Michigan Supreme Court Invalidates Governor’s Executive Orders

Michigan Department of Health and Human Services Issues Emergency Order

On Friday, October 2, 2020, the Michigan Supreme Court issued an opinion invalidating the majority of Governor Whitmer’s executive orders issued after April 30, 2020, related to the COVID-19 pandemic.

The Michigan Supreme Court concluded that (1) the Governor lacked the authority to declare a state of emergency without legislative approval under the Emergency Management Act of 1976 after April 30, 2020, the date on which the Legislature did not give approval, and (2) that the Emergency Powers of the Governor Act of 1945 is an unconstitutional delegation of legislative power to the executive branch. This ruling means that the Governor lacked the authority after April 30, 2020, to issue or renew any executive orders related to the COVID-19 pandemic under either of these laws.

There is uncertainty surrounding the date when the Supreme Court’s opinion takes effect. The Governor initially stated that the opinion does not take effect for 21 days and has since requested the Court provide a transition period and extend the effective date to October 30, 2020. Some legislative leaders claim the opinion took effect immediately.

Following the Court’s ruling, state and local health departments began issuing orders regarding face coverings and social distancing procedures. On October 5, 2020, the Michigan Department of Health and Human Services ("MDHHS") issued Emergency Order Under MCL 333.2253 – Gathering Prohibition and Mask Order (the “MDHHS Order”). The Order provides limitations on indoor gatherings and requires face coverings for certain events. As it relates to public meetings (including boards of determination, drainage board meetings, and days of review), indoor gatherings of up to 500 persons are permitted, so long as the organizers ensure that:

• All attendees wear face coverings; 
• Social distancing takes place; and 
• The following capacity requirements are followed: 
  • If the venue has fixed seating, attendance is limited to 20% of the venue’s seating capacity; or
  • If no fixed seating, attendance is limited to 20 persons per 1,000 square feet in each occupied room. It is advisable to check your county or local health department for any other restrictions or limitations.

While the MDHHS Order generally mirrors the Governor's latest executive orders concerning limits on gatherings, social distancing requirements, penalties, and the requiring of "face coverings" while in businesses, government offices, schools, and other public operations, it did not address public meetings under the Michigan Open Meetings Act (“OMA”). Most recently, Executive Order 2020-154 allowed public meetings, such as boards of determination, drainage board meetings, and days of review, to be held remotely while remaining in compliance with the OMA. Many drain and water resources commissioners and drainage boards have been conducting remote meetings since March based on the Governor’s executive orders that relaxed the in-person meeting requirements of the OMA. Given the Supreme Court’s invalidation of this Executive Order, remote public meetings held before either the date the Supreme Court clarifies the effective date of its opinion or the date the legislature provides OMA guidance may be subject to OMA challenges. Should the Michigan Supreme Court clarify its effective date, previously noticed remote meetings may need to be rescheduled in person to comply with the requirements of the OMA. The Legislature may also act in the coming days to authorize the continued use of remote meetings. Unless and until there is clarification from either the Court or the Legislature, drain and water resources commissioners and drainage boards may want to consider conducting their public meetings in-person, subject to any applicable state and local health requirements.

Should you have any specific questions regarding the Supreme Court’s opinion or how it relates to public meetings, please consult your attorney. You can read the Michigan Supreme Court’s opinion here.