(Source: MIRS.news, Published April 1, 2022) The Michigan Supreme Court Friday denied the Attorney General’s request to appeal its 2020 ruling that the state’s 1945 “Riot Act” was unconstitutional.
The majority said it wasn’t persuaded the questions should be reviewed before the Michigan Court of Appeals does so in Moore Murphy Hospitality v. Department of Health and Human Services.
Republican-nominated Justice David Viviano and Democratic-nominated Justice Richard Bernstein dissented, jointly arguing the request was an opportunity to “provide clarity” on an important issue about the executive branch’s powers to respond to the COVID-19 pandemic.
"Whether those powers were exercised wisely is not for us to judge," the dissenting opinion reads in part. “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."
Attorney General Dana Nessel said in a February court filing that the Oct. 2, 2020, overturning of the 1945 Emergency Powers of the Governor Act (EPGA) was an "errant aberration" that distorted the state's non-delegation doctrine.
In October 2020, the then-Republican heavy Supreme Court held the EPGA violated the Constitution because it purports to indefinitely delegate legislative power to the executive branch.
An Otsego County judge declared a key part of the public health law unconstitutional – a decision that tossed the $5,000 state fine filed against Moore Hospitality's Gaylord-based Iron Pig Smokehouse for operating during a statewide shutdown.
Nessel appealed that ruling to the Michigan Court of Appeals and in a separate filing sought to bypass the court, taking the plea directly to the Supreme Court.
Viviano and Bernstein called the case a "sequel of sorts" to the high court's Oct. 2, 2020, decision to overturn the governor's emergency authority and perhaps “less urgent” since COVID numbers are declining.
However, they noted that the epidemic “has been cyclical, with new variants appearing” and the “imposition of new restrictions” a possibility.
"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."
