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Tuesday, September 8, 2020
By Michael Nichols
Categories: Michael J. Nichols
If you have not watched the YouTube recording of the arguments before the Michigan Supreme Court a few weeks ago - you should. Fair warning: it's 3 hours and 27 minutes long. Where did a key component of this whole entire analysis seem to fall? Whether "public health" is included in the definition of "public safety" of the statutes that are at issue, here: (MCL 10.31 and MCL 30.401 et seq).
The Supreme Court ordered briefs that have now been submitted and so, a week later, the much-anticipated ruling on the certified question from United States District Court Judge Paul Maloney about the constitutionality of the governor's acts could come on any day. Keep your eyes and ears open and watch for how the MSC handles the analysis of the definition of public safety.
Another area of significant concern from some of the justices also seemed to be "standards" from the legislature in delegating extraordinary powers to the governor to single-handedly make laws in a time of emergency.
To recap the most recent developments: we have new mask up rules for high school and collegiate sports as the Big Ten returns to the gridiron (at least) but rules that will be reviewed and reconsidered.
Governor Whitmer extended the State of Emergency on September 3rd, the day before the Labor Day Weekend and the day before the “2nd wave” of the Emergency Declarations that she initially declared way back in early March was to expire. She did so by signing a sort of oddly worded Executive Order (EO) #177. Actually, she issued the order after 5:00pm and the EO was not filed with the Michigan Senate until the next morning – the day that EO #165, which had extended the state of emergency and state of disaster – expired.
This EO is interesting on several levels. It is set to expire on October 1, 2020: the shortest of the emergency/disaster declarations out of the predecessor declarations: 26 days-long to be exact. Remember when the legislature decried her use of her power under the Governor’s Emergency Powers Act (EPA) because she unilaterally acted for terms longer than 28 days? In a way, the legislature gets what it wants on this one.
There is ample vainglory in this EO, discussing not only the history of “flattening the curve” in the spring but also citing to the venerable Imperial College Covid-19 Response Team that she claims proves the negative by proclaiming that her actions avoided even higher numbers than what actually “could” have occurred. There is also some interesting statistics in this EO: in paragraph 2 line 2, she says that we saw 60 new cases per million through most of July and August. In paragraph 11, she says that we saw 50 new cases per million through most of July and August. Which is it and what is the source(s)? See for yourself:
https://www.legislature.mi.gov/documents/2019-2020/executiveorder/PDF/2020-EO-177.PDF
In the meantime, the Michigan legislature is debating bills that are going to put the governor in the position of using her veto pen, even though she will set herself up to be criticized for yet again standing in the way of re-opening the economy. The most controversial aspect of the bills will make it harder for employees and consumers to sue for contracting the virus.
The House Judiciary Committee took testimony on a package of bills designed to strengthen immunity from litigation through what are called business COVID-19 liability protection bills:
• HB 6030 (Rep. Thomas Albert) Torts: defenses; COVID-19 emergency; provide protection from liability to certain persons.
• HB 6031 (Rep. Tommy Brann) Labor: health and safety; COVID-19 emergency; provide protection from liability to certain persons on reopening of business or school.
• HB 6032 (Rep. Graham Filler) Labor: fair employment practices; employer taking adverse employment action against an employee who is absent from work; prohibit during a declared emergency.
• HB 6101 (Rep. Wendell Byrd) Labor: health and safety; COVID-19 emergency; provide protection from liability to certain persons on reopening of business or school.
The bills were not voted out of committee and will be subject to further discussion.
It seems as if politics are among the first of the businesses to emerge from the quarantine.