A central Ohio-based legal challenge to Senate Bill 331 is moving forward while a Summit County court decides how to proceed with a request for a temporary restraining order.
SB 331 took effect March 21 and has been opposed by some cities and lawmakers as the 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.
One of the first legal challenges was when a group of cities in Summit County filed the restraining order and had an initial hearing with Summit County Court of Common Pleas Magistrate Kandi S. O’Connor, who ordered the plaintiffs and state’s representatives to file briefs before a verbal hearing March 30.
But since the hearing was scheduled, two judges, including O’Connor, have recused themselves from the case, canceling the scheduled hearing, according to the Summit County Clerk of Courts Office. Judges who recuse themselves from cases are not required to file an official reason.
Judge Joyce V. Kimbler from Medina County now has been assigned to the case.
Meanwhile, a group of 50 cities, mainly from central Ohio and near Dayton, banded together for a lawsuit that was filed March 20. Many of the cities are in the Central Ohio Mayors and Managers Association, which includes Bexley, Canal Winchester, Columbus, Delaware, Dublin, Gahanna, Grandview Heights, Grove City, Hilliard, New Albany, Pickerington, Powell, Reynoldsburg, Upper Arlington, Westerville, Whitehall and Worthington.
The Ice Miller law firm in Columbus filed the complaint in Franklin County, and partner Greg Dunn has been leading the case.
Dunn and central Ohio city leaders involved in the challenge originally had hoped the restraining order would help cancel the bill’s effects early in the process.
But with Summit County’s decision in a state of uncertainty, Dunn said, the Franklin County claim will go on as scheduled.
“We’re not going to wait for them,” he said. “We’re working on a schedule and briefing on the issues.”
Dunn said Ice Miller would file a motion for a summary judgment in which both sides will brief a judge and then present in an oral hearing.
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. SB 331 also overrules city-level laws attempting to specify where pet stores could purchase puppies, criminalizes bestiality, prohibits 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, making it a good first step.
“That part of the case doesn’t require any discovery or anything,” he said.
Dunn said he expects the case to begin sometime in May, and the group “theoretically could have a ruling in June,” though time frames are still speculative.
Nicole Walker, director of public affairs at AT&T Ohio, said the company is not commenting on the lawsuit.
“We’re just keeping an eye on it like everyone else,” she said.
Nonprofit wireless-communications advocacy group CTIA – originally known as the Cellular Telecommunications Industry Association – declined to provide an interview to ThisWeek but issued a statement: “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.”
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.
But 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 that gave utility companies the ability to install small-cell wireless nodes to such structures as street signs and traffic lights 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.