Original - Court 2nd copy - Plaintiff

Approved, SCAO 1st copy - Defendant 3rd copy - Return

STATE OF MICHIGAN CASE NO.

JUDICIAL DISTRICT
Court of Claims JUDICIAL CIRCUIT SUMMONS
COUNTY PROBATE
Court address Court telephone no.
925 West Ottawa Street, Lansing, MI 48909 517-373-0807
Plaintiff’s name(s), address(es), and telephone no(s). Defendant’s name(s), address(es), and telephone no(s).
LET THEM PLAY MICHIGAN, INC., a Michigan ELIZABETH HERTEL, in her official capacity as Director
non-profit corporation, MICHELLE MORAN, MARCY of the Michigan Department of Health and Human Services
MCCLELLAND and SHANNON BADGERGO v
Department of Health and Human Services
333 South Grand Avenue
PO Box 30195
Plaintiff’s attorney, bar no., address, and telephone no.
Lansing, Michigan 48909
Peter B. Ruddell (P63253)
HONIGMAN LLP
222 N Washington Square, Suite 400
Lansing, Michigan 48933
(517) 377-0711 - [email protected]

Instructions: Check the items below that apply to you and provide any required information. Submit this form to the court clerk along with your complaint and,
if necessary, a case inventory addendum (form MC 21). The summons section will be completed by the court clerk.

Domestic Relations Case

There are no pending or resolved cases within the jurisdiction of the family division of the circuit court involving the family or
family members of the person(s) who are the subject of the complaint.
There is one or more pending or resolved cases within the jurisdiction of the family division of the circuit court involving
the family or family members of the person(s) who are the subject of the complaint. I have separately filed a completed
confidential case inventory (form MC 21) listing those cases.
It is unknown if there are pending or resolved cases within the jurisdiction of the family division of the circuit court involving
the family or family members of the person(s) who are the subject of the complaint.

Civil Case
This is a business case in which all or part of the action includes a business or commercial dispute under MCL 600.8035.
MDHHS and a contracted health plan may have a right to recover expenses in this case. I certify that notice and a copy of
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the complaint will be provided to MDHHS and (if applicable) the contracted health plan in accordance with MCL 400.106(4).
✔
There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the
complaint.
A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has

been previously filed in  this court,  Court, where

it was given case number and assigned to Judge .

The action  remains is no longer  pending.

Summons section completed by court clerk. SUMMONS

NOTICE TO THE DEFENDANT: In the name of the people of the State of Michigan you are notified:
1. You are being sued.
2. YOU HAVE 21 DAYS after receiving this summons and a copy of the complaint to file a written answer with the court and
serve a copy on the other party or take other lawful action with the court (28 days if you were served by mail or you were
served outside this state).
3. If you do not answer or take other action within the time allowed, judgment may be entered against you for the relief
demanded in the complaint.
4. If you require special accommodations to use the court because of a disability or if you require a foreign language interpreter
to help you fully participate in court proceedings, please contact the court immediately to make arrangements.
Issue date Expiration date* Court clerk

*This summons is invalid unless served on or before its expiration date. This document must be sealed by the seal of the court.

MC 01  (9/19)  SUMMONS MCR 1.109(D), MCR 2.102(B), MCR 2.103, MCR 2.104, MCR 2.105
 SUMMONS
PROOF OF SERVICE Case No.
TO PROCESS SERVER: You are to serve the summons and complaint not later than 91 days from the date of filing or the date
of expiration on the order for second summons. You must make and file your return with the court clerk. If you are unable to
complete service you must return this original and all copies to the court clerk.

CERTIFICATE / AFFIDAVIT OF SERVICE / NONSERVICE

  OFFICER CERTIFICATE OR   AFFIDAVIT OF PROCESS SERVER
I certify that I am a sheriff, deputy sheriff, bailiff, appointed Being first duly sworn, I state that I am a legally competent
court officer, or attorney for a party (MCR 2.104[A][2]), adult, and I am not a party or an officer of a corporate
and that: (notarization not required) party (MCR 2.103[A]), and that: (notarization required)

I served personally a copy of the summons and complaint,

I served by registered or certified mail (copy of return receipt attached) a copy of the summons and complaint,

together with
List all documents served with the summons and complaint

on the defendant(s):
Defendant’s name Complete address(es) of service Day, date, time

I have personally attempted to serve the summons and complaint, together with any attachments, on the following defendant(s)
and have been unable to complete service.
Defendant’s name Complete address(es) of service Day, date, time
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I declare under the penalties of perjury that this proof of service has been examined by me and that its contents are true to the
best of my information, knowledge, and belief.
Miles traveled Fee
Service fee Signature
$ $

Incorrect address fee Miles traveled Fee TOTAL FEE Name (type or print)
$ $ $

Title

Subscribed and sworn to before me on , County, Michigan.

Date

My commission expires: Signature:

Date Deputy court clerk/Notary public

Notary public, State of Michigan, County of

ACKNOWLEDGMENT OF SERVICE
I acknowledge that I have received service of the summons and complaint, together with
Attachments

on
Day, date, time

on behalf of .
Signature
 STATE OF MICHIGAN
IN THE COURT OF CLAIMS

LET THEM PLAY MICHIGAN, INC., a

Michigan non-profit corporation; MICHELLE
MORAN, on behalf of herself and as parent
and guardian of Easton Moran, a minor; Case No. 21-______-MZ
MARCY MCCLELLAND, on behalf of
herself and as parent and guardian of Micayla Hon. _______________________
McClelland and Timothy McClelland, minors;
and SHANNON BADGERO, on behalf of
herself and as parent and guardian of Nataleigh
Badgero, a minor.

Plaintiffs, VERIFIED COMPLAINT

ELIZABETH HERTEL, in her official

capacity as Director of the Michigan
Department of Health and Human Services,

Defendant.

Peter B. Ruddell (P63253)

Kelli Mulder (P84441)
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Keith D. Underkoffler (P84854)

HONIGMAN LLP
Attorneys for Plaintiffs
222 N Washington Square, Suite 400
Lansing, MI 48933
312.701.9326
[email protected]
[email protected]
[email protected]

There is no other pending or resolved civil action arising out of the transaction or
occurrence alleged in this Verified Complaint. A civil action arising out of a related
transaction or occurrence was previously filed in this Court, where it was given
case number 21-000016-MZ and assigned to Judge Michael J. Kelly. That action
was voluntarily dismissed, without prejudice, and is no longer pending.

38586713.4
 VERIFIED COMPLAINT

Through their undersigned attorneys, Plaintiffs bring this Verified Complaint against

Defendant Elizabeth Hertel, in her official capacity as Director of the Michigan Department of

Health and Human Services (“MDHHS”), and allege as follows:

INTRODUCTION

1. For more than a year, student-athletes have endured unilateral orders enacted by

Executive Branch officials that severely restrict their ability to freely associate with one another

and compete in high school sports.

2. For these athletes, participation in high school sports is crucial to their physical and

mental health, essential for maintenance and advancement of their athletic skills, invaluable to

their training, and the irreplaceable source of opportunities to associate with peers and mentors.

3. Student-athletes are currently required to comply with the Emergency Order under

MCL 333.2253 – Gatherings and Face Mask Order issued by MDHHS on March 19, 2021

(the “March 19 Order,” attached as Exhibit A), and the Interim Guidance for Athletics issued by
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MDHHS on March 20, 2021 (the “March 20 Guidance,” attached as Exhibit B).

4. As set forth more fully below, the March 19 Order and the March 20 Guidance

severely restrict student-athletes’ ability to legally participate in high school sports by imposing

rigorous testing, mask-wearing, contact-tracing, and other requirements.

5. As set forth more fully below, the March 19 Order and the March 20 Guidance

were invalidly promulgated without any opportunity for public participation, in violation of the

Michigan Administrative Procedures Act (the “MAPA”) and the Michigan Constitution of 1963

(the “Michigan Constitution”). They are also substantively invalid as arbitrary and capricious

under the MAPA.

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 PARTIES

6. Let Them Play Michigan, Inc. (“Let Them Play”) is a non-profit corporation

organized under the laws of Michigan, which is dedicated to the maintenance and advancement of

high school sports. Its members are student-athletes, parents, coaches, and school administrators.

7. Let Them Play regularly engages in advocacy on behalf of high school

student-athletes, including by organizing rallies and engaging in other First Amendment activity

to advance the interests of high school student-athletes and the parents, coaches, teachers, other

students, and fans that support them.

8. Michelle Moran is the parent and legal guardian of Easton Moran, a junior at

Yale High School who was the third-ranked varsity wrestler in the State of Michigan during the

2020–2021 wrestling season.

9. Easton was not allowed to participate in the 2021 Wrestling Districts, Regionals, or

Finals due to the State’s contact-tracing policies. Specifically, Easton saw a friend on a Monday.

Easton’s friend tested negative for COVID-19 that same day but later tested positive the following
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Wednesday. Although Easton had no contact with his friend on Wednesday, and neither Easton

nor his friend ever had any symptoms of COVID-19, Easton was deemed ineligible to compete in

the 2021 Wrestling Districts, Regionals, and Finals due to the State’s contact-tracing policies.

10. Marcy McClelland is the parent and legal guardian of Micayla McClelland and

Timothy McClelland.

11. Micayla is an eighth-grader at Yale Junior High School who participates in cross

country, basketball, and track.

12. Timothy is a sophomore at Yale High School who plays basketball and golf.

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 13. Micayla and Timothy had to watch their older brother, who is a basketball player,

find out at 1:30 p.m. on the day of his Senior Day varsity game that he was ruled ineligible to

participate and had to quarantine because one of his friends had tested positive.

14. Neither Micayla nor Timothy will compete in their spring sports if they are forced

to comply with a mandatory testing regime.

15. Shannon Badgero is a coach of boys’ and girls’ varsity soccer and an assistant coach

of girls’ varsity basketball at Tri-Unity Christian School in Wyoming, Michigan.

16. Shannon is the parent and legal guardian of Nataleigh Badgero, a senior at Tri-

Unity who plays basketball and soccer and was on track to play basketball in college.

17. Nataleigh has been struggling with deepening depression for months. Every day

she – like so many student-athletes in Michigan – faces the uncertainty of whether today is the day

that sports will be taken from her.

18. Defendant Elizabeth Hertel is the Director of MDHHS, which issued the March 19

Order and the March 20 Guidance challenged in this action. Defendant Hertel is, and at all relevant
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times was, an employee of the State of Michigan. She is being sued in her official capacity.

JURISDICTION AND VENUE

19. Plaintiffs seek declaratory and injunctive relief preventing Defendant from

enforcing the March 19 Order and the March 20 Guidance against Plaintiffs and similarly situated

parties seeking to participate in high school athletics.

20. This Court has exclusive jurisdiction under MCL 600.6419(1) because Plaintiffs

are demanding declaratory and injunctive relief against the Director of MDHHS acting in her

official capacity.

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 21. Venue is proper in this Court because this lawsuit is against an officer of a State

department, acting in her official capacity. See MCL 600.6419.

BACKGROUND

Actions by the Executive Branch

22. On March 10, 2020, Governor Gretchen Whitmer issued Executive Order (“EO”)

2020-04, which declared a state of emergency related to COVID-19 under Article 10, Section 1 of

the Michigan Constitution, the Emergency Management Act, MCL 30.401 et seq. (“EMA”), and

the Emergency Powers of the Governor Act of 1945, MCL 10.31 et seq. (“EPGA”).

23. On March 13, 2020, Governor Whitmer issued EO 2020-05, which ordered the

closure of all elementary school buildings and secondary school buildings for educational purposes

from March 16, 2020 to April 5, 2020. The Michigan High School Athletic Association

(“MHSAA”) followed suit, stating that “to fall in line” with EO 2020-05, it was requiring

“all member schools to suspend activities in all sports for all seasons.”

24. On April 2, 2020, Governor Whitmer issued EO 2020-35, which suspended all
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in-person instruction in K–12 schools for the remainder of the 2019–2020 school year.

The MHSAA again followed suit, canceling the remainder of the 2019–2020 Winter and Spring

sports seasons “in compliance with” EO 2020-35.

25. The Michigan Legislature denied an April 2020 request from Governor Whitmer to

extend the state of emergency then in place and filed suit challenging Governor Whitmer’s

authority to issue additional Executive Orders curtailing Michiganders’ activities of daily living.

In spite of this clear messaging from the Legislature, Governor Whitmer went on to issue nearly

200 additional COVID-19-related EOs.

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 26. As a result of Governor Whitmer’s EOs, 2019–2020 was the first school year that

MHSAA Finals were not played in multiple sports since 1942–43, when World War II led to the

elimination of Finals in most sports.

27. On April 2, 2020, then-MDHHS Director Robert Gordon issued an order requiring

compliance with “the procedures and restrictions” in EOs previously issued by Governor Whitmer.

28. On May 18, 2020, May 27, 2020, June 10, 2020, and July 30, 2020, Director

Gordon issued additional orders reinforcing EOs previously issued by Governor Whitmer.

29. On September 3, 2020, Governor Whitmer issued EO 2020-176, which “allow[ed]

for organized sports competitions to resume, if organizers take appropriate precautions.”

Following EO 2020-176, the MHSAA allowed competition to begin in soccer, swimming and

diving, volleyball, and football.

30. On September 9, 2020, Governor Whitmer issued EO 2020-180, which required

athletes in organized sports to wear a facial covering (except when swimming) or maintain six feet

of social distance (except for occasional and fleeting moments).

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31. On October 2, 2020, the Michigan Supreme Court entered an order invalidating

Governor Whitmer’s EOs issued after April 30, 2020. In re Certified Questions, No. 161492,

2020 WL 5877599 (Mich Oct 2, 2020). The Court unanimously held that the Governor did not

have authority to issue or renew any EOs relating to the COVID-19 pandemic under the EMA after

April 30, 2020. Neither did the Governor have authority to issue the EOs under the EPGA because

the Act unlawfully and unconstitutionally delegates legislative power to the Executive Branch.

Governor Whitmer moved to delay the implementation of the Michigan Supreme Court’s ruling

on October 5, 2020, but the court denied her motion.

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 32. Ostensibly pursuant to power delegated by the Legislature under MCL 333.2253,

MDHHS has since issued several Emergency Orders aggressively curtailing the activities of

student-athletes.

33. On October 5, 2020, MDHHS issued an order placing certain restrictions on

organized sports.

34. On November 15, 2020, MDHHS issued an order prohibiting organized high school

sports through December 8, 2020. The MHSAA followed suit, immediately suspending all school

sports activities.

35. On November 18, 2020, the MHSAA announced a plan to resume competitions on

December 9, 2020, “[i]f permitted by the MDHHS.” But the resumption of high school sports was

not permitted by MDHHS. Instead, on December 7, 2020, MDHHS issued an order continuing the

prohibition on in-person instruction in high schools and gatherings for the purpose of organized

sports through December 20, 2020.

36. On December 18, 2020, MDHHS issued an order allowing outdoor, non-contact
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sports, but continuing to prohibit indoor sports and “contact” sports, except at the professional

ranks, through January 15, 2021.

37. On January 13, 2021, MDHHS issued an order allowing indoor group exercise and

“non-contact” sports (such as gymnastics, bowling, ice skating, and swimming and diving).

However, it continued the restrictions on indoor “contact” sports through January 31, 2021. As a

result, MHSAA suspended competitions in basketball, competitive cheer, ice hockey, and

wrestling through at least February 1, 2021.

38. On January 22, 2021, MDHHS unexpectedly issued an order continuing the

prohibition on indoor “contact” sports through February 21, 2021.

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 39. On February 4, 2021, MDHHS rescinded the January 22 Order and allowed contact

sports to resume so long as certain restrictions were observed.

40. On February 7, 2021, MDHHS issued an interim guidance for athletics, which

imposed further restrictions on the ability to legally participate in high school sports.

41. On March 5, 2021, MDHHS issued an order continuing the restrictions on

participating in high school sports.

42. On March 19, 2021, MDHHS issued the March 19 Order, which requires that:

a. All participants in contact sports practice and competition must remain masked

unless (i) it would be unsafe for participants to remain masked and (ii) all

participants are tested consistent with the March 20 Guidance.

b. All participants in contact sports practice and competition must maintain 6 feet

of distance from each other when not engaged in play.

c. All gatherings of non-participants observing sports practice and competition

must comply with the gathering restrictions in the March 19 Order.

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d. Sports organizers, venues, and teams must enforce the requirements of the

March 19 Order.

e. Beginning on April 2, 2021, all persons age 13 to 19 involved in sports practice

and competition must participate in a testing program as specified in the

March 20 Guidance.

43. A violation of the March 19 Order is a misdemeanor punishable by imprisonment

for not more than 6 months, or a fine of not more than $200.00, or both.

44. On March 20, 2021, MDHHS issued the March 20 Guidance. In addition to the

requirements stated in the March 19 Order, the March 20 Guidance requires that:

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 a. Athletes who test positive for COVID-19 on a RT-PCR test must isolate for

10 days from date of first positive test or as determined by current CDC

guidance, even if they are asymptomatic.

b. Athletes may not play or practice sports while symptomatic, even with a

negative COVID-19 test.

c. “Teams and individuals must adhere with local health department or MDHHS

guidance for contact tracing, case investigation or outbreak investigation.”

d. Athletes may not play or practice sports while a household contact is exhibiting

any signs or symptoms of COVID-19.

e. Athletes may not play or practice sports if deemed a “close contact” of someone

infected with COVID-19.

f. Athletes must “[r]efrain from pre- or post-event handshakes, hugs, fist bumps,

high fives or contact celebrations.”

g. Athletes must “minimize sharing equipment,” “[u]se separate towels,” “provide

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their own food, drinks, and/or water,” and “[r]efrain from spitting, chewing gum

or tobacco.”

h. Athletes are to “[l]imit the use of carpools, buses, or other shared

transportation” and “need to wear cloth face coverings . . . during shared

transportation.”

i. During practices, sports teams must prioritize noncontact activity, like

conditioning and drills.

j. During the two weeks before and after unmasked athletic events, athletes must

completely avoid participation in non-team social gatherings.

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 45. On March 26, 2021, Plaintiffs sent a letter to MDHHS (the “March 26 Letter,”

attached as Exhibit C, Tab 1), expressing their concern that the March 20 Guidance violated the

MAPA. Plaintiffs asked MDHHS to clarify the legal authority under which it published the

March 20 Guidance. Plaintiffs advised that, if the March 20 Guidance was not validly promulgated

under any legal authority, it would not have the “force of law” or any “binding effect on any citizen

of the State”—although athletes throughout the State have been forced to comply with it.

46. MDHHS responded to the March 26 Letter on April 2, 2021 (the “April 2 Response,

attached as Exhibit C, Tab 2). MDHHS refused to identify the legal authority under which the

March 20 Guidance was issued. But it said: “When the MDHHS issues emergency orders under

MCL 333.2253 and those orders refer to the Interim Guidance for Athletics, then the MDHHS

expects the Interim Guidance for Athletics to be followed as directed by the emergency order.”

The Value of High School Sports

47. High school sports provide invaluable opportunities for student-athletes to maintain

and improve their health and wellness, build leadership and teamwork skills, develop life-long
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relationships with peers and mentors, and learn important lessons related to accountability,

responsibility, and time management. Student-athletes also earn invaluable college scholarship and

recruitment opportunities by virtue of their participation in high school sports.

48. Participation in high school sports has been shown to improve both physical health

and mental well-being.

49. Participation in high school sports has also been shown to lead to higher academic

achievement and better educational outcomes.

50. Additionally, high school sports provide an invaluable economic pathway to

students who gain visibility and have an opportunity to earn college scholarships.

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 Impact on Plaintiffs and Similarly Situated Parties

51. Plaintiffs and other similarly situated parties—including other student-athletes and

their families—have been forced to comply with the requirements in the March 19 Order and the

March 20 Guidance despite having no ability to participate in the enactment of those requirements.

They have been irreparably injured as a result.

52. Athletes like Easton Moran have been deprived of once-in-a-lifetime opportunities

to participate in important competition. Others like Micayla and Timothy McClelland have had to

watch their friends and family members be deprived of those opportunities. And many like

Nataleigh Badgero are suffering from depression, anxiety, and related conditions as they worry

about whether they might be next.

53. Plaintiffs’ hardships are not alone. And their fears are not ill-founded. In two recent

actions, highly accomplished high school wrestlers were subjected to lengthy mandatory

quarantines that would have deprived them of the opportunity to compete in Regional and State

Finals, based on allegations that they were within six feet students who tested positive for
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COVID-19. In one case, the wrestler was wearing a custom-fitted N95 mask at the time and

subsequently tested negative for COVID-19. See Complaint, Bartley v Barry-Eaton District

Health Dep’t, Case No. 21-271-CZ, Eaton County Circuit Court (Mar 25, 2021) (attached as

Exhibit D, Tab 1). In the other, the wrestler was seated in a separate column and row of desks

from the student who tested positive, correctly wore a mask at all times, and tested negative on

several occasions. See Complaint, Gibson v Barry-Eaton Health Dep’t, Case No. 21-219-CZ,

Barry County Circuit Court (Mar 30, 2021) (attached as Exhibit D, Tab 2). In each case, the

wrestler contended that the mandatory quarantine was imposed without due process and in

violation of MCL 333.5203. And in each case, the Court issued a temporary restraining order,

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 concluding that the wrestler was likely to succeed on the merits of his claim that the mandatory

quarantine requirements—with which athletes must comply under the March 20 Guidance—were

unlawful. See Order, Bartley, Case No. 21-271-CZ, Eaton County Circuit Court (Mar 25, 2021)

(attached as Exhibit D, Tab 3); Order, Gibson, Case No. 21-219-CZ, Barry County Circuit Court

(Mar 30, 2021) (attached as Exhibit D, Tab 4).

54. Athletes who prefer not to be tested have suffered an intangible injury from being

forced to comply with MDHHS’s mandatory testing requirements.

55. Parents who desire to allow their children to participate in sports without complying

with MDHHS’s requirements have suffered an intangible injury from having the ability to make

that decision for their children taken away from them.

CAUSES OF ACTION

Count I
Violation of the Administrative Procedures Act
MCL 24.201 et seq.

56. Plaintiffs incorporate herein by reference the allegations in all preceding paragraphs
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of this Verified Complaint.

57. MDHHS is an “agency” within the meaning of the Michigan Administrative

Procedures Act of 1969 (“MAPA”). See MCL 24.203(2).

58. MDHHS is subject to and not exempt from compliance with the MAPA.

59. Under the MAPA, a “rule” is “an agency regulation, statement, standard, policy,

ruling, or instruction of general applicability that implements or applies law enforced or

administered by the agency, or that prescribes the organization, procedure, or practice of the

agency, including the amendment, suspension, or rescission of the law enforced or administered

by the agency.” See MCL 24.207.

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 60. The MAPA contains requirements for processing and publishing rules, which

include obtaining approval from the Office of Regulatory Reinvention, MCL 24.239, and giving

notice of a public hearing offering persons an opportunity to present data, views, questions, and

arguments, see MCL 24.241.

61. The March 19 Order is subject to MAPA’s administrative rulemaking

requirements.

62. The March 20 Guidance is subject to MAPA’s administrative rulemaking

requirements.

63. The March 20 Guidance includes statements, standards, policies, rulings, or

instructions beyond those stated in the March 19 Order, including mandatory quarantines of

persons who have not been determined to be carriers of serious communicable diseases or

infections as required by MCL 333.5203.

64. The MAPA provides, in part, that a “court shall hold unlawful and set aside a

decision or order of an agency if substantial rights of the petitioner have been prejudiced because
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the decision or order is . . . [a]rbitrary, capricious or clearly an abuse or unwarranted exercise of

discretion.” See MCL 24.306.

65. The March 19 Order is invalid and subject to reversal under MCL 24.306 because

it was not issued in compliance with the MAPA’s procedural requirements.

66. The March 20 Guidance is procedurally invalid and subject to reversal under

MCL 24.306 because it was not issued in compliance with the MAPA’s procedural requirements.

67. The March 19 Order and the March 20 Guidance are also substantively invalid as

arbitrary and capricious under the MAPA.

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 68. As a direct consequence of MDHHS’s violations of the MAPA, Plaintiffs have

suffered incalculable damages.

69. Plaintiffs have no adequate remedy at law for MDHHS’s violations of the MAPA.

Count II
Violation of Procedural Due Process
1963 Const, art 1, § 17

70. Plaintiffs incorporate herein by reference the allegations in all preceding paragraphs

of this Verified Complaint.

71. The Due Process Clause of the Michigan Constitution provides that “[n]o person

shall . . . be deprived of life, liberty or property, without due process of law.” 1963 Const, art 1,

§ 17.

72. Student-athletes have a protected liberty interest in associating with their peers and

mentors and participating in athletic competitions as a component of their education.

73. The parents of student-athletes have a protected liberty interest in providing for the

health and education of their children, in part through socialization and participation in athletic
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competition.

74. The March 19 Order was enacted without any procedural due process safeguards.

Likewise, no mechanism of any kind exists for post-deprivation review.

75. The March 20 Order was enacted without any procedural due process safeguards.

Likewise, no mechanism of any kind exists for post-deprivation review.

76. As a direct consequence of MDHHS’s violations of their due process rights,

Plaintiffs have suffered incalculable damages.

77. Plaintiffs have no adequate remedy at law for this continuing violation of their

constitutional rights.

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 REQUEST FOR RELIEF

WHEREFORE, Plaintiffs respectfully request that this Court:

a. Grant a preliminary injunction prohibiting MDHHS from enforcing the March 19

Order and the March 20 Guidance against Plaintiffs and others similarly situated parties;

b. After the claims are fully adjudicated, enter a declaratory judgment that the

March 19 Order and the March 20 Guidance violate statutory and/or constitutional law;

c. After the claims are fully adjudicated, permanently enjoin enforcement of the

March 19 Order and the March 20 Guidance against Plaintiffs and others similarly situated parties;

c. Enter an award of reasonable attorney fees and costs in favor of Plaintiffs; and

d. Grant such other and further relief as the Court deems just and proper.

Respectfully submitted,

Dated: April 1, 2021 By:______________________________________

Peter B. Ruddell (P63253)
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Kelli Mulder (P84441)

Keith D. Underkoffler (P84854)
HONIGMAN LLP
Attorneys for Plaintiffs
222 N Washington Square, Suite 400
Lansing, MI 48933
312.701.9326
[email protected]
[email protected]
[email protected]

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RECEIVED by MCOC 4/1/2021 1:01:56 PM
 DocuSign Envelope ID: 5514010A-F44C-42FC-8898-48B2237FB765

VERIFICATION

I, Michelle “Shelly” Moran, on behalf of Easton Moran, declare under the penalties of
perjury that the statements in the above Verified Complaint have been examined by me and that
its contents are true to the best of my information, knowledge, and belief.

____________________________

Michelle “Shelly” Moran

Dated: March 30, 2021

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38660157.1
 DocuSign Envelope ID: 45D1BC48-B08A-4914-AD11-02A65776D4C9

VERIFICATION

I, Marcy McClelland, on behalf of Micayla McClelland and Timothy McClelland, declare

under the penalties of perjury that the statements in the above Verified Complaint have been
examined by me and that its contents are true to the best of my information, knowledge, and
belief.

____________________________

Marcy McClelland

Dated: March 30, 2021

RECEIVED by MCOC 4/1/2021 1:01:56 PM

38648265.1
 DocuSign Envelope ID: 08C69201-AAC3-449C-AD53-05CAF2E1C84C

VERIFICATION

I, Shannon Badgero, on behalf of Nataleigh Badgero, declare under the penalties of

perjury that the statements in the above Verified Complaint have been examined by me and that
its contents are true to the best of my information, knowledge, and belief.

____________________________

Shannon Badgero

Dated: March 30, 2021

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38669007.1
 STATE OF MICHIGAN
IN THE COURT OF CLAIMS

LET THEM PLAY MICHIGAN, INC., a

Michigan non-profit corporation; MICHELLE
MORAN, on behalf of herself and as parent
and guardian of Easton Moran, a minor; Case No. 21-______-MZ
MARCY MCCLELLAND, on behalf of
herself and as parent and guardian of Micayla Hon. _______________________
McClelland and Timothy McClelland,
minors; and SHANNON BADGERO, on
behalf of herself and as parent and guardian
of Nataleigh Badgero, a minor.

Plaintiffs,

ELIZABETH HERTEL, in her official

capacity as Director of the Michigan
Department of Health and Human Services,

Defendant.

Peter B. Ruddell (P63253)

Kelli Mulder (P84441)
Keith D. Underkoffler (P84854)
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HONIGMAN LLP
Attorneys for Plaintiffs
222 N Washington Square, Suite 400
Lansing, MI 48933
312.701.9326
[email protected]
[email protected]
[email protected]

INDEX OF EXHIBITS

Exhibit Description
A The March 19 Order
B The March 20 Guidance
C 1. The March 26 Letter
2. April 2 Response
 Exhibit Description
D 1. Complaint, Bartley v Barry-Eaton District Health Dep’t, Case No. 21-271-
CZ, Eaton County Circuit Court (Mar 25, 2021)
2. Complaint, Gibson v Barry-Eaton Health Dep’t, Case No. 21-219-CZ,
Barry County Circuit Court (Mar 30, 2021)
3. Order Granting Temporary Restraining Order, Bartley v Barry-Eaton
District Health Dep’t, Case No. 21-271-CZ, Eaton County Circuit Court
(Mar 25, 2021)
4. Order Granting Temporary Restraining Order, Gibson v Barry-Eaton
Health Dep’t, Case No. 21-219-CZ, Barry County Circuit Court (Mar 31,
2021)
38698733.1
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2
EXHIBIT A
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 STATE OF MICHIGAN
GRETCHEN WHITMER DEPARTMENT OF HEALTH AND HUMAN SERVICES ELIZABETH HERTEL
GOVERNOR LANSING DIRECTOR

March 19, 2021

Emergency Order under MCL 333.2253 – Gatherings and Face Mask Order

Michigan law imposes on the Michigan Department of Health and Human Services (MDHHS) a duty to
continually and diligently endeavor to “prevent disease, prolong life, and promote the public health,” and
gives the Department “general supervision of the interests of the health and life of the people of this
state.” MCL 333.2221. MDHHS may “[e]xercise authority and promulgate rules to safeguard properly the
public health; to prevent the spread of diseases and the existence of sources of contamination; and to
implement and carry out the powers and duties vested by law in the department.” MCL 333.2226(d).

The novel coronavirus (COVID-19) is a respiratory disease that can result in serious illness or death. It is
caused by a new strain of coronavirus not previously identified in humans and easily spread from person
to person. COVID-19 spreads through close human contact, even from individuals who may be
asymptomatic.

In recognition of the severe, widespread harm caused by epidemics, the Legislature has granted MDHHS
specific authority, dating back a century, to address threats to the public health like those posed by
COVID-19. MCL 333.2253(1) provides that:

If the director determines that control of an epidemic is necessary to protect the public health,
the director by emergency order may prohibit the gathering of people for any purpose and
may establish procedures to be followed during the epidemic to insure continuation of
essential public health services and enforcement of health laws. Emergency procedures shall
not be limited to this code.
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See also In re Certified Questions from the United States District Court, Docket No. 161492 (Viviano, J.,
concurring in part and dissenting in part, at 20) (“[T]he 1919 law passed in the wake of the influenza
epidemic and Governor Sleeper’s actions is still the law, albeit in slightly modified form.”); id.
(McCormack, C.J., concurring in part and dissenting in part, at 12). Enforcing Michigan’s health laws,
including preventing disease, prolonging life, and promoting public health, requires limitations on
gatherings and the establishment of procedures to control the spread of COVID-19. This includes limiting
the number, location, size, and type of gatherings, and requiring the use of mitigation measures at
gatherings as a condition of hosting such gatherings.

On March 10, 2020, MDHHS identified the first two presumptive-positive cases of COVID-19 in
Michigan. As of March 18, 2021, Michigan had seen 618,421 confirmed cases and 15,835 confirmed deaths
attributable to COVID-19. Michigan was one of the states most heavily impacted by COVID-19 early in
the pandemic, with new cases peaking at nearly 2,000 per day in late March. Strict preventative
measures and the cooperation of Michiganders drove daily case numbers dramatically down to fewer than
200 confirmed cases per day in mid-June, greatly reducing the loss of life. Beginning in October, Michigan
again experienced an exponential growth in cases. New cases peaked at nearly 10,000 cases per day in
mid-November, followed by increases in COVID-19 hospitalizations and deaths.

On November 15, 2020, MDHHS issued an order enacting protections to slow the high and rapidly
increasing rate of spread of COVID-19. Cases, hospitalizations, and deaths remained high through early
333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909
www.michigan.gov/mdhhs • 517-241-3740
 December, threatening hospital and public health capacity. On December 7, 2020, December 18, 2020,
and January 13, 2021, MDHHS issued orders sustaining those protections. These orders played a crucial
role in slowing the spread in Michigan and had brought new cases down to about 1,500 per day. This
decrease in cases prevented Michigan’s healthcare system from being overwhelmed with a holiday surge.
On January 22, 2021, considering the reduction in cases, MDHHS issued an order permitting indoor
dining. And on February 4, 2021, in light of continued decreases in cases of COVID-19 in the state,
MDHHS issued an order permitting contact sports to be played.

Cases dropped to under 1,000 per day in mid-February. However, these trends have shifted and cases are
once again increasing. The State of Michigan had a seven-day average of 1,825 daily cases on March 11,
nearly 90% higher than the number of cases in mid-February. Test positivity has also increased 86% since
the mid-February trough. The statewide positivity was 6.5% as of March 16. While metrics remain below
all-time highs, progress has stalled and epidemiologists are concerned that this portends another spike
with the presence of more infectious variants in Michigan and the United States. A high number of cases
creates significant pressure on our emergency and hospital systems. Improvements in healthcare capacity
have reversed and hospitalizations are once again increasing. An average of 168 daily hospital admissions
was seen in Michigan in the past week, with individuals under the age of 60 accounting for nearly 50% of
all new admissions. As of March 17, 1,226 Michiganders were hospitalized with COVID-19, and 5.0% of
all available inpatient beds were occupied by patients who had COVID-19. During this time, the state
death rate was 1.3 deaths per million people and there were approximately 95 weekly deaths in Michigan
attributable to COVID-19. This is a 90% decrease from the second peak, which reached 13.7 deaths per
million on December 10, 2020. However, deaths trends have historically lagged four to six weeks following
trend shifts in cases and hospitalizations.

Even where COVID-19 does not result in death, and where Michigan’s emergency and hospital systems
are not heavily burdened, the disease can cause great harm. Recent estimates suggest that one in ten
persons who suffer from COVID-19 will experience long-term symptoms, referred to as “long COVID.”
These symptoms, including fatigue, shortness of breath, joint pain, depression, and headache, can be
disabling. They can last for months, and in some cases, arise unexpectedly in patients with few or no
symptoms of COVID-19 at the time of diagnosis. COVID-19 has also been shown to damage the heart and
kidneys. Furthermore, minority groups in Michigan have experienced a higher proportion of “long
COVID.” The best way to prevent these complications is to prevent transmission of COVID-19.
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Since December 11, 2020, the Food and Drug Administration has granted emergency use authorization to
three vaccines to prevent COVID-19, providing a path to end the pandemic. Michigan is now partaking in
the largest mass vaccination effort in modern history and is presently working toward vaccinating at least
70% of Michigan residents 16 years of age and older as quickly as possible.

New and unexpected challenges continue to arise: in early December 2020, a variant of COVID-19 known
as B.1.1.7 was detected in the United Kingdom. This variant is roughly 50 to 70 percent more infectious
than the more common strain. On January 16, 2021, this variant was detected in Michigan. It is
anticipated that the variant, if it becomes widespread in the state, will significantly increase the rate of
new cases. Currently, Michigan is second in the nation with respect to the number of B.1.1.7 variants
detected. To date, there are over 600 cases in Michigan. CDC modeling predicts B.1.1.7 could become the
predominant variant by the end of March. At present, however, it appears that cases have plateaued. And
on March 8, 2021, the first case of variant B.1.351 was detected in Michigan. A recent study suggests that
B.1.351 may impair vaccine efficacy.

In the past four weeks, spread of COVID-19 has risen 105% amongst persons aged 10-19. As of March 11,
local health departments had reported 162 new and ongoing outbreaks among K-12 schools, with 54 of
those outbreaks reported in the week prior. Additionally, there are 135 identified outbreaks among
minors participating in school and club sports. The social activities surrounding sports, such as team
meals and parties, may be a major factor in this spread. To promote the continued safe operation of in-
person schools, additional mitigation measures related to youth sports activities are warranted.

2
 Considering the above, and upon the advice of scientific and medical experts, I have concluded pursuant
to MCL 333.2253 that the COVID-19 pandemic continues to constitute an epidemic in Michigan. I have
also, subject to the grant of authority in 2020 PA 238 (signed into law on October 22, 2020), herein
defined the symptoms of COVID-19 based on the latest epidemiological evidence. I further conclude that
control of the epidemic is necessary to protect the public health and that it is necessary to restrict
gatherings and establish procedures to be followed during the epidemic to ensure the continuation of
essential public health services and enforcement of health laws. As provided in MCL 333.2253, these
emergency procedures are not limited to the Public Health Code.

I therefore order that:

1. Definitions.

(a) “Camp” means a day, residential, travel, or troop camp for children (as defined by Rule
400.11101(1)(q) of the Michigan Administrative Code).

(b) “Child care organization” means that term as defined by section 1(b) of the Child Care
Organizations Act, 1973 PA 116, as amended, MCL 722.111(b)).

(c) “Contact sports” means sports involving more than occasional and fleeting contact,
including: football; basketball; rugby; field hockey; soccer; lacrosse; wrestling; hockey;
boxing; futsal; martial arts with opponents; and other sports meeting those criteria.

(d) “Competition” means a game of skill played between opposing teams.

(e) “Employee” means that term as defined in section 2(c) of the Improved Workforce
Opportunity Wage Act, 2018 PA 337, as amended, MCL 408.932(c), and also includes
independent contractors.

(f) “Entertainment and recreational facility” includes: auditoriums; cinemas; concert halls;
performance venues; sporting venues; theaters; night clubs; strip clubs; water parks;
archery ranges; amusement parks; arcades; bingo halls; bowling centers; casinos; gun
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ranges; laser tag arenas; trampoline parks; and the like.

(g) “Exercise facility” means a location in which individuals participate in individual or group
physical activity, including gymnasiums, fitness centers, and exercise studios.

(h) “Face mask” means a tightly woven cloth or other multi-layer absorbent material that
closely covers an individual’s mouth and nose.

(i) “Fully vaccinated persons” means persons for whom at least two weeks has passed after
receiving the final dose of an FDA-approved or authorized COVID-19 vaccine.

(j) “Food service establishment” means that term as defined in section 1107(t) of the Food
Law, 2000 PA 92, as amended, MCL 289.1107(t).

(k) “Gathering” means any occurrence, either indoor or outdoor, where two or more persons
from more than one household are present in a shared space.

(l) “Household” means a group of persons living together in a shared dwelling with common
kitchen or bathroom facilities. In dwellings with shared kitchen or bathroom facilities
occupied by 20 or more unrelated persons, households are defined by individuals who share
a bedroom.

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 (m) “Indoors” means within a space that is fully or partially enclosed on the top, and fully or
partially enclosed on two or more contiguous sides. Additionally, in a space that is fully or
partially enclosed on the top, and fully or partially enclosed on two non-contiguous sides,
any part of that space that is more than 8 feet from an open side is indoors.

(n) “Non-contact sports” means sports that are not contact sports.

(o) “Outdoors” means a space that is not indoors.

(p) “Organized sports” means competitive athletic activity requiring skill or physical prowess
and organized by a sports organizer.

(q) “Practice” means a training session for a game of skill, involving only members of a single
team.

(r) “Principal symptoms of COVID-19” means at least 1 of fever, uncontrolled cough, or

atypical new onset of shortness of breath, or at least 2 of the following not explained by a
known physical condition: loss of taste or smell, muscle aches, sore throat, severe headache,
diarrhea, vomiting, or abdominal pain. Per section 1(j) of 2020 PA 339, this definition
represents the latest medical guidance, and serves as the controlling definition.

(s) “Sports organizer” means an association or other organization that sets and enforces rules
to ensure the physical health and safety of all participants for an organized sport. Sports
organizers at the sub-association level must follow all health and safety rules and
procedures set by the association of which they are a member.

(t) “Stadiums and arenas” means venues with fixed seating for at least 5,000 spectators.

2. General capacity limitations at gatherings.

(a) Indoor gatherings:

(1) Are prohibited at residential venues, except where no more than 15 persons from no
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more than 3 households are gathered. Such gatherings should be held consistent
with guidance issued by the Department of Health and Human Services for such
gatherings; and

(2) Are prohibited at non-residential venues, except where no more than 25 persons are
gathered.

(b) Outdoor gatherings are permitted only as follows:

(1) At residential venues, where 50 or fewer persons are gathered;

(2) At non-residential venues, where 300 or fewer persons are gathered.

(c) The limitations to gatherings in sections 2(a) and 2(b) do not apply to:

(1) Incidental gatherings of persons in a shared space, such as frequently occur in an

airport, bus station, exercise facility, food service establishment, shopping mall, or
public pool, except as prohibited in section 3;

(2) Workplace gatherings that occur consistent with the Emergency Rules issued by
MIOSHA on October 14, 2020;

(3) Voting or official election-related activities;

4
 (4) Training of law enforcement, correctional, medical, or first responder personnel,
insofar as those activities cannot be conducted remotely;

(5) Education and support services at public, nonpublic, and boarding schools serving
students in prekindergarten through grade 12;

(6) Children in a child care organization, after school program, or camp setting;

(7) Persons traveling on a school bus or public transit;

(8) Gatherings for the purpose of medical treatment, including mental health and
substance use disorder support services;

(9) Residential care facilities, which are subject to the March 17, 2021, epidemic order
entitled “Requirements for Residential Facilities,” or any replacement of that order;

(10) Cardiopulmonary resuscitation courses and swimming instruction courses;

(11) Proctored, nationally-administered admissions and certification examinations that

are not available remotely, provided that examinees are spaced no less than 6 feet
apart;

(12) Gatherings at entertainment and recreational facilities that comply with the
restrictions set forth in section 3(a) of this order;

(13) Gatherings for the purposes of indoor group fitness, exercise, or sports that comply
with the restrictions set forth in sections 4(b), 4(d), 4(e), and 6 of this order;

(14) Gatherings for public health or other emergency purposes.

(d) As a condition of hosting a gathering under this order, organizers and facilities must design
the gathering to encourage and maintain physical distancing, and must ensure that persons
not part of the same group maintain 6 feet of distance from one another to the extent
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possible.

3. Gathering restrictions for entertainment facilities, recreational facilities, and food

service establishments.

(a) Gatherings are prohibited at entertainment facilities and recreational facilities unless:

(1) Venues and activities held at those venues comply with masking and distancing
requirements in this subsection. Venues that cannot consistently adhere to these
requirements (e.g., water parks, dance floors at a nightclub, or children’s indoor
playgrounds inasmuch as staff are not present to prevent physical contact) may not
be open.

(A) Patrons must remain masked at all times, except when eating or drinking in
designated areas;

(B) Groups of patrons participating in activities together (such as those seated

together at a concert or movie, or bowling in the same lane or group of lanes)
must not exceed 25 persons indoors, or 300 persons outdoors;

(C) Patrons must be prevented from mingling with or engaging in physical

contact with persons outside their group; and

5
 (D) For sports practice and competition, participants must comply with the
restrictions set forth in section 6;

(2) If participating in stationary activities, groups are spaced or seated at least 6 feet
apart. If participating in non-stationary activities, groups maintain a consistent 6
feet of distance from other groups at all times;

(3) Consumption of food or beverages is permitted only where patrons are seated,
groups of patrons are separated by at least 6 feet, no more than 6 patrons are seated
at a table, and groups of patrons do not intermingle;

(4) Venues that are also food service establishments, as a condition of offering food or
beverages, ensure their designated dining areas comply with all requirements in
subsection (b);

(5) Venues abide by the following density limitations:

(A) Where applicable, occupancy must not exceed 50% of the limits established
by the State Fire Marshal or a local fire marshal; and

(B) Groups must remain at least 6 feet apart at all times;

(6) Venues abide by the following maximum capacity limitations:

(A) For indoor entertainment and recreational facilities, no more than 300
patrons may be gathered within any distinct space within the venue;

(B) For outdoor entertainment and recreational facilities and for stadiums and
arenas, except as provided in subsection (E), no more than 1,000 patrons may
be gathered;

(C) At indoor stadiums and arenas with a fixed seating capacity of up to 10,000,
no more than 375 patrons may be gathered;
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(D) At indoor stadiums and arenas with a fixed seating capacity greater than
10,000, no more than 750 patrons may be gathered;

(E) At outdoor stadiums and arenas that establish and abide by an infection
control plan that complies with the MDHHS publication entitled Enhanced
Outdoor Stadium and Arena Guidance, gatherings may not exceed 20% of the
venue’s fixed seating capacity. Such venues must post their plan publicly,
including on a public website. Infection control plans must be provided to the
local health department and MDHHS at least seven days before scheduled
events. Sports organizers of events occurring at outdoor stadiums and arenas
proceeding under this subsection must administer a testing program for all
players as specified in the MDHHS publication entitled Interim Guidance for
Athletics issued March 20, 2021, for all players.

(b) Gatherings are prohibited at food service establishments, whether indoor or outdoor,
unless:

(1) Consumption of food or beverages is permitted only in a designated dining area

where patrons are seated, groups of patrons are separated by at least 6 feet, no more
than 6 patrons are seated together (at a table, booth, or group of fixed seats), and
groups of patrons do not intermingle;

6
 (2) Patrons are not permitted to gather in common areas in which people can
congregate, dance, or otherwise mingle;

(3) In the event that an employee of a food service establishment is confirmed positive
for COVID-19 or shows principal symptoms of COVID-19 while at work, the food
service establishment has been deep cleaned consistent with Food and Drug
Administration and CDC guidance;

(4) At establishments offering indoor dining:

(A) The number of patrons indoors (or in a designated dining area of a

multipurpose venue) does not exceed 50% of normal seating capacity, or 100
persons, whichever is less, provided, however, that this limitation does not
apply to soup kitchens and shelters;

(B) At food service establishments, or the designated dining area of a

multipurpose venue, indoor dining is closed between the hours of 11:00 PM
and 4:00 AM;

(C) The venue displays, in a prominent location, the MDHHS “Dining During
COVID-19” brochure.

(c) Gatherings at non-tribal casinos may not exceed 30% of total occupancy limits established
by the State Fire Marshal or a local fire marshal.

4. Gathering restrictions for other facilities. In addition to the gathering limitations set forth
elsewhere in this order, the following limitations apply to gatherings in the following facilities:

(a) A gathering at a retail setting, library, or museum must not exceed 50% of total occupancy
limits established by the State Fire Marshal or a local fire marshal. Nevertheless, a retail
store, library, or museum may permit one customer at a time to enter if strict adherence to
the 50% total occupancy limit would otherwise result in closure. Spaces for indoor dining,
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including food courts, must comply with the requirements for food service establishments
as set forth in section 3(b).

(1) Retail stores must establish lines to regulate entry and checkout, with markings for
patrons to enable them to stand at least 6 feet apart from one another while waiting.

(b) At exercise facilities:

(1) Gatherings must not exceed 30% of the total occupancy limits established by the
State Fire Marshal or a local fire marshal;

(2) There must be at least 6 feet of distance between each occupied workout station and
physical layout of the space must be established such that exercisers can move
between stations while maintaining 6 feet of distance from others at all times; and

(3) Gatherings for group fitness activities or classes are permitted, provided that all
persons maintain at least 6 feet of distance from others at all times and wear a face
mask at all times.

(c) Gatherings in waiting rooms at outpatient health care facilities, veterinary clinics, and
other businesses are prohibited unless the facility implements a system to ensure that
persons not of the same group maintain 6 feet of distance. To the extent possible, this

7
 system must include a policy that patients wait in their cars for their appointments to be
called.

(d) Gatherings at an indoor pool not otherwise prohibited by this order must not exceed 30% of
bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code.
Gatherings at an outdoor pool not otherwise prohibited by this order must not exceed 50%
of bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code.

(e) Gatherings at ice and roller rinks are permitted, provided that occupancy is limited to 10
persons per 1,000 square feet, including within the exercise space. Gatherings for the
purpose of open skating are permitted.

(f) In facilities offering non-essential personal care services, including hair, nail, tanning,
massage, traditional spa, tattoo, body art, piercing services, and similar personal care
services, all services must be provided by appointment, and gatherings in waiting areas are
prohibited.

5. Schools, colleges, technical schools, and universities.

(a) Subject to local health department and school district authority, and consistent with the
applicable restrictions in section 6, gatherings at public, nonpublic, and boarding schools
are permitted for the purpose of conducting in-person instruction and extracurricular
activities in prekindergarten through grade 12.

(b) Gatherings at public, nonpublic, and boarding schools are permitted for the purpose of child
care programs, tutoring and academic support, and for providing services to students in
need, including food distribution, access to internet connectivity, and physical and mental
health care services.

(c) Gatherings at colleges and universities, trade schools, and career schools are permitted for
the purpose of holding in-person classes and other events sponsored by the educational
institution. The limits imposed by section 2(a) and 2(b) do not apply to such gatherings, but
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they remain subject to all other applicable requirements of this order.

6. Organized sports gathering restrictions.

(a) Gatherings for the purpose of contact sports practice and competition are prohibited unless:

(1) Participants remain masked; or

(2) Where it would be unsafe for participants to remain masked, all participants are
tested consistent with the MDHHS publication entitled Interim Guidance for
Athletics issued March 20, 2021.

(b) Gatherings for the purpose of sports practice and competition are prohibited unless
participants maintain 6 feet of distance from each other when not engaged in play.

(c) Gatherings of non-participants for the purpose of observing sports practice and competition
must be held consistent with section 3.

(d) Sports organizers, venues, and teams must ensure that all gatherings for the purpose of
sports competition and practice comply with the requirements of this order.

8
 (e) Even where it is not required, sports organizers are encouraged to administer a testing
program as specified in the MDHHS publication entitled Interim Guidance for Athletics
issued March 20, 2021.

(f) Beginning on April 2, 2021, gatherings for the purpose of sports practice and competition
involving persons age 13 to 19 are prohibited unless all such persons participate in a
testing program as specified in the MDHHS publication entitled Interim Guidance for
Athletics issued March 20, 2021.

7. Face mask requirement at gatherings.

(a) All persons participating in gatherings are required to wear a face mask.

(b) As a condition of gathering for the purpose of transportation, transportation providers must
require all staff and patrons to use face masks, and must enforce physical distancing among
all patrons to the extent feasible.

(c) Except as provided elsewhere in this order, a person responsible for a business, store, office,
government office, school, organized event, or other operation, or an agent of such person,
must prohibit gatherings of any kind unless the person requires individuals in such
gatherings (including employees) to wear a face mask, and denies entry or service to all
persons refusing to wear face masks while gathered.

(d) A person responsible for a business, store, office, government office, school, organized event,
or other operation, or an agent of such person, may not assume that someone who enters
the facility without a face mask falls within one of the exceptions specified in section 8 of
this order, including the exception for individuals who cannot medically tolerate a face
mask. An individual’s verbal representation that they are not wearing a face mask because
they fall within a specified exception, however, may be accepted.

(e) A person responsible for a child care organization or camp, or an agent of such person, must
not allow gatherings unless face masks are worn by all staff. Children must wear face
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masks as indicated below:

(1) All children 2 years and older when on a school bus or other transportation provided
by the child care organization or camp;

(2) All children 4 years and older when in indoor hallways and indoor common areas;

(3) All children 5 years and older when in classrooms, homes, cabins, or similar indoor
settings.

(f) Participants in gatherings for any exercise activities, group fitness, or organized sports
must comply with face mask requirements listed in the MDHHS publication entitled
Interim Guidance for Athletics issued March 20, 2021.

8. Exceptions to face mask requirements. Although a face mask is strongly encouraged even for
individuals not required to wear one (except for children under the age of 2), the requirement to
wear a face mask in gatherings as required by this order does not apply to individuals who:

(a) Are younger than 5 years old, outside of a child care organization or camp setting (which
are subject to requirements set out in section 7(e));

(b) Cannot medically tolerate a face mask;

9
 (c) Are eating or drinking while seated at a food service establishment or at a private
residence;

(d) Are exercising outdoors and able to consistently maintain 6 feet of distance from others;

(e) Are swimming;

(f) Are receiving a medical or personal care service for which removal of the face mask is
necessary;

(g) Are asked to temporarily remove a face mask for identification purposes;

(h) Are communicating with someone who is deaf, deafblind, or hard of hearing and whose
ability to see the mouth is essential to communication;

(i) Are actively engaged in a public safety role, including but not limited to law enforcement,
firefighters, or emergency medical personnel, and where wearing a face mask would
seriously interfere in the performance of their public safety responsibilities;

(j) Are engaging in a religious service;

(k) Are giving a speech for broadcast or to an audience, provided that the audience is at least
12 feet away from the speaker; or

(l) Are participating in a testing program specified in the MDHHS publication entitled Interim
Guidance for Athletics issued March 20, 2021, and are engaged in practice or competition
where the wearing of a mask would be unsafe;

(m) Are engaging in an activity that requires removal of a mask not listed in another part of
this section, and are in a facility that provides ventilation that meets or exceeds 60 ft3/min
of outdoor airflow per person;

(n) Are at a residential gathering where all persons are fully vaccinated and not experiencing
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the principal symptoms of COVID-19.

9. Contact tracing requirements for particular gatherings.

(a) Gatherings are prohibited at the following facilities unless the facility maintains accurate
records, including date and time of entry, names of patrons, and contact information, to aid
with contact tracing, and denies entry for a gathering to any visitor who does not provide,
at a minimum, their name and phone number:

(1) All businesses or operations that provide hair, nail, tanning, massage, traditional
spa, tattoo, body art, piercing services, or similar personal care services; and

(2) Exercise facilities.

(b) All businesses or operations that provide in-home services, including cleaners, repair
persons, painters, and the like must not permit their employees to gather with clients
unless the business maintains accurate appointment records, including date and time of
service, name of client, and contact information, to aid with contact tracing.

(c) All dine-in food service establishments must maintain accurate records of the names and
phone numbers of patrons who purchase food for consumption on the premises, and the
date and time of entry.

10
 (d) Upon request, businesses, schools, and other facilities must provide names and phone
numbers of individuals with possible COVID-19 exposure to MDHHS and local health
departments to aid in contact tracing and case investigation efforts.

(e) Data collected under this section:

(1) Must not be sold, or used for sales or marketing purposes without the express
consent of each patron;

(2) Must be protected as confidential information to the fullest extent of the law;

(3) Must not be provided to law enforcement or immigration officials except upon receipt
of a lawful subpoena from a court or other lawful court order;

(4) Must be retained for 28 days by the collecting organization, after which time the
data must be destroyed. If facilities use existing data to fulfill this requirement, they
may instead follow their own pre-existing data retention and destruction policies at
the conclusion of the 28-day retention period.

10. Implementation.

(a) Nothing in this order modifies, limits, or abridges protections provided by state or federal
law for a person with a disability.

(b) Under MCL 333.2235(1), local health departments are authorized to carry out and enforce
the terms of this order.

(c) Law enforcement officers, as defined in the Michigan Commission on Law Enforcement
Standards Act, 1965 Public Act 203, MCL 28.602(f), are deemed to be “department
representatives” for purposes of enforcing this order, and are specifically authorized to
investigate potential violations of this order. They may coordinate as necessary with the
appropriate regulatory entity and enforce this order within their jurisdiction.
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(d) Neither a place of religious worship nor its owner is subject to penalty under this order for
allowing religious worship at such place. No individual is subject to penalty under this
order for engaging in religious worship at a place of religious worship.

(e) Consistent with MCL 333.2261, violation of this order is a misdemeanor punishable by
imprisonment for not more than 6 months, or a fine of not more than $200.00, or both.

(f) Nothing in this order affects any prosecution or civil citation based on conduct that occurred
before the effective date of this order.

(g) Nothing in this order should be taken to interfere with or infringe on the powers of the
legislative and judicial branches to perform their constitutional duties or exercise their
authority, or protections guaranteed by the state or federal constitution under these
emergency circumstances.

(h) Consistent with any rule or emergency rule promulgated and adopted in a schedule of
monetary civil penalties under MCL 333.2262(1) and applicable to this order, violations of
this order are also punishable by a civil fine of up to $1,000 for each violation or day that a
violation continues.

11
 (i) If any provision of this order is found invalid by a court of competent jurisdiction, whether
in whole or in part, such decision will not affect the validity of the remaining part of this
order.

This order takes effect on March 22, 2021, at 12:01 AM, at which time the March 2, 2021, order entitled
Gatherings and Face Mask Order is rescinded. This order remains in effect through April 19, 2021, at
11:59 PM. Persons with suggestions and concerns are invited to submit their comments via email to
[email protected].

Date: March 19, 2021

_______________________________________

Elizabeth Hertel, Director

Michigan Department of Health and Human Services

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12
EXHIBIT B
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 INTERIM GUIDANCE FOR ATHLETICS

Michigan.gov/Coronavirus

Updated 3/20/2021

Summary of Recent Changes

• Testing guidance updated based on current levels of SARS-CoV-2 transmission and
activities permitted under epidemic orders.

• Weekly testing is required for individuals ages 13 – 19 who participate in athletics.

o Additional testing is required for contact sports where a mask cannot safety be
worn.

Executive Summary
• Organized sports, like other activities where participants gather and interact in close proximity
across households, pose COVID-19 risks. Depending on COVID-19 infection rates, sports may
need certain mitigation measures to avoid exposing participants to unacceptable infection risk
and risk of accelerated virus transmission in their communities.
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• Different restrictions and mitigation measures may be needed based on the particular risk of each
sport and current rates of transmission: (a) contact sports, such as football and wrestling, pose a
higher risk of transmitting COVID-19 to athletes, coaches, and the general community, than non-
contact sports; (b) indoor sports pose higher risks than outdoor sports; and (c) sports where a face
mask cannot be worn, such as wrestling and water polo, pose higher risks than sports where
athletes can wear face masks throughout play.

• Mitigation measures are described below for non-contact sports and contact sports in which
masks can be worn. Additional mitigation measures, including more frequent testing, are
described for situations in which face masks cannot be worn safely.

• CDC and MDHHS guidance should be adhered to for sports teams/clubs and facilities that are
continuing to operate.

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 Sports and Risk of COVID-19 Transmission
Counties around the country have faced outbreaks of COVID-19 associated with sports teams. As
of March 11, 2021, local health departments in Michigan had reported 162 new and ongoing
outbreaks among K-12 schools, with 54 of those outbreaks reported in the week prior. In the past
four weeks, spread of COVID-19 has risen 105% amongst persons aged 10-19 in Michigan.
Additionally, there are 135 identified outbreaks among minors participating in school and club
sports in Michigan. The social activities surrounding sports, such as team meals and parties, may be
a major factor in this spread. To promote the continued safe operation of in-person schools,
additional mitigation measures related to youth sports activities are warranted. Outbreaks of this
magnitude have the potential to affect not only just a sports team, but also the broader community
in which the players and coaches reside.

Sports requiring frequent and close interaction between players make prevention of virus
transmission much more difficult compared to sports where players are not as close to each other.
The risk of virus transmission is increased by the number of individuals a player physically interacts
with, as well as the intensity and duration of that interaction.

Contact sports, meaning sports involving more than occasional and fleeting contact, pose a
particular challenge in the era of COVID-19 due to the closeness of the players and potential for
virus transmission. Even with mitigation measures in place, such as wearing of masks, transmission
cannot be completely prevented when players are in prolonged or intense contact. Contact sports
include the following: football, basketball, rugby, field hockey, soccer, lacrosse, wrestling, hockey,
boxing, futsal and martial arts with opponents. These risks are even greater for indoor contact
sports where there is a lack of natural ventilation to mitigate the close proximity of participants.
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The American Academy of Pediatrics (URL: bit.ly/2LsSbEO) outlines sports for which face mask-
wearing is not recommended, because the face mask could get caught on objects, impair vision, or
become a choking hazard (competitive cheerleading/tumbling/stunting/flying; gymnastics;
wrestling) or because a face mask would become saturated with water (swimming; diving; water
polo; other water sports). These sports, too, pose greater risk of virus transmission than sports for
which athletes can wear a face mask at all times.

As the epidemiology of COVID-19 around the country and the state of Michigan evolves, MDHHS
will continue to review these recommendations.

Sports organizers, families, teams, and communities should assess the risk versus benefit of playing
organized sports. Individual circumstances, including underlying health conditions that
put athletes or household contacts at increased risk of severe disease if they should contract
COVID-19, should be considered before returning to practice or play. Mitigation efforts can reduce
the risk of contracting COVID-19; however, mitigation efforts will not eliminate COVID-19 risk.

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 Testing Requirements for Athletics

All individuals ages 13 – 19 participating in contact and non-contact athletic activities must test for
SARS-CoV-2 on a weekly basis, except:
• Individuals who participate in contact sports where face masks cannot be worn must
test for SARS-CoV-2 before an unmasked activity, up to 3 times weekly.
▪ Unmasked activities in practice or competition can be performed only with a
negative antigen test within the preceding 24 hours or negative RT-PCR test
within the preceding 72 hours of the unmasked practice or play.
▪ Continuation of unmasked, contact sports may change based on prevalence
and characteristics of virus in the community (e.g. rapid spread, positivity,
variant).
▪ Testing is recommended before any inter-team competition, especially
before players come into close contact with other players from outside the
local community.

Athletes who test positive with an antigen test should isolate immediately and obtain a RT-PCR test
within 48 hours. Unless the athlete tests negative on a RT-PCR test within a 48 hour period from
the original positive antigen test, they must isolate and may not return to team play or practices for
the duration of their infectious period as determined by current CDC guidance (URL:
bit.ly/2TBf0Xq).
• Athletes (symptomatic or asymptomatic) who test positive on a RT-PCR test must
isolate for 10 days from date of first positive test (if asymptomatic) or as determined
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by current CDC guidance (URL: bit.ly/2TBf0Xq) (if symptomatic). They may not return
to team play or practices for the duration of their infectious period.

Athletes who have recovered from confirmed COVID-19 in the past three months and remain
symptom-free may participate in athletics without testing if they can provide a letter from their
doctor attesting that they fall into this category (the individual must have had a positive diagnostic
test within three months. An antibody test is not sufficient).

Sports team staff should maintain prompt follow-up for case investigation and full contact tracing
(including affected contacts outside of the athletic team). Teams and individuals must adhere with
local health department or MDHHS guidance for contact tracing, case investigation or outbreak
investigation.
Professional sports, collegiate sports, and semiprofessional sports whose leagues have stricter
requirements for testing and athletic conduct than that outlined above should continue to follow
their league protocols. Testing can be no less frequent than the protocols outlined above.

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 Resources for Athletics Testing
MDHHS is here to support testing your athletes and keeping your sports programs safe. Please visit
our MI Safer Sports Testing Program (URL: bit.ly/3qYFsIB) website for information including:
- Enrollment Forms
- Antigen test result reporting
- Test order surveys
- Training videos
- FAQs

General Mitigation Measures for Athletics

MDHHS requires the following behaviors to reduce risk of virus transmission whenever athletes are
practicing or competing. These requirements apply to athletes as well as support staff (coaches,
athletic trainers, etc.).

1. Wear Face Masks

• Athletes must wear a face mask at all times, except in activities where face masks
are not able to be worn safely.

o Specific exceptions are listed in the Additional Mitigation Measures for

Contact Sports or Activities When Face Masks Cannot be Used section
below.
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• Adjusting the level and intensity of physical activity and taking frequent rest breaks can
improve toleration of a face mask.
• Any cloth face covering that becomes saturated with sweat should be changed
immediately.

2. Isolate or Quarantine Away from Others if Symptoms or Exposure to COVID-19

• Players should not play or practice while symptomatic (URL: bit.ly/3oCRHe5) even with a
negative COVID-19 test, per current CDC guidelines. They may return only when
symptoms have resolved for >24 hours and with a negative RT-PCR result.
• Those who test positive should isolate and may not return to team play or practices for
the duration of their infectious period as determined by current CDC guidance (URL:
bit.ly/2TBf0Xq).

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 • Teams should institute a screen for symptoms before play. Teams may sign up for and
use the free MI Symptoms tool (URL: misymptomapp.state.mi.us/) to complete self-
screening for COVID symptoms.
• Anyone with symptoms or exposure should be tested before returning for play.
• Athletes should not play or practice while a household contact is exhibiting any signs or
symptoms of COVID-19.
• Athletes should not play or practice if deemed a close contact (URL: bit.ly/36OM2dK) of
someone infected with COVID-19 and should quarantine at home as required by the
local health department.
• Teams and athletes must comply with local and state public health officials during any
case investigation, contact tracing or outbreak investigation that may be required, and
with enforcement of quarantine and isolation requirements.

3. Practice Safer Individual Behaviors

• Wash hands frequently and cover coughs and sneezes.
• Do not share items that are difficult to clean, sanitize or disinfect. Use separate towels,
clothing or other items used to wipe faces or hands.
• Individuals should use their own gear/equipment and minimize sharing equipment.
• Individuals are encouraged to provide their own food, drinks, and/or water.
• If a mask is removed during a break, participants must remain at least 6 feet apart from
others.
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• Refrain from pre- or post-event handshakes, hugs, fist bumps, high fives or contact
celebrations.
• Refrain from spitting, chewing gum or tobacco in the event areas.
• For younger athletes, it may be beneficial for parents or other household members to
monitor their children, make sure they follow social distancing and take other protective
actions (e.g., younger children could sit with parents or caregivers, instead of in a
dugout or group area).

4. Clean and Disinfect Often

• Ensure enough time between events or practices to allow for proper cleaning and
disinfection of the facilities and shared equipment.
• Ensure adequate supplies to support healthy hygiene practices for participants,
spectators, and employees, including soap, hand sanitizer with at least 60 percent
alcohol content, paper towels and tissues.

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 • Identify an adult staff member or volunteer to ensure proper cleaning and disinfection
of objects and equipment, particularly for any shared equipment or frequently touched
surfaces.
• When disinfecting, use products that meet EPA’s criteria for use against SARS-CoV-2
(URL: bit.ly/3cNO15B) and that are appropriate for the surface. Prior to wiping the
surface, allow the disinfectant to sit for the necessary contact time recommended by the
manufacturer. Train staff on proper cleaning procedures to ensure safe and correct
application of disinfectants.
• Provide individual disinfectant wipes in bathrooms.

5. Choose Safer Options for Practices and Competitions

• Prioritize outdoor, as opposed to indoor, practice and play as much as possible.
• If playing inside, ensure ventilation systems or fans operate properly. Increase
circulation of outdoor air as much as possible, for example by opening windows and
doors. Do not open windows and doors if doing so poses a safety or health risk (e.g.,
risk of falling or triggering asthma symptoms) to players or others using the facility.
• Areas with poor ventilation (weight rooms, small spaces) where social distancing cannot
be implemented should be avoided.
• In practices, prioritize noncontact activity, like conditioning and drills, where social
distancing can be maintained.
• Small groups may help reduce the risk of teamwide COVID-19 outbreaks as they allow
for greater social distancing, easier contact tracing, and reducing the number of athletes
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that need to be quarantined.

• Minimize travel to other communities and regions for practices and competition.
• Limit the use of carpools, buses, or other shared transportation between persons
outside the same household. When riding in an automobile to a sports event,
encourage players to ride to the sports event with persons living in their same
household, and always wear a mask if traveling with persons outside the same
household.
• It is recommended that spectators are limited to two per athlete. The total capacity of
stadiums and arenas may be limited by local or state regulation. Find the latest state
regulations at www.Michigan.gov/coronavirus.

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 Additional Mitigation Measures for Contact Sports or Activities When Face
Masks Cannot be Used
If a sports organization, association, or league that oversees the sport and sets rules and guidelines
for sports safety determines a mask is unsafe during contact sports practice or competition,
additional mitigation measures should be used to allow for safer play:
• More rigorous testing requirements apply, as outlined in the Testing Requirements for
Athletics section above.
• Face masks should only be removed prior to activities that could be deemed as
hazardous. Athletes need to wear cloth face coverings between practice drills, while not
playing on the field, mat, or court, on the sidelines, when arriving at or departing from the
playing or practice location, in the locker room, and during shared transportation to and
from the event, and in the presence of anyone outside of the household.
• During the two weeks before and after unmasked athletic events, athletes should
completely avoid participation in non-team social gatherings, which should be strictly
enforced by team staff and coaches.
• If a sports organization, association, or league that oversees the sport and sets rules and
guidelines for sports safety determines a mask is unsafe during contact sports practice or
competition, all teams that are a member of the sports organization must follow the
determination of the sports organization.
o A mask-safety determination is made for the entire sport.
o No exceptions may be granted to any individual, team, or event, for any reason.
See the Wear Face Masks section above for suggestions on how to improve the
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toleration of a face mask.

• The following contact sports or activities are not recommended to be performed while
masked by the American Academy of Pediatrics (URL: bit.ly/2LsSbEO):
o Competitive cheerleading when tumbling/stunting/flying, and gymnastics while
on the different apparatuses, because the covering may get caught on objects
and become a choking hazard or accidently impair vision.
o During wrestling contact, a cloth face covering could become a choking hazard
and is discouraged.
o Individuals who participate in water sports should not wear a cloth face
covering while they are in the water, because a wet cloth face covering may be
more difficult to breathe through.

For more information, visit Michigan.gov/Coronavirus.

03/02/2021
 For additional resources on mitigation measures and resources available to
athletes and teams, please see the following links:
• MDHHS COVID-19 Information and Resources for Athletics (URL: bit.ly/3pXCwMI)

• MI Safer Sports Testing Program (URL: bit.ly/3qYFsIB)

• CDC: Playing Sports (URL: bit.ly/3rJbyZZ)

• CDC: Considerations for Youth Sports Administrators (URL: bit.ly/3aFfynm)

• MI Safe Start: Youth Sports (URL: bit.ly/3qbvK60)

• MDHHS Antigen Tests FAQ and Resources (URL: bit.ly/3cEMAEQ)

For the latest information on Michigan’s response to COVID-19, please visit

www.Michigan.gov/Coronavirus. You may also call the COVID-19 Hotline at 888-535-6136 or email
[email protected].
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For more information, visit Michigan.gov/Coronavirus.

03/02/2021
EXHIBIT C
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TAB 1
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 Peter B. Ruddell
Office: 517.377.0711
[email protected]

Via Email

March 26, 2021

Elizabeth Hertel
Director
Michigan Dept. of Health and Human Services
333 S. Grand Ave
P.O. Box 30195
Lansing, Michigan 48909

Re: Interim Guidance for Athletics

Dear Director Hertel:

First and foremost, congratulations on successfully completing the confirmation process

before the Michigan Senate.

On behalf of Let Them Play Michigan, Inc., and individual parents across the state, we
have concerns regarding the Interim Guidance for Athletics (“Interim Guidance”) issued by the
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Michigan Department of Health and Human Services (“MDHHS”) on March 20, 2021.

Our request is simple: Please clarify the legal authority under which MDHHS published
the Interim Guidance.

As you recognize in the March 19, 2021 Emergency Order Under MCL 333.2253 –
Gatherings and Face Mask Order (“The Order”), the Public Health Code authorizes you, as the
Director of MDHHS, to “by emergency order . . . prohibit the gathering of people for any purpose
and may establish procedures to be followed during the epidemic to insure continuation of essential
public health services and enforcement of health laws.” See MCL 333.2253(1). It seems clear
that any action you take under this law must be “by emergency order.” Id. (emphasis added).

The Interim Guidance is referenced within The Order, but it was not itself issued
“by emergency order.” It thus appears that the Interim Guidance was not issued pursuant to
MCL 333.2253.

The Order also references MDHHS’s authority to “promulgate rules to safeguard properly
the public health; to prevent the spread of diseases and the existence of sources of contamination;
and to implement and carry out the powers and duties vested by law in the department.” MCL

Honigman LLP • 222 North Washington Square • Suite 400 • Lansing, Michigan 48933-1800

38606242.4
 Elizabeth Hertel
March 26, 2021
Page 2

333.2226(d). But any rule promulgated under that authority is subject to the Michigan
Administrative Procedures Act (“APA”). Based on our research, none of the provisions of the
APA were followed by MDHHS in issuing the Interim Guidance. If our understanding is incorrect,
we welcome your office providing all documents supporting MDHHS’s efforts to comply with the
APA starting with the request for rule-making required under Section 39 of the APA.

As you know the definition of “rule” within the APA is broad and all-encompassing of all
regulations of a state agency. Section 7 of the APA defines “rule” and states:

“Rule” means an agency regulation, statement, standard, policy, ruling, or

instruction of general applicability that implements or applies law enforced or
administered by the agency, or that prescribes the organization, procedure, or
practice of the agency, including the amendment, suspension, or rescission of the
law enforced or administered by the agency.

If, as we suspect, MDHHS did not comply with the APA’s rulemaking requirements when
it issued the Interim Guidance, it is unclear under what legal authority the Interim Guidance is
promulgated. Perhaps MDHHS simply views the Interim Guidance as a “guideline” under Chapter
2 of the APA. If so, then the Interim Guidance has no binding effect on any citizen of the State.
While the legal authority under which you issued The Order is clearly identified within The Order,
the Interim Guidance appears unmoored from any legal authority to promulgate such guidance.
We therefore seek clarification regarding MDHHS’s understanding of whether or not the Interim
Guidance has the force of law, and if so, upon what grounds.
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We look forward to your response. Should you have any questions or concerns regarding
this request, please do not hesitate to contact me.

Very truly yours,

HONIGMAN LLP

Peter B. Ruddell

c: Mr. James Long

Mr. Matthew H. Rick
Let Them Play Michigan, Inc.

Honigman LLP • 222 North Washington Square • Suite 400 • Lansing, Michigan 48933-1800

38606242.4
TAB 2
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 STATE OF MICHIGAN
GRETCHEN WHITMER DEPARTMENT OF HEALTH AND HUMAN SERVICES ELIZABETH HERTEL
GOVERNOR LANSING DIRECTOR

April 2, 2021

Mr. Peter B. Ruddell

Honigman Miller LLP
222 North Washington Square Suite 400
Lansing, MI 48933-1800

Re: Interim Guidance for Athletics

Dear Mr. Ruddell:

Thank you for the kind note on my appointment as the Director of the Michigan
Department of Health and Human Services (MDHHS).

The MDHHS issues the Interim Guidance for Athletics to offer mitigation measures
against particular risks of each sport and the current rate of transmission. When the
MDHHS issues emergency orders under MCL 333.2253 and those orders refer to the
Interim Guidance for Athletics, then the MDHHS expects the Interim Guidance for
Athletics to be followed as directed by the emergency order.
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If you have further legal questions about the Interim Guidance for Athletics, please
correspond with the Michigan Attorney General’s office.

Thank you.

Sincerely,

Elizabeth Hertel

EH:mr/dm

333 SOUTH GRAND AVENUE • PO BOX 30195 • LANSING, MICHIGAN 48909

www.michigan.gov/mdhhs • 517-241-3740
EXHIBIT D
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TAB 1
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TAB 2
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TAB 3
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TAB 4
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