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Ohio’s Pandemic Reform Bill: Good and Bad

FOR IMMEDIATE RELEASE
March 24, 2021

 

Ohio General Assembly adopted key 1851 Center recommendations, but other than leveling legal playing field, leaves Governor and ODH unchecked

 

Columbus, OH – In overriding the Ohio Governor’s veto and enacting Senate Bill 22, the Ohio General Assembly codified several 1851 Center recommendations that will benefit Ohioans.

Upon the 1851 Center’s advice and request, the Ohio House of Representatives added the following safeguards to House Bill 90 before rolling that Bill into Senate Bill 22:

  1. Reining in Local Health Department Authority: Past General Assemblies had granted local health department breathtakingly-broad powers. SB22 universally addresses these hidden landmines by (1) limiting “quarantine and isolation” powers to use on only those “who have been medically diagnosed with the disease or have come in direct contact with someone has been medically diagnosed;” and (2) requiring local administrative orders to “apply only to specific persons” and forbidding “any order or regulation that applies to a class of persons.”
  2. Access to Justice in One’s Home County: The Governor and Health Department employed questionable legal tactics to move all legal challenges to pandemic orders to either Franklin County or the Court of Claims in Columbus. SB22 vests Ohioans with the right to challenge pandemic orders in their home counties before their own elected judges.
  3. Access to Legal Representation to Challenge Pandemic Orders: While many state and federal provisions require government to compensate someone who has successfully vindicated his constitutional rights in court, no such provision applied when Ohioans challenged the constitutionality of pandemic orders, leaving many Ohioans (already cut off from their incomes) without the ability to acquire legal representation to protect their rights. SB22 requires the State to pay “reasonable attorneys fees” to those who “successfully challenge an order or rule.”
  4. Preclusion of Shifting Justifications for Administrative Power: After the 1851 Center won several lawsuits challenging the constitutionality of R.C. 3701.13, the State began claiming that its authority actually arose from a different statute. SB22 closes this loophole by applying its limits to all like-kind statutes.
  5. Preclusion of Gamesmanship, Should the General Assembly Act: The original version of the Bill failed to prevent the Governor from simply re-enacting a restriction invalidated by the General Assembly through pretextually labeling the restriction differently. SB22 closes this loophole by forbidding “the reissuance of any restriction contained in the rescinded special or standing order or rule.”
  6. Addition of a “Severability Clause”: SB22 ensures that even if one provision within the Bill is “held invalid, the invalidity does not affect other items of law contain this act.”  This means that the 1851 Center’s recommended policies will endure even if the General Assembly’s other reforms face legal headwinds.

In addition to safeguards recommended and/or written by the 1851 Center, the Bill contains the following limits:

  • A declared “State of Emergency” may not last longer than 90 days, meaning the Governor’s emergency rulemaking authority also expires with 90 days.
  • The General Assembly maintains the power to terminate the “State of Emergency” Declaration after 30 days, thus cutting the Governor’s emergency rulemaking authority to 30 days as well.
  • The General Assembly maintains the power to rescind any pandemic-related administrative rule and order through adopting a resolution doing so.

“It’s unlikely that the General Assembly will ever rescind a rule or order or terminate a state of emergency, and the reform bill leaves the Governor and Ohio Department of Health nearly as unchecked as they have been over the past year, meaning that the legislative branch has essentially passed the buck to the judicial branch to protect Ohioans,” explained 1851 Center Executive Director Maurice Thompson.

“However, we appreciate the General Assembly leveling the playing field for Ohioans who need to vindicate their rights in Ohio courts, and we look forward to carrying on that fight, now that the State’s gamesmanship has been put to rest. We are also pleased to be able to concentrate our efforts on Ohio’s Governor and Department of Health, with local health departments now appropriately disarmed.”

Read the Read the 1851 Center’s February 16, 2021 Recommendations to the House here.

Watch the 1851 Center’s Testimony on the Bill:

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan 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 searches and seizures.

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One Year Later, Department of Health – When Under Oath – Still Cannot Justify “Director’s Stay at Home Orders”

FOR IMMEDIATE RELEASE
March 19, 2021
 
Top Ten Takeaways from Government Discovery Responses

Columbus, OH – Recent discovery responses provided by the Ohio Department of Health suggest that even after a full year, the Department remains unable to provide evidence justifying its “Stay at Home Orders.”

On March 22, 2020, the Ohio Department of Health issued its “Director’s Stay at Home Order,” prohibiting “non-essential” businesses and activities. Soon thereafter, the 1851 Center for Constitutional Law commenced litigation to challenge the lawfulness of these orders, winning several cases.

In June, the 1851 Center won a preliminary injunction prohibiting the state from forbidding the opening of amusement and water parks, including Kalahari Resorts, Cedar Point, and Kings Island. But only recently has the Department of Health responded to the 1851 Center’s Interrogatories (questions required to be responded to under oath during the course of litigation), posited on behalf of Kalahari Resorts.

Those Interrogatory Responses display that the State remains unable to provide evidence supporting it policies, failed to track relevant data, and was at time outright bluffing the public:

  1. Though clearly erroneous, Department of Health (“ODH”) stands by the Ohio Attorney General’s April of 2020 misrepresentation to a federal court that the Orders were justified because “approximately 29 percent of confirmed cases of Covid-19 result in hospitalizations and approximately 4 percent of confirmed cases result in death.”  See Interrogatories 10, 20.
  2. ODH still maintains no evidence that “non-essential” businesses and activities increased the risk of Covid-19 harm, other than what ODH now calls its own “rational speculation;” and the Department cannot identify a single instance of Covid-related harm caused by any Ohio “non-essential business.”  See Interrogatories 3, 5, 7, 11, 28 (“Defendant is unaware of any evidence displaying that Plaintiffs’ operations uniquely increase the harm resulting from Covid-19”).
  3. The only evidence ODH proffers in support of the proposition that the “Stay at Home” Orders “reduced serious harm” is that the number of cases within the State never reached the numbers supplied through then-Director Acton’s self-described “guestimates,” more formally known as “curve-flattening models.”  See Interrogatories 6, 27.
  4. Despite claiming that its regulations were driven by “hospital capacity,” “ICU bed occupancy,” and “hospital staffing capacities,” and a desire to avoid “overwhelming” those capacities, when under oath, ODH concedes that it maintains no metric or benchmark as to what constitutes “overwhelming,” and “no information” as to the capacities of Ohio hospitals. See Interrogatories 22, 25, 31, 32.
  5. Despite being unable to provide any evidence that Ohioans’ “non-essential” businesses or activities ever posed a risk, ODH, the Governor, and the Attorney General continue to deride those Ohioans wishing to open and operate as an “apparent desire to elevate profitability over the health and lives of its employees and patrons.” See Interrogatory 19.
  6. ODH continues to insist with certainty that “the non-essential business restrictions did not cause any public or private health harm or economic harm.”  See Interrogatory 34.
  7. In assessing the risk of Covid-19 to the general public, ODH concedes that it failed to track any data related to the coincidence of hospitalizations or deaths with co-morbidities such as obesity, and relied solely on death certificate date to determine the number of deaths proximately caused by Covid-19. See Interrogatories 37, 38.
  8. The only evidence ODH offers in support of the effectiveness of its mask and curfew policies, given that cases, hospitalizations, and deaths increased after those policies were enacted, is “evidence of reduced cases, hospitalizations, and deaths occurring after mask and curfew orders went into effect,” while conceding elsewhere that “it is not surprising that daily cases [after the mask mandate] continued to increase.”  See Interrogatories 12, 17.
  9. ODH refuses to disclose to Ohioans, when under oath, who writes or reviews its pandemic orders or even the “process by which these orders are drafted and codified,” citing “attorney-client privilege.”  See Interrogatory 18.
  10. The end-date of the pandemic in Ohio will be determined by the Governor alone, rather than by “public health experts.”  See Interrogatory 33.

“Recent discovery responses plainly illustrate that the Governor, Attorney General, and Department of Health – when required to justify their policies under penalty of perjury – are unable to provide any factual evidence that Ohio’s lockdown policies either worked or were justified,” explained 1851 Center Executive Director Maurice Thompson. “The lesson is that Ohioans ought to remain skeptical and resistant, rather than reflexively trusting, when public officials insist a restriction on their liberty is necessary to counteract a risk to health or safety.”

Read the State’s Interrogatory Responses here.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan 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 searches and seizures.

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Akron Federal Court: CDC Eviction Ban Unlawful

FOR IMMEDIATE RELEASE
March 10, 2021
 
Centers for Disease Control has no authority to administratively criminalize removal of tenants who refuse to pay

Akron, OH – A federal court on Wednesday determined that the Centers for Disease Control exceeded its limited statutory authority in issuing an order halting residential evictions across the nation.

The 1851 Center for Constitutional Law’s victory comes on behalf of Canton landlords Lila and Eric Wohlwend, whose tenants used the CDC’s Order as grounds to cease paying rent for months on end.

The ruling by Judge Philip Calabrese of the Northern District of Ohio, identifying the issue as “whether Congress has given the Centers for Disease Control and Prevention the authority to make and enforce a nationwide moratorium on evictions,” concludes that “the Centers for Disease Control and Prevention’s orders—The Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19—exceed the agency’s statutory authority provided in the Public Health Service Act, and are, therefore, invalid.”

The Court reasoned that such a broad reading of authority would “authorize action with few, if any, limits” and “implicate serious constitutional concerns . . . But the text does not authorize such boundless action or depend on the judgment of the Director of the CDC or other experts for its limits.”

“Overreaching administrative agencies – whether state or federal – may not attack Ohioans’ property rights without specific, narrow, and unmistakable authority from elected legislative branches,” explained 1851 Center Executive Director Maurice Thompson. “As a practical matter, the ruling will simply permit Ohio’s housing providers, many of whom are themselves struggling, to use longstanding state law to reclaim their homes from ill-willed squatters and make those homes available to the many Ohioans earnestly seeking to improve their housing situations.”

Click here to view Court document.

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The 1851 Center for Constitutional Law is a nonprofit, nonpartisan 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 searches and seizures.

This litigation was brought in cooperation with the Pacific Legal Foundation.