On Friday, October 2, 2020, the Michigan Supreme Court, in a 4-3 opinion, invalidated Michigan Governor Gretchen Whitmer’s COVID-19 executive orders, finding the Governor did not have the authority to issue executive orders without the approval of the state legislature.  The Governor relied on two state laws, the Emergency Management Act of 1976 (EMA) and the Emergency Powers of the Governor Act from 1945 (EPGA), as granting her the authority to continue the emergency orders beyond April 30.

Justice Stephen J. Markman wrote for the majority, “We conclude that the Governor lacked the authority to declare a 'state of emergency' or a 'state of disaster' under the EMA after April 30, 2020, on the basis of the COVID-19 pandemic. Furthermore, we conclude that the EPGA is in violation of the Constitution of our state because it purports to delegate to the executive branch the legislative powers of state government – including its plenary police powers – and to allow the exercise of such powers indefinitely.”

In response to the court’s decision, on Monday, October 5, 2020, Michigan Department of Health and Human Services (MDHHS) Director Robert Gordon issued an Emergency Order restricting gathering sizes, requiring face coverings in public spaces, and places limitations on bars and other venues.  

Under Michigan law, MCL 333.2253, the MDHHS director may determine that control of an epidemic is necessary to protect the public health and 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. The MDHHS director’s powers were not at issue before the Michigan Supreme Court.

The new orders reinstate some of the Governor’s initial emergency orders by restricting gathering sizes, requiring face coverings, and placing limitations on bars and other venues:

• Masks Required at Indoor and Outdoor Events: Individuals must wear masks when in gatherings, defined as any occurrence where persons from multiple households are present in a shared space in a group of two or more.  Businesses and government offices must enforce such requirements for gatherings on their premises. This includes the wearing of masks at schools by children and staff members, except for in Michigan Economic Recovery Council Region 6.

• Gathering Size Limitations: he order reinstates limitations on crowd sizes that follow Governor Whitmer’s prior requirements, including that indoor gatherings of 10+ and up to 500 people occurring at a non-residential venue are permitted within the following limits:

  • Where venues have fixed seating, attendance is limited to 20% of normal capacity. Gatherings up to 25% of normal capacity are permitted in Michigan Economic Recovery Council Region 6.

  • Where venues do not have fixed seating, attendance is limited to 20 persons per 1,000 square feet in each occupied room. Gatherings of up to 25 persons per 1,000 square feet are permitted in Michigan Economic Recovery Council Region 6.

  • For non-residential outdoor gatherings between 100 and 1,000 persons at venues with fixed seating are permitted at up to 30% of normal capacity and at 30 persons per 1,000 square feet at venues without fixed seating.

• Business Limitations: Bars remain open, but must close indoor common areas where people can congregate. Indoor gatherings are prohibited anywhere alcoholic beverages are sold, except for establishments where parties at tables are separated from one another by at least six feet. 

Local health departments are authorized to carry out and enforce the terms of this order under Michigan law 333.2253(1).  Law enforcement officers are deemed “department representatives” for purposes of enforcing this order and are specifically authorized to investigate potential violations of this order. They may coordinate as necessary with the appropriate regulatory entity and enforce this order within their jurisdiction. Violations of are punishable by a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $200, or both, as well as a civil fine of fine of up to $1,000.

The order will remain in effect through at least October 30, 2020.