Yet another lawsuit was recently filed against Michigan Governor, Gretchen Whitmer. This time the complaint was filed by Friske Orchards Farm Market Inc., a northern Michigan orchard in Ellsworth, near Charlevoix. According to the suit, the family-owned orchard has “received notice of legal action from local and state officials for failing to make customers and the firm’s 21 employees wear masks.” The lawsuit is an effort to push back against what the orchard owners say are unlawful and illegal executive orders. In addition to Whitmer, two state agencies and the local health department are also named as defendants.

Then-state Sen. Gretchen Whitmer delivering a speech in 2011. Image via Flickr/user:swskeptic. (CCA-BY-2.0).

David Kallman, the same attorney who represented Karl the barber who “challenged the governor’s business closure order earlier in the pandemic” and won, is representing Friske. He said, “Friske has been serving the community for three generations, and now faces the forced closure of its business for refusing to submit to unlawful and illegal executive orders.” He added, “This case is not about masks; it is about the abuse of power.”The suit was filed on August 5 and specifically targets four of Whitmer’s many executive orders, including “three requiring masks for employees, customers and people in enclosed spaces and another extending the state of emergency.” Friske argues the “orders are invalid and violate due process rights, the separation of powers, and the commerce clause.” The suit further states:"Plaintiffs want to take all reasonable steps to ensure the safety of their employees and customers. But the current state of affairs is a legal minefield for well-intentioned businesses."The case will be overseen by Judge Cynthia Stephens. At the moment, it is seeking a “preliminary injunction that would suspend Whitmer’s orders while the case is pending, as well as an ultimate judgment that rules the orders unlawful and strips state agencies and local health departments of the power to enforce the orders.” It argues that Whitmer “overstepped the penalties and enforcement mechanisms available to her under the state’s emergency management laws," and claims Whitmer “is operating illegally because she isn’t working with the Legislature.”The orchard was first threatened to enforce Whitmer’s orders back on July 20 and 21 by the Michigan Occupational Safety and Health Administration after the agency received reports that the orchard was failing to enforce the mask mandate by allowing customers and employees to choose whether they wanted to wear one or not. Then, on August 1, Friske was “served with a public health order by the Health Department of Northwest Michigan, naming the orchard an imminent danger to the health and lives of the public because it didn’t enforce the mask mandate.” As part of the order, the orchard was told it may lose its business license if it didn’t fall in line. The orchard said:"The stakes of this issue are extraordinarily high because MIOSHA, MDARD and Health Department’s penalties — if levied against businesses — are ruinous, not only financially but reputationally.”The lawsuit further argues that “the attempt to convert a violation of the mask mandate into a MIOSHA, health department or Agriculture Department violation exposes businesses to harsher penalties and a different hearing process than what is allowed for under the emergency management laws.” It added, “Defendant Whitmer is usurping the role and authority of the judicial branch with this brazen power grab. This is completely improper and unlawful…Michigan is under an unlawfully re-declared state of emergency, with the executive branch dictating the law and there is no end in sight.”This isn’t the first suit filed against the governor. In fact, the Legislature and other private businesses have filed civil suits challenging the legitimacy of the executive orders Whitmer has signed under the emergency management law.

Sources:

Northern Michigan orchard sues Whitmer over mask mandateNorthern Michigan Business Files Lawsuit Over Gov. Whitmer’s Mask Executive Order