Home Rule In Ohio - Under Attack Or Reined In?

Oct 21, 2019

The home rule provision was added to the Ohio constitution by voters in 1912, and the struggles between local officials and state lawmakers have raged almost since then.

In recent years, state laws colliding with local ordinances on guns, fracking, traffic cameras, residency and construction projects have come for resolution to the Ohio Supreme Court.

In 2009, assistant attorney general Benjamin Mizer argued before the court about a 2006 state law overturning more than a hundred local residency laws for public employees.

“This court has always looked at the statewide concerns side of the ledger, and if there are significant statewide concerns, then the General Assembly can act,” Mizer said.

But cities have pushed back. In 2015, now-state Rep. Paula Hicks-Hudson, who was then the Democratic mayor of Toledo, led the fight against state laws to control the use of local red light and speed cameras.

“It’s about this assault on the separation of government and our need for the cities to be able to exercise their due process rights,” said Hicks-Hudson.

In nearly all recent cases where home rule is at issue, the Ohio Supreme Court has sided with state lawmakers.

“Some critics of that have said that the Home Rule doctrine has been watered down over the years by the Supreme Court,” said Mark Weaver, a Republican strategist and the former deputy attorney general, and has taught law at Ohio State and the University of Akron. “I would suggest to you it's much more a case of local governments pushing the boundaries of what a general law is and being reined back in by the state Supreme Court.”

But Kent Scarrett with the Ohio Municipal League, which represents 740 communities across Ohio, said it’s more than that, especially when the state is restricting local lawmaking – like on traffic cameras – while cutting local government funding.  

“It always gets to our budgets. It always impacts the taxpayers locally, because when you're taking away revenue from a community, you're taking away the ability of communities to fund services. It really is self-defeating at the end when the legislature jeopardizes our funding sources,” Scarrett said.

The conflict between lawmakers who want to ensure uniformity across the state on gun laws and business practices runs straight up against local officials who say they have the right to make rules that improve life in their communities.

For instance, last month the Ohio Supreme Court overturned Cleveland’s law requiring 20 percent of work in public construction projects be performed by local residents. The city said the law produced equity in those projects and helped thousands of people in Cleveland. But the state won with its argument that all Ohioans should be protected from discrimination based on their home addresses.

Weaver notes there’s been a political and geographic divide among rural and suburban Republicans who are in the majority in the legislature, while urban Democrats are in the minority.

“Political players always like to advance their political interests,” said Weaver.  “We see state legislators right now, Republican majorities, advancing more gun rights legislation. And we see city council leaders and mayors, largely Democrat, pushing the other direction. And so this becomes a great civics question of who has more power.”

Scarrett agreed there are political forces at work, but suggested there’s a national effort by conservative groups pushing model legislation – most recently on attempts by cities to control where infrastructure for 5G technology would be built.

“It was an organized effort. It was pretty much the same language in each state. They've had a very successful track record in the legislatures of getting these pre-emptions through,” Scarrett said. “It's something we continue to try and identify what the challenges are when you take away local control.”

And there are more battles that may be coming.

A handful of city leaders and community activists have said they want to increase the minimum wage, though a state law banning that was signed by former Gov. John Kasich in 2016. (That “Petland” bill also included regulations on pet stores, a ban on bestiality, and permission for wireless companies to use public buildings and other rights-of-way for cellular transmission equipment.) And  communities are moving ahead with bans on plastic bags as state lawmakers consider a bill to ban those bans, saying grocers and others who do business statewide are concerned.

But sometimes local communities have led the way on legislation the state got behind. Some cities passed laws on texting while driving before the state banned it in 2012. And while a statewide “21 and over to buy tobacco” law took effect last week, several cities already had a local law in place.