CBS Detroit - After the Michigan Supreme Court ruled that Governor Whitmer's executive orders were unconstitutional under the 1945 Emergency Powers Act, the Governor appealed for clarification that she had a transition window until October 30 to work with the legislature before the court's orders took effect.
Now Michigan's highest court has spoken again and as reported by The Detroit News, ruled in a 6-1 decision that the orders had an immediate effect and denied her time to develop further legislation. The majority opinions came from Republican nominated Chief Justice Bridget Mary McCormack and justice Megan Cavanagh. Who ruled the court didn't have the authority to grant her request.
The dissenter, in this case, was Democrat-appointed Justice Richard Bernstein, who said the court's initial decision shouldn't have had an immediate effect. In his dissent, Berstein had concerns about the "prospect of discontinued unemployment benefits", as Whitmer's now-unconstitutional executive orders provided for another six weeks of unemployment benefits. The Detroit News reports the Legislature is due to pass a resolution that would extend unemployment benefits on Tuesday. However, lawmakers have "tie-barred" legislation that would protect businesses from COVID-19 lawsuits into that bill.
The initial decision by the court ruled the 1945 Emergency Powers of the Governor Act was unconstitutional and "are of no continuing legal effect." The 4-3 decision by Justices Markman, Zahra, Viviano, and Clement who represented the majority said the 1945 law gave legislative authority to the governor's office.
Immediately after the October 2 ruling, the governor reissued mask and public gathering orders through the Michigan Department of Health and Human Services under state health statutes already on the books. Other counties like Oakland and the City of Detroit have also followed suit with their own guidelines.
According to the Detroit News, the Mackinac Center for Public policy is currently reviewing the legality of orders issued by MDHHS. Patrick Wright is the vice president for legal affairs for Mackinac Center, said that Monday's ruling affirms the court's decision is now law. Wright said to The Detroit News, "the governor is continuing to sidestep the ruling by maintaining unilateral control over pandemic policies via broad and poorly defined powers granted in statute to a state department. We are currently looking at the legality of the governor's latest actions."
Credit: Michigan Courts | courts.michign.gov - Front row - left to right: Justice Stephen J. Markman, Chief Justice Bridget Mary McCormack, Justice Brian K. Zahra. Back row, left to right: Justice Elizabeth T. Clement, Justice David F. Viviano, Justice Richard Bernstein, and Justice Megan K. Cavanagh.
In the Michigan Supreme Court ruling, the court emphasized that it leaves the governor many open avenues to work with the Legislature "in a cooperative spirit and constitutional manner to respond to the COVID-19 pandemic." Because a Grand Rapids federal district court asked the Michigan Supreme Court for clarification on a case before it, the state's Supreme Court's decision is final, and there is no avenue for Governor Whitmer to pursue the matter to the United States Supreme Court.
The fallout from both Monday's ruling and the October 2 ruling has left many governmental entities in limbo on how to proceed. The Michigan Legislature hasn't passed any law or resolution on how to combat COVID-19 yet. The question many have is how to go about with public meetings? Virtual meetings were allowed under the executive orders, but now for cities like Lansing, they had to cancel Monday's scheduled council meeting. "Combined with today's ruling and absent clarity from the Michigan Legislature, it is not clear we could satisfy the requirements of the Michigan Open Meetings Act virtually," council President Peter Spadafore said in a statement to the Detroit News.
The City of Flint has also had to suspend its meetings as well, as no longer being able to hold virtual meetings. Wayne State University associate professor of law Lance Gable said "The health department I don't think has the ability to overturn elements of the Open Meetings Act,".
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