Update: Supreme Court's October 12, 2020 Ruling > Fahey Schultz Burzych Rhodes
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Update: Supreme Court's October 12, 2020 Ruling

October 2020

On October 12, 2020, the Michigan Supreme Court ruled in House of Representatives and Senate v Governor (a pending state case challenging the Governor’s executive orders) that Governor Whitmer’s executive orders adopted after April 30, 2020, and involving COVID-19, lack any legal effect under Michigan law for the same reasons that the Supreme Court provided in its previous October 2nd Opinion providing guidance to a Michigan federal court. The Supreme Court made clear its ruling is effective immediately. In so doing, the Court resolved any lingering ambiguities relating to the legal effect of its October 2nd Opinion, which found that the executive orders adopted after April 30, 2020, had no basis in law.

On the same day, the Court also issued an Order responding to the Governor’s request that the Court delay its prior October 2nd Opinion’s effective date. The Court ruled that its October 2nd Opinion was effective immediately. The Court made a point to clarify that its order is “effective upon entry” and that the Governor’s executive orders “have no continuing legal effect;” thus ending any debate over whether the Opinion is subject to a 21-day period for the Governor to ask for reconsideration. That Order can be found here.

Notwithstanding the invalidity of the Governor’s orders, the Director of the Michigan Department of Health and Human Services (MDHHS) has issued facial covering requirements, gathering restrictions, and other rules closely mirroring those provided in the Governor’s executive orders under the Michigan Public Health Code. These orders have not yet been reviewed by a court. The MDHHS Emergency Order can be found here. Local county health officials have also issued orders relating to facial coverings, gathering restrictions, and social distancing.

Accordingly, while the Supreme Court has ended any debate over whether the Governor’s executive orders post-April 30th retain any legal effect, many of the executive orders’ rules related to facial coverings, gathering restrictions, and related capacity limitations have been preserved through  other orders issued by the MDHHS and local county agencies. These orders should be consulted to determine how best to proceed despite the invalidity of any current Michigan Governor orders. The Michigan Legislature is also currently working to ratify actions taken since April in reliance on the executive orders, as well as other COVID-19 related legislation. Moving forward, those with questions or concerns about how to proceed should seek legal counsel.

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