Exhibit,Appendix: 2021 CVC-H 000167 - NELSON, BETH ELLEN vs. GOVERNOR MIKE DEWINE FOR THE STATE OF OHIO

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                                e-filed on 06/17/2021 03:06 PM in Wayne County, Ohio

IN THE COURT OF COMMON PLEAS

WAYNE COUNTY, OHIO
BETH ELLEN NELSON : CASE NO. 2021-CVH-167
Plaintiff,
v. : JUDGE MARK K. WIEST

GOVERNOR MIKE DeWINE, et al.

Defendants.

 

MOTION TO TRANSFER OF DEFENDANTS, GOV. MIKE DeWINE, AND
STEPHANIE McCLOUD, DIRECTOR OF THE OHIO DEPARTMENT OF HEALTH;
AND IN THE ALTERNATIVE, MOTION TO DISMISS

 

Defendants, Governor R. Michael DeWine and Stephanie McCloud, Director of the Ohio
Department of Health, Defendants move to transfer this case to Franklin County, where proper
venue lies. In the alternative, Defendants move to dismiss pursuant to Civ. R. 12(B)(1) and
12(B)(6). The grounds for this motion are set forth in the attached memorandum in support.

Respectfully submitted,

DAVE YOST
OHIO ATTORNEY GENERAL

/s/ Angela M. Sullivan
Angela M. Sullivan (0075070)

Assistant Attorney General

Health and Human Services Section

30 East Broad Street, 26" Floor

Columbus, Ohio 43215-3400

Telephone: (614) 752-6447

Fax: (866) 429-9087
Angela.Sullivan@OhioAGO.gov

Counsel for Defendants Gov. Mike DeWine and
Stephanie McCloud, Director of the Ohio
Department of HealthMEMORANDUM IN SUPPORT
I. Introduction

“When we strip away the rhetoric here, what’s left is a quarrel over the [State of Ohio’s]
exercise of discretion” and power to protect the public’s health. Hafoka v. Sessions,
734 Fed. Appx. 565, 570 (10th Cir.2018). With the arrival of Covid-19, governments around the
world, including here in Ohio, were forced to take swift action in order to protect the public from
a once-in-a-century pandemic. Gov. DeWine declared a state of emergency on March 9, 2020,
which lasted until June 17, 2021. In addition, the Director of Health took prompt action and issued
orders to control and suppress contagious disease and pandemic conditions. R.C. 3701.14. By
taking decisive action and issuing health orders requiring individuals to wear masks in public and
while visiting nursing homes and to social distance, the Defendants followed their statutory duties
and undoubtedly saved lives.

Furthermore, Plaintiff’s claims do not give rise to legal redress. Ultimately, Plaintiff asks
the Court to do that which has already been done: rescind the statewide mask mandate.
See Director’s Order Rescinding Various Orders, dated June 1, 2021,
https://coronavirus.ohio.gov/static/publicorders/directors-order-rescinding-various-orders-06-02-
21.pdf (last accessed June 11, 2021), attached as Exhibit A. And while visitors at nursing homes
are still required to wear facial coverings, Plaintiff has failed to demonstrate how this mandate
infringes upon her constitutional rights or that the Director lacked the authority to issue such
mandate.

Plaintiff has filed her Complaint in the wrong county, so this matter should be transferred
to the Franklin County Court of Common Pleas. Alternatively, as explained more thoroughly

below, this Court should dismiss the complaint as legally deficient.Il. Facts and Procedural Background

For purposes of this motion only, Plaintiffs claims are presumed to be true. Montgomery
v. Ohio State Univ., 10th Dist. Franklin No. 11AP-1024, 2012-Ohio-5489, § 12. Plaintiff Beth
Ellen Nelson filed this action against Governor R. Michael DeWine; the Director of the Ohio
Department of Health, Stephanie McCloud; and the Director the Department of Rehabilitation and
Corrections, Annette Chambers-Smith, on May 17, 2021. Plaintiff alleges that Defendants
infringed upon her rights guaranteed under the United States Constitution and the Ohio
Constitution by overstepping their statutory authority when issuing several Health Orders! that
sought to limit the spread of Covid-19. Governor DeWine and Director McCloud (collectively
“the
Moving Defendants”) now seek dismissal of Plaintiff's claims or, in the alternative, transfer of this
matter to the Franklin County Court of Common Pleas. The relevant facts are as follows.

A. The Covid-19 Pandemic

“No one can deny that the health risks caused by the [novel Coronavirus] are grave.
Objectively, the health risks posed by COVID-19 are abundantly clear.” Perez-Perez v. Adducci,
459 F.Supp.3d 918, 926 (E.D. Mich.2020). On January 31, 2020, the United States Health and
Human Services Secretary declared a public health emergency for the United States in response to
Covid-19. See Hawkins v. DeWine, No. 2:20-cv-2781, 2020 U.S. Dist. LEXIS 111037, at *6
(S.D.Ohio June 24, 2020) (citation omitted). And the World Health Organization, declared Covid-

19 a global pandemic on March 11, 2020. Horner v. Warden, Belmont Corr. Inst., No. 2:20-cv-

' The relevant statutes in R.C. Chapter 3701 in effect during the time in question, which give
authority to the Director of Health, are attached as Exhibit B.

36118, 2021 U.S. Dist. LEXIS 45419, at *9 (S.D.Ohio Mar. 11, 2021) citing Smith v. DeWine,
476 F.Supp.3d 635, 643 (S.D.Ohio 2020).

Covid-19 “is a serious disease, ranging from no symptoms or mild ones for people at low
tisk, to respiratory failure and death in older patients and patients with chronic underlying
conditions.” United States v. Farmer, No. 1:16-cr-203, 2020 U.S. Dist. LEXIS 127344, at *1-2
(N.D.Ohio July 20, 2020) (citation omitted). Further, “[i]t is now common knowledge that the
virus poses serious risks” especially to those whom have underlying health risks and those aged 65
and older. Horner, 2021 U.S. Dist. LEXIS 45419, at *10; Perez-Perez, 476 F.Supp.3d at 926-927
(citations omitted). Most notably, individuals that live in congregate living settings, like nursing
homes, are also especially vulnerable for contracting severe illness from Covid-19, and the impact
that Covid-19 had on individuals that dwell in congregate living settings, especially nursing homes,
cannot be overstated. See United States v. Wood, No. 19-cr-20216-6, 2020 U.S. Dist. LEXIS
79472, at * 10 (E.D. Mich. May 6, 2020); see also McPherson v. Lamont, 476 F.Supp.3d 67, 71
(D.Conn. 2020).

B. Current Health Orders

Over the course of the pandemic, the Director of the Ohio Department of Health (“ODH”)
issued several Health Orders to slow the spread of Covid-19 in Ohio. At 12:01 a.m. on June 2,
2021, the majority of the State’s Health Orders were rescinded. See Director’s Order Rescinding
Various Orders signed June 1, 2021. See Exhibit A. The rescinded orders include, in relevant
part: (1) The Director’s Order to limit Access to Ohio’s Jails and Detention Facilities, originally
signed March 15, 2020; (2) The Director’s Order for Retail and Business Compliance for Facial
Coverings throughout the State of Ohio, signed December 23, 2020; (3) The Director’s Order

Requiring Facial Coverings in Child Education Settings, signed August 13, 2020. Those whochoose to visit individuals living in congregate care settings, like nursing homes, must wear a facial
covering during the entirety of the visit due to the heightened risk of severe illness that Covid-19
poses to residents of those facilities. See Director’s Seventh Amended Order to Permit Access to
Ohio’s Nursing Homes, with Exceptions, signed March 22, 2021, p. 3.
https://coronavirus.ohio.gov/static/publicorders/amended-do-permit-access-nursing-homes-
wexc-3-19-21.pdf (last accessed June 11, 2021), attached as Exhibit C.

C. Plaintiff’s Allegations

Plaintiff challenges the legality of several former and current Health Orders. Plaintiff first
alleges that the statewide mask mandate violates her constitutional rights and that neither Governor
DeWine nor the Director of ODH has or had the statutory authority to issue such a mandate.
Complaint, p. 1. Specifically, Plaintiff submits that Governor DeWine and ODH’s decision to
institute a statewide mask mandate to slow the spread of Covid-19 “caused irreparable harm” and
was “unconstitutional.” Compliant, 21. Gov. DeWine did not issue Health Orders, and there is
no current statewide mask mandate in place as Director McCloud issued an order that lifted such
mandate on June 2, 2021 at 12:01 a.m. See Exhibit A.

Plaintiff also asserts that she is incapable of receiving medical care due to the statewide
mask mandate.” Complaint, § 28. Plaintiff suffers from high blood pressure and has developed
knee pain. Complaint, {| 28. Plaintiff submits that because of a Health Order issued by the Moving
Defendants she cannot currently see her treating physician and has not been able to receive

treatment in over a year because of her “strong beliefs regarding not wearing a mask... .” Jd.

? To the extent that Plaintiff alleges that the Moving Defendants have issued a Health Order
separate from the statewide mask mandate that requires individuals to wear masks in healthcare
settings, such assertion is without merit. Plaintiff has failed to identify the existence of any such
Order.Neither Governor DeWine nor Director McCloud has issued a Health Order requiring individuals
to wear a facial covering in a healthcare setting, apart from the prior general mask mandate issued
in July 2020, which was rescinded on June 2, 2021.

Plaintiff also claims that the Moving Defendants have infringed and continue to infringe
upon her rights by requiring her to don a facial covering while visiting nursing homes. Plaintiff
submits four instances in which she claims that this requirement infringed upon her constitutional
rights. First, she “avers that she could not say good-bye (sic) to her Aunt at the Nursing Home or
attend her funeral because of the mask mandate and social distancing.” Complaint, 23. Second,
Plaintiff claims that she was unable to “say good-bye (sic) to her [cousin] at her death bed, nor sit
by her side and hold her hands comforting her, nor attend her funeral. /d. at (24. Third, she
“submits that she has not been able to visit with her sister’s husband in the nursing home and play
cards with her sister and sister’s husband.” /d. at 26. Finally, Plaintiff complains that she has not
been able to visit her elderly mother who lives in a nursing home nor attend church with her mother
due to the mask requirements. /d. at § 27.

As argued more fully below, the Moving Defendants seek to transfer this matter to the
Franklin County Court of Common Pleas where venue is proper because Defendants are public
officials with their public offices in Columbus. And the decisions giving arise to these claims for
relief occurred in Franklin County.

Alternatively, this Court should dismiss Plaintiffs claims for failure to state a claim.
Plaintiff appears to lodge an as-applied constitutional challenge under the due process and equal
protection clauses of both the Ohio and United States Constitutions. Complaint, Prayer for Relief.
She also alleges a violation of the Tenth Amendment of the United States Constitution. /d. She

seeks a prohibitory injunction as well as declaratory relief. Jd. The Moving Defendants seekdismissal because: (1) Plaintiff's claims regarding the, the state of emergency, the statewide mask
mandate, and the nursing home setting mask mandate are now moot depriving this Court of
jurisdiction over some of her claims; and (2) Plaintiff fails to sufficiently plead all of her claims
against the Moving Defendants.

Til. Motion to Transfer Venue under Civ. R. 3(D)(1)

This case should be transferred to Franklin County, which is the proper venue for claims
against state agencies and officials. Proper venue exists in any one or more of the following
counties:

(1) The county in which the defendant resides;

(2) The county in which the defendant has his or her principal place of business;
(3) A county in which the defendant conducted activity that gave rise to the claim
for relief;

(4) A county in which a public officer maintains his or her principal office if suit
is brought against the officer in the officer's official capacity;

(5) A county in which the property, or any part of the property, is situated if the
subject of the action is real property or tangible personal property;

(6) The county in which all or part of the claim for relief arose; or, if the claim for
relief arose upon a river, other watercourse, or a road, that is the boundary of the

state, or of two or more counties, in any county bordering on the river, watercourse,

or road, and opposite to the place where the claim for relief arose;
KK ok

Civ.R.3(B).

Plaintiff alleges claims against the Moving Defendants only in their official capacities. The
principal offices of the Ohio Department of Health and Gov. DeWine are in Columbus in Franklin
County. Civ.R. 3(B)(4); see also Ohio Const. Art. XV, Art. 1 (“Columbus shall be the seat of
government, until otherwise directed by law.”). When suing a state agency or public official, the
only proper venue is in Franklin County. See State ex rel. Ohio State Racing Com. v. Walton,
37 Ohio St.3d 246, 247-248 (1988) (case was to be transferred from Lawrence County to Franklin

County as it is the principal offices of the Ohio State Racing Commission, the Auditor, and theTreasurer.). The Court recognized the “clear right” of the defendant public officers and agencies,
which had principal offices in Franklin County, “to have the case transferred. . . to Franklin
County” under Civ.R. 3(C) and 3(D). Jd. at 247 (emphasis added). See also Northwestern Ohio
Bldg. & Constr. Trades Council v. Conrad, 10th Dist. Franklin No. 98AP-1287, 2000 Ohio App.
LEXIS 181, at *17 (Jan. 27, 2000) (“[I]t is well-established that actions against state agencies and
their administrators are to be commenced in Franklin County”) (citations omitted; emphasis
added); State ex rel. Mun. Constr. Equip. Operators’ Labor Council v. State Emp. Relations Bd.,
10th Dist. Franklin No. 15AP-471, 2015-Ohio-5001, § 12 (same).

Plaintiff does not set forth any facts which show that venue is proper in Wayne County.
When a state agency is sued based on a decision made by that agency, and the agency’s principal
offices are in Franklin County, the only proper venue under Civ.R. 3(B) is Franklin County.
See, e.g., State ex rel. Hawley v. Indus. Comm’n, 137 Ohio St. 332, 335 (1940) (holding venue to
be proper only in Franklin County for suit by man challenging Industrial Commission’s failure to
allow his claim for compensation for injury suffered in the course of his Summit County
employment, because Franklin County is where the alleged wrongdoing—failure of the
Commission in its official capacity to act on his claim—took place); followed by, State ex rel.
Jackson v. Indus. Comm'n, 6th Dist. Lucas No. L-96-316, 1996 Ohio App. Lexis 4937, *1-3
(Nov. 12, 1996). See also State ex rel. Cook v. Zimpher, 11 Ohio App.3d 187 (8th Dist. 1983)
(referring to Ohio Supreme Court’s interpretation of language in predecessor statute to
Civ.R. 3(B), holding that Franklin County was the county in which the cause of action arose
because the Industrial Commission made decisions in its official capacity there, where it

maintained offices and conducted its official business) (citations omitted).The Eleventh District Court of Appeals explained the reasoning well in Reder v. Public
Employees Retirement System of Ohio, 11th Dist. Portage No. 98-P-0127, Ohio App. LEXIS 2202
(May 14, 1999). In Reder, the plaintiff was denied disability benefits. The defendant, a state
agency with its principal offices in Columbus, moved for a change of venue. The agency claimed
that, because the plaintiffs claims were based solely upon activities that occurred in Franklin
County, it should not be required to defend the action where the plaintiff brought suit, which was
in a different county. The court held that venue was proper only in the county where the state
agency made its decision:

[t]he underlying logic. . . is that the action against the state agency cannot be venued

in the county of relator’s residence because her claim is predicated upon events

which occurred in Franklin County. That is, pursuant to Civ.R. 3(B)(4), the action

must go forward in Franklin County because the activities that led to the claim for

relief; i.e., the decision of the state agency (to deny benefits), occurred in that

location. Similarly, under Civ.R. 3(B)(6), the cause must go forward in Franklin

County because the claim for relief ‘arose’ where the state agency made its

decision.

(Emphasis added.) /d. at *7-8. Nowhere is there any allegation that any of the Defendants engaged
in any action or omission in Wayne County.>

For the above reasons, venue does not lie in Wayne County and the case should be
transferred to Franklin County for decision on the motion to dismiss, pursuant to Civ.R. 3(D)(1)

which states that “[w]hen an action has been commenced in a county other than stated to be proper

in division (C) of this rule, upon timely assertion of the defense of improper venue as provided in

3 Other courts have considered claims against the Adult Parole Authority, a state agency located
in Franklin County, and have concluded that because the decision to deny parole was made in
Franklin County, and the principal place of business of the APA is in Franklin County, then
Franklin County is the proper venue under Civ.R. 3(B). See, e.g., Robertson v. Ohio Adult Parole
Auth., 10th Dist. Franklin No. ASAP-1111, 2002-Ohio-4303, 4 26; see also State ex rel. Davis v.
Ghee, 126 Ohio App.3d 569, 570 (7th Dist. 1998) (per curiam).Civ.R. 12, the court shall transfer the action to a county stated to be proper in division (C) of this
rule.”
IV. Motion to Dismiss pursuant Ciy.R. 12(B)(1)4
As an initial matter, various claims made by Plaintiff regarding the mask mandate are now

moot. Therefore, this Court lacks subject-matter jurisdiction over those claims and they should be
dismissed under Civ.R. 12(B)(1).

A. Standard of Review

Whenever “it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.” Civil Rule 12(H)(3). Civil
Rule 12(B)(1) provides for dismissal for lack of jurisdiction over the subject matter. To dismiss a
complaint under Civ.R. 12(B)(1), a court must “determine whether a plaintiff has alleged any cause
of action, which the court has authority to decide.” Crestmont Cleveland Pshp. v. Ohio Dept. of
Health, 139 Ohio App.3d 928, 936 (10th Dist. 2000). A court “is not confined to the allegations
of the complaint when determining its subject-matter jurisdiction pursuant to a Civ. R. 12(B)(1)
motion to dismiss, and it may consider material pertinent to such inquiry without converting the

motion into one for summary judgment.” Southgate Dev. Corp. v. Columbia Gas Transm. Corp.,

48 Ohio St.2d 211, 211, 358 N.E.2d 526 (1976).

* Because Plaintiff does not specify whether she is suing the Defendants in their official or
individual capacities, the Court must look at the Complaint to determine whether it includes both
official and individual-capacity claims. Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483,
927 N.E.2d 585, §§ 15-16. The complaint only references the Defendants’ official titles and
business addresses, and does not include the words “individual” or “personal.” The claims are
therefore against Defendants only in their official capacities. /d.; see also McCue v. Village of
Peninsula, 9th Dist. Summit No. 25599, 201 1-Ohio-4394, §[ 4.

10B. Plaintiff's claims regarding the state of emergency and the mask mandate are
moot after their rescission.

Plaintiffs claims that the Governor lacked authority to declare a state of emergency through
his Executive Order 2020-01D. Complaint, Prayer for Relief, { H. But Gov. DeWine announced
that the state of emergency would be lifted on Friday, June 18, 2021. See Hannah News Service,
Inc., Governor to Lift COVID State of Emergency (June 17, 2021). Thus, Plaintiff's claims
regarding the state of emergency become moot on June 19, 2021.

Plaintiff also makes numerous claims that the July 23, 2020 Order requiring face coverings,
issued by the Director of Health, is unconstitutional as-applied and violative of law. Complaint,
44. On June 1, 2021, Director of Health Stephanie McCloud issued an order rescinding various
COVID-19 restrictions, including the Director’s Order for Retail and Business Compliance for
Facial Coverings through the State of Ohio. See Exhibit A. The rescission went into effect at
12:01 a.m. on June 2, 2021. /d. Thus, there is no longer a statewide mask mandate in public and
in businesses.

Further, to the extent that Plaintiff alleges that the Director of Health issued a separate and
distinct health order requiring individuals to wear masks while at a healthcare facility, such
allegation is similarly moot. See Complaint § 28. The Director of Health has never instituted an
order requiring that individuals seeking treatment at a hospital or doctor’s office must wear a facial
covering, apart from the statewide mask mandate which was rescinded on June 2, 2021. While a
hospital or doctor’s office may choose to still require its patients to wear a facial covering per

CDC guidance and OSHA standards, it is not a requirement imposed by the Director of Health.

5 The CDC has recommended that hospitals and other healthcare settings continue to require that

individuals wear facial coverings. See _ https://www.cde.gov/coronavirus/2019-
ncov/hep/infection-control-after-vaccination.html (last accessed June 11, 2021). OSHA also
issued temporary standards requiring mask wearing by hospital employees. See

11“Actions are moot ‘when they are or have become fictitious, colorable, hypothetical,
academic or dead. The distinguishing characteristic of such issues is that they involve no actual
genuine, live controversy, the decision of which can definitely affect existing legal relations.’”
State ex rel. Cincinnati Enquirer v. Hunter, 141 Ohio St.3d 419, 2014-Ohio-5457, 24 N.E.3d 1170,
| 4 quoting City of Grove City v. Clark, 10th Dist. Franklin No. 01AP-1369, 2002-Ohio-4549,
411. The subject matter jurisdiction of Ohio courts "is directly limited to justiciable
matters." Hirsch v. TRW Inc., 8th Dist. Cuyahoga No, 2005-Ohio-1125, 4 11. Accordingly, a court
loses subject matter jurisdiction over a case under Civ.R. 12(B)(1) when the case becomes moot.
Id.; see also Rickard v. Trumbull Twp. Zoning Bd. of Appeals, 11th Dist. Ashtabula Nos. 2008-A-
0024, 2008-A-0025, 2008-A-0026, 2008-A-0027, 2008-A-0028, 2009-Ohio-2619, {| 85 (tribunal
no longer has jurisdiction over moot cases). The legislative repeal of a challenged statute moots
any controversy over that statute. See, e.g., State ex rel. Citizens for Community Values v. DeWine,
No. 2020-0175, 2020-Ohio-4547, §] 9; City of Cincinnati v. State, 1st Dist. Hamilton No. C-
170563, 2018-Ohio-4498, {| 2. Although the mask mandates are not statutes, the same reasoning
applies. Any decision of this Court regarding the enforcement of the statewide mask mandate for
the general public would simply be advisory, as the mandate is longer in effect. Sibel v. Warren
Cty. Bd. of Cty. Commrs., 12th Dist. Warren Case Nos. CA91-06-050, CA91-06-051, CA91-06-
053, at *9 (Oct. 19, 1992) (case challenging a regulation moot because the regulation was no longer
in effect, so any interpretation would be purely advisory). The mootness of this case is even more
clear given that Plaintiff is seeking a prohibitory injunction, which “is used to prevent a future

injury, [while] a mandatory injunction is used to remedy past injuries.” State ex rel. Gadell-

https://www.osha.gov/sites/default/files/covid-19-healthcare-ets-reg-text.pdf, p. 12 (issued June
10, 2021).

12Newton v. Husted, 153 Ohio St.3d 225, 2018-Ohio-1854, 103 N.E.3d 809, § 10. Accordingly,
Plaintiff's claims regarding the statewide mask mandate and the alleged mandate requiring facial
coverings in healthcare settings should be dismissed as moot.

Plaintiff also complains about mask requirements for visitors in nursing homes.
Complaint, §{] 23, 24, 26. The Director of Health’s orders on masking in nursing homes are still
in place and require masks during visits, as it tracks guidance from the Centers for Medicare &
Medicaid Services. See Exhibit C, p. 2-3. So, while this claim is not moot, as discussed infra, she
still fails to state a claim or even allege why the mask requirement, violates the constitution.

V. Motion to Dismiss pursuant Civ.R. 12(B)(6) °
Plaintiff's Complaint is deficient and dismissal under Rule 12(B)(6) is proper because she
has failed to adequately plead her claims.

A. Standard of Review

A motion to dismiss a complaint under Civ.R. 12(B)(6) tests the sufficiency of a complaint.
State ex rel. Huffman v. Cox, 10th Dist. Franklin No. 02AP-803, 2003-Ohio-3642, 4 16. When
deciding whether to dismiss a claim pursuant to Civ.R. 12(B)(6), a trial court must presume that
all facts alleged in a complaint are true, and construe the complaint in the light most favorable to
the non-moving party. Montgomery v. Ohio State Univ., 10th Dist. Franklin No. 11AP-1024,

2012-Ohio-5489, 4 12. Ifa plaintiff fails to allege any set of facts under which the plaintiff is

© Because Plaintiff does not specify whether she is suing the Defendants in their official or
individual capacities, the Court must look at the Complaint to determine whether it includes both
official and individual-capacity claims. Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483,
927 N.E.2d 585, §§ 15-16. The complaint only references the Defendants’ official titles and
business addresses, and does not include the words “individual” or “personal.” The claims are
therefore against Defendants only in their official capacities. /d.; see also McCue v. Village of
Peninsula, 9th Dist. Summit No. 25599, 201 1-Ohio-4394, §[ 4.

13entitled to recovery, the plaintiffs complaint must be dismissed. Montgomery at 4 12, citing
OBrien y. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753, syllabus
(1975).

Generally, when ruling on a motion to dismiss under Civ.R. 12(B)(6), a court cannot
consider materials outside the pleadings. State ex rel. Fuqua y. Alexander, 79 Ohio St.3d 206,
207, 680 N.E.2d 985 (1997). One exception is that a defendant may attach documents that are
referred to in the complaint and central to the plaintiffs claims. Kacem v. Ocwen Loan Servicing,
LLC, 704 Fed. Appx. 429, 432 (6th Cir. 2017) citing McLaughlin v. CNS Gas Co., LLC, 639 Fed.
Appx. 298-99 (6th Cir. 2016) (“courts may consider documents attached to a Rule 12(b)(6) or
12(c) motion without converting either into a summary-judgment motion if the attached materials
are (i) ‘referred to in the plaintiffs complaint and are central to [the] claims’ or (ii) ‘matters of

public record.””). Although Kacem is a federal case, Ohio courts give “great weight” to such
federal precedent interpreting Civ.R. 12(B)(6). NCS Healthcare, Inc. v. Candlewood Partners,
LLC, 160 Ohio App.3d 421, 429 (8th Dist.2005). Ohio courts also consider referenced documents
so as to prevent a plaintiff from trying to evade dismissal by failing to attach relevant documents.
See Lisboa v. Lisboa, 8th Dist. Cuyahoga No. 95673, 201 1-Ohio-351, 4 38 (“The court may review
documents that were incorporated into the complaint, even if not attached to the complaint.”): see
also Hamilton v. Gannett Co., Sth Dist. Muskingum No. CT2020-0028, 2020-Ohio-6771, §] 14
(same).

B. Plaintiff fails to state a claim against Gov. DeWine.

Plaintiff makes two claims against Gov. DeWine. First, she seeks a declaration that

Gov. DeWine’s “mask mandate” in Executive Order 2020-01D is unconstitutional as-applied and

seeks a prohibitory injunction. See Complaint, p. 2; Prayer for Relief, § D. Second, she seeks a

14declaration that R.C. 5502.22 is not the proper statute to implement Executive Order 2020-01D.
Complaint, § 31; Prayer for Relief, |G. Plaintiff fails to state a claim against Gov. DeWine.

First, Plaintiff mistakenly believes that Executive Order 2020-01D, issued on March 9,
2020, imposes a mask mandate. Complaint, 21. But Executive Order 2020-01D declares a state
of emergency in Ohio due to the spread of  Covid-19. See
https://coronavirus.ohio.gov/static/publicorders/Executive-Order-2020-01D.pdf (last accessed
June 15, 2021), attached as Exhibit D. Executive Order 2020-01D does not include a mask
mandate. /d. Rather, the order requiring facial coverings was issued by the Director of Health on
July 23, 2020. See _https://coronavirus.ohio.gov/static/publicorders/Directors-Order-Facial-
Coverings-throughout-State-Ohio.pdf (last accessed June 9, 2021). Since the Executive Order
does not impose a mask mandate, Plaintiff fails to state a claim that Gov. DeWine violated her
rights by issuing a mask mandate.’ Complaint, {| 4 (Nelson incorrectly alleges that Director
McCloud ordered Gov. DeWine to issue a mask mandate).

Second, Plaintiff also claims that R.C. 5502.22 fails to provide authority for Gov. DeWine
to issue Executive Order 2020-01D. Complaint, { 31; Prayer for Relief, § E. Executive Order
2020-01D states that:

I, Mike DeWine, Governor of the State of Ohio, by virtue of the authority vested in

me by the Constitution, the laws of this State and in accordance with Section

5502.22 of the Ohio Revised Code do hereby order and direct that: 1. A state of

emergency is declared for the entire State to protect the well-being of the citizens

of the Ohio from the dangerous effects of COVID-19, to justify the authorization
of personnel of State departments and agencies as are necessary, to coordinate the

7 In passing, Plaintiff also claims that Gov. DeWine violated her constitutional rights by issuing
the mask mandate in the July 23, 2020 Order requiring facial coverings in public places.
Complaint, p. 1; 3. Again, however, Plaintiff is mistaken because Gov. DeWine did not issue
the July 23, 2020 order—it was issued by the Director of Health under separate statutory authority.
Plaintiff fails to state a claim against Gov. DeWine for issuance of a mask mandate because he did
not issue such an order.

15State response to COVID-19, and to assist in protecting the lives, safety, and health
of the citizens of Ohio.

See as Exhibit D.

As stated above, the state emergency ended on June 17, 2021, so Plaintiff's argument is
moot. In any event, Plaintiff doesn’t actually complain about the declaration of an emergency in
2020-01D. What she actually complains of are the Health Orders, specifically the mask mandate,
issued by the Director of Health under separate statutory authority. R.C. 3701.13; R.C. 3701.14.
Nothing in R.C. 3701.13 or .14 restrict the Director’s authority to issue standing orders to prevent
the spread of contagious disease to only those times when the governor has declared an
emergency.®

Since Plaintiff fails to state a claim against Gov. DeWine, all claims against him should be
dismissed.

C. Plaintiff fails to state a claim against the Director of Health.

1. Plaintiff fails to allege that various provisions of R.C. Chapter 3701 as
unconstitutional under the non-delegation doctrine.

Plaintiff alleges, with no supporting facts, that various provisions of R.C. Chapter 3701
are unconstitutional as-applied to her, including: R.C. 3701.352, R.C. 3701.13, R.C. 3501.56,
R.C. 3701.99, R.C. 3701.03. Complaint, 32-36. Specifically, Plaintiff alleges that the statutes
violate the separation of powers doctrine by giving the Director of the Ohio Department of Health
authority to violate her rights under the Due Process Clause, Equal Protection Clause, and Tenth

Amendment of the Ohio and United States Constitutions.’ /d.; See also Prayer for Relief, {4 F-J.

8 Regardless, the Governor’s authority to issue a declaration of emergency is implicit in his
authority as the chief executive officer of Ohio.

° Plaintiff also relies on Declaration of Independence, Complaint, §§ 2, 6-7, but the Declaration of
Independence does not provide a private right of action, and any claims are made under the
Constitution. See Rose v. Roe, 6th Cir. No. 18-5775/5970, 2019 U.S. App. LEXIS 10098, at *12-

16Plaintiff claims that the statutes are unconstitutional “in its operation” and “as applied,” but an as-
applied challenge is a challenge to the application of a statute. Wymsylo v. Bartec, Inc., 132 Ohio
St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, 4] 25 (if resolution of a separation of powers claim
requires examination of the facts and circumstances regarding the application of the statute, the
claim is as-applied rather than facial). Therefore, Plaintiff is attempting to make an as-applied
challenge to the statutes. Plaintiff fails to state a claim against the Director of Health because the
General Assembly has properly delegated authority to protect public health to the Director of
Health.

The police power reserved to the States under the Tenth Amendment of the United States
Constitution includes the authority to enact laws and implement measures that “protect the public
health and the public safety.” Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). The State of
Ohio has lodged this authority—to “protect the public health”—with the Director of the Ohio
Department of Health. Since the Department’s creation in 1886, the General Assembly has granted
the Department of Health and its Director specific authority over quarantine and isolation. See
S.B. 90 of the 67th General Assembly.

The General Assembly authorized the Department of Health to exercise “supervision of all
matters relating to the preservation of the life and health of the people” of Ohio. R.C. 3701.13.

Under this duly delegated authority, the Director has the power to enact special or standing orders

13 (Apr. 4, 2019); see also Troxel v. Granville, 530 U.S. 57, 91, 120 S.Ct. 2054 (2000) (Scalia, J.,
dissenting) (“The Declaration of Independence, however, is not a legal prescription conferring
powers upon the courts.”); Morgan v. Cty. of Hawaii, D.Haw. No. 14-00551 SOM-BMK, 2016
U.S. Dist. LEXIS 41063, at *71 (Mar. 29, 2016) (“To the extent it asserts a violation of the
Declaration of Independence, the claim is not cognizable. The Declaration of Independence is an
important historical document, but it is not law.”). Thus, Plaintiff fails to state a cognizable claim
with references to alleged violations of the Declaration of Independence.

17or rules to prevent the spread of contagious or infectious diseases including the power to declare
and enforce quarantine and isolation restrictions. R.C. 3701.13; see also R.C. 3701.03(A)
(conferring authority upon the Director to “perform duties that are incident to the director’s
position as chief executive officer of the department of health,” which include administering “the
laws relating to health and sanitation and the rules of the department of health.”). In addition,
“[nJo person shall violate any rule the director of health or department of health adopts or any
order the director or department of health issues under this chapter to prevent a threat to the public
caused by a pandemic, epidemic, or bioterrorism event.” R.C. 3701.352. Further, R.C. 3701.14
imposes a mandatory duty: “[t]he director of health sha// investigate or make inquiry as to the
cause of disease or illness, including contagious, infectious, epidemic, pandemic, or endemic
conditions, and take prompt action to control and suppress it.” (Emphasis added.).'°

Although Plaintiff claims that the health statutes violate the separation of powers doctrine,
she actually seems to be making a claim that the General Assembly has improperly delegated
authority to the Department of Health, an executive agency. Complaint, {] 36. The non-delegation
doctrine prohibits the General Assembly from “abdicat[ing] or transfer[ing] to others essential
legislative functions with which it is vested.” Belden v. Union Cent., 143 Ohio St. 329, paragraph
one of the syllabus (1944). But:

when the discretion to be exercised relates to a police regulation for the protection

of the public morals, health, safety, or general welfare, and it is impossible or
impracticable to provide such standards, and to do so would defeat the legislative

‘0 Plaintiff also briefly claims that R.C. 3701.13 is limited to unenforceable and unconstitutional
as-applied because the statute is limited to quarantine and isolation of people infected with a
contagious disease. Prayer for Relief, { G. But nothing in R.C. 3701.13 restrict the Director’s
authority only to quarantining or isolating people. Instead, the Director may issue more general
standing orders to prevent the spread of contagious disease. R.C. 3701.13. In addition, the
Director must inquire into the as to the cause of contagious disease or pandemic and “take prompt
action to control and suppress it.” R.C. 3701.14(A). Thus, the Director’s authority goes far beyond
simply ordering quarantine or isolation.

18object sought to be accomplished, legislation conferring such discretion may be
valid and constitutional without such restrictions and limitations.

State v. Schreckengost, 30 Ohio St.2d 30, 32-33 (1972) quoting Matz v. J. L. Curtis Cartage
Co., 132 Ohio St. 271 (1937), paragraph seven of the syllabus. See also Blue Cross v. Ratchford,
64 Ohio St.2d 256 (1980), syllabus; see also See DeMoise v. Dowell, 10 Ohio St.3d 92, 93-94,
(1984) (holding that it is "well established that the state can directly exercise its police power
concerning public health or it may delegate that power to other governmental agencies").

The Supreme Court and other Ohio courts have repeatedly held that the need for strict
standards and guidelines is relaxed when the delegation relates to matters of public health and
safety. See, e.g., Redman v. Ohio Dep't of Indus. Relations, 75 Ohio St.3d 399, 409 (1996)
(Supreme Court deemed it “impracticable” and “problematic” for the General Assembly to provide
detailed standards governing the director of the Division of Mines’ statutory authority to issue
certain permits for oil and gas wells); Weber v. Bd. of Health, Butler Cty., 148 Ohio St. 389, 396
(1947) (statute permitted board of health to make orders regarding prevention and abatement of
nuisances); State v. Schachner, 131 Ohio App.3d 808, 815-816 (6th Dist.1999) (Ohio EPA
permitted to issue orders to abate or prevent violations of the chapter dealing with hazardous
waste).

The General Assembly gave the Ohio Department of Health the power to enact special or
standing orders or rules to prevent the spread of contagious or infectious diseases, including the
power to declare and enforce quarantine and isolation restrictions. R.C. 3701.13. The flexibility
needed to combat the spread of a contagious and uncured disease does not lend itself to exacting
standards and regulations. Indeed, more than any of the cases cited above, delegating authority to
stop the spread of contagious disease renders it “impossible or impracticable” for the General

Assembly to provide rigid standards for the exercise of that authority. Provided the General

19Assembly articulated an “intelligible principle” to which the Director must conform, the statutes
survive. It did so here. Plaintiffs “delegation” claim lacks any basis in fact or law.

Plaintiff also alleges that this alleged improper delegation violates the Federal Constitution.
Complaint, § 36. But Plaintiff fails to state a claim because "there is no independent federal
constitutional doctrine of excessive delegation of state legislative power." Wayne Watson Ents.,
LLC v. City of Cambridge, 243 F. Supp. 3d 908, 927 (S.D. Ohio 2017), quoting United Beverage
Co., Inc. v. Ind. Alcoholic Beverage Comm'n, 760 F.2d 155, 157, 159 (7th Cir. 1985).

2. Plaintiff fails to allege that various provisions of R.C. Chapter 3701 as
unconstitutional violation of the due process and equal protection clauses
because those clauses of the Ohio Constitution are not self-executing.

Plaintiff fails to state a claim under the Ohio Constitution because Article I, Section 16,
(due process clause) and Article I, Section 2 (equal protection) are not self-executing. PDU, Inc.
v. City of Cleveland, 8th Dist. Cuyahoga No. 81944, 2003-Ohio-3671, {| 24-27. The Ohio
Supreme Court has explained that “[a] constitutional provision is self-executing when it is
complete in itself and becomes operative without the aid of supplemental or enabling legislation.
Likewise, a constitutional provision is not self-executing if its language, duly construed, cannot
provide for adequate and meaningful enforcement of its terms without other legislative
enactment.” State v. Williams, 88 Ohio St.3d 513, 521, 728 N.E.2d 342 (2000) (internal citations
omitted). The words of a constitutional provision must be “sufficiently precise in order to provide
clear guidance to courts with respect to their application if the provision is to be deemed self-
executing.” Jd.

A claim based on a constitutional provision that “is not a self-executing right subject to
enforcement must fail.” Cooper v. Jones, 4th Dist. Jackson No. 0SCA7, 2006-Ohio-1770, § 36.

Plaintiff therefore fails to state a claim for a due process and equal protection violation under the

20Ohio Constitution, as they are not self-executing. PDU at {fj 24, 27.

3. Even if the clauses were self-executing, Plaintiff fails to allege that various
provisions of R.C. Chapter 3701 as unconstitutional violation of the due
process and equal protection clauses.

Even if the constitutional provisions are self-executing, Plaintiff fails to state a claim for
constitutional violations. Throughout her Complaint, Plaintiff alleges violation of the equal
protection clause under the Fourteenth Amendment.'! “The Equal Protection Clause prohibits
discrimination by government actors which either burdens a fundamental right, targets a suspect
class, or intentionally treats one differently than others similarly situated without any rational basis
for the difference.” Powell v. Michigan Dept. of Corr., W.D. Mich, No. 2:18-cv-221, 2019 U.S.
Dist. LEXIS 34372, at *14 (Mar. 5, 2019); see also Davis v. Prison Health Servs., 679 F.3d 433,
441 (6th Cir. 2012). Plaintiff does not identify a fundamental right or a suspect class, nor does she
allege that she has been treated differently than others similarly situated. Regardless, the Director
of Health is permitted to distinguish between groups and make a “rational decision based on facts
and science available at the time” in order to serve “the legitimate governmental interest of
protecting the public from the deadly, easily transferrable COVID-19 disease.” Southwestern Ohio
Basketball, Inc. v. Himes, 2021-Ohio-415, 167 N.E.3d 1001, 4 1 (12th Dist.) (court upheld health
orders issued by Director under R.C. 3701.13 which distinguished between contact and non-
contact sports). Plaintiff therefore fails to state a claim for a violation of the equal protection

clause.

'l Plaintiff attached a decision from the Ashland County Court of Common Pleas to her Complaint
(Complaint, {[ 31 and attached to the complaint as Exhibit A) but it has no binding effect on this
Court. “A trial court decision which has not received appellate scrutiny” nor has “its reasoning
been cited by any appellate court” than it has “no precedential value.” State v. Hill, 8th Dist.
Cuyahoga Nos. 83762, 83775, 2005-Ohio-3155, § 32; see also Sherill v. Proscan, \st Dist.
Hamilton No. C-070765, 2008-Ohio-2468, {| 6.

21Additionally, Plaintiff fails to state a due process claim because “[g]overnmental
determinations of a general nature that affect all equally do not give rise to a due process right to
be heard.” Neinast v. Bd. of Trustees of the Columbus Metro. Library, 346 F.3d 585, 596
(6th Cir.2003) quoting Nasierowski Bros. Inv. Co. v. City of Sterling Heights, 949 F.2d 890, 896
(6th Cir.1991). See also Southwestern Ohio Basketball, Inc. v. Himes, 2021-Ohio-415, 167 N.E.3d
1001, | 52 (12th Dist.) (Because a health order regarding Covid-related sports regulations had
general application, it did not give rise to a due process right to be heard). In any event, the mask
mandate easily satisfies the rational basis test, so Plaintiff fails to state a claim for a violation of
her due process rights. See Hartman v. Acton, 8.D.Ohio No. 2:20-CV-1952, 2020 U.S. Dist.
LEXIS 72068, at *32 (Apr. 21, 2020) (applying rational basis test to Covid-related health order
closing non-essential businesses). Under rational basis review, the government’s “review
mechanism must only be rationally related to a legitimate government interest.” /d. at *33. The
mask mandate easily survives rational basis scrutiny because it is neither arbitrary nor
unreasonable and is rationally related to the legitimate government interest of preventing the
spread of Covid-19. Numerous courts around the country have rejected challenges to mask
mandates after applying the rational basis test. E.g. Stewart v. Justice, S.D.W.Va. No. 3:20-0611,
2020 U.S. Dist. LEXIS 220373, at *11 (Nov. 24, 2020); Megeso-William-Alan v. Ige, D.Haw. No.
21-00011 SOM-RT, 2021 U.S. Dist. LEXIS 91037, at *25 (May 12, 2021).

Plaintiff also fails to state an equal protection claim. The rational-basis test also applies to
equal protection claims and a state action will be upheld "if it is rationally related to a legitimate
government interest." Southwestern Ohio Basketball, Inc. v. Himes, 2021-Ohio-415, 167 N.E.3d
1001, {| 38-40 (12th Dist.) citing State v. Williams, 126 Ohio St.3d 65, 2010-Ohio-2453, § 39, 930

N.E.2d 770. Plaintiff does not even distinguish the classification which she claims is

22unconstitutional. Regardless, she cites to nothing that indicates that the Director’s orders were
“wholly arbitrary,” so she fails to state a claim under the rational basis standard. /d. at § 38.

4, Plaintiff fails to state a claim of a violation of the Tenth Amendment of the
United States Constitution.

The Tenth Amendment provides that the “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the
people.” United States Constitution, Tenth Amendment. Plaintiff fails to state a claim under the
Tenth Amendment of the United States Constitution because police power reserved to Ohio
includes the authority to enact laws and implement measures that “protect the public health and
the public safety.” Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). This is true in normal times,
and it is particularly true in times of a public health emergency:

The authority to determine for all what ought to be done in such an

emergency must have been lodged somewhere or in some body... . To invest [a

local board of health] with authority over such matters was not an unusual nor an

unreasonable or arbitrary requirement. Upon the principle of self-defense, of

paramount necessity, a community has the right to protect itself against an
epidemic of disease which threatens the safety of its members.
Id. at 27 (emphasis added). As noted on page 14, the State of Ohio has lodged this authority—to
“protect itself against an epidemic of disease’”—with the Director of the Ohio Department of
Health. Indeed, the General Assembly has imposed a mandatory duty for the Director of Health
to investigate the cause of disease including contagious disease and pandemics, and to take prompt
action to control and suppress it.” R.C. 3701.14.'2. Under this duly delegated authority, the

Director has the power to enact special or standing orders or rules to prevent the spread of

contagious or infectious diseases, including the power to declare and enforce quarantine and

! § B. 22, which is effective June 23, 2021, allows the General Assembly to restrict the Director
of Health’s authority to issue orders in the case of contagious disease under R.C, 3701.14.
However, at all times pertinent to the Complaint, such restriction was not in place.

23isolation restrictions. R.C. 3701.13; see also R.C. 3701.03(A) (conferring authority upon the
Director to “perform duties that are incident to the director’s position as chief executive officer of
the department of health,” which include administering “the laws relating to health and sanitation
and the rules of the department of health.”).

The United States Supreme Court has long held that a State’s exercise of its police
powers in the face of a public health emergency is subject to /imited judicial review and such
emergency measures must be upheld unless they have “no real or substantial relation” to protecting
public health and impose “beyond all question, a plain palpable invasion of rights secured by the
fundamental law.” Jacobson, 197 U.S. at 31. While Jacobson was decided more than a century
ago, it applies today with equal force. Relying on Jacobson, the Sixth Circuit held that “the police
power retained by the states empowers state officials to address pandemics such as COVID-19
largely without interference from the courts.” League of Indep. Fitness Facilities & Trainers, Inc.
v. Whitmer, 814 Fed. Appx. 125, 127 (6th Cir.2020); see also S. Bay United Pentecostal Church
v. Newsom, _U.S.__, 140 S.Ct. 1613, 207 L.Ed.2d 154, *2-3 (2020) (Court concluded that the
latitude afforded to government officials “must be especially broad” and “should not be subject to
second-guessing by an ‘unelected’ federal judiciary, which lacks the background, competence and
expertise to assess public health.” (Emphasis added; quotation omitted)).

Here, the Director of Health issued orders to prevent the spread of a novel coronavirus that
was never previously seen in humans. Sys. Optics v. Twin City Fire Ins. Co., N.D.Ohio No. 5:20-
cv-1072, 2021 U.S. Dist. LEXIS 97491, at *14 (May 24, 2021) citing
https://www.cde.gov/coronavirus/2019-ncov/faq.html#Basics. When a state faces a major public
health threat, “its Tenth Amendment police and public health powers are at a maximum.” Legacy

Church, Inc. v. Kunkel, 455 F. Supp. 3d 1100, 1145 (D.N.M.2020) (denying a church’s request for

24a temporary restraining order to block Covid-related restrictions on mass gatherings). Plaintiff
fails to state a claim that the mask orders have