Real Estate & Property Law

Michigan SCT: Without Legislature's Assent, Governor's Emergency Powers Terminate At 28 Days

By Robert Thomas (inversecondemnation.com)

This just in in a case we've been following. In In re Certified Questions, No. 161492 (Oct. 2, 2020), the Michigan Supreme Court responded to the federal court's certified question about whether, under Michigan's statutes, the governor has the authority to effectively extend a declared state of emergency by terminating an expiring declaration and issuing a new declaration "again declaring a 'state of emergency' and
'state of disaster' under the EMA for the identical reasons as the declarations that had just been terminated -- the public-health crisis created by COVID-19." Slip op. at 8.

The court held no, the statute does not allow the governor to do that, in the absence of the Legislature's approval of an extension:

The Governor argues that because MCL 30.403(3) and (4) provide that '[t]he governor shall, by executive order or proclamation, declare a state of [disaster/emergency] if he or she finds [a disaster/an emergency] has occurred or the threat of [a disaster/an emergency] exists,' the Governor had no choice here but to redeclare a state of emergency and state of disaster. However, when the cited language is read in reasonable conjunction with the language imposing the 28-day limitation, it is clear that the Governor only possesses the authority or obligation to declare a state of emergency or state of disaster once and then must terminate that declaration after 28 days if the Legislature has not authorized an extension. The Governor possesses no authority -- much less obligation -- to redeclare the same state of emergency or state of disaster and thereby avoid the Legislature?s limitation on her authority under the EMA.

Slip op. at 9-10.

A big win for separation of powers. We're following this case, and will take a deeper dive over the weekend even though it isn't about takings because we're in the process of publishing a paper that takes a look at the same issue (although through the lens of Hawaii law), so this case naturally interests us.

Check it out.

In Re Certified Questions From the United States District Court (Midwest Inst. of Health v. Governor), No....

Full post as published by inversecondemnation on October 02, 2020 (boomark / email).