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Thursday, May 14, 2020
By Michael Nichols
Categories: Michael J. Nichols
I have the “opera-man” song running circles in my head. The character created by Adam Sandler during his early 90’s run on SNL would have a field day with Michigan’s legal news during the week of May 11, 2020 (which is coincidentally the 21st anniversary of my membership in the bar).
From the din of fingernails crunching the keys of a macbook ... flying to try to figure out how to possibly deal with the unthinkable: a judge telling the attorney general “no” in response to her request to swoop in from the shadow of the capitol dome to the tiny town of Owosso and slam shut a BARBERSHOP ... emerges a hero who dares to re-open his house of hair in violation of EO 2020-69: meet “The Barber.”
Sandler would have his white handkerchief in his left-hand floating across the desk of weekend update to the tune of maybe “madame butterfly.” Can you hear the words? “Barber won’t close-oh-no; lawwww-lady moving to-and-fro; oh please oh judge-ieeeee; close his doors PLEASSEYYY.”
See, what happened is the “Barber of Owosso,” Mr. Karl Manke, a 77-year-old, well-spoken barber and author (see Chad Livengood’s feature on Wednesday May 13, 2020 in Crain’s Detroit Business), re-opened his shop during the week of May 4, 2020. Which day he actually re-opened is not exactly clear but we know that on Friday May 8, 2020, there are pictures of MSP troopers serving the barber of Owosso with notices to “abate” and serving him with misdemeanor appearance tickets, ostensibly under MCL 764.15.
The attorney general then waited an entire weekend-plus before going to court. She finally had assistant attorneys general file a complaint and motion for a temporary restraining order WITHOUT notice to the Barber of Owosso or his attorneys (this is called "Ex Parte"). She was criticized by the court for waiting several days to proclaim an emergency need for a restraining order, but then she went running to court without notice seeking an extraordinary order. Judge Stewart of the 35th Judicial Circuit Court in Shiawassee County then denied the A.G. her request.
So what did the A.G. do in response instead of putting her money where her mouth is? She did a complete end-run around the court appearance that all of us needed to have happen. An argument before a member of the judiciary, during which the attorneys for both sides of the argument make their case for the need, or needlessness of one or more executive order is what would have quelled the debate and perhaps forced one side or the other to conciliatory grounds. Instead, she coordinated with her assistant attorneys general to summarily suspend Mr. Manke’s state-issued license to cut hair – which is a necessary predicate to Mr. Manke accepting money in exchange for his services. The Order, embedded in a press release from the A.G. puffing her chest for this maneuver is here: https://tinyurl.com/ycnxkrkq.
The ability to suspend someone’s license to practice his or her craft without judicial review is because there are certain professions that are controlled by the Bureau of Professional Licensure, within the Licensing and Regulatory Affairs Agency (LARA). The person whose signature appears at the bottom of this Order is a civil servant, not elected as a judge, sheriff or any other office but a professional within state government. The director of the BPL is in fact, a long-serving Assistant Attorney General for the state of Michigan.
The Administrative Procedures Act gives the Barber the right to an immediate hearing when his license is suspended summarily ... once he is properly served. A summary suspension is like the administrative version of the ex parte motion for a temporary restraining order (TRO) that the A.G. sought in court. The big difference: it is the same branch of government that is ruling on a request from literally, a colleague.
Foremost, the Barber of Owosso must be served with the order suspending his license. His lawyer on the Executive Order infractions, David Kallman of Lansing, says that the Barber has not yet retained him on the licensing matter and so he is not authorized to accept service on behalf of his client. The question is to what extent the A.G. is going to go to place the magic piece of paper in his hand AND what she will do about it if he says “Nope. Not gonna stop my clippers with that, step aside while I slap a little barbasol on this customer."
The optics for the A.G. and by extension the governor, are so horrible. This crescendo of legal music is nowhere near harmonious and this act was probably not intentional at all but – this fight with the Barber is perhaps the tipping point for the acceptance among the citizenry of this very powerful set of tools that are being used by the governor to keep the citizenry healthy in the midst of COVID.
I can hear “Opera-man” now: “… respect for the governor’s-COVID-combat-program … BYE BUYYYIEEEEEEEEEE.”