That order prohibited the operation of private landscapers, garden nurseries, and other businesses in an attempt to curb the spread of COVID-19.
The Michigan Nursery and Landscape Association (MNLA) and five landscaping, lawn care, and retail garden businesses filed the class-action lawsuit Friday in the U.S. District Court for the Western District of Michigan.
“While we fully support the Governor’s focus on keeping people safe, ours is an outdoor industry and one that can get Michiganders back to work safely,” MNLA Executive Director Amy Upton said in a statement.
“Every state in the nation except Michigan recognizes our ability to work safely and allows our industry to stay open. The other states’ approach makes sense. It’s easy to mow the lawn, trim trees, install plantings, and sell plants and seeds for curbside pickup without person-to-person contact.”
Upton said the industries are “a family’s frontline defense” against insects and ticks that spread Lyme’s diseases, West Nile, and encephalitis that could result in unnecessary visits to the emergency room.
Attorney John Bursch, of Bursch Law PLLC, told The Center Square that the lawsuit seeks to bring a little “commonsense” to the stay-at-home order.
The lawsuit claims the order violates the Commerce Clause “because the burden it imposes on interstate commerce clearly outweighs the Order’s ‘putative local benefits.’”
“Here, there’s almost no benefit to the state,” Bursch said. “These businesses and their employees can operate without spreading the virus. Conversely, it’s causing hundreds of millions, if not billions of dollars in damage to these businesses and the industries that they’re in.”
The lawsuit states the order caused Welton Lawn Care in Highland to lay off 10 out of 12 employees and lose about 100 customers and $140,000 in payments and inventory.
Wiegand's Nursery sold more than $10 million of goods from April to June in 2019, the lawsuit says.
The order doesn’t expire until May 1.
The suit says the order violates the Due Process Clause of the U.S. Constitution and treats businesses unequally.
For example, the order allows curbside pickup of legal marijuana, fast food, and alcohol, but not of seeds and plants from retail garden centers.
At least two other federal lawsuits have challenged parts of the order.
The lawsuit asks the court for an emergency order to allow the plaintiff’s businesses to reopen immediately and for damages from lost business.
The lawsuit's brief says that by allowing government employees to mow and trim while banning private companies from the same work, “the Order itself undercuts the argument that there is any rational relationship between closing Plaintiffs’ businesses/employer and stopping the spread of COVID-19.”
The Whitmer administration didn’t respond to The Center Square’s request for comment.