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Home Rule

If sovereign immunity is the Rubik's Cube of Ohio law, home rule isn't far behind.  Ohio's concept of home rule is a legal doctrine that only a bar examiner could love:   it requires a three-step analysis, the second step of which involves a four-part test.  The court waded back into this thicket last week in Ohioans for Concealed Carry, Inc. v. City of Clyde.

The case involved Ohio's "concealed-carry" law, which permits Ohioans to carry guns in various places.  One of those places, the City of Cyde decided, was not in its parks.  That presented the issue rather clearly:  did the statute override the city's ordinance, or was the ordinance a valid exercise of the city's home-rule power?

Fortunately, this wasn't one of those cases where the three-step/four-part analysis is going to get a workout.  The first step is whether the issue "involves an exercise of local self-government or an exercise of local police power."  Guns = police power.  The next step involves the four-part test, but the gist of that is to determine whether the legislature intended the statute to be a "general" law.  That issue was pretty much put to bed by RC 9.68, which specifically states the intent to "provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms."  All that was left was the third step, determining whether the ordinance was in conflict with the statute.  That's fairly apparent:  the concealed carry statute, 2923.126(A), specifically permits a permit holder to "carry a concealed handgun anywhere in this state," subject to the exceptions contained in the statute, such as bars and courthouses.  The ordinance ran counter to that.

Somewhat surprisingly, the case wound up as a 4-3 decision.  One of the parts of that four-part test is that the law has to be uniform throughout the state, and the dissenters argued that the regulations weren't uniform because private property owners could ban guns while public ones couldn't.  That argument's a stretch:  it's hard to argue that the statute's not a general law because it doesn't apply to private landowners, when the General Assembly had no power to apply it to private landowners.

This is all a prelude to the coming showdown over municipal employee residency laws.  Many cities, including Cleveland, require employees to reside in the city.  Back in 2006, the Ohio legislature passed what became RC 9.481, which banned the practice of doing so.  Since that time, the 3rd District, the 6th District, the 8th District, and the 9th District have all struck the statute down as violating home rule, while the 2nd District and 11th District have upheld it.  The Supreme Court's accepted review of the 3rd and 9th District cases and consolidated them; oral argument will be later this year or early next.

Actually, the outcome may ride on another little-known Ohio constitutional provision.  Article II, Section 34 of the Ohio Constitution gives the legislature the right to pass laws "fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employes," and further provides that it overrides home rule.  The 2nd and 11th Districts held that residency requirements were laws affecting the "comfort, health, safety and general welfare" of employees, and thus RC 9.481 fell within the ambit of Section 34.

That's a bit of a stretch, but I wouldn't want to try to predict the outcome.  Despite all the talk about home rule and other constitutional provisions, a lot of this might depend on a gut level evaluation of whether it's fair to require people to live in a particular place in order to work a particular job.  As in many cases, once a judge works it out on that level, finding the supporting law to justify the decision is fairly easy.

At any rate, whatever the Supreme Court decides, it won't have the benefit of the wisdom of the City of Cleveland's law department.  Last week the Supreme Court ordered the city's amicus brief stricken because it was filed a day late.

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