On Friday, October 2, 2020, the Michigan Supreme Court issued an opinion which stated that the statutes Governor Gretchen Whitmer has been relying on as the source of the authority to issue executive orders either do not authorize the Governor’s actions or are unconstitutional. The opinion from the Michigan Supreme Court affects many of the requirements the Governor had put in place in Michigan. The Michigan Supreme Court opinion also resulted in new executive action from both the Michigan Department of Health and Human Services (DHHS) and county governments.
On October 5, 2020, DHHS, through its Director Robert Gordon, issued an emergency order titled Gathering Prohibition and Mask Order (DHHS Order). The DHHS Order largely tracks previous orders from Governor Whitmer on these topics by limiting the size of gatherings, requiring the use of masks in indoor spaces (which include schools) and while playing organized sports, and prohibiting congregation at food service establishments. Violations of the DHHS Order can result in misdemeanor charges as well as civil fines of up to $1,000. The DHHS Order is currently set to expire on October 30, 2020.
The DHHS Order was issued under Section 333.2253 of the Michigan Public Health Code which states: “If the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.” Republican lawmakers were critical of the DHHS Order and legal challenges are expected.
In addition to the DHHS, several counties have also issued orders tracking earlier executive orders issued by Governor Whitmer.
- Ingham County issued four emergency orders following the Michigan Supreme Court’s decision. The Ingham County orders address masks, gatherings and events, restaurant capacity and employee screening.
- Washtenaw County issued four orders, effective October 5, 2020, also addressing masks, gatherings and events, restaurant capacity and employee screening.
- Oakland County issued an emergency order regarding individuals to wear a mask when in any indoor space, when outdoors and unable to socially distance, when waiting for or riding any public or shared transposition, and when participating in an organized sport.
We anticipate additional orders from other local governments. Kent County, Macomb County, Ottawa County, St. Clair County and Wayne County have issued statements regarding the Michigan Supreme Court’s opinion. While some statements have encouraged residents to wear masks and maintain social distance (Ottawa and St. Clair County), other statements have declined to follow suit (Macomb County). What is consistent is that county governments are looking for the state of Michigan to provide more direction.
The Governor and the Legislature are currently negotiating the specific provisions of her executive orders that will be codified. The Senate is scheduled to return to session on Thursday, October 8, and the House is anticipated to return the following week. Both chambers and the Governor have placed a priority on clarifying worker protection, business liability and unemployment benefits as the first areas to be addressed.
Warner will continue to closely monitor developments in Lansing, local government and the courts. Please contact Troy Cumings, Amanda Fielder, Monique Field-Foster, Jonathan Kok or Matthew Nelson with any additional questions.
