House of Representatives & Senate v. Governor

• Decision Date: 21 August 2020
• Docket Number: No. 353655,353655
• Citation: House of Representatives & Senate v. Governor, 333 Mich.App. 325, 960 N.W.2d 125 (Mich. App. 2020)
• Parties: HOUSE OF REPRESENTATIVES AND SENATE, Plaintiffs-Appellants/Cross-Appellees, and John F. Brennan, Mark Bucchi, Samuel H. Gun, Martin Leaf, and Eric Rosenberg, Cross-Appellants, v. GOVERNOR, Defendant-Appellee/Cross-Appellant/Cross-Appellee.
• Court: Court of Appeal of Michigan

333 Mich.App. 325

960 N.W.2d 125

HOUSE OF REPRESENTATIVES AND SENATE, Plaintiffs-Appellants/Cross-Appellees, and John F. Brennan, Mark Bucchi, Samuel H. Gun, Martin Leaf, and Eric Rosenberg, Cross-Appellants, v. GOVERNOR, Defendant-Appellee/Cross-Appellant/Cross-Appellee.

No. 353655

Court of Appeals of Michigan.

Submitted August 4, 2020, at Detroit.

Decided August 21, 2020, at 9:00 a.m.

Bush Seyferth PLLC (by Patrick G. Seyferth, Stephanie A. Douglas, Susan M. McKeever, Michael R. Williams, Troy, and Frankie A. Dame ), Hassan Beydoun, and William R. Stone, Troy, for the Michigan House of Representatives and the Michigan Senate.

John F. Brennan, St. Clair Shores, Samuel H. Gun, Sylvan Lake, Mark P. Bucchi, Troy, Martin Leaf, West Bloomfield, and Eric Rosenberg in propriis personis.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, B. Eric Restuccia, Deputy Solicitor General, Christopher M. Allen, Assistant Solicitor General, and Joseph T. Froehlich, Joshua Booth, and John Fedynsky, Assistant Attorneys General, for the Governor

Pentiuk, Couvreur & Kobiljak, PC, Wyandotte (by Kerry Lee Morgan and Randall A. Pentiuk ) and Gerald R. Thompson, Novi, for the LONANG Institute, amicus curiae.

Samuel R. Bagenstos and Nathan Triplett for Democratic Leader Christine Greig and the Democratic Caucus of the Michigan House of Representatives, amici curiae.

Professor Richard Primus in propria persona.

Allison V. Paris and John Wm. Mulcrone for the Democratic Caucus of the Michigan Senate, amicus curiae.

Katherine L. Henry in propria persona.

Kaplan Hecker & Fink LLP (by Joshua Matz, Raymond P. Tolentino, Jonathan R. Kay, and Mahrah M. Taufique) and Fagan McManus, PC, Royal Oak (by Jennifer L. McManus) for Michigan Epidemiologists, amicus curiae.

Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) and Matthew E. Gronda, Saginaw, for Michigan United for Liberty, amicus curiae.

Barris, Sott, Denn & Driker, PLLC, Detroit, (by Todd R. Mendel and Eugene Driker ) and Patterson Belknap Webb and Tyler LLP (by Steven A. Zalesin and Ryan J. Sheehan ) for the Michigan Nurses Association and 30 Michigan healthcare professionals, amici curiae.

Before: Markey, P.J., and K. F. Kelly and Tukel, JJ.

Markey, P.J. Plaintiffs, the Michigan House of Representatives and the Michigan Senate (the Legislature), appeal by right the opinion and order of the Court of Claims granting a declaratory judgment in favor of defendant, the Governor of Michigan, with respect to the Governor's authority to extend a state of emergency and to issue associated executive orders (EOs) under the emergency powers of the governor act (EPGA), MCL 10.31 et seq. The Court of Claims additionally concluded, however, that actions taken by the Governor under the Emergency Management Act (EMA), MCL 30.401 et seq. , were ultra vires. The Governor has filed a cross-appeal in regard to that ruling and also takes issue with the determination by the Court of Claims that the Legislature had standing to file suit and seek declaratory relief. Prospective intervenors John F. Brennan, Mark Bucchi, Samuel H. Gun, Martin Leaf, and Eric Rosenberg, all of whom are attorneys, cross-appeal the denial of their motion to intervene in this lawsuit. Proceeding on the assumption that the Legislature has standing to sue, we hold that the Governor's declaration of a state of emergency, her extension of the state of emergency, and her issuance of related EOs fell within the scope of the Governor's authority under the EPGA. We further hold that the EPGA is constitutionally sound. We therefore decline to address whether the Governor was additionally authorized to take those same measures under the EMA and whether the Governor violated the EMA: those matters are moot. Finally, we hold that there is no basis to reverse the order of the Court of Claims denying the motion to intervene. In sum, we affirm on the issues necessary to resolve this appeal.

I. PREFACE

This case arises out of a worldwide pandemic involving the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes the disease known as COVID-19. In an effort to combat the spread of COVID-19 in Michigan, the Governor declared and extended a state of emergency and issued numerous EOs in connection with the emergency. This lawsuit stems from a dispute between the Governor and the Legislature regarding the scope of the Governor's authority to issue, implement, and extend those emergency-based EOs. We are not called upon, nor is it our role, to examine and resolve issues concerning the nature of COVID-19, the data related to the disease, the statistical or human impact of COVID-19 on Michiganders, whether emergency circumstances justifying the EOs existed, or the appropriateness of the measures the Governor has taken in tackling COVID-19. Rather, we are presented with pure procedural and legal issues, including whether the Legislature had standing to bring suit against the Governor, whether the Governor's declarations and orders exceeded her constitutional and statutory authority, whether the EPGA violates the separation-of-powers and attendant nondelegation doctrine, and whether the prospective intervenors were entitled to intervene in the suit.

II. CONSTITUTIONAL AND STATUTORY FRAMEWORK

In Michigan, "[t]he powers of government are divided into three branches: legislative, executive and judicial." Const. 1963, art. 3, § 2. And "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Id. "[T]he legislative power of the State of Michigan is vested in a senate and a house of representatives." Const. 1963, art. 4, § 1. "[T]he executive power is vested in the governor." Const. 1963, art. 5, § 1.

In 1945, the Legislature enacted the EPGA. 1945 PA 302. The EPGA was later amended by 2006 PA 546. Section 1 of the EPGA, codified at MCL 10.31, currently provides:

(1) During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.

(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.

(3) Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.

Notably, MCL 10.31 does not provide any active role for the Legislature during a public emergency, let alone the power to directly act as a check against a governor's exercise of authority under the EPGA. Our Supreme Court has recognized that "the emergency powers granted to the Governor by PA 1945, No. 302 are exclusive[.]" Walsh v. River Rouge , 385 Mich. 623, 640, 189 N.W.2d 318 (1971). With respect to the EPGA, the Legislature expressly articulated its intent, explaining:

It is hereby declared to be the legislative intent 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. The provisions of this act shall be broadly construed to effectuate this purpose. [ MCL 10.32 (emphasis added).]

A violation of any order, rule, or regulation promulgated by a governor under the EPGA is punishable as a misdemeanor if the order, rule, or regulation expressly states that a violation constitutes a misdemeanor. MCL 10.33.

A little over 30 years later, the Legislature enacted the EMA. 1976 PA 390. The EMA has been amended a couple of times since its inception. See 1990 PA 50; 2002 PA 132. Section 3 of the EMA, MCL 30.403, now provides:

(1) The governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.

(2) The governor may issue executive orders, proclamations, and directives having the force and effect of law to implement this act.... [A]n executive order, proclamation, or directive may be amended or rescinded by the governor.

(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster ^[1] has occurred or the threat of a disaster exists. The state of disaster shall continue

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