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Michigan Judge Sides With Barber.

We’ve written several times about Owosso, Michigan Karl Manke who defied the “stay at home” orders of Michigan Governor Gretchen Whitmer in order to make a living and pay his bills.

After the State tried to close Manke’s shop down, the State applied for a “cease and desist order” which would force the closure of the shop. Circuit Court Judge Matthew Stewart refused to issue the order saying he wanted to hold a full hearing.

As the State was shot down and could not get the cease and desist order, the Michigan Department of Licensing and Regulatory Affairs [LARA] suspended Manke’s license without cause or reason. At the same time, the State went to the Appeals Court asking that they order Judge Stewart to rule on the cease and desist order sooner rather than later.

The Court of Appeals said Judge Stewart needed to issue a ruling by Thursday, May 22, 2020.

In a classic case of “be careful what you wish for,” Stewart did indeed issue his ruling and formally denied the State its coveted “cease and desist” order against Manke.

Stewart said the decision was a “close call” in an opinion issued Thursday.

He said it makes sense at face value that putting people close together for prolonged amounts of time poses a public health risk, but the attorney general’s office failed to say how Manke’s shop was a risk.

Although Michigan Chief Medical Executive Dr. Joneigh Khaldun said in an affidavit that Manke’s shop was a public health threat, Stewart said she gave no reasons why.

“(The attorney general) has not presented any studies underlying the doctor’s conclusion. (The attorney general) has not shown any nexus between the cutting of hair and an increased risk of transmission,” Stewart wrote in his opinion. “(The attorney general’s) filings rest more on general facts about COVID-19 than specific practices or conditions at (Manke’s) business.”

Stewart said, while the attorney general’s office maintains that “every second (Manke) operates constitutes a new irreparable injury,” the fact that the office sought a civil remedy instead of a criminal one — Manke could be arrested for violating the stay-home order — detracted from its argument.

The State Attorney’s Office tried to make this defeat a victory.

Attorney general’s office spokesperson Ryan Jarvi said the office plans to appeal Stewart’s decision.

“The Court of Appeals retained jurisdiction over this case when it ordered the trial court to hold a hearing so the Court of Appeals is where this matter will ultimately be decided. We look forward to having our day in that court,” the office said in a statement.

The thing to remember is that in order to win an appeal, the State must show that Judge Stewart made a reversible error. That is going to be difficult to do in that the Appeals Court can only rule on the evidence that was presented at the original hearing. The State doesn’t get to say “here’s more evidence that the Chief Medical Executive was correct.” Only what’s on the record is up for discussion at the Appeals Court.

(We suspect that the Attorney General’s Office, furious at the decision is trying to find a way to suspend Judge Stewart’s law license or something like that. (That’s sarcasm for the sarcastically impaired.)

Michigan State Attorney General Dana Nessel has been less than gracious as the people of the state and country have rallied around Manke:

Nessel personally attacked Manke last week, questioning his motives for wanting to open his barbershop.

“Mr. Manke, he’s not a hero to me,” Nessel said. “He’s not a patriot. A patriot is a person that fights all enemies, foreign and domestic, and does everything possible to protect his fellow countrymen and countrywomen. And, to me, Mr. Manke is doing just the opposite of that, and he’s being selfish in his behavior in that what he’s doing is allowing the virus to spread.”

Nessel is correct. A patriot is one that fights all enemies, both foreign and domestic. What she doesn’t get is that those who try to take the rights of people away so utterly completely and in contempt of the Constitution, are the enemy. They are the enemy of the people and the people’s rights.

We have long said that the legal precedence is that States that pass laws giving the Executive Branch of government can make rules that temporarily tread lightly on some rights in order to stop the spread of a disease.

What is being seen now is that orders from governors in many states are so overly broad that Courts are using their power of judicial review to say to the Executive Branch, “your orders don’t tread lightly, they tread, trample and kill the rights of people. Your orders are voided.”

In Michigan, this seems to have gone far beyond any argument that Nessel and Governor Whitmer may have about “safety.”

This is becoming a battle of “how dare you defy us and power of the State!”

We keep hoping and praying this won’t become violent. We should all hope that.

The bottom line is that Manke has won at the Circuit Court and the State is oh-fer-two.

We’d also like people to consider this:

In that Governor Whitmer declared that “non-essential” people need to stay at home and has now extended that order through June 12 and her declared “state of emergency” through June 19th, can anyone really claim that the legal fight over a 77 year old man cutting hair causing state employees to prepare arguments, legal briefs, and statements is really what Whitmer would consider “essential business?”

We are having a hard time believing that this attack by government employees who are being paid and making a whole heck of a lot more than Manke who only wanted to pay his bills, is somehow “essential.”

Then again, what we are seeing from many governors is the attitude of “don’t do as we do, do as we say you miserable peons.”



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