The Michigan Supreme Court Struck Down Governor Whitmer’s Executive Orders Concerning COVID-19; Department of Health and Human Services Issues New Orders

On Friday, October 2, 2020, the Michigan Supreme Court issued its landmark ruling on Gov. Gretchen Whitmer’s use of emergency powers under the Emergency Powers of the Governor Act of 1945 (“EPGA”) and the Emergency Management Act of 1976 (“EMA”).

The Court ruled that the EPGA was an unconstitutional delegation of legislative power to the governor, which is prohibited under Michigan’s separation-of-powers clause in Article III, Section 2 of the state constitution. Therefore, it held that Gov. Whitmer never had authority to issue her executive orders under this law.

Although it did not decide whether the EMA is constitutional, the Court also ruled that a governor cannot re-declare or otherwise extend emergencies under the EMA without the Legislature’s approval after 28 days.  Because the Legislature declined to give its approval after April 30th, the Court held that Gov. Whitmer lacked authority to issue any executive orders under the EMA after April 30th.

Gov. Whitmer has formally asked the Court to delay the effective date of its ruling for 28 days to give state and local officials time to devise and implement policies under other legal authorities.  We expect a ruling on that request soon.

In the meantime, Robert Gordon, Director of the Department of Health and Human Services, issued an order late yesterday, October 5th, imposing many of the same rules and restrictions that had been in place under Gov. Whitmer’s executive orders.  Here are the top takeaways from the new HHS order:

• Indoor gatherings at non-residential venues with fixed seating (e.g., theaters, stadiums, etc.) are limited to 20% capacity throughout the state (except in Region 6, where the limit is 25% capacity), and a maximum of 500 people;
• Indoor gatherings at non-residential venues without fixed seating are limited to 20 people per 1,000 square feet in each occupied room (except in Region 6, where the limit is 25 people), and a maximum of 500 people;
• Outdoor gatherings at non-residential venues with fixed seating are limited to 30% capacity throughout the state (including in Region 6), and a maximum of 1,000 people;
• Outdoor gatherings at non-residential venues without fixed seating are limited to 30 people per 1,000 square feet (including in Region 6), and a maximum of 1,000 people;
• Food establishments must close common areas indoors where people can congregate, dance, or otherwise mingle;
• Food establishments must prohibit indoor gatherings anywhere alcohol is sold for consumption onsite, except for tableside service;
• Athletes must wear a mask or consistently maintain six feet of social distance (except for occasional or fleeting moments) when training for, practicing for, or competing in an organized sport;
• Concessions cannot be sold at organized sporting events, and the audience must be limited to guests of the athletes (two per athlete), unless a larger audience can be accommodated under the indoor or outdoor capacity limits noted above;
• Masks are required at all non-residential gatherings, both indoor and outdoor;
• As before, you must ask those without a mask to put on a mask, but you can accept a person’s verbal representation that they fall within an exception.

Those who are not required to wear a mask are those who are:

• Younger than 5 years old;
• Cannot medically tolerate a mask;
• Eating and drinking while seated in a food establishment;
• Exercising outdoors and able to consistently maintain six feet of social distance;
• Swimming;
• Receiving a service that requires the temporary removal of a mask;
• Asked to temporarily remove their mask for identification purposes;
• Communicating with someone who is deaf or hard of hearing and where the ability to see the mouth is essential to communication;
• First responders actively engaged in a public safety role; and
• At a polling place to vote in an election;
• Officiating or engaging in a religious service; and
• Giving a speech for broadcast or to an audience, provided that the audience is at least six feet away from the speaker.

This order expires on October 30th, unless it is rescinded or extended.  We will continue to keep you informed of any changes to this order, or any new order, issued in the days to come.

Joseph Richotte
248.258.1407
richotte@butzel.com

Daniel McCarthy
248.258.1401
mccarthyd@butzel.com