“There’s No ‘Public Health Exception’ to the Constitution,’ Attorney Wiseley says.”
Press Release
David Panian The Daily Telegram 1/27/2022
Mother sues Lenawee County Health Department, Blissfield schools over quarantine orders
ADRIAN — A mother is suing the Lenawee County Health Department and Blissfield Community Schools over COVID-19 policies that led to her daughters being quarantined at home though they were not ill.
Along with the health department and Blissfield school district, the lawsuit names Lenawee County Health Officer Martha Hall and Blissfield schools Superintendent Scott Riley as defendants.
In the lawsuit filed in Lenawee County Circuit Court, Hillsdale attorney Daren Wiseley, on behalf of Kimberly Blackmon, writes that Blackmon’s two daughters, who are in the sixth and eighth grades in Blissfield, have each had to quarantine twice so far during the 2021-22 school year due to being considered a close contact of someone who tested positive for COVID. One girl had to quarantine for 10 days each time, the other had her second quarantine time shortened when the school district switched to a new quarantine requirement. Neither girl has tested positive for or had symptoms of COVID-19.
“Children have suffered more than any other group from the unintended consequences of COVID-19 responses and yet they are in the safest category of persons,” the lawsuit says. “These children will never get the opportunities back to spend lost time with friends, learn in the classroom, or play in missed sporting events and concerts. The mental, social, and physical effects of quarantine are severe on children that are still developing these capabilities. Plaintiffs merely ask that healthy students are not punished in one-size-fits-all responses that provide little, if any, verifiable increase in safety to the very children they are purported to protect.”
Wiseley argues that:
Hall acted without an emergency order in place to let her set quarantine rules for local school districts.
The health department could not confirm or reasonably suspect the two girls had COVID-19 because they never tested positive for the virus or had COVID symptoms and therefor did not have authority to order them to quarantine under a Michigan administrative rule related to communicable diseases.
The health department does not have legal authority to implement quarantine protocols.
The family was not properly notified of the need to quarantine under the section of Michigan’s Public Health Code for hazardous communicable diseases.
Hall’s orders violated the separation of powers between the legislative and executive branches of government by "mandating newly established requirements under the guise of an emergency pandemic, i.e., students can be removed from school due to contact tracing and placed in quarantine even though they are otherwise healthy.”
The Michigan Legislature unconstitutionally delegated too much power to local health officers to issue orders during epidemics.
The family was denied due process by not providing for a hearing or other opportunity to appeal the quarantine orders.
The equal protection clause of the U.S. Constitution’s 14th Amendment has been violated by unvaccinated children having different quarantine criteria from vaccinated children.
Hall’s “unilateral and autocratic quarantine orders, issued by administrative fiat, failed to comply with any legal authority provided by Michigan law,” the lawsuit states. “These actions are completely contrary to the separation of powers that is core to a republican form of government.”
In his news release, Wiseley said, “Last time I checked my Constitution, I couldn’t find a ‘public health exception.’”
The lawsuit seeks judgments that the quarantine orders and protocols are unlawful and not enforceable, the Legislature unconstitutionally delegated too much authority to local health officers, and the plaintiff’s constitutional rights were violated. It also seeks an order to have the defendants pay the plaintiff’s legal fees.
Wiseley also sought an emergency temporary restraining order prohibiting Blackmon’s daughters from having to quarantine unless they test positive for COVID-19 and declaring that the section of the Public Health Code allowing health officers to issue emergency orders during an epidemic is unconstitutional and shall not be enforced.
According to circuit court records, Judge Michael R. Olsaver denied Wiseley’s request for the restraining order. A pretrial hearing is scheduled for April 25.
Riley said Wednesday he is aware of the lawsuit but declined to comment on it.
The Daily Telegram left a message for Hall seeking comment. It had not been returned by the print deadline Wednesday afternoon.
In a news release, Wiseley compared the lawsuit to two other court cases related to public health orders issued during the pandemic. One is the federal court case that led the Michigan Supreme Court to declare a law that Gov. Gretchen Whitmer relied upon to issue emergency orders early in the pandemic was unconstitutional because the court said the Legislature had delegated too much power to the governor. The other is a recent case in Otsego County in northern Lower Michigan involving a restaurant that had defied orders in 2020 to temporarily stop indoor dining as COVID-19 cases in Michigan were rising. Otsego County Circuit Judge Colin Hunter overturned a $5,000 fine against the Iron Pig Smokehouse in Gaylord.
Hunter said the law cited by the Michigan Health and Human Services Department to restrict dining was too broad. “The director possesses free rein to exercise a substantial part of our state and local legislative authority — including police powers — for an indefinite period of time, limited only by the director's determinations that an epidemic exists and that his actions are necessary,” the judge said.
Hunter’s ruling only applies in Otsego County, but the state asked Hunter to suspend his ruling or publicly clarify its impact over concerns the “general public” across Michigan will “attach more significance” to the judge’s remarks than they deserve.
“This court’s opinion ... comes at a very perilous moment,” Assistant Attorney General Darrin Fowler said in a court filing Jan. 20. "The omicron variant has hit Michigan hard, taxing our hospitals and threatening the lives of our most vulnerable residents.” Hunter exceeded his authority by hearing a dispute over a fine and stretching it to make a decision about the constitutionality of a state law, said Fowler, who added that an appeal was planned.
The judge declined to reconsider his opinion but said the parties could return to his court for additional arguments.
Hunter's decision has been celebrated around Michigan by critics who have filed lawsuits over mask orders, quarantines and other virus-related mandates and mostly lost.
“This case can also be used as a persuasive case anywhere in the state to basically say, ‘Hey judge, this judge in Otsego County made this ruling. We think you should do the same.’ ... Every win like this is a feather in our hat!” Jayme McElvany, organizer of the Let Them Play movement that argued against cancellation of high school sports over COVID-19 concerns, said on Facebook.
The Associated Press contributed to this report.
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