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

GAYLORD — The Michigan Court of Appeals will hear an appeal of an Otsego County judge's decision that found epidemic orders issued during the coronavirus pandemic were unconstitutional.

In January, Otsego County Circuit Court Judge Colin Hunter overturned a $5,000 fine against the Iron Pig Smokehouse in Gaylord and its owner, Ian Murphy. The restaurant/bar had defied orders in 2020 and 2021 to temporarily stop indoor dining and require masks as COVID-19 cases in Michigan were rising.

Hunter said a portion of a public health law used to make the orders by the director of the Michigan Department of Health and Human Services (MDHHS) was unconstitutional.

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

The Court of Appeals said on July 20 it will consider arguments that the state legislature's grant of authority to the director of MDHHS to protect the public health during an epidemic by restricting gatherings and issuing procedures to preserve essential public health services is a proper delegation of authority.

Additionally the office of Michigan Attorney General Dana Nessel, which represents MDHHS, argues that Hunter overstepped his authority in making the ruling.

Hunter said the statute that the health department director used for issuing emergency orders limiting bar and restaurant operations didn't pass constitutional muster because it failed to include any standards on the scope or duration of the director's authority.

Consequently, any penalties levied against Murphy, for allowing in-person dining and not requiring masks based on the orders including the fine, were voided. Hunter's ruling came in a lawsuit filed by Murphy and this attorney David Delaney in 2021.

Hunter's ruling said the authorization of the director to issue the order under MCL 333.2253 lacks sufficient standards to guide the director's discretion and is an unconstitutional delegation of power.

"The matter of an unconstitutional delegation is a difficult one," said Robert Sedler, professor of law at Wayne State University in Detroit. "The judge's opinion is well-reasoned, but there are contrary arguments. It is difficult to predict how the Court of Appeals will resolve this issue. Either way, because it is a constitutional issue, the Michigan Supreme Court may want to hear the case."

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

In April, the Michigan Supreme Court declined to hear the state health department appeal before the court of appeals.

This article originally appeared on The Petoskey News-Review: Court of Appeals to weigh Otsego County judge's ruling in Iron Pig case