Michigan's high court set to consider questions on Whitmer's emergency powers

Beth LeBlanc
The Detroit News

The Michigan Supreme Court has agreed to consider a Grand Rapids federal judge's request to clarify the extent of Gov. Gretchen Whitmer’s emergency powers, but not before a separate case on the same topic is decided by the state Court of Appeals. 

In a series of two orders Tuesday, the state's high court ordered the Court of Appeals to rule on the Republican-led Legislature’s challenge of the governor’s emergency orders by Aug. 21 and agreed to review U.S. District Judge Paul Maloney’s questions on the same topic following Sept. 2 oral arguments. 

The decision was opposed by Justice Stephen Markman, who said in a dissent that the timeline did little to expedite a case of paramount importance to the state. He called the “unhurried response” of the high court “disconcerting.”

Michigan Supreme Court Justice Stephen J. Markman

The deliberations posed to the high court are not “academic exercises” to address the authority of the governor in the “next pandemic,” Markman wrote, but relate to laws “that will govern the interactions between the Legislature and the governor during the COVID-19 emergency of the year 2020.”

“While there may be little we can do concerning the public health consequences of the present crisis, there is a great deal we can do in assessing the legal and constitutional propriety of our state’s response to the emergency,” Markman wrote. 

Justice Brian Zahra, in an opinion joined by Justice David Viviano, concurred with the process outlined in the orders. Zahra opined that “the instant briefing and argument schedule is as expeditious as possible under the circumstances presented.”

Zahra noted he sided with at least one of Markman’s observations — that there is “no certainty that this court will ever actually answer the certified questions, and if we do choose to do so, such a decision will likely be issued sometime in October, November or December, perhaps.”

Markman, Zahra and Viviano are conservative justices who were nominated to run for the court by the Republican Party.

Michigan Supreme Court Justice Megan K. Cavanagh.

Justice Megan Cavanagh likewise defended the slowed delivery of answers on the certified questions and the Aug. 21 Court of Appeals deadline, which the Legislature had sought to expedite after Maloney’s request. Cavanagh noted that any response to the emergency must “be thoughtfully and thoroughly considered.”

“…these cases will require resolution of important constitutional questions of first impression – perhaps the most imposing exercise we must undertake as the state’s highest court,” said Cavanagh, a Democratic-nominated justice who was elected in 2018. 

Maloney asked the Michigan Supreme Court earlier this month to clarify Whitmer's emergency powers by certifying two questions to the state high court. Those questions included whether state law allowed for the governor's emergency powers to continue after April 30, even without legislative approvals, and whether the emergency laws giving Whitmer virtually limitless authority violate the separation of powers between the governor and Legislature in Michigan's Constitution.

The questions had arisen in a case before Maloney in which Michigan medical centers challenged Whitmer's order banning non-essential procedures. 

The questions closely mirrored those raised by the GOP-controlled Legislature, which is maintaining in a separate suit that Whitmer's emergency powers did not extend past April 30.

In May, Court of Claims Judge Cynthia Stephens ruled in the Legislature's lawsuit that Whitmer had the legal authority to extend Michigan's state of emergency under a 1945 law. But she ruled Whitmer exceeded her authority under a 1976 law, which requires legislative approval for an extension after the initial 28-day emergency has expired.

The Legislature's suit is awaiting August oral arguments in the Court of Appeals and Whitmer has extended Michigan's state of emergency through July 16. 

The Michigan Supreme Court has the authority to answer Maloney's questions and clarify state law for a federal judge's use in federal litigation or ignore it. But it is more common for high courts to accept and answer the questions than not. 

Michigan Gov. Gretchen Whitmer wearing a mask.

"Rather than interpret a novel question of state law for the first time — particularly a question of state law that might affect every citizen in the state of Michigan — this court turns to the ultimate authority on what Michigan law is: the Michigan Supreme Court," wrote Maloney, an appointee of former President George W. Bush.

In their lawsuit before Maloney, the health care providers argued that Whitmer did not have the authority to issue the executive order under the 1945 Emergency Powers of the Governor Act or the 1976 Emergency Management Act. 

They also argue that both laws, by giving Whitmer limitless emergency authority, violate the separation of powers and delegation of duties between the governor and Legislature. 

While the ban on non-essential procedures has been lifted, Whitmer's executive orders still apply to the medical centers because they now require the businesses to comply with new workplace safety requirements, Maloney said.