Ohio Executive Authority to Postpone Elections

Photo by Element5 Digital on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

Ohio was set to conduct its primary election on Tuesday, March 17th. But on the evening of March 16th, the state’s executive branch postponed the election to prevent the spread of coronavirus. The delay contradicted an earlier statement from Governor DeWine and a state judge’s order, both of which said the executive branch did not have such power. Nevertheless, on the morning of election day, the Ohio Supreme Court upheld the delay in an unsigned opinion, leaving Ohioans to wonder: does the executive branch really have the authority to postpone elections? As this article will discuss, the answer is no.

II. Background

On March 9th, 2020, Governor DeWine issued Executive Order 2020-01D, declaring a state of emergency in Ohio due to three confirmed cases of coronavirus in Cuyahoga County.[1]

In announcing the order, Governor DeWine encouraged Ohioans to vote early in the upcoming election, so as to minimize the spread of infection from in-person voting.[2] The election was set for Tuesday, March 17th.[3] On the ballot would have been partisan primary selections for President, the U.S. House, the Ohio legislature, the Ohio courts, and more.[4]

One week after the declaration of emergency, Governor DeWine held a press conference on the afternoon of March 16th, the day before the planned election.[5] He explained that the coronavirus was spreading in Ohio, with fifty confirmed cases.[6] Conducting the election, he said, would be dangerous and go against federal guidelines.[7] He proposed delaying the election until June 2nd, but conceded he did not have the power to do so unilaterally.[8] He announced he would instead support a lawsuit asking a court to delay the election, and that Attorney General David Yost would not contest the suit while representing the state.[9]

Attorney General Yost had already reached out to two elderly women to file the lawsuit Governor DeWine described.[10] At 5:37 PM, the women filed a complaint in the Franklin County Court of Common Pleas.[11] They asked Judge Richard Frye for a temporary restraining order to prevent the election from proceeding.[12] At a 6:20 PM hearing, both the women and the state argued that voters would have to choose between protecting their health and exercising their voting rights.[13] Two candidates for election opposed the delay, asserting that only the legislature could change a date set by statute.[14] Judge Frye sided with the candidates and declined to order a delay.[15] In doing so, he said that there were “too many factors to balance in this unchartered territory to say that we ought to take this away from the legislature and elected statewide officials and throw it to a common pleas court judge in Columbus twelve hours before the election.”[16]  

Within hours of the failed lawsuit, the executive branch issued two orders that effectively delayed the election. First, Director of Health Dr. Amy Acton issued a Director’s Order closing all polling stations, citing her statutory authority to make special orders for preventing the spread of disease.[17] Second, Secretary of State LaRose published Directive 2020-06 suspending the election until June 2nd, relying on Dr. Acton’s order to close the polls.[18]

A judicial candidate in Wood County petitioned the Ohio Supreme Court for a writ of mandamus to strike down Secretary LaRose’s order and to permit the election to proceed.[19] Secretary LaRose opposed the petition, arguing he acted lawfully “by complying with an order from Ohio’s Health Director during a pandemic.”[20] On election day morning, the Ohio Supreme issued a decision without an opinion declining to issue the writ, effectively upholding the postponement.[21]

On March 22nd, Governor DeWine’s office followed the lead of California, New Jersey, Illinois, and New York, announcing a formal stay-at-home order.[22] Three days later, the General Assembly passed an emergency relief bill that, among other things, voided the Secretary’s order and planned for an all-mail-in primary election on April 28th.[23] The Governor signed that bill into law on March 27th.[24] The election proceeded according to the legislature’s plan this past week.[25] 

III. Law

Ohio’s Revised Code sets the dates for elections under § 3501.01. Primary elections usually occur on the first Tuesday after the first Monday in May, with one exception.[26] In years with a presidential primary, the primary election occurs on the Tuesday after the first Monday in March.[27] General elections occur on the first Tuesday after the first Monday in November.[28] Federal law also sets that same day for general elections involving federal offices, which occur in even numbered years.[29]

The General Assembly, which consists of a Senate and House of Representatives, has the legislative power to enact and change the Revised Code.[30] The Ohio Supreme Court has held that “public elections belong to the political branch of the government” and are therefore “a matter of political regulation,”  which is to say that the General Assembly controls elections by law.[31] In outlining the legislative power, the Ohio Consitution allows the General Assembly to pass emergency laws that are necessary to protect public health and safety.[32]

Regardless of whether an emergency exists, the Ohio legislature has broad power to regulate for public health.[33] Statutes delegate some of that power to the Department of Health, led by the Director of Health.[34] The department has “ultimate authority in matters of quarantine and isolation, which it may declare and enforce,” and the department may make special orders “for preventing the spread of contagious or infectious disease.”[35] However, no statute expressly delegates authority to change the date of an election. Further, § 18 of the Ohio Bill of Rights states, “No power of suspending laws shall ever be exercised, except by the General Assembly.”

IV. Analysis

Any executive authority to postpone elections could only apply to a primary election. Because this is a presidential year, federal law dictates the date of the general election. If the Governor tried to delay the November election, courts would strike the effort down under the Supremacy Clause of the U.S. Constitution.[36] But Ohio conducts primary elections on its own schedule, even for primaries involving federal offices. As explained above, the date of the primary is set by statute; therefore any change to that date is a change in the law itself. That change should come from the legislature, the body tasked with creating and changing law, unless the legislature has delegated that authority elsewhere.

No statute expressly the grants the executive branch the power to change the election date, and Governor DeWine admitted so in his March 16th announcement. The question, then, is whether the executive branch can alter a statute and set a new election date by relying on an order from the Department of Health.

On the one hand, relying on the Department of Health makes intuitive sense: the Director of Health has authority to protect the public from disease, and letting the public go to the polls would be unsafe; once she closes the polls, the Governor must ensure that elections go on somehow, and that requires changing election procedure. But this formal view overlooks the reality that the Director of Health is appointed by and serves at the pleasure of the Governor. Dr. Acton has been working with Governor DeWine every step of the way throughout this crisis. Dr. Acton is functionally an arm of Governor DeWine, and he almost certainly directed her to close the polls.

Notably, Dr. Acton’s order did not postpone the election, but merely closed the polls. This suggests that Governor DeWine’s office understood that postponing the election goes beyond protecting public health. Dr. Acton can close the polls to prevent the spread of disease, but setting a new date altogether is a political act—one the Governor initially claimed was beyond his power. The executive branch’s authority does not change which circumstances; either the executive can postpone elections, or it cannot. Dr. Acton’s order has no effect on the constitutional balance of power between branches of Ohio’s government. Changing the election date is not only a political act but a suspension of law—an act the Ohio Bill of Rights says can only come from the General Assembly.

V. Conclusion

The coronavirus pandemic is not only a crisis of public health but of public confidence in government. In this time of uncertainty, all elected officials should take care to respect separation of powers and preserve rule of law. Governor DeWine’s initial position was correct: the executive branch has no power to delay elections under Ohio law. Such a decision can only come from the General Assembly. Governor DeWine should have convened the legislature instead of going to court. Elections must operate under established rules; no one should be able to change election procedure at the eleventh hour unless authorized by law. Even well-intentioned violations of law can undermine citizens’ faith in democracy, and protecting public health should not come at the cost of public trust.

[1] Tom Bosco and Matthew Thomas, 3 COVID-19 cases confirmed in Ohio, DeWine declaring state of emergency, ABC 6 (Mar. 9, 2020), https://abc6onyourside.com/news/local/gov-dewine-ohio-has-3-confirmed-covid-19-coronavirus-cases; Mike DeWine, Executive Order 2020-01D, Governor of Ohio (Mar. 9, 2020), https://perma.cc/9MR4-R8L9.

[2] Bosco and Thomas, supra note 1.

[3] Gabe Rosenberg, Ohio Voting Guide: What to Know About the 2020 Election, WOSU (Apr. 8, 2020), https://radio.wosu.org/post/ohio-voting-guide-what-know-about-2020-election.

[4] Id.

[5] Laura Hancock and Andrew J. Tobias, Gov. Mike DeWine wants to postpone Ohio’s Tuesday primary election until June 2 due to coronavirus, Cleveland.com (Mar. 16, 2020), https://www.cleveland.com/open/2020/03/ohios-tuesday-primary-election-cancelled-till-june-2-due-to-coronavirus.html

[6] Id.

[7] Id.  

[8] Governor Mike DeWine – 3-16-2020 – COVID-19 Update, The Ohio Channel (Mar. 16, 2020), https://perma.cc/H7AG-VQN5.

[9] Sam Allard, Ohio Gov. Mike DeWine Proposes Postponing Tuesday Primaries, Final Decision Falls to Courts, Cleveland Scene (Mar. 16, 2020, 3:49 PM), https://www.clevescene.com/scene-and-heard/archives/2020/03/16/ohio-gov-mike-dewine-proposes-postponing-tuesday-primaries-final-decision-falls-to-courts.

[10] Sharon Coolidge and Dan Horn, Ohio election lawsuit: Meet the 81-year-old woman who sued to stop Ohio’s primary, The Cincinnati Enquirer (Mar. 16, 2020, 8:29 PM), https://www.cincinnati.com/story/news/politics/2020/03/16/ohio-election-lawsuit-primary/5064629002/.

[11] Complaint, Reardon, et al. v. LaRose, 20-CV-002105 (C.P. Ohio 2020).

[12] Motion for Temporary Restraining Order and Preliminary Injunction, Reardon, et. al. v. LaRose, 20-CV-00215 (C.P. Ohio 2020).

[13] Chris Wetterich, Court will not stop Ohio’s election on Tuesday, Cincinnati Business Courier (Mar. 16, 2020, 8:44 PM), https://www.bizjournals.com/cincinnati/news/2020/03/16/court-will-not-stop-ohios-election-on-tuesday.html.

[14] Id.

[15] Id.

[16] Id.  

[17] Amy Acton, Director’s Order, Ohio Department of Health (Mar. 16, 2020), https://perma.cc/5KPU-Z6UC, citing R.C. 3701.13.

[18] Frank LaRose, Directive 2020-06, Office of the Ohio Secretary of State (Mar. 16, 2020), https://perma.cc/SS8T-NDBU.

[19] State ex rel. Speweik v. Wood Cty. Bd. of Elections, Case No. 2020-0382 (Ohio 2020).

[20] Answer, Speweik. https://perma.cc/K3EU-3L5T.

[21] Decision, Speweik. https://perma.cc/PAT5-DB6Q.

[22] Alicia Lee, These states have implemented stay-at-home orders. Here’s what that means for you, Cnn (Apr. 7, 2020, 5:23 PM), https://www.cnn.com/2020/03/23/us/coronavirus-which-states-stay-at-home-order-trnd/index.html.

[23] H.B. 197, 133rd Gen. Assemb. (Ohio 2020).

[24] Governor DeWine Signs House Bill 197, Governor of Ohio (Mar. 27, 2020), https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/dewine-signs-house-bill-197.

[25] Ohio Primary Election Results, Fox 8 (Apr. 28, 2020, 8:13 PM), https://fox8.com/news/ohio-primary-election-results/.

[26] Ohio Rev. Code Ann. § 3501.01(E)(1).

[27] Ohio Rev. Code Ann. § 3501.01(E)(2).

[28] Ohio Rev. Code Ann. § 3501.01(A).

[29] 2 U.S.C. § 7.

[30] Ohio Const., Art. II § 1.

[31] MacDonald v. Bernard, 1 Ohio St. 3d 85 (Ohio 1982).

[32] Ohio Const., Art. II § 1d.

[33] Kraus v. Cleveland, 163 Ohio St. 559, 562-62 (Ohio 1955).

[34] Ohio Rev. Code Ann. § 3701.13.

[35] Id.

[36] U.S. Const., Art. VI.

Bike Paths and Eminent Domain

Photo by Max Böhme on Unsplash

J.P. Burleigh, Associate Member, University of Cincinnati Law Review

I. Introduction

During the 19th century, Congress granted railroad companies rights of access to build and operate railroads across public lands.[1] After the Interstate Highway System was built, many railroad companies stopped operating and once-busy railroads fell into disuse.[2] The “rail-trail” movement began in the 1960s out of a simple idea: convert abandoned railroads into recreational trails.[3] More than 20,000 miles of trails for biking, walking, and more have been built since then.[4] This effort has prompted numerous legal disputes around the taking of private property. In 2014, the Supreme Court held that when the railroads abandoned tracks, any rights of access ceased; thus, the federal government did not retain any rights to abandoned railways on privately owned land.[5] The question facing the rail-trail movement today is whether governments can build trails by using eminent domain, the government’s authority to take private property for public use. This past year, one Ohio couple captured national attention on this issue.[6]  

Mike and Barb Cameron own a farm in Mahoning County, Ohio that has been in Mike’s family for four generations.[7] The Camerons have grown crops, raised cattle, and made their home on the property for twenty-five years.[8] Fewer than one hundred yards from their house is an abandoned railroad bed, a slight depression in the land along which the Niles and Lisbon Branch of the Erie Railroad once ran.[9] The rails were removed in the 1980s[10] and the Camerons now own the entire rights to the property.[11] The railroad bed runs north-south through the middle of their 158 acre property.[12]

In November of 2018, Mill Creek Metroparks (“Mill Creek”) sued the Camerons in the Mahoning County Court of Common Pleas.[13] Mill Creek is a park district operating under Chapter 1545 of the Ohio Revised Code to build and supervise parks in northeastern Ohio.[14] The park district is asking the court to grant the park district a permanent easement along the former railbed. The Camerons would technically remain owners but Mill Creek would have a permanent right to use the railroad bed.[15] Mill Creek argues the easement can be created under the power of eminent domain.[16]

Mill Creek created the plan for this project in 1990 and has since secured close to $4 million in state and federal funding.[17] The existing stretch of the “hike and bikeway” opened between 2000 and 2001; it is a ten-foot wide paved surface for biking, hiking, rollerblading, and even cross-country skiing.[18] The organization plans to eventually pave the entire former railway and join it with the Great Ohio Lake-to-River Greenway, a planned trail that will stretch through four counties from Lake Erie to the Ohio River.[19] As of 2016, the Great Ohio Lake-to-River Greenway Coalition had raised $35 million and constructed 75 miles of the proposed 110-mile bikeway.[20] Mill Creek believes the trail will serve not only as valuable greenspace but also as “a link to history and culture,” a driver of economic growth, and an opportunity for recreation and improved health.[21]

The Camerons object to the easement which would divide their property in half.[22] They worry the easement would disrupt their farm’s operations which include allowing their cattle to graze freely.[23] They argue the easement will limit the movement of livestock and heavy machinery from one side of the property to the other and prevent them from hunting on their land.[24] They fear they could be found liable if they damage the trail or if trail users enter onto their property.[25] And they think it unfair that Mill Creek would get the rights to use the property, but the Camerons would continue to be taxed on ownership of the property.[26] The case is set for a jury trial this summer.[27] The suit is just one of nearly a dozen Mill Creek has filed against property owners since November 2018 to secure the rights for the proposed trail.[28]

The Camerons are not alone in fighting an attempt to build a trail across their property.[29] Property owners in Sioux City, Iowa and Swampscott, Massachusetts have engaged in years of expensive litigation to resist efforts to build trails on their property.[30] Some trail proponents see eminent domain as a necessary tool; the Sierra Club, for instance, believes using eminent domain is justified because bike trails improve health, create transportation options, and reduce the number of cars on the road.[31] On the other hand, in 2017, Wisconsin banned the use of eminent domain for recreational trails, including bikeways.[32] After the Cameron family’s story went public, similar legislation was introduced in the Ohio House of Representatives.[33] There are two big questions surrounding this controversy: is it legal for Mill Creek to take an easement on the Camerons’ property, and, if so, should it be?

II. Current Law

Park districts such as Mill Creek are led by park commissioners.[34] Those commissioners are empowered by section 1545.11 of the Ohio Revised Code to take private property:  

The board of park commissioners may acquire lands either within or without the park district for conversion into forest reserves and for the conservation of the natural resources of the state, including streams, lakes, submerged lands, and swamplands, and to those ends may create parks, parkways, forest reservations, and other reservations and afforest, develop, improve, protect, and promote the use of the same in such manner as the board deems conducive to the general welfare. Such lands may be acquired by such board, on behalf of said district . . . by appropriation.[35]

The Ohio Supreme Court has held that this is a “broad and comprehensive” grant of power, allowing boards of park commissioners to take “any natural tract of land bearing a reasonable relation to these words.” [36] 

This power is not unlimited, however. The Takings Clause of the Fifth Amendment to the Constitution requires governments to give “just compensation” when private property is taken for public use, including when taken under the power of eminent domain.[37] Early in the country’s history, many courts read the words “public use” to require that government or the public actually use the taken property.[38] Federal courts have broadened the idea of public use over the years to allow takings that merely provide some public benefit, such as redeveloping blighted neighborhoods, redistributing land, and economic development by a private group.[39] The grant of an easement on the Camerons’ land for the building of a public bike path is almost certainly acceptable under Fifth Amendment jurisprudence.

Ohio’s constitution also requires exercises of eminent domain be in service of a public use, but Ohio’s definition of “public use” is narrower than the federal understanding.[40] The Ohio Supreme Court has explained, “[t]he founders of our state expressly incorporated individual property rights into the Ohio Constitution in terms that reinforced the sacrosanct nature of the individual’s inalienable property rights . . . which are to be held forever inviolate.”[41] While the Takings Clause of the Ohio constitution and Fifth Amendment are nearly identical,[42] courts review eminent domain statutes with “heightened scrutiny” under the Ohio Constitution.[43] Further, while economic benefit can be considered in determining whether the property is being taken for a public use, economic benefit alone cannot satisfy Ohio’s public use requirement.[44]

Ohio also limits the use of eminent domain by statute.[45] The government must give the property owner notice of its intent to take the property and make a good faith offer to purchase the property in writing.[46] The taking must also be necessary.[47] The government has the burden of showing both public use and necessity.[48] The statute does not define “public use,” but does give examples of forbidden and permitted uses.[49] Takings solely for economic development are allowed only if a public entity retains possession of the property.[50] In contrast, takings for construction of roads and public parks are presumed to be public uses.[51] Courts have interpreted “necessary” to mean not just “absolute physical necessity” but also “reasonably convenient or useful to the public.”[52] If the applicable agency passes a resolution affirming the necessity of a taking, courts grant a presumption of necessity and the protesting property owner must show that the taking is not necessary.[53] 

Courts faced with cases similar to that of the Camerons have upheld park districts’ efforts to take property for bike trails. Recreational trails are a valid use under park districts’ statutory power. In 2007, the Ohio Supreme Court held that “the board of park commissioners is authorized under R.C. 1545.11 to appropriate property for the construction and use of a recreational trail.”[54] Further, the Fifth District Court of Appeals has twice held that a bike path is a public use.[55] A bike path across the Camerons’ property thus almost certainly counts as a public use, so their only defense is to show that the park district’s easement is not necessary.

Mill Creek bears the burden of proving that taking the Camerons’ property is necessary to build the bike trail. If Mill Creek has passed a resolution that the taking is necessary, the burden of proof shifts to the Camerons. Mill Creek passed a resolution in 1993 stating “the public interest demanded” a bike path along the former railway.[56] The Camerons could argue that this does not show necessity because the resolution was so long ago and did not address the specific route across their property. Even if the bike path itself is necessary, the Camerons dispute routing the path through their property.[57] The road in front of the Camerons’ property has been used as a bike trail for twenty years which undermines the argument that crossing the Camerons’ property is necessary.[58] Alternatively, even if a path off of the road is necessary, the path could run along the road instead of through the middle of the Camerons’ property. Mill Creek claims that such a route would cross dozens of properties and would therefore be more expensive.[59] The Camerons are unlikely to win this argument because of the broad definition of necessity as “reasonably convenient.” For example, the Fifth District found a bike path was necessary because it would “provide connectivity and health benefits” and because the agency acted in good faith.[60] No evidence of bad faith on the part of Mill Creek has been introduced, so a judge will likely follow this precedent and find the bike path necessary. Under current law, the Camerons probably cannot stop Mill Creek from acquiring an easement across their property for the bike path.

III. Future Law

In response to the Mill Creek’s attempts to obtain easements across private properties, members of the Ohio House of Representatives have introduced legislation to limit taking private property for bike trails.[61] Last year, Representative Don Manning sponsored House Bill 288, which would prohibit taking private property to build recreational trails.[62] Eleven legislators co-sponsored the bill.[63] Michael Cameron, the trustees of Green Township where the Camerons reside, and several other affected property owners testified in support of H.B. 288 before the Ohio House Civil Justice Committee.[64] Several cities (including Cincinnati), park districts, and non-profits testified against the bill.[65] Under criticism for limiting eminent domain authority too much, the bill did not make it out of committee.[66] 

This year, Representative Manning and Representative Don Hambley proposed a more moderate alternative, H.B. 476.[67] Instead of banning eminent domain for recreational trails altogether, H.B. 476 imposes limits on the use of eminent domain and allows for local governments to veto the taking.[68] Under H.B. 476, if a property owner objects in writing to a proposed taking of his or her property,[69] “[t]he legislative authority of the municipal corporation where the real property is located, or board of township trustees for the township where the real property is located, may veto the appropriation.”[70] In the Camerons’ case, such an amendment would save their property, as the trustees of Green Township are opposed to Mill Creek’s course of action.[71]

H.B. 288 might have gone too far in seeking an all-out ban on taking property for recreational trails. Bike trails and similar public projects provide important benefits to communities; prohibiting the government from appropriating land for that purpose might be unwise. H.B. 476 on the other hand, offers a more sensible approach by requiring the affirmation of the municipal legislature or board of township trustees. This adds an additional layer of protection for property owners while leaving the door open for taking land for bike trails if the community as a whole approves of the project. Especially because park district commissioners are not elected, H.B. 476 adds a healthy dose of democracy to ensure that eminent domain is being used responsibly in this context.

IV. Conclusion

The story of Mike and Barb Cameron is one that could become even more common in coming years. The push to create new recreational trails will lead to further disputes about how to acquire the necessary land. These controversies pit the public benefits of trails against the fundamental right of private property. Ohio should get ahead of this problem by adopting H.B. 476, allowing local communities a say in whether to take property for this purpose. Doing so will ensure that private property remains “forever inviolate” in Ohio.[72]

[1] Brandt Trust v. United States, 572 U.S. 93 (2014).

[2] American-Rails, The Decline of Rail Travel: Three Decades of Turmoil, https://www.american-rails.com/decline.html (last visited Mar. 21, 2020).

[3] Amy Kapp, Connectivity Evolution: Examining a Decade of Rails-to-Trails’ Impact, 2012-2020, Rails-to-Trails (Dec. 31, 2019), https://www.railstotrails.org/trailblog/2019/december/31/connectivity-evolution-examining-a-decade-of-rails-to-trails-impact-2010-2020/.

[4] Id.

[5] Brandt, 572 U.S. at 110.

[6] Rachel Wagoner, Mahoning County farmers fight eminent domain for bike trail, Farm and Dairy (Jul. 8, 2019), https://www.farmanddairy.com/news/mahoning-county-farmers-fight-eminent-domain-for-bike-trail/562277.html.

[7] Id.  

[8] Id.

[9] Id.

[10] Id.

[11] Hearing on H.B. 288 Before the Ohio H. Civil Justice Comm., 133rd Gen. Assemb. (statement of Michael Cameron, proponent).

[12] Id.

[13] Complaint, Bd. of Comm’rs. v. Cameron, et al., 2018 CV 02795 (Mahoning Cty. C.P. Nov. 20, 2019).

[14] Id. at ¶ 1.  

[15] Id. at ¶ 14.

[16] Id.

[17] Stephen L. Avery and Justin Rogers, Mill Creek Metroparks Bikeway, Mill Creek Metroparks (Apr. 11, 2016) http://www.millcreekmetroparks.org/wp-content/uploads/2016/04/MetroParks-Bikeway-Board-Presentation-4.11.16.pdf.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Cameron, supra note 11.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Order of Magistrate, Bd. of Comm’rs., 2018 CV 02795 (Mahoning Cty. C.P. Feb. 20, 2020).

[28] Wagoner, supra note 6.

[29] Steven Malanga, We’re From the Government and We’re Here to Build a Bike Path, Wall Street Journal (Feb. 14, 2019, 5:19 PM) https://www.wsj.com/articles/were-from-the-government-and-were-here-to-build-a-bike-path-11581718779.

[30] Id.

[31] Mackenzie Christman, Why Can’t Eminent Domain Help Build Bike Paths?, Sierra Club (Oct. 7, 2019) https://www.sierraclub.org/wisconsin/blog/2019/10/why-cant-eminent-domain-help-build-bike-paths.

[32] Wis. Stat. 32.015.

[33] H.B. 288, 133rd Ohio Gen. Assemb. (2019); H.B. 476, 133rd Ohio Gen. Assemb. (2020).

[34] Ohio Rev. Code Ann. § 1545.05-28.

[35] Ohio Rev. Code Ann. § 1545.11 (emphasis added).

[36] Snyder v. Board of Park Comm’rs, 125 Ohio St. 336, 340 (Ohio 1932).

[37] Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, 241 (1897) (applying the Fifth Amendment to the states through the Fourteenth Amendment).

[38] Kelo v. City of New London, 545 U.S. 469, 506-515(2005) (O’Connor, J., dissenting).

[39] Id.

[40] City of Norwood v. Horney, 853 N.E.2d 1115,1142-43 (Ohio 2005).

[41] Id. at 1129.

[42] “[W]here private property shall be taken for public use, a compensation therefor [sic] shall first be made in money.” Ohio Const., Art I § 19.

[43] Norwood, 853 N.E.2d at 1123.

[44] Id.

[45] Ohio Rev. Code Ann. § 163.01-63.

[46] Ohio REv. Code Ann § 163.04.

[47] “No agency shall appropriate real property except as necessary and for a public use. In any appropriation, the taking agency shall show by a preponderance of the evidence that the taking is necessary and for a public use.” Ohio Rev. Code Ann. § 163.021(A).

[48] Id.

[49] Cox v. State, 2016 WL 4507779 (N.D. Ohio 2016).

[50] Ohio Rev. Code Ann. § 163.01(H)(1).

[51] Ohio Rev. Code Ann. § 163.01(H)(2)

[52] Bd. of Trs. of Sinclair Cmty. College Dist. v. Farra, 2010-Ohio-568, ¶ 37 (Ohio Ct. App. 2010).

[53] Ohio Rev. Code Ann. § 163.09(B)(1)(a).

[54] State ex rel. Coles v. Granville, 116 Ohio St. 3d 231, ¶ 29 (Ohio 2007).

[55] City of Dublin v. Beatley, 2018-Ohio-3354, ¶¶ 21-24, 35-37 (Ohio Ct. App. 2018); City of Dublin v. RiverPark Grp., LLC, 2019-Ohio-1790, ¶¶ 11-29 (Ohio Ct. App. 2019).

[56] Complaint at ¶ 6, Bd. of Comm’rs., 2018 CV 02795.

[57] Statement of Michael Cameron, supra note 11.

[58] Hearing, supra note 11 (statement of Green Township Trustees, proponent).

[59] Wagoner, supra note 6.

[60] Beatley, 2018-Ohio-3354 at ¶ 34.

[61] Wagoner, supra note 6.

[62] H.B. 288, 133rd Ohio Gen. Assemb. (2019).

[63] Id.

[64] Hearing, supra note 11 (statements of Michael Cameron, Green Township Trustees, Alan Dickerhoof, and David roller, proponents).

[65] Hearing, supra note 11 (statements of City of Cincinnati, City of Upper Arlington, Cleveland Metroparks, Columbus and Franklin County Metroparks, Ohio Bicycle Federation, and Tristate Trails, opponents).

[66] Larry Limpf, Rec trails subject of eminent domain bill, The Press (Jan. 31, 2020, 4:00 PM) https://presspublications.com/content/rec-trails-subject-eminent-domain-bill.

[67] H.B. 476, 133rd Ohio Gen. Assemb. (2020).

[68] Id.

[69] Id.

[70] Id.

[71] Statement of Green Township Trustees, supra note 58.

[72] City of Norwood v. Horney, 853 N.E.2d 1115,1129 (Ohio 2005).

Which Ohio Commission Should Regulate Gambling Within the State?

“Roulette table gambling”by Best Free Bets is licensed under CC BY 2.0

Theron Anderson, Associate Member, University of Cincinnati Law Review

This is the second article in a two-part analysis on sports betting. Click here to read an in-depth discussion of Murphy v. NCAA.


After being granted the discretion to authorize sports betting within its jurisdiction, Ohio has undertaken the burden to exercise that discretion. After one orbit around the Sun, Ohio seemed to be in agreement that sports betting was the rational move for the state. But the decision to delve deeper into the matter developed an impasse that has not ceased to let up. The issue has become whether sports betting legislation could fit within the current statutory framework without amendments and which existing state commission is best fit to regulate the activity. 

First, this article will present a background of the landmark Murphy v. NCAA case which brought Ohio to this point.[1] Second, it will consider whether the current statutory framework of the state prohibits sports betting, therefore requiring an amendment. Next, this article will outline the bills currently on the state legislature’s to-do list, and the hurdles it faces in accomplishing its legislative goals. Finally, this post interprets the sports betting statutes and analyzes the validity of each argument supporting a particular commission.


In the year following the landmark case of Murphy v. NCAA[2], states reacted to capitalize on their new discretionary authority to legalize sports betting, leading to the legalization of sports betting in eight states.[3] In Murphy, the Supreme Court ruled that the prohibitions imposed by the Professional and Amateur Sports Protection Act (“PASPA”), preventing States from authorizing sports gambling within their respective jurisdictions, violated the constitutional law doctrine of anticommandeering.[4] This doctrine protects the states from the encroachment of the Federal Government on their powers. The Court believed that the issue of gambling fell within the province of the states due to the issue of sports gambling being a controversial subject concerning citizens within their jurisdictions.[5] Therefore, Congress should not be able to exercise power regarding that issue.[6]

Legality of Sports Betting in Ohio

Similar to states throughout the country, Ohio identified Murphy as an opportunity to capitalize on potential revenue for the State.[7] The question of whether states can authorize sports betting was answered affirmatively in Murphy, but that presented a subsequent question of whether sports betting is prohibited by the current laws of the state. Those leading the push in the Ohio legislature have proceeded on the assumption that sports betting legislation can operate within the existing laws.[8]

Three arguments can be made as to why sports gambling is not prohibited under the current laws of the state. First, one could argue that sports betting falls within the definition of “casino gaming” found within the 2009 amendment to the Ohio Constitution.[9] One could also argue that sports betting falls within the lottery language as a “game of chance.”[10] Finally, sports betting can be analogized to horse racing.[11] In the early 20th century, horse betting was permitted even though it was not specifically authorized by the Constitution.[12] Legislatures argue that they possess the power to “simply set laws to regulate sports gambling as it wishes, as it did with horse racing.”[13]

With the creation of legislation regarding the legalization of sports betting, the proponents of legalized sports betting should be able to pass it through without statutory hurdles. If the legislature were to meet civil opposition after the legislation’s passing, the Ohio courts should have many avenues at their disposal to rule in favor of the legislation’s validity.[14]

Pending Legislation Halts over Regulators

Currently, two sports betting bills are working their way through the Ohio legislature.[15] These bills were introduced in March and April of this year.[16] One of the bills is House Bill 194 (“HB194”).[17] HB194 is led by Representatives Dave Greenspan and Brigid Kelly.[18] This bill is the “more robust of the two bills.”[19] The purpose of the bill is to “legalize, regulate and tax sports wagering businesses.”[20] The betting would be regulated by the Ohio Lottery Commission (“OLC”) and permitted at “neighborhood veterans and fraternal organization halls licensed by the lottery” as well as casinos.[21]

The other is Senate Bill 111 (“SB111”).[22] This bill is led by Senators John Eklund and Sean O’Brien.[23] Because SB111 assigns the regulation of sports betting to the Ohio Casino Control Commission (“CCC”), sports betting would only be permitted in the casinos and racinos of Ohio.[24]

The two major differences with the bills are the commission tasked with regulating the betting and where the betting will be allowed.

A stalemate has formed in the legislature due to disagreement over which commission is more fit to regulate sports betting within the State. Those in favor of the House’s bill raise the argument that the CCC cannot legally regulate sports betting.[25] Rep. Greenspan went as far as to say that the House proposal with the OLC in charge is “the only legal option.”[26] The argument against the CCC leans on two points. First, opponents of CCC regulation believe that “the CCC would not have the authority to oversee OH sports betting unless it were considered a casino game.”[27] Second, CCC authority is limited to Ohio casinos; therefore, sports betting would be limited to those casinos.[28]

Sen. Eklund, in support of CCC regulation, rebutted by pointing to the Ohio Constitution omittance of a clear prohibition of the CCC from regulating sports gambling.[29] Sen. Eklund also countered that there is no stipulation that the OLC should regulate sports betting either.[30] If one was to label sports betting as a game of skill rather than a game of chance, it would support the argument of Sen. Eklund that sports betting falls outside of the OLC’s purview.[31]

Sen. William Coley, President of the National Council of Legislators for Gaming States, continued the suspicion of CCC’s aptitude to regulate sports betting by questioning its availability of funds.[32] Sen. Coley supported his suspicion by highlighting the constitutional limitations placed on the CCC for raising funds.[33] Sen. Eklund’s response to this scrutiny was less than persuasive. He stated that “he spoke with the leadership of the CCC and they have every confidence that they have the resources to regulate Ohio sports betting.”

It may seem like this drama should be titled “Eklund vs. the World,” but in the early summer, his bill received encouragement from a major player. Governor Mike DeWine publicly expressed his support for the bill crowning the CCC as the regulator over Ohio sports betting.[34] The support of the governor displays a favorable signal to proponents of a general sports bill, but for those in support of an OLC regulator will have some convincing to do in the near future.[35]

Recently, the HB194 has picked up more traction than the Senate bill. Even though the House bill was delayed due to an unrelated budget discussion this past June, the bill has undergone three hearings in the Finance Committee, with the House expecting to resume discussion after its recess which was scheduled to end in early September.[36] Even considering the current stalemate, proponents of the both bills are expecting a passed bill in the summer of 2020.[37]

What Does the Law Say?

The CCC acquires its authority from Article XV, Section 6 of the Ohio Constitution.[38] The CCC “shall license and regulate casino operators . . . and all gaming authorized by section 6(C).”[39] Section 6(C) states “[c]asino gaming shall be authorized at four casino facilities.”[40] Casino gaming is defined as “any type of slot machine or table game wagering . . . authorized in any of the states of Indiana, Michigan, Pennsylvania, and West Virginia.”[41] Casino gaming is defined as games involving skill or chance.[42]

The OLC acquires its authority from Section 6 of the Ohio Constitution as well as Title 37, Section 3770.03 of the Ohio Revised Code.[43] Within Section 6, the legislature is given the discretionary authority to allow “an agency of the state to conduct lotteries . . . and to award prizes by chance to participants.”[44] The OLC is created by the legislature and given the authority to “promulgate rules under which a statewide lottery may be conducted.”[45]

So…Who Should Regulate?

Sports betting does not adequately fit within the purview of the CCC nor the OLC. For the CCC to be granted the expressed authority to regulate, sports betting must be a casino game. Casino games are defined as slot machines or table games. At first blush, one might attempt to place it within the category of table games, but the category is defined as “any game played with cards, dice, or any mechanical, electromechanical, or electronic device or machine.”[46] A creative argument could be made to fit sports games within that, but it is not convincing considering the fact that some sports betting does not require any “mechanical, electromechanical, or electronic device.”[47] Therefore, the CCC would not be the appropriate commission to regulate sports betting. 

OLC becoming the regulator would depend on one question: does sports gambling fall within the category of a lottery? From the language “promulgate rules under which a statewide lottery may be conducted,” lottery is narrower than Rep. Greenspan and his proponents are willing to admit.[48] The provision does not give much latitude allowing the OLC to dabble in other ventures, such as sports gambling, because it focuses on a single statewide lottery.

The elimination of the two commissions would lead to the sound alternative voiced by Matthew Kredell of the Legal Sports Report.[49] He considered “creating a third regulatory body to handle sports betting.”[50] This design would mirror the response of the Ohio legislature to the similar issue of horse race betting in the early 20thcentury.[51] In that situation, the legislature created the Ohio Racing Commission to regulate the bets on horses.[52]

The practicality of this alternative could be lacking due to how much activity the House’s bill is collecting and the potential issues with funds, but it remains a healthy alternative that should be considered if the legislative stalemate refuses to subside. 


Because this issue of who should regulate presents a moderate amount of ambiguity, the split within the legislature is not a surprise. The House bill has received the most attention, while the Senate bill has received support from the gatekeeper of bills, creating a mystery of what the future holds for sports betting in Ohio. The fierce stalemate should turn the government’s attention to a blueprint of the past, making a specialized commission for sports betting the legitimate course of action. 

[1]Murphy v. NCAA, 138 S. Ct. 1461 (2018).


[3]Rich Exner, Ohio heads towards legalizing sports gambling: Q&A of how, when and issues in play, cleveland.com (May 9, 2019), https://expo.cleveland.com/news/g66l-2019/05/213161ac655032/ohio-heads-toward-legalizing-sports-gambling-qa-of-how-when-and-issues-in-play.html.

[4]Murphy, 138 S. Ct. 1461 at 1468, 1481.

[5]Id.at 1484.


[7]Exner, supra note 3.

[8]Matthew Kredell, Argument Bubbles Over Who Should Regulate Ohio Sports Betting, Legal Sports Report (July 25, 2019), https://www.legalsportsreport.com/34594/ohio-sports-betting-casino-commission/.

[9]Exner, supra note 3.






[15]The Lines, Ohio Sports Betting, Ohio Sports Betting News and Information, https://www.thelines.com/ohio/.



[18]Exner, supra note 3.

[19]The Lines, supra note 15. 


[21]Exner, supra note 3.

[22]The Lines, supra note 15. 

[23]Exner, supra note 3.

[24]The Lines, supra note 15. 

[25]Matthew Kredell, Opinion On Overseeing Ohio Sports Betting Offers Obstinate Obstacle, Legal Sports Report (July 5, 2019), https://www.legalsportsreport.com/34202/ohio-sports-betting-regulator-opinion/.




[29]Kredell, supra note 7.


[31]Kredell, supra note 24.

[32]Kredell, supra note 7.





[37]The Lines, supra note 15.

[38]Ohio Const. art. XV, § 6.

[39]Id. art. XV, § 6(C)(4).

[40]Id. art. XV, § 6(C)(1).

[41]Id. art. XV, § 6(C)(4).

[42]Id. art. XV, § 6(C)(9).

[43]Ohio Const. art. XV, § 6, Ohio Rev. Code Ann. §3770.03 (LexisNexis 2017).

[44]Ohio Const. art. XV, § 6.

[45]Ohio Rev. Code Ann. §3770.03(A) (LexisNexis 2017).

[46]Id. art. XV, § 6(C)(9).


[48]Ohio Rev. Code Ann. §3770.03(A) (LexisNexis 2017).

[49]Kredell, supra note 24.


[51]Exner, supra note 3.


H.B. 6: Is this the End of Nuclear Power in Ohio?

“Dungeness”by nigelphoto2011 is licensed under CC BY-NC-ND 2.0

William Malson, Associate Member, University of Cincinnati Law Review 

Disclaimer: the author is employed by a group seeking to hold a referendum on H.B. 6.


In 1966, the Atomic Energy Commission discontinued operations of the Piqua Nuclear Power Facility just outside the southern city limits of Piqua, Ohio.[1] Ohio would be without nuclear power for eleven years, until the licensing of the Davis-Besse Nuclear Power Station (“Davis-Besse”) in 1977[2] and the Perry Nuclear Power Plant in 1986.[3] Today, these plants are at risk of being decommissioned by the owner of both plants—FirstEnergy Corp. (“FirstEnergy”)[4]—citing financial inability to continue routine operations,[5] such as the ability to purchase fuel for Davis-Besse.[6] In response, the Ohio General Assembly passed Amended Substitute House Bill 6 (“H.B. 6”), providing for new charges for electricity customers that will ultimately be passed on to “qualifying nuclear resources” in Ohio—namely, FirstEnergy’s nuclear plants.[7] But H.B. 6 is not without controversy. Groups as diverse as the Sierra Club[8] and the American Petroleum Institute[9] have condemned the bill, uniting in opposition to one of the key features of the law: the bailout of FirstEnergy’s nuclear plants.

What’s happening to nuclear power in Ohio?

Nationwide, nuclear power made up almost twenty percent of electricity generated in 2018.[10] But that number will likely drop in the near future, as more than one-third of existing nuclear power plants, representing twenty-two percent of total U.S. nuclear capacity, are either unprofitable or scheduled to close.[11] Ohio generates fifteen percent of its energy from nuclear power,[12] less than the national average, and most at-risk nuclear plants are in the Midwest and Mid-Atlantic regions.[13] Consistent with the national decline, on March 29, 2018, FirstEnergy Solutions, a subsidiary of FirstEnergy Corp.,[14] asked the U.S. Department of Energy to issue an emergency order to the regional transmission organization to compensate FirstEnergy’s at-risk plants “for the full benefits they provide to energy markets and the public at large.”[15] No such order came, and FirstEnergy Solutions filed for chapter 11 bankruptcy on March 31, 2018.[16]

Enter H.B. 6.

What is H.B. 6?

In the midst of FirstEnergy Solutions’s extended and contentious bankruptcy proceeding,[17] the General Assembly conceived and passed House Bill 6, signed into law July 23, 2019, effective October 22, 2019.[18] While H.B. 6 also includes large cuts in renewable energy requirements and deregulations of small wind farms,[19] a key feature of the law is the establishment of the nuclear generation fund, out of which FirstEnergy’s plants will receive payments between April 2021 through January 2028.[20] The nuclear fund will consist of a new charge levied on electricity customers in Ohio totaling $150,000,000 annually—or $1.05 billion over the next 7 years—up to 85 cents per month for residential customers, and $2,400 per month for certain industrial customers.[21] H.B. 6 also requires the Ohio Public Utilities Commission to establish a non-bypassable, statewide cost-recovery charge between 2020 and 2030, capped at $1.50 per month for residential customers and $1,500 per month for all other customer classes.[22] Together, the maximum annual charge for residential customers would be $28.20.

Public backlash

The noise generated by interest groups and news publications surrounding the law’s passage has been underscored by an attempt to overturn the law in its entirety.[23] Under article II, section 1c of the Ohio Constitution, citizens have the power to overturn laws by referendum, applicable to any law except those providing for tax levies, appropriations for the current expenses of the state government and institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety, as provided in section 1d.[24] If successful, the law would not go into effect unless it is approved by a majority of voters in the next election.[25] In this case, that’s November 2020.

To appear on the ballot, the referendum must be signed by six percent of Ohio voters, determined by the total votes cast in the previous gubernatorial election.[26] But before the constitutional process, there is a statutory process, requiring those seeking to utilize the referendum power to submit a summary of the law, signed by 1,000 Ohio voters, to the Ohio Attorney General and Ohio Secretary of State, who must approve the summary and verify the signatures before circulation.[27] This referendum power, though originating with the Ohio Constitutional Convention of 1912, is not often used.[28] Since 2006, only eight referendum petitions were approved out of ninety-five separate attempts to use the referendum or initiative powers to overturn laws or propose constitutional amendments or statutes.[29] The last time a petition was approved for circulation was June 21, 2013, in an attempt to refer new restrictions on electronic gambling.[30] But the power has again been used.

Recent Developments

On August 29, 2019, Ohio Attorney General Dave Yost approved a summary petition to refer H.B. 6 in its entirety.[31] The next day, Ohioans Against Corporate Bailouts (“OACB”), the group behind the referendum, announced that it had begun circulating petitions to put the law up for a general vote in the November 2020 election.[32] In response, on September 4, 2019, FirstEnergy Solutions challenged OACB’s referendum petition in the Ohio Supreme Court, asking the Court to exempt H.B. 6 from referendum, contending that the “charge” applied to electricity customers is legally a “tax,” and therefore not subject to the referendum power under article II, section 1c.[33] On September 10, 2019, the Court ordered OACB to answer or move to dismiss the complaint by October 1, 2019.[34]

It is unclear whether FirstEnergy Solutions will be successful in its attempt to prevent referral of H.B. 6. In the past, the Court has held that the referendum power should be broadly construed “unless the act in question is plainly and persuasively included within one of the three classes excepted from the operation of the referendum.”[35] But where the law in question clearly falls under the exceptions of article II, section 1d, the Court has not hesitated to allow its immediate effect.[36] If FirstEnergy Solutions is unable to convince the Court to stop the referendum of H.B. 6 from going forward, voters are likely to overturn the law next year, perhaps ending the era of nuclear power in Ohio.[37]

[1]U.S. Dep’t of Energy, Off. of Legacy Mgmt., Piqua, Ohio, Decommissioned Reactor Site, 1 (2018), https://www.lm.doe.gov/Piqua/Fact_Sheet.pdf [https://perma.cc/W4EY-3TJK].

[2]FirstEnergy, Davis-Besse Nuclear Power Stationhttps://www.firstenergycorp.com/content/dam/corporate/fenoc/files/Davis-Besse_Plant_Facts_at_a_Glance.pdf [https://perma.cc/H3BX-PFEJ] (last visited Sept. 9, 2019).

[3]FirstEnergy, Perry Nuclear Power Planthttps://www.firstenergycorp.com/content/dam/corporate/generationmap/files/Perry%20Plant%20Facts.pdf [https://perma.cc/CP5P-ZQP7] (last visited Sept. 9, 2019).

[4]James Conca, Why Closing Ohio’s Nuke Plants Will End Up Killing More Ohioans, Forbes (Jul. 9, 2019), https://www.forbes.com/sites/jamesconca/2019/07/09/message-to-ohio-more-people-die-when-nuclear-plants-close/#6e7062046271 [https://perma.cc/KN6H-J4QZ].

[5]FirstEnergy Solutions, FirstEnergy Solutions Seeks Emergency Order to Avert Power Crisis, 1 (Mar. 29, 2018), https://www.fes.com/content/dam/fes/about/files/newsreleases/fes-202c-release.pdf [https://perma.cc/ZPD5-6NCQ].

[6]Reproduction of FirstEnergy Solutions Corp. Press Release, PR Newswire (Jul. 1, 2019, 9:15 AM), https://www.prnewswire.com/news-releases/firstenergy-solutions-corp-300878525.html [https://perma.cc/D4B3-PVJX].

[7]Am. Sub. H. B. No. 6, 133d Gen. Assemb., Reg. Sess. (Oh. 2019).

[8]Sierra Club: Ohio Chapter, Update & Actions for HB 6 (May 6, 2019), https://www.sierraclub.org/ohio/blog/2019/05/update-actions-for-hb-6 [https://perma.cc/K2KX-9PMQ].

[9]API Ohio Disappointed in Ohio Lawmakers for Passage of Nuclear Bailout Laws, Am. Petrol. Inst.: News (Jul. 23, 2019), https://www.api.org/news-policy-and-issues/news/2019/07/23/api-ohio-on-hb6-passage [https://perma.cc/48NH-Q9KW].

[10]What is U.S. electricity generation by energy source?, U.S. Energy Info. Admin.: Frequently Asked Questions (last updated Mar. 1, 2019), https://www.eia.gov/tools/faqs/faq.php?id=427&t=3 [https://perma.cc/2P8X-U5ZV].

[11]Clemmer et al., The Nuclear Power Dilemma, Union of Concerned Scientists, 2 (2018), https://www.ucsusa.org/sites/default/files/attach/2018/11/Nuclear-Power-Dilemma-full-report.pdf [https://perma.cc/F7L4-MRLB].

[12]The Pub. Util. Comm’n of Ohio, How does Ohio generate electricity, https://www.puco.ohio.gov/be-informed/consumer-topics/how-does-ohio-generate-electricity/ [https://perma.cc/9ZHA-ZJB3] (last visited Sept. 9, 2019).

[13]Clemmer et al., supra note 11, at 3.

[14]Homepage of FirstEnergy Solutions, FirstEnergy Solutions (2019), https://fes.com [https://perma.cc/G2DS-KQH9].

[15]Reproduction of Request for Emergency Order Pursuant to Federal Power Act Section 202(c), Harv. Elec. L. Inst.: St. Power Project, 1 (Mar. 29, 2018), https://statepowerproject.files.wordpress.com/2018/03/fes-202c-application.pdf [https://perma.cc/FU7Y-LZ9Y].

[16]In re FirstEnergy Sols. Corp., No. 18-50757, 2018 WL 2315916, at *1 (Bankr. N.D. Ohio May 18, 2018).

[17]See Andrew Scurria, FirstEnergy’s Bankruptcy Deal With Power Units Collapses, Wall St. J.(Apr. 4, 2019, 6:42 PM), https://www.wsj.com/articles/firstenergys-bankruptcy-deal-with-power-units-collapses-11554409862 [https://perma.cc/Q43J-BCDK]; John Funk, FES and FE have created a ‘scheme’ that is an ‘abuse of the bankruptcy system’: Feds say, The Plain Dealer (updated Apr. 2, 2019), https://www.cleveland.com/business/2019/04/fes-and-fe-have-created-a-scheme-that-is-an-abuse-of-the-bankruptcy-system-feds-say.html [https://perma.cc/3AE2-9NF5].

[18]The Ohio Legis., House Bill 6: Status (2019), https://www.legislature.ohio.gov/legislation/legislation-status?id=GA133-HB-6 [https://perma.cc/VUU7-BGEC].

[19]See Creates Ohio Clean Air Program, 2019, Am. Sub. H. B. No. 6, 2019, Ohio Laws File 12, §§ 4928.64, 4928.66; §§ 4906.13, 5727.75.

[20]See id.§ 3706.49, §§ 3706.45, 3706.55.

[21]Id.§ 3706.46.

[22]Id. § 4928.148.

[23]See David Roberts, Ohio just passed the worst energy bill of the 21st century, VOX(Jul. 27, 2019, 12:00 PM), https://www.vox.com/energy-and-environment/2019/7/27/8910804/ohio-gop-nuclear-coal-plants-renewables-efficiency-hb6 [https://perma.cc/HC9B-FWB6]; Don’t Be Fooled – HB 6 is a Bailout for First Energy, AARP, https://action.aarp.org/site/Advocacy?cmd=display&page=UserAction&id=7873 [https://perma.cc/29Z8-KVWT] (last visited Sept. 9, 2019); Steve Clemmer, 5 Reasons Why HB 6, Ohio’s Nuclear Plant Subsidy Proposal, Should Be Rejected, Union of Concerned Scientists: Blog (May 16, 2019, 10:38 AM), https://blog.ucsusa.org/steve-clemmer/5-reasons-why-hb6-should-be-rejected [https://perma.cc/24SK-QHD3]; HB 6, the Ohio nuclear bailout bill, is a bad bill, but it can be made better: editorial, The Plain Dealer(May 10, 2019), https://www.cleveland.com/opinion/2019/05/hb-6-the-ohio-nuclear-bailout-bill-is-a-bad-bill-but-it-can-be-made-better-editorial.html [https://perma.cc/2RTP-JNUQ]; Daniel Carson, HB 6 opponents make second effort to start referendum campaign, USA Today Network: Fremont News Messenger (Aug. 20, 2019, 6:29 PM), https://www.thenews-messenger.com/story/news/local/2019/08/20/nuclear-power-plant-bailout-house-bill-6-opponents-second-petition-for-referendum/2060840001/ [https://perma.cc/SJ8F-52ES].

[24]OH. Const. art. II, § 1d.

[25]Id.§ 1c.

[26]Statewide Referendum, Ohio Sec’y of St., https://www.sos.state.oh.us/legislation-and-ballot-issues/putting-an-issue-on-the-ballot/statewide-referendum/ [https://perma.cc/BPU2-AJTW] (last visited Sept. 9, 2019).

[27]Ohio Rev. Code Ann. § 3519.01(B) (LexisNexis 2019).

[28]Proceedings and Debate of the Constitutional Convention of the State of Ohio – 1912: Seventy-Ninth Day, The Sup. Ct. of Ohio & The Ohio Jud. Sys.,1950, https://www.sconet.state.oh.us/LegalResources/LawLibrary/resources/day79.pdf [https://perma.cc/46MH-BCUL] (last visited Sept. 9, 2019).

[29]List of petitions submitted to the Attorney General’s Office, Ohio Att’y Gen., https://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives/Petitions-Submitted-to-the-Attorney-General-s-Offi [https://perma.cc/TF77-9G8W] (last visited Sept. 9, 2019).

[30]Referendum Petition appearing on List of petitions submitted to the Attorney General’s Office, Ohio Att’y Gen., https://www.ohioattorneygeneral.gov/getattachment/551303f0-3b3e-419e-bf91-8a2023d0c673/Referendum-on-Sub-H-B-7-(Internet-Cafes).aspx [https://perma.cc/446M-G4AY] (last visited Sept. 9, 2019).

[31]Approval of Summary Petition for Referendum of Am. Sub. H.b. 6, Ohio Att’y Gen.(Aug. 29, 2019), https://www.ohioattorneygeneral.gov/getattachment/4631259c-509f-49ac-abe8-604a44c8e2d7/Referendum-of-Am-Sub-H-B-No-6-(Resubmission).aspx [https://perma.cc/G5ZE-GTUW].

[32]Tom Jackson, Petition drive launched to reverse aid to Ohio’s nuclear plants, Sandusky Reg.(Sept. 9, 2019, 9:00 AM), http://www.sanduskyregister.com/story/201908300043 [https://perma.cc/4NJB-T45B].

[33]Challenge to Referendum Petition Under Article II, Section 1g of Ohio Constitution and Verified Complaint for Writ of Mandamus, The Sup. Ct. of Ohio: Case Information (Sept. 4, 2019), http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=871986.pdf [https://perma.cc/SVB7-3KPK].

[34]Summons, The Supreme Court of Ohio: Case Info. (Sept. 10, 2019), http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=872288.pdf [https://perma.cc/63VS-NXHC].

[35]State ex rel. LetOhioVote.org v. Brunner, 916 N.E.2d 462 (Ohio 2009). 

[36]State ex rel. Ohio AFL-CIO v. Voinovich, 631 N.E.2d 582, 591 (Ohio 1994).

[37]Dan Shingler, Referendum to defeat House Bill 6 begins to gather energy in state, Crain’s Cleveland Bus. (Aug. 4, 2019, 4:00 AM), https://www.crainscleveland.com/energy-and-environment/referendum-defeat-house-bill-6-begins-gather-energy-state [https://perma.cc/JG9V-P4EB].

Ohio’s Limits on Health Services in the Electronic Age

Author: Andrea Flaute, Associate Member, University of Cincinnati Law Review

Telemedicine is a key innovation in the health care industry. Sharing patient information and physician services across long distances bridges a gap for patients across the world. Telemedicine’s benefits include access to services that would otherwise be unavailable; streamlined and efficient communication between patients and physicians; and the ever-important reduction of health care costs. The recent launch of “mHealth,” Continue reading “Ohio’s Limits on Health Services in the Electronic Age”

Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Under the Fourth Amendment, absent an impartial and neutral judge or magistrate, warrantless searches are unconstitutional, subject to only a few exceptions.[1] Leak examined two such exceptions—a search incident to a lawful arrest and inventory searches done pursuant to law enforcement’s community-caretaking function. Continue reading “Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   “

Criminalization of HIV in Ohio

Author: Jordie Bacon, Associate Member, University of Cincinnati Law Review

According to the Centers for Disease Control and Prevention (CDC), 1.1 million Americans are living with Human Immunodeficiency Virus (HIV).[1] In Ohio alone, there are 19,352 people who have been diagnosed with HIV.[2] In response to the Acquired Immunodeficiency Syndrome (AIDS) Crisis of the 1980s, many states enacted HIV criminalization statutes as a public health precaution.[3] Proponents of criminalizing HIV non-disclosure argue that it deters transmission between those who know they are infected and any sexual or drug use partner, Continue reading “Criminalization of HIV in Ohio”

Ohio’s Marijuana Oligopoly Concerns

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

This November, Ohioans will have the opportunity to vote on Issue Three, a proposed state constitutional amendment legalizing the recreational use of marijuana. Ohio would only be the fifth state to legalize recreational marijuana and the first Midwestern state to do so. Potential marijuana producers, processors, and retail storeowners have the opportunity to mold this emerging market, but Issue Three limits the number of marijuana producers. Continue reading “Ohio’s Marijuana Oligopoly Concerns”

Ohio’s School Voucher Program; Are Lawmakers Establishing a Religion or Just Doing Their Jobs?

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

In 2014, Americans rated “education” as a top area of concern and as one of the most important problems facing the country.[1] Education is a social, political, and economic issue, and quality education is viewed as critical for both individual and societal success. While the U.S. spends more per student than most countries, this spending has not translated into better results.[2], [3] These underwhelming results have led to widespread debate on how to “fix” the education system in the United States. Ohio was one of the first states to tackle the issues of high costs and poor performance. With the initial implementation of its Cleveland public schools voucher program in 1995, Ohio offered students in failing school districts the opportunity to attend any private school.[4] This program has since expanded into a number of different forms and is now available to all students in Ohio who meet the designated criteria of their respective programs. A substantial number of vouchers have been used for students to attend private, Catholic schools.[5] Since the implementation of voucher programs, the use of public dollars to fund education at religious schools has caused significant debate. This transfer of state money from public schools to religious schools via the voucher program has led to debate about whether the program is an impermissible mixing of church and state under the U.S. Constitution. This article first argues that Ohio’s voucher program is not an impermissible mixing of church and state, and, moreover, that religious schools must be included in any voucher program under the Free Exercise Clause. The article then analyzes Ohio’s own constitution and the socio-political impact of vouchers in determining whether Ohio lawmakers should actually be compelled to pass laws to provide educational opportunities for students at all schools, including private, religiously affiliated schools.

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As Different as Violins and Violas: Why Public Records Requests Are Not the Same as Discovery

Authors: Jack Greiner and Zoraida Vale, Graydon Head & Ritchey

We heard a joke the other day that went something like this. Q: “What’s the best way to keep your violin from being stolen?” A: “Put it in a viola case.” Did we mention we heard the joke on NPR? Somewhere, some classical music buffs are laughing hysterically.

But the joke illustrates an important point. Sometimes two things that look similar are actually quite different. And so it is with discovery and public records requests.

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