On March 10th, 2020, the State of Michigan identified the first two presumptive-positive cases of the novel coronavirus (COVID-19) in its borders. That same day, Governor Gretchen Whitmer issued an executive order declaring a state of emergency based on her authority under Art. 5, Sec. 1 of the Michigan Constitution of 1963, the Emergency Management Act (MCL 30.401 through 30.421) and the Emergency Powers of the Governor Act (MCL 10.31 through 10.33). “The governor shall, by executive order or proclamation, declare a state of emergency if he or she finds that an emergency has occurred or that the threat of an emergency exists.” MCL 30.403(4). “The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days.” Id. “After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.” Id.
“After making the proclamation or declaration, the governor may promulgate reasonable orders, rules, and regulations as he or she considers necessary to protect life and property or to bring the emergency situation within the affected area under control.” MCL 10.31(1). “Those orders, rules, and regulations may include, but are not limited to, providing for the control of traffic, including public and private transportation, within the area or any section of the area; designation of specific zones within the area in which occupancy and use of buildings and ingress and egress of persons and vehicles may be prohibited or regulated; control of places of amusement and assembly and of persons on public streets and thoroughfares; establishment of a curfew; control of the sale, transportation, and use of alcoholic beverages and liquors; and control of the storage, use, and transportation of explosives or inflammable materials or liquids deemed to be dangerous to public safety.” Id. In addition, the Emergency Management Act provides a catch-all where the governor can “direct all other actions which are necessary and appropriate under the circumstances.” MCL 30.405(1)(j). With this broad authority, Governor Whitmer issued a number of executive orders designed to limit the spread of COVID-19 throughout the state. These orders include Executive Order 2020-41 (superseding Executive Order 2020-21) which requires the following:
- Until at least April 30th, 2020, the temporary suspension of any “in-person work is not necessary to sustain or protect life” and prohibiting “all public and private gatherings of any number of people occurring among persons not part of a single household.”
- All individuals must adhere to “social distancing measures” such as remaining six feet from other people”. There should be no more than ten people in a room, including for purposes of attending funerals.
- Employers can only require employees to leave their home for employment if they are “critical infrastructure workers” such as health care workers and necessary government workers. To the extent possible, employees should be permitted to work remotely from home.
- Stores permitted to remain open must limit customers to 4 people per 1,000 square feet and close off parts of the store dedicated to the sale of carpet, flooring, furniture, garden centers and paint.
- Individuals should stay in their home or place of residence unless they meet a specified exception such as purchasing groceries, seeking medical or dental care, or attending legal proceedings. After April 10th, 2020, travel between different residences is prohibited unless permitted by court order (e.g. child custody and parenting time).
“A person who willfully disobeys or interferes with the implementation of a rule, order, or directive issued by the governor pursuant to [the Emergency Management Act] is guilty of a misdemeanor” punishable by up to 90 days in jail or a fine up to $500.00, or both. MCL 30.405(3). In addition, “[t]he violation of any such orders, rules and regulations made in conformity with [the Emergency Powers of Governor Act] shall be punishable as a misdemeanor, where such order, rule or regulation states that the violation thereof shall constitute a misdemeanor”, punishable by up to 90 days in jail or a fine up to $500.00, or both. MCL 10.33.
Michigan residents should be mindful that these executive orders have the force of penal statutes passed by the Legislature. Law enforcement is taking the necessary steps to enforce these orders to maintain public safety. Individuals that are a part of groups or gatherings in violation of the executive order may be cited for a violation. Store owners that operate businesses that do not adhere to social distancing rules or provide non-essential services in violation of the order may be shut down and charged with a misdemeanor. Judges and prosecutors will not go easy on those individuals that endanger public health. If you are charged with a violation of the governor’s executive order, you need a skilled criminal defense lawyer in your corner to protect your rights and ensure you get the best outcome possible.
If you or a loved one have further questions about COVID-19 executive orders or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
