DETROIT — Oakland County Circuit Judge Jacob Cunningham has ruled Gov. Gretchen Whitmer will not be forced to testify in the case she filed to stop enforcement of Michigan's abortion ban — a decision that was almost immediately appealed to the state Court of Appeals.
Cunningham said Wednesday that Whitmer established good cause to quash the subpoena — issued for a hearing next week on the possibility for a preliminary injunction — when she argued it was unnecessary because the governor hasn't intended to bring the suit in her personal capacity but on behalf of the state.
"It is apparent the defendants' subpoena of the governor is not necessary (or perhaps even meant) to aid this court in resolving the questions before it, and would only serve to detract from the governor's performance of her official duties, needlessly complicate the proceedings before this court, and improperly raise the level of spectacle surrounding the case," Whitmer's attorneys argued in a motion filed Tuesday.
Whitmer's team noted her appearance in court would require additional security and that the governor tested positive for COVID-19 Monday, potentially increasing the complications of her appearing in person.
Dave Kallman, a lawyer for Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka, appealed Cunningham's ruling Thursday to the Court of Appeals, arguing they weren't given the chance to respond to Whitmer's motion to quash. The Court of Appeals ordered a written reply to the appeal by 5 p.m. Monday.
Kallman has argued that since Whitmer filed the suit against 13 county prosecutors and is seeking to bar them from enforcing the state abortion ban, they should have a right to question her in a court of law.
"Defendants did not bring this lawsuit, the governor did. She brought this on herself," Kallman said in the motion to appeal. "It is the height of hypocrisy to bring a lawsuit, seek immediate and extraordinary relief, and then claim to be too busy to participate in the suit when challenged."
The attorney for Becker and Jarzynka also dismissed Whitmer's claims that she represented all women in Michigan or that her testimony would create a "spectacle."
"...it is plaintiff who brought this lawsuit, issued numerous press releases about this lawsuit, held numerous press conferences on this lawsuit, and has been in the media on almost a daily basis discussing this lawsuit," Kallman wrote.
"Plaintiff's continual attempt to gin up media attention about the very lawsuit she brought belies any feigned concern she has about creating a 'spectacle' if she testifies."
Whitmer filed her suit in Oakland County in early April, the same day Planned Parenthood of Michigan filed suit in the Court of Claims against Nessel, who has said she would neither enforce nor defend Michigan's abortion ban.
Both suits asked the courts to find a right to abortion in Michigan's constitution that overrode the state's 1931 abortion ban. The suits were filed in anticipation of the June 24 U.S. Supreme Court Dobbs decision that found there was no right to abortion in the U.S. Constitution and sent the issue of abortion back to the states to decide.
In May, Court of Claims Judge Elizabeth Gleicher ruled Planned Parenthood was likely to succeed on its argument that there was a right to abortion under the constitutional rights of due process and bodily autonomy. Gleicher's opinion sidestepped a 1997 Court of Appeals opinion, Mahaffey v. Attorney General, which ruled there wasn't a constitutional right to abortion after a group argued there was one under the right to privacy.
Gleicher directed Nessel to convey her May preliminary injunction to county prosecutors.
But Jarzynka and Becker pushed back, arguing Gleicher didn't have the authority to bind them to her restraining order through the Court of Claims because they were neither named in the suit nor considered state actors subject to Court of Claims orders.
Last week, a Court of Appeals panel sided with Jarzynka and Becker's arguments and found they were not bound by Gleicher's ruling.
The ruling set off a daylong scramble to respond to the decision that ended with a request to Cunningham to issue a temporary restraining order in the Oakland County case where prosecutors were named as defendants.
Cunningham granted the request almost immediately and, on Wednesday, extended his order through Aug. 17, when he'll hear arguments on the potential for a preliminary injunction on the prosecutors until the case is decided.
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