MCA Members and Colleagues,
During this pandemic virus situation, the MCA has been tasked with navigating a never before seen industry situation. I am determined to continue the fight for our rights as operators as well as using the silver linings to make the MCA better for its members. As an operator, I want better lines of communication and usefulness in resources. I welcome our new resource in a newly launched MCA Facebook page for a social media presence. Please allow me to explain what we’re doing and why we’re doing it. The MCA has filed legal action in the State of Michigan where legal restrictions impacting our members have been the greatest in our region.
The majority of the other cases filed in the federal cases sought emergency injunctive relief and lost. We could easily take the same tactic, but we would likely lose, not because of the lack of merit in our position, but because the standard for obtaining emergency injunctive relief is very high. This is why the other plaintiffs in the other federal cases have had problems—when the plaintiffs moved for immediate injunctive relief, they had the burden. The state had no burden; and was able to easily move away from the action.
Again, our goal is to put pressure on the Governor and to try our best to obtain a ruling that the executive orders released have been unconstitutional under the United States Constitution. Our case is a matter of federal law, not state law. The MCA has obtained an agreement from the State of Michigan Assistant AG to respond to our complaint on or before June 5, 2020. As such, the burden is now placed on the Governor to either answer our case or move to dismiss. We have every reason to believe that the Governor will move to dismiss our case and will ask for a speedy hearing.
Our concerned members must understand our tactic: The State of Michigan now has the burden to prove why our case has no merit. This is a very high burden. We now are in the position to file our brief in response to the Governor’s motion, but the Governor has the burden, not us. If the Governor files her answer to our complaint, we get to take discovery—which again, puts pressure on the Governor. If this becomes the case, it is very likely that the Governor will push to settle. She, of course, may not try and settle, but I doubt that she would want our case to continue.
As for the Legislature’s case—this was a matter limited only to Michigan state law—not the United States Constitution. Federal courts, in general, do not decide matters of state law against a state or state official. We could have filed our own “state law” claims in the Court of Claims too—but that would have required additional costs and fees and expense to our loyal members’ dues. Spending the association’s money is something that is never taken lightly.
The Legislature conceded that Covid-19 was an emergency. Judge Stephens sped up the hearing for a number of reasons, including mootness, and including the Legislature’s immediate need to be included in the process. Yes, the Legislature moved for immediate relief, which was risky, but also necessary given the nature of the state claims, the concession of Covid-19, and the supposed May 28, 2020 expiration of the emergency declaration. But the Legislature also has deep pockets and it presumably has a huge budget to take its case through the appellate courts.
Unlike the Legislature, we are not conceding the Covid-19 emergency. That’s why we put so much work into the data. As such, I don’t believe that we have wasted our resources with the amicus brief, especially since the Governor has magically decided to open the northern half of the state. By filing the amicus brief, we effectively obtained two venues and we will reap the benefit of a favorable decision from the Court of Claims. But even if the Court of Claims rules against the Legislature, such a ruling will not impact the legal analysis of our federal claims. Again, by forcing the Governor to respond in the manner that we did, gives us the best advantage in our legally guided opinion.
The MCA has been by you step by step. The process has been slow going, yet meticulous and always concerned about the long term health of our industry and in particular, the MCA operator. Without the operator, where would we be?
Michigan, Ohio, Indiana, Illinois and Wisconsin: we are here. We hear you. We will fight for you.
-MCA President, Joe Chatel & MCA Board of Directors
We also want to continue to share a resources page that the ICA has put together here.
