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DHHS Director’s COVID Orders Ruled Unconstitutional

July 11, 2023

Article courtesy MIRS News for SBAM’s Lansing Watchdog e-newsletter

A state law that allowed the state health director to issue pandemic-related orders is “extremely broad” and an “unconstitutional delegation of legislative power,” the Michigan Court of Appeals ruled June 29.

But the lone dissenting judge said challenges from the plaintiff, T & V Associates, are moot and it’s time for the courts to end the “COVID wars” remaining on the court docket.

“The overheated rhetoric in briefs and oral arguments suggest that the remaining COVID-19 disputes on court dockets are sacred causes, rather than mere court cases, and the litigants and attorneys in these disputes seem determined to keep these battles going endlessly,” wrote Appeals Judge Christopher P. Yates, who was appointed to the bench in March 2022 by Democratic Gov. Gretchen Whitmer. 

“But it doesn’t have to be this way. We judges have the power and, in my view, the duty under the mootness doctrine to dismiss the combatants from the COVID wars and bring down the curtain on this chapter in our history,” he added.

Appeals Judges Michael F. Gadola and Mark T. Boonstra, both appointees of Republican Gov. Rick Snyder, disagreed, holding “an actual case and controversy exists based upon existing facts and rights.”

“The dispute is not abstract,” the majority’s opinion reads. “… Moreover, the dispute is not concluded; plaintiff continues to be a banquet and catering corporation and MCL 333.2253 continues to authorize defendant to issue emergency orders. A case is not necessarily rendered moot by a party ceasing the activity that is challenged as illegal.”

Lynn Sutfin, a Department of Health and Human Services (MDHHS) spokesperson, said the department believes the Court of Appeals majority “reached the wrong result” and plans to appeal.

“Throughout the COVID-19 pandemic, the … MDHHS used many tools to protect Michiganders from a novel, deadly and fast-moving virus,” she said. “One of those tools was the department’s epidemic orders, which rested firmly upon authority given by the legislature to the director of the MDHHS over 100 years ago and reaffirmed by the legislature just last year. 

“As the trial court correctly recognized, this long-standing law, written to provide critical protection to our state ‘s public health in times of greatest need, is fully consistent with our state constitution. Furthermore, the COVID public health emergency has ended, and so have all of the department’s epidemic orders; in fact, the specific orders this lawsuit challenges have been gone for over two years now,” Sutfin added.

T & V Associates, who did business as River Crest Catering, which closed in December 2021, challenged DHHS Director Elizabeth Hertel’s now-defunct March 2021 pandemic order limiting restaurant operations to 50% occupancy and setting a 10 p.m. closure time. The company argued the order violated the separation of powers clause and the non-delegation doctrine of the state constitution.

The state argued that River Crest Catering lacked standing because it permanently closed its doors.

Court of Claims Judge Douglas Shapiro, who was appointed to the bench in 2009 by Democratic Gov. Jennifer Granholm, agreed with the state and dismissed the suit. He said the statute was “narrower in scope” than the Emergency Powers of Governor Act, which Whitmer used to issue her pandemic-related orders and which the Michigan Supreme Court subsequently ruled was an unconstitutional delegation of legislative power.

Appeals Panel Affirms Dismissal Of COVID Suit

The Michigan Court of Appeals agreed to dismiss a lawsuit challenging Gaylord Community Schools and the health department’s now-defunct COVID-19 mask order.

In a per curiam opinion, Democratic Appeals Judges Elizabeth Gleicher, Michelle Rick and Allie Greenleaf Maldonado, sided with the health department and school district, holding the case is moot.

In 2021, an association of parents, Let Them Breathe, and four individual parents challenged the mask mandate, arguing the health department lacked the authority to issue the order and the school district lacked the authority to suspend students for violating the order.

The appeals panel rejected the plaintiffs’ argument that the mask mandate is likely to recur, yet evade judicial review.

“Since there is no meaningful relief that we could grant, and a judgment of this Court would have no practical effect on the existing controversy, plaintiffs’ challenge to the mask mandate is moot,” the unpublished order reads.

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