Michigan Supreme Court invalidates governor’s emergency powers: What does it mean for community associations?

Condominium and homeowners associations in Michigan have been operating under various executive orders since March 10, 2020 in response to the COVID-19 pandemic. On October 2, 2020, in In re Certified Questions From United States Dist Court, W Dist of Michigan, S Div, Docket No. 161492 (Mich, October 2, 2020), the Michigan Supreme Court held that Governor Whitmer lacked the unilateral authority to continue the State of Emergency under the Emergency Powers of the Governor Act of 1945 (“EPGA”) and the Emergency Management Act of 1976 (“EMA”) after April 30, 2020 without legislative approval.
After the Michigan Supreme Court issued its opinion on October 2, 2020, the governor issued a statement, which provided in pertinent part:

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.

The governor’s statement left many Michiganders, including those in community associations, wondering whether the executive orders will be enforced until October 23, 2020.  Similarly, whether the executive orders cease to be effective on October 2nd or October 23rd, community associations will still need to deal with the COVID-19 pandemic.  Accordingly, this article will address 1) whether Governor Whitmer’s executive orders are still enforceable until October 23, 2020 and 2) whether there will be any significant changes for community associations that result from the absence of the governor’s executive orders.

Are Governor Whitmer’s Executive Orders still enforceable after October 2, 2020?

         The governor’s statement on the Michigan Supreme Court’s ruling created a great deal of confusion amongst Michiganders as it does not consider the difference between an opinion and a judgment or order of the Michigan Supreme Court. The Michigan Court Rules, specifically MCR 7.315[i], require 21 days to elapse before an order or judgment can be entered based on an opinion that is issued by the Michigan Supreme Court.  The governor’s statement appears to take the position that the executive orders remain in effect for all purposes until an order is entered on the October 2, 2020, opinion.  However, in interpreting a prior version of the Michigan Court Rules, which is similar to the current version, the Michigan Supreme Court held that an opinion operates as binding precedent on lower courts, even if a judgment or order has not yet been entered.  Specifically, the Michigan Supreme Court has held:

While it is true, as the Court of Appeals stated, that an order or judgment cannot become effective for execution or enforcement purposes until it is issued, GCR 1963, 866.3(d), it simply does not follow that an opinion of this Court is not effective as precedent until that same time. An opinion of this Court is not rendered meaningless because litigants involved in the controversy cannot begin execution or enforcement until issuance of an order or judgment. Further, this does not connote that an opinion is applicable to everyone but the litigants to that case. Rather, the opinion does apply to those litigants, and, whether or not an order or judgment issued pursuant to that opinion is enforced or executed between the parties, is an issue separate and distinct from when the opinion has precedential effect. This Court will not equate issuance of an order or judgment for execution or enforcement purposes, GCR 1963, 866.3(d), with the precedential effect of an opinion for guidance and authority, GCR 1963, 866.2.

Riley v Northland Geriatric Ctr, 425 Mich 668, 680–81; 391 NW2d 331, 336 (1986) (emphasis added). See also People v Mitchell, 428 Mich 364, 369–70; 408 NW2d 798, 801 (1987) (“An elemental tenet of our jurisprudence, stare decisis, provides that a decision of the majority of justices of this Court is binding upon lower courts.”)

As indicated above, a delay in entering an order or judgment would only impact the litigants to a case.  In the instant case, the Western District of Michigan will also need to make a ruling based on the Michigan Supreme Court’s answers to the certified questions.  However, as of October 2, 2020, all other lower courts in Michigan are bound by the Michigan Supreme Court’s opinion in deciding pending or future cases.  On October 4, 2020, Attorney General, Dana Nessel also issued a statement indicating that her office will not continue to enforce the executive orders through criminal prosecution.  As such, it is our opinion that Governor Whitmer’s statement is misleading to the extent that it was intended to indicate that the emergency declaration or executive orders retained the “force of law” and would be continued to be enforced by the lower courts in other court cases until October 23, 2020 since the Michigan Supreme Court has specifically issued an opinion stating that the judicial branch of Michigan government considers the exercise of such power to be in violation of the Michigan constitution.
On October 5, 2020, Governor Whitmer stated that she was filing a motion to stay the Michigan Supreme Court’s ruling until October 30, 2020 and to clarify the effective date of the October 2, 2020 ruling.  However,  the mere filing of the motion does not change the Court’s prior ruling, as any such much would need to be granted by the Michigan Supreme Court.  On October 12, 2020, the Michigan Supreme Court issued an order denying Governor Whitmer’s request for a stay.

What changes will community associations need to make to deal with the COVID-19 pandemic without the executive orders?

         The COVID-19 pandemic has created new civil and criminal liability concerns for Michigan condominium and homeowners associations.  While the Michigan Supreme Court’s ruling and the Attorney General’s October 4, 2020 statement appear to eliminate potential criminal liability concerns associated with the executive orders, it also eliminates some guidance on how community associations should be responding to COVID-19.  As will be outlined below, it is our opinion that community associations should largely “stay the course” in responding to COVID-19 and it is unlikely that other state agencies, counties and municipalities will make major changes in creating new rules to replace the executive orders.  Accordingly, community associations should still be aware of the following major areas of concern now that the executive orders are no longer in place:

A. Association Meetings

          Executive Orders 2020-176 and 2020-183 imposed limitations on the number of people that could attend indoor and outdoor gatherings.  On October 5, 2020, the Michigan Department of Health and Human Services enacted an emergency order that contained similar restrictions on gatherings, which was later rescinded, and replaced by a new order on October 9, 2020. If in-person meetings are held, they should be conducted in accordance with the emergency order and any applicable county requirements.  By way of example, on October 4, 2020, Ingham County enacted Emergency Order 2020-22 that imposed similar restrictions on gatherings as were contained in the executive orders.

In-person meetings still create an unnecessary risk as they increase the possibility that association members will transmit COVID-19 to each other.  Accordingly, for the time being, it is still advisable that condominium and homeowners associations hold virtual meetings, pursuant to MCL 450.2405. Community associations should also continue to track whether other state agencies, county governments or municipal governments have imposed new requirements as things continue to unfold.

B. Masks

           Executive Order 2020-153 stated that “[a]ny individual who leaves their home or place of residence must wear a face covering over their nose and mouth….When in any indoor public space.”  Given that Executive Order 2020-153 is now unenforceable, the Michigan Department of Health and Human Services enacted an order that contained similar restrictions restrictions related to masks. The Department of Health and Human Services Order provides in pertinent part:

5. Face covering requirement at gatherings.

(a) A person responsible for a business, government office, school, or other operation, or an agent of such person, must not allow indoor gatherings of any kind unless they require individuals in such gatherings (including employees) to wear a face covering, subject to the exceptions in section 6 of this order. For schools in Region 6, the wearing of face coverings is strongly recommended, but not required.

Section 1(f) of the order defines a gathering as “any occurrence where two or more persons from more than one household are present in a shared space.”

Michigan counties have also started imposing mask requirements under the Michigan Public Health Code.  On October 3, 2020, Oakland County issued Emergency Order 2020-12, which contained mask requirements similar to Executive Order 2020-153.  Similarly, Ingham County issued Emergency Order 2020-21 on October 4, 2020, which also requires masks and imposes criminal penalties for not wearing masks. Accordingly, community associations should continue to track whether other state agencies, county government or municipal governments have imposed new requirements related to masks, as it is unlikely that mask requirements will go away.

     Similarly, creating and enforcing rules that require masks may shield a community association from potential liability.  HB 6030, was recently enacted into law and provides liability protections for community associations that demonstrate compliance with federal, state and local law.

C. Recreational Facilities

           Executive Order 2020-184 imposed restrictions on recreational facilities and swimming pools in community associations. While the governor can no longer mandate requirements for recreational facilities and swimming pools without legislative approval under the EMA and EPGA, the Michigan Department of Health and Human services as imposed similar restrictions.  Specifically, their October 9, 2020 order provides in pertinent part:

3. Capacity restrictions. In addition to the attendance limitations imposed by section 2 of this order, the following gathering restrictions apply:

(a) Except in Region 6, a gathering at a retail store, library, or museum may not exceed 50% of total occupancy limit established by the State Fire Marshal or a local fire marshal.

(b) Gatherings at recreational sports and exercise facilities, such as gymnasiums, fitness centers, recreation centers, exercise studios, bowling centers, roller rinks, ice rinks, and trampoline parks are prohibited under any of the following circumstances:

(1) If they exceed 25% of the total occupancy limits established by the State Fire Marshal or a local fire marshal;

(2) If there is less than six feet of distance between each workout station.

(e) Gatherings at outdoor pools may not exceed 50% of bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code.

(f) Gatherings at indoor pools may not exceed 25% of bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code.

In addition to capacity requirements, the Michigan Department of Health and Human Services as presently imposed the following contact tracing requirements:

9. Contact Tracing.

(a) Gatherings are prohibited at the following facilities unless the facility maintains accurate records, including date and time of entry, names of patrons, and contact information, to aid with contact tracing, and denies entry for a gathering to any visitor who does not provide, at a minimum, their name and phone number:

(1) All businesses or operations that provide barbering, cosmetology services, body art services (including tattooing and body piercing), tanning services, massage services, or similar personal care services;

(2) Sports and entertainment facilities (except outdoor, unticketed sporting events), including arenas, cinemas, concert halls, performance venues, sporting venues, stadiums and theaters, as well as places of public amusement, such as amusement parks, arcades, bingo halls, bowling centers, skating rinks, and trampoline parks;

(3) Gymnasiums, fitness centers, recreation centers, exercise facilities, exercise studios, bowling centers, roller rinks, ice rinks, and like facilities.

In addition to the above requirements, we recommend that community associations still implement rules that track CDC guidance in order to avoid civil liability and to protect the health of the owners if they decide to open recreational facilities.  Our prior recommendations related to operating recreational facilities in community associations in the wake of COVID-19 can be found here.  Accordingly, we recommend continuing any rules that a community association previously enacted, but update the rules to comply with the above regulations, or any of further modifications to these regulations that may be  issued by other state agencies, counties or municipalities.

Conclusion

The decision in In re Certified Questions From United States Dist Court, W Dist of Michigan, S Div, Docket No. 161492 (Mich, October 2, 2020) has significantly limited Governor Whitmer’s authority to enact executive orders under the EPGA and EMA.  The Michigan Supreme Court’s ruling became binding precedent, which lower courts are required to follow as of October 2, 2020.

Governor Whitmer implemented more executive orders dealing with the COVID-19 pandemic than any other governor in the United States.  The sheer number of orders, and daily changes, were often difficult for community associations to track. While frequent change in the executive orders may have caused some confusion, the executive orders did provide some guidance on how condominium and homeowners associations should respond to COVID-19. Community associations should not abandon common sense in combatting COVID-19 simply because the executive orders are no longer in place.  Accordingly, even in the absence of the executive orders, we still recommend that Michigan community associations continue to do the following.

  1. Conduct virtual association meetings to minimize risk, unless prohibited by the governing documents.
  2. Create rules that require owners to wear masks in common areas.
  3. Create rules related to the use of recreational facilities if the community association has made the decision to                reopen recreational facilities.
  4. Comply with the new orders issued by the Michigan Department of Health and Human Services.

Given that a new framework, based upon rules imposed by different state agencies, counties and municipalities, will replace the governor’s executive orders, community associations should contact their attorney to review and update any rules that were based on the governor’s executive orders to ensure that the most current legal requirements are being followed.

Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He is also a member of the Community Associations Institute’s (“CAI”) National Board of Trustees. Mr. Hirzel has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2020, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine from 2018-2020, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or [email protected]

[i] MCR 7.315 provides in pertinent part:

(C) Orders or Judgments Pursuant to Opinions.

(1) Entry. The clerk shall enter an order or judgment pursuant to an opinion as of the date the opinion is filed with the clerk.

(2) Routine Issuance.

(a) If a motion for rehearing is not timely filed under MCR 7.311(F)(1), the clerk shall send a certified copy of the order or judgment to the Court of Appeals with its file, and to the trial court or tribunal that tried the case with its record, not less than 21 days or more than 28 days after entry of the order or judgment.

(3) Exceptional Issuance. The Court may direct the clerk to dispense with the time requirement of subrule (C)(2)(a) and issue the order or judgment when its opinion is filed. An order or judgment issued under this subrule does not preclude the filing of a motion for rehearing, but the filing of a motion does not stay execution or enforcement.

(4) Execution or Enforcement. Unless otherwise ordered by the Court, an order or judgment is effective when it is issued under subrule (C)(2)(a) or (b) or (C)(3), and enforcement is to be obtained in the trial court.

(D) Entry, Issuance, Execution, and Enforcement of Other Orders and Judgments. An order or judgment, other than those by opinion under subrule (C), is entered on the date of filing. Unless otherwise stated, an order or judgment is effective the date it is entered. The clerk must promptly send a copy or provide electronic notification of the order or judgment to each party, the Court of Appeals, and the trial court or tribunal….