Analysis: 25% Of Lawsuits Challenging EOs Failed
December 15, 2020
An estimated 25% of the more than 50 lawsuits challenging the governor’s now-defunct executive orders (EO) and/or Department of Health and Human Services (DHHS) emergency orders issued during the pandemic have failed.
Court records show an additional 37% were dismissed — either voluntarily by the plaintiffs or through an agreement between the plaintiffs and state. Gov. Gretchen Whitmer’s administration arguably lost two, roughly 4%, and the remaining 33% are still somewhere in the judicial pipeline.
There remains pending at least six lawsuits challenging DHHS Director Robert Gordon’s orders issued after the Michigan Supreme Court (MSC) held that the 1945 Emergency Powers of the Governor Act (EPGA) was unconstitutional — a ruling that invalidated Whitmer’s EOs.
Gordon’s subsequent orders mirrored those now defunct EOs and Michigan residents and businesses continue to challenge the legitimacy of such orders.
The most recent suit, filed in the Court of Claims by Thunderbowl Entertainment in Bloomfield Hills, seeks an order allowing bowling alleys to reopen.
“If anyone had asked me, my advice would be the law is pretty clear — you’re not likely to prevail,” Steven Liedel, a Lansing managing member at Dykema who specializes in state constitutional law, told MIRS. “The Constitution provides for the enactment of law related to public health and emergencies. The Legislature has done so and the administration has proceeded in a manner consistent with those laws.
“Just because you don’t like something doesn’t mean you have a right to have a court undo it,” added the former legal counsel to Democratic Gov. Jennifer Granholm.
According to court records, there have been 11 Court of Claims lawsuits and 40 federal suits challenging EOs or DHHS emergency orders. Those numbers include lawsuits filed by political candidates who used the EO restrictions, in particular the stay-at-home mandate, as reasons they couldn’t make the ballot.
Outside of the Oct. 2 decision that invalidated the 1945 Riot Act, the Whitmer administration’s only other debatable loss was when congressional candidate Eric Esshaki was able to change the signature requirement rules so he could make the ballot.
There currently are six pending lawsuits regarding DHHS orders, but not all have seen legal action yet.
U.S. District Judge Paul Maloney denied a preliminary injunction request in one, Michigan Restaurant & Lodging Association v. Gordon, which the judge likely will certify to the MSC as he’s asked the parties for briefs and has written the questions himself. A hearing is set for 1:30 p.m. Thursday.
If Maloney sends the case to the MSC, it will be the second time he’s done so regarding pandemic-related lawsuits.
In June, Maloney asked the state’s highest court to weigh in on a suit filed by medical centers, led by Midwest Institute of Health.
Whitmer’s big loss was when the Supreme Court ruled that the Governor’s EOs were based off the 1945 Riot Act, which they ruled was unconstitutional. Republicans clearly see this as a win for their side, but Liedel disagreed.
Liedel said the governor has a constitutional duty to enforce the law and at the time of her EOs she enacted the law as it stood and the MSC ruling wasn’t a ruling that Whitmer’s EOs exceeded her authority, but rather was a ruling against the 1945 Legislature’s act.
“I view it as a loss to the Legislature,” he said. “The administration has had access to the tools and when they asked the Legislature to grant other tools, the Legislature hasn’t acted. What else is a governor to do when charged with executing laws?”
The Legislature gave similar power to the DHHS when it enacted the Public Health Code. Power bestowed upon the department’s director was expanded during the H1N1 flu.
“If the Legislature doesn’t like how it’s operated, their remedy is to change the law,” Liedel said.
The Senate is trying, voting along party lines Thursday to limit DHHS emergency orders to 28 days — the same time provided in the 1976 Emergency Management Act — which gives a governor broad emergency powers, but requires Legislative approval to continue a state of emergency beyond 28 days.
The 1945 EPGA had no time limit on how long an emergency declared by a governor can last and it lacked a role for the Legislature.
However, there has been some success nationwide as courts in New York and Wisconsin have placed some restrictions on their respective governors’ actions.
The U.S. Supreme Court reportedly has only once overturned the power of an executive when it ruled Nov. 25 in Roman Catholic Diocese of Brooklyn, New York, v. Cuomo that New York Gov. Andrew Cuomo couldn’t enforce his EO restricting religious services during the pandemic to 25 persons.
“The general rule,” Liedel noted, “is these actions, for the most part, have been upheld. That’s why you have mandates and restrictions in other states.”