Supreme Court won't hear challenge of Whitmer's emergency powers before Court of Appeals

Beth LeBlanc
The Detroit News

The Michigan Supreme Court denied permission on Thursday for the Republican-controlled House and Senate to argue their case challenging Gov. Gretchen Whitmer’s emergency powers to the high court without first pleading their case to the Court of Appeals. 

Both the Legislature and the Democratic governor had requested permission to bypass the Court of Appeals to expedite the case.

In a 4-3 decision, justices Richard Bernstein, Beth Clement, Bridget McCormack and Megan Cavanagh ruled against the request because of the significance of the legal arguments and judicial rules that generally require the Court of Appeals to consider a case before the Supreme Court. Clement is a Republican-nominated justice, while the other three are Democratic-nominated justices. 

State of Michigan Supreme Court seal in The Hall of Justice in Lansing.

“…One might be left with the impression that this court has declined altogether to decide this case,” Clement said in the decision. “It has not — it has only declined to decide the case before the Court of Appeals does.”

Clement noted she was "unmoved" by the fact that both the governor and Legislature had asked for the bypass around the Supreme Court.

"This court writes the court rules; I do not believe the parties can rewrite the rules for us by their mutual agreement so as to bootstrap their way to jurisdiction," she said.

With Whitmer's recent lifting of some of the stay-at-home restrictions in Michigan, Bernstein said, “our eventual consideration of these issues must receive full appellate consideration.”

The decision comes about two weeks after Michigan Court of Claims Judge Cynthia Stephens ruled 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.”

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

The Legislature appealed almost immediately.

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.

Lawmakers also argued that, under the 1976 law, Whitmer could not extend her emergency past the initial 28 days allowed under law without Legislative approval.

Because of that caveat, the Legislature has argued the governor’s emergency ended April 30 and any executive orders issued afterward were null and void. 

GOP-nominated Justices David Viviano, Stephen Markman and Brian Zahra, all Republican nominees, dissented from the Thursday ruling, contending the arguments regarding the governor’s absolute authority during an emergency were too compelling to delay consideration. 

Markman said the issue was “perhaps the most substantial dispute ever presented to this court,” and the failure to grant the Legislature’s request to bypass the Court of Appeals diminished not only “our standing among the judicial institutions of our federal system” but also “our relevance within the judicial institutions of this state itself.”

"If there is a matter, if there is an obligation, that compels the most urgent action of this court, it is the present matter, our present obligation," Markman wrote. "This case defines the very purpose and the fundamental responsibility of a supreme court of this union of states."

Viviano argued the case involved “some of the most important legal principles that can arise in a free society” and should not be placed “on the conveyor belt with all of the others.”

“These issues, and how we decide them, will have a direct impact on the constitutional liberties of every person who lives or owns property in, or simply visits, our state while the restrictions are in place,” Viviano wrote. 

The Supreme Court also ruled Thursday that it would not consider an appeal from five Michigan residents who argued the governor's stay-at-home was unconstitutional

Court of Claims Judge Christopher Murray ruled in late April in favor of the state over Steve Martinko, Michael Lackomar, Wendy Lackomar, Mark Garmo and Steve Hudenko's lawsuit. 

The Court of Appeals denied the plaintiffs' appeal request on May 26. 

In its Thursday decision, the justices said they were "not persuaded that the questions presented should be reviewed by this court."