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Appeals court: emergency health orders unconstitutional

File photo. State of Michigan

The Michigan Court of Appeals has ruled the law the state health department used to issue an emergency COVID-19 order is unconstitutional.

In a split 2-1 decision, the court ruled the statute wrongly gives broad legislative authority to the executive branch.

The court concluded that violates the separation of powers outlined in the state constitution.

“[T]he statute does not require that the measures ordered be designed to end or even to control the epidemic, but only 'to insure continuation of essential public health services and enforcement of health laws.' The result is that the statute surrenders legislative power to the executive branch,” appellate court Judge Michael Gadola wrote in the court’s opinion.

Attorney Justin Majewski represented the plaintiff, River Crest Catering, in the case.

“Section 2253 granted an immense amount of power to the director of the Department of Health and Human Services and it didn’t provide really any guidance as to how to exercise that power,” Majewski said.

The catering company, now out of business, previously lost at the Court of Claims. That court had dismissed the case.

Judge Christopher Yates wrote the appellate court should have done the same in his dissent, reasoning that with the pandemic orders lifted, the issue no longer belongs before the courts.

“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,” Yates’ dissent reads.

In a written statement, the Michigan Department of Health and Human Services said it plans to appeal the decision to the state Supreme Court.

Department spokesperson Lynn Sutfin said the law was "written to provide critical protection to our state’s public health in times of greatest need," and that it "is fully constituent with our state constitution."

"Furthermore, the COVID public health emergency has ended and so have all the department’s epidemic orders,” Sutfin said.

Lawmakers amended the statute last year. But the appellate court decided the changes wouldn’t have saved the law in this circumstance.

Majewski said the decision will alter the state's approach.

“This will require a different response in the future to potential epidemics that might arise,” he said.

In 2020, the state Supreme Court issued a similar ruling regarding the governor’s COVID-19 pandemic-related emergency orders.

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