Embattled Michigan Governor Gretchen Whitmer is now the target of a lawsuit recently filed in the state’s Court of Claims by the Associated Builders and Contractors of Michigan (ABC), a statewide trade association representing commercial and industrial construction companies, along with a private, Grand Rapids-based landscaping company. Per the Detroit Free Press, ABC represents 900 builders from across the state.
The lawsuit alleges two executive orders issued by Whitmer, 2020-96 and 2020-97, are in violation of both the United States and Michigan Constitutions as well as the state’s Occupational Safety and Health Act. The plaintiffs are asking the court to declare order 96 as unenforceable and order number 97 as invalid. The orders, both issued on May 21, define workplace protection measures meant to curb the spread of COVID-19 at active building sites, such as mandating temperature taking at job site entrances. The plaintiffs argue that safety mandates, which involve substantial fines if construction companies are found in violation of them, outlined by the state cannot be legally enforced as they were never authorized by the Michigan Legislature.
The Engineering News-Record elaborated on the particulars on the lawsuit:
“Businesses found to be in violation of order 96, which reopened Michigan to construction, can be unfairly disadvantaged under penalties outlined in order 97, according to the lawsuit. Both orders were issued by the governor’s office May 21. The fines and penalties for violating orders issued under the governor’s emergency powers carry a maximum penalty of 90 days in jail and/or a $500 fine, but order 97 allows enforcement by state agencies such as the Michigan Occupational Safety and Health Administration, which could allow for the larger penalties outlined in the lawsuit.
“The lawsuit further alleges that, if the executive orders are allowed to stand, the state can fine businesses without providing due process because the order lowers the burden of proof from a legal standard ‘beyond a reasonable doubt,’ to the order’s own standards.”
“Not only is the governor increasing penalties without legislative approval, she is also transferring enforcement power from local elected officials, such as sheriffs and prosecutors, to unelected bureaucrats under her control,” the Mackinac Center Legal Foundation stated in a news release. The Foundation, a nonprofit specializing in cases that it deems as involving governmental overreach, filed the suit of behalf on the plaintiffs along with law firm Miller Johnson.
Speaking to Construction Dive, ABC of Michigan director Jeff Wiggins clarified that the safety measures outlined in Whitmer’s orders such as controlling on-site bottlenecks for social distancing purposes and providing hand-washing/sanitizing stations were practices that construction companies were already, by and large, enforcing. Wiggins noted that the measures themselves were a non-issue but, rather, “it is the enforcement of these regulations,” he said. “You want to make sure that there are checks and balances in place.”