GAYLORD, Mich. (Michigan News Source) – Otsego County Circuit Court Judge Colin Hunter’s recent court ruling once again challenges the legal foundation of health laws used to impose pandemic-related restrictions – statutes that were relied upon by the Health Department of Northwest Michigan (HDNW) for enforcing COVID-19 measures.

Looking back at how it all started.

On November 15, 2020, Robert Gordon, Director of the Michigan Department of Health and Human Services (MDHHS), issued an “emergency order” prohibiting certain gatherings and implementing an initial 15-day restriction on indoor dining, which was later extended to 75 days. While the Iron Pig Smokehouse in Gaylord originally complied with the emergency order, they reopened before the ban expired.

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These state statutes were used by HDNW to justify actions such as the temporary revocation of the Iron Pig’s liquor license and food permit, imposition of fines, and temporary closure due to violations of pandemic restrictions. The Iron Pig appealed to the 46th Circuit Court where Judge Hunter said the “emergency order” was “clearly an unconstitutional delegation of power from the Legislative to the Executive branch” and “severed” the rule from Michigan’s public health code.

In January of 2022, the judge ruled that the Iron Pig would not have to pay $5,000 in fines and penalties for violating the state’s pandemic orders.

Gov. Whitmer’s executive orders deemed unconstitutional.

The MDHHS had issued pandemic-related emergency orders because on October 2, 2020, the Michigan Supreme Court invalidated numerous COVID-19 orders issued by Gov. Whitmer due to a similar rationale, asserting that the statute authorizing them “unlawfully delegates legislative power to the executive branch.”

However, the emergency orders from the MDHHS were also found to be unconstitutional by a Court of Appeals panel. A case concerning this, regarding T&V Associates, is still being appealed.

Iron Pig sues authority of regional health department.

In a lawsuit, brought by Ian Murphy, owner of the Iron Pig Smokehouse, and his attorney, David Delaney, he contested the legality of five state statutes cited by the HDNW and asked for declaratory relief.

Delaney has said about the case, “The legislative branch may not delegate the power of lawmaking to the executive branch. This is known as the ‘nondelegation doctrine.’”

Ruling: “Gathering statute” is unconstitutional.

Judge Hunter reaffirmed his previous determination that one of the statutes, dubbed the “Gathering Statute” MCL 333.2453, used by HDNW was unconstitutional.

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Additionally, Judge Hunter found that while another statute, MCL 333.2451, was constitutionally sound, its implementation violated Murphy’s right to due process.

Ruling affects four counties.

Judge Hunter’s ruling affects Antrim, Charlevoix, Emmet, and Otsego counties, the jurisdiction of the Health Department of Northwest Michigan.

Three other statutes questioned by Murphy and Delaney were not addressed by Hunter due to lack of citations from the health department.

In his recent ruling, Judge Hunter said MCL 333.2453 violated the separation of powers mandated by the state constitution. In his ruling, he stated, “It is instead up to the local director of health, standing alone, to decide when an epidemic exists and what is necessary to control it, all without any meaningful oversight by the Legislature within the delegation of significant authority.”

Murphy expressed satisfaction with the ruling, particularly regarding the statute related to gatherings, which he considered pivotal to the case. Murphy told the Petoskey News Review, “I didn’t think we were going to get all five (statutes). The one that we really wanted was the gathering (MCL 333.2253). That was the one that everything had been built on from the beginning.”

Statutes damaged restaurants around the state.

In a press release from Murphy, he said, “These 2 statutes did more damage to our state than all the previous Executive Orders issued under the now unconstitutional Emergency Powers of the Governor Act. We are grateful that our judicial system allows for due process and the redressing of grievances. For two years the Iron Pig was not afforded proper due process under the regulatory scheme developed utilizing the ‘Gathering Statutes’ to circumvent our due process and subvert justice in the name of compliance.”

Murphy added, “Today, Judge Hunter has affirmed our contention that the legislature, while well- intended, delegated too much authority to the executive branch under these laws to write and enforce the law.”

Health department may appeal.

On the other side of the issue, Matthew Cross of Cummings, McClorey, Davis & Acho PLC in Traverse City, the attorney representing HDNW, indicated that they may challenge the ruling, pending discussion with the Board of Health, saying, “they will make the call as to whether we appeal or not.” This was reported by the Petoskey News Review.

The broader legal implications of the court decision remain uncertain. Legal experts suggest that while this ruling may influence similar cases in other jurisdictions, it does not establish a binding precedent for other circuit courts.

What the future might look like.

Lance Gable, a Professor of Law at Wayne State University in Detroit told the Petoskey News Review “The authority of state and local public health officials to issue emergency orders will depend on how the Michigan Supreme Court rules on the (possible) appeal and how that ruling analyzes the constitutionality of these sections of the state code.”

Gable added, ”Obviously if this ruling and the T&V Associates cases are ultimately upheld by the (Michigan) Supreme Court, then state and local public health officials will be limited in their ability to issue emergency orders unless the legislature amends the language of the relevant provisions.”

Gable went on to say, ”Even if (the) court reverses the decision and sustains the existing authority, I still think it’s likely that public health officials will be a little more reluctant to impose emergency orders given the significant pushback they’ve received. But it’s important to also remember that these officials have an obligation to protect the health of the public and that sometimes the circumstances require the use of restrictive measures to do that, despite their unpopularity.”