1

STATE OF MICHIGAN

COURT OF CLAIMS

MICHIGAN HOUSE OF REPRESENTATIVES,

Plaintiffs,

v Case No. 20-000079-MZ

GOVERNOR GRETCHEN WHITMER, Hon. Cynthia Diane Stephens

Defendant.
___________________________/

This matter arises out of Executive Orders issued by Governor Gretchen Whitmer in

response to the COVID-19 pandemic. Neither the parties to this case nor any of the amici deny

the emergent and widespread impact of Covid-19 on the citizenry of this state. Neither do they

ask this court at this time to address the policy questions surrounding the scope and extent of

contents of the approximately 90 orders issued by the Governor since the initial declaration of

emergency on March 10, 2020 in Executive Order No. 2020-4. The Michigan House of

Representatives and the Michigan Senate (Legislature) in their institutional capacities challenge

the validity of Executive Orders 2020-67 and 2020-68, which were issued on April 30, 2020. They

have asked this court to declare those Orders and all that rest upon them to be invalid and without

authority as written. The orders cited two statutes, 1976 PA 390, otherwise known as the

Emergency Management Act (EMA); and 1945 PA 302, otherwise known as the Emergency

Powers of Governor Act (EPGA). In addition, the orders cite Const 1963, art 1, § 5, which

generally vests the executive power of the state in the Governor. This court finds that:
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1. The issue of compliance with the verification language of MCL 600.6431 is abandoned.

2. The Michigan House of Representative and Michigan Senate have standing to pursue this

case.

3. Executive Order 2020-67 is a valid exercise of authority under the EPGA and plaintiffs

have not established any reason to invalidate any executive orders resting on EO 2020-67.

4. The EPGA is constitutionally valid.

5. Executive Order No. 2020-68 exceeded the authority of the Governor under the EMA.

I. BACKGROUND

The Court will dispense with a lengthy recitation of the pertinent facts and history and will

instead jump to the Governor’s declaration of a state of emergency 1 as well as a state of disaster 2

under the EMA and the EPGA on April 1, 2020, in response to the COVID-19 pandemic.

Executive Order No. 2020-33. Both chambers of the Legislature adopted Senate Joint Resolution

No. 24 which approved “an extension of the state of emergency and state of disaster declared by

Governor Whitmer in Executive Order 2020-4 and Executive Order 2020-33 through April 30,

2020. . . .” The Senate Concurrent Resolution cited the 28-day legislative extension referenced in

MCL 30.403 of the EMA.

1
The EPGA does not define the term “state of emergency.” However, the EMA defines the term
as follows: “an executive order or proclamation that activates the emergency response and
recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable
to the counties or municipalities affected.” MCL 30.402(q).
2
While the EPGA does not use, let alone define, the term “state of disaster,” the EMA defines the
term as “an executive order or proclamation that activates the disaster response and recovery
aspects of the state, local, and interjurisdictional emergency operations plans applicable to the
counties or municipalities affected.” MCL 30.402(p).
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The public record affirms that the governor asked the legislative leadership to extend the

state of disaster and emergency on April 27, 2020. The Legislature demurred and instead passed

SB 858, a bill without immediate effect, which addressed some the subject matter of several of the

COVID-19-related Executive Orders, but did not extend the state of emergency or disaster or the

stay-at-home order. The Governor vetoed SB 858.

On April 30, 2020, the Governor issued Executive Order 2020-66 which terminated the

state of emergency and disaster that had previously been declared under Executive Order 2020-

33. The order opined that “the threat and danger posed to Michigan by the COVID-19 pandemic

has by no means passed, and the disaster and emergency conditions it has created still very much

exist.” Executive Order No. 2020-66 (emphasis added). However, EO 2020-66 acknowledged

that 28 days “have lapsed since [the Governor] declared states of emergency and disaster under

the Emergency Management Act in Executive Order 2020-33.” Id. The order declared there was

a “clear and ongoing danger to the state . . . .” (Emphasis added).

On the same day, and only one minute later, the Governor issued two additional executive

orders. First, she issued Executive Order No. 2020-67, which cited the EPGA. [In addition, the

order contained a cursory citation to art 5, § 1.] EO 2020-67 noted the Governor’s authority under

the EPGA to declare a state of emergency during “‘times of great public crisis . . . or similar public

emergency within the state. . . .’” Id. quoting MCL 10.31(1). The order noted that such declaration

does not have a fixed expiration date. Id. Then, and as a result of the ongoing COVID-19

pandemic, EO 2020-67 declared that a “state of emergency remains declared across the State of

Michigan” under the EPGA. The order stated that “[a]ll previous orders that rested on Executive

Order 2020-33 now rest on this order.” Id. The order was to take immediate effect. Id.
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In addition to declaring that a state of emergency “remained” under the EPGA, the

Governor simultaneously issued Executive Order No. 2020-68; this order declared a state of

emergency and a state of disaster under the EMA. [In addition, like all previous orders, the order

contained a vague citation to art 5, § 1 as well.] Hence, EO 2020-68 essentially reiterated the very

same states of emergency and disaster that the Governor had, approximately one minute earlier,

declared terminated. The order declared that the states of emergency and disaster extended through

May 28, 2020 at 11:59 p.m., and that all orders that had previously relied on the prior states of

emergency and disaster declaration in EO 2020-33 now rest on this order, i.e., EO 2020-68.

The House of Representative and the Senate subsequently filed this case asking for an

expedited hearing and a declaration that EO 2020-67 and EO 2020-68, and any other Executive

Orders deriving their authority from the same, were null and void.

COMPLIANCE WITH MCL 600.6431

The Governor noted in her reply brief that the complaint, as originally filed in this court

did not meet the verification requirement of MCL 600.6431(2)(d). At oral argument the Governor

acknowledged that the verification requirements were not met when the complaint was originally

filed; however, a subsequent filing was notarized in accordance with the statute. The Governor

also acknowledged that the failure to sign the verified pleading before a person authorized to

administer oaths was not necessary for invoking this Court’s jurisdiction. Finally, the Governor

agreed that she was not seeking dismissal of the action based on plaintiffs’ initial lack of

compliance. For those reasons this Court will consider the issue moot and decline any analysis of

the arguments predicated on MCL 600.6431.

STANDING
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The issue of standing is central to this case as it is with all litigation. Courts exist to manage

actual controversies between parties to whom those controversies matter. The Legislature has

cited MCR 2.605 in support of its standing to pursue this declaratory action. The Legislature

asserts that it has a need for guidance from this Court in order to determine how it will proceed to

protect what it articulates as its special institutional rights and responsibilities. The Governor

challenges whether the Legislature has standing to bring this suit. The Governor argues that the

institution of the Legislature has no more interest in the outcome of this suit than any member of

the public. She further claims that the Legislature does not need the guidance of the Court to

determine how to carry out its constitutional duties. It is the opinion of this Court that the

Legislature has standing to pursue its claims before this Court.

Both parties cite the seminal case on the issue of standing, Lansing Schs Ed Ass’n v Lansing

Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010). In that case, the Supreme Court refined the

concept of standing under the Michigan Constitution. In doing so, the Court rejected the federal

standing analysis and articulated an analytical framework rooted the Michigan Constitution. The

Lansing Schs Ed Ass’n Court looked to whether a cause of action was authorized by the

Legislature. Where the Legislature did not confer a right to a specific cause of action, a plaintiff

must have “a special injury or right, or substantial interest, that will be detrimentally affected in a

manner different than the citizenry at large . . . .” Id. at 372.

The Governor relies heavily on the recent case of League of Women Voters of Mich v

Secretary of State, __ Mich App __; __ NW2d __ (2020) (Docket Nos. 350938; 351073), which

is itself now on appeal to the Michigan Supreme Court. That case, similar to the instant case, was

brought under the aegis of MCR 2.605 and asked the court to declare that an Attorney General

Opinion’s interpretation of a statute was invalid. The Court of Appeals majority in League of
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Women Voters examined the issue through the lens of MCR 2.605 and found that in that case the

institution of the Legislature had no standing: “Given the definition of ‘actual controversy’ for the

purposes of MCR 2.605, we are not convinced that the Legislature has demonstrated standing to

pursue a declaratory action here. No declaratory judgement is necessary to guide the Legislature’s

future conduct in order to preserve its legal rights.” Id., slip op at p. 7.

League of Women Voters was the first examination of the issue of institutional standing in

Michigan. For that reason, the court focused on the logic of the Supreme Court’s decision in

Dodak v State Admin Bd, 441 Mich 547; 495 NW2d 539 (1993), which analyzed a standing issue

in relation to individual legislators. Dodak, like this case, presented a conflict between the

executive and legislative branches of state government. That Court, like this one, is mindful that

in such instances the issue of legislative standing requires a litigant to overcome “a heavy burden

because, courts are reluctant to hear disputes that may interfere with the separation of powers

between the branches of government.” League of Women Voters, __ Mich App at __, slip op at p.

8 (citation and quotation marks omitted; cleaned up). There must be a “personal and legally

cognizable interest peculiar” to the legislative body, rather than a “generalized grievance that the

law is not being followed.” Id. (citations and quotation marks omitted). In Dodak four legislators

pressed a case concerning what they asserted was an abrogation of their individual rights as

members of the appropriations committees when the State Administrative Board was allowed to

redistribute funds allocated by the Legislature between departments of state government.

Ultimately the Supreme Court found that the chair of the appropriation committee did in fact have

a peculiar and special right and a potential for a personal injury sufficient to acquire standing. In

Dodak, 441 Mich at 557, the Supreme Court cited with approval federal authorities holding that

an individual legislator “‘only has standing if he alleges a diminution of congressional influence

which amounts to a complete nullification of his vote, with no recourse in the legislative process.’

Dodak, 441 Mich at 557, quoting Chiles v Thornburgh, 865 F3d 1197, 1207 (CA 11, 1989). In

League of Women Voters the institution claimed its right was to have a constitutionally correct

interpretation of certain legislation. The League of Women Voters Court found that indeed every

citizen had such a right and the Legislature once it enacted a statute had no special relationship to

it. League of Women Voters, __ Mich App at __, slip op at p. 8. The case did not, remarked the

Court, concern the validity of any particular legislative member’s vote. Id.

While it is a close question, this Court finds that the issue presented in this case is whether

the Governor’s issuance of EO 2020-67 and/or EO 2020-68 had the effect of nullifying the

Legislature’s decision to decline to extend the states of emergency/disaster. The United States

Court of Appeals for the Sixth Circuit recently found that a legislative body under certain

circumstances does have standing. See Tennessee General Assembly v United States Dep’t of

State, 931 F3d 499 (CA 6, 2019). The logic of their analysis is persuasive and compatible with

both Dodak and League of Women Voters. In Tennessee General Assembly, the Sixth Circuit

surveyed two cases from the Supreme Court of the United States to illustrate when a legislative

body, or portion thereof, may have standing. Id. at 508, citing Coleman v Miller, 307 US 433; 59

S Ct 972; 83 L 3d 1385 (1939); and Ariz State Legislature v Ariz Independent Redistricting Comm,

__ US __; 135 S Ct 2652; 192 L Ed 704 (2015). Surveying Coleman and its progeny, the Sixth

Circuit explained that, “legislators whose votes would have been sufficient to defeat (or enact) a

specific legislative Act have standing to sue if that legislative action goes into effect (or does not

go into effect), on the ground that their votes have been completely nullified.” Tennessee General

Assembly, 931 F3d at 509 (citation and quotation marks omitted). The Sixth Circuit further noted

that Arizona State Legislature Court also conferred standing under article III to a legislature. In
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that case, the legislature claimed that the power to redistrict accrued to them under the Arizona

constitution. The challenged action in that case was “more similar to the ‘nullification’ injury in

Coleman.” Tennessee General Assembly, 931 F3d at 510, citing Arizona State Legislature, __ US

at __; 135 S Ct at 2665. To that end, the proposal at issue would have completely nullified any

legislative vote, and there was “a sufficiently concrete injury to the Legislature’s interest in

redistricting . . . that the Legislature had Article III standing.” Id., citing Arizona State Legislature,

__ US at __; 135 S Ct 2665-2666.

The injury claimed in this case is that EO 2020-67 and EO 2020-68 nullified the decision

of the Legislature to not extend the state of emergency or disaster. The Legislature claims this

right is exclusively theirs as an institution under the EMA and this state’s Constitution.

Understanding that Lansing Schs Ed Ass’n specifically departed from the Article III analysis of its

predecessor cases, the nullification argument is nevertheless not incompatible with the Lansing

Schs Ed Ass’n focus on “special injury.” This type of injury sounds similar in the nature of the

right that was taken from the one plaintiff who had standing in Dodak, 441 Mich at 559-560, i.e.,

the member of the House Appropriations Committee who lost his right to approve or disapprove

transfers following the Governor’s actions.

In this respect the instant matter is distinguishable from League of Women’s Voters, __

Mich App at __, slip op at 9, where the Court of Appeals remarked that “the validity of any

particular legislative member’s vote is not at issue[.]” Plaintiffs have at least a credible argument

that they are not merely seeking to have this Court resolve a lost political battle, nor are plaintiffs

only generally alleging that the law is not being followed. Cf. id. at 8. Rather, they are alleging

that the Governor eschewed the Legislature’s role under the EMA and nullified an act of the

legislative body as a whole. This is an injury that is unique to the Legislature and it shows a
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substantial interest that was (allegedly) detrimentally affected in a manner different than the

citizenry at large. Cf. id. at 7 (discussing standing, generally).

As a final argument on standing, the Governor contends that the Legislature does not need

declaratory relief to guide its future actions. She and at least one amicus brief note that the

Legislature has in fact moved toward amending the EPGA. At oral argument the Legislature was

almost invited to amend either the EMA or EPGA. However, while the legislative body is well

aware of its power to enact, amend, and repeal statutes, this Court believes that guidance as to the

issues presented in this case will avoid a multiplicity of litigation. The parties here have pled facts

of an adverse interest which necessitate the sharpening of the issues raised.

ANALYSIS OF AUTHORITIES CITED IN THE CHALLENGED EXECUTIVE ORDERS

The Executive Orders at issue cite three sources of authority: the EMA, the EPGA, and

Const 1963, art 5, § 1. The Court will examine each to determine whether the Governor

possessed authority to issue the challenged orders.

ARTICLE 5 OF THE MICHIGAN CONSTITUTION

The challenged orders in this case all contain a brief citation to art 5, § 1. This section of

the Michigan Constitution vests “executive power” in the Governor. See Const 1963, art 5, § 1.

The Governor invokes this power in claiming authority to issue the challenged Executive Orders.

The Legislature has argued that Governor errs in relying on her art 5, § 1 “executive power” to

issue orders in response to the pandemic. This court agrees that “Executive power” is merely the

“authority exercised by that department of government which is charged with the administration

or execution of the laws.” People v Salsbury, 134 Mich 537, 545; 96 NW 936 (1903). In fact, the
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Governor has not claimed in her briefing or at oral argument that she had the authority to enact EO

2020-67 or EO 2020-68 absent an enabling statute. Through two distinct acts, stated in plain and

certain terms, the Legislature has granted the Governor broad but focused authority to respond to

emergencies that affect the State and its people. The Governor’s challenged actions—declaring

states of disaster and emergency during a worldwide public health crisis—are required by the very

statutes the Legislature drafted. Thus, the focus of this opinion, is on those two distinct acts, the

EMA and EPGA.

THE EPGA AUTHORIZED EO 2020-67 AND SUBSEQUENT ORDERS RELIANT

The Court will first turn its attention to the EPGA and to plaintiffs’ arguments that the

EPGA did not permit the Governor to issue a statewide emergency declaration in EO 2020-67 or

any subsequent orders reliant on EO 2020-67. Plaintiffs advance two arguments in support of their

position: (1) first, they contend that the EPGA, unlike the EMA, does not grant authority for a

statewide declaration of emergency, but instead only confers upon the Governor the authority to

issue a local or regional state of emergency; (2) second, plaintiffs argue that if the EPGA does

grant authority for a statewide state of emergency, the delegation of legislative authority

accomplished by the act is unconstitutional. The Court rejects both of plaintiffs’ contentions

regarding the EPGA and concludes that EO 2020-67, and any orders relying thereon, remain valid.

Turning first to the scope of the EPGA, the Court notes that the statute bestows broad

authority on the Governor to declare a state of emergency and to take necessary action in

connection with that declaration. See MCL 10.31(1). Under the EPGA, 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.” Id.
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The Legislature stated that its intent in enacting MCL 10.32 was to “to invest the governor with

sufficiently broad power of action in the exercise of the police power of the state to provide

adequate control over persons and conditions during such periods of impending or actual public

crisis or disaster.” Section 2 of the EPGA continues, declaring that the provisions of the EPGA

“shall be broadly construed to effectuate this purpose.” Id.

Reading the EPGA as a whole, as this Court must do, see McCahan v Brennan, 492 Mich

730, 738-739; 822 NW2d 747 (2012), the Court rejects plaintiffs’ attempt to limit the scope of the

EPGA to local or regional emergencies only. Informing this decision is the statement of legislative

intent in MCL 10.32, which declares that the EPGA was intended to confer “sufficiently broad

power” on the Governor in order to enable her to respond to public disaster or crisis. It would be

inconsistent with this intent to find that “sufficiently broad power” to respond to matters of great

public crisis is constrained by contrived geographic limitations, as plaintiffs suggest. The Court

also notes that this “sufficiently broad” power granted by the Legislature references “the police

power of the state[.]” MCL 10.32. In general, the police power of the state refers to the state’s

inherent power to “enact regulations to promote the public health, safety, and welfare” of the

citizenry at large. See Blue Cross & Blue Shield of Mich v Milliken, 422 Mich 1, 73; 367 NW2d

1 (1985). It cannot be overlooked that the police power of the state, which undeniably pertains to

the state as a whole, see, e.g., Western Mich Univ Bd of Control v State, 455 Mich 531, 536; 565

NW2d 828 (1997), was given to a state official, the Governor, who possesses the executive power

of the entire state. See Const 1963, art 5, § 1. Plaintiffs’ attempts to read localized restrictions on

broad, statewide authority given to this state’s highest executive official are unconvincing.

The Act has a much broader application than plaintiffs suggest. The Act repeatedly uses

terms such as “great public crisis,” “public emergency,” “public crisis,” “public disaster,” and
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“public safety” when referring to the types of events that can give rise to an emergency declaration.

See MCL 10.31(1); MCL 10.32. These are not terms that suggest local or regional-only authority.

See Black’s Law Dictionary (11th ed) (defining public safety). See also Merriam-Webster Online

Dictionary, <https://www.merriam-webster.com/dictionary/public> (accessed May 11, 2020)

(defining “public” to mean “of, relating to, or affecting all the people of the whole area of a nation

or state”) (emphasis added). Taking these broad terms and imposing limits on them as plaintiffs

suggest would run contrary to MCL 10.32’s directive to broadly construe the authority granted to

the Governor under the EPGA. See Robinson v Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010)

(explaining that it is “well established that to discern the Legislature’s intent, statutory provisions

are not to be read in isolation; rather, context matters, and thus statutory provisions are to be read

as a whole.”). And in this context, it is apparent the EPGA employs broad terminology that

empowers the Governor to act for the best interests of all the citizens of this state, not just the

citizens of a particular county or region. It would take a particularly strained reading of the plain

text of the EPGA to conclude that a grant of authority to deal with a public crisis that affects all

the people of this state would somehow be constrained to a certain locality. Moreover, adopting

plaintiffs’ view would require the insertion into the EPGA of artificial barriers on the Governor’s

authority to act which are not apparent from the text’s plain language. To that end, even plaintiffs

would surely not quibble that the broad authority bestowed on the Governor under the act would

permit her to respond to an emergency situation that affected one county, or perhaps even multiple

counties. Under plaintiffs’ view, if that emergency became too large and it affected the entire

state, the Governor would have to pick and choose which citizens could be assisted by the powers

granted by the EPGA because, according to plaintiffs, rendering emergency assistance to the

state’s entire citizenry is not an option under the EPGA. While plaintiffs generally contend there
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are localized or regionalized limitations on the Governor’s authority under the EPGA, they do not

explain how to demarcate the precise geographic limitations on the Governor’s authority under the

EPGA—and this is for good reason: there are no such limitations.

In arguing for a contrary interpretation of the scope of the Governor’s authority under the

EPGA, plaintiffs selectively rely on parts of the statute and ignore the contextual whole. For

instance, they focus on the notion that a city or county official may apply for an emergency

declaration in order to support their assertion that the EPGA only applies to local or regional

emergency declarations. In doing so, plaintiffs ignore that the same sentence permitting local

officials to apply for an emergency declaration also authorizes two state officials—one of whom

is the Governor herself—to apply for or make an emergency declaration. See MCL 10.31(1).

Equally unpersuasive is plaintiffs’ fixation on the word “within” as it appears in MCL 10.31(1).

Plaintiffs note that MCL 10.31(1) permits the Governor to declare a state of emergency in response

to “great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state”

(emphasis added). According to plaintiffs, the use of the word “within” means that an emergency

can only be declared at a particular location within the state, and precludes the state of emergency

from being declared for the entire state. However, a common understanding of the word “within,”

including the same definition plaintiffs cite, demonstrates the flaw in plaintiffs’ position. The

word “within” is generally used “as a function word to indicate enclosure or containment.”

Merriam-Webster’s Online Dictionary, <https://www.merriam-webster.com/dictionary/within>

(accessed May 20, 2020). For instance, it can refer to “the scope or sphere of” something, such as

referring to that which is “within the jurisdiction of the state.” Id. In other words, the term “within”

refers to the jurisdictional bounds of the state. The authority to declare an emergency “within” the

state is, quite simply, the authority to declare an emergency across the entire state.
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Plaintiffs next argue that, when the EPGA is read together with the EMA, it is apparent

that the EPGA is not meant to address matters of statewide concern. In general, both the EPGA

and the EMA grant the Governor power to act during times of emergency. “Statutory provisions

that relate to the same subject are in pari materia and should be construed harmoniously to avoid

conflict.” Kazor v Dep’t of Licensing & Regulatory Affairs, 327 Mich App 420, 427; 934 NW2d

54 (2019). “The object of the in pari materia rule is to give effect to the legislative intent expressed

in harmonious statutes. If statutes lend themselves to a construction that avoids conflict, that

construction should control.” In re AGD, 327 Mich App 332, 344; 933 NW2d 751 (2019) (citation

and quotation marks omitted).

Here, when the EMA and the EPGA are read together, it is apparent that there is no conflict

between the two acts even though they address similar subjects. While plaintiffs are correct in

their assertion that the EMA contains more sophisticated management tools, that does not mean

that the EPGA is limited to local and regional emergencies only. Nor does the fact that both statues

apply to statewide emergencies mean that one act renders the other nugatory. Instead, the Court

can harmonize the two statutes, see In re AGD, 327 Mich App at 344, by recognizing that while

both statutes permit the Governor to declare an emergency, the EMA equips the Governor with

more sophisticated tools and options at her disposal. The use of these enhanced features comes at

some cost, however, because the EMA is subject to the 28-day time limit contained in MCL

30.405(3)-(4), whereas an emergency declaration under the less sophisticated EPGA has no end

date. Finally, plaintiffs’ contentions regarding a conflict between the EMA and the EPGA are

belied by MCL 30.417. That section of the EMA expressly states that nothing in the EMA was

intended to “Limit, modify, or abridge the authority of the governor to proclaim a state of

emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of
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the Michigan Compiled Laws . . . .” MCL 30.417(d). In other words, the EMA explicitly

recognizes the EPGA and it recognizes that the Governor possesses similar, but different, authority

under the EPGA than she does under the EMA.

Plaintiffs’ final attempt to assert that the EPGA was intended as a local or regional act is

to point to what they describe as the history of the EPGA. In general, the legislative history of an

act and the historical context of a statute can be considered by a court in ascertaining legislative

intent; however, these sources are generally considered to have little persuasive value. See, e.g.,

In re AGD, 327 Mich App 342 (generally rejecting legislative history as “a feeble indicator of

legislative intent and . . . therefore a generally unpersuasive tool of statutory construction”)

(citation and quotation marks omitted). Here, the history cited by plaintiffs is particularly

unpersuasive because, having reviewed the same, the Court concludes that it does not even address

or suggest the local limit plaintiffs attempt to impose on the EPGA. Nor have plaintiffs directed

the Court’s attention to a particular piece of history that expressly supports their claim; they instead

rely on mere generalities and anecdotal commentary. Finally, the EPGA presents no ambiguity

requiring explanation through extrinsic historical commentary.

In an alternative argument, plaintiffs argue that, assuming the Governor’s ability to act

under the EPGA gives her statewide authority, the executive orders issued pursuant to the EPGA

are nevertheless invalid. According to plaintiffs, the Governor’s exercise of lawmaking authority

under the orders runs afoul of separation of powers principles.

Plaintiffs’ constitutional challenge to the EPGA fares no better than their attempt to limit

the Act’s scope. This Court must, when weighing this constitutional challenge to the EPGA,

remain mindful that a statute must be presumed constitutional, “unless its constitutionality is
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readily apparent.” Mayor of Detroit v Arms Tech, Inc, 258 Mich App 48, 59; 669 NW2d 845

(2003) (citation and quotation marks omitted). Indeed, “[t]he power to declare a law

unconstitutional should be exercised with extreme caution and never where serious doubt exists

with regard to the conflict.” Council of Orgs & Others for Ed About Parochiaid, Inc v Governor,

455 Mich 557, 570; 566 NW2d 208 (1997).

Const 1963, art 3, § 2 declares that “[t]he powers of government are divided into three

branches: legislative, executive and judicial.” The Constitution dictates that “[n]o person

exercising powers of one branch shall exercise powers properly belonging to another branch except

as expressly provided in this constitution.” Id. The issue in this case concerns what plaintiffs have

alleged is an unconstitutional delegation of legislative power to the Governor. While the

Legislature cannot delegate its legislative power to the executive branch of government, the

prohibition against delegation does not prevent the Legislature “from obtaining the assistance of

the coordinate branches.” Taylor v Smithkline Beecham Corp, 468 Mich 1, 8; 658 NW2d 127

(2003) (citation and quotation marks omitted). As explained by our Supreme Court, “[c]hallenges

of unconstitutional delegation of legislative power are generally framed in terms of the adequacy

of the standards fashioned by the Legislature to channel the agency’s or individual’s exercise of

the delegated power.” Blue Cross & Blue Shield v Milliken, 422 Mich 1, 51; 367 NW2d 1 (1985).

In general, the Supreme Court has recognized three “guiding principles” to be applied in

non-delegation cases:

First, the act in question must be read as a whole; the provision in question should
not be isolated but must be construed with reference to the entire act. Second, the
standard should be as reasonably precise as the subject matter requires or permits.
The preciseness of the standard will vary with the complexity and/or the degree to
which subject regulated will require constantly changing regulation. The various
and varying detail associated with managing the natural resources has led to
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recognition by the courts that it is impractical for the Legislature to provide specific
regulations and that this function must be performed by the designated
administrative officials. Third, if possible the statute must be construed in such a
way as to render it valid, not invalid, as conferring administrative, not legislative
power and as vesting discretionary, not arbitrary, authority. [State Conservation
Dep’t v Seaman, 396 Mich 299, 309; 240 NW2d 206 (1976) (internal citations and
quotation marks omitted).]

Any discussion of plaintiffs’ non-delegation issue must acknowledge that the policy goals

and the complexity of issues presented under the EPGA do not concern ordinary, everyday issues.

Rather, as the title of the act and its various provisions reflect, the EPGA is only invoked in times

of emergency and of “great public crisis,” and when “public safety is imperiled[.]” MCL 10.31(1).

Hence, while the Governor’s powers are not expanded by crisis, the standard by which this Court

must view the standards ascribed to the delegation at issue must be informed by the complexities

inherent in an emergency situation. Blue Cross & Blue Shield, 422 Mich at 51; State Conservation

Dep’t, 396 Mich at 309.

With that backdrop, and when viewing the EPGA in its entirety, the Court concludes that

the Act contains sufficient standards and that it is not an unconstitutional delegation of legislative

authority. At the outset, MCL 10.31(1) provides parameters for when an emergency declaration

can be made in the first instance. The power to declare an emergency only arises 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 . . . .” Id. In addition, the statute provides a process for other officials, aside

from the Governor, to request or aid in assessing whether an emergency should be declared. See

id. (allowing input from “the mayor of a city, sheriff of a county, or the commissioner of the

Michigan state police”). Therefore, the EPGA places parameters and limitations on the Governor’s

power to declare a state of emergency in the first instance, which weighs against plaintiffs’
 18

position. Cf. Blue Cross & Blue Shield, 422 Mich at 52-53 (finding an unconstitutional delegation

of legislative authority where there were no guidelines provided to direct the pertinent official’s

response and where the power of the official was “completely open-ended.”).

Furthermore, the EPGA provides standards on what a Governor can, and cannot, do after

making an emergency declaration. As for what she can do, 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.” MCL

10.31(1) (emphasis added). The Legislature’s use of the terms “reasonable” and “necessary” are

not trivial expressions that can be cast aside as easily as plaintiffs would have the Court do. Rather

than being mere abstract concepts that fail to provide a meaningful standard, the terms

“reasonable” and “necessary” have historically proven to provide standards that are more than

amenable to judicial review. See, e.g., MCL 500.3107(1)(a) (describing, in the context of personal

injury protection insurance, “allowable expenses” that consist of “reasonable” charges incurred for

“reasonably necessary products, services and accommodations . . . .”). Thus, the Court rejects any

contention that these terms are too ambiguous to provide meaningful standards. See Klammer v

Dep’t of Transp, 141 Mich App 253, 262; 367 NW2d 78 (1985) (concluding that a delegation of

authority which permitted an administrative body to continue to employ an individual for such a

period of time as was “necessary” provided a sufficient standard, under the circumstances). See

also Blank v Dept’ of Corrections, 462 Mich 103, 126; 611 NW2d 530 (2000) (opinion by Kelly,

J.) (finding a constitutionally permissible delegation of authority, in part, based on the enabling

legislation constrained rulemaking authority to only those matters that were “necessary for the

proper administration of this act.”). Finally, in addition to the above standards, the EPGA goes on

to expressly list examples of that which a Governor can and cannot do under the EPGA. See MCL
 19

10.31(1) (providing a non-exhaustive, affirmative list of subjects on which an order may be

issued); MCL 10.31(3) (containing an express prohibition on orders affecting lawfully possessed

firearms). Accordingly, the EPGA contains some restrictions on the Governor’s authority and it

provides standards for the exercise of authority under the Act. 3

In sum, the Court concludes that plaintiffs’ challenges to the Governor’s authority to

declare a state of emergency under the EPGA and to issue Executive Orders in response to a

statewide emergency situation under the EPGA are meritless. Thus, and for the avoidance of

doubt, while the Court concludes that the Governor’s actions under the EMA were unwarranted—

see discussion below—the Court concludes that plaintiffs have failed to establish a reason to

invalidate Executive Orders that rely on the EPGA.

EXECUTIVE ORDER 2020-68 WAS NOT AUTHORIZED BY THE EMA

Turning next to the Governor’s orders issued pursuant to the EMA, the Court again notes

that the legitimacy of the initial declaration of emergency and disaster, Executive Order No. 2020-

04, is unchallenged in this case. The extension of that declaration under EO 2020-33 is likewise

agreed to be a legitimate exercise of gubernatorial power. This court is not asked to review the

scope of myriad emergency measures authorized under either declaration. The laser focus of this

case is the legitimacy of EO 2020-68, which re-declared a state of emergency and state of disaster

under the EMA only one minute after EO 2020-66 cancelled the same. The Legislature contends

that the issuance of EO 2020-68 was ultra vires, and this Court agrees.

3
The Court notes that Judge Kelly reached a similar conclusion, albeit in the context of denying a
motion for preliminary injunction, in the case of Mich United for Liberty v Whitmer, Docket No.
20-000061-MZ.
 20

The EMA allows circumvention of the traditional legislative process only under

extraordinary circumstances and for a finite period of time. Enacted in 1976, the EMA grants the

Governor sweeping powers to cope with “dangers to this state or the people of this state presented

by a disaster or emergency.” MCL 30.403(1). These powers include the authority to issue

executive orders and directives that have the force and effect of law. MCL 30.403(2). The

Governor may also, by executive order, “Suspend a regulatory statute, order, or rule prescribing

the procedures for conduct of state business, when strict compliance with the statute, order, or rule

would prevent, hinder, or delay necessary action in coping with the disaster or emergency.” MCL

30.405(1)(a). Additionally, the Governor may issue orders regarding the utilization of resources;

may transfer functions of state government; may seize private property—with the payment of

“appropriate compensation”—evacuate certain areas; control ingress and egress; and take “all

other actions which are which are necessary and appropriate under the circumstances.” See, e.g.,

MCL 30.405(1)(b)-(j). This power is indeed awesome.

The question presented is whether the Governor could legally, by way of Executive Order

2020-68, declare the exact states of emergency and disaster that she had, only one minute before,

terminated. The Legislature answer with an emphatic, “No,” and the Governor offers an equally

emphatic, “Yes.”

As with most contracts, the Legislature asserts that time is of the essence in the limits of

the extraordinary power afforded the executive under the EMA. The Act is replete with references

to timing. MCL 30.403 provides as follows:

The state of disaster shall continue until the governor finds that the threat or danger
has passed, the disaster has been dealt with to the extent that disaster conditions no
longer exist, or until the declared state of disaster has been in effect for 28 days.
After 28 days, the governor shall issue an executive order or proclamation
 21

declaring the state of disaster terminated, unless a request by the governor for an
extension of the state of disaster for a specific number of days is approved by
resolution of both houses of the legislature. An executive order or proclamation
issued pursuant to this subsection shall indicate the nature of the disaster, the area
or areas threatened, the conditions causing the disaster, and the conditions
permitting the termination of the state of disaster. [MCL 30.403(3) (emphasis
added).]

Later the act addresses the duration of a “state of emergency,” and its extension under MCL

30.403(4):

The state of emergency shall continue until the governor finds that the threat or
danger has passed, the emergency has been dealt with to the extent that emergency
conditions no longer exist, or until the declared state of emergency has been in
effect for 28 days. After 28 days, the governor shall issue an executive order or
proclamation declaring the state of emergency terminated, unless a request by the
governor for an extension of the state of emergency for a specific number of days
is approved by resolution of both houses of the legislature. An executive order or
proclamation issued pursuant to this subsection shall indicate the nature of the
emergency, the area or areas threatened, the conditions causing the emergency, and
the conditions permitting the termination of the state of emergency. [Emphasis
added.]

The limitation of 28 days is repeated multiple times. A state of emergency or disaster, once

declared, terminates no later than 28 days after being initially declared. The Governor can

determine that the emergent conditions have been resolved earlier than 28 days. Alternatively, the

Governor may ask the Legislature to extend the emergency powers for a period of up to 28 days

from the issuance of the extension. Nothing in Act precludes legislative extension for multiple

additional 28-day periods. In this case the Governor stated in EO 2020-66 that she expressly

terminated the previously issued states of emergency and disaster—not because the disaster or

emergency condition ceased to exist—but because a period of 28 days had expired. In fact, EO

2020-66, the order that terminated the states of disaster and emergency under the EMA, expressly

acknowledged that the emergency and/or disaster had not subsided and still remained In this

respect, EO 2020-66 complied with MCL 30.403(3) and (4)’s directives that the Governor “shall,”
 22

after 28 days, “issue an executive order or proclamation declaring” that the state of emergency

and/or disaster terminated.

However, the Governor argues that she may continue to exercise emergency powers under

the EMA without legislative authorization in this case. She argues that she has a duty and the

authority to do so because the Legislature failed to grant her the requested extension despite the

fact that the emergent conditions continued to exist.

Neither party to this case denies that the COVID-19 emergency was abated as of April 30.

No serious argument has been offered that had the Governor not issued EO 2020-68 that all of the

emergency measures authorized by EO-33 would have terminated with the signing of EO 2020-

66 on April 30 even if had the governor not vetoed SB 858, which purported to embody several of

the expiring Executive Orders and which would not have been effective until 90 days later because

the Legislature did not give that bill immediate effect. The Governor asserts she had a duty to act

to address the void. She argues that MCL 30.403(3) and (4) compelled her, upon the termination

of the states of emergency and disaster accomplished by way of time, to declare anew both states

of emergency and disaster within minutes. The Governor makes this argument by emphasizing

language in MCL 30.403(3) and (4) stating that, if the Governor finds that a disaster or emergency

occurs, then she “shall” issue orders declaring states of emergency or disaster. Thus, argues the

Governor, when the 28-day emergency and disaster declarations ended, but the disaster and

emergency conditions remained, the Governor was compelled, irrespective of legislative approval,

to re-declare states of emergency and disaster.

The EMA does not prohibit a governor from declaring multiple emergencies or disasters

during a term of office or even more than on disaster at the same time. Indeed, the collapse of the
 23

dam at the Tittabawassee River sparked the issuance of a separate state of emergency and disaster

during of this lawsuit. Clearly the collapse of the dam and the subsequent flooding was a new and

different circumstance from the COVID-19 pandemic. Returning to the instant case, it could also

be argued that the very fact that the Legislature had neither authorized the extension of the

emergency powers of the Governor under the EMA nor put in place measures to address the

emergent situation was itself a new emergency justifying gubernatorial action. However, the

“new” circumstance was occasioned not by a mutation of the disease into something such as

“COVID-20,” a precipitous spike in infection, or any other factor, except the Legislature’s failure

to grant an extension.

Thus, while the Governor emphasizes the directive that she “shall” declares states of

emergency and disaster, the Court concludes that the Governor takes these directives out of context

and renders meaningless the legislative extension set forth in MCL 30.403(3) and (4). The

Governor’s position ignores the other crucial “shall” in the statute. “After 28 days, the governor

shall issue an executive order or proclamation declaring the state of” disaster or emergency

terminated, “unless a request by the governor for an extension of the state of” disaster or

emergency “for a specific number of days is approved by resolution of both houses of the

legislature.” See MCL 30.403(3) (as to disasters); MCL 30.403(4) (as to emergencies). The

language employed here is mandatory: The Governor “shall” terminate the state of emergency or

disaster unless the Legislature grants a request to extend it. See Smitter v Thornapple Twp., 494

Mich 121, 136; 833 NW2d 785 (2013) (explaining that the term “shall” denotes a mandatory

directive). Stated otherwise, at the end of 28 days, the EMA contemplates only two outcomes: (1)

the state of emergency and/or disaster is terminated by order of the Governor; or (2) the state of

emergency/disaster continues with legislative approval. The only qualifier on the “shall terminate”
 24

language is an affirmative grant of an extension from the Legislature. There is no third option for

the Governor to continue the state of emergency and/or disaster on her own, absent legislative

approval. Nor does the statute permit the Governor to simply extend the same state of disaster

and/or emergency that was otherwise due to expire. To adopt the Governor’s interpretation of the

statute would render nugatory the express 28-day limit and it would require the Court to ignore the

plain statutory language. Whatever the merits of that might be as a matter of policy, that position

conflicts with the plain statutory language. The Governor’s attempt to read MCL 30.403(2) as

providing an additional, independent source of authority to issue sweeping orders would

essentially render meaningless MCL 30.405(1)’s directive that such orders only issue upon an

emergency declaration. It would also read into MCL 30.403(2) broad authority not expressed in

the subsection’s plain language. See Robinson, 486 Mich at 21 (explaining that, when it interprets

a statute, a reviewing court must “avoid a construction that would render part of the statute

surplusage or nugatory”) (citation and quotation marks omitted). See also United States Fidelity

& Guarantee Co v Mich Catastrophic Claims Ass’n, 484 Mich 1, 13; 795 NW2d 101 (2009) (“As

far as possible, effect should be given to every phrase, clause, and word in the statute.”). The

Court is not free to “pick and choose what parts of a statute to enforce,” see Sau-Tuk Indus, Inc v

Allegan Co, 316 Mich App 122, 143; 892 NW2d 33 (2016), yet that is precisely what the

Governor’s position has asked the Court to do. The language of MCL 30.403(3) and (4) requiring

legislative approval of an emergency or disaster declaration should not so easily be cast aside.

Finally, and contrary to the Governor’s argument, the 28-day limit in the EMA does not

amount to an impermissible legislative veto. See Blank v Dept’ of Corrections, 462 Mich 103,

113-114; 611 NW2d 530 (2000) (opinion by KELLY, J.) (declaring that, once the Legislature

delegates authority, it does not have the right to retain veto authority over the actions of the
 25

executive). The Governor’s characterization of the 28-day limit as a legislative veto is not

accurate. The 28-day limit is not legislative oversight or a “veto” of the Governor’s emergency

declaration; rather, it is a standard imposed on the authority so delegated. That is, the Governor is

afforded with broad authority under the EMA to make rules and to issue orders; however, that

authority is subject to a time limit imposed by the Legislature. The Legislature has not “vetoed”

or negated any action by the executive branch by imposing a temporal limit on the Governor’s

authority; instead, it limited the amount of time the Governor can act independently of the

Legislature in response to a particular emergent matter.

CONCLUSION

IT IS HEREBY ORDERED that the relief requested in plaintiffs’ motion for immediate

declaratory judgment is DENIED. While the Governor’s action of re-declaring the same

emergency violated the provisions of the EMA, plaintiffs’ challenges to the EPGA and the

Governor’s authority to issue Executive Orders thereunder are meritless.

This order resolves the last pending claim and closes the case.

Dated: May 21, 2020 ________________________________