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.
Kazinski says:
Why would you think it is unusual to not explain the reasoning for striking down a state law that preempts local gun laws. It’s the result that matters not the reasoning.
November 17, 2009, 4:45 pmDavid Carroll says:
This eight district decision is not likely to stand up if the Ohio Supreme Court accepts the inevitable appeal, because of Ohioans for Concealed Carry v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605. (Click on the name for a pdf of the case.)
November 17, 2009, 4:59 pmNickM says:
IMO this is the He-Man theory of judicial power.
Nick
November 17, 2009, 5:04 pmjheath says:
Eugene’s distinction between “regulatory” and “de-regulatory” seems the well-established distinction between “conflict preemption” (actual conflict between federal and state laws) and “field preemption” (where the federal regulatory scheme is implicitly comprehensive and preempts even non-conflicting laws). This stuff pre-dates even Gibbons v. Ogden:
“Congress, for example, has declared, that the punishment for disobedience of the act of Congress, shall be a certain fine; if that provided by the State legislature for the same offence be a similar fine, with the addition of imprisonment or death, the latter law would not prevent the former from being carried into execution, and may be said, therefore, not to be repugnant to it. But surely the will of Congress is, nevertheless, thwarted and opposed.” Houston v. Moore 18 U.S. 1, 22.
The OH court seems to be saying that “express preemption” is not allowed in OH. If so the state cannot impose a comprehensive system of regulation on anything.
November 17, 2009, 5:06 pmDangerMouse says:
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.
Why would it matter if they explained their reasoning? It’s not like the people have a say in matters. The Courts will see to that.
November 17, 2009, 5:08 pmOrder of the Coif says:
The decision is easy to understand.
There is a secret, judge-made rule in gun cases: The gun owner loses.
The court makes up on the spot whatever rationale is needed. It doesn’t matter what the rationale is because it will never be applied to non-gun cases.
If you’ve read the Ohio SUPREME Court’s “opinion” in the 1990′s assault weapon case, you’ll not be betting the farm on a reversal.
November 17, 2009, 10:28 pmAl Norris says:
After reading the case, I did a search on the Ohio Constitution and some of the relevant revised statutes.
It appears that under the “Home Rule” doctrine, home rule cities do not have to abide by any legislative act that is not a “General Law.”
Going back to the appellate courts decision, it seems exactly that if the State completely regulates something (such as firearms), then the court would agree that it was a “general law.” However since the State did not completely regulate (in fact deregulated) firearms, it is not a “general law” and is not valid against home rule municipalities.
This kind of thinking is just backwards to me. Yet, I’m not an attorney, so what would I know?
November 17, 2009, 11:32 pmbpbatista says:
This case is out of Cuyahoga County — straight line Democratic. The appellate judges are all Democrats. And worse than that, they don’t have the collective intellectual wattage to illuminate the inside of my empty refrigerator.
The Ohio Supreme Court has a 5-2 Republican majority. I strongly suspect that this case will be overruled.
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December 2, 2009, 8:25 pm