Interest Party Testimony on OH House Bill 90

Maurice A. Thompson
1851 Center for Constitutional Law
February 16, 2021

Rep. Scott Wiggam, Chairman
State and Local Government Committee

Mr. Chairman and Members of the Committee:

Many features of House Bill 90 are well-drafted and warrant commendation, as do the intentions underlying the Bill. However, due to a number of serious but resolvable oversights, this proposed legislation fails to check the administrative overreach Ohioans have endured over the past eleven months. For the purposes of brevity, this testimony will focus solely on those deficiencies and how to cure them.

  1. Remove the text stating “under section 3701.13 of the Revised Code” so that HB90 limitations apply to other sources of unlimited administrative authority over pandemic matters. See Page 3 (Line 62-63); Page 4 (Line 100-101)

Due to several sections of the Bill limiting its scope to R.C. 3701.13, the Bill does not effectively limit the authority of the administrative state or executive branch to impose broad and unchecked regulations on
Ohioans. This is because health departments interpret R.C. 3701.14 and R.C. 3707.26 as broadly authorizing them to shut down any business, industry, or school at any time, for any length, without notice or a hearing.

First, leaving untouched R.C. 3701.14, which the Ohio Department of Health now primarily relies upon when imposing sweeping pandemic regulations, subjects Ohioans to the same arbitrary administrative regulations that
House Bill 90 otherwise seeks to limit.

This reality is best understood in context. In response to 1851 Center litigation to curtail the same type of administrative overreach sought to be checked through HB90, Ohio courts determined that penalizing
noncompliance with a R.C. 3701.13 order is impermissibly unconstitutional and otherwise unlawful. See Rock House Fitness, Inc. v. Acton, Case No. 20CV000631 (Lake Cty. C.P. 5-20-2020); LMV DEV SPE, LLC DBA Kalahari Resorts & Conventions v. Acton, Case No. 2020-CV-0201 (Erie Cty. C.P. 6-20-2020).

In Rock House, the Court explained that “[t]he director has no statutory authority to close all businesses . . . She has acted in an impermissibly arbitrary, unreasonable, and oppressive manner and without any procedural safeguards . . . Fundamental liberties to own and use property and earn a living are at stake and are violated [Acton’s] actions . . . and there is no administrative appeal process within the department of health regulation for this taking.” Id., at ¶26, 31, 34.