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STATE OF MICHIGAN
IN THE SUPREME COURT
MICHIGAN HOUSE OF
REPRESENTATIVES
and MICHIGAN SENATE,
Plaintiffs-Appellants/
Cross-Appellees,
v.
GRETCHEN WHITMER, in her
official capacity as Governor for the
State of Michigan,
Defendant-Appellee/
Cross-Appellant.
Supreme Court No. 161377
Court of Appeals No. 353655
Court of Claims No. 20-000079-MZ
THIS APPEAL INVOLVES A
RULING THAT A PROVISION OF
THE CONSTITUTION, A STATUTE,
RULE, OR REGULATION OR
OTHER STATE GOVERNMENTAL
ACTION IS INVALID.
Patrick G. Seyferth (P47475)
Stephanie A. Douglas (P70272)
Susan M. McKeever (P73533)
Bush Seyferth PLLC
100 W. Big Beaver Rd., Ste. 400
Troy, MI 48084
(248) 822-7800
Hassan Beydoun (P76334)
General Counsel
Michigan House of Representatives
PO Box 30014
Lansing, MI 48909
Michael R. Williams (P79827)
Frankie A. Dame (P81307)
Bush Seyferth PLLC
151 S. Rose St., Ste. 707
Kalamazoo, MI 49007
(269) 820-4100
William R. Stone (P78580)
General Counsel
Michigan Senate
PO Box 30036
Lansing, MI 48909
Attorneys for the Michigan House of Representatives and Michigan Senate
THE MICHIGAN LEGISLATURE’S ANSWER TO GOVERNOR GRETCHEN
WHITMER’S EMERGENCY BYPASS APPLICATION FOR LEAVE TO
APPEAL AND REPLY IN SUPPORT OF THE LEGISLATURE’S
EMERGENCY BYPASS APPLICATION FOR LEAVE TO APPEAL
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... iii
INTRODUCTION .......................................................................................................... 1
ARGUMENT .................................................................................................................. 3
I. The Legislature has standing. ............................................................................ 3
A. The Legislature has as a special and unique interest in this case. ....... 3
1. Institutional Injury No. 1: The Governor has deprived
the Legislature of its exclusive lawmaking power. ...................... 4
2. Institutional Injury No. 2: The Governor has deprived the
Legislature of its power to pass COVID-19-related
legislation, as the Governor can just override it by
executive order. .............................................................................. 8
3. Institutional Injury No. 3: The Governor has seized the
right to extend a state of emergency—a right that now
belongs to the Legislature. ............................................................ 9
B. Under MCR 2.605, an actual controversy exists. .................................. 10
II. The EPGA does not empower the Governor to exercise indefinite, total
authority during a statewide pandemic. .......................................................... 12
A. The Governor’s construction of the EPGA renders the EMA’s
gubernatorial emergency powers provisions redundant. ..................... 13
B. The Governor’s remaining arguments are beside the point. ................ 19
III. Any construction of the EPGA that authorizes the Governor to issue
broad, indefinite, statewide declarations of emergency premised on a
pandemic would be unconstitutional................................................................ 22
A. Broad, boundless delegations of legislative power offend the
separation of powers. .............................................................................. 22
B. The EPGA’s standards are too weak to pass constitutional muster. ... 24
C. Prior “standards” cases are not analogous—and cut against the
Governor, anyway................................................................................... 26
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D. Context matters; more delegated authority requires more
standards. ............................................................................................... 28
E. The Legislature can choose to retain emergency power for itself. ....... 34
IV. After April 30, 2020, the Governor did not possess authority under the
EMA to declare a state of emergency or disaster. ........................................... 36
A. The Governor’s orders conflict with the EMA’s plain text. .................. 37
B. The Governor’s interpretation would produce absurd results. ............ 39
C. The Governor’s interpretation of the EMA renders the
Legislature’s central role a nullity. ....................................................... 41
D. The Governor’s interpretation of the EMA defeats a central
purpose of the statute: to allocate power among the branches. ........... 43
F. The EMA’s joint resolution provision is constitutionally sound. .......... 44
CONCLUSION ............................................................................................................. 49
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TABLE OF AUTHORITIES
Cases
Apsey v Mem Hosp,
477 Mich 120; 730 NW2d 695 (2007) ....................................................................... 41
Ariz State Legislature v Ariz Independent Redistricting Comm,
135 S Ct 2652; 192 L Ed 2d 704 (2015) ................................................................. 3, 6
Attorney Gen ex rel McKay v Detroit & E Plank Rd Co,
2 Mich 138 (1851) ..................................................................................................... 14
Baker v Carr,
369 US 186; 82 S Ct 691; 7 L Ed 2d 663 (1962) ...................................................... 12
Becker v Detroit Sav Bank,
269 Mich 432; 257 NW 853 (1934) ........................................................................... 47
Bell v FJ Boutell Driveaway Co,
141 Mich App 802; 369 NW2d 231 (1985) ............................................................... 43
Bilski v Kappos,
561 US 593; 130 S Ct 3218; 177 L Ed 2d 792 (2010) .............................................. 14
Blank v Dept of Corr,
462 Mich 103; 611 NW2d 530 (2000) ................................................................. 33, 46
Blue Cross & Blue Shield of Michigan v Milliken,
422 Mich 1; 367 NW2d 1 (1985) ......................................................................... 27, 35
Boston Gas Co v Fed Energy Regulatory Comm,
575 F2d 975 (CA 1, 1978) ......................................................................................... 39
Bunce v Secy of State,
239 Mich App 204; 607 NW2d 372 (1999) ............................................................... 32
By Lo Oil Co v Dept of Treasury,
267 Mich App 19; 703 NW2d 822 (2005) ................................................................. 32
City of Detroit v Detroit Police Officers Ass'n,
408 Mich 410; 294 NW2d 68 (1980) ......................................................................... 33
City of Pleasant Ridge v Romney,
382 Mich 225; 169 NW2d 625 (1969) ................................................................. 31, 33
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Cobb v State Canvassing Bd,
140 NM 77; 140 P3d 498 (2006) ............................................................................... 31
Conecuh-Monroe Cmty Action Agency v Bowen,
852 F2d 581; 271 US App DC 283 (1988) ................................................................ 37
Consumers Power Co v Pub Serv Com’n,
460 Mich 148; 596 NW2d 126 (1999) ....................................................................... 22
Detroit Pub Sch v Conn,
308 Mich App 234; 863 NW2d 373 (2014) ............................................................... 37
Diallo v LaRochelle,
310 Mich App 411; 871 NW2d 724 (2015) ............................................................... 38
Dodak v State Admin Bd,
441 Mich 547; 495 NW2d 539 (1993) ......................................................................... 8
Duffy v Michigan Dept of Nat Res,
490 Mich 198; 805 NW2d 399 (2011) ....................................................................... 38
Dukesherer Farms, Inc v Ball,
405 Mich 1; 273 NW2d 877 (1979) ........................................................................... 31
Ex parte Landaal,
273 Mich 248; 262 NW 897 (1935) ........................................................................... 41
Frankenmuth Mut Ins Co v Marlette Homes, Inc,
456 Mich 511; 573 NW2d 611 (1998) ....................................................................... 42
Food & Drug Admin v Brown & Williamson Tobacco Corp,
529 US 120; 120 S Ct 1291; 146 L Ed 2d 121 (2000) .............................................. 21
GF Redmond & Co v Michigan Sec Comm,
222 Mich 1; 192 NW 688 (1923) ................................................................... 26, 27, 32
Gill v New York State Racing & Wagering Bd,
11 Misc 3d 1068(A); 816 NYS2d 695 (NY Sup Ct, 2006) ........................................ 39
Grimes v Michigan Dept of Transp,
475 Mich 72; 715 NW2d 275 (2006) ......................................................................... 14
Gross v Gen Motors Corp,
448 Mich 147; 528 NW2d 707 (1995) ....................................................................... 41
Gundy v United States,
____US____; 139 S Ct 2116; 204 L Ed 2d 522 ......................................................... 22
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Herald Wholesale, Inc v Dept of Treasury,
262 Mich App 688; 687 NW2d 172 (2004) ............................................................... 41
Herrick Dist Library v Library of Michigan,
293 Mich App 571; 810 NW2d 110 (2011) ............................................................... 31
House Speaker v Governor,
443 Mich 560; 506 NW2d 190 (1993) ................................................................... 5, 12
Hoyt Bros v City of Grand Rapids,
260 Mich 447; 245 NW 509 (1932) ........................................................................... 28
Hoyt v Sprague,
103 US 613; 26 L Ed 585 (1880) .............................................................................. 48
In re Certified Question,
432 Mich 438; 443 NW2d 112 (1989) ....................................................................... 46
Indus Union Dept, AFL-CIO v Am Petroleum Inst,
448 US 607; 100 S Ct 2844; 65 L Ed 2d 1010 (1980) .............................................. 23
Jacobson v Commonwealth of Massachusetts,
197 US 11; 25 S Ct 358; 49 L Ed 643 (1905) ........................................................... 19
Johnson v Michigan Milk Mktg Bd,
295 Mich 644; 295 NW 346 (1940) ........................................................................... 31
Jones Motors v Workmen’s Comp Appeal Bd,
51 Pa Cmwlth 210; 414 A2d 157 (1980) .................................................................. 37
Joseph v Auto Club Ins Ass’n,
491 Mich 200; 815 NW2d 412 (2012) ....................................................................... 36
Judicial Attorneys Ass’n v Mich,
459 Mich 291; 586 NW2d 894 (1998) ................................................................. 23, 24
Kalamazoo Tp, Kalamazoo Co v Stamm,
339 Mich 619; 64 NW2d 595 (1954) ......................................................................... 16
Kent Cnty Aeronautics Bd v Dept of State Police,
239 Mich App 563; 609 NW2d 593 (2000) ............................................................... 33
Klammer v Dept of Transp,
141 Mich App 253; 367 NW2d 78 (1985) ........................................................... 28, 32
Lansing Sch Ed Ass’n v Lansing Bd of Ed,
487 Mich 349; 792 NW2d 686 (2010) ............................................................... 4, 6, 10
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League of Women Voters of Michigan v Secy of State,
___ NW2d ____, Docket No. 350938, 2020 WL 423319
(Mich Ct App, January 27, 2020) ................................................................... 7, 10, 11
Lee v Weisman,
505 US 577; 112 S Ct 2649; 120 L Ed 2d 467 (1992) .............................................. 40
Legislature v Palm,
No. 2020AP765-OA, 2020 WL 2465677 (Wis, May 13, 2020) ................................. 34
Little Caesar Enterprises v Dept of Treasury,
26 Mich App 624; 575 NW2d 562 (1997) ................................................................. 20
Makowski v Governor,
495 Mich 465; 852 NW2d 61 (2014) ................................................................... 25, 31
Marquis v Hartford Acc & Indem,
44 Mich 638; 513 NW2d 799 (1994) ......................................................................... 39
MDHHS v Manke,
Docket No. 353607 (Mich Ct App, May 28, 2020) ................................................... 25
Mich Citizens for Water Conservation v Nestle Waters N Am Inc,
479 Mich 280; 737 NW2d 447 (2007) ......................................................................... 4
Mich State Highway Comm v Vanderkloot,
392 Mich 159; 220 NW2d 416 (1974) ................................................................. 27, 32
Michigan State AFL-CIO v Secy of State,
230 Mich App 1; 583 NW2d 701 (1998) ............................................................. 47, 48
Milford v People’s Cmty Hosp Auth,
380 Mich 49; 155 NW2d 835 (1968) ................................................................... 27, 28
Miller v State Dept of Treasury,
385 Mich 296; 188 NW2d 795 (1971) ....................................................................... 47
Nat Aggregates Corp v Brighton Tp,
13 Mich App 287; 539 NW2d 761 (1995) ................................................................. 32
Natl Wildlife Fedn v Cleveland Cliffs Iron Co,
471 Mich 608; 684 NW2d 800 (2004) ..................................................................... 5, 6
Oakland Co Taxpayers’ League v Bd of Sup’rs of Oakland Co,
355 Mich 305; 94 NW2d 875 (1959) ........................................................................... 4
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Paramount Pictures Corp v Miskinis,
418 Mich 708; 344 NW2d 788 (1984) ......................................................................... 3
People ex rel Sutherland v Governor,
29 Mich 320 (1874) ..................................................................................................... 4
People v Arnold,
502 Mich 438; 918 NW2d 164 (2018) ....................................................................... 21
People v Cannon,
481 Mich 152; 749 NW2d 257 (2008) ....................................................................... 14
People v Hanrahan,
75 Mich 611; 42 NW 1124 (1889) ............................................................................. 22
People v Kern,
288 Mich App 513; 794 NW2d 362 (2010) ............................................................... 16
People v Lueth,
253 Mich App 670; 660 NW2d 322 (2002) ............................................................... 35
People v Morey,
30 Mich App 152; 583 NW2d 907 (1998) ................................................................. 41
People v Pinkney,
501 Mich 259; 912 NW2d 535 (2018) ....................................................................... 39
People v Valentin,
457 Mich 1, 6; 577 NW2d 73 (1998) ......................................................................... 15
Robinson v Attorney Gen,
957 F3d 1171 (CA 11, 2020) ..................................................................................... 35
SBC Health Midwest, Inc v City of Kentwood,
500 Mich 65; 894 NW2d 535 (2017) ......................................................................... 15
State Conservation Dept v Seaman,
396 Mich 299; 240 NW2d 206 (1976) ..................................................... 29, 31, 32, 35
Signature Sotheby’s Int’l Realty, Inc v. Whitmer,
No. 1:20-cv-00360 (WD Mich, May, 29, 2020) ......................................................... 35
State ex rel Flynt v Dinkelacker,
156 Ohio App 3d 595; 807 NE2d 967 (2004) ........................................................... 37
Taxpayers of Michigan Against Casinos v State,
471 Mich 306; 685 NW2d 221 (2004) ..................................................... 44, 45, 46, 47
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Taylor v Smithkline Beecham Corp,
468 Mich 1; 658 NW2d 127 (2003) ............................................................... 23, 24, 31
Trentadue v Buckler Lawn Sprinkler,
479 Mich 378; 738 NW2d 664 (2007) ....................................................................... 41
Usibelli Coal Mine, Inc v State, Dept of Nat Res,
921 P2d 1134 (Alas, 1996) ........................................................................................ 32
Va House of Delegates v Bethune-Hill,
139 S Ct 1945; 204 L Ed 2d 305 (2019) ..................................................................... 3
Walsh v City of River Rouge,
385 Mich 623; 189 NW2d 318 (1971) ....................................................................... 15
Wehmeier v WE Wood Co,
377 Mich 176; 139 NW2d 733 (1966) ......................................................................... 4
Westervelt v Nat. Res Comm,
402 Mich 412; 263 NW2d 564 (1978) ............................................................... passim
Whitman v Am Trucking Associations,
531 US 457; 121 S Ct 903; 149 L Ed 2d 1 (2001) .............................................. 30, 31
Wilkins v Gagliardi,
219 Mich App 260; 556 NW2d 171 (1996) ................................................................. 3
Youngstown Sheet & Tube Co v Sawyer,
343 US 579; 72 S Ct 863; 96 L Ed 1153 (1952) ....................................................... 37
Statutes
MCL 10.31(1) ............................................................................................................... 17
MCL 10.32 .................................................................................................................... 20
MCL 10.83(4) ............................................................................................................... 44
MCL 30.402(e) .............................................................................................................. 12
MCL 30.403(3), (4) ..................................................................................... 17, 36, 42, 44
MCL 30.404(3) ....................................................................................................... 16, 17
MCL 30.405 ............................................................................................................ 16, 47
MCL 30.405(1) ............................................................................................................. 16
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MCL 30.406 .................................................................................................................. 16
MCL 30.407 .................................................................................................................. 40
MCL 30.407(3) ............................................................................................................. 17
MCL 30.407–.408 ......................................................................................................... 16
MCL 30.409 .................................................................................................................. 16
MCL 30.417(d) ............................................................................................................. 18
MCL 4.101 .................................................................................................................... 42
MCL 4.541 .................................................................................................................... 42
MCR 2.605 .............................................................................................................. 10, 11
PA 359 of 2018 ............................................................................................................... 7
Other Authorities
16A Am Jur 2d Constitutional Law § 316 ............................................................ 32, 33
Black, Federalizing Education by Waiver?,
68 Vand L Rev 607 (2015) ........................................................................................ 32
Black’s Law Dictionary (11th ed 2019) ................................................................. 37, 45
Livengood, Pfizer preparing to manufacture COVID-19 vaccine in
Kalamazoo, Crain’s Detroit (May 5, 2020) .............................................................. 39
Collins English Dictionary .......................................................................................... 29
Diller, Habeas and (Non-)Delegation,
77 U Chi L Rev 585 (2010) ....................................................................................... 32
Greco, Standards or Safeguards: A Survey of the Delegation
Doctrine in the States,
8 Admin LJ Am U 567 (1994) .................................................................................. 32
House Legislative Analysis,
HB 5496, (May 5, 2002) ........................................................................................... 43
Kritikos, Resuscitating the Non-Delegation Doctrine:
A Compromise and an Experiment,
82 Mo L Rev 441 (2017) ........................................................................................... 22
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Le Duc, Michigan Administrative Law § 2:5 .............................................................. 31
Lemos, The Other Delegate: Judicially Administered Statutes
and the Nondelegation Doctrine,
81 S Cal L Rev 405 (2008) ........................................................................................ 35
Merriam-Webster’s Dictionary ..................................................................................... 29
Posner & Vermeule, Crisis Governance in the Administrative State: 9/11
and the Financial Meltdown of 2008,
76 U Chi L Rev 1613 (2009) ..................................................................................... 32
Sullivan, Powers, But How Much Power? Game Theory and the Nondelegation
Principle,
104 Va L Rev 1229 (2018) ........................................................................................ 32
Synar v United States,
626 F Supp 1374 (DDC, 1986) ................................................................................. 30
DesOrmeau, After 102 Executive Orders, Confusion Is Commonplace
On What’s Allowed in Michigan and What Isn’t, MLive (May 30, 2020) ............... 39
Constitutional Provisions
1963 Const., Article 3, § 2 .............................................................................................. 5
1963 Const., Article 4, § 22 .......................................................................................... 44
1963 Const., Article 4, § 1 .............................................................................................. 4
1963 Const., Article 4, § 51 ...................................................................................... 1, 20
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INTRODUCTION
In the first dozen words of her cross-application, the Governor accuses the
Legislature of creating a “constitutional crisis”—all because the Legislature has
dared to suggest that some limits must apply to the Governor’s otherwise
unconstrained emergency powers. Then, across fifty pages, the Governor tries to
break apart or ignore every check on her authority. The Governor tells us that the
courts can provide no relief here because she believes (with no sense of irony) that
relief would “infringe upon the separation of powers.” Nor should the Governor
respect an express statutory clock limiting the Governor’s declarations of states of
emergency to 28 days; that, too, we are told, would violate “bicameralism and
presentment.” Statutes cannot be read to contain any meaningful constraints on the
Governor’s decision-making authority, either, as protecting the public is said to give
the Governor carte blanche. And at one unsettling point, the Governor seems to lay
claim to the state’s entire police power. Meanwhile, the Governor ignores the
constitutional mandate that the Legislature—not the Governor—pass laws “for the
protection and promotion of the public health.” Const 1963, art 4, § 51. So, if there
is a constitutional crisis, then the Governor made it.
When looking past the rhetoric, though, the Governor’s cross-application offers
several silent but consequential confessions. She insists, for example, that all her
emergency declarations and acts will remain in place even if this Court rejects her
reading of the Emergency Management Act—an interpretation that the Court of
Claims already rejected. The Emergency Powers of the Governor Act, she tells us,
will give her all the same powers and tools. That “heads we win, tails you lose”
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conception only confirms what the Legislature has been saying all along: that the
Governor’s interpretation has rendered the EMA’s emergency-power provisions a
nullity, and there are no meaningful or enforceable checks on her power. The
Governor also emphasizes that the COVID-19 crisis is real. But that only establishes
the need for a response, not who should implement it (or how). Lastly, she breezes
through the Legislature’s substantial separation-of-power concerns, reciting the
unexceptional notion that the branches can work together. Of course they can. The
Legislature’s entire point is that the Governor has chosen not to cooperate, using
instead an approach that favors executive fiat over co-action. That strategy prevents
cooperation between the two branches by aggrandizing one at the expense of the
other. The Michigan Constitution does not afford her that option.
The Court should ask: is our constitutional system one in which the Governor
can relegate the Legislature to a spectator role because the Governor feels it is
“fractious”? May the executive stretch statutory language to the point where he or
she may do whatever he or she wishes? Does the word “emergency” create power to
indefinitely undermine the protections and operations of government? Or does the
Constitution demand those protections especially in times of emergency? Properly
framed, these are questions carry straightforward answers. Our branches of
government must function together. Only the Legislature’s view contemplates a
place for cooperation, consensus, constituent input, and all the elements that make
our democracy so praiseworthy. The Court should grant the two bypass applications
for leave and embrace the only sustainable view presented here: the Legislature’s.
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ARGUMENT
I. The Legislature has standing.
“Determining whether constitutional authority has been exceeded or
determining what authority has been committed to a particular branch of
government is the responsibility of the courts.” Wilkins v Gagliardi, 219 Mich App
260, 266; 556 NW2d 171 (1996). The Legislature has a right to invoke that authority.
In arguing otherwise, the Governor is wrong for two separate reasons.
A. The Legislature has as a special and unique interest in this case.
The Governor first argues that the Legislature lacks standing because it has
no special interest at stake that differs from the public at large. Gov’s Bypass App, p
14. Even though she conflates individual and institutional standing, the Governor at
least agrees that institutional legislative standing exists. Id., citing Ariz State
Legislature v Ariz Independent Redistricting Comm, 135 S Ct 2652; 192 L Ed 2d 704
(2015). Individual standing and institutional standing are distinct. See Paramount
Pictures Corp v Miskinis, 418 Mich 708, 719; 344 NW2d 788 (1984) (noting that, in
the business context, an “organization” is “recognized as an independent entity apart
from its individual members”); accord Va House of Delegates v Bethune-Hill, 139 S Ct
1945, 1953–1954; 204 L Ed 2d 305 (2019) (holding that the legislature’s standing as
an institution differs from the standing of individual legislators or an individual
house). Thus, the only question here is whether the Legislature, as an institution, is
asserting an institutional injury—that is, an injury to an interest peculiar to the body.
The Legislature has suffered multiple institutional injuries, any one of which
satisfies the standing requirements.
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1. Institutional Injury No. 1: The Governor has deprived the Legislature of
its exclusive lawmaking power.
First, Article 4, § 1 of Michigan’s 1963 Constitution vests the legislative power
in the Legislature alone. The Legislature has uniquely vested rights and interests
pertaining to the state’s lawmaking power. These constitutional rights include “the
exclusive right to make laws.” Woodland v Mich Citizens Lobby, 423 Mich 188, 243;
378 NW2d 337 (1985) (emphasis added) (noting initiative/referendum exception);
accord Advisory Op on Constitutionality of 1982 PA 47, 418 Mich 49, 66; 340 NW2d
817 (1983). Indeed, the Governor herself calls the Legislature’s lawmaking power
“unique.” Gov’s Bypass App, p 13.
The “legislature [is] the sole repository of legislative power.” Wehmeier v WE
Wood Co, 377 Mich 176, 200; 139 NW2d 733 (1966) (emphasis added); accord Oakland
Cnty Taxpayers’ League v Bd of Sup’rs of Oakland Cnty, 355 Mich 305, 323; 94 NW2d
875 (1959). And the “[s]eparation of powers is a zero-sum game”—if one branch is
exercising power, it does so at the others’ expense. Mich Citizens for Water
Conservation v Nestle Waters N Am Inc, 479 Mich 280, 293; 737 NW2d 447 (2007),
overruled on other grounds by Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich
349; 792 NW2d 686 (2010); accord People ex rel Sutherland v Governor, 29 Mich 320,
325 (1874) (“[A]pportionment of power to one department is . . . a prohibition of its
exercise by either of the others[.]”). The Legislature “exercises only the legislative
power and the executive exercises only the executive power.” Natl Wildlife Fedn v
Cleveland Cliffs Iron Co, 471 Mich 608, 645; 684 NW2d 800 (2004), overruled on other
grounds by Lansing Sch Ed Ass’n, 487 Mich 349.
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Here, the Legislature contends that the Governor has usurped the
Legislature’s power—that she is violating Article 3, § 2, of Michigan’s 1963
Constitution by making law. Her stay-at-home order, for example, criminalizes
(among many other things) vast swaths of Michigan’s economy, limits when and
where people may go, and prohibits gathering in groups bigger than ten. By acting
outside the EPGA and EMA, the Governor is impermissibly making laws. And any
purported statutory delegation of such all-encompassing law-making power under
the EPGA would be constitutionally impermissible. In short, the Legislature has
alleged that the Governor is infringing the Legislature’s constitutionally unique
position as lawmaker.
In House Speaker v Governor, 443 Mich 560, 567; 506 NW2d 190 (1993), this
Court noted that the Court of Appeals had held that individual legislators had “a
substantial interest in . . . the possible usurpation of legislative power by the
executive branch.” This Court left that decision untouched, id. at 573, and no good
reason justifies upending it now. That premise alone could decide the standing issue.
If individual legislators have a substantial interest in protecting their lawmaking
power from being usurped by the executive, then the Legislature has even more of an
interest as the state’s law-making institution.
The United States Supreme Court also approved a state legislature’s standing
in a very similar case just a few years ago. In Ariz State Legis, a proposition gave the
Arizona legislature’s redistricting power to a commission. 135 S Ct at 2652. The
legislature argued that the commission had invaded its “legally protected interest[s]”
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as an institution the legislature had the “primary responsibility” under the United
States Constitution to redistrict. Id. at 2663 (quotation marks and citation omitted).
The Court agreed that the legislature had Article III standing because it was “an
institutional plaintiff asserting an institutional injury, and it commenced this action
after authorizing votes in both of its chambers.” Id. at 2664. The proposition also
would have “nullified” the Arizona Legislature’s votes. Id. at 2665 (cleaned up); see
also Natl Wildlife Fedn, 471 Mich at 613 n 5 (explaining that the Michigan
constitution is “in harmony with American political theory,” so that federal cases
might provide appropriate reference points for Michigan law).
So too here. The Legislature alleges that the Governor is infringing its
institutional lawmaking power, and both chambers voted to authorize this lawsuit to
remedy that offense. These injuries are not hypothetical. They are occurring today
on an unprecedented scale. If the Arizona Legislature had standing to bring its
claims under the more rigorous test for Article III standing, then the Legislature has
standing under Michigan’s laxer standards. See generally Lansing Sch Ed Ass’n, 487
Mich 349.
The Governor dismisses all these interests as “generalized.” Yet in relying on
League of Women Voters of Michigan v Secy of State, ___ NW2d ____, Docket No.
350938, 2020 WL 423319, at *9 (Mich Ct App, January 27, 2020), the Governor
misunderstands one of the basic problems with her unlawful actions.1 Gov’s Bypass
1 The Governor’s choice to cite League of Women Voters is an interesting one given
her attacks on the Legislature for questioning the constitutionality of “its own law”—
really, a law passed by a prior legislature. In League of Women Voters, the Attorney
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App, p 15. To start with, League of Women Voters does not hold that the Legislature
can never get involved when the executive misapplies the law. It holds that the
Legislature lacks standing to defend a law that regulates the rights and obligations
of the public when the only interest it can allege is its interest in seeing the law
enforced. But the laws here affect the rights and obligations of government
institutions—and the Legislature in particular. The Governor also misinterprets the
law to allow her to act prospectively against the Legislature, striking down laws by
executive order and imposing conditions and rights that the Legislature has declined
to enact. That produces a different interest from that of seeing the law enforced. The
direct offense to the Legislature’s function is ongoing. As even the Court of Claims
(the same judge who decided League of Women Voters) recognized, League of Women
Voters says nothing about this situation. The Governor’s ongoing legislative action
even meets her narrow reading of Arizona Legislature, as the Legislature is indeed
“effectively barred from exercising its constitutional authority.” Gov’s Bypass App, p
15–16, n 15. Thus, the Legislature has standing because the Governor’s actions have
barred the Legislature from exercising its lawmaking authority.
General—acting for Governor Whitmer—attacked a law’s validity even though a
prior governor had signed it. That is not the only example; Governor Whitmer has
sought to declare PA 359 of 2018 unconstitutional, too. Indeed, the Governor attacks
the EMA’s 28-day extension process in this very case, even though one of her
predecessors approved it. The point is not to condemn the Governor for these choices.
But they show the validity of the Legislature’s choice to challenge its “own law” as
well—a law passed by a legislature 75 years ago and that no prior legislature or
executive has ever interpreted as broadly as the Governor does now.
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2. Institutional Injury No. 2: The Governor has deprived the Legislature of
its power to pass COVID-19-related legislation, as the Governor can just
override it by executive order.
Second, the Governor believes the EPGA and EMA allow her to suspend or
revise any law the Legislature passes. The power to suspend even a single law
nullifies the Legislature’s original vote to pass that law. Thus, if the Governor can
keep suspending, revising, and creating statutes (in everything but name), even when
the Legislature declines her requested emergency extension, then she can keep
nullifying the Legislature’s votes at will. Even in Dodak v State Admin Bd, 441 Mich
547, 559-60; 495 NW2d 539 (1993), which does not address institutional standing, the
Court found that one legislator had standing to sue because an executive board’s
actions deprived him of a right to vote on a given issue.
The Governor disagrees with this, arguing that she somehow did not injure the
Legislature because “all legislative tools remain on the table.” Gov’s Bypass App, p
16. But this view misses the point. Suppose every time a carpenter finished building
a chair someone smashed it. The smasher could not argue that he had not injured
the carpenter just because the carpenter still had all his tools and could just make
another chair.
We must also face reality. The Governor has promised to veto (and has vetoed)
any law purporting to co-govern through the COVID-19 pandemic. So, for example,
if the Legislature passed a law addressing some aspect of the pandemic, and even
overrode a veto, then the Governor could still suspend the law. This does more than
deprive the Legislature of a “tool”: it upends the democratic process. Thus, legislation
on COVID-19 is just as certain to be dead on arrival as an Arizona law purporting to
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redistrict. A small group of legislators allied with the Governor can also refuse to
participate in the democratic process, knowing that their preferred initiatives will
become law through executive order. That would turn Michigan into a minoritarian
state. Whichever way it is sliced, the Governor’s interpretation of the EMA and
EPGA neuters the Legislature’s lawmaking power and prevents the democratic
process from functioning properly.
But irrespective of whether the Legislature can still legislate unimpaired, the
Legislature has standing because the Governor is encroaching on its lawmaking
power. The Governor responds that she and the Legislature may “act” (code for “make
laws”) “concurrently.” Gov’s Bypass App, p 16. In other words, her lawmaking does
not violate the separation of powers so long as the Legislature can still act. This
“concurrent power” argument is like saying a stranger who starts living in your house
without permission is not trespassing because the house is big enough for both of you.
An ability to intrude and occupy does not change the improper manner of the
intrusion. The argument also puts the cart before the horse, assuming the answer to
the very question that the Legislature is asking the Court to decide. As shown below,
the Governor is wrong on the merits: the purported delegation here is
unconstitutional.
3. Institutional Injury No. 3: The Governor has seized the right to extend a
state of emergency—a right that now belongs to the Legislature.
Third, as the Court of Claims recognized, “[t]he Legislature claims this right
[to extend an emergency] is exclusively theirs as an institution under the EMA and
this State’s constitution.” Court of Claims Order p 8. Indeed, the Legislature plays
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a crucial and exclusive role under the EMA in determining how long an emergency
declaration may run. The Governor has unlawfully sought to nullify that role. See
Count I. As the Court of Claims held, the Legislature has alleged that the Governor
is infringing on the Legislature’s unique role under the EMA, and that act is causing
the Legislature a special injury. Order p 8.
In sum, because each of the Legislature’s claims alleges institutionally specific
injuries, it has institutional standing to bring each claim.
B. Under MCR 2.605, an actual controversy exists.
“[W]henever a litigant meets the requirements of MCR 2.605, it is sufficient to
establish standing to seek a declaratory judgment[.]” Lansing Sch Ed Ass’n, 487 Mich
at 372. MCR 2.605 requires an “actual controversy,” which exists when a declaratory
judgment “is necessary to guide a plaintiff’s future conduct in order to preserve his
legal rights.” League of Women Voters, 2020 WL 423319, at *7. That proves to be the
case here.
The Governor insists that a declaratory judgment will not guide the
Legislature while repeating over and over that the Legislature can just pass a law
restricting her actions. But a declaratory judgment for the Legislature would confirm
that the Legislature need not pass such a law. A declaratory judgment determining
whether constitutional or statutory authority supports the Governor’s acts would tell
the Legislature what legislation it needs to pass to fill any governing gaps. It would
also define for the Legislature its exact role under the EMA. Finally, as the Court of
Claims held, “guidance as to the issues presented in this case will avoid a multiplicity
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of litigation. The parties here have pled facts of an adverse interest which necessitate
the sharpening of the issues raised.” Order p 9.
The Governor fights these conclusions, trying to mischaracterize the
Legislature’s position. She says that the “gravamen” of the Legislature’s complaint
is just that the law is not being followed. Gov’s Bypass App, p 18. To the contrary,
the Legislature’s core complaint is that the Governor is usurping the Legislature’s
unique lawmaking power; part of the Governor’s response to this is that her actions
are authorized by statutes, so of course the Legislature’s argument must include a
statutory analysis. The Governor also argues that the Legislature’s true goal is to
stop her from acting, not guide its own future conduct. Id. Yes, a decision settling
two parties’ disagreement over a certain power will affect both parties’ future
conduct. But MCR 2.605 does not require that a decision guide the future conduct of
only the plaintiff—just that it guide the plaintiff’s conduct. As shown above, a
decision here would do that.
Finally, the Governor argues that, under League of Women Voters, a court
should never find standing if it might “infring[e] upon the separation of powers.” Id.
at 17. The Governor does not explain how it infringes on the executive or judicial
powers for the Legislature to act to protect its own lawmaking powers. No court has
ever held that the Legislature cannot sue the Governor. And a court cannot abdicate
its role to decide the law just because a case might touch upon “politics” in the
colloquial sense. Cf. Baker v Carr, 369 US 186, 217; 82 S Ct 691; 7 L Ed 2d 663 (1962)
(“The courts cannot reject as ‘no law suit’ a bona fide controversy as to whether some
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action denominated ‘political’ exceeds constitutional authority.”). “Where it is
otherwise proper, virtually no court, including this Court, is hesitant to render its
interpretation of a constitutional or statutory provision, even though another branch
of government has already issued a contrary interpretation.” House Speaker, 443
Mich at 575. The Court does not have to wait for the Legislature to amend a statute
by supermajority to say more emphatically what the statute already says; courts
enforce what the Legislature wrote the first time.
For all these reasons, the Legislature has standing here.
II. The EPGA does not empower the Governor to exercise indefinite, total
authority during a statewide pandemic.
In its own application for leave, the Legislature explained why the EPGA does
not empower the Governor to declare an indefinite, statewide emergency in response
to a pandemic. See Legislature’s Bypass App, pp 14-27. Rather than using the EPGA,
the Legislature meant for governors to address situations like a statewide epidemic
through the EMA, which even refers to an “epidemic” by name. See MCL 30.402(e).
Distinguishing the two statutes in this way ensures that one statute does not render
the other superfluous. It also ensures that broader powers come with broader
checks—checks absent from the EPGA.
The Governor’s cross-application for leave almost entirely ignores this
analysis. In doing so, the Governor confirms that the problems deriving from her
broad-sweeping interpretation of the EPGA are real.
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A. The Governor’s construction of the EPGA renders the EMA’s
gubernatorial emergency powers provisions redundant.
The Governor has now said the quiet part out loud: she does not think she
needs the EMA to exercise unlimited, indefinite, and statewide lawmaking authority.
She can use the EPGA to do anything she wants, anyway. See Gov’s Mot for
Immediate Consid, pp 2–3 (“[T]he status quo will not cause substantial harm to the
public [despite the Court of Claims’ decision holding that the Governor did not have
authority under the EMA] because the Governor’s measures to protect the public
health remain valid [in light of the Court of Claims’ decision on the EPGA].”). Put
differently, in the Governor’s view, the EMA adds nothing to the equation of
gubernatorial emergency powers.
Consider what would follow if the EPGA’s few paragraphs could swallow the
EMA’s disaster-response provisions whole, as the Governor thinks. It would mean
that the Legislature’s entire exercise of passing the EMA some three decades after
the EPGA was for nothing. And it would mean that a governor could just bounce
back and forth between the two laws with no rhyme or reason—or perhaps employ
both to make it doubly hard to challenge her authority. The Governor even offers a
cheeky analogy for her self-created legislative redundancy, saying that the statutes
are “belt and suspenders.” Gov’s Bypass App, p 4. But one seldom sees an actual
belt-and-suspenders pairing for good reason: it is needless and, ultimately, senseless.
Courts do not assume that a legislature passes laws for no purpose. Michigan
courts have refused to render the statutory text superfluous or redundant almost
since those courts opened their doors. See Grimes v Michigan Dept of Transp, 475
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Mich 72, 90; 715 NW2d 275 (2006) (explaining that an “interpretation [that] renders
[statutory provisions] redundant . . . contravenes a settled rule of statutory
interpretation”); Attorney Gen ex rel McKay v Detroit & E Plank Rd Co, 2 Mich 138,
142 (1851) (“It is a cardinal rule that in the construction of a statute, effect is to be
given, if possible, to every clause and section of it[.]”). Even the United States
Supreme Court has remarked on the need for consistency among all the statutes in
all the code books. See Bilski v Kappos, 561 US 593, 608; 130 S Ct 3218; 177 L Ed 2d
792 (2010) (“This principle [against surplusage], of course, applies to interpreting any
two provisions in the U.S. Code, even when Congress enacted the provisions at
different times.”). This Court holds the canon in such a high regard that it has
committed to not writing even one word out of a statute. See People v Cannon, 481
Mich 152, 158; 749 NW2d 257 (2008) (“[N]o word [in a statute] should be treated as
surplusage or made nugatory.”). This Court should not permit the Governor to turn
an entire statute into needless words.
The Governor’s argument would not just render redundant the entire 1976
EMA, but it would also disregard the history that led to its passage. Remember that
Governor Milliken specifically asked for the EMA because he did not believe any law
then on the books gave him “plenary power to declare states of emergency both as to
actual and impending disasters.” Legislature’s Bypass App, p 25. This Governor
dismisses that governor’s request because she thinks it “definitionally bears little on
the Legislature’s intent.” Gov’s Bypass App, p 26. But after Governor Milliken’s
speeches and messages, the Legislature—evidently agreeing with Governor Milliken
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that the EPGA did not yet give him “plenary power”—passed the EMA to give him
that power, subject to certain checks. See also Walsh v City of River Rouge, 385 Mich
623, 632–633; 189 NW2d 318 (1971) (considering gubernatorial statements, including
statements from Governor Milliken, in construing the EPGA’s reach). This Governor
still insists that this whole exercise was unnecessary and that prior lawmakers were
wrong about the need for the EMA. She insists that vast reserves of power lay waiting
in the EPGA all along.
At one point, the Governor even flees from the whole concept of reading related
statutes together. Gov’s Bypass App, p 27. She suggests that the doctrine cannot
apply unless these statutes are ambiguous or otherwise in patent conflict. If, as the
Governor argues, the EPGA and EMA both delegate the same statewide legislative
power, then the EPGA permits her to override the legislative limits found in the EMA
and render the entire EMA redundant. Such a reading produces the conflict that
requires the statutes be read in harmony. At any rate, the very case she cites (and
the case the Legislature cited, too) says that “[t]he application of in pari materia is
not necessarily conditioned on a finding of ambiguity” in either individual statute.
SBC Health Midwest, Inc v City of Kentwood, 500 Mich 65, 73 n 26; 894 NW2d 535
(2017); see also People v Valentin, 457 Mich 1, 6; 577 NW2d 73 (1998) (“[A] statute
that is unambiguous on its face can be rendered ambiguous by its interaction with
and its relation to other statutes.” (cleaned up)). The Governor also says, without
authority, that two statutes should not be read in pari materia where they refer to
one another. That newly fashioned standard would preclude the Court from
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reconciling and harmonizing some of the law’s most intimately related statutes.
Contra People v Kern, 288 Mich App 513, 519–20; 794 NW2d 362 (2010) (“When one
statute explicitly refers to provisions of another statute, those provisions are
applicable and binding as though they had been incorporated and reenacted in the
statute under consideration.”). That would make little sense, and “common sense
[must] apply to the construction of statutes.” Kalamazoo Tp, Kalamazoo Co v Stamm,
339 Mich 619, 635; 64 NW2d 595 (1954) (cleaned up).
Reading the statutes together highlights the absurdity of the Governor’s
position. The Governor calls these statutes “belts and suspenders” with equal
statewide reach. Gov’s Bypass App, p 4. But the specifics of the statutes matter. The
Legislature outlined in its own bypass application how the EMA contains a series of
sophisticated administrative components that contemplate statewide emergencies or
widespread crisis. See Legislature’s Bypass App, pp 17–26; see also MCL 30.404(3),
30.405(1) (providing for federal aid); MCL 30.406 (providing detailed rules for
compensation for property); MCL 30.407–.408 (establishing departments and
department heads to oversee state administration); MCL 30.409 (providing for county
representatives from each county). The act even lists specific things that the
governor may do, most all of which have broad reach. See MCL 30.405. These include
the power to suspend statutes, shift funds, commandeer private property, provide
housing, force evacuation. Id. The EMA also carries certain checks, including 28-day
automatic termination absent legislative action. See, e.g., MCL 30.403(3), (4). And
that check is not alone: there are also specific requirements for how a governor must
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enter executive orders, other state entities must cross-approve certain actions, lower-
level executive officials must comply with certain limits on their authority, and
more. See, e.g., MCL 30.403(3), (4); 30.404(3); 30.407(3).
In contrast, the EPGA does not apply to statewide emergencies, but to an
“affected area.” MCL 10.31(1). It therefore contains a brief statement of authority
with some loose examples, all spanning a few terse paragraphs—fitting for smaller,
local management. The specific examples of power it offers are all directed to local
issues (in particular, civil unrest), including the power to control traffic, implement
curfews, control “ingress,” control “places of amusement and assembly,” and regulate
alcohol and explosive sales. Id. There are no structural checks other than the
governor’s self-determination of emergency, consistent with its local reach. The
Governor still thinks she can somehow use the EPGA to capture the statewide
benefits in the EMA while leaving the burdens (at least to her) behind. Yet the
obvious inference is that the Legislature put stringent limits on the EMA—including
the 28-day automatic termination provision—because it can be used at the statewide
level (along with the local level). It left the EPGA alone because it never expected
that the EPGA would be used in such a broad-brush fashion.
The Governor also invokes an EMA provision that says the EMA does not
“[l]imit, modify, or abridge the authority of the governor to proclaim a state of
emergency pursuant to [the EPGA].” MCL 30.417(d). But that’s a one-way street: it
does not say how any construction of the EPGA is to apply to the EMA, and it does
not give the Governor license to exercise such broad powers under the earlier statute
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as to effectively neuter the later one. And it is a narrow statement, speaking to the
Governor’s singular ability to declare an emergency at the onset. If anything, to give
any meaning to Section 30.417(d), the EMA must serve some purpose independent of
the EPGA. The EPGA’s text, supported by the legislative history, historical context,
and its dormancy, makes its focus local affairs—emergencies of a kind that flare-up
in a certain area or defined zone, burn hot, and extinguish in a short time. The EMA
can embrace local issues beyond the grasp of local officials, but it has the added reach
of statewide disasters. Defining their scopes this way allows the statutes to operate
“independent[ly],” as even the Governor agrees they must. Gov’s Bypass App, p 28.
One thing is clear: the EPGA’s reach cannot be so wide and overlapping as to render
the EMA meaningless. In contrast, if the statutes are coextensive (as the Governor
treats them), then the EMA’s grants of authority are superfluous and its limitations
on power toothless.
The Governor identifies just one way in which she believes the EMA is not
redundant under her view of the EPGA. In a single sentence, she says that the EMA
provides “a more detailed set of powers.” Gov’s Bypass App, p 28. She offers no
specifics on what “powers” she is referring to. “More detailed” powers do not equal
“distinct” powers. That much is plain from the Governor’s present insistence that
her recent loss of EMA powers (by order of the Court of Claims) changes nothing as
a practical matter. This Court has never embraced the notion that a separate, later-
enacted statute can act as just a list of “details” for some earlier enactment; in that
circumstance, the Legislature would be expected just to amend the prior act. If this
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case were to be the first, it would only make sense to carry the limits found in the
later “detailed” EMA into the earlier EPGA. That would include the EMA’s 28-day
limit. Cf. Legislature’s Bypass App, p 16-17 (explaining that later and more specific
statutes must prevail in the event of conflict).
In short, for the EMA’s gubernatorial-power provisions to mean anything, the
Court cannot accept the Governor’s overbroad constructions of the EPGA. The Court
need not and should not interpret a long-dormant statute meant to direct executive
resources during riots and the like to permit the Governor to exercise universal,
unchecked, statewide legislative authority over months or years. When an act is
meant to reach statewide—as in the EMA—the Legislature is intended to check that
extensive power. Shoehorning big problems into a small statute—like the EPGA—
defeats that check.
B. The Governor’s remaining arguments are beside the point.
Rather than face the fundamental problem that her broad construction of the
EPGA creates, the Governor trades punches with strawmen.
The Governor observes, for example, that the State of Michigan has broad
police power to respond to public-health emergencies, citing Jacobson v
Commonwealth of Massachusetts, 197 US 11, 22; 25 S Ct 358; 49 L Ed 643 (1905).
Gov’s Bypass App, p 20. True enough. But the Governor is not the State, and
Jacobson does not say where in the state government the police power resides. The
Michigan Constitution does. It says that the constitutional charge to “pass suitable
laws for the protection and promotion of the public health” is the Legislature’s. Const
1963, art 4, § 51.
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The Governor also claims broad-sweeping authority from the EPGA’s
statement of purpose. Gov’s Bypass App, p 23. But the cited provision says only that
the Legislature intended to give the Governor “sufficiently broad power of action” to
“provide adequate control” during crisis periods. MCL 10.32. This “adequate control”
language works better for civil unrest than a pandemic, signaling again that the
statute’s local reach. But in any event, the “power of action” refers to what acts the
Governor may perform. The “power of action” says nothing about when and where
the Governor may act. And as the Legislature explained in its application, the
expansive power the Governor interprets the statute to afford her is more reason to
believe that the statute did not contemplate statewide action, not less. Aside from all
that, a “rule of liberal construction does not override other rules if the application
would defeat the evident meaning of the act.” Little Caesar Enterprises v Dept of
Treasury, 226 Mich App 624, 629; 575 NW2d 562 (1997).
The Governor also takes the provisions of the EPGA piecemeal, ticking off how
she feels a given word favors her position. The Legislature has already explained
why the text says otherwise in its own application for leave. See Legislature’s Bypass
App, pp 20–24. But in trying to counter the Legislature’s points, the Governor misses
the forest for the trees. The EPGA’s text falls just short of a page; it offers a grant of
authority in only the barest terms, with a few non-exclusive examples. One cannot
assume, as the Governor does, that a statute with the vaguest of terms can afford a
governor plenary power over all aspects of Michiganders’ lives. “[T]he Legislature
does not, one might say, hide elephants in mouseholes[.]” People v Arnold, 502 Mich
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438, 480 n 18; 918 NW2d 164 (2018) (cleaned up). Remember that the Governor reads
the EPGA to empower her to define how Michigan’s entire population lives, works,
plays, worships, and learns for as long as she feels an “emergency” exists. But the
Legislature “could not have intended to delegate … decision[s] of such economic and
political significance to [the executive branch] in so cryptic a fashion.” Food & Drug
Admin v Brown & Williamson Tobacco Corp, 529 US 120, 160; 120 S Ct 1291; 146 L
Ed 2d 121 (2000).
Ultimately, one thing should decide this case for the Court: if the Governor is
right, then the EMA’s extensive framework means nothing. The Legislature’s work
in passing the EMA would have been for naught. But why, then, would the Governor
keep using it, as she did in response to recent flooding in Midland? The many
governors who have chosen to rely on the EMA for all these many past decades—
rather than the unconstrained powers of the EPGA—would have been wrong to do
so, too. For that matter, this Governor’s own choice to invoke the EMA as to COVID-
19, and even seek extensions from the Legislature, would be empty performance.
The Court should grant leave to appeal and reverse the Court of Claims. The
Governor did not have the power to declare a statewide state of emergency premised
on a pandemic under the EPGA.
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III. Any construction of the EPGA that authorizes the Governor to issue
broad, indefinite, statewide declarations of emergency premised on a
pandemic would be unconstitutional.
A. Broad, boundless delegations of legislative power offend the
separation of powers.
The Governor concedes that she is exercising lawmaking power. Yet she never
even addresses the Legislature’s argument that, whatever standards a statute might
have, there can still come a point where the Legislature delegates too much power.
After all, “[t]he legislature cannot delegate its power to make a law[.]” Consumers
Power Co v Pub Serv Com’n, 460 Mich 148 n 9; 596 NW2d 126, 133 (1999) (cleaned
up). And “it would frustrate the system of government ordained by the Constitution
if [the Legislature] could merely announce vague aspirations and then assign others
the responsibility of adopting legislation to realize its goals.” Gundy v United States,
____US____; 139 S Ct 2116, 2133; 204 L Ed 2d 522 (Gorsuch, J., dissenting). The
EPGA, at least as the Governor interprets it, does just that. That the Governor’s
edicts carry the bite of criminal sanctions, see MCL 10.33, only makes the problem
worse. See People v Hanrahan, 75 Mich 611, 619; 42 NW 1124 (1889) (“To declare
what shall constitute a crime, and how it shall be punished, is an exercise of the
sovereign power of a state, and is inherent in the legislative department of the
government.”); Kritikos, Resuscitating the Non-Delegation Doctrine: A Compromise
and an Experiment, 82 Mo L Rev 441, 443 (2017) (noting that the delegation test
becomes “more stringent” when the “legislature delegates crime-making authority”).
The Court could invalidate the the Governor’s spin on the EPGA on that basis alone.
Cf. Indus Union Dept, AFL-CIO v Am Petroleum Inst, 448 US 607, 687; 100 S Ct 2844;
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65 L Ed 2d 1010 (1980) (Rehnquist, J., concurring in the judgment) (“If we are ever
to reshoulder the burden of ensuring that Congress itself make the critical policy
decisions, these are surely the cases in which to do it.”).
The Governor tries to wave away any separation-of-powers concerns by
conflating them with unexceptional inter-branch cooperation or overlap. The
Governor thinks, for instance, some “overlapping of functions between branches” is
fine and, by extension, it “is constitutionally permissible” to “shar[e]” legislative
power between branches. Gov’s Bypass App, p 29, citing Judicial Attorneys Ass’n v
Mich, 459 Mich 291, 297; 586 NW2d 894 (1998). But Judicial Attorneys Ass’n was
only about the judiciary’s inherent power to exercise executive-like authority to
control and administer its own internal operations. Id. at 297–298. Each branch’s
smooth functioning “necessarily includes some ancillary inherent capacity” to
complete tasks normally done by other branches, but this “administrative authority”
only reaches “housekeeping chores.” Id. (cleaned up). Likewise, the Governor is right
that a branch may “obtain[] the assistance of coordinate branches.” Taylor v
Smithkline Beecham Corp, 468 Mich 1, 9 n 7; 658 NW2d 127 (2003). But Taylor also
draws a clear line: while the Legislature may delegate some implementing discretion,
it “cannot delegate its power to make a law.” Id. at 10 n 7 (cleaned up).
The Governor misses the point while leaning into cases like Judicial Attorneys
Ass’n and Taylor. The issue here is delegated power, not inherent power, and it
exceeds mere housekeeping chores, making Judicial Attorneys Ass’n inapplicable.
The EPGA also delegates far more power than the “limited and specific” power
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Judicial Attorneys Ass’n discusses, and it crosses the lawmaking line noted in Taylor.
Indeed, the Governor construes the EPGA to give her “the broadest level” of power.
Gov’s Bypass App, p 32. Similarly, the Court of Claims commented that the EMA—
which the Governor believes gives her even less power than the EPGA—contains
“awesome” power, Order p 20. Yet the guidance found in the terse statute is non-
existent.
The Governor cannot assert both a broad grant of power and operate in a
standardless space. However good her intentions, the constitution demands more.
B. The EPGA’s standards are too weak to pass constitutional
muster.
One cannot lose sight of the breadth of the powers asserted here. The
Governor’s most recent declarations of emergency state they will continue while
Michigan suffers from COVID-19’s economic effects. See EO 2020-99 (“Statewide
coordination of these efforts is crucial to creating a stable path to recovery. Until that
recovery is underway, the economic and fiscal harms from this pandemic have been
contained, and the threats posed by COVID-19 to life and the public health, safety,
and welfare of this state have been neutralized, statewide disaster and emergency
conditions will exist.”). Michigan did not recover from the Great Recession’s economic
effects for many years, and most agree the current economic downturn will be worse.
Under the Governor’s logic, a state of emergency will last through her entire term—
an eventuality the Court of Claims found troubling. Hearing Tr pp 30–31. What is
more, because the decision of whether the facts justify a declaration of emergency is
discretionary, the Governor would almost certainly argue that a court cannot review
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such a decision. See Makowski v Governor, 495 Mich 465, 476; 852 NW2d 61 (2014)
(holding courts “do not examine” an “exercise of the Governor’s discretion”). On facts
like these, standards are even more important.
Against this backdrop, the Court should evaluate the limits that can be found
in the EPGA. The Governor describes the EPGA as including “several limits.” Gov’s
Bypass App, p 31. But truth is, “the EPGA appears to have few, if any, real
restrictions on the Governor’s authority or even standards to guide that authority.”
Exhibit 1, MDHHS v Manke, unpublished order of the Court of Appeals, entered May
28, 2020 (Docket No. 353607) (Swartzle, J., concurring in part and dissenting in part),
p 7. Even the Governor can only point to two words: “reasonable” and “necessary.”
The Governor also thinks the phrase “to protect life and property or to bring the
emergency situation under control” affords some meaningful standard. MCL
10.31(1). It does not. It is hard to imagine what kind of order that so-called limitation
would prohibit, especially where the emergency can be defined as broadly as the
Governor would like—that is, co-extensive with the full police power. It appears
difficult for the Governor to imagine. She has suggested that she can do anything
under her pandemic-related declarations. Using these standards, she paused and
amended statutes at will (including the Open Meetings Act and statutes of
limitations). She suspended medical care. She forbade evictions. She closed parts of
some stores and all of others. And she kept 10 million Michiganders inside their
homes for months under threat of criminal penalty.
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Not all limitations are created equal. If a “limitation” is so impotent that it
does not foreclose any action at all, it is not in any meaningful sense a limitation. A
standard in name only is no real standard. The Governor seems to recognize the utter
permissiveness of the EPGA’s standards when she says that “reasonable” and
“necessary” “do not contemplate legislative or judicial second-guessing.” Id. at 33.
Precisely. If, as the Governor believes, the standards are so broad that they allow
her to escape judicial review, they are not real standards. See Westervelt v Nat. Res
Comm, 402 Mich 412, 439; 263 NW2d 564 (1978) (cited by the Governor) (explaining
that a delegation must provide standards sufficient to provide “an effective measure
by which the Legislature, the courts, and the public might ‘check’ [executive] action”).
C. Prior “standards” cases are not analogous—and cut against the
Governor, anyway.
No case in Michigan has upheld standards like these in a situation like this
one. The Governor believes GF Redmond & Co v Michigan Sec Comm, 222 Mich 1;
192 NW 688 (1923), justifies the EPGA’s “reasonable” and “necessary” language.
Gov’s Bypass App, p 31. In that case, this Court found a statute definite enough to
avoid delegation problems where it allowed an agency to revoke a business license for
“good cause.” GF Redmond might support the Governor if the “good cause” language
stood alone. But it did not. As the Court noted, the phrase good cause by itself is
“wanting in sense, incapable of being reduced to lawful certainty by judicial effort,
and ineffective on account of its radical uncertainty.” Id. at 5. The only reason “good
cause” sufficed in GF Redmond was because it related “so clearly to the conduct”
forbidden by the statute—that is, it incorporated the many and specific illegal actions
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prohibited. Id. at 5–6. That kind of incorporation is not unheard of. See Westervelt,
402 Mich at 447 (holding that the standards satisfied the separation of powers
because they incorporated the “developing and evolving common law of
environmental quality”); Mich State Highway Comm v Vanderkloot, 392 Mich 159,
170; 220 NW2d 416 (1974) (holding that the word “necessity” “sufficient in the context
of the Highway Condemnation Act” because the Legislature had 50 years of caselaw
interpreting what “necessity” meant in that specific context).
In contrast, the EPGA incorporates no such detail. The statute pairs
“reasonable” and “necessary” with only vague commands to protect life and property
and get things under control. Without more robust standards from somewhere else,
that language fails. The Governor insists that the “substantial discretion” in the
EPGA is no problem because the statute gives her some police power. Yet GF
Redmond rejected nearly the identical argument. See GF Redmond, 222 Mich at 4
(“We do not accept the broad contention of the attorney general that [w]herever the
police power of the state … confers upon [an executive body] wide discretionary
powers, … [it] always leav[es] open a wide field for the exclusive exercise of the
discretion of the [executive entity] administering the act.” (emphasis added)).
The more applicable case is Blue Cross & Blue Shield of Michigan v Milliken,
422 Mich 1; 367 NW2d 1 (1985), despite the Governor’s disagreements. Compare
Legislature’s Bypass App, p 43 with Gov’s Bypass App, p 32. But Blue Cross is not
alone; Milford v People’s Cmty Hosp Auth, 380 Mich 49; 155 NW2d 835 (1968), for
example, applies, too. In Milford, a public hospital’s bylaws said that the executive
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committee could revoke practicing privileges if the committee believed it was in “the
best interest of the hospital and its patients.” Id. at 61–62. The Court held this
standard functionally allowed “anything” the “committee in its sole opinion decided.”
Id. The standards did not include considerations of “qualifications,” “knowledge or
skill,” or “character or conduct.” Id. This left the executive with “arbitrary power” to
do whatever their “whim or caprice” suggested. Id. A simple best-interest standard
is what the Governor believes the EPGA gives her. As in Milford, it will not do. See
also Hoyt Bros v City of Grand Rapids, 260 Mich 447, 451; 245 NW 509 (1932) (holding
that a nonprofit-licensing statute allowing for “worthy” charities allowed for too
“great [a] variety of qualifications”).
D. Context matters, and more delegated authority requires more
standards.
The Governor (and the Court of Claims) think that magic delegation words
exist that, once upheld in one context, automatically suffice in every other context.
For example, the Court of Claims held that because “necessary” worked in Klammer
v Dept of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985), it automatically works
here, too. Order p 18. Yet Klammer said that whether certain language is an
appropriate delegation standard is fact-specific and depends on the particulars of
every case. 141 Mich App at 262 (“In the context of this case, ‘necessary’ was a
sufficiently precise standard.” (emphasis added)). The Governor wants the Court in
blinders, seeing only the word “necessary” in Klammer and then only the words
“reasonable” and “necessary” in the EPGA. But standards language does not exist in
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a vacuum; as Klammer notes, the Court measures the language against the specific
delegation at issue.
The Governor implicitly recognizes this when she quotes the case-specific
second element of Michigan’s standards rule, that is, that a delegation must be “as
reasonably precise as the subject matter requires or permits.” Gov’s Bypass App, p
30, quoting Westervelt, 402 Mich at 437. The Governor says the EPGA’s subject
matter—public crises—permits only a broad delegation of powers. Id. at 32–33,
quoting State Conservation Dept v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976).
The Court of Claims held similarly that any discussion “must acknowledge” the
“complexity of issues.” Order p17. In short, under this view, emergencies are so
unpredictable and complex that they permit only the weakest standards. This
reading of the doctrine’s permits language is accurate, so far as it goes. See
Westervelt, 402 Mich at 456–457 (Ryan, J., concurring) (explaining that a subject
matter requiring technical expertise does not easily allow clean legislation). But
stopping the analysis there—as the Governor’s and Court of Claim’s analyses do—
would ignore the doctrine’s other crucial word: “requires.”
Michigan’s delegation doctrine says a delegation must be “as reasonably
precise as the subject matter” not just permits, but “requires.” Using “requires”
recognizes that the scope or nature of a delegation will sometimes call for a stronger
standard than other times; put simply, delegations of greater power need stronger
standards. See Collins English Dictionary, <https://bit.ly/2MaEuar>, the MacMillan
Dictionary, <https://bit.ly/3ezH1Hj>, and Merriam-Webster’s Dictionary,
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<https://bit.ly/2BeGrQN> (accessed June 1, 2020) (defining something “required” as
needed or essential). And, naturally, a delegation requires stronger standards when
it give the delegee more discretion over more people and more things. No other
reading of Michigan’s delegation doctrine makes sense. As the Governor and the
Court of Claims interpret it, the EPGA delegates awesome power. The EPGA’s
subject matter requires strong standards—not the two-word, all-permissible
“reasonable” and “necessary.”
Federal courts have long agreed with these principles, holding that in a
tripartite system of government, a greater delegation of power to the executive
requires stronger standards. In Whitman v Am Trucking Associations, 531 US 457,
475; 121 S Ct 903; 149 L Ed 2d 1 (2001) (citations omitted), the Supreme Court held
that “the degree of agency discretion that is acceptable varies according to the scope
of the power congressionally conferred.” For example, while the legislature would not
have to “provide any direction” to the EPA regarding the definition of a “country
[grain] elevator,” “it must provide substantial guidance on setting air standards that
affect the entire national economy.” Id. (emphasis added). The EPGA’s delegation of
power, at least as the Governor is construing it, is at the latter end of the spectrum;
it delegates the “broadest level” of and “awesome” power. Her reading would allow
the Governor to functionally control Michigan’s “entire [state] economy.” But it lacks
the substantial guidance Whitman says is necessary. See Synar v United States, 626
F Supp 1374, 1386 (DDC, 1986) (“[D]elegation must be made not on the basis of the
scope of the power alone, but on the basis of its scope plus the specificity of the
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standards governing its exercise. When the scope increases to immense proportions
… the standards must be correspondingly more precise.”).
The Court of Claims refused to consider these notions because they drew from
federal authority. See Hearing Tr p 55 (“[I]f [Synar] was in Michigan we would be in
a different space … [Federal cases are] not [used] to interpret the Michigan
Constitution usually, but thank you.”). But this Court has often looked to the federal
courts to define its own non-delegation doctrine. See, e.g., Taylor, 468 Mich at 10
(noting that Michigan’s delegation doctrine tracks the federal delegation doctrine and
specifically quoting Whitman); Makowski, 495 Mich at 482 (relying heavily on federal
precedent in explaining the separation of powers); Dukesherer Farms, Inc v Ball, 405
Mich 1, 25; 273 NW2d 877, 887 (1979) (same); Seaman, 396 Mich at 309 (using a
federal case to develop Michigan’s nondelegation standard); City of Pleasant Ridge v
Romney, 382 Mich 225, 245–246; 169 NW2d 625 (1969) (quoting six federal cases in
delegation discussion); Johnson v Michigan Milk Mktg Bd, 295 Mich 644, 559-660;
295 NW 346 (1940) (quoting many impermissible delegation court cases); Herrick Dist
Library v Library of Michigan, 293 Mich App 571, 580; 810 NW2d 110 (2011) (relying
heavily on federal caselaw). The Governor does so, too. See, e.g., Gov’s Bypass App,
pp 14, 16, 20–21, 47, 49. Federal law can provide useful authority—especially to
support constitutionally intuitive principles such as “greater delegation requires
stronger standards.” See also Le Duc, Michigan Administrative Law § 2:5 (“Federal
case law is also relevant and helpful in interpreting the meaning of the Michigan
provisions[.]”)
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Federal courts are not alone in adopting the “more power, more standards”
philosophy. At least two other states—including one whose delegation doctrine
compares to Michigan’s—have adopted this “sliding scale” understanding of the scope
of a delegation. See Cobb v State Canvassing Bd, 140 NM 77, 89; 140 P3d 498 (2006);
Usibelli Coal Mine, Inc v State, Dept of Nat Res, 921 P2d 1134, 1144 (Alas, 1996);
Greco, Standards or Safeguards: A Survey of the Delegation Doctrine in the States, 8
Admin LJ Am U 567, 591 (1994) (defining Michigan’s and Alaska’s delegation
doctrines as similar). Treatises and scholars have also noted this core aspect of the
delegation doctrine. See 16A Am Jur 2d Constitutional Law § 316; Sullivan, Powers,
But How Much Power? Game Theory and the Nondelegation Principle, 104 Va L Rev
1229, 1234 (2018); Black, Federalizing Education by Waiver?, 68 Vand L Rev 607, 679
(2015); Diller, Habeas and (Non-)Delegation, 77 U Chi L Rev 585, 635 (2010); and
Posner & Vermeule, Crisis Governance in the Administrative State: 9/11 and the
Financial Meltdown of 2008, 76 U Chi L Rev 1613, 1631 (2009).
The Legislature cannot find any case discussing a delegation close to the scope
of the EPGA’s delegation; they all involve narrower delegations of power in a single
subject area. See, e.g., Seaman, 396 Mich at 309 (commercial fishing license
requirements); Vanderkloot, 392 Mich 159, 170 (specifics of highway condemnation);
GF Redmond, 222 Mich 1 (revocation of securities dealers’ licenses); Klammer, 141
Mich App at 262 (waiver of mandatory retirement from state service); By Lo Oil Co v
Dept of Treasury, 267 Mich App 19, 37; 703 NW2d 822 (2005) (diesel-fuel-sale invoice
requirements); Bunce v Secy of State, 239 Mich App 204, 215; 607 NW2d 372 (1999)
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(license suspensions for “habitual violator[s] of drunk driving laws”); Kent Cnty
Aeronautics Bd v Dept of State Police, 239 Mich App 563, 588; 609 NW2d 593 (2000)
(locations of police communication towers); Nat Aggregates Corp v Brighton Tp, 213
Mich App 287, 305; 539 NW2d 761 (1995) (township ordinance for mining permit
requirements); and City of Pleasant Ridge, 382 Mich at 245 (dispute resolution
mechanism for highway location disputes); City of Detroit v Detroit Police Officers
Ass'n, 408 Mich 410, 452; 294 NW2d 68 (1980) (reciting at length the many “detailed”
standards—including temporal limitations and eight specific factors—governing
“compulsory interest arbitration of municipal police and fire department disputes”).
The broadest delegations of power addressed by this Court were Westervelt, 402 Mich
at 445–447, and Blank v Dept of Corr, 462 Mich 103, 126; 611 NW2d 530 (2000)—
when the Court discussed delegations of power to the DNR to manage our natural
resources and to the DOC to control the prisons. In both cases, the Court took
paragraphs upon paragraphs to list just some of the enabling acts’ standards. Id.
Hardly analogous to this act.
But it is not the size of the EPGA’s delegation alone that makes it problematic;
the delegation also allows the executive to set significant policy and create novel
criminal penalties. A delegation is suspect if it allows the executive to set significant
policy. See City of Detroit, 408 Mich at 459 (noting that it is the Legislature’s job to
set policy and any delegation of authority is legitimate only if “exact policy is clearly
made apparent”); 16A Am Jur 2d Constitutional Law § 316 (“[I]t must be determined
whether the legislature delegated the making of fundamental policy decisions rather
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than just the implementation of a legislatively determined policy.”). Here, as read by
the Governor, the EPGA’s policy is functionally that when Michigan faces a crisis the
Governor may do whatever she thinks is best. In no world is that an “exact policy.”
Under her reading of the EPGA, all fundamental policy decisions are left to the
Governor alone.
Finally, if the Governor argues that it is impossible to provide clear standards
as to the power needed to address public emergencies, she is wrong. Just look at the
EMA. The Governor sees the EMA’s and EPGA’s powers as coextensive, yet the EMA
has far more robust standards—especially the 28-day standard. The EMA shows that
emergency powers need not be unbridled to be effective.
E. The Legislature can choose to retain emergency power for itself.
At bottom, the Governor seems to think that the legislative branch is an
ineffective one. See Gov Bypass App, pp 33-34. She argues that emergencies are for
the executive to handle. Id. at 33. That might be true for some immediate
emergencies. Logistics or the deliberative process can take too long, and most are
willing to settle for even a half-formed solution. But COVID-19 is not that sort of
emergency. It will be a protracted problem for months or years. In that extended
situation, unilateral control is counterproductive and dysfunctional, especially when
the Legislature has already shown that it can act fast when it needs to. See Wisconsin
Legislature v Palm, No. 2020AP765-OA, 2020 WL 2465677, at *9 (Wis, May 13, 2020)
(“But the Governor’s emergency powers are premised on the inability to secure
legislative approval given the nature of the emergency. For example, if a forest fire
breaks out, there is no time for debate. Action is needed. The Governor could declare
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an emergency and respond accordingly. But in the case of a pandemic, which lasts
month after month, the Governor cannot rely on emergency powers indefinitely.”).
Indeed, extended “emergency” gubernatorial lawmaking can create a separate
serious problem: a lack of due process. Due process has always been a key factor in
delegation discussions—and for good reason. People v Lueth, 253 Mich App 670, 677–
678; 660 NW2d 322 (2002) (listing due process as a fourth element of the delegation
doctrine); see also Westervelt, 402 Mich at 442–43; Seaman, 396 Mich at 313. The
non-delegation doctrine is concerned with preventing executive arbitrariness. See
Blue Cross, 422 Mich at 51 (“[T]he essential purpose of the delegation doctrine was to
protect the public from misuses of the delegated power.”). Without the protections of
bicameralism and presentment, arbitrariness seems to have become the name of the
game. See, e.g., Statement of Interest of the United States, p 2, Signature Sotheby’s
Int’l Realty, Inc v. Whitmer, No. 1:20-cv-00360 (WD Mich, May, 29, 2020) (explaining
the Department of Justice’s view that the Governor “has imposed arbitrary and
irrational limits” on certain private plaintiffs through her emergency orders). Over
the past few months, the Governor has issued executive orders at a blinding speed
with little input—changing course sometimes daily and often through unofficial
FAQs. Basing criminal penalties on FAQs issued at 2:00 a.m. does not satisfy due
process. This lack of meaningful due process confirms that “emergency”
gubernatorial powers can and should be limited to a stopgap measure. See, e.g.,
Robinson v Attorney Gen, 957 F3d 1171, 1179 (CA 11, 2020) (“[J]ust as constitutional
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rights have limits, so too does a state’s power to issue executive orders limiting such
rights in times of emergency.”).
The Court could avoid this morass by declining to embrace the Governor’s
interpretation of the EPGA. See Lemos, The Other Delegate: Judicially Administered
Statutes and the Nondelegation Doctrine, 81 S Cal L Rev 405, 455 n 240 (2008) (listing
“several occasions” when the US Supreme Court “has adopted a narrow construction
of a challenged statute as a means of corralling what might otherwise be a
constitutionally excessive delegation of power”). But if it determines not to, then it
should declare the EPGA unconstitutional.
IV. After April 30, 2020, the Governor did not possess authority under the
EMA to declare a state of emergency or disaster.
The Governor also seeks to resurrect her authority under the EMA to make
post-April 30 statewide declarations of emergency and disaster concerning COVID-
19. But as the Court of Claims correctly held, the EMA does not justify her actions,
either.
The EMA allows the Governor to declare a statewide state of disaster or
emergency for up to 28 days. “After 28 days,” she must “issue an executive order or
proclamation declaring the state of disaster [or emergency] terminated, unless” the
legislature approves “by resolution of both houses” her request “for an extension of
the state” of emergency or disaster. MCL 30.403(3)–(4). The Governor purported to
fulfill the EMA’s termination requirement here by ending the states of emergency
and disaster on April 30, only to redeclare states of emergency and disaster—based
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on the same underlying facts—one minute later. This disingenuous interpretation of
the EMA creates several insurmountable problems.
A. The Governor’s orders conflict with the EMA’s plain text.
The Court’s “primary goal when interpreting statutes is to discern the intent
of the Legislature. To do so, [the Court] focus[es] on the best indicator of that intent,
the language of the statute itself.” Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205–
06; 815 NW2d 412 (2012). The Court should read “provisions of statutes reasonably
and in context” and “subsections of cohesive statutory provisions together.” Detroit
Pub Sch v Conn, 308 Mich App 234, 248; 863 NW2d 373 (2014).
The EMA’s plain language confirms that the Governor’s April 30 declaration
of states of emergency and disaster—and the executive orders that derive from that
declaration—were improper. The language mandates that a given state of emergency
will end after 28 days unless the Legislature determines otherwise. In fact, the
Legislature used the word “terminated,” a word used to connote the absolute end of
the matter—not a temporary pause, a point of reassessment, or a time for potential
revival. See Black’s Law Dictionary (11th ed 2019) (defining “terminate” to mean:
“[t]o put an end to; to bring to an end … [t]o end; to conclude.”); see also, e.g., State ex
rel Flynt v Dinkelacker, 156 Ohio App 3d 595, 600; 807 NE2d 967 (2004) (“Terminated
means done, finished, over, kaput.”); Conecuh-Monroe Cmty Action Agency v Bowen,
852 F2d 581, 588; 271 US App DC 283 (1988) (“[C]ommon usage suggests that the
word [“terminate”] means a complete cut-off[.]”); Jones Motors v Workmen’s Comp
Appeal Bd, 51 Pa Cmwlth 210, 213; 414 A2d 157 (1980) (“We have no doubt that the
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word ‘termination’ connotes finality. … ‘Termination’ signifies a conclusion or
cessation, and its meaning is not interchangeable with ‘suspend.’”).
The EMA does not describe a process for the Governor to reinstate a state of
emergency or disaster, particularly when the Legislature refuses to grant an
extension. Cf. Youngstown Sheet & Tube Co v Sawyer, 343 US 579, 637; 72 S Ct 863;
96 L Ed 1153 (1952) (Jackson, J., concurring) (“When the President takes measures
incompatible with the expressed or implied will of Congress, his power is at its lowest
ebb, for then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter.”). Indeed, after the 28 days have
run, the EMA does not contemplate any role for the Governor at all without a
legislatively approved extension, other than performing the mandatory ministerial
act of issuing a final executive order to close out the declaration of emergency or
disaster. In other words, as the Court of Claims put it, the statute contemplates that
the Governor will either terminate the declaration or extend it with legislative
approval. “There is no third option for the Governor to continue the state of
emergency and/or disaster on her own[.]” Order p 24.
The Governor can find just one textual hook for her view that perfunctory and
repeated declarations and termination suffice: the statute’s reference to statement
that she “shall” issue declarations of emergency or disaster. But as the Court of
Claims said, “the Governor takes these directives out of context.” Order p 23. The
more obvious reading is that the Governor discharges her duty by declaring a state
of emergency or disaster once after conditions arise justifying one. That is the only
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way to reconcile the other “shall” provision of the statute, which explains that the
Governor “shall” terminate her declarations after 28 days passes.
B. The Governor’s interpretation would produce absurd results.
Courts “are required to interpret statutes in their entirety in the most
reasonable manner possible.” Duffy v Michigan Dept of Nat Res, 490 Mich 198, 215
n 7; 805 NW2d 399 (2011) (emphasis in original). Thus, courts should use “common
sense” when interpreting a statute, Diallo v LaRochelle, 310 Mich App 411, 418; 871
NW2d 724 (2015); accord Marquis v Hartford Acc & Indem, 444 Mich 638, 644; 513
NW2d 799 (1994), and should avoid “absurd results,” People v Pinkney, 501 Mich 259,
266; 912 NW2d 535 (2018) (cleaned up).
The Governor would interpret the EMA to produce absurd results. The
Governor has already issued contradictory orders that simultaneously declared that
a state of emergency existed and that a state of emergency did not exist within a
minute. Given forecasts that COVID-19 could create issues well into 2021 (or
beyond), this bob-and-weave could be expected to go on for months or even years. See,
e.g., Livengood, Pfizer preparing to manufacture COVID-19 vaccine in Kalamazoo,
Crain’s Detroit <https://bit.ly/2YB49QP> (May 5, 2020) (quoting the Governor: “We
can’t resume normal life until we have a vaccine.”). Yet inconsistent orders like these
serve no purpose; if anything, the back-and-forth could be expected to confuse the
public at a time when clarity in messaging is key. See DesOrmeau, After 102
Executive Orders, Confusion Is Commonplace On What’s Allowed in Michigan and
What Isn’t, MLive <https://bit.ly/3gH01oY> (May 30, 2020).
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For good reason, then, courts do not care for this kind of behavior. See, e.g.,
Gill v New York State Racing & Wagering Bd, 11 Misc 3d 1068(A); 816 NYS2d 695
(NY Sup Ct, 2006) (finding that regulatory board improperly used emergency
rulemaking process to circumvent time limits on duration of emergency rules by
repeatedly “let[ting] the rule lapse as if the emergency disappeared for 24 hours and
then [reinstating the rule as if the emergency had] magically reappeared 24 hours
later”); Boston Gas Co v Fed Energy Regulatory Comm, 575 F2d 975, 978 (CA 1, 1978)
(refusing to interpret a statute to create an “endless cycle” of petitions and
rehearings).
If the Governor’s termination order is to be given effect (as the law says it
must), then several impractical consequences arise. Suspended statutes would come
back into force, only to disappear a moment later. Reallocated resources would be
sent to their original positions, only to be reassigned again seconds after. And private
property that was commandeered by executive order would return to the rightful
owners, only to be passed back into the hands of the State for a second time in an
instant. See MCL 30.407 (describing the powers of the Governor incident to an
emergency or disaster declaration). Here again, these inevitable consequences create
inefficiencies and chaos amid already challenging circumstances. None of them serve
the purpose of the statute.
The Governor unashamedly says, “The Legislature wrote the rules; the
Governor followed them.” Gov’s Bypass App, p. 46. It is remarkable to see the highest
executive of the state—charged with executing the laws of the Legislature—playing
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this sort of “gotcha” game with legislative text. “Law reaches past formalism.” Lee v
Weisman, 505 US 577, 595; 112 S Ct 2649; 120 L Ed 2d 467 (1992). The Governor’s
on-again-off-again declaration approach is “formalistic in the extreme,” and the Court
should reject it. Id.
C. The Governor’s interpretation of the EMA renders the
Legislature’s central role a nullity.
The Court also should not construe a statute in a way that would render a
provision “surplusage or [ ] nugatory.” Apsey v Mem Hosp, 477 Mich 120, 127; 730
NW2d 695 (2007) (citation omitted). A provision “is rendered nugatory when an
interpretation fails to give it meaning or effect.” Id. at 131. Courts have also said
that interpretations must avoid rendering a portion of a statute “meaningless,”
Herald Wholesale, Inc v Dept of Treasury, 262 Mich App 688, 699; 687 NW2d 172
(2004); People v Morey, 230 Mich App 152, 158; 583 NW2d 907 (1998), or
“unnecessary,” Trentadue v Buckler Lawn Sprinkler, 479 Mich 378, 399; 738 NW2d
664 (2007); Gross v Gen Motors Corp, 448 Mich 147, 159; 528 NW2d 707 (1995).
However phrased, the Court should apply “any reasonable construction” before it
accepts an interpretation that renders part of a statute “unnecessary.” Ex parte
Landaal, 273 Mich 248, 252; 262 NW 897 (1935).
The Governor’s interpretation distorts the EMA and renders the Legislature’s
role mere surplusage and nugatory. The EMA provides the Legislature a meaningful
role: the Legislature is the only party that the EMA empowers to extend the state of
emergency or disaster. If the Governor can rescind her declaration and restate it a
minute later, as the Governor did here, then that role becomes meaningless. She has
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implemented a de facto extension. If the Legislature’s refusal to extend a declaration
has no practical effect, then it was unnecessary to include the resolution provision in
the EMA. The Governor’s own invocation of that provision was also a sham. Indeed,
the Governor never explains the effect of the Legislature’s refusal to extend. By her
actions, we can presume the answer is “none.”
The Governor thinks the 28-day provision is just a way station on the path to
unrestrained power. She believes the 28-day mark only offers her a chance to “show
her work” and engage in an “interbranch dialogue.” Gov’s Bypass App, p 44. But,
evidently, she need not even persuade a bare majority of the Legislature to extend
her powers. And why would this time for talk be needed? The Legislature already
has tools to compel that kind of “dialogue.” See MCL 4.101, 4.541 (allowing the
Legislature to authorize committees to subpoena governmental officials and records).
In any event, the Governor must always “show her work,” as—within the 28-day
period—she is statutorily required to terminate the states of emergency or disaster
the moment the “threat or danger has passed.” MCL 30.403(3), (4). Nothing in the
text implies that the 28-day provision is just a time to talk. If that were the case, the
Legislature could have met that objective through a simple reporting requirement.
How does it hold the Governor “accountable” to instead make her flip the emergency
switch off and on again? Gov’s Bypass App, p 43.
The Governor’s on-again-off-again approach to emergency management serves
only one purpose: it allows her to ignore the Legislature. That, of course, is neither
an appropriate nor a lawful purpose. If the Governor can circumvent the legislative-
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approval clause with two strokes of a pen, then the whole exercise of approval is
pointless.
D. The Governor’s interpretation of the EMA defeats a central
purpose of the statute: to allocate power among the branches.
Recall that the Court is aiming for a “reasonable construction in consideration
of the purpose of the statute and the object sought to be accomplished.” Frankenmuth
Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998).
Although a statute’s purpose can often be found on its face, it can also be found in
interpretive tools like the House Legislative Analysis. See Bell v FJ Boutell
Driveaway Co, 141 Mich App 802, 810; 369 NW2d 231 (1985).
Here, the Legislature intended the 28-day period to allow quick but temporary
unilateral action from the Governor to address sudden disasters or emergencies. The
law gives the Legislature 28 days to gather itself to assume its own role, to determine
whether to grant a request for an extension from the Governor, and to otherwise
address the crisis. See House Legislative Analysis, HB 5496, <https://bit.ly/
3b8XMXM> (May 5, 2002) (explaining that the 28-day unilateral action period
“recognizes that sometimes the legislature may not be in session during the time
when a state of emergency or disaster needs extending”). In other words, once
feasible, the statute intends for the Legislature to take the reins. It may choose to
extend the declaration if it wishes; otherwise, the Governor’s ability to exercise the
EMA’s emergency powers ends. See id. (noting concerns about “abuses of executive
power” through the EMA and noting the views of some that 60 days would be “a
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considerable length of time for the state government to be able to exercise emergency
powers”).
The legislative scheme answers the Governor’s hypothetical about the need to
respond to an ongoing COVID-19 pandemic. See Gov’s Bypass App, p 41. If an
emergency lasts for a longer period, then the Legislature can address it in the manner
it prefers. One cannot assume that “emergency response resources” will sit idly for
no reason. If the Governor feels the Legislature is not making the right choices in
those circumstances, she is free to do what she may always do: use the “bully pulpit”
and her office’s influence to seek the results she wants from the Legislature. The
need for a two-thirds majority to secure a law with immediate effect will also ensure
that all parties are on board. In sum, the Legislature could be ready to act.
F. The EMA’s resolution provision is constitutionally sound.
Left with no plausible argument that she has complied with the EMA’s
temporal limit, the Governor argues that the Court should strike down the EMA’s
resolution mechanism as a legislative veto—an act of legislation that requires
“bicameralism and presentment.” Gov’s Bypass App, p 47. As the Court of Claims
recognized, the Governor is mistaken.
Under Michigan’s 1963 Constitution, legislation creates law, and “[a]ll
legislation shall be by bill.” Const 1963, art 4, § 22. A resolution under MCL
30.403(3), (4) is not legislation. MCL 30.403(3), (4) contains an automatic sunset
provision for every declaration of disaster or emergency. The statute dooms them to
terminate within 28 days; only a resolution saves them. This provision does not
require or allow the Legislature to approve or disapprove any of the Governor’s
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specific executive orders. Compare with MCL 10.85(2) (specifically permitting the
Legislature to disapprove certain executive orders, directives, and proclamations
used to address an energy emergency under State Energy Emergency Act). Rather,
it requires the Legislature to decide whether a state of disaster or emergency—and
the resulting emergency powers of the Governor—will extend for any period beyond
the natural sunset.
Taxpayers of Michigan Against Casinos v State, 471 Mich 306, 318; 685 NW2d
221 (2004) (“TOMAC”), confirms that the resolution process is not “legislation.”
There, Governor Engler signed several compacts with Michigan Indian tribes. The
compacts said they became effective once the Governor endorsed them and the
Legislature “concurre[d] in that endorsement by resolution.” Id. at 316. The plaintiffs
argued that adopting the compacts was an act of legislation and thus could be done
only by bill. Id. at 317. The Court disagreed for many reasons. First, legislation is
best defined as unilateral regulation, which a compact is not. Id. at 324. Second, the
resolution would “not apply to the citizens of the state of Michigan as a whole.” Id.
Crucially, “[l]egislation looks to the future and changes existing conditions by making
a new rule to be applied thereafter to all or some part of those subject to its power.”
Id. (cleaned up). But the compacts did not set out rules for anyone over whom the
state had legislative power. Id. The Court rejected the plaintiff’s argument that the
Legislature indirectly “affected the rights of state citizens” by approving compacts
with age restrictions that would prohibit younger Michiganders from visiting casinos.
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Id. at 325–326. Finally, endorsing the compacts did not create more state obligations.
Id. at 326. Thus, the Legislature’s resolution was not legislation.
The extension here meets TOMAC’s test for “non-legislation.” Because a
resolution extending a declaration of a state of emergency or disaster exercises no
“[c]ontrol over something by rule or restriction,” Black’s Law Dictionary (11th ed.
2019) (definition of “regulation”), it is not a regulation. Nor does it directly affect the
rights of citizens. An extension is a continuation of delegated emergency powers, not
a forward-looking change to existing conditions for citizens. And while an extension
of a declaration may indirectly affect Michigan citizens by allowing the Governor to
act under the EMA longer, the extension itself (as in TOMAC) does not directly do so.
As in TOMAC, the Legislature is also merely expressing its concurrence with a
determination already made by the Governor; there, it was a compact, while here, it
is the Governor’s determination of emergency. Finally, extending a declaration does
not add new obligations to the State. For all these reasons, the EMA’s resolution
mechanism is not legislation.
The Governor cannot rely on Blank, 462 Mich at 103. In Blank, the Legislature
blocked certain Department of Corrections rules, which directly stopped the DOC
director from completing his statutory duty of implementing the DOC’s Act. Id. at
116. Here, on the other hand, as in TOMAC, any effect will be indirect and secondary,
not direct; the statute—not the lack of a resolution—is the legal way that any declared
state of emergency or disaster stops. Second, refusing to approve the Department’s
rules “involve[d] policy determinations,” as the Legislature took testimony, received
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comments, heard from stakeholders, and then decided how to carry out the statute.
Id. In our case, the Legislature’s choice not to extend a declaration of emergency is
not a policy decision. See In re Certified Question, 432 Mich 438, 455–56; 443 NW2d
112 (1989) (defining “policy”). Third, the legislative process in Blank supplanted
other legislative methods of reaching the same result. Id. at 117. But here again, a
resolution is the only method the Legislature uses to extend an emergency. Perhaps
most fundamentally, Blank’s central question was whether the Legislature could
delegate authority to an agency to implement a statute and then functionally execute
that statute itself. Id. at 115–116. Here, the Legislature’s isolated extension of a
declaration of emergency is not monitoring, overseeing, or vetoing specific acts of
implementation under the EMA. Phrased differently, the resolution mechanism tells
the Governor when she can continue to exercise her MCL 30.405 powers—not how to
exercise them. That is a crucial distinction, as the Legislature has “the right to pass
a law whose operation might depend upon, or be affected by, a future contingency”—
the operation of which is left to the “judgment of the legislature.” Miller v State Dept
of Treasury, 385 Mich 296, 319; 188 NW2d 795 (1971). Lastly, the DOC act in Blank
gave the Director sole authority to take the disputed action (implementing the
statute); here, nothing in the EMA gives the Governor sole and total authority to
decide whether a state of emergency or disaster exists. Nor does the Governor have
that kind of constitutional authority. See Michigan State AFL-CIO v Secy of State,
230 Mich App 1, 33–34; 583 NW2d 701 (1998) (O’Connell, J., concurring) (noting that
Michigan’s “constitution does not commit the power to declare an emergency to any
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single branch of government” and that either the legislative or the executive branch
can declare an emergency).
Because the extension mechanism is not legislation, it is not subject to the
bicameral-presentment requirement. The Legislature has broad power under the
Constitution, including the discretion to express itself as it chooses (when
constitutionally permissible). TOMAC, 471 Mich at 326–327, 329. Historically, this
has included using resolutions to express its non-legislative “assent.” Id. at 328 n 9,
329; accord Becker v Detroit Sav Bank, 269 Mich 432, 435; 257 NW 853 (1934) (“Joint
resolutions are often used to express the legislative will in cases not requiring a
general law.”), quoting Hoyt v Sprague, 103 US 613, 636; 26 L Ed 585 (1880). The
resolution mechanism is therefore a constitutionally appropriate method of assenting
to an extension of a declaration of emergency or disaster. And remember that the
inquiry would not end even if the Court did find some constitutional problem with
the resolution process. The Governor would still need to explain how the resolution
provision is severable from the rest of the act, allowing the rest of the Governor’s
powers under the EMA to continue. “The law enforced after severance must be
reasonable in light of the act as originally drafted.” Michigan State AFL-CIO v
Michigan Employment Relations Com’n, 212 Mich App 472, 501; 538 NW2d 433
(1995). She has not offered that explanation, and it does not seem “reasonable” to
strip out the only control imposed on the Governor’s otherwise broad powers but leave
the rest intact. Likewise, the Governor would need to explain why her declarations
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would somehow live on past 28 days just because the extension process is
constitutionally invalid. Here again, she has not.
In sum, the Governor’s complaints about the EMA’s resolution process do not
excuse her improper extension of the states of emergency and disaster under the
EMA.
CONCLUSION
If a constitutional crisis exists in the State of Michigan, it exists only because
an executive has sought to extend her powers to rule by decree indefinitely—with no
meaningful checks on that authority. If the Court determines not to remedy that
problem, then the issues will extend far beyond this governor and far beyond this
crisis. The Legislature respectfully asks that this Court grant the applications for
leave, affirm that the Governor had no power to issue COVID-19-related declarations
of emergency or disaster after April 30, and declare that the Governor could not issue
a declaration of emergency under the EPGA, either.
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Respectfully submitted,
By: /s/ Patrick G. Seyferth
Patrick G. Seyferth (P47475)
Stephanie A. Douglas (P70272)
Susan M. McKeever (P73533)
Bush Seyferth PLLC
100 W. Big Beaver Rd., Ste. 400
Troy, MI 48084
(248) 822-7800
Hassan Beydoun (P76334)
General Counsel
Michigan House of Representatives
PO Box 30014
Lansing, MI 48909
By: /s/ Michael R. Williams
Michael R. Williams (P79827)
Frankie A. Dame (P81307)
Bush Seyferth PLLC
151 S. Rose St., Ste. 707
Kalamazoo, MI 49007
(269) 820-4100
William R. Stone (P78580)
General Counsel
Michigan Senate
PO Box 30036
Lansing, MI 48909
Attorneys for the Michigan House of Representatives and Michigan Senate
Dated: June 1, 2020
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Exhibit 1
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Court of Appeals, State of Michigan
ORDER
Michigan Department of Health and Human Services v Karl Manke
Docket No. 353607
LC No. 20-004700-CZ
Stephen L. Borrello Presiding Judge
Amy Ronayne Krause
Brock A. Swartzle Judges
At issue are two emergency applications for leave to appeal filed from two orders of the trial court.
The first order, entered May 11, 2020, denied appellant’s emergency motion for issuance of a temporary restraining order (TRO) preventing appellee from continuing to operate his barbershop. The second order, entered May 21, 2020, denied appellant’s motion for issuance of a preliminary injunction preventing appellee from operating his barbershop.
The motions for immediate consideration are GRANTED.
The case is REMOVED from abeyance.
In response to the COVID-19 virus, the Governor issued a series of Executive Orders (EO). EO 2020-69 prohibited certain businesses from operating, including “non-essential personal care services.” § 1 of EO 2020-69. Section 3.a of EO 2020-69 provides that non-essential personal care services “includes but is not limited to hair, nail, tanning, massage, traditional spa, tattoo, body art, and piercing services, and similar personal care services that require individuals to be within six feet of each other.” Appellee held a license which allowed him to operate a barbershop in Owosso, Michigan. On May 4, 2020, admittedly in contravention of the EO, appellee opened his barbershop and offered his services as a barber to the general public. Appellee refused to close his barbershop despite repeated warnings to do so by state and local authorities eventually leading to appellant’s director’s issuance of an Imminent Danger and Abatement Order calling on appellee to immediately close his barbershop to the public. Appellee refused to comply. Appellant then requested that the trial court issue a TRO, to be followed by a preliminary injunction, ordering appellee to immediately cease all operation of the barbershop. The trial court denied the request for a TRO. Appellant sought leave to appeal, and this Court ordered that the application be held in abeyance and that the trial court hold a hearing and issue an opinion and order on appellant’s request for a preliminary injunction. In accordance with the order of this Court, the trial court held a hearing and issued an opinion and order concluding that appellant’s request “presented a close call” but that it was “not fully convinced of the need for an injunction.”
Appellant thereafter sought leave to appeal from the order denying the preliminary injunction.
“The objective of a preliminary injunction is to maintain the status quo pending a final hearing regarding the parties' rights.” Michigan AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143, 145; 809 NW2d 444, 446 (2011). The status quo has been defined as “ ‘the last actual, peaceable, noncontested status which preceded the pending controversy.’ ” Buck v Thomas Cooley Law
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School, 272 Mich App 93, 98 n 4; 725 NW2d 485 (2006), quoting Psychological Services of Bloomfield, Inc v Blue Cross & Blue Shield of Michigan, 144 Mich App 182, 185; 375 NW2d 382 (1985). Here, on May 4, 2020, when appellee provided his services to the public, the status quo was that non-essential personal care services such as barbershops were closed. In lieu of commencing a legal challenge to the constitutionality of EO 2020-69, appellee instead opened his barbershop and provided his services as a barber to the general public. Appellee continues to provide his services as a barber to the general public despite having his license summarily suspended by the State of Michigan.
When presented with a request for preliminary injunctive relief, a court should consider four factors:
(1) the likelihood that the party seeking the injunction will prevail on the merits, (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued, (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued. [Davis v City of Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d 896 (2012).]
Turning to the likelihood that the party seeking the preliminary injunction will prevail on the merits, we note appellant’s request for injunctive relief is premised on assertions that appellee’s actions create an imminent danger to the public health, necessitating the issuance of what is entitled an Imminent Danger and Abatement Order. The power of appellant’s director to issue the Imminent Danger and Abatement Order in response to an imminent danger to the public health comes from § 2251(1) of the Public Health Code (PHC), MCL 333.1101 et seq. An “imminent danger” is defined to mean an existing “condition or practice . . . that could reasonably be expected to cause death, disease, or serious physical harm immediately or before the imminence of the danger can be eliminated through enforcement procedures otherwise provided.” MCL 333.2251(5)(b). The PHC recognizes the singular danger that an epidemic presents to the public health and welfare and the need to take exceptional action to control the rapid spread of the disease. MCL 333.2253(1).
The statute authorizes the director to issue orders to abate “imminent dangers” “upon a
determination that an imminent danger to the health or lives of individuals exists in this state[.]” In the face of a declared public health emergency, the Legislature vested the Department with the power to exercise its discretion to decide whether an “imminent danger” exists, and in light of the Department’s expertise in this realm, to “abate” the danger as the Department’s experts see fit.
This expansive power easily encompasses the closing of defendant’s barbershop. Thus, once the Governor declared a public health emergency, the Legislature determined that it was up to the Department to issue orders protecting the public health. Accordingly, in order to challenge the exercise of that authority, appellee had to present evidence that appellant overstepped the statutory boundaries. Appellee failed to present any evidence to rebut the Department’s conclusion that operation of the barbershop posed a serious public health danger.
Here, appellant presented the trial court with evidence in the form of affidavits from Sarah Schultz, a paralegal working in the Corporate Oversight Division of the Michigan Attorney General’s Office, and Joneigh Khaldun, MD, plaintiff’s Chief Medical Executive and Chief Deputy Director for Health.
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Schultz averred that she had been “tasked with gathering photographs and videos related to” defendant’s operation of the barbershop since he opened on May 4, 2020. Along with her affidavit, Schultz provided copies of photographs from Internet news articles; she identified web addresses for the photos, news articles and the internet videos. These photographs depict multiple people clearly within six feet of each other, some wearing masks and others not wearing masks. The trial court indicated that it had no reason to doubt Schultz’s representations, but stated “there’s no allegation that Ms. Schultz could authenticate the pictures.” However, appellant made Schultz available to testify and the trial court could have verified the photos simply by visiting the websites listed by Schultz. Additionally, the trial court seemingly treated evidence derived from news sources differently depending on which party the evidence favored. When deciding against the issuance of a TRO, the trial court relied heavily on the fact that “[w]hile Defendant worked at this place of business, Plaintiff served the abatement order on him, employing troopers of the Michigan State Police as process servers,” a factual finding with respect to which the trial court noted it “ha[d] no personal knowledge of these facts, but gleaned them from local and national news coverage.” However, when adjudicating the merits of appellant’s evidence derived from similar sources, the trial court dismissed appellant’s proffered evidence for lack of authentication. This conclusion was additionally erroneous because defendant never disputed the accuracy of this evidence.
Regarding Dr. Khaldun’s affidavit, it averred as follows:
4. COVID-19 is a novel coronavirus . . . . The is no human immunity to COVID-19, and there is no available treatment or vaccine for COVID-19.
* * *
6. COVID-19 is thought mainly to spread person-to-person (1) between people who are in close contact with a person infected with COVID-19 and (2) through respiratory droplets produced when an infected person coughs or sneezes. It may also be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their mouth, nose, or eyes.
7. Close contact is defined as being within approximately six feet of an infected person for a long period of time or having direct contact with infectious secretion. Examples of close contact include . . . being near someone who has COVID in a confined space if that person is not wearing a mask; and being coughed or sneezed on by someone who has COVID-19.
* * *
9. As of May 12, 2020, 1 in every 10 people diagnosed with COVID-19 in Michigan has died.
10. People of all ages can be infected. . . . The age range for people dying from COVID-19 in Michigan rages from age 5 to 107.
11. The disease often first infects the lungs and starts off mild with a cough, fever and fatigue. Some people quickly, within days, progress to severe disease including Acute Respiratory Distress Syndrome and a severe inflammatory response that can lead to multi-organ failure and death. No one knows exactly how a particular person will respond. There
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are also reports of children across the country, including in Michigan, having a severe illness called Pediatric Multi-System Inflammatory Syndrome related to COVID-19. Some children have died from it.
12. In addition to being spread by symptomatic individuals, COVID-19 can also be spread by persons without any symptoms . . . .
13. As of May 11, 2020, Michigan has 47,552 confirmed cases of COVID-19 and 4,584 deaths. This is the 7th highest in the country in terms of confirmed cases and 3rd highest in terms of deaths. Those numbers do not reflect all cases of COVID-19. . . .
14. As of May 11, 2020, Shiawassee County has 211 confirmed cases of COVID-19 and 17 confirmed deaths.
15. Social distancing is currently the only effective means to slow the spread of COVID-19 and save lives. . . .
* * *
18. I have reviewed the recent news coverage, including pictures of the operation of Karl Manke’s Barbershop and the congregation of people outside the barbershop. The photos demonstrate that appropriate social distancing is not taking police inside the barbershop or outside of it. The photos further demonstrate that many individuals, including at times Karl Manke himself, are not wearing masks and are coming in close contact with one another.
19. Close contact, like that occurring both within Karl Manke’s Barbershop and outside the barbershop, is an imminent danger to the public health. The practices could reasonably be expected to cause death, disease, or serious physical harm to individuals and the public at large.
* * *
21. Given the number of known cases of COVID-19 in Michigan and how the disease is spread, there is a high likelihood that the continued operation of Karl Manke’s barber shop will result in irreparable harm to the public health. . . .
The trial court criticized Dr. Khaldun’s affidavit for not explaining how the doctor concluded that appellant’s barbershop presents a public health risk, even though the trial court believed this conclusion makes sense at face value. Such a finding was error as it was premised on the trial court second-guessing Dr. Khaluden’s medical and administrate conclusions. See Dignan v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002) (“Courts should accord due deference to administrative expertise and not invade administrative fact finding by displacing an agency’s choice between two reasonably differing views.”). Additionally, the trial court’s repudiation of Dr. Khaluden’s affidavit was made despite appellee offering no evidence to rebut Dr. Khaldun’s assertions. Hence, the only evidence before the trial court was evidence which supported appellant’s assertion that there exists an imminent danger.
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Rather than contest the factual underpinnings which establish an imminent danger, appellee’s entire defense is premised on objections to the constitutional validity of the EO. Appellee raises several constitutional arguments. Relying on Texas v Johnson, 491 US 397; 109 S Ct 2533; 105 L Ed2d 342, appellee argues that the EO violates his First Amendment rights because the EO infringes on his freedom of speech. Appellee argues that continued operation of his barbershop is tantamount to a protest of the EO, in that his conduct is expressive similar to the flag burning in Johnson. However, unlike the defendant in Johnson, here, appellee was not singled out based on his expression of dissatisfaction with the EO. Additionally, as instructed by the Supreme Court, “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v O’Brien, 391 US 367, 376; 88 S Ct 1673; 20 L Ed2d 672 (1968). “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. Here, the State has an important governmental interest in containing the spread of COVID-19 and the EO is directed at that interest and not at any speech or expressive conduct that may be expressed by appellee in continuing to provide services as a barber. This has been precedent for over a century. “That until Congress has exercised its power on the subject, such state quarantine laws and laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.” Compagnie Francais de Navigation a Vapeur v Louisiana State Board of Health, 186 US 380, 387; 22 S Ct 811; 46 L Ed 1209 (1902). Hence, appellant is likely to prevail on the issue of whether the EO violates appellee’s First Amendment rights. O’Brien, 391 US at 376; Davis, 296 Mich App at 613.
Appellee also argues that implementation of the EO violates his constitutional right to equal protection under the law because some businesses are allowed to remain open whereas others are closed. However, appellee does not claim to be a member of a protected class; or that a fundamental right has been infringed. This leaves the rational basis test as the proper foundation for analysis. Rational basis applies to social and economic regulation, of which this is an example. Phillips v Mirac, Inc, 470 Mich 415, 434; 685 NW2d 174, 185 (2004). As previously indicated, the evidence submitted by appellant is sufficient to pass the rational basis test. Hence, on the pleadings before us, appellant is likely to prevail on this issue. Davis, 296 Mich App at 613.
Although appellee raises a myriad of additional issues, we cannot glean from any of the arguments set forth any bases on which appellee would prevail in his challenges to the authority of the Governor to issue EOs.
Regarding factor (2), the trial court only considered two affidavits provided by appellant. As previously discussed, the trial court ignored the findings and determination of appellant’s chief medical executive, which establish the danger of irreparable harm. Moreover, as previously indicated, the trial court mishandled both affidavits.
The trial court also erred in concluding that factor (3) did not weigh in appellant’s favor. While the trial court acknowledged the potential of harm to the public, it nonetheless substituted its judgment for that of the experts by concluding that this “harm does not justify the issuance of an injunction on such scant evidence.” Again, the trial court rejected uncontested evidence when it reasoned that “an affidavit by a doctor who recited general facts about the virus and read a newspaper article” did not tip the scales in favor of issuing the injunction, “no matter how great the public emergency.” As discussed and cited
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above, the evidence before the trial court was not scant. Chief medical executive Khaldun is a highly trained and experienced public health physician and administrative professional. Uncontroverted evidence clearly revealed that COVID-19 is a highly communicable illness. Uncontroverted evidence revealed that COVID-19 is spread by infected persons showing no symptoms that could serve to warn others of the possibility of infection. Uncontroverted evidence clearly revealed that COVID-19 can be spread from person-to-person quickly and reach people separate from an area of contamination. From this record, the trial court should have concluded that the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief. Davis, 296 Mich App at 613.
Finally, we agree with the trial court that factor (4) weighs in appellant’s favor.
For the reasons set forth in this order, the emergency application for leave to appeal from the trial court’s May 21, 2020 denial of appellant’s request for a preliminary injunction is GRANTED. The decision of the trial court is REVERSED and the case is REMANDED for the trial court to enter a PRELIMINARY INJUNCTION ordering appellee to immediately cease all operations at the barbershop, to be enforced through the court’s general contempt powers, MCL 600.1711.
The application for leave to appeal filed from the trial court’s May 11, 2020 denial of appellant’s request for a TRO is DISMISSED as moot.
We retain jurisdiction to verify entry of the preliminary injunction.
_______________________________ Presiding Judge
Swartzle, J., I concur in part and dissent in part. Specifically, I agree with my colleagues that the appellant’s application for leave related to the denial of a TRO should be DISMISSED as moot. I also agree that the motions for immediate consideration should be GRANTED. Finally, I agree that the appellant’s emergency application for leave related to the trial court’s denial of a preliminary injunction should be GRANTED (but only in part), as both parties raise jurisprudentially significant issues that warrant review by this Court and, ultimately, our Supreme Court. Where I diverge from my colleagues is with the additional relief that they grant on an immediate basis. Under our court rules, a “peremptory reversal” is proper where “reversible error is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission.” Importantly, the decision to grant such relief “must be unanimous.” MCR 7.211(C)(4). As I read the majority’s language, the majority has ordered “an immediate reversal” of the trial court’s denial of preliminary injunctive relief without formal submission to a merits panel drawn randomly from the entire court, without oral argument, without the opportunity for amici briefs, and without a unanimous vote by this motions panel. The majority’s order reads more like an in-depth opinion of this Court issued
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by a merits panel, rather than the type of summary order normally issued by a motions panel. To my reading, the majority’s relief appears to be a peremptory reversal, which seems procedurally irregular given that the panel’s vote was not unanimous on this issue. Be that as it may, the majority has ruled. With respect to the merits, both parties raise important issues—in my opinion, maybe the most jurisprudentially significant issues this State has seen in years or decades. The arguments raised in this case overlap with similar arguments in other cases, see, e.g., Michigan House of Representatives v Governor, Court of Claims, Docket No. 20-000079-MZ; Michigan United for Liberty v Governor, Court of Claims, Docket No. 20-000061-MZ. One of the most significant arguments is over the question of the constitutional and statutory validity of the Governor’s post-April 29, 2020, Executive Orders.
The people of this State are constitutionally guaranteed a republican form of government, one with a separation of powers balanced between the three branches. US Const, art IV, § 4, cl 1; Const 1963, art 3, § 2. Simply put, the Legislature is supposed to legislate, the Executive is supposed to execute, and the Judiciary is supposed to judge. As set forth in our state Constitution, “No person exercising powers of one branch shall exercise powers belonging to another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2. This case and others like it raise legitimate questions of whether the separation of powers between the Legislative and Executive branches has been impermissibly eroded during our government’s response to the Covid19 pandemic.
For example, one source of authority cited in recent Executive Orders related to Covid19 is the Emergency Management Act, 1976 PA 390 (EMA). This act requires that, after the initial 28 days of an emergency or disaster declared by the Governor, the Legislature has a necessary and critical role in determining whether to extend the emergency/disaster and, if so, how best to address it. It has been reported that, near the end of the 28-day period, the Governor declared the Covid19 emergency/disaster terminated under the EMA, but then just a minute later, declared a new emergency/disaster with a purported new 28-day period. Was this a faithful execution of the EMA or, rather, an attempt to avoid the Legislature’s role under the EMA?
As another example, the Governor has also relied on the Emergency Powers of Governor Act, 1945 PA 302 (EPGA). This WWII-era law is broadly worded, which could be viewed as a virtue or a vice. On the one hand, the act seems to grant the Governor unilateral authority to declare an emergency for an indeterminate duration, with broad powers to address the emergency. On the other hand, because the EPGA appears to have few, if any, real restrictions on the Governor’s authority or even standards to guide that authority, this may mean that the Legislature unconstitutionally delegated its law-making authority to the Governor. As for the argument made by the Attorney General in one of the related cases that the Legislature could just add restrictions to the EPGA if it sees fit, the force of this argument is undercut if those restrictions can be avoided by, for example, terminating a declaration of emergency, waiting a minute, and then declaring a “new” emergency.
The validity of the recent Executive Orders is a key question in this and related cases. I have
serious doubts, for example, whether the administrative order in this case would have been issued absent the Executive Orders related to Covid19, including those issued after April 29, 2020. Even setting those doubts aside, there is, at the very least, a sufficient basis to submit the case to a merits panel for a fuller analysis with the benefit of oral argument.
REC
EIVED
by MSC
6/1/2020 7:01:55 PM
One need not question the motives for or wisdom of certain actions to question the underlying
authority of those actions. In my opinion, the issues raised in this and related cases deserve more attention by the Judiciary than has been provided to-date. Therefore, rather than grant peremptory relief to the appellant, I would have joined in an order submitting this case for plenary review, on an expedited basis, by a merits panel randomly drawn from the entire Court with the opportunity for oral argument. See Weisgerber v Ann Arbor Center for the Family, 447 Mich 963; 521 NW2d 601 (1994) (LEVIN, J, dissenting).
Accordingly, for these reasons, I cannot join my colleagues in full, and therefore I concur in part
and dissent in part.
May 28, 2020
REC
EIVED
by MSC
6/1/2020 7:01:55 PM
