T & V Assocs. v. Dir. of Health & Human Servs.
| Docket Number | 361727 |
| Decision Date | 29 June 2023 |
| Parties | T & V ASSOCIATES, INC d/b/a RIVER CREST CATERING, Plaintiff-Appellant, v. DIRECTOR OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Court of Claims No. 21-000075-MM
Before: Boonstra, P.J., and Gadola and Yates, JJ.
Plaintiff T & V Associates, Inc, appeals as of right the order of the Court of Claims granting defendant, Department of Health and Human Services Director Elizabeth Hertel, summary disposition of plaintiff's claim under MCR 2.116(C)(8). We reverse.
The facts of this case are essentially undisputed. Plaintiff is a corporation that operated a catering service and banquet facility in Oakland County for many years. Its events typically included more than 25 patrons and often more than 100 patrons, and the events usually extended beyond 11:00 p.m.
Beginning in March 2020, Governor Gretchen Whitmer issued a series of executive orders declaring a "state of emergency" and a "state of disaster" in Michigan in response to the outbreak of the acute respiratory disease known as COVID-19. The executive orders were issued by the Governor pursuant to the Emergency Management Act of 1976 (the EMA), MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945 (the EPGA), MCL 10.31 et seq.[1] In re Certified Questions From United States Dist Court, 506 Mich. 332, 337-338; 958 N.W.2d 1 (2020).
The executive orders regulated many of the daily activities of Michigan residents and affected their ability to operate their businesses.
By opinion dated October 2, 2020, our Supreme Court determined that the Governor did not possess authority under the EMA to declare a "state of emergency" or "state of disaster" based on the COVID-19 pandemic after April 30, 2020, and that the Governor does not possess the authority to exercise emergency powers under the EPGA "because that act is an unlawful delegation of legislative power to the executive branch in violation of the Michigan Constitution." In re Certified Questions, 506 Mich. at 337-338. The executive branch, however, through defendant the Director of the Department of Health and Human Services, acting under MCL 333.2253, continued issuing comparable orders unabated, similarly regulating many of the daily activities of Michigan residents, including their ability to operate their businesses.[2]
On March 19, 2021,[3] defendant issued an order entitled "Emergency Order under MCL 333.2253 - Gatherings and Face Mask Order" (the Order). The Order was effective from March 22, 2021 through April 19, 2021, and stated that the Order was issued because "the COVID-19 pandemic continues to constitute an epidemic in Michigan" and "that control of the epidemic is necessary to protect the public health and that it is necessary to restrict gatherings and establish procedures to be followed during the epidemic to ensure the continuation of essential public health services and enforcement of health laws." The Order also provided, in relevant part:
On April 13, 2021, plaintiff filed its complaint in the Court of Claims seeking declaratory judgment, alleging that MCL 333.2253 is an unconstitutional delegation of legislative authority and alleging that defendant exceeded her authority under that statute. The complaint further alleged violation of plaintiff's right to procedural and substantive due process. Defendant moved for summary disposition under MCR 2.116(C)(5) and (8), contending that plaintiff's claim was barred by mootness and lack of standing, and that plaintiff had failed to state a claim. The Court of Claims granted defendant's motion for summary disposition under MCR 2.116(C)(8). The Court of Claims held that plaintiff's claim was not moot and that plaintiff did not lack standing, but that plaintiff had failed to state a claim upon which relief could be granted because MCL 333.2253 is not an unconstitutional delegation of legislative authority. The Court of Claims also held that plaintiff had failed to demonstrate a violation of due process. Plaintiff now appeals.
Plaintiff contends that the Court of Claims erred by granting defendant summary disposition because the legislature's grant of authority to defendant under MCL 333.2253 is an unconstitutional delegation of legislative power to the executive branch. Defendant contends that plaintiff's challenge is moot because defendant's Order is no longer in effect, and plaintiff no longer operates its catering and banquet business.
Mootness is a threshold inquiry that must be addressed before a court reaches the substantive issues of a case. Can IV Packard Square, LLC v Packard Square, LLC, 328 Mich.App. 656, 661; 939 N.W.2d 454 (2019). We review de novo whether an issue is moot. Flynn v Ottawa Co Dep't of Public Health,__ Mich. App__,__;__ N.W.2d__ (2022) (Docket No. 359774); slip op at 3. This Court decides actual cases and controversies; a case that does not rest upon existing facts or rights and instead presents only abstract questions of law is moot. Gleason v Kincaid, 323 Mich.App. 308, 314-315; 917 N.W.2d 685 (2018). An issue also is moot if an event has occurred that makes it impossible for the reviewing court to grant relief. Can IV Packard Square, 328 Mich.App. at 666. This Court generally dismisses a case that is moot without addressing the underlying merits. Gleason, 323 Mich.App. at 315.
In this case, an actual case and controversy exists based upon existing facts and rights; the dispute is not abstract. Defendant's Order directly restricted plaintiff's ability to operate its business. Plaintiff's amended complaint alleges that defendant's action in issuing the Order exceeded her authority under MCL 333.2253, and further that MCL 333.2253 is an unconstitutional delegation of legislative authority. Defendant disputes that the Order was unlawful or unconstitutional. Moreover, the dispute is not concluded; plaintiff continues to be a banquet and catering corporation and MCL 333.2253 continues to authorize defendant to issue emergency orders. A case is not necessarily rendered moot by a party ceasing the activity that is challenged as illegal. Anglers of Au Sable, Inc v Dep't of Environmental Quality, 486 Mich. 982, 983 (2010) (Cavanagh, J., concurring), citing United States v W T Grant Co, 345 U.S. 629, 633; 73 S.Ct. 894; 97 L.Ed. 1303 (1953). There is thus a present legal controversy, not merely a hypothetical or abstract legal question. See Gleason, 323 Mich.App. at 314-315.
We also observe that the mootness doctrine is not inflexible. Turunen v Dir of Dep't of Natural Resources, 336 Mich.App. 468, 480; 971 N.W.2d 20 (2021). This Court will address an issue regardless of mootness if the issue is one "of public significance and [is] likely to recur, yet may evade judicial review." In re Midland Publishing Co, Inc, 420 Mich. 148, 152 n 2; 362 N.W.2d 580 (1984). "An otherwise moot issue may thus appropriately be addressed by a court when there is a reasonable expectation that the publicly significant alleged wrong will recur yet escape judicial review, in which case the issue, though moot, is nonetheless justiciable." Gleason, 323 Mich.App. at 315. Regarding this issue, the Court of Claims aptly reasoned:
Defendant's exercise of the powers afforded by MCL 333.2253 is, at some point, likely enough to recur so as to warrant review of the questions presented in this case. The statutory authority to issue orders under MCL 333.2253 has been invoked numerous times already in response to COVID-19, . . . It is not a stretch to conclude that the issuance of additional public-health orders could potentially occur - and like these orders, be revoked sometime thereafter - making the issues raised in this case not only capable of repetition but also potentially capable of evading review. In addition, the Supreme Court's decision in In re Certified Questions from United States District Court, 506 Mich. 332; 958 N.W.2d 1 (2020), which invalidated a source of statutory authority relied on by the Governor to issue similar orders, makes it more likely that issues surrounding MCL 333.2253 are likely to arise again.
We conclude that the issue before us is not moot. In addition, defendant's exercise of authority under MCL 333.5523 is an issue of public significance that is likely to recur, yet may evade judicial review. The Court of Claims therefore did not err by determining that mootness was not a bar to the justiciability of plaintiff's claim.
As the dissent correctly observes, "[f]or far too long, in courts all across this country, the COVID-19 wars have raged on." The genesis of this state of affairs is, to quote another venerable jurist, that "[s]ince 2020, we may have experienced the greatest intrusions on civil liberties in the peacetime history of this country . . . [which] forced individuals to fight for their freedoms in court on emergency timetables." Arizona v Secretary of Homeland Security, 598 US__,__ (2023) (Statement by Gorsuch, J.) slip op at 4-7. The dissent urges that the intrusion on civil liberties is behind us, obviating an uncomfortable examination of the deeds of yesteryear, and...
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