Michigan, Providers Clash Over Certification to State Top Court

June 8, 2020, 7:46 PM

Health-care providers challenging Michigan Gov. Gretchen Whitmer’s power to halt nonessential medical treatments during the cororavirus pandemic told a federal court it should ask the state’s top court to decide state constitutional issues raised in their complaint.

Whitmer (D), Attorney General Dana Nessell (D), and Michigan Health and Human Services Department Director Robert Gordon, however, urged the U.S. District Court for the Western District of Michigan to deny certification and dismiss the case. There is no reason for the federal court to ask the Michigan Supreme Court anything, as the emergency orders have expired and the issues are moot, they said.

The parties sounded off in briefs June 5 over whether the court should refer two questions related to the state’s Emergency Powers of the Governor Act and the Emergency Management Act to the state supreme court.

Midwest Institute of Health PLLC wants the state supreme court to decide if the laws allow Whitmer to issue new orders or reissue old orders related to Covid-19 after April 30, and whether the laws violate the Michigan Constitution’s separation of powers or nondelegation clauses.

These are unsettled issues of state law, and it would be appropriate to give Michigan’s top court the opportunity to resolve them, Midwest said. The issues aren’t moot, it said.

It would be inappropriate and a waste of judicial resources to certify the questions to the Michigan Supreme Court, Whitmer and Gordon said. There’s no live issue involving the emergency powers laws, they said. Midwest can bring a new case if an emergency arises again and Whitmer revives the old orders issues similar new ones in the future, they said.

The state-law issues already have been raised and briefed in two cases making their way through Michigan’s state courts, Nessel added. Although urging the court to dismiss the case, she also said the alternative of holding this case in abeyance until those lawsuits have been decided would be a better course of action than certification.

Midwest, Wellston Medical Center PLLC, Primary Health Services PC, and patient Jeffery Gulick sued Whitmer and other state officials May 12. They alleged two emergency order restricting the providers’ ability to serve patients were unconstitutional.

Miller Johnson and Mackinac Center Legal Foundation represent the providers. The Michigan Attorney General’s Office represents Whitmer, Gordon, and Nessel.

The case is Midwest Inst. of Health, PLLC v. Whitmer, W.D. Mich., No. 20-cv-414, briefs filed 6/5/20.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at mpazanowski@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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