Confusion reigns in Michigan over masks, business rules after COVID ruling

Michigan Gov. Gretchen Whitmer’s administration moved Monday to reimpose a statewide mask mandate and limits on businesses, setting up a clash with Republicans after the state Supreme Court limited her authority to act unilaterally amid the coronavirus pandemic.

While Whitmer and her allies say her health department has the power to issue orders to protect the public, some conservatives disagree, continuing Michigan’s state of uncertainty — even as coronavirus case counts and hospitalizations increase.

The confusion remains following a Michigan Supreme Court ruling Friday that deemed unconstitutional a 1945 law Whitmer has used to issue 123 orders after the Legislature refused to extend a state of emergency in late April. Thirty of Whitmer’s orders were in place when the ruling came out.

Related:

• COVID masks can still be required in Michigan schools, despite ruling
• Michigan Supreme Court rules Whitmer lacks COVID-19 emergency powers
• GOP leader: No mask mandates, Michigan needs to learn to live with coronavirus
• Nessel won’t enforce Michigan Gov. Whitmer’s COVID orders after court ruling

Days after the ruling, businesses want guidance on whether they still need to limit the number of customers in stores, and doubts remain on whether police can ticket those who refuse to wear masks.

“There’s a lot up in the air,” said Bob Stevenson, executive director  of Michigan Association of Chiefs of Police. 

School and business leaders told Bridge Michigan that policies in place before the court order likely will remain, with masks mandatory for students and customers.

But a host of other issues remain. Here’s a look at the debate. 

What are the latest rules from the Whitmer administration?

Robert Gordon, director of the state Department of Health and Human Services, issued a statewide emergency order Monday that mimics some of the governor’s rescinded orders by placing limits on indoor and outdoor gatherings and events, requires masks be worn in businesses and schools, and requires athletes to wear masks while playing sports. 

The order takes effect immediately and expires on Oct. 30. Gordon argues it carries the force of law and it’s “critically important” that local law enforcement enforce it. 

Why did they issue the rules?

A 4-3 state Supreme Court ruling issued on Friday afternoon determined that Whitmer lacked the authority to issue executive orders in response to the coronavirus pandemic without consent from the Legislature. 

That means that all of the executive orders currently in place — including those to require people wear masks in public spaces, keep social distance, require workplace safety and other protections — would become moot either immediately or at a later date. (More on that later.) 

A patchwork of local rules began to spring up in response to the ruling, and Gordon said a statewide rule is necessary to maintain public safety. 

“We are tired of the virus, but the virus is not tired of us,” Gordon told reporters Monday. 

“Orders remain critical to make clear the shared norms each of us most follow so all of us can remain healthy.”

Why does the administration say it’s legal?

Gordon claimed legal authority under a state law that gives him the power to issue emergency orders to “prohibit the gathering of people for any purpose” and to “establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws” in the case of an epidemic. 

“Our legal authority here is clear,” Gordon said. “It is different than the authority which the Michigan Supreme Court spoke to… the authority delegated by the Legislature to the DHHS director is narrower, it has clearer contours, and it allows for less action. So I think it is a very different authority.”

More than a dozen attorneys at the University of Michigan Law School signed a letter Monday agreeing with Gordon.

Why do some say the orders are illegal?

Some conservative leaders and attorneys questioned whether Gordon’s rule would stand up to a legal challenge.

After all, Gordon is an appointee of Whitmer, and the Supreme Court ruled that she overreached in setting health restrictions without input of the Legislature.

"The highest court in our state couldn’t have been more clear in their ruling – they told [Whitmer] to stop breaking the law by going it alone and to work with the Legislature to tackle the pandemic," Senate Majority Leader Mike Shirkey, R-Clarklake, wrote on Twitter on Monday.

"Clearly she didn’t get the message."

John Bursch, a Caledonia-based attorney and former state solicitor general, said he’s skeptical that courts will allow Whitmer to “keep doing the same thing.”

Katherine Henry, a Hudsonville-based attorney, said the Supreme Court determined Whitmer’s handling of the coronavirus pandemic violated the separation of powers. 

Gordon’s rule is “equally unconstitutional because [he and Whitmer] are members of the executive branch trying to utilize powers that belong to the legislative branch,” she said. 

What will the police enforce?

On Sunday, Attorney General Dana Nessel, a fellow Democrat and ally of Whitmer, announced she will no longer enforce the governor’s orders. But her office said it would enforce health department epidemic orders.

Nessel’s spokesperson said in a statement her decision to not enforce executive orders isn’t binding on law enforcement agencies or state departments “with independent enforcement authority,” adding that it is “her fervent hope” that people will continue to wear masks and socially distance.

Stevenson, the director of police chiefs, told Bridge that police likely will follow Nessel’s lead and may not enforce Whitmer's executive orders but were looking into the health orders.

Even so, businesses still can require masks for entry, Stevenson said, adding that police will enforce business owners’ rights to make decisions for mask wearing in their stores. 

“The big thing is we don’t want anybody getting hurt or injured fighting about wearing masks or not wearing masks,” Stevenson said. “Just respect the business owners.”

When does the Supreme Court ruling go into effect?

That’s also a point of contention. 

Whitmer argues the ruling doesn’t go into effect for at least three more weeks, which is how long parties have to file a motion for reconsideration under Supreme Court rules. 

Speaker of the House Lee Chatfield, R-Levering, told reporters her interpretation is “wrong” and the ruling went into effect immediately, invalidating all of her existing executive orders. 

Attorneys who spoke with Bridge disagreed on whether that’s the case. 

Whitmer asked the Supreme Court to clarify this on Monday. 

What’s happening at the local level?

Local health departments, too, have claimed legal authority to issue orders to protect public health under a different section of Michigan law. 

Since the Supreme Court ruling, officials in Oakland, Ingham, Washtenaw and Wayne counties have indicated they would continue local mask requirements and other safeguards. Other counties, such as Macomb, have indicated they won’t. 

Some lawyers, perhaps unsurprisingly, are also questioning whether county health orders are now legal. 

What does this mean for individuals?

While confusion remains over statewide rules, experts say that if businesses require masks, social distancing and lowered capacity in their stores, police can cite those who violate their rules with trespassing. 

But customers who ditch masks at other venues probably won’t face civil fines or misdemeanors like they would a week ago, in part because some police are as confused as everyone else.

That said, health experts and state leaders (including Republicans) say wearing masks is still important and can decrease the chance of spreading coronavirus, which has sickened nearly 143,000 people and killed more than 7,100 in Michigan since mid-March.

What does this mean for schools?

Under Gordon’s order, masks are required to be worn in schools in most of the state. In Region 6, the northern Michigan region that encompasses Traverse City, masks are recommended. Gordon said these rules are the same as those that Whitmer implemented under her executive orders. 

Even before the new orders, many school officials had told Bridge they plan on continuing as if nothing has changed. 

That said, a little guidance would help, school officials say.

“There’s still much ambiguity about how school districts should continue to function,” said Don Wotruba, executive director of the Michigan Association of School Boards. 

“Our members and the districts they serve need clear guidelines regarding functions that are integral to the operation of our school communities.”

What does this mean for businesses?

Dozens of businesses have been fined up to $7,000 each in recent months by the state’s Occupational Safety and Health Administration (MIOSHA) for violating workplace safety rules related to COVID-19.

Those fines remain, even with the Supreme Court order, Sean Egan, Michigan’s COVID-19 workplace safety director, told Bridge.

The agency derives its authority from a state law that requires employers to provide a hazard-free workplace, not from executive orders, Egan said. 

“The recent Supreme Court decision does not change that.”

Still, business owners are preparing to deal with confused customers.

Many businesses struggled to make customers who resented the mask requirement understand the law, and now they’re working to teach customers that stores have a right to determine whether to keep those requirements despite the Supreme Court order, said Michigan Retailers Association spokesperson Meegan Holland. 

Any other fallout?

You bet.

One of Whitmer’s executive orders that’s now in question allowed governments to bypass Open Meetings Act laws and meet virtually over Zoom or other platforms.

Lansing this week canceled its city meetings because of the Supreme Court ruling, and other local agencies could follow suit.

— Bridge reporters Paula Gardner and Ron French contributed