LANSING — The Michigan Attorney General’s Office Monday said it is considering further action following a state Supreme Court decision blocking enforcement of a restraining order against Owosso barber Karl Manke.
“We’re reviewing our options with the Michigan Department of Health and Human Services who issued the public health order at issue in this matter,” Attorney General Dana Nessel’s office said in a prepared statement Monday. “Our office is prepared — and has been prepared — to argue the merits of this case in full and show that the actions of the Michigan Department of Health and Human Services were done to protect the public health of the citizens of our state.”
Friday, the Michigan Supreme Court, in a 7-0 decision, overturned a 2-1 decision by a three-judge panel of the Court of Appeals that ordered 35th Circuit Court Judge Matthew Stewart to issue a temporary restraining order that blocked Manke from continuing to operate.
“I needed to work and figured it was time to move forward,” Manke said in a press release after the decision. “But I feel like I have been ruled over with a heavy hand, not governed, and my constitutional rights have been trampled underfoot.”
The Supreme Court’s decision was released without comment, however, in a concurring opinion Justice David Viviano said “… It appears patently clear that two members of the Court of Appeals motion panel have no power to grant peremptory relief. Doing so over Judge Brock Swartzle’s explicit objection (and without responding to it) is inexplicable.”
The state’s top court said in its decision that the appellate panel did not follow established rules.
“It is incumbent on the courts to ensure decisions are made according to the rule of law, not hysteria,” Viviano wrote. “Here, in addition to entering an order whose validity is highly suspect, the Court of Appeals majority took the extraordinary step of directing the trial court to take immediate action despite the fact that an application for leave had already been filed in our Court.”
Viviano also noted the panel provided peremptory or immediate relief despite MDHHS not asking for such a move.
Manke’s attorney, David A. Kallman, said in a prepared statement, “I am gratified that the Supreme Court was not swayed by speculation and hyperbole. I applaud the court for its continued commitment to adhere to the rule of law. This is a great day in Michigan for the protection of everyone’s constitutional rights.”
The state’s top court remanded the case to the Appeals Court for a hearing on the merits by the full six-judge panel of the Fourth District. In the meantime, the initial panel’s mandate to issue a restraining order was vacated.
A court date for a hearing was not on the Appeals Court’s docket as of today.
Based on the Appeals Court panel’s initial decision, MDHHS and the Attorney General had sought a contempt of court ruling against Manke, requesting fines of $7,500 per day and $5,000 in restitution. A hearing had been set for Thursday on the request, but now won’t take place, Kallman said.
Separately, Manke still faces local court hearings on a pair of misdemeanor citations issued by the Owosso police department because he opened his shop May 4 in defiance of Gov. Gretchen Whitmer’s executive order to close “non-essential” businesses, including barbershops and hair salons.
Arraignment on the misdemeanors — a health department violation and violating an executive order — is slated for 8:30 a.m. June 23 in 66th District Court.
Additionally, the Michigan Licensing and Regulatory Affairs Department suspended both Manke’s personal and business barber licenses on May 12. Administrative Law Judge Stephen Goldstein upheld the suspensions May 27 and they remain in effect until either a court overturns that decision or reconsideration by Goldstein.
The suspensions remain in effect and a full hearing on the allegations is slated for July 15 before Goldstein. He can either find that the state has established violations occurred and recommend a penalty or dismiss the complaint. A recommendation would be forwarded to the Board of Barber Examiners for consideration.
If a final penalty is issued, Manke could appeal in circuit court.
Manke, 77, has said he opened his shop because he need to make money to “support his family.”
Whitmer said this past week that orders requiring barbershops to remain closed will be lifted June 15.