Midwest Inst. of Health, PLLC v. Governor of Mich. (In re Certified Questions from the U.S. Dist. Court)

Decision Date02 October 2020
Docket NumberNo. 161492,161492
Citation958 N.W.2d 1,506 Mich. 332
Parties IN RE CERTIFIED QUESTIONS FROM the UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION Midwest Institute of Health, PLLC, d/b/a Grand Health Partners, Wellston Medical Center, PLLC, Primary Health Services, PC, and Jeffery Gulick, Plaintiffs, v. Governor of Michigan, Michigan Attorney General, and Michigan Department of Health and Human Services Director, Defendants.
CourtMichigan Supreme Court

Miller Johnson, Grand Rapids (by James R. Peterson, Stephen J. van Stempvoort, and Amy E. Murphy ) and the Mackinac Center Legal Foundation (by Patrick J. Wright ) for Midwest Institute of Health, PLLC; Wellston Medical Center, PLLC; Primary Health Services, PC, and Jeffery Gulick.

B. Eric Restuccia, Deputy Solicitor General, Christopher M. Allen, Assistant Solicitor General, and Joseph T. Froehlich, Joshua Booth, John Fedynsky, and Kyla Barranco, Assistant Attorneys General, for the Governor and the Department of Health and Human Services Director.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Ann M. Sherman, Deputy Solicitor General, and Rebecca A. Berels, Assistant Attorney General, for the Attorney General.

Pentiuk, Couvreur & Kobiljak, PC, Wyandotte (by Kerry L. Morgan and Randall A. Pentiuk ) and Gerald R. Thompson for the LONANG Institute, Amicus Curiae.

Katherine L. Henry for Restore Freedom, PC, Amicus Curiae.

Samuel R. Bagenstos and Nathan Triplett for the House Democratic Leader and the House Democratic Caucus, Amici Curiae.

Fagan McManus, PC (by Jennifer L. McManus) and Kaplan Hecker & Fink LLP (by Joshua Matz, Raymoud P. Tolentino, Jonathan R. Kay, and Mahrah M. Taufique) for Michigan Epidemiologists, Amicus Curiae.

Richard Primus in propria persona, 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, Amicus Curiae.

Lipson Neilson PC, Bloomfield Hills (by C. Thomas Ludden ), Jonathon P. Hauenschild, and Bartlett D. Cleland for the American Legislative Exchange Council, Amicus Curiae.

Rhoades McKee PC, Grand Rapids (by Ian A. Northon ) for the Election Integrity Fund, Amicus Curiae.


Markman, J.

This case concerns the nature and scope of our state's public response to one of the most threatening public-health crises of modern times. In response to a global, national, and state outbreak of the severe acute respiratory disease

named COVID-19, Michigan's Governor has issued a succession of executive orders over the past six months limiting public and private gatherings, closing and imposing restrictions upon certain businesses, and regulating a broad variety of other aspects of the day-to-day lives of our state's citizens in an effort to contain the spread of this contagious and sometimes deadly disease.

The ongoing validity of these executive orders has been the subject of much public debate as well as litigation in both state and federal courts. In the interest of comity, the United States District Court for the Western District of Michigan has asked this Court to resolve critical questions concerning the constitutional and legal authority of the Governor to issue such orders. We hereby respond to the federal court in the affirmative by choosing to answer the questions the federal court has certified, concluding as follows: first, the Governor did not possess the authority under the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq. , to declare a "state of emergency" or "state of disaster" based on the COVID-19 pandemic after April 30, 2020; and second, the Governor does not possess the authority to exercise emergency powers under the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq. , because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution. Accordingly, the executive orders issued by the Governor in response to the COVID-19 pandemic now lack any basis under Michigan law.1


The coronavirus (COVID-19) is a respiratory disease that can result, and has resulted, in significant numbers of persons suffering serious illness or death. In response to COVID-19, on March 10, 2020, one day before it was declared a pandemic by the World Health Organization, the Governor issued Executive Order (EO) No. 2020-04, declaring a "state of emergency" under the EPGA and the EMA. On March 20, 2020, the Governor issued EO 2020-17, which prohibited medical providers from performing nonessential procedures. On March 23, 2020, she issued EO 2020-21, which ordered all residents to stay at home with limited exceptions. On April 1, 2020, she issued EO 2020-33, which declared a "state of emergency" under the EPGA and a "state of emergency" and "state of disaster" under the EMA. She then requested that the Legislature extend the state of emergency and state of disaster by 70 days, and a resolution was adopted, extending the state of emergency and state of disaster, but only through April 30, 2020. Senate Concurrent Resolution No. 2020-24.

On April 30, 2020, the Governor issued EO 2020-66, which terminated the declaration of a state of emergency and state of disaster under the EMA. But, immediately thereafter, she issued EO 2020-67, which provided that a state of emergency remained declared under the EPGA. At the same time, she issued EO 2020-68, which redeclared a state of emergency and state of disaster under the EMA.2 Although the Governor subsequently lifted the ban on nonessential medical procedures, she then issued EO 2020-97, which imposed numerous obligations on healthcare providers, including specific waiting-room procedures, limitations on the number of patient appointments, adding special hours for highly vulnerable patients, and establishing enhanced telehealth and telemedicine procedures.3

Plaintiffs in the underlying federal case are healthcare providers that were prohibited from performing nonessential procedures while EO 2020-17 was in effect and a patient who was prohibited from undergoing knee-replacement surgery. Defendants are the Governor, the Attorney General, and the Director of the Michigan Department of Health and Human Services.

Although EO 2020-17 has been rescinded, the federal district court held that the case is not moot because at that time EO 2020-114 (now EO 2020-184) continued to impose restrictions on healthcare providers. After the federal district court decided to certify the questions to this Court, defendants moved for reconsideration, raising--for the first time--Eleventh Amendment immunity. The federal district court denied this motion and held that defendants had waived such immunity by not timely raising it in either the principal briefs of their motions to dismiss or in their initial responses to the court's invitation to brief the propriety of certification to this Court. Defendants appealed that ruling, and the matter remains pending in the United States Court of Appeals for the Sixth Circuit.

The federal district court has asked this Court to address two certified questions: (1) whether, under the EMA or the EPGA, the Governor has had the authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic; and (2) whether the EPGA and/or the EMA violate the Separation of Powers and/or the Nondelegation Clauses of the Michigan Constitution. We heard oral argument on these questions on September 9, 2020.


"Matters of constitutional and statutory interpretation are reviewed de novo." People v. Skinner , 502 Mich. 89, 99, 917 N.W.2d 292 (2018). " [S]tatutes are presumed to be constitutional, and we have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.’ " Id. at 100, 917 N.W.2d 292, quoting In re Sanders , 495 Mich. 394, 404, 852 N.W.2d 524 (2014), in turn citing Taylor v. Gate Pharm. , 468 Mich. 1, 6, 658 N.W.2d 127 (2003).


MCR 7.308(A)(2)(a) provides:

When a federal court, another state's appellate court, or a tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Court.

MCR 7.308(A)(5) provides:

The Supreme Court may deny the request for a certified question by order, issue a peremptory order, or render a decision in the ordinary form of an opinion to be published with other opinions of the Court. The clerk shall send a paper copy or provide electronic notice of the Court's decision to the certifying court.

Defendants argue that we should not answer the certified questions, both because the case is moot4 and because defendants are entitled to Eleventh Amendment immunity.5 The federal district court held that the case is not moot because although nonessential medical procedures are no longer prohibited, plaintiffs remain subject to many restrictions, including in particular those pertaining to the number of appointments they can schedule on a daily basis. The federal district court also held that defendants had waived Eleventh Amendment immunity by waiting to raise this issue until their motion for reconsideration.

We agree with plaintiffs that this Court should not address--much less second-guess--the federal district court's decision to certify certain questions to this Court and not to certify others. Both mootness and Eleventh Amendment immunity are matters that fall within the jurisdiction of the federal courts, and neither matter is included within the federal court's certified questions. And those matters this Court is best equipped to answer are precisely those the federal court has certified. Therefore, those are...

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