Michigan Judge tosses Legislature’s lawsuit over Gov. Whitmer’s emergency powers

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Michigan Judge tosses Legislature’s lawsuit over Gov. Whitmer’s emergency powers.

A judge tossed a lawsuit filed by Republican lawmakers that challenged Gov. Gretchen Whitmer’s use of emergency powers to lock down the state amid the coronavirus pandemic, providing a big political win for the governor — at least for now.

Michigan Court of Claims Judge Cynthia Stephens sided with the governor, a Democrat, in an opinion issued Thursday afternoon that ends the lawsuit.

Legal experts had said such an outcome was likely. Republicans have pledged to appeal the judge’s ruling.

The lawsuit, filed May 7 by the Republican-controlled state House and Senate, argued that Whitmer’s emergency orders, including the stay-at-home order that runs through May 28, were invalid because of a lack of statutory authority.

The judge declared that Whitmer’s actions were indeed within her authority under the Emergency Powers of Governor Act of 1945, and that the orders and restrictions on movement and commerce during the pandemic can stand.

The judge did side with the Republicans’ legal argument that Whitmer overstepped her power when citing a 1976 law, the Emergency Management Act, to re-declare a state of emergency in late April without support from the Legislature.

Whitmer went too far, the judge said, because the 1976 law has a 28-day limit on how long a governor can act independently from the Legislature.

But Whitmer ultimately still had authority and emergency powers under the 1945 law, the judge’s opinion says, so her executive orders for a lockdown still stand. The older law sets no time limit on a state of emergency and makes no provision for legislative review.

The judge rejected Republicans’ arguments that the 1945 law should not apply to statewide emergencies, but only to local or regional emergencies.

To win, the legislators needed the judge to invalidate Whitmer’s actions under both laws. That did not happen.

“The judge’s ruling was pretty much what I expected. She kind of split the (decision), but she split it in the governor’s favor,” said attorney Arthur Siegal of Jaffe Raitt Heuer & Weiss, an expert in governmental law who was not involved in the case.

Senate Majority Leader Mike Shirkey, R-Clarklake, said lawmakers intend to appeal the judge’s ruling.

“While we are disappointed by aspects of this determination, we are vindicated in our assertion that the Governor acted unlawfully in attempting to extend the states of emergency and disaster under the Emergency Management Act without legislative approval. We are confident in our position and will appeal this ruling,” Shirkey said.

Whitmer has since eased up on some lockdown restrictions, although businesses, including bars, sit-down restaurants, gyms, theaters and barbershops in most parts of the state must remain closed until at least May 29.

“Today’s decision recognizes that the governor’s actions to save lives are lawful and her orders remain in place,” a statement from Whitmer’s office said. “She will continue to do what she’s always done: take careful, decisive actions to protect Michiganders from this unprecedented, global pandemic.”

Court of Claims judges are drawn from the Court of Appeals, and Stephens was appointed to the appeals court by Gov. Jennifer Granholm, a Democrat, in 2008. Court of Claims cases are appealed to the Michigan Supreme Court, where Republican appointees hold a 4-3 edge over Democratic appointees.

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