LANSING, Mich. _ The Michigan Court of Appeals ordered a trial court Thursday to issue a preliminary injunction forcing Karl Manke to "immediately cease" all operations at his Owosso barbershop.
A week ago, Shiawassee County Circuit Judge Matthew Stewart refused to issue a preliminary injunction against Manke, who has gained national attention for refusing to close his shop despite orders from Gov. Gretchen Whitmer's administration requiring him to do so amid the COVID-19 pandemic.
The Michigan Department of Health and Human Services appealed the case to a three-judge panel of the state Court of Appeals, which issued a 2-1 decision reversing the trial court Thursday.
The majority opinion signed by Judge Stephen Borrello said the Whitmer administration's executive power "easily encompasses the closing of defendant's barbershop."
"Thus, once the governor declared a public health emergency, the Legislature determined that it was up to the department to issue orders protecting the public health," the majority opinion said. "Accordingly, in order to challenge the exercise of that authority, appellee had to present evidence that appellant overstepped the statutory boundaries.
"Appellee failed to present any evidence to rebut the department's conclusion that operation of the barbershop posed a serious public health danger."
The opinion added that the trial court had committed an error by "second guessing" the medial conclusions of Dr. Joneigh Khaldun, the state's chief medical executive.
Last week, trial court judge Stewart said his decision was a "close call," but he could not grant the state's request because officials failed to demonstrate that Manke was posing an imminent public health and safety threat by serving customers during the COVID-19 outbreak.
Stewart said the threat the state alleges Manke poses to public health and safety "must be actual and not theoretical."
Court of Appeals Judge Brock Swartzle, an appointee of Republican former Gov. Rick Snyder, wrote his own opinion Thursday in which he concurred with Borrello in part and dissented in part.
Borrello was appointed by Democratic former Gov. Jennifer Granholm. He was joined in the majority decision by Amy Ronayne Krause, another Granholm appointee.
Swartzle, who previously worked for the Michigan House Republicans, said the majority's order seemed "procedurally irregular given that the panel's vote was not unanimous on this issue."
While raising questions about Whitmer's emergency powers, which are being challenged in court by the GOP-controlled Legislature, he added that the barber case raises "maybe the most jurisprudentially significant issues this state has seen in years or decades."
