The Latest on the Recent Supreme Court Opinion
From a Recent MDHHS Order, to Continuing Education and License Renewals, Approved CEs, Here’s What We Know At This Time!
MAC Lobbyists PAA on the Michigan Supreme Court Decision
We have received updated word from our lobbyists at Public Affairs Associates (PAA) regarding the timing of the Michigan Supreme Court opinion and the 21-day rule, as well as next steps Governor Whitmer could take in response to the ruling. The following information is directly from their memo, which can be found in full here.
Timing and Procedural Issues
Under Michigan Court Rule 7.315(C)(2)(a), orders of the Michigan Supreme Court are not effective sooner than 21 days. This allows the opportunity for a party to request a rehearing.
Additionally, this was not a routine appeal from the Michigan Court of Appeals or through the Michigan state courts. This was a certified question from the federal court.
Judge Maloney of the U.S. District Court will now need to issue an opinion in the case of Midwest Institute of Health v. Governor. The big unknown is the timing for action by Judge Maloney.
Potential Next Steps
There are three potential next steps the Governor and/or state and local public health authorities may pursue.
The Governor and the Attorney General may request a rehearing before the Michigan Supreme Court or they may appeal any order issued by Judge Maloney to the 6th Circuit, U.S. Court of Appeals.
Legislative Concurrence under the EMA
The Governor and the Legislature may enter into negotiations allowing the Governor to issue executive orders under the EMA [Emergency Management Act], in which the Legislature will concur. While this may be a longshot, both branches of government just completed negotiation of the FY 2020-21 state budget potentially opening the door to negotiations on this and other pressing legislative issues. This will open the opportunity for Republican-controlled Legislature to push for certain legislative changes they have been seeking, such as immunity protections for businesses and schools.
Public Health Orders
The Michigan Public Health Code provides broad authority to both the Director of Public Health and local public health departments to issue orders addressing an epidemic like COVID-19:
“If the director determines that control of an epidemic is necessary to protect the public health, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws. Emergency procedures shall not be limited to this code.”
In fact, Michigan Department of Health and Human Services Director Robert Gordon has issued numerous orders designed as “reinforcing executive orders” under the Michigan Public Health Code. The most recent one being July 29, 2020, and can be found here.
Note from the MAC: On Monday, the Michigan Department of Health and Human Services issued an epidemic order to sustain rules that require masks, limit gatherings, and more. See the accompanying article below.
Local public authorities also have similar authority within their respective counties to issue emergency public health orders. In addition, both local and state health departments have the ability to quarantine individuals. Ingham County Public Health Department has already used this power regarding numerous multi-person dwellings in East Lansing.
Note from the MAC: Governor Gretchen Whitmer filed a motion on October 5, 2020, with the Michigan Supreme Court asking it to delay the effective date of its ruling until October 30th, to “enable an orderly transition to manage this ongoing crisis.” Stay tuned for more information as it becomes available.
Michigan Department of Health and Human Services Issues Emergency Order
Order Requires Face Coverings, Restricts Gatherings, Places Limitations on Bars and Other Venues; MDHHS Action Comes on the Heels of Major Michigan Supreme Court Decision Striking Down Whitmer Executive Orders
On Monday, October 5, 2020, the Michigan Department of Health and Human Services issued an emergency order requiring face coverings in public spaces, restricting gatherings, and placing limitations on bars and other venues. The order relies on provisions of the Public Health Code first enacted after the 1918 Spanish Flu pandemic, which were not involved in Friday’s ruling, rather than either of the laws at issue when the Michigan Supreme Court struck down Governor Whitmer’s executive orders last week. The MDHHS order is effective immediately and remains in effect through Friday, October 30, 2020.
Violations of the order are misdemeanor offenses punishable by imprisonment for not more than six months, a fine of not more than $200, or both. Civil fines of up to $1,000 are also possible.
In the order, MDHHS Director Robert Gordon states: “[U]pon the advice of scientific and medical experts employed by MDHHS, I have concluded pursuant to MCL 333.2253 that the COVID-19 pandemic continues to constitute an epidemic in Michigan. I further conclude that control of the epidemic is necessary to protect the public health and that it is necessary to establish procedures to be followed during the epidemic to ensure the continuation of essential public health services and enforcement of health laws. As provided in MCL 333.2253, these emergency procedures are not limited to the Public Health Code.”
In a statement, Director Gordon states: “Today’s order is lawful under the Michigan Supreme Court’s recent decision… the legal authority under which I am acting is narrower, established specifically in response to the Spanish flu a century ago. Compared to the Governor’s orders, my actions are narrower too. Just as they stand up for human life, they stand up to legal scrutiny.” Whether this is true or not will most likely be left up to the courts. In the meantime, the MAC recommends that all members familiarize themselves with the order, which can be found online here.
More MDHHS orders could come in the next few days, and other State departments/agencies could also issue orders in the coming days. For example, the Michigan Department of Labor and Economic Opportunity (LEO) will most likely be issuing an order dealing with workplace safety and protections.
Stay tuned for more information as it becomes available.
Remember: The Michigan Association of Chiropractors is a professional association advocating for the rights of chiropractors and their patients across the state of Michigan. We are NOT a state agency or regulatory body. We are merely informing our membership during this difficult and confusing time.
The information we provide during this pandemic is derived in conjunction with our governmental relations and legal experts, developed after examination of all official releases of information from the State of Michigan, the federal government, and in consultation with said experts and representatives from state government. Please refer to our emails and website for the latest information, free from speculation and the rumors currently circulating in the wake of official state actions.
Rest assured that we will continue to advocate for the profession at the highest levels, with the health and well-being of you and your patients, as well as the overall stability of the health care system, foremost in our efforts.