The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BELLWETHER MUSIC FESTIVAL, LLC,
et al.,
Plaintiffs,
CASE NO. 2:20-CV-3279
v. JUDGE EDMUND A. SARGUS, JR.
Magistrate Judge Kimberly A. Jolson
AMY ACTON, et al.,
Defendants.
OPINION AND ORDER
The instant matter is before the Court for consideration of Plaintiff Bratwurst Festival,
Inc.’s (“Bratwurst”) motion to depose Defendant Dr. Amy Acton (“Dr. Acton”). (ECF No. 31).
Defendant responded in opposition. (ECF No. 36). For the reasons that follow, Bratwurst’s motion
is DENIED. (ECF No. 31).
I
Bratwurst is an Ohio corporation that owns, manages and produces the Bucyrus Bratwurst
Festival, which is a multi-day festival held every year in Bucyrus, Ohio. (ECF No. 21 at ¶ 11, 57,
58). The festival is slated to begin August 13, 2020 and end August 15, 2020. (Id. at ¶ 60).
According to the Complaint, the festival has acquired a significant amount of regional attention
over the years through attractions such as daily parades, music performances and food vendors.
(Id. at ¶ 62, 64). Bratwurst also claims that each festival requires approximately one year of
planning, which includes a significant investment of time and expense. (Id. at ¶ 63, 66).
Bratwurst seeks a preliminary injunction against the defendants in this case, challenging the
constitutionality of several orders promulgated by the State of Ohio that prevent its festival from
taking place. (See generally ECF No. 23). In particular, Bratwurst claims that Dr. Acton, as well
as other defendants, have violated the constitution through several orders, such as the May 29,
2020 Director’s Updated and Revised Order, which requires certain businesses and operations
including parades, fairs and festivals to remain closed until the Order is rescinded. (ECF No. 4 at
4). According to the Amended Complaint, events, like the Bratwurst festival, are protected by
fundamental constitutional rights such as those that pertain to freedom of speech, freedom to
peaceably assemble and the fundamental liberty interest innate to all citizens. (ECF No. 21 at ¶
199-214).
On June 30, 2020, the undersigned held a telephone status conference on Bratwurst’s motion
for preliminary injunction. (ECF Nos. 29, 33). During the conference, the parties discussed
whether Dr. Acton should provide testimony in this case. (Id.). After hearing arguments from both
sides, the Court instructed the parties to file briefs addressing whether such testimony is warranted.
(Id.). The parties have filed their respective briefs which are the basis of this Opinion and Order.
(ECF Nos. 31, 36).
II
The issue before the Court is whether Dr. Acton should be required to submit to deposition
for the role that she played in promulgating the orders at issue. Recently, the Sixth Circuit issued
League of Independent Fitness Facilities & Trainers, Inc. v. Whitmer, Case No. 20-1581, 2020
U.S. App. LEXIS 19691 (6th Cir. 2020) which governs this Court’s analysis here. In that case,
owners and operators of several Michigan indoor fitness facilities brought suit against the
Governor of Michigan in response to several Michigan orders that had temporarily closed certain
fitness center locations. Id. at * 3. According to the plaintiffs, the orders violated, in relevant part,
the Fourteenth Amendment’s guarantee of equal protection of the laws since they shut down fitness
centers, but left open bars, restaurants and saloons. Id. After concluding that there were no
fundamental interests or suspect classifications, the district court applied a rational basis standard
of review, and ultimately entered an injunction against the orders. Id.
On review, the Sixth Circuit stayed the injunction, explaining that the lower court’s
decision was based on the misguided conclusion that the Governor was required to adequately
explain her unique treatment of indoor fitness facilities, which she had failed to do at a hearing on
the preliminary injunction request. Id. at *5-7, 10 (citing FCC v. Beach Communications, 508 U.S.
307, 313-15 (1993) (“[B]ecause we never require a legislature to articulate its reasons for enacting
a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the
challenged distinction actually motivated the legislature. Thus, the absence of ‘legislative facts’
explaining the distinction ‘on the record’ has no significance in rational-basis analysis.”)). Instead,
the Governor had stated generally that gyms were closed because they amplified the dangers of
COVID-19. Id. The Sixth Circuit explained that the relevant standard for the orders “merely
requires ‘rational speculation’ that offers ‘conceivable support to the Governor’s order,’” which is
especially true “in the case of a public health crisis like the one presented by COVID-19, where
[State] latitude must be especially broad.” Id. at * 6 (citing FCC v. Beach Communications, 508
U.S. at 315). The Court ultimately concluded that the trial court entered the injunction in error
because the Governor was not required to affirmatively justify the orders. Id. at *6-8.
With respect to the latitude that courts must give government officials during public health
crises, Chief Justice Roberts noted in his concurrence in South Bay United Pentecostal v. Newsom
that “[t]he precise question of when restrictions on particular social activities should be lifted
during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.”
140 S. Ct. 1613, 1613 (2020). The Chief Justice noted 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.” Id. at 1613-1614.
The Government argues that a deposition of Defendant Dr. Amy Acton is not necessary
because the orders at issue are entitled to a presumption of validity. (ECF No. 36 at 2). The
Government also contends that her testimony implicates second-guessing the wisdom of State
emergency measures aimed at combating COVID-19. (Id. at 3).
Bratwurst argues that the Court should authorize and direct the deposition of Dr. Acton. (ECF
No. 31). According to Bratwurst, Dr. Acton, while serving as the Director of the Ohio Department
of Health, developed personal knowledge relevant to this case by “personally [taking] the
governmental action at issue and [holding] nearly daily news conferences wherein she specifically
addressed the personal actions which she took, as well as the bases for her personal actions.” (Id.
at 1). In addition, Bratwurst argues that Dr. Acton is available to testify in this matter because she
no longer directs the Ohio Department of Health. (Id.). Finally, Bratwurst contends that certain
fundamental constitutional liberties are at risk in this case, requiring the testimony of Dr. Acton.
(Id. at 4). The Court does not agree.
To be sure, the instant matter involves certain fundamental rights not at issue in Whitmer. And
while there may be First and Fourteenth Amendment rights implicated here, this case does not
involve a content-based regulation of speech, nor does it involve a suspect classification of any
kind. Instead, the orders at issue apply equally across the board to protect Ohio citizens from a
pandemic. As such, the actions that Dr. Acton took as Director of the Ohio Department of Health
may be justified on rational speculation as noted in Whitmer. At this juncture, her deposition or
testimony on the regulations themselves would not disclose evidence relevant to this case and
would not lead to evidence otherwise relevant.
III
For the reasons set forth above, Bratwurst’s motion is DENIED. (ECF No. 31).
IT IS SO ORDERED.
7/9/2020 s/Edmund A. Sargus, Jr.
DATE EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE