Will Michigan Supreme Court rescue restaurants from COVID dining ban?

The Michigan restaurant industry has struggled mightily amid shutdowns and restrictions enacted by the state to stem the spread of the deadly coronavirus. (Shutterstock)

Michigan’s struggling bar and restaurant industry has lost a legal bid to resume indoor service. But the federal court ruling published Wednesday opened the door to the Michigan Supreme Court possibly weighing in on the legality of the state’s most recent coronavirus restrictions.

A similar path in an earlier lawsuit involving the same court led to the October ruling that ended Gov. Gretchen Whitmer’s authority to make emergency pandemic orders, including closing businesses.

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In the current case, the Michigan Restaurant & Lodging Association and two of its members filed a lawsuit in mid-November after the Michigan Department of Health and Human Services ordered the state’s bars and restaurants closed to indoor service for a three-week “pause” that ends Dec. 8. 

Many in the industry called the move devastating and said many operators will not be able to survive another shutdown to in-person service, which may well be extended beyond next Tuesday.


The COVID order, issued by MDHHS Director Robert Gordon, also closed state high schools, movie theaters and casinos amid escalating COVID-19 cases, deaths and hospitalizations. In addition, it reduced retail store capacity to 30 percent from 50 percent. 

Gordon said his order was justified under a law that allows the agency to enact health rules to prevent the spread of disease. MDHHS implemented the restrictions after the Michigan Supreme Court ruled in October that Whitmer lacked legal authority to issue such orders during the pandemic without input from the state Legislature. The restaurant groups argue that Whitmer, in effect, simply outsourced her executive authority to Gordon, a political appointee, evading the spirit of the high court ruling. 

The plaintiffs contend Gordon’s order violates the constitutions of Michigan and the United States. It asked the court to issue a preliminary injunction to prevent Gordon from enforcing his order while the lawsuit unfolds. 

“The Governor has turned to MDHHS to circumvent the Michigan Supreme Court’s decision and order  …. and has directed MDHHS to issue multiple orders that once again impermissibly infringe” on the restaurant industry’s rights,” the claim said.

In return, Gordon argues that his order "rests on the firm legal authority" of a law passed by the state after the 1918 flu pandemic to allow health authorities to broadly address epidemics.

The rules "are grounded in evidence and experience and reflect input from public health experts in Michigan and around the country," Gordon has said.

In ruling against the restaurant groups, U.S. District Judge Paul L. Maloney found that the plaintiffs failed to “establish any likelihood of success on the merits of its claims,” one of four factors the court considered in weighing whether to grant an injunction. 

However, Maloney also said the court “is sensitive to the risk of irreparable harm to Michigan restaurants.”

He noted an affidavit filed on behalf of the MRLA from its CEO, Justin Winslow, citing figures showing the breadth of financial impact to the industry from the pandemic, including 2,000 restaurants that already permanently closed, with more likely to follow.

“These statistics make clear that many Michigan restaurants are at risk of, or have already suffered, irreparable harm under Director Gordon’s EO,” the judge noted.  

Federal courts usually afford great deference to state courts in interpreting their laws and constitutions. In his ruling, Maloney said that the state constitutional claim “must be evaluated first,” noting that Michigan courts had not yet ruled on the validity of Gordon’s authority. 

Maloney scheduled a hearing for Dec. 17, during which he said he may ask the Michigan Supreme Court for a ruling on whether the public health law that Gordon cited as the basis for his epidemic orders is legal under the state constitution.

If Michigan’s highest court takes up the matter, the resulting decision could have major implications for the state and many of its industries beyond restaurants. 

Last summer, in a federal case over medical service restrictions that was also before Maloney, he asked the Michigan Supreme Court to determine whether Whitmer had authority to continue issuing COVID-19 orders without input from the Legislature. The Supreme Court’s narrowly conservative majority responded by striking down the 1954 law that Whitmer relied upon to extend her emergency authority for months during the pandemic. 

Maloney said Wednesday he may ask for similar guidance on the public health law cited by Gordon: Is it also an unconstitutional delegation of power that freezes out the legislative branch? And if not, does it give Gordon broad authority to implement the kind of "comprehensive regulatory scheme" laid out in the Nov. 15 order closing indoor restaurant service for three weeks?

Unclear is if and when the Michigan Supreme Court would hear the questions, should Maloney pose them. The timing is critical. Republican justices are poised to lose their majority in January. 

Meanwhile, Gordon expressed relief in a statement Wednesday that the ruling will keep in place measures that will save lives by limiting specific indoor gatherings, including eating and drinking, which federal guidelines say increase the risk of COVID-19 spread. 

“Public health experts from around the nation and world say these types of (restrictions) must be taken to prevent the health care system from being overwhelmed by COVID-19 cases,” Gordon said in the statement. 

“These protocols on specific indoor gatherings, along with wearing face masks, social distancing and frequent handwashing, give Michigan a fact-based approach to slow the spread of COVID-19 so we can return to a strong economy and get back to normal safely as soon as we can.”

The restaurant industry also is looking to the future. The MRLA wants to prevent the order that expires Tuesday from being extended.

The group called on Gordon “to provide clear and specific data to justify the sustained closure of restaurants across the state,” according to a statement from Winslow, the CEO. 

“Presumptions and generalizations will not suffice and should no longer be tolerated given the significant human toll they have wrought from closing restaurants for a second time this year.”

Michigan recorded 6,955 new coronavirus cases on Wednesday. It also is dealing with 1,190 new and ongoing outbreaks of the virus across the state, up from 747 on Nov. 5.  Of the current outbreaks, 52 involve bar and restaurant employees or patrons. MDHHS does not release how many people are affected within specific outbreaks.

Winslow said the bar and restaurant industry wants MDHHS to set clear criteria for when its members will be allowed to reopen. It had been operating at 50 percent capacity before the most recent restrictions. 

“We have ideas and reasonable solutions to offer and reiterate our willingness to engage in a substantive dialogue with this administration should they wish to do the same,” Winslow said.

Bridge reporter Jonathan Oosting contributed to this report. 

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Get real
Wed, 12/02/2020 - 10:50pm

No, the Michigan Supreme Court will not save the restaurants, that's the job of the legislature. The legislature has to give businesses loans to stay afloat, put moratoriums on rents and mortgages. There's an effing pandemic, people, and a vaccine is around the corner. We need to stop the spread and help those hurting. We can't just let people act like idiots because they value money over human lives.

Evil Master Plan
Thu, 12/03/2020 - 9:52am

Apparently Whitmer has some kind of issue with the bar and restaurant owners (maybe they haven't donated enough to her campaigns) and is determined to destroy the industry.
All of you restaurant and bar owners who voted for Whitmer: make sure you send her a thank you note when your business fails and you lose everything.

Herd Mentality
Thu, 12/03/2020 - 11:37am

What this is doing is making a precedent that public health codes can NEVER impact business, EVER.

Then what good does having a Health code do? Maybe we should get rid of those for restaurants too! Imagine all the onerous rules and burdensome regulations that could be done away with and save them money............that they could use to lower prices or raise wages! LOL!

And the poor excuse of it being to help keep people safe? FAKE NEWS!

It's all government control!!!

Long live e-coli and salmonella and COVID!

Hail to those who are resistant! WE MUST improve our immune systems by exposing ourselves to as much of this as possible!

Richard M
Thu, 12/03/2020 - 2:58pm

I only know one restaurant worker personally, but she's moving to Ohio for a job. I expect we'll have a lot fewer restaurants and a lot more bankruptcy cases when this is over. And yet, Michigan remains in the top 5-6 in both deaths and cases per capita. So how did all this really help? Frankly, it would have made a lot more sense if Whitmer shut down the colleges earlier than she did, because those students are the biggest spreaders. But then they're part of her constituency, which is why she didn't. Never let public safety get in the way of politics.

Thu, 12/03/2020 - 7:21pm

I never could understand how bars could even be allowed to operate in today's civilized society. Back in the dark ages, walking home drunk would cause no risk of harm to another. Today, driving drunk can KILL.
It's why I sold my bar and opened a restaurant. I serve food with beverages optional.
When this deadly epidemic started, I made arrangements and planned for curb side and delivery knowing people would quickly become tired of home cooking.
We are doing ok having not had 1 customer indoors since April. We are at about 70% gross pre-covid. I received no support, resources, nor any assistance from the MRLA and am no longer a member. I feel the pain of the 2000 restaurants that "may" have closed but honestly, I doubt they had a plan to adapt.
I don't believe I will associate, nor be a patron, of any business who is a member of MRLA if their only help to our society and the safety of our customers is to file lawsuits and further risk the lives of my customers and their families.
Go ahead, kick it up to those prima-donna supreme court judges to overturn the common sense science that is defending our economy and our lives. It will not make any difference in the long haul; most people with an ounce of brain won't risk breathing the same air from a half drunk idiot with bad teeth telling a bad joke at a bar.
And those that will risk their life for that, well, that's why we have the Darwinian Award for people who contribute to society by removing themselves from the gene pool.

Jennie B
Fri, 12/04/2020 - 3:31pm

I would gladly order take out from you for my family and for my extended family living elsewhere because you are a decent person. I can't even know if I trust the others touching my food, if they hate science so much!

Sun, 12/06/2020 - 1:04pm

Bars are not exclusively the domain of drunks. If your bar's clientele was all alcoholics, it sounds like you needed to rebrand or move.

Fri, 12/04/2020 - 6:52am

In Michigan we elect Governors, not dictators who ignore the rule of law and even Supreme Court rulings.

Democrats claim their actions are "fact based" but the facts are that the more restrictions they've imposed on Michiganders, the higher the infection rates have gone. Then to top that off with higher domestic violence rates, higher rates of alcohol and drug abuse and higher suicide rates.

Let's keep doing the same thing while expecting different results.

Yes, eventually, this virus will pretty much disappear, then Democrats will try to claim it was due to their efforts, with no facts or evidence to back that up.

Just sayin'
Fri, 12/04/2020 - 3:32pm

The law says she must protect us. Are food safety regulations illegal?