On October 2, 2020, the Michigan Supreme Court ruled that Governor Gretchen Whitmer lacked the authority under the Emergency Powers of the Governor Act (“EPGA”) and the Emergency Management Act (“EMA”) to declare a state of emergency or issue executive orders related to the COVID-19 pandemic after April 30, 2020. In re Certified Questions From The United States District Court (Midwest Institute of Health, PLC v Governor), __ Mich __; __ NW2d __ (2020)(Docket No. 161492). This decision has the effect of wiping away nearly seven months of executive orders issued by the governor’s office regarding business closures, social distancing, group gatherings, restrictions on non-essential activities and the mandate to wear masks in public. Despite the legal ruling, the public health crisis continues to rage on.
However, the government is not without other means to enforce protective measures. On October 5, Michigan Department of Health and Human Services (MDHHS) Director Robert Gordon issued an emergency order under MCL 333.2253 restricting gathering sizes, requiring face coverings in public spaces and places limitations on bars and other venues. This emergency order largely mirrors many of the executive orders put in place by the governor and include the following:
- Indoor gatherings are limited to 10 persons with face masks required if occurring at a non-residential venue.
- Indoor gatherings of more than 10 people and up to 500 people occurring at a non-residential venue are permitted if attendance is limited to 20% of seating capacity in venues with fixed seating or attendance is limited to 20 persons per 1,000 square feet in venues without fixed seating.
- Outdoor gatherings are limited to 100 persons with face masks required if occurring at a non-residential venue.
- Outdoor gatherings or more than 100 persons and up to 1,000 persons occurring at a non-residential venue are permitted if attendance is limited to 30% of seating capacity in venues with fixed seating or attendance is limited to 30 persons per 1,000 square feet in venues without fixed seating.
- Gatherings are permitted for voting or election-related activities at polling places, organized sports, students in a classroom or children in a daycare setting without regard to the number of persons.
- Businesses, government offices, schools and other operations must not allow indoor gatherings of any kind unless they require individuals to wear a face covering. However, the requirement to wear a face covering does not apply to individuals who:
- (1) Are younger than five years old (and, per guidance from the Centers for Disease Control and Prevention (“CDC”), children under the age of two should not wear a mask).
- (2) Cannot medically tolerate a face covering.
- (3) Are eating or drinking while seated at a food service establishment.
- (4) Are exercising outdoors and able to consistently maintain six feet of social distance.
- (5) Are swimming.
- (6) Are receiving a service for which temporary removal of the face covering is necessary.
- (7) Are entering a business or are receiving a service and are asked to temporarily remove a face covering for identification purposes.
- (8) Are communicating with someone who is deaf, deafblind, or hard of hearing and where the ability to see the mouth is essential to communication.
- (9) Are actively engaged in a public safety role, including but not limited to law enforcement, firefighters, or emergency medical personnel, and where wearing a mask would seriously interfere in the performance of their public safety responsibilities.
- (10) Are at a polling place for purposes of voting in an election.
- (11) Are officiating or engaging in a religious service.
- (12) Are giving a speech for broadcast or to an audience, provided that the audience is at least six feet away from the speaker.
- Food service establishments must close indoor common areas in which people can congregate, dance, or otherwise mingle and prohibit indoor gatherings anywhere alcoholic beverages are sold for consumption onsite, except for where parties are seated and separated from one another by at least six feet, and do not intermingle.
- Organizers and venues of organized sports must ensure that athletes wear a face covering or consistently maintain six feet of social distancing, limit the live audience to two guests for each athlete, and ensure no concessions are sold at indoor venues
- Professional sports leagues and teams (including professional athletes) may engage in professional sports operations provided that activities are conducted pursuant to a COVID-19 safety plan and participants must maintain 6 feet of social distancing from one another to the extent compatible with the sport
- Neither a place of religious worship nor its owner is subject to penalty under this order for allowing religious worship at such place. No individual is subject to penalty under of this order for engaging in religious worship at a place of religious worship.
MCL 333.2253(1) provides “[i]f 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.” Local health departments are authorized to carry out and enforce the terms of the order. MCL 333.2235(1). In addition, local health departments may develop their own emergency orders to govern their respective counties.
A person who violates a rule or order of MDHHS is guilty of a misdemeanor punishable by a fine up to $200.00 or up to 6 months in jail, or both. MCL 333.2261. A person may also be liable for a civil fine up to $1,000.00 for each violation or day that a violation continues. MCL 333.2262(1).
These orders remain in effect until October 30, 2020. As COVID-19 cases rise in Michigan, enforcement of these rules by law enforcement may become more aggressive. Although the penalty is limited to a misdemeanor charge, it is still a criminal conviction that can follow you around forever. This is far more serious than a traffic ticket or a parking violation. If charged, you will be required to be arraigned in district court and you must either work out a resolution with the prosecutor or defend against the charges at trial. You need a criminal defense lawyer in your corner to aggressively defend your rights.
If you or a loved one are charged with any criminal offense, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.