In The News

In The News

Sunday, September 27, 2020

Governor Whitmer Extends the State of Emergency through October

By Michael Nichols
Categories: Michael J. Nichols

Governor Gretchen Whitmer extended Michigan's state of emergency under the Governor's Emergency Powers Act of 1945 and the Emergency Management Act of 1976 on the evening of Tuesday, September 29th in the waning hours of the current disaster declaration. The Order:

This EO really does not do much other than invoke the power of the governor to self-legislature for another 28 days - unless the Michigan Supreme Court rules in 2 lawsuits on the EO's and the statutes under which she is acting - and reverses or partially reverses them.

The governor issued 3 other EO's at the same time, which extended controversial orders that restrict access to your loved ones in nursing homes; in correctional facilities and also protections for workers in grocery stores and continues the requirement to designate 2 hours a week for the elderly.

Most of the "action" in terms of the control over our daily lives happened on September 25th. Governor Whitmer issued the 183rd Executive Order of the year late on Friday and it is one of the most detailed EO’s yet. The highlights are that movie theatres get the green light to re-open –but not until October 9th, 2020. Why a “springing” order that will not take effect for 2 weeks? It is likely in order to give them time to set up to follow an intricate set of rules that now apply to our everyday life. You can find EO 2020-183 here:

The order also allows for something that has not had much media coverage yet: it paves the way for those of us who love to sit in our favorite college football stadium and cheer on our beloved student-athletes:
“Beginning October 9, 2020, most non-residential indoor venues can host social gatherings and organized events so long as they maintain fewer than 20 people per 1,000 square feet and require facial coverings. Performance venues and stadiums, similarly, will be permitted to operate at 20% seating capacity. Such gatherings and events must be no larger than 500 people in the largest indoor venues, in order to reduce the risk of a “superspreader” event. Outdoor gathering and event restrictions will also be relaxed, so long as they maintain fewer than 30 people per 1,000 square feet, or 30% seating capacity, up to 1,000 people in the largest outdoor spaces.”
As to high school sports: football players; volleyballers and anyone in a sport in which 6 feet of social distancing cannot be maintained will have to “mask up” when they hit the field or floor. Golfers evidently will not as the sport allows for 6-feet of distance for all but “fleeting moments.”
It is not an easy read to get through the 17 substantive paragraphs and understand the “rules of the pandemic road.” Remember, the misdemeanor penalty only comes into play if the violation of the EO is “willful.”
Also on Friday – the Governor imposed Executive Order 185, that requires all kids in k-5 education to wear a mask. That is going to be one tough requirement to enforce.
All this is flowing from the Michigan Governor’s office while the Michigan Supreme Court weighs decisions over various EO’s and the statute under which the governor is operating and the constitutionality of those statutes. The MSC issued an order this week, but not a substantive decision (Chief Justice McCormack accepted an amicus brief or “friend of the court” brief). Whether and to what extent these EO’s are rolled back could make things even more unwieldy but it seems that the state’s high court justices had some significant concerns when listening to their questions during oral arguments.

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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.