ORIGINALISM AT HOME: THE ORIGINAL UNDERSTANDING OF OHIO'S HOME RULE AMENDMENT.

• Author: Lanzendorfer, Timothy D.

Contents Introduction I. Dictionaries and Existing Caselaw Support an Interpretation of "General Laws" that Leaves the State Empowered II. Ohio Constitutional Convention Delegates Believed that the Home Rule Amendment Left the State in Control A. Delegates' Understanding of "General Laws" Helps to Show the Way the Public Would Have Understood the Term B. Delegates Understood General Laws to Be Those of Uniform Application Statewide 1. Delegates Thought It Already Well Established that "General Laws" Meant Laws Applying Statewide 2. Delegates Believed the Amendment Only Added to Municipal Power Without Impacting State Power. III. The Campaign for Ratification in Newspapers Lends Support to a Simple Understanding of "General Laws" A. During the Convention, Newspapers Advocated for the Home Rule Amendment, Focusing Coverage on City Empowerment B. The Press Also Covered the Liquor Debate as It Related to the Home Rule Amendment, but the Reporting May Be of Limited Help. C. Newspapers Covered the Campaign for Ratification, Offering Both Positive and Negative Pieces IV. The Original Understanding of Home Rule Can Be Deciphered and Applied to Modern Interpretive Challenges A. As Justice DeWine Articulated, the State Maintained Its Preemptive Power Under the Original Understanding of the Home Rule Amendment B. The Original Understanding of the Amendment Can Be Employed to Solve Complex Controversies Conclusion Introduction

Ohio's constitutional home rule provision traces back to the Progressive movement. (1) Ratified as part of the Ohio Constitutional Convention of 1912, the amendment granted new powers to Ohio's municipalities and enabled them to more effectively address the challenges ushered in by industrialization and rapid urbanization. (2) The amendment states in part:

Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. (3) While the provision appears to read clear enough, courts have struggled to define and apply the amendment almost since its inception. (4) Of unique contention has been the exact meaning of the term "general laws." (5) Because a general law passed by the state preempts a municipality's authority, what constitutes a general law has become the defining line between state and local power in Ohio. (6) And while early observers hoped the language afforded near total protection for municipalities, (7) the subsequent caselaw has been far from clear.

In 2017, the Ohio Supreme Court once again considered the meaning of "general laws" in City of Dayton v. State. (8) In this case, the City of Dayton had passed ordinances enabling the use of red-light traffic cameras that would automatically photograph and ticket vehicles violating certain civil traffic laws. (9) In response, the State enacted a law regulating and severely limiting the ability of municipalities, including Dayton, to employ red-light cameras and ticketing procedures. (10) Dayton believed it had authority under Ohio's home rule provision to enact the red-light ordinances, an authority the State had improperly tried to preempt, and so it sued to enjoin the law. (11) The State responded that the statute was a general law, meaning it preempted Dayton's ordinances. (12) The dispute found its way to the Ohio Supreme Court.

A divided majority held in Dayton's favor, finding that the state law was not a general law. (13) To reach this result, the court applied the Canton test, a judicial doctrine created in 2002 to determine when a state law was a general law and so preempted a local ordinance. (14) The Canton test is a four-pronged conjunctive analysis, stating that to preempt a local ordinance, a law 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. (15)

Developed almost ninety years after the ratification of Ohio's home rule amendment, the Canton test synthesized prior holdings in an attempt to create a cogent and workable test. (16) Finding that the state law failed under prongs three and four, the majority held that the statute was not a general law and could not preempt Dayton's red-light camera ordinance. (17) But the majority was not without spirited dissents.

Justices Patrick DeWine and William O'Neill, then arguably the most conservative and most liberal members of the court, respectively, disputed whether the Canton test should have been applied at all. (18) Both pointed out that the Canton test had been inconsistently applied since its inception, failing to create clarity or predictability for cities or the state. (19) Justice DeWine, after determining the Canton test did not warrant stare decisis deference, argued that the court should abandon Canton and instead return to the original understanding of the term "general laws." (20) Finding that a "general law" was originally understood to mean a statute with "statewide reach [that] treat[s] the objects of the law equally," Justice DeWine contended that the court should have upheld the state law preempting Dayton's red-light cameras. (21)

Scholars and courts have long advocated that constitutional provisions should be interpreted in light of their original public understanding. (22) Whether or not the Ohio Supreme Court decides to follow Justice DeWine's lead and revisit Canton, deciphering the original meaning of "general laws" has value. As increasingly complex questions of state and local power appear before the court, a search for the original understanding of "general laws" is well worth the candle. And indeed, if clarity and predictability are to be prized in an efficient system of law, (23) simplifying this question is of great importance.

Moreover, while Ohio's home rule amendment is now over 100 years old, its proper understanding has great relevance in today's political discourse. As seen in Dayton v. State, conflicts between the state and local governments abound in the modern era. (24) Ohio cities have increasingly pursued progressive objectives, sometimes placing themselves at odds with statewide policy. (25) In response, the Ohio General Assembly has responded by attempting to preempt local ordinances in favor of uniform statewide legislation. (26) Thereafter, local governments cry foul and head to court, citing their home rule authority. (27) For example, multiple cities and at least one county have attempted in recent years to ban the sale of plastic bags at grocery stores. (28) Fearing the impact to local business owners, the Ohio General Assembly passed legislation to preempt these local bag bans. (29) At the time of this writing, Cuyahoga County appears poised to disregard the state mandate and forge ahead with its ban. (30) Simply put, whether and how state law can trump a local bag ban turns on the authority localities enjoy under Ohio's constitutional order. Modern Ohio Supreme Court doctrine would apply the Canton test. But, as this Article demonstrates, the original understanding of Ohio's home rule amendment leads to a different result.

By following down the path Justice DeWine forged in his Dayton dissent, this Article finds the result clear: "general laws" refers to laws of uniform statewide application not limited to certain areas. (31) In fact, the Ohio Constitutional Convention of 1912 delegates and the general public alike appear to have had few questions on this point. (32) To reach this conclusion, this Article picks up where Justice DeWine left off and attempts to advance the conversation with a deeper look at the available evidence, including sources not previously explored in scholarly literature. Part I discusses and builds upon Justice DeWine's original research using dictionaries and existing caselaw. Part II takes a fresh look at the Ohio Constitutional Convention of 1912 transcripts to find delegates' understanding of "general laws." Part III explores newspaper reports on the amendment, both during and after the convention. Part IV synthesizes the available information and shows its potential use in practical application. Finally, the last Part offers a brief conclusion.

This Article does not explicitly advocate that the Canton test be abandoned. Such an argument would require a more robust examination of the modern reliance interests at stake and the intricacies of stare decisis. (33) But as courts consider the future of home rule in Ohio, a richer understanding of how the Ohio public saw the amendment upon ratification can only improve the dialogue. Should the Ohio Supreme Court revisit Canton, this Article should be relied upon as an interpretive aid to find the amendment's original understanding.

1. Dictionaries and Existing Caselaw Support an Interpretation of "General Laws" that Leaves the State Empowered

   As Justice DeWine argued in his Dayton dissent, the traditional methods of finding original understanding support a plain meaning of "general laws" that leaves the state able to preempt local laws. Both contemporary dictionaries and existing caselaw support that a general law was believed to be one applying throughout the state.

   First, Justice DeWine discussed contemporary dictionaries from the time of ratification, supporting the proposition that a general law was one of wide applicability. (34) As Justice DeWine noted, the Concise Oxford Dictionary of Current English from 1912 states that "general" refers to something "[c]ompletely or approximately universal, including or affecting all or nearly all parts, not partial, particular, local, or sectional." (35) Further, another dictionary...