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Michigan Supreme Court's Decision on Governor's Illegal Lockdown

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发表于 10-13-2020 09:30:36 | 显示全部楼层 |阅读模式
本帖最后由 choi 于 10-13-2020 13:44 编辑

Jennifer Henderson and Steve Almasy, Michigan Supreme Court Rules Against Governor Again, Ending Covid-19 Executive Orders. CNN, Oct 12, 2020.
https://www.cnn.com/2020/10/12/p ... mergency/index.html

Mote:
(a) The news report summarizes the events. You may want to read it (which alone is enough) if you do not have much time. The following are primary material, which will no ttake you  much time, if you read the parts I bring to you r attention.
(b)
(i) United States just indicted a few men for trying to kidnap the Michigan governor. See

Press release: Six Arrested on Federal Charge of Conspiracy to Kidnap the Governor of Michigan. Office of Public Affairs, US Department of Justice, Oct 8, 2020
https://www.justice.gov/opa/pr/s ... f%20Justice%20today,Governor%20of%20Michigan%2C%20Gretchen%20Whitmer.&text=On%20two%20occasions%2C%20members%20of,on%20the%20Governor's%20vacation%20home.
("According to a complaint filed Tuesday, October 6, 2020, [names of six men] conspired to kidnap the Governor from her vacation home in the Western District of Michigan. * * * FBI began an investigation earlier this year after becoming aware through social media that a group of individuals was discussing the violent overthrow of certain government and law enforcement components. * * * On two occasions, members of the alleged conspiracy conducted coordinated surveillance on the Governor's vacation home. Fox and Croft discussed detonating explosive devices to divert police from the area of the vacation home and Fox even inspected the underside of an M-31 highway bridge for places to seat an explosive, according to the complaint")
(ii) Gretchen Whitmer
https://en.wikipedia.org/wiki/Gretchen_Whitmer%20
(1971- ; born and raised in western Michigan; BA in communications, Michigan State University 1993; JD College of Law, Michigan State University, 1998; Democrat; Michigan House of Representatives 2001-2006; Michigan Senate 2006 to end of 2014; Ingham County Prosecutor July 21-Dec 31, 2016; governor of Michigan Jan 1, 2019- )

Quote: "On May 11, 2016, it was announced that the judges of Michigan's 30th Judicial Circuit Court had unanimously selected Whitmer to serve the remaining six months of outgoing Ingham County Prosecutor Stuart Dunnings III's term after he was arrested on March 14, 2016, and charged with 11 counts of involvement with a prostitute and four counts of willful neglect of duty. In a letter dated March 29, 2016, Dunnings announced he would resign effective July 2."  (footnotes omitted).

"The county seat is Mason. Lansing, the state capital of Michigan, is largely located within the county * ** The county is home to Michigan State University."
https://en.wikipedia.org/wiki/Ingham_County,_Michigan

Detroit College of Law, founded in 1891 in Detroit, was private. The Wikipedia page for Michigan State University College of Law goes on to say, "The college became affiliated with Michigan State University {MSU]in 1995 to enhance the college's curriculum and reputation. It relocated to East Lansing [Where MSU is located] in 1997, when its 99-year lease with the Detroit YMCA expired, and the original building was demolished to make way for Comerica Park. The newly located college was called 'Detroit College of Law at Michigan State University.' * * * In April 2004, the school changed its name to the MSU College of Law, becoming more closely aligned academically with MSU." (footnote omitted)

The Wiki page does not say whether Detroit College donated itself to the state or whether Michigan paid for it.
(iii) Gretchen
https://en.wikipedia.org/wiki/Gretchen

German-English dictionary:
* -chen (suffix)
https://en.wiktionary.org/wiki/-chen
(iv) The English surname Whitmer is variant of Whitmore. The latter is "from Old English hwit white + mor moor." Dictionary f American Family Names

(b) The federal civil action (Midwest Institute of Health, PLLC v Whitmer) was commenced on May 12, 2020 at United States District Court for the Western district of Michigan.  Six days later on May 18, plaintiffs sought (by a motion) preliminary injunction against defendants. The docket (No 20-cv-00414, where "cv" stands for civil action in contrast to cr for criminal) is here:
https://clearinghouse.net/detail.php?id=17620
("Causes of Action[:] 42 U.S.C. § 1983; Declaratory Judgment Act, 28 U.S.C. § 2201)

PLLC is short for Professional Limited Liability Company.

United States Codes (U.S.C.) Title 42, section 1983 (1996 edition) reads: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia."

28 U.S.C. § 2201 is simply to seek declaratory judgment: here to declare the executive orders of Michigan governor as unconstitutional under either state constitution or federal constitution. For the latter, plaintiffs in the federal case is based on due process clause )which has two components: procedural due process and substantive due process) of the Fourth Amendment to the federal (or United States) constitution.

However, before reaching the federal question (violation of federal constitution, amendments to the constitution, or federal law), the federal (district court) judge Paul L Maloney wanted to know what state constitution or law said about these executive orders. So on June 16, 2020 Judge Maloney issued an order, after parties' briefing on the issue, to certify (the latter) questions to Michigan Supreme Court
https://casetext.com/case/midwest-inst-of-health-pllc-v-whitmer
(paragraph 1: "This case presents extremely important issues of Michigan state law. The issues presented here, however, have never been considered by the Michigan Court of Appeals or the Michigan Supreme Court. This Court notified the parties that it was considering certifying two questions to the Michigan Supreme Court on May 28, 2020 (See ECF [standing for 'Electronic Case File' or docket (which used to be on paper but now electronical] No 23). The Court held a hearing on June 10, 2020 and heard argument on the issue. For the reasons to be explained, the Court will certify the following questions to the Michigan Supreme Court [the following 2 questions]")

(c) Michigan Supreme Court then has a case of the same title (A v B) and docket number 161492.
(i) The latest first.

Order. Oct 12, 2020
https://courts.michigan.gov/Cour ... %20Questions-OP.pdf
(syllabus (not opinion per se] : Three plaintiffs "brought an action in the United States District Court for the Western District of Michigan against the Governor of Michigan, the Michigan Attorney General, and the Michigan Department of Health and Human Services Director, challenging the Governor's Executive Order (EO) No. 2020-17, which prohibited healthcare providers from performing nonessential procedures. The order was issued by Governor Gretchen Whitmer as part of a series of executive orders issued in response to the COVID-19 pandemic. On March 10, 2020, the Governor issued EO 2020-04 [executive orders are numbered consecutively], declaring a 'state of emergency' under the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL [Michigan Compiled Laws] 10.31 et seq., and the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq. On April 1, 2020, she issued EO 2020-33, which declared a 'state of emergency' under the EPGA and a 'state of emergency' and 'state of disaster' under the EMA. She then requested that the Legislature extend the state-of-emergency and state-of-disaster declarations by 70 days. In response, the Legislature adopted Senate Concurrent Resolution 2020-24, extending the state of emergency and state of disaster through April 30, 2020 [therefore (due to senate authorization), governor is not now in a hot seat for EOs prior to Apr 30, 2020]. [The governor keeps issuing EOs related to the Covid-19 pandemic.] Although EO 2020-17 has been rescinded, the federal district court held that the case is not moot because subsequent executive orders have continued to impose restrictions on healthcare providers. The federal court further determined that certain issues raised in the case involved unsettled areas of state law such that certification of those questions to the Michigan Supreme Court was appropriate. [text of the two certified questions] * * * [On the second certified question,] Justice MARKMAN, joined by Justices ZAHRA and CLEMENT [so far only three votes out of seven], concluded that the Governor lacked the authority to declare a 'state of emergency' or a 'state of disaster' under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic and that the EPGA violated the Michigan Constitution because it delegated to the executive branch the legislative powers of state government and allowed the executive branch to exercise those powers indefinitely. * * * Justice VIVIANO, concurring in part and dissenting in part, joined Justice MARKMAN's opinion [now four votes to say governor EOs after Apr 30 invalid, but only one vote (Justice Viviano's) out of these four votes said that these EOs were NOT unconstitutional with respect to Michigan state law EPGA. See next] to the extent that it concluded that the certified questions should be answered, held that the Governor's executive orders issued after April 30, 2020, were not valid under the EMA, and held that the EPGA, as construed by the majority in Justice MARKMAN's opinion, constituted an unconstitutional delegation of legislative power. Justice VIVIANO would have concluded that the EPGA, which only allows the Governor to declare a state of emergency when public safety [read: law and order] is imperiled, does not allow for declarations of emergency to confront public-health events like pandemics because 'public health' and 'public safety' are not synonymous and, in light of this conclusion resolving the issue on statutory grounds, would not have decided the constitutional question whether the EPGA violates the separation of powers")
(A) Southern Division is within Western District of Michigan.
(B) A syllabus in a court opinion means summary. It is prepared by a court reporter, not the court, and therefore is not authoritative (only court opinion counts: more or less like a treaty between nations which may specify that only the English version controls).
(C) Like Massachusetts, Michigan identifies their judges as "justices."

There is a chief justice (Bridget McCormack) and there a "chief justice pro temp." See pro temp
https://en.wikipedia.org/wiki/Pro_tempore

Bridget
https://en.wikipedia.org/wiki/Bridget
(Saint Brigid of Kildare, a woman)

Nolan Finlay, McCormack chosen to lead Michigan Supreme Court. The Detroit News, Jan 9, 2019
https://www.detroitnews.com/stor ... justice/2524707002/
(Together with governor-elect Whitmer: "Women completed their sweep of Michigan's top state offices Wednesday with the election of Bridget McCormack asmcc [sic; probably should be 'as'] chief justice of the Michigan Supreme Court. * * * Her unanimous election marks the first time in state history that the offices of governor, attorney general, secretary of state and chief justice are all held by women.  Also for the first time, the Supreme Court will have a chief justice pro tem. Justice David Viviano [appointed by incoming chief justice McCormack] will serve as the court's No. 2, helping with administrative duties.  McCormack was elected to the court in 2012 after being nominated by the Democratic Party. Viviano was appointed in 2013 by Republican Gov. Rick Snyder, and won election in 2014")

Michigan Supreme Court
https://en.wikipedia.org/wiki/Michigan_Supreme_Court
(section 3 Composition: "The Supreme Court consists of seven justices who are elected [by popular votes] to eight-year terms. Candidates are nominated by political parties * * * Supreme Court candidates must be qualified electors, licensed to practice law in Michigan for at least five years, and under 70 years of age at the time of election. Vacancies are filled by appointment [as opposed to nomination with senate confirmation] of the Governor until the next general election. Every two years, the justices elect a member of the Court to serve as Chief Justice")
(D) Latin-English dictionary:
* et seq.
https://en.wiktionary.org/wiki/et_seq.

In the above Michigan court opinion, it means "and the following SECTIONS."  The "et seq" is italicized in the opinion as a (foreign: Latin, that is) loanword.
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