House of Representatives v. Governor

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

HOUSE OF REPRESENTATIVES and SENATE, FOR PUBLICATION
August 21, 2020
Plaintiffs-Appellants/Cross-Appellees,
and

JOHN F. BRENNAN, MARK BUCCHI, SAMUEL
H. GUN, MARTIN LEAF, and ERIC ROSENBERG,

Cross-Appellants,

v No. 353655
Court of Claims
GOVERNOR, LC No. 20-000079-MZ

Defendant-Appellee/Cross-
Appellant/Cross-Appellee.

Before: MARKEY, P.J., and K. F. KELLY and TUKEL, JJ.

TUKEL, J. (concurring in part and dissenting in part).

INTRODUCTION

I agree with the majority’s decision that the Court of Claims properly denied the motion
for intervention. I disagree, however, with the remainder of the majority’s opinion. The U.S.
Supreme Court “consistently has given voice to, and has reaffirmed, the central judgment of the
Framers of the Constitution that, within our political scheme, the separation of governmental
powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta v
United States, 488 US 361, 380; 109 S Ct 647; 102 L Ed 2d 714 (1989) (citations omitted).

Our Michigan Constitution broadly follows the same parameters, and has done so in similar
terms since before statehood in 1837. Under our law, “The powers of government are divided into
three branches: legislative, executive and judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another branch except as expressly provided in this
constitution.” Const 1963, art 3, § 2,” (Separation of Powers of Government.); see also Nat’l
Wildlife Federation v Cleveland Cliffs Iron Co, 471 Mich 608, 613, 684 NW2d 800 (2004) (“By
separating the powers of government, the framers of the Michigan Constitution sought to disperse
governmental power and thereby to limit its exercise.”), overruled on other grounds by Lansing
Sch Ed Ass’n v Lansing Bd of Ed 487 Mich 349, 792 NW2d 686 (2010).1

Under that tripartite approach, “the legislative power of the State of Michigan is vested in
a senate and a house of representatives,” Const 1963, art 4, § 1; “the executive power is vested in
the governor,” id. at art 5, § 1 (“Executive power.”); and “the judicial power of the state is vested
exclusively in one court of justice which shall be divided into one supreme court, one court of
appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and
courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members
elected to and serving in each house,” id. at art 6, § 1 (“Judicial power in court of justice;
divisions.”), except “to the extent limited or abrogated by article 4, section 6 or article 5, section
2,” an exception which applies to each of the three branches.2

This case involves the scope of those executive and legislative powers; the questions
presented are whether the Legislature, in the 1945 Emergency Powers of Governor Act (hereinafter
the “EPGA”);3 and the 1976 Emergency Management Act (hereinafter, the “EMA”),4 authorized
a governor to rule on an emergency basis without any durational limit; and whether, if the
Legislature did give such authority, its delegation of that power was constitutional. The case
comes to us under executive orders issued by Governor Gretchen Whitmer relating to the current
pandemic involving Covid 19. The executive orders, which have evolved over time, have in
various iterations significantly restricted the liberties of all Michigan citizens in many ways,
imposing broad economic and travel restrictions; setting forth mandatory stay-at-home orders; and
promulgating many other regulations. The executive orders are backed by criminal sanctions,
which provide that persons who violate them are subject to the misdemeanor penalties of the
EPGA, see MCL 10.33, and the EMA, see MCL 30.305(3). Those orders, and the associated

1
Our first constitution, in 1835, preceded statehood but nonetheless provided that “[t]he powers
of the government shall be divided into three distinct departments; the Legislative, the Executive
and the Judicial; and one department shall never exercise the powers of another, except in such
cases as are expressly provided for in this constitution.” Const 1835, art 3, § 1; and that “The
legislative power shall be vested in a Senate and House of Representatives.” Id. at art 4, § 1.
Almost identical provisions have been enacted in our three subsequent constitutions, including the
current one. See Const 1850, art 4, § 1; Const 1908, art 5, § 1; Const 1963, art 3, § 2.
2
That exception is not at issue here. Article 3, section 6 involves the authority of the governor to
reorganize principal departments, and places a limit of 20 on the number of such departments;
Article 5, section 2 involves a citizen’s redistricting commission.
3
1945 PA 302 as amended, codified at MCL 10.31 et seq.
4
1976 PA 390 as amended, codified at MCL 30.410 et seq.

2
criminal penalties, were imposed solely by executive order of the governor, bypassing the normal
legislative process.5

The Governor asserts that her authority under the EPGA is essentially unlimited in scope
and duration. The executive orders thus implicate statutory interpretation involving the interplay
between the EPGA and the EMA, given that the later-enacted EMA provides that the governor’s
authority to issue such an executive order expires at the end of 28-days if not approved by both
houses of the Legislature; the case also presents the question of whether, if the Legislature did
grant such broad authority to the governor, such legislation was constitutional. And the Governor
asserts that the Legislature lacks standing to bring the instant suit challenging the executive orders.
All of those questions take place against a backdrop that no Governor ever has asserted such
unbridled authority outside the normal and constitutionally-sanctioned legislative process.6

Ultimately, I believe the questions presented here yield a clear answer on statutory terms:
the EPGA and the EMA, properly construed in pari materia, do not each stand on their own, as
the Governor asserts and the majority holds; rather, at least in a case such as this involving an
“epidemic,” and for reasons discussed more fully in this opinion, the EMA’s 28-day time limit
controls. For reasons properly found by the Court of Claims, the Legislature has standing to bring

5
Various iterations of the orders have relied on different authorities. Executive Order 2020-67
invoked the Governor’s Constitutional authority under Const. 1963 Art. 5, § 1 and the EPGA;
Executive Order 2020-68 invoked the Governor’s Constitutional authority and the EMA, declaring
both a state of emergency and a state of disaster under the EMA. See generally Part III of this
opinion. Ultimately, the analysis in this opinion does not rest on which statute the Governor relied
upon in any particular order, because the statutes are to be interpreted in pari materia, and thus
both are at issue. See generally Part III of this opinion.
6
It also is worth noting what is not at issue in this case, principally whether Covid 19 is an
extremely dangerous public health challenge which must be addressed by government; clearly it
is. The question thus is not whether actions should be taken by government, but rather how they
should be taken—by unlimited executive fiat, or through constitutional methods in place since
before statehood. We also do not weigh any particular policy prescription set forth by the
Governor or the Legislature. Rather, the correct resolution turns on constitutional text; legislative
language which expresses the Legislature’s policy determinations, and legislative intent based on
such language; all as filtered through well-established canons of construction which dictate how
we view and interpret legal authorities. See Robinson v Detroit, 462 Mich 439, 474, 613 NW2d
307 (2000) (Corrigan, J., concurring) (“[A] Court exceeds the limit of its constitutional authority
when it substitutes its policy choice for that of the Legislature[.]”). The case of course presents
critical issues involving self-government, as “the underlying issues in these cases pertain to an
‘emergency’ of the most compelling and undisputed character,” House of Representatives v
Governor, ___ Mich ___, ___; 944 NW2d 706, 708 (2020) (Cavanagh, J., concurring), and “is
arguably the most significant constitutional question presented to this Court in the last 50 years,”
House of Representatives v Governor, ___ Mich ___, ___; 943 NW2d 365, 371 (2020) (Zahra, J.,
dissenting), recon den 944 NW2d 706 (2020).

3
this suit, because the Governor’s actions have vitiated the Legislature’s express authority under
the EMA to approve or disapprove executive orders extending beyond 28 days; properly construed,
the EPGA has no role to play in this analysis. Thus, because the Governor’s actions violate the
EMA, as the Legislature has declined to extend the executive orders, as correctly found by the
Court of Claims, I would affirm that portion of its order, and strike down the executive orders at
issue. Given my preference, I also would not reach the Constitutional questions involved,
particularly whether the Governor has improperly exercised legislative authority belonging to the
Legislature, in violation of Article 3, § 2, of the 1963 Constitution. As discussed more fully in this
opinion, the doctrine of constitutional avoidance directs us to decline such constitutional
interpretation if a case can be decided on other grounds; here, the statutory analysis would fully
dispose of the questions presented. However, the majority rejects the statutory analysis which I
believe is mandated, which thus requires that I consider the constitutional question of whether the
Governor improperly exercised (and continues to exercise) legislative powers, in violation of our
Constitution. For reasons stated more fully in this opinion, I would find that the Governor’s actions
violate the separation of powers, and would strike down the executive orders on that basis as well.
However, I agree with the majority that the Court of Claims did not abuse its discretion in denying
intervention, and thus join Part IV(D) of the majority opinion.

I. STANDING

The majority never finds that the House and the Senate have standing to pursue the present
case, simply assuming that there was standing. While I would find that there was nothing incorrect
in that portion of the Court of Claims’ opinion which found standing, I do not think that we can
simply assume standing. Therefore, I will briefly review why I think the Legislature properly
established standing for this case.

Whether a party has standing is a question of law that is reviewed de novo. Mich Ass’n of
Home Builders v City of Troy, 504 Mich 204, 212; 934 NW2d 713 (2019). Standing is a
component of every case. See Miller v Allstate Ins Co, 481 Mich 601, 606-607; 751 NW2d 463
(2008) (citations omitted) (“Our constitution requires that a plaintiff possess standing before a
court can exercise jurisdiction over that plaintiff's claim. This constitutional standing doctrine is
longstanding and stems from the separation of powers in our constitution.”); Coldsprings Twp v
Kalkaska Co Zoning Bd of Appeals, 279 Mich App 25, 28; 755 NW2d 553 (2008) (citation and
quotation marks omitted; emphasis added) (“[T]he elements of individual and organizational
standing must be met in environmental cases as in every other lawsuit, unless the constitution
provides otherwise.”).

“[W]hen standing is placed in issue in a case, the question is whether the person whose
standing is challenged is a proper party to request an adjudication of a particular issue.” House
Speaker v Governor, 443 Mich 560, 572 n 15; 506 NW2d 190 (1993), citing Flast v Cohen, 392
US 83, 99-100; 88 S Ct 1942; 20 L Ed 2d 947 (1968). “The purpose of the standing doctrine is to
assess whether a litigant’s interest in the issue is sufficient to ‘ensure sincere and vigorous
advocacy.’ ” Lansing Sch Ed Ass’n, 487 Mich at 355 (citations omitted). Absent standing, a
court’s decision would constitute a mere advisory opinion, which is outside the “judicial power”

4
provided for by our Constitution. See generally Nat’l Wildlife Federation, 471 Mich at 612-614,
citing Cooley, A Treatise on the Constitutional Limitations (Little, Brown & Co, 1886) at 92.7

Thus, under the Michigan Constitution, a litigant has standing whenever there is a legal
cause of action. Further, a litigant who meets the requirements of MCR 2.605 sufficiently
establishes standing to seek a declaratory judgment. Lansing Sch Ed Ass’n, 487 Mich at 372. If a
cause of action is not provided at law,

then a court should, in its discretion, determine whether a litigant has standing. A
litigant may have standing in this context if the litigant has a special injury or right,
or substantial interest, that will be detrimentally affected in a manner different from
the citizenry at large or if the statutory scheme implies that the Legislature intended
to confer standing on the litigant. [Id. at 373.]

Here, the is no cause of action provided by law. The EMA, however, provides that an
executive order which the governor issues under its authority expires after 28 days “unless a
request by the governor for an extension of the state of disaster for a specific number of days is
approved by resolution of both houses of the legislature.” MCL 30.403(3) (regarding states of
disaster); MCL 30.403(4) (regarding states of emergency). The Legislature argues that under the
required in pari materia reading of the EMA and the EPGA, the provisions of the EMA control;
the Legislature thus argues that failing to grant it standing in this case would have the effect of
nullifying the statutory scheme which the Legislature enacted regarding time limits for the
executive orders at issue, a position which the Court of Claims accepted. In addition, the
Legislature argues that the EPGA is unconstitutional.

“For purposes of determining standing, we must accept as true all material allegations of
the complaint, and must construe the complaint in favor of the complaining party.” American
Family Ass’n of Mich v Mich State Univ Bd of Trustees, 276 Mich App 42, 45-46; 739 NW2d 908
(2007) (citations and quotation marks omitted). As such, I must consider as true the Legislature’s

7
In a number of cases, including House Speaker v State Admin Bd, 441 Mich 547, 560 and n 20;
495 NW2d 539 (1993) and Rohde v Ann Arbor Pub Sch, 479 Mich 336; 737 NW2d 158 (2007),
our Supreme Court emphasized that “[o]ne notable distinction between federal and
state standing analysis is the power of this Court to issue advisory opinions. Const 1963, art 3, §
8. Under Article III of the federal constitution, federal courts may issue opinions only where there
is an actual case or controversy.” See House Speaker, 441 Mich at 559 and n 20. Const 1963, art
3, § 8, is limited in scope in a number of respects, providing that “Either house of the legislature
or the governor may request the opinion of the supreme court on important questions of law upon
solemn occasions as to the constitutionality of legislation after it has been enacted into law but
before its effective date.” Thus, while that provision authorizes the Supreme Court under certain
circumstances to issue an advisory opinion, there is no such provision granting this Court such
authority. Thus, this Court is bound to find standing in a case before we may exercise the judicial
power.

5
allegations that, in issuing her executive orders and repeatedly extending a state of emergency
without legislative approval, the Governor encroached on its authority. See id.

It is of course clearly-settled law that “Interpretation of the State Constitution is the
exclusive function of the judicial branch. Construction of the Constitution is the province of the
courts and this Court’s construction of a State constitutional provision is binding on all
departments of government.” House Speaker, 443 Mich at 575 n 19, citing Richardson v Secretary
of State, 381 Mich 304, 309; 160 NW2d 883 (1968). See also House Speaker, 443 Mich at 575 n
19, citing Regents of the Univ of Mich v Employment Relations Comm, 389 Mich 96, 103; 204
NW2d 218 (1973) (“A conflict between the constitution and the statute is clearly a legal question
which only a court can decide”).

I would find, as did the Court of Claims, that given the statutory structure of the EMA, and
the significant issues regarding the EMA’s interrelationship with the EPGA, as well as the question
of the constitutionality of the EPGA under the circumstances presented, see Part IV of this opinion,
that the Legislature has alleged a special injury or right, as well as a substantial interest, that will
be detrimentally affected in a manner different from the citizenry at large. Lansing Sch Ed Ass’n,
487 Mich at 372. The Legislature alleges that its statutory authority to decline a Governor’s
request to extend a state of disaster or state of emergency is being effectively eviscerated through
the Governor’s actions; given the language of the EMA, I agree that the allegation of a loss of such
prerogatives through encroachment by a different branch of government constitutes “a special
injury or right.” By definition, such an injury is one which only the Legislature could suffer, as
the Legislature is the only entity which is given authority to authorize or to decline to authorize
requests to extend a state of emergency. It seems clear to me that the Legislature thus alleges a
“special injury,” as such an injury, if it occurred, could affect the scope of the Legislature’s powers
only; and it also is clear that, because it is an injury which could affect the Legislature powers
only, the injury is not one which would affect the citizenry at large, other than in the general sense
of the law not being followed, which is insufficient to establish standing.

Moreover, a party has standing “if the statutory scheme implies that the Legislature
intended to confer standing on the litigant.” Lansing Sch Ed Ass’n, 487 Mich at 372. Given the
nature of the disputes in this case, involving statutory and constitutional interpretation, only the
judicial branch could resolve them. And I see no reason to conclude that the Legislature would
have gone to the trouble of enacting the time limitation provisions of the EMA, which, when
applicable, work to grant it the ability to cabin the governor’s authority, if it did not intend to afford
itself recourse to the courts in those instances in which it alleged that the governor failed to comply
with such limits.

In other words, in my opinion the Legislature has alleged a special injury unique to it; an
injury not available to the public at large, or any other person or entity, thus establishing that the
Legislature’s injury is different in kind from any potentially suffered by the public at large; that
the nature of the disputes are such that only the judicial branch can conclusively determine them;
and that the statutory scheme evinces an intention on the part of the Legislature to grant itself

6
standing to litigate such suits.8 The fact that the injury would have “completely nullified” the
Legislature’s authority under the statutory scheme, see Arizona State Legislature v Arizona
Independent Redistricting Comm, ___ US ___; 135 S Ct 2652; 192 L Ed 704 (2015); Tennessee
General Assembly v United States Dep’t of State, 931 F3d 499 (CA 6, 2019), and thus also would
have satisfied the more restrictive Article III definition of standing, as the Court of Claims also
concluded, in my opinion simply reinforces that the Legislature has established standing. I
therefore turn to the merits of the case.

II. STANDARD OF REVIEW

The questions presented here all are subject to de novo review. We review de novo whether
a party has standing to pursue a case, In re Gerald L Pollack Trust, 309 Mich App 125, 153; 867
NW2d 884 (2015); the proper interpretation and construction of statutes, Joseph v Auto Club Ins
Ass’n, 491 Mich 200, 205; 815 NW2d 412 (2012); and the scope of constitutional provisions,
Thomas v Pogats, 249 Mich App 718, 724; 644 NW2d 59 (2002).

III. STATUTORY CONSTRUCTION

As an initial matter, the majority states that the Legislature failed to argue, in its brief on
appeal, that the EPGA does not apply to epidemics. At oral argument, however, the Legislature
made clear that it was making such an argument. I question, therefore, whether the Legislature
could be deemed to have waived anything. More fundamentally, this case properly involves
interpretation of two statutes in pari materia. Under the in pari materia rules of construction, we
are to find a harmonious reading of the two statutes if possible. In undertaking that task, we are
not restricted by whether a party made a particular argument for a harmonious reading of the
statutes; the proper interpretation of statutes is a judicial function, which cannot be waived by a
party. I discern no basis for the Legislature’s argument that, properly construed, the EPGA has a
geographic limitation, and therefore I agree with the majority as to that point; but nonetheless I
would find that the proper construction demonstrates the inapplicability of the EPGA to an
“epidemic.”

A. IN PARI MATERIA CANON OF CONSTRUCTION

Both the EPGA and the EMA deal with the declaration of a state of emergency in the
generic sense;9 the invocation of emergency powers to address such emergencies, which powers
vary markedly from those ordinarily in effect under our constitutional structure; and the limits, if

8
While I acknowledge that the Legislature has the power through the normal political process to
amend or repeal the EMA and the EPGA, which may have application to future executive actions,
it does not have the power to ensure that the Governor has not exceeded a governor’s power under
these statutes as currently in force, the issue presented here. That is the judiciary’s role.
9
Under the EMA, a governor can declare a “state of disaster,” MCL 30.403(3), or a “state of
emergency,” MCL 30.403(4). However, an epidemic can only be the basis for executive action as
a state of disaster, as is expressly provided by the EMA’s definitions. See MCL 30.402(e); note
16 of this opinion (discussing the expressio unius canon of construction).

7
any, placed on a governor exercising such powers. As such, both statutes relate to the same subject
matter, and thus are in pari materia (literally, “in a like manner”). “It is the rule that in construction
of a particular statute, or in the interpretation of its provisions, all statutes relating to the same
subject, or having the same general purpose, should be read in connection with it, as together
constituting one law, although enacted at different times, and containing no reference one to the
other.” Detroit v Mich Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660 (1965), overruled on other
grounds by City of Taylor v Detroit Edison Co, 475 Mich 109, 119; 715 NW2d 28 (2006). “ ‘The
object of the rule in pari materia is to carry into effect the purpose of the legislature as found in
harmonious statutes on a subject.’ ” Jennings v Southwood, 446 Mich 125, 137; 521 NW2d 230
(1994), quoting Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930). That is
because “[s]everal acts in pari materia, and relating to the same subject, are to be taken together,
and compared in the construction of them, because they are considered as having one object in
view, and as action upon one system.” 1 James Kent, Commentaries on American Law 433 (1826),
cited in Scalia & Garner, Reading Law: The Interpretation of Legal Texts (Thompson/West, 2012),
p 252. When applying an in pari materia construction, “[i]f statutes lend themselves to a
construction that avoids conflict, that construction should control.” Walters v Leech, 279 Mich
App 707, 710; 761 NW2d 143 (2008) (citation omitted). “When there is a conflict between statutes
that are read in para [sic] materia, the more recent and more specific statute controls over the older
and more general statute.” People v Buehler, 477 Mich 18, 26; 727 NW2d 127 (2007), abrogated
in part on other grounds by People v Arnold, 502 Mich 438; 918 NW2d 164 (2018). In addition,
and outside the in pari materia rules of construction, we construe statutes in such a manner that
each word has meaning, and that no word is deemed to be surplusage or nugatory. Apsey v Mem
Hosp, 477 Mich 120, 127; 730 NW2d 695 (2007).10

B. BACKGROUND INFORMATION REGARDING THE STATUTORY SCHEMES

Under the EMA:

1. An “epidemic” expressly may be a triggering event for executive action.11 MCL
30.402(e); MCL 30.403(3).

2. A declaration of a state of disaster authorizes a governor, in addition to some
specific powers, to “Direct all other actions which are necessary and appropriate
under the circumstances.” MCL 30.405(1)(j).

3. Such a state of disaster must terminate after 28 days unless the governor requests
and the Legislature approves an extension. MCL 30.403(3).

10
Just so it is absolutely clear, there are three general canons of construction implicated here: (1)
statutes regarding the same general subject matter are construed in pari materia; (2) we assume
that the Legislature did not intend for its enactments to be mere surplusage, but rather that is strives
for an interpretation which gives every word meaning; and (3) we assume that when the Legislature
enacts legislation, it knows what the existing state of the law is and crafts its work accordingly.
11
See Note 9 of this opinion.

8
 Under the EPGA:

1. The governor may declare a state of emergency “[d]uring times of great public
crisis, disaster, rioting, catastrophe, or similar public emergency within the state.”
MCL10.31(1).

2. “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,” and provides a non-exclusive list of the governor’s powers. MCL
10.31(1).

3. Such orders are in effect until they expire under their own terms, or when the
governor declares “that the emergency no longer exists.” MCL 10.31(2). The
majority concludes that the governor may invoke the EPGA based on an epidemic
or a pandemic.12 There are no categorical limits placed on the orders which a
governor can impose after a declaration under either statute: the EPGA permits
“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,” while the EMA permits the governor to “[d]irect all other actions which
are necessary and appropriate under the circumstances.” There is no material
difference between the two; each permits the governor to take whatever actions the
governor deems necessary.

Thus, applying the rules of construction in a straightforward manner, it is readily apparent
that the inclusion of the word “epidemic” in the definition of disaster under the EMA means that
the Legislature did not understand any of the EPGA’s triggering events to include an epidemic; if
the EPGA applied to an epidemic, there would have been no reason to include it in the EMA
definition, as it would be a redundancy, contrary to how we construe statutes, because the governor
can impose all of the same relief under the EPGA as may be imposed under the EMA. Reading
the EPGA in the manner it does, the majority renders at least a portion of it a redundancy; there is

12
Under that section, “Disaster” means an occurrence or threat of widespread or severe damage,
injury, or loss of life or property resulting from a natural or human-made cause, including, but not
limited to, fire, flood, snowstorm, ice storm, tornado, windstorm, wave action, oil spill, water
contamination, utility failure, hazardous peacetime radiological incident, major transportation
accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation,
explosion, or hostile military action or paramilitary action, or similar occurrences resulting from
terrorist activities, riots, or civil disorders.” (Emphasis added.) The Covid threat has been deemed
a “pandemic.” A “pandemic” is an outbreak of a disease that occurs over a wide geographic area
and affects an exceptionally high proportion of the population. An “epidemic,” by contrast, means
“an outbreak of disease that spreads quickly and affects many individuals at the same time.” A
pandemic is thus more widespread and thus a greater disaster than an epidemic. The greater
necessarily includes the lesser; as the EMA expressly defines an epidemic to be a disaster, a fortiori
a pandemic also qualifies as a disaster.

9
nothing the governor can do under one statute that could not also be done under the other. Given
that fact, there was no reason for the Legislature to have enacted the EMA.

Of course, we do not construe any word in a statute to be nugatory if there is an alternative
interpretation. A straightforward reading of the statutes, in light of the canons of construction, in
facts yields such an alternative interpretation: the Legislature would not have included the word
“epidemic” as a permissible triggering event under the EMA, and would not have otherwise
mimicked the EPGA, unless it understood the EPGA to not apply to an epidemic. This is the only
interpretation which makes sense of the inclusion of the word “epidemic” in the EMA—a word
which is notably absent from the EPGA—and which also explains the Legislature’s creation of
executive authority which otherwise would be substantively identical to that provided in the
EPGA.

C. THE GOVERNOR’S “BELT AND SUSPENDERS” ARGUMENT

The Governor makes two arguments in response to this point. First, the Governor argues
that by including the word “epidemic” as a condition which can justify a state of disaster under the
EMA, the Legislature employed “a belt and suspender” approach to show the importance it
attached to the use of the word in the EMA; the Governor makes this assertion even though, in the
Governor’s view, the EPGA already reached epidemics at the time the Legislature defined an
“epidemic” as a disaster under the EMA. This response by the Governor is particularly weak, as
it stands on its head a long-standing canon of construction which assumes that the Legislature did
not intend to enact surplusage; rather, the Governor would have us hold that if the Legislature
deems a situation unusually important, it would enact surplusage as a means of signaling to the
world the importance it attaches to a particular construction. Frankly, this argument is frivolous,
because there are accepted methods by which a Legislature knows how to communicate its intent,
and by which courts know how to discern the Legislature’s intentions; enacting surplusage is
simply the opposite of the manner in which the Legislature does so. See, e.g., United States v
Butler, 297 US 1, 65 (1936) (“These words cannot be meaningless, else they would not have been
used.”), cited in Reading Law, p 174. Our own Justice Cooley made the same point well over 150
years ago, when he wrote “The courts must lean in favor of a construction which will render a
word operative, rather than one which may make some idle and nugatory.” Thomas M. Cooley, A
Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of
the American Union 58 (1968), cited in Reading Law, p 174 n 3 (brackets and ellipsis omitted).
That approach has been uniformly followed until the present. See, e.g., Apsey, 477 Mich at 127
(“Whenever possible, every word of a statute should be given meaning. And no word should be
treated as surplusage or made nugatory.”).

The EPGA authorizes the Governor, in a state of emergency, which includes a “disaster,”13
to “promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect

13
The EPGA applies to a “great public crisis, disaster, rioting, catastrophe or similar public
emergency.” There can be no doubt that a “public emergency” under that definition comports with
the definition of “state of emergency” under the EMA, and that the EPGA’s use of the term

10
life and property or to bring the emergency situation within the affected area under control,” and
provides a non-exclusive list of the governor’s powers. MCL 10.31(1). Thus, the majority holds
that from 1945 on, following the enactment of the EPGA, and continuing on through 1976 and the
enactment of the EMA until today, the governor had essentially unlimited authority to deal, on an
emergency basis, with epidemics and threats to public health. Such a construction is an absurdity
in light of the Legislature’s specific use of the word “epidemic” in the definition of “disaster,” in
the EMA. As I already have noted, we assume that when the Legislature crafts legislation it knows
what the existing law is, and takes it into consideration. O’Connell v Dir of Elections, 316 Mich
App 91, 99; 891 NW2d 240 (2016). If the Governor’s position is correct, the Legislature, knowing
that the Governor’s authority to take executive action under the EPGA included the authority to
address an “epidemic,” nonetheless granted the Governor the authority, in the EMA, to address an
“epidemic.” Such a conclusion flies in the face of how courts and legislatures go about their
business of crafting their work and taking steps, through well-understood conventions, of ensuring
that they each understand exactly what is intended of the other. Here, that means that the 1976
Legislature can only be deemed to have understood that the EPGA did not extend to epidemics;
thus, the only legislative enactment which covers such an event is the EMA.14

“disaster,” which itself can constitute a “public emergency,” comports with the EMA’s use of that
same term.
14
It is not entirely correct to say that neither the EPGA nor the EMA have any limits as to the
nature of the orders which the governor may issue following a declaration of an emergency. Both
the EPGA and the EMA, in nearly identical terms, provide that an executive order issued under
either of them “does not authorize the seizure, taking, or confiscation of lawfully possessed
firearms, ammunition, or other weapons,” EPGA, MCL 10.31(3); nor does it “authorize the
seizure, taking, or confiscation of lawfully possessed firearms or ammunition,” EMA, MCL
30.405(2).
There are two possible interpretations of the inclusion of the firearms protection language
in the two statutes. One is that the Legislature, in enacting the EMA, recognized that it was
extending executive authority to new areas, in instances in which such authority had not previously
existed; an “epidemic,” as discussed in Part III of this opinion, is one example of such a recognition
by the Legislature. Given that knowledge, had the Legislature wanted to continue the policy-
driven decision of protecting lawfully possessed firearms, it would have had to include such
language in the EMA, because it would have understood that the EPGA did not apply to such
circumstances. Such an interpretation supports the statutory conclusion I reach in this opinion.
The other alternative is that the Legislature simply wanted, again for policy reasons, to
reduce the scope of the firearms-protection provision of the EMA, MCL 30.405(2), by removing
“other weapons,” thereby limiting protections to lawfully-possessed firearms and ammunition. All
firearms are weapons, but not all weapons are firearms. See Merriam-Webster’s Collegiate
Dictionary (11th ed) (defining “firearm” as “a weapon from which a shot is discharged by
gunpowder—usu. used of small arms” and defining “weapon” as “something (a club, knife, or
gun) used to injure, defeat, or destroy” and as “a means of contending against another”); New
World Dictionary (2nd ed) (defining “firearm” as “any weapon from which a shot is fired by the

11
 D. THE GOVERNOR’S AND THE MAJORITY’S RELIANCE ON MCL 30.417(D)

The majority, and the Governor, rely on Section 17(d) of the EMA, in an attempt to show
that the Legislature’s use of the word “epidemic” in the EMA works no redundancy with the
EPGA. Under Section 17(d), MCL 30.417(d), the EMA “shall not be construed to do any of the
following”:

(d) Limit, modify, or abridge the authority of the governor to proclaim a state of
emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31
to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in
him or her under the state constitution of 1963, statutes, or common law of this state
independent of, or in conjunction with, this act.

This is the critical statutory provision in this case; it is the only textual basis which could
arguably show a reasonable reading of Legislative intent in derogation of the normal canons of
construction. See People v Pinkney, 501 Mich 259, 283; 912 NW2d 535 (2018) (holding that
canons of construction can be overcome if there is sufficient evidence to do so).

1. SCOPE OF THE GOVERNOR’S AUTHORITY TO DECLARE A STATE OF
EMERGENCY UNDER THE EPGA

Section 17(d) is divided into two disjunctive parts. As noted, the first portion provides that
the EMA shall not be construed to “limit, modify, or abridge the authority of the governor to
proclaim a state of emergency pursuant to” the EPGA (emphasis added). The authority to proclaim
an emergency, under either the EPGA or the EMA, is a distinct authority. Whether the governor
also has the additional power to have any such declared emergency continue, without any
limitations or input from anyone else, so long as the governor sees fit to do so, the position the
Governor argues and the majority adopts, is the question presented here and through an in pari
materia reading of the two statutes, and is a conclusion with which I do not agree. Nothing that I
have said regarding the governor’s authority under the EPGA and its interplay with § 17(d) in any
way limits the authority of the Governor to issue a declaration of emergency. Simply put, the first
part of § 17(d) has no application to this case.15

force of an explosion; esp., such a weapon small enough to be carried, as a rifle or pistol” and
defining “weapon” as “an instrument or device of any kind used for fighting, as specif. in warfare,”
and as “any means of attack or defense”). (Those definitions have remained consistent over time,
and thus are no different today than they were upon enactment of the two statutes.) As an aid to
statutory interpretation, this possibility does not clarify the interrelationship between the EPGA
and the EMA at all, as there are two potentially harmonious readings of the statutes. However,
one can conclude from the two firearms provisions that they either support the statutory
interpretation I make in this opinion, or they are neutral as to it; in no way do they detract from
that interpretation.
15
The majority simply misreads this portion of § 17(d), engrafting onto it language which it does
not contain. The majority states that it rejects “any contention that this provision only bars a

12
 That brings us to the second portion of the statute. It provides, as relevant here, that the
EMA shall not be construed to “Limit, modify, or abridge the authority of the governor . . . to
exercise any other powers vested in . . . him or her under . . . statutes[.]”16 Let us simply assume
that the “statutes” referred to include the EPGA, because that assumption does not affect the final
analysis. This is so because it is not a construction of the EMA as such which places the EPGA
off-limits for an executive declaration regarding an epidemic. Rather, it is the straight-forward
application of standard rules of construction, applicable in all instances to all statutes, under which
we determine the scope of the EPGA as written by the Legislature. To recapitulate reasons already
stated, viz., that any other construction would render the Legislature’s use of the word “epidemic”
in the EMA surplusage, it is clear that the Legislature which enacted the EMA did not understand
the EPGA to encompass epidemics, because, simply put, the Legislature would not have intended
to enact surplusage; we assume that when the Legislature crafts legislation it knows what the
existing law is, and takes it into consideration, O’Connell, 316 Mich App at 99, and there simply
is no reason the Legislature would have included the word “epidemic” in the EMA if it understood
the EPGA to already have covered such a situation, Apsey, 477 Mich at 127. Thus, it is not the
EMA which in any way limits the application of the EPGA to epidemics, but rather the standard
rules of construction, which embody assumptions about how legislatures work, which control that
interpretation. The canons of construction work in both directions—courts use the canons so that
there are consistent applications of the law in judicial opinions; but the canons also allow
legislators and legislatures to know in advance how courts will construe the work of a legislative

limitation, modification, or abridgement of a governor’s authority to proclaim or declare a state
of emergency under the EPGA, absent any application to the extension of a state of emergency,
thereby allowing imposition of the legislative-approval provision in § 3 of the EMA.” By this
reading, the majority asserts that the word “proclamation” is broader than the mere formal
announcement of a state of emergency. That reading is not supported by the statutory text. MCL
30.405 provides that “In addition to the general authority granted to the governor by this act, the
governor may, upon the declaration of a state of disaster or state of emergency do 1 or more of the
following: . . .” Thus, the text is clear that the governor’s authority to take certain actions has as a
prerequisite the declaration of a state of disaster or emergency, but that those powers are distinct
from, although they are triggered by, the declaration itself. The EMA also makes clear that an
extension is a separate act requiring the Legislature’s approval. See MCL 30.403 and MCL
30.404.
16
It is not clear that the statutes referred to include the EPGA, as there already was one reference
to that statute in section 17(d), and, as noted, that reference did not relate to the authority of the
governor to do anything under the EPGA except to declare an emergency. Generally speaking,
the doctrine of expressio unius est exclusio alterius (“express mention in a statute of one thing
implies the exclusion of other similar things”) would exclude the EPGA from the inclusion in the
collective “statutes.” Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 572, 592 NW2d 360 (1999).
As applicable here, that would be because the single, specific reference in § 17(d) to the EPGA,
followed by the general reference to “statutes” which follows would not include the EPGA as one
of those statutes. But we need not decide that question here to determine the scope of the
governor’s authority.

13
branch. The doctrine that the Legislature is presumed to know the existing law when it writes a
statute includes a presumption that the Legislature knows how a law will be interpreted in
connection with the canons. See McNary v Haitian Refugee Ctr., Inc., 498 US 479, 496; 111 S Ct
888; 112 L Ed 2d 1005 (1991) (“It is presumable that Congress legislates with knowledge of our
basic rules of statutory construction[.]”), cited in Reading Law, p 269 n 6.

Simply put, the Legislature would have known, prior to enactment of the EMA, that by
including the word “epidemic” in it, it was telling the courts that the Legislature did not consider
epidemics to be covered by the existing law, the EPGA, and that it understood that courts would
so interpret its actions. Contrary to the majority, this is not “reading a requirement for legislative
approval to extend a state of emergency into the EPGA.” It is simply a confirmation that given
the language used and the standard canons of construction, the Legislature which enacted the EMA
did not understand the EPGA to apply to an epidemic, and therefore has no application to the
present circumstances. Indeed, there would be no point in reading something into a statute which
never applied to the situation at hand. Nor does this analysis constitute a judicial construction
which limits, modifies, or abridges the governor’s power, as is prohibited by § 17(d), but is a mere
literal application of the Legislature’s words to demonstrate that the EPGA never extended so far
as to encompass authority over an epidemic. This construction not only does not run afoul of §
17(d), it is compelled by it —a court cannot “limit,” or “modify,” or “abridge,” an authority of the
Governor which the Governor never possessed in the first instance.17

2. THE GOVERNOR’S CONSTRUCTION LEADS TO AN ADDITIONAL REDUNDANCY

In addition, the majority’s and the Governor’s construction of the two statutes render
another portion of the EMA redundant or nugatory. As the Court of Claims correctly noted, the
EMA permits the Governor to declare a state of disaster or a state of emergency. Each of those
types of declarations has a durational limit.

The state of disaster shall continue until the governor finds that the threat or danger
has passed, the disaster has been dealt with to the extent that disaster conditions no
longer exist, or until the declared state of disaster has been in effect for 28 days.
After 28 days, the governor shall issue an executive order or proclamation declaring
the state of disaster terminated, unless a request by the governor for an extension
of the state of disaster for a specific number of days is approved by resolution of
both houses of the legislature. [MCL 30.403(3)].

17
And consistent with that reading, there was a public health code which long predated the EPGA,
and which authorized emergency government action to address “cholera and other dangerous
communicable diseases,” see 1885 PA 230, § 2. The EPGA did not repeal or amend that statute,
thus strengthening the inference that the 1945 Legislature did not intend to change the emergency
powers to address epidemics from the historical approach. That historical approach to epidemics
and emergency powers changed with the enactment of the EMA.

14
Similarly, for a state of emergency:

The state of emergency shall continue until the governor finds that the threat or
danger has passed, the emergency has been dealt with to the extent that emergency
conditions no longer exist, or until the declared state of emergency has been in
effect for 28 days. After 28 days, the governor shall issue an executive order or
proclamation declaring the state of emergency terminated, unless a request by the
governor for an extension of the state of emergency for a specific number of days
is approved by resolution of both houses of the legislature. [MCL 30.403(4)].

The majority and the Governor take the position that the EPGA and the EMA are coextensive,
providing the Governor the same authority to issue orders, as to essentially any subject. Again,
the Legislature knew all of that at the time it enacted the EMA. Yet the Legislature also enacted
the 28-day time limit on the governor’s unilateral authority under the EMA. To engraft such a
durational limitation on the EMA, while leaving the governor’s equivalent powers under the EPGA
completely unconstrained, subject only to the governor’s whim, would render the EMA’s time
limits surplusage.18

Indeed, unless we construe the statute in the manner I suggest, one is left scratching one’s
head wondering what the Legislature thought it was accomplishing through the EMA. According
to the majority, what the Legislature thought it was accomplishing was the enactment of a clone
of the EPGA, but with a provision terminating the governor’s executive authority after 28 days
unless that self-same Legislature gave its approval. But according to the majority, the Legislature
also allowed the EPGA to co-exist, so that the governor could circumvent the 28-day limit on
executive action by the governor which the Legislature had just gone to the trouble of enacting.

Such an assertion simply makes no sense. Obviously, the Legislature did not intend its
pronouncements in the EMA to be surplusage or nugatory. Thus, properly construed, there is

18
The majority’s construction of the word “epidemic” in the EPGA “is an authoritative statement
of what the statute meant before as well as after the decision of the case giving rise to that
construction.” Rivers v Roadway Express, Inc, 511 US 298, 312-313; 114 S Ct 1510; 128 L Ed 2d
274 (1994). See also id., at 313, n 12; Plaut v Spendthrift Farm, Inc, 514 US 211, 216; 115 S Ct
1447; 131 L Ed 2d 328 (1995). In other words, when a court “construes a statute, it is explaining
its understanding of what the statute has meant continuously since the date when it became law.”
Rivers, 511 US at 313 n 12. We presume that when the Legislature acts, it knows what the law is.
Apsey, 477 Mich at 127. Thus, under the majority’s view, the Legislature knew in 1976 that it
already possessed the same authority under the EPGA to address epidemic and public health
emergencies as it was to enact under the EMA. And yet, the Legislature nonetheless enacted a
limitation on the Governor’s authority to act unilaterally under the EMA, but refused to enact a
similar limit under the EPGA; and allowed the Governor to proceed under either authority. Thus,
the Legislature enacted a durational limit of 28-days on executive action, but gave the Governor
full authority to opt-out from under such time limits any time the Governor so chose. Again, it is
logically absurd for a court to conclude that the Legislature so intended.

15
nothing in the EMA which limits the Governor’s authority under the EPGA; the EPGA simply
does not apply to the current situation, involving a pandemic, and the only authority upon which
the Governor may rely for her executive orders regarding it is the EMA, with its associated time
limit.

The majority’s construction, meanwhile, is no construction at all. Although we are
supposed to employ a harmonious reading of the two statutes if possible, the majority arrives at a
construction under which the EPGA and the EMA each apply to an epidemic; the governor can
proceed under either one, without any restriction; each permits the governor to exercise unlimited
power; but one limits the governor’s authority to 28 days without legislative authorization while
the other continues indefinitely until the governor says otherwise. This result by the majority
constitutes anything but a harmonious construction; it is a completely discordant result which does
not even attempt to reconcile the inconsistencies between the two statutes, but simply lumps all of
the various aspects of them together, throws up its hands, and concludes, essentially, “Who are we
to say that the Legislature did not intend to nullify its own work?” If the majority was unable to
harmonize the result, as it obviously was, then it was obligated to give controlling effect to the
more recent and more specific statute, the EMA. See Buehler, 477 Mich at 26.19

IV. UNDER THE CIRCUMSTANCES OF THIS CASE, THE EPGA IS
UNCONSTITUTIONAL

A. THE FRAMEWORK

The majority holds that the EPGA is constitutional on the basis of Blue Cross & Blue Shield
of Mich v Milliken, 422 Mich 1, 51-52; 367 NW2d 1 (1985). This Court reviews constitutional
issues de novo. Janer v Barnes, 288 Mich App 735, 737; 795 NW2d 183 (2010). Although the
question presented in Blue Cross regarding the lawfulness of the delegation of legislative power

19
It is worth underscoring that the majority’s construction of the word “epidemic” in the EPGA
“is an authoritative statement of what the statute meant before as well as after the decision of the
case giving rise to that construction.” Rivers v Roadway Express, Inc, 511 US 298, 312-313, 114
S Ct 1510, 128 L Ed 2d 274 (1994). See also id. at 313, n 12; Plaut v Spendthrift Farm, Inc, 514
US 211, 216, 115 S Ct 1447, 131 L Ed 2d 328 (1995). In other words, when a court “construes a
statute, it is explaining its understanding of what the statute has meant continuously since the date
when it became law.” Rivers, 511 US at 313 n 12. We presume that when the Legislature acts, it
knows what the law is. Apsey, 477 Mich at 127. Thus, under the majority’s view, the Legislature
knew in 1976 that it already possessed the same authority under the EPGA to address epidemic
and public health emergencies as it was to enact under the EMA. And yet, the Legislature
nonetheless enacted a limitation on the Governor’s authority to act unilaterally under the EMA,
but refused to enact a similar limit under the EPGA; and allowed the Governor to proceed under
either authority. Thus, the Legislature enacted a durational limit of 28-days on executive action,
but gave the Governor full authority to opt-out from under such time limits any time the Governor
so chose. Again, it is logically absurd for a court to conclude that the Legislature so intended.

16
was significantly narrower than the question presented here, in Blue Cross our Supreme Court
established the framework for evaluating all such claims.

Blue Cross considered whether the Nonprofit Health Care Corporation Reform Act, MCL
§ 550.1101 et seq., represented an unconstitutional delegation of legislative authority to Blue Cross
Blue Shield of Michigan and other private parties. Specifically, that Act required each non-profit
health care corporation to “assign a risk factor for each line of the corporation's business.” Blue
Cross, 422 Mich at 52-53. The Insurance Commissioner then was required either to approve or
disapprove the factors proposed by the health care corporation, but “[n]o guidelines are provided
to direct the Insurance Commissioner's response.” Id. And finally, if the risk factors were
disapproved, a panel of three actuaries “ ‘shall determine a risk factor for each line of business.’
No further directions are set forth to guide the panel.” Id. at 52-53. The Court held that “[t]he act
is completely devoid of any indication why one factor should be preferred over another; no
underlying policy has been articulated, nor has the Legislature detailed the criteria to be employed
by the panel in making this determination.” Id. at 55, citing Osius v City of St. Clair Shores, 344
Mich 693; 75 NW2d 25 (1956). “This complete lack of standards is constitutionally
impermissible,” such that “the lack of standards defining and directing the Insurance
Commissioner’s and the actuary panel’s authority renders this dispute resolution mechanism
constitutionally defective.” Id.

Blue Cross is instructive as to the present case, and establishes the framework for
evaluating claims of improper delegation of legislative power. The Court held that in reviewing
such claims, “1) the act must be read as a whole; 2) the act carries a presumption of
constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires
or permits.” Blue Cross, 422 Mich at 51. “The preciseness required of the standards will depend
on the complexity of the subject.” Id. Although the focus of the act at issue was narrow, the Court
had no difficulty determining that it involved an impermissible delegation of legislative authority,
because it gave no direction and created no standards as to how the authority should be exercised.

Moreover, our Supreme Court has noted on many occasions that

The separation of powers doctrine has never been interpreted to mean that
the three branches of government

must be kept wholly and entirely separate and distinct, and have no
common link or dependence, the one upon the other, in the slightest
degree. The true meaning is that the whole power of one of these
departments should not be exercised by the same hands which
possess the whole power of either of the other departments; and that
such exercise of the whole would subvert the principles of a free
Constitution.” [House Speaker v Governor, 443 Mich 560, 586 n
32; 506 NW2d 190 (1993), citing Local 321, State, Co & Muni
Workers of America v Dearborn, 311 Mich 674, 677; 19 NW2d 140
(1945), in turn quoting Story, Constitutional Law (4th ed), pp 380
(emphasis added).]

17
See also Makowski v Governor, 495 Mich 465, 482; 852 NW2d 61 (2014) (also quoting Local 321,
State, Co & Muni Workers of America).

B. THE EPGA DELEGATES LEGISLATIVE POWER

The issue here does not involve the declaration of an emergency; rather, the act of declaring
such an emergency is properly to be regarded as executive action. See Const 1963, art 5, § 1.
Instead, the issue is the orders authorized by such a declaration, which the majority holds have no
categorical limitations, but rather essentially empower the governor to do anything.

More than one hundred years ago, our Supreme Court summed up quite nicely the principle
involved: “The Legislature cannot delegate its power to make a law; but it can make a law to
delegate a power to determine some fact or state of things upon which the law makes, or intends
to make, its own action to depend.” King v Concordia Fire-Ins Co, 140 Mich 258; 103 NW 616
(1905), cited in In re Brewster Street Housing Site in City of Detroit, 291 Mich 313, 340; 289 NW
493 (1939). Thus,

The people, by the adoption of the Constitution, have vested the legislative power
in the legislature of the State, subject to the initiative referendum and recall, and
the legislature of the State cannot abdicate the power delegated to it by the
Constitution, but it is clear the legislature may confer the authority for the finding
of facts upon administrative officers, boards or commissions. [In re Brewster Street
Housing Site in City of Detroit, 291 Mich at 340, citing Horn v People, 26 Mich
221 (1872).]

Clearly, the orders recently issued by the Governor involve no action by any administrative
officer, board or commission; but rather the wholesale handing over to the governor of the
unfettered discretion to legislate any emergency order which the Governor thinks appropriate. The
delegation of authority under the EPGA, as interpreted by the majority, thus is legislative: “The
Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to
determine some fact or state of things upon which the law makes, or intends to make, its own
action to depend.” King v Concordia Fire Ins Co, 140 Mich 258, 268; 103 NW 616 (1905), citing
Locke’s Appeal, 72 Pa 498 (1873). The orders here, however, involve the making of law. Thus,
“[t]he true distinction, is between the delegation of power to make the law, which necessarily
involves a discretion as to what it shall be, and conferred authority or discretion as to its execution,
to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid
objection can be made.” King, 140 Mich at 268-269 (citation and quotation marks omitted).20

20
Indeed, our Supreme Court previously has held that a legislative act authorizing a quarantine to
be carried out by health inspectors, under general rules enacted by the legislature which provided
for discretion on the part of the inspectors as to when to detain persons and goods, subject to
standards set forth in the legislation, was constitutional. Hurst v Warner, 102 Mich 238, 244; 60
NW 440, 441 (1894). The EPGA is quite different, in that it allows the governor to create any rule
the governor wishes, as to any subject, in the first instance. That power is legislative.

18
 C. AS INTERPRETED BY THE MAJORITY, THE GOVERNOR EXERCISES FULL
LEGISLATIVE POWER AS WELL AS FULL EXECUTIVE POWER

Having determined that the orders issue by the Governor are in fact legislative, it is
apparent that, under the circumstances of this case, the executive orders which were issued are in
fact unconstitutional. As the majority interprets the governor’s authority to issue the orders, they
involve the whole power of the Legislature, as there are no subject matters which are outside their
potential scope. Because, as the majority finds, there are no limits as to the subject matter which
a governor may order or regulate or direct in this manner pursuant to the EPGA, the governor thus
is granted “the whole power of one of these departments” of government, i.e., the full legislative
power. House Speaker, 443 Mich at 586 n 32 (emphasis added). And the Governor of course
retains the full executive power of that office as well. Const 1963, art 5, § 1.

Acting under the EPGA, the governor thus possesses the full power of the legislative
branch, as well as the full power of the executive branch; in other words, the EPGA, as interpreted
by the majority, commits to the governor “the whole power of one of these departments,” allowing
it to be “exercised by the same hands which possess the whole power of either of the other
departments.” House Speaker, 443 Mich at 586 n 32. That is, precisely the evil which the
separation of powers doctrine was intended to preclude, and thus is unconstitutional. Const 1963,
art 3, § 2. See Makowski v Governor, 495 Mich. at 482-483; House Speaker, 443 Mich at 586 n
32.

D. THE MAJORITY OPINION FAILS TO CONSTRUE THE EPGA IN A MANNER WHICH
WOULD PRECLUDE ITS UNCONSTITUTIONALITY HERE

The unconstitutionality of such a procedure would be mitigated if there were any durational
limits imposed as to an executive order issued under the EPGA or the EMA. A durational limit
(and not merely a gubernatorial rescinding of an order, followed by its reissuance in the identical
or near identical form) would change the nature of any such order from something legislative,
which simply lives on until it is repealed, to a true emergency order, which would exist only during
a genuine period of emergency.21

The violation of the constitution, in my opinion, thus occurs through the confluence of two
different authorities approved by the majority: the retention of the Governor’s executive powers;
plus the unlimited nature of legislative power granted the governor following a declaration of an
emergency, including the unlimited duration of any such order.

The lack of any durational limit simply underscores and compounds the constitutional
difficulty, transforming temporary, and thus emergency orders, into something essentially
unlimited and thus legislative. It is settled that when applying strict scrutiny analysis, applicable
to many of the most important constitutional rights, a court can uphold an action only if it involves

21
As noted by the majority, “Pursuant to MCL 10.31(2), a governor proclaims or declares a state
of emergency, and it simply continues until the governor declares ‘that the emergency no longer
exists.’ ” Taken together, these statements by the majority mean that a governor can order
anything, forever, a truly striking concept in a democratic republic.

19
a “compelling governmental interest,” which must be “narrowly tailored” to achieve that interest.
See, e.g., Burson v Freeman, 504 US 191, 198; 112 S Ct 1846; 119 L Ed 2d 5 (1992) (impingement
of First Amendment right). The “narrow tailoring” requirement imposes an obligation that
whatever permissible action impinges a constitutional right continue no longer than necessary.
See, e.g., City of Richmond v JA Croson Co, 488 US 469, 497-498; 109 S Ct 706; 102 L Ed 2d
854 (1989) (prohibiting remedy for discrimination “essentially limitless in scope and
duration.”); In re National Security Letter, 863 F3d 1110, 1126 (CA 9 2017) (“In order to ensure
that the nondisclosure requirement is narrowly tailored to serve the government’s compelling
interest in national security, a nondisclosure requirement must terminate when it no longer serves
such a purpose.”).

The majority holds that the spare statutory standards of the EPGA, requiring only that the
declaration involve a “great public crisis, disaster, rioting, catastrophe, or similar public emergency
. . . or [when there is] reasonable apprehension of immediate danger of a public emergency of that
kind,” which also must imperil “public safety,” is “as reasonably precise as the subject matter
requires or permits.” The majority adds “Indeed, more exacting standards would likely be overly
confining and unnecessarily bind a governor’s hands in any effort to mitigate and control an
emergency at the very time he or she must need to be nimble.” Moreover, the majority
acknowledges that not only is the “standard” completely amorphous, but contains a large measure
of subjectivity to whatever a governor desires. Thus, the majority holds that an order entered
pursuant to a declared emergency need only be “ ‘reasonable’ and, as judged by a governor,
‘necessary to protect life and property or to bring the emergency situation . . . under control.’ ” Id.
(emphasis added). This means that there are few objective, outside controls or standards at all,
save for “reasonableness”; the statute essentially requires only a governor’s subjective
determination of what is necessary to control the situation.

Taking steps to deal with a global pandemic is certainly a “compelling government
interest.” Thus, there is no doubt that a government could take steps to address such a crisis for at
least some period of time on an emergency basis, through means that ordinarily would not comport
with constitutional restrictions; after all, the “constitutional Bill of Rights” is not “a suicide pact,”
Terminiello v City of Chicago, 337 US 1, 37; 69 S Ct 894; 93 L Ed 1131 (1949) (JACKSON, J.,
dissenting), nor is the constitutional separation of powers. This case does not address whether
government has the authority to impose mandatory public health orders to address a crisis; clearly
it does. See Jacobson v Massachusetts, 197 US 11; 25 S Ct 358; 49 L Ed 643 (1905). The issue
here is not what actions may be taken, but how they are to be taken: by a governor, acting under
emergency authority, with no limitations as to how, or how long, such measures may be instituted;
or whether, following a reasonable period of emergency authority, legislative power must revert
to normal constitutional norms. Our Constitution declares after all, that “All political power is
inherent in the people.” 1963 Const art 1, § 1.

No doubt to address this potentially gaping exception to normal, constitutional governance,
the Legislature, in the EMA, enacted a rule that executive orders to address a state of emergency
or a state of disaster, after a reasonable period not to exceed 28-days, must either terminate or be
ratified by the elected Legislature. The Legislature has not authorized continued emergency action
relating to an epidemic. In addition, the statutory construction of the EPGA and the EMA set forth
in Part III of this opinion avoids the constitutional infirmity identified here, because an executive
order which either becomes legislatively-authorized after 28 days, or terminates, is constitutionally
20
reasonable. Indeed, that fact alone should give the majority pause about its statutory analysis that
the EPGA applies without limitation to an epidemic, without any consideration of an in pari
materia construction or the EMA’s use of the word “epidemic.” “If statutes lend themselves to a
construction that avoids conflict, then that construction should control.” People v Webb, 458 Mich
265, 274; 580 NW2d 884 (1998). See also Hunter v Hunter, 484 Mich 247, 264 n 32; 771 NW2d
694 (2009) (citation and quotation marks omitted) (“[A]s between two possible interpretations of
a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to
adopt that which will save the act.”).

If the majority correctly read the EPGA and the EMA, in accordance with Part III of this
opinion, such that only the EMA applied to an epidemic, then the executive orders here would be
constitutional exercises of emergency powers, as they would be properly limited in duration, or
constitutionally ratified by the Legislature. However, given the majority’s construction, that the
EPGA not only applies, but that it authorizes unilateral action by the governor which “simply
continues until the governor declares ‘that the emergency no longer exists,’ ” it is unconstitutional
in these circumstances.

I respectfully dissent from the majority’s standing, statutory interpretation, and
constitutional interpretation analysis.

/s/ Jonathan Tukel

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