As more businesses announce new policies on vaccinations and masks, business owners have to decide whether to keep a mandate in place and how to enforce it. For some, a relaxation on mask recommendations is, as Bay City commissioner Kerice Basmadjiam says, “a light at the end of the tunnel.” But Lance Gable, a law professor at Wayne State University, says it could be problematic. “If everyone just stops wearing masks and just stops taking precautions, including people who are unvaccinated, that’s going to result in a lot more spread of the disease,” Gable said. The problem is the unknown. “A lot of people now are going to be going around without masks and you’re not going to be able to tell who’s been vaccinated and who hasn’t been,” Gable said. But are separate businesses and entities allowed to require proof of vaccination? “They certainly could request that information, but if a person refuses, there’s nothing the business can necessarily do to force them. You can’t force someone to divulge their private medical information,” Gable said. “It’s not only going to be confusing, but I think it’s going to be unsettling for a lot of people,” Gable said.

Marilyn Kelly, Board of Governors chair, is profiled in a story by Detroit Legal News Editor-in-Chief Tom Kirvan. “When Marilyn Kelly retired from the state Supreme Court nine years ago, most political observers figured it would be but a brief respite from the world of public service. For that, we should all be thankful, as it was only two years before Kelly ran for elective office again, winning a seat in the November 2014 election on the Board of Governors at Wayne State University, where she earned her law degree with honors. Kelly’s return to the campaign trail was rooted in her “deep commitment to Wayne State and an ardent desire to help it accomplish its mission to provide an excellent education for its students and better serve the community,” she wrote in announcing her candidacy. Last month, Kelly was unanimously chosen to serve as chair of the Wayne State Board of Governors, hoping to usher in a new era of cooperation and collegiality, much like she did when she served as chief justice of Michigan’s top court. “The start of 2021 is the perfect time to reflect on the past and frame intentions for the future,” Kelly said after she was chosen chair. “To that end, I’ve consulted in recent weeks with every member of the Board of Governors. Each of us has pledged to renew our efforts to work together in the best interests of this great university. Her ties, of course, to her legal alma mater are strong. She is a past recipient of the University’s Outstanding Alumni Award, and received an honorary doctorate from WSU, where she also has been named its Distinguished Jurist in Residence. She has served as co-chair of the law school’s capital campaign and also established an endowed scholarship for law school students “who are dedicated to public service.”

Several companies have now made public their efforts to get workers vaccinated, including offering one-time bonuses and other financial incentives for employees who opt to get their shot. “Companies do have a lot of leeway in setting their own policies as to whether or not employees are going to have to receive the vaccine, but how the companies go about doing it can matter from a legal perspective," said Lance Gable, an associate professor at Wayne State Law School. It's a scenario not totally unfamiliar, Gable noted, as certain wellness incentives have been challenged in the past on the basis of discrimination. But the unique rollout of the COVID vaccine poses some never-before-seen problems too, he said. “There are separate issues about whether that is different if the vaccine has only been approved under Emergency Use Authorization. A mandatory vaccination requirement for a COVID vaccine could be permissible under federal law but only if employers put in place potential exceptions and accommodations," said Gable, citing EEOC guidance. In the EEOC's most recent guidance on wellness incentives, Gable said, it notes that any gifts or incentives companies offer should be modest, like a small gift card, lunch, or the cost of a ride, for example. Gable believes additional guidance will likely come out as the vaccine rollout continues.

Spotlight on the News interviewed two Michigan legal experts about the second Donald J. Trump presidential impeachment trial. Guests included Professor Richard Primus of the University of Michigan Law School and Professor Jonathan Weinberg of Wayne State University Law School. Primus and Weinberg looked at the important constitutional issues and politics facing the U.S. Senate jurors who will judge this historic trial.

As the U.S. Senate takes up the second impeachment trial of former President Donald Trump, there are a lot of questions about the process and legitimacy of trying someone who is no longer in office, including what the point is and how impeachment works. The House has passed an article of impeachment, charging him with “incitement of insurrection” in connection with the Jan. 6 Capitol riot, and now the process turns to the Senate. The Conversation has published several articles from scholars explaining aspects of the situation, as well as describing more generally what the purpose of impeachment was for the founders when they wrote the Constitution. This is a selection of excerpts from those articles. What happens if Trump is convicted? Though Trump can no longer be removed from office, he may still face consequences. Kirsten Carlson, a law professor at Wayne State University, explains that there is an additional step: “The Senate also has the power to disqualify a public official from holding public office in the future. If the person is convicted …, only then can senators vote on whether to permanently disqualify that person from ever again holding federal office. … A simple majority vote is all that’s required then.”

Noah Hall, a professor of law at Wayne State University, served as special assistant attorney general for the initial investigation of state officials regarding the water crisis. He said he felt the investigation he was part of had made promising progress in court, so when Nessel’s team announced they would shut down existing cases and start anew, he was frustrated and skeptical. But now, he says, he knows he was wrong. “It looks today like my skepticism was not justified and Attorney General Nessel came through on what she promised, which was, when she shut down our investigation and terminated us — myself included — she really was building back a better investigation that was going to do more work and go even further with developing charges. And it looks like that’s exactly what’s happened over the past two years,” Hall said. Snyder faces two misdemeanor charges of willful neglect of duty, for which he has pleaded not guilty. But other former officials face more serious charges, including former Michigan Department of Health and Human Services director Nick Lyon and the state’s former Chief Medical Officer Dr. Eden Wells, who have both been charged with nine felony counts of involuntary manslaughter. Hall says these new charges likely draw on decisions the Snyder Administration made back in 2012 and 2013, which set in motion the changes in Flint’s water supply that led to use of the Flint River with a lack of corrosion control. Some critics of the recent charges argue that government leaders and public servants, due to the nature of their jobs, should be permitted some benefit of the doubt, as they may have been using their best judgment to make decisions with the information that was available to them at the time. But Hall says that’s not what he thinks happened in the Flint water crisis, based on his knowledge from the initial investigation. “This was not a simple case of government officials doing the best they could and making a mistake. Quite the opposite,” he said. “These were government officials who intended to advance an agenda, and in advancing that agenda, threatened and ultimately harmed human life.”

Twitter and Facebook suspended the social media accounts of President Donald Trump last week over concerns his messages could incite further violence like the siege on the U.S. Capitol. The president and his allies quickly accused the platforms of silencing free speech. A law expert said the First Amendment doesn’t protect Trump. "In terms of whether they have the power to tell President Trump, ‘sorry we think you've broken our rules, you're booted off.’ They absolutely have the power to do that," said Jonathan Weinberg, professor and associate dean of research at Wayne State University Law School. He said Twitter is well within its legal right to ban Trump from its platform. The same goes for Amazon and others who essentially shut down Parler. "It gets to choose who it does business with and who it doesn't," Weinberg said. He said these actions do not violate anyone's First Amendment rights. "What the law says about your First Amendment rights run against governments,” he said. “They don't run against private companies." Weinberg said in a twist of irony, it was Trump and Republicans who got rid of net neutrality. Weinberg said net neutrality was designed to give people more rights to prevent being silenced by powerful media companies. "The moment President Trump got into office, the Republicans swept that all away,” he said. “They said, 'that's crazy. That's awful. That's communism. Government shouldn't be telling private companies what to do.'"

Mark Satta, assistant professor of philosophy, wrote an article for The Conversation offering perspective on the term president-elect. “On Jan. 20, Joe Biden will be sworn in as president of the United States. Until then, he is president-elect of the United States. But what exactly does it mean to be president-elect of the United States? As a lawyer and philosopher who studies word meaning, I have researched the meaning and history of the term “president-elect” using publicly available resources like the Corpus of Historical American English – a searchable database of over 400 million words of historical American English text. I’ve also used Founders Online, which makes freely available many documents written by the nation’s founders. “President-elect” is not a term that is legally defined in U.S. law. Rather, the term’s meaning has developed over time through its use by the public. Its use can be traced all the way back to George Washington.”  

Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for the Conversation.” As the world reacts to the Jan. 6 armed attack on the U.S. Capitol encouraged by President Donald Trump, many Americans are wondering what happens next. Members of Congress, high-level officials and even major corporations and business groups have called for Trump’s removal from office. Prominent elected and appointed officials appear to have already sidelined Trump informally. Vice President Mike Pence was reportedly the highest-level official to review the decision to call out the D.C. National Guard to respond to the assault on the Capitol. Informal actions like this may continue, but political leaders are considering more formal options as well. They have two ways to handle it: impeachment and the 25th Amendment.”

As the nation inches closer to a coronavirus vaccine, many businesses are wondering if they can mandate its employees to get vaccinated. Legal experts across the state have already begun to weigh in on the matter. “Employers have quite a lot of authority in requiring something like a vaccination for their employees,” Lance Gable, an associate law professor at Wayne State, said. “It’s especially true if the vaccine is likely to create a safe and healthy work environment.” Gable said we often see vaccinate mandates for those working in health care, but other industries have also set such requirements when it comes to getting vaccinations like the flu shot. In such cases, there are exemptions spelled out by the Equal Employment Opportunity Commission. “Employers have to allow for exceptions if people have either a disability, which would be covered under the Americans with Disabilities Act, or if someone has a strongly-held religious objection, (then) there are some other civil rights protections that allow them to get an exemption from a vaccine requirement on that basis,” Gable said. Gable said it’s yet to be said whether these same exemptions will apply to the COVID-19 vaccine, but it’s a matter many hope the EEOC will clarify before the vaccine is made available.

For many Muslims, the real issue behind the travel restrictions is Islamophobia. Khaled Beydoun, a law professor at Wayne State University, warns against “only understanding Islamophobia through the Muslim ban” and remains skeptical about just how much Biden will do to root out systemic Islamophobia. “The Biden administration won’t engage in the same kind of Islamophobia as Trump does” but we may see a continuance of bombing countries like Yemen, Afghanistan and Pakistan, as well as sweeping domestic surveillance programs that target Muslims.

Wayne State University professor Robert Sedler, an expert in constitutional law, said while Elizabeth Welch's election to the Michigan Supreme Court means there are more justices nominated by Democrats than Republicans, partisanship doesn't always determine how justices vote. He noted rulings where GOP-nominated justices David Viviano and Elizabeth Clement have sided with their Democratic-nominated colleagues. A notable exception, Sedler said, was the October ruling in which the court decided that a 1945 law that Gov. Gretchen Whitmer relied on for her emergency orders to combat COVID-19 was unconstitutional. The four GOP-nominated justices all ruled to void the law, sparking anger from Democrats. "It was not typical of the decisions coming from the court," Sedler said. "The court acted in a very partisan way." Sedler said while the court and the elections for justices are officially nonpartisan, he believes members keep their political support in mind. "You don't forget who brought you to the dance," he said.

In a criminal justice system centered around the plea bargain, the Sixth Amendment’s Confrontation Clause should apply to plea bargains as well as trials, according to a forthcoming essay in the Columbia Law Review. “A defendant’s trial rights come bundled—he must take them all, by going to trial, or leave them all, by pleading guilty,” wrote William Ortman, an assistant professor at the Wayne State University School of Law. The Confrontation Clause of the Sixth Amendment grants defendants the right to question witnesses testifying against them, but the clause has only been interpreted to apply to defendants who proceed to a trial. In his paper, titled Confrontation in the Age of Plea Bargaining, Ortman argued this is severely restricting in the United States, where only 5 percent of cases end up going to trial. Some 97 percent of federal cases and 94 percent of state cases end are resolved with a guilty plea negotiated before a trial is ever held. “There is no good reason to design a rule that accomplishes its mission in a small fraction of the cases and leaves the others untouched,” Ortman wrote. Ortman proposed that instead of only applying to trials, the limitation of the Confrontation Clause be changed to apply to “critical adjudication.” Trials would fall into this category, as would plea bargaining. Preliminary and pretrial hearings would not.

Wayne State University law professor and Constitutional law expert Robert Sedler talks about the lawsuit the Trump campaign has filed in the Michigan Court of Claims seeking to stop the vote counting until the campaign had “meaningful access” to the ballots. Sedler said the suit was unlikely to succeed. “Article II, section 4 of the Michigan Constitution, the "purity of elections" clause, says that the Legislature shall enact laws to preserve the purity of elections, to preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide for a system of voter registration and absentee voting. The Legislature has enacted such laws, and local clerks comply with them. The court will not in any circumstances order a stop to counting of ballots. Every vote must count, no matter how long it takes.”

If Judge Amy Coney Barrett's history of pro-business rulings is any indication, consumer advocates say her appointment to the U. S. Supreme Court could have implications for any number of consumer safeguards. Barrett, confirmed in a 52-48 Senate vote Monday night, replaces the late Justice Ruth Bader Ginsburg, who was renowned for her pioneering influence on gender discrimination and civil rights and one of the justices most likely to rule against big business. Because Barrett's conservative record so starkly contrasts with Ginsburg's, her place on the court could have a particularly meaningful impact on issues expected to split along conservative-liberal lines. "The consumer litigators of the world will be in general trying to stay away from the Supreme Court, would be my guess," said Stephen Calkins, a Wayne State University law professor who was formally general counsel at the Federal Trade Commission.

Earlier this week, six men were arrested and charged federally with conspiracy to kidnap Gov. Whitmer. Seven other men known to be members or affiliates of the Wolverine Watchmen were charged under Michigan’s antiterrorism act. Two founding members of that group face several counts, including threat of terrorism and gang membership, while the other five face multiple counts, including providing material support for terrorist acts. “Sedition cases are very difficult to prove,” said Peter Henning, a former federal prosecutor and now a law professor at Wayne State University Law School. “Charging the defendants with kidnapping is a much easier road to go down.”

Distinguished Professor of Law Robert Sedler talked with WJR’s Guy Gordon about the 25th Amendment and how it pertains to the President of the United States. Sedler said that under the 25th Amendment, sec. 4, the Vice-President and a majority of the cabinet, or "of such other body as Congress may by law provide," transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives, their written declaration that the President is unable to discharge the powers and duties of his office." At that point, the Vice-President becomes the Acting President. Under this provision, Congress has the power to substitute a commission for the majority of the cabinet. Sedler said that “while Congress has the power to do so, it should not. The Constitution now covers the situation. From a constitutional standpoint (leave politics aside), we must assume that the Vice-President and the cabinet members will act in good faith, and that if such a situation would arise, they would take the necessary action to transfer Presidential power.”

The federal criminal case against six of 13 suspects accused of plotting to abduct and possibly harm Michigan Gov. Gretchen Whitmer contains a legal nuance that former officials from the U.S. Department of Justice say make conviction more likely. Peter Henning, a former federal prosecutor who teaches law at Wayne State University, agreed. "It's much easier to prove a kidnapping charge, so much easier." He cited the high-profile Hutaree militia case from 2010, when nine people from the so-called "Christian Patriot" movement were arrested after raids in Michigan, Ohio and Indiana. They faced federal charges of seditious conspiracy along with a series of weapons charges after, authorities said, they plotted to kill police and then attack the funerals and kill more police.

Militia members who belong to paramilitary organizations formed originally as part of a far-right patriot movement that is traditionally anti-government. Members believe the Constitution gives them legal authority to act under both federal and state laws and the Second Amendment – to take back the country as they see fit. And many members are prepared to act if they think their beliefs are infringed upon. They believe the Constitution gives them that authority – even though experts say they have no more legal right than any other citizen. Actually, that's not what the Constitution means, according to constitutional scholar Robert Sedler of Wayne State University Law School. “Do not be put off by the term militia. In the Constitution, it deals with the National Guard. At that time it meant every able-bodied man, for a national guard,” Sedler explained. “They are private citizens. They have no legal status. “It's very clear – they can call themselves militia, but it's not a real militia. Only the state National Guard is a true militia,” Sedler clarified. “They cannot say they are like law enforcement, and they cannot protect other citizens or their land,” and to do so is illegal.

John Rothchild, professor of law, wrote an article for The Conversation. “Michigan has embarked on an experiment in democratic governance using a technique employed in Athens 2,500 years ago but little used since: the selection of government officials by lottery rather than by appointment or election. The 13 officials selected by lot in August make up Michigan’s Independent Citizens Redistricting Commission. By November 2021, the group will draw election districts used to elect officials to the Michigan Legislature and the U.S. House of Representatives. The redistricting process occurs every 10 years, after the Census Bureau determines how many representatives are allocated to each state. Historically, state legislatures have been responsible for redistricting. But throughout U.S. history gerrymandering – drawing election districts to favor the political party that controls the state legislature – has characterized the redistricting process…Michigan’s commission, created by a 2018 ballot initiative, is unique. As a professor who teaches constitutional law and, occasionally, ancient Athenian law, I am fascinated by the fact that Michigan’s seemingly novel experiment in governance is based on a process that is thousands of years old.”