Michigan House, Senate sue Gov. Whitmer, call emergency powers 'invalid'

Craig Mauger
The Detroit News

Lansing — The Michigan Legislature filed suit against Michigan Gov. Gretchen Whitmer on Wednesday, challenging as "improper and invalid" her emergency orders to combat COVID-19 and seeking a "speedy hearing."

House Speaker Lee Chatfield, R-Levering, and Senate Majority Leader Mike Shirkey, R-Clarklake, announced the suit in the Michigan Court of Claims during a press conference inside the Michigan Capitol, reflecting a major escalation of the fight between Republican lawmakers and the Democratic governor.

A longtime Michigan political observer had to go back to the early 1990s to find a comparable legal fight between the Legislature and governor.

But for reasons they declined to explain, the legislative leaders stopped short of asking a judge to immediately nullify Whitmer's powers or orders with an injunction, instead asking for a speedy hearing toward a declaratory judgment.

Senate Majority Leader Mike Shirkey, Gov. Gretchen Whitmer and House Speaker Lee Chatfield are pictured.

Chatfield said Whitmer exceeded her power and declined to make "common sense changes" to her restrictions and alleged Whitmer had decided to "go it alone."

"Because of that, we filed a lawsuit today in the Court of Claims, challenging the governor's unconstitutional actions," Chatfield said. "Today was very avoidable, but it is necessary. It's a sad day for our state because we truly should all be working together."

The governor's office initially declined to comment on the litigation but quickly shifted course and defended Whitmer's actions. The lawsuit is "just another partisan game that won't distract the governor," said Tiffany Brown, Whitmer's spokeswoman.

"Her No. 1 priority is saving lives. She’s making decisions based on science and data, not political or legal pressure," Brown added.

The governor often holds press conferences on Wednesday but didn't this week.

The legislative leaders asked for a declaratory judgment, which means they want Court of Claims Judge Cynthia Stephens to resolve legal uncertainty.

Whitmer’s “recent actions seize lawmaking power from the Legislature in service of a new executive-domineered legal regime," according to the lawsuit. "In doing so, Defendant takes control of matters at the core of the Legislature’s constitutional mandate. And she does so under no discernible standards or time limits, save vague insistences that an ‘emergency’ requires them.” 

Michigan Senate Democrats bashed the GOP lawsuit in a statement. 

"We are appalled that those across the aisle are choosing a global pandemic as the time to pick political fights with the governor instead of focusing on what we can do to help the people of our state," the Democratic statement said.

Stephens, an appointee of Democratic former Gov. Jennifer Granholm, is the Court of Appeals judge assigned to hear the case.

Fighting over emergency powers

The lawsuit filing came six days after the Michigan Legislature approved resolutions authorizing Chatfield and Shirkey to take legal action against Whitmer's unilateral powers on behalf of the GOP-controlled House and Senate.

The debate continues to focus on how long the Democratic governor can keep her state of emergency declaration in place without getting approval from GOP lawmakers who want a say in reopening the state's economy.

The emergency declaration is what allows Whitmer to take unilateral actions to fight the novel coronavirus, such as issuing her stay-at-home order that requires most Michigan residents to stay inside their residences. That order is in place until May 15, according to Whitmer's administration.

Senate Majority Leader Mike Shirkey, R-Clarklake, left, and House Speaker Lee Chatfield, R-Levering, announce a lawsuit against Gov. Gretchen  Whitmer's emergency powers on Wednesday, May 6, 2020.

Asked about the legality of the governor's orders without the declaration approval of the Legislature, Chatfield called the orders "legally questionable at best."

"I think they should continue to speak with their local officials, and I think they should exercise the best reason and judgment," Chatfield said about residents. "I am not encouraging any civil disobedience or mass chaos at this point in our state. But I think these orders are legally questionable. That’s why we’re going to court.”

Michigan Attorney General Dana Nessel, a Democrat, issued a letter Tuesday, saying the stay-at-home order remains enforceable by local authorities despite Republicans' comments.

Republicans want to see the stay-at-home order and other restrictions on businesses lifted more quickly to help salvage the state's economy. Whitmer and Democrats say they're going to rely on science, data and health experts to make decisions about when to reopen the economy.

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

She previously asked lawmakers to extend her emergency declaration, which expired at the end of Thursday, by 28 days. Republican lawmakers refused to do so last week.

They argue without their approval, the declaration ended. They point to the 1976 Emergency Management Act, which gives the governor emergency powers but also requires the Legislature's approval for further measures after an emergency declaration has been in effect for 28 days.

The Republicans' lawsuit says Whitmer's reading of the 1976 law would "defeat a central purpose of the statute: allocating power across both the legislative and executive branches to respond to crises."

Democrats emphasize a 1945 law that allows the governor to declare a state of emergency and have emergency powers without the 28-day time limit. The 1945 law suggests a governor can declare when an emergency no longer exists.

In the court filing, the Republicans argued that the 1945 law "was intended to address local crises in the vein of civil disturbances in an area within the state — not statewide health emergencies."

The 1945 law reserves emergency powers for the governor "during times of great public crisis, disaster, rioting, catastrophe, or similar public emergency ... or reasonable apprehension of immediate danger of a public emergency."

The 1976 law, which outlines procedures for both disasters and emergencies, defines emergencies as instances in which a governor determines state assistance is needed to "save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state."  

Last week, Whitmer extended the state of emergency in Michigan until May 28 under both laws, attempting to start a new 28-day window under the 1976 law.

Whitmer has repeatedly said the emergency powers she has "do not depend on an extension from the Legislature."

Shirkey read from the Republicans' court filing Wednesday, saying they were seeking the court’s intervention to "restore constitutional order."

Tom Leonard, a Republican former Michigan House speaker and attorney for Plunkett Cooney, said he views the separation of powers assertion to be the Legislature's best argument in the case.

"At the early stage of this crisis, the governor had a strong case for why she needed  these powers — she had to act quickly and decisively," said Leonard, who unsuccessfully ran for attorney general in 2018 against Nessel. "But we are past that stage now and have more time to make sure public policy decisions are well vetted and developed through a democratic process."

Whitmer is simply exercising powers granted to her by state law, countered Steve Liedel, an attorney with the firm Dykema and who served as general counsel to the governor's transition team.

"There are emergency powers that have been vested in the governor," Liedel said Wednesday.

Past legal skirmishes

The most comparable situation to the Legislature's suit against Whitmer came almost 30 years ago, said Bill Ballenger, a former Republican lawmaker and longtime political observer in the state. 

In the early 1990s, the Democratic House speaker sued Republican Gov. John Engler at least twice over the use of his executive power. 

In one case, Engler used an agency known as the State Administrative Board to make 11 budget fund transfers within state departments — something the Democratic-controlled House refused to do separately to address a budget deficit. In 1993, the high court upheld Engler’s ability to use the obscure maneuver in a 4-3 decision. 

Whitmer used the precedent in 2019 to make more than $600 million in budget transfers within departments to nullify spending priorities set by the Republican-controlled Legislature.

In 1991, Engler issued executive orders that shifted the Department of Natural Resources from being a legislatively created agency to a governor-created agency, allowing him to appoint the head of the Natural Resources Commission. He abolished 18 boards and commissions that managed Michigan’s natural resources and created a new Michigan Environmental Science Board within the Department of Management and budget.

The Democratic House speaker and environmental groups joined forces to sue Engler, but the Michigan Supreme Court unanimously ruled that the two executive orders were constitutional.

While there is precedent for lawsuits between lawmakers and governors, Ballenger said this is the most acrimonious relationship concerning serious policy matters he has seen in the last half century. 

“I am talking about serious policy disagreements,” Ballenger said. “I have never seen this much dysfunction between the executive and legislative branches than I have seen in the last 16 months.” 

Gideon D'Assandro, Chatfield's spokesman, declined to comment on why the Republicans didn't seek an immediate halt or preliminary injunction to the governor's emergency orders. If a judge issued such an injunction, it would invalidate the governor's orders even while the case is appealed to higher courts.

Liedel said it's likely because a judge wouldn't want to take such a step across the separation of powers in government.

About how much the legal battle will cost taxpayers, Shirkey spokeswoman Amber McCann said she didn't believe the Legislature had received invoices related to the case yet.

Legal experts said last week that the fight between the Legislature and Whitmer could end up before the Michigan Supreme Court, the state's highest court. They also said there were no past rulings in the state that spoke directly to the matter. Resolving the lawsuit could take weeks, they said.

The Michigan Supreme Court has four Republican-nominated justices and three-Democratic-nominated justices. However, the current court often doesn't rule along party lines, including in controversial partisan cases.