Iron Pig owner, health department set to argue legal basis for Covid-19 restrictions

Editor's Note: The online version of this story has been corrected to indicate this is the first time Ian Murphy is suing the Health Department of Northwest Michigan.

GAYLORD — Ian Murphy, owner of the Iron Pig Smokehouse restaurant in Gaylord, is suing the Health Department of Northwest Michigan over its enforcement of COVID-19 restrictions.

The latest chapter of the long-running legal saga involving Murphy, his restaurant and the health department is scheduled to begin Tuesday, April 9 in downtown Gaylord. Both sides will appear before Otsego County Circuit Court Judge Colin Hunter, whose ruling in a 2022 case involving the parties is now a part of Murphy's lawsuit.

Murphy and his attorney, David Delaney of Gaylord, are claiming the statutes that the health department (HDNW) relied on for restrictions issued during the COVID-19 pandemic are unconstitutional. At issue is the department’s enforcement of the state’s emergency public health orders that resulted in the temporary loss of the Iron Pig's liquor license, food permit and eventual closure for staying open and serving customers during parts of the COVID-19 pandemic.

More: State health department withdraws appeal in Iron Pig case

Delaney said the state constitution delegates law writing power to the legislature, law enforcement power to the executive branch and interpretation of the law to the judiciary.

"The legislative branch may not delegate the power of lawmaking to the executive branch. This is known as the 'nondelegation doctrine,'" said Delaney.

In 2020, the state Supreme Court struck down the emergency powers of the governor in the executive branch as a violation of the nondelegation doctrine. In January 2022, Hunter overturned a $5,000 fine levied against the Iron Pig, which had defied orders in 2020 and 2021 to temporarily stop indoor dining as COVID-19 cases in Michigan were rising. He said a portion of a public health law used to make the orders was unconstitutional.

Hunter said that statute MCL 333.2253, "while likely the product of well-meaning forethought by the Legislature to permit quick action in times of actual emergency, fails to pass Constitutional muster," and added that the legislature had violated the separation of powers doctrine of the state constitution.

More: Judge: Basis for emergency orders limiting bars, restaurants fail to pass constitutional muster

Attorney Matthew Cross of Cummings, McClorey, Davis & Acho PLC in Traverse City is representing the health department. In a filing, he said he believes that the latest Murphy lawsuit is an attempt to have the courts decide a moot issue since all of the COVID-19 restrictions have been rescinded.

"As a general rule Michigan courts 'do not decide moot issues,'" Cross said in a filing.

To bolster his argument, Cummings cited a state appeals court decision in 2022 involving a case in Ottawa County that challenged a health department mask mandate.

Cross said the appeals court concluded that because the challenged order was no longer in effect, there was no relief the court could grant and any judgment would have no practical legal impact on the controversy.

In the Ottawa County case, a parental group claimed the county health officer should have received approval for the mask mandate from the county board of commissioners. The county board claimed they didn't have the authority to rescind the order or fire the health officer for issuing it. The county said under Michigan law, local health officers have the authority to implement mask mandates in public health emergencies.

The court of appeals found that while Michigan law dictates health department "regulations" be subject to approval by a local governing board, health officer-issued "orders" supersede such rules.

Cross doesn't believe the nondelegation doctrine cited by Delaney has any legal basis under the state and federal constitutions. Citing a 1971 case, Cross writes that "neither the Federal constitution nor any state constitution explicitly provides that the legislative power cannot be delegated, the nondelegation doctrine hasbeen written into our constitutions by judicial interpretation.”

Subscribe Check out our latest offers and read the local news that matters to you

Cross also said he will not ask Hunter to recuse himself from the case despite Delaney using Hunter's previous ruling in his complaint against the health department.

"I had contemplated asking Judge Hunter to recuse himself given the comments he made in the prior case. However, in my experience with Judge Hunter, I’ve found him to be a thoughtful jurist and I interpret his comments in the prior case, which involved different statutes, to be nothing more than dicta and he will presumably be analyzing the issues in the present case with 'fresh eyes.' I am aware of the uphill battle we face in this case, but we believe we have put forth a persuasive defense of these vitally important provisions of Michigan’s Public Health Code," he said in an email response.

According to a webpage from the Cornell University Law School, "Dicta in law refers to a comment, suggestion or observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive authority in future litigation."

— Contact Paul Welitzkin at pwelitzkin@gaylordheraldtimes.com.

This article originally appeared on The Petoskey News-Review: Iron Pig owner, health department set to argue legal basis for Covid-19 restrictions again