When does an Administrative Order Trump the Sixth Amendment?

     It is raining outside, and I can’t work in the yard, so here it comes… If you are curious about the laws relating to public health emergencies, keep reading…  If not, move on to the next post on Facebook and enjoy reading about toilet paper shortages. This is not a legal brief, it is a Facebook screed, so please be gentle with your comments as my feelings are easily hurt (biting sarcasm, for those who do not know me). For the vast majority of my readers who have not been acquainted with the criminal justice system, the State of Ohio (represented by your local prosecutor’s office) must bring minor misdemeanors to trial within 30 days, or they must generally be dismissed. For misdemeanors, depending on their degree, trial must commence within between 45 and 90 days.

     The March 13, 2020 Declaration made jointly by the judges of the Hamilton County Municipal Court and Court of Common Pleas to essentially put justice on hold for 30  days made me curious about their statutory authority to toll time (ORC §2945.71 “Time for trial” and ORC §2945.72 “Extending time for hearing or trial.”  It raises a question as to whether time would “run out”, especially on minor misdemeanor cases. I would have preferred that the joint declaration by Common Pleas and Municipal Court to begin with “Pursuant to Ohio Revised Code Section blah, blah blah.. That would have saved me a lot of reading. But it didn’t, so here is what I found.

Computation of time by all courts in Ohio is subject to Ohio Criminal Rule 45 which provides:

(B) Time: enlargement. When an act is required or allowed to be performed at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before expiration of the period originally prescribed or as extended by a previous order; or (2) upon motion permit the act to be done after expiration of the specified period, if the failure to act on time was the result of excusable neglect or would result in injustice to the defendant. The court may not extend the time for taking any action under Rule 23, Rule 29, Rule 33, and Rule 34 except to the extent and under the conditions stated in them.

Rule 45 expressly limits the authority of the court to extend the time for action under Rule 23 (Jury Trials). So, where does the authority come from for a Hamilton County Court to suspend time?

The closest direct reference I could find was subsection (G) of ORC §2945.72 which allows for the tolling of time during “Any period during which trial is stayed pursuant to an express statutory requirement, or pursuant to an order of another court competent to issue such order”. That raises the question, what express statutory requirement?

     In addition, a review of the Ohio Governor’s Executive Order 2020-01D shows a description of the action taken to deal with the COVID-19 pandemic, and references orders by the Ohio Department of Health.  Their current Director’s Order  prohibits “mass gatherings of 100 or more”, allowing for other gatherings to take place.

The Ohio Department of Health can issue an order under ORC § 3701.352 “Violations prohibited” (below) and they did so by issuing a Director’s Order by Dr. Amy, MD, MPH  on March 12, 2020, banning mass gatherings of 100 or more:

No 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.

3701.99 Penalty (C) Whoever violates section 3701.352 or 3701.81 of the Revised Code is guilty of a misdemeanor of the second degree.

            There is likely already case law addressing whether a declaration of a public health emergency is sufficient to deprive a defendant of a Sixth Amendment right to a speedy trial. But for the legal scholars out there, do you believe the declared emergency is “pursuant to an express statutory requirement”? Or is the “Joint Administrative Order” sufficient? The plain reading of “another court competent to issue such order” seems to mean that Hamilton County Courts can’t extend their own time, but time may be extended by a higher court. And when the agency empowered to set rules and issue orders (the Department of Health) clearly does not set a rule prohibiting jurors from gathering in a courtroom, is a court’s action warranted in respect to denial of Sixth Amendment protections? Are the courts empowered to legislate public health policy through their orders? There is no reference in their order on Courthouse Operations to any emergency order by any body authorized by law to do so other than the Ohio Department of Health, so from where does the authority to suspend the Sixth Amendment arise? What say you, scholars of the law?


            Similar statutory authority for emergency declarations is provided to the board of health of a city health district and the board of health of a general health district under ORC §3709.20 and ORC §3709.21 to declare an emergency; violations also carry a penalty that a person:

…shall be fined not more than one hundred dollars or imprisoned not more than ninety days, or both. No person shall be imprisoned for the first offense, and the prosecution shall always be for a first offense unless the affidavit upon which the prosecution is instituted contains the allegation that the offense is a subsequent offense”.

            The City of Cincinnati has its own Board of Health, as may other cities within Hamilton County pursuant to ORC § 3709.01 which also allows for two or more to form a union. The villages and townships in Hamilton County are part of a general health district.

            And on a compassionate note, when a vaccine becomes available, your local health department has the authority to make them gratuitous under ORC § 3707.27. You don’t need for President Trump or Congress to make them free. Getting the anti-vaxers to get them is the subject of another discussion.

            And what about the actual emergency and its effects?

3707.04 Quarantine regulations.

In time of epidemic or threatened epidemic, or when a dangerous communicable disease is unusually prevalent, the board of health of a city or general health district, after a personal investigation by its members or executive officer to establish the facts in the case, and not otherwise, may impose a quarantine on vessels, railroads, or other public or private vehicles conveying persons, baggage, or freight, or used for such purpose. The board may make and enforce such rules and regulations as are wise and necessary for the protection of the health of the people of the community or state, but the running of any train or car on any steam or electric railroad, or of steamboats, vessels, or other public conveyances shall not be prohibited.

A true copy of such quarantine rules and regulations shall be immediately furnished by such board to the department of health, and thereafter no change shall be made except by the order of the department or the board to meet a new and sudden emergency.

3707.05 Board must secure approval of department of health in certain cases.

The board of health of a city or general health district shall not close public highways or prohibit travel thereon, interfere with public officers not afflicted with or directly exposed to a contagious or infectious disease, in the discharge of their official duties, or establish a quarantine of one municipal corporation or township against another municipal corporation or township, as such, without permission first obtained from the department of health and under regulations established by the department.

3707.06 Notice to be given of prevalence of infectious diseases.

(A) Each physician or other person called to attend a person suffering from cholera, plague, yellow fever, typhus fever, diphtheria, typhoid fever, or any other disease dangerous to the public health, or required by the department of health to be reported, shall report to the health commissioner within whose jurisdiction the sick person is found the name, age, sex, and color of the patient, and the house and place in which the sick person may be found. In like manner, the owner or agent of the owner of a building in which a person resides who has any of the listed diseases, or in which are the remains of a person having died of any of the listed diseases, and the head of the family, immediately after becoming aware of the fact, shall give notice thereof to the health commissioner.

(B) No person shall fail to comply with the reporting requirements of division (A) of this section.

(C) Information reported under this section that is protected health information pursuant to section 3701.17 of the Revised Code shall be released only in accordance with that section. Information that does not identify an individual may be released in summary, statistical, or aggregate form.