Judge sides with Whitmer in emergency powers standoff with Legislature

The law that gives Whitmer the power to declare and extend emergency declarations without the input of the Legislature was “broadly constructed,” wrote Judge Cynthia Stephens in an opinion released Thursday. (Photo courtesy of the governor's office)

Michigan Gov. Gretchen Whitmer is legally allowed to extend a statewide state of emergency without the Legislature’s approval, a Court of Claims judge ruled Thursday. 

The ruling is likely not the end of the legal battle between Whitmer and GOP leaders in the House and Senate, as the case is expected to reach the state Supreme Court. 

But for now, the ruling means Whitmer can unilaterally declare a state of emergency — and extend or modify executive orders stemming from it, such as the stay-at-home order in response to the coronavirus pandemic.

The law that gives Whitmer the power to declare and extend emergency declarations without the input of the Legislature was “broadly constructed” and doesn’t conflict with another, subsequently-passed law that requires lawmakers get a say, wrote Judge Cynthia Stephens, 

However, there is another law that does require the Legislature’s approval to extend declarations of emergency. Whitmer employed that law unlawfully to end an existing state of emergency and begin a new one immediately afterward, Stephens wrote. 

Senate Majority Leader Mike Shirkey, R-Clarklake, pledged Thursday to appeal the decision, while  Speaker of the House Lee Chatfield, R-Levering, said he would “continue standing up for the rule of law.”

“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,” Shirkey said in a statement. “We are confident in our position and will appeal this ruling.”

Whitmer’s office said in a statement that the decision “recognizes that the governor’s actions to save lives are lawful” and that she will continue to “take careful, decisive actions to protect Michiganders from this unprecedented, global pandemic.”

House Democratic Leader Rep. Christine Greig, whose caucus submitted an amicus brief in the case in support of Whitmer, said the “ruling does not come as a surprise” and called the GOP’s suit “a waste of time and a waste of taxpayer dollars.”

The Republican-led state House and Senate sued Whitmer this month after she extended the state of emergency prompted by the coronavirus pandemic without their approval. 

Though they originally supported measures to restrict public movement to slow the virus’ spread in March, Whitmer issued a second, more stringent stay-at-home order in April that GOP leaders and several business groups said was overly restrictive and unnecessarily hurt the economy. 

They also argued that Whitmer was not including them in crucial decision making that affects residents across the state. 

When Whitmer asked the Legislature to extend her state of emergency under a 1976 law that requires lawmakers to approve emergency declarations every 28 days, they denied her request after she refused to agree to two one-week extensions.

She extended it anyway — once under the 1976 law with a new state of emergency and once under a 1945 law known as the Emergency Powers of the Governor Act that doesn’t require the Legislature’s sign-off. 

Lawyers for the Legislature argued that 1945 law was intended to apply to only local emergencies, as it was passed shortly after a Detroit race riot, gives her the power to act “within” the state rather than “throughout” it, and has references to areas and zones. 

If the law can be interpreted to give her unilateral power, it would be “a staggering abuse of power” and unconstitutional, they wrote

Whitmer’s attorneys contended the 1945 law gives the governor broad authority that isn’t limited to certain areas within the state and alleged that striking down her powers under the law — and therefore the emergency orders that exist under them — would “sow confusion” and “work grievous harm on the state and its citizens.”

Stephens decided the 1945 law is intended to allow the governor to implement states of emergency across Michigan without the Legislature’s approval, but noted it does have some limits on her powers.

The law said the emergency declaration and ensuing actions must be “reasonable” and “necessary,” which Stephens wrote are “historically proven” to be judicial standards by which people can bring lawsuits to check the governor’s actions.

The 1945 law and the 1976 one don’t conflict with one another because “while both statutes permit the Governor to declare an emergency, the EMA equips the Governor with more sophisticated tools and options at her disposal,” Stephens wrote. 

For example, the 1976 law allows health care workers to be shielded from liability for services performed in combatting the emergency.

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Thu, 05/21/2020 - 6:47pm

Republicans are finally starting to realize what voters have known for awhile, and that is that their Party is insignificant and irrelevant when you look at what society is facing today.

To be fair
Fri, 05/22/2020 - 8:26am

Trump DID MAGA. We're number one in the world across the board, notoriously speaking, which Trump and his supporters seem to like:
And the award goes to.... the U-S-A!

*Note all figures under-reported, from yesterday

Total Number of COVID19 Cases: +1,620,902*
New Cases: +28,179*
Total DEATHS: +96,354*
Total new DEATHS yesterday: +1,418*

Happy Memorial Day to all our Front Line Workers who toil trying to save lives, especially those who have fallen, their families, the families of all Americans who died or grieve because of Trump's ongoing LIES. He may decide to do what he wants, but we know better. He only cares about the economy and shows a horrific example of how we can even succeed with that.

Sun, 05/24/2020 - 6:01pm

Whatever, I'm going golfing.

Kevin Grand
Thu, 05/21/2020 - 6:47pm

As if there were any other outcome from a Granholm appointee?

Michigan Supreme Court...here we go!

Al Churchill
Fri, 05/22/2020 - 3:19pm

You pretty well imply that judicial decisions are often decided by a bias toward the philosophy of those who appoint the judge to the court. While judicial history declares, unequivocally, that not always to be the case, too often it does seem to apply. Consider this.

Since the birth of the republic, voting rights have been a matter of partisan political activity..
Speaking for the common folk, Tom Paine once wrote:
“The true and only true basis of representative government is equality of rights. Every man has a right to one vote, and no more in the choice of representatives.”
Teddy Roosevelt concurred. Advocated by Roosevelt and other like-minded legislators, the Tillman Act of 1907 prohibited financial contributions by corporations to national political campaigns. In his annual address to Congress in 1905, the great trust-buster previewed his thoughts, stating that corporations should be forbidden from the use of money, “… in connection with any legislation save by the employment of counsel in public manner for distinctly legal services.”
Rejecting Paine, Roosevelt and what is fundamental to a democratic republic, a US Supreme Court decision in 2010, Citizens United vs Federal Election Commission, advanced the notion that corporations are people and that money is speech. Simply put, the Court ruled, essentially, that corporations breathe and bleed and that money spent on politics is an expression of free speech that cannot be limited by Congress.
. In the final analysis however, corporations are absent human characteristics. They exist only on paper. By definition, Citizens United gives corporations, their stockholders and the very wealthy an enormously disproportionate political advantage compared to those of us who have grabbed a piece of toast and a cup of coffee on the way to putting in an eight hour day at a workplace.
Nor can money utter one single syllable. A million dollar bill is regularly the means to a, too often, self-serving political outcome that harms the common good. An understanding of that truth, evidently a horrific intellectual and moral struggle for those in the majority Citizens United opinion, has twisted the common sense logic of each individual vote being equal in power to arrive at a flagrant and antidemocratic decision more appropriate to a plutocracy or oligarchy.

All of the conservative judges sustaining that decision were appointed by Republican Presidents.

Sun, 05/24/2020 - 6:03pm

You got that right! Good job. I guess all the GOP blowhards than and now just don't know much about the Constitution.

We the Taxpayers
Thu, 05/21/2020 - 7:10pm

So now We the Taxpayers have to pay the private law firm of the dumb GOP legislature?
I mean, don't they or any of their staff have a legal background? Now they are going to appeal the dismissal of their frivolous lawsuit? How much is this futile attempt at a power grab in a crisis going to cost us, We the Taxpayers, by the time they are done? It's fine if they want to pay out of their own pockets, but We the Taxpayers shouldn't have to pay for it. BTW We the Taxpayers are hurting financially now. So you should all take a pay cut. What are you even doing? What have you done since the shutdown? Forfeit your salaries.

Liberate Michigan!
Thu, 05/21/2020 - 7:14pm

Liberate Michigan FROM Trump!

Overall, 86% of Michigan voters surveyed believed the virus is a threat to public health, with support at that level or higher among self-described Independents, Democrats and even voters who say they lean Republican. Better than three-quarters of women who identified as strongly Republican agreed with that opinion as well. But it was far lower — at only 58% — among strongly Republican men.

Michigan voters overall also overwhelmingly agreed — by a margin of 69%-22% — that protests at the state Capitol against Whitmer's stay-at-home orders sent a wrong message. And while that opinion was somewhat more varied among partisan groups — with more than 90% of Democrats, 70% of Independents and 55% of Republican leaners agreeing the protests were wrong — only one group, strongly Republican men, had a majority that felt they sent the right message, by a margin of 58%-30%.

Only 11% of Michigan voters surveyed said they do not regularly wear a mask when they go out as required by Whitmer's orders to combat the spread of the virus, with 81% saying they do. Better than 90% of Democrats, nearly 80% of Independents and 72% of Republican women say they wear masks. But less than half — 49% — of Republican men say they wear masks, with the percentage of those who do not especially high for those under the age of 50.

"Democrats and Independents look very similar to each other," said Rich Czuba, pollster with Glengariff Group of Lansing which conducted the poll for the Detroit Regional Chamber. "We see a major difference from all other voters among Republican men"

For the survey, which has a margin of error of plus or minus 4 percentage points, the pollster surveyed 600 randomly selected Michigan voters between May 12 and May 16. The calls were done by live operators.

Among the overall group of respondents from across the state, 38% were self-identified Democrats, 26% Independents and 32% Republicans.
Poll shows approval of Whitmer's handling of crisis, disapproval of Trump's

While Republicans in the Legislature and elsewhere have been critical of Whitmer and her stay-at-home orders to fight the virus, the poll showed widespread support for the governor — especially in comparison to President Donald Trump.

Overall, 64% of those surveyed approved of Whitmer's response, compared to 33% of those who did not. Unsurprisingly, Democrats were particularly supportive, with 96% approving of her actions, and Republicans in opposition, with 79% disapproving.

But Independents, a key voting bloc in Michigan, came down on Whitmer's side, 65%-28%. Forty percent of them said they strongly approved of her actions.

"By any standard, those are terrific numbers for any political figure," Czuba said.

Thu, 05/21/2020 - 9:38pm

Irrelevant ruling by corrupt "judge" - We will continue to openly oppose this tyranny and violate all aspects of this "order" - We will not be stopped. We dare you to try.

Fri, 05/22/2020 - 2:51pm

Timothy McVeigh redux.
Just who are the "We" that find "tyranny" in an issue working it's way through the court system in a democratic society? Please list names and organizations.
Also, what is it that you intend to do if a democratically elected government follows what it considers proper and is found so by the Supreme Court? Within that context, what does, "We will not be stopped. We dare you to try." mean?
In an earlier post you mentioned "war" as a possible outcome of Governor Whitmer's policy. Does that mean you are going to physically take up arms against a democratically elected Michigan government?

Reality Calling....
Sun, 05/24/2020 - 7:21pm

Your ilk have already been stopped repeatedly. Business owners telling you to get the heck out cause you don't wear a mask.

Fri, 05/22/2020 - 9:22am

For all you “ stay at home” followers, and Whitmer sheep: google “ does isolation contribute to a lower immune system. So keep staying home and stay safe for the rest of us.

Rick Raisen
Fri, 05/22/2020 - 10:26am

Who is Cynthia Stephens?

To answer the question, she's not a non-partisan beacon of objective judgement. She was appointed to the court in 2008 by Democratic Gov. Jennifer Granholm. She was nominated by the Democrats (all judges appear on the ballot as non-partisan but in fact they are nominated by political parties) and elected on November 8, 2016 by defeating Kurtis Wilder (the GOP nominee) 44%-34%. Since becoming a Michigan Court of Appeals judge, Stephens has donated considerable money to the Michigan Democratic State Central Committee, which supports Governor Whitmer, which represents a clear conflict of interest in ruling on this case. Before this ruling, her greatest claim to fame was strongly supporting the right to die (assisted suicide).

Yup. Corruption everywhere you look.

Fri, 05/22/2020 - 1:47pm

And yet the very same day as this article, Bridge also published an article, "Michigan appeals court sides with vape shop..." wherein reporter Robin Erb reminded readers that "Court of Claims Judge Cynthia Diane Stephens granted a preliminary injunction in November against the state ban [of Governor Whitmer.]" That's right - a decision against Governor Whitmer who as you said, is "... not a non-partisan beacon of objective judgement."
I don't carry any water for Judge Stephens, but there might be some judges of both parties who have donated money to partisan causes.

Rick Raisen
Fri, 05/22/2020 - 5:58pm

You know what is really fascinating about this connection? When Governor Whitmer's 'emergency' powers were struck down back in November (she has invoked emergency powers several times since she's been elected in order to pass laws that can't pass through the Legislature), she afterwards said this in a prepared statement. "It misreads the law and sets a dangerous precedent of a court second-guessing the expert judgment of public health officials dealing with a crisis." Misreading laws, deferring to 'experts', fixating on 'public health', embracing crisis- this statement is all the hallmarks of Whitmer's philosophy on life.

In her decision back in November on this vape issue, Judge Stephens said "the defendants’ lengthy period of inaction, combined with old data, undermines the emergency declaration in this case.” So apparently the Governor would have been okay if she would have been more active and had newer data. One wonders where in the law or order that she struck down the phrases "more or less action" and "newer or old data" were- probably nowhere. This judge just likes to make stuff up as she goes- it's a living (aka meaningless) constitution and the only thing which Judge Stephens respects is power.

Judge Stephens will be up for election at some point... I hope voters remember her actions and philosophy and vote accordingly.

Fri, 05/22/2020 - 11:21pm

The law said the emergency declaration and ensuing actions must be “reasonable” and “necessary,” which Stephens wrote are “historically proven” to be judicial standards by which people can bring lawsuits to check the governor’s actions.

Which is fine, except that what is "reasonable" and "necessary" are opinions of a single day, and could change tomorrow. Extending a state of emergency in two week increments, where it gets revisited in two weeks is the exact opposite of temporary. All you need is a new excuse, and you have two weeks to think of one.

Hank Quayle
Wed, 05/27/2020 - 12:07am

This is a shame.

Because of the lock-down policies pushed by Governor's like Whitmer, emergency stroke evaluations are down 40 percent. Of the 650,000 cancer patients receiving chemotherapy in the United States, an estimated half are missing their treatments. Of the 150,000 new cancer cases typically discovered each month in the U.S., most – as elsewhere in the world – are not being diagnosed, and two-thirds to three-fourths of routine cancer screenings are not happening because of shutdown policies and fear among the population. Nearly 85 percent fewer living-donor transplants are occurring now, compared to the same period last year. In addition, more than half of childhood vaccinations are not being performed, setting up the potential of a massive future health disaster.

These deaths are preventable and are not caused by the virus- they are caused by policies implement by Governor's like Governor Whitmer. She now knows she is killing people with her policies, and yet she continues to persist. There is increasingly more and more blood on her hands.