In The News

In The News

Friday, June 4, 2021

A Dangerous Veto in Lansing Yesterday

By Michael Nichols
Categories: Michael J. Nichols

The Michigan House approved legislation that would prevent the governor – not just this governor but any governor, from issuing certain types of executive orders in a crisis (think pandemic). It is House Bill 4448. The bill specifically prohibits suspending the legal obligation of public agencies from responding under the freedom of information act. It literally exempts FOIA from being subject to the governor’s ability to suspend operations in the time of a state of disaster. It is found here:
The bill amends the now-infamous MCL 30.403, also known as the Emergency Management Act of 1976. Recall that the EMA infuses the executive branch with the power to issue orders, proclamations and directives having the force and effect of law – in other words the legislature cedes its power to legislate to the governor during a state of disaster or emergency. Remember, this is the act that also requires the governor to go to the legislature after 28 days if the governor believes that the emergency or disaster needs to be extended.
FOIA is largely electronic anymore. So many records are created or stored electronically, including dashcam video, 9-1-1 emergency calls and all sorts of things. In a pandemic like COVID-19 when people need to stay away from each other, hard copy records that are requested and the request requires the physical presence of an employee to fulfill it, the FOIA can still be honored by virtue of an “essential worker” – who goes in alone to the “office” when others are not around in order to conduct the search.
FOIA is the “sunshine act.” It is an essential mechanism to hold government accountable by virtue of the fact that any and all government employees know/should know that all of his or her actions are “watched.” A federal FOIA was enacted and states all over the nation started enacting their own state FOIA statutes as a response to the Watergate scandal. This was a scandal in which President Nixon tried to keep quiet and cover-up his knowledge in 1973/74 of a break-in at the headquarters of the Democratic Party. It ended his presidency in disgrace and it was the springboard for the expectation of transparency and accountability within our government.
I voted for Gretchen Whitmer. I was criticized because I was on a committee to host a fundraiser for her in 2018 after I called on the Ingham County Prosecutor to investigate her opponent: then Attorney General Bill Schuette. I stand by my support for her – but this has to be said – when you’re under fire for your lack of disclosure of out of state travel (the trip is still not on the governor’s public calendar that is on file on her website at,9309,7-387-90500_91814---,00.html) and your website says: “Michiganders deserve to know that their governor is working for the people. By voluntarily releasing this information to the public, my hope is that we can start earning back people’s trust in state government …” a veto that does not entail any suggestion to the legislature over a fix to protect FOIA and protect lives is not a good look. Her administration is better than this.
In the House Journal on June 3rd, Representative Frederick referred the bill to the Committee on Oversight. Remember, the House and Senate can override her veto with a 2/3rds majority. Protecting the transparency of our government is worthwhile. Does the governor have a point that protecting lives is more important? Sure – but there has to be a way to keep the sun shining in on government operations … even in a life-threatening crisis.

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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.