Appeals Panel: Suit Challenging COVID Orders Moot
A Michigan Court of Appeals panel held in December that an Otsego County barbecue restaurant’s lawsuit challenging the local health department’s pandemic-related orders is moot.
Judge Brock Swartzle concurred in the judgment, but he would have addressed Moore Murphy Hospitality’s claims challenging the constitutionality of the provision which authorized local health departments to issue orders regarding an “imminent danger” to public health.
“… Because any decision by this panel on the merits of those claims would be summarily vacated by our Supreme Court, per its order in T & V Assoc. v. Director of Health & Human Services … there is little to be gained by this panel reaching the merits,” he noted. “But make no mistake, this is an unjust state of affairs.”
In T & V, the high court dismissed a catering company’s lawsuit challenging the state health director’s now defunct pandemic orders limiting restaurant operations to 50 percent occupancy and closing at 10 p.m., holding the issue was moot since the health orders were rescinded.
Swartzle believes the constitutionality of the relevant statute “was unquestionably a matter of public significance” and he took issue with the Supreme Court majority’s decision not to consider the merits of the claims because the emergency had ended, and because a similar order was unlikely.
Swartzle said individuals and businesses are “expected to follow the law and government emergencies” during a COVID-like pandemic, but if they challenge a law’s constitutionality when that emergency ends, the courts have said it’s moot, and that is a breach of society’s social contract.
“There will be more public-health emergencies in the future, as sure as the thunder follows the lightning,” he wrote. “We live in increasingly global, interconnected societies, with emerging biohazards and technologies for which we have few effective guardrails. …
“I am not as sanguine as the Supreme Court majority in T & V Assoc. that – at the moment – there is nothing to see here,” Swartzle added.
Senator Bayer Wants New State Panel Promoting Palliative Care Access
Sen. Rosemary Bayer (D-Keego Harbor) wants Michigan to have a 13-member task force dedicated to expanding public access to “palliative care,” the medical specialty dedicated to relieving the stress and symptoms of serious illnesses.
According to the Center to Advance Palliative Care, in 2014, around 90 million Americans lived with serious illness – a number expected to more than double over 25 years due to baby boomers aging. In 2010, the early use of palliative care among lung cancer patients was linked to them being less depressed and surviving 2.7 months longer.
Bayer’s proposal, SB 483 , passed in the Senate on Dec. 16 with no votes cast by Sens. Jon Bumstead (R-North Muskegon), Michele Hoitenga (R-Manton) and Jim Runestad (R-White Lake). It now sits on the House Government Operations Committee.
“Too often, seriously ill people spend long stretches of their lives in pain and confusion and isolation. They could instead be surrounded by care and compassion and love. Palliative care does that by complementing treatment, managing symptoms and providing support tailored to each patient’s needs,” Bayer said to the Senate Health Policy Committee in early November.
She explained that the task force would be composed of clinical experts, patient representatives, insurers and similar industry leaders. Together, they would develop “measurable strategies” to expand access and reimbursement models for palliative care.
Laura Haynes, the president of the Michigan HomeCare and Hospice Association, described the medical specialty as “deeply needed, but not yet uniformly available across our state.”
“We know from experience that rural access remains a major challenge with palliative care. Many smaller communities have limited to no access to this care,” Haynes said last month. “Palliative care is about quality of life. It’s about helping people (live) as possible, for as long as possible, wherever they call home.”
Haynes illustrated how similar councils are operating in Texas, Maryland and Maine. In Maine specifically, she said, the council conducted a statewide needs assessment, helping design a state Medicaid benefit for the care.
Another supporter of SB 483 was Dr. Erin Young, the associate program director of the Hospice and Palliative Care Fellowship at Trinity Health Grand Rapids.
While hospice care is for individuals with limited life expectancy, Young explained, palliative care can serve those with possibly life-limiting illnesses who want “better symptom management.” In her own practice, she listed how care can take place in a general outpatient clinic, a clinic embedded inside a cancer center and “home community visits.”
In October 2020, the National Library of Medicine published a report that, based on studies conducted from 2008 and 2018, palliative care for patients diagnosed with cancer reduced healthcare costs by $1,285 to $20,719 when received in the inpatient setting. When accessed in the home-based setting, costs dropped by $4,258.
An opponent was April Donovan, an Upper Peninsula resident whose mother, Twila Apger, died at 84 years old while receiving hospice care at the start of 2020. Donavan claimed that medical records were falsified to place her mother in hospice care while she was in guardianship.
Donovan said when she asked for her mother’s autopsy, no one would tell her where her body was.
“It’s a long story, but in my opinion, there was fraud and her death was hastened by using palliative sedation when she was still talking, eating, drinking, and wasn’t in pain prior to this,” Donovan said. “Before expanding advisory structures, Michigan should first focus on auditing existing hospice programs, strengthening patient rights, and giving families a way to report harm and receive answers – ensuring that (families’) voices are heard and respected.”
She said without safeguards, another state panel could “simply add bureaucracy while the same problems continue.”
Cannabis Group Appeals Ruling Upholding State’s 24% Cannabis Tax
The state’s leading cannabis trade association filed an appeal of a ruling upholding the state’s 24% cannabis tax in December.
A spokesperson for the Michigan Cannabis Industry Association (MCIA) said the appeal is intended to protect the will of Michigan voters.
“We stand by our belief that the Court of Claims did not make the right call when it issued an opinion that declined to block the Michigan Legislature’s unconstitutional 24% wholesale tax on cannabis from going into effect on New Year’s Day,” said MCIA spokesperson Rose Tantraphol.
“Our filing requests that the Court of Appeals take up our lawsuit, which we continue to believe is an exceptionally strong case on the merits,” she added. “The 24% wholesale tax violates the will of the voters who approved the 2018 citizen ballot initiative on cannabis, and we will not back down from fighting for the will of the people in court.”
The MCIA asked the Michigan Court of Appeals to immediately consider the appeal as the wholesale tax is set to go into effect Jan. 1.
The MCIA and the Harrison Township-based Holistic Research Group filed separate lawsuits challenging the tax, but the court consolidated the cases.
Earlier this month, Court of Claims Judge Sima Patel denied the plaintiffs’ request for a preliminary injunction blocking implementation of the tax.
MCIA wants the tax struck in its entirety, arguing the rushed and chaotic late-night process that led to the tax occurred in violation of several constitutional provisions.
Tantraphol said it’s important the appeal is moved to the Court of Appeals and expedited, because waiting for a trial would cause unnecessary delay for the Court of Appeals to consider these important issues. Any delay in reaching an ultimate decision harms the industry, which is likely to face this unconstitutional wholesale tax until then.
“The stakes are incredibly high,” Tantraphol said. “The Michigan cannabis industry has been an economic engine for our state since voters legalized marijuana in 2018.
“Our industry has created 47,000 new jobs, pumped $331 million annually to schools, roads, and other public priorities through the 10% excise tax we collect, and generated $188 million in annual sales taxes. This unconstitutional move by the Legislature jeopardizes all of that,” Tantraphol said, noting that one cannabis operation in Webberville has already announced it will close, while another business has told MiCIA that it will close soon.
One business in the Upper Peninsula permanently laid off 61 employees last week, Tantraphol noted.
State Rep Wants To Crack Down On Foreign Organ Harvesting
A state representative wants to prohibit insurers and Medicaid from covering organ transplants performed in or using organs sourced from countries that engage in forced organ harvesting, specifically China.
Rep. Jennifer Wortz (R-Quincy) said her HB 5406 , which was referred to the Committee on Insurance, would draw “a clear line” that says Michigan “will not tolerate these atrocities.”
“This legislation ensures that no Michigan dollars are unintentionally funding horrific human rights abuses overseas,” Wortz said.
House Republicans said peer-reviewed research documents credible evidence that China permits the forcible harvesting of organs from living donors and cited a 2022 study published in the American Journal of Transplantation, in which the authors note their findings “strongly suggest that physicians in the People’s Republic of China have participated in executions” of prisoners “by organ removal.”
That article claims the authors reviewed 2,838 papers drawn from a dataset of Chinese-language transplant publications and found that 71 reports showed “that brain death could not have properly been declared.”
Rather, the authors noted, “the removal of the heart during organ procurement must have been the proximate cause of the donor’s death.”
Wortz said her bill would prohibit insurers and Medicaid from covering transplant surgeries using organs originating from any country, including China, determined to have participated in forced organ harvesting.
Those determinations would be made by Michigan Department of Health and Human Services (MDHHS) Director Elizabeth Hertel, according to HB 5406 .
A spokesperson for MDHHS said the department has not yet reviewed the proposed legislation and could not speak about any process for making determinations as required in the bill.
“Organ transplantation should save lives, not end a life through forced exploitation,” Wortz said. “This bill ensures Michigan’s health care system is not complicit in practices that violate basic human rights.”
Five other states – Arizona, Utah, Idaho, Texas and Tennessee – have enacted similar restrictions. Legislation is also currently pending in Wisconsin.
U.S. Rep. Chris Smith (R-NJ) authored legislation, Stop Forced Organ Harvesting Act of 2025 (HR 1503), in February, which requires the president to impose sanctions on individuals and entities involved in forced organ trafficking and authorizes the Department of State to deny or revoke the passports of individuals convicted of certain crimes related to organ trafficking.
The U.S. House passed Smith’s bill 406-1 in May. It was read twice in the U.S. Senate on May 8 and referred to the Committee on Foreign Relations.
Tobacco Package Missing Possession Repeal, Higher Taxes
The Mi Kids Tobacco Free Alliance chalked up a legislative win Thursday as Michigan senators headed home for the Holidays by passing legislation requiring stores that sell tobacco to obtain a state license, a move designed to stop the product’s sale to kids.
How bad is it out there?
Minou Jones, founder of Making It Count and chair of the Detroit Wayne Oakland Tobacco Free Coalition, reported that “seven out of 10 retailers are willing to sell tobacco to a minor.
“That’s unacceptable, and it’s not just happening in Detroit. It is a problem across the state,” Jones said.
However, a piece of the legislative package didn’t get put on the board. The Tobacco Free Alliance wants to lift any penalties against minors for illegally purchasing vapes, cigarettes and the like.
“Penalties for possession are ineffective,” Jones said. “They don’t work. If they worked we would not be in the boat we are in right now.”
But the vote on that was delayed because of strong opposition from Sen. Joseph Bellino JR. (R-Monroe), who said he thinks 19-year-olds should not get off scot-free when it comes to efforts to curb their smoking habit.
He was working with Senate Majority Floor Leader Sam Singh (D-East Lansing) on blocking that piece of the measure.
Another element missing from the package is a tax increase.
Research shows that as tobacco taxes rise, smoking decreases. Currently in Michigan, 13% of adults smoke while 17% of high school kids use tobacco products, including 16% of girls and 7% of boys. Another 14% use e-cigarettes, based on a 2023 state survey conducted by the state health department.
Two years ago, Gov. Gretchen Whitmer encouraged lawmakers to move on higher taxes on kids smoking.
“I’m not leading on that,” she said at the time, “but if that is something the Legislature wanted to send to my desk. I’d have a conversation about it.”
She is concerned that these vaping products are being marketed to young people, and they’re told, “it’s healthier, and then they get hooked . . . we have created an addiction and health consequences for your people.”
Pressed on whether she would sign the legislation, she demurred, saying, “I’m open to it. Get the bill drafted and turn it in, and we’ll negotiate,” she suggested.
But the Alliance concedes the votes are not there.
“Yeah. There’s just not the appetite for it right now,” Jones told TV-6 News Lansing. “I hope those things will change. There’s enough blame on both sides of the aisle.”