Governor Gretchen Whitmer’s declaration of a state of emergency by her March 10, 2020 Executive Order 2020-4 to mitigate the risk posed by the novel COVID-19 coronavirus has impacted the practice of law in ways never seen before. Following suit, the Michigan Supreme Court, on March 15, 2020, began issuing several Administrative Orders, including those authorizing trial courts to implement emergency procedures in court facilities, limiting activities/assemblages in court facilities, extending deadlines for commencement of actions, and suspending filing deadlines in the Michigan Supreme Court and Court of Appeals. These emergency procedures are, of course, balanced by the Court’s duty to provide essential court services, protect public safety, and remain accessible to the public. The Court observed that “trial courts should be mindful that taking reasonable steps to protect the public is more important than strict adherence to normal operating procedures or time guidelines standards” a rare statement of the court’s flexibility on the time guidelines standards.
One of the most critical Administrative Orders impacting civil matters is its Order No. 2020-3 which extends deadlines for case initiation and the filing of initial responsive pleadings in civil (and probate) matters during the state of emergency. That means any deadlines for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of pleadings, for any day that falls during the state of emergency declared by the Governor related to COVID-19, is not included for purposes of computation of time pursuant to MCR 1.108(1).
While the Michigan Supreme Court is often tasked with review and adoption of proposed changes to court rules, rules of evidence, and other administrative matters, the Administrative Order amendments to statutory prerequisites set aside the usual powers assigned to the Michigan Legislature to enact new laws, amend or repeal existing laws. The recent Administrative Orders appear to be some of the most aggressive and far-reaching orders taken by the Michigan Supreme Court for at least the last 50 years.
Historically, since at least 1968, the Michigan Supreme Court has not issued any Administrative Order regarding emergency procedures in court facilities or limiting the practice of law in the manner we are seeing today. The only other time the Court has discussed emergency plans is in a 1994-6 Administrative Order pertaining to reductions in trial court budgets by funding units. In that Order, the chief judge was required to provide the State Court Administrative Office Regional Administrator with an emergency services plan that outlines which services are essential and must be provided by the court. The Order went on to state that the emergency service plan should consider services which at a minimum will preserve rights guaranteed by the Michigan and U.S. Constitutions, and those guaranteed by statute. This language is similar to the goals set forth in the recent 2020 Administrative Orders.
So, what authority allows the Michigan Supreme Court to wield this power during these times?
The Michigan Supreme Court has general superintending control over all state courts pursuant to the 1963 Constitution of the State of Michigan, Article VI, Section 4. That superintending power is strengthened by the Michigan Emergency Management Act MCL 30.401, et seq.). This Act was created “to provide planning, mitigation, response, and recovery from natural and human-made disaster within and outside the State of Michigan; to create the Michigan emergency management advisory council and prescribe its powers and duties; to prescribe powers and duties of certain state and local agencies and officials; to prescribe immunities and liabilities; to provide for the acceptance of gifts; and to repeal acts and parts of acts”. Under the Act, definitions helpful to understanding how the act applies to the COVID-19 coronavirus pandemic and the current state of emergency are as follows:
- “emergency” means any occasion or instance in which the governor determines state assistance is needed to supplement local efforts and capabilities to save lives, protect property and the public health and safety, or to lessen or avert the threat of a catastrophe in any part of the state. MCL 30.402(h);
- A “state of emergency” means an executive order or proclamation that activates the emergency response and recovery aspects of the state, local, and interjurisdictional emergency operations plans applicable to the counties or municipalities affected. MCL 30.402(q).
Section 8 of the Act (MCL 30.408) requires that upon the declaration of a state of disaster or a state of emergency by the Governor, each state agency shall cooperate to the fullest possible extent with the director in the performance of the services that it is suited to perform. The judicial branch of the state is considered a department of state government and the Chief Justice of the Michigan Supreme Court is considered the director of that department. MCL 30.408(2).
The judicial branch of the state is also considered a department of state government as set forth in Section 7a of the Act. This Section requires the judicial branch to establish an emergency management division for purposes of coordinating within the state of emergency management activities, or county, municipal, state, and federal governments. The division may then do any activities necessary, incidental, or appropriate for implementation of the Act.
As of April 1, 2020, Governor Whitmer has now expanded the state of emergency and included a state of disaster declaration by way of Executive Order 2020-33. Effective April 9, 2020, Governor Whitmer signed Executive Order 2020-42 which suspends activities that are not necessary to sustain or protect life through April 30, 2020. The Supreme Court’s Administrative Orders likewise extended their operation past the original expiration date of April 3, 2020. The Supreme Court’s most recent Administrative Order 2020-7 extends previous Administrative Orders 2020-1, 2020-2, and 2020-6 until April 30, 2020.
The extension of orders limiting the functions of the trial courts will undoubtedly create a logjam for trial courts’ docket management. To help address some of the slow down created by the restrictions put in place by Administrative orders 2020-1 and 2020-2, on April 7, 2020, the Michigan Supreme Court has issued Administrative Order 2020-6 which expands the authority for judicial officers to conduct proceedings remotely with certain conditions in mind which include: procedures must be consistent with a party’s Constitutional rights, procedure must enable confidential communication between a party and its counsel, access to the public to the proceedings must be provided during or immediately after, and the procedure must enable a recording sufficient to enable a transcript. This Order allows trial courts and judges to be innovative in ways to conduct court business remotely, so it may be that different trial courts and different judges have different procedures for remote proceedings. Michigan Trial Courts Virtual Courtroom Standards and Guidelines have been issued by the State Court Administrative Office for further guidance. The State Court Administrative Office also released Courts and COVID-19 – Building Capacity to provide guidance to courts to build capacity for an eventual return to full operations. It is anticipated that the Supreme Court and the State Court Administrative Office will continue to focus on streamlining procedures for safe and effective practice of law by expansion of the use of remote proceedings.
For an up-to-date look at the judicial branch response to the COVID-19 coronavirus, please see: Judicial Branch Response to COVID-19 – Updates. How the Michigan Supreme Court and the trial courts respond in the wake of COVID-19 will surely impact the practice of law for years to come.
For these reasons, and specifically during these trying and uncertain times, as lawyers and judges, we should be mindful of the Professionalism Principles for Lawyers and Judges (proposed to the Michigan Supreme Court as of March 2020). A link to the Proposed Administrative Order can be found here. Civility is essential in our profession as we practice law under the current state of affairs and as we adjust to the new practice of law thereafter.