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Tuesday, March 24, 2020
By Michael Nichols
Categories: Michael J. Nichols
The suspension of constitutional liberties to the extent reasonable in order for a government to protect life in a time of crisis was addressed by the U.S. Supreme Court in Jacobsen v Massachusetts, 197 SCt 11 (1905). A pastor named Henning Jacobsen resisted getting a vaccination despite a law that compelled people to get vaccinated in the smallpox outbreak that occurred around 1903-1904. The Court agreed that the law was valid and enforceable: "there are manifold restraints to which each person is necessarily subject for the common good."
The short answer: yes, at least in Michigan the governor can suspend civil liberties to the degree reasonably necessary to protect the common good. Michigan's Constitution at Article V created the executive branch. Interestingly, the legislature conferred powers in the Governor distinct from the powers conferred in the executive branch by way of a separate statute. The latest constitution was drafted and approved in 1961. It says NOTHING about emergency powers. When the Governor announced her Emergency Order that intended to cabin human conduct in the state under the threat of a criminal charge - she was not cloaked at all by the Michigan Constitution. I am fascinated by all things constitutional theory so I have been ruminating and doing some research in between zoom conferences and email filings.
The governor most recently extended several of the Executive Orders and issued some new EOs during the week of April 13, 2020. If one reads through the EO's in order from the oldest to the most recent, it is clear that the governor initially used the older Governor's Emergency Powers Act in imposing the substantive order. It was EO 2020-33 that really cranked down on conduct and movement and that is the order that declared a disaster and relied on MCL 30.401. That was the expanded declaration. The governor's position is that was the order that started the 28 day clock by declaring a disaster. That 28 day limit is why the management of a crisis is now part of a political process. This will create a fascinating study for the history books.
It seems as if the governor knew exactly what was coming, specifically significant pushback from the opposite party, which controls both houses of the legislature, in the way that she slowly opened up the faucet of her powers. Then the protest heard round the country happened on what would have been "tax day." Ironically, this was also scheduled to be the state bar of Michigan's "legislative day." The governor responded by scheduling a news conference that same day, from inside the building in which she said she literally watched and listened to the howls and horns just feet away from her desk. She almost doubled-down on the stayhome-staysafe orders and hinted that the grievous shutdown that the protestors were gathered to petition her over may be prolonged by virtue of the manner of the petitioning. It was a very strange tete a tete.
On Friday, April 17, 2020, the governor gave an update on the COVID-19 numbers. She was finally asked about the incarcerated population. A reporter for WLNS TV asked her about what she was going to do about reducing the prison population. She gave an answer that I did not understand. It was to the effect that requests for commutations have to go through the parole board anyway and there is a process and all that.
This is where I have to disclose my bias - I have 3 clients in a custodial facility, 2 of whom are in prison and I do not believe any of these individuals are a threat to society. Ted Koeppel's reporting for the CBS News Streaming service on this issue has been poignant (google "the challenge of social distancing in prison" to find it). I have to imagine that they are not the only people who are in prison for as long as they are for the reason that at sentencing, the judge scored the sentencing guidelines, weighed the sentencing factors under People v Snow, 385 Mich 585 (1972) and imposed a sentence based on factors that would have been weighed much differently now.
In Michigan - a minimum means a minimum - no early release.
Rehabilitation, deterrence, protection of society and punishment: these are the sentencing factors under Michigan law, analyzed within the framework of the properly-scored sentencing guidelines, which remain advisory. When a judge imposes a sentence, I am convinced that most judges try to do the right thing based on the person before them, what they did and the wishes or concerns of the victims. Judges are still people and I cannot discount that often they concern themselves with the message that they have to send to the community. I will steal a phrase from one of our local judges: "the market price" for that kind of crime or conduct committed when the person already has a record.
Would that message be a little less important or would the sentencing factors be weighed differently by a judge imposing a sentence that sends someone to a facility with invisible bullets flying around? Social distancing cannot co-exist in a place of confinement. The governor does have the power. She has the power without issuing one EO right now. She can expedite any commutation petition right now.
She can also issue an order that does exactly what many of her (as of this writing) 54 EO's have done: relaxes adherence to statutory requirements. She can, for a period of time, relax adherence to Michigan's truth-in-sentencing law. Remember, Michigan abolished the so-called "good time" credits in the late 1980's. We took a baby-step toward early release with PA 14, 2019 for medically frail inmates. The legislative analysis recognizes that Michigan's general fund still allocates 2 BILLION for Michigan prisons. Other than the time it will take, it makes sense for a life-saving standpoint, a money-saving standpoint and a chance to reset our justice system to allow judges to to look anew at sentences without regard to MCR 6.429.
As to the governor's current powers to single-handedly legislate.
Here are the statutes: MCL 10.31; 10.32 and 10.33 (The Governor's Emergency Powers act) and MCL 30.401 (The Emergency Management Act). They grew out of 2 different crises: World War II in the instance of the former and the Cold War in the instance of the latter. The legislature GAVE AWAY to the Governor the power to enact laws, including criminal laws. From MCL 10.31:
"Sec. 1. (1) During times of great public crisis, disaster, rioting, catastrophe, or similar public emergency within the state, or reasonable apprehension of immediate danger of a public emergency of that kind, when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, or the commissioner of the Michigan state police or upon his or her own volition, the governor may proclaim a state of emergency and designate the area involved."
So step 1 is that a public crisis, disaster, rioting, catastrophe or the broad term "similar public emergency within the state OR reasonable apprehension of immediate danger of a public emergency of that kind ..." arises.
It would seem that people disagree that there is a public crisis or disaster happening right now but can reasonable minds disagree that her apprehension of a public emergency is anything BUT reasonable?
The governor's authority is invoked once she makes the statement, as she did on Monday. The rest of (1) states:
"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. 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 ..." (EMPHASIS SUPPLIED)
There is more:
"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."
Now, the invocation of the "shelter in place" followed "requests" and "suggestions" - so if you start hearing the Governor say "hey watch your drinking" or words to that effect it might be time to start building that speakeasy within your own home. Ok, levity aside.
Section (2) states:
"(2) The orders, rules, and regulations promulgated under subsection (1) are effective from the date and in the manner prescribed in the orders, rules, and regulations and shall be made public as provided in the orders, rules, and regulations. The orders, rules, and regulations may be amended, modified, or rescinded, in the manner in which they were promulgated, from time to time by the governor during the pendency of the emergency, but shall cease to be in effect upon declaration by the governor that the emergency no longer exists."
Therefore, once the declaration of a state of emergency is rescinded or she rescinds the order, the state of the law is in place.
Furthermore, the governor's authority is exclusive or in other words, preempts local control. From Walsh v City of River Rouge, 385 Mich 621 (1971):
"We consider only the question of preemption of the field by the statute giving to the Governor exclusive power since our determination of that issue is dispositive of this case. P.A.1945, No. 302, is reproduced in its entirety in Appendix #3. A point-by-point comparison of the powers therein granted to the Governor, with the powers granted to the Mayor of River Rouge by Ordinance #228, will reveal that every power granted to the Mayor by the ordinance is also granted to the Governor by Act 302. It should be further noted that Act 302 provides: ‘* * * when public safety is imperiled, either upon application of the mayor of a city, sheriff of a county, the commissioner of the Michigan state police, or upon his own volition, the governor may proclaim a state of emergency and designate the area involved.’" (Walsh at 628).
Governor George Romney (yes - Mitt's Dad); vetoed a bill in 1968 that would have given local governments the power to utilize emergency orders. In his veto message he stated:
On July 1, 1968, Governor George Romney returned Enrolled House Bill No. 3302 without his approval, stating in his message:
"‘No one realizes more than I that local law enforcement is the first line of defense in the battle against crime and violence. Over the years I have consistently proposed and supported measures designed to give more strength and more training to local law enforcement officials."
"‘However, civil disorders, riots or other similar public disorders and emergencies pose special law enforcement problems. Experience has shown that normally, at the first sign of any civil disorder which might get beyond the control of local officials, contact has been made with state officials for assistance. State Police have assisted local units when needed. When any disorder has exceeded the control of the local police and State Police, National Guard have been committed if deemed necessary in the combined judgment of local officials, the State Police and myself." (Walsh at 629-630)(cleaned up).
For those of you who are history nuts - the legislature again passed this bill in the next session and Governor Miliken likewise vetoed it, stating:
"‘This measure would arm the chief executive officers of all cities, villages, townships and charter townships with the authority of proclaiming, by executive order, a state of ‘civil emergency’ within the confines of their respective political units and to issue pursuant thereto orders restricting and regulating public activity.
‘Various forms of this bill have been introduced in the Legislature in recent years. In 1968, a similar measure was presented to former Governor Romney for his signature; but was vetoed by him, his rationale being set forth in his letter of July 1, 1968, returning to the House of Representatives Enrolled House Bill 3302. His rationale was sound, and, although the measure before me is technically substantially improved, the basic policy question of affording this kind of authority to local units of government still remains at the heart of the matter."
"‘I am cognizant of the fact that Attorney General Kelley, in a letter opinion of August 15, 1968, to Representative Arthur J. Law, indicated that in some instances some local units of government may be able to avail themselves of this authority.
‘But it should be noted that in Mr. Kelley's letter opinion on page 9 he appended to his legal conclusion the following:
“I firmly believe that under almost all circumstances it would be much wiser to rely upon a full scale response, coordinated by the state, than to permit piecemeal measures by individual communities. Scores of separate units of government exist in many metropolitan areas. Their reactions to emergencies could result in a crazy-quilt response which could provide loopholes which could prove disastrous.'
‘More recently, in Mr. Kelley's letter to me dated July 29, 1970, he reiterated that position verbatim. I totally concur" (Walsh at 632-633).
As the Walsh court stated, this is a very "broad" grant of authority to the executive:
"Act 302 is a broad grant of extraordinary powers with a specific provision that mayors may apply to the Governor for the exercise by him of such powers and a declaration by the legislature that the provisions of the act are to be broadly construed to effect its purpose" (Walsh at 640).
Morgan - I am sorry that the use of pronouns is so masculine - we do better now. Also, it is not lost on my that on this court sat 2 former governors, John Swainson and G. Mennen "Soapy" Williams.
The limit on this authority is on the lawful possession of weapons, which interestingly enough, appears to have been grafted on to this statute in 2006:
"(3) Subsection (1) does not authorize the seizure, taking, or confiscation of lawfully possessed firearms, ammunition, or other weapons."
The only other case on WestLaw (TM) that interprets the statute is a 1979 prosecution of a 19 year old man for violating a local curfew imposed by the City of Detroit in People v Smith. Here, the question was whether this local act was preempted by MCL 10.31, et seq. The court held that it was not because there was no statewide declaration of a civil emergency and the issue here was the City of Detroit imposing a curfew as part of its charter revision. It is noteworthy that the Court of Appeals recognized that probable cause is not out the window by a civil disturbance law:
"An officer who has probable cause to believe that a misdemeanor has been committed in his presence may make an investigatory stop in order to acquire additional information to confirm or refute his belief. People v. Ward, 73 Mich.App. 555, 561, 252 N.W.2d 514 (1977). However, probable cause is not sufficient to justify a warrantless misdemeanor arrest. M.C.L. s 764.15; M.S.A. s 28.874.
"Therefore, a police officer cannot arrest a suspected curfew violator, absent proof that the violator is in fact a juvenile," (People v Smith, 87 Mich App 730, 735, 736)(1079). Note - MCL 764.15 now allows for an officer to make an arrest without a warrantless misdemeanor if it is punishable by up to 92 days IF the officer possesses SUFFICIENT PROBABLE CAUSE. There is another provision in the domestic violence act that requires an arrest in some cases but that is beyond the scope of this article.
Note: The Emergency Management Act at MCL 30.401, gives the governor specific powers and obligations and it appears to be much broader. However, it requires that - absent legislative approval - the "disaster" is considered over after 28 days from the issuance of the disaster decree. I liken the difference between the 2 statutes as an "emergency" that is imminent or is upon the state, even if it is only reasonably perceived vs a "disaster" which has occurred or is occurring. It is fascinating that in the initial series of orders, the governor only invoked or relied upon MCL 10.31 in her substantive orders. When she tightened down on the orders, she then invoked her powers under MCL 30.401.
Is this martial law? In my opinion, no. Neither the 4th Amendment nor the right of habeas are suspended. Martial law is the suspension of ALL civil laws in a time of hostility:
(...)'arising out of the exigencies thereof, arbitrary in its character, and depending only on the will of the commander of an army, which is established and administered in a place or district of hostile territory held in belligerent possession, or, sometimes, in places occupied or pervaded by insurgents or mole, and which suspends all existing civil laws, as well as the civil authority and the ordinary administration of justice. See In re Ezeta (D.C.) 62 Fed. 972; Dlekelman v. U.S.. 11 Ct. Cl. 439; Coin. v. Shortall. 206 Pa. 165, 55 ALL 932, G.) L R. A. 193. S13 Ani Si. Rep. 7.7!); Grifiln v. Wilcox, 21 Ind 377. See, also, 'Military Law'
“Martial law, which is built upon no settled principles, but is entirely arbitrary in its decisions, is in truth and reality no law, but something indulged rather than allowed as a law. The neccessity of order and discipline in an army is the only thing which can give it countenance, and therefore it ought not to be permitted in time of peace, when the king's courts are open for all persons to receive justice according to the laws of the land." 1 Bi. Comm. 413.
Martial law is neither more nor less than the will of the general who commands the army. It overrides and suppresses all existing civil laws, civil officers, and civil authorities, by the arbitrary exercise of military power; arid every citizen or subject—in other words, the entire population of the country, within the confines of its power—is subjected to the mere will or caprice of the commander. He holds the lives, liberty, and property of all in the palm of his hand. Martial law is regulated by no known or established system or code of laws, as it is over and above all of them. The commander is the legislator, judge, and executioner. In re Egan, 5 Blatchf. 321, Fed. Cas. No. 4,303. (Black's Law Dictionary, (on-line) djvu 2nd edition, p 774).
The limits of the governor's authority imposed by the, let's call it the "enabling" statute passed by the legislature are also the reason why she has not declared the school year over. She has yet to declare that she is giving credit for on-line or distance learning for public schools probably because of practical reasons and fairness. The ability of kids around the state to learn on-line varies greatly.
You may be critical of the decision or lack of a decision to declare the school year over but there is a good reason - the power is not hers to wield. Article 8 of the Michigan Constitution confers that power exclusively with the board of education:
"Sec. 3. Leadership and general supervision over ALL public education, including adult education and instructional programs in state institutions, except as to institutions of higher education granting baccalaureate degrees, is vested in a state board of education. It shall serve as the general planning and coordinating body for all public education, including higher education, and shall advise the legislature as to the financial requirements in connection therewith."
So, if you have a child who attends private school and is getting credit for the on-line learning she is doing -- but your neighbor has a child in public school and the fate of that child hinges on patching together snow days that were unused and a potential problem with either not getting credit or going into the summer to get credit for the school year -- that tuition check probably looks like a great deal right now.
Governor Whitmer's Executive Order, issued March 23, 2020 to eliminate physical public interaction leaves room for interpretation. You can see the order at the top of our website at http://www.nicholslawyers.com. Lawyers are debating whether a criminal prosecution can succeed in light of the arguable vagueness of the travel prohibition. Clearly, the elephant in the room for the lawyer is whether it is a specific intent crime. There are non-standard criminal jury instructions that I found while doing an annotations search on WestLaw (TM) and found 2 versions - one for a case in which the judge rules that specific intent is required and one for when the judge decides no specific intent finding is necessary for a conviction.
It is all fascinating.
The order does NOT force businesses to shutter. At section 1, it states "[t]his order is to be construed broadly to prohibit in-person work that is necessary to protect or sustain life." Perhaps the "sustain" part is where it gets confusing. The order also specifically allows for work in any and all fields but promotes "remote" work.
Section 5a, allows business to designate essential employees in writing before April 1, 2020 and allows those individuals to travel as necessary to facilitate remote work. A reason is so that the person has a defense if they are in public or driving and law enforcement intercedes them. Therefore, it does not matter if you are critical to infrastructure or "essential" as many people are putting it. If you were designated as a critical employee to keep your business running, you may need to be on the road, at the office, in the store, what have you for the purpose of keeping things going so other members of the team can work from home.
Here is a quote from a not-so-famous founder, James Wilson: “Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.” – "Of the Study of the Law in the United States," 1790. The Governor of the State has broad authority IN AN EMERGENCY by virtue of the Emergency Powers of the Governor Act of 1945 and the Michigan Constitution of 1963. The right to assemble is cabined at this moment by the need to prevent the spread of a disease with an unknown power to harm any of us. I have heard and seen many reasons for us to exercise our liberty in a manner for the greater good - and that is to abide.
A resource with some answers to your questions can be found by going to Michigan.gov and following the link to Coronavirus response box and then click the link at "directives, executive orders and FAQ's."
In the meantime - if you think you were stopped, ticketed, accused, charged or otherwise have a valid fight with the government, call me at 517 927 4734 or email me at mnichols@nicholslaw.net
***editor's note: this is a re-purposed version of the article that we posted Tuesday titled: "Why Are There So Many Cars on the Road?" At the Nichols Law Firm, we believe in reusing, re-purposing and re-cycling ... and that includes our data ... wherever possible