On June 8th Michigan’s Court of Claims deemed a portion of Whitmer’s June 5th order establishing coronavirus safety guidelines as a prerequisite to the opening of businesses "null and void.”

The Court's ruling is in response to a lawsuit filed by the Mackinac Center Legal Foundation on behalf of the Associated Builders and Contractors of Michigan and Grand Rapids-based DJ’s Landscape Management.

On June 8th, the Circuit Court ruled that the MIOSHA penalties as applied to the emergency powers are invalid, as Gov. Whitmer does not have that authority under the Emergency Powers of Governor Act or the Emergency Management Act. Those acts limit violations to misdemeanors.

This is the first time a court has ruled that one of Whitmer’s 115 executive orders (EO”s) was illegal, might the dam be broke?  As a side note, it appears that Whitmer has issued more executive orders during her emergency declaration than any other Governor in the country, certainly in the Midwest.

According to the court, the illegality comes from the penalty in which she was enforcing.  Previous versions of her EO’s included a penalty of 90 days in jail or up to a $500 fine.  That is the maximum penalty for conviction of a misdemeanor in Michigan. Whitmer had increased the penalty in another EO for any business that do not follow her orders for re-opening to be subject to a three-year felony and a fine of up to $70,000 per occurrence. In addition, if the state does not seek jail time for an offense the standard of proof is lowered from "beyond a reasonable doubt".  She stated the infraction falls “within the meaning of the Michigan Occupational Safety and Health Act”.

That act states:

An employer who willfully or repeatedly violates (the MIOSHA) act, an order issued pursuant to this act, or a rule or standard promulgated under this act may be assessed a civil penalty of not more than $70,000.00 for each violation, but not less than $5,000.00 for each willful violation

Michigan Court of Claims Judge Christopher M. Murray ruled that penalties assessed via her emergency EO’s are limited to a misdemeanor which carries a penalty of up to 90 days in jail or a $500 fine. He did go on to state that if the infractions are believed to be a violation of the Michigan Occupational Safety and Health Act, those penalties would have to be issued separately under that law.

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