State to pay Mackinac Center $200K in attorney’s fees over emergency orders lawsuit

The state of Michigan will pay $200,000 to the Mackinac Center for Public Policy to cover legal fees incurred in litigation that overturned Gov. Gretchen Whitmer’s COVID-19 emergency orders as illegal. In its 2020 ruling, the court also threw out the state’s 1945 emergency powers law as unconstitutional.

“We were there when Michigan needed us,” said Patrick Wright, vice president of the Mackinac Center Legal Foundation.

As a term of the settlement, the fees will be split evenly between the governor’s office, the attorney general’s office, and the Michigan Department of Health and Human Services, an executive branch agency. The state denies liability, but has agreed to the fees.

In May 2020, just two months into the COVID-19 pandemic, the Mackinac Center Legal Foundation and the Grand Rapids-based law fim Miller Johnson sued to challenge the constitutionality of Whitmer’s emergency powers.

The Mackinac Center represented three medical providers and a patient, Jeffrey Gulick of Owosso, who were denied access to their work and to critical care unless the visit was deemed “essential.”

The state would be the decider of what was essential and what was not. Gulick needed a knee replacement, which was deemed nonessential.

"It was difficult," being one of the few voices to speak against Whitmer's unilateral powers, just two months into the pandemic, Joseph G. Lehman, president of the Mackinac Center, told CapCon. "But that's what the Mackinac Center does, and that's what the Mackinac Center is. The Mackinac Center was created for precisely what it just did: directly confronting an egregious abuse of government power, and restoring the people's voice.

In October 2020, the Michigan Supreme Court ruled unanimously that Whitmer’s extensions of emergency powers beyond April 30, 2020, without legislative approval, was illegal.

And by a 4-3 ruling, the court declared Michigan’s 1945 emergency powers law unconstitutional. With one case, the governor’s emergency powers were severely limited.

Every executive order issued after April 30, 2020, was struck down. In Wayne County alone, this led to the dismissal of 1,700-plus tickets for violations of public health orders, including 1,632 in Detroit.

Lehman added, “For five months, Gov. Whitmer disregarded the law, suppressed civil liberties and controlled the day-to-day activities of 10 million Michigan residents. During this time, the governor’s orders sought to micromanage almost every aspect of our lives.”

“This is one of our highlights of all time, getting in and winning this case,” Wright said.

Lehman agreed.

"If the Mackinac Center closed its doors tomorrow, this could very well be the one thing we would be known for," Lehman said of the emergency powers case.

Wright said that if the 1945 emergency powers law hadn’t been struck down, and the 1976 emergency powers law wasn't violated, Whitmer could have claimed the power to maintain emergency status until the economy had recovered.

Wright cites Whitmer’s Executive Order 2020-67, and 2020-68, which read:

“Moreover, state disaster and emergency recovery efforts remain necessary not only to support Michiganders in need due to the economic effects of this pandemic, but also to ensure that the prospect of lost income does not impel workers who may be infected to report to work, which would undermine infection control and contribute to further spread of the virus. Statewide coordination of these efforts is crucial to creating a stable path to recovery. Until that recovery is underway, the economic and fiscal harms from this pandemic have been contained, and the threats posed by COVID-19 to life and the public health, safety, and welfare of this state have been neutralized, statewide disaster and emergency conditions will exist."

Which is to say: “Statewide disaster and emergency conditions will exist” until Whitmer declared the economy had recovered sufficiently — as defined by her own office.

“Thus, without our legal victory, Whitmer could have still claimed there was an economic emergency requiring her control,” Wright said.

The Mackinac Center Legal Foundation represents clients free of charge.