Friday's Michigan Supreme Court order (PDF) granting a request to file an amicus brief in In Re Executive Order of the Governor (Brown v. Snyder) revealed an interesting lack of consensus on the Court about certified questions, or perhaps just about the question of the certified question on the Emergency Manager law. Brown v. Snyder was filed in Ingham County in June challenging the constitutionality of the law. In August, the Governor asked the Court to take up the constitutional questions at issue on an expedited basis, as permitted under MCR 7.305(A) when the Governor believes that a case involves controlling questions of public law “of such public moment as to require early and final determination” by the Court (PDF). Briefs were filed in September. On November 2, the Court issued an order directing the parties to answer substantive questions by mid-December. Friday’s order deals only with the motion on amicus status, but states that the Executive Message “remains under consideration.” In light of the procedural history, Justice Markman wonders:
“Under consideration” for what? “Under consideration” until when? A lawsuit was filed in the Ingham Circuit Court in June of last year; the Governor then filed an Executive Message in August requesting that this Court direct the Circuit Court to “certify” certain constitutional questions for the consideration of this Court; briefs were filed in support of, and in opposition to, such certification; this Court then directed the parties to file briefs addressing the substantive questions raised by the Executive Message; and, in December of last year, the parties filed such briefs. What then requires that this matter “remain under consideration”?
Meanwhile, as stated in Friday's order, Justices Cavanagh and Marilyn Kelly would decline the request for certification of the Governor’s Executive Message.
