Nessel asks high court to reverse ruling overturning Whitmer's emergency powers

Beth LeBlanc
The Detroit News

Attorney General Dana Nessel's office has asked the Michigan Supreme Court to "disavow" a 2020 ruling that overturned Gov. Gretchen Whitmer's emergency powers seven months into the COVID-19 pandemic. 

The reasoning used to overturn the Emergency Powers of the Governor Act was an "errant aberration" that distorted Michigan's non-delegation doctrine and is now being referenced in other legal challenges to state pandemic rules, Nessel's office argued in a February filing.

The GOP-led Michigan Legislature is seeking to block Nessel's request, calling it an "unorthodox" application that could cause "institutional harm" to the court should justices reverse their decision so soon after securing a Democratic-nominated majority on the Michigan Supreme Court. 

The Oct. 2, 2020 decision was decided 4-3 along party lines while the Michigan Supreme Court still had a Republican-nominated majority. The majority switched at the end of 2020 so Democratic-nominated justices now hold four seats.

Even if the Supreme Court reversed course on its 2020 decision, the Emergency Powers of the Governor Act no longer exists since it was repealed last year through the Unlock Michigan petition initiative that was approved by the Legislature. 

The Michigan Supreme Court on Monday agreed to allow the Legislature to file a "friend of the court" brief in the case, which stems from an Otsego County restaurant's challenge of state epidemic orders and a Gaylord judge's order that appeared to overturn the state health department's authority to issue the orders.

The Iron Pig Smokehouse in downtown Gaylord on Friday, Feb. 18, 2022.

After the Otsego County decision, Nessel's office in February filed for leave to appeal in the Court of Appeals and, in a separate filing, sought to bypass the Court of Appeals and take their plea directly the Michigan Supreme Court. In her request to the Supreme Court, Nessel asked justices to "disavow" the Oct. 2, 2020 decision overturning the law that underpinned more than 180 executive orders that governed life in the early months of the pandemic. 

Nessel's office asked the high court to overturn the Otsego County judge's decision and uphold the "longstanding" power the state Department of Health and Human Services has to issue epidemic orders to protect public health. She also asked the court to find that the Otsego County judge acted outside his authority when he "purported" to sever a section from the public health code granting state health department officials emergency authority in an epidemic. 

"It was dangerous, in that it destabilized an important source of public health protections presently needed by our most vulnerable residents," Nessel's office wrote in her application to the Supreme Court. It also illustrates "what's to come" as long as the Oct. 2, 2020 decision "tempts judges to invalidate laws that, in their view, delegate too much power or power of the wrong kind."

Iron Pig case

The state's appeal stems from a Gaylord restaurant's refusal in November 2020 to comply with state health department orders that shuttered restaurants for several weeks during a surge of COVID-19. The epidemic orders had taken the place of Whitmer's executive orders, which were overturned on October 2020.

The Iron Pig closed for a few days after the Nov. 15, 2020 epidemic order before reopening in an effort to keep the business afloat. The restaurant received a cease and desist order from the Department of Health Human Services on Nov. 25, 2020, and  ultimately a $5,000 fine for reopening. 

The Iron Pig's case worked its way through the administrative appeals process before being appealed in Otsego County Circuit Court, where Judge Colin Hunter issued his decision on Jan. 13. 

Hunter's Jan. 13 opinion declared unconstitutional a key part of Michigan's public health law under which the state health department issued orders and still issues orders in response to the pandemic. 

Hunter said the state law allowing the Department of Health and Human Services to issue the epidemic orders was an unconstitutional delegation of legislative power because the orders lacked clear guidelines, benchmarks or time limits to keep the emergency authority in check. The reasoning was nearly the same used to overturn Whitmer's executive authority in October 2020. 

Nessel's office asked the judge to clarify the reach of his opinion — whether it was limited to the Iron Pig case, as her office believed, or whether it extended to any state epidemic orders, as the opinion seemed to imply. Nessel's office also appealed to the Court of Appeals and Supreme Court. 

Hunter didn't elaborate on the reach of his opinion but, on Feb. 11, said his order's effectiveness was put on hold pending a Court of Appeals decision.

Supreme Court appeal

In its efforts to secure a reversal from the Supreme Court, Nessel's office urged the high court to provide clarity on the effectiveness of the current public health law so rules still in place — such as the prioritization of nursing home booster shots — aren't questioned.

Nessel's office cited the confusion as evidence of the "mischief" caused by the Oct. 2, 2020 decision and warned that the 2020 ruling will be "misused as a tool of judicial overreach to usurp executive and legislative powers under the guise of preserving their separation." Only the Supreme Court can "correct or clarify" the decision.

"So long as this court leaves it be, the more harm it will do: the more laws that will be undermined by it, the more courts that will misuse or be misled by it, and the more dysfunction that it will create for our democracy and its institutions. For the sake of our state’s nondelegation doctrine as well as its public health, a definitive fix is needed now," according to Nessel's office.

The Michigan House and Senate argued in their filing that the Supreme Court should wait for the case to work its way through the Court of Appeals so that a record can be better developed. The Legislature speculated that Nessel's office was hoping for better odds with a Democrat-nominated majority on the high court.

"The Court should firmly close the door on that invitation," the Legislature's filing said. Allowing Nessel's office to relitigate the case "would no doubt cause many Michiganders to wonder what other 'principles previously declared and enforced in decided cases' are now open for reconsideration."

The Mackinac Center for Public Policy, which brought the case that led to the October 2020 Supreme Court decision, said it was reviewing the brief the attorney general submitted to the high court. 

"Given the Mackinac Center’s involvement in the 2020 decision, we are interested in this case and are pursuing ways to actively participate," said Holly Wetzel, a spokeswoman for the center.