Slis v. State
| Decision Date | 21 May 2020 |
| Docket Number | No. 351211, No. 351212,351211 |
| Citation | 956 N.W.2d 569,332 Mich.App. 312 |
| Parties | Marc SLIS and 906 Vapor, Plaintiffs-Appellees, v. STATE of Michigan and Department of Health and Human Services, Defendants-Appellants. A Clean Cigarette Corporation, Plaintiff-Appellee, v. Governor, State of Michigan, and Department of Health and Human Services, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Honigman LLP, Lansing (by Kevin M. Blair and Douglas E. Mains ) for Marc Slis and 906 Vapor.
Fraser Trebilcock Davis & Dunlap, PC, Lansing (by Thaddeus E. Morgan, Aaron Davis, and Ryan K. Kauffman ) for A Clean Cigarette Corporation.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Joseph E. Potchen and James E. Long, Assistant Attorneys General, for defendants.
Michael Siegel in propria persona, amici curiae.
Kerr, Russell and Weber, PLC, Detroit (by Daniel J. Ferris ) for Tylise Ivey, the Public Health and Medical Organizations, Sharon Swindell, and Terrill Bravender, amici curiae.
Nicholas Bagley in propria persona, amici curiae.
Before: Markey, P.J., and Jansen and Boonstra, JJ.
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 the Department of Health and Human Services (the 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 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 that 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.
Our Constitution states, "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:
[T]he [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 (the 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, in pertinent part:
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 [ 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.
We initially note that pursuant to 2019 PA 18, effective September 2, 2019, the Legislature amended the youth tobacco act (the YTA), MCL 722.641 et seq. , extending the prohibition of sales of tobacco products to minors to 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 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.
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:
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 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 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 six 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...
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