Tuesday, October 12, 2010

Ohio Preemption Case to be Heard by Ohio Supreme Court Today

From the Buckeye Firearms Association comes this reminder:
The Ohio Supreme Court will hear oral arguments for an important gun rights case, City of Cleveland v. State of Ohio, tomorrow, October 12, 2010.

The case came about after the Ohio General Assembly voted to override Governor Bob Taft's veto of HB347 - Ohio's "preemption" law - which codified R.C. 9.68, ensuring that firearms laws would be uniform throughout the state.

The City of Cleveland immediately sued the State of Ohio, and the Supreme Court is now going to be forced to issue a ruling that will decide once and for all whether R.C. 9.68 is valid. If it is valid, than other than ordinances banning the discharge of firearms inside city limits and zoning laws, Ohio cities are, once and for all, out of the gun control business.

I will be anxious to hear the outcome of this case and will post an update when a decision is reached.

UPDATE: Here is what the Ohio Supreme Court lists about the case:
Does State Law Invalidating Local Gun Regulations Violate City's Constitutional 'Home Rule' Powers?
City of Cleveland v. State of Ohio, Case no. 2009-2280
8th District Court of Appeals (Cuyahoga County)


•Does R.C. 9.68 violate the City of Cleveland’s “home rule” powers under the Ohio Constitution by prohibiting the city from enforcing local ordinances that regulate the sale, possession, ownership and discharge of firearms within the city limits?
•Does R.C. 9.68 violate the separation of powers doctrine of the Ohio Constitution by legislatively mandating that, in cases where municipalities are sued for continuing to enforce local gun ordinances, state courts must order the city to pay the court costs and attorney fees of any litigant who successfully challenges the constitutionality of that ordinance?
BACKGROUND: In December 2006, the General Assembly enacted Sub. House Bill 347. The bill contained specific amendments to the state’s previous statutory scheme regulating the concealed carry of firearms and established new statewide administrative procedures for the issuance of concealed carry licenses and penalties for violations of those licensing requirements.

The other major component of the bill was a new section of state law, R.C. 9.68. That section: 1) stated that it was the legislature’s intention in enacting the section “to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, carrying, sale or other transfer of firearms, their components and their ammunition.” 2) declared that “except as specifically provided by the U.S. Constitution, Ohio Constitution, state law or federal law” gun owners in Ohio may buy, sell, transfer, transport, store or keep any firearm “without further license, permission, restriction, delay or process.” And 3) directed that in any subsequent court case challenging a local gun control ordinance, state courts “shall award court costs and reasonable attorney fees to any person, group or entity that prevails in a challenge to an ordinance, rule or regulation as being in conflict with this section.”

The City of Cleveland filed a declaratory judgment action in the Cuyahoga County Court of Common Pleas challenging the constitutionality of R.C. 9.68 under the Home Rule Amendment to the Ohio Constitution. That amendment, contained in Article XVIII, Section 3, provides that municipalities within the state have the inherent authority to exercise all powers of local self-government and to adopt and enforce within their borders local police regulations to protect the safety and health of city residents, so long as such regulations do not conflict with “general laws” of the state. The city argued that R.C. 9.68 violated its home rule authority because the statute had the effect of invalidating multiple Cleveland city ordinances regulating the possession, sale and registration of firearms within the city. The state filed pleadings opposing the city’s petition for declaratory judgment and seeking summary judgment that the challenged statute was constitutional.

The trial court granted summary judgment in favor of the state, citing the Supreme Court of Ohio’s 2008 decision in Ohioans for Concealed Carry v. Clyde. In that decision, the Court held that a Clyde city ordinance prohibiting the concealed carry of weapons in city parks was void and unenforceable because it was in conflict with the uniform statewide guidelines for concealed carry that had been adopted by the General Assembly as part of Sub. H.B. 347.

The city appealed. On review, the 8th District Court of Appeals held that R.C. 9.68 was unconstitutional because it violated both the home rule amendment and the constitutional separation of powers between the legislative and judicial branches of state government, and remanded the case to the trial court with a directive to enter summary judgment in favor of Cleveland. In its decision, the court of appeals specifically found that R.C. 9.68 was not a “general law” under a four-part test set forth in the Supreme Court of Ohio’s 2002 decision in Canton v. State. The state sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for the state assert that the court of appeals erred by considering R.C. 9.68 in isolation from the rest of Sub. H.B. 347 and from the body of pre-existing state and federal laws that collectively make up a “comprehensive legislative scheme” that qualifies as a general law by prescribing uniform rules of permissible conduct by all citizens of the state with regard to the possession, sale or transfer, transportation and concealed carry of firearms.

They also argue that the absence of a specific provision in state law that regulates some aspect of gun possession or use that may be covered by a local ordinance does not alter the established legal principle that the state has the ability to displace local regulation of an area of law by establishing a uniform set of statewide regulations as it has done here. With regard to the separation of powers, they argue that the provision of R.C. 9.68 awarding attorney fees and costs against cities that continue enforcing local gun ordinances after they have been preempted by state law is no different than multiple other legislative enactments that entitle successful litigants to recover attorney fees and costs in various types of legal actions such as suits for wrongful imprisonment, delinquent child support, voter harassment, age discrimination and unreasonably denied public records requests, among others.

Attorneys for Cleveland urge the Court to affirm the 8th District’s findings that neither R.C. 9.68 nor H.B. 347 in its entirety meets the Canton v. State criteria for a “general law” because they leave major aspects of gun ownership and use that are covered by local ordinances − such as possession of firearms by minors, licensing of gun dealers, regulation of assault weapons and registration of handguns − unregulated under state law. They argue that R.C. 9.68 does not “prescribe rules of conduct for citizens generally” as required under the Canton test, but instead simply prohibits enforcement of any and all local gun-control ordinances regardless of whether there is any demonstrable conflict between a specific ordinance and a provision of state law. Finally, they assert that in enacting the legal fee-shifting provision of R.C. 9.68, the legislature infringed on the exclusive jurisdiction of the judicial branch to regulate the imposition of court costs and fees as a way to intimidate municipalities into repealing or not enforcing their local gun-laws.

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