Lawyer casts doubt on Ottawa County’s ‘constitutional county’ resolution

OTTAWA COUNTY — A West Michigan law professor is casting doubt on the efficacy of the “constitutional county” resolution approved by the Ottawa County Board of Commissioners this week, according to WOOD TV-8.

The board voted 9-1 in the early hours of Wednesday morning, May 24, hours into a meeting that began Tuesday evening, to approve the resolution.

More: Ottawa County becomes 'constitutional county' after 6 hours of divided public input

Michael McDaniel, a Western Michigan University-Thomas M. Cooley Law School Professor and constitutional expert, doubts the efficacy of the move.

“(The Ottawa County Board of Commissioners) do not have the ability to declare a law of the state of Michigan to be unconstitutional,” McDaniel said.

The constitutional county resolution essentially follows the script laid out by Ottawa Impact members and the slate of board members it backed last fall. The resolution includes what it calls protections against freedoms being suspended in times of crisis, which is presumably a reference to pandemic mandates. It also talked of protection of parents’ rights to decide what’s best for their children, likely a reference to the county health department temporarily shutting down the private school that Moss’ kids attended because the school wouldn’t enforce mask mandates.

While that may sound good to the board’s majority and their supporters, McDaniel said good luck enforcing it.

“There’s no basis for that anywhere either in the state of Michigan or the U.S. Constitution,” McDaniel said.

In fact, the U.S. Constitution outlines the system for testing what’s constitutional and what’s not, according to McDaniel.

“The court renders its judgment, and then the court of appeals in the state or federal supreme court can act upon whether or not they, too, think that those issues are unconstitutional,” McDaniel said.

Despite a veiled threat to withhold funds from other county agencies that don’t follow the constitutional county line — “Be it further resolved,” the resolution reads, “that the Board will not authorize or appropriate new funds, resources, employees, agencies … or offices for the sole purpose of enforcing any statute, law, rule, order or regulation that restricts the rights of any law-abiding citizen affirmed by the United States Constitution” — the resolution also “affirms (the Board’s) support for the Ottawa County Sheriff and the Ottawa County Prosecuting authority acting in a constitutional manner and acknowledges and respects their respective oaths of office.”

Both Ottawa County Prosecutor Lee Fisher and Sheriff Steve Kempker said that adoption of the constitutional county resolution wouldn’t affect how they carry out their duties.

“When the board adopts the constitutional county resolution, it will not impact the way the prosecutor’s office conducts business,” Fisher told WOOD TV-8.

“The sheriff’s office will continue to provide professional, ethical law enforcement and correctional services, focusing on customer service,” Kempker said. “Also, to support the Constitution of the United States and the Constitution of the state of Michigan and to enforce all laws to preserve public order, reduce fear and provide safe and secure environments in our communities.”

According to McDaniel, the bottom line is that the U.S. has a constitution, the state has a constitution and the county board has a charter. Each is meant to guarantee the others stay in their own lanes.

Subscribe: Receive unlimited digital access to your local news coverage

“The Michigan Constitution (from) 1963 recognizes that county boards of supervisors have certain legislative — legislative and administrative responsibilities,” McDaniel said. “There’s no judicial responsibilities there. They are not involved in the judiciary. They do not have the ability to declare a law of the state of Michigan to be unconstitutional or to instruct the county sheriff to not enforce a law.”

“It’s entirely in somebody’s imagination as to the role of a county being somewhat broader, much broader than what is envisioned by either the state or federal constitutions,” McDaniel said.

— WOOD TV-8 reporter Taylor Morris contributed to this article.

This article originally appeared on The Holland Sentinel: Lawyer casts doubt on Ottawa’s ‘constitutional county’ resolution