Michigan Has Officially Jumped Into The Land Where There Is No Law.

The government of the State of Michigan seems to have made it official: laws don’t matter any more. Do what they say, or else.

Michigan, as you remember is the home of Karl Manke, the 77 year old barber who defied an order from the governor, convinced a judge not to issue a “cease and desist” order for him to stop cutting hair, and then in retaliation, the State suspended his license.

All of this was too much for some of the people in and out of the state. A group called the Michigan Conservative Coalition organized a protest in the Michigan capital of Lansing called “Operation Haircut,” where barbers and stylists from in and out of the state cut hair for free.

The event with about 350 people was peaceful. However, the police decided to issue citations to seven people for cutting hair after being ordered to stop.

The citations were for “disorderly conduct” which the seven cited people took, put in their pockets and returned to cutting hair.

To us, there is a problem though.

According to the City of Lansing City Code, disturbing the peace is found in Section 664. While the section has several subsections such as public intoxication, illegal activities in buildings such as gambling, there is only one subsection that could apply:

664.01. – Disorderly; fighting; loud and boisterous conduct, breach of the peace.

No person shall:

(a) Create or engage in any disturbance or fight in a public place;
(b) Disturb the public peace and quiet by loud or boisterous conduct; or
(c) Utter profane, obscene or offensive language directed at or in the presence of another person, which language causes or would tend to cause an immediate breach of the peace. Violation of this subsection (c) shall be a municipal civil infraction.

Certainly there is nothing there that says cutting hair for free is disturbing the peace, and certainly there is nothing there that says “defying the governor’s overreaching orders” is disturbing the peace.

As the Michigan State police were on the scene of these radical trimmers of locks and tresses, certainly the State of Michigan Statutes would give the justification for the citations.

The Michigan Statutes on disorderly conduct can be found in section 750.167.

750.167 Disorderly person; subsequent violations by person convicted of refusing or neglecting to support family; breastfeeding or expressing breast milk exempt.

Sec. 167.
(1) A person is a disorderly person if the person is any of the following:
(a) A person of sufficient ability who refuses or neglects to support his or her family.
(b) A common prostitute.
(c) A window peeper.
(d) A person who engages in an illegal occupation or business.
(e) A person who is intoxicated in a public place and who is either endangering directly the safety of another person or of property or is acting in a manner that causes a public disturbance.
(f) A person who is engaged in indecent or obscene conduct in a public place.
(g) A vagrant.
(h) A person found begging in a public place.
(i) A person found loitering in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged, or allowed.
(j) A person who knowingly loiters in or about a place where an illegal occupation or business is being conducted.
(k) A person who loiters in or about a police station, police headquarters building, county jail, hospital, court building, or other public building or place for the purpose of soliciting employment of legal services or the services of sureties upon criminal recognizances.
(l) A person who is found jostling or roughly crowding people unnecessarily in a public place.
(2) If a person who has been convicted of refusing or neglecting to support his or her family under this section is charged with subsequent violations within a period of 2 years, that person shall be prosecuted as a second offender or third and subsequent offender as provided in section 168, if the family of that person is then receiving public relief or support.
(3) A mother’s breastfeeding of a child or expressing breast milk does not constitute indecent or obscene conduct under subsection (1) regardless of whether or not her areola or nipple is visible during or incidental to the breastfeeding or expressing of breast milk.

Once again, how does anything in that section apply to people peacefully cutting hair for free as a form of protest?

We can’t find it.

Oddly, in case you chose to skip over the boring law, there is this:

(1) A person is a disorderly person if the person is any of the following:
(a) A person of sufficient ability who refuses or neglects to support his or her family. (emphasis ours)

We read that to mean a couple of things.

First, even though the people were cutting hair for free, they were certainly demonstrating that they had “sufficient ability” to support their families. Secondly, Governor Whitmer’s orders were preventing them from supporting their families. That’s what the protest was about; the right of people to work and provide for their families.

Arguably, Whitmer’s overreaching and overly broad orders forced people into positions where they were breaking the law and when they protested to end what they feel was oppression from the government, the police issued citations that don’t meet any legal criteria that we can find.

What troubles us is not just the lack of law that the police seemed to be following, it was the amount of the fine. People that were cited were given citations that were for $1000.00. The State statute fine for “disorderly conduct” is no more than $500.00 and the City of Lansing’s fine is no more than $250.00.

Where did the $1000.00 amount of the fine come from?

On April 2, 2020, Robert Gordon, Director of the Michigan Department of Health and Human Services submitted a new set of rules – specifically new fines – which would take affect during the COVID-19 pandemic in Michigan.

The Michigan Department of Health and Human Services has authority to create a schedule of civil monetary penalties under section 2262 of the public health code, 1978 PA 368, MCL 333.2262(1), and would, under normal circumstances, follow the standard rulemaking process, including the notice and participation procedures required by sections 41 and 42 provided for in the Michigan Administrative Procedures Act of 1969 (APA), 1969 PA 306, MCL 24.241 and 24.242. Here, if the standard rulemaking process were followed, monetary civil penalties would not go into effect until well after they could provide useful deterrent measures. The resulting delay would result in less compliance with the Emergency Order, contribute to the spread of COVID-19, and exacerbate the current state of emergency. I therefore find that preservation of the public health, safety, and welfare require promulgation of emergency rules under section 48 of the APA, MCL 24.248, to create a schedule of civil monetary penalties under the Director’s authority in section 2262 of the public health code, 1978 PA 368, MCL 333.2262(1).

Rule to Enforce Emergency Order Regarding Executive Orders 2020-11, 2020-20, and 2020-21:

Rule 1. Violations and penalty.
(1) A violation of the April 1, 2020 Emergency Order is subject to a penalty of up to $1,000 for each violation or day that a violation continues.
(2) For a person, as that term is defined in section 1106 of the public health code, 1978 PA 368, MCL 333.1106, regulated by a licensing agency, violations must also be referred to the relevant licensing agencies for additional enforcement action as determined by the licensing agency.
(3) No place of religious worship, when used for religious worship, is subject to penalty under subrules (1) or (2) of this rule. (emphasis ours)

Governor Whitmer then agreed to the rules, signing and writing:

Pursuant to Section 48(1) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.248(1), I hereby concur in the finding of the Department of Health and Human Services that circumstances creating an emergency have occurred and that preservation of the public health, safety, and welfare requires promulgation of the above rule.

In her concurrence, Whitmer cites Michigan Compiled Laws (MCL) 24.248(1):

24.248 Emergency rules; tolling effective date; scheduling substance as controlled substance; numbering and compilation; “administrator” defined.

Sec. 48.
(1) If an agency finds that preservation of the public health, safety, or welfare requires promulgation of an emergency rule without following the notice and participation procedures required by sections 41 and 42 and states in the rule the agency’s reasons for that finding, and the governor concurs in the finding of emergency, the agency may dispense with all or part of the procedures and file in the office of the secretary of state the copies prescribed by section 46 endorsed as an emergency rule, to 3 of which copies must be attached the certificates prescribed by section 45 and the governor’s certificate concurring in the finding of emergency. The emergency rule is effective on filing and remains in effect until a date fixed in the rule or 6 months after the date of its filing, whichever is earlier. The rule may be extended once for not more than 6 months by the filing of a governor’s certificate of the need for the extension with the office of the secretary of state before expiration of the emergency rule. Any period or extension during which an emergency rule is effective under this subsection is tolled from the date that the environmental rules review committee makes a determination as to a similar rule under section 66(5)(c) until the date a public hearing is held on the rule under section 66(7).

The issue is then while it appears Michigan’s Department of Health and Human Services has the ability to make new rules during an pandemic, does the agency have the right to make the penalties for violations of those rules?

We think not.

The rules that Whitmer made through her Executive Orders were slotted into existing laws. In other words, Whitmer was replacing sections of the law with new sections, but the sections themselves still carried the same penalties for non-compliance.

For example, as we said the other day, when Karl Manke’s license was suspended, there was no complaint against him as required by law. However, working with a suspended license as Menke did is a fine of $500.00 a day. Yet Menke was fined $1000.00 a day because Gordon and Whitmer said “a thousand bucks sounds about right.” Despite Gordon’s assertion that higher fines will bring more compliance, that is always doubtful and there is no data that we can find that would support that conclusion.

The Michigan Legislature gave the Executive Branch powers to deal with emergencies such as the COVID-19 pandemic allowing regulations to be put in place to help stop the spread of the virus. What the Michigan Legislature did not grant to the Executive branch the ability to change laws and penalties whole cloth.

That’s what happened here.

The unelected and therefore unaccountable Gordon came up with a number for the penalty and Whitmer signed it. Whitmer has stated that her Executive Orders are based on the “best available science” yet there is no science to back up hiking the penalty fees will result in more compliance. If $1000 means “more compliance,” why not $5000? Or $10,000? Or say, $50,000 for each violation? If increased fines means more compliance raise them to the moon. Heck, seize the businesses and the buildings in which they are located.

That’ll stop those miscreants who want to earn a living and feed their families.

Take everything they own and throw them out on the streets because they dared to challenge a governor who is drunk on power.

We are very happy that yesterday’s protest was peaceful. We would hate to see something like that become violent. We are less than thrilled with the police who were giving out citations because “that’s what they were told to do.” (Even in the United States of America, the Nuremberg Defense is alive and well.)

It is such a dichotomy when you have people that are working, feeding their families, and paying bills telling others they cannot work, cannot feed their families and therefore can’t pay bills either.

There are times when we really think the “non-essential workers” are those inside of City Halls and capital buildings.

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