Michigan high court won't weigh in on legality of epidemic orders; dissent urges action

The Michigan Supreme Court on Friday denied Attorney General Dana Nessel's request to appeal a lower court decision that found epidemic orders issued by the state health department to be unconstitutional — an appeal that included a request to reconsider the high court's October 2020 decision overturning the governor's executive orders.

The order issued Friday declined to take the case because a majority of the justices felt it should not consider the issue before the Court of Appeals had a chance to do so. 

Justices David Viviano and Richard Bernstein dissented, both arguing that the request from Nessel was an opportunity to "provide clarity on a topic of great importance to our citizens: the extent of the executive branch's powers to respond to the COVID-19 pandemic."

"Whether those powers were exercised wisely is not for us to judge," wrote Bernstein, a Democratic-nominated justice, and Viviano, a Republican-nominated justice. "But it is our job to decide the extent to which the executive branch may properly wield that power in the first place. By passing up the opportunity to put this issue to rest, the majority lets the uncertainty fester."

Viviano and Bernstein said the question of the state Department of Health and Human Service's ability to issue epidemic orders was a "sequel of sorts" to the high court's Oct. 2, 2020, decision to overturn the governor's emergency authority.

The issue may appear "less urgent" because of declining COVID-19 cases, but the pandemic has proven itself to be cyclical as new variants emerge, Viviano and Bernstein wrote. Should a new wave emerge, the state will no longer be able to rely on its epidemic orders under the circuit court decision, they wrote. 

"That may be a comfort to some and a cause of concern to others," they wrote. "But, until this court rules, our citizens will not know what their rights are or whether they will continue to be subject to the emergency powers of the executive branch."

The Michigan Department of Health and Human Services has maintained the circuit court's order declaring epidemic orders unconstitutional did not impact their enforceability, in large part because the department believed the circuit judge had overstepped his authority.

When asked about Viviano and Bernstein's concerns about the effectiveness of the circuit court decision, department spokeswoman Lynn Sutfin said the justices' comments had "no impact on the status quo of the department's work to protect Michiganders and save lives during the pandemic and any future public health threats."

"These actions rest firmly on epidemic powers given by the Legislature to the director of the MDHHS after the Spanish Flu a century ago," Sutfin said.

After the Supreme Court's Oct. 2, 2020, decision, Gov. Gretchen Whitmer used the health department's power under the state's Public Health Code to issue epidemic orders almost identical to those she issued under her overturned executive authority. The health department used the orders to cite a Gaylord restaurant, the Iron Pig, for refusing to close during a second restaurant shutdown in the fall of 2020. 

The Iron Pig sued the state, and an Otsego County circuit court judge ruled in January the epidemic orders — like Whitmer's overturned executive orders — were an unconstitutional delegation of legislative authority. Judge Colin Hunter severed the epidemic orders statute from the Public Health Code. 

The state quickly appealed to the circuit judge, the Court of Appeals and the Michigan Supreme Court, stating the decision resulted in immediate confusion about the legality of epidemic orders that still remain in place — such as one requiring the prioritization of vaccine boosters in nursing homes. 

The state asked the Supreme Court to uphold the epidemic orders, rule the circuit judge had overstepped his authority and "disavow" the initial Oct. 2, 2020, decision that the circuit judge used to support his order. 

The Oct. 2, 2020, was decided along party lines when the Michigan Supreme Court had a majority of Republican-nominated justices, and Whitmer had criticized the decision as being politically motivated. The majority flipped in the 2020 election, so that Democratic-nominated justices now have a 4-3 majority on the court. 

eleblanc@detroitnews.com