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Friday, April 10, 2020
By Michael Nichols
Categories: Michael J. Nichols
At 2:07pm on April 9, 2020 Governor Whitmer signed EO 2020-42. It is going to make criminals out of a lot of us. What I mean by that is the following passage:
“Subject to the exceptions in section 7 of this order, all individuals currently living within the State of Michigan are ordered to stay at home or at their place of residence. Subject to the same exceptions, all public and private gatherings of any number of people occurring among persons not part of a single household are prohibited” (EO 2020-42, para 2).
Section 7 lists 12 categories of exceptions for travel, including repairing or caring for your car, your pet, a loved one or attending a funeral so long as it is attended by fewer than 10 people. The 1st Amendment of the United States Constitution says:
“Congress shall make no law … abridging … the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (USCA Am 1).
Michigan’s Constitution also has a “Declaration of Rights” clause:
“The people have the right peaceably to assemble, to consult for the common good, to instruct their representatives and to petition the government for redress of grievances” (Mi Const Art I, Sec 3)
The origin and purpose of these clauses is to allow for public demonstration and gatherings but many times courts have interpreted the 1st Amendment of the United States Constitution and its corollary in the state constitution to prohibit the legislative branch from passing laws that constrain our right to “free association.” I think about my wife meeting her friend on the back deck for a glass of wine.
The Emergency Management Act at MCL 30.401 gives the executive branch of the state broad powers to respond to either an emergency or a disaster, with some “built-in” limitations at section 17. For example, no EO may limit the news media. That section says: “This act shall not be construed to do any of the following:
… (b) “Interfere with the dissemination of news or comment on public affairs. However, any communications facility or organization, including radio and television stations, wire services, and newspapers, may be requested to transmit or print public service messages furnishing information or instructions in connection with a disaster or emergency.”
The EMA is intended to give the executive branch the power and the duty to legislate. Remember the snappy “I’m just a bill … yes I’m only a bill …” segment on “Schoolhouse Rock” from the 70’s? It was a civics lesson on how slow and deliberative the legislative process is supposed to be before a bill becomes a law. In a crisis, that deliberative process is suspended so that swift action to protect life and property can be undertaken.
The violations must be willful before they can be punishable. A lot of media reports say that a “civil fine” of $1,000.00 is the punishment. I think that is coming from one of the orders from the state public health director. There is a little-known clause in the public health act that allows for a $1,000.00 fine for a misdemeanor violation of a public health order. That contradicts Michigan’s penal code, which says that a misdemeanor that does not carry a penalty provision is punishable by 90 days and a $500.00.
The public health director’s orders flow from the governor’s directives under MCL 10.301 and under MCL 30.401 et seq respectively. Therefore, because the statutes conflict, a principle called the “rule of lenity” means that the lower penalty of $500.00 is the maximum amount for a fine.
Are these provisions of the order reasonable? Another section of EO 2020-42 prohibits travel from one home to another if it is within the state as of April 11, 2020. However, that same section allows you to travel to a home in another state. There is no explanation for that clause other than it is an equal protection violation and has no reasonable basis.
My personal choice is to isolate with robust adherence to the Centers for Disease Control (CDC) guidelines. It is based on my read of the data. A lot of people disagree and think that the response to COVID-19 is a gross overreaction. Either way, when and if tickets and charges start getting filed, no one is going to be better read or more prepared to finally get back into the courtroom. I expect I will not be the only one. These are the times that lawyers are on guard, at the sentry post and ready to have your back.