state, lake cottage, and

Robert Muise could no longer patronize local gun shops and ranges. On April 15, 2020, two weeks

after the issuance of EO 2020-42, the plaintiffs brought suit against Whitmer and other state

officials, alleging that the restrictions imposed by EO 2020-42 violated several constitutional

rights, including those under the Due Process Clause, Equal Protection Clause, First Amendment,

3 No. 22-1232, Beemer, et al. v. Whitmer, et al.

and Second Amendment. They sought both a declaratory judgment and permanent injunctive

relief from the order.

On April 24, 2020, Whitmer issued Executive Order 2020-59 (“EO 2020-59”) to rescind

EO 2020-42. When the plaintiffs continued to push forward with their claims, the Michigan

officials moved to dismiss the action on mootness grounds. During the pendency of the motion,

the Supreme Court of Michigan held that the EPGA violated the nondelegation doctrine of the

Michigan Constitution and concluded that the EMA could not provide a basis to issue executive

orders relating to the COVID-19 pandemic after April 30, 2020. See In re Certified Questions

from the U.S. Dist. Ct., W. Dist. of Mich., S. Div., 958 N.W.2d 1 (Mich. 2020). This decision,

coupled with the governor’s recission of EO 2020-42, provided the district court reason to dismiss

both the motion and the complaint as moot. This timely appeal followed.

II.

“Article III of the United States Constitution limits the federal judicial power to ‘Cases’

and ‘Controversies.’” Radiant Glob. Logistics, Inc. v. Furstenau, 951 F.3d 393, 395 (6th Cir.

2020) (citing U.S. Const. art. III, § 2, cl. 1). “A case becomes moot—and therefore no longer a

‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer

“live” or the parties lack a legally cognizable interest in the outcome.’” Already, LLC v. Nike, Inc.,

568 U.S. 85, 91 (2013) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982)). Thus, “[i]f events

occur during the case . . . that make it ‘impossible for the court to grant any effectual relief whatever

to a prevailing party,’ the [matter] must be dismissed as moot.” Fialka-Feldman v. Oakland Univ.

Bd. of Trs., 639 F.3d 711, 713 (6th Cir. 2011) (quoting Church of Scientology v. United States,

506 U.S. 9, 12 (1992)). “We review de novo a district court’s decision regarding mootness.”

Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 530 (6th Cir. 2001).

4 No. 22-1232, Beemer, et al. v. Whitmer, et al.

On April 24, 2020, Whitmer issued a new executive order, EO 2020-59, that lifted the

stay-at-home order. The parties stipulated that EO 2020-59 did not prohibit the same activities

that formed the basis of their complaint. And the district court found that “the Michigan Supreme

Court’s ruling eliminated all reasonable possibilities that Whitmer could extend the state of

emergency and reinstitute the restrictions about which Plaintiffs complain[ed].” R. 47, Page

ID#: 1336. Accordingly, the court determined that it could not grant any effectual relief to the

plaintiffs, and “there no longer exist[ed] a ‘substantial controversy . . . of sufficient immediacy and

reality to warrant the issuance of a declaratory judgment.’” Id. at Page ID#: 1336-37 (emphasis

in original) (citing Thompson v. DeWine, 7 F.4th 521, 524 (6th Cir. 2021)). While the plaintiffs

do not dispute these factual findings, they contend that two exceptions can salvage their claims:

(1) capable of repetition yet evading review and (2) voluntary cessation.

The plaintiffs are up against an insurmountable wealth of case law. We first explored these

issues in League of Independent Fitness Facilities and Trainers, Inc. v. Whitmer, 843 F. App’x

707 (6th Cir. 2021). In that case, a trade organization for fitness facilities challenged executive

orders mandating the closure of indoor gyms. However, on appeal, the parties agreed that two

subsequent events rendered the matter moot. Id. at 709. First, the governor had issued a new

executive order that lifted the prior restrictions on indoor fitness facilities, and therefore, we could

not grant any effectual relief. Id. Second, “[e]ven if [the governor] wanted to reenact the

challenged executive orders, the Supreme Court of Michigan has held that she lacks such

authority.” Id. For these reasons, we concluded that the appeal was moot and declined to address

the merits of the preliminary injunction request.

We have since reaffirmed that holding. Once in Thompson v. Whitmer, No. 21-2602, 2022

WL 168395 (6th Cir. Jan. 19, 2022), and again in Midwest Institute of Health, PLLC v. Whitmer,

5 No. 22-1232, Beemer, et al. v. Whitmer, et al.

Nos. 21-1611/1650, 2022 WL 304954 (6th Cir. Feb. 2, 2022). In Thompson, a group of Michigan

residents challenged dozens of executive orders that closed in-state businesses and directed

residents to stay home. Although the residents may have alleged an injury at the start of the

litigation, we found that the governor’s decision to rescind the executive orders eliminated the

injury. Id. at *4. We acknowledged that “whether the governor’s voluntary decision to rescind

the order by itself sufficed to prove that she was not reasonably likely to reissue a similar order

might have raised a difficult mootness question.” Id. (emphasis in original). However, citing

League of Independent Fitness Facilities, we determined that the Michigan Supreme Court’s

decision which found that “the governor lacked authority to issue any of the executive orders under

Michigan law [made] it absolutely clear the allegedly wrongful behavior could not reasonably be

expected to recur.” Id. (internal quotations omitted). We accordingly held that “the combined

effect of the governor’s decision rescinding the executive orders and the Michigan Supreme

Court’s decision finding them invalid” rendered the case moot without exception. Id.

Similarly, in Midwest Institute of Health, a group of healthcare providers challenged

executive orders postponing non-essential medical care. We found that the plaintiffs sought “a

declaratory judgment with respect to specific orders, orders the Governor and Director [of the

Michigan Department of Health] withdrew after the Michigan Supreme Court ruled,” and

therefore, the complaint no longer presented live issues. Midwest Inst. of Health, 2022 WL

304954, at *2. We further determined, “Any suggestion that the Governor might reenact materially

identical orders withers under the light of the Michigan Supreme Court’s ruling that she may not.”

Id. We likewise concluded that the declaratory judgment counts were moot without exception. Id.

We most recently visited the issues in Resurrection School v. Hertel, 35 F.4th 524 (6th Cir.

2022) (en banc). There, a private religious elementary school challenged executive orders

6 No. 22-1232, Beemer, et al. v. Whitmer, et al.

requiring masks in public settings. Although the state later rescinded the mask mandate, the school

argued that two exceptions applied to evade the mootness doctrine—voluntary cessation and

capable of repetition yet evading review. Id. at 528. With respect to voluntary cessation, we

expounded upon our previous holdings and found that three circumstances hindered any

reasonable possibility of the challenged conduct reoccurring: (1) the relevant circumstances had

dramatically changed since the imposition of the statewide mask mandate, including high

vaccination rates, low case counts, new treatment options, and warmer weather; (2) the state

rescinded the mandate in response to the changed circumstances of the pandemic, not in response

to the lawsuit; and (3) the Supreme Court and other courts have since ruled on the constitutionality

of a number of COVID-19 mandates and restrictions. Id. at 529. We further determined that the

capable-of-repetition-yet-evading-review exception was inapposite for largely the same reasons,

again citing the advancements made to combat COVID-19. Id. at 530. For those reasons, we held

that the appeal was “palpably” moot. Id.

In a separate concurrence, Judge Moore identified three additional considerations for

review: (1) the approval of a vaccine for school-aged children; (2) the refusal to impose new

mandates during subsequent spikes in COVID-19 caused by the Delta and Omicron variants; and

(3) the one-year lapse without a similar mask mandate. Id. at 530-31. With no viable prospect of

the state reimposing a similar order, Judge Moore agreed that the appeal was moot.

These same considerations hold true here; the stay-at-home order has long been rescinded,

and the plaintiffs 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 plaintiffs’ claims are moot.

III.

For these reasons, the district court’s judgment is AFFIRMED.