Another Judge Rules That Ohio's COVID-19 Lockdown Is Illegal

The decision says the "unbridled and unfettered consolidation of authority in one unelected official" violates due process and the separation of powers.


Ohio's COVID-19 lockdown violates due process and the separation of powers, a state judge concluded today, ruling in favor of a company that sought to reopen a water park without suffering criminal penalties. "This unbridled and unfettered consolidation of authority in one unelected official is dangerous grounds to tread on," writes Erie County Court of Common Pleas Judge Roger Binette, referring to Ohio Department of Health Director Amy Acton's orders requiring "nonessential" businesses to close. "If one unelected, unaccountable to the public official is allowed to invoke unfettered Orders [that] criminalize an otherwise non-criminal activity only for disobedience to her Orders, then the right to Due Process is extinguished."

Binette's temporary restraining order allowing Kalahari Resorts & Conventions to immediately reopen its water park in Sandusky is another legal blow against Acton's business closure order, which Lake County Court of Common Pleas Judge Eugene Lucci  deemed "arbitrary, unreasonable, and oppressive" in a decision last month involving gyms. While Lucci's ruling focused on statutory interpretation, Binette concluded that Acton—who resigned from her job as head of the health department yesterday but continues to advise Gov. Mike DeWine on health issues—exercised unconstitutionally broad powers by purporting to make the operation of certain heretofore legal businesses a crime.

In issuing her orders, Acton relied on a statute that charges her department with "supervision of all matters relating to the preservation of the life and health of the people" and gives it "ultimate authority in matters of quarantine and isolation." She interpreted that to mean she had "the authority to make special orders for preventing the spread of contagious or infectious disease."

Binette questions that interpretation, saying "a literal reading" of the law "reveals that it does not state Defendant Acton has" the authority she claimed. But assuming Acton's understanding of the law is correct, he says, the statute unconstitutionally delegates legislative powers to a single executive branch official.

That transfer of authority "violates the separation of powers that exist[s] in our Constitutional framework to protect our citizens from the consolidation of power in one person," Binette writes. "Laws and policy are to be made by our elected legislature, accountable to its citizens." Yet Acton claimed the power to "legislate by issuing an Order" and "then criminalize [violation of] the same policy she has made" by declaring it a second-degree misdemeanor, punishable by a $750 fine and up to 90 days in jail.  Furthermore, "the criminalization of it is based on strict liability" with "no provision for defenses," although "Ohio criminal statutes require 'intent' to be set forth in concert with a particular crime."

Under Acton's order, Binette notes, Kalahari Resorts risked criminal penalties even though it agreed to follow state-recommended safety protocols, based on a plan approved by the local health department. DeWine is gradually allowing businesses to reopen, provided they follow sanitary and social distancing rules. But so far water parks have remained closed.

"Kalahari has an approved safety plan for reopening," Binette notes. "They are willing to comply with the safety requirements of Defendants. They have re-opened their Wisconsin facility—utilizing the same plans—with no known health issues related to the virus. There appears to be no reason they 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 [on] Due Process and Equal Protection rights—issued the May 29th Order."

In short, Binette says, Acton asserted "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'"; and to do so based on laws that, under her interpretation, "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." Those issues, he says, "are a concern for this Court in regards to Due Process and Equal Protection rights."

Binette's ruling highlights two key issues raised by the sweeping business closure and stay-at-home orders that states have issued in response to the COVID-19 epidemic: Are they authorized by statute? And if so, is the sweeping discretion those statutes entrust to executive-branch officials consistent with the separation of powers? The Wisconsin Supreme Court answered no to both questions when it overturned that state's COVID-19 lockdown last month.

DeWine "can run from the Ohio Constitution, but he can no longer hide from it," says Maurice Thompson, executive director of the 1851 Center for Constitutional Law, which represents Kalahari Resorts as well as the gyms that challenged the business closure order. "With yet another judicial repudiation of his conduct, there can be no justification for continuing his unconstitutional assault on Ohioans."

A spokesman for DeWine said "we respectfully disagree with the ruling," adding that the health department "will be consulting with the Ohio Attorney General's Office regarding potential next steps."

NEXT: Dave Chappelle's '8:46' Expresses Righteous Rage Over George Floyd's Murder

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    Are we are on 4th or 5th sec def now? I’m losing count. You don’t need an MBA to know that a sure sign of a successful organization is high turnover in leadership.

    He deserves to be fired of course, for not being enthusiastic enough about using federal troops against water bottle throwers in DC. Trump was hiding in his bunker, begging for cavalry, and Esper wouldn’t give it to him! He’s got to go!

    1. Trump’s not going to be satisfied until he gets his Kent State moment.

      And at the rate things are going now, if another Kent State happens, half the country will cheer them on.

      1. Trump’s not going to be satisfied until he gets his Kent State moment.

        Fingers crossed, eh, Jeff?

        1. Lying Jeffy’s have TDS so bad they have wet dreams about Trump slaughtering innocent people. Meanwhile, he hasn’t even had a single US citizen assassinated without due process yet! He needs to get going if he wants to earn a Noble Peace Prize like Obama.

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      2. why are you yalking to yourself?

        1. “De Oppresso Liber
          June.12.2020 at 8:09 pm”

          “chemjeff radical individualist
          June.12.2020 at 8:20 pm”

          Total coincidence

          1. I can call him Lying Jeffy, or I can call them Lying Jeffy’s. It matters not to me.

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    2. You don’t need an MBA to know that a sure sign of a successful organization is high turnover in leadership.

      5 SECDEFs under Obama. Leadership issue?

      2 SECNAVs (+1 holdover from Bush) under Obama. The first lasted 67 days. The second, Ray Mabus, was roundly despised by sailors. Leadership issue?

    3. “water bottle throwers” Yeah, there hasn’t been any violence by the protestors, has there? That was a rhetorical question, btw.

      1. Ignore 13 deaths, 400 injuries to cops, etc.

        1. Only black lives matter.

          Get with the Stalinist program!!

          1. Actually, only black deaths matter, and only if caused by some racist honky cop.

            1. Yeah, blacks killing blacks is fine with BLM.

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    4. Fuckin’ LOL–one would think you’d be happy that a governor had his overriding authority struck down. Guess your ass is still chapped about that ginned-up Russian collusion controversy.

    5. Well you dont have an MBA. Nor a business. So you would know.

      1. He’s a “meh” and has been a “meh” his whole undistinguished existence.

        It’s why he thinks middle management = leadership.

    6. “You don’t need an MBA to know that a sure sign of a successful organization is high turnover in leadership.”

      Bill Belichick would like a word.

      1. Bellicheat would like to demonstrate how his cheating should be tolerated if it brings in more revenue for the league.

    7. “…Are we are on 4th or 5th sec def now? I’m losing count. You don’t need an MBA to know that a sure sign of a successful organization is high turnover in leadership…”

      Wanna know if someone’s a victim of TDS?
      Not to worry, like, oh, vegans, they’ll tell you regardless of the subject under discussion.
      Yes, the pathetic pieces of shit wake up in the morning hating Trump, and go to sleep at night exactly the same.
      It is their whole life; take away that hatred and you’d find an empty shell devoid of pretty much anything.
      DOL? Stuff your TDS up your ass so your head has some company.

    8. The biggest mistake of executive leadership is not getting rid of incompetent or corrupt people. The second biggest mistake is getting rid of competent and trustworthy people because you don’t like them.

    9. What does that have to do with water parks in Ohio?

  2. Semi – O/T – PA legislature overrides Governor Wolf’s quarantine order (with a veto-proof majority from what I hear). Wolf has appealed to the PA Supreme Court.

    From Pennlive

    1. Haha. Not nearly as off topic as the douchebags at the top of the thread,

  3. My question is why we needed judges to tell us that blatently unconstitutional actions by various govenors and mayors were unconstitutional? They’re gonna try this shit next fall, watch, but hopefully the American people will tell them to go pound sand.

    1. Between the riots and the lockdowns, the November elections are shaping up to be a crushing defeat for the Democrats.

    2. Well, most of Reason has been cheerleading for the lockdowns the whole while. The predominant attitude around here is “shut up and wear your mask everywhere like your betters tell you to.”

  4. Amy Acton. I like her, she is a good doctor. She resigned as director and is still employed in the health department. I think she is in a better place for her now. She does not want this level.

    Can’t blame her. She had protesters outside her house, threats, antisemitic slurs. Who needs that? She is still excellent in what she does, a pediatrician and MPH who can read through the data and tell you what it means.

    So behatzlacha Dr. Acton. Good job.

    1. Acton is a power hungry commie. Of course you’d like her. Her daily pressers were a disgrace to medicine, logic, and constitutional democracy. She should be waiting tables or collecting garbage.

    2. She may be a very good doctor. She was a pretty good communicator. Despite that, she was not a very good public health administrator. In medical terms, she adopted a very one-sided risk avoidance approach that ignored all the other easily-anticipated side-effects of her orders. She ignored considerable evidence that the orders she gave ultimately caused more deaths than they saved.

    3. our local county health czar is worried that California is opening too SLOWLY, and is taking an even more cautious approach, seemingly oblivious to the negative health outcomes of poverty, hunger, homelessnes, despair, isolation and resentment.

  5. OK, so the judge says she violated the rights of citizens under color of law and that her order is invalid and temporarily overturned.

    So, where are the criminal charges?

    It is not enough to ‘permit’ this water park to open. Closing it and threatening with police force is a felony. Conspiring to use the police to do so is an even bigger felony. We need to impose the law and lock Acton up and for a VERY long time.

    If we fail to impose the law upon her, others will not learn and the situation will perpetuate. We need to uphold the law.

    1. Yes, she needs to pay some cost here. Her unconstitutional ‘ruling’ has cost others quite a bit and at the very least, she should be liable for those costs.

      1. If you believe the democrats in Ohio, she already paid a considerable cost in the form of GOP criticism and harassment. They believe that an unelected official should not be subject to such criticism, despite the fact that said official draws a salary of over $185,000 directly from the taxpayers.

        As one of the million plus that she forced out of work, I say “good riddance.” Unfortunately, in her new position, she’ll continue to take from taxpayers, despite the fact that she all but drained the state’s unemployment fund in a matter of weeks.

        1. She is not out of work. She remains with the public health department in Ohio and is an advisor to the government.

          As to her salary she could make much more money in the private sector or one of the university positions. I am pretty sure that Ohio State U. would double that much to get her on staff and she would not even need to move from her house.

          She resigned from the office for her own reasons. Can’t blame her for that.

          Look most doctors just want to practice in their field. It is what they signed up for. She has been excellent in that and I watched most of her conferences. She has the ability to take complex data and explain it in a way people can understand. One thing most people have difficulty with is uncertainty. Docs deal in uncertainty every day. She handled that well.

          1. One thing most people have difficulty with is uncertainty. Docs deal in uncertainty every day. She handled that well.

            Absolute bullshit!! She was an obnoxious, paternalistic, arrogant, self-righteous know it all. Stopping the election was certainly criminal, and the all state lockdown was both damaging and extralegal, as this court determined. She should be sitting in a cell, not a cushy government office.

            DeWine will pay at the ballot box for giving this witch a platform.

            1. How do you know she is a witch?

              Vote for whomever you want.

    2. Just to add. Took the kiddos there some years ago. Kalahari is not just a water park. It is a resort, mostly indoors, kinda cheesy. You book a room for couple nights and relax while the kids have fun with the pools, water slides that stuff. Then you can eat crappy pizza, sip a frozen drink, that sort of thing. There are other things to do in the Sandusky area. Fun place on the North Coast.

      I get that the tourism industry is hurting. My son who was working for a major hotel chain is still on furlough.

      I do not know if her decisions were wrong or right. It is clear that people need to get back to work and are suffering from cabin fever in the lockdown.

  6. Amendment 28:
    No emergency declaration by an executive branch official of any level of government shall exceed 7 calendar days without unmodified ratification by the corresponding legislative body. If not ratified within those seven days, the emergency declaration shall be null and void; and any resulting charges pending shall be dropped, and any fines or fees returned in full. No executive branch official may issue a substantially similar order within the next 180 days,

    1. Interesting proposal. However, I see that failing because it does not accommodate an emergency which prevents the legislature from meeting to ratify the declaration. Consider, for example:
      – a bomb in the capitol which kills enough legislators that they can no longer achieve a quorum
      – an emergency which occurs while the legislature is out of session (assuming that they cannot reasonable return within the 7 day window)
      – an emergency that prevents travel (such as a pandemic) coupled with a power outage on the scale of the 2003 blackout that prevents virtual meetings
      – a travel-restricting emergency in combination with legislative rules that, for what seemed like good reasons at the time, do not allow for virtual meetings
      – an invasion

      The only way around that is to vacate all quorum rules – and that sets up an even worse incentive for abuse. It creates a scenario where one legislator could engineer the emergency then seize power as the sole voice of the legislature.

      You might be able to save the amendment by changing it to “7 legislature days” or something similar. But “7 calendar days” is too restrictive.

      1. Is the first example an “emergency?” Or wishful thinking

  7. It seems like an easy call for a judge to make — no elected or unelected person has the right or the power to deprive an innocent person of life, liberty or property. Any takings have to be for a public person and have to be compensated at full market value. Quarantines and forced isolation for sick people or people exposed to a pathogen can only be temporary, for long enough to determine if the person is a danger to others. Worrying that someone might get sick is no grounds to take any action at all.

    1. public reason, not public person.
      Where’s the edit button?

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  9. If not ratified within those seven days, the emergency declaration shall be null and void; and any resulting charges pending shall be dropped, and any fines or fees returned in full.

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