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

T & V ASSOCIATES, INC d/b/a RIVER CREST

CATERING

,

Plaintiff

- Appell ant

, FOR PUBLICATION June 29, 2023

v No. 361 727
Court of Claims No.

D IRECTOR OF HEALTH AND HUMAN

SERVICES

, 21

- 000075

- MM

Defendant

- Appell ee

.

Before: B OONSTRA

, P .J., and G A DOLA and Y ATES , JJ.

Y ATES

, J. ( dissenting ).

For far too long, i n courts all across this country, the COVID

- 19 wars have raged on despite the fact that nearly every governmental authority at the federal, state, and local levels has declared

an end to the COVID

- 19 emergency. The overheated rhetoric in briefs and oral arguments suggests that the remaining COVID

- 19 disputes on court dockets are sacred causes, rather than mere court cases, and the litigants and attorneys in these disputes seem determined to keep these battles going endlessly. But it doesn’t have to be this way. We judges have the power and, in my vi ew, the duty

under the mootness doctrine to dismiss the combatants from the COVID wars and bring down the curtain on this chapter in our history. Because the majority has decided instead to resolve the case before us on the merits, I dissent.

I. THE CONT EXT OF THE DISPUTE

As the majority accurately notes, the facts of this case are essentially undisputed. Similarly

, the regulatory regime at issue here is easy to describe. S hortly after our Supreme Court ruled that the Governor lacked statutory authority to unilaterally prescribe protective measures to address the

COVID

- 19 emergency, In re Certified Questions From United States Dist Court , 506 Mich 332; 958 NW2d 1 (2020), the Director of the Department of Health and Human Services (the Director) picked up the ball and ran with it, issuing regulatory measures under MCL 333.2253 to combat the spread of COVID

- 19. For example , on March 19, 2021, the Director issued an “Emergency Order- 2

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under MCL 333.2 253

– Gatherings and Face Mask Order” (the Order), which has been challenged by plaintiff, T & V Associates, Inc. (T&V)

, in this case.

T&V alleged that it had operated a catering service and banquet facility in Oakland County for many years. As a matter of course, its b anquets involved more than 100 guests and lasted well beyond 11:00 p.m. That mattered because the Order from the Director barred “[g]atherings . . . at food service establishments . . . offering indoor dining” that involved more than “100 persons” or

took place “between the hours of 11:00 PM and 4:00 AM.” Thus, T&V filed this action requesting a declaratory judgment that MCL 333.2253 constitutes an unconstitutional delegation of legislative authority and a violation of T&V’s constitutional rights to proce dural and substantive due process. Consequently , T&V’s constitutional challenge was based on the notion that it needed declaratory

relief under MCR 2.605(A)(1) to “ guide [ its ] future conduct in order to preserve legal rights[,]” Int’l Union, United Auto, Aerospace & Agricultural Implement Workers of America v Central

Mich Univ Trustees , 295 Mich App 486, 495; 815 NW2d 132 (2012), rather than com pensatory damages to account for economic harm it had suffered.

T&V’s demand for declaratory relief to guide its future conduct seemed misplaced because, as the majority notes, T&V “has closed its banquet facility” and ceased its commercial operations. Beyond that , T&V’s constitutional challenge to the Director’s Order issued under MCL 333. 225 3 seemed unnecessary b ecause our Legislature amended that statute after this controversy arose

, s ee 2022 PA 274 (effective March 29, 2023), and the Director rescinded the O rder at issue here. Thus, any future regulatory impingement on T&V’s rights would necessarily be promulga ted under the

new version of MCL 333.2253, rather than the earlier version on which the Director’s Order rested. Despite these warning signs, the Court of Claims and the majority on this appeal chose to dive into the turbulent waters of COVID litigation b y resolving T&V’s constitutional claims on the merits. That approach to this case plainly contravenes the mootness doctrine.

II. THE MOOTNESS DO CTRINE MANDATES DISM ISSAL

For a host of reasons, I believe this case is as moot as moot can be. 1 “A moot cas e presents ‘nothing but abstract questions of law which do not rest upon existing facts or rights.’ ” TM v MZ

, 501 Mich 312, 317; 916 NW2d 473 (2018). “It involves a case in which a judgment ‘cannot have any practical legal effect upon a then existing co ntroversy. ’ ” Id. I ssues of mootness “are questions

of law that are reviewed de novo

. ” Adams v Parole Bd , 340 Mich App 251, 259; 985 NW2d 881 (2022) . Because “[t]he question of mootness is a threshold issue that a court must address before it reaches substantive issues of a case[,]” In re Tchakarova , 328 Mich App 172, 178; 936 NW2d 863 (2019), we cannot take up the merits of T&V’s constitutional cla ims if the mootness doctrine

1 I realize that a panel of this Court, by a 2

- to

- 1 vote, denied the Director’s motion to dismiss this appeal as moot. T&V Assoc Inc v Dir of Health and Human Servs , unpublished order o f the Court of Appeals, entered September 19, 2022 (Docket No. 361727). But t hat order, “made without any reasoning provided,” does not preclude us from taking up the issue of mootness now. Reynolds v Bureau of State Lottery , 240 Mich App 84, 103

- 104; 61 0 NW2d 597 (2000).- 3

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applies. In c onsidering the im pact of the mootness doctrine here , we can follow a well

- worn path to the legally mandated approach of dismissal.

When we recently faced a challenge to a mask mandate issued in response to the CO VID

19 emergency but then rescinded before the dispute reached this Court , we reasoned that “the issue on appeal is technically moot for purposes of the instant litigation[

. ] ” Flynn v Ottawa Co Dep’t of

Pub Health , ___ Mich App ___, ___; ___ NW2d ___ (202 2) (Docket No. 359774); slip op at 4. I believe that statement in a published opinion binds us to the conclusion of mootness here. But we have consistently noted that m ootness is not an inflexible doctrine, and there are exceptions to the general rule re quiring dismissal when mootness exists

. Turunen v Dir of Dep’t of Nat’l Resources

, 336 Mich App 468, 4 80 ; 971 NW2d 20 (2021)

. Specifically, a moot issue will be reviewed if the issue is one of public significance that is “likely to recur, and yet likely to evade judicial review.” Flynn , ___ Mich App at ___; slip op at 4. Also, a moot issue may be reviewed under the voluntary cessation doctrine, which provides that:

“[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of

powe r to hear and determine the case, i.e., does not make the case moot. A controversy may remain to be settled in such circumstances, e.g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, toge ther with a public interest in having the legality of the practices settled, militates against a mootness conclusion.” [ Ed Subscription Serv, Inc v Am erican Ed Servs, Inc , 115 Mich App 413, 430; 320 NW2d 684 (1982) , quoting United

States v W T Grant Co , 3 45 US 629, 632; 73 S Ct 894; 97 L Ed 1303 (1953) .]

Under the voluntary cessation doctrine, “[t]he case may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.” W T Grant

Co , 345 US at 633 (quotation marks and citation omitted)

.

T he Director long ago rescinded the Order at issue here, so T&V’s challenge to th at Order

is moot because there is no meaningful relief we can grant and a ny judgment from this Court would have no practical effect on an existing controversy. See Flynn , ___ Mich App at ___; slip op at 4. A question remains, however, whether we should review the merits of th is case under the voluntary

cessation doctrine or bec ause the issues are likely to recur, yet evade judicial review. I cannot find that either of those two exceptions applies in this case.

A. VOLUNTARY CESSAT ION

In considering voluntary cessation as a basis for reaching the merits in this case, this Court

must begin by acknowledging that, no later than June 22, 2021, all restrictions on indoor gatherings and dining were rescinded. That w as more than two years ago , and t here is nothing in the record to suggest that the Director rescinded the Order at issue here in response to T&V’s lawsuit . C f.
Resurrection Sch v Hertel , 35 F4th 524, 529 (CA 6, 2022) . There is a presumption of good faith- 4

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by governmental actors, see Brach v Newsom , 38 F4th 6, 12

- 14 (CA 9, 2022)

, 2 and the facts of this

case do not rebut tha t presumption. Under the voluntary cessation doctrine, a case is moot if “ the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated.”

W T Grant Co , 345 US at 633 (quotation marks and citation omitted) . Given t he Director’s good

faith rescission of the Order two years ago, coupled with the declaration of the end of the COVID

19 emergency by federal and Michigan officials alike, there remains no reasonable expectation of the reinstitution of the Order challenged in this case.

The majority brushes aside mootness concerns, contending that “plaintiff continues to be a banquet and catering corporation and MCL 333.2253 continues to authorize [the Director] to issue emergency orders.” I disagree with both of those con tentions. First, T&V shut down its operations many months ago and no longer conducts any banquet business. But in its reply brief, T&V insists that it was forced out of business by the Director’s Order and it might return to business if only it

can obtai n a favorable ruling from this Court. To accept this argle

- bargle as a persuasive response to a mootness argument is to drain the mootness doctrine of all meaning. Nothing now in place as a result of the Director’s actions prevents T&V from resuming its catering business, so nothing in this record excepts this case from the application of the mootness doctrine. Second, our Legislature amended MCL 333.2253 during the pendency of this case, see 2022 PA 274 (effective March 29, 2023), 3 so it is now literally impossible for the Director to invoke the challenged version of MCL 333.2253 to once again impose the restrictions contested by T&V. Thus, the voluntary cessation exception to the mootness doctrine has no application here.

B. LIKE LY TO RECUR, YET EVA D E JUDICIAL REVIEW

T he “likely to recur, and yet likely to evade judicial review” exception to the general rule

of mootness manifestly does not apply here . To determine whether review of an issue is warranted under that exception, we must consider whether the issue “(1) is of public significance, (2) is likely to recur, and (3) may evade judicial review[.]” Gleason v Kincaid , 323 Mich App 308, 315; 917 NW2d 685 (2018) . There must exist “a reasonable expectation that the publicly sig nificant alleged wrong will recur yet escape judicial review[.]” Id

. Even assuming, for the sake of argument, that T&V’s challenge to the Order presents an issue of public significance, see Flynn , ___ Mich App

at ___; slip op at 4, there is no reasonable expectation that any alleged wrong that flowed from the

Order will recur, yet escape judicial review.

With regard to recurrence, the Director rescinded the challenged Order more than two years ago. And since that Order was rescinded, the federal governm ent and the State of Michigan have

both declared an end to the COVID

- 19 eme rg ency. Moreover, our Legislature has since amended

2 Although nonbinding, decisions of lower federal courts may be considered for their persuasive

value. In re Estate of Vansach , 324 Mich App 371, 388 n 8; 922 NW2d 136 (2018)

.

3 The amendment cabined the authority of the Director to “prohibit the gathering of people for any purpose” by adding two restrictions set forth in MCL 333.2253(4) and ( 5 ) and expressly subjecting the Director’s authority under MCL 333.2253(1) to those rest rictions. To be sure, neither of those

restrictions deal s with the operations of restaurants and banquet facilities, but the amendment ha s a significant impact on the Director’s authority.- 5

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MCL 333.2253, thereby significantly modifying the statute on which the Director relied in issuing

the Order. So the issue here will recur if the Director decides to rely on an outdated version of a statute to promulgate an order to address a problem that Michigan no longer regards as a problem. That seems highly unlikely, to say the least.

Finally, T&V overlooks a serious flaw i n its pleadings to argue that its challenge to orders issued under MCL 333.2253 will likely evade review. T&V’s original complaint and its amended complaint request declaratory relief, but not compensatory damages. To be sure, T&V’s pleadings allege in p assing that the company “lost enormous amounts of money” because of the Order, but neither the complaint nor the amended complaint quantifies those purported losses or even requests compensatory relief in the form of money damages. Instead, each of the co mplaints is styled from start to finish as a request “for declaratory relief.” Unlike requests for declaratory relief, “ ‘[c]laims for damages are largely able to avoid mootness challenges.’ ” Duckett v Solky , ___ Mich App ___, ___; ___ NW2d ___ (2022) ( Docket No. 357346); slip op at 12. By requesting declaratory relief, but not money damages, T&V put the mootness doctrine squarely in play in this case. In contrast, if a business aggrieved by the Director’s Order files an action seeking money damages, m ootness almost certainly will not present a bar to th at claim, which thereby will not evade judicial review. But this is not such a case, so T&V’s challenge to the Director’s Order is subject to the mootness doctrine, which bars T&V’s constitutional claim s. Because the majority has decided not to apply the mootness doctrine here to dismiss T&V’s claims, I dissent.

/s/ Christopher P. Yates