Legislature asks Michigan Supreme Court to consider emergency powers case

Craig Mauger
The Detroit News

Lansing — The Republican-controlled Legislature is asking the Michigan Supreme Court to immediately consider its lawsuit challenging Democratic Gov. Gretchen Whitmer's emergency powers to combat the COVID-19 pandemic.

In a court filing Friday, the House and Senate requested that the state's high court grant "emergency-bypass review" of the case before a decision from the Court of Appeals.

"If ever there were a case that warranted this court’s immediate involvement, then this would be it," the filing said.

On Thursday, Michigan Court of Claims Judge Cynthia Stephens ruled that Whitmer had legal authority to extend the state of emergency here under a 1945 law. Stephens labeled the Legislature's claim she didn't "meritless."

The state of emergency declaration is what gives Whitmer the power to take unilateral steps to fight the virus, like issuing her stay-at-home order.

Stephens is a member of the Court of Appeals and was appointed by former Democratic Gov. Jennifer Granholm. Four Court of Appeals judges randomly split up Court of Claims cases, which usually involve suits against the state of Michigan.

The Legislature filed an appeal with the Court of Appeals on Friday but also filed the request asking the Michigan Supreme Court to give the case immediate consideration, according to court documents.

The Supreme Court has four justices nominated by Republicans and three nominated by Democrats. However, the current court often doesn't rule along party lines.

In the new court filing, attorneys for the House and Senate said the case "poses a central question of how the branches of government may exercise and balance their powers, particularly in a time of emergency."

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

"Delaying final adjudication would do 'substantial harm,' as citizens and lawmakers would be left in a state of uncertainty at a time when confident decision-making is a requirement for survival," their filing said. "Michiganders are living under and attempting to interpret orders that never should have been implemented over their Legislature’s objection; at the very least, they are living under a cloud of ambiguity that can be rectified by this Court."

The case focuses on two state laws that give the governor the ability to issue emergency declarations in times of crisis.

One law from 1976, the Emergency Management Act, allows the Legislature to weigh in after 28 days.

Another from 1945, the Emergency Powers of the Governor Act, doesn't include a timeline for the Legislature to have a say and appears to allow the governor to decide when to rescind an emergency declaration.

Whitmer has issued emergency declarations under both laws.

Stephens, the Court of Claims judge, said Whitmer had exceeded her authority under the 1976 law but not the 1945 law.

The governor's lawyers have argued that Whitmer has a duty to declare a state of emergency if an emergency exists under laws put in place by lawmakers themselves.

Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering, announced the lawsuit challenging Whitmer's powers on May 6.


Staff Writer Beth LeBlanc contributed