Ohio’s Pandemic Reform Bill: Good and Bad
Ohio General Assembly adopted key 1851 Center recommendations, but other than leveling legal playing field, leaves Governor and ODH unchecked
In overriding the Ohio Governor’s veto and enacting Senate Bill 22, the Ohio General Assembly codified several 1851 Center recommendations that will benefit Ohioans.
Upon the 1851 Center’s advice and request, the Ohio House of Representatives added the following safeguards to House Bill 90 before rolling that Bill into Senate Bill 22:
- Reining in Local Health Department Authority: Past General Assemblies had granted local health department breathtakingly-broad powers. SB22 universally addresses these hidden landmines by (1) limiting “quarantine and isolation” powers to use on only those “who have been medically diagnosed with the disease or have come in direct contact with someone has been medically diagnosed;” and (2) requiring local administrative orders to “apply only to specific persons” and forbidding “any order or regulation that applies to a class of persons.”
- Access to Justice in One’s Home County: The Governor and Health Department employed questionable legal tactics to move all legal challenges to pandemic orders to either Franklin County or the Court of Claims in Columbus. SB22 vests Ohioans with the right to challenge pandemic orders in their home counties before their own elected judges.
- Access to Legal Representation to Challenge Pandemic Orders: While many state and federal provisions require government to compensate someone who has successfully vindicated his constitutional rights in court, no such provision applied when Ohioans challenged the constitutionality of pandemic orders, leaving many Ohioans (already cut off from their incomes) without the ability to acquire legal representation to protect their rights. SB22 requires the State to pay “reasonable attorneys fees” to those who “successfully challenge an order or rule.”
- Preclusion of Shifting Justifications for Administrative Power: After the 1851 Center won several lawsuits challenging the constitutionality of R.C. 3701.13, the State began claiming that its authority actually arose from a different statute. SB22 closes this loophole by applying its limits to all like-kind statutes.
- Preclusion of Gamesmanship, Should the General Assembly Act: The original version of the Bill failed to prevent the Governor from simply re-enacting a restriction invalidated by the General Assembly through pretextually labeling the restriction differently. SB22 closes this loophole by forbidding “the reissuance of any restriction contained in the rescinded special or standing order or rule.
- ”Addition of a “Severability Clause”: SB22 ensures that even if one provision within the Bill is “held invalid, the invalidity does not affect other items of law contain this act.” This means that the 1851 Center’s recommended policies will endure even if the General Assembly’s other reforms face legal headwinds.
In addition to safeguards recommended and/or written by the 1851 Center, the Bill contains the following limits:
- A declared “State of Emergency” may not last longer than 90 days, meaning the Governor’s emergency rulemaking authority also expires with 90 days.
- The General Assembly maintains the power to terminate the “State of Emergency” Declaration after 30 days, thus cutting the Governor’s emergency rulemaking authority to 30 days as well.
- The General Assembly maintains the power to rescind any pandemic-related administrative rule and order through adopting a resolution doing so.
“It’s unlikely that the General Assembly will ever rescind a rule or order or terminate a state of emergency, and the reform bill leaves the Governor and Ohio Department of Health nearly as unchecked as they have been over the past year, meaning that the legislative branch has essentially passed the buck to the judicial branch to protect Ohioans,” explained 1851 Center Executive Director Maurice Thompson.
“However, we appreciate the General Assembly leveling the playing field for Ohioans who need to vindicate their rights in Ohio courts, and we look forward to carrying on that fight, now that the State’s gamesmanship has been put to rest. We are also pleased to be able to concentrate our efforts on Ohio’s Governor and Department of Health, with local health departments now appropriately disarmed.”
Read the Read the 1851 Center’s February 16, 2021 Recommendations to the House here.
Watch the 1851 Center’s Testimony on the Bill:
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