State set to pay $200K on 2020 lawsuit over Whitmer's COVID pandemic orders

Beth LeBlanc
The Detroit News

The state of Michigan will pay about $200,000 in attorney fees and costs in relation to a lawsuit that toppled Gov. Gretchen Whitmer's emergency powers more than six months into the COVID-19 pandemic. 

U.S. District Judge Paul Maloney signed off on a stipulated order Friday awarding the Mackinac Center for Public Policy attorney fees and costs more than a year and half after the center represented medical providers and a patient suing the state over an executive order that required the facilities to delay non-essential services during the pandemic.

Maloney's order did not include the amount awarded, but the Mackinac Center said in a Monday statement that the total amounted to $200,000. The governor and Attorney General Dana Nessel continue to deny liability, the center said.

The Mackinac Center, a free-market-oriented research center in Midland that filed the suit with the Miller Johnson law firm, said it would use the money to "help offset costs incurred litigating against the governor's unconstitutional use of power."

“For five months, Gov. Whitmer disregarded the law, suppressed civil liberties and controlled the day-to-day activities of 10 million Michigan residents,” Mackinac Center President Joseph Lehman said in a statement. “During this time, the governor’s orders sought to micromanage almost every aspect of our lives. We are proud to have successfully brought a suit restoring freedom to all Michiganders, and we remain vigilant to prevent future arbitrary governmental action.”

A spokesman for Whitmer deferred comment to Nessel's office. Nessel spokeswoman Lynsey Mukomel did not immediately comment on the suit and noted most employees are off Monday because of the Juneteenth holiday.

The suit filed in May 2020 challenged the laws underpinning Whitmer's COVID-19 executive orders as an unconstitutional delegation of legislative authority.

Instead of ruling on the issue himself, Maloney sent the issue to the Michigan Supreme Court, asking the justices to rule on the question since it involved state law. 

In October 2020, the high court ruled 4-3 that the Emergency Powers of the Governor Act violated the state's non-delegation clause because it inappropriately delegated lawmaking authority to the governor. In addition, the court unanimously ruled that Whitmer had overstepped her power under the Emergency Management Act when she extended without legislative approval the state of emergency on April 30, 2020, past the 28-day window allowed for under law.

The high court's decision came as dozens of suits challenging the state's epidemic powers were still pending in state and federal court.

After the decision, Whitmer turned to the state health department to issue similar orders that continued to govern pandemic restrictions for more than a year. The state health department's epidemic orders were largely eliminated several months ago. 

Other lawsuits were filed against the state health department orders but none have so far been successful in halting those orders. One circuit court decision calling the health department's epidemic orders unconstitutional has been challenged in the Michigan Court of Appeals.

Last week, the Michigan House began deliberations on a 31-bill package overhauling state emergency authority provisions across several departments, including one bill that would limit state health department orders to a 28-day window that would need legislative approval for an extension. Whitmer has vetoed other efforts to curb public health emergency authority.

Additionally, two separate petition initiatives have sought to permanently repeal the laws underpinning the pandemic orders. Unlock Michigan successfully repealed the Emergency Powers of the Governor Act, but Unlock Michigan II still is collecting signatures to limit public health epidemic orders to 28 days before legislative approval is required for extensions.