STATE OF MICHIGAN

IN THE COURT OF APPEALS

____________________________

ADELINE HAMBLEY,

Plaintiff/Appellee, Court of Appeals No. 365918

v. Ottawa County Circuit Court

No. 23-7180-CZ

OTTAWA COUNTY; OTTAWA

COUNTY BOARD OF
COMMISSIONERS; and JOE MOSS,
SYLVIA RHODEA, LUCY EBEL,
GRETCHEN COSBY, REBEKAH
CURRAN, ROGER BELKNAP, and
ALLISON MIEDEMA,
Ottawa County Commissioners in
their individual and official capacities,

Defendants/Appellants.

Appeal from a Judgment of Ottawa County Circuit Court

Hon. Jenny McNeill, Muskegon County Circuit Court Judge
Sitting by SCAO Assignment

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ORAL ARGUMENT REQUESTED
______________________________________________________________________________

APPELLEE ADELINE HAMBLEY’S MOTION TO AMEND ORDER DATED

JUNE 6, 2023 AND MOTION FOR IMMEDIATE CONSIDERATION OF SAME
____________________________________________________________________________

Sarah Riley Howard (P58531)

Pinsky Smith, PC
Attorneys for Appellee Adeline Hambley
146 Monroe Center NW, Suite 418
Grand Rapids, Michigan 49503
(616) 451-8496
June 26, 2023 showard@pinskysmith.com
 Appellee Adeline Hambley, by her attorneys, respectfully requests that this

Court amend its Order dated June 6, 2023 regarding the Preliminary Injunction –

to require trial court supervision in any proceeding that Appellants initiate to

remove Appellee Hambley as Ottawa County’s Health Officer. Further, Appellee

Hambley respectfully requests that the Court provide this Motion immediate

consideration, since she reasonably believes that it is imminent that Appellants

may violate the spirit – if not the language – of the Preliminary Injunction. She

states as follows:

1. Defendants/Appellants (“Appellants”) filed an appeal as of right, No.

365917, and an application for interlocutory relief, No. 365918. This Court

dismissed the appeal of right sua sponte, but granted interlocutory appeal to settle

the issue regarding the trial court’s grant of declaratory judgment that

Plaintiff/Appellee Hambley is the appointed Health Officer of Ottawa County.

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2. On June 6, 2023, this Court also amended the trial court’s Preliminary

Injunction in this case which prohibited Defendants from removing Appellee

Hambley as Health Officer until trial. This Court maintained the Preliminary

Injunction itself and denied Appellants’ motion asking this Court to stay it entirely.

However, this Court noted that Appellants could take action to potentially remove

Appellee Hambley under MCL 46.11(n) if they had evidence for a finding of

sufficient cause for removal, with sufficient due process to Hambley. Up until that

point, counsel for Appellants had acknowledged that they had no statutory cause for

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removal of Appellee Hambley. (Ex 1 to Hambley Opp to Mot to Stay, Hrg Tr, 3/31/23

at 63-64.)

3. Since this Court’s June 6 Order, Appellants and counsel have made

public statements tending to point to a conclusion that Defendants’ position is that

this Court’s amended Order gives them the ability to now remove and replace

Appellee Hambley as the Health Officer, or that her termination is imminent, even

though their alleged cause continues to be solely political and insufficient under

MCL 46.11(n).

4. For example, on June 7, 2023, the day after this Court amended the

preliminary injunction, WZZM TV-13 interviewed Defendants’ attorney David

Kallman on what this Court’s Order meant for Appellants. Kallman said, “I think

that the board wants to exercise its authority and bring someone on board that

they’re comfortable with.” (WZZM TV-13 Broadcast, June 7, 2023, found at

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https://www.wzzm13.com/article/news/local/ottawa-county/michigan-state-appeals-

court-vacates-order-health-officer/69-2d2c3082-079f-4d78-b432-d1ae55f2eba3, at

00:29-00:35 [emphasis added].) Terminating Appellee Hambley as the Health

Officer in order to “bring someone on board that they’re comfortable with” is directly

contrary to the requirements of MCL 46.11(n) – as well as the statutory

independence of the Health Officer intended by the Public Health Code. It is also

exactly the scenario that the preliminary injunction aimed to prevent, and which

this Court kept in place pending its hearing of Appellants’ interlocutory appeal.

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Indeed, intending to replace Appellee with a pre-selected political appointee with

whom Appellants “are more comfortable,” Nathaniel Kelly, that Appellants chose in

secret was what they already tried once when they summarily demoted her to

Interim Health Officer upon taking office on January 3.

5. Also on June 7, 2023, Appellant Joe Moss, Chairman of Appellant

Ottawa County Board of Commissioners, gave an interview to the radio program

Good News related to what this Court’s amendment of the preliminary injunction

meant for Appellee Hambley’s position as Health Officer. In that interview, he

said, “We really looked for reasoned, rational leaders when Ottawa Impact looked

for candidates for Ottawa County last year. And so there’ll be some thoughtful

discussion I'm sure. I haven’t talked to the health officer. I don't know what she’s

doing today, but there’ll be thoughtful discussion and looking at how we move

forward…” (Good News, 2023, June 7, found at Rumble, 24:14-24:37.

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https://rumble.com/v2sns0c-tucker-is- baaaaaack...html.) The import of his

statements was that this Court’s order on June 6 presented an opportunity to make

his own determination about whether he personally supported Appellee Hambley

in the Health Officer role – which Appellants previously openly stated they don’t –

for reasons that do not constitute cause under MCL 46.11(n).

6. On June 17, 2023, the wife of Nathaniel Kelly – the man whom

Appellants chose to be Health Officer in place of Appellee Hambley as stated from

their first meeting on January 3 – also spoke out on Twitter. Ms. Kelly defended

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her husband’s credentials in her tweet, specifically saying he “was recently selected

as my county’s next Public Health Director, pending state approval.” (Ex. A.)

7. On June 20, 2023, when the Ottawa County Health and Human

Services Committee met, several Appellant Commissioners came prepared with

what appeared to be coordinated written statements to address to Appellee

Hambley and the County Health Department’s medical director, Dr. Gwen

Unzicker. Appellant and County Commissioner Allison Miedema, opened the

statements with an overt observation that Hambley’s position would be short-lived:

Adeline this is for you, as the health director at the moment, just some
questions on a different topic, things that are coming from
constituents, concerns I have. It is concerning the Grand Haven Pride
Festival, that the Ottawa County Department of Public Health was
there, and so I do have some questions for you on that. I’m wondering
how much money was spent to have a booth there? That’s my first
question. And how was this paid? Who knew about the payment, and
was this involved in that decision? Those are my starting questions.

(6/20/23 Health & Human Svcs Comm Mtg, found at

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https://www.youtube.com/watch?v=M5Xt2vJo3y0, beginning at 54:05 [emphasis

added].) Among quotes including the one above, Appellants were particularly

focused on opposition to Health Department employees providing information and

vaccines at a table at local Pride Festivals, along with multiple other agencies and

groups. Appellant Miedema said that a drag queen show, as one of many events

held during the Grand Haven Pride Festival, encouraged any children present at

the show to later imitate giving tips to drag queens in their play and to exhibit

“deviant” sexual behavior. She said, “By being in attendance [at Grand Haven Pride
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Festival], the Ottawa County Department of Public Health is promoting sexual

promiscuity, which in turn, can contribute to future clients of public health, who

will be seeking positive STD testing along with mental health services.”

8. Other Appellant Commissioners also complained about the Health

Department’s appearance at the Grand Haven Pride Festival, and at the Holland

Pride Festival on June 24. Appellant and Commission Vice-Chair Sylvia Rhodea

complained that attendance at a public festival like a Pride Festival or Sex Ed Week

at Grand Valley State University by the Health Department showed “a pattern of a

lack of discernment on some of these issues, especially in particular to the grooming

of our children.” (Id., Def. Rhodea comments beginning at 1:20:06.) GVSU’s Sex Ed

Week is held by a campus group to coincide with a monthly sexually transmitted

infections (STI) testing clinic run by the Health Department. Rhodea objected to two

Health Department employees sitting near a table she said displayed sex toys at the

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GVSU event. Rhodea said to Appellee Hambley, “I had a number of students ask me

to ensure that our health department never participated in this event again. It was

very clear you were there and an active participant in it. In prior years [the Health

Department] actually helped to plan the inaugural event there at Grand Valley, and

that event is very troubling to some of our college students and in fact fairly

embarrassing for them, that that’s going down at their college. And I know from

people that we’ve heard from in the community, they feel the same way. So we’re

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seeing a pattern of a lack of discernment on some of these issues, especially in

particular to the grooming of our children.”

9. On Friday evening, June 23, 2023, Appellants posted on the County

website an agenda for the full Commission meeting on Tuesday, June 27, 2023,

which included an agenda item of a proposed resolution to “protect child innocence,”

although without the actual language of the resolution itself. (Ex. B, 6/27/23

Commission Agenda.)

10. On Saturday, June 24, 2023, Appellants posted publicly the language

of the resolution they intend to introduce and pass. This language of the resolution

is almost verbatim to Appellants’ public meeting comments – except that it avoids

mentioning the Health Department, Pride festivals, or GVSU’s Sex Ed fair – and

includes the following staff directive: “no County staff or resources shall be

allocated to activities, programs, events, contents, or institutions which support,

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normalize, or encourage the sexualization of youth … [;].” (Ex. C, Proposed

Resolution.) Since the individual Appellants constitute a majority on the

Commission, the resolution that vaguely couches all of these concerns in the

language of alleged protection of child innocence is all but assured to pass.

Moreover, since Commission Chair Moss has tried to limit comments by

commissioners who oppose him and his voting bloc at full Board meetings, that

outcome also seems likely. (E.g., 3/21/2023 Commission Meeting, found at

https://www.youtube.com/live/E1Ch0f4TX6k?feature=share, at 2:17 to 2:44; Moss:

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“I’m not interested at this point in having what you might call commissioner

comments or commissioner free-for- all at the end of meetings. I’d like to have well-

run, orderly, organized meetings. An open-ended discussion, maybe, is best

handled outside the board room, where you can go back and forth with each

other.”)

11. Collectively, the statements of Appellant Commissioners and their

representatives, along with the resolution which Appellants presumably have the

votes to pass on Tuesday, June 27, 2023, and their past attempts to remove

Appellee Hambley without adequate statutory cause, lead to a reasonable

conclusion that Appellants intend to use the “protection of children” rhetoric and

this Court’s amended Order as a pretext to move for the termination of Appellee

Hambley in the very near future. Upon information and belief, Appellees intend to

insist that Appellee Hambley discriminate in the provision of public health services

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on the basis of LGBTQ+ status, under the guise of “protection of children,” in a

manner that would both violate Michigan and federal law, and in a manner that

diverges from Appellee Hambley’s professional judgment about what actions are

appropriate and necessary to promote public health in the County. It also appears

Appellants plan to use this to make another unlawful attempt at removing

Appellee Hambley and installing their preferred candidate, Nathaniel Kelly, before

this Court can rule.

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 12. Because of these events, Appellee Hambley asks this Court to further

revise its Order to require trial court supervision of the process if Appellants take

action to assert adequate statutory cause for initiating due process proceedings to

remove her. Further, Appellee Hambley believes that she requires the Court’s

immediate consideration of this Motion to amend the June 6, 2023 Order, related

to the Preliminary Injunction. Past acts of Appellants make it reasonable to

conclude that relief is needed as soon as possible, and that Appellants could be

planning to initiate sham proceedings against Appellee Hambley shortly following

the Commission meeting on June 27, 2023.

DISCUSSION

13. Appellee Hambley is the legally appointed Public Health Officer of

Ottawa County, per the trial court’s grant of partial judgment in this matter, unless

and until that decision is reversed by this Court or our Michigan Supreme Court.

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14. On January 3, 2023, at the meeting where they were sworn into office,

Defendants-Appellants, including the Ottawa County Board of Commissioners,

summarily demoted Appellee Hambley to an interim position contrary to state law.

Defendants-Appellants declared that Hambley would be replaced by a political ally,

Nathaniel Kelly, that they had selected in secret before their first public meeting

and before their swearing-in as commissioners. After Appellee Hambley filed suit in

the trial court seeking relief from her demotion, Appellants developed a theory that

Hambley was not properly appointed as Health Officer by the prior County Board of

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Commissioners. The trial court rejected Appellants’ theory after the parties’ motion

practice.

15. Appellee Hambley went to the trial court on March 2, 2023, seeking

emergency ex parte relief in the form of a Temporary Restraining Order, when

various events occurred that indicated the likelihood that Appellants planned to fire

her entirely while this case was pending, but before the trial court could hear

Appellee’s motion for preliminary injunction. The trial court entered a TRO until

the motion for preliminary injunction could be heard.

16. MCL 46.11(n), along with the mandates of Michigan’s Public Health

Code, determine when a county commission can remove a Health Officer.

Appellants acknowledge as much in their pleadings. MCL 46.11(n) requires that

certain findings be made (and supported) to involuntarily remove a Health Officer.

If Appellants felt that there was cause to remove Appellee Hambley sufficient to

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qualify under this statute and the Public Health Code, Appellee Hambley would

have rights for due process in that determination, i.e., Appellants would need to

provide sufficient notice and an adequate opportunity to be heard. Cf. MCL 46.11(n)

(requiring a finding, i.e., “in the board’s opinion,” that Health Officer is

“incompetent,” or after a hearing determination of “misconduct” or “neglect of

duty”); see also Bauserman v Unemployment Ins Agency, 509 Mich 673, 711 (2022)

(minimum pre-deprivation due process required under Michigan Constitution when

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a government actor seeks to remove a property interest); Cleveland Bd of Educ v

Loudermill, 470 US 532 (1985) (same related to federal due process protections).

17. At the time of the hearing on Appellee’s motion for preliminary

injunction, Appellants acknowledged they have no valid allegation of poor

performance or other sufficient cause for Appellee Hambley’s removal. (Ex 1, Hrg

Tr, 3/31/23 at 63-64.)

18. After conceding at the hearing on the motion for preliminary

injunction that Appellants had no statutory cause to terminate Appellee, Appellants

are now conjuring sham cause to terminate Appellee Hambley: complaining that the

Health Department should not have had a table to provide vaccines and information

targeted to the LGBTQ+ community at county Pride festivals. At a committee

meeting to hear from Appellee and the Health Department’s Medical Director on

June 20, 2023, Appellant Commissioners made multiple statements that appeared

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to be coordinated outside of the public meeting in violation of the Open Meeting Act,

making various claims like an alleged “pattern of a lack of discernment” by Appellee

Hambley.

19. Appellee Hambley, and Medical Director Dr. Unzicker, answered

questions at the public Health and Human Services Committee meeting about why

they believed there to be an important public health purpose in the Health

Department attending large events like Pride Festivals, just as they do many other

types of events. Appellants’ reasons for calling these judgments a “pattern of a lack

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of discernment” are in direct opposition to Appellee Hambley’s statutory authority

to make these types of decisions under the Public Health Code. Moreover,

Appellants’ reasons are pretext (and a form of re-branding unlawful LGBTQ+

discrimination as “protection of children”) and would constitute a violation of

Elliott-Larsen Civil Rights Act (“ELCRA”) in the provision of public services if

Appellee Hambley complied. See Roush World v Dep’t of Civil Rights, 510 Mich 398,

404 (2022) (holding that sexual orientation discrimination violates ELCRA).

20. The same concerns still exist that caused the trial court to enjoin

Appellants from firing Appellee Hambley pending a trial - if not more so than ever –

if Appellants are permitted to flout this Court’s order by removing her because the

Health Department has information tables at Pride festivals and a university

sexual education fair. The next County Commission meeting is scheduled for

Tuesday, June 27, 2023, at 6:30 pm. Appellants are working a strategy to remove

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Appellee Hambley for alleged reasons that would fail to comply with MCL 46.11(n),

and potentially in a manner which does not provide legally-sufficient due process.

21. Appellee Hambley seeks, under MCR 7.112 and 7.216, that this Court

amend its Order pertaining to the injunction and exercise its remedial authority to

effectively maintain the status quo pending hearing the interlocutory appeal in this

case. Under these facts, it is appropriate to permit Appellants to act under MCL

46.11(n) but only under this Court’s direction and/or trial court judicial supervision

of some sort – i.e., requiring, for example, that Appellants present the trial court

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with the alleged valid reasons for removal of Hambley, and that Appellants and

Appellee Hambley have opportunity to present argument for sufficiency of the

reasons and presentation of evidence, which Michigan law requires but that

Appellants are unlikely to provide to Appellee Hambley.

22. Events since issuance of this Court’s Order on June 6, 2023 strongly

suggest Appellants are attempting to accomplish the same result of summary

termination for political reasons of Appellee Hambley, contrary to law, that they

have attempted since their swearing-in. For reasons already briefed extensively,

Appellee Hambley and the public will be irreparably harmed in a way that cannot

later be fully remedied if she must wait through litigation to seek reinstatement.

CONCLUSION

Accordingly, this Court should amend its June 6, 2023 Order and provide

that Defendants-Appellants may take action under MCL 46.11(n) only in a manner

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which is supervised by the trial court to address the specific concerns raised by the

facts as they have developed since June 6. In addition, Appellee Hambley

respectfully requests immediate consideration of her Motion.

Respectfully submitted,

/s/ Sarah R. Howard

Sarah Riley Howard (P58531)
Pinsky Smith, PC
146 Monroe Center NW, Suite 418
Grand Rapids, MI 49503
(616) 451-8496
showard@pinskysmith.com
Dated: June 26, 2023
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