Four sheriffs, one state lawmaker, one April 15 protest in Lansing
The story behind the controversial press release that undercut Gov. Whitmer’s executive order and fanned the partisan flames
On April 15, four sheriffs in northwest lower Michigan jointly issued a press release that questioned Democratic Governor Gretchen Whitmer’s stay-at-home executive orders at the height of the COVID-19 crisis in Michigan. It happened to fall on the same day that demonstrators planned “Operating Gridlock”, their first of what became several protests at the State Capitol in Lansing against Whitmer’s orders.
The sheriffs behind the press release were Mike Borkovich in Leelanau County, Ted Schendel in Benzie County, Ken Falk in Manistee County, and Kim Cole in Mason County. Those four countries make up the 101st district, which is represented by Jack O’Malley, a first-term Republican from Lake Ann. O’Malley and his staff helped the sheriffs organize and write the release. O’Malley has used his Facebook page to post daily videos—and often criticize—Whitmer’s handling of the crisis.
The sheriffs say the motive for their statement wasn’t to oppose Gov. Whitmer on partisan grounds. (Indeed, Falk of Manistee is a Democrat; the other three are Republicans). According to interviews with Borkovich, Schendel and Cole, they wanted to inform their local constituents that the sheriffs had no intention of arresting citizens who weren’t practicing social distancing measures for offenses they considered frivolous or vague. They wouldn’t ticket a father and son fishing in a motorized boat, or a neighbor finishing a landscaping project, or a few kids playing basketball.
“We will deal with every case as an individual situation and apply common sense in assessing the apparent violation,” stated the press release.
Schendel said the press release was his idea.
“We wanted people in our community to know that things would be OK,” said the Benzie sheriff. “This is not a police state where we’ll make automatic arrests.” Schendel described getting calls from a woman who wanted to report her neighbor for raking leaves in their yard and cutting down trees. “People were confused and scared.”
“Someone came up with the idea that fishing in a 16-foot boat with your son would be legal. But if the boat had a motor, it would be illegal,” said Leelanau Sheriff Borkovich. “We [were] trying to reassure the public that we won’t arrest people for fishing in boats with motors on them.
“We all support the governor’s message of staying safe,” Borkovich added. “We recommend that people follow orders as close as possible to social distance themselves, to wear masks, to wear gloves, and to wash their hands. We’re worried about the risks posed by people coming from other parts of the state and other states that hard hit by the virus. But we have to assure people that we won’t be watching boats from the public launches.”
“We wanted our communities to know we’d use common sense to approach these calls,” said Cole in Mason County. “It helped us, and it helped the community understand. The lion’s share of the calls were about neighbors calling on neighbors. People ratting on kids playing in yard. That’s not what we’re about as sheriffs.”
Cole said the press release was issued two days after Michigan State Police ticketed two individuals for walking in a state forest. That raised eyebrows with the public. “From my standpoint, I needed to let the public know that we were hearing what they were saying,” said Cole. “These orders were coming [from the Governor]. We were told to follow them without hearing from the people.
But instead of calming the situation, the press release instead fanned the partisan flames. The sheriffs’ unorthodox move became a national story. Schendel appeared on Fox News. The Glen Arbor Sun raised some eyebrows, and a rebuke from Borkovich, for using the word “defy” in a headline.
“The press release was initially like throwing a Molotov cocktail into a room because of the politics of it,” said Representative O’Malley. “But what it actually offered was clarity for local citizens.”
Governor Whitmer later lifted the ban on motorized boating. By Memorial Day weekend, restaurants, bars and retail businesses were allowed to open at 50 percent capacity in much of northern Michigan (but not Mason County, which falls outside District 6.) Whitmer announced yesterday, June 1, that the stay-at-home order is over, and most businesses throughout the state can open by next week.
Still O’Malley said the Governor’s office should have given restaurants and bars more than four days’ notice before allowing them to reopen on Memorial Day weekend. He said Whitmer has been about three weeks behind in the steps she has taken to reopen Michigan’s economy.
Constitutional sheriffs
Another motive for the sheriffs’ opposition to the Governor’s order appeared to be their identification as “constitutional sheriffs”.
“Each of us took an oath to uphold and defend the Michigan Constitution, as well as the US Constitution, and to ensure that your God given rights are not violated,” stated the April 15 release. “We believe that we are the last line of defense in protecting your civil liberties.”
According to Bridge Magazine, “that letter has echoes of the Constitutional Sheriffs and Police Officers Association (CSPOA), the loosely knit network of law enforcement officers that views sheriffs as a firewall against government overreach. It was founded by former Arizona sheriff Richard Mack, who as sheriff challenged in court provisions of the Brady Bill. That resulted in a 1997 Supreme Court decision that ruled that provisions of that gun control measure were unconstitutional.”
“On its website, the CSPOA traces the authority of the sheriff to ninth century England, while stating: ‘The vertical separation of powers in the Constitution makes it clear that the power of the sheriff even supersedes the powers of the President,’” reports Bridge.
Borkovich, Schendel and Cole all signed a November 2013 CSPOA letter that “vowed to uphold and defend the Constitution against [former President] Obama’s unconstitutional gun control measures.”
Leelanau Sheriff Borkovich told the Sun in 2017 that he considered himself a constitutional sheriff. Benzie Sheriff Schendel confirmed to Bridge that he belongs to the CSPOA.
Help from state lawmaker
Emails between the sheriffs and Representative O’Malley, which the Glen Arbor Sun acquired (in late April) through a Freedom of Information Act Request, show that O’Malley set up a conference call for the sheriffs to discuss their grievances with the Governor’s executive order, and how it affected their constituents—even as northern Michigan has seen a relatively low COVID-19 infection rate. (Leelanau County has 11 cases, to date, and no deaths.)
The emails also show that one of O’Malley’s staffers wrote a preliminary draft of the press release, which the sheriffs significantly retooled, expanded and released the following day, April 15.
Here’s the correspondence email thread (not corrected for grammar):
Monday, April 13, 9:03 a.m., Benzie Sheriff Schendel writes an email to Borkovich, Cole, O’Malley and Falk, with the subject line, “Concerns”:
“Good morning, I hope this email finds you all in good health. I am quite concerned and upset with the state of affairs in Michigan. I feel we are treading very close to trampling on both the state and US constitution! I was going to send out a press release about not enforcing the EO signed by our governor. Before I do that I want to pick your brains regarding this subject.
Everyone of us took the same oath to up hold and defend the constitution.
My main concern is the well being of the residents of my county and the economic stress placed on them. I am sure you all feel the same. My question becomes, how do we address the situation. Do we as Sheriff’s have power granted to us under the state constitution? Can we legally defy her EO’s? Are we the peoples last line of defense?
I am seeking your input on how we proceed. Do we do a joint press release? Do we have Jack (O’Malley) write another letter with the support of the sheriff’s in his District?
I am open to suggestions. My fear is if we don’t resume normal or open back up we might just loose our Republic. I for one cannot sit idle and not address. However, I need to know if I am going crazy or others feel the way I do. I am open for discussion. I just have a bad feeling where we are headed.
In life, liberty and the pursuit of happiness.”
Monday, April 13, 3:28 p.m., Representative O’Malley responds to the four sheriffs.:
Good afternoon,
I absolutely understand your concerns and I recognize that in this time of uncertainty, it’s important we open up a line of communication to talk about the situation.
With that in mind, I’ve set up a conference call line for tomorrow at 2 pm. I’ll have Cam from my office send out a Calendar invite to each of you as well.
I look forward to speaking with you all.
—Jack
Tuesday, April 14, 3:04 p.m. (following the conference call), O’Malley staffer Eric Chappell emails O’Malley with the following rough draft of a media release:
“As Sheriff’s of Michigan’s 101st House District, comprising of Leelanau, Benzie, Manistee, and Mason Counties, we write today to inform the public of our opposition to Governor Gretchen Whitmer’s executive orders. Strict enforcement of these orders will not take place during this coronavirus outbreak within our respective communities. Governor Whitmer has overstepped her constitutional grounds and created a vague framework of emergency laws that only confuse Michigan citizens. Operating a motorized boat remains illegal while the purchasing of liquor and lottery tickets is deemed “essential.” Our governor is flying a ship while building it at the same time and we as sheriffs question the legality of many of her executive orders.”
At 6:51 p.m., O’Malley forwards the draft to the sheriffs, with the following caveat: “This maybe a bit strong? Let me know your thoughts
Jack
Wednesday, April 15, 8:26 a.m., hours before the sheriffs officially issue the media release, Leelanau Sheriff Borkovich emails Representative O’Malley and CCs Leelanau Undersheriff Steve Morgan, with the subject line: “Sheriff statement”
“Good morning, Representative Jack O’Malley … I would hope that you know how much we all appreciate all that you are doing to keep a sense of balance regarding the Governor’s Executive Order. These are difficult times for all of us, and I pray that we can get everyone back to work and our entire country back to normal by 01MAY20. I plan to contact the Governor direct to emphasize that date as I doubt that our local economy can stand a longer shutdown period. Thanks and stay safe, Leelanau County Sheriff Mike Borkovich / 45-1”
12:43 p.m., Benzie Sheriff Schendel writes to O’Malley and the other three sheriffs:
So far Ken and Mike Are in!
He added a few lines.
12:58 p.m., Schendel writes to Borkovich:
“Yep cleaning it all up and sending to each of you.
I think if we each send out as press release it will cover all our media.”
