Cleveland Law Library Weblog

Akron's Speeding Laws Are Valid Under Home Rule

Yesterday, the Ohio Supreme Court provided guidance to a Cleveland federal district court that certified a question concerning the legality and enforceaiblity of Akron's speeding ordinance. In Mendenhall v. Akron, 2008-Ohio-270, the Ohio Supreme Court held that Akron has the authority under the "home rule" provisions of Ohio's Constitution (Section 3, Article XVIII) to create an automated system for traffic enforcement that does not conflict with state law. The Court further held that Akron's speeding ordinance is a valid exercise of its police powers. The Court's recitation of the certified question indicates that the federal court would apply the same reasoning to issues regarding red-light cameras. However, the Court did not address other potential challenges to the legality of either speeding red light camera ordinances. The dockets and court documents in the underlying federal cases can be found at PACER, using case nos. 5:06 CV 0139 and 5:06 CV 0154. Click here to read the Supreme Court's Press Release.

Ohio Pit Bull Laws Ruled Constitutional

The Ohio Supreme Court issued an opinion in Toledo v. Tellings, 2007-Ohio-3724 which reversed a Sixth District Court of Appeals decision and upheld the constitutionality of 2 state statutes and a Toledo, Ohio ordinance which regulate the ownership of pitbulls. Specifically, the Court held that the state of Ohio, under ORC 955.22 (defining dangerous and vicious dogs) and 955.11(A)(4)(a)(iii), as well as the City of Toledo, have legitimate interests in protecting citizens from dangers associated with pitbulls. The Toledo ordinance under which Tellings was originally cited limited ownership of dogs identified as pit bulls to one per household and required owners to muzzle and confine their animals when off their owner's premises. After the Trial Court conducted an evidentiary hearing and ruled that the aforementioned laws were a valid exercise of police power, Tellings appealed, where he successfully argued that the laws were unconstitutionally vague and denied pit bull owners procedural due process.

Statute Prohibiting Funeral Protests is Constitutional

The federal court, Northern District of Ohio, upheld the portion of 126th General Assembly Am. H.B. 484 , which prohibits picketing and protesting within 300 feet of a funeral service.  The court struck down the portion of the statute which created a 300 foot buffer zone around funeral processions as unconstitutionally broad. Phelps-Roper v. Taft (Mar. 23, 2006), ND Ohio Case No. 06-CV-2038. To read the opinion Download phelpsroper_v. Taft.pdf . See Church Group to Picket Ohio Soldier's Funeral by Carrie Spencer Ghose, Associated Press, The Plain Dealer, Mar. 25, 2007; Judge Upholds Funeral-Protest Ban by Mike Tobin, The Plain Dealer, Mar. 24, 2007. 

Republican Legislators Sue to Overturn Strickland Veto

Senate President Bill Harris and House Speaker Jon Husted filed a mandamus action with the Ohio Supreme Court in an attempt to overturn Strickland's veto of  Am. Sub. SB 117.  SB 117 limits noneconomic damages in Consumer Sales Practices Act cases, and prohibits nuisance lawsuits against manufacturers, such as lead paint manufacturers.  Governor Taft allowed the bill to go into law without signing it.  Incoming Governor Strickland believes he was able to veto the bill, because the 10 day time limit provided in the Ohio Constitution had not lapsed.  He believes the count began the day after the governor received the bill, and Sundays are not counted in the 10 days.   See our prior post:  Incoming Governor Vetoes CSPA Limits.

The lawsuit alleges that the 10 day period should be counted differently, and Strickland was not within the 10 days. The complaint points to Ohio Constitution, Article II, Section 16, which states that if the general assembly adjourns, the governor has 10 days from the date of adjournment to veto the bill.  The relators believe that Sundays are counted in the 10 days.   The suit also asserts that Secretary of State Brunner should not have forwarded the bill to Strickland, after the previous Secretary of State had already accepted it from Taft and signed it.   According to the complaint, the Secretary of State has no power to determine the validity of laws, and did not act in accordance with her constitutional duties. The complaint can be viewed at the Ohio Supreme Court's docket page for State ex rel. The Ohio General Assembly et al. v. Jennifer Brunner, Secretary of State of Ohio , Case No. 2007-0209.   

Source:  Lawsuit Accuses Brunner in Bill's Veto by Reginald Fields, The Plain Dealer, Feb. 3, 2007. 

Cincinnati Panhandler Registration Ordinance Unconstitutional

A Cincinnati ordinance requiring panhandlers to obtain licenses was unconstitutional because it did not provide for a prompt appeal of a denial or revocation of a panhandling license.  The ordinance merely stated that the Office of Administrative Hearings shall hear the appeal "within a reasonable time as set forth within its regulations".  Provisions prohibiting verbal solicitation in certain areas were upheld as constitutional.  State v. Dean (Jan. 12, 2007), Hamilton App. No. C-050871, 2007-Ohio-91.  Source:  Cincinnati panhandling registration ordinance in part unconstitutional by Chuck Kallendorf, Cincinnati Law Library Blog, Jan. 18, 2007. 

A similar suit filed in the federal court, Southern District of Ohio, remains pending.  That suit,  Henry v. Cincinnati, S.D. Ohio Case No. 1:03-cv-00509-SJD, is discussed in our prior post: Licenses for Panhandlers: Crime Deterrent or Free Speech Violation?.  Also, see our prior post concerning Cleveland's aggressive solicitation ordinances:  Council Renews Aggressive Panhandling Ordinance, Tweaks Language, Read the New Cleveland Panhandling Ordinance.

Sixth Circuit Upholds Cleveland Noise Ordinance

In Gaughan v. City of Cleveland, 06-3010 (6th Cir., Jan. 5, 2007), the court denied  abortion protestors' constitutional challenge to a Cleveland noise ordinance,  Cleveland Codified Ordinances 683.01 and 605.01.  The protestors were loudly playing a recording of a 911 tape outside an abortion clinic.  The court found the noise ordinances have a legitimate purpose, are content-neutral, and were not overbroad or vague as applied.  Source: Sixth Circuit Rejects Noise Ordinance Challenge from Abortion Protester by Robert Loblaw, Decision of the Day Blog, 1-6-2007.  See our prior post:  Sixth Circuit to Hear Constitutional Challenge to Cleveland Noise Ordinance.

Is Summary Judgment Unconstitutional?

University of Cincinnati Law Professor Suja Thomas asserts that summary judgment is unconstitutional, and the U.S. Supreme Court has never truly determined whether the procedural device is constitutional.  While the Court has considered whether jnov and directed verdicts are constitutional under the Seventh Amendment, the Court has never actually considered the same for summary judgments.  The beginning of the article acknowledges the importance of summary judgment in today's judicial system, noting that before the civil rules (1938), nearly 20% of federal cases went to trial, while less than 2% went to trial in 2003.  The article is: "Why Summary Judgment is Unconstitutional", Suja A. Thomas, 93 Virginia Law Review, Spring 2007, and is available for free at the Social Science Research Network.

Thanks to Jack Sargent for alerting us to this thought provoking article. 

Fan Arrested for Heckling Can Proceed With 1983 Action

In a section 1983 action, the Sixth Circuit Court of Appeals reversed the district court's grant of summary judgment in favor of defendant, an off-duty police officer acting as a security guard at an Indian's baseball game.  The officer arrested the plaintiff for disorderly conduct, allegedly because of his profane heckling.  The plaintiff denied that his heckling was profane and offensive.  The trial court granted summary judgment to the defendant based on qualified immunity.  The appellate court found that, taking the facts in a light most favorable to the plaintiff, the defendant did not have qualified immunity.  Viewing the facts in favor of the plaintiff, his clearly established constitutional rights were violated. Many of the fans were heckling and rowdy behavior was commonplace at games.  Thus, plaintiff's speech was not offensive, and the officer lacked probable cause to arrest.  Calling a ball player a "fat ass" did not constitute "fighting words", so the statement was constitutionally protected.   Swiecicki v. Delgado (Sept. 15, 2006), Sixth Circuit Case No. 05-4036.  See Fan's Insults Crude but Legal by Bill Sloat, The Plain Dealer, Sept. 29, 2006.

Ohio Abortion Pill Restrictions Held Unconstitutional

The Southern District of Ohio granted a permanent injunction, prohibiting Ohio from enforcing  Ohio H.B. 126 in its entirity.  Planned Parenthood Cincinnati Region v. Taft (Sept. 27, 2006), S.D. Ohio Case No. C-1-04-493.   H.B. 126 prohibited doctors from prescribing abortion inducing pills after the seventh week of pregnancy.  The Southern District of Ohio held the law was void for vagueness.  The Sixth Circuit Court of Appeals previously upheld a preliminary injunction because the law could be deemed unconstitutional for failing to provide an exemption for women who were at risk from surgical abortion procedures.  The court of appeals remanded to the district court to determine the scope of the injunction.  Law Limiting Abortion Pill Use Struck Down by Associated Press, The Plain Dealer, Sept. 29, 2006.  To read to opinion Download plannedparent.pdf .

New Act Requires Posting of "God Mottos" in Schools

Governor Taft signed H.B. 184, which requires school districts and charter schools to post donated copies of the Ohio state motto (With God, All Things are Possible) and U.S. motto (In God we Trust).  The Final Bill Analysis discusses the constitutionality of the legislation.  The ACLU is considering a lawsuit. See Governor's News Release, July, 11, 2006; Taft Signs Law Requiring Schools To Display "God Mottos" by Bill Cohen, WKSU News, July 11, 2006.