Lansing — Two days before indoor gyms in Michigan are slated to reopen Thursday under a judge’s order, Gov. Gretchen Whitmer is asking a higher court to intervene.

On Tuesday, Whitmer and Robert Gordon, director of the Michigan Department of Health and Human Services, requested the 6th Circuit U.S. Court of Appeals “immediately” suspend a district court order that will allow gyms throughout the state to reopen on Thursday until an appeal can be resolved.

“The last thing that anyone wishes to see is a second wave of the pandemic that may require a return of limitations that have already been relaxed,” wrote state attorneys for Whitmer and Gordon.

“The success of the Governor’s efforts has placed Michigan in a small category of states in which the pandemic is significantly receding, and this ruling creates the risk of reversing this trend,” they added.

On Friday, U.S. District Judge Paul Maloney issued his injunction that allowed gyms to reopen on Thursday.

Maloney, an appointee of former President George W. Bush, granted a preliminary injunction at the request of the League of Independent Fitness Facilities and Trainers Inc. and a group of 22 companies operating gyms here.

On Monday, he rejected a request from Whitmer and Gordon that he suspend or stay his order until their appeal is resolved.

“The focus must be on the prevention of injury, not merely preservation of the status quo,” Maloney said.

So on Tuesday, Whitmer and Gordon asked the 6th Circuit U.S. Court of Appeals to stay Maloney’s order.

Maloney has argued that the state didn’t provide a “rational basis” for why gyms must remain closed in most of Michigan while other indoor activities are allowed.

“The problem here is not lack of data, science or rationale,” the latest motion from Whitmer and Gordon countered. “Instead, what is missing is analytical discipline and judicial modesty.

“Pandemic response cannot be boiled down to the precision of a mathematical formula or the timing of baking a cake. It is a wide-ranging, on-going problem that calls for nimble and flexible approaches, and not one-off judicial carveouts.”

On Monday, Scott M. Erskine, an attorney for the gyms, said the motion for a stay from Maloney was primarily “an improper motion for reconsideration.”

“Preliminary injunctions are designed to prevent irreparable injury, and if the existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury,” Erskine said.

Indoor gyms in northern Lower Michigan and the Upper Peninsula, where there are fewer cases of COVID-19, have already been allowed to reopen.

cmauger@detroitnews.com

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