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 maskmandate 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. ElKhalil 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