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On March 23, 2020 Governor Gretchen Whitmer signed into effect Executive Order No. 2020-21 – Michigan’s first stay-at-home order. The same day, I wrote an article explaining that it was a crime to violate that order. Since that time, Governor Whitmer has issued 171 additional Executive Orders. On October 2, 2020, the Michigan Supreme Court issued an opinion invalidating (eventually) the majority of those Orders.

Immediately after the release of that opinion, Governor Whitmer issued the following statement: “It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law.” What I understand this to mean is that it would still be a criminal misdemeanor to violate the Executive Orders. But is it?

The question that comes to my mind is: “how can there be criminal liability for violating an Order that has been deemed to be unconstitutional.” The short answer is– I don’t think there can be. This seems to be the stance of Michigan Attorney General Dana Nessel, who stated on October 2, 2020 that her office will no longer be enforcing the Governor’s Executive Orders by criminal prosecution. You can read more about that, here. BUT, Attorney General Nessel made it clear that just because her office will not be doing so does not mean other law enforcement agencies will follow suit. In other words, each law enforcement agency will have to make its own decision on whether to continue to enforce the Executive Orders through criminal prosecution.

The next questions that come to mind are what this means for businesses, and what it means for wearing masks? My best answer is, at least right now, probably not that much. Several counties have issued, or plan to issue, local orders regarding the use of masks, capacity at bars and restaurants, employee health screenings, etc. On October 3, 2020, Oakland County issued local health order 2020-12, which requires its residents to wear masks or facial coverings. It is anticipated that additional orders regarding a variety of issues will be issued in the near future. You can read more on that, here. Similarly, the Kent County Health Department made it clear that it will continue to use public health orders and enforcement actions. So, although many of the Governor’s Executive Orders were struck down by the Michigan Supreme Court, many Michigan counties plan to continue the spirit those orders through their local governance.

The reality is that the aftermath of the Supreme Court’s opinion is only speculative at this point. What does seem somewhat clear is that many Michigan counties will still have significant restrictions. Just as you had a responsibility to understand the Governor’s Orders, you now have a responsibility to understand the orders of your local health department. Moreover, businesses still have licenses that can be taken away. If you own a business, make certain of all of your expectations and guidelines before you start opening up to full capacity or becoming lax in your health screenings and mask requirements. Remember, the state and local governments still control your license, and violation of either local rules or any of the Executive Orders still in place could result in you losing that license. Stated differently, until you know exactly what is expected of you, it’s probably better to play it safe.

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