Columbus sues state over HB 228 changes to preemption

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rickt
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Columbus sues state over HB 228 changes to preemption

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Columbus is asking a Franklin County judge to stop a new state gun law from taking effect later this month while the court decides whether a portion of the law violates the city’s home-rule authority.

Columbus sued the state of Ohio on Tuesday for what it says is an unconstitutional infringement on the city’s home-rule power after legislators overrode former Gov. John Kasich’s veto of House Bill 228 which, among other changes, shifted the burden of proof in self-defense cases.

The city is arguing that a section of the law, set to take effect March 28, curtails its constitutionally designated authority to set local regulations, such as those the city adopted last year. But the city is seeking a preliminary injunction that would delay implementation of the entire law until the lawsuit is resolved.
https://www.dispatch.com/news/20190319/ ... le-grounds
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Re: Columbus sues state over HB 228 changes to preemption

Post by DontTreadOnMe »

From the article:
Columbus will argue that the law would force the city to allow firearms or ammunition manufacturers to operate in residential neighborhoods.
They may have a point. HB 228 added manufacture to the list of things that cities are pre-empted from regulating but the zoning exemptions under 9.68(D) only allow for ordinances specific to the commercial sale of firearms or ammunition. I think Columbus has a good argument that they have the right under home rule to regulate zoning ordinances for the commercial manufacturing of firearms and ammunition.

IMO the general assembly should modify 9.68(D) as follows:
(D) This section does not apply to either of the following:
(1) A zoning ordinance that regulates or prohibits the commercial sale or commercial
manufacturing
of firearms, firearm components, or ammunition for firearms in areas
zoned for residential or agricultural uses;
(2) A zoning ordinance that specifies the hours of operation or the geographic areas
where the commercial sale or commercial manufacturing of firearms, firearm components,
or ammunition for firearms may occur, provided that the zoning ordinance is consistent
with zoning ordinances for other retail establishments in the same geographic area and
does not result in a de facto prohibition of the commercial sale of firearms, firearm
components, or ammunition for firearms in areas zoned for commercial, retail, or industrial
uses.
Note that IMO it's important to add the 'commercial' before manufacturing even though it's already before 'sale' to make explicit that cities are not permitted to regulate non-commercial manufacturing.

If that change is made Columbus's lawsuit will be dismissed as moot.
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Re: Columbus sues state over HB 228 changes to preemption

Post by M-Quigley »

I understand why Columbus might have a concern about commercial manufacturing in their jurisdiction, but regarding the bolded, is the bolded part being done for legal reasons? (ie they have to oppose the entire law?) or is their a separate political agenda here?
The city is arguing that a section of the law, set to take effect March 28, curtails its constitutionally designated authority to set local regulations, such as those the city adopted last year. But the city is seeking a preliminary injunction that would delay implementation of the entire law until the lawsuit is resolved.
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Re: Columbus sues state over HB 228 changes to preemption

Post by DontTreadOnMe »

M-Quigley wrote:I understand why Columbus might have a concern about commercial manufacturing in their jurisdiction, but regarding the bolded, is the bolded part being done for legal reasons? (ie they have to oppose the entire law?) or is their a separate political agenda here?
The city is arguing that a section of the law, set to take effect March 28, curtails its constitutionally designated authority to set local regulations, such as those the city adopted last year. But the city is seeking a preliminary injunction that would delay implementation of the entire law until the lawsuit is resolved.
I'm sure there's an agenda, and I don't even know what they would mean by "the entire law". They can't delay all of 9.68 since it's already enacted law, and it makes no (legal) sense to argue for delaying the parts of HB 228 outside of the 9.68 edits since the changes to other statutes are clearly separable from the changes to 9.68.
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Re: Columbus sues state over HB 228 changes to preemption

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DontTreadOnMe wrote:
M-Quigley wrote:I understand why Columbus might have a concern about commercial manufacturing in their jurisdiction, but regarding the bolded, is the bolded part being done for legal reasons? (ie they have to oppose the entire law?) or is their a separate political agenda here?
The city is arguing that a section of the law, set to take effect March 28, curtails its constitutionally designated authority to set local regulations, such as those the city adopted last year. But the city is seeking a preliminary injunction that would delay implementation of the entire law until the lawsuit is resolved.
I'm sure there's an agenda, and I don't even know what they would mean by "the entire law". They can't delay all of 9.68 since it's already enacted law, and it makes no (legal) sense to argue for delaying the parts of HB 228 outside of the 9.68 edits since the changes to other statutes are clearly separable from the changes to 9.68.
The modifications to ORC 9.68 don't go into effect until December 28, 2019.
The way I see it, they are underhandedly using the 9.68 portion of the bill to attempt to stop the entire bill, and should be easy to prevent that from happening.
If they don't get their injunction by March 28, they get to start over.

Of course, I haven't been able to see the suit yet
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Re: Columbus sues state over HB 228 changes to preemption

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http://fcdcfcjs.co.franklin.oh.us/CaseI ... from=email

The Motion for Preliminary Injunction details all the city's arguments.
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Re: Columbus sues state over HB 228 changes to preemption

Post by Chuck »

Thank you for the link, Rick
Ain't activism fun?

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And because I can not do everything, I will not refuse to do the something I can do.
What I can do, I should do. And what I should do, by the grace of GOD, I will do."
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Re: Columbus sues state over HB 228 changes to preemption

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rickt to the (informational) rescue, AGAIN :D

thnx
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Re: Columbus sues state over HB 228 changes to preemption

Post by rickt »

I should mention you may have to click on the link twice. First time to accept the terms and conditions of the clerk of court web site and then a second time to actually get to the court docket.
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Re: Columbus sues state over HB 228 changes to preemption

Post by Glock Rock »

Good work here folks. This is why I donate to OFCC.
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Re: Columbus sues state over HB 228 changes to preemption

Post by techguy85 »

I have to say, I'm pretty annoyed that my tax money is going to fund this stupidity. Unfortunately it would be difficult for me to move out of the city, and even if I did my job would still be in Columbus and thus they would still get $$$ from me.
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Re: Columbus sues state over HB 228 changes to preemption

Post by ohiodff »

DontTreadOnMe wrote:
M-Quigley wrote:I understand why Columbus might have a concern about commercial manufacturing in their jurisdiction, but regarding the bolded, is the bolded part being done for legal reasons? (ie they have to oppose the entire law?) or is their a separate political agenda here?
The city is arguing that a section of the law, set to take effect March 28, curtails its constitutionally designated authority to set local regulations, such as those the city adopted last year. But the city is seeking a preliminary injunction that would delay implementation of the entire law until the lawsuit is resolved.
I'm sure there's an agenda, and I don't even know what they would mean by "the entire law". They can't delay all of 9.68 since it's already enacted law, and it makes no (legal) sense to argue for delaying the parts of HB 228 outside of the 9.68 edits since the changes to other statutes are clearly separable from the changes to 9.68.
But isn't that the question? If the injunction is granted it can't be against a portion of HB228 can it? It's either all or nothing. The Bill is An Act to amend a bunch of sections of ORC - and it's either passed into law or it's not. Kasich couldn't veto portions of the bill, only the entirety so why wouldn't the injunction prevent the entirety of the bill from taking effect?
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Re: Columbus sues state over HB 228 changes to preemption

Post by Bearable »

I'm glad all this information is available on the internet.
The complaint contains 7 counts.
All those issues raised by the city have already been raised and decided by the Ohio Supreme Court.
ORC 9.68 is a general law. The rewording of ORC 9.68 has not changed the essence of its meaning or purpose.
The lawsuit should easily be viewed by the court as frivolous and dismiss it as "a matter already judged" by the court.
You cannot sue (re-litigate) over an issue that has already been decided by the court.

But, we know how local courts deal with local issues.
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Re: Columbus sues state over HB 228 changes to preemption

Post by DontTreadOnMe »

ohiodff wrote:
DontTreadOnMe wrote:
The city is arguing that a section of the law, set to take effect March 28, curtails its constitutionally designated authority to set local regulations, such as those the city adopted last year. But the city is seeking a preliminary injunction that would delay implementation of the entire law until the lawsuit is resolved.
I'm sure there's an agenda, and I don't even know what they would mean by "the entire law". They can't delay all of 9.68 since it's already enacted law, and it makes no (legal) sense to argue for delaying the parts of HB 228 outside of the 9.68 edits since the changes to other statutes are clearly separable from the changes to 9.68.
But isn't that the question? If the injunction is granted it can't be against a portion of HB228 can it? It's either all or nothing. The Bill is An Act to amend a bunch of sections of ORC - and it's either passed into law or it's not. Kasich couldn't veto portions of the bill, only the entirety so why wouldn't the injunction prevent the entirety of the bill from taking effect?
According to Chuck, the modifications to 9.68 from HB 228 don't go into effect until December 28, 2019 while most portions go into effect next week. So there's no need for an injunction at this point since the harm they're alleging is nine months away. The rest of HB228 doesn't impact the items they're alleging are constitutional violations so there's no reason for an injunction to prevent those portions from becoming law.

When a court rules a law unconstitutional that doesn't necessarily mean the whole law goes, if the portion that's a problem is separable from the rest then only that part is struck. In this case clearly the part of HB 228 that amends 9.68 is separable from the rest of the bill, as (a) it amends a separate statute, and (b) it has a separate effective date.
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Re: Columbus sues state over HB 228 changes to preemption

Post by rickt »

Bearable wrote:I'm glad all this information is available on the internet.
The complaint contains 7 counts.
All those issues raised by the city have already been raised and decided by the Ohio Supreme Court.
ORC 9.68 is a general law. The rewording of ORC 9.68 has not changed the essence of its meaning or purpose.
The lawsuit should easily be viewed by the court as frivolous and dismiss it as "a matter already judged" by the court.
You cannot sue (re-litigate) over an issue that has already been decided by the court.

But, we know how local courts deal with local issues.
I'm doing this from memory because I'm too lazy to look it up, but for a state law to override home rule, it has to be a "general law of the state". Previously, there was a three-prong test to see if the law met the requirements. Columbus is claiming a 2017 OSC decision changed this and hence they get to challenge ORC 9.68 because of that change.
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