Judge affirms Whitmer's authority to extend COVID-19 emergency; Legislature to appeal

Beth LeBlanc
The Detroit News

Lansing — A Court of Claims judge ruled Thursday that Gov. Gretchen Whitmer had the legal authority to extend Michigan's state of emergency under the Emergency Powers of the Governor Act, calling claims to the contrary "meritless" in a ruling GOP leaders vow to appeal.

But Judge Cynthia Stephens noted the governor exceeded her authority by trying to extend the emergency under the Emergency Management Act of 1976, which requires legislative authority. 

Gov. Gretchen Whitmer

But Stephens upheld the constitutionality of the Emergency Powers of the Governor Act of 1945.

The ruling overrides the argument from the Republican-led House and Senate that Whitmer had no authority to extend the coronavirus state of emergency past April without legislative approval. 

"Through two distinct acts, stated in plain and certain terms, the Legislature has granted the governor broad but focused authority to respond to emergencies that affect the state and its people," Stephens said.

The extension under the Emergency Management Act provided liability protections for health care workers during the pandemic, and it's not clear whether those protections stand after the judge ruled Whitmer exceeded her authority. The Legislature is considering bills extending those liability protections that could perhaps take the place of the protections afforded under the Emergency Management Act.

The Thursday decision recognized the lawfulness of the governor's actions during the pandemic, her office said in a statement. 

"She will continue to do what she’s always done: take careful, decisive actions to protect Michiganders from this unprecedented, global pandemic," the statement said. "We owe it to our front-line heroes who have been putting their lives on the line to pull together as a state and work as one team to stop the spread of this virus." 

Attorney General Dana Nessel said Thursday she was still reviewing the opinion, but she hoped it would allow state leaders to focus on public health instead of "unnecessary legal battles."

"With this clarity, it’s my hope that our public officials and residents can move forward with confidence that the governor has acted in accordance with the authority provided to her under the Emergency Powers of the Governor Act," Nessel said.

Stephens' ruling also established the Legislature did have standing to bring the case. Whitmer had argued lawmakers had no more standing than a member of the public. 

Senate Majority Leader Mike Shirkey, R-Clarklake, said Thursday the Legislature was "disappointed" by parts of the ruling but promised to appeal the decision.

"We are vindicated in our assertion that the governor acted unlawfully in attempting to extend the states of emergency and disaster under the Emergency Management Act without legislative approval," he said. "We are confident in our position and will appeal this ruling."

The ruling

Stephens' Thursday ruling essentially examined the legality of Whitmer's actions under two different emergency laws: the Emergency Powers of the Governor Act of 1945 and the Emergency Management Act of 1976. 

The Legislature had argued the 1945 law only granted Whitmer authority to declare a local state of emergency and, if it did grant the authority for a statewide declaration, then it was unconstitutional because it ceded legislative authority to the governor.

But that is inconsistent with language saying the law granted the governor “sufficiently broad power” to respond to public crises.

The Legislature’s interpretations, Stephens said, “selectively rely on parts of the statute and ignore the contextual whole.”

“The authority to declare an emergency ‘within’ the state is, quite simply, the authority to declare an emergency across the entire state,” Stephens wrote. 

As for the argument that the 1945 is unconstitutional, Stephens wrote, lawmakers are not able to delegate their power to the executive branch, but they are not prevented “from obtaining the assistance of the coordinate branches.”

There are provisions within the law that limit the governor’s actions to what is “reasonable” and “necessary” in “times of great public crisis,” Stephens said. 

“… The court rejects any contention that these terms are too ambiguous to provide meaningful standards.”

But the governor’s authority under the Emergency Management Act is finite without an extension from the Legislature, Stephens said. She noted the “limitation of 28 days is repeated multiple times.”

“The language employed here is mandatory: The governor ‘shall’ terminate the state of emergency or disaster unless the Legislature grants a request to extend it,” Stephens wrote. 

While a new disaster, such as the Tittabawassee River flooding, could prompt another declaration of emergency that would restart the 28-day clock, there was no such trigger to merit a new, separate disaster declaration in the coronavirus pandemic.

"The governor is afforded with broad authority under the EMA to make rules and to issue orders; however, that authority is subject to a time limit imposed by the Legislature,” Stephens wrote. 

The fight that launched the lawsuit

Whitmer's extension on April 30 came after Republicans in the House and Senate said they would not extend her declared state of emergency, which they believe expired at the end of April.

Whitmer has reiterated that the Legislature does not have the ability to end the governor's emergency declaration and stop her from taking action to combat the spreading coronavirus, which has sickened more than 53,500 and killed 5,129 people in Michigan.

Shirkey and House Speaker Lee Chatfield, R-Levering, announced the lawsuit on May 6 after Whitmer issued orders extending the state of emergency in Michigan through May 28.

The Legislature, which wants the economy here to reopen more quickly, refused to extend the emergency, letting it expire, in GOP lawmakers' eyes, on April 30.

Earlier this month, Stephens heard oral arguments in the case for about 80 minutes over the video-conferencing application Zoom. At one point, more than 7,000 people were watching the arguments over the internet as the COVID-19 pandemic continues to restrict public gatherings.

Stephens, who was appointed to the Court of Appeals by former Democratic Gov. Jennifer Granholm, asked skeptical questions of both sides during the hearing. Four Court of Appeals judges randomly split up Court of Claims cases.

Stephens' questions focused on the 1976 Emergency Management Act, which allows the Legislature to weigh in after 28 days.

Legal experts contended Whitmer's best arguments for maintaining emergency powers were in the 1945 Emergency Powers of the Governor Act.

Lawyers for the Michigan House and Senate have argued the 1945 law is meant to be used to combat local emergencies or uprisings, not a statewide pandemic.

Stephens has predicted the case would eventually end up at the Michigan Supreme Court.