Northern Michigan orchard sues Whitmer over mask mandate

Beth LeBlanc
The Detroit News

A northern Michigan orchard has filed suit against Michigan Gov. Gretchen Whitmer, two state agencies and the local health department in a challenge of the governor’s mask mandate.

The owners of Friske Orchards Farm Market Inc. in Ellsworth, near Charlevoix, said they’ve received notice of legal action from local and state officials for failing to make customers and the firm’s 21 employees wear masks. The business operates a fruit stand, café, bakery, gift shop and outdoor entertainment area.

"Friske has been serving the community for three generations, and now faces the forced closure of its business for refusing to submit to unlawful and illegal executive orders," said David Kallman, the orchard’s attorney and the lawyer who represented an Owosso barber who challenged the governor’s business closure order earlier in the pandemic. 

Michigan Governor Gretchen Whitmer waits to speak at the memorial for the late Gov. William Milliken.

"This case is not about masks; it is about abuse of power," Kallman said in a statement.

Whitmer's office declined to comment since it doesn't typically comment on legal matters.

The lawsuit filed Aug. 5 challenges four executive orders — three requiring masks for employees, customers and people in enclosed spaces and another extending the state of emergency. The orchard argues that the orders are invalid and violate due process rights, the separation of powers and the commerce clause.

"Plaintiffs want to take all reasonable steps to ensure the safety of their employees and customers," according to the lawsuit. "But the current state of affairs is a legal minefield for well-intentioned businesses."

The lawsuit was assigned to Judge Cynthia Stephens, the same state Court of Claims judge who earlier this year upheld Whitmer’s authority to continue extending the state of emergency without the approval of the Legislature. 

The lawsuit asks for a preliminary injunction that would suspend Whitmer’s orders while the case is pending, as well as an ultimate judgment that rules the orders unlawful and strips state agencies and local health departments of the power to enforce the orders. 

The lawsuit contends the governor overstepped the penalties and enforcement mechanisms available to her under the state’s emergency management laws. Whitmer also is operating illegally because she isn’t working with the Legislature, according to the suit.

The Michigan Occupational Safety and Health Administration on July 20 and July 21 threatened action against the orchard for failing to make employees and customers wear masks. 

Later, on Aug. 1, the orchard was served with a public health order by the Health Department of Northwest Michigan, naming the orchard an “imminent danger to the health and lives of the public” because it didn’t enforce the mask mandate. The order threatened legal action and the summary suspension of the orchard’s business license with the support of the state Department of Agriculture and Rural Development.

"The stakes of this issue are extraordinarily high, because MIOSHA, MDARD and Health Department’s penalties — if levied against businesses — are ruinous, not only financially but reputationally," the orchard said, noting a willful violation of state workplace safety law can add up to $70,000 under MIOSHA regulations. 

The attempt to convert a violation of the mask mandate into a MIOSHA, health department or Agriculture Department violation exposes businesses to harsher penalties and a different hearing process than what is allowed for under the emergency management laws. 

"Defendant Whitmer is usurping the role and authority of the judicial branch with this brazen power grab," the lawsuit said. "This is completely improper and unlawful."

The Legislature and private businesses in civil lawsuits are similarly challenging the legitimacy of Whitmer’s orders under the emergency management law. A lower Michigan Court of Claims judge ruled in May that Whitmer had authority under at least one of the emergency management laws, but the case was appealed, and arguments are expected to take place before the Michigan Supreme Court on Sept. 2.

"Michigan is under an unlawfully re-declared state of emergency, with the executive branch dictating the law and there is no end in sight," the orchard’s lawsuit said.