If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PATRICK FLYNN, AJ RATERINK, PATRICIA
LOOKS, BRIAN DOKTER, STEVE LEMIEUX,
and JAMIE LEMIEUX,
Plaintiffs-Appellants,
FOR PUBLICATION
December 15, 2022
9:10 a.m.
v
No. 359774
Ottawa Circuit Court
OTTAWA COUNTY DEPARTMENT OF PUBLIC
HEALTH, OTTAWA COUNTY DEPARTMENT
OF PUBLIC HEALTH ADMINISTRATIVE
HEALTH OFFICER, and OTTAWA COUNTY
BOARD OF COMMISSIONERS,
LC No. 21-006624-CZ
Defendants-Appellees.
Before: GLEICHER, C.J., and MARKEY and RICK, JJ.
MARKEY, J.
Plaintiffs-appellants, Patrick Flynn, AJ Raterink, Patricia Looks, Brian Dokter, and Steve
and Jamie Lemieux, appeal by right the trial court’s order summarily dismissing their lawsuit
against defendants-appellees, Ottawa County Department of Public Health (the department),
Ottawa County Department of Public Health Administrative Health Officer (the health officer),
and Ottawa County Board of Commissioners (the board). This action concerns the validity of a
mask mandate in schools that was issued and implemented by emergency order of the health
officer in response to the COVID-19 pandemic. The trial court concluded that the order did not
have to be approved by the board because it was an order and not a promulgated regulation, which
must be approved by the board. Plaintiffs argue that the trial court erred in its ruling, contending
that a regulation, by definition, encompasses orders issued by health officers; therefore, the mask-
mandate order had to be approved by the board, which did not occur and thus rendered the order
invalid and unenforceable. Plaintiffs maintain that even though the mask mandate has expired, an
actual controversy nonetheless exists entitling them to declaratory relief because defendants will
continue to assert their authority to issue similar orders in the future. For the reasons set forth in
this opinion, we hold that mootness does not preclude substantive resolution of the appeal and that
the trial court properly ruled that the emergency order issued by the health officer in response to
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the pandemic was not subject to approval by the board. Accordingly, we affirm the trial court’s
order of summary dismissal.
I. FACTUAL AND PROCEDURAL HISTORY
This case concerns the August 20, 2021 order issued by the health officer mandating the
wearing of masks to prevent the spread of COVID-19 in schools. The order required children from
prekindergarten through grade six to wear a facial covering while in an “educational institution”
or “educational setting.” “Educational institutions” and “educational settings” included “youth
camps, youth programs, childcare centers, preschools, primary through secondary schools,
vocational schools, colleges, and universities and other organized activities outside the home
where coursework is taught.” The order also covered extracurricular activities such as school
athletics. In addition, the mandate required all service providers, regardless of vaccination status,
to wear a facial covering while in an educational institution. This included “students, teachers,
administrative staff, attendees, volunteers, coaches, camp leaders, and other employees . . . .”
Several residents of Ottawa County expressed their disagreement with the order at a county
commission meeting. Board members revealed that they were generally unable to reverse an order
issued by the health officer. In a written statement, the chairperson of the board explained that
“[t]here is no question that the Board of Commissioners cannot make this decision and cannot
reverse this decision.”
Plaintiffs, who were residents of Ottawa County with children in grades kindergarten
through sixth grade, filed a complaint against the health officer, the board, and the department.
Initially, plaintiffs claimed that the health officer’s factual findings in relation to issuing the order
were insufficient to authorize the mandate. Further, they asserted that the order mandating facial
coverings was invalid because it was not approved by the board as required by law.
The health officer issued a subsequent order containing factual determinations and
parameters regarding the mandate. The revised order did not alter the facial-covering requirement
for individuals present in schools. The revised mandate explained that it would terminate 60 days
after the COVID-19 vaccine was authorized by the United States Food and Drug Administration
for persons in prekindergarten through grade six, or when the community transmission in Ottawa
County was categorized as “moderate” by the Centers for Disease Control for at least 14
consecutive days. Furthermore, the hearing officer could give notice and end the mandate earlier
if appropriate.
Plaintiffs then amended their complaint, now focusing solely on their contention that the
mandate or order could not be issued without the approval of the board. Defendants moved for
summary disposition pursuant to MCR 2.116(C)(8), arguing that the order was properly issued and
fully enforceable under the applicable statutory scheme. Therefore, according to defendants,
plaintiffs failed to state a claim on which relief could be granted. After holding a hearing, the trial
court agreed with defendants and ruled that the order mandating masks was legally valid and
enforceable. This appeal followed.
II. ANALYSIS
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A. STANDARD OF REVIEW
This Court reviews de novo a trial court’s ruling on a motion for summary disposition. El-
Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). We also review
de novo questions with respect to the interpretation and application of a statute. Estes v Titus, 481
Mich 573, 578-579; 751 NW2d 493 (2008).
B. MCR 2.116(C)(8) – GOVERNING PRINCIPLES
In The Gym 24/7 Fitness, LLC v Michigan, ___ Mich App ___, ___; ___ NW2d ___ (2022)
(Docket No. 355148); slip op at 8, this Court articulated the principles that govern review of a
motion for summary disposition brought under MCR 2.116(C)(8):
The issues raised on appeal also implicate MCR 2.116(C)(8), which
provides for summary disposition when a “party has failed to state a claim on which
relief can be granted.” MCR 2.116(C)(8) tests the legal sufficiency of a complaint.
Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). In rendering its
decision under MCR 2.116(C)(8), a trial court may only consider the pleadings. Id.
The trial court must accept as true all of the factual allegations in the complaint.
Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380-381; 563
NW2d 23 (1997). “The motion should be granted if no factual development could
possibly justify recovery.” Beaudrie, 465 Mich at 130.
C. PRINCIPLES OF STATUTORY CONSTRUCTION
In Slis v Michigan, 332 Mich App 312, 335-336; 956 NW2d 569 (2020), this Court recited
the well-established principles regarding statutory construction, observing as follows:
This Court’s role in construing statutory language is to discern and ascertain
the intent of the Legislature, which may reasonably be inferred from the words in
the statute. We must focus our analysis on the express language of the statute
because it offers the most reliable evidence of legislative intent. When statutory
language is clear and unambiguous, we must apply the statute as written. A court
is not permitted to read anything into an unambiguous statute that is not within the
manifest intent of the Legislature. Furthermore, this Court may not rewrite the plain
statutory language or substitute its own policy decisions for those decisions already
made by the Legislature. [Citations omitted.]
D. MOOTNESS
At the outset, we note that the mask mandate at issue in this case expired in January 2022,
giving rise to the question whether this appeal has been rendered moot. In Adams v Parole Bd,
___ Mich App ___, ___; ___ NW2d ___ (2022) (Docket No. 355588); slip op at 4, this Court
stated:
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Issues involving mootness are questions of law that are reviewed de novo.
This Court’s duty is to consider and decide actual cases and controversies.
Generally, this Court does not address moot questions or declare legal principles
that have no practical effect in a case. Mootness occurs when an event has occurred
that renders it impossible for the court to grant relief. An issue is also moot when a
judgment, if entered, cannot for any reason have a practical legal effect on the
existing controversy. There is an exception, however, when an issue is publicly
significant, likely to recur, and yet likely to evade judicial review. [Quotation
marks and citations omitted.]
Because the challenged order is no longer in effect, there is no pertinent relief that we can
grant on appeal in relation to the particular order at issue, and any judgment would have no
practical legal impact on the existing controversy. That said, the issue presented has public
significance, and although a pandemic-related order may not be likely to recur, the issuance of
some type of emergency order by the health officer is likely to recur in the future and yet evade
judicial review because of the limited duration of many health emergencies. Accordingly,
although the issue on appeal is technically moot for purposes of the instant litigation, we shall
substantively address the matter.
E. VALIDITY OF MASK-MANDATE ORDER
The resolution of this appeal is governed by the Public Health Code, MCL 333.1101 et seq.
MCL 333.2413 requires the creation of a county health department by the “local governing entity”
of the county. The “local governing entity” in this case is the board. MCL 333.2406(a). MCL
333.2433 addresses the duties assigned to a local health department:
(1) A local health department shall continually and diligently endeavor to
prevent disease, prolong life, and promote the public health through organized
programs, including prevention and control of environmental health hazards;
prevention and control of diseases; prevention and control of health problems of
particularly vulnerable population groups; development of health care facilities and
health services delivery systems; and regulation of health care facilities and health
services delivery systems to the extent provided by law.
Subsection (2) of MCL 333.2433 lists the specific duties of local health departments. And MCL
333.2433(3) provides that “[t]his section does not limit the powers or duties of a local health officer
otherwise vested by law.”
MCL 333.2435 sets forth the various powers of a local health department, including, under
subsection (d), the authority to “[a]dopt regulations to properly safeguard the public health and to
prevent the spread of diseases and sources of contamination.” (Emphasis added.) MCL 333.2441
provides the procedure that a local health department must follow to effectively adopt a regulation:
A local health department may adopt regulations necessary or appropriate
to implement or carry out the duties or functions vested by law in the local health
department. The regulations shall be approved or disapproved by the local
governing entity. The regulations shall become effective 45 days after approval by
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the local health department’s governing entity or at a time specified by the local
health department’s governing entity. The regulations shall be at least as stringent
as the standard established by state law applicable to the same or similar subject
matter. Regulations of a local health department supersede inconsistent or
conflicting local ordinances. [Emphasis added.]
And “[b]efore adoption of a regulation the local health department shall give notice of a public
hearing and offer any person an opportunity to present data, views, and arguments.” MCL
333.2442.
On the other hand, MCL 333.2428 enumerates the powers and duties of local health
officers:
(1) A local health department shall have a full-time local health officer
appointed by the local governing entity or in case of a district health department by
the district board of health. The local health officer shall possess professional
qualifications for administration of a local health department as prescribed by the
department.
(2) The local health officer shall act as the administrative officer of the
board of health and local health department and may take actions and make
determinations necessary or appropriate to carry out the local health department’s
functions under this part or functions delegated under this part and to protect the
public health and prevent disease.
The Public Health Code grants the local health officer the authority to act in certain
situations. For example, MCL 333.2451 provides, in pertinent part:
(1) Upon a determination that an imminent danger to the health or lives of
individuals exists in the area served by the local health department, the local health
officer immediately shall inform the individuals affected by the imminent danger
and issue an order which shall be delivered to a person authorized to avoid, correct,
or remove the imminent danger or be posted at or near the imminent danger. The
order shall incorporate the findings of the local health department and require
immediate action necessary to avoid, correct, or remove the imminent danger. The
order may specify action to be taken or prohibit the presence of individuals in
locations or under conditions where the imminent danger exists, except individuals
whose presence is necessary to avoid, correct, or remove the imminent danger.
Under MCL 333.2453(1), a health officer is also authorized to issue emergency orders in
response to an epidemic.
If a local health officer determines that control of an epidemic is necessary
to protect the public health, the local health officer may issue an emergency order
to prohibit the gathering of people for any purpose and may establish procedures to
be followed by persons, including a local governmental entity, during the epidemic
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to insure continuation of essential public health services and enforcement of health
laws. Emergency procedures shall not be limited to this code.
In this case, plaintiffs argue that the mask mandate was procedurally invalid because it was
not approved by the board as required by MCL 333.2441. On its face, this argument is entirely
without merit. MCL 333.2441 applies to “regulations” adopted by a “local health department.”
Here, we are concerned with an “order” issued by a “local health officer.” As the trial court
astutely observed, the local health department and the local health officer are assigned different
duties and powers under the Public Health Code. MCL 333.2435(d) allows a local health
department to adopt regulations pursuant to the procedures set forth in MCL 333.2441 and
MCL 333.2442. Conversely, a public health officer is authorized to issue orders in circumstances
in which there is an immediate danger to health, MCL 333.2451, or to control an epidemic,
MCL 333.2453(1). There is no language in MCL 333.2451 or MCL 333.2453 that requires a local
health officer to give notice, allow comment, or obtain approval by a board of commissioners
before issuing an order. Moreover, although MCL 333.2441 requires that a board of
commissioners approve or disapprove a regulation adopted by a local health department, there is
no language indicating that the same approval process applies to an order issued by a local health
officer.
Plaintiffs contend that a “regulation” includes an “order.” Plaintiffs argue that because
those terms are not defined in the Public Health Code, the trial court should have consulted a
dictionary to define those terms. See Krohn v Home-Owners Ins Co, 490 Mich 145, 156; 802
NW2d 281 (2011). Plaintiffs then provide several dictionary definitions of “regulation” to
purportedly establish that the term includes an “order.” But the Public Health Code refers to both
“regulations” and “orders” separately. Contrary to plaintiffs’ position, these terms are not used
interchangeably. For instance, MCL 333.2443 provides that “a person who violates a regulation
of a local health department or order of a local health officer under this act is guilty of a
misdemeanor punishable by imprisonment for not more than 6 months or a fine of not more than
$200.00, or both.” (Emphasis added.) The provision concerning civil penalties also contains
similar language, separately referring to a “regulation adopted” and an “order issued.” MCL
333.2461. Indeed, regulations are adopted and orders are issued; regulations are not issued and
orders are not adopted.
The plain and unambiguous language of the pertinent statutory provisions clearly
establishes that “regulations” and “orders” have different meanings under the Public Health Code.
Otherwise, there would be no reason to include both terms, especially within the same statutory
provisions. See US Fidelity Guaranty Co v Mich Catastrophic Claims Ass’n (On Rehearing), 484
Mich 1, 14; 795 NW2d 101 (2009) (explaining that “the use of different terms within similar
statutes generally implies that different meanings were intended”) (quotation marks and citation
omitted). Moreover, if the Legislature intended for emergency orders issued by a local health
officer to be subject to the procedural requirements of MCL 333.2441 and MCL 333.2442, it would
have expressly included such a requirement, whether in those provisions or in MCL 333.2451 and
MCL 333.2453.
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Accordingly, we hold that the trial court properly concluded that the order imposing the
mask mandate was valid pursuant to the procedures set forth in the Public Health Code; therefore,
the court did not err by granting defendants’ motion for summary disposition.
We affirm. Having fully prevailed on appeal, defendants may tax costs under MCR 7.219.
/s/ Jane E. Markey
/s/ Elizabeth L. Gleicher
/s/ Michelle M. Rick
