April 16, 2020

Legal Center:  Ohio Ban on “Non-Essential Business” Unconstitutional

Without hearings where the State justifies its decisions, the ban violates Due Process

Columbus, OH – The 1851 Center for Constitutional Law today moved to enjoin the Ohio Department of Health from continuing to enforce its criminalization of “non-essential business,” as implemented through the Director’s April 2, 2020 Stay at Home Order.

The April 2 Order fails to provide owners of “non-essential businesses” any opportunity for a hearing where the State must demonstrate that such businesses are indeed “non-essential” and incapable of safe operation, even as many other businesses and operations not essential to survival have been exempted.

The legal action is brought on behalf of an otherwise-successful Columbus bridal shop and its proprietor Tanya Rutner Hartman, who, due to the Director’s ban, are forced to choose between financial ruin or prosecution.

The 1851 Center’s Complaint and Motion for Temporary Restraining Order asserts that in depriving “non-essential” Ohioans of their livelihood without the requisite opportunity for a hearing, the Director’s Order violates Ohioans’ procedural due process rights, safeguarded by the Fourteenth Amendment:

  • While the State is entitled to latitude when confronting a pandemic, that latitude does not permit trampling of basic constitutional rights, particularly when policies endure over an extended period of time without legislative action or administrative rulemaking.
  • When depriving a citizen of his or her livelihood, even temporarily, both the Constitution and binding precedent require an immediate hearing where the state is required to justify its deprivation.
  • Even in emergencies, the Due Process Clause requires immediate hearings, so that citizens are neither erroneously shut down nor erroneously punished.

“The requirement of an immediate hearing where the state must prove its case is more than a technicality:  because the state cannot justify its arbitrary closures, many Ohio businesses will be free to immediately re-open, even if simply on a limited basis,” explained 1851 Center Executive Director Maurice Thompson. “Basic rights like this are overlooked when health administrators are empowered to serve unchecked as the legislative, executive, and judicial branches of government all at once.”

Read the 1851 Center’s Complaint HERE.

The 1851 Center for Constitutional Law is a non-profit, non-partisan legal center dedicated to protecting the constitutional rights of Ohioans from government abuse. The 1851 Center litigates constitutional issues related to property rights, regulation, taxation, and search and seizures.