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HOUSE OF REPRESENTATIVES AND SENATE, Plaintiffs-Appellants/Cross-Appellees, John F. Brennan, Mark Bucchi, Samuel H. Gun, Martin Leaf, and Eric Rosenberg, Cross-Appellants, v. GOVERNOR, Defendant-Appellee/Cross-Appellant/Cross-Appellee.
Plaintiffs, the Michigan House of Representatives and the Michigan Senate (the Legislature), appeal by right the opinion and order of the Court of Claims granting a declaratory judgment in favor of defendant, the Governor of Michigan, with respect to the Governor's authority to extend a state of emergency and to issue associated executive orders (EOs) under the emergency powers of the governor act (EPGA), MCL 10.31 et seq. The Court of Claims additionally concluded, however, that actions taken by the Governor under the Emergency Management Act (EMA), MCL 30.401 et seq., were ultra vires. The Governor has filed a cross-appeal in regard to that ruling and also takes issue with the determination by the Court of Claims that the Legislature had standing to file suit and seek declaratory relief. Prospective intervenors John F. Brennan, Mark Bucchi, Samuel H. Gun, Martin Leaf, and Eric Rosenberg, all of whom are attorneys, cross-appeal the denial of their motion to intervene in this lawsuit. Proceeding on the assumption that the Legislature has standing to sue, we hold that the Governor's declaration of a state of emergency, her extension of the state of emergency, and her issuance of related EOs fell within the scope of the Governor's authority under the EPGA. We further hold that the EPGA is constitutionally sound. We therefore decline to address whether the Governor was additionally authorized to take those same measures under the EMA and whether the Governor violated the EMA: those matters are moot. Finally, we hold that there is no basis to reverse the order of the Court of Claims denying the motion to intervene. In sum, we affirm on the issues necessary to resolve this appeal.
This case arises out of a worldwide pandemic involving the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), which causes the disease known as COVID-19. In an effort to combat the spread of COVID-19 in Michigan, the Governor declared and extended a state of emergency and issued numerous EOs in connection with the emergency. This lawsuit stems from a dispute between the Governor and the Legislature regarding the scope of the Governor's authority to issue, implement, and extend those emergency-based EOs. We are not called upon, nor is it our role, to examine and resolve issues concerning the nature of COVID-19, the data related to the disease, the statistical or human impact of COVID-19 on Michiganders, whether emergency circumstances justifying the EOs existed, or the appropriateness of the measures the Governor has taken in tackling COVID-19. Rather, we are presented with pure procedural and legal issues, including whether the Legislature had standing to bring suit against the Governor, whether the Governor's declarations and orders exceeded her constitutional and statutory authority, whether the EPGA violates the separation-of-powers and attendant nondelegation doctrine, and whether the prospective intervenors were entitled to intervene in the suit.
II. CONSTITUTIONAL AND STATUTORY FRAMEWORK
In Michigan, “[t]he powers of government are divided into three branches: legislative, executive and judicial.” Const. 1963, art. 3, § 2. And “[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Id. “[T]he legislative power of the State of Michigan is vested in a senate and a house of representatives.” Const. 1963, art. 4, § 1. “[T]he executive power is vested in the governor.” Const. 1963, art. 5, § 1.
In 1945, the Legislature enacted the EPGA. 1945 PA 302. The EPGA was later amended by 2006 PA 546. Section 1 of the EPGA, codified at MCL 10.31, currently provides:
(1) 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 of 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. After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control. Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists.
(3) Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.
Notably, MCL 10.31 does not provide any active role for the Legislature during a public emergency, let alone the power to directly act as a check against a governor's exercise of authority under the EPGA. Our Supreme Court has recognized that “the emergency powers granted to the Governor by PA 1945, No. 302 are exclusive[.]” Walsh v. River Rouge, 385 Mich. 623, 640, 189 N.W.2d 318 (1971). With respect to the EPGA, the Legislature expressly articulated its intent, explaining:
It is hereby declared to be the legislative intent to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster. The provisions of this act shall be broadly construed to effectuate this purpose. [MCL 10.32 (emphasis added).]
A violation of any order, rule, or regulation promulgated by a governor under the EPGA is punishable as a misdemeanor if the order, rule, or regulation expressly states that a violation constitutes a misdemeanor. MCL 10.33.
A little over 30 years later, the Legislature enacted the EMA. 1976 PA 390. The EMA has been amended a couple of times since its inception. See 1990 PA 50; 2002 PA 132. Section 3 of the EMA, MCL 30.403, now provides:
(1) The governor is responsible for coping with dangers to this state or the people of this state presented by a disaster or emergency.
(2) The governor may issue executive orders, proclamations, and directives having the force and effect of law to implement this act․ [A]n executive order, proclamation, or directive may be amended or rescinded by the governor.
(3) The governor shall, by executive order or proclamation, declare a state of disaster if he or she finds a disaster has occurred or the threat of a disaster exists. The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature․
(4) The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists. The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature. [MCL 30.403 (emphasis added).]
As reflected in MCL 30.403, if a governor wishes to extend an existing state of disaster or emergency beyond 28 days, the Legislature must approve the extension by resolution. In that respect, the EMA diverges from the EPGA. Of substantial significance, the EMA expressly provides that it shall not be construed to “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws,” i.e., the EPGA. MCL 30.417(d).
III. BACKGROUND AND PROCEDURAL HISTORY
A. THE GOVERNOR ACTS IN RESPONSE TO COVID-19 CASES IN MICHIGAN
On March 10, 2020, in EO 2020-4, the Governor declared a state of emergency because of the escalation of COVID-19 cases and deaths in Michigan. The legal authorities the Governor cited in support of the declaration were the EMA, the EPGA, and Const. 1963, art. 5, § 1. Among other actions, the Governor closed elementary and secondary schools in EO 2020-5, barred visitors to healthcare facilities under EO 2020-6, shuttered restaurants and bars in EO 2020-9, and restricted nonessential medical and dental procedures in EO 2020-17. The Governor issued the first stay-at-home directive on March 24, 2020, in EO 2020-21, which also identified various exceptions and parameters in regard to the mandate and criteria with which to evaluate whether to maintain, intensify, or relax restrictions in the future.
On April 7, 2020, both chambers of the Legislature adopted Senate Concurrent Resolution No. 24 (2020), which indicated approval of the Governor's declaration of a state of emergency or disaster 2 and, consistently with the EMA, set an expiration date of April 30, 2020, in respect to the duration of the declared emergency. On April 9, 2020, the Governor issued EO 2020-42, which rescinded EO 2020-21, opined that the SARS-CoV-2 continued to be aggressive and a threat to public health, and extended the stay-at-home directive until April 30, 2020. On April 24, 2020, the Governor issued EO 2020-59, rescinding EO 2020-42 and extending the stay-at-home order until May 15, 2020.
B. THE DISPUTE BETWEEN THE LEGISLATURE AND THE GOVERNOR ARISES
On April 27, 2020, the Governor, as required by the EMA, asked the Legislature to extend the state of emergency. The Legislature declined to pass a resolution extending the state of emergency. Instead, the Legislature passed 2020 SB 858, seeking to amend the EMA. The Senate bill provided that “[n]otwithstanding the termination of the underlying state of disaster or state of emergency declaration under this act,” more than two dozen of the Governor's EOs would be extended with end dates varying from April 30, 2020, to December 31, 2020. Despite extending some of the EOs under 2020 SB 858, the Legislature essentially sought to reopen Michigan businesses subject to precautionary measures recommended by the Centers for Disease Control and Prevention, with those measures scheduled to expire on May 30, 2020, under the proposed legislation. The Legislature submitted 2020 SB 858 to the Governor on April 30, 2020. The Governor vetoed the bill.
On April 30, 2020, the Governor issued EO 2020-66. The EO noted that the coronavirus remained “present and pervasive in Michigan,” that “[t]he health, economic, and social harms of the COVID-19 pandemic” remained “widespread and severe,” and that the danger continued to “constitute a statewide emergency and disaster.” The order indicated that a statewide response was necessary to save lives, to protect public health and safety, and to avert catastrophe, while acknowledging the effects on the economy and society as a whole. EO 2020-66 observed that the Legislature, “despite the clear and ongoing danger to the state,” refused to extend the state of emergency under the EMA. EO 2020-66 terminated the state of emergency under and as required by the EMA.
That same day, however, the Governor issued EO 2020-67, which cited the EPGA as supporting legal authority for this order. EO 2020-67 was issued one minute after EO 2020-66 was released. EO 2020-67 included language from the EPGA, and it declared that a state of emergency was to remain in place. Quoting MCL 10.31(2), the order provided that the state of emergency would cease “ ‘upon declaration by the governor that the emergency no longer exists.’ ” EO 2020-67 did set a discontinuation date of May 28, 2020, subject to evaluation by the Governor before expiration in order for her to assess whether the state of emergency should continue beyond that date. The Governor then issued EO 2020-68 under the EMA, declaring—anew—a state of emergency across Michigan. This order was made effective immediately and was scheduled to continue through May 28, 2020. EO 2020-68 indicated that the Governor would evaluate the continuing need for the order before its expiration. EOs 2020-67 and 2020-68 extended the life of various earlier EOs.3
C. THE LEGISLATURE COMMENCES SUIT AGAINST THE GOVERNOR IN THE COURT OF CLAIMS
The slew of EOs the Governor issued on April 30, 2020, triggered an immediate response from the Legislature. On April 30, the Senate adopted a resolution authorizing the Senate Majority Leader to commence legal action on behalf of the Senate, challenging the Governor's authority to extend or redeclare a state of emergency; the House adopted a similar resolution.
On May 6, 2020, the Legislature filed suit in the Court of Claims against the Governor, alleging that EO 2020-67 (April 30, 2020 order keeping a state of emergency in place under the EPGA) and EO 2020-68 (April 30, 2020 order redeclaring a state of emergency under the EMA) were invalid.4 The Legislature contended that the Governor's actions were not statutorily or constitutionally authorized. The Legislature alleged a violation of the EMA in Count I, a violation of the EPGA in Count II, a violation of Const. 1963, art. 5, § 1 in Count III, and a violation of the Separation of Powers Clause, Const. 1963, art. 3, § 2, in Count IV. Additionally, the Legislature moved for a declaratory judgment, asking the Court of Claims to declare that the Governor's EOs were ultra vires. In particular, the Legislature requested the following declarations:
1. The Governor's authority to act under the EMA ended April 30, 2020;
2. The EPGA does not provide authority for the Governor's COVID-19 executive orders;
3. The Governor has no lawmaking power under Const. 1963, art. 5, § 1; and
4. The Governor's ongoing COVID-19 executive orders violate the separation of powers.
The Governor responded that the complaint did not satisfy the verification requirement of MCL 600.6431(2)(d).5 The Governor further argued that the Legislature lacked standing because it had no special interest at stake and could not meet the obligation to show an actual controversy under MCR 2.605. The Governor also insisted that she had authority under both the EPGA and the EMA to declare states of emergency and to issue orders to protect the residents of Michigan. The Governor additionally posited that the standards contained in the EPGA protected against any claim that the Legislature improperly delegated its lawmaking or legislative power to the executive branch when it enacted the EPGA. Thus, there was no violation of the Separation of Powers Clause.
The Legislature replied that it had standing because it held a special and unique interest in the case in that the Governor had nullified a legitimate legislative decision not to authorize continuation of the state of emergency. The Legislature also asserted that it had established the existence of an actual controversy for purposes of seeking declaratory relief under MCR 2.605. The Legislature disputed that the EMA granted the Governor continuing authority to act alone beyond the initial 28-day period of a state of emergency, contending that to so rule would render the legislative-approval provision in MCL 30.402 obsolete. Furthermore, the Legislature maintained that the EPGA did not provide the Governor with boundless authority and that the EPGA violated the Separation of Powers Clause.
D. THE EFFORT TO INTERVENE
Cross-appellants, five individual attorneys, moved to intervene in the lawsuit, arguing that they enthusiastically agreed with the Legislature but wanted the Court of Claims to remember that attorneys had an interest in “being free of unlawful and arbitrary strictures on [their] personal and professional activities.” The Legislature expressed concerns about a potential delay should the Court of Claims choose to grant the motion to intervene, insisting that the Legislature adequately represented the position of prospective intervenors. The Governor opposed intervention on the basis of the purported delay that would occur by allowing the attorneys into the suit. The Governor indicated that prospective intervenors would be more appropriately heard as amici curiae.
The Court of Claims denied the motion to intervene, reasoning that the Legislature adequately represented the interests of the five attorneys. The Court of Claims also determined that issues that would be created by allowing intervention were outside the focus of the case and that intervention would cause a delay in the proceedings. The Court of Claims permitted the five cross-appellants to be received as amici curiae.
E. OPINION AND ORDER OF THE COURT OF CLAIMS
The Court of Claims conducted a hearing on the issues posed in the case and permitted extensive arguments by the parties. Subsequently, the Court of Claims issued a written opinion and order. The Court of Claims first disposed of the Governor's argument regarding the verification requirement of MCL 600.6431(2)(d). Considering that the Governor acknowledged that a subsequent filing by the Legislature was notarized in accordance with the statute, the Court of Claims determined that the issue was moot and declined to analyze it.
The Court of Claims next addressed the question of the Legislature's standing to bring the action and obtain relief, framing the issue as “whether the Governor's issuance of EO 2020-67 and/or 2020-68 had the effect of nullifying the Legislature's decision to decline to extend the states of emergency/disaster.” It cited with approval federal caselaw from the United States Court of Appeals for the Sixth Circuit holding that legislators have standing to sue when arguing that their votes had been nullified. The Court of Claims also noted that the Sixth Circuit had indicated that a completely nullified legislative vote is a sufficiently concrete injury to the Legislature's interest to support standing. The Court of Claims distinguished League of Women Voters of Mich. v. Secretary of State, 331 Mich. App. 156, 952 N.W.2d 491 (2020) on the basis that the Legislature here was not seeking court resolution of a lost political battle; it was, instead, alleging that the Governor's actions uniquely injured it by nullifying an act of the body as a whole. The Court of Claims concluded that the Legislature had standing.
The Court of Claims next made short shrift of the Governor's reliance on Const. 1963, art. 5, § 1, which vested her with executive power, in providing her the requisite authority to issue the EOs. The Court of Claims observed that the Governor did not assert that she had authority to issue the EOs solely on the basis of the constitutional provision and absent enabling legislation.
The Court of Claims next examined the EPGA, explaining that it bestowed broad authority on the Governor to declare a state of emergency and to act to bring the emergency under control. The Court of Claims rejected the Legislature's attempt to restrict the scope of the EPGA to only local or regional emergencies, stating that that argument was inconsistent with the EPGA's plain language, which casts a much wider net. The Court of Claims discounted the Legislature's argument that when the EPGA and EMA are read together, it is apparent that the EPGA was not intended to address statewide concerns. The Court of Claims opined that the Legislature itself harmonized the two acts when it expressly provided that nothing in the EMA was intended to limit a state of emergency proclaimed under the EPGA. The Court of Claims rebuffed the argument that the legislative history of the EPGA revealed a limitation to local matters, determining, in part, that the Legislature was relying on “mere generalities and anecdotal commentary.”
The Court of Claims likewise dispatched the Legislature's argument that the Governor's EOs violated the separation of powers. It relied on caselaw holding that the Legislature may, without violating the Separation of Powers Clause, obtain the assistance of the executive branch, provided that the Legislature sets forth adequate standards. The Court of Claims concluded that the EPGA contained sufficient standards and criteria to guide a governor's declaration of an emergency and to issue associated EOs, including the requirement that orders be reasonable and necessary under the circumstances. The Court of Claims determined that the Legislature's challenge of the EPGA was meritless and that the Legislature had failed to establish grounds to invalidate the EOs predicated on the EPGA.
Finally, the Court of Claims turned to the validity of EO 2020-68, in which the Governor redeclared a state of emergency under the EMA. The Court of Claims opined that nothing in the EMA precluded legislative extension for multiple 28-day periods. According to the Court of Claims, the Governor's redeclaration of an emergency occurred only because the initial 28-day period had expired without renewal, not because the emergency had ceased to exist and then reemerged. The Court of Claims focused on the language in the EMA providing that a governor “shall issue an executive order” declaring the emergency terminated absent the Legislature's approval of an extension by resolution. MCL 30.403(3) and (4). The Court of Claims characterized the 28-day statutory limit in MCL 30.403 as a restriction imposed on gubernatorial authority. It indicated that the Legislature limited the time in which the Governor could act independently in responding to a specific emergency. The Court of Claims ruled that because the Legislature did not extend the emergency by resolution upon request by the Governor, the Governor's issuance of EO 2020-68 was ultra vires under the EMA.
We conclude that the Governor's declaration and extensions of a state of emergency, along with the associated EOs, were actions all falling within the scope of the Governor's authority under the constitutionally sound EPGA. Our holding renders moot issues concerning whether the Governor was additionally authorized to take those same measures under the EMA or whether the Governor violated the EMA. The Legislature is thus not entitled to relief even if it has the requisite standing to sue the Governor. In light of this highly expedited appeal, we shall proceed on the assumption that the Legislature had standing to file suit against the Governor for declaratory relief.
B. THE EPGA
1. STANDARD OF REVIEW
We review de novo as a question of statutory interpretation whether the Governor exceeded the power granted her by statute. See Mich. Gun Owners, Inc. v. Ann Arbor Pub. Sch., 502 Mich. 695, 702, 918 N.W.2d 756 (2018). “That means that we review it independently, with no required deference to the trial court.” Id. “Likewise, this Court reviews de novo constitutional questions, including those concerning the separation of powers.” Debano-Griffin v. Lake Co., 493 Mich. 167, 175, 828 N.W.2d 634 (2013).
2. RULES OF STATUTORY CONSTRUCTION
In Slis v. Michigan, 332 Mich. App. 312, 335-336, 956 N.W.2d 569 (2020), this Court recited the well-established principles of statutory construction, observing:
This Court's role in construing statutory language is to discern and ascertain the intent of the Legislature, which may reasonably be inferred from the words in the statute. We must focus our analysis on the express language of the statute because it offers the most reliable evidence of legislative intent. When statutory language is clear and unambiguous, we must apply the statute as written. A court is not permitted to read anything into an unambiguous statute that is not within the manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain statutory language or substitute its own policy decisions for those decisions already made by the Legislature.
Judicial construction of a statute is only permitted when statutory language is ambiguous. A statute is ambiguous when an irreconcilable conflict exists between statutory provisions or when a statute is equally susceptible to more than one meaning. When faced with two alternative reasonable interpretations of a word in a statute, we should give effect to the interpretation that more faithfully advances the legislative purpose behind the statute. [Quotation marks and citations omitted.]
3. DISCUSSION AND RESOLUTION—SCOPE AND EXTENT OF AUTHORITY
The Legislature argues that the Governor cannot use the EPGA to justify an indefinite statewide emergency. The Legislature further contends that the Court of Claims created an irreconcilable conflict between the EPGA and the EMA with its construction of the two acts. The Legislature also maintains that the text of the EPGA and its historical context establish that the EPGA is intended to address emergencies that are confined to the local level and not statewide emergencies. As an overview of its position, the Legislature asserts as follows:
All parties agree that the EPGA and the EMA cover the same subject matter. Under fundamental principles of statutory construction, they must be harmonized and read so that every word in both statutes is given meaning. Only the Legislature has offered such a reading here: the EPGA is for localized issues, while the EMA can reach as widely as a statewide disaster. The Court of Claims's adoption of the Governor's position—that the statutes independently authorize every single action she has taken—renders ever[y] word of the 1976 EMA's 12 pages of text surplusage. This Court should reverse.
We hold that the plain and unambiguous language of the EPGA and the EMA does not support the Legislature's position. We begin by dissecting the EPGA's language to determine whether the EPGA's application was intended to be restricted to local emergencies. The first sentence of MCL 10.31(1) provides:
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 of 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.
It hardly sounds as if the Legislature was focused solely on local emergencies when speaking in terms of a great public crisis, disaster, catastrophe, or similar emergency that imperils public safety. Indeed, its use of the adjective “great” instead suggests legislative contemplation of an emergency that is expansive or substantial, not merely a local emergency. A statewide outbreak of disease such as COVID-19 can certainly constitute a great public crisis, disaster, or catastrophe, and it undoubtedly can imperil public safety. Although “rioting” occurs most often in a limited area, statewide rioting can happen. Moreover, rioting is but one example of a public emergency listed in MCL 10.31(1). The statutory language also plainly states the public emergency must exist “within the state.” Id. Contrary to the Legislature's strained interpretation, an emergency “within” our state can patently encompass not only a local emergency but also a statewide emergency affecting all of Michigan. There can be no dispute that the spread of COVID-19 was and is occurring “within the state” of Michigan. The prepositional phrase “within the state” clearly does not restrict the emergencies the EPGA contemplates to isolated emergencies in local communities. A single Michigan county can be described as being “within the state,” but the same is true when discussing all 83 of Michigan's counties viewed together as a whole: they are “within the state.” The Legislature could have easily expressed that the EPGA pertains only to public emergencies within a village, city, township, county, or other unit of governance, or the Legislature could have stated that the EPGA does not apply to statewide emergencies, but it did not do so.6 The language the Legislature chose likely reflected the unremarkable and self-evident proposition that emergencies occurring outside the state did not implicate the EPGA.
With respect to the language in the first sentence of MCL 10.31(1) referring to an application for a declaration of emergency from a mayor, county sheriff, state police commissioner, or a governor acting on his or her own volition, we easily determine that the language is broad enough to encompass the occurrence of either a localized or a statewide emergency. While an application by a mayor or a county sheriff would likely relate to a local emergency, an application by a state police commissioner 7 or governor could unquestionably concern a statewide emergency.
The concluding language in the first sentence of MCL 10.31(1) provides that a “governor may proclaim a state of emergency and designate the area involved.” (Emphasis added.) The emphasized language plainly does not preclude the declaration of a state of emergency that designates the entire state as the “area involved.” There is no restrictive or limiting language with respect to the term “area,” and “area” simply means, in pertinent part, “a geographic region.” Merriam-Webster's Collegiate Dictionary (11th ed.). Were we to exclude the “state” as a whole from constituting the “area” subject to an order, rule, or regulation under the EPGA, we would be reading language into an unambiguous statutory provision and rewriting the plain language of the EPGA. That we may not do.
The second sentence of MCL 10.31(1) provides that “[a]fter making the proclamation or declaration [of a state of emergency], the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” (Emphasis added.) The prepositional phrase “within the affected area” is plain and unambiguous. Consequently, for the reasons already discussed with regard to examining the term “area” and the phrase “within the state,” the language can concern a local emergency or a statewide emergency depending on the extent of the public crisis, disaster, or catastrophe. An “affected area” can span the entire state, especially with respect to a contagious disease, thereby establishing a statewide emergency that needs to be controlled. Additionally, and quite obviously, a governor's efforts under the EPGA “to protect life and property” can extend to the lives and property of persons in a local community or the lives and property of everyone in Michigan.
Keeping our attention on the EPGA for now, we note that the last sentence of MCL 10.31(1) provides:
Th[e] orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.
There is nothing in the plain and unambiguous language of this provision that limits or restricts the use of orders, rules, and regulations to solely confront local emergencies; the language is broad enough to include statewide emergencies. We have already dispensed with the arguments regarding the word “area.” And all of the specific examples of orders, rules, and regulations can apply in a limited manner at a local level or in an extensive manner at a statewide level. For example, during a state of emergency, a governor could regulate the use of buildings in a small town or across the entire state.
Without yet considering the EMA, under the plain and unambiguous language of the EPGA, we conclude that a governor has the authority to declare a statewide emergency and to promulgate reasonable orders, rules, and regulations during the pendency of the statewide emergency as deemed necessary by the governor, and which the governor can amend, modify, or rescind. Additionally, a declared statewide emergency only ends upon the governor's declaration that the emergency no longer exists. That has yet to occur in the instant case. As noted earlier in this opinion in regard to the EPGA, the Legislature specifically declared that its intent was “to invest the governor with sufficiently broad power of action in the exercise of the police power of the state to provide adequate control over persons and conditions during such periods of impending or actual public crisis or disaster.” MCL 10.32 (emphasis added). Our conclusion regarding the breadth of the EPGA and that it pertains to statewide emergencies is entirely consistent with the expressed legislative purpose of the EPGA.8
The Legislature argues that the EPGA must be harmonized with the EMA and that a distinguishing feature between the two acts must be recognized because if they are effectively interchangeable and a governor can pick and choose which statute to invoke as he or she likes, the EMA and its requirement of legislative approval to extend a state of emergency are rendered surplusage. The Legislature contends that to distinguish the acts so as to make it possible to read them in harmony and give the EMA meaning, it is incumbent upon us to limit or restrict a governor's authority under the EPGA to local emergencies. Again, the Legislature maintains that only the EMA applies to statewide emergencies.
When two or more statutes arguably relate to the same subject or have the same purpose, the statutes are deemed in pari materia and must be read together in order to discern legislative intent. Measel v. Auto Club Group Ins. Co., 314 Mich. App. 320, 329 n. 7, 886 N.W.2d 193 (2016). The purpose of the in pari materia rule is to effectuate the legislative goal as evinced by the harmonious statutes on a particular subject. Id. “When two statutes are in pari materia but conflict with one another on a particular issue, the more specific statute must control over the more general statute.” Donkers v. Kovach, 277 Mich. App. 366, 371, 745 N.W.2d 154 (2007). “It is ․ well established that a later-enacted specific statute operates as an exception or a qualification to a more general prior statute covering the same subject matter and that, if there is an irreconcilable conflict between two statutes, the later-enacted one will control.” In re Midland Publishing Co., Inc., 420 Mich. 148, 163, 362 N.W.2d 580 (1984). These are statutory-construction doctrines designed to discern the intent of the Legislature.
There can be no dispute that the EMA is much more comprehensive, specific, and detailed than the EPGA, that the EPGA is the older legislation, and that the EMA explicitly defines a disaster as including an “epidemic,” MCL 30.402(e). The Legislature relies on the doctrines of statutory interpretation already mentioned in its effort to persuade us that the EPGA must be construed to apply only to local emergencies. Given our earlier conclusion that the EPGA, when considered solely on the basis of the language in the EPGA, provides a governor with broad authority to issue orders to confront local as well as statewide emergencies, were we to adopt the Legislature's argument, we would effectively be limiting, modifying, and abridging the EPGA. Our doing so would be in direct contravention of the Legislature's directive in § 17 of the EMA, which provides that the EMA “shall not be construed to”
[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act. [MCL 30.417(d).]
The purpose of this provision is evident on its face and undeniable—the Legislature sought to arm a governor with a full legal arsenal to combat a public emergency, not just the EMA, but also the EPGA, other pertinent statutes, the Michigan Constitution, and even the common law, in conjunction with or independent of the EMA. MCL 30.417(d) does not permit us to use language in the EMA to diminish the reach and scope of the EPGA. The judiciary does not legislate.
Although the EMA specifically refers to an epidemic, we have determined that the EPGA would also cover a statewide emergency involving a contagious disease such as COVID-19, or in other words, an epidemic, which, because of COVID-19's worldwide reach, is coined a pandemic. If despite this conclusion we held that only the EMA is implicated for purposes of ascertaining a governor's authority to address an epidemic or a pandemic, we would offend MCL 30.417(d) and its mandate not to diminish a governor's authority to act under the EPGA. We cannot employ statutory-construction principles or doctrines used to discern legislative intent to produce an interpretation that conflicts with an explicit declaration of the Legislature's intent. See People v. Mazur, 497 Mich. 302, 314, 872 N.W.2d 201 (2015) (stating that when the Legislature actually expressed a clear intent, application of the in pari materia doctrine to find a contrary legislative intent would not be proper). The Legislature's general argument is contrary to the plain and unambiguous language of the EPGA, specifically MCL 10.31, and the EMA, specifically MCL 30.417(d).9
Our concurring-and-dissenting colleague constructs most of his statutory stance on the basis that the EMA specifically refers to an “epidemic,” concluding that this establishes that the EPGA was never intended to cover epidemics. We rejected this view for the reasons discussed above. We also note that the Legislature does not even make the particular argument formulated by the partial concurrence in its brief, nor did it make the argument in the Court of Claims. Our colleague agrees that the argument actually posed by the Legislature—i.e, the EPGA solely addresses local emergencies and the EMA concerns both local and statewide emergencies—lacks merit. Although it is the Legislature's position that the EPGA does not encompass statewide epidemics, it did not contend in its brief on appeal that the EPGA did not cover localized or regional epidemics or epidemics in general. Indeed, as noted earlier, the Legislature conceded that the parties agreed that the two acts “cover the same subject matter.” This is akin to a waiver of the issue. See People v. Carter, 462 Mich. 206, 215, 612 N.W.2d 144 (2000).
Again, MCL 30.417(d) precludes construction of the EMA to “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws[.]” We reject any contention that this provision only bars a limitation, modification, or abridgment of a governor's authority to proclaim or declare a state of emergency under the EPGA, absent any application to the extension of a state of emergency, thereby allowing imposition of the legislative-approval provision in § 3 of the EMA, MCL 30.403. We believe this to be a tortured construction of MCL 30.417(d), which clearly sought to preserve the entire EPGA and to preclude diminishing any and all of the powers the EPGA granted a governor in addition to his or her initial authority to declare an emergency. Moreover, the argument ignores the manner in which the EPGA operates under MCL 10.31. Pursuant to MCL 10.31(2), a governor proclaims or declares a state of emergency, and it simply continues until the governor declares “that the emergency no longer exists.” There is no specific language in the EPGA regarding extensions of a state of emergency, so there would be no reason or need for that language in MCL 30.417(d).10
The Legislature makes the argument that the EMA is rendered meaningless if the Governor's position is validated and the Governor can take the very same measures under both the EMA and the EPGA. We, however, are simply not at liberty to question or ignore the Legislature's informed, intentional decision when enacting the EMA to leave the broad language of the EPGA untouched, fully intact, and operational. “It is a well-known principle that the Legislature is presumed to be aware of, and thus to have considered the effect on, all existing statutes when enacting new laws.” Walen v. Dep't of Corrections, 443 Mich. 240, 248, 505 N.W.2d 519 (1993). Here, we find compelling the fact that in enacting the EMA, the Legislature specifically referred to the EPGA. Hence, we know with certainty that the Legislature was aware of the EPGA; therefore, we must presume that the Legislature recognized and appreciated that the EPGA did not require legislative approval of a governor's actions in continuing a state of emergency until the emergency ceased. Despite this presumed knowledge, the Legislature, while requiring legislative approval to extend a state of emergency under the EMA, expressly declared that the EMA could not be construed as limiting, modifying, or abridging the EPGA.11 Perhaps the Legislature desired an executive-legislative partnership in confronting a public emergency but also wished to avoid a political impasse and inaction in the face of an emergency should the partnership fail. Whatever the reason, we now simply read these statutes as required and accept the Legislature's explicitly articulated decision to retain the EPGA as a source of gubernatorial power during an emergency notwithstanding its subsequent enactment of the EMA.
4. DISCUSSION AND RESOLUTION—THE EPGA AND SEPARATION OF POWERS
The Legislature argues that if we construe the EPGA as urged by the Governor and determined by the Court of Claims, “then the statute faces a larger constitutional problem: separation of powers.” The Legislature contends that the lawmaking power rests exclusively with the Legislature, that the Governor is unilaterally making laws, that the crisis does not diminish the separation-of-powers doctrine, and that the EPGA's supposed delegation of power to the Governor cannot save the EOs.
As an initial observation, we are at a loss to understand how the EPGA is apparently constitutional for purposes of the separation-of-powers doctrine if construed to solely give a governor the power to address local emergencies but violates the separation-of-powers doctrine if applied to statewide emergencies. If there were an unconstitutional delegation of legislative power to the executive branch under the EPGA, whether that power is exercisable to only combat local emergencies or instead available to tackle local and statewide emergencies seems inconsequential to the constitutional analysis and determination of a violation. Regardless, the Legislature has failed to meet its burden to show that the EPGA violates the Separation of Powers Clause.
A statute is presumed to be constitutional, and courts are obligated to interpret a statute as constitutional unless its unconstitutionality is readily apparent. In re Request for Advisory Opinion Regarding Constitutionality of 2011 PA 38, 490 Mich. 295, 307, 806 N.W.2d 683 (2011). Extreme caution must be used when deciding whether to exercise the power to declare a statute unconstitutional. Id. If serious doubt exists with respect to whether we should declare a law unconstitutional, the power to do so must not be exercised. Id. at 307-308, 806 N.W.2d 683. Every reasonable presumption must be indulged in favor of the constitutional validity of a statute. Id. at 308, 806 N.W.2d 683. When examining an argument that a statute is unconstitutional, this Court does not inquire into the wisdom of the legislation. Id. The burden to prove that a statute is unconstitutional rests with the party who is challenging the law. Id.
As stated earlier, legislative power is vested in the Legislature. Const. 1963, art. 4, § 1. Under Const. 1963, art. 4, § 51, “[t]he public health and general welfare of the people of the state are hereby declared to be matters of primary public concern” and “[t]he legislature shall pass suitable laws for the protection and promotion of the public health.” Under our Separation of Powers Clause, Const. 1963, art. 3, § 2, and what is known as the nondelegation doctrine, which flows from the clause, the legislative branch may not delegate its lawmaking authority to the executive or judicial branches. Taylor v. Gate Pharmaceuticals, 468 Mich. 1, 8, 658 N.W.2d 127 (2003); Detroit v. Detroit Police Officers Ass'n, 408 Mich. 410, 458, 294 N.W.2d 68 (1980); Osius v. St. Clair Shores, 344 Mich. 693, 698, 75 N.W.2d 25 (1956). In Makowski v. Governor, 495 Mich. 465, 482-483, 852 N.W.2d 61 (2014), our Supreme Court provided some clarification regarding the nondelegation doctrine, explaining:
While the Constitution provides for three separate branches of government, Const. 1963, art. 3, § 2, the boundaries between these branches need not be “airtight.” In fact, in designing the structure of our Government and dividing and allocating the sovereign power among three co-equal branches, the Framers of the Constitution sought to provide a comprehensive system, but the separate powers were not intended to operate with absolute independence. The true meaning [of the separation-of-powers doctrine] is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution. [Quotation marks, citations, and brackets omitted; alteration in original.]
The Michigan Supreme Court has recognized that the Separation of Powers Clause and the nondelegation doctrine do not prevent our Legislature from obtaining the assistance of the coordinate branches. Taylor, 468 Mich. at 8-9, 658 N.W.2d 127. In Blue Cross & Blue Shield of Mich. v. Governor, 422 Mich. 1, 51-52, 367 N.W.2d 1 (1985), the Supreme Court observed:
Challenges of unconstitutional delegation of legislative power are generally framed in terms of the adequacy of the standards fashioned by the Legislature to channel the agency's or individual's exercise of the delegated power. Although for many years this and other courts evaluated delegation challenges in terms of whether a legislative (policymaking) or administrative (factfinding) function was the subject of the delegation, this analysis was replaced by the “standards” test as it became apparent that the essential purpose of the delegation doctrine was to protect the public from misuses of the delegated power. The Court reasoned that if sufficient standards and safeguards directed and checked the exercise of delegated power, the Legislature could safely avail itself of the resources and expertise of agencies and individuals to assist the formulation and execution of legislative policy.
The criteria this Court has utilized in evaluating legislative standards are ․: 1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits. The preciseness required of the standards will depend on the complexity of the subject. Additionally, due process requirements must be satisfied for the statute to pass constitutional muster. Using these guidelines, the Court evaluates the statute's safeguards to insure against excessive delegation and misuse of delegated power. [Citations omitted.]
The “standards test” satisfies the Separation of Powers Clause, and when legislation contains, either expressly or by incorporation, adequate standards, then the courts, the public, and the Legislature may, if necessary, constitutionally “ ‘check’ ” the use of delegated power. Westervelt v. Natural Resources Comm., 402 Mich. 412, 439, 263 N.W.2d 564 (1978). “In making th[e] determination whether the statute contains sufficient limits or standards we must be mindful of the fact that such standards must be sufficiently broad to permit efficient administration in order to properly carry out the policy of the Legislature but not so broad as to leave the people unprotected from uncontrolled, arbitrary power ․” Dep't of Natural Resources v. Seaman, 396 Mich. 299, 308-309, 240 N.W.2d 206 (1976).
We hold that the EPGA contains standards that are as reasonably precise as the subject matter—public emergencies—requires or permits, such that the Legislature, by enacting the EPGA, safely availed itself of the resources and expertise of the executive branch to assist in the execution of legislative policy. Accordingly, the EPGA does not violate the Separation of Powers Clause, and the Legislature did not prove otherwise. The standards found in the EPGA are sufficiently broad to permit the efficient administration of carrying out the policy of the Legislature with regard to addressing a public emergency but not so broad as to leave Michiganders unprotected from uncontrolled, arbitrary power.
The Legislature complains about the alleged broad and sweeping nature of the EOs issued by the Governor and criticizes the Governor for subjecting citizens to criminal penalties for violating those expansive EOs. But it was the Legislature itself, exercising its role to make policy and enact laws in 1945, that expressly invested the governor with “broad” police power during a public emergency, MCL 10.32, and that explicitly directed that a violation of an order could “be punishable as a misdemeanor,” MCL 10.33. Of course, the Legislature claims that the individuals composing the Legislature in 1945 overstepped their constitutional bounds when enacting the EPGA. We find it more than a bit disconcerting that the very governmental body that delegated authority to the governor to confront public emergencies—and holds and has held the exclusive power to change it—steps forward 75 years later to now assert that it unconstitutionally delegated unconstrained authority.
Under the standards articulated by the Legislature in the EPGA, a governor may declare a state of emergency and promulgate orders, rules, and regulations to address a “great public crisis, disaster, rioting, catastrophe, or similar public emergency ․, or [when there is] reasonable apprehension of immediate danger of a public emergency of that kind[.]” MCL 10.31(1). The declared emergency must imperil “public safety.” Id. Considering the complexity of the subject matter and the myriad unfathomable forms that a public emergency could take, we find this language is as reasonably precise as the subject matter requires or permits. Indeed, more exacting standards would likely be overly confining and unnecessarily bind a governor's hands in any effort to mitigate and control an emergency at the very time he or she would need to be nimble.
Moreover, the orders, rules, and regulations must be “reasonable” and, as judged by a governor, “necessary to protect life and property or to bring the emergency situation ․ under control.” Id. Reasonableness and necessity, as couched in the statutory language, constitute appropriate limits or standards that prohibit and can prevent the exercise of uncontrolled and arbitrary power, yet are sufficiently broad to permit a governor to carry out the legislative policy of protecting life and property during an emergency and controlling a great public crisis.12
Adding further parameters or guidelines, the EPGA sets forth examples of appropriate orders, rules, and regulations, touching on traffic, transportation, the establishment of zones to regulate the use and occupancy of buildings, the prohibition and regulation of ingress and egress relative to buildings, the control of places of assembly and streets, curfews, and the transportation of explosives. Id. And a governor's authority ends when it is determined “that the emergency no longer exists.” MCL 10.31(2). Finally, the EPGA “does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons.” MCL 10.31(3).13
In sum, exercising extreme caution, indulging every reasonable presumption in favor of the constitutionality of the EPGA, and evaluating the EPGA's safeguards, criteria, and standards in total, not in a vacuum, we conclude that there was no excessive or improper delegation of power to the governor with the enactment of the EPGA.
C. THE EMA
If this panel, as urged by the Legislature, were to rule that the Governor violated the EMA and lacked authority to utilize the EMA to extend the state of emergency and issue EOs on and after April 30, 2020, it would be entirely pointless because the Governor had the authority to continue the very same state of emergency and issue the very same EOs under the EPGA. Stated otherwise, we could provide no meaningful relief to the Legislature if we ruled in its favor with respect to the EMA. Therefore, given our holding in regard to the EPGA, we can only conclude that any issues concerning the Governor's powers under the EMA are now moot. See Anway v. Grand Rapids R. Co., 211 Mich. 592, 610, 179 N.W. 350 (1920) (explaining that a matter is moot if a judgment on the matter, “when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy”); City of Jackson v. Thompson-McCully Co., LLC, 239 Mich. App. 482, 493, 608 N.W.2d 531 (2000) (“An issue is moot if an event has occurred that renders it impossible for the court, if it should decide in favor of the party, to grant relief.”); B P 7 v. Bureau of State Lottery, 231 Mich. App. 356, 359, 586 N.W.2d 117 (1998) (applying the doctrine of mootness when “there is no meaningful relief this Court can provide because petitioners can assign their lottery winnings to the same parties under the amended statute”).
Prospective intervenors argue that the Court of Claims abused its discretion by denying their motion to intervene. “This Court reviews a trial court's decision on a motion to intervene for abuse of discretion.” Auto-Owners Ins. Co. v. Keizer-Morris, Inc., 284 Mich. App. 610, 612, 773 N.W.2d 267 (2009). A court abuses its discretion when a decision falls outside the range of reasonable and principled outcomes. Id.
The five attorneys argue that their law practices “remain threatened by the possibility that The Governor will [impose] criminal prosecution for, well, going to our own offices ‘too often.’ ” Prospective intervenors acknowledge that the stay-at-home EOs have been lifted, a fact that would appear to render moot the majority of their claims. Regardless, reversal is unwarranted. In denying the motion to intervene, the Court of Claims reasoned, in pertinent part:
In this case, the putative intervenors echo much of the argument offered in support of the plaintiffs’ case and additionally present ․ an “as applied” challenge to the scope of the executive orders as they affect lawyers and litigants. The focus of the case pled by plaintiffs is on an assertion that the Governor is without authority to act as she has under the Michigan Constitution, [the EMA], or [the EPGA]; or that the EPGA itself is unconstitutional. Those issues are adequately represented by the plaintiffs. The distinct issues of whether any, all, or some of the executive orders impermissibly infringe on the rights, duties or privileges of attorneys or their clients is not the focus of this case and would be better framed in a separate action. Additionally, this matter is emergent and affording party status to these putative plaintiffs would delay resolution.
The rule regarding permissive intervention,14 MCR 2.209(B), provides as follows:
On timely application a person may intervene in an action
(1) when a Michigan statute or court rule confers a conditional right to intervene; or
(2) when an applicant's claim or defense and the main action have a question of law or fact in common.
In exercising its discretion, the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
MCR 2.209(B)(2) was the only provision potentially implicated in this case. The five attorneys describe their arguments as “virtually identical” to those made by the Legislature. To the extent that this claim is true, our ruling today eliminates the need for future intervention by prospective intervenors to litigate the arguments already posed by the Legislature and rejected in this appeal. To the extent that the attorneys presented questions of law and fact unique to them, this does not bode well for them under MCR 2.209(B)(2) because, as stated, the rule permits intervention “when an applicant's claim or defense and the main action have a question of law or fact in common.” Additionally, it would make no procedural sense to remand this case and allow the five cross-appellants to litigate those unique matters against the Governor; they can always file their own action or attempt to intervene in other lawsuits regarding the Governor's EOs. Moreover, on appeal, prospective intervenors do not even address the issue of any delay that would have been caused by their intervention, although the Court of Claims cited undue delay as a basis for its ruling. “When an appellant fails to dispute the basis of a lower court's ruling, we need not even consider granting the relief being sought by the appellant.” Denhof v. Challa, 311 Mich. App. 499, 521, 876 N.W.2d 266 (2015). In sum, we hold that there is no basis for reversal.
Proceeding on the assumption that the Legislature had standing to file suit, we hold that the Governor's declaration of a state of emergency, her extensions of the state of emergency, and her issuance of related EOs clearly fell within the scope of the Governor's authority under the EPGA. We further hold that the EPGA does not violate the Separation of Powers Clause. We therefore decline to address whether the Governor was additionally authorized to take those same measures under the EMA and whether the Governor violated the EMA—those matters are moot. Finally, we hold that there is no basis to reverse the order of the Court of Claims denying the motion to intervene.
We affirm on the issues necessary to resolve this appeal.
I agree with the majority's decision that the Court of Claims properly denied the motion for intervention. I disagree, however, with the remainder of the majority's opinion. The United States Supreme Court “consistently has given voice to, and has reaffirmed, the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.” Mistretta v. United States, 488 U.S. 361, 380, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).
Our Michigan Constitution broadly follows the same parameter, and has done so, in similar terms, since before statehood in 1837. Under our law, “[t]he powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution.” Const. 1963, art. 3, § 2; see also Nat'l Wildlife Federation v. Cleveland Cliffs Iron Co., 471 Mich. 608, 613, 684 N.W.2d 800 (2004) (“By separating the powers of government, the framers of the Michigan Constitution sought to disperse governmental power and thereby to limit its exercise.”), overruled on other grounds by Lansing Sch. Ed. Ass'n v. Lansing Bd. of Ed. 487 Mich. 349, 792 N.W.2d 686 (2010).1
Under that tripartite approach, “the legislative power of the State of Michigan is vested in a senate and a house of representatives,” Const. 1963, art. 4, § 1; “the executive power is vested in the governor,” id. at art. 5, § 1; and “the judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house,” id. at art. 6, § 1, except “to the extent limited or abrogated by article 4, section 6 or article 5, section 2,” an exception that applies to each of the three branches.2
This case involves the scope of those executive and legislative powers. The questions presented are whether the Legislature, in the 1945 emergency powers of the governor act (EPGA);3 and the 1976 Emergency Management Act (EMA),4 authorized a governor to rule on an emergency basis without any durational limit and whether, if the Legislature did give such authority, its delegation of that power was constitutional. The case comes to us in response to executive orders issued by Governor Gretchen Whitmer relating to the current pandemic involving COVID-19. The executive orders, which have evolved over time, have in various iterations significantly restricted the liberties of all Michigan citizens in many ways, imposing broad economic and travel restrictions; setting forth mandatory stay-at-home orders; and promulgating many other regulations. The executive orders are backed by criminal sanctions, which provide that persons who violate them are subject to the misdemeanor penalties of the EPGA, see MCL 10.33, and the EMA, see MCL 30.405(3). Those orders, and the associated criminal penalties, were imposed solely by executive order of the Governor, bypassing the normal legislative process.5
The Governor asserts that her authority under the EPGA is essentially unlimited in scope and duration. The executive orders thus implicate statutory interpretation involving the interplay between the EPGA and the EMA because the later-enacted EMA provides that a governor's authority to issue such an executive order expires at the end of 28-days if not approved by both houses of the Legislature. The case also presents the question of whether, if the Legislature did grant such broad authority to the governor, the legislation was constitutional. And the Governor asserts that the Legislature lacks standing to bring the instant suit challenging the executive orders. These questions take place against a backdrop in which no governor has ever asserted such unbridled authority outside the normal and constitutionally sanctioned legislative process 6
Ultimately, I believe the questions presented here yield a clear answer on statutory terms: the EPGA and the EMA, properly construed in pari materia, do not each stand on their own, as the Governor asserts and the majority holds; rather, at least in a case such as this involving an “epidemic,” and for the reasons discussed more fully in this opinion, the EMA's 28-day time limit controls. For the reasons stated by the Court of Claims, the Legislature has standing to bring this suit, because the Governor's actions have vitiated the Legislature's express authority under the EMA to approve or disapprove executive orders extending beyond 28 days; properly construed, the EPGA has no role to play in this analysis. Thus, given that the Governor's actions violate the EMA because the Legislature has declined to extend the executive orders (as correctly found by the Court of Claims), I would affirm that portion of its order and strike down the executive orders at issue. Given my preference, I also would not reach the constitutional questions involved, particularly whether the Governor has improperly exercised legislative authority belonging to the Legislature, in violation of Article 3, § 2 of the 1963 Constitution. As discussed more fully in this opinion, the doctrine of constitutional avoidance directs us to decline such constitutional interpretation if a case can be decided on other grounds; here, the statutory analysis would fully dispose of the questions presented. However, the majority rejects the statutory analysis that I believe is mandated, which thus requires that I consider the constitutional question of whether the Governor improperly exercised (and continues to exercise) legislative powers, in violation of our Constitution. For the reasons stated more fully in this opinion, I would conclude that the Governor's actions violate the Separation of Powers Clause and would strike down the executive orders on that basis as well. However, because I agree with the majority that the Court of Claims did not abuse its discretion by denying intervention, I join Part IV(D) of the majority opinion.
The majority never determines whether plaintiffs, the Michigan House of Representatives and the Michigan Senate (collectively, the Legislature), have standing to pursue the present case against defendant, the Governor of Michigan, simply assuming that the Legislature did have standing. While I would conclude that there was nothing incorrect in that portion of the Court of Claims’ opinion which found standing, I do not think that we can simply assume standing. Therefore, I will briefly review why I conclude that the Legislature properly established standing for this case.
“Whether a party has standing is a question of law that is reviewed de novo.” Mich. Ass'n of Home Builders v. City of Troy, 504 Mich. 204, 212, 934 N.W.2d 713 (2019). Standing is a component of every case. See Miller v. Allstate Ins. Co., 481 Mich. 601, 606-607, 751 N.W.2d 463 (2008) (“Our constitution requires that a plaintiff possess standing before a court can exercise jurisdiction over that plaintiff's claim. This constitutional standing doctrine is longstanding and stems from the separation of powers in our constitution.”) (citation omitted); Coldsprings Twp. v. Kalkaska Co. Zoning Bd. of Appeals, 279 Mich. App. 25, 28, 755 N.W.2d 553 (2008) (“[T]he elements of individual and organizational standing must be met in environmental cases as in every other lawsuit, unless the constitution provides otherwise.”) (citation and quotation marks omitted; emphasis added).
“ ‘[W]hen standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue.’ ” House Speaker v. Governor, 443 Mich. 560, 572 n. 15, 506 N.W.2d 190 (1993), quoting Flast v. Cohen, 392 U.S. 83, 99-100, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1968). “The purpose of the standing doctrine is to assess whether a litigant's interest in the issue is sufficient to ‘ensure sincere and vigorous advocacy.’ ” Lansing Sch. Ed. Ass'n, 487 Mich. at 355, 792 N.W.2d 686 (citations omitted). Absent standing, a court's decision would constitute a mere advisory opinion, which is outside the “ ‘judicial power’ ” provided for by our Constitution. See generally Nat'l Wildlife Federation, 471 Mich. at 612-614, 684 N.W.2d 800, citing Cooley, Constitutional Limitations (1st ed.) p. 92.7
Thus, under the Michigan Constitution, a litigant has standing whenever there is a legal cause of action. Further, a litigant who meets the requirements of MCR 2.605 sufficiently establishes standing to seek a declaratory judgment. Lansing Sch. Ed. Ass'n, 487 Mich. at 372, 792 N.W.2d 686. If a cause of action is not provided at law,
then a court should, in its discretion, determine whether a litigant has standing. A litigant may have standing in this context if the litigant has a special injury or right, or substantial interest, that will be detrimentally affected in a manner different from the citizenry at large or if the statutory scheme implies that the Legislature intended to confer standing on the litigant. [Id., 792 N.W.2d 686.]
There is no cause of action provided by law that would apply in this case. The EMA, however, provides that an executive order that the governor issues under his or her authority expires after 28 days “unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature.” MCL 30.403(3) (regarding states of disaster). See also MCL 30.403(4) (providing identical language regarding states of emergency). The Legislature argues that under the required in pari materia reading of the EMA and the EPGA, the provisions of the EMA control; the Legislature thus argues that failing to grant it standing in this case would have the effect of nullifying the statutory scheme that the Legislature enacted regarding time limits for the executive orders at issue, a position which the Court of Claims accepted. In addition, the Legislature argues that the EPGA is unconstitutional.
“For purposes of determining standing, we must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.” American Family Ass'n of Mich. v. Mich. State Univ. Bd. of Trustees, 276 Mich. App. 42, 46, 739 N.W.2d 908 (2007) (citations and quotation marks omitted). Consequently, I must consider as true the Legislature's allegations that in issuing her executive orders and repeatedly extending a state of emergency without legislative approval, the Governor encroached on its authority. See id.
It is, of course, clearly settled law that “ ‘[i]nterpretation of the State Constitution is the exclusive function of the judicial branch. Construction of the Constitution is the province of the courts and this Court's construction of a State constitutional provision is binding on all departments of government.’ ” House Speaker, 443 Mich. at 575 n. 19, 506 N.W.2d 190, quoting Richardson v. Secretary of State, 381 Mich. 304, 309, 160 N.W.2d 883 (1968). See also House Speaker, 443 Mich. at 575 n. 19, 506 N.W.2d 190 (“ ‘A conflict between the constitution and the statute is clearly a legal question which only a court can decide[.]’ ”), quoting Regents of the Univ. of Mich. v. Employment Relations Comm., 389 Mich. 96, 103, 204 N.W.2d 218 (1973).
I would conclude, as did the Court of Claims, that given the statutory structure of the EMA and the significant issues regarding the EMA's interrelationship with the EPGA, as well as the question of the constitutionality of the EPGA under the circumstances presented, see Part IV of this opinion, that the Legislature has alleged a special injury or right, as well as a substantial interest, that will be detrimentally affected in a manner different from the citizenry at large. Lansing Sch. Ed. Ass'n, 487 Mich. at 372, 792 N.W.2d 686. The Legislature alleges that its statutory authority to decline a governor's request to extend a state of disaster or state of emergency is being effectively eviscerated through the Governor's actions in this case; given the language of the EMA, I agree that the allegation of a loss of such prerogatives through encroachment by a different branch of government constitutes “a special injury or right.” By definition, the injury is one that only the Legislature could suffer because the Legislature is the only entity given authority to authorize or decline to authorize requests to extend a state of emergency. It seems clear to me that the Legislature thus alleges a “special injury” because the injury, if it occurred, could affect the scope of the Legislature's powers only; and it also is clear that because it is an injury that could affect the Legislature powers only, the injury is not one that would affect the citizenry at large, other than in the general sense of the law not being followed, which is insufficient to establish standing.
Moreover, a party has standing “if the statutory scheme implies that the Legislature intended to confer standing on the litigant.” Id. Given the nature of the disputes in this case—i.e., those involving statutory and constitutional interpretation—only the judicial branch may resolve them. And I see no reason to conclude that the Legislature would have gone to the trouble of enacting the time limitation provisions of the EMA, which, when applicable, work to grant it the ability to cabin the governor's authority, if it did not intend to afford itself recourse to the courts in those instances in which it alleged that the governor failed to comply with such limits.
In other words, in my opinion, the Legislature has alleged a special injury unique to it; an injury not available to the public at large or any other person or entity, thus establishing that the Legislature's injury is different in kind from any potentially suffered by the public at large; that the nature of the disputes are such that only the judicial branch can conclusively determine them; and that the statutory scheme evinces an intention on the part of the Legislature to grant itself standing to litigate such suits.8 The fact that the injury would have “ ‘completely nullified’ ” the Legislature's authority under the statutory scheme, see Arizona State Legislature v. Arizona Independent Redistricting Comm., 576 U.S. 787, 803, 135 S. Ct. 2652, 192 L. Ed.2d. 704 (2015); Tennessee ex rel. Tennessee Gen. Assembly v. United States Dep't of State, 931 F.3d 499, 509 (C.A. 6, 2019), and thus also would have satisfied the more restrictive Article III definition of standing, as the Court of Claims also concluded, in my opinion, simply reinforces that the Legislature has established standing. I therefore turn to the merits of the case.
II. STANDARD OF REVIEW
The questions presented here all are subject to de novo review. We review de novo whether a party has standing to pursue a case, In re Pollack Trust, 309 Mich. App. 125, 154, 867 N.W.2d 884 (2015); the proper interpretation and construction of statutes, Joseph v. Auto Club Ins. Ass'n, 491 Mich. 200, 205, 815 N.W.2d 412 (2012); and the scope of constitutional provisions, Thomas v. Deputy Warden, State Prison of Southern Michigan, 249 Mich. App. 718, 724, 644 N.W.2d 59 (2002).
III. STATUTORY CONSTRUCTION
As an initial matter, the majority states that the Legislature failed to argue, in its brief on appeal, that the EPGA does not apply to epidemics. At oral argument, however, the Legislature made clear that it was making that argument. I question, therefore, whether the Legislature could be deemed to have waived anything. More fundamentally, this case properly involves the interpretation of two statutes in pari materia. Under the in pari materia rules of construction, we are to find a harmonious reading of the two statutes if possible. In undertaking that task, we are not restricted by whether a party made a particular argument for a harmonious reading of the statutes; the proper interpretation of statutes is a judicial function, which cannot be waived by a party. I discern no basis for the Legislature's argument that, properly construed, the EPGA has a geographic limitation, and therefore I agree with the majority as to that point; but nonetheless, I would conclude that the proper construction of the statute demonstrates the inapplicability of the EPGA to an “epidemic.”
A. IN PARI MATERIA CANON OF CONSTRUCTION
Both the EPGA and the EMA deal with the declaration of a state of emergency in the generic sense;9 the invocation of emergency powers to address such emergencies, which powers vary markedly from those ordinarily in effect under our constitutional structure; and the limits, if any, placed on a governor exercising such powers. Accordingly, both statutes relate to the same subject matter and, thus, are in pari materia (literally, “in a like manner”). “It is the rule that in construction of a particular statute, or in the interpretation of its provisions, all statutes relating to the same subject, or having the same general purpose, should be read in connection with it, as together constituting one law, although enacted at different times, and containing no reference one to the other.” Detroit v. Mich. Bell Tel. Co., 374 Mich. 543, 558, 132 N.W.2d 660 (1965), overruled on other grounds by City of Taylor v. Detroit Edison Co., 475 Mich. 109, 119, 715 N.W.2d 28 (2006). “ ‘The object of the rule in pari materia is to carry into effect the purpose of the legislature as found in harmonious statutes on a subject.’ ” Jennings v. Southwood, 446 Mich. 125, 137, 521 N.W.2d 230 (1994), quoting Wayne Co. v. Auditor General, 250 Mich. 227, 233, 229 N.W. 911 (1930). That is because “ ‘[s]everal acts in pari materia, and relating to the same subject, are to be taken together, and compared in the construction of them, because they are considered as having one object in view, and as action upon one system.’ ” Scalia & Garner, Reading Law: The Interpretation of Legal Texts (Thomson/West, 2012), p. 252, quoting 1 James Kent, Commentaries on American Law 433 (1826). When applying an in pari materia construction, “[i]f statutes lend themselves to a construction that avoids conflict, that construction should control.” Walters v. Leech, 279 Mich. App. 707, 710, 761 N.W.2d 143 (2008). “When there is a conflict between statutes that are read in para [sic] materia, the more recent and more specific statute controls over the older and more general statute.” People v. Buehler, 477 Mich. 18, 26, 727 N.W.2d 127 (2007), abrogated in part on other grounds by People v. Arnold, 502 Mich. 438, 918 N.W.2d 164 (2018). In addition, and outside the in pari materia rules of construction, we construe statutes in such a manner that each word has meaning and that no word is deemed to be surplusage or nugatory. Apsey v. Mem. Hosp., 477 Mich. 120, 127, 730 N.W.2d 695 (2007).10
B. BACKGROUND INFORMATION REGARDING THE STATUTORY SCHEMES
Under the EMA:
1. An “epidemic” expressly may be a triggering event for executive action.11 MCL 30.402(e); MCL 30.403(3).
2. A declaration of a state of disaster authorizes a governor, in addition to some specific powers, to “[d]irect all other actions which are necessary and appropriate under the circumstances.” MCL 30.405(1)(j).
3. A state of disaster must terminate after 28 days unless the governor requests and the Legislature approves an extension. MCL 30.403(3).
Under the EPGA:
1. The governor may declare a state of emergency “[d]uring times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state[.]” MCL 10.31(1).
2. “After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). The statutory provision includes a nonexclusive list of the governor's powers.
3. The governor's orders are in effect until they expire under their own terms, or when the governor declares “that the emergency no longer exists.” MCL 10.31(2). The majority concludes that the governor may invoke the EPGA to address an epidemic or a pandemic.12 There are no categorical limits placed on the orders a governor can impose after a declaration under either statute: the EPGA permits “reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control,” MCL 10.31(1), while the EMA permits the governor to “[d]irect all other actions which are necessary and appropriate under the circumstances,” MCL 30.405(1)(j). There is no material difference between the two; each permits the governor to take whatever actions the governor deems necessary.
Thus, applying the rules of construction in a straightforward manner, it is readily apparent that the inclusion of the word “epidemic” in the definition of “disaster” under the EMA means that the Legislature did not understand any of the EPGA's triggering events to include an epidemic. If the EPGA applied to an epidemic, there would have been no reason to include it in the EMA definition—inclusion would be a redundancy, contrary to how we construe statutes—because the governor can impose the same relief under the EPGA that may be imposed under the EMA. Reading the EPGA in the manner it does, the majority renders at least a portion of the EMA redundant; there is nothing the governor can do under one statute that cannot also be done under the other. Given that fact, there was no reason for the Legislature to have enacted the EMA.
Of course, we do not construe any word in a statute to be nugatory if there is an alternative interpretation. A straightforward reading of the statutes, in light of the canons of construction, in fact yields such an alternative interpretation: the Legislature would not have included the word “epidemic” as a permissible triggering event under the EMA, and would not have otherwise mimicked the EPGA, unless it understood that the EPGA did not apply to an epidemic. This is the only interpretation that makes sense of the inclusion of the word “epidemic” in the EMA—a word that is notably absent from the EPGA; this interpretation also explains the Legislature's creation of executive authority, which otherwise would be substantively identical with that provided for in the EPGA.
C. THE GOVERNOR'S “BELT AND SUSPENDERS” ARGUMENT
The Governor makes two arguments in response to this point. First, the Governor argues that by including the word “epidemic” as a condition that can justify a state of disaster under the EMA, the Legislature employed “a belt and suspenders” approach to show the importance it attached to the use of the word in the EMA; the Governor makes this assertion even though, in the Governor's view, the EPGA already reached epidemics at the time the Legislature defined an “epidemic” as a disaster under the EMA. This response by the Governor is particularly weak because it stands on its head a longstanding canon of construction, which assumes that the Legislature did not intend to enact surplusage. Rather, the Governor would have us hold that if the Legislature deems a situation unusually important, it would enact surplusage to signal to the world the importance it attaches to a particular construction. Frankly, this argument is frivolous because there are accepted methods by which a Legislature may communicate its intent and by which courts know how to discern that intent; enacting surplusage is simply the opposite of the manner in which the Legislature does so. See, e.g., Reading Law, p. 174 (“ ‘These words cannot be meaningless, else they would not have been used.’ ”), quoting United States v. Butler, 297 U.S. 1, 65, 56 S.Ct. 312, 80 L.Ed. 477 (1936). Our own Justice Cooley made the same point well over 150 years ago, when he wrote, “ ‘The courts must lean in favor of a construction which will render every word operative, rather than one which may make some idle and nugatory.’ ” Reading Law, p. 174 n. 3, quoting Cooley, Constitutional Limitations (2d ed.), p. 58 (brackets and ellipsis omitted). That approach has been uniformly followed until the present. See, e.g., Apsey, 477 Mich. at 127, 730 N.W.2d 695 (“Whenever possible, every word of a statute should be given meaning. And no word should be treated as surplusage or made nugatory.”).
The EPGA authorizes the Governor, in a state of emergency (which includes a “disaster”)13 to “promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control” and provides a nonexclusive list of the governor's powers. MCL 10.31(1). Thus, the majority holds that from 1945 on, following the enactment of the EPGA and continuing on through 1976 and the enactment of the EMA until today, the governor had essentially unlimited authority to deal, on an emergency basis, with epidemics and threats to public health. That construction is an absurdity in light of the Legislature's specific use of the word “epidemic” in the definition of “disaster” in the EMA. As I already have noted, we assume that when the Legislature crafts legislation it knows what the existing law is and takes it into consideration. O'Connell v. Dir. of Elections, 316 Mich. App. 91, 99, 891 N.W.2d 240 (2016). If the Governor's position is correct, the Legislature, knowing that a governor's authority to take executive action under the EPGA included the authority to address an “epidemic” nonetheless granted the governor the authority in the EMA to address an “epidemic.” That conclusion flies in the face of how courts and legislatures go about their business of crafting their work and taking steps, through well-understood conventions, to ensure that they each understand exactly what is intended of the other. In this case, that means that the 1976 Legislature can only be deemed to have understood that the EPGA did not extend to epidemics; thus, the only legislative enactment which covers such an event is the EMA 14
D. THE GOVERNOR'S AND THE MAJORITY'S RELIANCE ON MCL 30.417(D)
The majority and the Governor rely on § 17(d) of the EMA, MCL 30.417(d), in an attempt to show that the Legislature's use of the word “epidemic” in the EMA works no redundancy with the EPGA. Section 17(d) provides that the EMA “shall not be construed to do any of the following”:
Limit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to Act No. 302 of the Public Acts of 1945, being sections 10.31 to 10.33 of the Michigan Compiled Laws, or exercise any other powers vested in him or her under the state constitution of 1963, statutes, or common law of this state independent of, or in conjunction with, this act.
This is the critical statutory provision in this case, and it is the only textual basis which could arguably show a reasonable reading of legislative intent in derogation of the normal canons of construction. See People v. Pinkney, 501 Mich. 259, 283, 912 N.W.2d 535 (2018) (holding that canons of construction can be overcome if there is sufficient evidence to do so).
1. SCOPE OF THE GOVERNOR'S AUTHORITY TO DECLARE A STATE OF EMERGENCY UNDER THE EPGA
Section 17(d) is divided into two disjunctive parts. As noted, the first portion provides that the EMA shall not be construed to “[l]imit, modify, or abridge the authority of the governor to proclaim a state of emergency pursuant to” the EPGA (emphasis added). The authority to proclaim an emergency, under either the EPGA or the EMA, is a distinct authority. Whether the governor also has the additional power to have any such declared emergency continue—without any limitations or input from anyone else, so long as the governor sees fit to do so, the position the Governor argues and the majority adopts—is the question presented here, and through an in pari materia reading of the two statutes, it is a conclusion with which I do not agree. Nothing that I have said regarding the governor's authority under the EPGA and its interplay with § 17(d) in any way limits the authority of the Governor to issue a declaration of emergency. Simply put, the first part of § 17(d) has no application to this case.15
That brings us to the second portion of the statute. It provides, as relevant here, that the EMA shall not be construed to “[l]imit, modify, or abridge the authority of the governor to ․ exercise any other powers vested in him or her under ․ statutes[.]”16 Let us simply assume that the “statutes” referred to include the EPGA because that assumption does not affect the final analysis. This is so because it is not a construction of the EMA that places the EPGA off-limits for an executive declaration regarding an epidemic. Rather, it is the straightforward application of standard rules of construction, applicable in all instances to all statutes, under which we determine the scope of the EPGA as written by the Legislature. To recapitulate reasons already stated—namely, that any other construction would render the Legislature's use of the word “epidemic” in the EMA surplusage—it is clear that the Legislature that enacted the EMA did not understand the EPGA to encompass epidemics because, simply put, the Legislature would not have intended to enact surplusage. We assume that when the Legislature crafts legislation it knows what the existing law is and takes that into consideration, O'Connell, 316 Mich. App. at 99, 891 N.W.2d 240, and there simply is no reason the Legislature would have included the word “epidemic” in the EMA if it had understood the EPGA to have covered that situation already, Apsey, 477 Mich. at 127, 730 N.W.2d 695. Thus, it is not the EMA that in any way limits application of the EPGA to epidemics but, rather, the standard rules of construction, which embody assumptions about how legislatures work, that control the interpretation. The canons of construction work in both directions—courts use the canons so that there are consistent applications of the law in judicial opinions; but the canons also allow legislators and legislatures to know in advance how courts will construe the work of the legislative branch. The doctrine that the Legislature is presumed to know the existing law when it writes a statute includes a presumption that the Legislature knows how a law will be interpreted in connection with the canons. See Reading Law, p. 269 n. 6 (“ ‘It is presumable that Congress legislates with knowledge of our basic rules of statutory construction[.]’ ”), quoting McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496, 111 S. Ct. 888, 112 L. Ed. 2d 1005 (1991).
Simply put, the Legislature would have known, before enacting the EMA, that by including the word “epidemic” in the statute, it was telling the courts that the Legislature did not consider epidemics to be covered by the existing law, the EPGA, and that it understood that courts would so interpret its actions. Contrary to the majority, this is not “reading a requirement for legislative approval to extend a state of emergency into the EPGA․” It is simply a confirmation that given the language used and the standard canons of construction, the Legislature that enacted the EMA did not understand the EPGA to apply to an epidemic, and it therefore has no application to the present circumstances. Indeed, there would be no point in reading something into a statute that never applied to the situation at hand. Nor does this analysis constitute a judicial construction which limits, modifies, or abridges the governor's power, as is prohibited by § 17(d), but is a mere literal application of the Legislature's words to demonstrate that the EPGA never extended so far as to encompass authority over an epidemic. This construction not only does not run afoul of § 17(d), it is compelled by it—a court cannot “limit,” or “modify,” or “abridge,” an authority of a governor which the governor never possessed in the first instance.17
2. THE GOVERNOR'S CONSTRUCTION LEADS TO AN ADDITIONAL REDUNDANCY
In addition, the majority's and the Governor's construction of the two statutes render another portion of the EMA redundant or nugatory. As the Court of Claims correctly noted, the EMA permits the Governor to declare a state of disaster or a state of emergency. Each of those types of declarations has a durational limit. With regard to the duration of a state of disaster, MCL 30.403(3) provides:
The state of disaster shall continue until the governor finds that the threat or danger has passed, the disaster has been dealt with to the extent that disaster conditions no longer exist, or until the declared state of disaster has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of disaster terminated, unless a request by the governor for an extension of the state of disaster for a specific number of days is approved by resolution of both houses of the legislature.
Similarly, with regard to the duration of a state of emergency, MCL 30.403(4) provides:
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.
The majority and the Governor take the position that the EPGA and the EMA are coextensive, providing the Governor the same authority to issue orders, as to essentially any subject. Again, the Legislature knew all of that at the time it enacted the EMA. Yet the Legislature also enacted the 28-day time limit on the governor's unilateral authority under the EMA. To engraft such a durational limitation on the EMA while leaving the governor's equivalent powers under the EPGA completely unconstrained (subject only to the governor's whim) would render the EMA's time limits surplusage.18
Indeed, unless we construe the statute in the manner I suggest, one is left scratching one's head wondering what the Legislature thought it was accomplishing through the EMA. According to the majority, what the Legislature thought it was accomplishing was the enactment of a clone of the EPGA, but with a provision terminating the governor's executive authority after 28 days unless that self-same Legislature gave its approval. But according to the majority, the Legislature also allowed the EPGA to co-exist, so that the governor could circumvent the 28-day limit on executive action by the governor which the Legislature had just gone to the trouble of enacting.
Such an assertion simply makes no sense. Obviously, the Legislature did not intend its pronouncements in the EMA to be surplusage or nugatory. Thus, properly construed, there is nothing in the EMA that limits the Governor's authority under the EPGA; the EPGA simply does not apply to the current situation involving a pandemic, and the only authority upon which the Governor may rely for her executive orders regarding it is the EMA, with its associated time limit.
The majority's construction, meanwhile, is no construction at all. Although we are supposed to employ a harmonious reading of the two statutes if possible, the majority arrives at a construction under which the EPGA and the EMA 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. 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?” If the majority was unable to harmonize the result, as it obviously was, then it was obligated to give controlling effect to the more recent and more specific statute, the EMA. See Buehler, 477 Mich. at 26, 727 N.W.2d 127.19
IV. UNDER THE CIRCUMSTANCES OF THIS CASE, THE EPGA IS UNCONSTITUTIONAL
A. THE FRAMEWORK
The majority holds that the EPGA is constitutional on the basis of Blue Cross & Blue Shield of Mich. v. Governor, 422 Mich. 1, 51-52, 367 N.W.2d 1 (1985). This Court reviews de novo constitutional issues. Janer v. Barnes, 288 Mich. App. 735, 737, 795 N.W.2d 183 (2010). Although the question presented in Blue Cross regarding the lawfulness of the delegation of legislative power was significantly narrower than the question presented here, in Blue Cross our Supreme Court established the framework for evaluating all such claims.
Blue Cross addressed whether the Nonprofit Health Care Corporation Reform Act, MCL § 550.1101 et seq., represented an unconstitutional delegation of legislative authority to Blue Cross Blue Shield of Michigan and other private parties. Specifically, that act required each nonprofit healthcare corporation to “assign a risk factor for each line of the corporation's business.” Blue Cross, 422 Mich. at 52-53, 367 N.W.2d 1. The insurance commissioner then was required either to approve or disapprove the factors proposed by the healthcare corporation, but “[n]o guidelines are provided to direct the Insurance Commissioner's response.” Id. And finally, if the risk factors were disapproved, a panel of three actuaries “ ‘shall determine a risk factor for each line of business.’ No further directions are set forth to guide the panel.” Id. at 52, 367 N.W.2d 1. The Court held that “[t]he act is completely devoid of any indication why one factor should be preferred over another; no underlying policy has been articulated, nor has the Legislature detailed the criteria to be employed by the panel in making this determination.” Id. at 55, 367 N.W.2d 1, citing Osius v. St. Clair Shores, 344 Mich. 693, 75 N.W.2d 25 (1956). “This complete lack of standards is constitutionally impermissible,” such that “the lack of standards defining and directing the Insurance Commissioner's and the actuary panel's authority renders this dispute resolution mechanism constitutionally defective.” Blue Cross, 422 Mich. at 55, 367 N.W.2d 1
Blue Cross is instructive as to the present case, and it establishes the framework for evaluating claims of improper delegation of legislative power. The Court held that in reviewing such claims, “1) the act must be read as a whole; 2) the act carries a presumption of constitutionality; and 3) the standards must be as reasonably precise as the subject matter requires or permits.” Id. at 51, 367 N.W.2d 1. “The preciseness required of the standards will depend on the complexity of the subject.” Id. Although the focus of the act at issue was narrow, the Court had no difficulty determining that it involved an impermissible delegation of legislative authority because it gave no direction and created no standards as to how the authority should be exercised.
Moreover, our Supreme Court has noted on many occasions:
The separation of powers doctrine has never been interpreted to mean that the three branches of government
“must be kept wholly and entirely separate and distinct, and have no common link or dependence, the one upon the other, in the slightest degree. The true meaning is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution.”
[House Speaker v. Governor, 443 Mich. 560, 586 n. 32; 506 N.W.2d 190 (1993), quoting Local 321, State, Co. & Muni. Workers of America v. Dearborn, 311 Mich. 674, 677; 19 N.W.2d 140 (1945), in turn quoting Story, Constitutional Law (4th ed.), pp. 380 (emphasis added).]
See also Makowski v. Governor, 495 Mich. 465, 482-483, 852 N.W.2d 61 (2014) (also quoting Local 321, State, Co. & Muni. Workers of America).
B. THE EPGA DELEGATES LEGISLATIVE POWER
The issue here does not involve the declaration of an emergency; rather, the act of declaring such an emergency is properly to be regarded as executive action. See Const. 1963, art. 5, § 1. Instead, the issue is the orders authorized by such a declaration, which the majority holds have no categorical limitations but, rather, essentially empower the governor to do anything.
More than one hundred years ago, our Supreme Court summed up quite nicely the principle involved: “The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action to depend.” In re Brewster Street Housing Site, 291 Mich. 313, 340, 289 N.W. 493 (1939), quoting King v. Concordia Fire-Ins. Co., 140 Mich. 258, 268, 103 N.W. 616 (1905) (quotation marks and citation omitted). Thus,
The people, by the adoption of the Constitution, have vested the legislative power in the legislature of the State, subject to the initiative referendum and recall, and the legislature of the State cannot abdicate the power delegated to it by the Constitution, but it is clear the legislature may confer the authority for the finding of facts upon administrative officers, board or commissions. [In re Brewster Street Housing Site, 291 Mich. at 340, 289 N.W. 493, citing Horn v. People, 26 Mich. 221 (1872).]
Clearly, the orders recently issued by the Governor involve no action by any administrative officer, board or commission but, rather, the wholesale handing over to the governor the unfettered discretion to legislate any emergency order which the governor thinks appropriate. The delegation of authority under the EPGA, as interpreted by the majority, is legislative: “The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend.” King, 140 Mich. at 268, 103 N.W. 616, quoting Locke's Appeal, 72 Pa 491, 498 (1873). The orders here, however, involve the making of law. Thus, “[t]he true distinction ․ is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made.” King, 140 Mich. at 268-269, 103 N.W. 616 (citation and quotation marks omitted).20
C. AS INTERPRETED BY THE MAJORITY, THE GOVERNOR EXERCISES FULL LEGISLATIVE POWER AS WELL AS FULL EXECUTIVE POWER
Having determined that the orders issued by the Governor are in fact legislative, it is apparent that under the circumstances of this case, the executive orders that were issued are, in fact, unconstitutional. As the majority interprets the governor's authority to issue the orders, they involve the whole power of the Legislature because there are no subject matters outside their potential scope. Because, as the majority concludes, there are no limits as to the subject matter a governor may order or regulate or direct in this manner pursuant to the EPGA, the governor is granted “the whole power of one of these departments” of government, i.e., the full legislative power. House Speaker, 443 Mich. at 586 n. 32, 506 N.W.2d 190 (citations and quotation marks omitted; emphasis added). And the governor, of course, retains the full executive power of that office as well. Const. 1963, art. 5, § 1.
Acting under the EPGA, the governor thus possesses the full power of the legislative branch, as well as the full power of the executive branch; in other words, the EPGA, as interpreted by the majority, commits to the governor “the whole power of one of these departments,” allowing it to be “exercised by the same hands which possess the whole power of either of the other departments[.]” House Speaker, 443 Mich. at 586 n. 32, 506 N.W.2d 190. (citations and quotation marks omitted). That is, the majority's interpretation allows precisely the evil the separation-of-powers doctrine intended to preclude, and it is therefore unconstitutional. Const. 1963, art. 3, § 2. See Makowski, 495 Mich. at 482-483, 852 N.W.2d 61; House Speaker, 443 Mich. at 586 n. 32, 506 N.W.2d 190.
D. THE MAJORITY OPINION FAILS TO CONSTRUE THE EPGA IN A MANNER THAT WOULD PRECLUDE ITS UNCONSTITUTIONALITY HERE
The unconstitutionality of such a procedure would be mitigated if there were any durational limits imposed as to an executive order issued under the EPGA or the EMA. A durational limit (and not merely a gubernatorial rescinding of an order, followed by its reissuance in the identical or near identical form) would change the nature of any such order from something legislative, which simply lives on until it is repealed, to a true emergency order, which would exist only during a genuine period of emergency.21
The violation of the Constitution, in my opinion, thus occurs through the confluence of two different authorities approved by the majority: (1) the retention of the governor's executive powers plus (2) the unlimited nature of legislative power granted the governor following a declaration of an emergency, including the unlimited duration of any such order.
The lack of any durational limit simply underscores and compounds the constitutional difficulty, transforming temporary, and thus emergency orders, into something essentially unlimited and, thus, legislative. It is settled that when applying strict-scrutiny analysis, applicable to many of the most important constitutional rights, a court can uphold an action only if it involves a compelling governmental interest, which must be narrowly tailored to achieve that interest. See, e.g., Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) (opinion by Blackmun, J.) (involving the impingement of First Amendment right). The narrow-tailoring requirement imposes an obligation that whenever permissible action impinges a constitutional right, it continue no longer than necessary. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 497-498, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) (opinion by O'Connor, J.) (prohibiting remedy for discrimination “essentially limitless in scope and duration”); In re Nat'l Security Letter, 863 F.3d 1110, 1126 (C.A. 9, 2017) (“In order to ensure that the nondisclosure requirement is narrowly tailored to serve the government's compelling interest in national security, a nondisclosure requirement must terminate when it no longer serves such a purpose.”).
The majority holds that the spare statutory standards of the EPGA, requiring only that the declaration involve a “great public crisis, disaster, rioting, catastrophe, or similar public emergency ․ or [when there is] reasonable apprehension of immediate danger of a public emergency of that kind,” which also must imperil “public safety,” MCL, 10.31(1), is “as reasonably precise as the subject matter requires or permits.” The majority adds, “Indeed, more exacting standards would likely be overly confining and unnecessarily bind a governor's hands in any effort to mitigate and control an emergency at the very time he or she must need to be nimble.” Moreover, the majority acknowledges that not only is the “standard” completely amorphous but contains a large measure of subjectivity to whatever a governor desires. Thus, the majority holds that an order entered pursuant to a declared emergency need only be “ ‘reasonable’ and, as judged by a governor, ‘necessary to protect life and property or to bring the emergency situation ․ under control.’ ” (Quoting MCL 10.31(1).) This means that there are few objective, outside controls or standards at all, save for “reasonableness”; the statute essentially requires only a governor's subjective determination of what is necessary to control the situation.
Taking steps to deal with a global pandemic is certainly a “ ‘compelling state interest.’ ” Burson, 504 U.S. at 198, 112 S.Ct. 1846 (citation omitted). Thus, there is no doubt that a government could take steps to address such a crisis for at least some period of time on an emergency basis, through means that ordinarily would not comport with constitutional restrictions; after all, the “constitutional Bill of Rights” is not “a suicide pact,” Terminiello v. Chicago, 337 U.S. 1, 37, 69 S. Ct. 894, 93 L. Ed. 1131 (1949) (Jackson, J., dissenting), nor is the constitutional separation of powers. This case does not address whether government has the authority to impose mandatory public-health orders to address a crisis; clearly it does. See Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905). The issue here is not what actions may be taken, but how they are to be taken: by a governor acting under emergency authority, with no limitations as to how, or how long, those measures may be instituted; or whether, following a reasonable period of emergency authority, legislative power must revert to normal constitutional norms. Our Constitution declares, after all, that “[a]ll political power is inherent in the people.” 1963 Const. art. 1, § 1.
No doubt to address this potentially gaping exception to normal, constitutional governance, the Legislature, in the EMA, enacted a rule that executive orders to address a state of emergency or a state of disaster, after a reasonable period not to exceed 28-days, must either terminate or be ratified by the elected Legislature. The Legislature has not authorized continued emergency action relating to an epidemic. In addition, the statutory construction of the EPGA and the EMA set forth in Part III of this opinion avoids the constitutional infirmity identified here because an executive order, which either becomes legislatively authorized after 28 days or terminates, is constitutionally reasonable. Indeed, that fact alone should give the majority pause about its statutory analysis that the EPGA applies without limitation to an epidemic, without any consideration of an in pari materia construction or the EMA's use of the word “epidemic.” “If statutes lend themselves to a construction that avoids conflict, then that construction should control.” People v. Webb, 458 Mich. 265, 274, 580 N.W.2d 884 (1998). See also Hunter v. Hunter, 484 Mich. 247, 264 n. 32, 771 N.W.2d 694 (2009) (“[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the act.”) (citations and quotation marks omitted; alteration in original).
If the majority correctly read the EPGA and the EMA, in accordance with Part III of this opinion, such that only the EMA applies to an epidemic, then the executive orders here would be constitutional exercises of emergency powers because they would be properly limited in duration, or constitutionally ratified by the Legislature. However, given the majority's construction that the EPGA not only applies but that it authorizes unilateral action by the governor that “simply continues until the governor declares ‘that the emergency no longer exists,’ ” it is unconstitutional in these circumstances. (Citation omitted.)
I respectfully dissent from the majority's standing, statutory interpretation, and constitutional-interpretation analyses.
1. The statutory definition of “disaster” includes an “epidemic.” MCL 30.402(e).
2. Hereafter, for ease of reference, we shall simply refer to a state of “emergency,” which shall also encompass a state of “disaster” unless otherwise indicated.
3. EOs 2020-67 and 2020-68 were later rescinded by orders that themselves were subsequently rescinded. The Governor eventually extended the state of emergency in EO 2020-165, which order is set to expire on September 4, 2020, subject to evaluation of the need to continue the state of emergency. EO 2020-165 states:This order constitutes a state of emergency declaration under the Emergency Powers of the Governor Act of 1945. Subject to the ongoing litigation, and the possibility that current rulings may be overturned or otherwise altered on appeal, and to the extent the governor may declare a state of emergency and a state of disaster under the Emergency Management Act of 1976 when emergency and disaster conditions exist yet the legislature has not granted an extension request, this order constitutes a state of emergency and state of disaster declaration under that act.
4. Although these two particular EOs have been rescinded, the dispute remains very much alive given the subsequent EOs the Governor has issued. Accordingly, the lawsuit is not moot. See B P 7 v. Bureau of State Lottery, 231 Mich. App. 356, 359, 586 N.W.2d 117 (1998).
5. MCL 600.6431(2)(d) requires that a complaint filed in the Court of Claims contain, among other things, “[a] signature and verification by the claimant before an officer authorized to administer oaths.”
6. Our review of the Michigan Compiled Laws reveals that the Legislature has used the phrase “within the state” on numerous occasions in various contexts with the indisputable intent to include the entire state of Michigan. For example, the Insurance Code provides that the insurance commissioner may restrict the solicitation of new business “within the state.” MCL 500.437(5). The Revised Judicature Act establishes jurisdiction of the courts over corporations that conduct general business “within the state.” MCL 600.711(3). As yet another example, the rules of the State Higher Education Facilities Commission relate to institutions of higher education “within the state.” MCL 390.944.
7. “The [state police] commissioner shall formulate and put into effect plans and means of cooperating with the local police and peace officers throughout the state ․” MCL 28.6(4) (emphasis added).
8. Citing a 1945 newspaper article and a message from Governor William Milliken to the Speaker of the House of Representatives in the 1970s, the Legislature argues that the historical context of the EPGA reveals that it was intended for local matters, specifically rioting and civil disturbances. Extrinsic materials may play a role in statutory construction only to the extent that they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous language. McCormick v. Carrier, 487 Mich. 180, 220–221, 795 N.W.2d 517 (2010). “[T]he duty of this Court is to construe the language of Michigan's statutes before turning to secondary sources ․” Gerling Konzern Allgemeine Versicherungs AG v. Lawson, 472 Mich. 44, 57, 693 N.W.2d 149 (2005). Here, the clear and unambiguous language of the EPGA indicates that it applies to more than rioting and that it can encompass statewide emergencies; consequently, the secondary sources cited by the Legislature are of no relevance and they are not inherently inconsistent with our analysis.
9. At oral argument, counsel for the Legislature responded to a query by this panel whether a governor could have acted on a statewide basis under the EPGA had the pandemic struck in 1975, a year before the EMA was enacted. Counsel replied in the negative, but also suggested that the EPGA could have been used on a county-by-county approach to address the hypothetical 1975 pandemic. This answer appears to accept that a governor can use the EPGA to address a statewide crisis, but would apparently have to do so in a laborious, fragmented fashion, categorizing each county separately. Regardless, the alleged distinction between local and statewide emergencies simply finds no support in the statutory language.
10. To be clear, however, there is nothing in the EPGA that prevents a governor from acting incrementally during an emergency.
11. We do conclude that reading a requirement for legislative approval to extend a state of emergency into the EPGA would have the effect of limiting, modifying, or abridging a governor's authority under the EPGA because the EPGA gives the governor alone the power to determine when an emergency has ended.
12. See Mich. State Hwy. Comm. v. Vanderkloot, 392 Mich. 159, 173, 220 N.W.2d 416 (1974) (noting that the standard of “necessity” in an eminent-domain statute is a sufficient standard for delegation of authority because it is as reasonably precise as the subject matter requires or permits); see also Klammer v. Dep't of Transp., 141 Mich. App. 253, 262, 367 N.W.2d 78 (1985) (“In the context of this case, ‘necessary’ was a sufficiently precise standard.”). “A reasonable determination is the antithesis of one which is arbitrary[.]” Dooley v. Hwy. Truckdrivers & Helpers, Local 107, Int'l Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, 192 F. Supp. 198, 200 (D. Del., 1961) (emphasis added).
13. As reflected in our discussion of the various standards and criteria in MCL 10.31, there is no basis whatsoever for the claim by the partial concurrence that we are holding that the EPGA empowers a governor “to do anything” the governor wishes. Furthermore, the “reasonable” standard in MCL 10.31(1) relative to promulgated orders interjects an objective component into the statute. See Radtke v. Everett, 442 Mich. 368, 387, 501 N.W.2d 155 (1993) (stating that reasonableness involves an objective, not subjective, examination). Finally, the EPGA does not allow for the issuance of never-ending orders given that the governor's authority ceases at the conclusion of the emergency. MCL 10.31(2).
14. Prospective intervenors do not claim that they have a “right” to intervene under MCR 2.209(A).
1. Our first Constitution, in 1835, preceded statehood but nonetheless provided that “[t]he powers of the government shall be divided into three distinct departments; the Legislative, the Executive and the Judicial; and one department shall never exercise the powers of another, except in such cases as are expressly provided for in this constitution.” Const. 1835, art. 3, § 1. The 1835 Constitution further provided, “The legislative power shall be vested in a Senate and House of Representatives.” Id. at art. 4, § 1. Almost identical provisions have been enacted in our three subsequent Constitutions, including the current one. See Const. 1850, art. 4, § 1; Const. 1908, art. 5, § 1; Const. 1963, art. 3, § 2.
2. That exception is not at issue here. Article 5, § 2 of Michigan's 1963 Constitution involves the authority of the governor to reorganize principal departments and places a limit of 20 on the number of such departments; Article 4, § 6 of Michigan's 1963 Constitution involves the establishment of an independent citizens redistricting commission.
3. 1945 PA 302 as amended, codified at MCL 10.31 et seq.
4. 1976 PA 390 as amended, codified at MCL 30.401 et seq.
5. Various iterations of the orders have relied on different authorities. Executive Order 2020-67 invoked the Governor's constitutional authority under Const. 1963, art. 5, § 1 and the EPGA; Executive Order 2020-68 invoked the Governor's constitutional authority and the EMA, declaring both a state of emergency and a state of disaster under the EMA. See generally Part III of this opinion. Ultimately, the analysis in this opinion does not rest on which statute the Governor relied on in any particular order because the statutes must be interpreted in pari materia and both statutes are thus at issue. See generally Part III of this opinion.
6. It also is worth noting what is not at issue in this case, principally, whether COVID-19 is an extremely dangerous public-health challenge that must be addressed by government; clearly it is. The question, thus, is not whether actions should be taken by government but, rather, how they should be taken—by unlimited executive fiat, or through constitutional methods in place since before statehood. We also do not weigh any particular policy prescription set forth by the Governor or the Legislature. Rather, the correct resolution turns on constitutional text; legislative language which expresses the Legislature's policy determinations and legislative intent based on such language; all as filtered through well-established canons of construction that dictate how we view and interpret legal authorities. See Robinson v. Detroit, 462 Mich. 439, 474, 613 N.W.2d 307 (2000) (Corrigan, J., concurring) (“[A] Court exceeds the limit of its constitutional authority when it substitutes its policy choice for that of the Legislature[.]”). The case of course presents critical issues involving self-government because “the underlying issues in these cases pertain to an ‘emergency’ of the most compelling and undisputed character,” House of Representatives v. Governor, ––– Mich. ––––, ––––, 944 N.W.2d 706, 708 (2020) (Cavanagh, J., concurring), and “is arguably the most significant constitutional question presented to this Court in the last 50 years,” House of Representatives v. Governor, ––– Mich. ––––, ––––, 943 N.W.2d 365, 371 (2020) (Zahra, J., dissenting), recon. den. 944 N.W.2d 706 (2020).
7. In a number of cases, including House Speaker v. State Admin. Bd., 441 Mich. 547, 559 & n. 20, 495 N.W.2d 539 (1993), and Rohde v. Ann Arbor Pub. Sch., 479 Mich. 336, 737 N.W.2d 158 (2007), overruled on other grounds Lansing Sch. Ed. Ass'n, 487 Mich. at 374 n. 16, 792 N.W.2d 686, our Supreme Court emphasized that “[o]ne notable distinction between federal and state standing analysis is the power of this Court to issue advisory opinions. Const. 1963, art. 3, § 8. Under Article III of the federal constitution, federal courts may issue opinions only where there is an actual case or controversy.” House Speaker, 441 Mich. at 559 n. 20, 495 N.W.2d 539. Const. 1963, art. 3, § 8 is limited in scope in a number of respects, providing that “[e]ither house of the legislature or the governor may request the opinion of the supreme court on important questions of law upon solemn occasions as to the constitutionality of legislation after it has been enacted into law but before its effective date.” Thus, while that provision authorizes the Supreme Court under certain circumstances to issue an advisory opinion, there is no such provision granting this Court that authority. Accordingly, this Court is bound to find standing in a case before we may exercise the judicial power.
8. While I acknowledge that the Legislature has the power through the normal political process to amend or repeal the EMA and the EPGA, which may have application to future executive actions, it does not have the power to ensure that the Governor has not exceeded a governor's power under these statutes as currently in force, the issue presented here. That is the judiciary's role.
9. Under the EMA, a governor can declare a “state of disaster,” MCL 30.403(3), or a “state of emergency,” MCL 30.403(4). However, an epidemic can only be the basis for executive action as a state of disaster, as is expressly provided by the EMA's definitions. See MCL 30.402(e); note 16 of this opinion (discussing the expressio unius canon of construction).
10. Just so it is absolutely clear, there are three general canons of construction implicated here: (1) statutes regarding the same general subject matter are construed in pari materia; (2) we assume that the Legislature did not intend for its enactments to be mere surplusage but, rather, that it strives for an interpretation that gives every word meaning; and (3) we assume that when the Legislature enacts legislation, it knows what the existing state of the law is and crafts its work accordingly.
11. See note 9 of this opinion.
12. The word “disaster” is undefined in the EPGA. Under the EMA, however, “ ‘[d]isaster’ means an occurrence or threat of widespread or severe damage, injury, or loss of life or property resulting from a natural or human-made cause, including, but not limited to, fire, flood, snowstorm, ice storm, tornado, windstorm, wave action, oil spill, water contamination, utility failure, hazardous peacetime radiological incident, major transportation accident, hazardous materials incident, epidemic, air contamination, blight, drought, infestation, explosion, or hostile military action or paramilitary action, or similar occurrences resulting from terrorist activities, riots, or civil disorders.” MCL 30.402(e) (emphasis added). The COVID-19 threat has been deemed a “pandemic.” A “pandemic” is “an outbreak of a disease that occurs over a wide geographic area and affects an exceptionally high proportion of the population.” Merriam-Webster, Usage Notes: ‘Pandemic’ vs. ‘Epidemic’ How They Overlap And Where They Differ [https://perma.cc/D2F5-5VY3]. An “epidemic,” by contrast, means “ ‘an outbreak of disease that spreads quickly and affects many individuals at the same time.’ ” Id. A pandemic is thus more widespread and encompasses a greater disaster than an epidemic. The greater necessarily includes the lesser; because the EMA expressly defines an epidemic to be a disaster, a fortiori a pandemic also qualifies as a disaster.
13. The EPGA applies to a “great public crisis, disaster, rioting, catastrophe or similar public emergency․” MCL 10.31(1). There can be no doubt that a “public emergency” under that definition comports with the definition of “state of emergency” under the EMA and that the EPGA's use of the term “disaster,” which itself can constitute a “public emergency,” comports with the EMA's use of that same term.
14. It is not entirely correct to say that neither the EPGA nor the EMA have any limits as to the nature of the orders which the governor may issue following a declaration of an emergency. Both the EPGA and the EMA, in nearly identical terms, provide that an executive order issued under either of them “does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons,” EPGA, MCL 10.31(3); nor does it “authorize the seizure, taking, or confiscation of lawfully possessed firearms or ammunition,” EMA, MCL 30.405(2).There are two possible interpretations of the inclusion of the firearms-protection language in the two statutes. One is that the Legislature, in enacting the EMA, recognized that it was extending executive authority to new areas in instances in which such authority had not previously existed; an “epidemic,” as discussed in Part III of this opinion, is one example of such a recognition by the Legislature. Given that knowledge, had the Legislature wanted to continue the policy-driven decision of protecting lawfully possessed firearms, it would have had to include such language in the EMA because it would have understood that the EPGA did not apply to such circumstances. Such an interpretation supports the statutory conclusion I reach in this opinion.The other alternative is that the Legislature simply wanted, again for policy reasons, to reduce the scope of the firearms-protection provision of the EMA, MCL 30.405(2), by removing “other weapons,” thereby limiting protections to lawfully possessed firearms and ammunition. All firearms are weapons, but not all weapons are firearms. See Merriam-Webster's Collegiate Dictionary (11th ed.) (defining “firearm” as “a weapon from which a shot is discharged by gunpowder—usu. used of small arms” and defining “weapon” as “something (a club, knife, or gun) used to injure, defeat, or destroy” and as “a means of contending against another”); Webster's New World Dictionary of the American Language (2d college ed.) (defining “firearm” as “any weapon from which a shot is fired by the force of an explosion; esp., such a weapon small enough to be carried, as a rifle or pistol” and defining “weapon” as “an instrument or device of any kind used for fighting, as specif. in warfare,” and as “any means of attack or defense”). (Those definitions have remained consistent over time and, thus, are no different today than they were upon enactment of the two statutes.) As an aid to statutory interpretation, this possibility does not clarify the interrelationship between the EPGA and the EMA at all because there are two potentially harmonious readings of the statutes. However, one can conclude from the two firearms provisions that they either support the statutory interpretation I make in this opinion, or they are neutral as to it; in no way do they detract from that interpretation.
15. The majority simply misreads this portion of § 17(d), engrafting language that it does not contain. The majority states that it rejects “any contention that this provision only bars a limitation, modification, or abridgement of a governor's authority to proclaim or declare a state of emergency under the EPGA, absent any application to the extension of a state of emergency, thereby allowing imposition of the legislative-approval provision in § 3 of the EMA.” By this reading, the majority asserts that the word “proclamation” is broader than the mere formal announcement of a state of emergency. That reading is not supported by the statutory text. MCL 30.405(1) provides, “In addition to the general authority granted to the governor by this act, the governor may, upon the declaration of a state of disaster or state of emergency do 1 or more of the following:” Thus, the text is clear that the governor's authority to take certain actions has as a prerequisite the declaration of a state of disaster or emergency but that those powers are distinct from, although they are triggered by, the declaration itself. The EMA also makes clear that an extension is a separate act that requires the Legislature's approval. See MCL 30.403(3) and (4).
16. It is not clear that the statutes referred to include the EPGA because there already was one reference to that statute in § 17(d), and, as noted, that reference did not relate to the authority of the governor to do anything under the EPGA except to declare an emergency. Generally speaking, the doctrine of expressio unius est exclusio alterius (“express mention in a statute of one thing implies the exclusion of other similar things”) would exclude the EPGA from the inclusion in the collective “statutes.” Hoste v. Shanty Creek Mgt., Inc., 459 Mich. 561, 572, 592 N.W.2d 360 (1999). As applicable here, that would be because the single, specific reference in § 17(d) to the EPGA, followed by the general reference to “statutes” which follows, would not include the EPGA as one of those statutes. But we need not decide that question here to determine the scope of the governor's authority.
17. And consistently with that reading, there was a public-health code that long predated the EPGA that authorized emergency government action to address “cholera and other dangerous communicable diseases.” See 1885 PA 230, § 2. The EPGA did not repeal or amend that statute, thus strengthening the inference that the 1945 Legislature did not intend to change the emergency powers to address epidemics from the historical approach. That historical approach to epidemics and emergency powers changed with the enactment of the EMA.
18. The majority's construction of the word “epidemic” in the EPGA “is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-313, 114 S. Ct. 1510, 128 L. Ed. 2d 274 (1994). See also id. at 313, n. 12, 114 S.Ct. 1510; Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 216, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995). In other words, when a court “construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Rivers, 511 U.S. at 313 n. 12, 114 S.Ct. 1510. We presume that when the Legislature acts, it knows what the law is. Apsey, 477 Mich. at 127, 730 N.W.2d 695. Thus, under the majority's view, the Legislature knew in 1976 that it already possessed the same authority under the EPGA to address epidemic and public-health emergencies that it was enacting under the EMA. And yet the Legislature nonetheless enacted a limitation on the governor's authority to act unilaterally under the EMA but refused to enact a similar limit under the EPGA, allowing the governor to proceed under either authority. In other words, according to the majority and the Governor, the Legislature enacted a durational limit of 28-days on executive action, but gave the governor full authority to opt-out from under such time limits any time the governor so chose. Again, it is logically absurd for a court to conclude that the Legislature so intended.
19. It is worth underscoring that the majority's construction of the word “epidemic” in the EPGA “is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.” Rivers, 511 U.S. at 312-313, 114 S.Ct. 1510. See also id. at 313 n. 12, 114 S.Ct. 1510; Plaut, 514 U.S. at 216, 115 S.Ct. 1447. In other words, when a court “construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law.” Rivers, 511 U.S. at 313 n. 12, 114 S.Ct. 1510. We presume that when the Legislature acts, it knows what the law is. Apsey, 477 Mich. at 127, 730 N.W.2d 695. Thus, under the majority's view, the Legislature knew in 1976 that it already possessed the same authority under the EPGA to address epidemic and public-health emergencies as it was to enact under the EMA. And yet the Legislature nonetheless enacted a limitation on a governor's authority to act unilaterally under the EMA but refused to enact a similar limit under the EPGA; and it allowed the governor to proceed under either authority. Thus, the Legislature enacted a durational limit of 28-days on executive action, but gave the governor full authority to opt-out from under such time limits any time the governor so chose. Again, it is logically absurd for a court to conclude that the Legislature so intended.
20. Indeed, our Supreme Court previously has held that a legislative act authorizing a quarantine to be carried out by health inspectors, under general rules enacted by the Legislature that provided for discretion on the part of the inspectors as to when to detain persons and goods, subject to standards stated in the legislation, was constitutional. Hurst v. Warner, 102 Mich. 238, 244, 60 N.W. 440 (1894). The EPGA is quite different in that it allows the governor to create any rule the governor wishes, as to any subject, in the first instance. That power is legislative.
21. As noted by the majority, “Pursuant to MCL 10.31(2), a governor proclaims or declares a state of emergency, and it simply continues until the governor declares ‘that the emergency no longer exists.’ ” Taken together, these statements by the majority mean that a governor can order anything, forever, a truly striking concept in a democratic republic.
K. F. Kelly, J., concurred with Markey, P.J.
Response sent, thank you
Docket No: No. 353655
Decided: August 21, 2020
Court: Court of Appeals of Michigan.
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