In what is being hailed as a major victory for supporters of vaping, Michigan’s Supreme Court has denied Governor Whitmer’s request to reverse the preliminary injunction granted by Court of Claims Judge Cynthia Diane Stephens on October 15, 2019.
When Gov Whitmer’s administration first announced the ban in September, Mark Slis - supported by the Defend MI Rights coalition - filed suit in Houghton County Circuit Court, before the flavor ban went into effect on October 2.
While the administration framed the flavor ban as an “emergency executive action”, intended to address the issue of youth vaping, Slis’ case successfully argued that this was a misuse of executive emergency powers.
The circuit court agreed that the administration’s lack of action could not be used to justify an emergency - particularly when youth vaping is already illegal. If action is to be taken, the court agreed, it would need to be legislative, and subject to the systems of checks and balances on which our nation is founded. The court issued a preliminary injunction, ending the flavor ban on October 15, less than two weeks after it went into effect.
The Whitmer administration immediately filed a request for emergency leave with the Michigan Court of Appeals, but the Michigan Court of Appeals, on December 9, upheld the lower court injunction. The administration didn’t stop there, though, and filed a motion with the Michigan Supreme Court to expedite the appeal. In a move many felt was politically callous, the administration invoked the Flint Water Crisis as justification for sweeping executive powers.
The Michigan Supreme Court - which seldom expedites rulings before the Court of Appeals can hear them - was not swayed by this rhetoric, and in a 6-1 decision ruled that it was "not persuaded that the question should be reviewed by this court before consideration by the Court of Appeals."
The only dissent was a reasoned one, from Justice Stephen Markman, who said, "I would do so not necessarily to reverse the injunction, but to affirm the proposition that the judiciary must act with the greatest dispatch in resolving the constitutional validity of actions undertaken by representative public institutions, where such actions have been enjoined by the judiciary."
This decision doesn’t end the contest: the Court of Appeals still has to hear the case, and decide whether the preliminary injunction should stand or be overturned. While this is another major victory, we have a long way to go before the rights of vapers are fully safeguarded - while also making certain to keep vapor products out of the hands of anyone under 21.