Does the Constitution apply when there is a pandemic? Last time I checked there were no footnotes or exclusions indicating that its enforcement was dependent on national emergencies or pandemics. The declaration of essential and non-essential businesses across the nation raised an alarm for many. The state of Ohio, perhaps more so than others, because the declarations were signed by someone that was NOT elected by the people of Ohio.
A lawsuit was filed on April 16, 2020, in the U.S. District Court in Columbus Ohio against the Ohio Health Director Dr. Amy Acton. Bridal shop owner Tanya Rutner Hartman, owner of Gilded Social LLC, is challenging the constitutional grounds ordering her to close her “non-essential” business because of the COVID-19 outbreak.
Dr. Amy Acton – who was NOT elected by the people of Ohio – ordered on March 23rd that all “non-essential businesses and operations must cease” to help counteract COVID-19. The initial order was adjusted to satisfy certain parameters on April 2, 2020 to include penalties for violating such an order.
In other words, under a mandate being enforced by an unelected official, Ms. Rutner was forced to close her business and not operate or she faced a fine of $750 and up to 60 days in jail.
The department and its director claims the authority to criminalize ‘non-essential business’ as defined, if defined at all, solely by the [Health] department and [Health] director.Court Filing [HERE]
The remedy sounds as if it is seeking for an unspecified amount of monies, damages and reasonable legal fees.
KEY POINTS OF THE CASE THAT ARISE
The constitutional rights of Ms. Rutner and other Ohioans are being violated because they are not being afforded due process to challenge the criteria the state is using to determine which businesses they’re deeming essential. Ms. Rutner contacted the state to query and dispute their guidelines and was NOT afforded such a right.
ACCOUNTABILITY & ACCESSIBILITY FOR DISPUTING/CONTESTING ORDER
According to the order that Dr. Amy Acton issued and enforced upon the residents of Ohio, she outlined procedures to resolve disputes concerning any sections of the order outlined in Section 23 of her order [HERE].
According to a dispute resolution case found here, it and the order Dr. Acton put into enforcement fails to demonstrate where the burden falls. It further outlines how a dispute can ONLY be raised IF a local health department’s policy conflicts with that of the order. This authoritarian type of power in essence allows them – without any hearing – to issue orders and decisions that are final. The Commission is appointed by the Director of Health, who herself is NOT an elected official. This “Dispute Commission” has a template in which they simply sub the nature of business and respond to disputes filed. It’s pretty incredible that UNAPPOINTED people are the ones making all the decisions during this INFODEMIC. Unelected people who deprive you of the your civil liberties by disallowing you to dispute their mandates and orders UNLESS an official of your local health department (whom identified a conflict between state department of health and the local health department) does it for you. Lastly, the response you receive is a template that is used for all responses, they just sub things like name and business only. [EXAMPLE DISPUTE DECISION]
In summary, you can’t file a dispute yourself, you need another appointed official and you don’t get a way to appeal their decision because it’s final. Sounds like the coronavirus may have infected the elected officials of Ohio with some Communism because this sounds very gestapo-like.
Those are the things this case is arguing on the basis that violating the order is a crime, therefore criminalizing what someone who is NOT elected deems non-essential. This also denies the Ohioan the right to a post-deprivation hearing where the state is MANDATED to demonstrate “non-essentiality” or inability to take safety provisions.
In the state of North Dakota the governor deemed getting a haircut NON-ESSENTIAL, but getting a face lift ESSENTIAL. In the state of Michigan the governor deemed kayaking ESSENTIAL, but fishing NON-ESSENTIAL.
The selection of “essential vs. non-essential” is in the eye of the beholder, but when the state chimes in it’s a matter of law since criminal charges apply if you disagree with the state’s determination of non-essential business.
The people of Ohio are angry and they are right to be. They stormed their capital this week to speak to their ELECTED officials about the violations to their rights and were not even entertained, let alone addressed.
WHAT THE COURT MUST ADDRESS
The fact that Dr. Amy Acton signed the “Stay At Home” order is a huge concern. She is NOT ELECTED by the people and yet her signature bares authority over all elected officials in the state of Ohio, including the governor. Indeed, Ohio has state law that empowers the Director of Health – an UNELECTED official – to trample and assail the liberties afforded to each Ohioan by the U.S. Constitution.
While the case is arguing that there is no ability to assign burden, the verbiage of the law providing her such powers is specifically the most concerning.
“The department of health shall have supervision of all matters relating to the preservation of the life and health of the people and have ultimate authority…”
The above statement is the Department of Health’s “king me” card, though the following statement is even MORE terrifying:
“The department may make and enforce orders in local matters or reassign substantive authority for mandatory programs from a general or city health district to another general or city health district when an emergency exists…”
This gives Dr. Acton the right to make and enforce orders like the “STAY AT HOME ORDER” but also create MANDATORY PROGRAMS.
MANDATORY PROGRAMS include and are not limited to mass mandatory vaccinations, mass mandatory testing and more. The Director of Health will have the right under R.C. 3701.13 to not only create such programs, but ENFORCE them in the same manner as her “non-essential” business closure order, with fines and jail time. [HERE]
Through litigation of this case the R.C 3701.13 will hopefully be required to be stricken and or rewritten. This time, Ohio legislators should do a BETTER job at protecting the constitutional rights of their constituents and not hand full authority to an appointed individual that the people did NOT ELECT.
The case is being heard today April 17, 2020 at 14:30 by Chief Judge Marbley. The full case filing is HERE. Hopefully we will see more citizens across the U.S. hold their state governors accountable for their disregard of rightful liberties afforded to them by the U.S. Constitution.
Haley Kennington contributed to this report.