Court: Michigan didn't have legal authority for some COVID-19 restaurant restrictions

The Michigan Department of Health and Human Services did not have the authority to prohibit restaurants from fully opening their dine-in sections, limit indoor gatherings and restrict other activities during the COVID-19 pandemic, a split Court of Appeals panel ruled Thursday.

Writing for the majority in a 2-1 opinion, Judges Michael Gadola and Mark Boonstra wrote the state law cited by MDHHS Director Elizabeth Hertel in issuing a March 2021 public health order was unconstitutional — stating the law is too vague in its delegation of authority.

The case, brought by a catering company, centered on an order that went into effect on March 22, 2021. It temporarily limited capacities at the dine-in sections of restaurants and a slew of other indoor gatherings as Michigan continued to navigate the COVID-19 pandemic just as vaccines were being made available to the general public. It was similar to various other health orders put in place by Gov. Gretchen Whitmer, and later, MDHHS.

"We find that the power delegated by the legislature to the executive in MCL 333.2253 is extremely broad and is essentially unlimited by restrictive standards," the judges wrote. "As discussed, when the scope of the authority granted by the legislature is great, the standards placed by the legislature upon the discretion of the delegee must be correspondingly more precise."

The statute was challenged in T&V Associates v. Director of Health and Human Services. The plaintiffs, which represent Rochester Hills banquet service River Crest Catering, initially saw their lawsuit dismissed by a Court of Claims judge before the Court of Appeals panel agreed to hear the case and ultimately reversed the dismissal.

Appeals Judge Christopher Yates dissented, writing that the case is moot given the emergency order is no longer in place and the COVID-19 pandemic has long been considered over.

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"The overheated rhetoric in briefs and oral arguments suggests that the remaining COVID-19 disputes on court dockets are sacred causes, rather than mere court cases, and the litigants and attorneys in these disputes seem determined to keep these battles going endlessly," Yates wrote.

"But it doesn’t have to be this way. We judges have the power and, in my view, the duty under the mootness doctrine to dismiss the combatants from the COVID wars and bring down the curtain on this chapter in our history."

Through a spokesperson, MDHHS said it will appeal the decision to the Michigan Supreme Court. The state's high court has already agreed to hear another case related to emergency orders made during the COVID-19 pandemic brought by restaurant and catering groups against the state.

"Throughout the COVID-19 pandemic, MDHHS used many tools to protect Michiganders from a novel, deadly and fast-moving virus. One of those tools was the department's epidemic orders, which rested firmly upon authority given by the Legislature to the director of the MDHHS over 100 years ago and reaffirmed by the Legislature just last year. As the trial court correctly recognized, this long-standing law, written to provide critical protection to our state's public health in times of greatest need, is fully consistent with our state constitution," MDHHS spokesperson Lynn Sutfin said in an email.

Al Addis, one of the attorneys representing the plaintiffs in T&V Associates v. Director of Health and Human Services, said the Court of Appeals decision represented a victory for the restaurant owners and others in the hospitality industry who had to limit operations during the pandemic.

"The bottom line is the DHHS rulings put these people under extreme economic pressures, many of whom have not reopened," he said. Addis said he had not heard back from River Crest Catering's owner about whether the business was still open. The business appears as "permanently closed" on a Google search.

Addis called the Court of Appeals decision a victory for the "constitutional rights of the people." He said it's unclear what the next steps could be in the case, although he's hopeful his clients will be entitled to damages.

Since the start of the pandemic, there have been more than 3 million cases of COVID-19 and it has caused more than 43,000 deaths, according to state data. MDHHS data on COVID-19 has been updated much less frequently recently compared with the height of the pandemic, as immunity from COVID-19 has increased thanks to the widespread availability of vaccines and immunity developed from previously contracted cases.

At the onset of the coronavirus pandemic in March 2020, Whitmer issued emergency orders aimed at stemming the spread of COVID-19. These orders closed in-person instruction at schools, limited food establishments to carryout only and had other wide-ranging effects.

In October 2020, however, the Michigan Supreme Court ruled that Whitmer, a Democrat, lacked the executive authority to issue such orders indefinitely without the approval of an emergency declaration from the state Legislature. The Legislature, controlled by Republicans at the time, didn't vote to extend an emergency declaration past April 30, 2020.

Still, Whitmer's administration wanted to stem the spread of the pandemic, so emergency orders were subsequently issued by MDHHS after the Supreme Court decision, first through former Director Robert Gordon and then by Hertel, who remains in the position today.

As with Whitmer's emergency orders, the MDHHS orders were heavily politicized, particularly by state Republicans critical of the restrictions for affecting businesses. As a method of potentially scuttling the emergency orders, Senate Republicans considered not supporting Hertel's permanent appointment as MDHHS director, before the chamber eventually voted 18-16 in March 2021 to support her appointment.

Contact Arpan Lobo: alobo@freepress.com. Follow him on Twitter @arpanlobo.

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This article originally appeared on Detroit Free Press: Court: Law underlying Michigan restaurant restrictions unconstitutional