Owosso barber still open, appealing to Michigan Supreme Court

Lansing — The Michigan Court of Appeals ordered a lower court Thursday to issue a preliminary injunction forcing Karl Manke to "immediately cease" all operations at his Owosso barbershop.

As of Thursday afternoon, however, the 77-year-old barber's attorney said he was appealing to the Michigan Supreme Court and the Court of Appeals order had been stayed. Manke said his business was still open and had been "busy all day."

"We're in a fifth round of a 10-round prize fight," Manke said. "I am still standing up. I have no intention of standing down.”

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 Thursday a 2-1 decision reversing the trial court.

The majority opinion signed by Judge Stephen Borrello said 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."

Michigan Attorney General Dana Nessel said in a statement that her office was pleased with the Court of Appeals decision.

"As public servants, we take no pleasure in prohibiting residents from being able to earn a living, but we are bound by our obligation to protect the public health, safety and welfare of all Michiganders," Nessel said. "This pandemic has demanded we take appropriate measures to mitigate actions that pose a threat to the public."

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 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."

Manke's attorney, David Kallman, argued Thursday that the Court of Appeals order was entered in violation of Michigan Supreme Court rules that require such a reversal of a trial judge to have unanimous approval.

"We applaud Judge Swartzle for his commitment to adhere to the rule of law," Kallman said. "This appeal to the Supreme Court will allow Mr. Manke to be heard so that he can continue to exercise his constitutional right to speak out and earn a living and to keep his barber shop open in a safe and responsible manner.”

On Thursday, Manke said he had no intention of stopping cutting hair.

"As far as a I am concerned," he said, "this can go right to the Supreme Court."

cmauger@detroitnews.com

Staff Writer Beth LeBlanc contributed