LANSING, Mich. — Constitutional rights are not absolute and it is reasonable for Michigan’s governor to restrict them to control a pandemic, a judge has ruled in refusing to block Gov. Gretchen Whitmer’s stay-at-home order.

Michigan Court of Claims Judge Christopher Murray — an appointee of former Republican Gov. John Engler — issued an 18-page opinion Wednesday denying a request for an injunction that would block certain aspects of the order.

Murray said that while the court challenge will continue, the plaintiffs are unlikely to be successful.

“This is not because the rights asserted by plaintiffs are not fundamental,” Murray wrote.

“Being forced … by the state to remain in one’s home, in turn causing many residents to be unable to work, visit elderly relatives, and to generally move about the state,” does infringe on constitutional rights in the short term, Murray wrote.

“But those liberty interests are, and always have been, subject to society’s interest — society being our fellow residents. They — our fellow residents — have an interest to remain unharmed by a highly communicable and deadly virus.”

Steve Martinko and four other residents sued April 22, arguing that certain aspects of Whitmer’s stay-at-home order violated their constitutional rights to due process. Some of the parts of the order the plaintiffs complained about — a ban on travel to a vacation home Up North and a ban on the use of motorboats, for example — have since been relaxed.

Murray’s opinion was issued amid a growing divide between Whitmer, a Democrat, and the Republican-controlled Legislature over her use of emergency powers.

Legislative approval for Whitmer’s state of emergency expires at the end of the day Thursday, and Republican leaders are not receptive to her request for a 28-day extension.

Whitmer says that if lawmakers do not grant an extension to the state of emergency under Michigan’s Emergency Management Act, the state of emergency will continue under the Emergency Powers of Governor Act, which does not require legislative review and approval.

The Martinko suit also challenges the Emergency Management Act as an unconstitutional delegation of legislative authority to the governor. Murray said the plaintiffs are unlikely to succeed on that point, either.

The suit did not include a challenge to the delegation of legislative authority under the Emergency Powers of Governor Act — the 1945 statute Whitmer will be relying on after Thursday should the Legislature not vote to extend the state of emergency.

There was no immediate word on a possible appeal.

 

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