June 16, 2020


Kelly Dunbar and Thomas Sprankling, WilmerHale LLP

In response to the spread of COVID-19, a number of state governors and other executive branch officials claimed emergency powers to enact comprehensiveshelter-in-place policies.  We wrote a post last month on potential intergovernmental litigation, i.e., litigation between different States or between States and the federal government, over these stay-at-home orders.  This post covers intragovernmental litigation.  Unable to shape the scope of emergency orders through normal political processes, state legislators and local governments alike have filed lawsuits trying to strike down the orders in full or in part—with mixed success.

These suits will continue to be a mechanism for challenging the authority of existing shelter-in-place orders—and potential future COVID-19 measures.  While the orders targeted by the intragovernmental lawsuits discussed below are already in the process of being lifted across the country, a numberofStates have adopted laws regarding face-masks or other prophylactic measures.  And commentatorshave already begunto speculate that another round of shelter-in-place orders may be necessary if a second wave of COVID-19 emerges in the fall and winter.  These measures, and legal challenges to them, will continue to be important to businesses navigating the challenges of reopening.

Examples Of Three Types Of Intra-Governmental Lawsuits

1. Local government suits against States.  When California Governor Newsom adopted basic shelter-in-place rules that govern the entire State, he left some discretion in the hands of counties regarding how and when to reopen their local economies.  Despite this general approach, the Governor in late April ordered the closure of all beaches in Orange County and nowhere else in the state.  In response, the Cities of Huntington Beach and Dana Point (joined by several private businesses) filed suit, seeking an injunction against the enforcement of the order under the theory that they had a “constitutionally protected right and authority to make their own decisions regarding the status of their beaches.”

Although the litigation garnered significant media attention, its sense of urgency was undercut when Governor Newsom ordered the beaches reopened just days later.  The cities continued the lawsuit, but it was dismissed several weeks later—in part because the court was unwilling to “adjudicate a closure no longer in effect.”

2. Individual state lawmaker suits against States.  Also in late April, a single Representative to the Illinois State House filed suit challenging Governor Pritzker’s shelter-in-place order.  The suit sought to enjoin enforcement of the statewide order, on the ground that it improperly interfered with his right to travel.  While the state trial court ultimately granted the requested relief, its order applied only to the Representative and no one else—apparently because the Representative brought suit under his own name and not on behalf of a larger class. 

The Representative subsequently filed a new suit seeking broader relief, which is currently pending in federal court.  As part of a DOJ policy announced in April, the federal government has filed a brief on the Representative’s behalf, urging that the case be sent back to state court or that the federal court rule in his favor.  

3. Groups of state lawmakers.  Finally, several groups of state lawmakers—making up a majority of their respective chambers—have filed suit in States like Wisconsin and Michigan.  In Michigan, for example, the state House and Senate filed suit against Governor Whitmer, claiming that she lacked statutory authority to extend a shelter-in-place order without the support of the legislature.  The state trial court rejected the challenge, but several aspects of the statewide order subsequently expired.  Just last week, the Michigan Supreme Court declined the legislature’s invitation to intervene prior to the normal appeals process; one dissenting Justice suggested that the “consequence” of the decision is that the Supreme Court will likely “never issue[] a meaningful decision” on the substance of the lawsuit.

The lawsuit brought by Wisconsin’s legislature, on the other hand, met with a different outcome.  The legislature filed a petition directly with the Wisconsin Supreme Court under a rule that gives the Supreme Court direct review over suits by legislators claiming “that a member of the executive branch invaded the Legislature’s core powers.”  The Court struck down significant portions of the statewide shelter-in-place order, on the theory that it exceeded the state health director’s statutory authority.  As a result of the decision, a number of small businesses and restaurants were able to reopen immediately.

Three Takeaways

Intragovernmental lawsuits will likely continue to shape the scope and nature of reopening efforts in States across the country.  As the examples above demonstrate, there are three takeaways:

  • While the fast-moving nature of the COVID-19 epidemic will sometimes make it difficult for aggrieved parties to receive judicial relief before a policy changes, such suits may still place political pressure on the executive branch, as the California example suggests. 
  • The fast-changing landscape places greater-than-usual importance on which side prevails in an initial hearing.  In Michigan, the legislature’s loss in the state trial court (coupled with the state Supreme Court’s unwillingness to intervene) means that it may not get another opportunity to appear before a judge until after many of the challenged restrictions have been lifted. 
  • The scope of relief sought (and the identity of the plaintiffs) matters, as the contrast between the Illinois legislator’s lawsuit and the Wisconsin legislature’s suit highlights. 

These suits are worthy of continued attention.

Kelly Dunbar and Thomas Sprankling are partners at WilmerHale LLP.