GOP Lawmakers Challenge Gov. Whitmer Powers
GOP Lawmakers Challenge Gov. Whitmer Powers
COURT OF CLAIMS
MICHIGAN HOUSE OF
REPRESENTATIVES
and MICHIGAN SENATE,
v. Hon.
Defendant.
(together, “the Legislature”), through their attorneys and for their complaint against
INTRODUCTION
system and the Legislature’s role as the sole lawmaking body in that system.
Defendant, the head of the executive branch, has the power to execute Michigan’s
Defendant has unilaterally crafted and implemented public policies governing almost
every aspect of life in Michigan. These include restrictions on how every person in
Michigan may work, go to school, worship, exercise legal rights, socialize, and live
hour-by-hour.
she need not even consider the Legislature’s input. Indeed, not only has the Governor
announced that she will veto any efforts to implement any limits on her otherwise
unbridled powers—no matter how reasonable—but she has also vetoed even the
Legislature’s attempt to codify her exact orders through the legislative process.
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5. In asserting these powers, the Defendant has ignored the State
laws, namely the 1945 Emergency Powers of the Governor Act (“EPGA”), MCL 10.31–
.33; and the 1976 Emergency Management Act (“EMA”), MCL 30.401–.421. See EO
2020-4.
6. The Governor is wrong to do so. One of those statutes reaches only local
emergencies—not the sort of statewide concern that COVID-19 presents. The other
includes express restrictions on the Governor’s limits—limits that the Governor has
recent actions seize lawmaking power from the Legislature in service of a new
at the core of the Legislature’s constitutional mandate. And she does so under no
requires them.
of checks and balances, the Governor’s actions would leave Michigan in a state of
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10. COVID-19 presents real problems that call for a comprehensive and
through go-it-alone absolutism that ignores our State’s most democratic institutions
11. The Court should enter a declaratory judgment in favor of the Michigan
Legislature holding that Defendant’s ongoing “emergency” orders are improper and
13. Plaintiff the Michigan Senate is the upper chamber of the Michigan
chamber has plenary authority to “determine the rules of its proceedings.” The
Michigan House has adopted rules that appoint the Speaker of the House as chief
administrator of the House. The Michigan Senate has adopted rules that appoint the
Senate Majority Leader as chief administrator of the Senate. The Speaker and the
Majority Leader have each retained General Counsel for their chamber and delegated
to General Counsel the power to speak for and make legal decisions on behalf of the
respective chambers. The Senate General Counsel and House General Counsel have
both authorized this action and retained the undersigned counsel to pursue it.
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15. Defendant Gretchen Whitmer is being sued in her official capacity as
Constitution.
16. The Court of Claims has “exclusive” jurisdiction to “hear and determine
declaratory relief . . . against the state or any of its departments or officers.” MCL
600.6419(1)(a).
17. Because the Legislature raises statutory and constitutional claims, and
seeks equitable and declaratory relief, against the Governor, this Court has
19. Under Lansing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349, 372;
792 NW2d 686 (2010), “whenever a litigant meets the requirements of MCR 2.605, it
20. MCR 2.605(A)(1) states that, “[i]n a case of actual controversy within its
jurisdiction, a Michigan court of record may declare the rights and other legal
21. To show an “actual controversy,” the plaintiffs need only “plead and
prove facts which indicate an adverse interest necessitating the sharpening of the
issues raised.” Lansing Sch Ed Ass’n, 487 Mich at 372 n 20, quoting Associated
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Builders & Contractors v Director of Consumer & Industry Servs, 472 Mich 117, 126;
whether the Governor’s recent actions addressing the COVID-19 pandemic are
lawful. The Legislature asserts that certain actions of the Governor are not
authorized by statute and that they violate the separation of powers by impermissibly
clarify whether the Governor’s orders are invalid because they violate statutes and
branch.
2.605.
FACTUAL BACKGROUND
25. On March 10, 2020, Michigan recorded its first COVID-19 case.
1945 Emergency Powers of the Governor Act (“EPGA”), MCL 10.31–.33; and the 1976
V, section 2, or article IV, section 6, the executive power is vested in the governor.”
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During times of great public crisis, disaster, rioting, catastrophe, or
similar public emergency within the state, or reasonable apprehension
of immediate danger of a public emergency of that kind, when public
safety is imperiled, either upon application of the mayor of a city, sheriff
of a county, or the commissioner of the Michigan state police or upon his
or her own volition, the governor may proclaim a state of emergency and
designate the area involved. After making the proclamation or
declaration, the governor may promulgate reasonable orders, rules, and
regulations as he or she considers necessary to protect life and property
or to bring the emergency situation within the affected area under
control. Those orders, rules, and regulations may include, but are not
limited to, providing for the control of traffic, including public and
private transportation, within the area or any section of the area;
designation of specific zones within the area in which occupancy and use
of buildings and ingress and egress of persons and vehicles may be
prohibited or regulated; control of places of amusement and assembly
and of persons on public streets and thoroughfares; establishment of a
curfew; control of the sale, transportation, and use of alcoholic beverages
and liquors; and control of the storage, use, and transportation of
explosives or inflammable materials or liquids deemed to be dangerous
to public safety. [MCL 10.31(1).]
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31. For the next two weeks, the Governor issued 17 executive orders on
numerous topics. Among other things, these orders closed all Michigan K-12 schools,
limited groups to 250 and then 50 or fewer, and restricted visitors to residential and
health care centers. The Governor also issued orders against price gouging, and she
closed restaurants, cafes, bars, taverns, wineries, clubs, theaters, libraries, museums,
gyms, spas, casinos, racetracks, salons and tattoo parlors, and any other place of
Open Meetings Act and cancelled all non-essential medical and dental procedures.
32. During that time, the Legislature passed $150 million in funding for the
COVID-19 public health efforts. See 2019 HB 4729 and 2019 SB 151. The Legislature
continued to cooperate with the Governor, even as her public statements made it clear
“[a]s the chief executive of this state[,] it is [her] responsibility to make these decisions
and keep our state safe.” David Jesse, Gov. Gretchen Whitmer: All Michigan K-12
schools must close until April 5, Detroit Free Press <https://bit.ly/2Wou6Aq> (March
12, 2020).
33. On March 23, 2020, the Governor issued her first stay-at-home order,
operations, and forbidding people to leave their homes except for a few exceptions, all
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34. Over the next week, the Governor issued 12 more executive orders. She
hearings, extended tax return filing and payment deadlines, and allowed the May 5
water shut-offs, changed MDOC visiting and early-release rules, and lifted
35. On March 30, 2020, the Legislature and the Governor signed a
statement saying that “the Executive and Legislative branches of state government
emergency and disaster declaration,” relying again on Article 5, § 1, the EPGA, and
the EMA.
37. Over the next week, she suspended K-12 school through the rest of year,
whose family is sick, loosened FOIA requirements, lifted more regulatory mandates,
38. On April 7, 2020, the Legislature voted to extend the declaration to April
39. On April 9, 2020, the Governor issued a second, more restrictive stay-
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between residences and limiting both the number of customers and the products sold
in stores (such as paint, plants, and other items). Under the orders, a customer could
buy hundreds of consumer products in one store aisle but find the garden plants roped
40. Over the next few weeks, the Governor issued many other orders,
including orders buying back spirits, extending validity of drivers’ licenses and state
ID cards, lifting various regulations, and suspending the statute of limitations and
expiration of personal protection orders. The Governor also rescinded, restated, and
41. The speed, breadth, and number of the Governor’s executive orders have
confused many of the Legislature’s constituents, many whom have never before
unofficial inquiries, the Governor has had to issue over 200 FAQs clarifying her
various orders and even revise certain orders to cure identified errors. These errors
42. In addition to corrections, the Legislature has also used its expertise in
crafting public policy to make suggestions, a small number of which the Governor has
adopted; these range from protecting houses of worship from criminal penalties to
allowing curbside product sales and deliveries so that small businesses can more
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43. In addition to trying to make sense of the executive orders, the
Legislature has introduced almost 100 bills on COVID-19-related issues. These bills
include tax deductions for first responders, directing universities to refund boarding,
and many other helpful policy solutions. The Legislature has also passed a bill
seeking to codify almost all the Governor’s executive orders (though not her stay-at-
form a bipartisan Joint Select Committee on the COVID-19 Pandemic. 2020 HCR 20.
45. That same day, the Governor issued her third stay-at-home order. EO
2020-59.
46. On April 27, 2020, the Governor requested that the Legislature extend
49. Just one minute later, notwithstanding the clear constraints of the
EMA, the Governor issued EO 2020-68, which redeclared the COVID-19 disaster and
emergency through May 28, 2020 as though the Legislature had approved her
requested extension. This is believed to be the first instance in Michigan history that
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the Governor has unilaterally extended an emergency declaration under the EMA
2020-70—which cites Article 5, § 1, the EPGA, and the EMA. That order carries
COUNT I
VIOLATION OF THE EMERGENCY MANAGEMENT ACT
53. The Governor’s COVID-19 executive orders have relied, in large part, on
54. Under the EMA, the Governor may unilaterally declare an emergency
or disaster and then exercise her legislatively delegated authority—but only for 28
days. After 28 days, the Governor’s EMA powers end unless the Legislature approves
emergency under MCL 30.403(4) on March 10, 2020; and she expanded that initial
declaration to include a state of disaster under MCL 30.403(3) on April 1, 2020, before
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56. On April 7, 2020, the Legislature agreed, via concurrent resolution, to
57. The Legislature did not approve a further extension of any emergency
or disaster declaration.
and disaster under the EMA, as is statutorily required, but restated the same
59. The Governor next issued another stay-at-home order relying on her
60. The Governor further ordered that all other still-existing COVID-19
executive orders now rest, in part, on her redeclared EMA emergency and disaster
declarations.
61. Those actions are inconsistent with the EMA’s plain text.
62. The Governor’s contrary interpretation of the EMA would nullify the
the Legislature’s role a nullity; and defeat a central purpose of the statute: allocating
power across both the legislative and executive branches to respond to crises.
63. The Court should declare that the Governor cannot rely on the EMA to
justify her April 30, 2020 declarations of emergency and disaster, or any of the
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COUNT II
VIOLATION OF THE EMERGENCY POWERS OF THE GOVERNOR ACT
65. The Governor’s COVID-19 executive orders have also relied, in part, on
66. The EPGA, however, does not provide authority for the Governor’s
67. The EPGA’s plain text, especially when considered with the EMA’s
language and the EPGA’s historical context, show that the EPGA was intended to
address local crises in the vein of civil disturbances in an area within the state—not
68. Interpreting the EPGA otherwise would disregard the plain language of
69. If, however, the EMA and EPGA are construed to be coextensive, then
under the doctrine of in pari materia, the EMA’s 28-day rule applies to the EPGA.
70. The Court should declare that the EPGA does not provide authority for
COUNT III
VIOLATION OF ARTICLE 5, § 1, OF THE 1963 MICHIGAN CONSTITUTION
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72. The Governor’s COVID-19 executive orders have relied, in part, on her
V, section 2, or article IV, section 6, the executive power is vested in the governor.”
Taxpayers of Mich Against Casinos v State, 471 Mich 306, 356; 685 NW2d 221 (2004)
(Weaver, J., concurring), citing People v Dettenthaler, 118 Mich 595; 77 NW 450
(1898).
76. Rather, “[e]xcept to the extent limited or abrogated by article IV, section
legislative power to the executive.” Soap & Detergent Ass’n v Nat. Res Com’n, 415
77. Therefore, the Court should declare that Article 5, § 1, does not give the
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including the power to suspend, vitiate, modify, or supplement existing Michigan
laws.
COUNT IV
VIOLATION OF ARTICLE 3, § 2, OF THE 1963 MICHIGAN CONSTITUTION
1963, art 4, § 1.
are divided into three branches: legislative, executive and judicial. No person
exercising powers of one branch shall exercise powers properly belonging to another
orders past April 30 exercises lawmaking authority that belongs solely to the
Legislature.
from the strong default of rule by law—justified, if at all, only in the most extreme of
crises and for the shortest time possible solely to allow for swift protective action
pending more deliberate and durable public policy determinations by the Legislature.
83. Michigan has been under rule-by-executive-order for over eight weeks.
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84. Whatever limited power the Governor may have rightfully wielded for a
short time during the first appearance and then height of the COVID-19 emergency
85. For nearly two months, the Legislature has been appropriately
deferential to the Governor’s efforts to manage the COVID-19 emergency, even when
crises of every kind—explicitly gives only the Legislature the power to make laws.
87. Since March 10, 2020, the Legislature has performed its lawmaking
duties quickly and effectively. It immediately awarded the Governor the $150 million
she asked for to fight COVID-19. It has set up committees and workgroups to
recommend next steps. And both the Senate and House caucuses have offered plans
to handle the COVID-19 fallout going forward. Meanwhile, the Legislature has
continued its normal business, passing and introducing scores of bills on myriad
topics, dozens of them pertaining to COVID-19. Many of these bills seek to establish
through legislation what the Governor has attempted to do through executive order.
88. Crucially, the Legislature is not asking the Court to declare that the
Governor’s policy decisions are bad policy or that she has no role to play in controlling
COVID-19.
89. Rather, the Legislature is merely asking the Court to affirm Michigan’s
constitutional structure: that the Legislature makes the laws and the Executive
enforces them. In short, this request is a who issue, not a what or how much issue.
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Irrespective of the wisdom of the Governor’s choices, these are simply no longer her
a Michigan law, she must work with the Legislature to do so. After all, Michigan’s
other governors have handled every crisis in exactly that fashion since this State’s
inception.
90. To the extent the Governor believes that the Legislature’s delegation of
authority under the EPGA somehow justifies her actions, she is wrong.
as much power as the Governor believes the EPGA gives her. The
awesome power.
91. The Court should therefore declare that the Governor’s ongoing COVID-
19 executive orders, as well as the EPA to the extent it authorizes those orders, violate
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REQUEST FOR RELIEF
1. The Governor’s authority to act under the EMA ended April 30, 2020;
2. The EPGA does not provide authority for the Governor’s COVID-19
executive orders;
3. The Governor has no lawmaking power under Const 1963, art 5, § 1; and
separation of powers.
C. Grant such other relief as this Court deems just and proper.
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Respectfully submitted,
I declare that the statement above are true to the best of my knowledge,
information and belief:
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