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 City of Athens is sitting in the bullseye in a battle with Ohio’s Attorney General David Yost over “home rule” and plastic bags and it is now primed for a local judge to decide who will prevail.
The attorney general filed suit in Athens County Common Pleas Court, claiming that the local ordinance regulating the commercial distribution of plastic bags is unconstitutional and in conflict with state law. Although the City of Bexley, Cincinnati and Cuyahoga County have similar laws and restrictions, the attorney general has targeted Athens for his lawsuit.
Athens argues that its ordinance does not violate state law and that the city has the right under the “home-rule provisions” of the Ohio Constitution to pass and enforce such an ordinance for the benefit of its citizens. The city also claims it is being specifically targeted for litigation by the Attorney General while other jurisdictions with similar ordinances are untouched.
Athens County Common Pleas Court Judge George McCarthy is in the hotseat to decide this case and to establish an initial decision that will undoubtedly be appealed. His decision is critical in establishing the trajectory of the later appeals. Will he decide for the local city or the State of Ohio?
No matter who wins at the trial level, the case assuredly will be appealed to the Fourth District Court of Appeals and probably on up to the Ohio Supreme Court. The matters at stake are that important.
The case is full of thorny issues and complicated legal arguments that Judge McCarthy will have to unravel and decide. My task is to make this mass of legalese understandable to you, the taxpayer.
I will try to simplify the case. To do that, I’ll summarize the legal proceedings taking place, and synthesize the arguments being made by each side.
Procedure
After the original lawsuit was filed and all the defendants answered the allegations in the state’s complaint, Judge McCarthy marked certain time periods for each side to file written motions and legal arguments that will ultimately be determinative of the case.
These filings are called Motions for Summary Judgment. Each side claims that the facts are not in dispute and that each side claims it should win the case “as a matter of law.”
In short, there will not be a trial. Instead, the judge will decide the case based upon the written motions and arguments of law filed by the parties. The judge could agree with the Attorney General or the judge could agree with the City of Athens.
The judge will decide which interpretation of the law prevails and therefore, which side wins.
The losing side will almost assuredly then appeal the case to the Fourth District Court of Appeals for a three-judge panel to review the matter. The Court of Appeals will decide, by a majority vote, whether Judge McCarthy was correct in his interpretation of law.
After that, the losing side may attempt to get the Ohio Supreme Court to review the case, but that review is not mandatory, and the high court could decide to just let the Court of Appeals decision stand.
All of this will take many months to unfold and ultimately 10 judges and justices could be reviewing Judge McCarthy’s decision.
Court filings
On May 6, both the State of Ohio, through the Attorney General, and the City of Athens, through Law Director Lisa Eliason, filed respective Motions for Summary Judgment with long, complex legal arguments attached to persuade the judge to decide the case in their favor.
The legal positions presented by Athens were supported by two written “amicus curiae” (friends of the court) briefs filed by entities who are not parties to the lawsuit but who feel that the issues are so important that they needed to add their support to Athens. One was filed by the Ohio Municipal League and the other was filed by the Ohio Environmental Council, Surfrider Foundation and the Sierra Club.
On June 3, each side filed their contrary legal arguments and on June 10, all briefing was complete with both sides filing reply memoranda.
State’s arguments
Simply put, the state argues that the Athens ordinance concerning plastic bags conflicts with a general law of the State of Ohio and therefore should be found to be unconstitutional.
The general law in question, according to the state, was passed by the Ohio General Assembly in 2021. It allows stores and vendors to use and provide plastic containers, including plastic bags, for commerce or otherwise. The state claims the law is part of the its comprehensive approach to solid waste management, and that the Athens ordinance directly conflicts with the state solid waste and recycling plan.
It also is alleging that the Athens ordinance is an unpermitted exercise of police power in contravention of the state’s general law allowing the use and distribution of plastic bags.
The state says that the Ohio Constitution allows cities home rule if local ordinances do not conflict with general laws of Ohio. The state gives a detailed review of what constitutes police power in an ordinance and what is a general law of the state of Ohio. It also details its arguments on whether the Athens ordinance conflicts with state law.
Athens’ argument
Athens argues that the court should grant its motion for summary judgment because the Athens ordinance is a proper exercise of home rule under the Ohio Constitution.
The city claims that the ordinance is an exercise of its permitted police powers. It also argues that Ohio Revised Code Sec. 3736.021 is not a general law of Ohio and therefore the Athens ordinance does not conflict with a “general law.”
Athens uses a four-part test established by the Ohio Supreme Court in a decision in 2002 to support its arguments: The city claims that Sec. 3736.021 is not part of a statewide and comprehensive legislative enactment; that the section does not apply to all parts of Ohio; and it does not operate uniformly throughout Ohio. Athens also says the state statute does not set forth police, sanitary or similar regulations but instead, just attempts to stifle local regulations.
Even if the court would find that Sec. 3736.021 is a general law, the city argues that the terms of its ordinance are not in violation of that statute.
Finally, the city says its ordinance is not in conflict with the state law because Athens claims that Sec. 3736.021 is unconstitutional and therefore cannot be violated.
In its answer brief, the city also counters the State’s argument that Sec. 3736.021 allowing the distribution of plastic bags is part the state’s recycling plan.
“Protecting the right to generate more trash in the form of single-use plastic bags is not part of Ohio’s broader comprehensive scheme regulating source reduction, recycling and litter prevention,” the brief says.
Judge’s role
Judge McCarthy will make a written decision deciding who wins based upon the motions, the memoranda of law, and the amicus briefs that are already on file or the judge may request that the parties further brief an issue that the judge wants clarified,
The judge, at his option, also may require an oral hearing on the motions whereby attorneys for each side would present oral arguments to the Judge supporting their respective positions. The judge, at that hearing, would have the option of asking questions of the attorneys about the law to gain greater clarity.
There is no time limit for the judge to make his decision but because he is presented with complex legal arguments, he may take some time to sort out the intricacies of the arguments.
Summary
This is a thorny case for Judge McCarthy to decide because all eyes of the state are focused on his decision. Home-Rule issues as well as environmental issues are intertwined and are at stake.
The judge’s decision also will decide whether the Ohio General Assembly can pass statutes that tie the hands of local jurisdictions in trying to regulate environmental issues within a particular city or county.
All eyes are now on Judge McCarthy as we await his decision.
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