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.

Introduction

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.

Background

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. 

Conclusion

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).

[2]Id.

[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.

[6]Id.

[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.

[10]Id.

[11]Id. 

[12]Id.

[13]Id.

[14]Id.

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

[16]Id.

[17]Id.

[18]Exner, supra note 3.

[19]The Lines, supra note 15. 

[20]Id.

[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/.

[26]Id.

[27]Id.

[28]Id.

[29]Kredell, supra note 7.

[30]Id.

[31]Kredell, supra note 24.

[32]Kredell, supra note 7.

[33]Id.

[34]Id.

[35]Id.

[36]Id.

[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).

[47]Id.

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

[49]Kredell, supra note 24.

[50]Id.

[51]Exner, supra note 3.

[52]Id.

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.

Background

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 Station, https://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 Plant, https://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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Fantasy Football: Better to Be Good Than Lucky

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

In 2014, nearly 37 million people will participate in a fantasy football league.[1] As the game’s popularity has grown, it has drawn unwanted attention from state officials questioning the legality of betting on fantasy football. While a small group of friends drafting fantasy football teams in a basement is unlikely to attract law enforcement scrutiny, fantasy football host sites[2] have become a billion dollar industry and are potentially subject to prosecution in states with strict gambling laws. Congress addressed fantasy football and determined that, under certain circumstances, betting on fantasy football is a legal activity.[3] However, some state gambling laws are stricter than federal law. Ohio law does not explicitly address the legality of fantasy football gambling, but based upon Ohio’s application of the “predominant factor test,” Ohio courts would likely determine that betting in fantasy football leagues, particularly those of shorter duration, would violate state gambling laws. Therefore, any host site (and its operators) accepting bids from Ohio or a state with similar gambling laws could be subject to criminal prosecution under state gambling laws.

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A Tail Is Not a Leg: Statutory Interpretation Games at the Ohio Supreme Court

Author: Colin P. Pool*

It is often said that Abraham Lincoln, “faced with some thorny issue that could be settled by a twist of language,” would ask his questioner how many legs a dog would have if you called its tail a leg. “Five,” the questioner responds. “No,” Lincoln answers. “Calling a dog’s tail a leg doesn’t make it a leg.”[1] In a recent decision, Hauser v. Dayton Police Department,[2] the Ohio Supreme Court effectively “called a tail a leg,” and held that an employment discrimination statute that imposes liability on “any person acting directly or indirectly in the interest of an employer” did not, in fact, impose individual liability against public-sector supervisors. In doing so, the Court arbitrarily limited the tort remedies available to public-sector employment discrimination plaintiffs, and showed its willingness to engage in intellectual dishonesty to reach these results.

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