Judge's ruling again questions legal validity of health laws used for pandemic restrictions

GAYLORD — A ruling from Otsego County Circuit Court Judge Colin Hunter again disputed the constitutionality of some of the state statutes that were relied on for COVID-19 restrictions issued during the pandemic.

Hunter's latest ruling came in the lawsuit filed by Ian Murphy, owner of the Iron Pig Smokehouse restaurant, and his attorney, David Delaney, against the Health Department of Northwest Michigan (HDNW).

Murphy and Delaney were asking Hunter to rule on the legality of five state statutes the health department cited in enforcing the state’s emergency public health orders that resulted in the temporary loss of the Iron Pig's liquor license, food permit, the imposition of a fine and eventual closure for staying open and serving customers during parts of the COVID-19 pandemic.

Hunter reiterated his previous ruling that one of the statutes the health department used was unconstitutional and said that finding also applied to a companion law. While upholding the constitutionality of another statute used by HDNW, Hunter also found that it had violated Murphy's right to due process.

Three other statutes that Murphy and Delaney had questioned were not ruled on by Hunter because the health department had not issued any orders citing them.

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

Murphy said Hunter's May 2 ruling  was pretty close to what he had anticipated.

"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. It is another win for us and once again the Iron Pig has taken power from the government and I will be curious to see how badly they want this power back," he said.

In his 2022 ruling, 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."

He went on to say that the measure violated the separation of powers doctrine of the state constitution in part because it didn't contain benchmarks, specific guidelines or time limits for implementation.

In his latest ruling, Hunter said MCL 333.2453, a companion regulation to 333.2253, also violated the separation of powers mandated by the state constitution.

"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," said Hunter.

Mathew Cross, the attorney representing the health department, noted that "the scope of .2253 and .2453 are different and we believe a different outcome is warranted. That said, I understand and appreciate Judge Hunter’s thoughtful consideration of this important issue."

Hunter said MCL 333.2451 did pass the constitutional test and while the health department "may claim a violation" and issue an order, it "must seek court assistance to enforce compliance with any order issued."

Cross said he will be discussing the ruling with the Board of Health at an upcoming meeting.

"They will make the call as to whether we appeal or not," he added.

Because Antrim, Charlevoix, Emmet and Otsego counties make up the jurisdiction of the Health Department of Northwest Michigan, Hunter's ruling has legal standing in those areas.

Hunter's ruling "wouldn’t constrain health departments in other counties from using 333.2453 to issue orders. Of course similar claims could be brought by other litigants in other counties and this ruling will certainly be cited," said Lance Gable, a professor of law at Wayne State University in Detroit.

"But it would not be a precedent that judges in other circuit courts would be bound to follow. They could reach the same conclusion (that 333.2453 is an unconstitutional delegation of legislative authority) or they could decide to uphold the provision as an appropriate delegation of authority. Other courts could also decide that cases challenging long-expired orders are moot and dismiss the challenges," added Gable.

More: Attorneys argue legal basis for health department's COVID-19 restrictions

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He said another relevant factor is that the T&V Associates case, in which a Court of Appeals panel found 333.2253 unconstitutional, is still being appealed.

"The authority of state and local public health officials to issue emergency orders will depend on how the Michigan Supreme Court rules on the appeal and how that ruling analyzes the constitutionality of these sections of the state code," Gable said.

It's difficult to predict what if any meaningful effect Hunter's ruling will have on future emergency orders from either the local or state health departments, according to Gable.

"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," he said. "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."

— Contact Paul Welitzkin at pwelitzkin@gaylordheraldtimes.com.

This article originally appeared on The Petoskey News-Review: Judge's ruling again questions legal validity of health laws used for pandemic restrictions