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Contractors group, GR landscaper challenge Whitmer order on emergency rules

BY Friday, May 29, 2020 02:54pm

The state chapter of a national trade group representing contractors and a Grand Rapids-based landscaping company have asked a state court to invalidate two recent executive orders by Gov. Gretchen Whitmer involving workplace safety requirements in light of COVID-19.

The lawsuit — filed on May 21 by Associated Builders and Contractors of Michigan and DJ’s Landscape Management in the state Court of Claims — alleges Whitmer overstepped her authority with two recent executive orders and violated due process laws. The suit essentially challenges the enforcement of “strict workplace safety measures” required to mitigate the spread of COVID-19 as companies return to work, and the legal basis on which the orders were drafted.

The lawsuit calls Whitmer’s orders and penalties for noncompliance a “legal minefield” for businesses, and that an inadvertent violation of “any of one of the laundry list of changing or unclear workplace requirements could result in hefty fines and lengthy terms of imprisonment.” 

The suit also names Attorney General Dana Nessel and Robert Gordon, director of the state Department of Health and Human Services. Both the governor’s and attorney general’s offices declined to comment, stating they don’t comment on pending litigation.

Jeff Wiggins, executive director of ABC of Michigan, said the lawsuit is about Whitmer’s allegedly “not adhering to one set of processes” for issuing emergency rules and resulting penalties. 

DJ Vander Slik, president of DJ’s Landscape Management, did not respond to a request for comment.

Wiggins said that while his membership largely agrees with safety protocols that have been issued by the state to prevent the spread of COVID-19, “The problem we have is the governor decided to take bits and pieces from different laws and use those pieces to form her own process of creating these emergency rules.”

The suit specifically calls Executive Order 2020-97 issued on May 21 the “grossest overstep yet of the Governor’s authority” under the Emergency Management Act of 1976 and the Emergency Powers of the Governor Act of 1945, two laws Whitmer has used to issue orders and extend the ongoing state of emergency.

“Essentially, the Governor is attempting to cherry pick the most favorable provisions of the different avenues for promulgating and enforcing rules, while circumventing the protections in place to limit the government’s power,” the groups said in the court filing.

Wiggins said that penalties for noncompliance of the orders could reach tens of thousands of dollars and up to three years in prison. 

“We want certainty in how the laws are implemented and enforced,” he said.

The lawsuit is separate from the state Legislature’s challenge of Whitmer’s use of the 1945 and 1976 laws to extend emergency declarations. Earlier this month, the Court of Claims ruled in favor of Whitmer. Republicans have asked the Michigan Supreme Court to hear the case.

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