In The News

In The News

Saturday, August 8, 2020

Starting this week - we have a new class of criminals: little kids who refuse to mask up in a child care center

By Michael Nichols
Categories: Michael J. Nichols

Governor Gretchen Whitmer’s latest Executive Order requires wearing masks in child care centers in Michigan as well as “day camps” for children. Yes, willful violations are misdemeanors with 90 day maximum penalties and $500.00 fines under MCL 10.31 et seq.

It seems ridiculous but the language of the Executive Order, EO 2020-164, fails to specify whether the parents or guardians are the ones responsible to answer to a misdemeanor charge for a willful violation.

The EO creates exceptions for children under 2, or anyone engaging in an intense activity (but not singing or cheering); eating or drinking; anyone who cannot tolerate a mask for medical or other reasons and all facilities camps that are located in a region that is in “phase 5” of the safe start plan. Here is the Order:

There are also exceptions for the obvious situation in which the tykes are engaging in outdoor activities and everyone can remain at least 6 feet apart.

How would the legal system treat a situation in which a 4 year old says “my daddy loves President Trump and he says I don’t have to wear a mask; I won’t wear a mask and I’m not ever gonna’ wear a mask?” That seems to be a willful violation. Are the parents going to have to answer to a misdemeanor “appearance ticket?”

An appearance ticket is like a traffic ticket and that’s what it looks like – but has the force and effect of a summons issued by the law enforcement officer under MCL 764.1. Appearance tickets as opposed to custodial arrests are what the cops have been almost universally using when issuing EO violations. So, does the cop have to ticket the kid? Or track down daddy and hold daddy accountable even though daddy was not anywhere around when the violation occurred? If the kids are given the tickets, the juvenile system will be invoked. In Michigan’s juvenile system, the parents and the “delinquent” child are all respondents in the family court.

I suppose that this sets up yet one more “first” thanks to COVID-19. If it comes to pass, we as lawyers will be there to hold the government’s feet to the fire.

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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.