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Appeal filed in effort to subpoena Whitmer

governor gretchen whitmer standing at a podium
State of Michigan
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A challenge filed with the Michigan Court of Appeals seeks to overturn a decision that Governor Gretchen Whitmer cannot be forced to testify in an abortion rights case. A group of prosecutors said she should have to testify and answer questions about her argument that Michigan’s 1931 abortion ban is not enforceable under the state constitution.

That law is on hold under a Court of Claims judge’s temporary order. The governor said that should be converted to a more durable injunction. And, the judge agreed that doesn’t require her to personally show up at a hearing next week to defend the request.

Whitmer’s argument, filed earlier this week, is that she isn’t acting on her personal behalf but in her official capacity, and that an in-person appearance “would only to 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.”

Attorney David Kallman represents prosecutors who say they have the right to file charges against abortion providers under the 1931 law. He said the governor should be required to show up and face questions.

“She has all this time to talk about the case, but she can’t take an hour and a half to come to the court and testify?” he told Michigan Public Radio. “Look, she’s the plaintiff. She brought the case. We have the absolute right under the law to subpoena her as an adverse witness and question her on her claims.”

Kallman said the governor doesn’t have a case because she’s not defending an existing law, but opposing its enforcement.

It’s not clear what legal precedents might apply to this situation, especially the question of whether a sitting governor can be subpoenaed when she’s the plaintiff in a case filed on her behalf.

Kallman said he expects the question will wind up before the Michigan Supreme Court. This would be distinct from Whitmer’s request for the state’s highest court to declare abortion rights are protected under the Michigan Constitution’s privacy clause.

Rick Pluta is Senior Capitol Correspondent for the Michigan Public Radio Network. He has been covering Michigan’s Capitol, government, and politics since 1987.
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