House of Representatives v. Governor

Order Michigan Supreme Court
Lansing, Michigan
June 4, 2020 Bridget M. McCormack,
Chief Justice
161377 & (7)(13)(14)(15)(18) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
HOUSE OF REPRESENTATIVES and Brian K. Zahra
SENATE, Richard H. Bernstein
Plaintiffs-Appellants/ Elizabeth T. Clement
Cross-Appellees, Megan K. Cavanagh,
Justices
and
JOHN F. BRENNAN, MARK BUCCHI,
SAMUEL H. GUN, MARTIN LEAF, and
ERIC ROSENBERG,
Intervenors-Appellants,
v SC: 161377
COA: 353655
Court of Claims: 20-000079-MZ
GOVERNOR,
Defendant-Appellee/
Cross-Appellant.
_________________________________________/
On order of the Court, the motions for immediate consideration and the motion to
file brief amicus curiae are GRANTED. The application for leave to appeal prior to
decision by the Court of Appeals and the application for leave to appeal as cross-
appellant are considered, and they are DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court before consideration by the Court
of Appeals. The prospective intervenors’ motion to docket is DENIED.
BERNSTEIN, J. (concurring).
I agree with my fellow Justices that this case presents extremely significant legal
issues that affect the lives of everyone living in Michigan today. And that is exactly why
I join the majority of this Court in denying the parties’ bypass applications—because I
believe that a case this important deserves full and thorough appellate consideration.
Additionally, with the issuance of Executive Order No. 2020-110, “shelter in
place” is no longer mandated in the state of Michigan. While recognizing that not all
restrictions have been lessened (and acknowledging the possibility of future restrictions
being reimplemented), I believe the parties and this Court would benefit most from
having the vital constitutional issues of this case fully argued in the Court of Appeals
before receiving a final determination from our Court. See League of Women Voters v
Secretary of State, 505 Mich 931 (2019) (denying the plaintiffs’ bypass application).
Cases of the ultimate magnitude, such as this one, necessitate the complete and
comprehensive consideration that our judicial process avails.
The significance of this case is undeniable. And with many of the restrictions on
2
daily life having now been lifted, our eventual consideration of these issues must receive
full appellate consideration before our Court can most effectively render a decision on the
merits of this case.
CLEMENT, J. (concurring).
In this case, the Legislature advances several arguments asking us to hold that a
law it enacted 75 years ago, 1945 PA 302, codified at MCL 10.31 et seq., is
unconstitutional or the Governor’s actions are beyond the statutory authority contained in
that statute, and that the Governor’s executive orders issued under that statute in response
to the COVID-19 pandemic are consequently invalid. Contrary to what is suggested by
the dissents from the Court’s order today, the Legislature is not litigating the civil
liberties of all Michiganders. Moreover, to read the dissents, one might be left with the
impression that this Court has declined altogether to decide this case. It has not—it has
only declined to decide the case before the Court of Appeals does. I believe this is both
compelled by our court rules and advisable as a matter of prudence. Because I believe
the Court neither can nor should review this case before the Court of Appeals does, I
concur with the Court’s order denying these bypass applications.
I believe, first, that the rules governing bypass applications are not satisfied here.
Given that “the supreme court shall have . . . appellate jurisdiction as provided by rules of
the supreme court,” Const 1963, art 6, § 4, whether the rules have been satisfied is
seemingly of its own jurisdictional and constitutional significance. Our rules provide
that, to grant a bypass application, “[t]he application must show” either that “delay in
final adjudication is likely to cause substantial harm” or that “the appeal is from a ruling
that . . . any . . . action of the . . . executive branch[] of state government is invalid[.]”
MCR 7.305(B)(4)(a) and (b). I do not believe the Legislature satisfies either requirement.
In its bypass application, the Legislature argues that the “substantial harm” prong is
satisfied because “Michiganders . . . are living under a cloud of ambiguity” given the
debate over whether the Governor’s executive orders responding to the COVID-19
pandemic are actually legal. But this case is not a class action filed on behalf of all
Michiganders to litigate their civil liberties—it is a suit filed by the Legislature asserting
that certain of its institutional prerogatives have been infringed by the Governor’s
actions. The Legislature shows no substantial harm to the Legislature caused by going
through the ordinary appellate process. As an institution, it is exactly as free to enact
legislation—whether responsive to this pandemic or otherwise—as it was before any of
the Governor’s executive orders were entered.1 As to the “invalidity of executive action”
1
Justice VIVIANO argues that the Legislature’s separation-of-powers argument, if
vindicated, would be a “substantial harm,” and that “[a]t the bypass stage, we need not
decide the merits of the Legislature’s separation-of-powers argument.” I agree that we
need not decide those merits, and we are not by denying this bypass application. Given
the novelty of the Legislature’s standing argument, however, I do not believe it can show
3
prong, the Legislature argues that “this appeal involves a ruling that has already declared”
Executive Order No. 2020-68 invalid. However, the Legislature does not appeal that
ruling—rather, it appeals the ruling that Executive Order No. 2020-67 and its successors
are valid. In my view, the Legislature’s inability to satisfy MCR 7.305(B)(4) is fatal to
its bypass application.2 Since the Michigan Constitution commits to us the ability to
prescribe our own appellate jurisdiction, we are obliged to scrupulously adhere to the
restrictions we have imposed on ourselves if we are to sit in judgment of the
constitutionality of 1945 PA 302 and the Governor’s actions under it.3
that it has suffered a substantial harm at this point with the certainty required to justify
the extraordinary act of granting a bypass appeal. After Court of Appeals review, the
Legislature would need to show only that either “the issue involves a substantial question
about the validity of a legislative act,” “the issue has significant public interest and the
case is one . . . against . . . an officer of the state . . . in the officer’s official capacity,” or
that “the issue involves a legal principle of major significance to the state’s
jurisprudence.” MCR 7.305(B)(1) through (3). I predict these showings will be much
easier to make.
2
Justice ZAHRA argues that “even assuming there is a shortcoming in the Legislature’s
application, that defect is cured by the Governor’s” bypass cross-appeal, but I disagree.
The court rules list what an application for leave to appeal “must show,” MCR 7.305(B),
and the Legislature’s application does not make the required showing. There is no
indication under the rule that a party who fails to make a required showing can have its
application rehabilitated by the other side. I am also unpersuaded by Justice VIVIANO’s
citation of the rules of the Supreme Court of the United States. Justice VIVIANO does not
deny that the language used there is different from our rules and requires a showing only
“that the case is of such imperative public importance as to justify deviation from normal
appellate practice . . . .” Sup Ct Rule 11. Our general rules governing leave to appeal
require a similar showing, see MCR 7.305(B)(1) through (3), but for a bypass application
our rules require the additional showing, beyond the importance of the issues, of either
substantial harm or that the case is an appeal from a ruling that certain legislative or
executive actions are invalid, MCR 7.305(B)(4). I do not believe such a showing is made
here. Nor do I believe that the decisions of other state supreme courts, with different
court rules, should control our application of our court rules.
3
Justice VIVIANO asserts that “[i]t is indisputable that our Court has jurisdiction over this
case,” but with a plurality of this Court concluding otherwise, it is plainly disputable. An
application “must show” the items included in the list. MCR 7.305(B). Echoing that
language, commentary on our rules also characterizes it as mandatory. See Gerville-
Réache, Expediting Review, § 7.23, p 199 in Michigan Appellate Handbook (Shannon &
Gerville-Réache eds, 3d ed, January 2018 update) (remarking that a bypass application
“must show” the grounds listed in MCR 7.305(B)(4)). Moreover, the original form of the
rule provided only that bypass applications show that “delay in final adjudication is likely
to result in substantial harm”; the additional option in MCR 7.305(B)(4)(b) that a bypass
4
I also concur with denying the Governor’s bypass cross-appeal. “It is a general
rule in this state . . . that only a party aggrieved by a decision has a right to appeal from
that decision,” meaning that “ ‘[a] party who could not benefit from a change in the
judgment has no appealable interest.’ ” Ford Motor Co v Jackson (On Rehearing), 399
Mich 213, 225-226 (1976) (citation omitted). It is, at minimum, uncertain to me whether
the Governor is aggrieved by the decision of the Court of Claims such that she would
have appellate standing at this juncture. On the one hand, the Court of Claims ruled that
EO 2020-68 was an invalid evasion of the requirement under MCL 30.403(3) and (4) of
the Emergency Management Act (EMA), MCL 30.401 et seq., that the Legislature
approve disaster and emergency declarations after 28 days; invalidating EO 2020-68 falls
within the terms of MCR 7.305(B)(4)(b) and is arguably the sort of appealable interest an
appealing party must possess. However, the Court of Claims also ruled that MCL
10.31(1) was an adequate basis for all of the Governor’s substantive orders that have
purported to regulate much of life in Michigan after April 30, 2020.4 Because no
substantive regulation issued by the Governor has been held invalid, I question whether
the Court of Claims’ ruling that EO 2020-68 invalidly evaded the EMA is anything more
than an advisory opinion.5 And, because “it is only opinions issued by the Supreme
application can also show that it is an appeal from a ruling that various forms of law or
government action are invalid was added in 2002. See 466 Mich lxxxvi, lxxxix (2002).
Since such a judicial declaration would already have fallen within the grounds listed in
MCR 7.305(B)(1) through (3), the fact that MCR 7.305(B)(4)(b) was added to MCR
7.305(B)(4) indicates that we understood it to be mandatory for bypass applications;
otherwise, it would be redundant of what is already stated in MCR 7.305(B)(1) through
(3). Our past practice also indicates it is mandatory, as we have denied bypass
applications on the basis that the grounds in the rule were not satisfied. See White v
Detroit Election Comm, 495 Mich 884 (2013); Barrow v Detroit Election Comm, 495
Mich 884 (2013). (Note that at the time White and Barrow were decided, this
requirement was found at MCR 7.302(B)(4). It was moved to MCR 7.305(B)(4) as part
of a general rewrite of the rules governing practice in this Court. See 497 Mich xcxi,
cxcv (2015).)
4
The Legislature approved an extension of the Governor’s initial emergency declaration
under the EMA until April 30, see 2020 SCR 24, but did not adopt further extensions.
5
On the other hand, the Governor may have a viable contingent cross-appeal, in which
she challenges the decision of the Court of Claims to the extent that the appellate courts
reverse the Court of Claims’ decision upholding her executive orders under MCL
10.31(1). If “the cross-appellant, like any appellant, must be an aggrieved party in some
respect, meaning it must be able to identify a concrete and particularized injury that can
be redressed in the context of the cross-appeal,” Rose, Appeals of Right in the Court of
Appeals, § 4.46, p 100, in Michigan Appellate Handbook (Shannon & Gerville-Réache
eds, 3d ed, January 2018 update), it may be that the Governor’s interest in maintaining
any cross-appeal would be contingent on the outcome of the Legislature’s appeal. Given
5
Court and published opinions of the Court of Appeals that have precedential effect under
the rule of stare decisis,” Detroit v Qualls, 434 Mich 340, 360 n 35 (1990), the Court of
Claims’ remarks about EO 2020-68 will not control future litigation over the propriety of
the Governor’s actions under the EMA—even future COVID-19 litigation.6 The
Governor appears aware of this reality, because when she announced a subsequent
extension of the COVID-19 state of emergency in Executive Order No. 2020-99, she
continued to declare emergencies under both MCL 10.31(1) and—“[s]ubject to the
ongoing litigation”—the EMA. Given my qualms, I am not convinced that Justice
ZAHRA is correct to allege that the Governor’s bypass cross-appeal “cure[s]” any defects
in the Legislature’s application. I am also unmoved by the fact that both parties ask us to
grant these bypass applications. This Court writes the court rules; I do not believe the
parties can rewrite the rules for us by their mutual agreement so as to bootstrap their way
to jurisdiction.
I also do not believe it would be prudent to hear this case at this juncture. The
statutes at issue have seen very little litigation arise under them, meaning there is little
on-point authority. Moreover, the theory by which the Legislature asserts standing to
bring this suit in the first place is entirely novel in Michigan. Further appellate review
and development of the arguments will only assist this Court in reaching the best possible
answers.7 Until a vaccine for COVID-19 is invented, our society will be living with the
these uncertainties, however, at minimum I do not believe it would be wise to exercise
any discretion we may have to hear this case without allowing it full appellate review.
For all these reasons, I do not think the Governor’s bypass cross-appeal rehabilitates the
Legislature’s defective initial bypass application.
6
Justice VIVIANO questions whether my reasoning renders the bypass appeal provision
nugatory given that, in bypassing the Court of Appeals, a party will necessarily “be
appealing a nonbinding decision.” But this is clearly incorrect. Had the Governor been
told that her substantive executive orders were invalid, she would have been ordered by a
court to stop doing something she was doing, and exposed to contempt sanctions if she
did not, without regard to whether the reasoning was binding on future disputes. I
question whether the Court of Claims’ ruling here aggrieved the Governor because it
essentially answered the hypothetical question of whether her executive orders would be
valid if MCL 10.31(1) were not an adequate basis for them. Such a ruling does not
appear to control her current orders, nor is its reasoning binding on future disputes. It is,
at minimum, a sufficiently uncertain question that I do not believe this Court can properly
predicate its review of this case on this foundation.
7
As Justice VIVIANO points out in his dissent, there are numerous cases relating to
COVID-19 making their way through our state and federal courts. While many of these
cases raise issues distinct from those raised by the Legislature in this case, in at least one,
the Court of Appeals has granted leave to appeal on a very similar issue—“whether the
trial court abused its discretion in ruling that plaintiff’s claim regarding the
6
risk of the spread of this disease and the argued necessity of emergency measures to
mitigate that spread. There is little prospect of these disputes being rendered moot, and I
have little doubt that the Court will take them up in the future.
I also disagree that this Court should heavy-handedly direct the Court of Appeals
in its management of this litigation. First of all, if there is a need for expedited
consideration, the parties are free to request it from the Court of Appeals, which is better
positioned to know how best to balance the need for expeditious review with the
resources it has available to scrutinize the arguments being made. I disagree with Justice
VIVIANO that the Court of Appeals will simply put this case on any “conveyor belt,” and
I believe they will recognize “this is no ordinary case.” Second, the cases in which we
most often direct expedited review are election cases in which the parties have externally
imposed deadlines they must satisfy to submit paperwork or print ballots. See, e.g.,
League of Women Voters v Secretary of State, 505 Mich 931 (2019). Third, I believe
many of the observations that justify denying this bypass application also justify
declining to order an extraordinary schedule in the Court of Appeals. Justice ZAHRA
argues that “the people of this state have a great interest in the final disposition of these
issues,” but the people of this state are not a party to the case—the Legislature is, suing in
its institutional capacity and arguing that its prerogatives are being violated. Until a final
judicial resolution of these issues is reached, the Legislature is free in the interim to avail
itself of the ordinary legislative process under the Constitution. That this Court has
resolved this bypass application in less than two weeks is, I believe, evidence enough that
we are treating these issues with appropriate urgency.
As noted, the issue before us is not whether we will ever decide these issues, but
rather whether we will decide them before the Court of Appeals has considered them.
Because I conclude that we neither can nor should grant these bypass applications, I
concur with our order denying them.
MCCORMACK, C.J., and CAVANAGH, J., join the statement of CLEMENT, J.
MARKMAN, J. (dissenting).
I dissent from the majority’s decision to deny the parties’ applications to bypass
the Court of Appeals in order to expedite the final resolution of the present dispute.
Indeed, in all likelihood, the consequence of our decision today will be to ensure that this
Court never issues a meaningful decision concerning the nature and required procedures
of the emergency authority of this state. For the following reasons, I would grant these
unconstitutionality of the [emergency powers of the governor act], MCL 10.31 et seq.,
was unlikely to succeed.” Mich United for Liberty v Governor, order of the Court of
Appeals, entered May 29, 2020 (Docket No. 353643).
7
applications.
First, I would grant the applications because they pertain to an issue of the greatest
practical importance to the more than 10 million people of this state: the validity of
executive orders declaring a state of emergency and thereby enabling a single public
official to restrict and regulate travel, assembly, business operations, educational
opportunities, freedoms and civil liberties, and other ordinary aspects of the daily lives of
these people, including matters of crime and punishment and public safety. To put it
even more specifically, the present applications place into question the entirety of the
processes and procedures by which the executive orders that have defined nearly every
minute, and nearly every aspect, of the lives of “we the people” of Michigan for more
than the past two months were fashioned into law.
Second, I would grant the applications because, notwithstanding their vast
differences in apprehending the legal and constitutional preconditions required of an
emergency order, the parties commonly argue that this Court should grant their bypass
applications in light of the profound significance and practical impact of the present
emergency orders.
Third, I would grant the applications because they implicate a “case or
controversy” of the greatest historical consequence between the two representative and
accountable branches of our state government: each in concurrence seeking the counsel
of the third branch as to what is demanded by the constitutional charter that has guided
the people’s government for the past 185 years. The Governor contends that her office
possesses the authority to issue the executive orders in response to the present
emergency, while the Legislature in response contends that her office lacks such
authority absent its own participation. Put simply, what is at issue is how the
extraordinary emergency powers of government are to be invoked and how the decision-
makers of our two most fundamental constitutional institutions are respectively to be
engaged.
Fourth, I would grant the applications because time is an altogether relevant
consideration to what is required of this judiciary. Our state continues in the midst of an
emergency in which both the lives and the liberties of its people are being lost each day.
By today’s action, it is unlikely that this Court will ever decisively resolve the present
dispute and thus that whatever errors or excesses may have been made in the course of
the present emergency will never be pronounced or remedied but left only to be repeated
on the occasion of what inevitably will arise some day as our next emergency.
Fifth, I would grant the applications because this case cries out for the most
expedited and final review of the highest court of this state. If there is a matter, if there is
an obligation, that compels the most urgent action of this Court, it is the present matter,
our present obligation. This case defines the very purpose and the fundamental
8
responsibility of a supreme court of this union of states. By our decision to deny the
applications for bypass, we bypass an exercise of authority to decide what is perhaps the
most substantial dispute ever presented to this Court, not only diminishing our standing
among the judicial institutions of our federal system but diminishing our relevance within
the judicial institutions of this state itself.
ZAHRA, J., joins the statement of MARKMAN, J.
ZAHRA, J. (dissenting).
I dissent from this Court’s order denying both litigants’ applications for leave to
appeal from the Court of Claims, thereby leaving intact without immediate review the
Governor’s various emergency orders issued in response to the COVID-19 pandemic and
the Court of Claims order ruling in part that the Governor acted erroneously under MCL
30.401 et seq. I would grant the applications and decide the matters forthwith. I also
dissent from this Court’s inexplicable failure to direct the Court of Appeals to hear this
case on an expedited basis. This case presents palpable constitutional questions that are
of compelling interest to every resident, business, and employer in Michigan. The instant
matter is arguably the most significant constitutional question presented to this Court in
the last 50 years. By granting both applications, this Court could put to rest with finality
whether and to what extent the legislation on which the Governor relied to issue the serial
emergency COVID-19 orders remains a valid source of legal authority for those orders.
Admittedly, deciding these difficult questions is no easy task. But the people of this state
rightly demand that this Court resolve such difficult questions. Because each resident’s
personal liberty is at stake, it is emphatically our duty to decide this case. I dissent from
the Court’s failure to immediately undertake this duty.
Life for people throughout Michigan was turned on its head when on March 10,
2020, in response to the COVID-19 pandemic that threatened widespread contagion,
serious and sometimes fatal illness, and a critical overload to our health system, the
Governor issued Executive Order No. 2020-4, declaring a state of emergency under the
authority of two separate statutory delegations of emergency authority: 1945 PA 302,
known as the “emergency powers of the governor act” (EPGA), MCL 10.31 et seq.; and
the Emergency Management Act (EMA), MCL 30.401 et seq. The EMA carries a 28-day
limit on the amount of time in which the Governor can issue orders under a state of
emergency before the act requires the Governor to declare an end to the emergency,
unless both houses of the Legislature extend the period through a resolution.8
8
MCL 30.403(3). The Governor, however, argues that the Court of Claims erred by
concluding that she cannot issue new orders reinstituting the effect of her prior orders at
the end of each order issued under the EMA.
9
Over the next several weeks, the Governor issued numerous additional statewide
orders generally requiring people to stay at home unless their departure from home was
essential, closing all nonessential9 businesses, closing all schools before the end of the
school year, and seriously restricting travel, assembly, and other aspects of daily life.
Law and nonemergency medical offices throughout Michigan were closed indefinitely.
Both houses of the Michigan Legislature granted the Governor an extension of authority
to April 30, 2020, but neither the House of Representatives nor the Senate passed a
resolution to grant any further extension. On the day the EMA expressly required the
declaration of emergency to be rescinded, the Governor rescinded the declaration and,
within minutes, declared another statewide emergency on the basis of COVID-19,
ordering that all the previous orders should now be considered effective under the new
order. The Governor separately declared a state of emergency under the EPGA and
ordered that all previous orders should be considered effective under that declaration as
well.
People throughout Michigan were understandably frustrated over their inability to
leave home to, among other things, work, engage in commerce, obtain preventative
health care, visit friends and family, and maintain their personal appearance with salon
and grooming services. Sporadic peaceful protests broke out throughout the state in
which some residents practiced civil disobedience. The political branches of government
divided over the issue. The Legislature believed it should be permitted a seat at the table
in crafting emergency orders, and the Governor proclaimed unilateral authority to act.
The Michigan House of Representatives and the Michigan Senate sued the
Governor in the Court of Claims, seeking a declaratory ruling that the Governor’s
authority under the EMA had expired and that the EPGA pertained only to local matters
and did not authorize a statewide declaration of emergency. The Governor responded
that each source of statutory authority continued to provide her with the power to issue
orders for the protection of the public health. The Court of Claims agreed with the
Legislature that the Governor’s authority under the EMA had expired, but held that the
EPGA granted the Governor independent authority to issue orders that would protect
lives and control the emergency situation created by COVID-19. That same day, the
Legislature filed an application for leave to appeal in the Court of Appeals and filed in
this Court an application for leave to appeal under MCR 7.305(B)(4), which permits “an
appeal before a decision of the Court of Appeals.”
The Governor filed a brief in response to the Legislature’s application in this
Court as well as an application for leave to appeal challenging two holdings of the Court
9
Many of the Governor’s orders distinguished essential from nonessential activity. Still,
in other areas, the people were left to wonder whether certain activities in which they
wished to engage were permitted under the various orders. See note 3 of this statement.
10
of Claims: (1) the conclusion that the Legislature has standing to bring a declaratory
action, and (2) the holding that Executive Order No. 2020-68 was invalid because the
Governor’s authority to act under the EMA had expired.
Significantly, both of our coequal branches of government (the parties to this
litigation) recognize the gravity of this matter and have asked this Court to resolve the
constitutional questions before the Court without the benefit of intermediary (and
prolonged) review from our Court of Appeals. Because MCR 7.305(B)(4) is perfectly
satisfied,10 this Court should forthwith decide the following three questions:
10
Not only would I accept the parties’ olive branch and address this matter to maintain
comity within our state government, our court rules, namely MCR 7.305(B)(4),
emphasize this Court’s defined role to determine matters in which:
(a) delay in final adjudication is likely to cause substantial harm, or
(b) the appeal is from a ruling that a provision of the Michigan
Constitution, a Michigan statute, a rule or regulation included in the
Michigan Administrative Code, or any other action of the legislative or
executive branches of state government is invalid[.]
My concurring colleagues, by contrast, believe a bypass of the Court of Appeals is not
warranted because the Legislature has failed to satisfy the requirements of MCR
7.305(B)(4). In arguing its case to bypass the Court of Appeals, the Legislature asserts:
Delaying final adjudication would do “substantial harm,” as citizens
and lawmakers would be left in a state of uncertainty at a time when
confident decision-making is a requirement for survival. Michiganders are
living under and attempting to interpret orders that never should have been
implemented over their Legislature’s objection; at the very least, they are
living under a cloud of ambiguity that can be rectified by this Court. MCR
7.305(B)(4)(a). The ultra vires nature of the Governor’s actions puts at risk
people who are relying on governmental direction to guide their conduct.
Lastly, this appeal involves a ruling that has already declared one related
“action of the . . . executive branch[] of state government invalid.” MCR
7.305(B)(4)(b). [Alterations in original.]
I am persuaded that the requirements of MCR 7.305(B)(4) are satisfied. As
representatives of the people, the Legislature clearly has an interest in providing certainty
“at a time when confident decision-making is a requirement for survival.” It is no secret
that many residents and businesses have struggled to understand the Governor’s
emergency executive orders related to the COVID-19 virus. See DesOrmeau, After 102
Executive Orders, Confusion is Commonplace on What’s Allowed in Michigan and What
Isn’t
(accessed June 2, 2020) [https://perma.cc/K5WK-4RCY]. Further, the Governor makes
11
(1) whether the Michigan Senate and the Michigan House of Representatives have
standing in this case to seek declaratory relief in the Court of Claims,
(2) whether the Governor has continuing authority under the Emergency
Management Act (EMA), MCL 30.401 et seq., to issue emergency executive orders
related to the COVID-19 virus, and
(3) whether the Governor has continuing authority under the emergency powers of
the governor act (EPGA), MCL 10.31 et seq., to issue emergency executive orders related
to the COVID-19 virus.
The members of this Supreme Court, Michigan’s court of last resort, have been
elected to serve as the final arbiters of law and constitutional questions that are of
significant public interest and importance to our state. No issue is of greater public
interest or importance than the resolution of whether the Governor was within her
constitutional authority to deprive the 10-million-plus residents and the thousands of
business owners of Michigan of their personal freedom and economic liberty. Unlike the
legislative and executive branches of government, which make and enforce laws through
a political process, the judiciary is the nonpolitical branch of government charged with
the extremely limited but all-important role of interpreting only those laws and
constitutional questions presented in cases and controversies brought to the Court by
adversaries in litigation. It is exactly because this Court is the pinnacle of the apolitical
branch of government and limited in the scope of its duties that the people trust and
accept our resolution of disputes, even when we are sharply divided when rendering our
opinions. This is all the more true where, as here, the case presents a constitutional
question of significant magnitude that divides our political branches of government. The
people of Michigan expect this Court to resolve this dispute. We should do so.
And yet, beyond declining to grant the Legislature’s application, the Court’s
majority also fails to order the Court of Appeals to hear and resolve these issues on an
expedited basis. I make no attempt to explicate this failure. Again, both of our coequal
branches of government have asked for these significant constitutional questions to be
answered as soon as possible. And the people of this state have a great interest in the
final disposition of these issues as soon as possible. To the extent a majority of this Court
no attempt to rebut the Legislature’s assertion that it has been particularly harmed by the
Governor’s usurpation of Legislative power through her emergency executive orders.
Moreover, even assuming there is a shortcoming in the Legislature’s application,
that defect is cured by the Governor’s application, which expressly invites a challenge to
the Court of Claims’ holding that the Governor’s actions were invalid under the EMA.
See MCR 7.305(B)(4)(b). Again, both of our coequal branches of government want these
questions answered. We should honor their requests.
12
has concluded that the wisdom of our intermediate appellate court is essential to our
resolution of these weighty issues, there is no reason why this Court should not order the
Court of Appeals to hear and decide these questions forthwith. The Court’s failure to, at
a minimum, require the Court of Appeals to decide these cases on an expeditious basis
fails to accord the respect due to our coequal branches of government and displays
insensitivity to the people of this state who are entitled to know with certainty whether
the constraints of liberty imposed by the emergency orders under which they labor are
constitutionally permissible.
MARKMAN, J., joins the statement of ZAHRA, J.
VIVIANO, J. (dissenting).
The Court today turns down an extraordinary request by the leaders of our coequal
branches of government to immediately hear and decide a case that impacts the
constitutional liberties of every one of Michigan’s nearly 10 million citizens. 11 See
Walsh v River Rouge, 385 Mich 623, 639 (1971) (“The invocation of a curfew or
restriction on the right to assemble or prohibiting the right to carry on businesses licensed
by the State of Michigan involves the suspension of constitutional liberties of the
people.”). Because I believe we are duty-bound to give our immediate attention to this
case, I cannot join an order that nonchalantly pushes it off for another day.
The Governor and the Legislature do not seem to agree on many things these days,
but they both agree that this case merits our immediate attention. In addition, since they
individually and collectively represent every single resident of our state, one can surmise
that the views of the Governor and Legislature represent the diverse views of large
numbers of our citizens. They are crying out to this Court for help because there is a
significant amount of confusion in our state over what the Governor’s executive orders
mean and whether they are enforceable.12 And the instant case is not the only one
involving questions regarding the validity of the Governor’s actions to combat COVID-
11
Justice CLEMENT is of course correct that this case does not involve a direct claim of a
constitutional rights violation. But, since the validity of the Governor’s executive orders
are at stake, and it is indisputable that those orders impinge on the constitutional liberties
of our citizens, it is rudimentary logic—not hyperbole—to say that the case impacts the
civil liberties of our citizens.
12
See, e.g., DesOrmeau, After 102 Executive Orders, Confusion is Commonplace on
What’s Allowed in Michigan and What Isn’t (accessed June 2, 2020)
[https://perma.cc/K5WK-4RCY].
13
19.13 A substantive ruling on the merits of this case by our Court would not only provide
clarity to the Governor, the Legislature, and the public, but it would also assist the lower
courts as they continue to address these issues in other matters.
I agree with Justice ZAHRA that both applications easily satisfy the requirements of
our bypass rule, MCR 7.305(B)(4). As an initial matter, it is clear that our Court has
jurisdiction here under MCR 7.303, which governs the jurisdiction of the Supreme Court.
Under MCR 7.303(B)(1), we have discretion to “review by appeal a case pending in the
Court of Appeals or after decision by the Court of Appeals (see MCR 7.305).” Contrary
to Justice CLEMENT’s suggestion, we have never held that the grounds for discretionary
appeal are jurisdictional—I see no reason to do so now. It is indisputable that our Court
has jurisdiction over this case, if we choose to assert it.
The Legislature’s bypass application clearly shows that a “delay in final
adjudication is likely to cause substantial harm.]” MCR 7.305(B)(4)(a). The second
question presented in the application is “whether the Emergency Powers of the Governor
Act [MCL 10.31 et seq.] is consistent with the separation-of-powers doctrine in the
Michigan Constitution, where the act . . . results in the usurpation of the Legislature’s
role in formulating public policy[.]” The Legislature further asserts that “COVID-19
presents real problems that call for a comprehensive and deliberative governmental
response. The Court should restore the proper constitutional order and allow the
branches to get to work—together.”14 In short, the Legislature is arguing that because the
13
There are at least five other cases involving challenges to COVID restrictions in the
lower courts: Martinko v Governor (Docket No. 353604); Slis v Michigan (Docket No.
351211); Dep’t of Health & Human Servs v Manke (Docket No. 353607); Mich United
for Liberty v Governor (Docket No. 353643); and Associated Builders & Contractors of
Mich v Governor (Docket No. 20-000092-MZ). Cases concerning the restrictions are
also proliferating in the federal courts. See Mitchell v Whitmer (Case No. 1:20-cv-00384)
(WD Mich); League of Indep Fitness Facilities & Trainers, Inc v Whitmer (Case No.
1:20-cv-00458) (WD Mich); Allen v Whitmer (Case No. 2:20-cv-11020) (ED Mich);
Mich United Conservation Clubs v Whitmer (Case No. 1:20-cv-00335) (WD Mich); Mich
Nursery & Landscape Ass’n v Whitmer (Case No. 1:20-cv-331) (WD Mich); Beemer v
Whitmer (Case No. 1:20-cv-323) (WD Mich); VanderZwaag v Whitmer (Case No. 1:20-
cv-325) (WD Mich); Martinko v Whitmer (Case No. 2:20-cv-10931) (ED Mich);
Thompson v Whitmer (Case No. 1:20-cv-00428) (WD Mich); Midwest Institute of Health,
PLLC v Whitmer (Case No. 1:20-cv-00414) (WD Mich); Otworth v Whitmer (Case No.
1:20-cv-00405-PLM-RSK) (WD Mich); Signature Sotheby’s Int’l Realty, Inc v Whitmer
(Case No. 1:20-cv-00360) (WD Mich). More are sure to follow.
14
See also Michigan Legislature’s Emergency Bypass Application for Leave to Appeal, p
27 (“In effectively exercising standardless lawmaking authority to formulate public
policy rather than the democratic process, the Governor has usurped the Legislature’s
14
Governor has claimed the authority to exercise core legislative powers for an indefinite
period, the Legislature has been displaced from its normal constitutional role as the
branch with “the authority to make, alter, amend, and repeal laws.” Harsha v Detroit,
261 Mich 586, 590 (1933). See Const 1963, art 4, § 1 (stating that with certain
exceptions not relevant here, “the legislative power of the State of Michigan is vested in a
senate and house of representatives”); Const 1963, art 4, § 51 (“The public health and
general welfare of the people of the state are hereby declared to be matters of primary
public concern. The legislature shall pass suitable laws for the protection and promotion
of the public health.”). At the bypass stage, we need not decide the merits of the
Legislature’s separation-of-powers argument. It is enough to recognize the obvious,
substantial, and ongoing institutional harm that is being caused if the Legislature’s claim
has merit.
Justice CLEMENT asserts, not incorrectly, that the Legislature still has the power to
enact laws. But that misses the point of the Legislature’s claim. Absent the Governor’s
extraordinary exercise of core legislative powers during the pandemic, the normal
constitutional order would prevail and the Governor and the Legislature would be
compelled to work together to shape the public policy of our state. Instead of needing a
supermajority vote to override the Governor’s veto and restore the status quo ante, the
Legislature could enact laws and present them to the Governor by a simple majority vote
of each house. And the Governor would have an incentive—the one our founders built
into our system of government—to work with Legislature to develop bills that she found
acceptable and would be willing to sign into law. The Legislature’s position, in short, is
that by her ongoing and broad exercise of the legislative power, the Governor has
usurped its power and diminished its institutional role. Being sidelined from its role in
shaping public policy during this pandemic is undoubtedly a substantial harm to the
institutional prerogatives of the Legislature.
The concurring justices give even shorter shrift to the Governor’s bypass
application. For one thing, Justice CLEMENT’s concurrence never mentions or purports to
apply our bypass rule with regard to the Governor’s application. Instead it offers a series
of suppositions on topics other than whether the Governor is appealing the invalidation of
executive action, which is all that MCR 7.305(B)(4)(b) requires and which is precisely
what the Governor seeks to appeal here. The Court of Claims invalidated an executive
order, No. 2020-68, which the Governor issued under the Emergency Management Act
(EMA), MCL 30.401 et seq.
Justice CLEMENT seems to agree that the Governor has met the requirements of
MCR 7.305(B)(4)(b). The thrust of Justice CLEMENT’s argument is that the Governor
power.”); id. at 33 (“Nor can the Governor usurp the lawmaking power merely because
she disagrees with the Legislature’s response to the COVID-19 crisis.”).
15
might not be an aggrieved party because, even though the court struck down her order
under the EMA, she was able to retain all her substantive regulations in an identical order
under the emergency powers of the governor act (EPGA). But the Governor has good
reason for feeling that she is aggrieved even if her regulations remain standing at this
point in the proceedings. “[T]o have standing on appeal [i.e., to be an aggrieved party], a
litigant must have suffered a concrete and particularized injury” arising from the
judgment below. Federated Ins Co v Oakland Co Rd Comm, 475 Mich 286, 291
(2006).15 The Governor argues that the “EMA provides for a more extensive structure of
governmental action in response to an emergency, and a more detailed set of powers for
the Governor to implement in that response.” A comparison of the two statutes at issue
displays the EMA’s more elaborate provisions. Compare MCL 10.31 (setting forth the
Governor’s general authority to promulgate orders after proclaiming a state of
emergency) with, e.g., MCL 30.408 and MCL 30.409 (establishing emergency manager
coordinators across various institutions and entities) and MCL 30.411 (providing limited
immunity). And, importantly, the Governor contends that the EMA not only empowers
her to act but affirmatively requires her to declare an emergency or disaster. Whether
these provisions and others differentiate the EMA from the EPGA, so that the statutes do
not conflict, goes to the merits of the statutory issue in this case, and thus I would not
now suggest an answer. It is enough here that the Governor has raised a colorable
argument that the decision below struck down her executive order, effectively cabined
her statutory tools, and required her to disregard statutory obligations. This constitutes a
concrete and particular injury.
Moreover, consider the implications of Justice CLEMENT’s hunch about the
Governor’s aggrieved-party status. If the Legislature successfully appealed its claims—
either here or in the Court of Appeals—and the EPGA no longer authorized Executive
Order No. 2020-68, then the Governor would need to fall back on the EMA. But by that
point it would doubtless be too late for her to appeal. 16 In other words, the Governor
would become aggrieved only when it would be too late for her to do anything about it.17
15
See also Attorney General v Bd of State Canvassers, 500 Mich 907, 908 n 6 (2016)
(ZAHRA and VIVIANO, JJ., concurring) (“ ‘Aggrieved’ is a term of art defined as ‘having
legal rights that are adversely affected; having been harmed by an infringement of legal
rights.’ An ‘aggrieved party’ is ‘a party whose personal, pecuniary, or property rights
have been adversely affected by another person’s actions or by a court’s decree or
judgment.’ Thus, to be ‘aggrieved,’ a party must demonstrate that it has been harmed in
some fashion.”) (citations omitted).
16
Under Justice CLEMENT’s logic, it would not be enough for the Governor that the
Legislature could satisfy the bypass rule in order for her to bring her appeal.
17
In addition, Justice CLEMENT’s reminder that the Court of Claims’ decision is not
binding is irrelevant: it would seemingly always be the case that a party seeking to bypass
16
In sum, because the Governor is appealing the invalidation of her executive
actions, her bypass application satisfies MCR 7.305(B)(4)(b). And she also has claimed
sufficient injury from the judgment below. If the majority wishes to deny the application
on other grounds, so be it. But it should not pretend the Court’s hands are tied by our
procedural rules.18
the Court of Appeals will be appealing a nonbinding decision. If this is a meaningful
consideration in rejecting a bypass, then one wonders why we have the rule at all.
18
By denying the bypass, the majority has not only written the bypass court rule out of
the rulebook, it has also put us at odds with the highest courts of many other states who
have not faltered in their responsibility to timely address the significant legal issues
arising from their states’ responses to the COVID-19 pandemic. The Pennsylvania
Supreme Court, exercising immediate jurisdiction in a challenge to executive orders, said
it well: “[T]his case presents issues of immediate and immense public importance
impacting virtually all Pennsylvanians and thousands of Pennsylvania businesses, and
that continued challenges to the Executive Order will cause further uncertainty.” Friends
of Danny DeVito v Wolf, ___ Pa ___, ___ (2020) (Docket No. 68 MM 2020), slip op at
17. In a similar case, the Kansas Supreme Court exercised expedited original
jurisdiction, explaining that such jurisdiction lay when the court “determine[s] the issue is
of sufficient public concern. Under the circumstances our state faces, we easily do.”
Kelly v Legislative Coordinating Council, ___ Kan ___, ___ (2020) (Docket No.
122765), slip op at 9 (citation omitted). See also In re State of Texas, ___SW3d___
(2020) (Docket No. 20-0394) (addressing whether COVID-19 justified voting by mail);
Seawright v New York City Bd of Elections, ___ NY2d ___ (2020) (Slip Op No. 02993)
(addressing election requirements in light of COVID-19); Wisconsin Legislature v Palm,
___ Wis 2d___, ___; 2020 WI 42, ¶ 10 (Wis, May 13, 2020) (exercising original
jurisdiction—which covered cases “ ‘that should trigger the institutional responsibilities
of the Supreme Court’ ”—over the legislature’s challenge of executive orders because the
“order . . . impacts every person in Wisconsin, as well as persons who come into
Wisconsin, and every ‘non-essential business’ ”) (citation omitted); Cal Attorneys for
Criminal Justice v Newsom, order of the California Supreme Court, entered May 13,
2020 (Case No. S261829), p 1 (“This mandate proceeding, like others that have recently
come before this court, raises urgent questions concerning the responsibility of state
authorities during the current pandemic to protect the health and safety of inmates . . . in
light of the spread of the novel coronavirus . . . .”); id. at 4 (Liu, J., dissenting) (“As a
prudential matter, we exercise [original mandamus] jurisdiction ‘only in cases in which
“the issues presented are of great public importance and must be resolved promptly.” ’ If
there is any case where exercising our mandamus jurisdiction is appropriate, this is it.”)
(citations omitted); Comm for Pub Counsel Servs v Chief Justice of the Trial Court, 484
Mass 1029, 1029 (2020) (denying reconsideration of earlier holding that the court had
superintending authority “to stay a final sentence that is being served, absent a pending
17
appeal or a motion for new trial”); Goldstein v Secretary of the Commonwealth, 484
Mass 516 (2020) (addressing an election-signature requirement in light of COVID); In re
Abbott, ___SW3d___, 63 Tex Sup Ct J 909 (2020) (holding that trial judges lacked
standing to challenge an executive order applying to bail decisions); Comm for Pub
Counsel Servs v Chief Justice of the Trial Court, 484 Mass 431, 446 (2020) (exercising
general superintendence, under which the court could “remedy matters of public interest
‘that may cause further uncertainty within the courts’ ”) (citation omitted); Christie v
Commonwealth, 484 Mass 397 (2020) (hearing petition for immediate release from
custody due to COVID-19 concerns under the court’s general superintendence power); In
re Interrogatory on House Joint Resolution 20-1006, ___P3d___, ___; 2020 CO 23, ¶ 28
(Colo, 2020) (“We conclude that the interrogatory [by the General Assembly asking for
guidance in light of conditions posed by COVID-19 on a constitutional requirement] now
before us presents an important question upon a solemn occasion. Accordingly, we
exercise original jurisdiction. The General Assembly and the public at large urgently
need an answer to the interrogatory to avoid uncertainty surrounding the length of the
remaining regular session and its impact on pending bills and bills yet to be
introduced.”); cf. Strizich v Mont Dep’t of Corrections, order of the Montana Supreme
Court, entered May 5, 2020 (Case No. OP 20-0225) (declining to consider petition for
injunctive relief because the case, involving COVID-19 and state correctional facilities,
was fact-intensive); Disability Rights Mont v Mont Judicial Districts 1-22, order of the
Montana Supreme Court, entered April 14, 2020 (Case No. OP 20-0189) (denying
petition to exercise mandamus power because the request involved factual issues and the
legal contention failed on the merits).
It is noteworthy, too, that in the United States Supreme Court, the significance of
the issues would alone justify bypassing the court of appeals. See also Sup Ct Rule 11
(“A petition for a writ of certiorari to review a case pending in a United States court of
appeals, before judgment is entered in that court, will be granted only upon a showing
that the case is of such imperative public importance as to justify deviation from normal
appellate practice and to require immediate determination in this Court.”) (emphasis
added). Indeed, “[t]he writ . . . has been granted in some of the most important cases in
[the last] century.” Lindgren & Marshall, The Supreme Court’s Extraordinary Power to
Grant Certiorari Before Judgment in the Court of Appeals, 1986 Sup Ct Rev 259, 259
(1986); see Dames & Moore v Regan, 453 US 654, 667-668 (1981) (“Arguing that this is
a case of ‘imperative public importance,’ petitioner then sought a writ of certiorari before
judgment. Because the issues presented here are of great significance and demand
prompt resolution, we granted the petition for the writ, adopted an expedited briefing
schedule, and set the case for oral argument on June 24, 1981.”) (citations omitted).
18
* * *
This case involves some of the most important legal principles that can arise in a
free society. The parties’ briefs reverberate with weighty assertions about our
constitutional structure, as well as the need for and the scope of the Governor’s
emergency powers. These issues, and how we decide them, will have a direct impact on
the constitutional liberties of every person who lives or owns property in, or simply visits,
our state while the restrictions are in place. On a fundamental and practical level, they
impact how our friends and neighbors live their lives on a daily basis, where they can go,
with whom, how and when they can practice their religion, whether they can go out to eat
or to the hardware store or to the beach—in short, nearly every decision they make about
nearly everything that they do. Our Court exists to vindicate the constitutional rights of
our citizens and to be the final expositor of state law; thus, we are uniquely situated to
provide a prompt and final resolution of the issues presented in this case.
The leaders of our state government believe we should hear this case now. I
agree. But instead of rising to the occasion, the majority order dodges these issues for
now and defers them to the lower courts so they can weigh in first. Ordinarily, I would
agree with this approach. But this is no ordinary case. It should not simply go on the
conveyor belt with all of the others. Because my colleagues have decided to put it there
at least for the time being, I respectfully dissent.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 4, 2020
s0601
Clerk