Published in Economic Development

Court of Claims rules in favor of contractors, GR landscaper challenging executive order

BY Monday, June 08, 2020 10:16pm

The Michigan Court of Claims has ruled in favor of a building contractors’ trade group and a Grand Rapids landscaping company who challenged the penalties associated with an executive order on pandemic-related workplace requirements.

Judge Christopher Murray ordered that two sections of a May 21 executive order exceeded Gov. Gretchen Whitmer’s authority. The suit was brought by Mackinac Center Legal Foundation and DJ’s Landscape Management.

The suit claims Whitmer exceeded her authority by subjecting companies to potential penalties under the Michigan Occupational Safety and Health Act, which includes tens of thousands of dollars in potential fines and felony charges.

The executive order was issued under the Emergency Powers of the Governor Act of 1945 and Emergency Management Act of 1976, which designates penalties as a misdemeanor and fines of up to $500.

“There is simply no room … for adding additional penalties, let alone incorporating different, and more severe, penalties from a separate statutory scheme such as the felony charges and increased fines set forth in MIOSHA,” according to the order. The court agreed with the claim that Whitmer “exceeded her statutory authority by effectively bootstrapping into EO 2020-97 penalties that are found in MIOSHA.”

The Mackinac Center Legal Foundation co-filed the suit, which included six separate counts and sought to invalidate two executive orders. The Court of Claims ruled only on the first count involving one order alleging Whitmer couldn’t impose the additional penalties.

The original suit called Whitmer’s orders and penalties for noncompliance a “legal minefield” for businesses, as MiBiz previously reported.

“As a nation and as a state, we protect individual rights through the separation of powers,” foundation Director Patrick Wright said in a statement. “Here, the Court of Claims rebuked the governor for seeking to make her own law, to dramatically increase potential penalties and to enforce it through an agency she directly controls.”

The suit involves Executive Order 97, which was replaced by Executive Order 114, outlining workplace safety measures companies are required to take to prevent the spread of COVID-19.

The state argued that the parties didn’t have standing to challenge the executive order, claiming they weren’t part of an “actual controversy.” The court disagreed, noting DJ’s and members of ABC were allowed to reopen during the pandemic closures and thus subject to the order even though they didn’t violate the statute.

“The Court defended Michigan workers today, striking down Gov. Whitmer’s attempt to weaponize MIOSHA against safe job sites that are taking good faith precautions to combat COVID-19,” Jeff Wiggins, state director for ABC Michigan, said in a statement. “This decision allows more than 100,000 craft trades professionals to continue operating safely without the threat of multiple, arbitrary and significant fines or other MIOSHA penalties.”

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