956 N.W.2d 569
Mich. Ct. App.2020Background
- DHHS promulgated emergency rules (with the Governor’s concurrence) under MCL 24.248(1) that largely ban sale, distribution, advertising, and possession-with-intent-to-sell of flavored nicotine vapor products to address a youth vaping "crisis."
- Plaintiffs (906 Vapor/Marc Slis and A Clean Cigarette Corp.) are Michigan retailers claiming the rules destroy inventory, force store closures, and cause irreparable loss of goodwill and business.
- Court of Claims held evidentiary hearings, found plaintiffs would suffer irreparable harm, concluded plaintiffs were likely to succeed on the merits because no emergency justified bypassing APA procedures, and entered a preliminary injunction enjoining enforcement.
- Defendants appealed; main legal questions concerned (a) whether courts may review an agency/Governor emergency finding under MCL 24.248(1), and (b) the appropriate level of deference to give agency fact-finding in that context.
- The Court of Appeals affirmed: it held courts may review emergency-rule findings, that courts must accord due deference (but not unquestioning deference) to agency/Governor fact-finding, and that on the record plaintiffs were likely to prevail and would suffer irreparable harm.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. May courts review validity of emergency rules under MCL 24.248 and MCL 24.264? | Slis / ACC: Yes—MCL 24.264 permits declaratory challenges to agency rules, including emergency rules. | State: Emergency finding is executive/administrative and not subject to judicial second-guessing. | Held: Courts may review emergency rules under MCL 24.264; judicial review is permitted. |
| 2. What standard of review applies to an agency/Governor emergency finding? | Plaintiffs: The court should independently review whether the statutory emergency threshold was met. | Defendants: Give great weight/deference to agency and Governor; judicial review should be limited. | Held: Apply due deference to agency/Governor fact‑finding (respect expertise) but not absolute deference; courts may set aside findings that are unreasonable. |
| 3. Did plaintiffs demonstrate a likelihood of success on the merits that the emergency finding was unjustified? | Plaintiffs: DHHS failed to show delay to follow APA procedures would materially worsen public health; evidence was insufficiently tied to the period of delay. | Defendants: Youth vaping is a public-health emergency; immediate action was required and supported by studies. | Held: Even with due deference, the record lacked evidence showing that delay to follow APA procedures would meaningfully worsen the public health; plaintiffs were likely to succeed at this preliminary stage. |
| 4. Did plaintiffs show irreparable harm, balancing of harms, and public-interest considerations to justify a preliminary injunction? | Plaintiffs: Business collapse, inventory loss, and goodwill are irreparable; harms to plaintiffs outweigh any speculative harm from enjoining the ban. | Defendants: Injunction prevents DHHS from protecting public health and youth from addiction; public interest favors enforcement. | Held: Court of Claims did not clearly err — plaintiffs showed irreparable harm and balancing favored injunction; public-interest factor was neutral. |
Key Cases Cited
- Mich State AFL-CIO v. Secretary of State, 230 Mich. App. 1 (1998) (emergency-rule review and limits on invoking APA emergency procedures)
- Mich Petroleum Ass'n v. State Fire Safety Bd., 124 Mich. App. 187 (1983) (discusses "substantial basis"/abuse-of-discretion approaches to emergency findings)
- Pontiac Fire Fighters Union Local 376 v. Pontiac, 482 Mich. 1 (2008) (sets factors and standards governing preliminary injunctions)
- Mich Ass'n of Home Builders v. City of Troy, 504 Mich. 204 (2019) (statutory‑interpretation principles; apply plain meaning)
- Ins. Institute of Mich. v. Comm'r, Fin. & Ins. Servs., 486 Mich. 370 (2010) (three-part test for substantive rule validity)
- Detroit Symphony Orchestra v. City of Detroit, 393 Mich. 116 (1974) (discusses deference to administrative fact‑finding)