In Inside Courts, retired judge Tom Hodson explains the complexities of the law and legal cases, helping you understand what’s at stake — and how it affects you.
The battle for home rule for Ohio cities just took another hit.
Last week, the Fourth District Court of Appeals found unconstitutional the Athens city ordinance prohibiting vendors from providing or selling plastic bags to a customer at a checkout stand.
The appellate court, in a unanimous decision, agreed with the August 2024 ruling of Athens County Common Pleas Judge George McCarthy who found the ordinance unconstitutional and issued a permanent injunction (prohibition) against its use.
The opinion of the Fourth District court is binding precedent on all trial courts within the Fourth District, which comprises 14 counties along the Ohio River from Adams County in the west to Washington County in the east and to Circleville (Pickaway County) to the north.
Although not binding on other appellate districts, it can be used as precedent in arguments against home rule throughout the state.
The City of Athens must now decide whether to let the district court’s opinion stand or to attempt an appeal to the Ohio Supreme Court. Even if Athens requests review, the high court is not obligated to take the case.
I will break down the court’s ruling but first, I need to provide a brief background explanation to put the situation in context.
Background
The Ohio General Assembly passed a statute that became effective on September 30, 2021. That law says in part: “A person may use an auxiliary container for purposes of commerce or otherwise.”
The statutory definition of “auxiliary container” includes single use of reusable plastic containers designed for “consuming, transporting, or protecting merchandise” from a retail establishment.
Despite the state statute, the City of Athens on May 1, 2023 passed an ordinance that states, “No store or vendor shall provide or sell a single-use, plastic carryout bag to a customer at the checkout stand, cash register, point of sale or other location for the purposes of transporting food or merchandise from the store after January 1, 2024.”
On December 27, 2023 — just four days before the ordinance took effect — the State of Ohio filed a lawsuit against the city in Athens County Court of Common Pleas, alleging that the city had exceeded its home rule authority. It asked the court to find the city’s actions unconstitutional and to permanently prohibit Athens from ever enforcing the ordinance.
Both parties filed motions for summary judgment (asking the judge to decide the matter without a trial) and on August 28, 2024, Judge McCarthy found in favor of the State of Ohio, rendering the Athens’ ordinance unconstitutional and permanently barring its enforcement.
He found that the city ordinance conflicted with a “general law” of the State of Ohio and therefore, was not protected by Ohio’s Home Rule Amendment.
Athens then filed an appeal with the Fourth District Court of Appeals and was supported by amicus briefs (friend of the court written legal arguments) by the Ohio Environmental Council, the Surfrider Foundation, the Sierra Club, Village Bakery and Cool Digs, Inc., the Ohio Municipal League and the City of Bexley.
Oral arguments were conducted before a three-judge appellate panel on April 17 and that same panel of judges rendered their written opinion on July 16.
Arguments before the court of appeals
City of Athens
The City of Athens claimed that Judge McCarthy had made three errors (Assignment of Errors) in his decision against the city:
- The trial court mistakenly found that ORC 3736.021 is a “general law” of Ohio.
- Even if ORC 3736.021 is a “general law,” Athens’ plastic bag ordinance did not conflict with the state statute.
- The trial court made a mistake in granting summary judgment because he conducted his own research and brought matters to his decision that were not part of the official court record.
State of Ohio
The state simply asserted that the only issue in the case is “whether the ordinance conflicts with a general law of the state.” If so, it is not protected by the Home Rule Amendment that allows cities to regulate certain behaviors within its boundaries.
Appeals court decision
The three-judge appellate panel conducted its own independent review of the case without deferring to the trial court’s initial decision.
This means the appellate court examined the case with fresh eyes, but came to the same decision as the one rendered by Judge McCarthy.
The appellate court noted that the Ohio Supreme Court, in 2008, had already set out a three-part test to determine whether a city had exceeded its home rule authority. The court said a state law takes precedence over a local ordinance when:
- The ordinance is an exercise of police power instead of one of local self-government,
- The state statute is a general law, and
- The ordinance conflicts with the statute.
At both the trial and appellate levels, the City of Athens conceded its ordinance is an exercise in police power — so the only remaining issues were whether the state statute is a general law of Ohio and whether the existing Athens ordinance conflicted with that statute.
If the state statute is a general law and the Athens ordinance conflicts with it, then Athens loses, and its home rule argument is meritless.
Is ORC Sec. 3736.021 a “general law of Ohio?”
In deciding this issue, the appellate court was guided by four criteria outlined by the Ohio Supreme Court in a case involving the City of Canton, Ohio. To be a general law, the Supreme Court said the statute must:
- Be part of a statewide and comprehensive enactment.
- Apply to all parts of the state alike and operate uniformly throughout Ohio.
- Set forth police, sanitary, or similar regulations rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary or similar regulations.
- Prescribe a rule of conduct upon citizens generally.
Athens agreed that the state statute meets criteria number 2, but claimed it does not meet the standards of 1, 3 and 4.
The Court of Appeals disagreed with Athens in each instance.
Instead, the court agreed with the state’s position that its law is part of a statewide and comprehensive legislative enactment related to solid waste, source reduction, recycling, recycling market development, and litter prevention.
Further, the appellate court found that ORC 3734.50 mandates the director of environmental protection to prepare a solid waste management plan and ORC 3736.02 (A) mandates that the director establish and implement statewide programs consistent with the plan.
The court said: “R.C. 3726.021 fits into Ohio’s legislative scheme for solid waste management because as the State points out, the statute shapes the contours of the types of materials that may flow through Ohio’s stream of commerce and into its stream of solid waste.”
Translated, that means that the General Assembly decided to include the use and distribution of plastic bags by merchants into its statewide legislative policy for solid waste management.
The court found the question of whether plastic bags are recyclable to be irrelevant because use of bags was allowed under a solid waste management plan.
The appellate court also found that the state statute “…as a whole and its individual provisions satisfy the third prong of the Canton general-law test.”
The decision finds that the state statute sets forth police, sanitary or similar regulations by defining the various forms of “auxiliary containers” (including plastic bags) that a person in Ohio may use. By doing so, the court found that criteria 3 was met.
As to criteria 4, Athens argued that ORC 3736.021 does not prescribe a rule of conduct upon citizens generally because it does not prescribe anything at all. Instead, the statute gives a citizen choices on what type of “auxiliary containers” to use.
This argument was rather summarily rejected by the court. The court said that “permitting an act is just as much prescribing a rule of conduct as forbidding an act.”
The appellate court did not elaborate on whether Judge McCarthy erred in seeking outside information about the case. However, the court overruled the city’s first and third assignments of error and stated simply that ORC 3736.021 is a general law of Ohio.
Does the Athens ordinance conflict with state law?
The only remaining issue was whether the Athens’ ordinance conflicted with the state statute. Athens claimed the statute and the ordinance were not in conflict. The state said they were.
The court emphatically agreed with the state.
The appellate court found that
Athens plastic bag ordinance forbids what R.C. 3736.021 permits. R.C.3736.021 permits the use of an auxiliary container (plastic bags) for purposes of commerce or otherwise. Stores and vendors which provide or sell single-use plastic carryout bags to their customer to transport food or merchandise from the store are using an auxiliary container for purposes of commerce – they are availing themselves of or employing the bag to accomplish the purpose of exchanging goods. Because Athens’ plastic bag ordinance forbids such conduct, it directly conflicts with R.C. 3726.021.
For those reasons, the Court of Appeals overruled all three of Athens’ Assignments of Error and affirmed (agreed with) the initial decision of Judge McCarthy.
What’s next?
Here are two significant things to watch in the future.
First, will Athens attempt to appeal this matter to the Supreme Court of Ohio?
Remember, the Ohio Supreme Court is not obligated to take the case if Athens appeals, but the Court often will take cases to resolve possible conflicts between appellate districts.
The Fourth District’s July 16 decision on Athens’ plastic bag ban appears to be in direct conflict with a decision issued on July 8 by the Tenth District Court of Appeals (Columbus) that also concerned home rule. That case involved a City of Columbus ordinance banning the sale of flavored tobacco products.
Shortly after Columbus passed its ordinance, the Ohio General Assembly passed a state statute permitting the sale of the products statewide and banning local authorities from regulating tobacco products within their jurisdictions. Gov. Mike DeWine vetoed the measure, but lawmakers overrode the veto and the bill became law.
The question before the Columbus appellate court was whether home rule would prevail over the state statute. Using the same case law and analysis, the Tenth District Court came to exactly the opposite decision from the Fourth District: It upheld home rule and decided for the City of Columbus over the State of Ohio.
This might create enough of a conflict to allow the Ohio Supreme Court to accept the Athens case if the city chooses to appeal further.
The second item to watch is whether the state will file similar lawsuits against other Ohio cities that have adopted plastic bag ordinances like Athens, such as the City of Bexley in Franklin County.
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