DETROIT — An appellate panel on Tuesday denied a request seeking to have Gov. Gretchen Whitmer take the stand in a hearing on her lawsuit seeking to upend Michigan's abortion ban.
The three-judge panel said it would not reverse a lower court order that quashed a subpoena requiring Whitmer to testify.
In a brief order, the appellate panel said it was not persuaded "of the existence of manifest error requiring reversal and warranting peremptory relief without argument or formal submission."
The order from Court of Appeals judges Mark Cavanagh, Colleen O'Brien and Sima Patel upheld last week's lower court ruling from Oakland County Circuit Judge Jacob Cunningham, who ruled Whitmer had shown good cause why she shouldn't be made to testify.
David Kallman, a lawyer for two of the 13 prosecuting attorneys named as defendants in Whitmer's case, subpoenaed the governor for Wednesday's hearing on the argument that she should have to explain how she would be expressly harmed by the state's abortion ban.
Kallman argued Whitmer, as the sole plaintiff, does not represent all of the women in the state, but just herself.
"Defendants did not bring this lawsuit, the governor did. She brought this on herself," Kallman said in the motion to appeal Cunningham's ruling. "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."
On Tuesday, Kallman, who represents Kent County Prosecutor Chris Becker and Jackson County Prosecutor Jerard Jarzynka, said there was no time to file any further appeals before Wednesday's hearing.
"It’s a sad day in Michigan when a party in a lawsuit can avoid having come to court to answer questions about their claims," Kallman said. "I don’t know what the governor’s afraid of. But the court’s ruled so we’re ready to move ahead tomorrow with the hearing.”
Whitmer had argued that she brought the suit on behalf of the state, not in an individual capacity, and that her appearance in court would require additional security.
"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 last week.
Cunningham will weigh a potential preliminary injunction in Whitmer's case at the Wednesday hearing. A temporary restraining order issued by Cunningham has been stopping prosecutors' enforcement of the abortion law through most of the month.
Whitmer filed her suit in Oakland County in early April against 13 county prosecutors, arguing the state abortion ban is nullified because a right to abortion already exists in the state Constitution. Planned Parenthood of Michigan filed a similar suit in April in the Court of Claims against Attorney General Dana Nessel, who has said she would neither enforce nor defend Michigan's abortion ban.
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 issued a preliminary injunction and directed Nessel to convey her preliminary injunction to prosecutors.
But earlier this month, a Court of Appeals panel said county prosecutors are not bound by Gleicher's ruling, setting off a daylong scramble to stop county prosecutors from moving forward with enforcement.
Cunningham issued a temporary restraining order in the Oakland County case that stops those prosecutors from enforcing the abortion law through Wednesday, when he'll hear arguments for and against a preliminary injunction that would extend the ban on enforcement through the pendency of the case.
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