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.

With the Michigan Supreme Court’s clarification and additional opinion in the pending state court case, no ambiguity exists regarding the Governor’s post April 30th executive orders. Even so, gathering sizes and mask mandates still exist under the Michigan Department of Health and Human Services (MDHHS) emergency orders, including those issued last week. The October 9th  MDHHS order requires municipalities meeting indoors to meet the following capacity limitations:

(3) Indoor gatherings of more than 10 and up to 500 persons occurring at a non-residential venue are permitted only to the extent that the organizers and venue:

(A) In venues with fixed seating, limit attendance to 20% of seating capacity of the venue, provided however that gatherings at up to 25% of seating capacity are permitted in Region 6;

(B) In venues without fixed seating, limit attendance to 20 persons per 1,000 square feet in each occupied room, provided however that gatherings of up to 25 persons per 1,000 square feet in each occupied room are permitted in Region 6;

(C) Require that each person at the gathering wears a face covering except as provided in section 6 of this order.

Outdoor gatherings from 100 people to 1000 people are further addressed in that same MDHHS order. View the entire October 9th MDHHS order here.

In addition to the MDHHS orders, counties have also issued local orders that may control the size of indoor or outdoor gatherings. Most, if not all, of these MDHHS and county orders reviewed do impose limitations on indoor gatherings which place constraints on holding indoor public meetings.

Individual municipalities should consult with their attorneys regarding whether electronic meetings remain appropriate given that the Open Meetings Act itself does not explicitly require that a quorum of the public body assemble at a physical location. The Open Meetings Act was passed in 1976 and neither the legislative intent nor the requirements for holding or noticing a meeting speak to a physical meeting place. The OMA, MCL 15.263(1), only says that: “All meetings of a public body shall be open to the public and shall be held in a place available to the general public.” A “place” is not defined by the OMA, but it is common today to refer to the internet as a “place.” 

Even ten years after the OMA was adopted, the Court of Appeals held that a telephone conference connection was sufficient to satisfy the requirements of attendance for some members of the public body. See Goode v Dept of Soc Services, 143 Mich App 756, 759; 373 NW2d 210 (1985). That Court of Appeals decision was decided without the ability to see how effective electronic meetings have been in the past 6 months for certain municipalities—increasing public participation and the accessibility of municipal public bodies in areas of the State.

Challenges to meetings under the OMA may be short-lived regardless of whether municipalities decide to continue holding electronic meetings as the Michigan Senate has passed bill 1108 that would affirm the retroactivity of electronically held meetings and allow such meetings to continue until at least 2021. The Michigan House of Representatives is scheduled to review the language on Tuesday, October 13, 2020. View Senate Bill 1108 here. Moving forward, those with questions or concerns about how to proceed should seek legal counsel.

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