Kalahari Resorts
© Kalahari Resorts
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."