Summit and Franklin County judges split on “Single Subject Rule” violation in Sub. S.B. 331 litigation

UPDATE 12/19/2017: Judge English (Lucas County) and Judge Gall (Cuyahoga County) have issued decisions on the S.B. 331 litigation. Now, S.B. 331 has been declared unconstitutional on the grounds that it violates the single subject rule in Franklin, Hamilton, Cuyahoga and Lucas counties. Summit County is the only court to have held that S.B. 331 does not violate the single subject provision. Notably, the Lucas County Court of Common Pleas held that severability is not an option for the bill. To that end, Lucas County struck down the entirety of S.B. 331. However, Franklin, Hamilton and Cuyahoga counties excised the micro wireless and minimum wage provisions from the bill and left the animal welfare provisions intact. 

UPDATE: On September 26, 2017, Judge Cooper (Hamilton County) issued a decision on the S.B. 331 litigation. Agreeing with Judge Frye (Hamilton County), Judge Cooper held that “the combination of topics contained in S.B. 331 [is] clearly unnatural.” As such, both Hamilton County and Franklin County have now granted the municipalities’ partial motions for summary judgment on the single subject issue. Summit County, however, previously held that the enactment of S.B. 331 did not violate the single subject rule. Cuyahoga County and Lucas County have yet to issue decisions on the issue. 

Original post from July 13, 2017:

A second court has now issued an opinion in the Substitute Senate Bill 331 lawsuits. The new opinion, which comes out of Summit County, creates a split of authority in Ohio: a Franklin County court held that S.B. 331 violates the Single Subject Rule, and a Summit County court held that S.B. 331 does not violate the Single Subject Rule.

The S.B. 331 litigation
Beginning in March 2017, over 70 municipalities sued the State of Ohio, seeking to have the micro wireless technology provisions of S.B. 331 declared unconstitutional, on the grounds that the bill violated Ohio’s Single Subject Rule.

The municipalities filed suit in Franklin, Cuyahoga, Summit, Lucas and Hamilton counties. The complaints allege multiple constitutional violations, including a violation of Article II, Section 15(D) of the Ohio Constitution, which provides that “[n]o bill shall contain more than one subject, which shall be clearly expressed in its title.”

The parties in the Franklin and Summit County cases agreed to have the Single Subject issue heard separately.

Franklin County
On June 2, 2017, Franklin County Judge Richard Frye issued a ruling, holding that “a blatant disunity exists between matters engrafted at the last minute on to S.B. 331.” For that reason, he severed the micro wireless provisions from S.B. 331.   

He also noted that this judgment is a final appealable order, and, as a result, on June 30, 2017, the State of Ohio and co-defendant Wireless Association filed their notices of appeal to the Court of Appeals, Tenth Appellate District of Franklin County.

Summit County
Approximately a month later, Summit County’s Judge Kimbler ruled that the bill does not violate the Single Subject Rule because the “intent [of S.B. 331] seems to be to deprive municipal corporations of the ability to regulate such issues by the adoption of local ordinances.” As such, the court held that “virtually all of the provisions of Substitute Senate Bill No. 331 have the same subject and purpose.”

While noting that Judge Frye’s decision is “very well written and very considered," Judge Kimbler decried Judge Frye’s failure to “discuss the issue of what the burden of proof was on the municipal corporations who challenged Substitute Senate Bill No. 331.”

Judge Kimbler then held that “[b]efore [a court] can find that the General Assembly in passing Substitute Senate Bill No. 331 violated the One-Subject Rule it has to find that the General Assembly acted ‘grossly and fraudulently.'" According to Judge Kimbler, the municipalities had not proven that the General Assembly acted grossly and fraudulently.