The opinion is City of Cleveland v. State (Nov. 12), and it rests on (1) state constitutional “home rule” principles, and (2) separation of powers.
I can’t opine confidently about the first item, which rests on Ohio case law that I’m not familiar with. The analysis seems unsound, since it seems to suggest that comprehensive state deregulatory laws are unconstitutional intrusions on local authority even when comprehensive state regulatory laws are constitutional. But even if I’m right that this isn’t a sensible rule, I’m not sure whether the problem is unsound precedents or unsound interpretation of the precedents.
On the second item, the analysis seems still dicier, since the court doesn’t really cite any precedents but appears to be coming up with the principle — an unsound principle, in my view — itself: The conclusion is that the law “violates the separation of powers by usurping judicial discretion in the award of attorney’s fees and costs,” and “invites unwarranted litigation and attempts to coerce municipalities into repealing or refusing to enforce longstanding local firearm regulations using the significant burden of financial litigation penalties.” That can’t be right, I think; it is a proper part of the lawmaker’s business, it seems to me, to decide the remedies available in lawsuits, and whether the remedies should be discretionary or mandatory, even when the consequence is “unwarranted litigation” and the pressure to give in to plaintiffs. Still, it’s possible that there’s something about some uncited Ohio separation of powers law that I’m missing here; I know that many states have separation of powers rules that differ from the federal rules.
But what most surprises me about the decision isn’t the substance, but the fact that only one judge signed on to any written opinion — the opinion is labeled as the work of Judge Colleen Conway Cooney, but the other two panel members, Judges Melody J. Stewart and Ann Dyke are labeled as “concur[ring] in judgment only.”
I realize that some appellate courts decide many cases with no written opinion at all, and that judges (including Supreme Court Justices) sometimes concur in the judgment without an opinion. I also realize that if the judges disagree on the rationale but agree on the result, there might not be a majority opinion, and the three judges might write three separate opinions, each agreeing with the others only in the judgment.
But I’ve never seen a decision holding a state statute unconstitutional in which the majority of the deciding judges didn’t even bother to give any explanation for why they thought the statute is unconstitutional. Is this normal procedure in Ohio? Or is there some other sensible explanation for the situation? Or am I just misunderstanding what happened here?
I should note that a quick check of other recent Ohio Court of Appeals opinions suggests that “concurs in judgment only” is indeed different from “concurs,” and that usually there is an opinion that’s concurred in by two or three judges.