GAYLORD — Ian Murphy, owner of Iron Pig Smokehouse restaurant in Gaylord, is suing the Northwest Michigan Health Department again over its enforcement of COVID-19 restrictions.
The latest chapter in the long-running legal saga involving Murphy, his restaurant and the health department is scheduled to begin Tuesday, April 9, in downtown Gaylord. The two sides will face off before Otsego County Circuit Court Judge Colin Hunter, whose ruling in a 2022 case involving both parties is now part of Murphy's case.
Murphy and Gaylord attorney David Delaney argue that the statute relied upon by the Department of Health and Human Services (HDNW) regarding restrictions issued during the COVID-19 pandemic is unconstitutional. At issue is the department's enforcement of the state's emergency public health order, which resulted in the temporary revocation of Iron Pig's liquor license, food permit, and closure during part of the COVID-19 pandemic. The store ultimately closed in order to remain open and serve customers.
more:State health department withdraws appeal in Iron Pig case
Delaney said the state constitution delegates law-making power to Congress, law-enforcement power to the executive branch, and law-enforcement power to the judiciary.
“The Legislature cannot delegate legislative authority to the Executive Branch; this is known as the 'nondelegation doctrine,'” Delaney said.
In 2020, the state Supreme Court struck down the governor's emergency powers in the executive branch as a violation of the nondelegation doctrine. In January 2022, Hunter filed a lawsuit against Iron Pig for failing to comply with orders temporarily suspending indoor dining in Michigan in 2020 and 2021 as COVID-19 cases rose. The $5,000 fine imposed was revoked. He said some of the public health laws used to issue the order were unconstitutional.
Hunter said the statute, MCL 333.2253, “is likely the result of Congress's well-intentioned deliberations to enable rapid action in the event of a real emergency, but it has failed to pass constitutional muster.” '', he said, adding that Congress was violating the principle of separation of powers. State constitution.
more:Judge: Basis for emergency order restricting bars, restaurants cannot pass constitutional assembly
Attorney Matthew Cross of Cummings McCrory Davis & Acho in Traverse City is representing the health department. He said in his filing that he believes the latest Murphy lawsuit is an attempt to force the courts to decide the issue now that all COVID-19 restrictions have been rescinded.
“As a general rule, Michigan courts 'do not decide on issues,'” Cross said in the filing.
To strengthen his argument, Cummings cited a 2022 state Court of Appeal ruling in an Ottawa County case challenging the health department's mask mandate.
Mr Cross said the Court of Appeal concluded that because the impugned order was no longer in force, there was no relief the court could give and any judgment would have no substantive legal effect on the dispute. Stated.
In the Ottawa County case, a parent group argued that the county health officer should have gotten approval from the county commission for a mask mandate. The county commission argued it did not have the authority to rescind the order or fire the health worker who issued it. The county said local health officials have the authority under Michigan law to enforce mask mandates during public health emergencies.
The appellate court found that although Michigan law requires health department “rules” to be approved by local government boards, “orders” issued by health authorities supersede such rules.
Mr. Cross does not believe that the non-delegation doctrine cited by Mr. Delaney has any legal basis under the state and federal constitutions. Citing a 1971 case, Cross said, “Neither the federal nor state constitutions expressly provide that legislative power cannot be delegated; the principle of non-delegation is written into the Constitution by judicial interpretation.” writing.
subscribeCheck out the latest offers and read local news that matters to you
Cross also said he would not ask Hunter to recuse himself from the case, even though Delaney cited Hunter's previous ruling in his complaint against the health department.
“I had considered asking Judge Hunter to resign in light of comments he made in a previous case. However, my experience with Judge Hunter has shown me that he is a thoughtful jurist. and interpreted his comments in the previous case, which involved various laws and was nothing more than a dictatorship, and perhaps he looked at the issues in this case with “fresh eyes.” It will be analyzed. “We know we face an uphill battle in this case, but we believe we have made a persuasive defense of the vital provisions of the Michigan Public Health Law,” he said. stated in an email response.
According to Cornell Law School's webpage, “A provision of law refers to a comment, suggestion, or observation that a judge makes in an opinion that is not necessary to resolve the case and therefore does not have a binding effect on other laws.” However, it may still be cited as persuasive authority in future litigation. ”
— Contact Paul Welitzkin at pwelitzkin@gaylordheraldtimes.com.
