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Whitmer's COVID-19 orders effectively end as Nessel withdraws enforcement

Beth LeBlanc
The Detroit News

Michigan Attorney General Dana Nessel will no longer enforce Gov. Gretchen Whitmer's executive orders on the coronavirus, effectively ending dozens of statewide edicts, after the Michigan Supreme Court two days earlier struck down the governor's emergency powers.

Since the state’s chief law enforcement officer declined to keep enforcing the governor's COVID-19 restrictions on Sunday, the Whitmer administration is now forced to pursue other ways to maintain public health restrictions after initially insisting the orders remained in effect pending a supposed 21-day legal reconsideration period.

Nessel's office on Sunday made clear the department "will no longer enforce the governor's executive orders through criminal prosecution."

"However, her decision is not binding on other law enforcement agencies or state departments with independent enforcement authority," said Ryan Jarvi, a spokesman for Nessel's office.

Attorney General Dana Nessel

Uncertainty abounds for residents across the state. Can they visit a loved one in a nursing home? Will unemployment extensions remain in place? Are capacity limits still required in private and public settings? Are schools under the same rules they were when classes let out Friday afternoon?

Based on early local government maneuvers, the court ruling might result in a patchwork of local public health orders until or unless Michigan’s GOP-led House and Senate reach an agreement with Whitmer on a new statutory framework for Michigan’s coronavirus response.

Whitmer has argued she can use her state agencies to issue directives similar to the executive orders. How the COVID-19 directives would be enforced by local and state officials remains uncertain. 

“The Supreme Court’s ruling raises several legal questions that we are still reviewing,” said Tiffany Brown, Whitmer's spokeswoman. “While we are moving swiftly, this transition will take time.”

Still, Whitmer said Sunday she is ready to work with GOP legislative leaders to put a coronavirus response framework in place after Senate Majority Leader Mike Shirkey, R-Clarklake, and House Speaker Lee Chatfield, R-Levering, indicated they wanted to work with her. But the Democratic governor preached patience.

On Saturday, Shirkey said state government should shift its approach away from mandating residents wear masks and focus on educating Michiganians of the benefits.

But one of the orders lawmakers will have to address, Shirkey said, is expanded unemployment eligibility during a pandemic that's led to record jobless claims. The order was issued on May 6, six days after April 30.

The governor has also issued orders that allow local governments to hold their meetings virtually to avoid in-person meetings that could allow the virus to spread.

Christopher Johnson, general counsel for the Michigan Municipal League, said his organization is advising cities they can continue to hold virtual meetings for 21 days under its current understanding of the court process.

The Oakland County Health Department on Saturday ordered residents of Michigan's second-most populous county to wear masks or facial coverings when leaving their homes. More orders will follow to outline capacity limits for bars and restaurants and instill public health screenings, the department said.

Ingham County followed suit Sunday by issuing emergency orders similar to Oakland's, with rules requiring face masks, limiting restaurant capacity to 50%, mandating employee health screenings and putting restrictions on indoor and outdoor gatherings.

But Wayne County appears to be taking a wait-and-see approach, issuing a Sunday statement urging the Legislature and governor to work together to build a new framework to protect public health.

"Before the county starts issuing orders, the county executive wants some indication on which direction the governor and the Legislature will take," said William Nowling, a spokesman for County Executive Warren Evans. 

State and local health departments have broad authority under the Michigan public health code to take action, but state law puts procedural limitations on the rule-making process, said Peter Jacobson, professor emeritus of health law and policy at the University of Michigan. 

Even if the departments issue emergency orders, those are still subject to more challenges than the governor's, Jacobson said.

"It would be ideal for the Legislature and the governor really to set aside their differences and cooperate," he said. "That would be the best result for everyone.”

The end of enforcement

The Supreme Court unanimously ruled Whitmer had no authority under a 1976 emergency law to extend the emergency past April 30 without approval from the Legislature. The governor has issued 123 executive orders since that date.

The court split 4-3 in ruling that it was unconstitutional for Whitmer to use a separate law to issue executive orders — the 1945 Emergency Powers of the Governor Act — because it improperly delegated legislative powers to the executive branch. 

Jarvi clarified on Sunday that Nessel believes a 21-day delay on Friday court ruling still applies, but “the AG is just choosing not to exercise her prosecutorial discretion during this 21-day time period.” He declined further comment when asked why Nessel was choosing not to prosecute.  

"It’s her fervent hope that people continue to abide by the measures that Gov. Whitmer put in place — like wearing face masks, adhering to social distancing requirements and staying home when sick — since they’ve proven effective at saving lives," Jarvi said.

The Michigan Association of Chiefs of Police had told The Detroit News on Saturday that departments across the state were waiting for word from Nessel about when the current executive orders would expire.

The Mall at Partridge Creek in Clinton Township temporarily suspended operating hours on May 8, 2020, after Michigan Gov. Gretchen Whitmer issued a COVID-19-related executive order. Whitmer's emergency powers were struck down in October by the Michigan Supreme Court.

"If the attorney general says it’s over, then it’s over," said Bob Stevenson, executive director of the association. 

The plaintiffs' lawyers in the Supreme Court case argued the court's ruling took effect immediately. Any argument about a 21-day stay is immaterial, said Patrick Wright, vice president for legal affairs at the Mackinac Center for Public Policy in Midland. 

“What prosecutor, what sheriff, what judge, what court would enforce these orders when the Michigan Supreme Court just said they’re unconstitutional?” Wright said.

While Whitmer’s Department of Health and Human Services still maintains the authority to create its own orders, Wright said, the directives must be within the confines of the statute granting the department that authority.

“The next question is: Exactly what powers does DHHS have under what statutes?” he said.

Will health departments take lead?

State and local health departments have the power under the public health code to issue emergency orders during an epidemic, including orders that would prohibit the gathering of people or the quarantine of individuals to ensure "continuation of essential public health services and enforcement of health laws.”

The departments’ authority is broad but may be more limited than the governor's previous emergency powers, especially without a statewide emergency declaration.

In a Detroit News interview last month, Department of Health and Human Services Director Robert Gordon was asked whether his orders had the same weight as the governor’s after the idea was floated during oral arguments in the Supreme Court. Gordon replied "that is not my understanding," but added, he'd have to talk to the department's lawyers because he had "not been tracking the litigation closely.”

In the past, the department has incorporated Whitmer's executive orders into separate department orders. But the Department of Health and Human Services has only issued five since August while Whitmer has issued more than 30.

Robert Gordon

Jacobson expects Gordon would take a more authoritative role but worries about the divide that might develop between the state health department and local health departments in areas less affected by the virus. The law is silent on whether state or local officials hold the upper hand, he said, but it's likely the state would prevail. 

"We know that it's easier for the governor to compel cooperation across the state than it will for an appointed official," Jacobson said. "You have a potentially more fragmented enforcement and compliance structure."

In addition, pressure will mount with each passing month on state and local health departments to show the worth of the restrictions they're enforcing, Jacobson said. The burden may be higher considering the officials at issue are appointed, not elected.

"Over time, the courts are going to start to look and ask are the restrictions reasonable," Jacobson said. "Are they necessary?”

Other public health departments have issued their own orders during the pandemic, including East Lansing quarantine orders during an uptick in cases among Michigan State University students.

One of the hardest-hit counties, Wayne County, has "deferred to the state on making and promulgating orders" to stay in line with state law and executive order changes, Nowling said. The county is holding internal discussions about how the Supreme Court decision might change that. 

Most public health professionals agree: The authority is there for the taking if needed.

“The public health code gives pretty broad authority to local health departments and the state health department to issue orders,” said Nick Derusha, president-elect for the Michigan Association for Local Public Health, the group that represents local health departments.

Still, Derusha, who is a health officer for the Upper Peninsula’s Luce-Mackinac-Alger-Schoolcraft District Health Department, recognized the risk a patchwork of public health orders creates in setting counties on uneven playing fields.

“I think it is all of our hope right now that the Legislature and governor will be able to come together and enact policies that we can use going forward,” Derusha said.

The Michigan health department launched a $5 million public education campaign on COVID-19 called "Spread hope, not COVID" that encouraged people to wear masks, socially distance, wash their hands and get tested for the virus.

Waiting for answers

For police, industry and care facilities, it's still not clear what measures are still in place, which will be replaced and whether past enforcement action holds any weight.

The Prosecuting Attorneys Association of Michigan was still “digesting” the order Saturday, but most prosecutors were anticipating Whitmer's executive orders would remain in place for 21 days, said Muskegon County Prosecutor D.J. Hilson, the immediate past president of the association.

“Our initial blush at it and our initial review of it seems to show the 21-day rule does apply,” Hilson said. “But, look, smarter minds may differ, and that’s the beauty of the gray area of the law.”

Prosecutors across the state largely have hesitated to enforce the orders for several months, instead have relied on education efforts. So their jobs don't change significantly since the governor's emergency powers were struck down. 

Like Michigan prosecutors, many police agencies have taken a less punitive approach to the orders, trying to educate individuals on how to comply, the Michigan Association of Chiefs of Police's Stevenson said.

“I would be very surprised if they’re taking any enforcement action over the course of the weekend because it’s so up in the air,” he said.

The Michigan Restaurant and Lodging Association is approaching the coming weeks with “cautious optimism” about the potential for loosened restrictions, said Justin Winslow, president and CEO of the association.

The association still isn’t sure when the orders will dissolve or what power state and local health departments will retain over business, Winslow said. He’s hoping at least some restrictions will be lifted through negotiated rules between the Legislature and governor.

“Just because the Supreme Court changed their opportunities doesn’t change the fact that the virus is still here,” Winslow said. “They recognize that they need to commit to safety if they want to earn the public’s trust in coming into a restaurant.”

There’s also a question of rescinding past enforcement penalties. The Small Business Association of Michigan has questioned the fines issued by the Michigan Occupational Safety and Health Administration for workplace violations of social distancing rules, mask use and COVID-19 training.

The hefty fines were issued under MIOSHA’s general duty clause, which requires employers to provide workspace free of hazards causing death or serious physical harm. The clause was invoked under the belief that a failure to follow the executive orders could lead to death or serious physical harm, as outlined in the first workplace safety order, Executive Order 114, which was issued after April 30.

“Everything has hinged on the executive orders until this point,” said Brian Calley, the former lieutenant governor and president of the Small Business Association of Michigan.

"I do think that in most cases, the MIOSHA fines that have been levied are highly questionable.”

Sean Egan, director of COVID-19 Workplace Safety for MIOSHA, denied the agency's citations had anything to do with Whitmer's executive orders. 

"The safety requirements MIOSHA has been enforcing relating to COVID-19, and the citations issued to date, are based on MIOSHA’s statutorily supported general duty clause, which requires all employers to provide a workplace free from recognized hazards," Egan said. "The Supreme Court’s decision does not invalidate any citation."

eleblanc@detroitnews.com

Staff Writer Craig Mauger contributed.