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