Federal judge asks Michigan Supreme Court to clarify Whitmer's emergency powers

A federal judge asked the Michigan Supreme Court Thursday to clarify whether Gov. Gretchen Whitmer has the authority to continue issuing or renewing executive orders under either of the two state laws that govern her emergency powers. 

The request came on the same day that Whitmer extended Michigan's state of emergency through July 16.

The judge's order stems from a federal lawsuit by a Grand Rapids medical center filed against Whitmer's order banning non-essential procedures, but the root questions raised by U.S. District Judge Paul Maloney closely mirror those argued by the Michigan Legislature.

The federal and state lawsuits are seeking answers to whether state law allowed for the governor's emergency powers to continue after April 30, even without legislative approvals, and whether the emergency laws giving Whitmer virtually limitless authority violate the separation of powers between the governor and Legislature in Michigan's Constitution.

The Legislature and Whitmer, in a separate lawsuit, recently tried to bypass the Michigan Court of Appeals and get the state's high court to address similar questions regarding the governor's emergency powers. But in a 4-3 vote, the justices rejected the request and sent the case first to the Court of Appeals where oral arguments are set to begin in August. 

Maloney's Thursday opinion certifies the two questions to the Michigan Supreme Court, which can  rule on the questions or ignore them. 

"Rather than interpret a novel question of state law for the first time — particularly a question of state law that might affect every citizen in the state of Michigan — this court turns to the ultimate authority on what Michigan law is: the Michigan Supreme Court," wrote Maloney, an appointee of former President George W. Bush.

A federal judge may certify a question to the high court when there is a legal issue or term that arises in federal litigation but depends on state law for its meaning, said Justin R. Long, an associate professor at Wayne State University Law School.

If Michigan's high court gives an answer, the federal judge can use it to decide his or her case, but it also becomes solidified as state law, Long said.  

The process of certification is more likely to occur "when the federal judges feels it’s a question especially important to the state, whether that’s a question of the powers of different branches in the state or a particularly controversial question," he said. 

Certification is uncommon, but not extraordinary, Long said, adding that it likely happens nationwide about "a dozen times a year." 

Typically, Long said, "state high courts are much more likely to grant a federal judge’s request to decide something like this than they are to accept an appeal from a lower court."

The questions in Maloney's courtroom arise from a case filed by several health care providers that challenged Whitmer's executive order banning non-essential medical procedures.

In their lawsuit, the health care providers argued that Whitmer did not have the authority to issue the executive order under the 1945 Emergency Powers of the Governor Act or the 1976 Emergency Management Act. 

They also argue that both those laws, by giving Whitmer limitless emergency authority, violate the separation of powers and delegation of duties between the governor and Legislature. 

While the ban on non-essential procedures has been lifted, Whitmer's executive orders still apply to the medical centers because they now require the businesses to comply with new workplace safety requirements, Maloney said. 

But for the federal court to decide the case, the state law issues must be resolved and the Michigan Supreme Court is "the final arbiter on matters of state law," the federal judge said. 

"...the guidance sought today prevents this court from overstepping its role, eliminates the risk that this court interprets the relevant state law differently than the Michigan Supreme Court might and eliminates the risk of conflicting federal and state decisions," Maloney wrote. 

In May, Court of Claims Judge Cynthia Stephens ruled in the Legislature's lawsuit that Whitmer had the legal authority to extend Michigan's state of emergency under the 1945. 

But she ruled Whitmer exceeded her authority under the 1976 law, which requires Legislative approval for an extension after the initial 28-day emergency has expired.

eleblanc@detroitnews.com