LANSING — A federal judge in Kalamazoo has asked the Michigan Supreme Court to clarify Gov. Gretchen Whitmer's emergency powers during the coronavirus pandemic.
The request from U.S. District Judge Paul Maloney could cause Michigan's high court to reconsider its earlier rebuff of a request to give speedy attention to constitutional questions raised by Whitmer's use of emergency powers since the pandemic hit Michigan in March.
In an order issued Wednesday in a lawsuit brought by western Michigan medical providers over a Whitmer order that halted "non-essential" medical procedures, Maloney sent two "certified questions" to the Michigan Supreme Court. They are:
- Whether, under the Emergency Powers of Governor Act of 1945 or the Emergency Management Act of 1976, Whitmer had the authority to issue or renew executive orders related to the pandemic after April 30, when the Legislature refused to grant a 28-day extension of Michigan's state of emergency.
- Whether either the 1945 emergency statute or the one from 1976 violates constitutional law related to the separation of powers between Michigan's executive and legislative branches of government, by ceding too much legislative power to the governor.
Michigan Court of Claims Judge Cynthia Stephens answered both questions in a May 21 ruling, in a separate lawsuit brought against Whitmer by the Republican-controlled Legislature.
Stephens ruled that Whitmer has the power to extend Michigan's state of emergency without legislative approval under the 1945 law, but not under the 1976 law. Stephens also ruled that the 1945 law did not represent an unconstitutional ceding of powers to the governor by the Legislature, and therefore Whitmer's extension of the state of emergency and use of emergency orders are lawful.
More: Gov. Gretchen Whitmer extends Michigan's state of emergency until July 16
More: Why Gov. Whitmer is likely to win the GOP lawsuit over her emergency powers
That ruling is now before the Michigan Court of Appeals after the Michigan Supreme Court, in a 4-3 ruling issued June 4, declined requests to expedite matters by allowing the case to leapfrog over the Court of Appeals and go directly to the Michigan Supreme Court. Instead, the case should follow the traditional route for appeals in the state courts, the majority of the justices said.
But that narrow ruling could now be reconsidered.
The Michigan Supreme Court is the ultimate authority on interpreting state law, and Maloney noted the questions crucial to the case before him have never been answered by either the Michigan Court of Appeals or the Michigan Supreme Court.
"The guidance sought today 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," Maloney wrote.
State supreme courts are not required to accept certified questions from federal courts, but they usually do.
Between 1990 and 1994, there were 284 such requests to state supreme courts from federal courts around the nation, and only seven were refused, according to data cited in a 2003 article in the Cornell Law Review.
The Michigan Court of Appeals is not expected to hear oral arguments in the lawsuit brought by the Michigan House and Senate until August.
In the case before Maloney, brought by Grand Health Partners and other plaintiffs, the state defendants argued against certification, saying the questions are moot because Whitmer's order banning "non-essential" medical procedures has already been lifted.
But Maloney rejected that argument, saying the plaintiffs in the case are still subject to other Whitmer orders setting out safety requirements and limiting the number of appointments they can schedule.
On Thursday, Whitmer extended Michigan's state of emergency through July 16. It had been scheduled to expire at midnight Friday.
Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4. Read more on Michigan politics and sign up for our elections newsletter.
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