Governor DeWine,

I am in receipt of your letter dated March 22, 2021. Thank you for sharing with me your

response to Substitute Senate Bill 22. I believe your response demonstrates the

fundamental differences between the current philosophy of the Executive branch and the

philosophy of the majority of members in the Legislative branch. We differ in the role and

moral authority of a government that is bound by Constitutional imperatives of protecting

individual rights of the citizen by severely limiting the powers of government.

I understand that you believe that your actions over the course of the year were

reasonable, rational and even scientific. Even if this is assumed, your actions have

demonstrated the unfettered power of Ohio’s Executive branch of government and the fact

that a future governor could demand through emergency declaration, orders and rules an

endless list of freedom ending demands on future generations of Ohioans. When power is

consolidated through emergency it always leads to tragic oppression and is rarely retrieved

by the people without desperate action. In the past year, Ohioans have faced constantly

moving goal posts and life changing policies from one branch of Ohio’s three branches of

government.

Substitute Senate Bill 22 places guardrails around authority that was given to the Executive

branch by the Legislative branch of government. While S.B. 22 still allows the

administration to create orders and emergency rules, it reestablishes checks and balances

into the process by giving the Legislature the ability to review and ultimately oversee

orders and emergency rules by any department under the Executive branch in response to

public health emergencies.

The examples cited in your letter all make reference to situations where freedoms of

Ohioans are being limited without any form of due process or even at times factual basis. I

believe that S.B. 22 rightly protects Ohioan’s freedoms while allowing for Executive branch

action.

In particular, I will respond below to several scenarios outlined in your letter.

“PROTECTING OHIO CITIZENS”

You gave several hypothetical scenarios that the requirement in S.B. 22 “could result in a

serious tragedy.” Even though the ultimate authority to quarantine and isolate has been

codified since 1886, your letter does not identify a single real-world example of an instance

where that power has been used to prevent harm, instead using the terms “if” and

“assume” to raise only hypothetical scenarios which will either never occur or could be

dealt with through the use of R.C. 3701.13 or R.C. 3701.14.

1. Under current law, the Executive branch would not have been able to quarantine the

two students as there was no epidemic or pandemic in Ohio at the time and would not be

able to do so in the future under current law in the same situation. The local board of health

can still ask future students to self-quarantine. In the entire year of this pandemic, there is

not one instance where the Executive branch actually quarantined foreign nationals flying

into Ohio’s international airports. If there is a concern, the U.S, Department of State and

CDC can take measures to quarantine such individuals or stop such flights.

2. The federal government controls access to the United States. If there was a

particularly serious outbreak from a particular country, again the U.S. Department of State

would prohibit travel from those countries. Furthermore, the officials actively monitoring

the 44 individuals who are still waiting for EVD symptoms could simply ask for the test in

lieu of symptoms.

3. If the United States is attacked by any weapon, biological or otherwise, neither the

local board of health nor the state DOH would have jurisdiction for response. That

responsibility would fall to the military in conjunction with the CDC and FEMA. Martial law

can be implemented by the federal government under those circumstances.

4. A health department could close down a restaurant for a Norovirus outbreak. By the

time a health department could figure out that the cook was spreading it, the cook would

no longer be contagious. Are health departments or the DOH seriously asking for the

authority to isolate people they think may have a Norovirus? Furthermore, no power

within 3701.13 is required to address food-borne illnesses, which already fall within the

domain of R.C. 3717.49(C)(1) (“On determining that a license holder is in violation of any

requirement of this chapter or the rules adopted under it applicable to food service

operations and that the violation presents an immediate danger to the public health, the

licensor may suspend the food service operation license without giving written notice or

affording the license holder the opportunity to correct the violation.”).

“AVALANCHE OF LAWSUITS”

Sovereign immunity is not eliminated. One cause of action is created to give local citizens

the opportunity to contest illegal orders of the government. Attorney fees are only available

when the plaintiff proves the government issued an illegal order.

The lawsuit can only take place in the county where the individual was wronged. The State

is not liable if it does not violate Ohioans’ constitutional rights. Even if it does, it remains

protected by sovereign immunity. Further, S.B. 22 simply permits adjudication that

currently takes place in the Court of Claims in Columbus, i.e. lawsuits for damages against

the State, to take place before elected judges in Ohioans’ home counties.

Rather than “creating a special pathway,” S.B. 22 is patterned after 42 U.S.C. Section 1988

(State liable for prevailing parties attorney’s fees), R.C. 163 (State liable for prevailing

parties attorney’s fees in eminent domain actions, R.C. 2335.39 (providing that “the

prevailing eligible party is entitled, upon filing a motion in accordance with this division, to

compensation for fees incurred by that party in connection with the action or appeal”); and

R.C. 733.61 (Cities liable for attorney’s fees when “taxpayers allegations are wellfounded”).

Pursuant to each statute, the plaintiff must prevail. Accordingly, S.B. 22 simply

creates uniformity by eliminating an anomalous immunity, such that citizens whose

rights the State has verifiably violated may recover the cost of having to prove so

in state court.

Under the second scenario you write, “…different courts could come to a different

conclusion on the same issue, all in the middle of an emergency.” This is true now. And S.B.

22 does nothing to alter or abandon this reality. In fact, after Courts of Common Pleas in

Lake and Erie Counties determined that the Executive branches pandemic orders were

unconstitutional, your attorneys urged latter Ohio courts of common pleas to ignore those

rulings and come to a different conclusion on the same issue, all in the middle of an

emergency.

In regards to “states of emergency”, if the state does not act illegally, there is no

issue. However, the prison example is very concerning. The insinuation is that you do not

want the court to interfere if there is an emergency at a prison. Isn’t that why we have

courts? What if a future governor goes too far in response to the “riot”? Instead of cutting

off power, what if they try to starve out the prisoners or cut off water and

sanitation? Should that be permissible? The courts should be the venue to determine

whether the response passes constitutional muster.

“FOOD SAFETY”

Local districts can still shut down individual restaurants for health code violations. The

example given would be a health code violation at a particular restaurant. If it is system

wide, say bad beef at a hamburger franchise, the local board would not have

jurisdiction. The U.S. Food Inspection Service is responsible for recall of tainted meat and

the prevention of consumption thereof. Same goes for the Food and Drug Administration if

it is a recall of anything other than meat, poultry or eggs. Those are the domains of the

USFIS.

“COURTS WILL MAKE HEALTH POLICY”

The courts wouldn’t be making health policy. They would decide if the administration

violated the constitution or state law under the guise of an emergency or a health

order. That is the purpose of the court.

“STATE UNIVERSITIES”

Universities do not issue the type of rules or orders identified by S.B. 22. Further, Ohio

universities are already subject to suit in their home county, and may be sued for damages

in federal court in the home venue of the university.

Universities benefit from the same sovereign and qualified immunities identified

above. Under S.B. 22, a plaintiff aggrieved by a State rule or order (enforced by a university,

presumably), may sue the State directly in his home county rather than having to sue the

university so as to obtain venue in his home county, resulting in less litigation for

universities.

Moreover, when a university has issued and enforced an unlawful order, there is a public

good in permitting citizens whose rights have been violated to correct that matter before

an elected Ohio judge.

“THE OHIO GENERAL ASSEMBLY”

The G.A. would not be subject to suit pursuant to the authority granted under S.B. 22. The

G.A. does not issue orders or rules. It legislates through bills and concurrent resolutions.

“CONSTITUTIONALITY”

Section 15, Article II of the Ohio Constitution does indeed require the enactment of “laws,”

by “bills,” but S.B. 22 is a “bill” making the “law” that governs the Executive branch’s

exercise of its authority. The General Assembly is the only policymaking authority

identified by the Ohio Constitution, and could eliminate administrative order and

rulemaking authority entirely. The Separation of Power is violated by the delegation of

authority without standards or limits to the Executive branch, and S.B. 22 attempts to place

some conditions on the exercise of that Executive branch’s authority.

The Ohio Constitution does not grant emergency powers such as the ones claimed in your

letter. All of those powers are statutory. They are given to the governor through legislation.

The same is true for the DOH and agencies. Thus, the governor’s emergency powers are

limited to those given to the office by statute. Not only can the G.A. grant the governor the

authority, it can also take it away through legislation. The G.A. can also limit the authority it

grants or make the authority it grants conditional. That is precisely what S.B. 22

does. Ultimately, the Court must decide if the bill is constitutional, not the governor.

In conclusion, your letter suggests that the Executive branch of government has or at least

should have absolute unfettered authority whenever it decides to declare an emergency or

issues an order. This type of power would mean that the governor should make the law,

enforce the law, and do so without any possibility of judicial oversight. This type of

autocratic rule must be checked by the Legislature and should be tested in the courts

because I believe it is not only unacceptable, it is also unconstitutional. An Executive

branch that has the unchecked power to issue a “stay at home order” to healthy citizens

or prevent all citizens from being out past 10 p.m. under the threat of arrest, simply has too

much power.