By Kelly Caplan
BridgeTower Media Services
The Michigan Supreme Court will hear oral arguments next month on questions certified by a federal judge about the powers of Gov. Gretchen Whitmer in the COVID-19 pandemic.
Argument will be heard Sept. 2 in a special session.
The special session for In re Certified Questions from the United States District Court, Western District of Michigan, Southern District v Governor of Michigan, Michigan Attorney General, and Michigan Department of Health and Human Services Director, will be convened at 9:30 a.m. via Zoom videoconferencing.
Attorneys for the parties have agreed to this format, and oral arguments will be livestreamed at the court’s YouTube channel.
U.S. District Judge Paul L. Maloney certified two questions to the Michigan Supreme Court:
• Whether, under the Emergency Powers of the Governor Act, MCL § 10.31, et seq., or the Emergency Management Act, MCL § 30.401, et seq., Governor Whitmer has the authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic
• Whether the Emergency Powers of the Governor Act and/or the Emergency Management Act violates the Separation of Powers and/or the Non-Delegation Clauses of the Michigan Constitution.
Maloney said “the state law issues are not only likely to affect the outcome of the suit; they are certainly going to affect the outcome because they must be decided before an outcome will be reached.” As such, certification of the questions to Michigan’s highest court was appropriate.
Because the questions were unsettled, submitting the questions to the Michigan Supreme Court “acknowledges that court’s status as the final arbiter on matters of state law,” Maloney wrote.
“[R]ather than interpret a novel question of state law for the first time — particularly a question of state law that might affect every citizen in the state of Michigan — this Court turns to the ultimate authority on what Michigan law is: the Michigan Supreme Court,” Maloney said. “[T]he guidance sought … prevents this Court from overstepping its role, eliminates the risk that this Court interprets the relevant state law differently than the Michigan Supreme Court might, and eliminates the risk of conflicting federal and state decisions.”
The plaintiffs are healthcare providers and a patient who filed a lawsuit in the U.S. District Court, Western District of Michigan, to challenge executive orders issued by Gov. Gretchen Whitmer in response to the COVID-19 pandemic, including:
• Executive Order 2020-04, which declared a state of emergency under the Emergency Management Act and the Emergency Powers of the Governor Act.
• Executive Order 2020-17 — “Temporary restrictions on non-essential medical and dental procedures” — which provided that, until the termination of the Governor’s declaration of a state of emergency, most medical providers were prohibited from providing any “medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” This EO was rescinded May 28, 2020.
• Executive Order 2020-21, commonly known as the “Stay Home, Stay Safe” order.
• Executive Order 2020-33, which replaced EO 2020-04 and declared a state of emergency in accordance with the EPGA as well as a state of disaster and state of emergency under the EMA.
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