Dep't of Agric. & Rural Dev. v. Zante, Inc. (In re Pavlos-Hackney)

In re CONTEMPT OF PAVLOS-HACKNEY.

DEPARTMENT OF AGRICULTURE AND RURAL DEVELOPMENT, Plaintiff-Appellee, v. ZANTE, INC, d/b/a MARLENA'S BISTRO AND PIZZERIA, Defendant-Appellant, and MARLENA PAVLOS-HACKNEY, Appellant.

No. 357407

Court of Appeals of Michigan

October 20, 2022

Ingham Circuit Court LC No. 21-000113-CZ

Before: SWARTZLE, P.J., and RONAYNE KRAUSE and GARRETT, JJ.

RONAYNE KRAUSE, J.

The contemnors, Marlena Pavlos-Hackney (Ms. Pavlos-Hackney) and her business, Zante, Inc., d/b/a/ Marlena's Bistro and Pizzeria (Marlena's), appeal by right following two judgments of contempt entered against them by the trial court. The contempts were for Ms. Pavlos-Hackney's continued operation of Marlena's in willful defiance of the trial court's orders to cease operation. In turn, the orders to cease operation arose out of plaintiff, the Michigan Department of Agriculture and Rural Development (MDARD), suspending the food establishment license for Marlena's, following Ms. Pavlos-Hackney's willful defiance of public health and safety orders related to the COVID-19 pandemic. We affirm the contempts, but we remand for the trial court to refashion the second of the two contempt fines.

I. MATTERS AT ISSUE

Although the contemnors argue that the orders to cease operation were improper for various reasons, they have never seriously disputed that they violated those orders-and given the publicity surrounding Ms. Pavlos-Hackney's vows to continue operating her restaurant despite those orders, no such dispute would be plausible. The propriety of the orders that Ms. Pavlos-Hackney disobeyed is not before us: "the longstanding rule is that 'a contempt proceeding does not open to reconsideration the legal or factual basis of the order alleged to have been disobeyed and thus become a retrial of the original controversy.'" In re JCB, 336 Mich.App. 736, 747; 971 N.W.2d 705 (2021) quoting United States v Rylander, 460 U.S. 752, 757; 103 S.Ct. 1548; 75 L.Ed.2d 521 (1983) (alterations made by the In re JCB Court). It has long been established that even if a court's order is incorrect,^[1] persons subject to the order must still comply with the order, and their remedy is to appeal the order or seek a stay. See In re Contempt of Dudzinski, 257 Mich.App. 96, 110-112; 667 N.W.2d 68 (2003). Indeed, even where a person is subjected to a "transparently unconstitutional" order, that person must still challenge the order through a proper appellate challenge (or at least a good-faith effort to do so) rather than simply disregard the order. ARM v KJL,__ Mich. App__,__;__ N.W.2d__(2022) (Docket Nos. 357120, 358858, 358859), slip op at 7. Ms. Pavlos-Hackney knowingly, and very publicly, chose instead simply to disregard the orders. Nevertheless, all persons are entitled to due process. The issue before us is whether the contemnors received the due process to which they were entitled when the trial court imposed the contempts for violating the orders.

II. BACKGROUND

Following the COVID-19 pandemic in 2020, Marlena's was subject to various administrative orders requiring the restaurant to comply with certain hygiene, social distancing, and masking requirements, including a prohibition against dine-in service. Throughout December of 2020 and January of 2021, the Allegan County Health Department and MDARD investigated Marlena's and determined that Marlena's was knowingly violating those requirements. Several administrative orders were issued, which Marlena's knowingly ignored. Finally, On January 20, 2021, MDARD entered an emergency summary suspension order that immediately suspended the food establishment license for Marlena's. On February 1, 2021, an administrative hearing was held regarding that suspension. Ms. Pavlos-Hackney "appeared as representative for" Marlena's. Ms. Pavlos-Hackney "sought to be represented by Richard Martin" but the request was denied because Martin "did not identify himself as an attorney licensed in Michigan." Nevertheless, she was permitted to call Martin as a witness. Following the hearing, it was determined that Marlena's was open for regular business in knowing and willful violation of the administrative orders. By Ms. Pavlos-Hackney's own testimony, she was fully aware of the orders and understood them. The suspension of the food establishment license for Marlena's was continued. The administrative decision explained that Marlena's had a right to seek appeal by filing a petition in a court within 60 days. There is no indication that Marlena's made any effort to do so.

On February 24, 2021, approximately two weeks after the administrative decision, MDARD commenced this action by filing a complaint in the Ingham County Circuit Court. MDARD simultaneously filed an ex parte motion for a temporary restraining order. In both documents, MDARD largely recited the history of the dispute and the fact that Marlena's was continuing to operate its restaurant at great danger to public health, despite knowing of the orders and of its lack of a valid license. In its complaint, MDARD sought a permanent injunction against Marlena's selling food without a license. In its motion for a temporary restraining order, MDARD argued that an injunction was necessary to prevent irreparable harm to itself and to the public, it was likely to succeed on the merits because there was no serious dispute Marlena's was operating in violation of the law, and the potential harm to itself and to the public greatly outweighed the potential harm to Marlena's. The next day, the trial court entered a temporary restraining order under which Marlena's was "hereby ordered to cease operating a food service establishment and cease selling, distributing, or advertising food or beverages effective immediately." The order set a hearing date for March 4, 2021, via Zoom. The temporary restraining order was personally served "on Marlena Pavlos" the next day, February 26, 2021, at 6:37 a.m.

On March 1, 2021, MDARD moved to hold Marlena's in contempt, noting that the temporary restraining order had been immediately emailed to Ms. Pavlos-Hackney in addition to being personally served on her. However, MDARD had determined that Marlena's was violating the order, which MDARD confirmed by having one of its employees actually purchase food from Marlena's. That employee observed employees and patrons not wearing masks, even when not seated at tables. Another MDARD employee observed that Marlena's had made a post on Facebook recounting the restraining order and vowing neither to close nor to pay any fines or otherwise "comply with ANYTHING that violates my rights as an American citizen." MDARD further noted that Marlena's had "unilaterally ignored the temporary restraining order, just as it ignored MDARD's emergency suspension of its food establishment license," and Marlena's had not made any effort to appeal the suspension or the temporary restraining order. MDARD sought to have Marlena's held in contempt and subjected to a fine of $7,500 plus attorney fees in the "hope that a sanction less than imprisonment for civil contempt is sufficient to obtain compliance with [the] Court's order and the Food Law." MDARD also expressed the belief that the temporary restraining order "should be continued and converted into a preliminary injunction." Marlena's was served with a copy of the motion on March 2, 2021.

A hearing was held via Zoom on March 4, 2021. Ms. Pavlos-Hackney was present, and she confirmed that she was the owner of Marlena's. Ms. Pavlos-Hackney stated that she had retained Richard Martin as "assistance of counsel," and after repeated inquiries from the trial court whether Martin was an attorney, she admitted that she was not aware of whether Martin was licensed in Michigan or in any other state. She also indicated that she was not aware that a corporation was required to be represented by an actual attorney,^[2] instead asserting that it was an act of treason for a judge to fail to comply with the Constitution.^[3] The trial court suggested adjourning the hearing so that Ms. Pavlos-Hackney could obtain counsel, but when the trial court asked whether Ms. Pavlos-Hackney intended to retain counsel or "to rely upon the statement that you made earlier," Ms. Pavlos-Hackney replied "no comment." The trial court therefore chose to proceed. MDARD presented essentially a summary of the argument it made in its motion.

Ms. Pavlos-Hackney admitted that she did not have a license to operate Marlena's. The trial court asked Ms. Pavlos-Hackney whether Marlena's was still open, to which she replied "no comment" and "I do not consent and that they are in direct violation of well-established constitutional law." The trial court concluded that based on the evidence available and on the failure of Marlena's to obtain counsel, Ms. Pavlos-Hackney was aware that the license for Marlena's had been suspended and that she was willfully in violation of the court's order and of MDARD's order. The trial court entered an order holding Marlena's in contempt, ordering that Marlena's must pay $7,500, converting the temporary restraining order into a preliminary injunction, and ordering that "if [Marlena's] continues to operate a food establishment without a license, Marlena Pavlos Hackney shall be arrested and incarcerated until such time as she complies with the order of this Court." The trial court also issued a bench warrant for Ms. Pavlos-Hackney's arrest. The next day, MDARD confirmed that Marlena's was still open for business, based on a vow to remain open posted on Facebook and a telephone call to Marlena's, which stated that it was open to take food orders. Ms. Pavlos-Hackney was arrested "in the early morning hours of March 19, 2021."

The trial court, before an alternate trial judge because the assigned...