MI SUPREME COURT STRIKES DOWN GOV'S EXEC ORDERS! Ep. 7.033

welcome once again to lato's law here's steve lato a lot of big news lately and one of the biggest stories across my desk crossed my desk last night about six o'clock and i got a bunch of emails from people who said steve this is one you may want to take a look at and of course you guys are right gary john jonna scott allen and glenn all were the ones who got it to me and what we're talking about of course is the michigan supreme court just struck down the governor's uh last orders regarding covid restrictions and so this is a controversy that's been going on quite some time now and i don't need to go into too much detail on this except to tell you that at the beginning of all this the governor of the state of michigan along with the governors of other states invoked emergency rules there were laws on the books of things they could do in an emergency and our governor invoked those laws and passed a bunch of restrictions on how you could behave in public what you could do out there and so on and how businesses would operate and so a lot of people were upset by that and a lot of people questioned whether that was legal or not was it legal or not so i did a couple videos on that i pointed out that the laws were on the books one of the laws been in the book since 1945 and i said in essence if you don't like that law there's two things you can do one of which is the legislature could write a new law to replace the old law pass that and then that become a new law new laws replace old laws all the time i said also if you wanted to you could take a case up to the michigan supreme court or the u.s supreme court but michigan supreme court's a better bet and ask the michigan supreme court to review what's happening and ask whether or not this is legal and the michigan supreme court yesterday in a ruling that is i'm not making this up 150 some odd pages thick and i print on both sides that's the only reason i can hold this in one hand said that what was happening after the initial ruling was in fact unconstitutional under michigan's state constitution so there's a lot going on here and i'm going to try to summarize it as best i can because it's 156 pages and one guy who sent it to me actually said steve i'm going to go read the opinion now i'll get back with you this morning i got up and i saw the email was to see if i just finished the opinion now i didn't look at the time stamp to see how long it took him but i suspect it was a lengthy time so i actually sat down last night and this morning and read through the opinion i also then went out and read some of the news coverage to make sure there's nothing i missed and i'm here to tell you this is the opinion from the michigan supreme court regarding certified questions from the united states district court western district of michigan southern division and the case is entitled midwest institute of health pllc versus governor and i have to tell you right off the bat this is a very unusual procedural issue because the case that is before the michigan supreme court is in federal court and this is a very unusual process but it's allowable and this happens from time to time but not very often but we have federal courts we've got state courts the federal courts are all across the country they answer to the appeals courts and appeals courts of course go up to the supreme court so michigan has got federal courts here the western district of michigan being one of the districts for the federal district court in michigan so if there's an issue of state law that is not clear cut a federal court can certify a question and send it to the state supreme court and say this question is unsettled and we don't know how to rule because we need a ruling from you to tell us what the law is because and i don't want to get too deeply into real heavy legal doctrine here but there's a concept called the erie doctrine e-r-i-e like the lake lake erie the eerie doctrine and the erie doctrine says that federal courts when they sit in a particular state if there's something before them it's a state law issue even though it's a federal court they'll follow the state law when appropriate but how do they follow the state law if it's never been ruled on by the state supreme court and so federal courts are allowed if they want to to say well here's what we think they would do and they've done that in the past but on something as important as these coveted emergency orders the federal district court said you know something this is something that we think that the state supreme court needs to rule on so we know how to rule on it as well so the midwest institute of health uh and a bunch of other companies and jeffrey gulick brought an action the united states district corps of the western district of michigan against the governor of michigan the attorney general and the michigan department of health and human services director challenging a governor's executive order and they give the order numbers 2020-17 which prohibited health care providers from performing non-essential procedures and that order was issued by governor whitmer as part of a series of executive orders issued in response to the pandemic now several other orders were issued after that some of the previous orders expired that becomes irrelevant here because the michigan supreme court says we don't care which orders we're talking about you were to talk about basically all of them and those orders were issued under two separate statutes one was called the emergency powers of the governor act the epga and that was passed in 1945 so that was passed 75 years ago the other one is the emergency management act of 1976 and you can guess that was passed in 1976. on april 1st 2020 the governor issued an executive order which declared a state of emergency and under the first act the 1945 act a state of emergency and state of disaster were declared she then also requested that the legislature extend the state of emergency and state of disaster declarations by 70 days and they did that they adopted a resolution extending the state of emergency instead of disaster through april 30th 2020. now here's where the issue arises when that time frame expired she then declared a new emergency and issued a new executive order and she issued more since then so the plaintiffs in this case went into federal court and said look we have no dispute that those initial declarations of emergencies and disasters were appropriate and the law says that she can declare an emergency and she can ask the legislature for an extension which she got but once an extension expires if she's simply allowed to issue new emergency orders and say well it's another emergency it's another emergency then theoretically she could do that forever and of course the other argument is well read the statute what does the statute saying so you've got two different statutes the 1945 statute in the 1976 statute so the reason this particular plaintiff the gentleman whose name i gave earlier jeffrey goolick brought this action is that he had wanted to get knee surgery done at one of these clinics and that was considered to be elective surgery and therefore they said you can't get that because of the executive order saying you can't so he filed that and of course that becomes a cause of action he files at the federal court and federal court then says we're not exactly sure how the state supreme court would rule so we're going to send it to them so the state supreme court was asked to rule on two specific questions so they certified the questions question number one whether under the emergency powers of the governor act the 1945 act governor whitmer has the authority after april 30th 2020 to issue or renew any executive orders related to pandemic number two whether the emergency powers of the governor act and or the emergency management act the later one violate the separation of powers and or the non-delegation clauses of the michigan constitution two questions two questions so the question is is she allowed to issue another order declaring an emergency after that one date and are those statutes constitutional not under the federal constitution but the state constitution michigan's state constitution so now here's the interesting part it says the michigan supreme court in opinions by several justices unanimously held unanimously held so i had several people emailing me to steve it was a unanimous decision well it was unanimous decision in one respect in that all of the justices did agree on one point they did not all agree in the same way they did not all agree on all the points so for instance the supreme court in an opinion by justice markman uh joined by justices zara and clement on three parts and on the fourth part by justice viviano held so you've got four of them agreeing but three of them agree in one way and the fourth agrees in a different way and the second certified question is partially answered in the affirmative the governor did not possess the authority to exercise emergency powers under the epga the oldest one because the act unlawfully delegates legislative power to the executive branch which we'll get to in a second but then it says uh justice markman joined zara and clements while viviano concurred in part dissented in part uh mccormick was joined by bernstein and kavanaugh concurring in part and dissenting in part and concurred with markman's opinion the extent that it concluded certified questions blah blah blah but mark mccormick dissented from the majority's constitutional striking and justice bernstein concurred in part and dissented in part disagreed and so on so it's a very very confusing opinion and i'm gonna do my best to distill this for you i'm gonna do my best to distill this for you but basically it comes down to the fact that they find that she had no rights to issue any orders after april 30th 2020 and they find that the 1945 act is unconstitutional that's it in a nutshell so i mentioned before this case concerns the nature and scope of the state's public response when the most threatening public health crises of modern times and this is the majority opinion writing here in response to a global national and state outbreak of the severe acute respiratory disease named covid19 michigan's governor issued a succession of executive orders over the past six months limiting public and private gatherings closing and imposing restrictions upon certain businesses and regulating a broad variety of other aspects of the day-to-day lives of our state citizens in an effort to contain the spread of this contagious and sometimes deadly disease first of all and most news reports that i read about this opinion pointed this out the very first footnote the court writes our decision leaves open many avenues for the governor and the legislature to work together to address this challenge and we hope that this will take place so in other words the court's not saying the government shouldn't do anything the court is saying the government probably should do something but they just need to do it in a way that doesn't violate what we think you did previously because we think that violated the constitution so they're talking about this one executive order that got passed and it was on april 30th 2020 the governor issued executive order 2020-66 which terminated the declaration of a state of emergency of disaster but immediately declared a new one so the question is when the first one and this extension that was granted the legislature expired does she have the right to declare another one okay and i had several people bring this up to me so steve if she's allowed to do that theoretically she could just do that forever so first of all i should point out that this is not the first time a court has ruled on this issue okay in fact i had several people send me links previously to other rulings in michigan and other states said hey steve there's a lot of action going on here well i knew the supreme court was considering this particular issue so i wanted to wait till this came out but you should know that previously somebody brought an action to the court of claims which is a state court here in michigan and argued that the governor did not possess the authority under the epga the old statue and so on and that court specifically said she did absolutely said she did and a court of appeals upheld that order okay that ruling so i had several people tell me uh in emails recently and before and they say steve but what she's doing is wrong well here's the thing if you think it's wrong it's great someone else thinks it's wrong that's great but it's like a football game okay the referees make rulings and once the ruling gets made that's the ruling and i've seen referees make bad rulings i can think of a few right off the top my head right now but the point is that i'm an attorney i tell you about the law and i have to point out to you that the arbiters of the law are the courts so when the court of appeals says we hold that this is a valid use of this law unless it gets struck down by the supreme court that is actually proper so for the people who said but steve it was wrong at the time it was right it became wrong yesterday so this court writes the governor's declaration of a state of emergency or state of disaster may only endure for 28 days absent legislative approval of an extension so if the legislature does not act the governor is obligated to terminate the state of emergency or disaster after 28 days and that is what that happens that's that's what happens so now the epga though is the big one that's one that goes back to 1945. and the question is does that give her the sweeping powers that some people thought she had so for instance i'm going to read to you what it says this is a statute itself from 1945. during times of great public crisis disaster rioting catastrophe or similar public emergency within the state or reasonable apprehension of immediate danger of a public emergency that kind when public safety is imperiled either upon application of the mayor of a city sheriff of a county or the commissioner of the michigan state police or upon his or her own volition the governor may proclaim a state of emergency and designate the area involved and then it talks about the fact that this has sweeping powers so that's the earlier 1945 act right well here's the question several people were making arguments in this matter including people from the legislature who filed their own action and then the guy who wanted the knee surgery and they said for instance that this statute doesn't apply statewide it talks about the area involved and if the area involved is important well it could be referring to the whole state because the whole state's a state but the supreme court is we disagree and do not find this to be a reasonable understanding of the law area is defined as a geographical region according to the dictionary and notice they did not use a blacks either the eastern merriam-webster's and the area involved in the affected area may comprise the entire state or may comprise some more localized geographical part of the state so they're rolling right along there and they're talking about how this statute does appear to do a whole lot of stuff but they do say this is in fact the kind of thing this statute was designed to address given that covet 19 has resulted in the deaths of many thousands in michigan hundreds of thousands across the country coveted 19 in our judgment can reasonably said to imperil public safety so this is one of the situations where if you didn't actually have the cheat sheet at the front of the opinion you'd be reading going hey i think we won [Laughter] but the problem according to the supreme court comes down to a section of the michigan state constitution that says specifically at article 3 section 2. the powers of government are divided into three branches legislative executive and judicial you might recognize those by the way it's the same division they have in the u.s constitution no person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution so as you can imagine you have an executive who signs laws once they've been passed by the legislature uh you have the legislature passing laws that get signed by the executive you've got the judicial branch running the courts and then reviewing things that are put before them trying cases and so on so those powers appear to be fairly well defined most people think that right so the question then becomes does the michigan legislature have the right to pass a law giving power to the governor that would appear to be power vested in the legislature this is where the argument falls apart from the governor's side concerning the subject matter of the emergency powers conferred by the 1945 act it is remarkably broad authorizing the governor to enter orders to protect life and property or to bring the emergency situation within the affected area under control it is indisputable such orders to protect life and property encompass a substantial part of the entire police power of the state there seems to be no doubt that this power does extend to the protection of the lives health and property of citizens and the preservation of good order and public morals and the police power is legislative in nature so what they're basically saying is that the legislature in 1945 passed a law signed by the way by the government at the time that gave the governor too much power but the interesting thing is that law has been in the book since 1945. and one of the problems that the supreme court has with this is the duration of that power so if if the law had said if there's an emergency that lasts a week the governor can take over for one week straighten things out but the law doesn't say that so concerning the duration of the emergency powers conferred by the 1945 act those powers may be exercised until a declaration by the governor that the emergency no longer exists thus the governor's emergency powers according to statute are of indefinite duration so this is a problem the fact that the law authorizes indefinite exercise of emergency powers for perhaps months or even years considerably broadens the scope of authority conferred by the statute so there's a problem with the fact that the statute appears to give the governor unlimited powers with respect to how long this emergency situation can be declared to be valid so we accordingly conclude that the delegation of power the governor to promulgate reasonable orders rules and regulations as he or she considers necessary to protect life and property constitutes an unlawful delegation of legislative power to the executive and is therefore unconstitutional under the constitution and they're referring to michigan's state constitution again because that constitution prohibits exercise of the legislative power by the executive branch so the fact that the powers conferred were listed as being either reasonable and necessary or reasonable and necessary does not actually get them around that problem so they say that the fact that that section gives this unbridled power to the governor makes it unconstitutional now we're gonna get into a very rare area of the law here refer to statutory construction statutory construction and what we're talking about is how you read a statute or a law and how you construe it same route as construction so we're not talking about how you build a statute talk about how you construe a statute so when you're reading a statute and it appears to be unclear in some way how do you how do you deal with the ambiguity for instance and one of the things that pops up here is so you've got this act in 1945 that lists all this stuff that you can do and not do in an emergency if you're the governor and the question becomes that the supreme court has just decided that one section of the statute is unconstitutional does that render the whole statute unconstitutional or just that part and the court's will as a matter of statutory construction try to save a statute if it can be saved so if there's 10 parts with a statute and one part is unconstitutional if the other nine are constitutional they'll say oh you know something will strike as one portion makes sense but the problem happens where occasionally you run into a situation where you strike a portion and the rest of the statute either makes no sense or that was the heart of the statute so the supreme court goes into a long discussion on that probably 10 or 15 pages it says in our judgment the epga the 1945 statute is inoperative when we sever the power to protect life and property from the remainder therefore the entire epga is unconstitutional in its entirety so the entire statute gets struck down so what they're basically saying is there's two statutes on the book and the one statute says that the governor can invoke an emergency and declare an emergency for a short period of time and extend it perhaps with the legislature's help and in that period issue rulings and executive orders and in the original time frame executive orders also and presumably if the legislature didn't act then she'd be stuck with this little short time frame here but we have that situation where they said okay the first statute says that she gets that one time frame boom everything passed that's gone now the second statute which appeared to have a lot of the same parallel grantings of power to the governor they're saying entire statutes unconstitutional it's been in the book for 75 years but it's unconstitutional 1945 statute unconstitutional and so that happens that happens now it raises a couple interesting points but one of which i want to point out to you for instance that i just hit the opinion at after 48 after 48 pages of the initial opinion of justice viviano's opinion concurring in part and dissenting part and that's what you have for the rest of this where it's concurring this dissenting in that and trying to figure out what they're agreeing on and disagreeing on becomes very very difficult but that happens a lot also okay it's not often that you see a 9-0 opinion from the u.s supreme court or a 7-0 opinion from the state supreme court and i know some people steve it appears there was 7-0 here on one narrow issue and they were they were in fact if i could find the page i don't know if i could or not but if i could find the page there it is wow once while i get lucky on the concluding page of the majority opinion which is signed by four judges it says we note that majorities of this court have joined in full part three b of this opinion um and part three c two the former is unanimous holding of this court so with respect to part three b of this opinion it was a 7-0 it was but the others not not so much and this gets us to a situation where i've mentioned this before and i and i get people who comment on my videos and get very very angry with me and and they yell at me about the law and they'll say that law is stupid you're an idiot well those are two different things and don't get me wrong they could both be true but one being true doesn't make the other true the two are unrelated i don't pass laws okay i'm an attorney i'm here to explain the law to you as best i can in michigan so i've said repeatedly if you don't like a law people don't like a law if there's a huge groundswell of support supposedly for people who like this or don't like that they can get together and ask the legislature to rewrite the law pass a law or strike down a law they do it all the time okay so they can do that that's what legislatures do there's there's schoolhouse rock videos on this that are a minute long and explain it to you it's not that complicated the legislature can rewrite a law so the fact that there's a law in the book since 1945 that was unconstitutional on its face makes you wonder why it was there for that length of time and no one noticed it before or what's going on because the next point i've often made is if you don't like the law you can go to court and challenge it that happens all the time also that's when most laws get struck down by courts up on challenge so this law or this group of laws and the executive orders this one were challenged in a variety of courts across the state state court court of appeals and so on and now here we have this unusual procedural move but perfectly legal and and it's happened before where someone filed a court case in federal court and the federal court asked the michigan state supreme court for guidance and the supreme court then ruled theoretically if somebody had the same issue in a lower court michigan and had appealed i believe somebody had they could have appealed that and brought that up and asked the supreme court to rule on in essence the same issues so the supreme court of the state can always rule on and strike down a law and i'm not saying that they did anything wrong here i'm saying they did what they're supposed to that's their job that's their job okay so i said before i forgot which video i set it in i know i've said it more than once that there's two ways that this can be addressed legislatively or in the court system and so here we are in the court system so now i've had people who emailed me said steve but this proves you were wrong the whole time no it wasn't no one is wrong until yesterday and that's how it works that's the weird part about our court system is that the law can be a certain way for years decades 75 years and then a court rules and says no this is the law the law back here was still the way it was and you might say that steve if the law isn't invoked then what's the difference oh i can tell you the big difference i've mentioned before the law of the consumer protection act in michigan that the michigan supreme court just struck down and basically said this law doesn't make any sense therefore it has no power and they dismissed it they didn't overturn it in the sense that they can't rewrite the statute but they but they issued a ruling where basically no one can bring an action under the consumer protection act no individuals can anymore that's what it's designed to do and for decades attorneys had filed lawsuits and gotten relief and and had cases turn out where they've gotten stuff for their clients under the consumer protection act until the michigan supreme court struck it down and said now we don't like salon anymore and now it's gone it's gone so people call my office this is steve the consumer protection act says i should be able to do this yeah it does i go you have to go read this other opinion by the supreme court and see what they say and they'll tell you that you can't do that so it's strange but that really is the point i've said all along go to your legislature get the law changed or take the supreme court and see what they have to say about it and they've spoken now i do have to point out that this is actually an interesting intellectual exercise for anybody stuck into this video for this length of time i salute you but the law of 1945 was passed by a legislature and presumably signed by a governor these things happen this current sitting legislature in michigan is part of the legal actions that were filed to get this before our current supreme court so that means that on some level this legislature is saying we want the court to overturn a previous legislature and as i pointed out earlier discussing what the supreme court wrote there's this delegation of authority in the constitution that says courts do this legislature does this the executive does this what is that when the legislature goes to the courts and says we want you to overturn a previous legislature how different is that than the delegation of authority problem that the court found with the legislature giving power to the governor now the legislature is asking the court to overturn a previous legislature again i'm not saying it's right or wrong i'm saying it's good intellectual exercise okay these are the things we think about so you wonder what they talk about in law school for two years or three years most schools are three uh this kind of stuff because it's it's interesting so as of right now the michigan supreme court has ruled that the old emergency manager act is unconstitutional and the newer one while still out there was used up when the governor's extension required when her extension expired at the end of april okay so that's done so now people say but wait steve does that mean that i wake up this morning and i can run out of face mask and run into a store and do anything i want no two things first of all it's a 21 day period before this order takes effect and you might wonder why that is but there are court rules that say that anybody who's in front of a court gets a ruling they've got 21 days to either appeal it or request for a re-hearing or there's a bunch of other procedural things you can do and so in allowance of that they basically say the order won't take effect for 21 days just in case now the odds of anything like that happening in this case are very slim but theoretically they could so it's there but the other thing to point out and i and i it's in one of the footnotes and i missed it as i was going through here but there are departments of our government like health and human services that have the power to issue rules and regulations and many of the things that people been complaining about the last few months were parts of executive orders but some of them had come down through different departments so for instance i had several people ask me what about the barber there was a barber in michigan who was defiantly cutting hair in contravention of disorder and he got in trouble for that but although the executive orders mentioned hair cutting and so on my understanding is that the department in lansing that oversees people who cut hair had also issued an order saying you can't cut hair and of those two that's the one i'd worry about more because they're the ones who control the licensing so you know if there are other departments out there that have issued their own orders this supreme court ruling does not affect them this supreme court ruling only affects the executive orders issued by the governor after the end of april of this year okay so it's gonna be back the drawing board for her uh and hopefully she can sit down with the legislature and they can work out something i hope they can i can dream can't i but beyond that she still runs a portion of the government and a portion of the government that she runs that falls underneath the executive branch that's my little drawing of triangle the three powers um the departments that she runs can also issue their own rules and so on and so it'll be interesting to see how that plays out because some of the stuff that's out there obviously she does not control but some of it she does so we'll see what happens but as of right now the executive orders issued from lansing by the governor have been deemed unconstitutional to some degree by the supreme court and the others were deemed to have been unlawful due to the interpretation of the later of the two acts but ain't nothing going to happen for a couple weeks in the meantime other actions might take place from other departments so that's it in a nutshell by nutshell i'm in a very very long video for which i apologize i hope you understood everything questions your comments put them below let's talk later bye-bye thank you for watching lato's law start where you are use what you have do what you can

Channel: Steve Lehto

Views: 113,721

Rating: 4.8954706 out of 5

Keywords: lemon law, michigan lemon law, lemon law attorney, lemon law lawyer, http://www.lehtoslaw.com, steve lehto

Id: _xZMWQJubVI

Length: 33min 51sec (2031 seconds)

Published: Sat Oct 03 2020