October 11, 2020
A slow month it was not: a foiled kidnapping attempt on the Governor and attack on the capitol that made international news; presidential election frenzy; and the Michigan Supreme Court ruling the Governor’s Executive Orders on the pandemic are unconstitutional. Oh, and a State budget for Fiscal Year 2021 passed quietly without even a hearing.
The Plan — An anti-government domestic terrorist group’s plan to kidnap Governor Gretchen Whitmer from her northern Michigan vacation home and try her for “treason” while using 200 armed men to storm the Capitol was foiled on October 7. Thirteen men were arrested in locations throughout Michigan by a task force of hundreds of FBI and State and local government law enforcement. The investigation had been going on for several months after credible threats were lodged and actions taken toward the Governor and law enforcement.
Announcements — Michigan Attorney General Dana Nessel and the U.S. Attorneys for the Western and Eastern districts of Michigan held a news briefing at 1 p.m. on October 8 in Lansing to detail the conspiracy and arrests. The Governor held a press conference at 3 p.m. that day to reassure the public that she and her family were fine and that she was still resolved to take the necessary action to protect the public from the health and economic effects of the pandemic.
She said the Republican discourse related to COVID-19 orders and the President’s comments on hate groups helped fan the flames for the plot. For their part, Republican leaders condemned the plot though many had called her a dictator and power hungry in preceding months. Just hours after the press conference revealing the conspiracy and arrests, Michigan Senate Majority Leader Mike Shirkey spoke to a Capitol steps rally sponsored by Stand Up Michigan, an organization opposed to the pandemic restrictions.
Discovery — Confidential informants inside the conspiracy group and undercover FBI agents were key to understanding the planned activities of the plot which spread out over four states. Court documents describe a plan that took shape over many months beginning in early 2020. Search warrants and arrest warrants were executed in Cadillac, Canton, Charlotte, Clarkston, Grand Rapids, Luther, Munith, Orion Township, Ovid, Portage, Shelby Township, and Waterford.
Thirteen Charged — Six principal defendants were charged in federal court and seven others seen as aiding the plot were charged in state court. The seven men charged in state court were alleged to have a cumulative 19 state felony charges. They are believed to be known members or associates of the anti-government terrorist group Wolverine Watchmen. A Department of State Police affidavit suggests the group was interested in preparing for the “boogaloo,” a term referencing a violent uprising against the government or impending politically motivated civil war.
Three of the 13 charged were among the armed people in the Michigan Senate gallery on April 30 connected to a protest over pandemic restrictions imposed by Governor Whitmer. It appeared several others were on the Capitol grounds that day as well. The group used a gun rights rally at the Capitol in June to try to recruit participants.
In summing up the plot, Lt. Governor Garlin Gilchrist said, “When you mix terrorists with white supremacism, guns, and misogyny, this is what you get.”
PANDEMIC ORDERS HELD UNCONSTITUTIONAL
On October 2, the Michigan Supreme Court issued its advisory opinion requested by the federal court regarding Governor Gretchen Whitmer’s emergency authority during the COVID-19 pandemic in In Re To Certified Questions (Midwest Institute Of Health v. Governor MSC Docket No. 161492). The court’s Republican-nominated justices — Justices Viviano, Markman, Zahra, and Clement — sided with the Republican-led Legislature, while the three Democratic-nominated justices — Justices McCormack, Bernstein, and Cavanagh dissented and sided with Democratic Governor Gretchen Whitmer. The federal court will consider the advisory opinion and rule on the underlying lawsuit brought by three health care clinics and a patient with legal assistance from the Mackinaw Center.
1945 Emergency Powers of the Governor Act (EPGA) Unconstitutional — The high court advised that the Governor lacked the authority to keep the State under a state of emergency through the EPGA of 1945 because that 75-year old Act unconstitutionally delegated legislative power to the executive branch.
Whitmer has based her 190+ Executive Orders to curtail the spread of COVID-19 in Michigan on the EPGA. There were 43 active, operational Executive Orders at the time of the court’s decision.
1976 Emergency Management Act (EMA) — However, like other court decisions challenging the Governor’s authority, the court advised that the Governor did not possess authority under a different law — the EMA of 1976 — to declare states of emergency and disaster as it relates to the new coronavirus pandemic after April 30, 2020. That 1976 EMA law says the Legislature must approve an extension of an emergency order after 28 days.
Impact — This means the Governor must work with the Legislature to come up with emergency strategies to respond to the worst pandemic in 100 years. Her orders covered a wide variety of topics including the mask mandate, social distancing guidelines, gathering size restrictions indoors and outdoors, capacity restrictions for bars and restaurants, requiring businesses to have dedicated shopping hours for vulnerable populations, nursing home regulations, extending unemployment benefits to 26 weeks, and many other matters.
Cost — Advocacy group Progress Michigan obtained the financial records of the Michigan House and Senate and found that the two chambers have spent $542,000 in various legal challenges to Governor Whitmer’s use of emergency powers during the pandemic.
Local Government — Most immediately several counties and cities issued emergency orders reinforcing the Governor’s Executive Orders. On October 3, Oakland County officials, hours following a Republican legislative leader’s declaration that he opposes continuing the Democratic governor’s statewide mask requirement, issued its own county-wide mask order. The following day the Ingham County Health Officer issued four local orders mandating people to continue to wear masks, limiting indoor and outdoor gatherings, keeping indoor restaurant and bar seating limited to 50 percent capacity and requiring employee health screenings. The City of Detroit Health Officer issued its own 25-page order on many topics similar to the Governor’s Executive Orders as did the Wayne County Health Officer.
Michigan Department of Health and Human Services (MDHHS) — On October 5, MDHHS issued several emergency orders under its Public Health Code statutory authority. On October 9, MDHHS issued a more detailed public health order on Gathering Prohibition and Face Coverings including Infographics and a Fact Sheet. Critics labeled the action an end run of the Michigan Supreme Court decision. Among the items in the October 9 MDHHS order, which do not apply to Region 6 (17 northern Lower Peninsula counties where the virus’s presence is the least severe):
Legislative Action — On October 8, the Michigan Senate passed five bills targeting areas Republican leadership considered top priorities to respond to the pandemic. Passing the Senate by 38-0 votes were Senate Bill (SB) 1094, which would require the State to create dedicated facilities to house COVID-19 positive nursing home patients; SB 886, which would allow eligible individuals who filed an initial unemployment claim due to COVID-19 to receive up to 26 weeks of benefits rather than up to 20 for the next several months; and SB 911, which would allow retirees from the Unemployment Insurance Agency and the Michigan Occupational Safety and Health Administration to be rehired without losing retirement benefits. Passing 36-2 was an amendment to the Open Meetings Act under SB 1108 to allow for local public bodies to meet remotely.
Senate Republicans tie-barred the unemployment extension (SB 886) to a set of bills providing COVID-19 lawsuit liability protections to businesses (House Bill (HB) 6101, HB 6030, HB 6031, and HB 6032), drawing the ire of AFL-CIO President Ron Bieber.
The earliest these bills can be considered by the Michigan House is Tuesday, October 13. The House and Senate are scheduled to meet on October 21 before taking a break until after the election on November 3.
FY 2021 BUDGET
Normally, budget approval process for a new fiscal year would be the highlight of a legislative newsletter. But the COVID-19 pandemic changed much of the budget process this year. In contrast to FY 2019-2020’s unnegotiated, last-minute budget that garnered 193 gubernatorial line-item vetoes and use of the Democratic-controlled Administrative Council the next day to transfer money between departments without legislative input, the FY 2020-2021 budget passed with wide, bipartisan majorities in both chambers after an unusual closed-door process and no fanfare whatsoever.
Perhaps it was the relief from a predicted $3 billion revenue shortfall announced in May to a partially rebounding Michigan economy over the summer that reduced the shortfall considerably by August. With a boost of federal funds, the $62.8 billion budget will protect schools, colleges, universities, and local governments from any State funding reductions below their original 2020 funding levels. The budget also includes new education investments focused on providing students, teachers, and adults across Michigan with needed resources.
No additional temporary layoff days are planned for State employees, with no plans for a reduction in the workforce. The State hiring freeze and spending freeze remain in effect until further notice.
REDISTRICTING COMMISSION UPDATE
In September and October, the newly installed Independent Citizens Redistricting Commission voters adopted in 2018 began meeting. Under the guidance of the Secretary of State’s office, the Commission has received training from national experts in election law and political line drawing; approved job descriptions for an Executive Director, Communications Director, and General Counsel; begun recruitment to fill the positions; and generally gotten to know each other — virtually, of course.
One member dropped out after two meetings and another replacement was chosen from the pool of 180 candidates. Steve Lett of Interlochen, an attorney and arbitrator, was elected chair. Six more meetings are scheduled for November and December. The meeting schedule, links to the recorded meetings, minutes, and other information can be found at www.michigan.gov/redistricting.
PAID PARENT LEAVE FOR STATE WORKERS
Beginning October 1, 49,000 active State employees will have a new benefit — 12 work weeks of paid parental leave immediately following birth or adoption of a child. Formerly, there was a federal guarantee of 12 work weeks of unpaid family leave since 1993.
Those eligible are career employees who are currently working and who have successfully completed an initial probationary period during the current employment period and worked at least 1,250 hours during the previous 12 months. The Office of State Employer worked in conjunction with State employee unions to develop Letters of Understanding for the implementation of paid parental leave.
Return to top of page