Coronavirus

Ohio Judge Deems the State's COVID-19 Lockdown 'Arbitrary, Unreasonable, and Oppressive'

The ruling says the state's top health official exceeded her statutory authority by ordering "nonessential" businesses to close.

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Ohio's COVID-19 lockdown is illegal, a state judge ruled today, because it exceeds the powers granted by the statute under which it was imposed. Responding to a May 8 lawsuit filed by the 1851 Center for Constitutional Law on behalf of 35 gyms, Lake County Court of Common Pleas Judge Eugene Lucci enjoined Ohio Department of Health Director Amy Acton from penalizing the plaintiffs or similar businesses for violating the lockdown, provided "they operate in compliance with all applicable safety regulations."

In issuing her business closure and stay-at-home orders, Acton relied on a statute that gives her department "ultimate authority in matters of quarantine and isolation." Lucci concluded that Ohio's lockdown does not meet the legal requirements for "isolation," which is defined as "the separation of an infected individual from others during the period of disease communicability," or a "quarantine," which is defined as "the restriction of the movements or activities of a well individual or animal who has been exposed to a communicable disease during the period of communicability of that disease." A quarantine is supposed to last only as long as "the usual incubation period of the disease"—two to 14 days, in the case of COVID-19.

By contrast, Lucci writes, "The director has quarantined the entire people of the state of Ohio, for much more than 14 days. The director has no statutory authority to close all businesses, including the plaintiffs' gyms, which she deems non-essential for a period of two months. She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner and without any procedural safeguards."

Gov. Mike DeWine already planned to let gyms and fitness centers reopen next Tuesday, subject to social distancing and other COVID-19 precautions. But Lucci's injunction adds to the smattering of court decisions recognizing that state officials must comply with the law even when they are responding to a public health emergency.

In this case, Acton purported to criminalize a wide range of previously legal conduct, threatening violators with a $750 fine and up to 90 days in jail. But those misdemeanor penalties are legally authorized only for people who violate orders that fit within the health department's statutory powers. Lucci concluded that Acton's orders did not.

"The general public would be harmed if an injunction was not granted," Lucci writes. "There would be a diminishment of public morale, and a feeling that one unelected individual could exercise such unfettered power to force everyone to obey impermissibly oppressive, vague, arbitrary, and unreasonable rules that the director devised and revised, and modified and reversed, whenever and as she pleases, without any legislative guidance. The public would be left with feelings that their government is not accountable to them."

In addition to the injunction, the plaintiffs are seeking compensation for lost income and legal costs.

"Constitutions are written to prevent governments from arbitrarily interfering in citizens' lives and businesses," 1851 Center Executive Director Maurice Thompson said in response to the ruling. "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. We remain available to serve those who are caught in the state's tangled web of unlawful orders."

While Lucci focused on the statutory provision addressing quarantines, Case Western Reserve law professor Jonathan Adler suggests in a Volokh Conspiracy post that another, more general provision of the law, allowing "special or standing orders or rules…for preventing the spread of contagious or infectious diseases," could be read to authorize the lockdown. Replying by email, Thompson says that interpretation would improperly delegate legislative powers to the executive branch. "That section is vague, broad, and unconfined," he writes. "It fails to place guardrails on administrative authority, especially when [the law] authorizes imposition of criminal penalties for any disobedience of 'any order' made pursuant thereto, without more."

[This post has been updated with additional comments from Adler and Thompson.]

NEXT: Justice Department Warns California Not To Leave Churches Behind in Its Reopening Plans

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  1. The public would be left with feelings that their government is not accountable to them.

    HEAVEN FORFEND.

    1. And even worse, the government might feel that the people are not accountable to them.

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        1. It sure seems like a lot of the health bureaucrats behind these ridiculous policies are women (or in the case of PA, pretending to be a woman).

  2. “The director has quarantined the entire people of the state of Ohio, for much more than 14 days … She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner and without any procedural safeguards.”

    Amen to that. One more state finally liberated

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  3. As an Ohioan , I can’t stand this women, She always sounds like she’s talking to children in her press confences . She never gave a crap about the econmic damage or job losses. And she always wears a white lab coat show you know she’s a doctor. She grabed power no one should have and weilded in a over reaching and damaging way. Unemploment is in double digets, many buisnesses may not survive and the state is broke. And Dewhine just stood there and went along not thinking of the long term concquences.

    1. It sure seems like a lot of the health bureaucrats behind these ridiculous policies are women (or in the case of PA, pretending to be a woman).

      1. and the one in charge of Los Angeles County is not even a medically licensed or trained poohbah. She’s a social welfare community organiser sort. I guess they hired her because she could mark so many “special interest group” tick boxes. Never mind her intelligence, competence, useful knowledge…. or more correctly the extreme lack thereof. But oh she can put on the dick tater hat and square it away like an ace.

        Hand selected by the nutjob mayor they recently enthroned.

    2. When this whole thing started, I got in an argument with my progressive best friend for stating that they aren’t even considering the economic consequences of lockdowns and that it is literally impossible for “the experts” to know what’s going on since there simply isn’t enough data. He thought that I was the arrogant one for assuming that they didn’t think this through and that I knew better than them. I also said that governors had no legal basis for making themselves kings. How long do I have to reasonably wait before rubbing this in his face?

      1. Depends on how long you want to remain friends with him. Progressives are nothing if not self-righteously devoted to the over-estimates of their own intelligence.

        Remember, as a progressive, he’s allowed to shove his politics in your face with impunity; it’s not meant to be reciprocal.

        1. I’m working on converting him. He didn’t give two shits about politics until a few years ago so he’s something of a born again progressive. You know the type, the only people more preachy, self-righteous and self-certain than born again Christians. It’s fun to watch the evolution. Early on in his NPR listening, I explained to him that companies often ask to be regulated in order to gain advantages in the market. Rent seeking becomes a much easier way to gain profits than continuous reinvestment and innovation. He thought that was ludicrous and that gave me the old “government is the referee” song and dance. Less than a year later, he tried to tell me about the corruption of regulatory capture as if it was news to me.

          I’ll get him there. It just takes sometime to undo that many years of public schooling.

          1. Good for you for trying. He must be a good friend worth saving. I’ve given up on all but a precious few.

          2. This.

            Sounds like we’re going through the same things. They talk as if just because they learned something it’s the first we happen to hear about it.

            When I spoke about ‘the unseen’ that’s about to be unleashed he literally couldn’t understand what I was talking about.

            “….but experts…..but granny….”

          3. So….. basically the attitude of a college freshman heading home for semester break. Finally he can show he’s arrived and ready run the world and take over from the parents.

          4. I think there is hope for a lot of people. There is definitely a class of true-believer progressives who won’t be moved whatever you say. But some are willing to examine their beliefs critically.

            1. But some are willing to examine their beliefs critically.

              Yeah, now that everything they have known and trusted are proving false, fickle, dangerous, costly, disastrous…. and all because the ones in whom we’ve been told to blindly trust, as they know what they are doing, …… SOME are sufficiently astute to begin asking some POINTED questions… I loved learning about the life long antigun folks who, taking a good look at what their stte governments are doing (telling everyone to stay home, not go to work or church or the gymn, or their hair care person…. then reading in the paper that their county government just sprang severla hundred convicted felons out of prison.. (for their SAAAAaaaaffety, you unnastan, can’t be havvin them die in the jail now…can we?)'” Then they decide they really ARE at risk, thanks to da gummit they trust, and so MUST go buy a gun. They are told by the media that its no more difficult than buying a new toaster off Amazon. And they thoigh tthat was scary, cuz no tellin WHO can git wunna them there GUNS.. but they KNOW they wont hurt anyone, so that doesn’t matter. THEN they decide which one they want, and try to BUY it. Paperwork. Lots of it. ID. Some places fingerprints. THEN they pay for it… nd find out they have to wait an hour for them to process the “background check”. OH< yeah, that's right. I voted for that thing. Didn't really know what it meant, but now I do. Finally their name is called, they come up, finish the paperwork, then the clerk snaps up "their" new gun, wraps it back up, puts it back into the box.. and steps through the swinging door into the back room WITH THEIR GUN… when the clerk returns to find a shocked and irate "new gun owner", WHERE IS MY GUN?? I JUST PAID FOR IT, I WANT TO TAKE IT HOME.
              Oh,don't you know this state has a ten day witing period. You can't take it home till that time is passed, then you can come back and pick it up. WHAAATTTT!!!??!!!
              Well,Ma'am, did you vote last electio? Yes, I did, so what? Do you remember this bill number such and such….the one about common sense gunsafety? Oh, yes, I do remember that one. I voted FOR it because it seemed so sensible. Well, Ma'am, this ten day waiting period is one of the many restrictions THAT bill imposed upon YUO who voted for it.

              Y Y Y Yyou mean, I voted for THIS? "Yes, Ma'am, you did. Welcome to reality. You and millions of others.
              Its not MY rule, I hate it. Now I have to keep track of YOUR gun for ten days, and if anything happens to it it is MY problem because while you OWN it this very second, yuo cannot possess it.. yet.

          5. zhave him read some accurate history on the founding era. One I found useful, accurate, fun to read, is Paul Revere’s Ride by Daxid Hackett Fischer. Reads a lot like a novel but thelast quarter of the book is footnotes and sources,

            Then we always have the likes of Hayek, von Mises, Thomas Sowell, his Basic Economics is a gold mine. If yuor friend reallly wants to learn about how themarket works, and how it should work, and an evenhanded analyses of all manner of government intervention, that’s the book. Nice big hardback, cost mauybe $25 new. He begins with a topic, sets it out, then provides a number of short chapters of case studies, always interesting, on how/why that ‘thing” works/does not work in reality. His case study of the mole skin industry in Soviet Russia back in the 1970’s and 80’s is hilarious… perfect display of government management doing precisely what it is NOT intended to do, but does exactly like any government would.. and the results are hilarious.

      2. I was told that AND that I wanted granny to die.

      3. “He thought that I was the arrogant one for assuming that they didn’t think this through and that I knew better than them.”

        They are literally smarter than everyone in every way! That’s why they’re in charge. duh

        1. You mean that’s why they *should* be in charge. But the [fill in your preferred Kirkland term for non-progressives] keep voting for [fill in preferred Kirkland term for Republican officials]. Everything will be better when they finally die off and let the intelligent progressives run the show!

      4. “they aren’t even considering the economic consequences of lockdowns”

        You want to see an artistic rendition of this statement? Go to 1:40 of this link: https://www.youtube.com/watch?v=cD5LlVFSuXE

        Over the yelling lunatic’s shoulder, one can see Dr. Acton tossing out the baby (wearing a sash that says “economy”) with the bathwater (COVID-19).

      5. You should immediately and incessantly begin tea-bagging them with it hard. (Any puns are intentional or unintended but enjoyed in either case.)

    3. Same with Michelle Lujan Grisham in New Mexico. Middle aged bitter w(h)ine moms in power is an ugly thing.

  4. I hope it sticks. DeWine and Acton are mini-tyrants. They soaked up that liberal media coverage.

  5. I hope President Trump gives every one of these pro-freedom, pro-Constitution, pro-American judges striking down arbitrary martial law and tyranny the Medal of Freedom. They deserve it.

    1. And considers them for the Supreme Court.

    2. put them into t Federal judiciary system…. true liberty minded judges at the fed level ………….can’t be enough of ’em.

  6. >>’Arbitrary, Unreasonable, and Oppressive’

    those Ohio judges know concrete.

  7. The key that I see is this: In addition to the injunction, the plaintiffs are seeking compensation for lost income and legal costs.

    People can still sue the health department even if it opens now. This is just a beginning and you are going to see a floodgate of lawsuit.

    I feel like this is an extremely clear move of Trump. All Trump admin did was to issue the guideline of essentially 6ft and no gathering of 5 people?. They never said to close all these things. It’s the governors and health people who did this.

    If I am a governor, I would open everything now.

    For me, I would like NY state to return my state tax and NY city to return my city tax.

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  10. Is this one of the “pro-Trump” officials the RNC is searching for?

  11. I think she is kinda cute in a nerdy way.

    She comes across well in her conferences. Not polished but more like the lady doctor you know trying to explain a complicated medical situation to a patient or family member.

    Look you ask the doc you get the advice you get. “Well you should really cut down on fatty and salty foods, get some more exercise, here is a prescription for blood pressure and let’s check your cholesterol again in a couple months. “

    After which, if you are from Amy’s part of the world in NE Ohio, you stop at Swenson’s for a double cheeseburger with the works. Since you are feeling better already.

    Yes things need to open up in Ohio sooner rather than later.

  12. I appreciate the judge’s order. Whether or not enforced social distancing makes sense, it is really debilitating for those with a wide range of mental health disorders. Personally I have had to watch and deal with a steady decrease in a family member’s mental stability directly correlated with the virtual imprisonment dictated bu state officials.
    The prudent course would be to determine how the system will restart BEFORE it is shut down. Any fool can shut the system down, it takes wisdom to decide how to restart.

  13. An unprecedented 20.5 million jobs were destroyed in April in the world’s largest economy, driving the unemployment rate to 14.7 percent compared to 4.4 percent in March, the Labor Department said in its monthly report, the first to capture the impact of a full month of the lockdowns.

  14. its ridiculous that we have to resort to courts to get the local political hacks to comprehend BASIC science they could have learned in HS. the coming intrusions on freely moving about will be fun. i will NOT be volunteering ANY personal info for ANY reason if it starts being demanded for entry to restaurants and such. i will loudly tell anyone asking for it that they are retarded simpletons and should not live their life in fear of NOTHING. of course this will be mandatory if you want to fly anywhere…the end of our republic is near

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  16. Its not enough to over turn these little tyrants powers. They must be held accountable for what they did/tried so as to discourage others from trying something similar in the future. These people need to be arrested and tried in front a jury of those who were victims of their actions. Elected officials and even un-elected bureaucrats have to be held accountable when their actions interfere in the lives of others. They can not simply have the free will to do as they please without repercussions.

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