FOR IMMEDIATE RELEASE
June 23, 2020

Ohio Dept. of Health has no Constitutional Authority to Overrule State Legislation Protecting Parents, Children, and Daycares

Mason, OH – The 1851 Center for Constitutional Law today filed suit on behalf of 40 daycare centers across Ohio to enjoin the Ohio Department of Health from continuing to enforce its arbitrary limits, as implemented through the Director’s May 29, 2020 Order, on the number of children daycares may supervise.

The May 29 Order severely reduces the number of children each adult staff member may supervise and the number of children who may be in the same room at any one time, even though the statutes governing daycares expressly protect their right to care for larger groups of children:

  • The Director’s Order reduces the number of pre-schoolers a staff member may care for from 14 to nine.
  • The Director’s Order reduces the number of school-aged-children a staff member may care for from 20 to nine.
  • The Director’s Order reduces the number of children who may be within the same room, regardless of the size of the space, from 40 to nine.

However, agency regulations attempting to overrule express legislation on the same subject violate Ohio’s Separation of Powers limits. And in this case the Ohio Revised Code expressly provides that no administrative regulations may conflict with the group sizes the General Assembly has protected.

“The Ohio Constitution protects Ohioans from unelected government administrators attempting to override statutes passed by elected representatives, no matter what the rationale,” explained 1851 Center Executive Director Maurice Thompson. “These regulations are particularly pernicious because they limit child care options for parents needing to return to work, dramatically raise the costs of these options, and threaten to bankrupt Ohio daycares.”

The case is pending before Judge Timothy Tepe in Warren County, Ohio.

Read the 1851 Center’s Motion for Preliminary Injunction 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.

Water slide photo.

FOR IMMEDIATE RELEASE
June 12, 2020

Another Ohio Court Slams Forced Closures as Unconstitutional

Statute Health Department relies on is unconstitutional and it has no authority to close businesses or create its own penalties

Kalahari wins right to open immediately

Sandusky, OH – An Ohio Court of Common Pleas Wednesday enjoined the Ohio Governor and Director of the Department of Health from “imposing or enforcing penalties solely for non-compliance with the director’s order” against Ohio waterparks.

The 1851 Center for Constitutional Law’s victory against Ohio’s Governor and Health Department comes on behalf of Kalahari Resorts, who moved to enjoin the Ohio Department of Health from continuing to enforce its criminalization of even safe business operations, as implemented through the Director’s various Orders since March.

The 12 page ruling by Judge Roger Binette of the Erie County Court of Common Pleas, the most forceful repudiation of the Governor’s pandemic Orders to date, explains that private property rights are fundamental rights in Ohio, and that the Ohio Department of Health has both violated those rights and exceeded the Ohio Constitution’s Separation of Powers in shutting down and otherwise penalizing Ohio businesses:

“The statutes granting [the Health Director] the authority, power to enforce, and criminalize also violates the separation of powers that exist in our Constitutional framework to protect our citizens from the consolidation of power in one person.”

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“Moreover, if one unelected, unaccountable to the public, official is allowed to invoke unfettered Orders, which can criminalize an otherwise non-criminal activity only for disobedience to her Orders, then the right to Due Process is extinguished. The authority to issue Orders, create strict liability crimes without legislative or Administrative oversight, and impose criminal sanctions. To restrict the fundamental right of property based on an impermissible classification of ‘identity’ rather than on ‘safety’. To violate the separation of powers by delegating policy making, rather than policy shaping, to an Administrative agency without proper oversight or reservation of authority to override Orders. All these are a concern for this Court in regards to Due Process and Equal Protection rights of the citizens being violated.”

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“Defendants are not harmed by granting the requested injunctive relief. This is because they have been improperly granted the power to create and criminally enforce, with strict liability, laws simply by a decision of an unelected, unaccountable to the general public, administrative officer by virtue of an Order. Application of which is, can and does trample of the fundamental rights of the citizens. Further, in regards to Defendants’ concern of the ‘spreading of the virus’ by allowing Plaintiffs’ business to open prior to June 19th, this Court points to Comm. Schade’s testimony. That 15 of the 19 deaths in Erie Co. were people who would not likely go to Plaintiffs’ businesses; they were in the Ohio Veterans Home.”

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“There appears to be no reason why Plaintiff Kalahari should remain closed at this juncture. The only reason they are is that an unelected official, with unbridled authority – that was given in offense to the separation of powers and used to infringe of Due Process and Equal Protection rights – issued the May 29th Order.”

“Our corrupt and incapable Governor can run from the Ohio Constitution, but he can no longer hide from it. With yet another judicial repudiation of his conduct, there can be no justification for continuing his unconstitutional assault on Ohioans.” explained 1851 Center Executive Director Maurice Thompson.

The Court’s Order means that Kalahari can fully re-open immediately.

In other news, the Ohio Attorney General agreed to drop all criminal charges against Vicki Brearley after the 1851 Center filed a Motion to Dismiss in that case.

Read the Court’s full Order 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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FOR IMMEDIATE RELEASE
June 5, 2020

Cedar Point, Kings Island, Kalahari Sue to Open

Ohio Dept. of Health has no Constitutional Authority to Keep these Businesses Closed

Columbus, OH – The 1851 Center for Constitutional Law today filed suit to enjoin the Ohio Department of Health from continuing to enforce its criminalization of Ohio’s amusement and water parks, as implemented through the Director’s May 29, 2020 Order.

The cases are filed on behalf of Ohio’s three largest amusement and water parks: Cedar Point, Kings Island, and Kalahari Resorts.

The May 29 Order singles out amusement and water parks even as nearly all other Ohio businesses are permitted to operate. The Order provides no opening dates for these seasonal businesses that employ thousands and generate the bulk of the economic activity in their respective counties, even though these businesses are safe to operate.

The 1851 Center’s Complaints assert that the Health Director maintains no power to close otherwise lawful Ohio businesses or create her own sanctions to enforce those closures.

Further, the Order permits businesses with similar features, such as pools and large crowds, to open, while singling out amusement and water parks for disfavored treatment. Also, the Governor announced on June 4, 2020 the opening of many like-kind businesses.

“The Ohio Constitution’s protections apply to all, including those businesses that the state’s highest public officials view as non-essential.  The Governor and his Health Director must end their unnecessary and unconstitutional assault on Ohioans’ businesses and traditions,” explained 1851 Center Executive Director Maurice Thompson. “We and our clients remain committed to ensuring that these arbitrary policies never again recur.”

The cases are pending in the Erie County Courts of Common Pleas before Judge Binette, and the Warren County Court of Common Pleas, before Judge Oda.

Read the 1851 Center’s Complaints Here and 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.

FOR IMMEDIATE RELEASE
May 27, 2020

1851 Fights 90 Days in Jail for “Disobedient” Ohio Diner Owner

1851 Center Moves to Dismiss Criminal Charges in State’s First Criminal Case for Violating Pandemic Orders

Cambridge, OH – The 1851 Center for Constitutional Law today moved to dismiss the criminal charges against an Ohio restaurant owner who opened her restaurant one week early.

The motion is filed on behalf of National Road Diner owner Vicki Brearley of Cambridge, who faces 90 days in jail solely because, according to the prosecution, she “did violate an order the Director of Health issued to prevent a threat to the public caused by a pandemic” by “allowing sit down dining” on May 6, 2020.

The case is believed to be the first prosecution of an Ohio business owner for disobedience with the Orders of Health Director Amy Acton, and the first prosecution in the 134-year history of the quarantine statute.

“Ohioans should remain alert that the real-world consequence of seemingly-amicable ‘public health’ regulations is the violent caging of peaceful dissenters who have done no harm,” explained 1851 Center Executive Director Maurice Thompson. “But Ohioans ought not fear:  the Ohio Constitution prevents the State from criminalizing mere ‘disobedience with any order.’”

The 1851 Center’s motion to dismiss the charges posits as follows:

  • Only the Ohio General Assembly may criminalize conduct, and it must do so with specificity.
  • If the Ohio General Assembly has delegated to the Director of Health the unfettered power to create her own crimes, then that delegation is impermissibly vague and violates the Ohio Constitution’s separation of powers.
  • Insofar as they attempt to impose criminal penalties, the Director’s Orders are “void” because, pursuant to a prominent portion of the Ohio General Assembly’s 2015 criminal justice reforms, the Orders fail to “specify the degree of mental culpability required for commission of the offense.”

In addition, the 1851 Center emphasizes that while no Ohioan has been prosecuted for violating “any quarantine order” in the past 130 years, the only court to have addressed the issue, in the 1851 Center’s recent victory in Rock House Fitness v. Acton, determined that the Director lacked the authority to close businesses or unilaterally criminalize otherwise lawful conduct.

The Director’s April 30, 2020 “Stay Safe Ohio Order” purported to keep Ohio restaurants closed. However, that Order was lifted just several days after the May 11 charges were filed against Mrs. Brearley.

The case is pending before Judge John M. Nicholson of the Cambridge Municipal Court in Guernsey County.

Read the 1851 Center’s Motion 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.

FOR IMMEDIATE RELEASE
May 20, 2020

Ohio Court: Forced Closure of Gyms Unconstitutional

Health Department has no authority to close all business or create its own penalties

Painesville, OH – An Ohio Court of Common Pleas Wednesday morning enjoined the Ohio Governor and Director of the Department of Health from “imposing or enforcing penalties solely for non-compliance with the director’s order” against gymnasiums, health clubs, fitness centers, gyms, and workout facilities.

The 1851 Center for Constitutional Law’s victory against Defendant Amy Acton comes on behalf of 35 independent gyms across the state, who moved to enjoin the Ohio Department of Health from continuing to enforce its criminalization of even safe gym operations, as implemented through the Director’s various Orders since March.

The ruling by Judge Eugene Lucci of the Lake County Court of Common Pleas explains that private property rights are fundamental rights in Ohio, and that the Ohio Department of Health has both violated those rights and exceeded its own authority in “criminalizing lawful businesses, and imposing strict liability for violations, including severe criminal, civil, and equitable penalties”:  “The director has no statutory authority to close all businesses, including the plaintiffs’ gyms … She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner without any procedural safeguards.”

The ruling further excoriates the Department of Health’s insistence that “one unelected individual could exercise such unfettered power to force everyone to obey impermissibly vague rules without any legislative guidance.”

“Constitutions are written to prevent governments from arbitrarily interfering in citizens’ lives and businesses.  On that front, the call to action is clear:  the Governor and Health Director may no longer impose their own closures and regulations and write their own criminal penalties to enforce those regulations and closures,” explained 1851 Center Executive Director Maurice Thompson.  “We remain available to serve those who are caught in the State’s tangled web of unlawful orders.”

Read the Court’s Order 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.

Special thanks to Tim Cassell at Pinnacle Performance, who helped organize Ohio gyms to challenge government authority, even as other industries’ “leaders” wilted.

FOR IMMEDIATE RELEASE
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.

Ohio Department of Health’s Orders may be prudent, but are largely unenforceable

Columbus, OH – State and federal constitutions entitle Ohioans to protections, which remain in place even as the state implements seemingly prudent restrictions to combat the COVID-19 pandemic.

On March 22, the Ohio Department of Health issued its “Director’s Stay at Home Order.” This Order, like others before it, relies upon the delegation to the Ohio Department of Health of a sweeping power – never previously relied upon or analyzed by a single court in the history of the state – to exercise “ultimate authority in matters of quarantine and isolation.”

The Order is set to expire on April 6, 2020. No court is likely to take action, much less question quarantine authority, prior to that date. However, depending on the circumstances, regulations that continue to remain in place subsequent to that date must be seriously examined: no attribute of these policies can be permitted to remain beyond their useful life.

For the reasons below, Ohioans must carefully scrutinize these exercises of power, and remember that they maintain rights against it:

1. Delegating “ultimate authority” to bureaucrats violates Separation of Powers. To justify their flurry of Orders, the governor and state health department rely on R.C. 3701.13 (“the department of health shall have . . . ultimate authority in matters of quarantine and isolation, which it may declare and enforce . . .”).

However, while the Ohio Constitution vests the General Assembly alone with emergency powers (Section 42, Art. II), even that authority is limited to “enemy attacks.” And, the General Assembly certainly cannot transfer its power to legislate on major policy issues to just one politically-unaccountable administrative agency.

Separating powers “divides power among sovereigns and branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crises of the day” and serves to “reduce the risk of tyranny and abuse.” New York v. United States, 505 U.S. 144, at 181, 187-188 (1992).

In Ohio, “the lawmaking prerogative is a sovereign power conferred by the people upon the legislative branch of the government,” and therefore “cannot be delegated to other officers, board or commission, or branch of government.” Matz v. J.L Curtis Cartage Co. 132 Ohio St. 271, 7 N.E.2d 220 (1937). Rather, the General Assembly can only “confer administrative power on an executive, a board or commission.” Since the time of the Ohio Constitution, these limits have been consistent: “the delegation of power to make the law, which necessarily involves a discretion as to what it shall be . . . cannot be done.'” Cincinnati, Wilmington & Zanesville R. Co. v. Com’rs of Clinton County, 1 Ohio St. 77, 88 (1852).

Consequently, it is black letter administrative law in Ohio that “Administrative regulations cannot dictate public policy, but rather can only dictate policy already established by the General Assembly.” D.A.B.E., Inc. v. Toledo-Lucas Cty. Bd. of Health, 2002-Ohio-4172, ¶ 41.

To protect Ohioans, the Ohio Constitution forbids the General Assembly from giving away its policymaking power to unelectedagencies. But here, that has happened. The Ohio Department of Health’s picking and choosing between “essential” and “non-essential” business, travel, and activities, and then criminalizing what it alone deems “non-essential,” is policy-making that administrative agencies quite likely cannot undertake.

2. Neither the Ohio Department of Health nor the governor can cancel or schedule an election. On March 16, the Ohio Department of Health promulgated an Order insisting on “closure of the polling locations in the State of Ohio.” However, Article I, Section 4 of the United States Constitution expressly provides that, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

3. Ohioans are entitled to Equal Protection. Over half of the state’s twelve-page Stay at Home Order is dedicated to articulating exemptions from the Order, meaning that many Ohioans or their activities will be unaffected by it. However, any “attempted classification must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis.” State v. Mole, 2016-Ohio-5124.

As the Ohio Lottery Commission remains exempt to sell lottery tickets, and others with strong lobbying presences in Columbus remain exempt, those put out of work or otherwise limited must examine whether they have been treated even-handedly.

4. Ohioans maintain the right to travel throughout Ohio. The Ohio Department of Health’s Stay at Home Order states, “all individuals currently living within the State of Ohio are ordered to stay at home.” However, since 2002, the Sixth Circuit, an appellate circuit within which Ohio is located, became one of a few circuits “to recognize the right to intrastate travel as “fundamental.” In Johnson v. City of Cincinnati, our circuit court held that, “the Due Process Clause of the Fourteenth Amendment protects the right to travel locally through public spaces and roadways,” which “enjoys a unique and protected place in our national heritage.” Johnson, 310 F.3d at 495–98. And “as early as the Articles of Confederation, state citizens “possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective states, to move at will from place to place therein, and to have free ingress thereto and egress therefrom.” See also Cole v. City of Memphis, 839 F.3d 530, 535 (6th Cir. 2016).

While the state maintains a compelling interest in limiting contact to curtail the spread of COVID-19, the state’s selective ban on travel it deems “non-essential” likely fails to advance that interest in a sufficiently narrow manner.

5. Ohioans maintain health care freedoms. On March 17, 2020, the Department of Health prohibited all “non-essential or elective surgery. However, in 2011, Ohio voters enacted the Health Care Freedom Amendment. Section 21(B) of Article I of the Ohio Constitution provides that, “No federal, state, or local law or rule shall prohibit the purchase or sale of health care.” Nor can health care be forced, as Division (A) of that amendment prohibits compulsion. There are many medical treatments the cancellation of which fails to create the availability of more resources to fight COVID-19.

A willing doctor and patient cannot be forbidden from participating in voluntary otherwise-lawful medical treatment.

6. Ohioans maintain the right to access and use their properties. Since March 15, the state has forbidden, selectively and without notice, businesses such as “onsite consumption” of food, liquor, beer, and wine. However, property rights protected by the Ohio Constitution are “fundamental rights” entitled to greater protection than what is provided by the federal constitution.

Just over two decades ago, the Ohio Supreme Court affirmed that, “an injunction closing property against its use for any purpose for one year violates Section 19, Article I of the Ohio Constitution, when applied to an owner who did not negligently or knowingly acquiesce to, and did not participate in the creation or perpetuation of the nuisance.” State ex rel. Pizza v. Rezcallah, 1998-Ohio-313, 84 Ohio St. 3d 116. The Court added that, “The fact that the order is of limited duration does not change this conclusion. It is well established that the Constitution protects against temporary takings just as it does against permanent takings,” and “Deprivation of the use of resources equal to the value of the property is as much a taking as is deprivation of the use of the property itself.” Id. While these rights can be limited, this is so only when “necessary,” “required,” and not “unduly oppressive upon individuals.” Id.

Barricading or otherwise obstructing all uses of a bar, restaurant, or other business or residential property would almost certainly constitute an unconstitutional taking of private property without compensation, as previously contemplated by the Ohio Supreme Court.

7. Ohioans maintain the right “to labor freely without restraint.” The Department of Health’s March 22 Order insists that “all businesses and operations in the state, except essential businesses and operations . . . are required to cease all activities.” However, “The right to contract, the right to do business and the right to labor freely and without restraint are all constitutional rights equally sacred.” Eastwood Mall, Inc. v. Slanco, 1994-Ohio-433.

The state’s selective impairment of some work, labor, and business, and not others raise the possibility that the non-exempt Ohioans have been arbitrarily deprived of this right. With that said, any argument to this end will be at its weakest in industries relying upon close distance and/or touch, such as the “hair salons, barber shops, tattoo parlors, body piercing locations, and massage therapy locations” forbidden on March 19.

8. Ohioans remain entitled to Due Process before or soon after any of the foregoing rights are injured. In the midst of disordered lawmaking through agency fiat, the state has prescribed no procedure for Ohioans to appeal the denial of their rights to travel, use their private property, to labor, or provide or procure health care. However, due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest. State v. Hochhausler, 1996-Ohio-374.

Our Ohio Supreme Court has held that, “Given the importance of the property interest affected, even the temporary denial of possession and use of the vehicle inflicts too severe a hardship on the individual wrongfully deprived,” and the state “will not be able to make a driver whole for any personal inconvenience or economic hardship suffered by reason of any delay in redressing an erroneous suspension through post-suspension review procedures.” State v. Hochhausler, 1996-Ohio-374.

Ohioans’ businesses and livelihood are just as important as one’s car or driver’s license: the Sixth Circuit Court of Appeals recently prohibited the taking of the right to operate a restaurant without a “pre-deprivation hearing,” explaining that “such a system unfairly jeopardized Johnson’s property interest in her means of livelihood, an interest that this court and the Supreme Court have recognized as ‘one of the most significant that an individual can possess.’” Johnson v. Morales, 946 F.3d 911, 937 (6th Cir. 2020).

Those forbidden from travel, health care, business, employment, and other activities during the quarantine are entitled to an opportunity to object and make their case that their activity is entitled to an objection. The state’s haphazard orders have entirely disregarded that right.

9. Local regulations are subject to all of the foregoing limits. Local governments may pass their own limitations on travel, health care, and business during this time. Those regulations, while unlikely to trigger separation of powers concerns, remain subject to all of the same constitutional limits articulated above.

These Orders may well be wise advice. But Ohioans must also be wise in protecting themselves from creeping paternalism, and subjection of their lives to the untreated anxieties of our public officials.

The 1851 Center is open around-the-clock by email. Ohioans threatened with penalties for noncompliance with the state’s restrictions should email us. These communications will be given priority over all other cases.

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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.