DAYTON, Ohio (WDTN) – Former Ohio Department of Health Director Amy Acton will likely be dropped from lawsuits filed against her and the Department of Health due to shutdown orders rendered by the agency during the COVID-19 outbreak.
Businesses have filed lawsuits against Acton and the department after they were forced to close over concerns about the spread of COVID-19. As of Friday, there have been over 40,000 cases of COVID-19 in the state, and over 2,500 confirmed deaths. Two Ohio music festivals had filed suit against Acton and ODH on Thursday.
Dr. Marc Clauson, a professor of law and history with Cedarville University, said the suits will continue with the possibility of Interim Director Lance Himes being named in place of Acton.
“They were filed against her in her capacity as director of the department of health,” Clauson told WDTN.com on Friday. “This is a common tactic, to sue everyone you can sue and hope something sticks. That’s a real strategy people do.”
“Since she has now resigned the court probably won’t allow the suits to continue against her. The suits at least seem to have good standing to continue to move forward and will probably be allowed to continue against the department of health and the new director.”
Clauson said if Himes and ODH decide to rescind all lockdown and shutdown orders the courts may render the suits moot. But the courts could also decide to allow the suits even if lockdown orders are rescinded due to the lost revenue and other injuries the businesses suffered.
The suits have also raised constitutional issues. Some suits have claimed the state violated the First and Fourteenth Amendments of the Constitution; citing violations of freedom of speech, freedom of religion, freedom of assembly and the state has not treated them equally in relation to other businesses.
Clauson said lawsuits have been filed across the country and he expects some decision to be made soon at the Supreme Court level.
“Many of the suits across country have rendered different rulings, some are making their way into federal circuit courts,” Clauson said. “The trial courts, it’s been a mixed bag all over. Some suits have been appealed to federal circuit courts, and the decisions rendered there have been split. If you take all the relevant cases together, it’s split 3-3 right now. That means if it continues, the United States Supreme Court will hear a case.”
Clauson said a Supreme Court case ruling on all the relevant lockdown suits against states would likely come down to a 4-4 ruling. In those cases, Chief Justice Roberts has usually been the deciding vote. While his record has been to usually side with fellow conservatives, he’s also gone the other way on different cases including the Affordable Care Act, which he sided with liberals and the Obama Administration and ruled it legal. He also ruled with liberals during an emergency petition recently on whether lockdowns in California and Illinois violated religious rights, ruling they hadn’t.
“It’s difficult to read the court on this kind of thing,” Clauson said. “(Roberts) was the deciding vote on ACA and and on the recent emergency petition case, though that may have been because it was an emergency petition and didn’t go through the normal judicial channels. If the case comes back to the court he may rule with conservatives.
Clauson said the Supreme Court usually rules in favor of governmental bodies, but the exceptions are often cases concerning the First Amendment and equal protection – what many of the lockdown suits are based on. The states are also required to show what’s called “strict scrutiny,” meaning the decision had to be made based on a compelling government interest and tailored that decision in the narrowest way possible in order to have as little effect on citizens as possible.
“The (Supreme Court) has shown a tedency over time to rule in favor of states on compelling isssues unless its certain issues like freedom of speech and freedom of religion,” Clauson said. “But this kind of event in which the compelling health issues are so big, they could rule the states can keep (lockdowns).”
Himes, Acton’s replacement, was general counsel for the Ohio Department of Health before being named interim director by DeWine on Thursday. Himes had been the interim director for the agency in 2017 when he was appointed by then Gov. John Kasich.