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October 6 2020

What Comes Next? Michigan Supreme Court Opines Certain Executive Orders Are Unconstitutional

By: Michael J. Huff

On Friday evening, the Michigan Supreme Court issued an opinion in In Re Certified Question from the U.S. District Court, Western District of Michigan, holding that executive orders issued by Governor Whitmer after April 30, 2020 for purposes of addressing the COVID-19 pandemic were issued without valid legal authority.  This ruling has multiple implications for Michiganders across various different areas of the law.

I.  The Opinion in In Re Certified Questions

In response to a lawsuit brought in federal court challenging the Governor’s executive orders, the Michigan Supreme Court was asked to address if, (1) under Michigan’s Emergency Management Act (“EMA”) or Emergency Powers of the Governor Act (“EPGA”), the Governor had authority after April 30, 2020, to issue or renew executive orders related to the COVID-19 pandemic and (2) whether the EPGA and/or the EMA violate the Separation of Powers and/or the Nondelegation Clauses of the Michigan Constitution.

The Court unanimously ruled that executive orders issued under the EMA were not effective after April 30, the last date on which the emergency declared by the Governor under the EMA had been extended through by the Michigan Legislature.  In a 4-3 opinion, the Court also held that orders issued under the EPGA were not effective because the EPGA violates the Michigan Constitution by impermissibly granting legislative authority to the governor in violation of the so-called non-delegation doctrine.    

II.  Effect of the Court’s Opinion

It is uncertain if the Supreme Court’s opinion is to be given immediate effect or if the Governor’s Executive Orders remain in effect at this time.  The Michigan Attorney General filed a motion with the Supreme Court on Monday, October 5 asking it to opine on whether or not the executive orders remain in effect for the next 28 days.

There are also other grounds on which the Governor may be able to argue the executive orders remain in effect, although it seems unlikely that any enforcement act would be taken or orders issued under such ambiguous legal authority.  In fact, multiple news reports indicate the Attorney General’s office has indicated it will no longer enforce the executive orders, presumably because the Supreme Court has indicated there is no legal authority for the executive orders having been issued.

III.  What Does the Opinion Mean for Businesses?

The Supreme Court’s opinion may ultimately have little to no effect on business operations in the State of Michigan in the short run.

As expected, on Monday, October 5, the Michigan Department of Health and Human Services issued an order limiting attendance at gatherings and requiring face coverings.  The entire order is available here.

Second, MIOSHA continues to levy fines against employers who do not meet their statutory obligation to furnish to each employee a place of employment that is free from recognized hazards which are causing or likely to cause death or serious physical harm to an employee.  Previously, MIOSHA had been using the predecessors and successors to Executive Order 161 to define what constitutes a workplace free from recognized hazards.  MIOSHA may continue to use the executive orders as a standard moving forward or may create new standards for enforcement.

Further, as indicated below, the Public Health Code authorizes local health officials to issue emergency orders to address epidemics.  Already, multiple counties have issued orders designed to replace the executive orders.  Businesses are subject to these orders.

Businesses are encouraged to consult with their attorney to determine how to most appropriately navigate the changing legal landscape resulting from the Supreme Court’s opinion.

IV.  What Does the Opinion Mean for Municipalities?

After the executive orders were initially issued, municipalities were forced to determine how to perform their statutory duties while complying with legal requirements such as the Open Meetings Act.  With EPGA being declared unconstitutional, many municipalities are understandably asking what actions should be taken.  For example, should actions approved at a prior meeting which was conducted electronically be reapproved?  If so, does reapproving prior actions create legal exposure?

Additionally, like businesses, the ability to conduct municipal meetings in person may still be limited by the MDHHS order and by local health department orders.  Thus, many municipal activities will need to be conducted in a manner consistent with prior practice during the CV-19 pandemic.

There are legal bases outside of the executive orders for arguing that meetings held remotely are permitted under the Open Meetings Act if certain standards are met.

Municipalities should contact their attorney to determine how to most appropriately navigate the evolving legal landscape.

V.  What Other Areas of the Law are Impacted?

The Governor’s executive orders impacted almost every area of the legal landscape.  As a result, almost every area of the legal landscape is effected by the Supreme Court’s decision.

For example, certain executive orders suspended strict compliance with the rules and compliance of the Uniform Electronic Transactions Act, Uniform Real Property Electronic Recording Act, and Michigan Law on Notarial Acts.  Since the executive orders were based on an unconstitutional statute, it is questionable whether acts based on the executive orders are enforceable.  The United States Supreme Court has previously opined that an act which is unconstitutional is inoperative and treated as if it was never passed.   However, there are circumstances where courts have indicated that laws of the legislature have “not only the appearance and semblance of authority, but the force of law” until such time as a statute is determined to be unconstitutional.  While in many circumstances actions taken pursuant to the executive orders will not be challenged, it is highly likely that a party which experienced an adverse outcome under a document executed pursuant to the executive orders, such as an individual whose rights in an estate were reduced, will bring a legal challenge against the validity of the executed instrument (many lawyers have been taking actions to protect against this risk when working with clients to obtain executed documents).

Other areas of the law, such as unemployment insurance relief made available to laid off workers and a waiver from businesses’ unemployment insurance agency accounts being charged for certain layoffs no longer remain in effect.

Ultimately, it is highly likely that in the absence of legislative action which retroactively gives effect to the Governor’s executive orders that litigation will result based on actions taken during the pandemic.    

VI. What Comes Next?

Already, MDHHS and multiple county health departments in Michigan have issued orders to address the void created by the EPGA being declared unconstitutional.  Local health officials have broad authority to issue orders to control an epidemic, although such orders can only remain in effect for six months.  Additionally, it is highly likely such orders will face legal challenges.  However, at this time, stakeholders will need to remain attuned to orders issued by local officials.

In the long-run, it is possible the Supreme Court’s opinion will have significant implications for administrative law in the State of Michigan since the majority held that “reasonable” and “necessary” are illusory standards when the legislature delegates authority.  This means multiple present laws may be unconstitutional and more specific delegations of authority will need to be made in the future.

Given the plethora of questions resulting from the changing legal landscape created by the Supreme Court’s opinion, clients are encouraged to contact their Mika Meyers’ attorney to discuss how to address legal challenges moving forward.