Whitmer supporters sue over petition to limit her emergency powers

Craig Mauger
The Detroit News

Lansing — A group of Gov. Gretchen Whitmer's supporters has filed a lawsuit that could serve as an obstacle to the petition campaign aiming to limit her powers during a declared state of emergency.

On Tuesday, in a Court of Appeals filing, a new committee called Keep Michigan Safe challenged a state board's handling of Unlock Michigan's petitions. The Board of State Canvassers, which includes two Democrats and two Republicans, unanimously took the procedural step of signing off on the petitions' summary language and form on July 6.

Unlock Michigan, a group tied to Republican political consultants, wants to repeal a 1945 law that gives governors the ability to declare states of emergency and keep them in place without input from the Legislature.

But the Whitmer-aligned group Keep Michigan Safe argued Tuesday that the Board of State Canvassers approved misleading petition language, didn't provide proper notice for its meeting and allowed Unlock Michigan to add "extraneous" information to its petition form. The suit came the same day Whitmer extended the state of emergency here through Aug. 11.

Michigan Gov. Gretchen Whitmer visits Reflections Hair Salon in Grand Rapids during her "Work with Whitmer" tour on Friday, June 26, 2020.

The lawsuit against the Board of State Canvassers and Elections Director Jonathan Brater says the summary petition language should mention that a repeal of 1945 law would immediately nullify emergency orders Whitmer has issued under it to protect public health and would limit future governors' abilities to respond to a crisis.

"The approved petition summary fails to describe the effect of the proposal beyond merely stating that it would result in the repeal of a 1945 statute dealing with states of emergency," the lawsuit says.

Keep Michigan Safe's attorneys are Mark Brewer, former Michigan Democratic Party chairman, and Chris Trebilcock, who has previously represented Whitmer's campaign interests. The group's treasurer is former Republican U.S. Rep. Joe Schwarz, who served on Whitmer's gubernatorial transition team.

They want to see Unlock Michigan's petitions go back before the Board of State Canvassers.

In their new filing, they argue that the petition form improperly included a reference to the proposal being placed on the 2022 ballot if it's not adopted by the Legislature. That information is "extraneous" to the proposal, they say.

They also argue that the Board of State Canvassers didn't "give any notice whatsoever that it was going to vote on whether to approve or deny the form of Unlock Michigan’s proposed petition."

A ballot committee called Unlock Michigan that wants to repeal a state law that gives the governor emergency powers formed on June 1, 2020.

In response, Fred Wszolek, spokesman for Unlock Michigan, said the group's petition form is standard and he noted that the board voted 4-0 in favor of it.

"We’re collecting signatures," Wszolek said, indicating the group would continue to circulate its petitions as the legal fight plays out.

Unlock Michigan must collect 340,047 valid petition signatures in 180 days to put its initiated legislative proposal to repeal the Emergency Powers of Governor Act before the Republican-controlled Michigan Legislature, which has challenged the emergency powers of Whitmer, a Democrat, in court. If the Legislature votes in favor of the repeal, Whitmer wouldn't be able to veto it.

Whitmer has criticized any attempt to limit her powers while she works to combat the COVID-19 public health crisis. The governor has argued that her measures have helped the state make progress in its fight against the virus.

"Any attempt to strip away the powers of the governor during this crisis is irresponsible, dangerous and foolish," Whitmer said during a press conference last month.

The state of emergency declaration is what gives the governor the unilateral power to issue stay-at-home orders or close specific businesses, such as gyms, restaurants or bars. Currently, there are two state laws that allow a governor to declare a state of emergency in Michigan and take actions under them.

There's a 1976 law, the Emergency Management Act, under which the governor can declare an emergency but must get the approval of the Legislature to continue it after 28 days.

Then there's the 1945 law, the Emergency Powers of Governor Act, which doesn't include a timeline for the Legislature to have a say and appears to allow the governor to decide when to rescind an emergency declaration.

Unlock Michigan would leave the 1976 law in place but repeal the 1945 law.

The Republican-controlled Michigan House and Senate have challenged Whitmer's use of both laws to declare emergencies. The case is pending in the state Court of Appeals after Court of Claims Judge Cynthia Stephens ruled in May that Whitmer had the authority to continue Michigan's state of emergency without the Legislature's approval under the 1945 law.