Ohio cities are not blazing a new path in challenging the state on the legality of Senate Bill 331.
In fact, those leading the lawsuit point to a central Ohio case from 2002 as a blueprint for their argument.
SB 331 took effect March 21 and has been opposed by some cities and lawmakers as an omnibus bill that takes power away from local governments by giving utility companies the ability to install small-cell wireless nodes almost anywhere within public rights of way.
In response, dozens of cities are suing the state, including a group of 50 communities -- including members of the Central Ohio Mayors and Managers Association and several cities from suburban Dayton -- who filed a suit March 20 with the Franklin County Court of Common Pleas.
The next step in Franklin County will be for Ice Miller, the law firm in Columbus that is handling the suit, to file a motion for a summary judgment in which both parties brief a judge and then present their case during an oral hearing.
Ice Miller partner Greg Dunn said the initial strategy would be to simplify the presentation, focusing on the idea that it violates the Ohio Constitution's rule that bills should be limited to one subject.
In addition to the small-cell wireless component, SB 331 allowed pet stores to sell puppies from any "qualified breeder" meeting certain conditions, criminalized bestiality, prohibited cities from raising local minimum wage above the state minimum wage of $8.15 and limited municipalities' ability to regulate work schedules and benefits.
Because single-subject cases require a judge only to look at the bill and presented arguments, Dunn said, the process would proceed more quickly than a full case looking into other challenged aspects of the bill.
Consequently, Ice Miller and two of its 50 plaintiffs, Dublin and Upper Arlington, fought a similar battle in court at the turn of the century.
In 1999, the cities hired Ice Miller to sue Ohio over language in the state's biennial appropriations bill.
According to the court filing, the plaintiffs opposed the state's definition of "public ways" to include "public street, road, highway, public easement or public waterway" and "the entire width of any right of way associated with the public way." They also were opposed to limiting municipalities' control over the use of those public ways by "utility service providers and cable operators."
The cities argued that the language violated the Ohio Constitution's protection of home-rule rights and the constitution's rule that bills should be limited to a single subject.
Article XVIII, Sections 3 and 7, address home-rule rights. Article II, Section 15(D) addresses bills limited to a single subject.
Those arguments are the pillars of the current case against SB 331.
Judge Daniel T. Hogan decided the case in 2002, declaring the language unconstitutional and ruling that the bill violated the single-subject rule and the uniformity requirement of the state constitution.
The similarities between the cases are not a coincidence, according to Dunn.
Dunn was involved in the 1999 case and is leading the challenge to SB 331. He said the March 20 filing is "in a lot of ways, the same lawsuit."
"That (1999) law was about placement of mostly underground facilities and right of way, and that was just when the various companies were trying to get in right of way for various purposes. ... We were laughing that if we could find the old briefs, we could just dust them off," he said.
The Ohio Supreme Court in 2004 clarified the home-rule section, holding that only a "manifestly gross and fraudulent" violation of the one-subject rule would cause a legislative enactment to be invalidated, according to the court's website.
Dana McDaniel, Dublin's city manager, was the city's service director during the 1999 lawsuit. He said although Dublin leaders are deferring to Ice Miller for legal advice, knowledge of the previous case is "one of the foundational reasons why we're approaching this the way we are."
"This (case) involves a bit more ... so we would expect a similar track," McDaniel said. "But we actually feel a lot more confident in this because of the other issues it's raised, as well."
Drawing battle lines
SB 331 was introduced in May 2016 and originally received support from Chillicothe-based Petland. The bill, sponsored by Sen. Bob Peterson (R-Sabina), was written largely in response to an ordinance Grove City had adopted in March 2016 requiring retailers to acquire the pets they sell from animal shelters, rescues and humane societies.
By the time the bill was signed into law in December by Gov. John Kasich, it had become an omnibus bill that included an amendment added during the Senate's lame-duck session, giving utility companies the ability to install small-cell wireless nodes to such structures as street signs and utility poles within cities' public rights of way.
When such structures are not present, the bill allows companies to install a tower, similar to a telephone pole, for infrastructure.
The bill itself wasn't a unanimous decision, even along party lines.
In a Dec. 7 vote, 21 senators voted yes while 10 senators -- nine Democrats and Randy Gardner (R-Bowling Green) -- voted against the bill. In the House, 55 Republicans voted in favor while 42 representatives, including nine Republicans, voted no.
Supporters of the bill have said little to ThisWeek since the announcement of lawsuits around the state.
Clark Siddle, a spokesman for Peterson, said it was "standard procedure" for Peterson not to comment on anything involving pending litigation.
Nicole Walker, director of public affairs at AT&T Ohio, also said the company is not commenting on the lawsuit.
"We're just keeping an eye on it like everyone else," Walker said.
Nonprofit wireless-communications advocacy group CTIA -- formerly the Cellular Telecommunications Industry Association -- provided only a written statement that said, "The Ohio legislature is among the first to recognize that new networks need new rules. Deployment of next-generation wireless technologies will create jobs, stimulate economic growth and make lives better, whether in health care, transportation, public safety or even entertainment. We will continue to work closely with states and municipalities to ensure these new technologies and services can be made available to consumers."
With the 2002 decision as precedent, Dunn said, the plaintiffs are confident in their case.
Dunn said SB 331 was "actually kind of worse" than the 1999 appropriations bill, and McDaniel said widespread support for the lawsuit among COMMA members and cities around the state shows others feel the same way. COMMA members include Bexley, Canal Winchester, Columbus, Delaware, Dublin, Gahanna, Grandview Heights, Grove City, Hilliard, New Albany, Pickerington, Powell, Reynoldsburg, Upper Arlington, Westerville, Whitehall and Worthington.
"What we're suggesting is that this was done very similarly in 1999, and only the cities of Dublin and Upper Arlington thought that at the time," McDaniel said. "Now we have this additional issue, and we have over 40 cities and multiple filings in multiple counties. So we'd like to think that, along the way, there's some agreement that this just wasn't the right way to go about this."
Dunn said he isn't willing to guarantee anything, but he feels good about the chances of another win for the cities.
"You're never (overly) confident until you have the answer," he said. "But certainly, the way this was done is consistent with before, and that's where our confidence lies. It's just not the right thing for the state of Ohio."