Michigan Supreme Court might settle fight over Whitmer's powers, experts say

Craig Mauger
The Detroit News

Lansing — A trailblazing legal dispute over the powers of a Michigan governor to take emergency actions could wind up before the state's highest court, say legal experts.

Multiple lawyers said Friday they believe Gov. Gretchen Whitmer would have the upper hand if the Legislature challenges her ability to issue emergency orders, such as the stay-at-home restriction, to stem the spread of COVID-19.

"American Patriot Rally," in protest to Gov. Gretchen Whitmer's Coronavirus pandemic policies, on the Michigan Capitol steps and lawn in Lansing, Michigan, on April 30, 2020.

Bob LaBrant, a longtime attorney who previously served as counsel to the Michigan Chamber of Commerce, said he thought the case would be a "no brainer."

"I think the governor will prevail,” said LaBrant of Whitmer, who's a Democrat.

But others said there are uncertainties about what court would hear the potential case and what arguments would be used. They also note that there aren't past rulings that speak directly to the current debate that's happening amid a pandemic.

There's a separation of powers in government, said Eric Doster, another longtime attorney who previously served as counsel to the Michigan Republican Party.

"That’s why (Senate Majority Leader) Mike Shirkey can’t run around and wear a black robe and sentence people to death,” Doster said. "He’s a legislator, not a judge, and neither is the governor a Legislature."

Michigan Senate Majority Leader Mike Shirkey, R-Clarklake, talks to protesters in the Senate gallery on Thursday, April 30, 2020.

On Thursday, amid protests at the Capitol, the Republican-controlled Legislature decided not to extend Whitmer's state of emergency declaration and authorized leaders to file lawsuits against the governor if she continues to act without their input.

No lawsuit was announced Friday. But during a radio appearance on WJR-AM (760), House Speaker Lee Chatfield, R-Levering, called future emergency orders issued by Whitmer "legally questionable."

"When you have a dispute this large in a time as important as right now, there's a good chance it could be settled by the judicial branch," Chatfield said.

Asked about the potential lawsuit Friday, Amber McCann, Shirkey's spokeswoman, responded, "I do not expect legal action to be filed today, but I will let you know once we have filed."

GOP lawmakers, who want more urgent steps taken to reopen the state's economy, believe that Whitmer needed an extension from the Legislature to keep the state of emergency in place. They also believe orders she issues, like her stay-at-home order, are tied to having the state of emergency continued and fall away without it.

Gov. Gretchen Whitmer with Lt. Gov. Garlin Gilchrist II, behind her, acknowledges some guests during the State of the State address at the Capitol Building in Lansing on Jan. 29, 2020.  She is flanked by Senate Majority Leader Mike Shirkey, left, and Speaker of the House Lee Chatfield, right.

However, Whitmer and other Democrats don't believe she needs the Legislature-approved extension. And on Thursday night, Whitmer issued orders extending the state of emergency through May 28.

The legal disagreement focuses on two separate state laws that both allow governors to declare states of emergency.

Bruce Timmons, who spent decades in various staff positions in the Legislature, pointed to a key question: How did the Legislature intend the two past laws to interact?

“I just doubt that the courts are going to say that the governor has no power," said Timmons, who added that he hadn't researched the matter but was speaking based on his "gut instinct."

One law from 1945 allows the governor to declare an emergency and issue orders "to protect life and property or to bring the emergency situation within the affected area under control." That law suggests it's up to the governor to determine when the emergency ends.

Another law from 1976 allows the governor to declare an emergency and take unilateral actions without the Legislature. The law says the governor "is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency."

But the 1976 law also says the declaration is terminated after 28 days unless an extension is approved by the Legislature. Republicans have been focused on the 1976 law in their arguments.

"If the 1976 law supersedes the '45 law, they would have repealed it," Whitmer said. "It was an intentional decision to keep both of these sources of authority for the chief executive of the state of Michigan.

"It is for times like these that that authority is really important when lives are on the line."

Likewise, John Pirich, a longtime elections attorney in Michigan, said he believes the governor has powers under the 1945 law and it would be unlikely that a court would stop her from trying to protect citizens' health and safety.

“I think the 1945 statute is explicit, straightforward and crystal clear,” he said.

Attorney John Pirich

A court could settle the dispute in a matter of days once a lawsuit is filed, Pirich predicted. Other attorneys predicted it would take weeks for a resolution.

LaBrant and others said the fight would likely end up before the Michigan Supreme Court, where there are four-Republican nominated justices and three-Democratic nominated justices. But the current court often doesn't rule along party lines.

As for how the two past laws interact, LaBrant noted that the 1976 law features a phase that says it shouldn't be construed to "limit, modify, or abridge the authority of the governor to proclaim a state of emergency" under the 1945 law.

But Doster said under his reading of the two laws, the 1945 act, unlike the 1976 act, doesn't allow the governor to issue orders that unilaterally amend state law.

Doster said some of Whitmer's executive orders issued under the 1945 act could stand if they don't amend state law.

Tom Leonard, former Republican Michigan House speaker and an attorney for Plunkett Cooney, said he sees the Legislature's best argument being the separation of powers among the legislative, executive and judicial branches.

"We have a system of checks and balances," Leonard said of the Legislature's best argument. "No governor should have the power to render the Legislature irrelevant and exercise unilateral control over state and local government."