Dissenting judge says majority’s statements ‘mean a governor can order anything forever’
By DAVID EGGERT
Associated Press
LANSING, Mich. (AP) — Michigan Democratic Gov. Gretchen Whitmer's emergency declarations and orders to curb the coronavirus clearly fall within the scope of her powers, the state's appeals court ruled Friday, rejecting Republican lawmakers' contention that she cannot indefinitely act without their approval.
The 2-1 ruling upheld a lower court decision and will be appealed to the state Supreme Court. The appellate panel denied the GOP-led Legislature's argument that a 1945 law lets a governor unilaterally extend emergencies only if they are local, not statewide, in nature. A separate 1976 law requires the Legislature's approval to extend an emergency or disaster after 28 days.
Whitmer's ongoing state of emergency is the underpinning of her measures to keep closed some businesses such as gyms and movie theaters except in rural northern counties, limit gathering sizes, require masks and restrict other activities to limit the spread of the COVID-19 virus.
"A declared statewide emergency only ends upon the governor's declaration that the emergency no longer exists. That has yet to occur in the instant case," Judge Jane Market wrote in an opinion joined by Judge Kirsten Frank Kelly.
Dissenting Judge Jonathan Tukel said the later law specifically includes an epidemic in the definition of a disaster — therefore requiring that legislators have a say — while the older law does not. The majority's statements, he said, "mean that a governor can order anything, forever, a truly striking concept in a democratic republic."
Whitmer spokeswoman Tiffany Brown said the court "handed the governor a complete and decisive win in her efforts to protect the people of Michigan from this once-in-a-lifetime global pandemic."
Republicans vowed to appeal.
"No governor, Republican or Democrat, can have unilateral control over a state based solely on their judgment. This precedent is extremely dangerous," said House Speaker Lee Chatfield.
Senate Majority Leader Mike Shirkey said this week that a group had collected more than 200,000 signatures for legislation to repeal the 1945 law. If the ballot drive gathers about 340,000 valid signatures, the House and Senate could pass the bill and Whitmer would be unable to veto it.
The governor has said she is assessing whether to let more businesses reopen after five months of closure. The Michigan Fitness Club Association said Friday that Michigan is among just a handful of states where gyms have not been allowed to open statewide.
"Gyms are part of the solution, not the problem. We are not a spreader of COVID-19. We have spent significant sums of dollars preparing our gyms and fitness facilities to reopen," said Ed Eickhoff, chief operating officer of PFMG Development, the real estate arm of Planet Fitness' Michigan group.
Also Friday, the federal government approved Michigan to provide an additional $300 weekly benefit to 910,000 unemployed residents.
The aid, which is retroactive to Aug. 1, is an addition to the state's regular maximum payment of $362 a week. A larger supplemental $600 weekly federal benefit expired weeks ago.
Whitmer said it is "good news" for people who remain out of work during the pandemic but again called it a "short-term Band-Aid." President Donald Trump signed an order adding the benefit after he and Congress failed to agree to a broader new pandemic relief plan.
Whitmer's administration decided against offering a $400 supplemental benefit because it would have had to chip in $100 toward the higher amount.
It is unclear when people will start receiving the money or how long it will last. The Federal Emergency Management Agency has said the additional funding may be available for roughly five or six weeks depending on how many states participate.
"Our goal now is to work as quickly as possible to implement this new program to get people the benefits they need," said Steve Gray, director of the Unemployment Insurance Agency.
State spokesman Jason Moon said the White House has estimated it will take three weeks to implement the new program, but based on Michigan officials' interaction with other states, many expect it to take longer.
