West Michigan lawsuits first to challenge new epidemic orders on masks, gatherings

Beth LeBlanc
The Detroit News

Two lawsuits originating in Ottawa County appear to be the first to challenge the Michigan Department of Health and Human Services' epidemic orders on gathering rules and mask use.

The epidemic orders largely have taken the place of some of Gov. Gretchen Whitmer's executive orders, which were overturned Oct. 2 by the Michigan Supreme Court. 

On Friday, a Hudsonville Christian school called Libertas Classical Association filed suit in Michigan's Western U.S. District Court, alleging its constitutional rights were violated when the county health department threatened to shut the school because of violations of the state's mask mandate and gathering restrictions. 

Michigan Gov. Gretchen Whitmer wears a mask on the campaign trail on Oct. 18, 2020 in West Bloomfield. A West Michigan school and chiropractor have separately sued in federal court to undo epidemic orders involving a mask mandate and other rules by Whitmer's Health and Human Services Department.

On Wednesday, a Grand Haven chiropractor's office filed suit in the Michigan Court of Claims, arguing that the department's mask mandate exceeded what orders it is allowed to issue under state law. 

Both the school and Semlow Peak Performance Chiropractic have been served cease-and-desist letters from the Ottawa County Health Department in recent weeks. 

The chiropractor's lawsuit was assigned to Court of Claims Chief Judge Christopher Murray, an appointee of former Republican Gov. John Engler. 

The school's lawsuit was assigned to U.S. District Judge Paul Maloney, who was nominated by Republican former President George W. Bush and whose request to the Michigan Supreme Court in a separate case resulted in the upheaval of the governor's emergency orders.

The Department of Health and Human Services has not been served with the complaints but is "confident that the order is lawful," spokeswoman said Thursday.

"Director Robert Gordon issued the order under a different law than the law invalidated by the Michigan Supreme Court," Health and Human Services spokeswoman Lynn Sutfin said. "The law under which Director Gordon acted was enacted by the Michigan Legislature specifically to deal with epidemics."

The lawsuits challenging the state's epidemic orders come as the Michigan Health and Hospital Association announced, regardless of whatever laws or rules are in place, hospitals across Michigan will observe and require mask use, entrance screenings and limitations. 

Libertas Christian School in Hudsonville received a cease and desist order dated Oct. 6 from the Ottawa County Health Department after it failed to comply with gathering limitations and face mask requirements required under the state health department's epidemic orders. The order came a day after the Department of Health and Human Services released its mask mandate.

The violations could be treated as a misdemeanor punishable by up to six months in jail and other fines, the health department said. It also threatened to report the noncompliance to the Michigan Department of Education "for follow up sanctions."

The school argues in its lawsuit that it has increased cleaning at its facilities, encouraged hand washing, made masks and hand sanitizer available, and implemented procedures requiring sick or exposed kids to stay home. 

Additionally, the school has implemented "prayer, fasting, almsgiving and traditional spiritual aids to combat disease."

No students at the school have become ill or tested positive for the virus since it began operating under its own protocols on Sept. 8, the lawsuit said. 

The school said the health department's main areas of concern included the school's "morning worship assembly" or "morning chapel."

In addition, the order requiring teachers and students to wear masks amounts to a "capricious mandate" that is not funded by the state. In fact, the lawsuit notes, the state has tried to block funding through a lawsuit challenging federal guidelines that would give direct coronavirus aid to private schools. 

"Closing Libertas would ultimately deny Libertas, its teachers, its students and their families the opportunity to engage in religious and biblical education, practice and worship in an integrated way," the lawsuit said. 

The litigation argues the health department's cease-and-desist order and the state's epidemic orders that underpin it violated the school and its students' right to freedom of association, due process, Michigan's separation of powers doctrine, religious liberty and the civil right to family integrity and education. 

In the Grand Haven case, chiropractor Kirk Semlow also received a cease-and-desist order from the Ottawa County Health Department dated Oct. 6. 

The department warned Semlow that if he failed to enforce the mask mandate in his office, he could face a misdemeanor, the closure of his business or licensing sanctions through the Michigan Licensing and Regulatory Affairs agency. 

Neither the state nor county health department has the power to require face masks, the lawsuit said. It argued that the departments' authority was limited instead to the prohibition of the gathering of people and procedures aiming to "insure the continuation of essential public health services."

The rapid addition of more rules by state agencies creates "a legal minefield for well-intentioned businesses," the chiropractor's lawyers said. 

"Defendants are unlawfully expanding their authority to now include requiring face coverings, contact tracing, data collection requirements of businesses, prohibiting the sale of concessions at sporting events, and numerous other requirements beyond the scope of their statutory authority," the lawsuit said. 

The lawsuit by Semlow also seeks a ruling on orders prohibiting the sale of concessions at sporting events and requiring businesses to collect customer information for contact tracing.