Mendenhall Law Group Brief in UC Case

IN THE COURT OF COMMON PLEAS
HAMILTON COUNTY, OHIO
Benjamin Lipp, et al., CASE NO. A-2104238
Plaintiffs, JUDGE GHIZ
v.
The University of Cincinnati, et al., PLAINTIFFS’ BRIEF IN OPPOSITION

TO DEFENDANTS MOTION TO
Defendants. DISMISS
Plaintiffs submit the following brief opposing defendants’ (the “University’s”) motion to
dismiss plaintiffs’ first amended complaint (the “FAC”).
I. Introduction
Defendants challenge plaintiffs’ standing to seek declaratory relief construing
constitutional and statutory provisions relating to the University’s Covid-19 health orders (the
“Mandate”) described in the FAC. Defendants argue that plaintiffs have not alleged injury from
the Mandate. However, given that plaintiffs are challenging the legality of government actions
and they are the objects of such actions, there is little question the actions caused them injury.
O’Neal v. State, __N.E. 3d__, 2021-Ohio-3663, ¶11 (Ohio S. Ct.), citing Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-561 (1992) (Defining injury as an invasion of a legally protected
interest.)
Even though plaintiffs are exempted from the vaccine requirement, the Mandate invades
other legally protected interests and, as a result, plaintiffs request declaratory relief regarding
whether:
E-FILED 04/07/2022 03:36 PM / CONFIRMATION 1176690 / A 2104238 / JUDGE GHIZ / COMMON PLEAS DIVISION / BRI
1) The Mandate exceeds the constitutional limits on defendants’ authority by
violating the non-delegation doctrine and the right to refuse medical treatment;
2) The Mandate constitutes threats of official action to coerce plaintiffs to take

actions on matters concerning which they have the legal freedom of choice in
violation of R.C. 2905.12; and
3) The Mandate requires vaccines which are not fully approved by the Federal Drug
Administration (“FDA”) and discriminates between the unvaccinated and those
vaccinated with emergency use authorized vaccines (the “EUA vaccines”) in
violation of R.C. 3792.04.
Defendants also argue that plaintiffs failed to allege a claim for which this court could
grant relief. Plaintiffs are seek declaratory relief construing their rights under the described
constitutional and statutory provisions as provided for by R.C. 2721.03. As injured parties,
plaintiffs are entitled to declaratory relief unless there is no justiciable controversy, or such relief
won’t terminate the controversy. Fioresi v. State Farm, 26 Ohio App. 3d 203, syllabus (1st Dist.
1985); Ohioans for Concealed Carry, Inc. v. Columbus, 164 Ohio St. 3d 291, 2020-Ohio-6724,
¶30 (“The three prerequisites to declaratory relief include ‘(1) a real controversy, (2)
justiciability, and (3) the necessity of speedy relief to preserve the parties’ rights.’”) Since
plaintiffs have alleged facts showing standing, they have also stated claims for which declaratory
relief could be granted. Id., ¶62 (DeWine, J., dissent) (“Because we must assume that [plaintiff]
had standing, the [declaratory relief] claim is justiciable.”)
The relief which could be granted plaintiffs is a declaration of their constitutional and
statutory rights, and such a declaration constitutes the merit of plaintiffs’ claims. Defendants’
arguments go beyond the issues of standing and stating a claim for relief, they seek
determination of plaintiffs’ claims on the merits.
In any event, plaintiffs have alleged facts showing the above-described constitutional and
statutory violations. Though defendants may dispute these facts, plaintiffs are entitled to due
process, i.e. discovery and a hearing regarding such factual issues before determination of these
claims.
II. Background
The present case involves Ohio’s exercise of its police power to constitutionally and
statutorily limit masking and vaccine mandates and other health orders. Jacobson v.
Commonwealth of Massachusetts, 197 U.S. 11 (1905) strongly supports Ohio’s exercise of its
police power to determine the extent of such health orders. “The safety and health of the people
of a [state] are, in the first instance, for that [state] to guard and protect. They are matters that do
not ordinarily concern the national government. So far as they can be reached by any
government, they depend, primarily, upon such action as the state, in its wisdom, may take…”
Id. at 38.
Recently, exercising this police power, Ohio enacted R.C. 3709.212, which limits the
authority of local boards of health regarding issuing orders or regulations for prevention or
restriction of disease. Such orders may only apply to persons medically diagnosed with a disease
or in direct contact with such person. This statute was part of Senate Bill 22, effective June 23,
2021, which limited the issuance of emergency and other health orders. It was passed by a
supermajority of the Ohio legislature overriding the governor’s veto. Senate Bill 22 is part of
Ohio’s statutory scheme, which under Ohio case law limits defendants from issuing the health
orders at issue in this case.
Ohio’s police power is also exercised in Article I, Section 1 of the Ohio Constitution,
which provides a right to refuse medical treatment as a fundamental liberty. Steele v. Hamilton
Cty. Community Mental Health Bd., 90 Ohio St. 3d 176,180 (2000). Steele held that the
government may only override this right if shows by clear and convincing evidence that a person
“(1) presents an imminent danger to harm himself/herself or others, (2) there are no less intrusive
means of avoiding the threatened harm, and (3) the [medical treatment] to be administered is
medically appropriate for the patient.” Id. at 184. Steele is based in part on the U.S. Supreme
Court ruling in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 282 (1990), which
held that the Fourteenth Amendment did not preclude a state from adopting evidentiary standards
for determining a person’s choice to refuse medical treatment.
Ohio has also enacted R. C. 2905.12, which precludes any person from threatening
official action to coerce another from taking or refraining from action concerning which the other
person has a legal freedom of choice. The matters for which plaintiffs have the legal freedom to
choose, unless medically diagnosed with a disease or in direct contact with someone who is so
diagnosed, include: 1) whether to use masks for a medical purpose or take a Covid-19 vaccine;
and 2) whether to take Covid-19 tests, or engage in otherwise permissible university activities.
Defendants have engaged in coercive official action with respect to matters for which plaintiffs
have a freedom to choose, as described above, in violation of R. C. 2905.12.
Finally, Ohio has recently enacted R.C. 3792.04 which bars defendants from mandating
EUA vaccines, which jave not been fully approved by the FDA, and from discriminating
between the unvaccinated and those vaccinated with EUA vaccines. The FDA has emergency
authorized three EUA vaccines including Pfizer and Moderna. The FDA has fully approved two
other Covid-19 vaccines known as Comirnaty and Spikevax, but they are not yet available. The
FDA has declared that Pfizer (EUA) is interchangeable with Comirnaty, and Moderna is
interchangeable with Spikevax, for certain purposes, but that they are still legally distinct
products. Public universities are prohibited from mandating EUA vaccines by R.C. 3792.04,
which defendants are violating as discussed below.
After the Ohio Legislature imposed limits on emergency health orders, the Ohio governor
terminated his emergency order relating to Covid-19. No such emergency order is currently in
place. Moreover, the Ohio Health Department has not issued a Covid-19 vaccine or a universal
masking mandate, and Ohio’s local health boards are prohibited from applying such health
orders to those not medically diagnosed with a disease or in direct contact with such a person.
Defendants’ state that the Mandate was “implemented in accordance with CDC
guidelines.” Defendants Motion to Dismiss Amended Complaint, p. 2 (“Defendants’ MTD”).
These guidelines are found online at https://www.cdc.gov/coronavirus/2019-
ncov/community/colleges-universities/considerations.html. Plaintiffs request the court to take
judicial notice of this and other government records from the internet referenced in this motion.
State ex rel. Davis v. Brown, 2021-Ohio-2479, ¶14 (10th Dist.).
The CDC guidance emphasizes, in its first key point, that it “does not replace any state
[or] local laws, rules and regulations with which [defendants] must comply.” The CDC further
emphasizes in its introduction that defendants determine how to implement the guidance “in
accordance with applicable law” and states that “This guidance does not replace any applicable
federal, state…[or] local …health and safety laws, rules, and regulations with which [defendants]
must comply.”
The Mandate requires the unvaccinated, including plaintiffs, to participate in weekly
Covid-19 testing. Exhibit 1, p. 1. It also requires them to mask outdoors when unable to
maintain social distancing. Exhibit 2, p. 1. Those who do not comply are subject to discipline
up to separation from the University, and limitations on campus activities. Exhibit 2, p. 4;
Exhibit 3, p. 4. The unvaccinated, if exposed to Covid-19 are required to quarantine for 5 days,
but the vaccinated need not quarantine if exposed. Exhibit 4, pp. 1, 6.
Subsequent to the filing of this case, on February 24, 2022, the weekly testing requirement
for the unvaccinated ceased subject to the University monitoring rates of transmission to
determine whether it would “need to return to more restrictive measures of surveillance.”
Defendants MTD, Exhibit C. On March 2, 2022, masking requirements were lifted as long as
rates of hospitalization and transmissibility remain in the low to medium ranges. Defendants
MTD, Exhibit D, p. 1.
III. Argument
A. Standing
The Ohio Supreme Court recognizes that standing may be conferred by the Declaratory
Judgment Act, in addition to standing conferred by common law. Ohioans for Concealed Carry,
Inc v. Columbus, 164 Ohio St. 3d 291, 2020-Ohio -6724, ¶¶ 12,30. However, in construing the
standing provided by R.C. 2721.03, Ohioans held that “[s]tanding depends on whether the
plaintiffs have alleged such a personal stake in the outcome of the controversy that they are
entitled to have a court hear their case.” Id., ¶7, citing ProgressOhio.org. Inc. v. JobsOhio, 139
Ohio St. 3d 520, 2014-Ohio -2382, ¶19. ProgressOhio.org held that R.C. 2721.03 applied only
to “person[s] whose rights, status or other legal relations are affected by a constitutional
provision [or] statute. Id., ¶19. ProgressOhio.org construed this to mean that plaintiffs must
show “that they have [] rights at stake or that speedy resolution [would] bring them, [] concrete
relief.” Id., ¶19.
Recently, the Ohio Supreme Court held that allegations that “plaintiffs are the objects of
injurious state action…makes their claim to standing a strong one.” O’Neal v. State, __ N.E.
3d__, 2021-Ohio 3663, ¶11, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-562 (1992)
(“[W]here the plaintiff is himself an object of [an illegal government] action, there is ordinarily
little question that the action…has caused him injury, and that a judgment preventing…the action
will redress it.”)
Plaintiffs claim that defendants’ actions are unlawful under certain constitutional and
statutory provisions. Defendants argue that the plaintiffs have not alleged sufficient harm to
show standing and have not stated a claim for relief. However, the requirement that a plaintiff
show that their rights are affected defines both what is required to show standing and to state a
claim for relief. MT&M Gaming, Inc. v. City of Portland, 360 Or. 544, 383 P. 3d 800, 805, n. 4.
(2016) (Construing an Oregon declaratory judgement act virtually identical to Ohio’s.); Ohioans,
¶62 (DeWine J., dissent) (“Because we must assume that [plaintiff] had standing, the
[declaratory relief] claim is justiciable.”) R.C. 2721.03 provides the relief of a declaration
construing constitutional provisions and statutes. Any person who has shown that his or her
rights are affected is entitled to such relief and has therefore stated a claim for which relief can
be granted.
Plaintiffs allege that their rights are affected by defendants’ Mandate in that it invades
plaintiffs’ interests protected by 1) the constitutional limits on defendants’ authority; 2) R.C.
2905.12 and 2307.60 regarding coercive threats of official action; and 3) R.C. 3792.04’s
prohibition of EUA vaccine mandates and vaccine status discrimination. Plaintiffs rights under
these constitutional and statutory provisions are affected regardless of vaccine exemption status.
The central issue regarding standing to maintain these claims is whether after all
reasonable inferences are drawn in plaintiffs’ favor from the facts alleged in the FAC and other
permissible evidence, it appears beyond doubt that plaintiffs can prove no set of facts supporting
standing.
This type of issue was analyzed in depth in the Ohioans for Concealed Carry case. Id.,
¶30. Ohioans held that plaintiffs need only demonstrate “a significant possibility of future harm
to justify pre-enforcement relief.” Id., ¶32. Ohioans also held that the applicable standard at the
pleadings stage was whether it was beyond doubt that plaintiffs could prove no set of facts
showing standing (the “no set of facts” standard). Id., ¶¶35, n. 3, 41, 51-52, citing Lujan at 561.
Lujan in turn, provides at the cited page that “[a]t the pleading stage, general factual allegations
of injury resulting from the defendants’ conduct may suffice, for on a motion to dismiss we
presume[e] that general allegations embrace those specific facts that are necessary to support the
claim.”)
The “no set of facts” standard remains Ohio law even though it has long since been
abandoned by the U.S. Supreme Court which was its origin. Maternal Grandmother v. Hamilton
County Department of Job and Family Services, ___ N.E. 3d ___, 2021-Ohio-4096, ¶¶ 13, 23-29
(Ohio S. Ct.). The current federal standard requires the pleading of “enough facts sufficient to
state a claim for relief that is plausible on its face.” Id, ¶27. However, a complaint does not need
detailed factual allegations. Id., ¶27. It “need only give reasonable notice of the claim.”
Ohioans, ¶55. A claim has facial plausibility when a plaintiff pleads factual content that presents
more than a sheer possibility that a defendant has acted unlawfully. Maternal Grandmother, ¶27.
Although this standard has not been explicitly adopted, it has long been effectively applied under
Ohio law. Id., ¶29.
In Ohioans, the majority and dissent parried regarding the application of the dismissal
standard and what was necessary to sufficiently plead harm for purposes of declaratory judgment
standing. Chief Justice O’Connor for the majority effectively applied the plausibility standard in
determining that plaintiffs had not alleged any facts supporting “a significant possibility of future
injury.” Id., ¶35. The Ohioans majority acknowledged the “no set of facts” standard but
concluded that it did not preclude dismissal where there were no allegations supporting the
personal stake or harm required for declaratory judgment standing. Id., ¶¶35, n.3, 41.
Ohioans addressed a claim for declaratory relief regarding city firearms ordinances on
bump stocks allegedly unlawful under a state statute. Id., ¶1, 35. Ohioans observed that
plaintiffs made no allegation that its members owned bump stocks or other accessories within the
purview of the ordinance. Ohioans concluded that the complaint was “devoid of any allegation
on which [the court] could conclude that there is a significant possibility of future harm.” Id.,
¶35. In the present case, plaintiffs made numerous allegations in the FAC and attached exhibits
showing declaratory judgment standing to maintain claims that are not affected by their vaccine
exemptions.
Plaintiffs allege defendants mandated that University of Cincinnati students be fully
vaccinated, unless they receive an approved exemption, and that they are University of
Cincinnati students. FAC, ¶¶3, 11, Exhibit 1, p. 1. They allege further that the Mandate requires
them to comply with testing, masking, quarantine and other health measures. FAC, ¶¶5-7,
Exhibits 1-3.
Plaintiffs contend that the Mandate exceeds the authority delegated to defendants under
R.C. 3361.01 and 3345.021 and the Ohio Constitution, as construed by Ohio case law. FAC,
¶¶20-21. They pointed to Ohio law that limits appellees’ authority by a standard of
reasonableness defined by public policy manifest in statutes including R.C. 3709.212. FAC,
¶¶21-22. R.C. 3709.212 precludes applying health orders to those, such as plaintiffs, who are
not diagnosed with disease or in direct contact with someone so diagnosed. FAC, ¶22.
Moreover, the Ohio Attorney General (the “OAG”) has recently successfully argued that Covid-
19 mandates based on general statutory authority are unconstitutional because they violate the
non-delegation doctrine, as discussed below. Applying a standard of reasonableness is how Ohio
courts have construed the statutes granting general authority to public universities to avoid
rendering them unconstitutional under the non-delegation doctrine. See Akron v. Rowland, 67
Ohio St. 3d 374, 380 (1993).
Plaintiffs have shown they are the object of government action, which they have
challenged as unlawful and therefore have a strong claim for standing. O’Neal, ¶11. O’Neal is
instructive as to how to apply standing analysis. In that case, death row inmates challenged an
execution protocol as unlawful because it was not a validly promulgated administrative rule.
The O’Neal court held that the alleged injury could be redressed by a declaration that the
protocol is invalid and that the inmates had standing. O’Neal noted that the “availability of
declaratory judgment goes to the merits of the action; it does not affect the inmates’ standing.”
Id., ¶17.
O’Neal then went on to determine that the execution protocol was not legally invalid.
By doing so, O’Neal made clear that analysis of whether challenged government action is
unlawful is a matter for consideration on the merits, and therefore does not affect standing. In
the present case, appellants have alleged that their rights are affected by unauthorized and
unlawful government action that could be redressed by declaratory relief. Therefore, they have
shown standing for their claim for declaratory relief regarding lack of authority.
Defendants argue plaintiffs have no basis for declaratory relief regarding coercive threats
of official action under R.C. 2905.12 because it involves enforcement of a criminal statute.
However, R.C. 2307.60 provides for civil liability for criminal violations. Jacobson v. Kaforey,
149 Ohio St. 3d 398, 2016-Ohio-8434, ¶1. Moreover, such civil liability does not require an
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underlying criminal conviction. Buddenburg v. Weisdak, 161 Ohio St. 3d 160, 2020-Ohio-3832,
¶11. When there is no criminal conviction, a declaration of the existence of a criminal act must
be obtained. Evans v. Ohio Department of Rehabilitation and Correction, 2020-Ohio-1521, ¶11
(10th Dist.). Such a declaration regarding government actors can’t be obtained from the Ohio
Court of Claims, because of its jurisdictional limitations. Id., ¶11. Such relief can only be
obtained from a court of common pleas, as plaintiffs are requesting. Id., ¶11.
R. C. 2905.12 prohibits threats of official action to coerce plaintiffs on matters for which
they have a legal freedom of choice. Plaintiffs have alleged the freedom of choice under Article
I, Section 1 of the Ohio Constitution regarding taking vaccines, masking, testing, quarantine and
limitations on certain activities by the Mandate since defendants lack authority to require the
same. FAC, ¶¶ 25-31, 33. Accordingly, plaintiffs have alleged harm caused by unlawful
government action which can be remedied by a declaration and have therefore shown standing
for this claim.
R.C. 3792.04 prohibits universities from mandating non-FDA-approved Covid-19
vaccines and discriminating between those who have taken such vaccines and the unvaccinated.
Plaintiffs have alleged that the University mandated Covid-19 vaccines when the only such
vaccines available are EUA vaccines, which are not fully approved by the FDA. FAC, ¶¶36-37.
They have further alleged that defendants discriminated by requiring only the unvaccinated to
submit to testing and quarantine. FAC, ¶¶38, 40. Accordingly, plaintiffs have alleged harm
caused by unlawful government action which can be remedied by a declaration and have therefor
shown standing for this claim.
The Ohio Supreme Court addressed the standard for declaratory judgment standing in
Moore v. Middletown, 133 Ohio St. 3d 55, 2012-Ohio-3895. Moore reversed a dismissal for
11
failure to plead standing for a claim that a zoning ordinance in a municipality bordering
plaintiff’s property was unconstitutional. Moore “cautioned [judges] to remember, standing is
not a technical rule intended to keep aggrieved parties out of court.” Id., ¶47. “Rather, it is a
practical concept designed to ensure that courts and parties are not vexed by suits brought to
vindicate nonjusticiable interests and that judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and vigorously represented.” Id., ¶47.
Moore emphasized that “our cases make clear that we are generous in considering whether a
party has standing.” Id., ¶48.
Plaintiffs are vigorously advocating their claims which allege injuries that can be
remedied by declaratory relief and are therefore justiciable. They easily meet the Ohio Supreme
Court’s practical criteria for showing standing.
IV. Ripeness
Defendants argue plaintiffs’ claims should be dismissed for lack of standing for the same
reasons that the courts did so in Siliko v. Miami University, Butler C.P. No. CV-2021-10-1467
(De. 6, 2021) and Hoerig v. Bowling Green State University, Wood C.P. No. 2021-CV-0456.
Defendants’ MTD, Exhibits A and B. In Siliko, which is now on appeal, the trial court dismissed
a plaintiff who had not requested an exemption based on language in Wade v. University of
Connecticut Board of Trustees, __F. Supp. 3d__, 2021 WL3616035,*8 (D. Conn.) that those
who don’t submit to a policy don’t have standing to challenge the policy. Wade based this
language on Libertarian Party of Erie County v. Cuomo, 970 F. 3d 106, 121 (2ⁿᵈ Cir. 2020),
which derived it from Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 166-68 (1972). Moose
Lodge explained at the cited pages that a party “may not seek redress for injuries done to others”
(Id., at 166) and that since plaintiff hadn’t applied for and been rejected for membership, he
12
didn’t have standing to challenge the membership policy. In the present case, plaintiffs are
seeking redress for injuries to themselves, not others, and therefore have standing under Moose
Lodge. This is not a circumstance where plaintiffs’ rights are not affected by the policy they are
challenging.
In Hoerig, the trial court rejected the argument that a plaintiff who had not requested an
exemption should be dismissed for lack of standing, stating that “Hoerig is still subject to the
policy even if she does not comply with its requirements.” Id. at 5. Nonetheless, the trial court
then dismissed Hoerig’s claims stating that her injuries were conjectural and hypothetical and
therefore not ripe for review.
The test for ripeness was recently described by the Ohio Supreme Court as follows,
“[a]lthough a declaratory-judgment action generally contemplates that the action is brought
before an injury-in-fact occurred, a plaintiff must nonetheless demonstrate “actual present harm
or a significant possibility of future harm to justify pre-enforcement relief.’” Ohioans, supra,
¶32, citing Peoples Rights Org., Inc. v. Columbus, 152 F.3d 522, 527 (6th Cir. 1998). Peoples
Rights held that plaintiffs had standing to pursue declaratory relief regarding a city assault
weapons ban “based on a significant possibility of future harm.” Ohioans., ¶33. Peoples Rights
rejected the argument that the matter was not justiciable because there was no enforcement
action as “utterly inconsistent with the policies underlying the Declaratory Judgment Act.”
Peoples Rights Org., Inc. at 529, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 153
(1967) (“Where the legal issue presented is fit for judicial resolution, and where a regulation
requires an immediate and significant change in the plaintiffs’ conduct of their affair with serious
penalties attached to noncompliance, access to the courts under…the Declaratory Judgment Act
must be permitted…”).
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The Ohio Supreme Court allowed pre-enforcement declaratory relief for administrative
regulations in Burger Brewing Co. v. Liquor Control Commission, 34 Ohio St. 2d 93, syllabus
(1973) (“An action for a declaratory judgment to determine the validity of an administrative
agency regulation may be entertained by a court, in the exercise of its sound discretion, where
the action is within the spirit of the Declaratory Judgment Act, a justiciable controversy exists
between the parties, and speedy relief is necessary to the preservation of rights which may
otherwise be impaired or lost.”).
The Ohio Supreme Court has rejected the argument that a claim for declaratory relief is
not ripe if a regulation is not being strictly enforced. Wilson v. City of Cincinnati, 171 Ohio St.
104, 108 (1960) (”However, in the determination of the constitutionality of an ordinance or
statute, a court must, of course, indulge in the absolute presumption that such ordinance or
statute is in fact strictly enforced. Lack of diligence by those charged with the duty of enforcing
such laws must, of course, have no bearing whatsoever on the determination of such laws’
validity or nonvalidity.”)
In the present case, plaintiffs allege that the Mandate requires them to be vaccinated or,
if exempted, complete weekly Covid-19 testing, or be subject to disciplinary action that can lead
to separation from the University. FAC, ¶¶4, 6, Exhibit 1, pp. 1, 3. They also allege that the
Mandate requires them to wear masks or be subject to discipline. FAC, ¶5, Exhibit 2, p. 3.
Further, plaintiffs will submit evidence that after this case was filed, plaintiff Benjamin Lipp was
subjected to discipline for not wearing a mask. There can be little question that plaintiffs have
shown “a significant possibility of future harm [justifying] pre-enforcement relief.” Ohioans,
¶32.
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V. Mootness
“Standing is to be determined as of the commencement of suit.” Federated Home Loan
Mortg. Corp. v. Schwartzwald, 134 Ohio St 3d 13, 2012-Ohio-5017, ¶24. “The requisite
personal interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Environmental
Services, 528 U.S. 167, 189 (2000). However, “a defendant claiming that its voluntary
compliance moots a case bears the formidable burden of showing that it is absolutely clear the
allegedly wrongful behavior could not reasonably be expected to recur.” Id. at 190; Trinity
Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2018, n. 1 (2017). As stated in
Ohioans, “[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot
because a dismissal for mootness would permit a resumption of the challenged conduct as soon
as the case is dismissed.” Ohioans, supra, ¶56.
Defendants argue that recent changes in the testing and masking policies means plaintiffs
no longer have an injury to support standing. Defendants’ MTD, pp. 4, 7. Such voluntary
cessation of challenged conduct doesn’t impact standing, because standing is determined as of
the commencement of this lawsuit. Nor would it permit dismissal for mootness, since defendants
have not met their “formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. at 190;
Trinity Lutheran Church of Columbia, Inc. at 2018, n. 1.
The cessation of the testing requirement was specified as being subject to the University’s
monitoring of rates of transmission to determine whether it would “need to return to more
restrictive measures of surveillance.” Defendants MTD, Exhibit C. The masking mandate was
lifted only as long as rates of hospitalization and transmissibility remain in the low to medium
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ranges. Defendants MTD, Exhibit D, p. 1. As a result, defendants cannot meet their burden of
showing that “it is absolutely clear the allegedly wrong behavior could not reasonably be
expected to recur.” Accordingly, plaintiffs’ claims can not be dismissed for mootness.
VI. Stating Claims for Declaratory Relief
Ohioans held that in addition to common law standing, standing may be conferred by the
Declaratory Judgment Act (R.C.2721.03). Id., ¶¶12, 30. R.C. 2721.03 provides that “persons
whose rights…are affected by a constitutional provision [or] statute…may have determined any
question of construction or validity…and obtain a declaration of rights…under it.” Ohioans held
that declaratory relief standing required allegations of a personal stake in the outcome of the
controversy, which is equated with persons whose rights are affected. Ohioans, ¶37, citing
ProgressOhio.org, Inc., ¶¶7, 19.
Stating a claim for declaratory relief would only require a showing that a plaintiff’s rights
are affected by a constitutional provision or statute. Upon such a showing, plaintiffs are entitled
to the relief of a declaration of rights under R. C. 2721.03 i.e. they have stated a claim for
declaratory relief.
The merits of a declaratory relief claim involve how the constitutional and statutory
provisions at issue should be construed. Defendants argue these merits throughout their motion
to dismiss. However, stating a claim for declaratory relief, does not require a showing that
plaintiffs interpretation of constitutional and statutory provisions will prevail. Plaintiffs are
entitled to “have determined any question of construction or validity” by “a declaration of
rights.”
Stating a claim for declaratory relief is logically distinct from showing standing, although
they closely overlap. The requirement that plaintiffs show that their rights are affected defines
16
both what is required to show standing and to state a claim for relief. MT&M Gaming, Inc. v.
City of Portland, 360 Or. 544, 383 P. 3d 800, 805, n. 4. (2016) (Construing an Oregon
declaratory judgement act virtually identical to Ohio’s.); Ohioans, ¶62 (DeWine J., dissent)
(“Because we must assume that [plaintiff] had standing, the [declaratory relief] claim is
justiciable.”)
Plaintiffs have raised questions of construction and validity of the above described
constitutional and statutory provisions and have therefore stated claims for declaratory relief.
Moreover, plaintiffs’ claims raise factual issues which justify discovery and a hearing and would
preclude dismissal at the pleadings stage.
A. Lack of Authority: Non-Delegation Doctrine-Article II, Section 1 of the

Ohio Constitution; Right to Refuse Medical Treatment-Article I, Section
1 of the Ohio Constitution
1. Non-Delegation Doctrine-Article II, Section 1 of the Ohio

Constitution
Defendants barely address the crucial threshold issue of whether they have authority to
issue the various Mandate health orders. This omission is telling. Plaintiffs allege that the
Mandate exceeds defendants’ general authority to administer the University under R.C. 3361.01
and 3345.021. (The authority to administer the University is vested in its board of trustees under
these statutes and plaintiffs have alleged that they issued the Mandate, which makes them proper
parties to this case.) Ohio case law limits the exercise of this general authority by requiring that
the exercise of such authority be reasonable. See State ex rel. Barno v Crestwood Bd. Of Edn.,
134 Ohio App 3d. 494, 503 (11th Dist. 1998). Reasonableness must be evaluated by the
standards of “common sense… guided by considerations of public policy manifested in relevant
statutory, administrative, and decisional law.” Id. at 304; see O’Neal v State, 146 N.E. 3d 605,
17
2020-Ohio-506, ¶33. Defendants’ unauthorized actions violate the non-delegation doctrine and
are therefore unconstitutional under Article II, Section 1 of the Ohio Constitution. Id., ¶¶ 34, 50.
The non-delegation doctrine is described in Capital Care Network v. Ohio Dept. of
Health, 153 Ohio St. 3d 362, 2018-Ohio440, ¶110 and Redman v. Ohio Dept. of Indus. Relations,
75 Ohio St 3d 399, 406 (1996). (“A statute does not unconstitutionally delegate legislative
power if it establishes, through legislative policy and such standards as are practical, an
intelligible principle to which the administrative officer or body must conform…”)
Ohio courts have avoided the unconstitutional interpretation advocated in this case by
construing a state university or school’s general authority as limited by a standard of
reasonableness defined by public policy manifest in statutes. The principle that university rules
must be reasonable was applied in McGinnis v Walker, 40 N.E. 2d 488, 492 (Ohio App.1941)
and Long v. Board of Trustees, 24 Ohio App. 261, 263-264 (Ohio App.1926). The principle that
reasonableness is defined by public policy, as manifest in statutes, was applied in State ex rel.
Barno, supra. This construction avoids an unconstitutional delegation of legislative authority to
university administrators, which would arise if there was no intelligible principle to which
university administrators must conform. This interpretation is consistent with the principle of
avoiding construing statutes as unconstitutional where reasonably possible. Akron v. Rowland,
67 Ohio St. 3d 374, 380 (1993).
Defendants argue that the authority to issue the Mandate is provided by R.C. 3345.021,
which provides general authority to administer the University. The OAG has repeatedly argued
in courts, mostly successfully, that the non-delegation doctrine prevents the legislature from
delegating to agencies major policy questions related to Covid-19, without clear limiting
principles.
18
For example, Nat’l. Fed. of Ind. Business v. Dept. of Labor, OSHA, 142 S. Ct. 661, 668-
669 (2022) involved a Covid-19 vaccine mandate issued by OSHA as an emergency temporary
standard. Such standards were authorized when “employees are exposed to… substances or
agents determined to be toxic.” 29 U.S.C. 655(c). The OAG successfully argued that issuing a
Covid-19 mandate was an unconstitutional delegation of legislative authority. In an application
for emergency stay, the OAG argued that “[A] statutory delegation is constitutional as long as
Congress lays down by legislative act an intelligible principle to which the person or body
authorized to exercise the delegated authority is directed to conform.” Emergency Motion for
Stay, 6th Cir. No. 21-4031, Doc. 4, pp. 38-39. The OAG further argued that when Congress
empowers an agency to regulate, it must enact “‘specific restrictions’ that ‘meaningfully
constrain[]’ the agency’s exercise of authority.” Id., p. 39.
The OAG successfully made the same argument in Kentucky v. Biden, 2021 WL
5587446, *8, which involved a Covid-19 vaccine mandate issued under the purported authority
granted by 40 U.S.C. 101, which generally provided for a federal procurement system. In Biden
v. Missouri, 142 S. Ct. 647, 2022 WL 120950, the OAG unsuccessfully argued that the CMS
mandate violated the non-delegation doctrine.
The non-delegation doctrine is a general principle which is applicable in a broad range of
circumstances. As the OAG has argued, it is applicable when the government claims authority to
issue standards when employees are exposed to toxic substances. It is also applicable when the
government issued a Covid-19 vaccine mandate under general federal procurement authority. In
the present case, defendants give no reason why the non-delegation doctrine is not applicable to
Covid-19 mandates issued under defendants’ general administrative authority.
19
Defendants broadly contend that their general statutory authority to administer the
University authorizes them to issue Covid-19 public health orders in the Mandate. Defendants’
MTD, p. 19. However, the Ohio Legislature has granted specific authority, within limits, to the
Ohio Department of Health (“ODH”) and local health boards relating to Covid-19 public health
orders and has not granted such authority to state universities. Moreover, in doing so, the
legislative sponsors of recently enacted Senate Bill 22 (including R.C. 3709.212) explicitly
stated that their goal was to “give the citizens of the state of Ohio, through their elected officials
in the General Assembly, a voice in matters related to public health” and to provide a “sensible
safeguard against state overreach.” Sponsor Testimony, Senate Bill 22, Ohio Senate
Government Oversight and Reform Committee, January 26, 2021. Senate Bill 22, including
R.C. 3709.212, was enacted by a supermajority of Ohio legislators overriding the governor’s
veto and is a dramatic manifestation of relevant public policy limiting defendants’ authority.
Ohio’s relevant statutory scheme as amended by Senate Bill 22 provides that ODH “shall
have supervision of all matters relating to the preservation of the life and health of the people and
have authority in matters of quarantine and isolation.” R.C. 3701.13(B)(1). The ODH’s
authority “is superior to the authority” of the local boards of health. R.C. 3701.13(B)(3). The
ODH has authority to “approve methods of immunization against the diseases specified in
section 3313.671”, which does not include Covid-19. R.C. 3701.13(B)(4).
On the other hand, the local health boards and “officers of state institutions” such as
defendants are bound by R.C. 3701.56, which provides that they “shall enforce quarantine and
isolation orders, and the rules the [ODH] adopts.”
Local boards of health may issue orders and regulations for the public health or for the
prevention or restriction of disease. R.C. 3709.20 and 3709.21. However, under Senate Bill 22,
20
such orders may only apply to persons medically diagnosed with a disease or who have come
into direct contact with someone medically diagnosed with a disease. R.C. 3709.212.
Defendants are required to follow the rules and orders of local health boards by R.C. 3709.99.
Under Ohio’s statutory scheme, the only role assigned to defendants is the requirement to
enforce the rules and quarantine and isolation orders of ODH and local health boards, which are
subject to the limitations described above.
Nonetheless, defendants contend that the general authority to administer the University
includes far broader authority to issue public health orders than that granted to ODH or the local
boards of health. They contend they can universally mandate masks and Covid-19 vaccines even
though the Ohio Legislature has specified that they must enforce ODH rules which lack such
authority. They contend that they can apply masking, testing and activity limitation orders to
persons who are not medically diagnosed with a disease, even though the Ohio Legislature has
specified that they must follow local health board regulations which explicitly prohibit such
orders. R.C. 3709.99.
Defendants lack authority to issue the public health orders in this case, under Ohio’s
applicable statutory scheme and Ohio case law as described above. Defendants’ argument that
the general authority to administer the University, provided by statute, gives them broad public
health authority over Covid-19 policies, would render the statute unconstitutional under the non-
delegation doctrine.
2. Right to Refuse Medical Treatment-Article I, Section 1 of the Ohio

Constitution
Defendants also lack authority to issue the health orders in the Mandate to the extent that
they involve medical treatment which plaintiffs have the right to refuse under the Ohio
Constitution. Article I, Section 1 of the Ohio Constitution provides a right to refuse medical
21
treatment as a fundamental liberty. Steele v. Hamilton Cty. Community Mental Health Bd., 90
Ohio St. 3d 176,180 (2000). Steele held that this right may only be overridden when a physician
determines that a person “(1) presents an imminent danger to harm himself/herself or others, (2)
there are no less intrusive means of avoiding the threatened harm, and (3) the [medical treatment]
to be administered is medically appropriate for the patient.” Id. at 184. Steele is based in part on
the U.S. Supreme Court ruling in Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261,
282 (1990), which held that the Fourteenth Amendment did not preclude a state from adopting
evidentiary standards for determining a person’s choice to refuse medical treatment. Steele
requires that to override plaintiffs’ rights, defendants must establish these elements by clear and
convincing evidence. Steele at 184.
A constitutional violation can arise indirectly under the unconstitutional conditions
doctrine from threats to deny benefits to plaintiffs if they exercise their constitutional right to
refuse medical treatment. This doctrine “forbids the university from pulling the rug out from
under the students in a roundabout way.” Klaassen v. Trustees of Indiana University, __F. Supp.
3d __, 2021 WL 3073926, *23 (N.D. Ind.). (Addressing the unconstitutional conditions doctrine
in the context of university Covid-19 vaccine mandates.). “Under this doctrine…the government
may not deny a benefit to a person because he exercises a constitutional right.” Id., *23. “This
doctrine protects constitutional rights ‘by preventing the government from coercing people into
giving them up.’” Id., *23. “It ‘aims to prevent the government from achieving indirectly what
the Constitution prevents it from achieving directly.’” Id., *23.
Klaassen notes that “the first step in an unconstitutional condition claim is to identify the
nature and the scope of the constitutional right arguably imperiled by the denial of
a public benefit.” Id., *23. The right in Klaassen was students’ constitutional right to
22
refuse unwanted medical treatment under the Fourteenth Amendment of the U.S. Constitution..
Klaassen noted that “this liberty interest has remained confined…by duly enacted and
constitutional state laws.” Id., *23. Klaassen held that intrusions on this right should be
assessed under a rational basis review and that the students right to choose is “subject to the
state’s reasonable measures designed to pursue legitimate ends of disease control or eradication.”
Id., *24.
In the present case, it is the plaintiffs’ constitutional right to refuse medical treatment
under the Ohio Constitution, which defendants may not coerce plaintiffs into giving up, not the
Fourteenth Amendment right. Klaassen specifically acknowledges, in accordance with Jacobson
v. Commonwealth of Massachusetts 197 U.S. 11, 38 (1905), that Ohio may set the contours of
this right. Government actions intruding on this right are subject to strict scrutiny as specified by
Steele. The rational basis review standard applied by Klaassen relates to the Fourteenth
Amendment and is not relevant to the present case.
Plaintiffs allege that the Mandate’s mask requirement is a medical treatment given that
the masks are authorized by the FDA for emergency use as medical devices used for a medical
purpose.
https://www.ems.gov/pdf/FDA_EAU_Permits_Emergency_Use_and_Distribution_of_Filtering_
Facepiece_Respirators_3-11-20.pdf; https://www.fda.gov/media/137121/download;
https://www.fda.gov/media/140894/download (all last visited March 24, 2022).
In Green v. Alachua County, 323 So. 3d 246, 251-252 (Fla. App 2021), the court held
that plaintiff had a fundamental right to refuse the wearing of masks under a Florida
constitutional provision protecting the right to privacy. Given that the right involves a
fundamental liberty, a government mask mandate was subject to strict scrutiny review. Similarly,
23
in the present case, for defendants to have authority to issue the mask mandate they must
establish that they have met the Steele standards by clear and convincing evidence.
B. Coercion
R.C. 2905.12 precludes coercion by threats of official action regarding matters for
which persons have a legal freedom of choice. Defendants have threatened official action
(discipline) regarding a vaccination requirement, or the alternative requirements of masking,
testing and activity limitations if exempted from the vaccine mandate, all of which covers
matters for which plaintiffs have a legal freedom of choice. Under R.C. 2905.12, the threat itself
is the invasion of a legally protected interest or an injury-in-fact.
Defendants argue that R.C. 2905.12 is a criminal statute that does not create a private
cause of action and therefore doesn’t support a claim for declaratory relief. However, R.C.
2307.60 provides for civil liability for criminal violations. Jacobson v. Kaforey, 149 Ohio St. 3d
398, 2016-Ohio-8434, ¶1. Moreover, such civil liability does not require an underlying criminal
conviction. Buddenburg v. Weisdak, 161 Ohio St. 3d 160, 2020-Ohio-3832, ¶11. When there is
no criminal conviction, a declaration of the existence of a criminal act must be obtained. Evans v.
Ohio Department of Rehabilitation and Correction, 2020-Ohio-1521, ¶11 (10th Dist.). Such a
declaration regarding government actors can’t be obtained from the Ohio Court of Claims,
because of jurisdictional limitations. Id., ¶11. Such relief can only be obtained from a court of
common pleas, as plaintiffs now request. Id., ¶11.
R.C. 2905.12 is to be considered in conjunction with the requests for declaratory relief on
the limits on defendants’ authority, the right to refuse medical treatment under the Ohio
Constitution and R.C. 3792.04’s prohibition of EUA vaccine mandates and discrimination.
Those statutory and constitutional provisions provide defendants the freedom to choose on
24
matters relating to masking and vaccine mandates and to testing, quarantines and limitations on
activities. R.C. 2905.12 prohibits threats of official action to coerce plaintiffs’ choices on those
matters.
The fact that plaintiffs have exemptions from the vaccine mandate, does not mean they
are not subject to coercive threats. The Mandate threatens those exempted with discipline if they
don’t comply with masking, surveillance testing and activity limitations requirements. These
requirements impact plaintiffs on matters for which they have the right of freedom to choose
because they exceed plaintiffs’ authority, violate or chill the right to refuse medical treatment
and discriminate against the unvaccinated. The exemption requirements constitute a threat of
official action, which continually pressures plaintiffs to accept vaccination because these official
actions can be stopped at any time by getting vaccinated. The net effect is that plaintiffs are
faced with threats of, and actual, adverse official actions even if they obtain exemptions.
Whether these threats of official actions are improper with respect to the right to refuse
medical treatment, depends on whether defendants are able to meet the Steele standards
overriding such right. Hence, a determination of whether defendants can override such right, is a
necessary part of determining whether defendants have made improper threats.
C. R.C. 3792.04: Prohibition of EUA Vaccine Mandates and Discrimination

Based on Vaccine Status
R.C. 3792.04 clearly prohibits defendants from mandating Covid-19 vaccines that lack
full FDA approval. The Covid-19 vaccines currently available have only been authorized for
emergency use and have not received full FDA approval. They include the Pfizer-BioNTech
Covid-19 Vaccine (the “Pfizer vaccine”) and the Moderna and Johnson & Johnson vaccines
(collectively the “EUA vaccines”). By mandating Covid-19 vaccines, when the only such
vaccines available lack full FDA approval, defendants have violated R.C. 3792.04. A Covid-19
25
vaccine called Comirnaty was fully approved by the FDA on August 23, 2021 and another one
called Spikevax was approved on January 31, 2022, but neither is available. Under R.C.
3792.04, defendants may not discriminate between the unvaccinated and those vaccinated with
EUA vaccines, regardless of the approval or availability of Comirnaty or Spikevax.
Defendants state that the Pfizer vaccine has been fully approved by the FDA. That
statement is demonstrably incorrect. The Pfizer vaccine i.e. the Pfizer-BioNTech
Covid-19 vaccine, has only been authorized for emergency use. Emergency Use Authorization
(“EUA”) from the FDA dated August 23, 2021, https://www.marinclinic.org/wp-
content/uploads/2021/08/Pfizer-FDA-letter-and-EUA-Fact-Sheet-for-Recipients-ENG.pdf (last
visited April 4, 2022). It bears emphasis that the Pfizer vaccine’s emergency use authorization
was renewed August 23, 2021, the same day that Comirnaty was approved. Regardless of
Comirnaty’s status, the Pfizer vaccine remains an EUA vaccine which may not be mandated by
defendants by reason of R.C. 3792.04. Defendants’ assumption that Comirnaty is the same as
the Pfizer vaccine is also incorrect. Comirnaty is the marketing name for the product known as
the Covid-19 Vaccine, mRNA which was fully approved by the FDA and licensed on August 23,
2021. Comirnaty Biologics License Approval dated August 23, 2021,
https://www.fda.gov/media/151710/download (last visited April 4, 2021).
The connection between Comirnaty and the Pfizer vaccine was described by the FDA as
follows:
The licensed vaccine has the same formulation as the EUA-authorized vaccine and the
products can be used interchangeably to provide the vaccination series without
presenting any safety or effectiveness concerns. The products are legally distinct with
certain differences that do not impact safety or effectiveness. Pfizer EUA letter dated
August 23, 2021, p. 2, n. 8. (Emphasis added.)
Under R.C. 3792.04, one of the legal distinctions between the Pfizer vaccine and
26
Comirnaty is that defendants may not mandate the Pfizer vaccine, because it isn’t fully approved
by the FDA. There are many reasons why the Pfizer vaccine may not have received full approval
from the FDA, including labelling, manufacturing facilities involved or others. Regardless of
why the Pfizer vaccine has not received full FDA approval, R.C. 3792.04 prohibits mandating
vaccines without such approval.
Defendants in arguing that the Pfizer vaccine was fully approved cite Valdez v. Grisham,
__F.Supp.3d__, 2021 WL 4145746, *4 (D.N.M.), which in turn cited an FDA press release.
https://www.fda.gov/news-events/press-announcements/fda-approves-first-covid-19-vaccine
(last visited April 4, 2022). Valdez quoted the press release stating that Comirnaty formerly
known as the Pfizer vaccine was fully approved. However, the next sentence, which was not
quoted, said that the “Pfizer-BioNTech Covid-19 Vaccine is authorized for emergency use and is
available under the EUA…” It is clear that the Pfize vaccine and Comirnaty are legally distinct,
which means that they are distinct for legal purposes. For whatever reason, the Pfizer vaccine
remains an EUA vaccine and as a result, R.C. 3792.04 prohibits it from being mandated.
Defendants do not dispute that Comirnaty is unavailable. On September 13, 2021, the
FDA published a notice that Pfizer does not plan to produce Comirnaty over the next few
months. The CDC website currently states that Comirnaty is not presently available.
https://www.cdc.gov/vaccines/programs/iis/COVID-19-related-codes.html (last visited April 4,
2022).
The circumstances with Moderna and Spikevax are similar. On January 31, 2022, the
day Spikevax was approved by the FDA, the Moderna vaccine’s emergency use
authorization was renewed. Moderna remains an EUA vaccine, which the FDA says is
interchangeable with, but legally distinct from, Spikevax. One of the legal
27
distinctions is that Moderna, as an EUA vaccine, may not be mandated by defendants. Spikevax,
like Comirnaty, remains unavailable. https://www.cdc.gov/vaccines/programs/iis/COVID-19-
related-codes.html (last visited April 4, 2022).
Defendants also argue that there is no discrimination in violation of R.C. 3792.04
because plaintiffs have not alleged that they have been required to quarantine, test or wear
masks. In fact, the Mandate does require quarantines, testing, and masks for plaintiffs. FAC, ¶¶4-
7. Given these requirements, plaintiffs may seek pre-enforcement relief as discussed above.
Plaintiffs are only alleging a violation of R.C. 3792.04 to the extent that the
unvaccinated and EUA vaccinated are treated differently, regarding testing, masking
outdoors, limitation of activities and quarantining. FAC, ¶¶5-7. R.C. 3792.04 requires
defendants to distinguish between those vaccinated with EUA vaccines and those vaccinated
with vaccines fully approved by the FDA. Defendants are prohibited from discriminating
between the unvaccinated and those vaccinated with the EUA vaccines, even though they may
discriminate between the unvaccinated and those vaccinated with fully approved vaccines.
Plaintiffs have alleged that defendants have discriminated between the unvaccinated
(themselves) and those vaccinated with EUA vaccines. FAC, ¶¶5-7.
V. Conclusion
Standing considerations are no bar to declaratory and injunctive relief in this case, given
the holding in O’Neal, supra, ¶11. The element of injury-in-fact required for standing is met
when the government is the defendant and the plaintiffs, as in this case, are the objects of the
challenged government action. Moreover, plaintiffs’ showing that their rights are affected not
only establishes standing it meets the requirements to state a claim for declaratory relief.
28
In any event, the OAG’s position against application of the non-delegation doctrine is
untenable, given his repeated invocation of this doctrine in court to block Covid-19 mandates
based on statutes providing general authority. The OAG provides no rationale why the statute
providing general authority to administer a university is not subject to the non-delegation
doctrine, while a wide range of other general authority statutes are.
For these and the other reasons set forth above, defendants’ motion to dismiss should be
denied.
Respectfully Submitted,
MENDENHALL LAW GROUP
/s/ Thomas W. Connors

Warner Mendenhall (0070165)
Thomas W. Connors (0007226)
Kyle Wenning (0101391)
Mendenhall Law Group
190 North Union St. Ste 201
Akron, Ohio 44304
T: (330) 535-9160
F: (330) 762-9743
[email protected]
[email protected]
[email protected]
Attorneys for Plaintiffs
29
CERTIFICATE OF SERVICE
I hereby certify that on April 7th, 2022, a copy of the foregoing was electronically
filed with the court and served via email to counsel for defendants at the address listed:
Ali Razzaghi (0080927)

Ryan W. Goellner (0093631)
Nathaniel L. Truitt (0100459)
FROST BROWN TODD LLC
3300 Great American Tower
301 E. Fourth Street
Cincinnati, OH 45202
T: (513) 651-6800
F: (513) 651-6981
[email protected]
[email protected]
[email protected]
Attorneys for Defendants
/s/ Thomas W. Connors

Attorney for Plaintiffs
30

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IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO

Benjamin Lipp, et al., CASE NO. A-2104238

Plaintiffs, JUDGE GHIZ

The University of Cincinnati, et al., PLAINTIFFS’ BRIEF IN OPPOSITION

dismiss plaintiffs’ first amended complaint (the “FAC”).

Defendants challenge plaintiffs’ standing to seek declaratory relief construing

2) The Mandate constitutes threats of official action to coerce plaintiffs to take

had standing, the [declaratory relief] claim is justiciable.”)

determination of plaintiffs’ claims on the merits.

orders at issue in this case.

for determining a person’s choice to refuse medical treatment.

have a freedom to choose, as described above, in violation of R. C. 2905.12.

which defendants are violating as discussed below.

guidelines.” Defendants Motion to Dismiss Amended Complaint, p. 2 (“Defendants’ MTD”).

These guidelines are found online at https://www.cdc.gov/coronavirus/2019-

ncov/community/colleges-universities/considerations.html. Plaintiffs request the court to take

State ex rel. Davis v. Brown, 2021-Ohio-2479, ¶14 (10th Dist.).

The Mandate requires the unvaccinated, including plaintiffs, to participate in weekly

up to separation from the University, and limitations on campus activities. Exhibit 2, p. 4;

but the vaccinated need not quarantine if exposed. Exhibit 4, pp. 1, 6.

determine whether it would “need to return to more restrictive measures of surveillance.”

relief.” Id., ¶19.

will redress it.”)

plaintiffs’ interests protected by 1) the constitutional limits on defendants’ authority; 2) R.C.

Ohio law. Id., ¶29.

Plaintiffs allege defendants mandated that University of Cincinnati students be fully

non-delegation doctrine, as discussed below. Applying a standard of reasonableness is how Ohio

Ohio St. 3d 374, 380 (1993).

be obtained. Evans v. Ohio Department of Rehabilitation and Correction, 2020-Ohio-1521, ¶11

for this claim.

R.C. 3792.04 prohibits universities from mandating non-FDA-approved Covid-19

shown standing for this claim.

plaintiff’s property was unconstitutional. Moore “cautioned [judges] to remember, standing is

party has standing.” Id., ¶48.

Court’s practical criteria for showing standing.

therefore not ripe for review.

“[a]lthough a declaratory-judgment action generally contemplates that the action is brought

or a significant possibility of future harm to justify pre-enforcement relief.’” Ohioans, supra,

otherwise be impaired or lost.”).

104, 108 (1960) (”However, in the determination of the constitutionality of an ordinance or

shown “a significant possibility of future harm [justifying] pre-enforcement relief.” Ohioans,

“Standing is to be determined as of the commencement of suit.” Federated Home Loan

as the case is dismissed.” Ohioans, supra, ¶56.

cessation of challenged conduct doesn’t impact standing, because standing is determined as of

Trinity Lutheran Church of Columbia, Inc. at 2018, n. 1.

monitoring of rates of transmission to determine whether it would “need to return to more

VI. Stating Claims for Declaratory Relief

question of construction or validity…and obtain a declaration of rights…under it.” Ohioans held

ProgressOhio.org, Inc., ¶¶7, 19.

entitled to “have determined any question of construction or validity” by “a declaration of

preclude dismissal at the pleadings stage.

A. Lack of Authority: Non-Delegation Doctrine-Article II, Section 1 of the

1. Non-Delegation Doctrine-Article II, Section 1 of the Ohio

standards of “common sense… guided by considerations of public policy manifested in relevant

The non-delegation doctrine is described in Capital Care Network v. Ohio Dept. of

intelligible principle to which the administrative officer or body must conform…”)

construing a state university or school’s general authority as limited by a standard of