The Michigan Court of Appeals ruled Thursday that the state health department did not have the power to order restrictions on indoor dining and other areas during the COVID-19 pandemic, noting that the health department's ability to issue such orders is an "an unconstitutional delegation of legislative power."
The appeal stems from a complaint filed in the Michigan Court of Claims in April 2021 after the Michigan Department of Health and Human Services issued an order in March 2021 that restricted gatherings during a surge in COVID-19 cases in the state.
"The reach of the Order again was near total and severely curtailed all business within the state, and again effectively shut down a large portion of the restaurant business," Court of Appeals Judge Michael Gadola wrote in a 2-1 ruling. "The Order was an exercise of overwhelmingly broad power, substantial in scope and effect, and affecting virtually every aspect of the daily lives and the livelihoods of the people of Michigan."
The court found the power granted to the executive branch in Michigan law is "extremely broad and is essentially unlimited by restrictive standards."
"(The law is) so broad and without any cognizable standard for the exercise of that authority that it constitutes an unconstitutional delegation of legislative power," Gadola wrote.
Oakland County-based River Crest Catering's complaint alleged that Michigan Department of Health and Human Services Director Elizabeth Hertel exceeded her authority in issuing the emergency declaration, which limited indoor dining and the hours in which food service businesses could operate.
The Michigan Supreme Court determined in October 2020 that Gov. Gretchen Whitmer did not have the power under the Emergency Management Act or the Emergency Powers of the Governor Act to declare a state of emergency or a state of disaster based on the COVID-19 pandemic because it violated the powers delegated to the governor in the Michigan Constitution.
River Crest Catering's complaint contends that Whitmer, through the state health department, continued unlawfully issuing comparable orders after the Supreme Court's decision came out.
Michigan Department of Health and Human Services spokesperson Lynn Sutfin said the department plans to appeal the Court of Appeals decision, as public health officials believe the judges reached the wrong conclusion.
"Throughout the COVID-19 pandemic, the Michigan Department of Health and Human Services used many tools to protect Michiganders from a novel, deadly and fast-moving virus. 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," Suftin wrote in an email.
"As the trial court correctly recognized, this longstanding 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."
While the severe stage of the pandemic may be over, the issue is not moot because Michigan law still allows the state health department to issue emergency orders, Gadola wrote. In fact, it's an "issue of public significance that is likely to recur." The court said the Michigan Department of Health and Human Services director had "near limitless discretion under the statute."
Court of Appeals Judge Christopher Yates wrote a dissenting opinion, saying the court battles over COVID-19 regulations should be dismissed because they are now moot. Yates said this case is "as moot as moot can be."
"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 wrote.
The attorney who represented the banquet company, Al Addis, said the Court of Appeals decision is “huge” and could apply to other cases pending as well, like one he has in the Michigan Supreme Court right now filed by the Macomb County Restaurant Association. That case has all the same arguments as this one did, he said.
“This Court of Appeals decision, coupled with what the Supreme Court had already ruled, basically says nobody had any right to do this to these people, which was our argument all along,” Addis said. “The losses are huge. What is bothersome to me is if you go all across the United States, there’s no evidence that states that didn’t close restaurants and banquet centers were any worse off than those who did. … This (ruling) is a ray of sunshine, finally, though it’s too late for most.”
The owner of River Crest Catering closed after the Court of Claims rejected his case, Addis said. He hoped to reopen, but was not able to do so.
kberg@detroitnews.com
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Michigan health department's COVID-19 restrictions 'unconstitutional': court - Detroit News
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