Guidelines are not law

Administrative state run amok leads to criminal charges

A parent has been charged with violating Ohio Department of Health (ODH) “guidelines” issued to assist schools dealing with Covid19 because she resisted quarantining her child.

Facts: On September 13, 2021, she took her son to school in the morning and got permission from the Principle for him to attend class. She was informed her child needed to be picked up from school due to an alleged “health department order” recommending her child quarantine. At 1:00pm, she arrived to pick up her child. At 1:15pm, she was given an unsigned letter from a County Health District with “recommendations” for quarantining which school officials and a police officer said she and her child must follow.

Law: The charge is based on Ohio Revised Code § 3701.352: “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.”

By the plain language of R.C. § 3701.352, there must be a relevant order or rule of the ODH or the Director of the ODH underlying the charge of a violation of said order or rule. Official orders of the ODH are those issued and signed by the Director of the ODH. Rules adopted by the ODH are codified in the Ohio Administrative Code. In the case, the prosecution relies upon “guidelines” recommended by the ODH regarding student quarantining.

“Guidelines” are not the same as ODH official orders or rules. The “order” the prosecution alleges Defendant violated is a letter from a County Health District which echoes ODH guidelines. The Health District letter fails to identify itself as a rule or order but merely a “recommendation.” We checked ODH’s orders and rules and could find no official order or rule which would allow prosecution of parents under the statute. R.C. § 3701.352 does not criminalize nonadherence to ODH “guidelines” nor does it criminalize someone for ignoring the “recommendations” of county health districts.

If anyone can prove me wrong, please comment with sources.

There is an obvious issue of notice:

(1) Notice. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” This may include an obligation, upon learning that an attempt at notice has failed, to take “reasonable followup measures” that may be available.