CORUNNA — Barber Karl Manke can go back to cutting hair, according to a ruling Thursday by 35th Circuit Court Judge Matthew Stewart, who again declined to issue a temporary restraining order requested by the Michigan Department of Health and Human Services that would have forced the barber to close.
Manke has been operating almost daily since May 4 in defiance of Gov. Gretchen Whitmer’s executive order that instructed all “non-essential” businesses to close. Those state orders will continue at least through May 28, and possibly longer for hair salons and barbershops.
Issuing his ruling at approximately 11:30 a.m. Thursday, Stewart said the decision was “a close call,” but based it on several issues, including precedent set by the U.S. Supreme Court.
“The court cannot substitute personal harm for legal principles,” Stewart said, citing an 1866 Supreme Court decision (Ex parte v. Milligan) that examined emergency actions taken by the government during the Civil War. “Another crisis of unimaginable scale. The threat it poses to the public is chilling. But the court must strip away the panic of current events and compare the evidence received to the rule of law.”
There was no immediate word following the hearing on what steps, if any, the state may pursue next.
After Manke opened his shop May 4, Owosso police on May 6 served him with two misdemeanor citations. On May 8, Michigan State Police troopers served Manke with an “imminent danger and abatement” order from the Michigan Department of Health and Human Services, which he also ignored.
“Mr. Manke’s actions in violating Gov. Whitmer’s executive orders as well as other health orders put the public at risk for contracting COVID-19,” Attorney General Dana Nessel said in a press release at the time. “Any time you have a barber or other professional providing services to numerous citizens in close proximity to each other and those citizens are then returning to their various residences, there is a risk of contracting and spreading the virus. It is paramount that we take action to protect the public and do our part to help save lives.”
A hearing on the misdemeanor charges is scheduled for June 23 in 66th District Court.
Stewart’s Thursday decision is the second time he blocked state officials. On May 11, Stewart first denied a request by the AG’s office to issue a temporary restraining order requiring Manke to close.
On May 14, the Michigan Department of Licensing and Regulatory Affairs served Manke with notice his license was suspended. The suspension carries a $1,000 fine per hair cut. The MDHHS also filed an appeal seeking to reverse Stewart’s decision and obtain a temporary restraining order.
On May 15, a sign on Manke’s shop said he was closed for “court hearings.”
According to the AG’s office, Manke’s response to the MDHHS emergency application for leave to appeal with the Michigan Court of Appeals was due by noon Monday. No hearings have been scheduled, but the AG’s office said the court could rule without a full hearing.
In addition, Manke must respond to the MDHHS motion seeking preliminary injunctive relief by today. A hearing on that motion has not been scheduled.
Manke took part Wednesday in a protest at the state Capitol where he cut hair on the Capitol grounds.
Thursday, State Assistant Attorney General Joseph Potchen argued the issue “is a public health issue, despite what others want you to believe,” and cited COVID-19 infection and death statistics from Michigan and across the country. He said Manke thought he was “above the law” for reopening his barbershop May 4.
Potchen claimed the state is given a “wide latitude” in the enforcement of public health orders, and said Manke had “unclean hands,” and was “a spectacle.”
Potchen added “death is an irreparable harm,” and Manke “is now profiting” from his refusal to close his shop. Potchen asked Stewart to grant the request by the state to force Manke to close.
Manke’s attorney David Kallman, however, called the media scrutiny and actions taken by the AG’s office “a coup of our government,” and said the state had not met its burden of proof to prove Manke constituted a threat to general health in Michigan.
He claimed the administrative actions taken by the AG have been politically motivated.
“The state does not like this message,” Kallman argued. “They are trying to silence Mr. Manke. (The governor) has been operating by executive fiat since April 30.”
Stewart, before ruling, noted law enforcement officers who cited or observed Manke giving hair cuts had discretion to arrest him, but chose not to do so, therefore Manke did not constitute a threat to public health. He declined to issue an order forcing Manke to close his shop.
Kallman said he plans to seek dismissal of misdemeanor citations.