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Sorting out orders: Calumet Village Council caught in legal dilemma over meetings act

Graham Jaehnig/Daily Mining Gazette In spite of wording in Calumet Village’s Adult Use Marijuana Facility Ordinance, council members still had questions that required extensive discussion at a regular council meeting in January. Clockwise from left are trustees Lori Weir, Andrew Ranville, Roxanne King, Village Clerk Kevin Weir, Village Manager Caleb Katz, Village President Dave Geisler, Brian Abramson, and Doug Harrer.

CALUMET — Municipalities and leaders across Michigan have been thrown into confusion since the state’s Supreme Court ruled on Oct. 2 that Gov. Gretchen Whitmer’s COVID-19-related executive orders, since April 30, are unconstitutional.

The Calumet Village Council, like others, has been conducting its meetings via social media platforms since executive orders issued by the governor permitted temporary alterations to the Open Meetings Act. The Supreme Court’s rule, however, left many scratching their heads across the state, including the governor herself.

In a release issued by the governor’s office the same day the Supreme Court ruled against her, Whitmer stated:

“It is important to note that this ruling does not take effect for at least 21 days, and until then, my emergency declaration and orders retain the force of law. Furthermore, after 21 days, many of the responsive measures I have put in place to control the spread of the virus will continue under alternative sources of authority that were not at issue in today’s ruling.”

Village Manager Caleb Katz said the executive orders have not had a significant impact on municipal functions, saying the departments have still been able to operate normally. Village offices, and the Department of Public Works have continued as normal. The issue that will effect the village, he said is the Open Meetings Act, and “whether or not that gets updated or amended to allow some sort of virtual or wireless meeting, so nobody has to come in person.”

This is, in fact, an issue, because the Village Council Chambers were not originally designed for such large meetings. The current chambers were originally a village court room. As Village Council meetings are usually very well attended, social distancing is not at all possible.

Katz said the Open Meetings Act is an issue that he will bring to the Oct. 20 council meeting, to make council members and members of the public attending the virtual meetings, that there is little the council can do. The question is with the rejection of the executive orders, will the council meetings return to in-person, or will the legislature make some sort of change by the end of the month, when Whitmer’s 28-day grace period expires.

However, the Supreme Court on Monday rejected Whitmer’s statement, along with a motion she filed last week, requesting the Justices to allow more time before putting their ruling into effect so there could be “an orderly transition during which some responsive measures can be placed under alternative executive authority and the Governor and Legislature can work to address many other pandemic-related matters that currently fall under executive orders,” thehill.com reported on Tuesday. In a 6-1 ruling against halting the effect of its Oct. 2 opinion until Oct. 30. they also reaffirmed their initial 4-3 ruling that declared the 1945 Emergency Powers law unconstitutional. Executive orders issued under the law “are of no continuing legal effect. This order is effective upon entry,” the court wrote.

Adding further to confusion across the state, on Oct.5, three days after the Court struck down Whitmer’s executive orders, the Michigan Department of Health and Human Services issued an emergency order reinstating many of the executive orders overturned by the Court.

The order follows the Michigan Supreme Court decision on Oct. 2 that invalidated COVID-19 related executive orders. Friday’s order relies on authorities that were first enacted after the Spanish Flu of 1918, and that were not at issue in the Michigan Supreme Court’s decision, states the michigan.gov./coronavirus website.

Under MCL 333.2253, if the MDHHS director determines that control of an epidemic is necessary to protect the public health, the website asserts, the director by emergency order may prohibit the gathering of people for any purpose and may establish procedures to be followed during the epidemic to insure continuation of essential public health services and enforcement of health laws.

Violations of this order are punishable by a misdemeanor punishable by imprisonment for not more than six months or a fine of not more than $200, or both. Violations of this order are also punishable by a civil fine of fine of up to $1,000.

MDHHS Director Robert Gordon, appointed to his position in Jan. 2019 by Whitmer, formerly held senior roles in the federal Office of Management and Budget, and the U.S. Department of Education under Barack Obama, former U.S. president. With that in mind, it is unclear what the Republican-led state Legislature will do in regards to Open Meetings Act laws.

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