COA 371026 MOORE MURPHY HOSPITALITY LLC V HEALTH DEPARTMENT OF NORTHWEST MI Opinion - Per Curiam - Unpublished 12/22/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
MOORE MURPHY HOSPITALITY, LLC, doing
business as IRON PIG SMOKEHOUSE,
Plaintiff-Appellant,
UNPUBLISHED
December 22, 2025
1:35 PM
V No. 371026
Otsego Circuit Court
HEALTH DEPARTMENT OF NORTHWEST
MICHIGAN,
LC No. 2023-019393-CZ
Defendant-Appellee.
Before: SWARTZLE, P.J., and O’BRIEN and BAZZI, JJ.
PER CURIAM.
In this declaratory judgment action, plaintiff, Moore Murphy Hospitality, LLC, doing
business as Iron Pig Smokehouse, appeals as of right the trial court’s opinion and order granting
summary disposition in favor of defendant, the Health Department of Northwest Michigan, under
MCR 2.116(C)(10) (no genuine issue of material fact), regarding plaintiff’s challenge to the
constitutionality of MCL 333.2451 of the Public Health Code, MCL 333.1101 et seq. We reverse
the trial court’s determination that the issue was not moot, vacate the portion of the trial court’s
opinion ruling on the merits of the constitutionality of MCL 333.2451, and remand for further
proceedings.
Plaintiff operates a barbeque restaurant, the Iron Pig, in Gaylord, Michigan, which was
subject to an emergency order defendant entered in November 2020 in response to the coronavirus
(COVID-19) pandemic. In late 2023, plaintiff filed the instant lawsuit challenging, in part, the
constitutionality of MCL 333.2451, on which the subject order was partially based, contending
that the statute violated separation-of-powers principles. Although the emergency COVID-19
order underlying the litigation had been rescinded, the trial court determined that plaintiff’s
declaratory judgment action was not moot on the basis of this Court’s decision in T & V Assoc v
Director of Dep’t of Health & Human Servs, 347 Mich App 486; 15 NW3d 313 (2023), and it
reached the merits of plaintiff’s claim.

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After issuance of the trial court’s order, the Michigan Supreme Court peremptorily reversed
this Court’s decision in T & V, which likewise involved a long-since rescinded emergency COVID-
19 order issued under another provision of the Public Health Code. T & V Assoc v Director of
Dep’t of Health & Human Servs, ___Mich___, ___; 12 NW3d 594, 596 (2024). The Michigan
Supreme Court determined that this Court had erred by concluding that the case was not moot,
reasoning that “the instant case presents nothing but abstract questions and does not rest on existing
facts or rights,” and therefore that “[a] judgment would have no practical effect on an existing
controversy.” Id. The Court further explained that the exception to the mootness doctrine for
when an issue is both of public significance, and likely to recur while otherwise evading judicial
review, was inapplicable because “the COVID-19 emergency has ended, and there are . . .more
effective treatments available,” and the issuance of a similar order was unlikely. Id.
The same analysis applies in the instant matter. There is no dispute that the authority under
which defendant issued the contested order, MCL 333.2451, was rescinded before plaintiff
commenced this action. It follows that it was impossible for the trial court, and now for this Court,
to grant plaintiff any relief, because plaintiff presently continues to operate its Iron Pig restaurant
unabated. Like the trial court, this Court cannot undo, or otherwise involve itself in the
enforcement of, a public health order that no longer exists. Further, as in T & V, circumstances
related to COVID-19 have drastically changed since defendant issued the subject order, such that
COVID-19 no longer presents an urgently pressing public health crisis. And, as in T & V, it is
merely a hypothetical possibility that a similar order may issue again one day, the mere “possibility
that an issue will recur is not sufficient.” Id.
Accordingly, plaintiff’s claim for declaratory relief to the effect that MCL 333.2451 is
unconstitutional was, and remains, moot. We therefore reverse the trial court’s determination that
plaintiff’s action was not moot, and vacate the portion of the trial court’s decision ruling on the
constitutionality of MCL 333.2451.
Vacated in part, reversed in part and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Mariam S. Bazzi

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