Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

June 5, 2020

161394 & (27)(37)(38)

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES,

Plaintiff-Appellee,

v SC: 161394

COA: 353607

Shiawassee CC: 20-004700-CZ

KARL MANKE,

Defendant-Appellant.

_________________________________________/

On order of the Court, the motions for immediate consideration are GRANTED. 

The application for leave to appeal the May 28, 2020 order of the Court of Appeals is 

considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we 

VACATE the order of the Court of Appeals and the May 29, 2020 order of the 

Shiawassee Circuit Court, and we REMAND this case to the Court of Appeals for 

plenary consideration. The motion for stay is DENIED as moot.

VIVIANO, J. (concurring). 

I agree with the Court’s order remanding this case to the Court of Appeals for 

plenary consideration. I write separately to briefly highlight some of the issues that will 

need to be addressed on remand. First, it appears patently clear that two members of the 

Court of Appeals motion panel have no power to grant peremptory relief. See MCR 

7.211(C)(4) (“The decision to grant a motion for peremptory reversal must be 

unanimous.”). Doing so over Judge SWARTZLE’s explicit objection (and without 

responding to it) is inexplicable.1 In addition, the majority decided the important 

 

1 The order at issue also may be invalid for another reason: The Department of Health 

and Human Services (DHHS) did not file a motion requesting peremptory reversal, and 

the Court does not have the power to grant such relief sua sponte under the applicable 

court rule. See MCR 7.211(C)(4) (“The appellant may file a motion for peremptory 

reversal on the ground that reversible error is so manifest that an immediate reversal of 

the judgment or order appealed from should be granted without formal argument or 
2

constitutional issues of first impression raised by defendant without plenary 

consideration, full briefing, oral argument, or an opportunity for amici curiae to file 

briefs. And it allowed the Department of Health and Human Services to argue these 

points as a basis for reversal even though the Department never responded to these 

arguments in the trial court. Finally, the Court of Appeals should address whether 

plaintiff’s motion for a preliminary injunction is rendered moot now that the Governor 

has ordered that barbershops can open statewide on June 15, 2020.2 

It is incumbent on the courts to ensure decisions are made according to the rule of 

law, not hysteria. 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.3 Typically, the filing of an application in our Court automatically “stays 

proceedings on remand unless the Court of Appeals or the Supreme Court orders

 

submission.”). Cf. Dawley v Hall, 501 Mich 166 (2018) (holding that a rule allowing 

venue change based on a defendant’s motion or the court’s own initiative did not permit 

venue change based on a plaintiff’s motion). In this case, although the “relief requested” 

section of its application did request an order summarily reversing the trial court, the 

DHHS never filed a motion for peremptory reversal under MCR 7.211(C)(4) (despite 

having previously filed a motion for immediate consideration under MCR 7.211(C)(6)).

2 Today, the Governor signed an executive order allowing personal services businesses 

including barber shops to open statewide on June 15. See Executive Order No. 2020-115 

(allowing the reopening of “hair salons . . . and similar establishments”). 

3 Defendant’s application was filed in our Court on May 28, 2020. The next day, on May 

29, the Court of Appeals ordered the trial court to immediately enter a very specific 

preliminary injunction order (“The trial court is ORDERED to immediately sign and 

enter a preliminary injunction order . . . . The body of the preliminary injunction order 

entered by the trial court shall include verbatim the language of the proposed preliminary 

injunction order submitted by plaintiff-appellant. . . . We continue to retain jurisdiction 

to verify immediate entry of the preliminary injunction by the trial court.”). Dep’t of 

Health and Human Servs v Manke, unpublished order of the Court of Appeals, entered 

May 29, 2020 (Docket No. 353607). The same day, the trial court complied with this 

highly suspect directive by entering a preliminary injunction and indicating that “this 

Order will be enforced through the Court’s general contempt powers. MCL 600.1711.” 

And now, according to published news reports, the Attorney General filed a motion this 

week seeking to have defendant held in contempt for his failure to comply with the trial 

court’s order. Acosta, MLive, Owosso Barber Says he Won’t be Bullied as Michigan 

AG’s Office Files Motion to Find him in Contempt of Court

<https://www.mlive.com/news/flint/2020/06/owosso-barber-says-he-wont-be-bullied-asmichigan-ags-office-files-motion-to-find-him-in-contempt-of-court.html> (accessed June 

4, 2020) [https://perma.cc/H29K-WBSB].
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 

June 5, 2020

b0605

3

Clerk

otherwise.” MCR 7.305(C)(7)(a). Whether it did so wittingly or unwittingly, the Court 

of Appeals appears to have ordered this case to proceed despite the filing of an 

application in our Court when the Court of Appeals gave its May 29, 2020 order 

immediate effect.4 

Courts decide legal questions that arise in the cases that come before us according 

to the rule of law. One hopes that this great principle—essential to any free society, 

including ours—will not itself become yet another casualty of COVID-19.5

 

4

It is not clear to me whether MCR 7.305(C)(7) authorizes the Court of Appeals to lift 

the automatic stay once a case has reached our Court (or whether the Court of Appeals’ 

order was sufficient to do so, since it did not even reference this rule).

5

I am reminded of the famous exchange between Sir Thomas More and William Roper 

in A Man for All Seasons:

ROPER So now you’d give the Devil benefit of law!

MORE Yes. What would you do? Cut a great road through the 

law to get after the Devil?

ROPER I’d cut down every law in England to do that!

MORE Oh? And when the last law was down, and the Devil 

turned round on you—where would you hide, Roper, 

the laws all being flat? This country’s planted thick 

with laws from coast to coast—man’s laws, not God’s—

and if you cut them down—and you’re just the man to 

do it—d’you really think you could stand upright in the 

winds that would blow then? Yes, I’d give the Devil 

benefit of law, for my own safety’s sake. [Bolt, A Man 

for All Seasons (New York: Vintage Books, 1995), p 66 

(stage directions omitted).]