Social distance

An "Observe Social Distance" sign sits in a park in Detroit. 

(The Center Square) – When Gov. Gretchen Whitmer issued COVID-19 executive orders to slow the spread of COVID-19, it resulted in thousands of fines and misdemeanor penalties, many which two attorneys argue should be tossed.

The Ann Arbor Police Department issued one COVID-19 ticket, while the Grand Rapids Police department gave none as of Aug. 3, according to documents obtained through the Freedom of Information Act (FOIA).

But in Detroit, numbers were higher.

From April 4 through June 1, FOIA documents show Detroit gave 7,551 warnings, 2,681 citations, and enforced the orders on 41 parties and 47 businesses.

Wayne County prosecutors and State Solicitor General Fadwa Hammoud’s office couldn’t say whether these tickets were valid. The Michigan Supreme Court on Oct. 2 ruled the foundation of Whitmer’s executive orders unlawful and threw out any executive orders after April 30, saying they “lack any basis under Michigan law.”

“Obviously, if those 2,600 people went in and pled, they should all be going back to court to have those set-aside,” Attorney David A. Kallman said. “Anybody who pled guilty or admitted responsibility and paid a fine should be going back to court, asking for their record to be cleared and get their money back.”

Matt Wiese, the Marquette County prosecutor and the president of the Prosecutor’s Attorney Association of Michigan, said while Whitmer’s orders were valid, they were enforcing violations with “the number one goal being compliance and not necessarily criminal charges.”

After the orders were struck down but some revived under the state health department, violations were handled administratively, meaning by government entities that issue licenses and can fine businesses.

Wiese said most county prosecutors didn’t pursue those violations as criminal charges but instead handled them with administrative sanctions.

He said if a citation is contested, the investigation must be brought to a prosecutor to authorize or drop formal charges. For several of these cases, prosecutors intervened to get compliance, and once achieved, didn’t pursue criminal charges.

“The whole goal is to get compliance,” Wiese said.

In November 2020, attorney Nicholas Somberg had taken 16 COVID-19 ticket cases and gotten all charges and fines dropped, ranging from people allegedly fixing a vehicle in their backyard in Madison Heights to a DJ playing music in Hart Plaza.

“There are thousands of people with criminal records now where the governor didn’t have authority to do it in the first place, but now they’re stuck with a record,” Somberg said. “Mostly, people probably don’t know any better, they don’t want to deal with the hassle, or they can’t afford an attorney.”

Somberg argued the executive orders are “unenforceable” because there are exceptions and they are criminal cases with a higher burden of proof. 

“So they would have to prove beyond a reasonable doubt that somebody was within six feet of another person,” Somberg said.

“If you press the prosecutors and set these matters for trial, they don’t want to go to trial,” he said. “They know that this isn’t enforceable and they have a really weak case.”

Kallman told The Center Square that, so far, they’ve successfully fought every COVID-19 ticket case by demanding a jury trial for a misdemeanor charge.

Last week, the owner of Dearborn-based Donutville USA pled a misdemeanor charge down to a $20 civil fine, Kallman said.

Gary Marshall, owner of FitStop24 in Niles and Dowagiac, reopened in June – three months before Whitmer allowed gyms to open, and was originally charged with 30 misdemeanors and $18,000 fines before all charges were dropped.

Michigan Attorney General Dana Nessel’s office said in October they would no longer criminally prosecute cases stemming from the violation of COVID-19 executive orders.

Staff Reporter

Scott McClallen is a staff writer covering Michigan and Minnesota for The Center Square. A graduate of Hillsdale College, his work has appeared on Forbes.com and FEE.org. Previously, he worked as a financial analyst at Pepsi.