STATE OF MICHIGAN

IN THE SUPREME COURT

Appeal from the Court of Appeals
(Stephen L. Borello, Amy R. Krause, and Brock A. Swartzle)

MICHIGAN DEPARTMENT OF APPELLEE’S MOTION FOR

HEALTH AND HUMAN SERVICES, IMMEDIATE CONSIDERATION AND
TO EXPEDITE PROCEEDINGS
Plaintiff/Appellee,
MSC No.:
-vs-
COA No.: 353607
KARL MANKE
Trial Court No.: 20-004700-CZ
Defendant/Appellee.
/
Kallman Legal Group, PLLC

David A. Kallman (P34200) Fadwa A. Hammoud (P74185)

Stephen P. Kallman (P75622) Solicitor General
KALLMAN LEGAL GROUP, PLLC Joseph E. Potchen (P49501)
Attorneys for Karl Manke Jason A. Geissler (P69322)
5600 W. Mount Hope Hwy. Andrea L. Moua (P83126)
Lansing, MI 48917 Assistant Attorneys General
(517) 322-3207 Attorneys for MDHHS
525 W. Ottawa St.
P.O. Box 30736
Lansing, MI 48909
(517) 335-7632

MOTION FOR IMMEDIATE CONSIDERATION

AND TO EXPEDITE PROCEEDINGS

NOW COMES the Defendant, KARL MANKE, by and through his attorneys, Kallman

Legal Group, PLLC, and respectfully asks this court to grant his Motion for Immediate

Consideration of, and to Expedite Proceedings on, his Emergency Application for Leave to

Appeal, pursuant to MCR 7.311(E), and states in support as follows:

1. MCR 7.311(E) states:

A party may move for immediate consideration of a motion or to

expedite any proceeding before the Court. The motion or an

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 accompanying affidavit must identify the manner of service of the
motion on the other parties and explain why immediate
consideration of the motion or expedited scheduling of the
proceeding is necessary. If the motion is granted, the Court will
schedule an earlier hearing or render an earlier decision on the
matter.

2. Mr. Manke incorporates herein all the allegations and statements contained in his

companion Emergency Application for Leave to Appeal.

3. Immediate consideration and expedited proceedings are necessary to prevent Mr.

Manke from being incarcerated and otherwise having his fundamental constitutional rights,

statutory rights, and economic rights violated on a daily basis.

4. The Court of Appeals split decision raises significant and substantial constitutional,
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statutory, legal, and factual issues of merit. There were numerous procedural and legal errors

committed in the Court of Appeals’ Opinion as delineated in the attached Application that must be

addressed.

5. The State’s actions against Mr. Manke all emanate from the unconstitutional and

illegal Executive Orders (EO) issued by Governor Whitmer since April 29, 2020. As noted by

Judge Swartzle:

The arguments raised in this case overlap with similar arguments in

other cases, see, e.g., Michigan House of Representatives v
Governor, Court of Claims, Docket No. 20-000079-MZ; Michigan
United for Liberty v Governor, Court of Claims, Docket No. 20-
000061-MZ. One of the most significant arguments is over the
question of the constitutional and statutory validity of the
Governor’s post-April 29, 2020, Executive Orders.

6. There are significant issues of merit (legal, statutory, and factual) in this appeal,

including, but not limited to:

A. The Court of Appeals violated MCR 7.211(C)(4) in that it has no authority to

peremptorily reverse Judge Stewart’s denial of a preliminary injunction unless it is a unanimous

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 decision of the motions panel. Judge Swartzle dissented so the decision was not unanimous. It is a

violation of the Court Rule to remand and order Judge Stewart to issue the preliminary injunction.

Therefore, the Court of Appeals is required to hold a full review on the merits of this case. As

Judge Swartzle stated in his dissent:

With respect to the merits, both parties raise important issues – in

my opinion, maybe the most jurisprudentially significant issues this
State has seen in years or decades.

B. The Court of Appeals committed clear legal error in its analysis of Mr. Manke’s

constitutional equal protection claim by incorrectly stating that Mr. Manke did not claim a

violation of any fundamental rights, and therefore, only a rational basis test applied. However,

Mr. Manke raised numerous constitutional claims under the rubric of equal protection, including
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a violation of the First Amendment, which requires a strict scrutiny analysis.

C. The Court of Appeals incorrectly dismissed Mr. Manke’s First Amendment claims

based upon United States v O’Brien, 391 US 367; 88 S Ct 1673; 20 L Ed2d 672 (1968). O’Brien

involved a criminal statute that did not include conduct that communicated a message. The more

applicable case is Holder v Humanitarian Law Project, 561 US 1 (2010), stating that conduct that

communicates a message requires a strict scrutiny analysis and O’Brien is inapplicable. It is

abundantly clear that Mr. Manke is communicating an important message in this case.

D. Mr. Manke raised numerous other constitutional violations and statutory violations

that the Court of Appeals summarily dismissed without any legal analysis or review of any kind.

See the attached Emergency Application for Leave to Appeal.

E. As Judge Swartzle further states, the action taken by the majority was done:

… without formal submission to a merits panel …, without oral

argument, without the opportunity for amici briefs, and without
unanimous vote by this motions panel. The majority’s order reads
more like an in-depth opinion of this Court issued by a merits panel,
rather than the type of summary order normally issued by a motions
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 panel. To my reading, the majority’s relief appears to be a
preemptory reversal, which seems procedurally irregular given that
the panel’s vote was not unanimous on this issue.

F. The claimed factual underpinnings in the Court of Appeals’ Opinion are not

supported by the evidence. Mere speculation and general information about COVID-19 does not

prove that Mr. Manke’s barbershop, specifically, is an imminent health threat.

7. There is no risk to the administration of justice posed by Mr. Manke’s request for

relief, and it is apparent that his seeking this relief and his appeal are not simply for delay, as can

be seen by the fact that he has promptly begun the appellate process.

8. If Mr. Manke is not granted the requested relief, he stands to suffer irreparable harm

for all the reasons as stated in the attached Emergency Application for Leave to Appeal.
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9. A copy of both this motion and the Emergency Application for Leave to Appeal

have been served electronically on the Attorney General’s office and representatives this same

date pursuant to MCR 2.107(C)(1). Therefore, both may be submitted to the Court immediately

upon filing.

10. The interests of justice, fairness, and due process require that Mr. Manke’s

Emergency Application for Leave to Appeal and motion be granted immediately and without

delay.

WHEREFORE, for all the reasons stated above, Mr. Manke respectfully requests this

Honorable Court grant his Motion for Immediate Consideration and to Expedite Proceedings; grant

his Emergency Application for Leave to Appeal and all relief requested therein; and grant such

other and further relief as is appropriate.

Respectfully submitted,

Dated: May 28, 2020. /s/ David A. Kallman

David A. Kallman (P34200)
Attorney for Mr. Manke
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