Motion to Set Hearing in OHIO ENVIRONMENTAL COUNCIL Vs THE STATE OF OHIO ET AL VS.THE STATE OF OHIO ET AL| Trellis.Law

On April 06, 2023 a Motion-Secondary was filed involving a dispute between and for OTHER CIVIL in the District Court of Franklin County.

Preview
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - Aé

IN THE COURT OF COMMON PLEAS
FRANKLIN COUNTY, OHIO

Ohio Environmental Council,
etal.,

Plaintiffs, Case No. 23-CV-2403

-vs-
JUDGE COCROFT
THE STATE OF OHIO,
etal.,

Defendants.

MERIT BRIEF OF PLAINTIFFS OHIO ENVIRONMENTAL COUNCIL,
BUCKEYE ENVIRONMENTAL NETWORK, OHIO VALLEY ALLIES
AND SIERRA CLUB
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

TABLE OF CONTENTS

I INTRODUCTION
IL. STATEMENT OF FACTS
A. Background on Ohio’s Legislative Process
B. Legislative History of H.B. 507..
1. First introduced in the House as a2 Poultry Bill, H.B. 5077 ase the House as an
Agriculture & Food Purity Bill
2. The Senate considered Original H.B. 507 twice and heldId public hearings 0on
Original H.B. 507—all related only to Agriculture & Food Purity.
3. The Senate Committee transformed H.B. 507 by adding new distinct
subject-matter including the Mandatory Leasing Provision and the
Green Energy Provision
4. The Senate passed Substitute H.B. 507 on the same day it was reported out of
Committee, the House concurred six days later, and Governor Mike DeWine
signed H.B. 507 into law
Ill. ARGUMENT...
A. HB. 507 Violates the One-Subject Rule
R Ie by Contig Unrelated Tpit that
Share No Rational or Legitimate Connection.
B. HB. 507 Violates the Three-Consideration Rule of the Ohio Constitution 12
C. Plaintiffs Have Standing to Bring the Present Action 1S
1. Plaintiffs have direct organizational standing 15
2. Plaintiffs have associational standing 18
a. Ohio’s unconstitutional actions injured Plaintiffs’ members 18
b. The Mandatory Leasing Provision injures Plaintiffs’ members 21
i. Property Injuries 22
ii. Business and Professional Injuries 24
iii. Aesthetic and Recreational Injuries 24
iv. Procedural Injuries 27
c. The Green Energy Provision injures Plaintiffs’ members 27
d. Ohio caused Plaintiffs’ members’ injuries by unconstitutionally enacting
HB. 507, and the declaratory and injunctive relief requested will redress
their injuries. 28
3. This suit is germane to Plaintiffs’ organizational purposes and does not
require the participation of individual members 29
IV. CONCLUSION
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

TABLE OF AUTHORITIES
Page(s)

Federal Cases

Am. Canoe Assn. v. City of Louisa Water & Sewer Comm
389 F.3d 536 (6th Cir. 2004) 25

Fair Hous. Council v. Village of Olde St. Andrews.
210 F. App'x 469 (6th Cir. 2006) 16

Friends of the Earth v. Laidlaw Environmental Services,
528 U.S. 167 (2000) 24

Havens Realty Corp. v. Coleman.
455 US. 363 (1982) 16

Lujan v. Defenders of Wildlife.
504 U.S. 555 (1992) 26

United Food & Commercial Workers Union Loc. 751 v. Brown Grp., Inc.
517 USS. 544 (1996) 30

State Cases

Akron Metro. Hous. Auth. Bd. of Trustees v. State.
10th Dist. Franklin No. O7AP-738, 2008-Ohio-2836 11, 12

Burger Brewing Co. v. raqnor Control
C Comm., Pept of haquor Control,
34 Ohio St. 2d 93 (1973)...
Community Hosps. & Wellness Ctrs. v. State.
Williams C.P. No. 16 CI 128 (Feb. 13, 2019) 19

Community Hosps. & Wellness Ctrs. v. State
151 N.E.3d 1113, 2020-Ohio-401 (6th Dist.) 14, 19

State ex rel. Dix v. Celeste.
11 Ohio St.3d 141 (1984) 7, 8, 12,21

State ex rel. Food & Water Watch & FreshWater Accountability Project v. State.
10th Dist. Franklin No. 14AP-958, 2016-Ohio-3135 24

State ex rel. Food & Water Watch v. State
153 Ohio St.3d 1, 2018-Ohio-555 18

State ex rel. Hinkle v. Franklin Co Ba. of Elections,
62 Ohio St.3d 145 (1991)... 11, 12

i
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

Hoover v. Bd. of Cty. Commrs., Franklin CH ;
19 Ohio St. 3d 1 (1985)... 13, 15, 21, 28

Linndale v. State.
19 N.E.3d 935, 2014-Ohio-4024 (10th Dist.) 11

Magda vy. Ohio Elections Comm.
2016-Ohio-5043 (10th Dist.) 18, 19

Moore v. Middletown.
133 Ohio St. 3d 55 (2012) 15, 22

Inre Nowak,
104 Ohio St.3d 466 (2004) 7, 12,28

State ex rel. Ohio Academy fir
Triali Laniyers vy. Sheward,
86 Ohio St.3d 451 (1999) . passim

State ex rel. Ohio AFL-CIO v. Voinovich,
69 Ohio St. 3d 225 (1994) 1, 13,21

State ex rel. Ohio Civ. Serv. Emps. Assn., AFSCME, Local 11, AFL-CIO vy. State
Emp. Relations Bd.
104 Ohio St.3d 122

State ex rel. Ohio Civ. Serv. Emps. Assn. v. State
146 Ohio St.3d 315

Ohio Democratic Party v. LaRose.
159 N.E.3d 1241, 2020-Ohio-4778 (10th Dist.) 16, 24

State ex rel. Ohio History Connection v. Moundbuilders Country Club Co.
2022-Ohio-4345

Ohio Licensed Beverage Assn. v. Ohio Dep't of Health.
10th Dist. Franklin No. 07AP-490, 2007-Ohio-7147 24, 30

Ohio Trucking Assn. v. Charles,
134 Ohio St. 3d 502, 2012-Ohio-5679. 18

Riverside v. State.
190 Ohio App.3d 765 (10th Dist.)

Sessions v. Skelton.
163 Ohio St. 409 (1955)

State ex rel. Walgate v. Kasich,
147 Ohio St. 3d 1, 2016-Ohio-1176 28

i
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

Youngstown City School Dist. Bd. of Edn. v. State,
161 Ohio St. 3d 24, 2020-Ohio-2903............. cee 13, 14
State Statutes

Rev. Code § 1.61... 11

Constitutions

Ohio Constitution Article II, Section 15(C)............ 1, 12, 13, 15
Ohio Constitution Article II, Section 15(D)........... ceed, 7
Other Authorities

Ohio Legislature, House Bill 507 Committee Activity,
https://www.legislature.ohio.gov/legislation/134/hb507/committee (accessed
May 3, 2023)...
Ohio Legislature, Zhe Legislative Process,
https://www.legislature.ohio. gov/publications/the-legislative-process
(accessed May 2, 2023)...........

iv
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

I. INTRODUCTION

After months of considering House Bill 507 (“H.B. 507”), first as a poultry bill and then

as a bill limited to the topics of agriculture and food purity, the Senate substituted a multi-subject

bill during the lame-duck session that the General Assembly enacted a mere six days later. This

new, last-minute H.B. 507 mandated the leasing of public lands for oil and gas development and

defined green energy to include energy produced from natural gas. The Senate’s last-minute,

substantive, and vital alteration of H.B. 507 violates the one-subject rule and three-consideration

tule enshrined in Ohio’s Constitution, upon which Plaintiffs and their members rely

Accordingly, and for the reasons explained herein, Plaintiffs ask this Court to grant declaratory

relief finding H.B. 507 unconstitutional and therefore void

IL. STATEMENT OF FACTS

A. Background on Ohio’s Legislative Process

The Ohio Constitution is the fundamental law of the state of Ohio. Article II of Ohio’s

Constitution governs the general assembly and Ohio’s legislative process. Article II requires

every bill to be limited to one subject clearly stated in its title. Article II, Section 15(D). Each

chamber of the General Assembly must consider every bill on three different days, unless two-

thirds of the members of the chamber in which the bill is pending suspend this requirement.

Article II, Section 15(C). Every consideration of a bill, or action suspending the three-

consideration requirement, must be recorded in the legislative journal for the respective chamber

Amendments that “vitally” alter a bill must also receive three considerations in each chamber.

State ex rel. Ohio AFL-CIO vy. Voinovich, 69 Ohio St. 3d 225, 233-34, 631 N.E. 2d 582 (1994)

Committee activity is not recorded in the legislative journal.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

The first reading of a bill’s title upon its introduction in a chamber constitutes the bill’s

first consideration. The chamber’s referral of the bill to one of its standing committees

constitutes the second consideration. The chamber’s debate and final vote on a bill, after the

committee reports a bill back, constitutes the third consideration. After three considerations in

one chamber, the other chamber must consider the bill three times before it becomes law. See

Ohio Legislature, 7he Legislative Process, ‘Sn

: (accessed May 2, 2023).

After a bill passes both chambers, the Speaker of the House and President of the Senate

sign the bill, which then becomes an act presented to the Governor for signature. An act signed

by the Governor becomes effective 91 days after it is filed with the Secretary of State for final

enrollment. /d. Once the Governor signs a bill, public advocacy cannot change the language of

the act or stop it from becoming effective.

B. Legislative History of H.B. 507

The timeline below provides the legislative history of H.B. 507 based on each chamber’s

legislative journals and the Ohio General Assembly’s webpage for Committee Activity. See Ohio

Legislature, House Bill 507 Committee Activity,

Re (accessed May 3, 2023)

[hereinafter “Committee Activity”].
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

Timeline of H.B. 507

:
c
.>
LUG CK SSWNSS

SN AN WGN SG NGS

Feb. 15-Mar. 30, 2022 a \“AN \S
House Committee has four
yO. WN
hearings on the Poultry Bill
S
A\N\
KK AN\ WN
AN a

ne e
LEGEND
Poultry Bill
Original H.B. 507
Substitute H.B.
507
HB. 507

1. First introduced in the House as a Poultry Bill, H.B. 507 passed the House as
an Agriculture & Food Purity Bill.

When first introduced on December 8, 2021, H.B. 507 was just over a page long and

titled “A Bill to amend section 925.62 of the Revised Code to revise the number of poultry

chicks that may be sold in lots.” Compl. {J 61-62; Dec. 8, 2021 House Journal at 2107 (Compl

exhibit No. 16); H.B. 507 As Introduced (Compl. exhibit No. 14). Purposed to address supply

chain issues in agriculture, H.B. 507—a chicken bill “so simple, it only changes one word in the

Ohio Revised Code”—reduced the minimum amount of lots of poultry younger than four weeks

of age that may be sold, given away, or otherwise distributed from six to three lots. See Compl. J
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

63; H.B. 507 As Introduced (Compl. Exhibit No. 14); Statement of Representative Kyle Koehler

to House Committee (Feb. 15, 2022), exhibit No. 1. Upon its introduction in the House, the

chicken bill was referred to the House Standing Committee on Agriculture and Conservation

(“House Committee”). See Compl. § 64.

On March 31, 2022, the House Committee reported back a substitute version of H.B. 507

and recommended its passage. /d. | 64; Mar. 31, 2022 House Journal at 2656 (Compl. Exhibit

No. 17). The House’s substitute version amended Title 9 of the Revised Code, pertaining to

agriculture, and Title 37, pertaining to food purity. Compl. J] 65-67. On April 6, 2022, after

three considerations, the House passed this version of the bill that pertained solely to agriculture

and food purity (“Original H.B. 507”). Jd. (Compl. Exhibit No. 19).

2. The Senate considered Original H.B. 507 twice and held public hearings on
Original H.B. 507—all related only to Agriculture & Food Purity.

Original H.B. 507 went to the Senate on April 12, 2022, and the Senate referred the bill

to its standing committee on Agriculture and Natural Resources (“Senate Committee”) on May

18, 2022. See Apr. 12, 2022 Senate Journal at 1990, exhibit No. 2; May 18, 2022 Senate Journal

at 2011-12, exhibit No. 3; See Compl. J 70. Thus, the Senate considered Original H.B. 507 on

two separate days: (1) the day of its introduction in the Senate and (2) the day of its referral to

committee.

The Senate Committee had four hearings on Original H.B. 507. See Committee Activity.

All testimony at these hearings pertained to the poultry provision and other agricultural

provisions. /d. The Senate Committee remained in control of Original H.B. 507 for over seven

months without altering the bill.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

3. The Senate Committee transformed H.B. 507 by adding new distinct subject-
matter including the Mandatory Leasing Provision and the Green Energy
Provision.

In the less than 24 hours between the Senate Committee’s final hearing on Original H.B.

507 on December 6, 2022, and December 7, 2022, the Senate Committee bloated the 20-page

Original H.B. 507 to an 80-page bill covering numerous distinct subjects (“Substitute H.B.

507”). See Committee Activity; see also Dec. 7, 2022 Senate Journal at 2293-94 (Compl. exhibit

No. 20); Substitute H.B. 507 (Compl. exhibit No. 21); Compl. {| 71-80. Substitute H.B. 507

diverged from Original H.B. 507’s subjects of agriculture and food purity, adding entirely new

subjects, including: electric utilities, the licensing of environmental health specialists, the

licensing of auctioneers, the towing and storage of motor vehicles by conservancy district police

departments, and the leasing of Ohio’s public lands for oil and gas development. Substitute H.B

507 at 1 (Compl. exhibit No. 21).

Substitute H.B. 507 included two provisions of particular concern to Plaintiffs: (1) the

“Mandatory Leasing Provision” and (2) the “Green Energy Provision.” The Mandatory Leasing

Provision requires state agencies to lease public lands “in good faith” to any interested party

meeting minimal statutory requirements. Substitute H.B. 507 at 2-3 (Compl. exhibit No. 21);

Compl. {ff 47-48. Ohio’s Legislative Service Commission’s Final Analysis of the bill states that

“[t]he act requires, rather than authorizes, every state agency to lease agency-owned or

controlled oil and gas resources for development,” and that “[t]he state agency must enter into

the lease in good faith...” Exhibit No. 4 at 10 (emphasis added). The inclusion of “in good faith”

does not provide the State with discretion not to lease. Such a reading would render meaningless

the bill’s change of the word “may” to “shall.” “Good faith” means the “observance of

reasonable commercial standards of fair dealing in a given trade or business,” as demonstrated
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A7

by behavior “that conforms with justified expectations.” See State ex rel. Ohio History

Connection v. Moundbuilders Country Club Co., 2022-Ohio-4345, J 31, reconsideration

denied, 168 Ohio St.3d 1477, 2022-Ohio-4586, 199 N.E.3d 561. The phrase “shall lease” sets the

expectation that the State must lease. Its “in good faith” modifier makes clear that the State must

comply with that expectation by proceeding with leasing according to reasonable commercial

standards of fair dealing in the oil and gas industry

The Green Energy Provision defines “green energy” as follows: “any energy generated

by using an energy resource that does one or more of the following: (a) Releases reduced air

pollutants, thereby reducing cumulative air emissions; (b) Is more sustainable and reliable

relative to some fossil fuels. ‘Green Energy’ includes energy generated by using natural gas as a

resource.” Substitute H.B. 507 at 84-85 (Compl. exhibit No. 21); Compl. {| 2.

4. The Senate passed Substitute H.B. 507 on the same day it was reported out of
Committee, the House concurred six days later, and Governor Mike DeWine
signed H.B. 507 into law.

On December 7, 2022—during a lame duck session—the Senate Committee reported

Substitute H.B. 507 back to the full Senate for the first and only time and recommended its

passage. The Senate passed Substitute H.B. 507 that same day. Dec. 7, 2022 Senate Journal at

2281-82, 2293-94 (Compl. exhibit No. 20). The House then passed Substitute H.B. 507 on

December 13, 2022, just six days later. Dec. 13, 2022 House Journal at 3171-73 (Compl. exhibit

No. 22). Governor Mike DeWine signed H.B. 507 into law on January 6, 2023. Answer § 88.

il. ARGUMENT

Plaintiffs pray for (1) a declaration that H.B. 507 is unconstitutional under the one-

subject rule; and (2) a declaration that H.B. 507 is unconstitutional under the three-consideration

tule. R.C. 2721.03 provides that “any person whose rights, status, or other legal relations are
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

affected by a * * * statute” may have determined “any question of construction or validity arising

under the [statute] * * * and obtain a declaration of rights, status, or other legal relations under

it.” “The remedy afforded by the Declaratory Judgments Acct is to be liberally construed and

freely applied.” Sessions v. Skelton, 163 Ohio St. 409, 419, 127 N.E.2d 378, 56 0.0. 370 (1955);

RC. 2721.13. Plaintiffs are entitled to a declaration that H.B. 507 is unconstitutional because the

statute violates the one-subject rule and three-consideration rule of the Ohio Constitution, they

have standing to bring this present action, and this action presents a real, justiciable controversy

necessitating speedy relief to preserve the rights of Plaintiffs and their members. See Burger

Brewing Co. v. Liquor Control Comm., Dept. of Liquor Control, 34 Ohio St. 2d 93, 97, 296

NE.2d 261 (1973).
A. H.B. 507 Violates the One-Subject Rule by Containing Unrelated Topics that
Share No Rational or Legitimate Connection.

The one-subject rule of Article II, Section 15(D) of the Ohio Constitution provides that

“[n]Jo bill shall contain more than one subject, which shall be clearly expressed in its title.” The

purpose of the one-subject rule is to prevent “logrolling,” the practice of several minorities

combining proposals, and thus consolidating votes to obtain a majority for a bill where no single

proposal could have obtained approval. State ex rel. Dix v. Celeste, 11 Ohio St.3d 141, 142-43,

464 N.E.2d 153 (1984). “The one-subject provision attacks logrolling by disallowing unnatural

combinations of provisions in acts, i.e., those dealing with more than one subject, on the theory

that the best explanation for the unnatural combination is a tactical one—logrolling.” Jn re

Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, 820 N.E.2d 335, 71, quoting Dix at 143.
“[I]dentification of a bill's subject is a question of law,” requiring no fact finding. See State ex

rel. Ohio Civ. Serv. Emps. Assn. v. State, 146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, J

21. Accordingly, a court must assess an act’s constitutionality based entirely “on the particular
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

language and subject of the act rather than extrinsic evidence of fraud or logrolling.” Riverside v.

State, 190 Ohio App.3d 765, 2010-Ohio-5868, 944 N.E.2d 281, 4 39 (10th Dist.).
An act containing provisions lacking a common purpose for no “discernible practical,
39 «6,
rational, or legitimate reason must necessarily be held to be invalid in order to effectuate the

purpose of the [one-subject] rule.” Dix at 145. The Ohio Supreme Court explained that one-

subject rule issues:

can be perceived as points along a spectrum. At one end, closely related topics unite
under a narrowly denominated subject. As the topics embraced in a single act
become more diverse, and as their connection to each other becomes more
attenuated, so the statement of subject necessary to comprehend them broadens and
expands. There comes a point past which a denominated subject becomes so
strained in its effort to cohere diverse matter as to lose its legitimacy as such. It
becomes a ruse by which to connect blatantly unrelated topics. At the farthest end
of this spectrum lies the single enactment which endeavors to legislate on all
matters under the heading of “law.”

State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 499, 715 N.E.2d

1101 (1999). The Court in Sheward held that a tort and civil justice reform statute fell toward the

latter end of the spectrum and violated the one-subject rule because the bill amended a sweeping

variety of “blatantly unrelated” titles and Revised Code chapters. /d. at 498. Even in the context

of appropriations bills, where courts give more leeway in combining separate topics, the Ohio

Supreme Court has found one-subject violations where there was no rational reason for the

combination. See State ex rel. Ohio Civ. Serv. Emps. Assn., AFSCME, Local 11, AFL-CIO v.

State Emp. Relations Bd., 104 Ohio St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, ff 32-35

Like the bill at issue in Sheward, H.B. 507 contains completely unrelated topics and

amends unconnected titles and chapters of the Revised Code. When first introduced in the House

in December of 2021, H.B. 507 had the following title: a bill “[t]o amend section 925.62 of the

Revised Code to revise the number of poultry chicks that may be sold in lots.” H.B. 507 As
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

Introduced at 1 (Compl. exhibit No. 14). Consistent with the title, the bill only amended R.C

925.62 to change the minimum number of young poultry lots that can be sold from six to three

lots. /d. In April of 2022, the House amended and passed a substitute bill with the following title

To amend sections 913.04, 913.28, 915.01, 915.03, 915.14, 915.18, 915.20, 925.21,
925.62, 3715.041, 3715.07, 3715.27, 3715.33, 3715.36, and 3715.99; to amend, for
the purpose of adopting a new section number as indicated in parentheses, section
3715.36 (3715.34); and to repeal sections 913.27, 915.04, 915.05, 915.06, 915.07,
915.08, 915.19, 915.21, 925.26, 925.27, 925.28, 925.52, 925.56, 925.61, 3715.14,
3715.15, 3715.16, 3715.17, 3715.18, 3715.19, 3715.20, 3715.34, 3715.35, and
3715.37 of the Revised Code to revise specified provisions of agriculture law.

Original H.B. 507 at 1 (Compl. exhibit No. 18); Answer § 66. The title only referenced the

subject of agriculture law and the amendments dealt entirely with food storage and safety. See id;

see also Ohio Legislative Service Commission, Bill Analysis, Version: As Passed by the House,

exhibit No. 5. Original H.B. 507 did not include any provisions governing energy, utilities, or

natural resources. H.B. 507 stayed that way until the lame duck session of December of 2022,

when the Senate abruptly amended H.B. 507—more than tripling its size and dramatically

altering its scope—to contain multiple new and unrelated subjects. The Senate gave its substitute

bill the following title:

To amend sections 155.33, 913.04, 913.28, 915.01, 915.03, 915.14, 915.18, 915.20,
921.26, 925.21, 925.62, 3715.041, 3715.07, 3715.27, 3715.33, 3715.36, 3715.99,
3717.33, 3717.52, 4505.101, 4505.104, 4513.60, 4513.601, 4513.61, 4513.62,
4513.63, 4513.64, 4513.65, 4513.66, 4513.69, 4707.02, 4928.01, and 4928.645; to
amend, for the purpose of adopting a new section number as indicated in
parentheses, section 3715.36 (3715.34); and to repeal sections 913.27, 915.04,
915.05, 915.06, 915.07, 915.08, 915.19, 915.21, 925.26, 925.27, 925.28, 925.52,
925.56, 925.61, 3715.14, 3715.15, 3715.16, 3715.17, 3715.18, 3715.19, 3715.20,
3715.34, 3715.35, and 3715.37 of the Revised Code to revise specified provisions
of agriculture law, to define green energy, to exclude natural gas from receiving
renewable energy credits, to revise the law governing environmental health
specialists and environmental health specialists in training, and to allow
conservancy district police departments to take specified actions regarding the
towing and storage of motor vehicles.
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

Substitute H.B. 507 at 1-2 (Compl. Exhibit 21); Answer § 74. The title itself expresses five new

subjects in addition to agriculture law. The amendments also included the leasing of public lands

for oil and gas development (the Mandatory Leasing Provision), although this is not clearly

expressed in the title. Substitute H.B. 507 at 1 (Compl. exhibit No. 21). The Senate and the

House then passed Substitute H.B. 507, which the Governor signed into law unchanged.

Compare Substitute H.B. 507 (Compl. exhibit No. 21), with H.B. 507 as Enacted, (Compl

exhibit No. 24). Altogether, H.B. 507 amends 34 sections of the Revised Code under seven

separate and unrelated titles, combining, among other things, chapters governing poultry sales

and food storage with chapters governing leasing oil and gas on public lands and energy and

utilities. See H.B. 507 as Enacted at 39 (Compl. exhibit No. 24). The Ohio Legislature’s website

lists the different subject areas of the final bill as follows: agriculture; agriculture: animals;

agriculture: food regulations; commerce, environment and natural resources: oil and gas; human

health and services: public health; public safety; transportation: motor vehicles; and utilities.

Ohio Legislature, House Bill 507, Summary,

Wa 7 (accessed April 26, 2023) [hereinafter

“H.B. 507 Summary”).

There is no practical, rational, or legitimate reason for H.B. 507 to cover this broad and

varied subject matter. Requiring the leasing of public lands for oil and gas production and

amending the Public Utilities Code to define power generated from natural gas as “green energy’

bear no relationship to the original poultry provision governing minimum chickens sold, or to the

cold storage of foods (see H.B. 507 at 5-9 (Compl. exhibit No. 24), (amending R.C. 915.01,

915.03, 915.14, 915.18, 915.20, 921.26, and 925.21)), or to the enforcement of motor vehicle

10
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

laws (see H.B. 507 at 15-31, (Compl. exhibit No. 24), (amending to R.C. 4505.101, 4513.60-

1413.66, 4513.69))
Courts have consistently found one-subject rule violations where the different topics are

not connected in any rational way. State, ex rel. Hinkle v. Franklin Cty. Bd. of Elections, 62 Ohio

St.3d 145, 148, 580 N.E.2d 767 (1991) (a bill that primarily addressed the judicial system

violated the one-subject rule by including an amendment to the State’s liquor control law);

Linndale v. State, 2014-Ohio-4024, 19 N.E.3d 935, 18 (10th Dist.) (texting-while-driving

provision was unrelated to other portions of a bill originally regarding the number of judges or

courts in the state); Akron Metro. Hous. Auth. Bd. of Trustees v. State, 10th Dist. Franklin No.

07AP-738, 2008-Ohio-2836, § 23 (holding that revisions to separate laws relating to housing

authority boards, charter school extracurricular activities, and county and township local zoning

authority shared “no relationship or common purpose” with each other).

There is no legitimate reading of the term “agriculture” that includes oil and gas

development, energy, or utilities. The Ohio Revised Code defines “agriculture” as follows

As used in any statute except section 303.01 or 519.01 of the Revised Code,
“agriculture” includes farming; ranching; aquaculture; algaculture meaning the
farming of algae; apiculture and related apicultural activities, production of honey,
beeswax, honeycomb, and other related products; horticulture; viticulture,
winemaking, and related activities; animal husbandry, including, but not limited to,
the care and raising of livestock, equine, and fur-bearing animals; poultry
husbandry and the production of poultry and poultry products; dairy production;
the production of field crops, tobacco, fruits, vegetables, nursery stock, ornamental
shrubs, ornamental trees, flowers, sod, or mushrooms; timber; pasturage; any
combination of the foregoing; the processing, drying, storage, and marketing of
agricultural products when those activities are conducted in conjunction with, but
are secondary to, such husbandry or production; and any additions or modifications
to the foregoing made by the director of agriculture by rule adopted in accordance
with Chapter 119. of the Revised Code.

R.C. 1.61. Thus, the Revised Code’s definition of agriculture “as used in any statute” does not

contain any reference to natural gas leasing, drilling, or production, or to energy generation and

11
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

utilities. The title of H.B. 507 itself lists different subjects apart from agriculture, as does the

Ohio Legislature’s Website in its Summary section. See H.B. 507 Summary.

Courts have consistently rejected attempts to cure one subject rule violations with broad

topic areas. See Nowak at J 61 (rejecting the argument that a bill's topics all dealt with

individuals' ownership interest in both real and personal property, finding the topic was overly

broad and could not provide rationale for combining the topics); Hinkle at 148 (rejecting the

argument that a bill covering judicial offices and a provision in liquor control law governing the

local option for the sale of liquors all fall under election matters, stating the combination “is akin

to saying that securities laws and drug trafficking penalties have sales in common—the

connection is merely coincidental.”); Akron at § 21 (rejecting the argument that all topics within

a bill were tied together by the common theme of “modifying local authority,” and accepting the

trial court's reasoning that such an argument was “far too vague...”).

Any attempt to connect the range of topics in H.B. 507 under one subject is “a ruse by

which to connect blatantly unrelated topics.” Sheward, 86 Ohio St.3d at 499, 715 N.E.2d 1101.

Altogether, H.B. 507 combined subjects from agriculture, to energy and utilities, to the

development of oil and gas resources on public land, for no “discernible practical, rational, or

legitimate reason,” and thus “must necessarily be held to be invalid in order to effectuate the

purpose of the [one-subject] rule.” See Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, 820 N.E.2d

335, at ¥ 44; Dix, 11 Ohio St.3d at 145, 464 N.E.2d 153.

B. H.B. 507 Violates the Three-Consideration Rule of the Ohio Constitution.

Article II, Section 15(C) of the Ohio Constitution provides that “[e]very bill shall be

me
considered by each house on three separate days [Where it can be proven that the bill in

question was not considered the required three times, the consequent enactment is void and

12
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

without legal effect.” Hoover v. Bd. of Cty. Commrs., Franklin Cty., 19 Ohio St. 3d 1, 3, 482

N.E.2d 575 (1985). Plaintiffs can prove a violation of the three-consideration rule where, as here,

“the legislative journal does not reflect the requisite three considerations in each house of the bill

in the form in which it was eventually enacted.” /d. at 5. The three-consideration rule applies

“unless two-thirds of the members elected to the house in which it is pending suspend this

requirement,” which must be recorded in the appropriate Legislative Journal. /d.; Ohio

Constitution, Article II, Section 15(C).

The purpose of the three-consideration rule is “to prevent hasty action and to lessen the

danger of ill-advised amendment at the last moment.” Voinovich, 69 Ohio St. 3d at 233, 631 N.E

2d 582 (quoting Hoover at 8 (Douglas, J., concurring)). The three-consideration rule “provides

time for more publicity and greater discussion and affords each legislator an opportunity to study

the proposed legislation, communicate with his or her constituents, note the comments of the

press and become sensitive to public opinion.” /d. at 233-34. Thus, the three-consideration rule

helps “to ensure well-reasoned legislation.” Hoover at 8 (Douglas, J., concurring)

Amendments that “vitally alter” the substance of a bill such that there is “no longer a

common purpose or relationship between the original bill and the bill as amended” require three

considerations. Voinovich at 233; see also Youngstown City School Dist. Bd. of Edn. v. State,

2020-Ohio-2903, 161 Ohio St. 3d 24, 161 N.E.3d 483, ¥ 15 (“a court's key consideration should

be whether the bill maintained a common purpose both before and after its amendment”).

To determine whether legislation violates the three-consideration clause, a court must

look “to the underlying purpose of the three-consideration provision.” Voinovich at 233. The

legislative history of H.B. 507 exhibits the precise “hasty action” and “ill-advised amendment[s]

at the last moment” that the three-consideration rule is purposed to prevent. See id. at 233-34.

13
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

Between H.B. 507’s introduction in the House in December of 2021 and the Senate’s final

committee hearing on December 6, 2022, all activity regarding H.B. 507 related to the bill’s

poultry provisions or other provisions directly pertaining to agriculture and food purity. See

Timeline of H.B. 507, supra at 3. It was not until December 7, 2022, that the Senate reported

back Substitute H.B. 507, a vitally-altered bill containing 60 more pages of amendments

pertaining to at least six different subjects, including the leasing of public lands for oil and gas

development, the licensing of food establishments, motor vehicle enforcement, the licensing of

auctioneers, and public utilities. See Substitute H.B. 507 (Compl. exhibit No. 21)

The Senate’s amendments in Substitute H.B. 507 share no common purpose with

Original H.B. 507. See part II.A, supra. Ohio’s Sixth District addressed comparable legislation

in Community Hosps. & Wellness Ctrs. v. State, 2020-Ohio-401, 151 N.E.3d 1113 (6" Dist.). In

Community Hospitals, the Sixth District found the addition of a statutory provision known as

Ohio’s Price Transparency Law, which involved requirements for providers of medical services

to furnish cost estimates, had vitally altered a bill that otherwise pertained to budget and

operations of the workers’ compensation program. /d. ff 2, 71. In its reasoning, the court

rejected the State’s argument that the bill had a common subject of “the way care is paid for and

provided in Ohio,” and found that the bill, though it retained its original substance, had been

vitally altered by the addition of new, distinct subject matter lacking any common purpose with

the original bill. /d. at {| 50, 71. The same is true of H.B. 507: the Senate’s extensive and far-

reaching amendments including the Green Energy Provision and the Mandatory Leasing

Provision share no common purpose with Original H.B. 507’s agriculture and food purity issues.

Much like the hasty addition of the Price Transparency Law in Community Hospitals, the

vast majority of H.B. 507—including the Green Energy Provision and the Mandatory Leasing

14
Franklin County Ohio Clerk of Courts of the Common Pleas- 2023 May 05 3:54 PM-23CV002403
0G379 - A8&

Provision—went from non-existent to enacted in a period of six days. The Senate held no

committee hearings on Substitute H.B. 507, preventing public input on the amendments. See

Committee Activity. The day after holding its last hearing on Original H.B. 507, the Senate

reported out and passed Substitute H.B. 507. Dec. 7, 2022 Senate Journal at 2281-82, 2293-95

(Compl. exhibit No. 20). The House concurred only six days later, on the same day the House

first introduced Substitute H.B. 507, again preventing public input. Dec. 13, 2022 House Journal

at 3171-73 (Compl. exhibit No. 22). The Legislative Journal does not reflect a suspension of the

three-consideration requirement for H.B. 507, and only reflects a single consideration of

Substitute H.B. 507 in each chamber. Accordingly, Ohio’s enactment of H.B. 507 violated the

three-consideration rule and is therefore “void and without legal effect.” Hoover, 19 Ohio St. 3d

at 3-5, 482 N.E.2d 575; Ohio Constitution, Article II, Section 15(C).

C. Plaintiffs Have Standing to Bring the Present Action.

“Standing is defined at its most basic as a party's right to make a legal claim or seek

judicial enforcement of a duty or right.” Moore v. Middletown, 133 Ohio St. 3d 55 (2012), 2012-

Ohio-3897, 975 N.E.2d 977, § 21 (internal citations omitted). To establish traditional standing, a

party must show that it has “suffered (1) an injury that is (2) fairly traceable to the defendant's

allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.” /d. at J 22,

citing Lujan v. Defenders of Wild

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: OHIO ENVIRONMENTAL COUNCIL Vs THE STATE OF OHIO ET AL VS.THE STATE OF OHIO ET AL

Preview

Case Info

Parties