Marlena's Bistro owner returns to court to fight pandemic-fueled charges

LANSING — Holland restauranteur Marlena Pavlos-Hackney spent four days in jail and was fined $15,000 in 2021 for fighting what she felt was a constitutional violation.

It’s an argument she’s now lost in a number of courts. But on Thursday, Sept. 7, she continued her case, appearing for a second time before the Michigan Court of Appeals.

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

“The orders are unconstitutional, and I simply do not understand why we’re still here,” Pavlos-Hackney’s current attorney, Helen Brinkman, said in court Thursday.

Her argument is simple: Once the Michigan Supreme Court ruled Gov. Gretchen Whitmer’s Executive Order shutting down restaurants and other businesses in the early days of the pandemic unconstitutional, the charges against Pavlos-Hackney should have been reversed.

“I believe that I am here and we are here because the governor decided she did not want to respect the Supreme Court. … That she wanted to do an end run around their decision regarding the executive order,” Brinkman argued.

An assistant state attorney general, Laura LaMore, countered it wasn’t the executive order, but the fact that Pavlos-Hackney kept her bistro open after the restaurant’s license was suspended that led to the contempt charge against her.

”So, because it’s … the basis for it and the enforcement of the food law is independent?” Appeals Court Judge Michelle Rick asked.

“It is,” LaMore said. “They were operating a food establishment without a food license. And that’s the basis for the underlying action here. “

The court has not yet released a decision.

The COA issued a separate order in the case in October 2022, affirming both contempt of court orders against Pavlos-Hackney, but remanding the second order back to trial court for "refashioning." The court said Pavlos-Hackney received, in full, the due process to which she was entitled, and could have argued the fines posed an insurmountable hardship before payment.

The court found the first order of contempt "clearly not refundable," given Pavlos-Hackney's "willful and open continued defiance" of court orders. However, because Pavlos-Hackney did, in fact, close her restaurant upon incarceration, the court in Ingham County was ordered to determine if the second fine was "conditional or compensatory."

It was second legal blow to Pavlos-Hackney that month, coming on the heels of a refusal by Ingham County Judge Wanda Stokes to dismiss the case and award Pavlos-Hackney damages.

Pavlos-Hackney has long argued her constitutional rights were violated, both when she was asked and ordered to close her restaurant — Marlena's Bistro and Pizzeria — in the winter months of 2020 and 2021 for failing to follow COVID-19 restrictions, and when she was arrested on an outstanding bench warrant and jailed for several days until she paid the $15,000 in contempt of court fines.

Pavlos-Hackney first took her legal argument to the COA in June 2021. The action sought to reconsider contempt of court findings, release audio or video of Pavlos-Hackney's arraignment and amend an "inaccurate" transcript — all motions denied by Stokes in May 2021.

Pavlos-Hackney came on the Michigan Department of Agriculture and Rural Development's radar in late 2020, when reports surfaced she was failing to enforce then-statewide pandemic restrictions, including social distancing and mask-wearing. Her food license was revoked in January 2021 — but the restaurant remained open.

Pavlos-Hackney ignored a temporary restraining order meant to keep her from continuing operations and refused to allow inspectors or law enforcement into her restaurant. In response, Stokes issued a bench warrant for Pavlos-Hackney's arrest.

Shortly thereafter, she was arrested by Michigan State Police and spent four nights in Ingham County Jail following her arraignment by Judge Rosemarie Aquilina. She was released March 23, after paying the contempt fines and shuttering her restaurant.

Subscribe: Get unlimited access to our local coverage

The restaurant's food license was restored in July and Marlena's Bistro reopened in September 2021.

Throughout 2022, the restaurant was a stopping point for political candidates — including Republican gubernatorial candidates Tudor Dixon and Ryan Kelley, who currently faces charges for his involvement in the Jan. 6 insurrection on the U.S. Capitol.

— The Holland Sentinel contributed to this report.

This article originally appeared on The Holland Sentinel: Marlena's Bistro owner returns to court to fight pandemic-fueled charges