Resurrection Sch. v. Hertel
| Decision Date | 03 November 2021 |
| Docket Number | 1:20-cv-1016 |
| Citation | 569 F.Supp.3d 658 |
| Parties | RESURRECTION SCHOOL, et al., Plaintiffs, v. Elizabeth HERTEL, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Erin E. Mersino, Robert Joseph Muise, American Freedom Law Center, Ann Arbor, MI, for Plaintiffs.
Daniel John Ping, Joseph T. Froehlich, Raymond O. Howd, MI Dept. Attorney General(Health/Education/Family Srvcs), Education & Social Services Division, Lansing, MI, for DefendantRobert Gordon.
Ann Maurine Sherman, Jennifer Rosa, Rebecca Ashley Berels, MI Dept. Attorney General(Enra-Lansing), Environment, Natural Resources & Agriculture Division, Lansing, MI, for DefendantDana Nessel.
Bonnie G. Toskey, Sarah Kay Osburn, Cohl Stoker & Toskey, P.C., Lansing, MI, for DefendantsLinda S. Vail, Carol A. Siemon.
Paul L. Maloney, United States District JudgeThis matter is before the Court on Plaintiffs’ motion for preliminary injunction(ECF No. 32).Plaintiffs seek to enjoin DefendantLinda Vail, Ingham County Health Officer, and DefendantCarol Siemon, Ingham County Prosecutor, from enforcing an Ingham County Health Department emergency order requiring all persons in educational settings to wear face coverings ("masks").This Court previously denied Plaintiffs’ motion for a temporary restraining order, which sought the same relief (ECF No. 32).1
This case commenced in October 2020 when the Plaintiffs, Resurrection School and two parents on behalf of their children who attend Resurrection School, petitioned this Court for a temporary restraining order (TRO) and preliminary injunction (ECF No. 7) seeking to enjoin Defendants2 from enforcing a Michigan Department of Health and Human Services(MDHHS) order requiring children grades K–5 to wear face coverings throughout the school day.This Court denied both the TRO and the preliminary injunction (ECF Nos. 11, 24), and Plaintiffs appealed to the Sixth Circuit.In August 2021, the Sixth Circuit affirmed the denial of Plaintiffs’ motions for injunctive relief.SeeResurrection Sch. v. Hertel , 11 F.4th 437(6th Cir.2021);ECF No. 30.
Then on September 3, 2021, Plaintiffs filed another emergency motion for TRO, this time seeking to enjoin an Ingham County Health Department emergency order (the "emergency order") requiring "all persons in educational settings" to wear facial coverings while inside enclosed buildings.3There are five exceptions to the emergency order.It does not apply to: (1)people eating, drinking, or napping; (2)people under the age of four years old; (3)people with developmental conditions where the use of a face covering would inhibit their access to education (these people must have an Individualized Education Plan or the equivalent); (4) vaccinated teachers who are working with children with hearing issues or students with developmental conditions who benefit from facial cues; and (5)people who have a medical contraindication confirmed in writing from an MD or DO.There is no exemption regarding religious beliefs.
Plaintiffs argue that the emergency order violates their right to free exercise of religion because forcing children to wear masks in school inhibits their Catholic education and sincerely held religious beliefs (seeECF No. 33 at PageID.839).They raise three arguments in an attempt to distinguish the current request for injunctive relief from their previous request and show why they are now more likely to succeed on the merits: (1) the emergency order targets Catholic and private schools, (2) the emergency order does not pass strict scrutiny under Fulton v. City of Philadelphia , ––– U.S. ––––, 141 S. Ct. 1868, 210 L.Ed.2d 137(2021), and (3) the emergency order is not generally applicable because it only applies to schools and not all public spaces (ECF No. 33 at PageID.835-36).
In the order denying the TRO (ECF No. 35), this Court relied heavily on the Sixth Circuit's opinion affirming the denial of Plaintiffs’ first motion for injunctive relief.SeeResurrection Sch. , 11 F.4th at 437;ECF No. 30.First, regarding Plaintiffs’ second argument, Plaintiffs already raised the issue of whether a mask mandate with exemptions violates Fulton.141 S. Ct. at 1868.The Sixth Circuit held that the exemptions in the MDHHS order4 were not comparable to the discretionary exemptions in Fulton .SeeResurrection Sch. , 11 F.4th at 458-59;ECF No. 30 at PageID.822.The Commissioner in Fulton could grant exemptions in her "sole discretion" while the exemptions in the MDHHS order provided for no discretion.Thus, when considering the Plaintiffs’ motion for TRO, this Court followed the Sixth Circuit's reasoning because the exemptions in the emergency order also provide for no discretion, and the exemptions5 in the emergency order are even more narrow than the exemptions that were in the MDHHS order.
Next, this Court rejected Plaintiffs’ argument in their motion for TRO that the emergency order was not generally applicable, also based on the previous Sixth Circuit opinion in this case.SeeResurrection Sch. , 11 F.4th at 437;ECF No. 30.Plaintiffs argue that the emergency order is not generally applicable because it only applies to schools, and not to all public spaces (ECF No. 33 at PageID.841).The Sixth Circuit already considered this argument in this case and held that the appropriate comparable secular activity was "public and private nonreligious schools,"Resurrection Sch. , 11 F.4th at 458;ECF No. 30 at PageID.821, not all public spaces, as Plaintiffs continue to argue.Thus, this argument was also rejected by this Court.
Finally, returning to Plaintiffs’ first argument in their motion for TRO, Plaintiffs asserted that the emergency order specifically targets religious schools because Defendant Vail stated that "97% of students in public schools are already attending a district where masks have been required."See Washtenaw, Ingham Counties Issue Mask Orders for Schools , Detroit News (Sept. 2, 2021), https://www.detroitnews.com/story/news/education/2021/09/02/michigan-school-mask-orders-covid-health-departments/5694030001/.Plaintiffs wanted the Court to infer that because 97% of public-school students were already required to wear masks, the emergency order was then directed at religious schools.But Plaintiffs’ argument failed because the emergency order created a uniform mandate for all schools and students, whether they go to school at a public school, private-religious school, private-non-religious school, vocational school, charter school, etc.Thus, this Court declined to issue a TRO enjoining the emergency order.The Court must now consider whether a preliminary injunction is warranted.
A trial court may issue a preliminary injunction under Federal Rule of Civil Procedure 65.A district court has discretion to grant or deny preliminary injunctions.Planet Aid v. City of St. Johns, Mich. , 782 F.3d 318, 323(6th Cir.2015).A court must consider each of four factors: (1) whether the moving party demonstrates a strong likelihood of success on the merits; (2) whether the moving party would suffer irreparable injury without the order; (3) whether the order would cause substantial harm to others; and (4) whether the public interest would be served by the order.
Ohio Republican Party v. Brunner , 543 F.3d 357, 361(6th Cir.2008)(quotingNortheast Ohio Coalition for Homeless & Service Employees Int'l Union v. Blackwell , 467 F.3d 999, 1009(6th Cir.2006) ).
The four factors are not prerequisites that must be established at the outset but are interconnected considerations that must be balanced together.Northeast Ohio Coalition , 467 F.3d at 1009;Coalition to Defend Affirmative Action v. Granholm , 473 F.3d 237, 244(6th Cir.2006)."A preliminary injunction is an extraordinary remedy which should be granted only if the movant carries his or her burden of proving that the circumstances clearly demand it."Overstreet v. Lexington-Fayette Urban County Gov't , 305 F.3d 566, 573(6th Cir.2002)(internal citation omitted);seePatio Enclosures, Inc. v. Herbst , 39 F. App'x 964, 967(6th Cir.2002)(citingLeary v. Daeschner , 228 F.3d 729, 736(6th Cir.2000) ).
The purpose of a preliminary injunction is to preserve the status quo.Smith Wholesale Co., Inc. v. R.J. Reynolds Tobacco Co. , 477 F.3d 854, 873 n. 13(6th Cir.2007)(quotingUnited States v. Edward Rose & Sons , 384 F.3d 258, 261(6th Cir.2004) ).The Sixth Circuit has noted that "[a]lthough the four factors must be balanced, the demonstration of some irreparable injury is a sine qua non for issuance of an injunction."Patio Enclosures , 39 F. App'x at 967(citingFriendship Materials, Inc. v. Michigan Brick, Inc. , 679 F.2d 100, 105(6th Cir.1982) ).
The likelihood of success on the merits of Plaintiffs’ claim hinges in significant measure on the standard of review that this Court must apply given existing appellate authority."If a protected class or fundamental right is involved, [the court] must apply strict scrutiny, but where no suspect class or fundamental right is implicated, [the court] must apply rational basis review."Midkiff v. Adams Cty. Reg'l Water Dist. , 409 F.3d 758, 770(6th Cir.2005).A law that discriminates against religious practices will usually be invalidated under strict scrutiny because the law likely cannot be justified by a compelling interest and is narrowly tailored to advance that interest.SeeRoberts v. Neace , 958 F.3d 409, 413(6th Cir.2020)(quotingChurch of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 553, 113 S.Ct. 2217, 124 L.Ed.2d 472(1993) ).But if a fundamental right, such as the right to practice religion, is incidentally burdened due to a neutral and generally applicable government policy, rational basis applies, and the law will usually be...
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