Ohioans for Concealed Carry, Inc. v. City of Columbus

Decision Date18 December 2020
Docket NumberNo. 2019-1274,2019-1274
Citation172 N.E.3d 935,164 Ohio St.3d 291
CourtOhio Supreme Court
Parties OHIOANS FOR CONCEALED CARRY, INC., et al., Appellants, v. The City of COLUMBUS et al., Appellees.

Haynes, Kessler, Worthington, Myers & Postalakis, Inc., David S. Kessler, Stephen P. Postalakis, Worthington, and Eric B. Hershberger ; and Barney DeBrosse, L.L.C., and Derek A. DeBrosse, Columbus, for appellant Ohioans for Concealed Carry, Inc.

James P. Sean Maloney; and Ronald Lemieux, Palo Alto, for appellant Buckeye Firearms Foundation, Inc.

Zach Klein, Columbus City Attorney, Richard N. Coglianese, City Solicitor General, and Lara N. Baker-Morrish, for appellees.

O'Connor, C.J. {¶ 1} In this appeal, we determine whether appellants, Ohioans for Concealed Carry, Inc. ("OCC") and Buckeye Firearms Foundation, Inc. ("BFF") (collectively, "appellants"), have standing to bring an action seeking declaratory and injunctive relief against appellees, the city of Columbus and Columbus City Attorney Zach M. Klein (collectively, "the city"), regarding two firearm-related ordinances that appellants allege are unlawful under R.C. 9.68. Because we conclude that appellants have not established standing in this case, we affirm the judgment of the Tenth District Court of Appeals.

I. Relevant Background

{¶ 2} In May 2018, the Columbus City Council passed Columbus Ordinance 1116-2018. This ordinance, among other things, enacted two provisions of the Columbus City Code ("C.C.C.") relevant to this case, C.C.C. 2323.13 and 2323.171. C.C.C. 2323.13 is the city's weapons-under-disability ordinance and prohibits individuals who have been previously convicted of a misdemeanor domestic-violence offense from possessing a firearm, C.C.C. 2323.13(A)(3). C.C.C. 2323.171 makes it a misdemeanor, C.C.C. 2323.171(B), for a person to "knowingly acquire, have, carry, or use an illegal rate-of-fire-acceleration firearm accessory," C.C.C. 2323.171(A). According to the city, this ordinance is directed at firearm accessories known as "bump stocks." See C.C.C. 2323.171(C)(1).

{¶ 3} A little over a month after the city enacted these ordinances, appellants and Gary Witt, a member of OCC and a resident of Columbus, filed a complaint against the city seeking an injunction against enforcement of the ordinances as unconstitutional, based on the argument that they are preempted by R.C. 9.68 —a statute pertaining to ensuring that the laws throughout Ohio regarding the right to bear arms are uniform—and seeking a declaratory judgment that C.C.C. 2323.13 and 2323.171 violate R.C. 9.68. The complaint asserted that appellants were not-for-profit Ohio corporations and were composed of firearm owners across Ohio, "including members who [were] taxpayers of the [c]ity of Columbus."

{¶ 4} The complaint asserted two causes of action. In the first, appellants and Witt sought injunctive relief against enforcement of the ordinances through a statutory-taxpayer action, as permitted by R.C. 733.59. In support, appellants and Witt alleged that the implementation of the ordinances "resulted in, or is imminently likely to result in, the misapplication (and an inappropriate and unlawful expenditure) of funds of the City, by virtue of efforts by the City to advertise and promote the Ordinances, enforce the Ordinances, implement the Ordinances and defend the Ordinances." They also asserted that the ordinances were "an abuse of the City's home rule power" and "involved, or [were] reasonably likely to involve, execution of contracts with third parties concerning the advertisement, enforcement, and implementation of the unlawful provisions therein, including but not limited to contracts for public defenders for indigent defendants charged with violating the Ordinances." Appellants and Witt alleged that they were seeking "to enforce the public right of the people to keep and bear arms and all peripheral rights guaranteed to them by the Constitution of Ohio, the Constitution of the United States of America and R.C. 9.68."

{¶ 5} In the second cause of action, appellants and Witt asserted that they were entitled, pursuant to R.C. 9.68, to a declaration that the ordinances are unlawful, "as well as every other ordinance enacted, promulgated and/or maintained by Defendant City that purports to regulate the right of a person to possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components and ammunition." Appellants and Witt also requested an award of attorney fees under R.C. 9.68.

{¶ 6} In tandem with filing the complaint, appellants and Witt also moved for a temporary restraining order against the city and a preliminary injunction, both of which sought to preclude the city from enforcing C.C.C. 2323.13 and 2323.171. The trial court granted the temporary restraining order, enjoining the city from all enforcement activity associated with C.C.C. 2323.13 and 2323.171. In opposition to the preliminary-injunction motion, the city argued, in part, that appellants and Witt had little chance of success on the merits because they lacked standing to bring their claims.

{¶ 7} After a hearing on the preliminary injunction, the trial court held that Witt had taxpayer standing under R.C. 733.59. Because the city's ordinances "directly impact the rights" of appellants' members, the trial court also found that appellants had organizational standing. The trial court ultimately found C.C.C. 2323.171 to be unconstitutional and granted a permanent injunction enjoining its enforcement. However, the trial court denied injunctive relief regarding C.C.C. 2323.13.

{¶ 8} On appeal, the city challenged the trial court's finding that appellants and Witt had standing. The Tenth District Court of Appeals agreed with the trial court that Witt had taxpayer standing for injunctive relief under R.C. 733.59 but concluded that appellants had failed to establish that they had standing under R.C. 733.59, R.C. 9.68, or R.C. Chapter 2721, Ohio's Declaratory Judgment Act.1 2019-Ohio-3105, 140 N.E.3d 1215, ¶ 46.

{¶ 9} Appellants sought discretionary review, and we accepted the following proposition of law: "A nonprofit firearms-rights association has standing to challenge as unconstitutional municipal ordinances that violate R.C. 9.68 by maintaining an action for declaratory and injunctive relief under R.C. 9.68, R.C. 733.59, and/or Ohio Revised Code Chapter 2721." See 157 Ohio St.3d 1495, 2019-Ohio-4840, 134 N.E.3d 1210.

{¶ 10} On December 18, 2019, while this appeal was pending, the city repealed C.C.C. 2323.171. See Columbus Ordinance 3189-2019. The city explained in its merit brief that it repealed the ordinance because the United States Bureau of Alcohol, Tobacco, Firearms, and Explosives had issued a rule stating that a firearm with a bump-stock accessory is a "machinegun," the possession of which is already a felony under federal and state law.

II. Analysis

{¶ 11} As a threshold matter, we address the city's assertion that appellants' claims regarding C.C.C. 2323.171, the bump-stock ordinance, are moot because that ordinance was repealed while this appeal was pending. Appellants argue that because the city has not repealed the weapons-under-disability ordinance, C.C.C. 2323.13, and there is a reasonable probability that the city will attempt to enact a similar ordinance to the bump-stock ordinance in the future, this appeal is not moot. Moreover, appellants argue that they may still be entitled to an award of attorney fees under R.C. 9.68(B). We find that the issue whether appellants have standing remains relevant to the resolution of attorney fees related to appellants' challenge to C.C.C. 2323.171. Thus, we proceed to determine the question of standing.

A. Standing

{¶ 12} It is well established that prior to an Ohio court's considering the merits of a legal claim, "the person or entity seeking relief must establish standing to sue." Ohio Pyro, Inc. v. Ohio Dept. of Commerce, Div. of State Fire Marshal , 115 Ohio St.3d 375, 2007-Ohio-5024, 875 N.E.2d 550, ¶ 27. At a minimum, common-law standing requires the litigant to demonstrate that he or she has suffered (1) an injury (2) that is fairly traceable to the defendant's allegedly unlawful conduct and (3) is likely to be redressed by the requested relief. Moore v. Middletown , 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22. Standing does not turn on the merits of the plaintiffs' claims but rather on "whether the plaintiffs have alleged such a personal stake in the outcome of the controversy that they are entitled to have a court hear their case." ProgressOhio.org, Inc. v. JobsOhio , 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, ¶ 7. Standing may also be conferred by statute. Middletown v. Ferguson , 25 Ohio St.3d 71, 75, 495 N.E.2d 380 (1986). Whether appellants have established standing is a question of law, which we review de novo. See Moore at ¶ 20, citing Cuyahoga Cty. Bd. of Commrs. v. State , 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.

{¶ 13} Standing " "is not dispensed in gross;" " it must be demonstrated for each claim and each form of relief. Preterm-Cleveland, Inc. v. Kasich , 153 Ohio St.3d 157, 2018-Ohio-441, 102 N.E.3d 461, ¶ 30, quoting Davis v. Fed. Election Comm. , 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.E.2d 737 (2008), quoting Lewis v. Casey , 518 U.S. 343, 358, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996), fn. 6. Here, appellants asserted two claims for relief in their complaint: (1) a statutory taxpayer action for injunctive relief under R.C. 733.59 and (2) a declaratory-judgment action based on the argument that R.C. 9.68 provides them the right to challenge the ordinances. Appellants assert that as nonprofit firearms-rights associations, they have standing to challenge municipal ordinances that violate R.C. 9.68. They do not, however, seek to establish standing through traditional common-law principles. Instead, appellants claim that they have standing through three...

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