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 Athens plastic bag case is back in the news and there is a flurry of legal activity surrounding the city’s appeal to the Fourth District Court of Appeals.
A three-judge panel of the Fourth District will decide if Athens’ ordinance prohibiting “providing plastic bags” to customers is constitutional.
Athens is asking the court to reverse a decision by Athens County Common Pleas Court Judge George McCarthy, who ruled the city’s plastic bag ordinance unconstitutional because it contradicts a state “general” law.
Attorneys are scheduled to make oral arguments to the judicial panel at 10 a.m. April 17 in the Ross County Common Pleas Court.
At an oral argument, each side presents its legal position and — most importantly — answers questions asked by the judges.
The appellant, or the party that appealed (in this case the City of Athens) has the burden of convincing the appellate court that it should find contrary to the trial judge’s decision.
After oral argument, the appellate court will consider the matter over the next several weeks or months. Once a majority of the three-judge panel agrees on an outcome, a written decision will be issued.
The Fourth District Court of Appeals covers 14 counties in Southeastern Ohio, stretching from suburban Cincinnati in the west to Marietta in the east and Circleville to the north.
This appeal is important statewide because other cities are awaiting the outcome to decide whether to pass their own plastic bag ordinances. This case also pits the concepts of city “home rule” against the sweeping power of state statutes.
This is a complex case. To date, there have been seven legal briefs (written legal arguments) filed in the court of appeals. The City of Athens has filed two briefs and the Ohio Attorney General’s office filed one.
The other four were filed as amicus curiae (friends of the court) briefs in support of Athens’ position. A court may allow these briefs to hear additional legal perspectives on the matter. They were filed by 1) Ohio Environmental Council, the Surfrider Foundation and the Sierra Club, 2) Village Bakery and Cool Digs, Inc., 3) the Ohio Municipal League, and 4) the City of Bexley.
I will give a short history of the facts behind the case and then summarize, in understandable terms, the legal arguments involved.
Background
On May 1, 2023, Athens City Council passed ordinance ACC 11.13. ACC 11.13.02 (A) states: “No store or vendor shall provide or sell a single-use plastic carryout bag to a customer at the checkout stand, cash register or point of sale or other locations for purposes of transporting food or merchandise from the store after January 1, 2024.”
On December 27, 2023, the state, through the Attorney General, filed a lawsuit in the Athens County Common Pleas Court asking the court to find the ordinance unconstitutional because it conflicted with Ohio Revised Code 3736.021.
That state statute says, in part, “A person may use an auxiliary container for purposes of commerce or otherwise…”
“Auxiliary container,” defined in ORC 3767.32 includes plastic bags.
Both sides agreed that the trial court could decide the issue based on motions for summary judgment (each asking the court to decide the case based upon the evidence in the court file without a trial) and written legal arguments.
On August 28, 2024, Judge McCarthy granted the state’s summary judgment motion finding the city ordinance in conflict with a general law of the state and therefore, unconstitutional.
The City of Athens appealed the decision to the Fourth District Court of Appeals.
The City of Athens has distilled its legal arguments supporting constitutionality of ACC 11.13 down to three:
- The trial court erred in finding that ORC 3736.021 is a general law of Ohio.
- The trial court erred in finding that the city’s plastic bag ordinance directly conflicted with R.C. 3736.021
- The trial court erred in granting the state’s motion for summary judgment when the judge conducted his own research and brought matters into the case that were not in the record.
The State of Ohio argues that the only issue in the case is “whether the ordinance conflicts with a general law of the state.”
Briefs (Written Legal Arguments)
The briefs are voluminous, and all contain highly complex legal arguments. I will not try to unravel each argument but instead give you an overview, in understandable terms of each party’s position. I will provide links to each brief so you can read them for yourself, if you desire.
Brief of Appellant City of Athens
Athens’ underlying position is that the “home rule” provision of the Ohio Constitution gives the city the right to “exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.”
In 2008, the Ohio Supreme Court established a three-part test to determine if a city’s law exceeded its home rule authority:
1) Is the ordinance an exercise of police power?
2) Is the state statute a general law?
3) Does the ordinance conflict with the statute?
Athens concedes that the plastic bag ordinance is an exercise of police power but argues strenuously that the state statute is not a general law of Ohio. It also argues that even if the state statue is a general law, the Athens ordinance does not conflict with it.
Issue 1: Is ORC 3736.021 a general law?
First, to determine whether ORC 3736.021 is a general law, the statute must meet four criteria enumerated by the Ohio Supreme Court in 2002. The statute must:
- Be a part of a statewide and comprehensive legislative enactment,
- Apply to all parts of the state alike and operate uniformly throughout the state,
- 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, sanity, or similar regulations,
- Prescribe a rule of conduct upon citizens generally.
Athens claims that the state statute fails items 1, 3, and 4 of the tests above and therefore, is not a general statute that can trump the home rule of municipalities.
Does the state statute meet prong one of the tests? Athens says no. Athens argues that the state statute is not part of a statewide and comprehensive legislative enactment. It says that Judge McCarthy inappropriately went beyond the record in the case and did his own research. Athens claims he brought extraneous facts into the case to arrive at his decision that the statute is part of the state’s solid waste management plan.
The state also argued at the trial court that R.C. 3736.021 is part of Ohio’s Solid Waste Management Plan because the use of single-use plastic bags would “provide for a consistent supply of recyclables to meet the needs of recycling industries.”
Athens notes in its brief that the 2020 State Solid Waste Management Plan found that plastic bags, in fact, are not currently “a viable feedstock for recyclable materials.”
Therefore, Athens argues that the first criteria is not met. It cites cases from Canton and Cleveland to support its position. The appellant argues that the state did not pass the statute as part of an overall solid waste plan but instead only passed it to ban municipalities from regulating single use plastic bags.
Athens also argues that the state statute does not meet the third part of the test. “The trial court further failed to explain how the permissible use of single-use plastic bags is aimed at protecting public health, safety, and general welfare,” the brief says.
Athens cites an Ohio Supreme Court case from 2017 involving the City of Dayton to support its argument. “However, when a status expressly grants or limits legislative power to set forth police, sanitary or similar regulations without serving an overriding statewide interest, then the statute, or a portion of it violates the Home Rule Amendment.”
Does the statute meet the fourth prong of the “general statute” test? Again, Athens says no. The city argues that the wording of the statute is permissive (a person may use a plastic bag) and does not prescribe any conduct at all.
“R.C. 3736.021 states a person ‘may’ use an auxiliary container, not ‘shall’ or ‘must’. The statute’s use of ‘may’ is permissive, not dictating, ordaining, or directing. The use of ‘may’ does not establish authoritatively that a person shall or must use a single-use plastic bag or other auxiliary container,” the city argues.
Because the statute is not generally prescriptive to state citizens, it fails to meet the fourth prong of the general law test, Athens says.
Issue #2: Does the city ordinance conflict with the state statute?
Even if the state statute is a general law, Athens argues the city ordinance does not conflict with it.
The state statute allows the use of single-purpose plastic bags. Athens argues its ordinance doesn’t ban the “use of plastic bags” but only prohibits a retailer from “providing” single-use plastic bags. The city says its position is supported by a 2008 Ohio Supreme Court case involving the City of Akron, plus numerous other cases.
“The City’s ordinance does not declare the use of single-use plastic bags to be ‘wrong,’ while the statute declares the use of single-use plastic bags to be ‘right,’ the city argues. ACC 11.13.02 prohibits a store or vendor from providing single-use plastic bags at the point of sale, it does not prohibit the ‘use’ of single use plastic bags in commerce.”
Therefore, the city argues the ordinance is not in conflict with the state law.
Issue #3: The trial judge conducted his own research outside of the record to make his decision.
Athens argues that it is reversible error for the trial judge to go to Facebook and other sources to gather his own facts that plastic bags are recyclable instead of making his decision only on what was before him in the record.
Because the judge did that, the city claims that his decision needs to be reversed.
The State’s brief presents counter arguments to all of Athens’ legal assertions.
The state statute meets all the criteria to be a general law of the state.
The State argues that R.C. 3637.021 meets all criteria to be found a general statute of the State of Ohio.
It insists that the enactment of the statute was part of an overall “Recycling, Waste Reduction, and Litter Prevention” concept that was associated with the states laws and policies on solid waste management. It argues it therefore meets the first prong of the general statute test.
In trying to establish its position, the state argues that Athens has either misread or misapplied prior cases to support its position. Instead, the state says those same cases support the position of the state that all four of the criteria are met for the statute to be a general law of the state.
The state also says that the state statute easily meets all the other prongs of the test to determine whether a statute is a “general law” of the state.
The city ordinance conflicts with the state law.
The state totally dismisses Athens’ argument that the ordinance does not prohibit the “use of” plastic bags but just the “providing” of them.
The state concludes this is a distinction without a difference and still amounts to the ordinance and the statute being in direct conflict with one another.
It doesn’t matter that the trial judge went outside the record to gain facts he used in his decision.
The state argues that the appellate court should not be concerned that the trial judge did his own research on Facebook and in other sources. Instead, the state argues, the appellate panel should just focus on the legal issues and not be distracted. The state says the appellate court should find the judge’s actions irrelevant because he ultimately made the right decision according to the law.
Reply Brief of the City of Athens
In a mere 10 pages, Athens attacks each argument advanced by the State and amplifies its argument that this case is predominately about the viability of Ohio’s Home Rule Amendment giving municipalities power to regulate activities within their communities.
The city accuses the state of attempting to distract the appellate court from the real issues in the case and to confuse the real issues with matters that are not relevant.
The city reiterates its arguments that the sole purpose of R.C. 3736.021 was not to advance an environmental concern about recycling but instead to simply prohibit municipalities in Ohio from passing plastic bag ordinances.
Amicus Briefs
The Environmental Council, The Surfrider Foundation and Sierra Club brief zeroes in on the arguments that ORC 3736.021 is not a “general law” and even if it was, the Athens ordinance does not conflict with it. It emphasizes that both the statute and the ordinance allow the use of plastic bags, and that the statute is silent as to whether the issuance of plastic bags may be prohibited.
The Village Bakery & Café and Cool Digs, Inc. brief takes a different tack and provides the appellate court with a unique legal theory upon which to reverse the trial court’s decision. It emphasizes that Athens has a right to prohibit the distribution of plastic bags by merchants under the Athens Community Bill of Rights and Water Supply Protection Ordinance passed into law by a referendum in 2014.
The Ohio Municipal League’s brief stresses the importance of the Home Rule Amendment to municipalities throughout Ohio. The brief argues that the trial court used the wrong legal standard to determine whether the local ordinance should take precedence over a state statute. It also argues the R.C.3736.021 does not serve an overriding statewide interest and should therefore not trump the Athens ordinance.
The City of Bexley, in 2019, passed an ordinance similar to the one in Athens but Bexley was not sued by the Attorney General. Bexley’s brief concentrates heavily on the Home Rule Amendment and calls the Athens ordinance “a quintessential exercise of its home rule right.” The brief also attacks the way the state statute was passed by the General Assembly. Bexley argues that process was unconstitutional.
Conclusion
Once the Fourth District Court of Appeals makes its decision on this case, either side that loses may ask the Ohio Supreme Court to review the matter. The Supreme Court, however, is not obligated to take the case.
If the state Supreme Court chose not to review the matter, the opinion of the Fourth District would stand as the ultimate decision in this case. The City’s ordinance will either remain unconstitutional or the plastic bag ordinance will be upheld.
A third option is that the appellate court could send the case back to the trial court for a trial on the issues.
