May 10, 2020
The Legislature, like the rest of us, has been predominantly sequestering themselves at home with just a few in-person meetings in April and early May. Meanwhile the Governor, her staff, and most of the executive branch have been very busy.
STAY HOME, STAY SAFE
Since her declaration of a state of emergency in the State of Michigan due to the COVID-19 pandemic on March 10 and Stay Home, Stay Safe Executive Order on March 24, Governor Gretchen Whitmer has issued 71 Executive Orders under the Emergency Powers of the Governor Act of 1945 and the Emergency Management Act of 1976. These Orders have touched on virtually every aspect of resident’s lives from limiting the purposes for which one could leave one’s residence to restricting who is allowed to work. Requirements for social distancing of 6 feet, wearing masks along with remote working for those who could do so was instituted. Critical infrastructure workers were considered to be those who worked as first responders and in health care, critical manufacturing, food and agriculture, essential retail (e.g., grocery and pharmacies), and transportation. As part of phased re-opening, some outdoor recreation activities were permitted later in April. Then specified lower-risk businesses with strict workplace safety measures were allowed to open again: landscaping, construction, manufacturing, real estate, and outdoor work. Restaurants were permitted to limp along with take-out, delivery, and drive-through food service.
Laws changed — Major laws have been amended by Order that would otherwise require legislative agreement. For instance, unemployment insurance was expanded and extended, tenant evictions were suspended, nonessential medical procedures were delayed, income tax filing deadline changed from April 15 to July 15, and many, many more. Because there are no therapeutic treatments available to cure COVID-19 and as yet no vaccine to prevent the disease, the blunt force tactic of keeping people distant from one another to decrease the spread of the novel coronavirus was the major strategy to contain the carnage. This, in turn, reduced potential hospitalizations and deaths. Still there are 4 counties in the Upper Peninsula with no reported COVID-19 cases while southeastern Michigan has been the hardest hit.
Economic cost — The cost to the economy has been the most severe since the Great Depression with most businesses considered non-essential shuttered. At this writing there have been 1.33 million unemployment claims filed so far in Michigan, an unemployment rate exceeding 20 percent. Major delays in processing claims in an antiquated computer system have been experienced, adding to people’s woes.
The state’s maximum weekly benefit has not been increased since 2002, and currently provides unemployed workers with, at most, just 35 percent of the average weekly wage – or $362. Fortunately, recently passed federal financial assistance for unemployed workers has temporarily boosted income assistance for the unemployed. It is projected that the state’s $4.6 billion Unemployment Trust Fund could run out in July necessitating the state to tap into federal assistance.
Re-opening the economy — The Governor recently described a six-phase reopening of the state’s economy developed by a task force of government, medical, and business leaders. The purpose of a phased re-opening is to prevent a second wave of the new coronavirus. If backsliding is noted, a region or the state could go back a phase or be prevented from advancing to the next phase. Currently the Governor has stated we are in Phase 3. The state is divided into 8 regions in the model.
To progress from one phase to the next, certain milestones have to be met such as epidemic growth rates slowing, cases and deaths declining; hospital and treatment capacity built; alternative care facilities established; infrastructure for crisis response and data systems to monitor progression are in place; impact on vulnerable populations controlled; improved testing, contact tracing and containment capacity. The Post-pandemic phase is when there is high uptake of an effective therapy or vaccine. See www.michigan.gov/coronavirus for a complete description.
Legal challenges — With the flurry of Executive Orders, the Legislature has been left on the sidelines and some affected by the Orders have taken action. On May 6, the Republican-led legislature filed a lawsuit alleging abuse of gubernatorial authority. Oral argument in the Michigan Court of Claims is scheduled for May 15. Speculation from attorneys who practice in the area supported the Governor’s defense more than the legislature’s arguments.
Three Michigan churches and their individual pastors — including House Speaker Lee Chatfield’s father — have now sued the Governor in federal court objecting to the limits on congregating in large groups to prevent the spread of the new coronavirus.
The Governor won a lawsuit in the State Court of Claims on April 29 that claimed the Emergency Management Act was an unconstitutional intrusion on plaintiff’s due process rights. Judge Christopher Murray said in his opinion that “liberty interests are subject to society’s interests.”
Fiscal crisis — Michigan and other states have had increased expenditures related to the global COVID-19 pandemic while concurrently experiencing reduced revenues. High unemployment (less income tax revenue) and reduced consumer spending (less sales and excise tax revenue) have contributed the bulk of the shortfall. At this writing, a 10 to 30 percent decline in state revenues is feared for the current fiscal year with continuing revenue shortfalls in the future. The annual May 15 Revenue Estimating Conference is likely too early to adequately project revenues because the income tax filing deadline has been extended to mid-July, so an August update will likely be held. So far about 3,000 state employees have been furloughed or laid off including 60 percent of the Department of State. Federal financial assistance to state and local government is being debated in Washington.
Fracking — Following a lengthy court case that began in 2018 over listing the wrong election date on their petition forms, the Committee to Ban Fracking has filed petition signatures with the Secretary of State’s office in an effort to gets its proposal on the 2020 ballot.
Fair and Equal Michigan — The effort to gather signatures for a voter-initiated law to add LGBT protections to Michigan’s civil rights law began collecting signatures electronically after the Stay Home order was issued. You can sign the petition at www.fairandequalmichigan.com .It takes just one minute to do. The petitions are due by May 27. The SERA Coordinating Council Executive Committee has endorsed the measure.
Redistricting — On April 15, a 3-judge panel of the Sixth Circuit Court of Appeals unanimously rejected requests by the Michigan Freedom Fund and the Michigan Republican Party to stop Secretary of State Benson from administering the application process for Michigan’s first Independent Citizens Redistricting Commission. The plaintiffs argued that preventing the Michigan Republican Party from selecting the Republican members of the Commission violated the plaintiffs’ federal Constitutional rights. Plaintiffs plan to request a rehearing before the entire bench. Meanwhile the applications for the Commission are due June 1. Over 4,600 notarized applications have been filed with the Secretary of State.
MAY 5 ELECTIONS
Little noticed due to the virus news, 33 Michigan counties and 200 municipalities conducted a May 5 election that set a record for turnout and doubled the average turnout for local elections with 99 percent of voters casting ballots by mail. Turnout for a typical election at this time of year is about 12 percent. On May 5, turnout was somewhere between 24 and 25 percent – only about 850 voted in person. Larger turnout is expected for the August 4 statewide primary and there is concern about processing the expected high number of projected absentee ballots without some changes in state law.
Attorney General Dana Nessel recently reported that in April her department received more than 4,000 price gouging complaints. Prior to the pandemic it was typical for the state to receive about 80 price gouging complaints a year. Under Executive Order 2020-53, a merchant may not mark up the price of a product more than 20 percent above the price on March 9. Consumers can file a complaint with the Attorney General’s Office at www.michigan.gov/ag .
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