County health officers don’t need approval from elected officials to issue orders, the Michigan Court of Appeals said in a precedent-setting decision related to protests over COVID-19 school mask mandates.
Mask orders were controversial when Gov. Gretchen Whitmer’s administration changed course and left key decisions to local health departments. The result: blistering criticism and tense confrontations at county board meetings in some parts of Michigan.
Critics had pleaded with elected commissioners to intervene, carrying signs that said, “Our Kids Our Choice” and “Parents Know Best!”
There is nothing in state law that “requires a local health officer to give notice, allow comment or obtain approval by a board of commissioners before issuing an order,” appeals court Judge Jane Markey wrote in a 3-0 opinion Thursday.
The case involved the Ottawa County health officer who required masks for kids, through 6th grade, at the start of the 2021-22 school year, until COVID-19 vaccines were widely available or other conditions were met.
Chief Judge Elizabeth Gleicher wasn’t swayed by attorney Jonathan Koch’s argument that an “order” is akin to a health department “regulation,” which would require county board approval.
“You don’t like the idea that a public health official can issue an emergency order in a time of an epidemic. That’s an argument, but it is the law at the moment,” Gleicher said at a hearing last week.
Ottawa commissioners did not upset Lisa Stefanovsky’s order in 2021, and there is no longer a mask mandate in the western Michigan county. But the appeals court said it still was important to issue an opinion and set a legal standard.
“Although a pandemic-related order may not be likely to recur, the issuance of some type of emergency order by the health officer is likely to recur in the future,” the court said.