35.  On March 10, 2020, Governor Whitmer declared a state of emergency throughout  the State of Michigan by issuing Executive Order 2020-4. The emergency relates to the spread of  COVID-19, a public-health emergency as recognized by the World Health Organization and the  United States Center for Disease Control and Prevention.   36.  Since then, Governor Whitmer has issued several dozen additional executive orders  related to COVID-19. The orders that resulted in this litigation are 2020-21 and 2020-42.   38.  Governor Whitmer’s Executive Order 2020-42, attached as Exhibit 2, took effect  on April 9, 2020. The Order extended the timeline in Order 2020-21 and greatly expanded the  Michigan government’s restriction on the ability of businesses to operate.   39.  Executive Order 2020-42 notes that the Governor considers the Order’s  prohibitions to be “necessary to protect life and property or to bring the emergency situation within  the affected area under control” under MCL 10.31(1). In other words, the Order’s adverse impact  on private businesses is for a public purpose.   40.  Under Paragraph 4 of Executive Order 2020-42, “No person or entity shall operate  a business or conduct operations that require workers to leave their homes or places of residence  except to the extent that those workers are necessary to sustain or protect life or to conduct  minimum basic operations.”   42.    Even while prohibiting the commercial services that Plaintiffs provide, Executive  Order 2020-42 tacitly concedes that such services do not create a public-health risk by authorizing  those same activities to be performed by government employees.   43.  In Paragraph 6(b) of the Order, the Governor allows “[a]ll in-person government  activities at whatever level (state, county, or local)” that involve “the maintenance of safe and  sanitary public parks so as to allow for outdoor activity.”   44.  This means that a county employee may mow grass, apply pesticides, cut back  obstructive trees and shrubbery, and the like.   45.  As the above-quoted FAQ makes clear, homeowners can engage in these same  activities if tending to their own yards.   46.  Such authorized activities make perfect sense. Unlike in-person purchasing of  alcohol, tobacco, or lottery tickets, all of which will require some person-to-person interaction at  a store—such as checking a customer’s age on a government-issued ID—mowing the lawn,  trimming foliage, and planting shrubbery can easily take place (and typically do) with no person- to-person contact whatsoever.   47.  Similarly, because Executive Order 2020-42 does not prohibit online purchases, a  private homeowner could purchase plants and other landscaping materials online, have those  products to delivered to their home, and install the plants and other materials without issue. But  the Order prohibits the same homeowner from engaging in the exact same activity if it involves  purchasing plants and landscaping materials at a local brick-and-mortar retail garden center, even  if the center has arranged for curbside pickup.   49.  Any business that violates Executive Order 2020-42 is subject to severe fines and  penalties, even those that could operate with appropriate social distancing and other measures to  mitigate the spread of COVID-19, including appropriate work conditions and precautions when  obtaining fuel at a gas station.  Further, the office of Attorney General Nessel has communicated  its intent to enforce the Order.  The impact on Plaintiffs   50.  Because of its threat of fines and criminal penalties, Executive Order 2020-42 shuts  down lawn care, landscaping, and retail-garden businesses altogether.  Plaintiff companies and  similarly situated businesses have lost the ability to use their real and personal property in any  economically beneficial manner. Plaintiff employees have lost their ability to work at their jobs  and receive their regular pay and health benefits.   51.  Spring and early summer are particularly damaging times for these businesses to  be closed. Unlike other businesses that provide goods and services year round, landscapers, lawn- care companies, and retail garden centers have a defined work season that begins in earnest  approximately March 15th of each year and ends in late October.   52.  Plaintiffs, collectively and as representatives of their respective classes, are losing  hundreds of millions of dollars in inventory and business opportunities as a result of the Governor’s  actions. They are also experiencing harm to their reputations and their relationships with  employees, vendors, and customers   53.  The State of Michigan has not offered Plaintiffs or similarly situated businesses  appropriate compensation for this total seizure of their businesses.   55.  There are additional constitutional problems with Executive Order 2020-42.   56.  The Order is not neutral because some private businesses enjoy exemption from the  Order and other businesses with the same characteristics do not.   57.  The Order does not apply equally to all private businesses.   58.  The Order does not differentiate between those private businesses containing a  heightened risk of viral transfer—such as restaurants, bars, and other in-person services—and  those private businesses which are not likely to perpetuate viral spread.   59.  In fact, the Order allows many of these high-spread businesses to stay open if the  business adopts measures—such as those already used by Plaintiffs—to limit customer contacts.  So while it continues to be permissible for Michigan citizens to walk into a grocery or convenience  store to buy lottery tickets or alcohol, retail garden centers are prohibited from engaging in any  sales whatsoever, even for curbside pickup, involving no person-to-person interaction.   60.  Executive Order 2020-42 is not generally applicable because Defendants have  waived its application to many businesses.   61.  The Order is not generally applicable because it does not apply equally to all  businesses that can accomplish their purpose without in-person interactions with customers.   62.  The Order is not generally applicable because Defendants exempted certain private  businesses from its application arbitrarily.    63.  The Order is neither neutral or generally applicable because Defendants have  exempted certain private businesses that can accomplish their purpose without in-person contact,  but not Plaintiffs.   65.  The Order deprives Plaintiffs’ of their liberty without due process of law.  The  Order also infringes on Plaintiffs’ freedom of movement and fundamental right to travel.  Impact on the public   66.  Some members of the public are physically incapable of performing the  landscaping and lawn-care services that Plaintiffs provide. They hire Plaintiffs and similarly  situated companies and employees to provide these services for them.   67.  Because Executive Order 2020-42 prevents Plaintiffs from performing services,  these members of the public are left with few options.   68.  Notwithstanding all this, local governments are starting to issue citations for  property owners who cannot keep up with their yard work:  Request for an Injunction   70.  Preliminarily enjoining enforcement of Executive Order 2020-42 as applied to  Plaintiffs will not harm the State or its citizens.   71.  In addition, an injunction will further the public interest by ensuring that commerce  is not impaired by the prohibition on landscaping, lawn-care, and retail-garden services.   72.  As set forth fully in Plaintiffs’ Emergency Motion for Preliminary Injunction and  accompanying Memorandum in support, Plaintiffs are likely to succeed on their claims that the  Governor’s Order violates the Commerce Clause of the U.S. Constitution (U.S. Const. Art. I, Sec.  8, cl. 3); the Takings Clause of the Fifth Amendment to the U.S. Constitution; the Fourth  Amendment to the U.S. Constitution; the Due Process Clause of the Fourteenth Amendment to the  U.S. Constitution; and 42 U.S.C. § 1983.   Class action allegations   73.   Plaintiffs bring this action on behalf of themselves and as a class action, pursuant  to the provisions of Rule 23 of the Federal Rules of Civil Procedure and on behalf of the following  Classes:   74.  Class 1: All landscaping companies that perform services in the State of Michigan  and who have taken appropriate safeguards to ensure social distancing in the contracting for and  performance of landscaping services.   75.  Class 2: All lawn-care companies that perform services in the State of Michigan  and who have taken appropriate safeguards to ensure social distancing in the contracting for and  performance of landscaping services.   77.  Class 4: All Michigan businesses that have been unable to put to valuable use all  their real and personal property as a result of Executive Orders 2020-21 and 2020-42.  Numerosity: Fed. R. Civ. P. 23(a)(1)   78.  The members of the four proposed Classes are so numerous and geographically  dispersed that individual joinder of all Class members is impracticable. Plaintiffs believe that there  are hundreds of members of Classes 1-3 and many thousands of members of Class 4, the precise  number being unknown to Plaintiffs, but such number being ascertainable from Defendants’  records regarding entities licensed to do business in the State of Michigan. Class members may be  notified of the pendency of this action by recognized, Court-approved notice dissemination  methods, which may include U.S. mail, electronic mail, internet postings, and/or published notice.  Commonality and Predominance: Fed. R. Civ. P. 23(a)(2)   79.  This action involves common questions of law and fact that predominate over any  questions affecting individual Class members, including, without limitation:  a.  Whether Defendants have unlawfully prevented members of Classes 1-3 from  providing services and sales to customers and soliciting new business; and  b.  Whether Defendants have unlawfully prevented members of Class 4 from putting  to valuable use all their real and personal property without appropriate  compensation.  Typicality: Fed. R. Civ. P. 23(a)(3)   81.  Plaintiffs are adequate Class representatives because their interests do not conflict  with the interests of other members of the Classes they seek to represent. Plaintiffs have retained  counsel competent and experienced in complex litigation. And Plaintiffs intend to prosecute the  action vigorously. The Classes’ interests will be fairly and adequately protected by Plaintiffs and  their counsel.  Superiority: Fed. R. Civ. P. 23(b)(3)   82.  A class action is superior to any other available means for the fair and efficient  adjudication of this controversy. What’s more, no unusual difficulties are likely to be encountered  in the management of these class actions. The damages or other financial detriment suffered by  Plaintiffs and other Class members, while significant, are relatively small compared to the burden  and expense that would be required to individually litigate their claims against Defendants, so it  would be impracticable for members of the Classes to individually seek redress for Defendants’  wrongful conduct.   84.  Plaintiffs incorporate herein by reference the allegations in all preceding paragraphs  of this Complaint.   85.  The Commerce Clause of the United States Constitution reserves the power to  regulate interstate and foreign commerce to Congress.   86.  Because these powers are reserved to Congress, individual states may not unduly  burden interstate commerce.   87.  Governor Whitmer’s Executive Order 2020-42 imposes a burden on interstate  commerce and on Plaintiffs that is clearly excessive in relation to the putative local benefits.  Plaintiffs’ goods and services move in the flow of interstate commerce. And Plaintiffs’ businesses  impact the flow of interstate commerce.   88.  Where Plaintiffs are willing and able to provide landscaping, lawn-care, and retail- garden services with virtually no person-to-person contact and respecting social distancing, there  is nominal or no public benefit to preventing Plaintiffs from providing these services. Conversely,  Executive Order 2020-42 incapacitates these businesses, causing job loss, loss of business revenue,  and inevitably bankruptcy and permanent closure of valuable Michigan businesses.   90.  Accordingly, Executive Order 2020-42 is an unconstitutional regulation of  commerce and/or an undue burden on that commerce in violation of the Commerce Clause of the  United States Constitution.  91.  Plaintiffs incorporate herein by reference the allegations in all preceding paragraphs  of this Complaint.   92.  The Fourteenth Amendment provides that “[n]o State shall . . . deprive any person  of life, liberty, or property, without due process of law.”   93.  Plaintiffs have a right to travel and provide their businesses services, and to do so  without being treated unequally by the government.   94.  Executive Order 2020-42 is neither neutral nor generally applicable. It contains  substantial exemptions. And the Order, as applied to Plaintiffs, is not rationally related to the  State’s goal of preventing the spread of COVID-18.   95.  Plaintiffs have no adequate remedy at law for this continuing violation of their  constitutional rights.   96.  Plaintiffs are therefore entitled to declaratory and injunctive relief as well as  attorney fees and all other appropriate relief to vindicate the violation of their Fourteenth  Amendment right not to be subject to punishment by a vague statute.   98.  Governor Whitmer has seized without appropriate compensation the real and  personal property of businesses across the State by forcing closure of those businesses deemed  “non-essential.”   The Executive Orders   and 42 U.S.C. § 1983 (Classes 1-4)   and 42 U.S.C. § 1983 (Classes 1-3 only)   and 42 U.S.C. § 1983 (Classes 1-3 only)  