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Michigan Court of Appeals upholds Gov. Whitmer's emergency actions

Craig Mauger
The Detroit News

Lansing — In a 2-1 decision, the Michigan Court of Appeals has upheld Gov. Gretchen Whitmer's unilateral emergency actions to combat COVID-19, denying a legal challenge brought by the GOP-controlled state Legislature.

The court agreed with a state Court of Claims judge in finding the 1945 Emergency Powers of the Governor Act gives Whitmer the ability to declare emergencies and take actions in response without lawmakers' approval. The court also ruled Friday that the law itself doesn't violate the separation of powers in government.

The high stakes, historic case is expected to end up before the Michigan Supreme Court. The state's high court is scheduled to hear arguments on a similar question on Sept. 2. And House Speaker Lee Chatfield, R-Levering, tweeted in response to the appeals court ruling, "We will now go to the MSC."

Gov. Gretchen Whitmer addresses the state during a speech in Lansing, Mich., Wednesday, Aug. 5, 2020.

Judges Kirsten Frank Kelly and Jane Markey signed on Friday to the majority opinion, which Markey wrote. Judge Jonathan Tukel, an appointee of former Republican Gov. Rick Snyder, dissented. Kelly was appointed to a Wayne County court in 1994 by former Republican Gov. John Engler.

Markey, who has been floated in the past as a potential GOP nominee for the Michigan Supreme Court, said the Legislature itself gave the governor "broad" power during an emergency.

"We find it more than a bit disconcerting that the very governmental body that delegated authority to governors to confront public emergencies — and holds and has held the exclusive power to change it — steps forward 75 years later to now assert that it unconstitutionally delegated unconstrained authority," the majority opinion added.

The legal fight involves two state laws: 1945 act and the 1976 Emergency Management Act. The 1945 law appears to allow the governor to declare an emergency and keep it in place without the Legislature's input. The 1976 law allows the governor to declare an emergency but requires the Legislature's approval after 28 days.

The majority opinion focused on the 1945 law. But Tukel argued that the 1976 law, which has the 28-day deadline, specifically applies to the COVID-19 pandemic because it references an "epidemic."

The Legislature had reasons to enact the 1976 law decades after the 1945 law, he wrote. 

"The Legislature has not authorized continued emergency action relating to an epidemic," Tukel added.

The Court of Appeals decision came three months after Court of Claims Judge Cynthia Stephens ruled Whitmer had the legal authority to extend Michigan's state of emergency under the 1945 Emergency Powers of the Governor Act. An appointee of Democratic former Gov. Jennifer Granholm, Stephens labeled the Legislature's claims to the contrary "meritless."

Whitmer has used both the 1945 and the 1976 laws to declare emergencies. After the 28-day window expires, she's previously declared a new emergency amid the COVID-19 pandemic.

The appeals court ruling was a "decisive win" for the governor's "efforts to protect he people of Michigan," Whitmer spokesman Tiffany Brown said.

"This decision recognizes that the governor’s actions to save lives are lawful and her orders remain in place," Brown said.

Whitmer first declared a state of emergency related to COVID-19 on March 10, the day Michigan confirmed its first cases of the virus. On Aug. 7, she extended through Sept. 4.

The declaration allows the Democratic governor continued authority to issue unilateral orders that have established the state's response to pandemic, including requiring masks be worn inside businesses and banning large public gatherings. Whitmer has issued a total of 166 executive orders since March 10.

In a brief filed with the Court of Appeals, a group of public health experts argued the court should uphold the governor's authority, citing the necessary quickness required to fight the virus's spread.

But Republicans in the GOP-controlled Legislature have argued that Whitmer has effectively "seized" the power to make laws and could set a precedent allowing a governor to free out elected representatives.

Senate Majority Leader Mike Shirkey, R-Clarklake, right, and House Speaker Lee Chatfield, R-Levering

Chatfield and Senate Majority Leader Mike Shirkey, R-Clarklake, announced their lawsuit challenging Whitmer's executive powers on  May 6. Shirkey described the suit as an attempt to restore "constitutional order." 

Chatfield tweeted Friday that the Court of Appeals got the decision wrong.

"No governor, Republican or Democrat, can have unilateral control over a state based solely on their judgment," the House speaker said.

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 Court of Appeals majority rejected that argument.

"There in nothing in the plain and unambiguous language of this provision that limits or restricts the use of orders, rules and regulations to solely confront local emergencies; the language is broad enough to include statewide emergencies," the majority found.

As of Thursday, Michigan has confirmed 94,697 cases of COVID-19 and 6,368 deaths linked to the virus.