Judge set to hear arguments May 15 in Legislature-Whitmer suit

Craig Mauger
The Detroit News

Lansing — Michigan Court of Claims Judge Cynthia Stephens has scheduled oral arguments in the Legislature's lawsuit challenging Gov. Gretchen Whitmer's emergency powers for 10 a.m. May 15.

The hearing will take place through the video-conferencing platform Zoom.

Stephens set the date in an order she signed Friday. Under it, Whitmer's legal team will respond to the suit by the GOP-controlled House and Senate on or before Tuesday.

Senate Majority Leader Mike Shirkey, Gov. Gretchen Whitmer and House Speaker Lee Chatfield are pictured.

House Speaker Lee Chatfield, R-Levering, and Senate Majority Leader Mike Shirkey, R-Clarklake, announced the suit on Wednesday.

They argue that Whitmer, a Democrat, has violated the constitutional separation of powers in government and exceeded her executive authority in taking unilateral steps to combat COVID-19.

Executive orders that Whitmer has issued, such as her stay-at-home order, are "legally questionable" after the Legislature declined to extend a state of emergency declaration here last week, Chatfield said.

Whitmer and her supporters counter that state law allows her to declare a state of emergency and decide herself when to rescind it. Whitmer spokeswoman Tiffany Brown this week labeled the suit a "partisan game." 

Many legal experts expect the case to ultimately be decided by the Michigan Supreme Court. But it's currently before Stephens, a state Court of Appeals judge assigned to the handle the case in the Michigan Court of Claims, which initially handles lawsuits against state government.

Stephens, who was appointed by former Democratic Gov. Jennifer Granholm, is one of four Court of Appeals judges selected by the Supreme Court to serve on the Court of Claims. Stephens was chosen for the case at random by a computer.

In her more recent decisions in the past two years, Stephens has ruled once against Whitmer’s administration and twice against the Republican-controlled Legislature.

In October, Stephens granted a preliminary injunction to vape shop owners who opposed Whitmer’s flavored vaping ban, temporarily stopping the state from enforcing emergency rules banning the sale of the products. 

In 2018, Stephens struck down as unconstitutional two state budget laws passed with mostly Republican support that reimburse private schools for the cost of state mandated fire drills, inspections and other requirements. In 2019, Stephens struck down three of four requirements passed by the GOP-led Legislature that would have made it harder to initiate ballot drives in Michigan. 

Staff Writer Beth LeBlanc contributed