Western Wayne Today

Judge Jonathan Tukel recently issued a 21-page dissent in a ruling against a lawsuit the Legislature filed against Gov. Gretchen Whitmer’s ongoing state of emergency declaration, according to Michigan Capitol Confidential.

The Michigan Court of Appeals ruled 2-1 that Whitmer has the authority to keep Michigan in a state of emergency under a 1945 law that allows the governor to declare an emergency and keep it in place without the Legislature's input. 

Tukel argues that the 1945 law does not include the term “epidemic” and that it was no accident that legislators specifically included the term “epidemic” in the 1976 state-of-emergency law, which also allows the governor to declare an emergency. But unlike the 1945 law, the 1976 requires the Legislature's approval every 28 days.

Tukel explained the issues at stake in his dissent.

“We assume that when the Legislature crafts legislation it knows what the existing law is and takes it into consideration,” he wrote, according to Michigan Capitol Confidential. In other words, because the 1945 law does not include the term “epidemic” and the 1976 law does, the governor must rest her emergency powers authority on the 1976 law “with its associated time limit.”

He added, according to Michigan Capitol Confidential, “The majority arrives at a construction under which the EPGA [1945 law] and the EMA [1976 law] 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.”

Tukel included a summation, reported by Michigan Capitol Confidential: “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?'"