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STATE OF MICHIGAN IN THE SUPREME COURT
Appeal from the Court of Appeals (Stephen L. Borello, Amy R. Krause, and Brock A. Swartzle)
MICHIGAN DEPARTMENT OF APPELLANT’S EMERGENCY HEALTH AND HUMAN SERVICES, APPLICATION FOR LEAVE TO APPEAL AND PROOF OF SERVICE
Plaintiff/Appellee, -vs- MSC No.: KARL MANKE COA No.: 353607 Defendant/Appellant. Trial Court No.: 20-004700-CZ / David A. Kallman (P34200) Fadwa A. Hammoud (P74185) Stephen P. Kallman (P75622) Solicitor General KALLMAN LEGAL GROUP, PLLC Joseph E. Potchen (P49501) Attorneys for Karl Manke Rebecca A. Berels (P81977) 5600 W. Mount Hope Hwy. Andrea L. Moua (P83126) Lansing, MI 48917 Assistant Attorneys General (517) 322-3207 Attorneys for MDHHS 525 W. Ottawa St.
P.O. Box 30736 Lansing, MI 48909 (517) 335-7632
APPELLANT’S EMERGENCY APPLICATION FOR LEAVE TO APPEAL
ORAL ARGUMENT REQUESTED
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TABLE OF CONTENTS
INDEX OF AUTHORITIES.......................................................................................................... iii
ALLEGATIONS OF ERROR AND RELIEF SOUGHT .............................................................. vi
JURISDICTIONAL STATEMENT AND ORDER APPEALED ................................................ vii
QUESTION PRESENTED .......................................................................................................... viii
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
STANDARD OF REVIEW ............................................................................................................ 3
GROUNDS FOR APPEAL ............................................................................................................ 4
ARGUMENT .................................................................................................................................. 5
The Court of Appeals Erroneously Ordered the Peremptory Reversal of the Trial Court. ........ 5
I. The Court of Appeals Violated MCR 7.211(C)(4). ......................................................... 5
II. MDHHS’ Imminent Danger and Abatement Order is Invalid. .................................... 7
III. Karl Manke is Not an Imminent Health Threat. ........................................................... 9
IV. This Entire Case Rests Upon Executive Orders That Are Unlawful. ......................... 17
V. The Preliminary Injunction Factors Favor Mr. Manke. .............................................. 29
CONCLUSION ............................................................................................................................. 35
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INDEX OF AUTHORITIES
CASES:
Bridges v State of California, 314 US 252 (1941) . . . . . 20
Brouwer v Bronkema, 377 Mich 616; 141 NW2d 98 (1966) . . . . 18
Cantwell v Connecticut, 310 US 296 (1940) . . . . . . 15
Charter Twp of Meridian v Roberts, 114 Mich App 803 (1982) . . . 12
Citizens United v Federal Election Comm’n, 130 SCt 876 (2010) . . . 19
Cole v City of Memphis, 839 F3d 530 (6th Cir 2016) . . . . . 28
Cyrus v Calhoun County Sheriff, 85 Mich App 397; 271 NW2d 249 (1978) . 27
Detroit Fire Fighters Ass'n, IAFF Local 344 v City of Detroit, 482 Mich 18, 753 NW2d 579 (2008) . . . . . . . 3
Duffy v Michigan Dept of Natural Resources, 490 Mich 198; 805 NW2d 399 (2011) 25
Edenfield v Fane, 507 US 761 (1993) . . . . . . 19
Federal Election Comm'n v Wisconsin Right To Life, Inc, 551 US 449 (2007) . 19
Hammel v Speaker of House of Representatives, 297 Mich App 641; 825 NW2d 616 (2012) . . . . . . 29
Holder v Humanitarian Law Project, 561 US 1 (2010) . . . . 21-22
Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905) . . . 31
Marbury v Madison, 5 US 137 (1803) . . . . . . 18
Marc Slis et al v State of Michigan et al, ____ Mich App ____ (2020) (Docket No. 351211) . . . . . . . . . 33
McCullen v Coakley, 134 SCt 2518 (2014) . . . . . . 22
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Mich House of Rep & Mich Senate v Whitmer, Court of Claims No 20-000079-MZ (2020) . . . . . . 17
Michigan Coalition of State Employee Unions v Michigan Civil Service Com'n, 465 Mich 212; 634 NW2d 692 (2001) . . . . . . 32
Meyer v Nebraska, 262 US 390 (1923) . . . . . . 24
Mitcham v City of Detroit, 355 Mich 182 (1959) . . . . . 18
New York Times Co v Sullivan, 376 US 254 (1964) . . . . . 19
Perry Ed Assn v Perry Local Ed Assn, 460 US 37 (1983) . . . . 19
Rankin v McPherson, 483 US 378 (1987) . . . . . . 19
Shavers v Kelley, 402 Mich 554; 267 NW2d 72 (1978) . . . . 23
Snyder v Phelps, 131 SCt 1207 (2011) . . . . . . 19
Texas v Johnson, 491 US 397 (1989) . . . . . . . 20-21
United States v O’Brien, 391 US 367; 88 S Ct 1673; 20 L Ed2d 672 (1968) . 21
United States v Playboy Entm’t Group, 529 US 803 (2000) . . . . 19
US Trust Co of New York v New Jersey, 431 US 1 (1977) . . . . 29
Weisgerber v Ann Arbor Center for Family, 447 Mich 963, 521 NW2d 601 (1994) 6
Wood v Georgia, 370 US 375 (1962) . . . . . . . 20
STATUTES:
MCL 10.31 . . . . . . . . . . 26-28
MCL 30.401 . . . . . . . . . . 26
MCL 30.402 . . . . . . . . . . 27
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MCL 30.403 . . . . . . . . . . 26-27
MCL 333.2251 . . . . . . . . . 9, 31
MCL 333.2455(1) . . . . . . . . . 7
CONSTITUTIONS:
Const 1963, art I, § 2 . . . . . . . . . 23
Const 1963, art I, § 6 . . . . . . . . . 18
US Const, Am I. . . . . . . . . . 18
US Const, Am XIV. . . . . . . . . . 23
US Const, art I, § 10 . . . . . . . . . 28
COURT RULES:
MCR 7.211(C)(4) . . . . . . . . . vi, 5
MCR 3.310 . . . . . . . . . . 29
MCR 7.303(B) . . . . . . . . . vii
MCR 7.305 . . . . . . . . . . vii, 4-5
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ALLEGATIONS OF ERROR AND RELIEF SOUGHT
This is a case of first impression. The COVID-19 virus has not only infected citizens in
Michigan, it has infected and is now threatening our government and the Rule of Law.
Constitutional rights, statutes, and court rules are not suspended because of a virus and neither is
our republican form of government. The State’s actions in this case, and the corresponding rubber
stamp by a divided Court of Appeals, is not only a threat to the rights of Mr. Manke, but is a threat
to every citizen in Michigan.
The erosion of the Rule of Law is perfectly exemplified by the Court of Appeal’s
peremptory reversal of the Trial Court. MCR 7.211(C)(4) explicitly and unequivocally requires
that a peremptory reversal of a lower court be “unanimous.” Despite the Court of Appeals’ decision
being 2-1, the majority ignored the law, ignored the court rule, and summarily reversed the trial
court. This cannot stand.
In addition, Mr. Manke has raised numerous constitutional and statutory issues regarding
the State’s actions relating to COVID-19. As further explained below, these issues must be
properly addressed on the merits with proper opportunity to brief the issues, engage in oral
argument, and permit amicus briefs to be filed. For all the reasons stated below, Mr. Manke
respectfully requests that his Emergency Application for Leave to Appeal be granted, that the
Court of Appeals’ decision be vacated, and, due to the complex issues in this case, that this
Honorable Court quickly hear this case on the merits with full plenary review and oral argument.
These issues deserve finality, and only this Honorable Court can provide it.
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JURISDICTIONAL STATEMENT AND ORDER APPEALED
The Court of Appeals entered its order peremptorily reversing the Trial Court’s Order
(Exhibit A) and remanded the case to the Trial Court to issue a Preliminary Injunction on May 28,
2020 (Exhibit B). Mr. Manke is appealing the Court of Appeals’ Order. This Honorable Court has
jurisdiction to consider Appellant’s Application for Leave to Appeal pursuant to MCR 7.303(B)
and MCR 7.305.
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QUESTION PRESENTED
I. WHETHER THE COURT OF APPEALS ERRONEOUSLY ORDERED THE PEREMPTORY
REVERSAL OF THE TRIAL COURT?
COURT OF APPEALS’ ANSWER: NO
PLAINTIFF/APPELLEE’S ANSWER: NO
DEFENDANT/APPELLANT’S ANSWER: YES
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INTRODUCTION
“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be
pronounced the very definition of tyranny.” - James Madison
This case is about forced compliance with unchecked executive authority under the guise
of public health. The State’s real intent is about persecuting a barber for protesting an unlawful
Imminent Danger and Abatement Order (Abatement Order) based upon illegitimate Executive
Orders (EOs).
The State’s entire case rests upon fear, speculation, and hyperbole. Rather than providing
evidence of infection being spread by Mr. Manke, the State just repeatedly proclaims the general
dangers from the COVID-19 virus. We live in a free country whose Constitution remains relevant
and in force, even during a pandemic. State imposed draconian measures, such as shutting down
every barber and unfavored business without hearing or notice, requires more evidence than mere
speculation and conclusory statements.
The State’s case is the very realization of James Madison’s fear of tyranny. The Executive
Branch has legislated new law via executive fiat (through the Governor’s EOs and MDHHS
orders), executed those new laws, and now demands that their actions be given a rubber stamp by
this Honorable Court. However, no more important reason for judicial review of executive action
exists than restoring constitutional governance, ensuring statutory compliance, and preventing this
kind of bureaucratic harassment.
Ironically, the State proclaims that “no one is above the law,” while the Governor acts as
if she is the human embodiment of law, issuing daily edicts for the citizenry to obey. Moreover,
the Governor’s own statement perfectly illustrates what is happening in this case. For weeks the
Governor has complained that people congregating to protest her orders would cause a spike in
cases, spread the virus, and very likely force her to vindictively keep her lock-down orders in place
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even longer. However, no spike or increase in the spread of the virus occurred. Further, when the
media asked the Governor what proof or evidence she has to substantiate her claim that such
constitutionally protected demonstrations spread the virus, the Governor responded, “I don’t have
proof.”1
Despite her own admission of not having proof, the Governor nonetheless threatened to
prolong her orders because of a clear animosity toward protests against her. This is abuse of power.
Mr. Manke contends the State’s true interest in this case is forced obedience to unlawful EOs,
rather than any actual, demonstrable risk to the public from his small barbershop in Owosso.
Despite having no actual proof of Mr. Manke spreading disease, the State simply relies on
conclusory, unproven allegations.
STATEMENT OF FACTS
Karl W. Manke is a licensed barber in Shiawassee County, Michigan who operates Karl
Manke Main St. Barber & Beauty Shop. Petitioner has operated his barber business for 59 years
without any complaints or adverse action against his licenses.
Governor Whitmer issued numerous EOs requiring certain unfavored businesses to shut
down and for individuals to stay at home. Her EOs allow certain favored businesses to remain
open while denying Mr. Manke the opportunity to operate his business under the same safety
protocols as the businesses permitted to remain open.
Based upon the Governor’s EOs,2 MDHHS issued an Imminent Danger and Abatement
Order on May 8, 2020.
1 https://www.washingtontimes.com/news/2020/may/14/gretchen-whitmer-i-dont-have-proof-behind-claim-pr/ 2 Mr. Manke contends all of the Governor’s current EOs issued since April 30, 2020, are illegal, unlawful, and unenforceable. The EOs violate state law because of the constitutional issues raised, and because the Michigan Legislature refused to grant an extension of her declaration of emergency past that date (pursuant to MCL 30.403).
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Mr. Manke is following all of the requirements of the Administrative Code regarding
barbers and has taken further measures to ensure client safety, such as:
• Placing chairs 6 feet apart in the waiting area; • Sterilizing every tool, scissor, razor, and clipper after each client; • Sanitizing the chair and area around the chair after each client; • Wearing a mask covering his nose and mouth while he is with clients; and • Washing and sanitizing his hands after each client.
Because MDHHS never conducted a thorough or adequate investigation, it is unaware of
these extra safety procedures.
MDHHS attempted to obtain an Ex-Parte Temporary Restraining Order (TRO) through the
Shiawassee Circuit Court without notice, hearing, or an opportunity to be heard prior to its entry.
Following the Circuit Court’s denial of the TRO request, Appellant filed a Motion for Preliminary
Injunction on the following day, May 12, 2020. Appellant filed an Emergency Appeal to this
Honorable Court of the TRO denial by the Circuit Court. This Honorable Court held in abeyance
Appellant’s request for TRO and ordered the Circuit Court to hold a Preliminary Injunction (PI)
hearing and issue a ruling by May 21, 2020. After conducting the PI hearing, the Circuit Court
properly denied Appellant’s Motion for PI, and Appellant subsequently renewed its Emergency
Application for Leave to Appeal. The Court of Appeals peremptorily reversed the Trial Court on
May 28, 2020, and remanded the case for a Preliminary Injunction to be issued.
STANDARD OF REVIEW
This Honorable Court reviews a lower court's grant or denial of a Preliminary Injunction
for abuse of discretion. Detroit Fire Fighters Ass'n, IAFF Local 344 v City of Detroit, 482 Mich
18, 753 NW2d 579 (2008). There is an abuse of discretion when the lower court's decision falls
outside the range of principled outcomes. Id.
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GROUNDS FOR APPEAL
This Court should grant Mr. Manke’s Application for Leave to Appeal pursuant to MCR
7.305(B)(2), (3), and (5)(a) and (b).
I. THE ISSUES IN THIS CASE INVOLVE LEGAL PRINCIPLES OF MAJOR SIGNIFICANCE TO THE STATE’S JURISPRUDENCE, THE CASE HAS SIGNIFICANT PUBLIC INTEREST, AND THE CASE WAS BROUGHT BY A STATE AGENCY. MCR 7.305(B)(2) AND MCR 7.305(B)(3).
The State’s persecution of Mr. Manke has received national attention. There is a statewide
debate as to the validity of Governor Whitmer’s unlawful EOs and their subsequent enforcement.
The foundation for the entire case against Mr. Manke is based upon those unlawful EOs. Indeed,
if those EOs did not exist, Mr. Manke would not be in this position. Further, all citizens in
Michigan are pleading for judicial review of the Governor’s unprecedented actions. Rationality
and the Rule of Law must be restored. Finally, this case was brought by the Michigan Department
of Health and Human Services, a State agency. Judge Swartzle noted in his dissent (Emphasis
added):
With respect to the merits, both parties raise important issues—in my opinion, maybe the most jurisprudentially significant issues this State has seen in years or decades. The arguments raised in this case overlap with similar arguments in other cases, see, e.g., Michigan House of Representatives v Governor, Court of Claims, Docket No. 20-000079-MZ; Michigan United for Liberty v Governor, Court of Claims, Docket No. 20-000061-MZ. One of the most significant arguments is over the question of the constitutional and statutory validity of the Governor’s post-April 29, 2020, Executive Orders.
Therefore, this Honorable Court has proper grounds to review Mr. Manke’s appeal.
II. MR. MANKE’S APPEAL IS PROPER BECAUSE HE WOULD SUFFER MATERIAL INJUSTICE IF THE COURT OF APPEALS DECISION STANDS. MCR 7.305(B)(5)(A).
The Court of Appeals’ decision is clearly erroneous because it egregiously violated MCR
7.211(C)(4) and its explicit requirement of a unanimous decision in order for the court to
summarily or peremptorily reverse a lower court prior to plenary review. Further, the Court of
Appeals improperly analyzed Mr. Manke’s constitutional and statutory arguments. For all the
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reasons stated below, the State violated Mr. Manke’s constitutional rights, violated statutory law,
and is attempting to enforce unlawful EOs. These violations would cause Mr. Manke to suffer
material injustice if the Court of Appeals’ decision is permitted to stand. Therefore, this Honorable
Court has proper grounds to review Mr. Manke’s appeal.
III. MR. MANKE’S APPEAL IS PROPER BECAUSE THE COURT OF APPEALS’ DECISION CONFLICTS WITH PRECEDENT. MCR 7.305(B)(5)(B).
As further analyzed below, the Court of Appeals improperly applied prior Michigan
Supreme Court and Court of Appeals’ precedent relating to Mr. Manke’s constitutional and
statutory rights. Again, there are numerous complex constitutional and statutory issues at issue in
this case. These issues deserve a plenary review.
ARGUMENT
THE COURT OF APPEALS ERRONEOUSLY ORDERED THE PEREMPTORY REVERSAL OF THE TRIAL COURT.
I. The Court of Appeals Violated MCR 7.211(C)(4).
MCR 7.211(C)(4) states (Emphasis added):
Motion for Peremptory Reversal. The appellant may file a motion for peremptory reversal on the ground that reversible error is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission. The decision to grant a motion for peremptory reversal must be unanimous. An order denying a motion for peremptory reversal may identify the judge or judges who would have granted it but for the unanimity requirement of this subrule.
The State requested a summary/peremptory reversal of the trial court prior to a plenary
review of the case. The Court of Appeals improperly granted their request and peremptorily
reversed the trial court. The Court of Appeals did not cite to any specific court rule when it
summarily reversed the trial court. Judge Swartzle stated in his dissent:
Where I diverge from my colleagues is with the additional relief that they grant on an immediate basis. Under our court rules, a “peremptory reversal” is proper where “reversible error is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission.”
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Importantly, the decision to grant such relief “must be unanimous.” MCR 7.211(C)(4). As I read the majority’s language, the majority has ordered “an immediate reversal” of the trial court’s denial of preliminary injunctive relief without formal submission to a merits panel drawn randomly from the entire court, without oral argument, without the opportunity for amici briefs, and without a unanimous vote by this motions panel.3
Because the Court of Appeals did not permit the case to be assigned to a panel on the
merits, permit full briefing, or allow for oral argument, it is wholly unlawful for the Order to
summarily or peremptorily reverse the trial court based upon a 2-1 decision. The Michigan
Supreme Court stated:
Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required. In the instant case, factual and legal assessment is required. Peremptory disposition is not appropriate.
Weisgerber v Ann Arbor Center for Family, 447 Mich 963, 521 NW2d 601 (1994) (LEVIN, J.,
dissenting) (Emphasis added).
This case is overflowing with unsettled issues and law. The Governor’s EOs are unlawful
and infringe on numerous constitutional and statutory rights. The basis for the Abatement Order
was the Governor’s EOs. Indeed, no one could have predicted even three months ago that State
police power would be expanded to such a degree to close nearly every business in the state, close
every church on Easter, and order every citizen in Michigan to remain in their homes.
Indeed, it is an unprecedented step to order a 77-year-old barber with a clean license history
for 59 years, to close his barbershop because he might, potentially, sometime in the future, have a
virus. All of these issues are unparalleled in our State’s history and it was wholly inappropriate,
and in clear violation of the court rules, for the Court of Appeals to peremptorily reverse the trial
court without a full plenary review of these issues. These issues are far from settled.
3 Court of Appeals Order, Exhibit B, pg. 6.
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On this issue alone the Court of Appeals’ Order should be vacated. Mr. Manke respectfully
requests, due to the complex issues in this case, that this Honorable hear this case on the merits
with fully plenary review and oral argument.
II. MDHHS’ Imminent Danger and Abatement Order is Invalid.
MDHHS derives its authority from statute. MCL 333.2455(1) states (emphasis added):
A local health department or the department may issue an order to avoid, correct, or remove, at the owner's expense, a building or condition which violates health laws or which the local health officer or director reasonably believes to be a nuisance, unsanitary condition, or cause of illness.
A. Nuisance.
The State has produced no evidence that Mr. Manke’s building or a condition of his
business is a nuisance. The Abatement Order merely cites the law and then proclaims in the
conclusion that Mr. Manke is a nuisance. It provides no reasoning, evidence, or analysis as to how,
why, or in what way Mr. Manke’s building, or a condition within Mr. Manke’s building, is a
nuisance.
B. Unsanitary Condition.
Similarly, the State has produced no evidence that Mr. Manke’s building or the condition
of his building has unsanitary conditions. The Abatement Order merely cites the law, and then
proclaims in the conclusion that Mr. Manke has an unsanitary condition. It provides no reasoning,
evidence, or analysis as to how, why, or in what way Mr. Manke’s building, or a condition within
Mr. Manke’s building, has an unsanitary condition. Mr. Manke is following all of the necessary
health and safety procedures that are required of all barbers.
C. Cause of Illness.
A close inspection of the Abatement Order and other evidence produced by the State never
alleges that Mr. Manke is a “cause of illness” as required by the statute. Instead, the State alleges
that Mr. Manke may “potentially” cause illness. (See Abatement Order, pg. 6) This is insufficient
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to force the closure of Mr. Manke’s business. The statute specifically requires the State to prove
that Mr. Manke is the “cause of illness.” The State knows it cannot meet the statutory standard,
because it has presented no proof that Mr. Manke or his building is actually causing illness.
D. General vs. Specific Allegations.
Rather than presenting specific allegations, evidence, or analysis against Mr. Manke, the
State’s entire case rests upon general assertions about COVID-19. The State provides a generic
analysis about COVID-19 and its effects, but offers no specific allegations, or evidence that, Mr.
Manke has caused the spread of even a single case of COVID-19.
The State is engaging in a shell game and sleight of hand. No one disputes that COVID-19
can potentially cause death, but so can many other diseases, such as influenza, pneumonia, H1N1,
Bird-Flu, SARS, MERS, etc. That is not the question in this case. Everyone agrees, in general, that
diseases exist and may be fatal.
The proper question is whether Mr. Manke or his building, specifically, have been a “cause
of illness” to such a degree that they must be forcibly closed by the State. The State’s case is
completely devoid of any such statutorily required specific allegations. Pure speculation,
hyperbole, and allegations that Mr. Manke might “potentially cause illness” is not sufficient for
the State to forcibly close Mr. Manke’s business.
E. The Abatement Order Directed Mr. Manke to Close Because of Governor Whitmer’s EOs.
After reciting the EOs throughout the Abatement Order, it concludes by stating (emphasis
added):
Acting on this reasonable belief, I, under the authority granted by sections 2251 and 2455 of the Public Health Code, order Karl Manke's Barbershop to immediately comply with the Governor's Executive Order 2020-69, which requires all facilities providing non-essential personal care services to remain closed through May 28, 2020, and order Karl Manke's Barbershop to immediately close to the public.
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Rather than listing, explaining, or enumerating how Mr. Manke is a “nuisance, unsanitary
condition, or cause of illness,” MDHHS simply concludes that he must be forcibly closed because
he is in violation of the Governor’s EOs. This statement reveals the State’s tainted motive. This
case is not about lawfully establishing that Mr. Manke’s actions constitute a public health threat,
rather, this case is about retaliating against Mr. Manke for not passively submitting to the
Governor’s unlawful EOs. Further, Judge Swartzle noted in his dissent:
The validity of the recent Executive Orders is a key question in this and related cases. I have serious doubts, for example, whether the administrative order in this case would have been issued absent the Executive Orders related to Covid19, including those issued after April 29, 2020.4
As the numerous lawsuits against Governor Whitmer illustrate, and more fully explained
below, her EOs are unconstitutional, unlawful, and are violative of Michigan statutory law. The
foundation and rationale of this entire action is based upon Governor Whitmer’s EOs. Thus, if her
EOs are unlawful, then the Abatement Order is unlawful as well. This State action is simply an
attempt to enforce Governor Whitmer’s unlawful EOs under the guise and pretext of an Abatement
Order. The Abatement Order is invalid for the reasons stated, as well as being based upon unlawful
EOs.
III. Karl Manke is Not an Imminent Health Threat.
The State further relies upon MCL 333.2251(1) which states:
Upon a determination that an imminent danger to the health or lives of individuals exists in this state, the director immediately shall inform the individuals affected by the imminent danger and issue an order that shall be delivered to a person authorized to avoid, correct, or remove the imminent danger or be posted at or near the imminent danger. The order shall incorporate the director's findings and require immediate action necessary to avoid, correct, or remove the imminent danger. The order may specify action to be taken or prohibit the presence of individuals in locations or under conditions where the imminent danger exists, except individuals whose presence is necessary to avoid, correct, or remove the imminent danger.
4 Court of Appeals Order, Exhibit B, pg. 7.
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This section does not apply to Mr. Manke because the State has no evidence that an
imminent danger exists at Mr. Manke’s barbershop. The State provides no factual support for its
claims besides speculation, platitudes, and generalizations about COVID-19.
The State alleges that social distancing is the only way to combat COVID-19. However,
the State’s own actions illustrate this is false. Numerous businesses are already permitted to open
using recommended precautions and safety measures (e.g. EO 2020-77). If it is truly such a threat
of death that anyone who comes within 6 feet of another person will possibly die, then under that
logic, all businesses should be closed, not just unfavored businesses.
Governor Whitmer announced on May 18, 2020, that she would be allowing parts of the
state to reopen for business.5 If places such as Lowe’s, GM factories, marijuana shops, dentists,
chiropractors, or Taco Bell can be open using safety precautions, then Mr. Manke can be open
using the same safety protocols.
If the State truly believed that COVID-19 is such a public health threat, in and of itself,
then it would logically have to shut down all businesses where there is even a chance of person-
to-person interaction. To be sure, there is no “essential business” or “Executive Order” exception
to the public health code. The same standard must apply to all businesses. The State cannot
arbitrarily choose which businesses may be open and which businesses must be closed, because
they are all facing the exact same health threat. The State has no more of a case against Mr. Manke
than it could raise against any random Home Depot, Wendy’s, or chiropractor currently open in
Michigan.
Typically, an Abatement Order is utilized when an actual cause of illness has been found
in the community. For example, if a hotel is found to have an outbreak of Legionnaire’s Disease,
5 https://www.detroitnews.com/story/news/local/michigan/2020/05/18/whitmer-announce-reopening-plans/5212594002/
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then obviously the State has the authority to temporarily shut down that hotel in order to handle
that specific health threat. That is not what is happening here. Using that same example, the State
is essentially arguing that it has the authority to shut down that same hotel even though it has no
evidence of any Legionnaire’s Disease, merely because Legionnaire’s Disease exists elsewhere in
the state and the hotel might be a cause of illness at some point in the future.
No proper investigation at the barbershop has been conducted by the State in this matter.
This is clear because no State official has set foot inside Mr. Manke’s shop to conduct an
investigation. MDHHS’ Complaint and Motion for PI are devoid of specific facts that would
support its assertion that Mr. Manke or his barbershop are an “imminent threat” to the public
health, safety, and welfare of the State of Michigan. Mere conclusions are insufficient to justify
the issuance of a Preliminary Injunction.
A. Not Arresting Karl Manke is Proof that he is not an Imminent Health Threat.
I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the
conscience of the community over its injustice, is in reality expressing the highest respect for law. – Martin Luther King, Jr.
The State repeatedly claims that Mr. Manke and his barbershop are such a severe threat to
public health, that “[e]very second that Manke operates his barbershop poses a significant danger
to the health and lives of the People of the State of Michigan.” However, the State’s actions
demonstrate that it does not actually believe its own words. The Circuit Court discussed this at
length in its opinion denying the State’s PI request.6 If the State truly believed that Mr. Manke was
such a dire health threat and was violating criminal law, certainly it would have ordered his arrest.
It did not. For clarity, Mr. Manke’s position is that he is not in violation of any criminal law for
operating his barbershop in the same manner over the last 59 years. However, a defendant’s
6 Circuit Court Opinion, pgs. 10-12.
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position regarding whether a criminal violation occurred has surely never prevented the State from
making an arrest.
The State improperly relies upon Charter Twp of Meridian v Roberts, 114 Mich App 803
(1982) to support its position that arrest would not be an adequate remedy. This is nonsensical.
Certainly an arrest would immediately prevent Mr. Manke from cutting one more hair on anyone’s
head and put an end to the State’s alleged fear of Mr. Manke’s barbershop. Further, a Court could
order bond conditions.
Moreover, Roberts only dealt with the jurisdictional issue of whether the Trial Court in that
case had the authority to issue a PI. Here, no one disputes that Judge Stewart had the jurisdictional
authority to issue a PI. The State ignores Judge Stewart’s careful analysis and denial of the
requested PI and are now conflating his proper denial on the merits with Robert’s denial for lack
of jurisdiction.
The point of Judge Stewart raising the issue of arrest has nothing to do with remedies,
jurisdiction, or legality. He raises the issue of arrest to illustrate that the State does not truly believe
Mr. Manke is a “imminent health threat.” Judge Stewart properly held:
Plaintiff argues that Defendant has created a public health crisis, and that every second he operates constitutes a new irreparable injury. Plaintiff argues that Defendant is openly violating criminal law. Plaintiff argues that Defendant violated criminal law in the presence of the law enforcement officers serving Defendant with the AO. Defendant’s arrest would almost certainly end the public health threat argued by Plaintiff. And yet Plaintiff seeks a civil remedy, despite other adequate and more immediate remedies provided by law. The Court acknowledges that the law does not require Plaintiff to arrest Defendant before seeking an injunction. Plaintiff maintains an injunction is the only remedy that will end Defendant’s operation and abate the harm. This Court disagrees.7
7 Circuit Court Opinion, pg. 12.
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In the end, the true reason the State has not arrested Mr. Manke is that it knows he is no
more an imminent health threat than GM, Taco Bell, dentists, chiropractors, or any other business
currently open.
B. Health Statistics. “We are seeing that in places that are opening, we're not seeing this spike in cases. We still see
spikes in some areas that are, in fact, closed.” – Alex Azar – U.S. Secretary of Health and Human Services – May 17, 2020.8
No proper investigation at the barbershop has been conducted by the State in this matter.
This is clear because no State official has set foot inside Mr. Manke’s shop to conduct an
investigation. MDHHS’ Complaint is devoid of specific facts that would support its assertion that
Mr. Manke himself or his barbershop are an “imminent threat” to the public health, safety, and
welfare. The allegations in the Complaint of health or sanitary violations are unsupported by
specific facts or sworn affidavits of anyone who has actually set foot in Mr. Manke’s barbershop.
Mere conclusions are insufficient to justify the issuance of a PI. Instead, the actual science and
data demonstrate (primarily from data published by Plaintiff MDHHS):
The average number of new cases per day has plummeted.
From March 22 to April 11, Michigan was averaging almost 1,100 new infections per day.
Michigan peaked for new cases on April 3, 2020. However, the average for last week was
approximately 350. This is despite numerous protests, public gatherings, and other businesses
allowed to open. The virus’ curve has been flattened.9
8 https://www.usnews.com/news/top-news/articles/2020-05-17/no-spike-in-coronavirus-in-places-reopening-us-health-secretary-says 9 https://www.mlive.com/public-interest/2020/05/7-indicators-that-show-michigans-positive-progress-in-the-coronavirus-crisis.html.
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Deaths are down 45%.
Dr. Teena Chopra, of Detroit Medical Center, has stated that deaths are a lagging indicator
that is two weeks behind the current infection numbers. In the last month, the number of deaths
from COVID-19 has dropped by 45%.10 Further, Michigan had only 11 reported deaths in the
entire state on May 17, 2020, the lowest reported since March 24, 2020.11
Hospitalizations are down 64%.
On April 12, 2020, Michigan had a total of 3,986 patients hospitalized for COVID-19. As
of May 11, 2020, that number has dropped to 1,422 across the entire state. Further, on April 12,
2020, 1,570 patients in Michigan were in an ICU, but that number dropped to 684 by May 11,
2020. Dr. Russell Lampen, who is the head of the Infectious Disease Division at Spectrum Health
in Grand Rapids, indicated that the majority of new patients involve more mild cases.12
Further, the 9 million dollar field hospital constructed in Detroit closed after only treating
39 patients.13 Recently, three medical centers and patients sued the Governor because her extreme
EOs are causing hospitals to go bankrupt or close because of lack of patients.14
10 https://www.mlive.com/public-interest/2020/05/7-indicators-that-show-michigans-positive-progress-in-the-coronavirus-crisis.html 11 https://www.mlive.com/news/2020/05/michigan-reports-lowest-daily-coronavirus-deaths-seen-since-late-march.html 12 https://www.mlive.com/public-interest/2020/05/7-indicators-that-show-michigans-positive-progress-in-the-coronavirus-crisis.html 13 https://www.bridgemi.com/michigan-health-watch/detroits-9-million-field-hospital-shuts-after-treating-39-covid-patients 14 https://www.detroitnews.com/story/news/local/michigan/2020/05/12/3-medical-centers-patient-sue-lift-whitmer-ban-medical-services/3120619001/
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COVID-19 testing has almost tripled.
In March of 2020, the State was struggling to test more than 2,000 people each day. By
April, that number had grown to nearly 4,000 per day. Recently, Michigan averaged nearly 11,300
tests each day, which is almost triple of what it was in April.15
Despite this significant increase in testing, there has been a dramatic drop in new cases of
COVID-19. In the first seven days of April, 40% of COVID-19 tests were positive. However, in
the first seven days of May, only 8.5% of tests were positive.16 It is clear from the following chart,
based upon information published by MDHHS, that total testing has dramatically increased yet
positive results have decreased.17
15 https://www.mlive.com/public-interest/2020/05/7-indicators-that-show-michigans-positive-progress-in-the-coronavirus-crisis.html 16 https://www.mlive.com/public-interest/2020/05/7-indicators-that-show-michigans-positive-progress-in-the-coronavirus-crisis.html 17 https://www.mlive.com/public-interest/2020/05/7-indicators-that-show-michigans-positive-progress-in-the-coronavirus-crisis.html
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Other states are not seeing a spike in cases.
Again, as Secretary Azar stated, the evidence is showing that places that are opening are
not seeing a spike in COVID-19, but some places that are closed are seeing spikes. Despite the
actions and extreme measures taken in Michigan, the vast majority of other states that are open for
business and permitting barbers to operate are not seeing a spike in COVID-19 infections or deaths.
Currently, 38 other states permit barbershops to operate while using common-sense safety
measures. Yet, those states are not seeing huge spikes in COVID-19. For example, Georgia opened
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the majority of its businesses on April 25, 2020. Since that time, they have not seen any noticeable
spike in COVID-19.18
IV. This Entire Case Rests Upon Executive Orders That Are Unlawful.
One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St.
Augustine that "an unjust law is no law at all." – Martin Luther King, Jr. – Letter from Birmingham Jail
A PI should not have been issued because of the constitutional violations of Mr. Manke’s
rights and the statutory violations outlined below. The State asked the Circuit Court to enforce its
Abatement Order. However, a review of that Order reveals that it is based almost exclusively upon
the Governor’s EOs, and it merely states the conclusion that Mr. Manke is an imminent health
threat. There are numerous constitutional and statutory issues regarding the legality and
enforcement of the Governor’s EOs, and by extension, any MDHHS order premised upon those
EOs.
Judge Stewart stated in his Opinion that Mr. Manke’s “constitutional and statutory
arguments are entirely unopposed” by the State and it continues to ignore these issues on appeal.19
The closest the State comes to addressing the statutory arguments is in a footnote mentioning the
recent decision by the Court of Claims in Mich House of Rep & Mich Senate v Whitmer, Court of
Claims No 20-000079-MZ (2020).20 However, that decision is by a trial court and this Honorable
Court is not bound by a lower court’s decision. This issue is far from settled and has been appealed
to the Michigan Supreme Court.
The State has yet to directly respond to, or address, any of Mr. Manke’s constitutional or
statutory arguments that both the EOs and the Abatement Order are invalid. At this point, a defense
18 https://www.nytimes.com/interactive/2020/us/georgia-coronavirus-cases.html 19 Circuit Court Opinion, pg. 7. 20 Appellant’s Application for Leave to Appeal to the Court of Appeals, pg. 6, fn. 2.
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to those arguments should be considered abandoned pursuant to Mitcham v City of Detroit, 355
Mich 182 (1959) (holding that “[f]ailure to brief a question on appeal is tantamount to abandoning
it.”).
A. The State’s Actions Violate Mr. Manke’s First Amendment Rights.
“An unjust law is itself a species of violence. Arrest for its breach is more so. Now the law of nonviolence says that violence should be resisted not by counter-violence but by nonviolence.
This I do by breaking the law and by peacefully submitting to arrest and imprisonment.” ― Mahatma Gandhi
The State must act within the confines of our Constitution. Citizens hold many differing
political views, and they often hold them passionately. They may express those views even in ways
that offend government officials. The price for our freedom is that we might be subjected to views
that offend us. Democracy is a messy business, and we, as a people, have freely chosen it over the
relative tidiness of tyranny.
The First Amendment to the United States Constitution protects citizens against
government action substantially interfering with freedom of speech or assembly. US Const, Am I.
The United States Supreme Court currently holds that this limit on the exercise of government
power applies to action by state entities. Cantwell v Connecticut, 310 US 296 (1940). Moreover,
our State Constitution provides similar protection in Article I, Section 6:
Every person may freely speak, write, express and publish his views on all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain or abridge the liberty of speech or of the press.
The United States Supreme Court has clearly affirmed the principle that government action
can be challenged based upon an unconstitutional application of a statute:
So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.
Marbury v Madison, 5 US 137, 178 (1803).
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Where the government regulates expressive activity, the government appropriately bears
the burden of proving that its actions pass constitutional muster. Perry Ed Assn v Perry Local Ed
Assn, 460 US 37, 45-46 (1983). The government’s burden to produce evidence is not satisfied by
mere speculation or conjecture. Instead, it must offer evidence establishing that the problem it
identifies is real, and that the speech restriction will alleviate that problem to a material degree
without unconstitutionally restricting protected First Amendment activity. Edenfield v Fane, 507
US 761, 770-771 (1993); see also United States v Playboy Entm’t Group, 529 US 803 (2000).
“First Amendment standards … ‘must give the benefit of any doubt to protecting rather than
stifling speech.’” Citizens United v Federal Election Comm’n, 130 SCt 876, 891 (2010) (quoting
Federal Election Comm'n v Wisconsin Right To Life, Inc, 551 US 449, 469 (2007) (opinion of
Roberts, C.J.)).
Mr. Manke’s speech is at the core of the First Amendment’s protection because it deals
with matters of public concern. “Speech deals with matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other concern to the community, or when
it is a subject of legitimate news interest; that is, a subject of general interest and of value and
concern to the public.” Snyder v Phelps, 131 SCt 1207, 1216 (2011) (internal quotations omitted).
Speech on matters of public concern is at the heart of the First Amendment’s protection. Id. at
1215. “The First Amendment reflects ‘a profound national commitment to the principle that debate
on public issues should be uninhibited, robust, and wide-open.’” Id. (quoting New York Times Co
v Sullivan, 376 US 254, 270 (1964)). “The arguably ‘inappropriate or controversial character of a
statement is irrelevant to the question whether it deals with a matter of public concern.’” Id.
(quoting Rankin v McPherson, 483 US 378, 387 (1987)).
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Mr. Manke was protesting the Governor’s EOs and her shutdown of the entire State of
Michigan as a result of COVID-19, a topic of political, social, and public concern. See, e.g., Wood
v Georgia, 370 US 375 (1962); Bridges v State of California, 314 US 252 (1941).
Texas v Johnson, 491 US 397 (1989), mandates the protection of Mr. Manke’s First
Amendment rights. In Johnson, the Defendant was criminally prosecuted for burning a flag in
public. Ironically, Mr. Manke is not being prosecuted for burning the flag, but rather, for trying to
preserve the flag and our constitutional form of government. The majority held that the burning of
the flag was conduct that communicates and thus required a strict scrutiny analysis. The Court held
that the State’s action of prosecuting Mr. Johnson did not survive a strict scrutiny analysis, and his
conviction was reversed. Therefore, conduct that communicates, including Mr. Manke protesting
the Governor’s EOs by opening his barbershop and cutting hair, is still deserving of First
Amendment protections.
The Johnson majority held:
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether [a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.
Johnson, 491 US at 404. The Supreme Court acknowledged that, while spoken and written words
were clearly protected, other forms of speech, such as wearing black armbands to protest the
military, conducting a “sit-in” to protest an issue, and picketing were also protected. It is
undisputed that Mr. Manke was conveying a message regarding the Governor’s EOs and shutdown
of all unfavored businesses in Michigan. It is clear that Mr. Manke does have a particularized
message (that the Governor is acting unlawfully and businesses should be free to open), and it is
clear that the people who heard about him opening his barbershop would have understood that
message. Indeed, Mr. Manke has received national attention for the message he is communicating.
Therefore, Mr. Manke was engaged in conduct that communicates.
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The Johnson Court further held:
[The government] may not, however, proscribe particular conduct because it has expressive elements. [W]hat might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.
Id. at 406 (emphasis added). In this case, Mr. Manke has indisputably engaged in actual speech
against the Governor as well as conduct that communicates (protesting by keeping his barbershop
open). The Supreme Court held that there is no distinction between speech and conduct that
communicates. The Johnson Court held:
The State's argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here.
Id. at 416.
The Court of Appeals incorrectly discounted Mr. Manke’s First Amendment arguments
and improperly relied upon United States v O’Brien, 391 US 367, 376; 88 S Ct 1673; 20 L Ed2d
672 (1968). However, The United States Supreme Court held:
The Government argues that [the statute] should nonetheless receive intermediate scrutiny because it generally functions as a regulation of conduct. That argument runs headlong into a number of our precedents, most prominently Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). Cohen also involved a generally applicable regulation of conduct, barring breaches of the peace. But when Cohen was convicted for wearing a jacket bearing an epithet, we did not apply O'Brien. Instead, we recognized that the generally applicable law was directed at Cohen because of what his speech communicated-he violated the breach of the peace statute because of the offensive content of his particular message. We accordingly applied more rigorous scrutiny and reversed his conviction. This suit falls into the same category. The law here may be described as directed at conduct, as the law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering coverage under the statute consists of communicating a message. As we explained in Texas v. Johnson: "If the [Government's] regulation is not related to expression, then the less stringent standard we announced in United States v. O'Brien for regulations of
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noncommunicative conduct controls. If it is, then we are outside of O'Brien's test, and we must [apply] a more demanding standard."
Holder v Humanitarian Law Project, 561 US 1, 27-28 (2010) (emphasis added) (internal citations
omitted).
It is clear that the State persecuted Mr. Manke because of his protestations against the
Governor, despite using a generally applicable statute as a vehicle to do so. Just as in Holder, the
conduct in this case which triggered the State’s action consisted of Mr. Manke communicating a
message and protesting the legality of the Governor’s EOs. Therefore, the State’s action must
survive a strict scrutiny analysis.
The State’s actions must withstand strict scrutiny before it can punish Mr. Manke for
speaking out against the Governor or cutting hair in protest. The First Amendment does not provide
absolute protection. However, it does require that the State satisfy the strict scrutiny test before its
action can be upheld. Under strict scrutiny, the government must prove:
1) that it had a compelling governmental interest in regulating Mr. Manke’s speech and
conduct that communicates, and
2) that it used the least restrictive means possible to serve that compelling interest.
See, e.g., McCullen v Coakley, 134 SCt 2518, 2530 (2014).
As explained in this brief, the State currently does not have a compelling interest in shutting
down Mr. Manke and his barbershop. The State has produced no evidence to prove that Mr. Manke
is any more of a threat to the public than Wal-Mart, GM, Taco Bell, chiropractors, dentists, or any
other favored businesses that are already permitted to open. The justification for the initial EOs
was to flatten the curve and to prevent the health care system from being overwhelmed with
COVID-19 patients. This has been achieved as outlined above. It is now time to flatten the fear
curve and the State’s oppressive EOs and treat all businesses fairly and equally.
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Further, the State has not offered any reason as to why shutting down Mr. Manke is the
least restrictive means to protect the public. Again, if other businesses are permitted to open using
safety measures, then Mr. Manke should be permitted to open using those very same measures.
The State’s targeting of Mr. Manke is not rooted in an altruistic concern over the public health, but
rather is an act of retaliation because of his courage to speak out against the Governor through
speech and action. In this case, the State has neither a compelling interest, nor is it using the least
restrictive means, to shut down Mr. Manke’s protest against the Governor. Therefore, the Court of
Appeals must be overturned.
B. The State’s Action Violates Mr. Manke’s Constitutional Right to Equal Protection.
Mr. Manke is guaranteed equal protection under the law pursuant to the 14th Amendment
of the United States Constitution and Article I, Section 2 of Michigan’s 1963 Constitution. The
Michigan Supreme Court held that a person alleging an equal protection violation:
may attack its constitutionality in terms of purely legal arguments (if the legislative judgment is so arbitrary and irrational as to render the legislation unconstitutional on its face) or may show, by bringing to the court's attention facts which the court can judicially notice, that the legislative judgment is without rational basis.
Shavers v Kelley, 402 Mich 554, 614-615; 267 NW2d 72 (1978). Mr. Manke is bringing to this
Court’s attention all of the facts cited above. The Michigan Supreme Court further stated:
With the notable expansion of the scope of governmental regulation, and the consequent assertion of violation of constitutional rights, it is increasingly important that when it becomes necessary for the Court to deal with the facts relating to particular commercial or industrial conditions, they should be presented concretely with appropriate determinations upon evidence, so that conclusions shall not be reached without adequate factual support.
Id. at 616.
The United States Supreme Court has extensively discussed the equal protection doctrine:
The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper
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exercise of police power is not final or conclusive but is subject to supervision by the courts.
Meyer v Nebraska, 262 US 390, 400 (1923) (Emphasis added). In this case, the only evidence
presented by the State is the speculative opinion of executive branch bureaucrats, not any facts or
evidence specific to Mr. Manke, his building, or his business. Further, the arbitrariness of which
businesses can be open is perfectly exemplified by no one in Michigan knowing how, when, or
why Governor Whitmer might allow more businesses to operate. Everyone in Michigan must
simply wait for the Governor to issue her next decree, and hope that they made her list of favored
businesses.
Mr. Manke’s equal protection rights are “not limited only to the protection of those
fundamental rights that are granted by the Federal Constitution or otherwise protected by it; rather,
it extends its protective cover to all rights, whether granted by Federal or State constitutions,
congressional or legislative enactments, executive order or otherwise, and against all forms of
State action, executive, legislative, or even judicial.” Brouwer v Bronkema, 377 Mich 616, 643;
141 NW2d 98 (1966).
The Michigan Supreme Court further held:
The controlling legal principles are plain. The command of the Fourteenth Amendment is that no 'State' shall deny to any person within its jurisdiction the equal protection of the laws. 'A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government * * * denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning.' Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action, or whatever the guise in which it is taken.
Id. at 643-644 (internal citations omitted).
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The Court continued and held that “[t]he equal protection of the laws means subjection to
equal laws, applying alike to all in the same situation.” Id. at 644-645. In this case, the laws are
not being applied alike to all in the same situation. Purely based on executive fiat, the Governor
and others have decreed that some businesses are favored, and some are not. Some businesses can
open using safety protocols, some cannot.
If Taco Bell can be open, then so should Mr. Manke. If marijuana shops can be open, so
should Mr. Manke. If chiropractors can be open, so should Mr. Manke. The State has presented no
facts proving Mr. Manke is such a dire risk to the public, but a worker, for example, who is
physically touching and preparing fast food for the public is not. Further, an average fast food
worker comes in contact with exponentially more people on an average day compared to the
number of people who may get a haircut from Mr. Manke.
The Governor cannot arbitrarily and capriciously pick business winners and losers without
violating equal protection rights. Businesses should not be forced to watch the Governor’s EO
press conferences with bated breath, waiting to see if they are one of the lucky ones given
permission to open. The State’s treatment of Mr. Manke violates the Equal Protection clauses of
both the Michigan and United States Constitutions, is wholly arbitrary, and is not rationally related
to a State interest.
C. The Governor’s COVID-19 Executive Orders are Statutorily Invalid.
The State’s persecution of Mr. Manke is based upon the Governor’s EOs. To be sure, if
those EOs did not exist, Mr. Manke would not be in this position. If the Governor’s EOs are
deemed unlawful, then the entire case against Mr. Manke based on those unlawful EOs would have
no foundation.
It is a well-settled legal principle that “courts will regard all statutes upon the same general
subject matter as part of one system.” Duffy v Michigan Dept of Natural Resources, 490 Mich 198,
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206; 805 NW2d 399 (2011). Individual statutes do not operate in a vacuum and are often defined,
curtailed, or limited by other statutes.
The two statutes cited by the Governor, MCL 10.31 and MCL 30.401, must be read
together as being a part of “one system.” The Governor cannot choose to follow one statute while
ignoring the other. MCL 10.31 (Emergency Powers of Governor) conveys the general power for
the Governor to issue executive orders during an emergency or disaster. The statute is silent as to
the maximum duration of a declaration of emergency or disaster. The Governor is wrong in her
belief that the duration of her emergency powers may be continued in her sole discretion ad
infinitum.
The other more recently enacted emergency statute, MCL 30.401 (Emergency
Management Act), outlines the procedures and logistics during an emergency or disaster
(specifically including epidemics), and it explicitly limits the maximum duration of an emergency
order:
The state of emergency shall continue until the governor finds that the threat or danger has passed, the emergency has been dealt with to the extent that emergency conditions no longer exist, or until the declared state of emergency has been in effect for 28 days. After 28 days, the governor shall issue an executive order or proclamation declaring the state of emergency terminated, unless a request by the governor for an extension of the state of emergency for a specific number of days is approved by resolution of both houses of the legislature.
Because Michigan’s emergency powers statutes are considered “one system,” the
Governor is required to obtain an extension from the Legislature if she believes the emergency
will last longer than 28 days. Failure to do so violates MCL 30.403.
A Governor may not, under the pretext of an emergency, execute the laws that enhance her
authority while ignoring the laws that limit it. It is Governor Whitmer’s responsibility to ensure
that all laws are faithfully executed, even those laws which she may personally consider to be
burdensome or unnecessary.
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In addition, the foundational principle of “checks and balances” is furthered by requiring
that the Governor’s emergency orders be approved by resolution of the Legislature after 28 days.
This ensures that all citizens of Michigan (through their representatives) have input into the
management of an emergency, not just one sole executive.
Further, the Governor previously conceded that she needs Legislative approval to extend
the state of emergency because she already requested, and the Legislature approved, an extension
of her emergency powers until April 30, 2020. It would be nonsensical for the Governor to have
asked for such an extension if she truly believed that it was not necessary.
MCL 10.31 (enacted in 1945) is a general statute bestowing upon the Governor certain
powers during a state of emergency or disaster. Again, it is silent as to the maximum duration of a
state of emergency or disaster. To the contrary, MCL 30.403 (enacted in 1976) is a specific statute
relating to the procedure of establishing a state of emergency or disaster, its maximum duration,
and the process of obtaining an extension. The Michigan Court of Appeals held:
It is an established rule of statutory construction that a specific statute takes precedence over a general one and is viewed as an exception thereto. . . . "(W)here there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other is general, and would, if standing alone, include the same matter and thus conflict with the special act or provision, the special act must be taken as intended to constitute an exception to the general act or provision, * * * as the legislature is not presumed to have intended conflict."
Cyrus v Calhoun County Sheriff, 85 Mich App 397, 400; 271 NW2d 249 (1978).
MCL 30.403 specifically provides that a state of emergency or disaster for an epidemic
may last only for 28 days through an executive declaration, and any further extension must be
approved by the Legislature. In short, the specific language in MCL 30.403 “takes precedence”
over the general language in MCL 10.31.
In addition, MCL 10.31 does not state that it specifically controls during an epidemic.
However, MCL 30.402 specifically defines “disaster” to include “widespread or severe damage,
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injury, or loss of life, or property resulting from a[n] . . . epidemic.” Therefore, MCL 30.403
specifically governs widespread epidemics and would control over any general authority conveyed
in MCL 10.31.
The Governor must faithfully execute all laws, especially when the Governor’s actions
require approval of another branch of government. Even during times of emergency, we must hold
strong to our foundational principles and our constitutionally guaranteed representative form of
government. Despite the temptation to overlook unchecked power given to a sole executive during
an emergency in the name of expediency or convenience, it is particularly important during these
times to uphold our constitutional principles and the Rule of Law.
D. The Governor’s COVID-19 Executive Orders Violate the Fourteenth Amendment.
“[T]he Due Process Clause of the Fourteenth Amendment protects the ‘right to travel
locally through public spaces and roadways.’” Cole v City of Memphis, 839 F3d 530, 535 (6th Cir
2016). If a travel restriction regulates the time or manner of access to a place, it is subject to
intermediate scrutiny. Id. at 537. If it broadly limits access, as in this case, it is subject to strict
scrutiny. Id. Here, the EOs’ overly broad travel restrictions cannot survive strict scrutiny, the
highest scrutiny under the law, particularly in light of the arbitrary exceptions permitted. Further,
the restriction fails intermediate scrutiny as well, because there is no substantial governmental
interest in arbitrarily deciding which businesses are favored and which are not.
Finally, the Abatement Order is simply retaliation for Mr. Manke not complying with the
Governor’s EOs. Indeed, if the EOs did not exist, then the Abatement Order never would have
been issued. The only reason Mr. Manke has been targeted is because the Governor decreed that
his business must be closed.
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E. The Governor’s COVID-19 Executive Orders violate the Right to Contract.
The Governor cannot impair a private citizen’s right to contract. The Contracts Clause of
the United States Constitution, Article I, Section 10, states, “No State shall ... pass any ... Law
impairing the Obligation of Contracts[.]” “It long has been established that the Contracts Clause
limits the power of the States to modify their own contracts as well as to regulate those between
private parties.” US Trust Co of New York v New Jersey, 431 US 1, 17 (1977). In this case, the
Governor has arbitrarily decided that favored businesses can perform their contracts, while the
unfavored businesses must shut down. This violates Mr. Manke’s right to contract.
V. The Preliminary Injunction Factors Favor Mr. Manke.
The factors for injunctive relief favor Mr. Manke pursuant to MCR 3.310. The Court of
Appeals has summarized the requirements for a preliminary injunction:
The purpose of a preliminary injunction is to preserve the "status quo pending a final hearing regarding the parties' rights." Mich. AFSCME Council 25, 293 Mich.App. at 145, 809 N.W.2d 444 (quotation marks and citation omitted). " A court's issuance of a preliminary injunction is generally considered equitable relief." Id. To obtain a preliminary injunction, the moving party " bears the burden of proving that the traditional four elements favor the issuance of a preliminary injunction." Detroit Fire Fighters Ass'n, IAFF Local 344 v. Detroit, 482 Mich. 18, 34, 753 N.W.2d 579 (2008). This four-part test involves the trial court's determination that (1) the likelihood that the party seeking the injunction will prevail on the merits, (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued, (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued. [Mich. AFSCME Council 25, 293 Mich.App. at 148, 809 N.W.2d 444 (quotation marks and citation omitted).]
Hammel v Speaker of House of Representatives, 297 Mich App 641, 647-648; 825 NW2d 616
(2012) (emphasis added). Rather than preserving the status quo, the State’s request for Preliminary
Injunction does the exact opposite. It would deprive Mr. Manke on a daily basis of his
constitutional rights as set forth herein. It would forcibly close Mr. Manke’s business and prohibit
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him from earning an income through his profession during the pendency of litigation. For all the
reasons stated below, the Preliminary Injunction should not be granted.
A. The State is Not Likely to Prevail on the Merits.
For all the reasons outlined above, Mr. Manke and his barbershop do not pose an
“imminent” threat to public health or safety. The State has no evidence other than mere speculation
and fear of what might happen in the future. Further, the State’s primary argument for a PI is
because Mr. Manke refused to follow the Governor’s EOs, not that he actually posed an imminent
health threat. MDHHS is not likely to succeed on the merits in proving that Mr. Manke poses an
imminent health threat.
The State provides no evidence of any contamination, potential source of contamination,
or any other evidence that Mr. Manke’s shop has COVID-19 or has spread it in any way. Again,
no MDHHS inspector has set foot in Mr. Manke’s shop since COVID-19 arrived. To be sure, the
State cannot point to a single thing inside Mr. Manke’s shop that is a source of disease.
Further, the State claims in its brief that “the Circuit Court found that MDHHS is likely to
prevail on the merits; therefore that factor is not in issue.” This is not entirely accurate. Judge
Stewart found that the “likelihood of success at a final hearing [is] roughly equal for both
parties.”21 While the Court did find that Plaintiff met its burden, “the Court affords this minimal
weight due to Defendant’s unrebutted arguments.”
B. The State Will Not Suffer Irreparable Harm.
Judge Stewart properly held:
However, the question is not whether COVID-19 can, or even will, cause irreparable harm. The question is whether Plaintiff has met its burden of proof on this element. The Court concludes that Plaintiff has not.22
21 Circuit Court Opinion, pg. 8. 22 Circuit Court Opinion, pg. 8.
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It is not enough for the State to make general claims about what may or may not happen in
the future. The State must provide specific facts regarding specific allegations resulting in specific
irreparable harm. The State has failed to meet its burden.
MDHHS relies upon the affidavit of Dr. Joneigh Khaldun for its contention that irreparable
harm will occur if Mr. Manke’s barbershop is not forcibly closed. However, this affidavit contains
no proof or evidence of any specific harm caused by Mr. Manke or his barbershop.
The State further cites Jacobson v Commonwealth of Massachusetts, 197 US 11 (1905) to
support its improper assertion that this Honorable Court must, without question, always accept the
position and recommendations of MDHHS in full. However, Jacobson holds the exact opposite
because the “power of a local community to protect itself against an epidemic threatening the
safety of all, might be exercised in particular circumstances and in reference to particular persons
in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required
for the safety of the public, as to authorize or compel the courts to interfere for the protection of
such persons.” Jacobson, 197 US at 28.
Indeed, this is why the statute specifically requires the State to go to the judiciary if it
wishes to enforce its order pursuant to MCL 333.2251(2). The statute states that MDHHS “may
petition” the Court to issue an order, and there is no language in the statute mandating the Court
issue such an order just because MDHHS requests it. Instead, MDHHS may only “petition” the
Court, and then the Court can commence with its usual review upon any request for injunctive
relief. This is exactly what happened here. The Trial Court reviewed the factors for granting a PI
and properly determined that the State had not met its burden.
Judge Stewart held:
The Court cannot issue an injunction based on face value. It must use its injunctive powers sparingly, and only with the full conviction of an urgent necessity. Davis at 613. Dr. Khaldun does not tell the Court how she reached the conclusion that a barbershop is such an imminent health threat. Plaintiff has not presented any studies
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underlying the doctor’s conclusion. Plaintiff has not shown any nexus between the cutting of hair and an increased risk of transmission. There are no statistics to allow the Court to reach the same conclusion. Plaintiff’s filings rest more on general facts about COVID-19 than specific practices or conditions at Defendant’s business.
Plaintiff did not even tell the Court how long it takes Mr. Manke to give a haircut. Plaintiff argues that the length of time spent cutting hair aggravates the risk. But there’s nothing in the record to tell the Court how it is more or less dangerous than other businesses. The Court cannot make that assumption.23
This is the crux of the case. The State is relying on generalities of COVID-19 in order to
obtain specific injunctive relief against Mr. Manke. It can point to nothing specific about Mr.
Manke that will cause irreparable harm any more than any other favored business currently
permitted to be open. In summary, Judge Stewart was correct when he held that “the Court must
strip away the panic of current events and compare the evidence received to the rule of law.”24
C. Mr. Manke Will Suffer Greater Harm Than Any Potential Harm to the State.
Violation of Mr. Manke’s constitutional rights is irreparable harm. The Michigan Supreme
Court held:
As a matter of first impression, we believe that this language is a constitutional declaration that a violation of Const. 1963, art. 11, § 5, in itself, amounts to irreparable harm supporting injunctive relief. 236 Mich.App. at 106, 600 N.W.2d 362 (emphasis added). While it may have been more clearly stated, the emphasized language indicates that "a bare allegation of a constitutional violation" is sufficient to show irreparable harm.
Michigan Coalition of State Employee Unions v Michigan Civil Service Com'n, 465 Mich 212,
216-217; 634 NW2d 692 (2001) (emphasis added). Thus, because Mr. Manke’s constitutional
rights are at stake, there is irreparable harm.
Moreover, Mr. Manke relies on his barbershop for income. He relies on his business to
support his family, provide food, shelter, and other necessities of life. He, and everyone else who
relies on him, will be irreparably harmed if he is not permitted to continue earning an income.
23 Circuit Court Opinion, pg. 10. 24 Circuit Court Opinion, pg. 13.
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The Court of Appeals recently issued an opinion that the threat of going out of business
can constitute irreparable harm. Marc Slis et al v State of Michigan et al, ____ Mich App ____
(2020) (Docket No. 351211); slip op at 26 (Exhibit C). The Court further held that “[t]he loss of
customer goodwill often amounts to irreparable injury because the damages flowing from such
losses are difficult to compute.” Id. slip op at 27.
Mr. Manke has operated his barbershop for 59 years without incident, complaint, or any
disciplinary action. He will continue to operate his barbershop in a safe and cautious manner
consistent with the Administrative Rules and public guidance outlined above. The harm to Mr.
Manke is real, immediate, and concrete. However, the harm to the State is speculative and wholly
based upon the fear of events that may never occur. Again, the State has presented no evidence of
any disease specifically coming from Mr. Manke or his business, nor any definite facts that he will
spread disease in the future.
The State of New York came under severe criticism after it came to light that Governor
Cuomo issued an order requiring that all nursing homes accept, and could not refuse, any person
who had a confirmed case of COVID-19.25 Governor Whitmer issued a similar order (EO 2020-
50).26 Despite harsh criticism, Governor Whitmer reissued and extended this order (EO 2020-84).
As a result, nursing homes in Detroit account for nearly 30% of all COVID-19 deaths in the entire
state.27
25 https://abcnews.go.com/Health/wireStory/nys-cuomo-criticized-highest-nursing-home-death-toll-70596950 26 https://www.clickondetroit.com/news/local/2020/05/13/michigans-policy-of-housing-covid-19-nursing-home-patients-with-uninfected-patients-comes-under-scrutiny/ 27https://www.clickondetroit.com/news/local/2020/05/18/michigan-considers-change-to-controversial-nursing-home-policy/
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It is unquestioned that the elderly are most at risk to COVID-19. Eight out of ten deaths
from COVID-19 are people are over age 65.28 Rather than taking precautions to protect the
vulnerable population, the State forced the COVID-19 patients to live in the same facility with the
vulnerable and placed the rest of us under effective house arrest. This illustrates the danger of
having one person make the health decisions for over nine million people. It demonstrates why
legislative input is necessary and it is a permanent example to those families who lost loved ones
why it is dangerous to live under executive fiat.
Finally, as discussed above, depravation of a constitutional right is greater than any
speculative harm alleged by the State.
D. The Public Interest.
The public interest weighs in favor of Mr. Manke. The State has no evidence, other than
fear and speculation, that Mr. Manke is an imminent public health threat. This is especially true
because Mr. Manke is no more of a threat to the public than anyone who is currently favored by
the Governor to work in public, such as fast food workers, dentists, chiropractors, cashiers, and
other workers.
Further, there is a public interest in keeping citizens employed, off governmental benefits,
and providing goods and services to the public. The public is better served to have people engaging
in commerce, free trade, and earning an income rather than mandatory house arrest. The public
interest is better served when people are allowed to provide food, shelter, and other necessities to
their families and loved ones.
Finally, the public interest is served by having people work and provide tax income to the
State. Michigan is facing a $3.2 billion dollar shortfall because of all of the people forced to remain
28 https://www.hopkinsmedicine.org/health/conditions-and-diseases/coronavirus/coronavirus-and-covid19-who-is-at-higher-risk
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at home and not work.29 In addition, there are worries that the State will have enormous shortfalls
to fund unemployment.30 It is in the public interest to have as many people as possible go back to
work in a safe and cautious manner in order to provide tax revenue to the State.
CONCLUSION
For all the above reasons, Mr. Manke respectfully request that this Honorable Court grant
Appellant’s Emergency Application for Leave to Appeal, vacate the Court of Appeals’ Order,
proceed with a full plenary review and appeal of this case, and grant such other relief as
appropriate.
Respectfully submitted, DATED: May 28, 2020. /s/ David A. Kallman David A. Kallman (P34200) Attorney for Mr. Manke
PROOF OF SERVICE I, David A. Kallman, hereby affirm that on the date stated below I delivered a copy of Appellant’s Emergency Application for Leave to Appeal and attached exhibits and Motion for Immediate Consideration and to Expedite Proceedings, upon the counsel of record, via the Mi-File system. I hereby declare that this statement is true to the best of my information, knowledge, and belief. DATED: May 28, 2020. /s/ David A. Kallman David A. Kallman (P34200)
29 https://www.detroitnews.com/story/news/local/michigan/2020/05/15/michigan-predicts-3-2-billion-budget-shortfall-looks-feds-more-aid/5197278002/ 30 https://www.bridgemi.com/business-watch/coronavirus-could-drain-michigan-unemployment-fund-within-months
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EXHIBIT A
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STATE OF MICHIGAN
IN THE 35TH CIRCUIT COURT FOR SHIAWASSEE COUNTY
MICHIGAN DEPARTMENT OF, Case No. 20-4700-CZ
HEALTH AND HUMAN SERVICES, Hon. Matthew J. Stewart
Plaintiff,
v
KARL MANKE,
Defendant.
________________________
Opinion & Order DENYING PLAINTIFF’S REQUEST FOR PRELIMINARY INJUNCTION
This case comes before the Court on Plaintiff Department’s request
for a preliminary injunction. For the following reasons, the Court denies
the request.
BACKGROUND
Counsel for Plaintiff contacted chambers the morning of May 8,
2020 and requested an emergency hearing. The Court ensured its
availability on that day to address Plaintiff’s claimed emergency. At 4:53
p.m., the Court received an email from the clerk’s office with electronic
copies of Plaintiff’s request for a temporary restraining order (TRO). The
clerk’s office emailed a few minutes later to inform the Court that the
documents did not comply with the court rules, and that the clerk’s office
would not accept the documents for filing. The Court did not direct that
action, but stands behind the clerk’s decision. As the Court understands
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it, Plaintiff had omitted some signatures from the document, and did not
complete a summons.
Plaintiff also issued its Imminent Danger and Abatement Order
(AO) on May 8, 2020. Plaintiff’s initial complaint contained no mention
of the AO. That evening, local news reported that the Michigan State
Police served the AO on Defendant Karl Manke.
The morning of May 11, 2020, the clerk’s office informed the Court
that it had rejected another attempted filing by Plaintiff. This time, the
Court understands that Plaintiff had only partially filled out the
summons. Again, that happened at the clerk’s office, and the Court takes
no issue with it. The clerk’s office accepted Plaintiff’s third submission
for filing.
Also on the morning of May 11, 2020, chambers staff received a
telephone call from attorney David Kallman. Mr. Kallman indicated that
he represented Defendant and requested the opportunity to participate
in the request for the TRO. The Court issued a written opinion and order
the same day. The Court found that Plaintiff had not met its burden of
showing Defendant should receive no notice of those proceedings.
The Court set a status conference for the morning of May 13, 2020.
The Court spoke with counsel by teleconference and established a plan
going forward. The Court anticipated holding a full evidentiary hearing
on Plaintiff’s request for a preliminary injunction. Because this would
involve taking testimony and presented complex legal issues, the Court
set a briefing schedule and issued a briefing order.
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Based on the information available to the Court, Plaintiff appealed
the denial of the TRO on May 14, 2020. The Court has no personal
knowledge of that filing, but relies on the docket sheet from the Court of
Appeals. On Friday, May 15, 2020, this Court received a copy of a Court
of Appeals order directing Defendant to answer Plaintiff’s filings. The
Court of Appeals required Defendant to answer by noon the following
Monday.
It appears that Defendant met that deadline and filed his answer
on May 18, 2020. The Court of Appeals issued an order the same day.
That order directed this Court to hold an immediate hearing on Plaintiff’s
request for an injunction and issue a written opinion by the close of
business on May 21, 2020. Thus, the Court received the order at the end
of the day Monday with directions to adjudicate the request and draft a
written opinion in 72 hours.
Tuesday morning, May 19, 2020, the Court issued a procedural
order, setting the order of business for the expedited hearing. The Court
sent out its order just before 10:00 a.m., and required the parties to
submit their exhibits and any additional briefing by 4:00 p.m. The Court
needed the opportunity to review those materials prior to the hearing, so
it could only afford counsel 6 hours to finalize them. Plaintiff submitted
some proposed exhibits, but no additional briefing. Defendant submitted
additional briefing, but no exhibits. Both parties provided the Court with
copies of their filings in the Court of Appeals. Counsel met the deadlines
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imposed under this drastically shortened schedule, and the Court
appreciates their efforts.1
In another action, Defendant appealed a summary suspension of
his barber’s license.2 Mr. Manke asked the Court to issue an ex parte stay
prohibiting enforcement of that suspension. The Court found that Manke
had not exhausted his administrative remedies and dismissed the case
on May 20, 2020.
Turning back to this case, the Court planned to develop this matter
at an evidentiary hearing with testimony. For a normal injunction case,
the Court would allocate a half-day to hearing the matter. This case
involves a number of issues that would require factual and legal
development, so the Court planned to schedule at least a full day to
hearing Plaintiff’s request.
This Court, like so many others, is learning to conduct its daily
operations by videoconferencing over the Zoom platform. This Court has
not yet had a full evidentiary hearing with witness testimony, cross-
examination, and authentication of documents over Zoom. Conducting
such a hearing by videoconference presents a number of technical and
procedural issues, and the Court hoped it could have some time to solve
them. However, when the Court of Appeals orders, this Court complies.
The Court wants attorneys to put on the best version of their cases.
Time prohibits that here, so the Court must settle for the best version of
their cases under the circumstances. And this Court will make the best
decision it can with the material before it.
1 The Court also appreciates the high-quality of the oral arguments by counsel. 2 Manke v Dep’t of Licensing and Regulatory Affairs, 20-4717-AA.
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ANALYSIS
The objective of a preliminary injunction is to maintain the status quo
pending a final hearing regarding the parties' rights. Alliance for
Mentally Ill of Michigan v Dep’t of Community Healthx, 231 Mich App
647, 655–56 (1998). An injunction is “an extraordinary and drastic use of
judicial power that should be employed sparingly and only with full
conviction of its urgent necessity.” Davis v City of Detroit Fin Review
Team, 296 Mich App 568, 613 (2012). The Court must weigh four factors
in determining whether it should grant this extraordinary remedy:
(1) the likelihood that the party seeking the injunction will
prevail on the merits, (2) the danger that the party seeking
the injunction will suffer irreparable harm if the injunction is
not issued, (3) the risk that the party seeking the injunction
would be harmed more by the absence of an injunction than
the opposing party would be by the granting of the relief, and
(4) the harm to the public interest if the injunction is issued.
[Id.]
The party seeking a preliminary injunction bears the burden of
proving that these elements favor issuance of an injunction. Detroit Fire
Fighters Ass'n, IAFF Local 344 v City of Detroit, 482 Mich 18, 34 (2008).
The decision to grant or deny injunctive relief is an exercise of the
Court’s discretion, and is reviewed for an abuse of that discretion. Pontiac
Fire Fighters Union Local 376 v City of Pontiac, 482 Mich 1, 8 (2008).
The abuse of discretion standard recognizes that there is no single correct
outcome. The Court must choose between the range of reasonable and
principled outcomes. That choice presented an extremely close call for the
Court.
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LIKELIHOOD OF SUCCESS ON THE MERITS
To meet its burden under the first factor, Plaintiff must show that
it has a substantial likelihood of success on the merits. Int’l Union v
State, 211 Mich App 20, 22 (1995). This does not require Plaintiff to prove
that it will prevail at the final hearing, only that it has a reasonable
chance of doing so.
The Court had great difficulty weighing this factor. Plaintiff
correctly notes that the Michigan Constitution declares public health and
general welfare issues of primary public concern. Const 1963, art 4, § 51.
The Legislature has enacted the Public Health Code, and created the
Department of Health and Human Services. Plaintiff has acted within
the scope of its authority to issue the AO to Defendant.
However, Defendant raises a number of challenges in response to
Plaintiff’s request. Defendant argues that the Governor’s Executive
Orders (EOs) violate Michigan law, and the equal protection guarantees
of the state and federal constitutions. Initially, the Court viewed the
constitutional challenges to the EOs with great skepticism.
Courts must generally avoid addressing constitutional issues
unless required to do so. At first glance, this case presents an issue of the
Public Health Code and the AO, not the EOs. But as the Court reviewed
the AO, the constitutional issues took on a bigger dimension.
The AO relies on the EOs; without the EOs, there is no AO. The
order notes that Defendant is operating his business in defiance of the
EOs, and that this presents a public health hazard. The order requires
his immediate compliance with the EOs.
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The Court summarizes Plaintiff’s position as follows:
1. The EOs exist to protect the public health.
2. Defendant is violating the EOs, therefore he is a danger to the
public health.
3. Defendant is a danger to the public health, therefore Plaintiff
issued the AO under the health code.
4. Defendant is violating the AO, therefore Plaintiff needs an
injunction.
Defendant’s brief raises challenges to the second point, but Plaintiff
ignores that argument. The Court has reviewed all the documents filed
in this action and all the filings provided from the Court of Appeals. The
Court cannot locate any point at which Plaintiff substantively addresses
the constitutional challenges. Even after receiving Defendant’s brief,
Plaintiff did not ask the Court for an opportunity to supplement its
response on these issues.
The only reply to Defendant’s challenges comes at the Court of
Appeals. Plaintiff dismisses the constitutional issues as a red herring,
because the EOs are not the basis for this action. As the Court has
already discussed, that argument does not stand up to scrutiny.3
In terms of briefing, Defendant’s constitutional and statutory
arguments are entirely unopposed. The Court would normally find that
Plaintiff has abandoned any argument on these issues. However, this is
3 Counsel for Plaintiff acknowledge the existence of the constitutional issues at oral argument.
As the Court understands it, Plaintiff’s position is that Defendant is challenging the various “Stay
Home, Stay Safe” EOs, while Plaintiff proceeded under EO 2020-69, closing places of public
accommodation. It does seem to the Court that Defendant’s challenges address the EOs as a whole,
rather than drawing distinctions between their individual validity. The Court and parties will need to
confront this issue another day.
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still a request for a preliminary injunction. The Court finds that it would
be premature to adopt Defendant’s arguments wholesale at this stage.
This factor presents a very close call. If called upon to quantify this
factor, the Court would find the likelihood of success at a final hearing
roughly equal for both parties. For purposes of obtaining a preliminary
injunction, Plaintiff has met its burden, however, the Court affords this
minimal weight due to Defendant’s unrebutted arguments.
IRREPARABLE HARM
In order to establish irreparable injury, the moving party
must demonstrate a noncompensable injury for which there is
no legal measurement of damages or for which damages
cannot be determined with a sufficient degree of certainty.
The injury must be both certain and great, and it must be
actual rather than theoretical. [Thermatool Corp v Borzym,
227 Mich App 366, 377 (1998).]
The Court must acknowledge the irreparable harm already suffered
because of the 2019 novel coronavirus (COVID-19). The virus has infected
millions, killed hundreds of thousands, and disrupted the daily lives of
countless others. No court can remedy that. However, the question is not
whether COVID-19 can, or even will, cause irreparable harm.
The question is whether Plaintiff has met its burden of proof on this
element. The Court concludes that Plaintiff has not.
Along with its exhibits, Plaintiff attached a number of pictures
purported to be of Defendant’s barbershop. These pictures accompany an
affidavit by Ms. Sarah Schultz, a paralegal with the Attorney General’s
office. Ms. Schultz says that she gathered these photographs of
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Defendant’s business and that they show him not complying with social
distancing, and working on clients without a mask.
At face value, it appears that these pictures are consistent with the
affidavit. The Court must note that while it has no reason to doubt Ms.
Schultz, there’s no allegation that Ms. Schultz could authenticate the
pictures. She could testify where and how she found them. She could not
testify that they accurately depict Defendant’s shop, its condition, or his
practices on any given day.
Plaintiff also submitted an affidavit from Dr. Khaldun, Plaintiff’s
chief medical executive. Dr. Khaldun states that she reviewed news
coverage of Defendant’s barbershop, including pictures. The pictures
demonstrate that appropriate social distancing is not taking place inside
the barbershop, that many individuals are not wearing masks, and at
times, this includes Defendant himself. She concludes that these
practices could reasonably be expected to cause death, disease, or serious
physical harm, including the spread of COVID-19.
Again, the Court has no reason to doubt Dr. Khaldun’s medical
expertise. Her affidavit leaves a number of important gaps in the Court’s
record. She provides a link to one news story she reviewed, and references
the pictures of that story.4 Plaintiff did not attach the article to the
doctor’s affidavit, or inform the Court that it could find the article
elsewhere in the record.
4 The affidavit appears to be a scan of a paper document. The Court has no way of clicking the
link.
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Dr. Khaldun concludes that Defendant’s business presents a public
health risk because it involves people in close proximity for a prolonged
time. At face value, that absolutely makes sense.
The Court cannot issue an injunction based on face value. It must
use its injunctive powers sparingly, and only with full conviction of an
urgent necessity. Davis at 613. Dr. Khaldun does not tell the Court how
she reached the conclusion that a barbershop is such an imminent health
threat. Plaintiff has not presented any studies underlying the doctor’s
conclusion. Plaintiff has not shown any nexus between the cutting of hair
and an increased risk of transmission. There are no statistics to allow the
Court to reach the same conclusion. Plaintiff’s filings rest more on
general facts about COVID-19 than specific practices or conditions at
Defendant’s business.
Plaintiff did not even tell the Court how long it takes Mr. Manke to
give a haircut. Plaintiff argues that the length of time spent cutting hair
aggravates the risk. But there’s nothing in the record to tell the Court
how it is more or less dangerous than other businesses. The Court cannot
make that assumption.
In the Court’s Opinion denying Plaintiff’s request for a TRO, the
Court discussed the possibility of Defendant’s arrest for violations of the
EOs, the AO, and now the LARA suspension. Under Michigan law, those
violations are misdemeanors, and it is Plaintiff’s contention that
Defendant has committed those misdemeanors. The Court noted that
Plaintiff filed this civil action, rather than seeking criminal enforcement
of its own orders. The Court found that Plaintiff had not demonstrated
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the need for immediate action, because Plaintiff did not take immediate
action.
That concern persists today, and Plaintiff’s filings have never
addressed it. As with the constitutional issues, Plaintiff has never
acknowledged or rebutted this argument in its briefs. By contrast, the
Court notes the following statements throughout Plaintiff’s documents:
“An imminent danger to the health or lives of individuals in this state.”
“An imminent threat to the public health, safety, and welfare.”
“Could result in serious illness or death.”
“Unprecedented health risk.”
“Simply cannot wait.”
“Imminent danger to the public health.”
“Public health crisis.”
“Every second counts.”
“Every second that Manke operates his barbershop poses a significant
danger to the health and lives of the People of the State of Michigan.”
“The imminent danger posed by continued operation of Manke’s
business.”
“Significant public health threat.”
“Even a delay to effect notice to Manke would cause irreparable
injury.”
“Action must be swift.”
“Any delay compounds the risk to the health, lives, and safety of the
People of the State of Michigan.”
“Swift action is essential to mitigate this risk.” 5
5 The Court cleaned up these statements for ease of reading, including alterations to
capitalization and punctuation. The Court uses them to illustrate its point, not because these are
precise quotations.
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Plaintiff argues that Defendant has created a public health crisis,
and that every second he operates constitutes a new irreparable injury.
Plaintiff argues that Defendant is openly violating criminal law. Plaintiff
argues that Defendant violated criminal law in the presence of the law
enforcement officers serving Defendant with the AO. Defendant’s arrest
would almost certainly end the public health threat argued by Plaintiff.
And yet Plaintiff seeks a civil remedy, despite other adequate and more
immediate remedies provided by law.
The Court acknowledges that the law does not require Plaintiff to
arrest Defendant before seeking an injunction. Plaintiff maintains an
injunction is the only remedy that will end Defendant’s operation and
abate the harm. This Court disagrees.
BALANCE OF THE EQUITIES
The Court has already discussed its conclusion that Plaintiff has
not connected the general dangers of COVID-19 to the specific acts of
Defendant. Again, at face value, the general facts on which Plaintiff relies
are alarming and facially reasonable. However, the Court cannot
substitute personal alarm for a considered application of legal principles.
The Court cannot fault a health department for being concerned
with public health. Neither can the Court allow that concern to override
the requirements of the law.
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The Constitution of the United States is a law for rulers and
people, equally in war and in peace, and covers with the shield
of its protection all classes of men, at all times, and under all
circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that
any of its provisions can be suspended during any of the great
exigencies of government. Such a doctrine leads directly to
anarchy or despotism, but the theory of necessity on which it
is based is false; for the government, within the Constitution,
has all the powers granted to it, which are necessary to
preserve its existence; as has been happily proved by the
result of the great effort to throw off its just authority. [Ex parte Milligan, 71 US 2, 120–21 (1866).]
The threat to the public is chilling. But the Court must strip away
the panic of current events and compare the evidence received to the rule
of law. That leaves the Court with photos and internet links gathered by
a paralegal, and affidavit by a doctor who recited general facts about the
virus and read a newspaper article. With respect to those individuals,
that is not enough to tip the scales, no matter how great the public
emergency. The potential for public harm is real, but that harm does not
justify the issuance of an injunction on such scant evidence.
HARM TO THE PUBLIC IF THE INJUNCTION IS GRANTED
The Court finds that entry of the injunction would impose only
minimal harm on the public. Constitutional rights are critical, but they
are not absolute and are subject to reasonable regulations. Plaintiff has
met its burden on this factor.
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CONCLUSION
As the Court noted earlier, an injunction is an extraordinary
remedy. The Court has a duty to deploy that remedy sparingly, and only
when fully convinced of its urgent necessity. Plaintiff’s request presented
a close call for the Court. However, the Court is not fully convinced of the
need for an injunction, and must therefore deny the request.
THE COURT THEREFORE ORDERS THAT:
1. Plaintiff’s request for a preliminary injunction is DENIED.
2. Plaintiff’s motion for immediate consideration is DENIED as moot.
3. The Clerk’s Office shall electronically file a copy of this Opinion with
the Court of Appeals by 5:00 p.m. on May 21, 2020.
4. This is not a final order and does not close the case.
Dated: 5-21__________, 2020 /s/_____________________________
Hon. Matthew J. Stewart, P58047
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EXHIBIT B
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Court of Appeals, State of Michigan
ORDER
Michigan Department of Health and Human Services v Karl Manke
Docket No. 353607
LC No. 20-004700-CZ
Stephen L. Borrello Presiding Judge
Amy Ronayne Krause
Brock A. Swartzle Judges
At issue are two emergency applications for leave to appeal filed from two orders of the trial court.
The first order, entered May 11, 2020, denied appellant’s emergency motion for issuance of a temporary restraining order (TRO) preventing appellee from continuing to operate his barbershop. The second order, entered May 21, 2020, denied appellant’s motion for issuance of a preliminary injunction preventing appellee from operating his barbershop.
The motions for immediate consideration are GRANTED.
The case is REMOVED from abeyance.
In response to the COVID-19 virus, the Governor issued a series of Executive Orders (EO). EO 2020-69 prohibited certain businesses from operating, including “non-essential personal care services.” § 1 of EO 2020-69. Section 3.a of EO 2020-69 provides that non-essential personal care services “includes but is not limited to hair, nail, tanning, massage, traditional spa, tattoo, body art, and piercing services, and similar personal care services that require individuals to be within six feet of each other.” Appellee held a license which allowed him to operate a barbershop in Owosso, Michigan. On May 4, 2020, admittedly in contravention of the EO, appellee opened his barbershop and offered his services as a barber to the general public. Appellee refused to close his barbershop despite repeated warnings to do so by state and local authorities eventually leading to appellant’s director’s issuance of an Imminent Danger and Abatement Order calling on appellee to immediately close his barbershop to the public. Appellee refused to comply. Appellant then requested that the trial court issue a TRO, to be followed by a preliminary injunction, ordering appellee to immediately cease all operation of the barbershop. The trial court denied the request for a TRO. Appellant sought leave to appeal, and this Court ordered that the application be held in abeyance and that the trial court hold a hearing and issue an opinion and order on appellant’s request for a preliminary injunction. In accordance with the order of this Court, the trial court held a hearing and issued an opinion and order concluding that appellant’s request “presented a close call” but that it was “not fully convinced of the need for an injunction.”
Appellant thereafter sought leave to appeal from the order denying the preliminary injunction.
“The objective of a preliminary injunction is to maintain the status quo pending a final hearing regarding the parties' rights.” Michigan AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143, 145; 809 NW2d 444, 446 (2011). The status quo has been defined as “ ‘the last actual, peaceable, noncontested status which preceded the pending controversy.’ ” Buck v Thomas Cooley Law
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School, 272 Mich App 93, 98 n 4; 725 NW2d 485 (2006), quoting Psychological Services of Bloomfield, Inc v Blue Cross & Blue Shield of Michigan, 144 Mich App 182, 185; 375 NW2d 382 (1985). Here, on May 4, 2020, when appellee provided his services to the public, the status quo was that non-essential personal care services such as barbershops were closed. In lieu of commencing a legal challenge to the constitutionality of EO 2020-69, appellee instead opened his barbershop and provided his services as a barber to the general public. Appellee continues to provide his services as a barber to the general public despite having his license summarily suspended by the State of Michigan.
When presented with a request for preliminary injunctive relief, a court should consider four factors:
(1) the likelihood that the party seeking the injunction will prevail on the merits, (2) the danger that the party seeking the injunction will suffer irreparable harm if the injunction is not issued, (3) the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief, and (4) the harm to the public interest if the injunction is issued. [Davis v City of Detroit Fin Review Team, 296 Mich App 568, 613; 821 NW2d 896 (2012).]
Turning to the likelihood that the party seeking the preliminary injunction will prevail on the merits, we note appellant’s request for injunctive relief is premised on assertions that appellee’s actions create an imminent danger to the public health, necessitating the issuance of what is entitled an Imminent Danger and Abatement Order. The power of appellant’s director to issue the Imminent Danger and Abatement Order in response to an imminent danger to the public health comes from § 2251(1) of the Public Health Code (PHC), MCL 333.1101 et seq. An “imminent danger” is defined to mean an existing “condition or practice . . . that could reasonably be expected to cause death, disease, or serious physical harm immediately or before the imminence of the danger can be eliminated through enforcement procedures otherwise provided.” MCL 333.2251(5)(b). The PHC recognizes the singular danger that an epidemic presents to the public health and welfare and the need to take exceptional action to control the rapid spread of the disease. MCL 333.2253(1).
The statute authorizes the director to issue orders to abate “imminent dangers” “upon a
determination that an imminent danger to the health or lives of individuals exists in this state[.]” In the face of a declared public health emergency, the Legislature vested the Department with the power to exercise its discretion to decide whether an “imminent danger” exists, and in light of the Department’s expertise in this realm, to “abate” the danger as the Department’s experts see fit.
This expansive power easily encompasses the closing of defendant’s barbershop. Thus, once the Governor declared a public health emergency, the Legislature determined that it was up to the Department to issue orders protecting the public health. Accordingly, in order to challenge the exercise of that authority, appellee had to present evidence that appellant overstepped the statutory boundaries. Appellee failed to present any evidence to rebut the Department’s conclusion that operation of the barbershop posed a serious public health danger.
Here, appellant presented the trial court with evidence in the form of affidavits from Sarah Schultz, a paralegal working in the Corporate Oversight Division of the Michigan Attorney General’s Office, and Joneigh Khaldun, MD, plaintiff’s Chief Medical Executive and Chief Deputy Director for Health.
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Schultz averred that she had been “tasked with gathering photographs and videos related to” defendant’s operation of the barbershop since he opened on May 4, 2020. Along with her affidavit, Schultz provided copies of photographs from Internet news articles; she identified web addresses for the photos, news articles and the internet videos. These photographs depict multiple people clearly within six feet of each other, some wearing masks and others not wearing masks. The trial court indicated that it had no reason to doubt Schultz’s representations, but stated “there’s no allegation that Ms. Schultz could authenticate the pictures.” However, appellant made Schultz available to testify and the trial court could have verified the photos simply by visiting the websites listed by Schultz. Additionally, the trial court seemingly treated evidence derived from news sources differently depending on which party the evidence favored. When deciding against the issuance of a TRO, the trial court relied heavily on the fact that “[w]hile Defendant worked at this place of business, Plaintiff served the abatement order on him, employing troopers of the Michigan State Police as process servers,” a factual finding with respect to which the trial court noted it “ha[d] no personal knowledge of these facts, but gleaned them from local and national news coverage.” However, when adjudicating the merits of appellant’s evidence derived from similar sources, the trial court dismissed appellant’s proffered evidence for lack of authentication. This conclusion was additionally erroneous because defendant never disputed the accuracy of this evidence.
Regarding Dr. Khaldun’s affidavit, it averred as follows:
4. COVID-19 is a novel coronavirus . . . . The is no human immunity to COVID-19, and there is no available treatment or vaccine for COVID-19.
* * *
6. COVID-19 is thought mainly to spread person-to-person (1) between people who are in close contact with a person infected with COVID-19 and (2) through respiratory droplets produced when an infected person coughs or sneezes. It may also be possible that a person can get COVID-19 by touching a surface or object that has the virus on it and then touching their mouth, nose, or eyes.
7. Close contact is defined as being within approximately six feet of an infected person for a long period of time or having direct contact with infectious secretion. Examples of close contact include . . . being near someone who has COVID in a confined space if that person is not wearing a mask; and being coughed or sneezed on by someone who has COVID-19.
* * *
9. As of May 12, 2020, 1 in every 10 people diagnosed with COVID-19 in Michigan has died.
10. People of all ages can be infected. . . . The age range for people dying from COVID-19 in Michigan rages from age 5 to 107.
11. The disease often first infects the lungs and starts off mild with a cough, fever and fatigue. Some people quickly, within days, progress to severe disease including Acute Respiratory Distress Syndrome and a severe inflammatory response that can lead to multi-organ failure and death. No one knows exactly how a particular person will respond. There
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are also reports of children across the country, including in Michigan, having a severe illness called Pediatric Multi-System Inflammatory Syndrome related to COVID-19. Some children have died from it.
12. In addition to being spread by symptomatic individuals, COVID-19 can also be spread by persons without any symptoms . . . .
13. As of May 11, 2020, Michigan has 47,552 confirmed cases of COVID-19 and 4,584 deaths. This is the 7th highest in the country in terms of confirmed cases and 3rd highest in terms of deaths. Those numbers do not reflect all cases of COVID-19. . . .
14. As of May 11, 2020, Shiawassee County has 211 confirmed cases of COVID-19 and 17 confirmed deaths.
15. Social distancing is currently the only effective means to slow the spread of COVID-19 and save lives. . . .
* * *
18. I have reviewed the recent news coverage, including pictures of the operation of Karl Manke’s Barbershop and the congregation of people outside the barbershop. The photos demonstrate that appropriate social distancing is not taking police inside the barbershop or outside of it. The photos further demonstrate that many individuals, including at times Karl Manke himself, are not wearing masks and are coming in close contact with one another.
19. Close contact, like that occurring both within Karl Manke’s Barbershop and outside the barbershop, is an imminent danger to the public health. The practices could reasonably be expected to cause death, disease, or serious physical harm to individuals and the public at large.
* * *
21. Given the number of known cases of COVID-19 in Michigan and how the disease is spread, there is a high likelihood that the continued operation of Karl Manke’s barber shop will result in irreparable harm to the public health. . . .
The trial court criticized Dr. Khaldun’s affidavit for not explaining how the doctor concluded that appellant’s barbershop presents a public health risk, even though the trial court believed this conclusion makes sense at face value. Such a finding was error as it was premised on the trial court second-guessing Dr. Khaluden’s medical and administrate conclusions. See Dignan v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002) (“Courts should accord due deference to administrative expertise and not invade administrative fact finding by displacing an agency’s choice between two reasonably differing views.”). Additionally, the trial court’s repudiation of Dr. Khaluden’s affidavit was made despite appellee offering no evidence to rebut Dr. Khaldun’s assertions. Hence, the only evidence before the trial court was evidence which supported appellant’s assertion that there exists an imminent danger.
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Rather than contest the factual underpinnings which establish an imminent danger, appellee’s entire defense is premised on objections to the constitutional validity of the EO. Appellee raises several constitutional arguments. Relying on Texas v Johnson, 491 US 397; 109 S Ct 2533; 105 L Ed2d 342, appellee argues that the EO violates his First Amendment rights because the EO infringes on his freedom of speech. Appellee argues that continued operation of his barbershop is tantamount to a protest of the EO, in that his conduct is expressive similar to the flag burning in Johnson. However, unlike the defendant in Johnson, here, appellee was not singled out based on his expression of dissatisfaction with the EO. Additionally, as instructed by the Supreme Court, “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v O’Brien, 391 US 367, 376; 88 S Ct 1673; 20 L Ed2d 672 (1968). “[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” Id. Here, the State has an important governmental interest in containing the spread of COVID-19 and the EO is directed at that interest and not at any speech or expressive conduct that may be expressed by appellee in continuing to provide services as a barber. This has been precedent for over a century. “That until Congress has exercised its power on the subject, such state quarantine laws and laws for the purpose of preventing, eradicating, or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution of the United States, although their operation affects interstate or foreign commerce, is not an open question.” Compagnie Francais de Navigation a Vapeur v Louisiana State Board of Health, 186 US 380, 387; 22 S Ct 811; 46 L Ed 1209 (1902). Hence, appellant is likely to prevail on the issue of whether the EO violates appellee’s First Amendment rights. O’Brien, 391 US at 376; Davis, 296 Mich App at 613.
Appellee also argues that implementation of the EO violates his constitutional right to equal protection under the law because some businesses are allowed to remain open whereas others are closed. However, appellee does not claim to be a member of a protected class; or that a fundamental right has been infringed. This leaves the rational basis test as the proper foundation for analysis. Rational basis applies to social and economic regulation, of which this is an example. Phillips v Mirac, Inc, 470 Mich 415, 434; 685 NW2d 174, 185 (2004). As previously indicated, the evidence submitted by appellant is sufficient to pass the rational basis test. Hence, on the pleadings before us, appellant is likely to prevail on this issue. Davis, 296 Mich App at 613.
Although appellee raises a myriad of additional issues, we cannot glean from any of the arguments set forth any bases on which appellee would prevail in his challenges to the authority of the Governor to issue EOs.
Regarding factor (2), the trial court only considered two affidavits provided by appellant. As previously discussed, the trial court ignored the findings and determination of appellant’s chief medical executive, which establish the danger of irreparable harm. Moreover, as previously indicated, the trial court mishandled both affidavits.
The trial court also erred in concluding that factor (3) did not weigh in appellant’s favor. While the trial court acknowledged the potential of harm to the public, it nonetheless substituted its judgment for that of the experts by concluding that this “harm does not justify the issuance of an injunction on such scant evidence.” Again, the trial court rejected uncontested evidence when it reasoned that “an affidavit by a doctor who recited general facts about the virus and read a newspaper article” did not tip the scales in favor of issuing the injunction, “no matter how great the public emergency.” As discussed and cited
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above, the evidence before the trial court was not scant. Chief medical executive Khaldun is a highly trained and experienced public health physician and administrative professional. Uncontroverted evidence clearly revealed that COVID-19 is a highly communicable illness. Uncontroverted evidence revealed that COVID-19 is spread by infected persons showing no symptoms that could serve to warn others of the possibility of infection. Uncontroverted evidence clearly revealed that COVID-19 can be spread from person-to-person quickly and reach people separate from an area of contamination. From this record, the trial court should have concluded that the risk that the party seeking the injunction would be harmed more by the absence of an injunction than the opposing party would be by the granting of the relief. Davis, 296 Mich App at 613.
Finally, we agree with the trial court that factor (4) weighs in appellant’s favor.
For the reasons set forth in this order, the emergency application for leave to appeal from the trial court’s May 21, 2020 denial of appellant’s request for a preliminary injunction is GRANTED. The decision of the trial court is REVERSED and the case is REMANDED for the trial court to enter a PRELIMINARY INJUNCTION ordering appellee to immediately cease all operations at the barbershop, to be enforced through the court’s general contempt powers, MCL 600.1711.
The application for leave to appeal filed from the trial court’s May 11, 2020 denial of appellant’s request for a TRO is DISMISSED as moot.
We retain jurisdiction to verify entry of the preliminary injunction.
_______________________________ Presiding Judge
Swartzle, J., I concur in part and dissent in part. Specifically, I agree with my colleagues that the appellant’s application for leave related to the denial of a TRO should be DISMISSED as moot. I also agree that the motions for immediate consideration should be GRANTED. Finally, I agree that the appellant’s emergency application for leave related to the trial court’s denial of a preliminary injunction should be GRANTED (but only in part), as both parties raise jurisprudentially significant issues that warrant review by this Court and, ultimately, our Supreme Court. Where I diverge from my colleagues is with the additional relief that they grant on an immediate basis. Under our court rules, a “peremptory reversal” is proper where “reversible error is so manifest that an immediate reversal of the judgment or order appealed from should be granted without formal argument or submission.” Importantly, the decision to grant such relief “must be unanimous.” MCR 7.211(C)(4). As I read the majority’s language, the majority has ordered “an immediate reversal” of the trial court’s denial of preliminary injunctive relief without formal submission to a merits panel drawn randomly from the entire court, without oral argument, without the opportunity for amici briefs, and without a unanimous vote by this motions panel. The majority’s order reads more like an in-depth opinion of this Court issued
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by a merits panel, rather than the type of summary order normally issued by a motions panel. To my reading, the majority’s relief appears to be a peremptory reversal, which seems procedurally irregular given that the panel’s vote was not unanimous on this issue. Be that as it may, the majority has ruled. With respect to the merits, both parties raise important issues—in my opinion, maybe the most jurisprudentially significant issues this State has seen in years or decades. The arguments raised in this case overlap with similar arguments in other cases, see, e.g., Michigan House of Representatives v Governor, Court of Claims, Docket No. 20-000079-MZ; Michigan United for Liberty v Governor, Court of Claims, Docket No. 20-000061-MZ. One of the most significant arguments is over the question of the constitutional and statutory validity of the Governor’s post-April 29, 2020, Executive Orders.
The people of this State are constitutionally guaranteed a republican form of government, one with a separation of powers balanced between the three branches. US Const, art IV, § 4, cl 1; Const 1963, art 3, § 2. Simply put, the Legislature is supposed to legislate, the Executive is supposed to execute, and the Judiciary is supposed to judge. As set forth in our state Constitution, “No person exercising powers of one branch shall exercise powers belonging to another branch except as expressly provided in this constitution.” Const 1963, art 3, § 2. This case and others like it raise legitimate questions of whether the separation of powers between the Legislative and Executive branches has been impermissibly eroded during our government’s response to the Covid19 pandemic.
For example, one source of authority cited in recent Executive Orders related to Covid19 is the Emergency Management Act, 1976 PA 390 (EMA). This act requires that, after the initial 28 days of an emergency or disaster declared by the Governor, the Legislature has a necessary and critical role in determining whether to extend the emergency/disaster and, if so, how best to address it. It has been reported that, near the end of the 28-day period, the Governor declared the Covid19 emergency/disaster terminated under the EMA, but then just a minute later, declared a new emergency/disaster with a purported new 28-day period. Was this a faithful execution of the EMA or, rather, an attempt to avoid the Legislature’s role under the EMA?
As another example, the Governor has also relied on the Emergency Powers of Governor Act, 1945 PA 302 (EPGA). This WWII-era law is broadly worded, which could be viewed as a virtue or a vice. On the one hand, the act seems to grant the Governor unilateral authority to declare an emergency for an indeterminate duration, with broad powers to address the emergency. On the other hand, because the EPGA appears to have few, if any, real restrictions on the Governor’s authority or even standards to guide that authority, this may mean that the Legislature unconstitutionally delegated its law-making authority to the Governor. As for the argument made by the Attorney General in one of the related cases that the Legislature could just add restrictions to the EPGA if it sees fit, the force of this argument is undercut if those restrictions can be avoided by, for example, terminating a declaration of emergency, waiting a minute, and then declaring a “new” emergency.
The validity of the recent Executive Orders is a key question in this and related cases. I have
serious doubts, for example, whether the administrative order in this case would have been issued absent the Executive Orders related to Covid19, including those issued after April 29, 2020. Even setting those doubts aside, there is, at the very least, a sufficient basis to submit the case to a merits panel for a fuller analysis with the benefit of oral argument.
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One need not question the motives for or wisdom of certain actions to question the underlying
authority of those actions. In my opinion, the issues raised in this and related cases deserve more attention by the Judiciary than has been provided to-date. Therefore, rather than grant peremptory relief to the appellant, I would have joined in an order submitting this case for plenary review, on an expedited basis, by a merits panel randomly drawn from the entire Court with the opportunity for oral argument. See Weisgerber v Ann Arbor Center for the Family, 447 Mich 963; 521 NW2d 601 (1994) (LEVIN, J, dissenting).
Accordingly, for these reasons, I cannot join my colleagues in full, and therefore I concur in part
and dissent in part.
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MARC SLIS and 906 VAPOR,
Plaintiffs-Appellees,
FOR PUBLICATION
May 21, 2020
9:00 a.m.
v No. 351211
Court of Claims
STATE OF MICHIGAN and DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
LC No. 19-000152-MZ
Defendants-Appellants.
A CLEAN CIGARETTE CORPORATION,
Plaintiff-Appellee,
v No. 351212
Court of Claims
GOVERNOR, STATE OF MICHIGAN, and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
LC No. 19-000154-MZ
Defendants-Appellants.
Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ.
MARKEY, P.J.
In these consolidated appeals, defendants appeal by leave granted the opinion and order
of the Court of Claims granting plaintiffs’ motions for a preliminary injunction. The ruling
enjoined enforcement of emergency rules promulgated by defendant Department of Health and
Human Services (DHHS) pursuant to MCL 24.248(1). In significant part, the emergency rules
prohibit the sale and distribution of flavored nicotine vapor products in Michigan. The stated
purpose of the emergency rules was to combat a vaping crisis among the youth of our state and
protect them from nicotine product addiction. As required by MCL 24.248(1), defendant
Governor concurred in the DHHS’s finding that it was necessary to promulgate the emergency
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rules. Plaintiffs commercially sell vapor products that are now banned under the emergency
rules, and they filed declaratory judgment actions against defendants alleging that the emergency
rules are invalid. We hold that the DHHS and the Governor are entitled to due deference with
regard to the finding of an emergency under MCL 24.248(1), but not complete capitulation, and
the Court of Claims ultimately did not abuse its discretion by issuing the preliminary injunction
on the basis of the evidence presented by the parties. Accordingly, we affirm.
I. CONSTITUTIONAL AND STATUTORY FRAMEWORK
“The public health and general welfare of the people of the state are hereby declared to be
matters of primary public concern,” and “[t]he legislature shall pass suitable laws for the
protection and promotion of the public health.” Const 1963, art 4, § 51. The Public Health
Code, MCL 333.1101 et seq., reflects the Legislature’s continuing efforts to carry out its duties
under the Michigan Constitution. MCL 333.2221(1) provides:
The [DHHS] shall continually and diligently endeavor to prevent disease,
prolong life, and promote the public health through organized programs, including
prevention and control of environmental health hazards; prevention and control of
diseases; prevention and control of health problems of particularly vulnerable
population groups; development of health care facilities and agencies and health
services delivery systems; and regulation of health care facilities and agencies and
health services delivery systems to the extent provided by law.
The DHHS may “[e]xercise authority and promulgate rules to safeguard properly the public
health[.]” MCL 333.2226(d). And MCL 333.2233(1) similarly provides that “[t]he [DHHS]
may promulgate rules necessary or appropriate to implement and carry out the duties or functions
vested by law in the department.”
The promulgation of administrative rules is governed by Chapter 3 of the Administrative
Procedures Act of 1969 (APA), MCL 24.201 et seq.1 Generally, “before the adoption of a rule,
an agency . . . shall give notice of a public hearing and offer a person an opportunity to present
data, views, questions, and arguments.” MCL 24.241(1). Publication requirements regarding the
notice of public hearing are set forth in MCL 24.242. MCL 24.248(1) describes the
circumstances in which the normal procedural requirements in promulgating a rule need not be
followed, providing:
If an agency finds that preservation of the public health, safety, or welfare
requires promulgation of an emergency rule without following the notice and
1 A “rule” is defined as “an agency regulation, statement, standard, policy, ruling, or instruction
of general applicability that implements or applies law enforced or administered by the agency,
or that prescribes the organization, procedure, or practice of the agency, including the
amendment, suspension, or rescission of the law enforced or administered by the agency.” MCL
24.207. MCL 24.207(a) through (r) list a number of actions that are excepted from the
definition. There is no dispute that the instant cases concern a “rule” promulgated by the DHHS.
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participation procedures required by [MCL 24.241 and MCL 24.242] and states in
the rule the agency's reasons for that finding, and the governor concurs in the
finding of emergency, the agency may dispense with all or part of the procedures
and file in the office of the secretary of state the copies prescribed by [MCL
24.246] endorsed as an emergency rule, to 3 of which copies must be attached the
certificates prescribed by [MCL 24.245] and the governor's certificate concurring
in the finding of emergency. The emergency rule is effective on filing and
remains in effect until a date fixed in the rule or 6 months after the date of its
filing, whichever is earlier. The rule may be extended once for not more than 6
months by the filing of a governor's certificate of the need for the extension with
the office of the secretary of state before expiration of the emergency rule. . . . .
II. PROMULGATION OF EMERGENCY RULES
We initially note that pursuant to 2019 PA 18, effective September 2, 2019, the
Legislature amended the youth tobacco act (YTA), MCL 722.641 et seq., extending the
prohibition of sales of tobacco products to minors to also include “vapor products” and
“alternative nicotine products.”2 Subsequently, on September 18, 2019, the DHHS, relying on
the legal authorities recited earlier, promulgated emergency rules entitled: “Protection of Youth
from Nicotine Product Addiction.” 2019 Mich Reg 18 (October 15, 2019), p 7. The DHHS
found that Michigan was confronted with a “vaping crisis among youth[,]” necessitating the
promulgation of emergency rules to address the crisis. Id. The DHHS articulated numerous
reasons for its finding, footnoting the sources for all of its factual assertions. Id. at 7-8. The
general premise of the DHHS’s position was that “[s]ince 2014, e-cigarettes (also known as
vapor products) have been the most commonly used tobacco product among youth in the U.S.”
Id. at 7. The DHHS noted that “[i]n December of 2018, the United States Surgeon General
Jerome Adams officially declared e-cigarette use among youth in the United States an epidemic.”
Id. at 8. The DHHS concluded that the “epidemic can . . . be attributed in large part to the appeal
of flavored vapor products to youth as well as the advertising and promotional activities by
companies that glamorize use of nicotine products nationwide.” Id.
2 MCL 722.641(1) provides that “[a] person shall not sell, give, or furnish a tobacco product,
vapor product, or alternative nicotine product to a minor, including, but not limited to, through a
vending machine.” And MCL 722.642(3)(a) provides that a minor shall not “[p]urchase or
attempt to purchase a vapor product or alternative nicotine product.” A “vapor product” is
statutorily defined as “a noncombustible product that employs a heating element, power source,
electronic circuit, or other electronic, chemical, or mechanical means, regardless of shape or size,
that can be used to produce vapor from nicotine or any other substance, and the use or inhalation
of which simulates smoking. . . . .” MCL 722.644(h).
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Under Rule 1(1)(c) of the emergency rules, a “flavored nicotine vapor product” is defined
as “any vapor product that contains nicotine and imparts a characterizing flavor.”3 And a
“characterizing flavor” is defined as “a taste or aroma, other than the taste or aroma of tobacco,
imparted either prior to or during consumption of a tobacco product, vapor product, or alternative
nicotine product, or any byproduct produced thereof.” Rule 1(1)(a).4
Rule 2 of the emergency rules is the most pertinent provision for purposes of the two
lawsuits, and it provides as follows:
(1) Beginning 14 days after these rules are filed with the secretary of state,
a retailer or reseller shall not:
(a) Sell, offer for sale, give, transport, or otherwise distribute, nor
possess with intent to sell, give, or otherwise distribute a
flavored nicotine vapor product.
(b) Use imagery explicitly or implicitly representing a
characterizing flavor to sell, offer for sale, give, or otherwise
distribute a vapor product.
(2) Beginning 14 days after these rules are filed with the secretary of state,
a person shall not transport flavored nicotine vapor products intended
for delivery to any retailer or reseller in violation of these rules.
Rule 3 addresses “fraudulent or misleading terms or statements to sell, offer for sale, give, or
otherwise distribute vapor products.” Rule 3(1). Rule 4 provides that “[b]eginning 14 days after
these rules are filed with the secretary of state, the restrictions on advertising set forth at 21 CFR
1140.32 apply with equal force to vapor products. Violations of 21 CFR 1140.32 are violations
of this rule.”5 Rule 5 states that the rules “apply with equal force to retailers and resellers
utilizing online and other remote sales methods that are intended to deliver flavored nicotine
vapor products to this state.” Rule 6 regulates the placement of advertisements for vapor
products in general. A violation of any of the emergency rules constitutes a misdemeanor that is
punishable by incarceration “for not more than 6 months, or a fine of not more than $200, or
both.” Rule 7(1). Rule 8 provides that “[i]f any rule or subrule of these rules, in whole or in
3 The emergency rules can be found in volume 18 of the 2019 Michigan Register, pages 9 and
10. See MCL 24.248(3) (“The emergency rule must be published in the Michigan register . . .
.”).
4 The definition continues by indicating that a characterizing flavor “includes, but is not limited
to, tastes or aromas relating to food or drink of any sort; menthol; mint; wintergreen; fruit;
chocolate; vanilla; honey; candy; cocoa; dessert; alcoholic beverages; herbs; or spices.” Id.
5 21 CFR 1140.32 concerns format and content requirements for labeling and advertising
cigarettes and smokeless tobacco.
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part, is found to be invalid by a court of competent jurisdiction, such decision will not affect the
validity of the remaining portion of these rules.” 6
As required by MCL 24.248(1), the Governor concurred in the finding of an emergency
and in the determination that the public interest required the promulgation of the emergency
rules. The emergency rules were filed with the Secretary of State on September 18, 2019.
Consistent with the parameters set forth in MCL 24.248(1), the emergency rules provided that
they were to remain in effect for a period of 6 months. The emergency rules would have expired
on March 18, 2020, but on March 11, 2020, the Governor filed a certificate of need for extension
of the emergency, extending the effectiveness of the emergency rules another six months until
September 18, 2020.7 See MCL 24.248(1). The certificate of need cited new data and surveys
that led the Governor to find that the trend of minors using e-cigarettes had “increased over the
past year.” The Governor also observed:
The documented intensification of the vaping crisis only confirms what
DHHS determined when it, with my concurrence, originally issued the
Emergency Rules: to protect the public health and welfare from the emergent and
worsening crisis of youth vaping, the Emergency Rules must go into effect
immediately. The Emergency Rules’ prohibition on flavored vapor products will
significantly limit the appeal of vaping to youth, curbing the increase in new
youth users.
III. THE LITIGATION
Plaintiff Marc Slis owns and operates plaintiff 906 Vapor, LLC, which is a retail store
located in Houghton that sells a variety of vapor products, some of which contain nicotine with
non-tobacco flavors. We collectively refer to these two plaintiffs as “Slis.” On September 25,
2019, Slis filed an extensive complaint against the state and the DHHS in the Houghton Circuit
Court seeking declaratory relief. In that original action, Slis first contended that the emergency
rules were ultra vires. Slis also maintained that the emergency rules were invalid because: (1)
there was no emergency justifying a departure from the procedural safeguards required by the
APA; (2) assuming the circumstances warranted a somewhat urgent response, the DHHS could
not skip all of the APA’s procedural safeguards; and (3) assuming a true emergency, the threat
only affected a small subgroup of the general public, which was insufficient as a matter of law to
trigger the authority to promulgate emergency rules. Finally, Slis alleged that the emergency
rules were substantively invalid because they were inconsistent with the legislative intent of the
enabling statute and because they were arbitrary and capricious.
6 The DHHS’s findings and the emergency rules are attached as Appendix 1 to this opinion and
are incorporated into the opinion.
7 The certificate of need for extension of the emergency rules, which includes the Governor’s
findings, is attached as Appendix 2 to this opinion and is incorporated into the opinion. See
MRE 202(a) (allows taking judicial notice of “regulations of . . . agencies of Michigan”); MCR
7.216(A)(4) (this Court may “permit . . . additions to the transcript or record”).
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Additionally, Slis filed a motion for preliminary injunction and an emergency ex parte
motion for a temporary restraining order (TRO) that would prohibit defendants from enforcing
the emergency rules pending a hearing on the motion for preliminary injunction. Slis claimed
that his business would suffer an immediate and irreparable injury if the court did not enjoin
enforcement of the emergency rules because the business would have to close its doors,
terminate its employees, and destroy over 80% of its inventory. The circuit court denied the ex
parte motion for a TRO on the basis of a technical defect, and shortly thereafter the case was
transferred to the Court of Claims. On September 30, 2019, in the Court of Claims, Slis filed an
emergency motion for expedited consideration of a renewed motion for TRO. Later that day, the
Court of Claims denied Slis’s motion.
Plaintiff, A Clean Cigarette Corporation (ACC), is a Michigan-based retailer of flavored
vapor products. ACC operated 20 locations throughout the state, employed 53 people, and sold
about 2500 flavored vapor cartridges a month that contained zero nicotine. On October 1, 2019,
ACC filed a complaint against the state, the Governor, and the DHHS. On the same date, ACC
filed a motion for TRO and order to show cause why a preliminary injunction should not issue.
ACC alleged that it would suffer irreparable injury if the emergency rules were enforced because
it would result in the closure of almost all of ACC’s 20 locations. On October 2, 2019, the Court
of Claims denied the motion for a TRO and ordered the consolidation of the two lawsuits. On
October 4, 2019, ACC moved for a preliminary injunction, asserting:
These emergency rules give no consideration or mention the impact the
ban will have on adult vaping users who have elected to use flavored vapor in
order to transition away from smoking cigarettes. Since vaping is already illegal
for minors, all that this ban will accomplish is to take the flavored vaping options
away from adults. Accordingly, ACC requests injunctive relief to avoid the
irreparable harm this ban will cause to its business, employees, businesses like it
and the tens of-thousands of Michigan adults that elect to use flavored vapor
products in lieu of combustible tobacco products.
On October 4, 2019, ACC also filed an amended complaint against defendants, alleging
four causes of action. ACC alleged an unjustified interference with interstate commerce, federal
statutory preemption under 21 USC 387,8 an uncompensated unconstitutional taking of ACC’s
property, and violation of the APA.
With respect to Slis’s action, on October 1, 2019, the Court of Claims, having rejected
issuance of a TRO, heard testimony on the issue whether Slis would suffer irreparable harm if a
preliminary injunction did not issue. Slis testified that he purchased 906 Vapor after being a
customer of the business for about 1-1/2 years. He had first tried e-cigarettes as a method to stop
smoking regular cigarettes and was successful. He was only successful, however, after he tried
flavored e-cigarettes. Slis asserted that he had between 200 and 500 customers at any given
time. He maintained a number of business documents, including sales records, inventory data,
sales receipts, invoices, and tax records. Slis testified that approximately 95% of his customers
8 Federal law regarding tobacco products is governed by 21 USC 387 et seq.
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used flavored vapor products. He contended that 906 Vapor would have to close its doors and
file for bankruptcy if the emergency rules went into effect. Slis also asserted that if the flavored
nicotine vapor products were taken off the shelves for six months, the nicotine would oxidize and
change the color of the product.
The Court of Claims denied Slis’s motion for a preliminary injunction, concluding that he
had “not met the burden of demonstrating an irreparable harm for which there is no adequate
remedy at law.” Consistent with its order in the ACC suit, the Court of Claims consolidated
Slis’s suit with ACC’s action. It denied Slis’s motion for preliminary injunction without
prejudice, stating that “all parties will have the opportunity for additional briefing, testimony,
and argument” at a later hearing. In other words, the Court of Claims, given the consolidation,
was prepared to entertain a full evidentiary hearing entailing Slis, ACC, and defendants
regarding whether a preliminary injunction should issue. Nevertheless, Slis filed an application
for leave to appeal, which this Court denied. Slis v Michigan, unpublished order of the Court of
Appeals, entered October 7, 2019 (Docket No. 350888).
The Court of Claims held the preliminary-injunction hearing on October 8 and 9, 2019.
Slis testified that 906 Vapor closed its doors on October 1, 2019, because of the inability to sell
flavored vapor products. Slis explained that his average customer was a middle-aged, semi-
professional person. Slis claimed that he always verified the ages of all customers by examining
their identification and using an age-checker cellular phone application. Slis maintained that his
business was dedicated to helping people stop smoking. He further contended that 80% to 90%
of his clients who wanted to quit smoking were ultimately successful. When asked if his
customers could travel the five-plus miles to Wisconsin or use the Internet to purchase the
banned products, Slis testified that they had already begun doing so. Slis opined that if the
emergency rules remained in effect for six months, all of his product could possibly expire in the
interim. He was certain that expiration of his product would occur if the emergency rules were
extended for an additional six months, which extension has now come to fruition. Slis also
testified that he carried between $15,000 and $20,000 in business debt and $60,000 in personal
debt and that 906 Vapor was his sole source of income. According to Slis, if the emergency
rules remained in effect, he would have to declare bankruptcy.
Cary Lee testified that he started ACC in 2010 and that it presently had 19 retail stores in
Michigan with 53 employees. He maintained that one of his stores had closed because of the
emergency rules. Lee indicated that ACC sold flavored vapor products. He started the company
after using e-cigarettes to quit smoking in 2010, and he wished to help others overcome their
addictions. Lee claimed that it is a real fight to quit smoking and that it is easier to quit when the
e-cigarette tastes better. His wife, Ramona Lee, testified that five more ACC stores would close
on October 15, 2019, and then probably another five stores would follow if the emergency rules
were not overturned. She observed that approximately 50% of ACC’s inventory was illegal
under the emergency rules.
Ramona Lee further indicated that ACC had 740,000 cartridges, which were worth
approximately $3 million, that could not be sold under the emergency rules. She testified that
before September 2, 2019, ACC sold $13,000 to $14,000 of product a day, excluding online
sales, but since October 2, 2019, sales had diminished to approximately $9,000 a day. She also
explained that 75% of online sales came from customers outside of Michigan, but flavored vapor
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products had been removed from ACC’s website in response to the emergency rules. Dawn
Every, an ACC employee, testified that only 2.3% of the company’s clients were between the
ages of 18 and 25. David Haight, the Vice-President of ACC’s operations, indicated that the
amount of product that could not be sold was worth between $2.2 million and $2.5 million.
Another ACC employee, Deleasha Trice, testified that using e-cigarettes had improved her
health.
Amelia Howard testified that she was a Ph.D. candidate at the University of Waterloo in
the Department of Sociology and Legal Studies. Her dissertation was on the historical
technology of e-cigarettes, the integration of these products into the marketplace, and the “moral
panic” over vaping. The Court of Claims qualified her as an expert regarding whether there
existed a situation justifying the emergency rules. She disagreed that there was evidence
showing that flavored vapor products were causing an increase in vaping, and she discussed her
perceived flaws in the previous studies on the subject. Howard also talked about the studies
cited in support of the emergency rules and the problems with those studies from her perspective.
She opined that there was nothing to show that flavors caused vapor usage by minors. Howard
attributed youth vapor usage partly to perceptions that it was safer than smoking. She testified
that when she reviewed smoking and vaping statistics for Michigan, the state had double the
average smoking rate among youth, but the state’s vaping rates were half the national average.
Howard spoke of the evolution of flavors in vaping products, which was a response to people
who were trying to quit smoking but did not like the taste of the initial tobacco flavorings. After
Howard discussed a study showing that the rise of flavored vaping products had led to smoking
cessation, defendants conceded that the study had provided a correlation between adults using
flavored e-cigarettes and their reduction in the use of combustible cigarettes.
Dr. Joneigh Khaldun testified that she was the Chief Medical Executive and the Chief
Deputy Director for Health at the DHHS. She discussed her other experiences with health crises,
including those involving the measles, hepatitis A outbreaks, and the opioid epidemic. Dr.
Khaldun emphasized that it was important to respond quickly once a health problem is identified.
She stated that vaping use by the young impacted general public health. Dr. Khaldun had
examined national and state data about the number of youths using vaping products and opined
that the high numbers amounted to a public health emergency. According to Dr. Khaldun, at one
high school more than a third of the students used vaping products. She testified that there was
evidence that many youths used flavors to initiate their vaping experiences.
Dr. Khaldun discussed the recent amendment of the YTA, which we alluded to earlier,
that banned the sale of vaping products to individuals under the age of 18. Despite the legislative
action, she still believed that the emergency rules were necessary because she had no reason to
conclude that the statutory amendment would have any impact. Dr. Khaldun noted that the FDA
had banned the sale of vaping products to minors in 2016. She reviewed a chart that tracked the
percentage of high school students who used vaping products from November 2013 through
March 2019. It showed that high school use continued to rise significantly even after the 2016
ban.
Dr. Khaldun additionally testified that e-cigarettes were not approved by the FDA as a
smoking cessation product. She had not seen definitive evidence that e-cigarettes were effective
in stopping the use of tobacco products overall. She further noted that another study showed that
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tobacco-flavored products were one of the most popular flavors among adult e-cigarette users.
When asked whether there would be any harm if the emergency rules were halted, Dr. Khaldun
replied that there would indeed be harm because each new day without the ban would allow for
the opportunity for a minor to gain access to flavored vapor products.
Dr. Khaldun testified that “the epidemic in the emergency is about youth being addicted
to nicotine.” She agreed that traditional combustible cigarettes were more harmful to the health
of adults and children. But she claimed that there was no evidence about the long-term health
effects of e-cigarettes. Dr. Khaldun also noted that the United States Surgeon General had
officially declared e-cigarette use among youth as an emergency epidemic in December 2018.
She conceded, however, that Michigan did not declare such an emergency until August 30, 2019.
Dr. Khaldun acknowledged that one of the studies she cited did not show how many youths who
vaped were previously using regular tobacco products.
Following the hearing, the Court of Claims issued an extensive written opinion and order
that enjoined and restrained enforcement of the emergency rules. The Court of Claims made the
following 16 specific findings of fact.
1. 906 Vapor is no longer a “going concern.” Its inventory remains at
its retail operation.
2. The business owner, Slis, has considerable business and personal
debt such that resumption of business after expiration of the Emergency Order[9]
is unlikely.
3. Customers of 906 Vapor have begun purchasing product from out-
of-state vendors.
4. [ACC] has shuttered one retail center and is in the process of
closing four others.
5. [ACC] had a considerable [I]nternet operation that, like its retail
stores, relied on sale of flavored nicotine product.
6. [ACC’s] [I]nternet operation has ceased advertising flavored
nicotine product.
7. The “A Clean Cigarette” logo and name is posted on its retail
operations, uniforms, e-cigarette cartridges and batteries.
8. [The terms] Clean and Cigarette cannot be used together per Rule
number 3(2), of the Emergency Order.
9 This is a reference to the emergency rules.
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9. The shelf life of vaping product whether for open or closed
container systems is ten months or less.
10. [ACC] has contractually committed to receive additional product
bearing its logo.
11. Neither Plaintiff sold products to minors.
12. E-cigarette users who were patrons of the plaintiffs
overwhelmingly use flavored nicotine product.
13. [ACC] has over two million dollars of unusable product.
14. In reaching the conclusion that an emergent danger was posed by
e-cigarette use among persons under th[e] age of 18 in Michigan, the [DHHS]
cited numerous studies . . . .
15. The [DHHS] considered the passage of Public Act 18 when it
recommended the emergency rules.
16. The [DHHS] had a basis for its determination that Public Act 18
would not be a significant deterrent to youth e-cigarette use. That basis was
derived from the historic data on e-cigarette use in other states which adopted
similar legislation to Public Act 18 prior to Michigan.
The Court of Claims next reviewed the factors to be considered in determining whether to
issue a preliminary injunction. It found that plaintiffs would suffer irreparable harm if the
emergency rules were not enjoined. With respect to whether plaintiffs were likely to succeed on
the merits, the Court of Claims noted that plaintiffs had argued that the DHHS had no
rulemaking authority on the subject-matter. But it found that it did not need to reach that
particular issue because it agreed with plaintiffs’ argument that the emergency rules were
procedurally invalid for the reason that there was no “emergency.” Therefore, the Court of
Claims determined that plaintiffs had demonstrated a likelihood of success on the merits.10
The Court of Claims discussed the difference between an “emergent” problem such as
teen vaping and a true emergency that “required” the DHHS to suspend the normal rulemaking
process under the APA. It opined that the DHHS was required to do more than simply identify a
problem; the DHHS was also required to articulate proper justification to take a shortcut in
promulgating rules. The Court of Claims ruled that plaintiffs had the better argument with
respect to whether the circumstances mandated the promulgation of the emergency rules
pursuant to MCL 24.248. It noted that the sources, information, data, and surveys upon which
the DHHS had relied were available at the latest in February 2019, yet the DHHS had waited
10 The Court of Claims made clear that it was not rendering judgment on the DHHS’s policy
goals and what it was attempting to achieve.
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eight months to take any action. During this time, according to the Court of Claims, the normal
APA procedures could have been employed and run their course. The Court of Claims found
that the old informational materials, coupled with the DHHS’s failure to act promptly,
undermined the declaration of an emergency. It rejected the DHHS’s explanation for the delay
that Dr. Khaldun had only recently been appointed as Chief Medical Executive, because DHHS
could still have done something earlier. The Court of Claims ruled that the DHHS could not
“create an emergency by way of its own failure to act,” finding plaintiffs’ citation to federal
authority for this proposition persuasive.
Balancing the harms to the parties, the Court of Claims noted that defendants had not
argued that they would suffer any harm if the preliminary injunction were issued. With respect
to whether the injunction would harm the public, the Court of Claims found that each side had
presented a compelling argument. On one hand, were an injunction issued, youth could gain
access to flavored nicotine vapor products, and there was evidence which suggested that there
were risks to youth who used vaping products. On the other hand, plaintiffs had presented
evidence to show that there was a real risk of harm to smokers who had used flavored vaping
products as a substitute for more harmful combustible tobacco products and that they could go
back to those products if flavored vaping products were banned. The Court of Claims ultimately
found that the balancing factor did not weigh heavily for either side. It then ruled that the
various factors, taken together, supported the issuance of the preliminary injunction.
Defendants applied for leave to appeal to this Court on October 25, 2019. They
subsequently filed a bypass application for leave in the Michigan Supreme Court that was
rejected. Slis v Michigan, 505 Mich 943 (2019) (“the Court is not persuaded that the question
presented should be reviewed by this Court before consideration by the Court of Appeals”). This
Court granted leave to appeal limited to the issues raised in the applications, expedited the
appeals, consolidated the two cases, and denied defendants’ motion for a stay. Slis v Michigan,
unpublished order of the Court of Appeals, entered December 9, 2019 (Docket No. 251211); A
Clean Cigarette Corp v Governor, unpublished order of the Court of Appeals, entered December
9, 2019 (Docket No. 251212).
IV. ANALYSIS
A. STANDARDS OF REVIEW
We review for an abuse of discretion a trial court’s ruling on a request for a preliminary
injunction. Mich AFSCME Council 25 v Woodhaven-Brownstown Sch Dist, 293 Mich App 143,
146; 809 NW2d 444 (2011). A trial court abuses its discretion when its decision falls outside the
range of reasonable and principled outcomes. Id. The factual findings that a trial court makes in
the process of deciding whether to grant a preliminary injunction are reviewed for clear error. Id.
Associated issues involving statutory interpretation are reviewed de novo by this Court as
questions of law. Id. We also review de novo the interpretation of a rule or regulation adopted
by an agency pursuant to statutory authority. United Parcel Serv, Inc v Bureau of Safety &
Regulation, 277 Mich App 192, 202; 745 NW2d 125 (2007). And similarly, this Court reviews
de novo constitutional issues. Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).
B. PRINCIPLES OF STATUTORY INTERPRETATION
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This Court’s role in construing statutory language is to discern and ascertain the intent of
the Legislature, which may reasonably be inferred from the words in the statute. Mich Ass’n of
Home Builders v City of Troy, 504 Mich 204, 212; 934 NW2d 713 (2019). We must focus our
analysis on the express language of the statute because it offers the most reliable evidence of
legislative intent. Id. When statutory language is clear and unambiguous, we must apply the
statute as written. Id. A court is not permitted to read anything into an unambiguous statute that
is not within the manifest intent of the Legislature. Id. Furthermore, this Court may not rewrite
the plain statutory language nor substitute its own policy decisions for those decisions already
made by the Legislature. Id. at 212-213.
“Judicial construction of a statute is only permitted when statutory language is
ambiguous.” Noll v Ritzer, 317 Mich App 506, 511; 895 NW2d 192 (2016). A statute is
ambiguous when an irreconcilable conflict exists between statutory provisions or when a statute
is equally susceptible to more than one meaning. People v Hall, 499 Mich 446, 454; 884 NW2d
561 (2016). “When faced with two alternative reasonable interpretations of a word in a statute,
we should give effect to the interpretation that more faithfully advances the legislative purpose
behind the statute.” People v Adair, 452 Mich 473, 479-480; 550 NW2d 585 (1996).
C. LAW GOVERNING PRELIMINARY INJUNCTIONS IN GENERAL
A preliminary injunction is generally considered a form of equitable relief that has the
objective of maintaining the status quo pending a final hearing concerning the parties’ rights.
Mich AFSCME Council 25, 293 Mich App at 146. Four factors must be taken into consideration
by a court when determining if it should grant the extraordinary remedy of a preliminary
injunction to an applicant: (1) whether the applicant has demonstrated that irreparable harm will
occur without the issuance of an injunction; (2) whether the applicant is likely to prevail on the
merits; (3) whether the harm to the applicant absent an injunction outweighs the harm an
injunction would cause to the adverse party; and (4) whether the public interest will be harmed if
a preliminary injunction is issued. Pontiac Fire Fighters Union Local 376 v Pontiac, 482 Mich
1, 6 n 6; 753 NW2d 595 (2008); Mich Coalition of State Employee Unions v Civil Serv Comm,
465 Mich 212, 225 n 11; 634 NW2d 692 (2001); Thermatool Corp v Borzym, 227 Mich App
366, 376; 575 NW2d 334 (1998). “[A] preliminary injunction should not issue where an
adequate legal remedy is available.” Pontiac Fire Fighters, 482 Mich at 9. “The mere
apprehension of future injury or damage cannot be the basis for injunctive relief.” Id. The party
requesting “injunctive relief has the burden of establishing that a preliminary injunction should
be issued . . . .” MCR 3.310(A)(4).
D. REVIEW OF AN AGENCY’S ACTION TO PROMULGATE EMERGENCY RULES
UNDER MCL 24.248
The Court of Claims effectively concluded that there was no true emergency as necessary
to permit the DHHS and Governor to proceed under MCL 24.248(1) and promulgate the
emergency rules without a hearing and public participation, which are typically required in the
process of promulgating a rule. On the basis of this conclusion, the Court of Claims found that
plaintiffs were likely to prevail on the merits of their complaints. The likelihood of success on
the merits—one of the factors to consider in ruling on a request for a preliminary injunction—
was the driving force behind the ruling, and defendants devote the vast majority of their brief
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addressing the issue. In examining whether there was an emergency justifying a suspension of
normal rulemaking procedures, the Court of Claims applied de novo review, treating the issue as
one of statutory construction of MCL 24.248(1). Whether plaintiffs are likely to prevail on the
merits can potentially be influenced by the standard or scope of review and the level of
deference, if any, that is applicable to the finding by the DHHS and the Governor that the
preservation of the public health, safety, or welfare required promulgation of the emergency
rules. We shall examine the APA, the Michigan Constitution, and the caselaw, primarily this
Court’s decision in Mich State AFL-CIO v Secretary of State, 230 Mich App 1; 583 NW2d 701
(1998), in a quest to identify the proper standard for reviewing and assessing the DHHS’s actions
made in conjunction with the Governor under MCL 24.248(1).11
The issue of whether the preservation of the public health, safety, or welfare requires
promulgation of an emergency rule without having to comply with the normal notice and
participation procedures involves, for the most part, a factual inquiry. And it is in regard to this
factual inquiry that we search for any applicable standards in judging the factual findings
ultimately made by the DHHS in association with the Governor. This theoretically includes the
possibility that the standard is that factual findings are not subject to any judicial review. To the
extent that statutory construction of MCL 24.248(1) plays a role in making the determination
whether to promulgate an emergency rule, e.g., defining the term “preservation,” the matter
would generally present a question of law subject to de novo review. Mich State AFL-CIO, 230
Mich App at 24.12 Here, our review of the emergency rules and the underlying findings does not
reveal any express instances of the DHHS or the Governor engaging in statutory interpretation.
1. THE APA
Chapter 6 of the APA, MCL 24.301 et seq., provides for judicial review, but this review
is only for persons “aggrieved by a final decision or order in a contested case[.]” MCL 24.301.
And a “contested case” is defined as “a proceeding, including rate-making, price-fixing, and
licensing, in which a determination of the legal rights, duties, or privileges of a named party is
required by law to be made by an agency after an opportunity for an evidentiary hearing.” MCL
24.203(3). The promulgation of the emergency rules did not entail a contested case; therefore,
judicial review under Chapter 6 of the APA, including the provision regarding the scope of
review, MCL 24.306, was not applicable. See MCL 24.207(f) (a “rule” does not include “[a]
determination, decision, or order in a contested case”); Mich Ass’n of Home Builders v Dir of
Dep’t of Labor & Economic Growth, 481 Mich 496, 498; 750 NW2d 593 (2008) (“[T]he review
of an administrative rule is categorized as involving a non-contested case.”).
11 Keep in mind that we are not tasked with making, nor do we make, any conclusive
determinations regarding the merits of the lawsuits; rather, our opinion is focused on whether the
preliminary injunction was properly issued and our analysis must be read in that context.
12 We do note that “[a]n administrative agency’s interpretation of a statute that it is obligated to
execute is entitled to respectful consideration, but it cannot conflict with the plain meaning of the
statute.” Hegadorn v Dep’t of Human Servs Dir, 503 Mich 231, 244; 931 NW2d 571 (2019).
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MCL 24.248 itself does not provide for any type of judicial review of an emergency rule
promulgated by an agency, but it also has no language prohibiting judicial review. We next
consider MCL 24.264, which provides, in pertinent part, as follows:
Unless an exclusive procedure or remedy is provided by a statute
governing the agency, the validity or applicability of a rule, including the failure
of an agency to accurately assess the impact of the rule on businesses, including
small businesses, in its regulatory impact statement, may be determined in an
action for declaratory judgment if the court finds that the rule or its threatened
application interferes with or impairs, or imminently threatens to interfere with or
impair, the legal rights or privileges of the plaintiff. . . . This section shall not be
construed to prohibit the determination of the validity or applicability of the rule
in any other action or proceeding in which its invalidity or inapplicability is
asserted.
We agree with plaintiffs that MCL 24.264 gave them the right to challenge the validity of
the emergency rules under the plain and unambiguous language of the statute. See Mich Ass’n of
Home Builders, 481 Mich at 499 (“MCL 24.264 allows a plaintiff to challenge the validity of a
rule in an action for a declaratory judgment.”). An agency rule can be deemed substantively
invalid when the subject matter of the rule falls outside of or goes beyond the parameters of the
enabling statute, when the rule does not comply with the intent of the Legislature, or when the
rule is arbitrary or capricious. Mich State AFL-CIO, 230 Mich App at 15.13 A rule can also be
characterized as procedurally invalid if it was not properly promulgated, e,g., when a required
hearing was not conducted. Id. at 25; see also Goins v Greenfield Jeep Eagle, Inc, 449 Mich 1,
8-10; 534 NW2d 467 (1995) (the failure to comply with a procedural requirement found in a
statute will render a purported rule invalid). MCL 24.264 broadly applies to all rules. There is
no restrictive language indicating or suggesting that it does not apply to a challenge of
“emergency” rules. Were this panel to recognize such an exception or limitation in MCL 24.264,
we would be reading language into an unambiguous statute that is not within the manifest intent
of the Legislature. City of Troy, 504 Mich at 212.
Furthermore, there is no exclusive procedure or remedy provided in a different statute
governing the DHHS with respect to challenging the validity of a rule promulgated by the
DHHS. We have scoured the Public Health Code, including Part 22, MCL 333.2201 et seq.,
which encompasses the DHHS’s rulemaking authority, and there is no available procedure or
remedy in regard to challenging a promulgated rule, nor language barring a challenge. We reject
any contention that MCL 24.248—the statute authorizing the promulgation of an emergency
13 Our Supreme Court in Ins Institute of Mich v Comm’r, Fin & Ins Serv, Dep’t Labor &
Economic Growth, 486 Mich 370, 385; 785 NW2d 67 (2010), also indicated that courts use a
three-part test to determine the validity of a rule: (1) whether the rule is within the subject matter
encompassed by the enabling statute; (2) if so, whether the rule complies with the underlying
legislative intent; and (3) if the rule meets the first two requirements, whether it is arbitrary or
capricious.
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rule—provides “an exclusive procedure or remedy,” as that phrase is used in MCL 24.264. The
“exclusive procedure or remedy” language of MCL 24.264 plainly and unambiguously pertains
to a procedure or remedy related to challenging the validity of a rule, not just any procedure or
remedy. Although MCL 24.248 sets forth the exclusive procedure to promulgate an emergency
rule, it has no language with regard to allowing or disallowing the challenge of an emergency
rule.
Moreover, MCL 24.248 is not a statute specifically governing the DHHS such that it
could conceivably constitute an exception to the general applicability of MCL 24.264’s
authorization of declaratory judgment actions to challenge the promulgation of allegedly invalid
rules. MCL 24.248(1) governs the promulgation of emergency rules by any agency or agencies
in general; it is not specifically “a statute governing the [DHHS],” MCL 24.264. In our view,
MCL 24.264 reveals a general legislative intent to provide an avenue for a party to challenge a
rule promulgated by an agency, whether under MCL 24.264 itself or under another statute that
governs the agency. If the Legislature does not intend for judicial review of a promulgated rule
under certain circumstances or in connection with a particular agency, it can easily accomplish
that goal with language to that effect. And we have not been directed to any statutory language
that prohibits judicial review of the DHHS’s emergency rules. Moreover, as discussed in detail
below, this Court in Mich State AFL-CIO, 230 Mich App at 25, directly held that emergency
rules promulgated under MCL 24.248 can be contested in the courts.
MCL 24.264 gives a party access to the courts through an action for declaratory
judgment, but it is silent with respect to any type of review standard that a trial court should
apply in determining whether an agency’s rule, emergency or otherwise, is invalid or whether it
was invalidly promulgated. MCL 24.264 does not indicate one way or the other whether any
deference should be given by the courts to an agency in the course of a declaratory judgment
action. And the statute does not expressly provide that underlying fact-finding by an agency can
be challenged in an action.
2. THE MICHIGAN CONSTITUTION
Const 1963, art 6, § 28, provides, in part:
All final decisions, findings, rulings and orders of any administrative
officer or agency existing under the constitution or by law, which are judicial or
quasi-judicial and affect private rights or licenses, shall be subject to direct review
by the courts as provided by law. This review shall include, as a minimum, the
determination whether such final decisions, findings, rulings and orders are
authorized by law; and, in cases in which a hearing is required, whether the same
are supported by competent, material and substantial evidence on the whole
record. . . . .
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The promulgation of an agency rule does not constitute a decision by the agency that is
judicial or quasi-judicial in nature; therefore, Const 1963, art 6, § 28, does not apply to the
instant cases.14
Defendants raise a constitutional separation of powers argument with no citation of
supporting precedent that is pertinent and binding. “The powers of government are divided into
three branches: legislative, executive and judicial. No person exercising powers of one branch
shall exercise powers properly belonging to another branch except as expressly provided in this
constitution.” Const 1963, art 3, § 2. In In re Complaint of Rovas Against SBC Mich, 482 Mich
90, 97-98; 754 NW2d 259 (2008), our Supreme Court stated:
This case implicates the powers, and the boundaries of the powers, of all
three branches: the Legislature, the judiciary, and administrative agencies, which
are part of the executive branch. . . . .
The people of the state of Michigan have divided the powers of their
government into three branches: legislative, executive and judicial. Furthermore,
no person exercising the powers of one branch shall exercise powers properly
belonging to another branch except as expressly provided in this constitution.
The legislative power of the State of Michigan is vested in a senate and a
house of representatives. Simply put, legislative power is the power to make laws.
In accordance with the constitution's separation of powers, this Court cannot
revise, amend, deconstruct, or ignore the Legislature's product and still be true to
our responsibilities that give our branch only the judicial power. While
administrative agencies have what have been described as “quasi-legislative”
powers, such as rulemaking authority, these agencies cannot exercise legislative
power by creating law or changing the laws enacted by the Legislature.
[Quotation marks, citations, and alterations omitted.]
The Legislature gave authority to the DHHS to promulgate rules as reflected in sections
2226 and 2233 of the Public Health Code, and the Legislature provided the DHHS and other
agencies the authority to promulgate emergency rules to preserve the public health, safety, or
welfare, with the concurrence of the Governor, MCL 24.248(1). Because the DHHS, as an
14 In Natural Resources Defense Council v Dep’t of Environmental Quality, 300 Mich App 79,
86; 832 NW2d 288 (2013), this Court explained:
[N]ot all agencies' actions are taken in a judicial or quasi-judicial capacity.
To determine whether an administrative agency's determination is adjudicatory in
nature, courts compare the agency's procedures to court procedures to determine
whether they are similar. Quasi-judicial proceedings include procedural
characteristics common to courts, such as a right to a hearing, a right to be
represented by counsel, the right to submit exhibits, and the authority to subpoena
witnesses and require parties to produce documents. [Citations omitted.]
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agency, is part of the executive branch, Const 1963, art 5, § 2, as is, of course, the Governor,
Const 1963, art 5, § 1, the Legislature effectively gave quasi-legislative authority to the
executive branch to promulgate emergency rules under the circumstances provided in MCL
24.248(1). But the Legislature, by enacting MCL 24.264, also gave the judiciary the power to
issue declaratory judgments with respect to whether agency rules are valid or invalid, including,
as we have held, emergency rules. The exercise of this authority can result in an emergency rule
being struck down by a court, despite being promulgated by the DHHS and approved by the
Governor. Under this structural framework enacted by our Legislature, we cannot conclude that
the judiciary improperly encroaches on the province of the executive branch by preliminarily
enjoining the enforcement of an emergency rule in a declaratory judgment action such that there
is a separation-of-powers violation. Nevertheless, whether separation of powers requires a
standard or scope of review that gives some level of deference to the fact-finding by the DHHS
and Governor under MCL 24.248(1) is a separate question that we shall return to later in this
opinion.15
3. CASELAW
The parties direct much of their attention to this Court’s opinion in Mich State AFL-CIO,
230 Mich App 1, which is binding precedent. See MCR 7.215(J)(1). In Mich State AFL-CIO,
the plaintiff labor union initially obtained an injunction banning the enforcement or
implementation of a declaratory ruling and interpretive statement issued by the Secretary of State
regarding a provision in the Michigan Campaign Finance Act (MCFA), MCL 169.201 et seq.
Mich State AFL-CIO, 230 Mich App at 8-9. The labor union had successfully argued that the
Secretary of State’s declaratory ruling and interpretive statement did not find statutory support in
the MCFA and that the interpretive statement constituted a “rule” that was not properly
promulgated under the APA. Id. at 9. In response to the injunction, the Secretary of State
proceeded to promulgate emergency rules under MCL 24.248 that essentially mimicked its prior
declaratory ruling and interpretive statement construing the relevant MCFA provision. Id. at 10-
11. The labor union then obtained a preliminary injunction enjoining the Secretary of State’s
enforcement of the emergency rules. Id. at 12. The trial “court concluded that no emergency
had existed.” Id. The trial court also ruled that the emergency rules exceeded the statutory
language in the MCFA. Id. at 13.
On appeal, this Court affirmed the trial court’s ruling, albeit for different reasons. Id. at
25. The Court first indicated:
Rules adopted by an agency in accordance with the APA are legislative
rules that have the force and effect of law. In this case, the secretary adopted the
emergency rules pursuant to § 48 of the APA. We conclude that the emergency
rules are legislative rules that, if valid, have the force and effect of law. [Id. at 14-
15 (citation omitted).]
15 As mentioned earlier, this includes contemplation whether agency fact-finding is entirely
unreviewable under any circumstance.
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The Court then addressed whether the emergency rules were substantively valid, which,
as we noted earlier, implicated a three-part test that considers: “(1) whether the rule is within the
subject matter of the enabling statute; (2) whether it complies with the legislative intent
underlying the enabling statute; and (3) whether it is arbitrary or capricious.” Id. at 15 (quotation
marks and citations omitted).16 After analyzing the issue, the Court held:
Accordingly, for purpose only of our preliminary injunction analysis, we
conclude that the trial court apparently misjudged the strength of the union's
demonstration that it is likely to prevail on the merits of its claim for declaratory
relief that the secretary's emergency rules are substantively invalid. However, we
emphasize that if and when this matter comes to trial, the actual determination of
this claim is for the trial court in the first instance. [Id. at 17.]
The Court next addressed whether the trial court erred by finding that no emergency
existed. Id. The Court cited and reviewed Mich Petroleum Ass’n v State Fire Safety Bd, 124
Mich App 187; 333 NW2d 506 (1983), in which this Court affirmed a lower court decision that
rejected an argument that no emergency existed for purposes of emergency rules promulgated
under MCL 24.248. Mich State AFL-CIO, 230 Mich App at 18. The Mich State AFL-CIO panel
stated that “it appears that the test adopted by Michigan Petroleum was whether the adopting
agency lacked a substantial basis for its finding that the public interest required promulgation of
the emergency rule” and that “[t]he opinion also seemed to include an abuse of discretion aspect
to the test.” Mich State AFL-CIO, 230 Mich App at 19 (quotation marks and citations omitted).
The Court in Mich State AFL-CIO was “not convinced that the ‘substantial basis’ or ‘abuse of
discretion’ tests are the appropriate tests.” Id. at 20. The panel accurately indicated that the
“substantial basis” test employed in Mich Petroleum was not supported by any citation of
authority. Mich State AFL-CIO, 230 Mich App at 19; Mich Petroleum, 124 Mich App at 193-
194. We also note that the analysis in Mich Petroleum was cursory and that Mich Petroleum is
not binding precedent. MCR 7.215(J)(1).
This Court moved on with its analysis and, quoting in part the language in MCL
24.248(1), observed as follows:
An emergency rule is justified if three conditions are satisfied: (1) the
agency “finds that preservation of the public health, safety, or welfare requires
promulgation of an emergency rule without following the notice and participation
16 The Court effectively treats this three-part test as the authority for challenging an agency rule;
the panel did not refer to or cite MCL 24.264. We find it interesting that the three-part test, when
it is traced back to its origin, including through Supreme Court rulings, comes from this Court’s
opinion in Chesapeake & Ohio R Co v Mich Pub Serv Comm’n, 59 Mich App 88, 98-99; 228
NW2d 843 (1975), which cited nothing in support of the test. Therefore, it appears that there is a
statutory and a common-law basis to challenge an agency’s rule. This does not take away
anything from our reliance on MCL 24.264 in analyzing the separation of powers issue and in
searching for a standard or scope of review relative to agency fact-finding tied to rule
promulgation.
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procedures required by section 41 and 42;” (2) the agency “states in the rule the
agency's reasons for that finding”; and (3) “the governor concurs in the finding of
emergency.” [Mich State AFL-CIO, 230 Mich App at 21.]
After examining the definition of “public welfare” in Black’s Law Dictionary (6th ed), this Court
ruled:
[I]n order to bypass the general rule-making procedural protections
contained in the APA, the secretary in this case was required to find that the
preservation of the political interests of the public at large, or of a whole
community, as distinguished from the advantage of an individual or limited class
required promulgation of an emergency rule. [Mich State AFL-CIO, 230 Mich
App at 22 (quotation marks omitted).]
The Court then reviewed the Secretary of State’s finding of an emergency, determining
that the basis for the finding was the original “injunction that enjoined the enforcement of the
secretary’s declaratory ruling.” Id. at 23. But the panel noted that the injunction had only
enjoined the Secretary of State from enforcing the declaratory ruling against the labor union and
its affiliated organizations. Id. The Court pointed out that the declaratory ruling could still be
enforced by the Secretary of State against all other entities subject to the MCFA. Id. The Court
failed “to perceive how preservation of the political interests of the whole community is
threatened where the secretary is generally free to attempt to enforce its interpretation of . . . the
MCFA except against the limited class of the political committees of the union and its affiliated
organizations.” Id. at 24. Accordingly, the Court concluded that the emergency finding by the
Secretary of State related only to the advantage of a limited class. Id. The panel then ruled:
A rule is invalid and may be stricken by a court if the agency failed to
follow proper procedure. Generally, this principle applies where the agency fails
to promulgate a rule in accordance with the APA's notice-and-participation
procedures. However, we see no reason why this principle should not apply to
emergency rules should the agency fail to follow the procedures and standards
enunciated in § 48 of the APA, particularly where these procedures and standards
take the place of the general rule-making procedural protections contained in the
APA. It thus appears that the secretary's emergency rules are procedurally invalid
because the secretary's finding did not meet the statutory threshold imposed by
the Legislature. We note that we have treated this issue as an issue of statutory
construction, which is a question of law that we review de novo. However, we
would arrive at the same conclusion even if the “substantial basis” and “abuse of
discretion” tests enunciated in Michigan Petroleum are the appropriate tests. [Id.
at 24-25 (citations omitted).]
Therefore, this Court held that the trial court had not erred by determining that the labor
union was likely to prevail on the merits of its claim that the emergency rules were procedurally
invalid. Id. at 25. The Court ended its opinion with the following summarization:
[W]e conclude that the trial court apparently misjudged the strength of the
union's demonstration that it is likely to prevail on the merits of its claim for
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declaratory relief that the secretary's emergency rules are substantively invalid.
However, we conclude that the trial court did not err in determining that the union
is likely to prevail on the merits of its claim for declaratory relief that the
emergency rules are procedurally invalid. No persuasive arguments have been
made that the trial court erred in its consideration of the other preliminary
injunction factors, and we will not, therefore, second-guess the trial court in this
regard. The grant of a preliminary injunction with respect to the emergency rules
preserved the status quo pending a final hearing and did not grant any of the
parties final relief before a hearing on the merits. Accordingly, we conclude that
on the facts of this particular case the trial court did not abuse its discretion in
preliminarily enjoining the enforcement of the emergency rules. [Id. (citation
omitted).]
We first note that Mich State AFL-CIO fully supports our earlier determination that
emergency rules promulgated under MCL 24.248(1) can be challenged in court and are subject
to possible invalidation on the basis of procedural or substantive deficiencies. With respect to
conclusively identifying a standard or scope of review of an agency’s finding that the
surrounding circumstances required promulgation of an emergency rule, Mich State AFL-CIO is
not of much assistance. The Court was not convinced that a “substantial basis” or an “abuse of
discretion” test was the appropriate test, but it did not definitively reject those tests, even
determining that it would have reached the same result under both of the tests. The Court
employed de novo review, treating the issue as one of statutory construction. And the Court did
indeed interpret MCL 24.248(1) as not being applicable when a rule only preserves the welfare
of a limited class or an individual and not the welfare of the public at large. It does not appear
that there was any factual dispute that the welfare of only a limited class was preserved under the
emergency rules. Thus, the Court was not forced to assess a factual finding, resolve a factual
dispute, or identify a standard or scope of review relative to a factual finding made by the
Secretary of State in the process of promulgating the emergency rules. The appeal was
ultimately decided on the Court’s legal interpretation of “public welfare.”
4. RESOLUTION – GIVING DEFERENCE TO THE DHHS AND GOVERNOR
Initially, we do agree with defendants that a finding by a court that promulgation of
emergency rules was not necessary to preserve the health, safety, or welfare of the public is not a
finding that the emergency rules are procedurally invalid. Defendants fully complied with the
procedures for promulgating the emergency rules under MCL 24.248. We disagree with this
Court’s characterization in Mich State AFL-CIO that the emergency rules in that case were
procedurally invalid; rather, the Court ruled that the factual circumstances, given its construction
of MCL 24.248(1), did not justify invocation of emergency rules, which is not a procedural flaw
or failure. Regardless, it does not matter what moniker is used in describing an invalid rule; an
invalid rule is an invalid rule.
Next, we conclude that agency fact-finding under MCL 24.248(1) related to determining
whether the circumstances justify the promulgation of emergency rules is reviewable by a court.
Although this Court’s decision in Mich State AFL-CIO was focused and primarily based on
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construction of MCL 24.248(1), the interpretation was ultimately and necessarily applied to the
essentially undisputed fact that only a limited class was benefited by the emergency rules. In
other words, the Court held that preservation of the public health, safety, or welfare did not
require promulgation of the emergency rules without following the notice and participation
safeguards. Furthermore, the language in MCL 24.264 that authorizes declaratory judgment
actions to challenge the validity of a rule does not place any limits or restrictions on the legal
basis of a challenge, thereby allowing an argument that erroneous agency fact-finding rendered a
rule invalid. This still leaves the question whether any deference should be given to agency fact-
finding.
As discussed earlier, MCL 24.248 and MCL 24.264 do not provide any standards for
reviewing agency fact-finding that occurs in promulgating a rule or in deciding whether to
promulgate an emergency rule. And the standards for reviewing agency fact-finding in MCL
24.306 and Const 1963, art 6, § 28, have no application outside of contested cases and agency
decisions that are judicial or quasi-judicial in nature. Promulgating a rule entails neither
circumstance. The caselaw that recognizes that deference must be given to fact-finding by
administrative agencies, which we recite below, links the deferential standard to the evidentiary-
review provisions in MCL 24.306 and Const 1963, art 6, § 28. MCL 24.306(1)(d) authorizes a
court to set aside an agency’s decision when it is “[n]ot supported by competent, material and
substantial evidence on the whole record.” Const 1963, art 6, § 28, similarly provides that an
agency’s decisions, findings, rulings, and orders are reviewed, in part, to determine whether they
“are supported by competent, material and substantial evidence on the whole record.” With
respect to both the statutory and constitutional provisions, this Court has emphasized that
“[c]ourts should accord due deference to administrative expertise and not invade administrative
fact finding by displacing an agency's choice between two reasonably differing views.” Dignan
v Mich Pub Sch Employees Retirement Bd, 253 Mich App 571, 576; 659 NW2d 629 (2002); see
also MERC v Detroit Symphony Orchestra, Inc, 393 Mich 116, 124; 223 NW2d 283 (1974);
Monroe v State Employees’ Retirement Sys, 293 Mich App 594, 607; 809 NW2d 453 (2011);
Lewis v Bridgman Pub Sch (On Remand), 279 Mich App 488, 496; 760 NW2d 242 (2008).
This deferential standard, while not expressly set forth in either Const 1963, art 6, § 28,
or MCL 24.306, grew out of and is viewed as being part of the “substantial evidence” test found
in the Michigan Constitution.17 See Detroit Symphony Orchestra, 393 Mich at 122-124
(reviewing documents concerning the Constitutional Convention in 1962 with respect to the
meaning of “substantial evidence” and recognizing that it entails giving due deference to an
agency’s fact-finding); see also In re Payne, 444 Mich 679, 692; 514 NW2d 121 (1994) (“When
reviewing the decision of an administrative agency for substantial evidence, a court should
accept the agency's findings of fact if they are supported by that quantum of evidence. A court
will not set aside findings merely because alternative findings also could have been supported by
substantial evidence on the record.”). Accordingly, because MCL 24.248 and MCL 24.264 are
17 “Substantial evidence” has been defined as evidence that a reasonable mind would accept as
being adequate to support a decision, and it is more than a scintilla but can be substantially less
than a preponderance of evidence. Lewis, 279 Mich App at 496.
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not subject to the substantial evidence test, we cannot extend the due deference standard to those
statutes on the basis of caselaw construing MCL 24.306(1)(d) and Const 1963, art 6, § 28.
Nevertheless, the principle of giving due deference to an agency with regard to fact-
finding because of its expertise has become well established in our civil jurisprudence. We note
this Court’s discussion in Mich Basic Prop Ins Ass’n v Office of Fin & Ins Regulation, 288 Mich
App 552, 560-561; 808 NW2d 456 (2010), regarding the nature of administrative agencies:
Administrative agencies are created by the Legislature as repositories of
special competence and expertise uniquely equipped to examine the facts and
develop public policy within a particular field. Administrative agencies possess
specialized and expert knowledge to address issues of a regulatory nature. Use of
an agency's expertise is necessary in regulatory matters in which judges and juries
have little familiarity. The relationship between the courts and administrative
agencies is one of restraint, and courts must exercise caution when called upon to
interfere with the jurisdiction of an administrative agency. Judicial restraint tends
to permit the fullest utilization of the technical fact-finding expertise of the
administrative agency and permits the fullest expression of the policy of the
statute, while minimizing the burden on court resources. [Quotation marks,
citations, and alterations omitted.]
We now invoke the separation of powers doctrine to incorporate a due deference standard
with respect to agency fact-finding under MCL 24.248 and MCL 24.264. We earlier rejected
any notion that the separation of powers doctrine precludes judicial review altogether in regard
to a decision by an agency and the Governor to promulgate and enforce an emergency rule under
MCL 24.248. We reached this conclusion because the Legislature, which enacted MCL 24.248,
also enacted MCL 24.264, which provides for judicial review of the validity of rules in
declaratory judgment actions.18 But the silence in MCL 24.264, as well as in MCL 24.248,
regarding any standard or scope of review to apply in judging factual findings by an agency
connected to the promulgation of a rule provides an avenue to interject the application of
separation of powers principles to create a standard that is deferential to the agency’s factual
findings. If the judiciary is given free reign to ignore factual findings made by an agency in
promulgating rules and allowed to impose its own findings, the judiciary effectively tramples on
the powers of the executive branch and improperly and effectively engages in quasi-legislative
conduct.19
18 We also note that the dissent in Mich State AFL-CIO, 230 Mich App at 26-43, opined that no
judicial review was allowed regarding the factual finding of an emergency, which position the
majority essentially ignored.
19 We agree with Professor Don LeDuc’s view that the failure “to give deference to the factual
conclusions of an agency charged by the Legislature with responsibility to administer a statute
and to substitute its judgment for that of the highest official in the executive branch regarding the
existence of an emergency are both violative of the Constitution’s separation of powers
provisions.” LeDuc, Michigan Administrative Law, § 4.38, p 244.
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Accordingly, in the context of a declaratory judgment action, when a court reviews an
agency’s decision, concurred in by the Governor, that the preservation of the public health,
safety, or welfare requires the promulgation of emergency rules absent notice and participation
procedures, MCL 24.248(1), the court must accord due deference to the agency’s expertise and
not invade the agency’s fact-finding by displacing its choice between two reasonably differing
views. To be clear, however, giving due deference to agency fact-finding does not equate to
subservience or complete capitulation and allow a reviewing court under MCL 24.248 and MCL
24.264 to abdicate entirely its role in determining the validity of an emergency rule.
E. DISCUSSION
1. LIKELIHOOD OF SUCCESS ON THE MERITS
We hold that even giving due deference to the DHHS and the Governor, we cannot
conclude that the Court of Claims erred by finding that plaintiffs had demonstrated a likelihood
of success on the merits at this stage of the proceedings with respect to their claim that the
emergency rules were procedurally invalid.20 The gist of defendants’ position that emergency
rules had to be promulgated is set forth in the introductory paragraph of their brief on appeal:
Michigan undisputedly faces a youth vaping crisis, and each day that
passes, this crisis is causing immediate and lasting harm to the public health of
this state. E-cigarette use among high school and middle school students
continues to skyrocket at alarming rates. And kid-friendly flavored vaping
products targeted to hook children on nicotine continues to present a grave public
health emergency in our state. Nicotine is highly addictive and negatively impacts
the developing brain. Research shows that youth who use such products are
significantly more likely to start smoking combustible cigarettes—
notwithstanding the documented and well-known negative health consequences
associated with the use of cigarettes. [Emphasis added.]
Again, MCL 24.248(1) provides that “[i]f an agency finds that preservation of the public
health, safety, or welfare requires promulgation of an emergency rule without following the
notice and participation procedures required by [MCL 24.241 and MCL 24.242] . . ., the agency
may dispense with all or part of the procedures . . . .” We construe this language to allow for the
promulgation of emergency rules but only if compliance with APA notice, hearing, and
participation procedures will prevent an agency from being able to preserve the public’s health,
safety, or welfare. The evaluation requires contemplation of evidence showing the effect on the
public health, safety, or welfare if enforcement of a proposed rule is delayed during the
timeframe necessary to comply with notice, hearing, and participation procedures. Evidence of
the events or circumstances that would likely transpire during the period of delay needs to be
assessed for purposes of determining whether the public health, safety, or welfare would be
sufficiently compromised so as to constitute an emergency and justify promulgation and
20 But, as noted earlier, we do not believe that “procedural” invalidity is the proper
characterization.
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enforcement of emergency rules. The number of individuals whose health, safety, or welfare
would be affected during the period of delay and the nature and seriousness of the impact on
those individuals would be key factors to consider.
We think it would be helpful to provide a hypothetical, albeit a very simplistic,
generalized one. If a delay in promulgating and enforcing a rule to satisfy APA notice and
participation procedures would result in harm to 3% to 5% of the population, which would
otherwise not have occurred without the delay, but the harm was fairly minor, it would be
reasonable to conclude that the preservation of the public health, safety, or welfare would not
require promulgation of an “emergency” rule without following procedural safeguards. If that
hypothetical is tweaked so that the harm is elevated to likely death, it would be reasonable to
conclude that the preservation of the public health, safety, or welfare would require promulgation
of an “emergency” rule without following procedural safeguards. If we return to minor harm
being involved but with 90% of the population being affected, an “emergency” rule would likely
be justified.21
In the instant cases, defendants presented evidence that would lend support for a
determination that use of e-cigarettes or vapor products by minors is an ever-worsening and
serious public health concern and that flavored nicotine vapor products are at the forefront of
driving and exacerbating the problem and leading youths to future nicotine addiction.
Prohibiting altogether the sale and distribution of flavored nicotine vapor products would
ostensibly curb youth vaping trends to some extent. Plaintiffs countered defendants’ evidence
with testimony by expert Amelia Howard that called into question the studies that defendants
relied on.
Giving due deference to defendants’ factual finding that the preservation of the public
health, safety, or welfare required the promulgation of emergency rules absent notice and
participation procedures, we nonetheless cannot conclude that the finding is reasonable. The
case did not present a choice between two reasonably differing views on whether an emergency
existed. Defendants did not, in any form or fashion, tailor the evidence or their arguments to the
period of delay that would have occurred if notice, hearing, and participation procedures had
been undertaken. Defendants did not present evidence indicating, showing, suggesting, or giving
an opinion on: the number of youths who could be expected to start vaping for the first time
during the period of delay because flavored nicotine vapor products remained on shelves; the
danger of those first-timers becoming addicted to nicotine based solely on the use of flavored
nicotine vapor products during the period of delay; and whether youths already using flavored
nicotine vapor products would have a decreased chance of a healthier or addiction-free outcome
if there was a period of delay.22 Bluntly stated, defendants did not produce evidence that an
emergency situation existed such that a period of delay would make any relevant difference in
preserving the public’s health, welfare, or safety. In sum, on the basis of the evidence presented
21 The percentages used in our hypotheticals are for illustration purposes only.
22 The equation should also involve consideration of the effect, if any, of 2019 PA 18, and
whether, if there was no delay, any youths would turn to regular cigarettes.
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at this stage of the proceedings, we agree with the Court of Claims that plaintiffs are likely to
succeed on the merits regarding their shared request that the emergency rules be declared invalid.
Defendants will still have the opportunity to attempt to gather the necessary evidence when the
merits of plaintiffs’ lawsuits are litigated.23
2. IRREPARABLE HARM
The Court of Claims found that plaintiffs had carried their burden of demonstrating
irreparable harm. With respect to ACC, the Court of Claims determined that it had presented
evidence of loss of goodwill and competitive position in the marketplace, which constituted
irreparable harm because of the difficulty in calculating damages and because a significant loss
of goodwill cannot be compensated by an award of economic damages. The Court of Claims
found that the emergency rules effectively banned ACC from using its tradename and branding,24
caused ACC to lose a significant portion of its sales, resulted in store closings, and were
destroying the business. With respect to Slis, the Court of Claims determined that he had
demonstrated irreparable harm because the emergency rules caused Slis to shutter his business,
resulted in his customers obtaining flavored vaping products from Wisconsin, and will lead to
the loss of his entire business.
Defendants argue that, in regard to ACC and lost goodwill, the Court of Claims erred on
the issue of irreparable harm because ACC did not make a particularized showing that
irreparable harm would in fact flow from rebranding itself to the extent necessary to comply with
the emergency rules. Defendants contend that half of ACC’s online sales occur out of state,
which is beyond the reach of the emergency rules, and that the emergency rules would only
temporarily bar ACC’s misleading advertising practices as to the online sales in Michigan.
23 We do question the reasoning of the Court of Claims that defendants had not shown the
existence of an emergency because the studies, reports, and surveys they relied on were old and
stale. The age of the studies, reports, and surveys did not necessarily mean that there was not a
present, ongoing emergency, although current information would provide stronger evidence. We
note that the Governor cited a 2019 study regarding the continuing increase in youth vaping in
her certificate of need for extension of the emergency. Additionally, the Court of Claims, citing
federal cases and pointing to the older studies originally relied on by defendants, stated that an
agency cannot create an emergency by way of its own failure to act in timely fashion. We reject
this approach in applying MCL 24.248(1) and note that the federal rulemaking statute has a
general “good cause” requirement with respect to skipping procedural safeguards, 5 USC
553(b)(3)(B), which is not contained in MCL 24.248(1). An unreasonable delay in seeking to
promulgate emergency rules does not mean that there is no continuing or worsening emergency.
Moreover, if emergency rules are needed, even though they should have been promulgated
earlier, the people of our state are entitled to protection and should not be put at risk because the
DHHS moved too slow.
24 Rule 3(1) of the emergency rules bars a retailer from using fraudulent and misleading terms in
selling vapor products, and Rule 3(2) defines fraudulent or misleading terms as including, in
part, the word “clean.”
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Defendants maintain, therefore, that ACC failed to show that it would have to rebrand itself
entirely or that the extent of the required rebranding “would in fact cause loss so certain,
pervasively destructive, and incalculable as to be irreparable.” With respect to Slis, defendants
argue that he failed to show that loss of his business was in fact the necessary consequence of the
emergency rules. Defendants contend that the emergency rules still left room for Slis to make
sales, considering that Slis could sell flavored nicotine vapor products outside of Michigan, that
he could still sell tobacco-flavored vapor products and flavored vapor products lacking nicotine
in Michigan, and that the emergency rules were only temporary.
In Thermatool Corp, 227 Mich App at 377, this Court discussed the irreparable-harm
factor, observing:
In order to establish irreparable injury, the moving party must demonstrate
a noncompensable injury for which there is no legal measurement of damages or
for which damages cannot be determined with a sufficient degree of certainty.
The injury must be both certain and great, and it must be actual rather than
theoretical. Economic injuries are not irreparable because they can be remedied
by damages at law. A relative deterioration of competitive position does not in
itself suffice to establish irreparable injury. [Citations omitted.]
In Atwood Turnkey Drilling, Inc v Petroleo Brasileiro, SA, 875 F2d 1174, 1179 (CA 5,
1989), the Fifth Circuit of the United States Court of Appeals observed:
Petrobras directs our attention to cases holding that a preliminary
injunction is an inappropriate remedy where the potential harm to the movant is
strictly financial. This is true as a general rule but an exception exists where the
potential economic loss is so great as to threaten the existence of the movant's
business. [Citations omitted.25]
The threat of bankruptcy and the possibility of going out of business can constitute irreparable
harm. Id.
As an initial point and as argued by Slis, there is a question whether plaintiffs would have
any claim for money damages against the state defendants in light of immunity principles. See
Smith v Dep’t of Pub Health, 428 Mich 540, 544; 410 NW2d 749 (1987). We do note that ACC
alleged an unconstitutional takings claim against defendants and seeks $840,500 in just
compensation for lost product. But this claim is for loss of product only and not loss of business.
The Court of Claims did not speak to the matter, and we decline to resolve the issue because it is
unnecessary for us to do so.
With respect to ACC, defendants’ arguments only address the goodwill and rebranding
issue connected to ACC’s having the word “clean” in its name. But the Court of Claims also
25 Decisions of lower federal courts are not binding on this Court, but may be considered for their
persuasive value. See Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).
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based its decision on the significant loss of sales, store closings, and the possible collapse of the
business, all of which found factual support in the record. “When an appellant fails to dispute
the basis of a lower court's ruling, we need not even consider granting the relief being sought by
the appellant.” Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266 (2015). On this basis
alone, we can affirm the finding of irreparable harm in regard to ACC.
Moreover, the Court of Claims was correct that “[t]he loss of customer goodwill often
amounts to irreparable injury because the damages flowing from such losses are difficult to
compute.” Basicomputer Corp v Scott, 973 F2d 507, 512 (CA 6, 1992). Whether “the loss of
customer goodwill amounts to irreparable harm often depends on the significance of the loss to
the plaintiff’s overall economic well-being.” Apex Tool Group, LLC v Wessels, 119 F Supp 3d
599, 610 (ED Mich, 2015) (quotation marks and citation omitted).26 Defendants argue that there
was an evidentiary failure in regard to goodwill because ACC did not show any particular harm
due to the loss of goodwill or that rebranding would not have been successful. Defendants’
position, however, demands too much of ACC and is the very reason that loss of goodwill can
constitute irreparable harm, i.e., the difficulty in measuring harm. David Haight of ACC testified
that their products were branded with the ACC name, that the ACC name had been used for ten
years, including online, and that ACC’s customers knew and had become familiar with the ACC
name.
With respect to both ACC and Slis, defendants’ contention that the harm is only
temporary misses the mark given that the emergency rules have now been extended another six
months and that the plaintiffs presented evidence indicating that the businesses were in financial
distress and danger even under the initial six-month period that the emergency rules were in
effect. Furthermore, although defendants maintain that the DHHS has indicated that the
emergency rules do not prohibit the sale or transportation of flavored nicotine vapor products to
persons outside of Michigan, the rules themselves do not specifically exempt such activity. And
even if that is the case, there is no indication that online sales of flavored nicotine vapor products
outside of the state would prevent the collapse of the businesses. In regard to Slis, he testified
that the emergency rules were resulting in a large loss of customers because most of them used
flavored vapor products. He also indicated that his inventory was deteriorating and would
definitely expire if an extension of the emergency rules was ordered, which has now occurred.
26 Although the discussion was not in the context of analyzing the propriety of a preliminary
injunction, this Court in Unibar Maintenance Servs, Inc v Saigh, 283 Mich App 609, 631; 769
NW2d 911 (2009), touched on the difficulty in proving certain damages:
[T]he purpose of compensatory damages, which is to make the plaintiff
whole, indicates that exemplary damages may be construed as appropriate for
injuries to a corporation that cannot be measured or estimated in monetary terms.
Clearly, a loss of reputation as a skillful company is unquantifiable and
recoverable as exemplary damages, as may be a loss of goodwill, or any damage
to other types of company reputation amongst either employees or customers.
[Citations omitted.]
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Slis further testified that he would have to close the doors to the business and file for bankruptcy
if the emergency rules remained in force. This evidence sufficed to support the determination by
the Court of Claims that Slis would suffer irreparable harm if a preliminary injunction did not
issue.
In sum, the Court of Claims did not clearly err in concluding that both Slis and ACC
would sustain irreparable harm if the emergency rules were not enjoined.
3. BALANCING THE HARMS
The Court of Claims concluded that the harm that would befall plaintiffs if no
preliminary injunction were issued would outweigh the harm that would occur to defendants
should a preliminary injunction be issued. The Court of Claims indicated that plaintiffs had
demonstrated a risk of irreparable harm absent a preliminary injunction, which was greater than
any risk of harm to defendants with an injunction in place, especially where defendants had not
articulated that they would suffer any harm. The Court of Claims also stated that defendants
would not suffer any harm if they were forced to comply with the APA’s notice and participation
procedures before implementing the rules regulating vapor products. The Court of Claims
concluded that “the harm to defendants as state entities is neither compelling nor noteworthy.”
Defendants essentially argue that a preliminary injunction enjoining enforcement of the
emergency rules harms them by preventing defendants from carrying out their constitutional and
statutory duties to protect and preserve the health, safety, and welfare of the people of this state,
which in turn results in harm to the people themselves and the state’s financial health. The
preliminary injunction does not undercut the overall ability of the DHHS to promulgate valid
emergency rules that meet the requirements of MCL 24.248(1), or from taking other appropriate
steps to preserve the public’s health, safety, and welfare. Under defendants’ rationale, the harm
to them would always trump the harm to a party challenging an emergency rule because
defendants could claim that an injunction prevents them from protecting the public.27 Also, the
Legislature has already stepped in and taken some governmental action on the youth vaping
“crisis” by amending the YTA, 2019 PA 18. We conclude that the Court of Claims did not
clearly err regarding its finding on the balancing of harms.
4. THE PUBLIC INTEREST
The Court of Claims concluded that the public-interest factor favored neither plaintiffs
nor defendants, finding compelling public interests on both sides of the issue. On one hand, the
Court of Claims explained, an unknown number of minors would likely start using flavored
nicotine vapor products. On the other hand, if the emergency rules were enforced, there was
evidence that adult users of flavored vapor products would return to using combustible tobacco
products, which the Court of Claims characterized as “more harmful” than vapor products.
27 To the extent that defendants’ argument entails consideration of harm to the public, we believe
that said consideration pertains to the last factor that we shall examine—impact on the public
interest.
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Defendants argue that the Court of Claims erred because the evidence was overwhelming
regarding the health dangers of nicotine addiction and that youths were starting down the path to
nicotine addiction through the use of flavored nicotine vapor products, while plaintiffs’ evidence
that depriving adults of flavored nicotine vapor products would return many of them to smoking
regular cigarettes was anecdotal and statistically unsupported.
Defendants are correct that they presented a plethora of evidence and studies showing the
increase in and dangers of youths using flavored nicotine vapor products. As noted by the Court
of Claims, however, plaintiffs “produced . . . literature citing improved health outcomes for
former combustible tobacco users who switch to vaping products.” The testimony of plaintiffs’
witnesses also supported the view that the end of flavored nicotine vapor products would drive
many users back to smoking cigarettes. We cannot conclude that the Court of Claims clearly
erred in finding this factor neutral, but even if there was error and the factor should have been
found in favor of defendants, reversal would still not be warranted considering that the other
three factors favored the issuance of a preliminary injunction.
V. CONCLUSION
We hold that the DHHS and the Governor are entitled to due deference with regard to the
finding of an emergency under MCL 24.248(1), but not complete capitulation, and the Court of
Claims ultimately did not abuse its discretion by issuing the preliminary injunction on the basis
of the evidence presented by the parties. The likelihood of success on the merits, whether
plaintiffs would suffer irreparable harm, and the balancing of the harms favored the action by the
Court of Claims to issue the preliminary injunction, even if the factor regarding the public
interest did not. We hold that the Court of Claims did not abuse its discretion by granting
plaintiffs’ motions for a preliminary injunction.28
We affirm. Having fully prevailed on appeal, plaintiffs may tax costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Kathleen Jansen
/s/ Mark T. Boonstra
28 Given our ruling, it is unnecessary to address the other various issues and arguments raised in
this consolidated appeal.
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If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MARC SLIS and 906 VAPOR,
Plaintiffs-Appellees,
FOR PUBLICATION
May 21, 2020
v No. 351211
Court of Claims
STATE OF MICHIGAN and DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
LC No. 19-000152-MZ
Defendants-Appellants.
A CLEAN CIGARETTE CORPORATION,
Plaintiff-Appellee,
v No. 351212
Court of Claims
GOVERNOR, STATE OF MICHIGAN, and
DEPARTMENT OF HEALTH AND HUMAN
SERVICES,
LC No. 19-000154-MZ
Defendants-Appellants.
Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ.
BOONSTRA, J. (concurring).
I fully concur in the majority opinion. I write separately because this case highlights for
me a growing concern about governmental overreach, both in this case specifically and also more
generally, and because sometimes we as Americans need a wake-up call. This case—particularly
in the context of other recent governmental actions—provides one.
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Totalitarianism1 has no place in America. Has it arrived? Well, that’s a question for
another day. It’s not a question that I will endeavor to answer, at least not yet, not in this case.
But recent events in Michigan and beyond, which are unfolding by the minute and which no doubt
will overtake what I am able describe in this opinion, provide a backdrop for our consideration of
the question that is presented in this case. I fear that a pattern may be emerging.
So, let’s start with the general, and then I will circle back to the specifics of this vaping
case and to how the general relates to the specific.
After nearly 250 years, it is easy to take our liberty for granted. We shouldn’t. Our
founding fathers fought and died so that we could be free from tyranny. They knew—and
declared—that we are “endowed by [our] Creator”—not by government—“with certain
unalienable Rights, and among them are Life, Liberty, and the pursuit of Happiness.”2 It isn’t like
that everywhere—indeed, historically, despots, tyrants, and monarchs were the rule, not the
exception. America became the exception—hence the idea of “American exceptionalism.” Upon
the founding of the Massachusetts Bay colony in 1630, Gov. John Winthrop declared, “For we
must consider that we shall be as a city upon a hill. The eyes of all people are upon us.”3 Centuries
later, President Ronald Reagan frequently spoke of America as a “shining city upon a hill,” and in
his farewell address to the American people described her as “still a beacon, still a magnet for all
who must have freedom, for all the Pilgrims from all the lost places who are hurtling through the
darkness, toward home.”4
We live in strange times. Never in our history has virtually all of America been on lock-
down. And never before has our government dared to presume that it had the authority to impose
such a lock-down upon us. To be fair, we live in the midst of what has been deemed to be a
“pandemic”—thanks to the COVID-19 virus. We are all naturally fearful of the resulting
unknowns.5 And few doubt, as a result, that we needed to take measures to protect ourselves and
1 “Totalitarian” is defined as “of or relating to a centralized dictatorial form of government
requiring complete subservience to the state” or “a person advocating such a system.” Oxford
American Dictionary of Current English, p 859.
2 Declaration of Independence (1776).
3 Sermon of John Winthrop, City Upon a Hill (or, A Model of Christian Charity) (1630), available
at http://www.digitalhistory.uh.edu/disp_textbook.cfm?smtID=3&psid=3918 (last accessed
April 15, 2020).
4 See transcript of President Ronald Reagan’s Farewell Address to the American People, available
at https://www.nytimes.com/1989/01/12/news/transcript-of-reagan-s-farewell-address-to-
american-people.html (last accessed April 15, 2020).
5 But keep in mind:
● John Adams once said, “Fear is the foundation of most governments; but it
is so sordid and brutal a passion, and renders men in whose breasts it
predominates so stupid and miserable, that Americans will not be likely to
approve of any political institution which is founded on it.” See Adams,
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our fellow Americans.6
This is not the time or place to judge the appropriateness of the measures that have been
taken. This case isn’t even about COVID. It’s about vaping, and about the government’s (actually,
the executive branch of Michigan state government’s) decision to impose emergency rules banning
the sale of certain vaping products in Michigan.
But, you might ask, what does COVID have to do with vaping? Well, maybe nothing. Our
Governor has herself linked the two, however. See, e.g., Shamus, Whitmer speculates vaping
could cause young people to get COVID-19. We fact checked it., Detroit Free Press (March 24,
Thoughts on Government (April 1776). Available at
http://www.masshist.org/publications/adams-
papers/index.php/view/PJA04dg2 (last accessed May 2, 2020).
● Since then, entire books have been written about how both tyrannical
despots and modern-day politicians have used fear—and a culture of fear—
to control the masses, to cause people to look to government to protect them,
and to consolidate their own power and accomplish their own political
objectives. See, e.g., Boyack, Feardom: How Politicians Exploit Your
Emotions and What You Can Do to Stop Them, Libertas Press (2014), p 8-
9 et seq. (“[D]espots and authoritarians have historically studied and
utilized [fear] to pursue their goals. . . . What do history's most notorious
despots have in common with many of the flag-waving, patriotic politicians
of our day? Both groups rise to power through the exploitation of fear.
Sometimes the fear derives from a pre-existing threat. At other times, crises
are created or intensified to invoke a sense of panic and anxiety where none
previously existed. This pattern is as predictable as it is destructive. The
end result is the same: a loss of liberty. Policies that are costly, oppressive,
and harmful are supported by people who abandon any interest in freedom
or personal responsibility in hopes of feeling safe.”).
● Long before modern-day despots learned to use the tool of fear, it was
written, “Fear thou not; for I am with thee.” Isaiah 41.10 (King James
Version). See https://www.kingjamesbibleonline.org/Isaiah-41-10/ (last
accessed May 2, 2020).
6 I would suggest, however, that we as Americans should think long and hard about what are our
individual, personal responsibilities to protect ourselves and our fellow citizens, and what
government’s proper role should be. Perhaps we can rationally address that which instills fear
without relinquishing our liberties.
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2020);7 Shamus, Michigan governor suggested possible link between vaping and coronavirus.
What do doctors say?, USA Today (March 24, 2020).8
So, it’s worth pondering. And it’s worth pondering in the larger context of what is at stake
generally when government acts to impose its will upon us—it is, of course, our very liberty. That
is not something that should ever be taken—or taken away—lightly. That is why core notions of
due process are so fundamental to our existence as a nation. That is why we have three separate
and co-equal branches of government. That is why we have elections, and why our elected officials
are accountable to us—to “We the People.”9 That is why legislatures enact laws, and why it is up
to the executive to sign them (or not). And it is why the judiciary defers to the legislature on
matters of public policy.
Properly or not, government officials have taken unprecedented measures in the wake of
COVID-19. Michigan is no exception. Without question, those measures have seriously impeded
the exercise of our basic and fundamental—and oft-taken-for-granted—liberties, even, for
example, our ability to gather with family members or attend religious services this past Easter or,
for a perhaps more trivial but still impactful example, to buy paint from the local hardware store.
I do not pass judgment about any of those matters in this opinion.10 As I said, there may
be a time and place for that, but this is not it. I note only that there has been a chorus of increasingly
expressed concerns emanating from wide corners of our society. I am not endorsing any particular
views in this opinion, and I am sure that there are others who see things differently. At least some
of the expressed concerns without question come from reputable sources. And even for those you
may think are not reputable, the First Amendment has not (at least yet) been abolished, and it
applies to all of us. Indeed, it’s good that we are expressing our views. We as a society ought to
7 Available at https://www.freep.com/story/news/health/2020/03/24/coronavirus-vaping-
michigan-whitmer-stay-home-order/2899048001/ (last accessed April 15, 2020).
8 Available at https://www.usatoday.com/story/news/health/2020/03/24/coronavirus-vaping-
michigan-whitmer-stay-home-order/2908032001/ (last accessed April 15, 2020).
9 US Const, Preamble.
10 I do suggest, however, that these are serious issues that deserve serious scrutiny by all
Americans. The state of America today was unthinkable yesterday. The mere suggestion of it
would have been cast aside as nonsense, a reactionary conspiracy theory. But here we are. Is
America being taken for a test drive? If we bend today to the will of the authoritarians amongst
us, what will they dare come for tomorrow? Our guns and churches? And anything else we might
cling to? Rahm Emanuel recently reprised his famous line, “Never allow a good crisis go to waste.
It’s an opportunity to do the things you once thought were impossible.” See Emanuel, “Let’s make
sure this crisis doesn’t go to waste, The Washington Post (March 25, 2020), available at:
https://www.washingtonpost.com/opinions/2020/03/25/lets-make-sure-this-crisis-doesnt-go-
waste/ (last accessed May 8, 2020). The current crisis has America at a tipping point. Will we
demand the liberties that have stood as the very foundation of our nation from its inception? Or
will we live under the thumb of autocrats in the hope that they will keep us safe? The world of
our children and grandchildren hangs in the balance.
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be debating these things. That’s what we do in a democracy. Particularly when the issues go to
the fundamental nature of our rights as a free people.
I highlight some recent publications only to give context to the issue before us in this vaping
case. The first one I quote in full.
The Wall Street Journal Editorial Board had this to say in an April 13, 2020 editorial
entitled, It’s Still America, Virus or Not: Draconian orders and enforcement will undermine public
support for social distancing:
Americans by and large have willingly obeyed the government’s shelter-in-place
and social-distancing orders, but that doesn’t seem to be enough for some public
officials. They’re indulging their inner bully in ways that over time will erode
public support for behavior that can reduce the spread of the coronavirus.
One problem is excessive enforcement. Some state and local officials tasked with
implementing shelter-at-home orders appear either to misunderstand the edicts they
are meant to carry out or to suffer from a lack of discernment. Police officers in
Brighton, Colo., handcuffed a man for playing with his wife and six-year-old
daughter on a nearly empty softball field—though the order police claimed he had
violated barred only groups of five or more. In public parks in Washington, D.C.,
and elsewhere, police officers are prohibiting locals from sitting on park benches,
even if they are alone. In Philadelphia, police officers dragged a man from a public
bus for not wearing a mask. He had evidently refused to exit the bus when asked,
but the officers’ conduct—given the offense—appears excessive. In their defense
these officers are carrying out the orders of elected officials, and in many cases
those orders are unclear or worse. In Louisville, Ky., Mayor Greg Fischer
prohibited Christian believers from gathering on Easter Sunday—including in
“drivethru” services in which worshippers remained in their vehicles. The mayor’s
position was neither constitutionally nor epidemiologically sound. A local
congregation sued, arguing the mayor had violated their right to free exercise of
religion. Federal Judge Justin Walker, in a cogent decision issued over the
weekend, stayed the mayor’s hand. President Trump recently nominated Judge
Walker to the D.C. Circuit Court of Appeals, as noted in these columns. His
defense of religious liberty won’t endear him to Senate Democrats.
Perhaps the most excessive decrees have come from Michigan Gov. Gretchen
Whitmer. In addition to shutting down “non-essential” businesses, as many other
governors have done, Gov. Whitmer has barred Michiganders from traveling to
each other’s homes. “All public and private gatherings of any size are prohibited,”
the Governor explained at a press conference. “People can still leave the house for
outdoor activities,” she generously allowed, and outdoor activities “are still
permitted as long as they’re taking place outside of six feet from anyone else.”
Michigan state officials also have imposed a series of heavy-handed restrictions,
including bans on supposedly “non-essential” sections of supermarkets, which have
accordingly been cordoned off. Under Gov. Whitmer’s order a Michigander can
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buy a bag of candy or a lottery ticket, but not a pack of seeds or a can of paint. He
can enjoy a boat ride by himself or with his dog—but not if his boat has a motor.
The logic of these seemingly arbitrary distinctions must elude most Americans.
As these limits on liberty drag on, the courts will be asked with growing frequency
to rule on whether mayors and governors have the authority to decide which
businesses must shut down and which may remain open, what products the latter
may sell, and whether religious believers may be barred from gathering in a
parking lot while remaining in their cars. Public-health emergencies give
government officials wide latitude. But the First Amendment still bars government
from prohibiting the free exercise of religion and still guarantees the right to free
assembly.
Government officials would be better advised to govern with a lighter hand. The
coronavirus threat isn’t going away until we have a vaccine or better treatments,
and Americans will have to practice some form of social distancing and self-
quarantine for many more months once the government allows the economy to
reopen. Decrees like those from the Michigan Governor’s office and their
capricious enforcement run the risk of encouraging mass civil disobedience that
will undermine the point of the orders. Better—for reasons of public health and
American constitutionalism—to treat Americans as responsible citizens. [Editorial
Board, It’s Still America, Virus or Not: Draconian orders and enforcement will
undermine public support for social distancing, The Wall Street Journal (April 13,
2020) (emphases added).11]
Surely, by the time this opinion is published, the proliferation of events and news articles
will have overtaken what is compiled here by way of example. But at the risk of already being
out of date, here are some other, early samplings. I won’t quote them in full, but encourage you
to read them. See, e.g.:
● Portteus, The Tyrannical Soul of Gretchen Whitmer, American Greatness
(May 3, 2020) (“The state of Michigan will be governed by Whitmer’s
unlimited, arbitrary will until she deigns to allow the rule of law to resume.
In usurping power, Whitmer merely is revealing her nature, and it is far
from unique in our history. . . . Paternal rule, unlimited power exercised by
one over another, when applied to adults, under whatever guise, is simply
despotic rule—it is tyranny. . . . For Whitmer, it’s her way or no way. . . .
She has a tyrannical soul, and a tyrannical soul will yield to nothing but
11 Available at https://www.wsj.com/articles/its-still-america-virus-or-not-11586718091 (last
accessed April 15, 2020).
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superior force. Somehow Whitmer, and others like her, will have to be
compelled to respect the rule of law and the rights of the people.”).12
● The Detroit News Editorial Board, Editorial: Lawmakers must fight gov’s
power grab, The Detroit News (April 30, 2020) (“That’s a stunning power
grab. Whitmer is declaring she can run the state as she pleases, for as long
as she pleases, with no oversight or checks on her power. This affront to
democracy must be undone by the courts. . . . From the beginning of her
tenure, Whitmer has shown disdain for both the law and regular-order
governing, looking for every loophole to avoid dealing with the Legislature.
This time, she’s taken the state to a very dangerous place. There’s no
reasonable defense, in a representative democracy, for a governor to strip
the legislative branch of its constitutional authority and assume dictatorial
powers in perpetuity.”).13
● Finley, Finley: A dictator in Lansing, plus a debt we’ll never repay, The
Detroit News (April 27, 2020) (“Here’s what’s changed in Michigan’s
response to the COVID-19 crisis: Instead of a government that adheres to
the state Constitution, it has a governor who has claimed dictatorial
authority. . . . [S]he will act unilaterally to give herself total control, with no
checks on her actions. This is a dangerous place to be, particularly when no
one can say for certain when the crisis will end. She’s already abused her
powers for political purposes by hiring a firm tightly bound to the
Democratic Party to track virus data.”).14
● Gingrich, Coronavirus Crisis Makes Some Leaders Believe They Have God-
Like Decision-Making Capacity, Fox News (April 19, 2020) (“One of the
side effects of fighting the coronavirus pandemic has been the effort of some
politicians to take power and run amok. Lord Acton was right when he said:
‘Power tends to corrupt, and absolute power corrupts absolutely.’ The
problem isn’t leaders taking money, but rather them losing all connection
to reality and beginning to believe that they have a god-like capacity to
make brilliant decisions for the stupid masses. We are witnessing this effect
to a troubling degree amid the coronavirus – especially among the political
left, where there is a pattern of people in positions of authority believing
they are superior, both intellectually and morally, to the people they are
supposed to serve. . . . Michigan’s Democratic Gov. Gretchen Whitmer has
12 Available at https://amgreatness.com/2020/05/03/the-tyrannical-soul-of-gretchen-whitmer/ (last
accessed May 4, 2020).
13 Available at https://www.detroitnews.com/story/opinion/editorials/2020/04/30/editorial-
lawmakers-must-fight-govs-power-grab/3056576001/ (last accessed May 1, 2020).
14 Available at https://www.detroitnews.com/story/nletter/2020/04/27/dictator-lansing-plus-debt-
never-repay/3031259001/ (last accessed April 28, 2020).
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provided us with a perfect case study of politicians imposing Orwellian
measures supposedly to combat the coronavirus.”)15
● Davidson, The Coronavirus Is Exposing Little Tyrants All Over The
Country, The Federalist (April 13, 2020) (“The response of some mayors
and governors to the coronavirus pandemic in recent days has made it clear
they think they have unlimited and arbitrary power over their fellow
citizens. . . . Pandemic or not, this stuff has no place in American society.
Petty tyranny of the kind these mayors and local officials are scheming is
wholly alien to our customs and way of life, and destructive to the social
contract on which our nation is built. Thankfully, the Department of Justice
has taken notice of this fledgling authoritarian streak among the country’s
mayors and governors. . . . Now more than ever, we need leaders who don’t
just care about protecting us from the pandemic, but also care about
preserving liberty in a time of crisis.”) (and further characterizing the
experience in Michigan as “an object lesson in the absurdity and
inconsistency of arbitrary power and rule by fiat.”).16
● McCain, The Worst Governor in America: Gretchen Whitmer imposes
insane policies on Michigan, The American Spectator (April 13, 2020)
(“References to Whitmer as a ‘dictator’ proliferated on social media over
the weekend as Michigan residents came to grips with the consequences of
the governor’s draconian order.”).17
● Blackmon, Gretchen Whitmer: A Dangerous Object Lesson for all
Americans, DB Daily Update (April 12, 2020) (“[N]one of those governors
and mayors can hold a candle to Michigan’s Democrat Governor, Gretchen
Whitmer. Whitmer has been such a despot in exercising her nebulous
emergency powers during the Wuhan Virus crisis that she is now the subject
of an online recall petition that had collected over 80,000 signatures within
a few hours of its being issued on Saturday.).18
15 Available at https://www.foxnews.com/opinion/newt-gingrich-coronavirus-crisis-makes-some-
leaders-believe-they-have-god-like-decision-making-capacity (last accessed April 19, 2020).
16 Available at https://thefederalist.com/2020/04/13/the-coronavirus-is-exposing-little-tyrants-all-
over-the-country/ (last accessed April 15, 2020).
17 Available at https://spectator.org/the-worst-governor-in-america/ (last accessed April 15, 2020).
18 Available at https://dbdailyupdate.com/index.php/2020/04/12/gretchen-whitmer-a-dangerous-
object-lesson-for-all-americans/ (last accessed April 15, 2020).
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● Jacques, Jacques: Whitmer disses Michigan biz community, The Detroit
News (April 11, 2020) (“Whitmer hasn’t budged. She would rather be
obeyed than compromise.”).19
● Arama, MI Dem Gov Wins the Prize for Orwellian Overreach, Banning
What Citizens Can Do During Pandemic, RedState (April 11, 2020)
(“Whitmer is earning the reputation through the pandemic, as one of the
worst governors for restrictions on civil liberties, without sense behind
some of the actions. Whitmer gives new meaning to control and Orwellian
regulations.”).20
● Wu, AG Barr calls coronavirus restrictions “draconian,” says they should
be reevaluated next month, Ionia Sentinel-Standard (April 9 2020)
(reprinted from USA Today), (“Officials, [Attorney General William] Barr
said, should be ‘very careful to make sure . . . that the draconian measures
that are being adopted are fully justified, and there are not alternative ways
of protecting people.’ ”).21
● Lennox, Opinion: Absent martial law, state must follow constitution in
coronavirus response, The Detroit News (March 16, 2020) (“Without
martial law, the Democratic governor’s actions have been seen by some as
legally suspect at best and deeply unconstitutional at worst. . . . Where are
the civil libertarians, particularly the American Civil Liberties Union? If
there were ever a time to affirm the rights and liberties of Michigan
residents, it’s now.”).22
A perusing of other publications would reveal further characterizations of government
officials as “tyrannical,” “Mussolinis,” “authoritarian,” “dictatorial,” and worse. Protests have
been held, and calls for impeachment or recall have been heard. And criticisms have been leveled
at our executive branch officials from legislators and everyday Michiganders alike. Lawsuits have
now been filed.
19 Available at https://www.detroitnews.com/story/opinion/columnists/ingrid-
jacques/2020/04/11/jacques-whitmer-disses-michigan-biz-community/5130279002/ (last
accessed April 15, 2020).
20 Available at https://www.redstate.com/nick-arama/2020/04/11/mi-dem-gov-wins-the-prize-for-
orwellian-overreach-with-her-overreach-on-what-citizens-are-banned-from-doing/ (last accessed
April 15, 2020).
21 Available at https://www.sentinel-standard.com/zz/news/20200409/ag-barr-calls-coronavirus-
restrictions-draconian-says-they-should-be-reevaluated-next-month (last accessed April 15,
2020).
22 Available at https://www.detroitnews.com/story/opinion/2020/03/16/opinion-whitmer-just-
declare-martial-law/5058127002/ (last accessed April 15, 2020).
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Back to vaping. On December 18, 2018, United States Surgeon General Vice Adm. Jerome
M. Adams released an Advisory on E-cigarette Use Among Youth, describing an “epidemic of
youth e-cigarette use” and stating that “[w]e must take action now to protect the health of our
nation’s young people.”23 I have little doubt that the Surgeon General has identified a serious
public health concern that may warrant a governmental response, just as his predecessor identified
one in 1964 regarding cigarette smoking generally.24
So, what did Michigan do in response to the Surgeon General’s 2018 vaping advisory? Did
the Legislature enact a law for the Governor’s signature? Yes, it did, just as the United States
Congress had earlier done in response to the Surgeon General’s 1964 advisory.25 As the majority
opinion describes, the Legislature enacted (and the Governor signed) 2019 PA 18, effective
September 2, 2019, amending the youth tobacco act, MCL 722.641 et seq., and extending the
existing prohibition on sales of tobacco products to minors to further prohibit the sale of “vapor
products” and “alternative nicotine products” to minors.
But the Legislature had also already done what legislatures near and far now commonly
do—it had delegated quasi-legislative authority to an executive agency, in this case the Department
of Health and Human Services (DHHS).26 See MCL 333.2226(d) (authorizing DHHS to
23 See Surgeon General’s Advisory on E-cigarette Use Among Youth, available at https://e-
cigarettes.surgeongeneral.gov/documents/surgeon-generals-advisory-on-e-cigarette-use-among-
youth-2018.pdf (last accessed April 15, 2020).
24 According to the U.S. National Library of Medicine, the 1964 report, which highlighted the
serious public health consequences of cigarette smoking, was issued “on January 11, 1964,
choosing a Saturday to minimize the effect on the stock market and to maximize coverage in the
Sunday papers,” and it "hit the country like a bombshell. It was front page news and a lead story
on every radio and television station in the United States and many abroad." See the Surgeon
General’s 1964 Report on Smoking and Health, citing Smoking and Health: Report of the Advisory
Committee to the Surgeon General, available at
https://profiles.nlm.nih.gov/spotlight/nn/feature/smoking (last accessed April 15, 2020).
25 Congress responded to the Surgeon General’s 1964 report by passing the Federal Cigarette
Labeling and Advertising Act of 1965 and the Public Health Cigarette Smoking Act of 1969.
26 James Madison, one of the principal authors of the United States Constitution, famously wrote
that the “accumulation of all powers, legislative, executive, and judiciary, in the same hands, . . .
may justly be pronounced the very definition of tyranny.” The Federalist No. 47 (Madison) (Cooke
ed., 1961), p 324. Indeed, the administrative state “wields vast power and touches almost every
aspect of daily life.” Free Enterprise Fund v Public Company Accounting Oversight Bd, 561 US
477, 499, 130 S Ct 3138, 3156; 177 L Ed 2d 706 (2010). As Chief Justice Roberts has observed,
“[t]he framers could hardly have envisioned today’s ‘vast and varied federal bureaucracy’ and the
authority administrative agencies now hold over our economic, social, and political activities. City
of Arlington, Texas v Federal Communications Comm, 569 US 290, 313; 133 S Ct 1863; 185 L
Ed 2d 941 (2013) (Roberts, C.J., dissenting), citing Free Enterprise Fund, 130 S. Ct at 499. And
as Justice David Souter noted of the framers, “the administrative state with its reams of regulations
would leave them rubbing their eyes.” Alden v Maine, 27 US 706, 807; 119 S Ct 2240; 144 L Ed
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“[e]xercise authority and promulgate rules to safeguard properly the public health; to prevent the
spread of diseases and the existence of sources of contamination; and to implement and carry out
the powers and duties vested by law in the department”).
So DHHS took its delegated quasi-legislative authority and promulgated rules that, among
other things, banned the sale of flavored nicotine vapor products in Michigan.
Not to worry, right? Surely there must be safeguards to ensure that agencies like DHHS
do not run amok. And, indeed, agency rule-making is subject to the administrative procedures act
of 1969 (APA), MCL 24.201 et seq. MCL 24.243 of the APA provides, generally, that “a rule is
not valid unless it is processed in compliance with section 66, if applicable, section 42, and in
substantial compliance with section 41(2), (3), (4), and (5)” (citations omitted).27
But there is a built-in exception within the APA to an agency’s obligation to comply with
the otherwise-applicable safeguards. MCL 24.248(1) authorizes an agency to promulgate
“emergency rules” in certain circumstances. Specifically, it states:
If an agency finds that preservation of the public health, safety, or welfare
requires promulgation of an emergency rule without following the notice and
participation procedures required by [MCL 24.241 and MCL 24.242] and states in
the rule the agency's reasons for that finding, and the governor concurs in the
finding of emergency, the agency may dispense with all or part of the procedures
and file in the office of the secretary of state the copies prescribed by section
[MCL 24.246] endorsed as an emergency rule, to 3 of which copies must be
attached the certificates prescribed by section [MCL 24.245] and the governor's
certificate concurring in the finding of emergency. The emergency rule is effective
on filing and remains in effect until a date fixed in the rule or 6 months after the
date of its filing, whichever is earlier. The rule may be extended once for not more
than 6 months by the filing of a governor's certificate of the need for the extension
with the office of the secretary of state before expiration of the emergency rule . . . .
That is how we got to where we are today. The Legislature delegated rule-making authority
to DHHS, authorized it to promulgate emergency rules under certain circumstances without
following the usual safeguards, DHHS invoked that authority and obtained the concurrence of the
2d 636 (1999) (Souter, J., dissenting). See also, e.g., Cooper, Confronting the Administrative State,
National Affairs (Fall 2015), available at
https://www.nationalaffairs.com/publications/detail/confronting-the-administrative-state (last
accessed April 15, 2016).
27 MCL 24.421 provides for notice and a public hearing, a “statement of the terms or substance of
the proposed rule, a description of the subjects and issues involved, and the proposed effective
date of the rule,” and a “statement of the manner in which data, views, questions, and arguments
may be submitted by a person to the agency.” MCL 24.242 provides requirements for the
publication of a notice of public hearing. And MCL 24.266 relates to environmental issues.
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Governor (to which the agency itself reported),28 and, voila, Michigan had banned the sale of
flavored e-cigarettes. And on the eve of the scheduled 6-month expiration of the emergency rules,
the Governor decreed that the emergency rules be extended for an additional six months,29 i.e.,
until September 18, 2020.30
Now, that isn’t how we teach our kids about how laws are made.31 And it’s not what our
founding fathers envisioned—this is a far cry from that.
So, why was it necessary for DHHS to act on an “emergency” basis, bypassing the usual
notice and comment safeguards otherwise mandated by the APA? After all, the Surgeon General’s
report included specific sections identifying the actions that he believed should be taken by parents,
teachers, and health professionals, as well as by states and other governmental actors like the state
of Michigan. In a section of the report entitled, “Information for States, Communities, Tribes, and
Territories,” Dr. Adams provided the following specific recommendations for states like Michigan:
Information for States, Communities, Tribes and Territories
● You have an important role to play in addressing this public health
epidemic.
● Implement evidence-based population-level strategies to reduce e-cigarette
use among young people, such as including e-cigarettes in smoke-free
indoor air policies, restricting young peoples’ access to e-cigarettes in retail
settings, licensing retailers, implementing price policies, and developing
educational initiatives targeting young people.
28 I note that DHHS promulgated the emergency rules on September 18, 2019, and that they
went into effect on October 2, 2019, after the Governor gave her consent. However, the New
York Times reported on September 4, 2019—before the rules were promulgated—that “Gov.
Gretchen Whitmer of Michigan said Wednesday that she would outlaw the sale of flavored e-
cigarettes in her state, part of a national crackdown on vaping amid a recent spike in illnesses
tied to the products.” See Smith, Amid Crackdown, Michigan to Ban Sale of Flavored E-
Cigarettes, New York Times (Sept 4, 2019), available at
https://www.nytimes.com/2019/09/04/us/michigan-vaping.html (last accessed April 15, 2016).
29 MCL 24.248(1) allows such an extension upon the filing of a certificate of need by the Governor.
30 Although the trial court’s injunctive order entered on October 15, 2019, the Governor waited
until March 11, 2020 to issue her diktat extending the emergency rules for an additional six months,
albeit without DHHS in the interim pursuing normal rule-making through the still-available
procedures of the APA, including its typically-mandated notice and comment safeguards.
31 See, e.g., How a Bill Becomes a Law, available at https://kids-clerk.house.gov/grade-
school/lesson.html?intID=17 (last accessed April 15, 2020).
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● Implement strategies to curb e-cigarette advertising and marketing that are
appealing to young people.
● Implement strategies to reduce access to flavored tobacco products by
young people. [Surgeon General’s Advisory on E-cigarette Use Among
Youth, p 3.]
Notably, Dr. Adams said nothing about a need for emergency bans.
Because DHHS skipped the usual notice and comment procedures, there was no public
discussion of the merits or demerits of the proposed rules. And even in the trial court, defendants
offered only vague generalities, and presented no evidence or rationale for why the circumstances
required that the normal rulemaking process be abandoned, why the extreme measure of banning
all flavored nicotine vaping products was necessary, why lesser measures were not adequate, or
why the actions outlined by the Surgeon General would not suffice during a limited interim time
period during which the usual notice and comment procedures could be followed.32
The trial court in this case issued a preliminary injunction enjoining the enforcement of the
emergency rules. Like the majority, I question some of the trial court’s rationale. But, like the
majority, I also conclude that defendants have overstepped their authority in this case. Preliminary
injunctions should not be granted lightly. But neither should liberty be taken from us lightly.
As the adage goes, “give them an inch and they’ll take a mile.” Amidst the COVID-19
pandemic, that adage has new meaning. It even applies to vaping.
For these additional reasons, I concur.
/s/ Mark T. Boonstra
32 Defendants did not, for example, discuss the difference between cartridge-based products
favored by youth, such as JUUL, which the Surgeon General stated had experienced a 600% surge
in sales in 2016-2017 and had the greatest market share in 2017, as opposed to other flavored
vaping products used by adults in order to quit smoking, and why a ban on all flavored products
was required, or why it was not following the lead of the United States Food and Drug
Administration in targeting its enforcement efforts toward cartridge-based flavored vaping
products. See United States Food and Drug Administration, FDA finalizes enforcement policy on
unauthorized flavored cartridge-based e-cigarettes that appeal to children, including fruit and
mint (January 2, 2020), available at https://www.fda.gov/news-events/press-announcements/fda-
finalizes-enforcement-policy-unauthorized-flavored-cartridge-based-e-cigarettes-appeal-children
(last accessed April 15, 2020).
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![[Exhibit A] [Exhibit B]. [Exhibit D] [Exhibit F]](https://img.pdfslide.us/doc/110x75/6294402616e6d749834caeff/exhibit-a-exhibit-b-exhibit-d-exhibit-f.jpg)
