Gov. Gretchen Whitmer’s emergency orders are quickly being replaced by a cluster of orders from state departments and local health departments, which lawyers predict will spark another wave of legal wrangling.
“I think a lot of that is probably going to be disputed,” Michael Huff, an attorney for Mika Meyers in Grand Rapids, said on Monday in an interview.
The Michigan Supreme Court has questioned Whitmer’s orders since April 30 when it ruled Friday that it did not have the power to issue them under two laws it cited to declare the state emergency. Without this power, his orders on things like gathering the boundaries and wearing the mask were called into question.
She is asking the court to rule that her orders are still in effect until October 30, but is also acting to replenish their substance under various laws, including one that authorizes Michigan Department of Health and Human Services Robert Gordon , to issue orders to “prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to ensure the continuity of essential public health services and the enforcement of health laws.” “
Gordon Posted an ordinance under that law on Monday, tightening mask requirements and consolidating the limits the governor had previously put in place under his authority in the public health code. He said more orders will come from him for schools and nursing homes, while the Ministry of Labor and Economic Opportunities will soon act on the capacity of businesses.
Local health departments have also gotten to work, with a handful of mask orders in their jurisdictions.
Lansing attorney David A. Kallman of Kallman Legal Group, the attorney who represented Owosso Barber Karl Meinke in a legal battle for keep your shop open despite the governor’s orders, said he was already getting calls from companies and was about to sue if local health departments tried to enforce their orders.
“We will pursue them. And we are going to sue them personally for damages because the health code allows it. So they better be careful this time around because we have recourse, ”Kallman said.
The public health code said local health officials cannot be held personally responsible unless they engage in “willful and willful misconduct”.
Kallman said the law allowing the MDHHS director to issue these emergency epidemic orders has not been legally tested, but appears to give the director very narrow authority over the gatherings.
“This law does not give any other authority to issue any other type of order. Masks, screening, social distancing, you name it, ”Kallman said.
Other lawyers, for their part, hastened to defend the replacement of the governor’s ordinances by this first ordinance of the director of the MDHHS.
“The Michigan Supreme Court decision of October 2 concerned only the governor’s authority under the Governor’s Emergency Powers Act and the Emergency Management Act,” a dozen wrote on Monday. ‘lawyers in an open letter.
“The Public Health Code allows Director Gordon to” establish procedures to be followed during the epidemic to ensure the continuity of essential public health services and the application of health laws. ” These procedures may include rules necessary for safely assembling in public spaces, including the requirement to wear masks in shops and workplaces. “
Huff said he looks at the effects on his client businesses on a case-by-case basis, but they all want to keep employees and customers safe.
“I think employers have some sort of heightened awareness of making sure they are implementing good practices to both protect their employees but also minimize their liability,” Huff said.