Does not make sense. Emergency Management Act of 1945 is no longer relevant because of the updated provision that was passed in 1976?
The appeals court “judge” is a Democrat, so “Resistance”.
Judges do as they wish; doesn’t have to make sense.
The thing that “non lawyers” don’t get about the “Rule of Law” is that it is totally outcome oriented. There are enough precedents and laws on the books, combined with crap for reasoning, that a judge can get any outcome and justify it.
Does not make sense. Emergency Management Act of 1945 is no longer relevant because of the updated provision that was passed in 1976?
Maybe it does not make sense, but does it harmonize? Judge Stephens says the two Acts can be harmonized. Michigan law should come with Xanax or something. I did find the Opinion and the relevant documents.
The judge, Cynthia Diane Stephens, finds that Governor Whitmer violated the time limited Emergency Management Act (EMA) of 1976, but not the time unlimited Emergency Powers of Governor Act (EMGA) of 1945, and that the two Acts can be harmonized.
At issue is whether the 1945 EMGA applies to the Coronavirus pandemic or public health event, and does it apply to a state-wide area, and whether the legislative refusal to extend the state of emergency prevails.
http://legislature.mi.gov/doc.aspx?mcl-Act-302-of-1945
1 page
EMERGENCY POWERS OF GOVERNORAct 302 of 1945
AN ACT authorizing the governor to proclaim a state of emergency, and to prescribe the powers and duties of the governor with respect thereto; and to prescribe penalties.
History: 1945, Act 302, Imd. Eff. May 25, 1945
Full document:
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http://legislature.mi.gov/doc.aspx?mcl-act-390-of-1976
EMERGENCY MANAGEMENT ACTAct 390 of 1976
AN ACT to provide for planning, mitigation, response, and recovery from natural and human-made disaster within and outside this state; to create the Michigan emergency management advisory council and prescribe its powers and duties; to prescribe the powers and duties of certain state and local agencies and officials; to prescribe immunities and liabilities; to provide for the acceptance of gifts; and to repeal acts and parts of acts.
History: 1976, Act 390, Imd. Eff. Dec. 30, 1976 ;-- Am. 1990, Act 50, Imd. Eff. Apr. 6, 1990 ;-- Am. 2006, Act 267, Imd. Eff. July 7, 2006
23 pages
Full document:
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https://assets.documentcloud.org/documents/6922315/20-0000079-MZ-Signed-Opinion-Ord-Sec.pdf
COURT OPINIONSTATE OF MICHIGAN
COURT OF CLAIMS
MICHIGAN HOUSE OF REPRESENTATIVES and MICHIGAN SENATE
v.
GOVERNOR GRETCHEN WHITMEROPINION AND ORDER
Case No. 20-000079-MZ
Hon. Cynthia Diane Stephens
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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2
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 emergency1 as well as a state of disaster2 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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3
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] 11 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.
[snip]
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https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-527716--,00.html
Executive Order 2020-68 (COVID-19)EXECUTIVE ORDER
No. 2020-68
Declaration of states of emergency and disaster under
the Emergency Management Act, 1976 PA 390
On March 10, 2020, I issued Executive Order 2020-4, which declared a state of emergency in Michigan to address the COVID-19 pandemic. This new disease, caused by a novel coronavirus not previously identified in humans, can easily spread from person to person and can result in serious illness or death. There is currently no approved vaccine or antiviral treatment.
[...]
https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-527717--,00.html
Executive Order 2020-67 (COVID-19)EXECUTIVE ORDER
No. 2020-67
Declaration of state of emergency under the
Emergency Powers of the Governor Act, 1945 PA 302
On March 10, 2020, I issued Executive Order 2020-4, which declared a state of emergency in Michigan to address the COVID-19 pandemic. This new disease, caused by a novel coronavirus not previously identified in humans, can easily spread from person to person and can result in serious illness or death. There is currently no approved vaccine or antiviral treatment.
[...]