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In The News

Saturday, April 25, 2020

May 1st is Law Day - and the Law is a REALLY Confusing Thing Right Now

By Michael Nichols
Categories: Michael J. Nichols

Friday commemorates the greatest tool of humankind to organize a society: law. You remember a little history, right? Like, before we had law, we would perhaps bury an offender up to their neck and then the offended would get to take whacks with a club, the number of whacks and the angle being commensurate with the offense.

May 1st is Law Day around the country. It is supposed to commemorate the back-bone of the United States system. I will have a hearing on a motion to get a client out of jail on bond on Friday. I exchanged an email with the court staff, thinking “it is May 1st, the AO issued by the Michigan Supreme Court lasted through April 30th so that means I am in court live and in person, right?” Wrong – the staff advised me that the hearing is by zoom.

While I appreciate the opportunity to skip the traffic, I am not sure that my client appreciates the “virtual” presence of his lawyer. I surely don’t blame him. I would want my champion there live and in-person to tell my story – it is likely to be much more effective that way. So, I decided to read the most sweeping of (in my opinion) our state supreme court orders on the subject of the function of the courts during the shut-down: AO 2020-4 The key phrase of this Order regarding its length:
“This order is effective during the period of the State of Emergency declared by Governor Whitmer under Executive Order 2020-33 or as further ordered by the Court.”

This is where it gets a little confusing. The governor extended the “stay home stay safe” order; originally issued on March 23, 2020, tightened and extended on April 1st, the day that she declared a disaster. The declaration also had the effect of invoking her extraordinary powers to “self-legislate” as well as putting those powers on a 28-day clock. She did not “undeclare” a disaster on Friday but extended the emergency status to May 15th, 2020 for the state and seemed to reset the state of our state’s “do’s and don’ts” for everyday life to what we mostly could and could not do as of March 23rd.

Remember – pursuant to MCL 30.401, et seq, a disaster is effectively “over” 28 days after it is declared by the governor unless the legislature extends the disaster. She still has powers, although those are less well defined for so long as there is a “state of emergency” pursuant to MCL 10.31. Here is some language from that statute to help clarify (or not):

“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. 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, 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,” (MCL 10.31).

The statute is also a legislative grant of police powers to the executive officer during a time of an emergency. Keep in mind, it was enacted in the period of World War II but reviewed an amended recently in 2006 and 2018.

The EO issued by the governor on Friday, April 25, 2020 rescinded EO 2020-42 – which was the EO that included all of the controversial provisions but still prohibits gatherings of any size except for certain situations, like funerals, so long as the funeral is 10 people or fewer in size. It also contains the “preamble” that it is to be construed to prohibit in-person work to the extent possible unless necessary to preserve/protect human life.

Yes, that seems to mean court appearances are not supposed to be "in-person" unless absolutely necessary.

The Michigan Supreme Court also issued an order on Friday, April 25, 2020 that prohibited jury trials until June 22, 2020 but otherwise has not extended, re-affirmed or otherwise commented on the prior AO that had the effect of directing every court in the state to attempt to do its business remotely so long as:

• any such procedures must be consistent with a party’s Constitutional rights;

• the procedure must enable confidential communication between a party and the party’s counsel;

• access to the proceeding must be provided to the public either during the proceeding or immediately after via access to a video recording of the proceeding, unless the proceeding is closed or access would otherwise be limited by statute or rule;

• the procedure must enable the person conducting or administering the procedure to create a recording sufficient to enable a transcript to be produced subsequent to the activity.

So, if you have a court appearance: check with your lawyer, check the court’s register of actions (ROA) or even call the court.

Our legal system is a critical part of the anatomy of a civilized society. Some may call it the backbone but I think it’s more like the brain. Without it – we do not function.

It is worth noting that on April 24th, when the legislature met for another controversial session and passed bills to strip/limit the governor’s executive powers in an emergency (which she will never sign) that there were 26 bills introduced in the house and 29 introduced in the senate, not including the joint resolution to establish a committee to investigate the handling of the crisis.

A quick review of the bills introduced on Friday via, suggests that many of the bills relate to putting into law crisis management ideas that the governor already utilized.

Things like the ability to do things like modify the Open Meetings Act in a time of crisis or for the legislature to vote remotely. A lot of these also appear to be bills sponsored by members of the minority party – which means they probably will go nowhere. The concurrent resolution to create a committee to investigate the handling of the response to the COVID-19 crisis passed and will be controlled by the majority party.

The idea of re-working the statutory framework to create a more clear-cut source of authority for the executive makes sense. The way this has played out is confusing. However, no reform is going to really be anything other than a show unless the governor is on board with the proposals – that just is not going to happen in this moment. Hopefully, after this is all over, people will still care enough to encourage their elected representative to clean up the mess for future generations.

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Peer Recognition

Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.