State health department withdraws appeal in Iron Pig case

The state is ending its appeal of a decision from an Otsego County judge earlier this year that found epidemic orders issued during the coronavirus pandemic against the Iron Pig Smokehouse of Gaylord and its owner, Ian Murphy, were unconstitutional.
The state is ending its appeal of a decision from an Otsego County judge earlier this year that found epidemic orders issued during the coronavirus pandemic against the Iron Pig Smokehouse of Gaylord and its owner, Ian Murphy, were unconstitutional.

GAYLORD — A nearly two-year legal skirmish involving a Gaylord bar and restaurant, COVID-19 restrictions and the legal authority that state officials relied on for issuing those measures is apparently coming to an end.

The state has decided to withdraw an appeal before the Court of Appeals of a decision from Otsego County Circuit Court Judge Colin Hunter that found epidemic orders issued during the coronavirus pandemic against the Iron Pig Smokehouse and its owner, Ian Murphy, were unconstitutional. In July, the Court of Appeals said it would take up the case.

On Nov. 23, assistant attorney general Darren Fowler, on behalf of the Michigan Department of Health and Human Services (MDHHS), "voluntarily" withdrew the appeal of Hunter's ruling from last January.

Hunter said the statute (MCL 333.2253 ) the director of MDHHS used for issuing emergency orders limiting bar and restaurant operations to control the spread of coronavirus was an unconstitutional delegation of power. Consequently, any penalties levied against Murphy for allowing in-person dining and not requiring masks based on the orders were void.

In his withdrawal motion, Fowler said another trial-level opinion was issued by the Court of Claims on the delegation of power question and it declared MCL 333.2253 constitutional. Thus, MDHHS no longer needed to appeal Hunter's ruling. According to Fowler's motion, MDHHS had originally appealed the ruling because of constitutional concerns and because it "threatened to create confusion" about the health department's authority to implement COVID-19 mitigation measures.

"The Court of Appeals will grant the motion to withdraw the appeal. The case is over. There is no precedent from a lower court decision. The Iron Pig has won," said Robert Sedler, a law school professor from Wayne State University in Detroit.

More:Court of Appeals to consider judge's ruling in Iron Pig case

More:State high court declines appeal of ruling in Iron Pig restaurant case

Sedler said a lower court decision like the one from Hunter is not binding on other lower courts or even the court that rendered it. Appellate decisions are binding on lower courts and on the appellate court itself, he added.

David Delaney, Murphy's attorney, was asked if there were any legal considerations from Hunter's ruling that could be applied should a similar situation arise in the future even though it is not binding.

He responded by referring to the state Supreme Court decision last April rejecting a request from MDHHS to bypass the court of appeals and have the case moved directly to the high court.

"Under the circuit court's ruling (MDHHS) can no longer rely on MCL 333.2253," the decision said.

SubscribeCheck out our offers and read the local news that matters to you

In November 2020, the state health department closed indoor dining and restricted the capacity and hours of operation for bars and restaurants in the state to address an increase in coronavirus cases. Murphy had openly defied the MDHHS bans.

Eventually, the liquor license and food permit for the Iron Pig were suspended by the Michigan Liquor Control Commission and the Michigan Department of Agriculture and Rural Development, respectively, in December 2020.

More:Court of Appeals divided on Marlena in newly released opinion affirming contempts

Through the state attorney general's office, those agencies obtained a temporary restraining order (TRO) from an Ingham County judge in 2021 barring Murphy from operating the restaurant. Murphy ignored the TRO and the judge fined him $1,500. Eventually, Murphy closed the eatery and later reopened it after getting back his food permit and eventually the liquor license.

It is not clear what if any effect this development will have on similar cases from the pandemic lockdowns still in the legal system. One involves Holland restauranteur Marlena Pavlos-Hackney, who argued her constitutional rights were violated when she was asked and ordered to close her restaurant — Marlena's Bistro and Pizzeria — in 2020 and 2021 for failing to follow COVID-19 restrictions. She was arrested on an outstanding bench warrant and jailed for several days until she paid $15,000 in contempt of court fines.

Contact reporter Paul Welitzkin at pwelitzkin@gaylordheraldtimes.com.

This article originally appeared on The Petoskey News-Review: State health department withdraws appeal in Iron Pig case