League Updates Members on State Supreme Court Opinion, Pending OMA Bills

Posted on October 5, 2020 by Dene Westbrook

The Michigan Municipal League wanted to update our members about two new developments regarding the coronavirus pandemic as it relates to our communities.

First, on Friday the Michigan Supreme Court issued an opinion in the case of: In re Certified Questions From the United States District Court, Western District of Michigan, Southern Division (Midwest Institute of Health, PLLC v. Governor).  In that case, a federal district court judge had asked the Michigan Supreme Court to rule on the extent of the Governor’s powers under the Emergency Management Act (EMA) and the Emergency Powers of the Governor Act (EPGA).

The Supreme Court ruled unanimously that the Legislature must extend any emergency after 28 days under the EMA. The 1976 law allows the Governor to declare an emergency that lasts 28 days. The emergency may only be extended by the Legislature after 28 days. In a 4-3 decision, the Court ruled that the EPGA, passed in 1946 was an unconstitutional delegation of legislative powers to the Governor.  The majority declared that the Governor did not have the authority to issue emergency orders under the EPGA.

There is a real question over when these rulings take effect.  The usual time in which a Supreme Court order goes into effect is 21 days after the order is issued.  (MCR 7.315).  We believe that is the most reliable date.  We do note that Attorney General Nessel has stopped enforcing the Executive Orders.  We also note that the Governor has asked the Court for a ruling on that issue.

Second, in the meantime, the League, working with bipartisan support in both the state Senate and House, is happy to announce the introduction of Senate Bill 1108 and House Bill 6207. The legislation would amend the Open Meetings Act (OMA) to allow for electronic “virtual” meetings to take place without an executive order suspending some requirements, under specific circumstances. The changes would allow for remote participation during a statewide or local declared state of emergency, or for a public body member with a medical condition. These bills also would allow in-person meetings and a combination of virtual and in-person arrangements.

The League will provide updates as they become available, but ask that you contact your legislators and urge passage of this OMA amendment. With the uncertainty created last week, local units of government need clear statutory authority to be established for virtual meetings to take place.

You can find contact information for your state Senator HERE and your state Representative HERE.

The League is also working on having webinars on these topics for our members. Stay tuned for additional details on those webinars as it becomes available.

If you have additional questions on the Supreme Court opinion, contact the League’s General Counsel Chris Johnson at [email protected] and questions on the OMA legislation contact the League’s Jennifer Rigterink at [email protected].

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