Genesee County prosecutor explains legal basis of new coronavirus orders

Within the last week, a Michigan Supreme Court decision sparked countless questions over a statewide mask mandate. Then, the state health department issued its own order.
Published: Oct. 6, 2020 at 5:31 PM EDT
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FLINT, Mich. (WJRT) - (10/6/2020) - Michigan’s Supreme Court decision revoking Governor Gretchen Whitmer’s emergency powers has sparked countless questions over a statewide mask mandate.

The high court ruled Friday the Governor did not have the power to issue many of her health orders, including a mask requirement.

Monday, the state health department stepped in, issuing its own order and ratcheting up penalties.

It’s left many businesses wondering what rules to follow.

The Genesee County Prosecutor acknowledges the state health department’s orders are very similar to what the Governor had issued over the last several months; but he said, it’s legal under a different law -- the public health code.

“The public health officer or the DHHS director, if you will, has the authority to, when he believes or she believes there’s a public emergency, a public health emergency, they can then enter orders accordingly,” Prosecutor David Leyton said.

State lawmakers passed that bill after the Spanish Flu of 1918 and the Governor at the time signed it into law.

And Leyton said with their order based on law, even though MDHHS’s Director is an appointee of Governor Gretchen Whitmer, MDHHS’s orders issued Monday are constitutional.

Under this same law, Leyton said county public health officers have the power to make similar orders.

So, could the Governor have had the MDHHS Director issue these orders from the start, rather than creating executive orders? And if so, would it have made this public health crisis less politically-charged?

“The DHHS director is an appointee of the Governor. So it’s very difficult to say if this is political or not political,” Leyton said. “I try to not get involved in that. I’m somebody who believes in policy over party. And I just want to do what’s right for the public. I deem this a public health emergency. We need to make sure people are doing the right thing, so they don’t contract the virus.”

Leyton added as long as the county or state public health officer says there’s a public health emergency, the orders remain in effect.

Those orders include masking up for any gathering and at all schools, except for those in Region-6.

Gatherings remain limited. Indoor venues with fixed seats can have 20-percent their normal capacity. And those without fixed seats, can have 20-people per 1,000 square feet.

For outdoor venues, up to 30-percent capacity is allowed.

Bars must close indoor areas. Only table service is allowed, which must be 6-feet apart.

Also, athletes must wear a mask, except for swimming.

The Prosecutor is issuing guidance to police agencies across Genesee County about how to enforce the state health department’s orders.

He said the focus will remain on educating, rather than punishing violators. But, if you violate the orders, you could be facing a $1,000 fine.

It is double what the fine was under the Governor’s executive orders.

Prosecutor Leyton said a thousand dollars is the distinct penalty for violating the public health code.

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