Ohio Convinces a Local Judge to Find a City’s Plastic Bag Ban Unconstitutional

The Ohio General Assembly passed a law in 2021 allowing stores and vendors to use and provide plastic containers, including plastic bags,?for commerce. The state claims the law is part of its comprehensive approach to solid waste management.

Later, the City of Athens, Ohio passed an ordinance that prohibited local merchants from providing plastic bags at the point of sale setting up a conflict between local law and state law.

The State of Ohio filed a lawsuit arguing that the Athens ordinance directly conflicts with the state’s solid waste and recycling plan.

It also alleged?that the Athens ordinance is an unpermitted exercise of police power in contravention of the state’s general law allowing the use and distribution of plastic bags.

The state says that the Ohio Constitution allows?cities?home rule?if?local ordinances do not conflict with general laws of Ohio. However, the state asserted that this local law was not permitted under the Home Rule provisions.

The city argued that the Athens ordinance is a proper exercise of home rule under the Ohio Constitution.

The city also claimed that the ordinance is an exercise of its permitted police powers. It also argued that the state statute allowing use of plastic bags is not a general law of Ohio and therefore the Athens ordinance does not conflict with a “general law.”

Here is my legal analysis of a local judge’s decision finding the city’s ban on plastic bag distribution unconstitutional.

Unpacking the decision overturning Athens’ plastic bag ban

On Aug. 28, in a 17-page decision, Athens County Common Pleas Judge George McCarthy found Athens’ banning of the distribution of plastic bags by merchants to be unconstitutional. He found the local ordinance to be contrary to a state law which allows the distribution of plastic bags as part of the state’s “solid waste management” program.

Some see this as a defeat for home rule for cities and a win for an aggressive state general assembly that is trying to preempt cities from taking individual actions.

This decision will likely be appealed by the City of Athens to the Fourth District Court of Appeals within the next 30 days. That process will take months to resolve at that level, because both sides will need to file extensive written legal arguments to support their positions, and the court will also hear oral arguments from each side. After the Fourth District Court of Appeals makes its decision, the matter may be appealed to the Ohio Supreme Court.?

All of this will take months to unravel. So, this matter is not finally resolved.

But, for now, the Athens ban on plastic bags has been declared to be unconstitutional and a permanent injunction (court order) has been instituted to prohibit the enforcement of Athens Code of Ordinances Chapter 11.13 (the plastic bag provision).

To understand the court’s rationale, I will break down the decision for you and explain the procedures involved.

Summary judgment

Both parties asked for a summary judgment, a procedure in civil cases whereby a judge can decide a case prior to trial.

To grant a summary judgment, the judge must find that:

• there are no genuine issues of material facts;
• that the winning party is entitled to relief as a matter of law; and
• it appears from the evidence presented that reasonable minds could come to but one conclusion when viewing the evidence most favorably for the non-moving party (the City of Athens).

In this case, Judge McCarthy found there were no facts in dispute.

He then characterized the issue of law as: “In 2021 R.C. 3736.021 was passed allowing the use of plastic bags and the city later passed ordinance 11.13.02 (A) prohibiting the use of single use plastic bags.”

The real issue then comes down to whether the state statute prevails or whether “home rule” allowed the city to have an ordinance in apparent contradiction of state law.

Arguments

The state, through the Attorney General, argues that the state statute 3736.021 is a general law of the State of Ohio and prohibits local cities from passing ordinances contrary to the state statute.

The city argues that RC 3736.021 is not a general law of the state and therefore the city has a home rule right to have its own ordinance restricting the distribution of plastic bags.

Three-way test

Judge McCarthy states that: “Where a state law and a local ordinance conflict, a state statute takes precedence when:?

• 1) the ordinance conflicts with the statute,?
• 2) the ordinance is an exercise of police power, rather than self-government,
• ?3) the statute is a general law.

The judge, in his decision, addresses each of the three tests.

Decision

The State statute does not mandate the use of plastic bags but leaves it up to an individual business to choose whether to provide them as an “auxiliary containers”

An auxiliary container is a bag or other packaging that: 1) is designed to be either a single use or reuseable, 2) is made of cloth, paper, or plastic… and 3) is designed for consuming, transporting or protecting merchandise, food, or beverages from or at a food service operation, retail food establishment, grocery or any other type of retail, manufacturing, or distribution establishment.

The court found the prohibition passed by the city to be in direct conflict with the state law, since the city ordinance prohibited the retail distribution of plastic bags.

To determine if a state statute can override a city ordinance, the court used a four-part test adopted by the Ohio Supreme Court in the 2002 case of Canton v. State.

Judge McCarthy stated as follows:

If an ordinance is a police regulation, and for R.C. 3736.021 to pass as a general law it must pass a four-part test. To qualify, “a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, 3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally.

The city conceded that the Athens ordinance was an exercise of local police power.

In finding for the state, the court found that the state statute applies to all individuals, businesses, and corporations in Ohio. Judge McCarthy, on his own, even added LLC corporations to the list of entities covered by the state statute, even though LLC’s are not specifically mentioned in the statute.

The judge also found that the disposal of plastic bags is subject to enforcement under Ohio’s littering prohibitions. He found that they are “solid waste” and therefore, appropriate to be covered under the state’s solid waste disposal plan instead of an individual city’s plan:

Therefore, a single use plastic bag after being used for its intended purpose (like tires), is found to be a solid waste item subject to state laws concerning solid waste management and recycling.

On pages 7 and 8 of the judge’s opinion, he wrote:

The Court finds the law permitting Ohioans to use plastic bags,?therefore, is rationally linked to solid waste reduction, recycling,?reuse, and minimization.?

The city had argued that the local ordinance was specifically designed to reduce plastic waste because single-use plastic bags are not recyclable. To counter the city’s argument, the judge cited three factual items in footnotes that were not part of the record in the case:?

• He cites the Trex company for turning plastic bags into park benches.?
• He also cites two Facebook posts that were not part of the record. One is from the Athens Lions Club, which collected single plastic film to create a bench for the Southeast Ohio History Center.?
• He also cited the Facebook page of the Athens Hocking Solid Waste District thanking civic organizations for collecting over 25,000 pounds of plastic (not necessarily plastic bags) to be made into park benches.

The judge included five footnotes in his decision. All added new alleged facts to the case without giving the parties the ability to refute them. See pages 8, 9, 10 and 13.

These citations, outside of the record of the case, may prove to be problematic. To order a summary judgment, the court must find that there are no genuine issues of material facts. These new alleged facts, inserted by the judge, may in fact be disputed.

The parties agreed that the original facts were not in dispute, but then the court, on its own, added these additional allegations of fact from sources beyond the record, like Facebook.?The city may argue, on appeal, that these new alleged facts were not agreed upon by the parties and may in fact be disputed — thereby, negating one of the criteria for ordering a summary judgment.

This will be interesting to watch on appeal. The city may not only ask that the judge’s decision be reversed but it may ask that the case be remanded to the trial court for an evidentiary hearing on the alleged facts inserted by the judge.

The court, in its decision, then goes on to find that the state allowing the use of plastic bags is a legitimate part of its solid waste management plan:

So the legislature’s permitting single use plastic bags is reasonably included in its plan as it may preclude some other more detrimental or problematic material being used in its place.

To buttress this decision, the court again cites facts outside of the record — namely an October 2022 story by National Public Radio. Again, this unilateral addition of facts to the record could be a problem for the state on appeal.

Judge McCarthy also states:?

As the State has an overriding statewide interest in curbing solid waste and promoting recycling of materials for various reasons including reducing litter, waste control, landfill reduction, and promotion recycling of materials, the Court finds that the statute authorizing the use of single use plastic bags is a regulation that is ‘aimed at protecting public health, safety, and general welfare’ of the people of Ohio and therefore is an exercise of the State’s police power.

In short, the judge finds that the state allowing plastic bags protects public health, safety and welfare and counters the City’s argument that banning plastic bags protects the health, safety, and welfare of the community.

For the remainder of the decision (pages 12–14) the judge specifically rejects the city’s remaining arguments supporting the plastic bag ban on a local level.

Conclusion

Judge McCarthy’s decision finds that the O.R.C. 3736.021 is a general law of the state that “falls within the solid waste management plan.”

He says the Athens City Ordinance 11.13.02 (A) is in direct contradiction to this general state law.

He finds the local ordinance is not protected by the Home Rule Amendment and must give way to the overriding state statute.

Therefore, he found the local ordinance to be unconstitutional and ordered that it not be enforced.

This column was originally printed in the Athens County Independent, a non-profit news organization in Athens, Ohio on September 3, 2024.