Ohioans for Concealed Carry, Inc. v. Columbus (Slip Opinion) , 2020 Ohio 6724 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Ohioans for Concealed Carry, Inc. v. Columbus, Slip Opinion No. 2020-Ohio-6724.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-6724
OHIOANS FOR CONCEALED CARRY, INC., ET AL., APPELLANTS, v. THE CITY OF
COLUMBUS ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Ohioans for Concealed Carry, Inc. v. Columbus, Slip Opinion
No. 2020-Ohio-6724.]
Civil law—Before an Ohio court may consider the merits of a legal claim, the
person seeking relief must establish standing—Court of appeals’ judgment
affirmed.
(No. 2019-1274—Submitted July 8, 2020—Decided December 18, 2020.)
APPEAL from the Court of Appeals for Franklin County,
No. 18AP-605, 2019-Ohio-3105.
________________
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
SUPREME COURT OF OHIO
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
2
January Term, 2020
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 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.
3
SUPREME COURT OF OHIO
{¶ 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 (10th Dist.).
{¶ 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
1. The court of appeals also found that OCC and BFF failed to establish standing under the public-
right doctrine. However, we declined review of appellants’ proposition of law challenging this
holding. In addition, appellants concede in their reply brief that “no ‘public rights’ standing
argument is present in this appeal.” Thus, we do not address the public-right-standing doctrine in
this decision.
4
January Term, 2020
that a firearm with a bump-stock accessory was 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 also 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,
5
SUPREME COURT OF OHIO
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. Ed. 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 alternative, statutory means: (1) statutory standing under
R.C. 9.68, (2) taxpayer standing under R.C. 733.59, and (3) statutory standing
under the Declaratory Judgment Act.
B. Standing Under R.C. 9.68
{¶ 14} Appellants assert several theories of standing under R.C. 9.68. We
first address appellants’ argument in their complaint that R.C. 9.68 provides them
with standing because it “provides Plaintiffs a private right of action to challenge
any ordinance, rule or regulation in conflict with it.”
{¶ 15} R.C. 9.68(A) states that the right to keep and bear arms is a
“fundamental individual right” that is a “constitutionally protected right in every
part of Ohio.” R.C. 9.68(A) also identifies the “need to provide uniform laws
throughout the state” regulating the ownership and possession of firearms. The
former version of R.C. 9.68(B), which was in effect at the time this case was filed,
6
January Term, 2020
also stated: “In addition to any other relief provided, the court shall award costs and
reasonable attorney fees to any person, group, or entity that prevails in a challenge
to an ordinance, rule, or regulation as being in conflict with this section.”2 Sub.H.B.
No. 347, 151 Ohio Laws, Part IV, 8138, 8140.
{¶ 16} Appellants assert that R.C. 9.68(B)’s reference to “any person,
group, or entity that prevails in a challenge to an ordinance,” means that anyone
may challenge an ordinance as being in conflict R.C. 9.68, and that the statute
thereby confers standing. The Tenth District rejected this argument, however,
noting that R.C. 9.68 is silent regarding standing or creating a cause of action. We
agree with the court of appeals.
{¶ 17} As this court noted in ProgressOhio.org, Inc., a statute’s silence “as
to who has standing to maintain a constitutional challenge to the legislation does
not render the statute ambiguous,” nor “will we read the statutory silence as clearly
expressing an intention to abrogate the common-law requirements for standing.”
139 Ohio St. 3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 22. Thus, even if we
read the language in former R.C. 9.68(B) to imply the availability of a cause of
action to challenge an ordinance, that would not abrogate the need for a “person,
group, or entity” to establish standing for purposes of pursuing a civil action under
that statute.
{¶ 18} Appellants also argue that they have standing under R.C. 9.68 to
challenge the ordinances in this case because they have established standing in
2. The General Assembly amended R.C. 9.68 in 2019, and the amendment became effective while
this appeal was pending. 2018 Am.Sub.H.B. No. 228. As amended, R.C. 9.68(B) expressly states
that “[a] person, group, or entity adversely affected by any manner of ordinance, rule, regulation,
resolution, practice, or other action enacted or enforced by a political subdivision in conflict with
division (A) of this section may bring a civil action against the political subdivision seeking damages
from the political subdivision, declaratory relief, injunctive relief, or a combination of those
remedies.” However, we limit our analysis to former R.C. 9.68(B) because that was the version in
effect when appellants filed their complaint. See R.C. 1.58(A)(1) (“The reenactment, amendment,
or repeal of a statute does not * * * [a]ffect the prior operation of the statute or any prior action taken
thereunder”).
7
SUPREME COURT OF OHIO
other cases challenging different ordinances. Indeed, appellants assert that this
court’s review of the merits in cases like Ohioans for Concealed Carry, Inc. v.
Clyde, 120 Ohio St. 3d 96, 2008-Ohio-4605, 896 N.E.2d 967, in which OCC was a
party, have already implicitly recognized OCC’s standing under R.C. 9.68. We
reject this argument.
{¶ 19} This court’s decision in Clyde has no bearing on the standing
analysis in this case. In Clyde, OCC filed an action seeking an injunction and an
order striking down a municipal ordinance that prohibited the carrying of concealed
handguns in Clyde city parks. Id. at ¶ 1, 19. This court ultimately concluded that
the ordinance was unconstitutional under the Home Rule Amendment, Article
XVIII, Section 3, of the Ohio Constitution, because the ordinance was an exercise
of the municipality’s police power that conflicted with a general law. Id. at ¶ 1.
{¶ 20} The fact that a party has established standing in a prior case does not
establish the party’s standing in every case filed thereafter. The question of
standing depends on whether the plaintiffs have alleged some basis—grounded in
common or statutory law—that entitles them to have a court hear their case. See
State ex rel. Dallman v. Franklin Cty. Court of Common Pleas, 35 Ohio St. 2d 176,
178-179, 298 N.E.2d 515 (1973), quoting Sierra Club v. Morton, 405 U.S. 727, 92
S. Ct. 1361, 31 L. Ed. 2d 636, 641 (1972) (“ ‘Where the party does not rely on any
specific statute authorizing invocation of the judicial process, the question of
standing depends upon whether the party has alleged such a “personal stake in the
outcome of the controversy,” Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 7
L. Ed. 2d 663 [1962], * * * as to ensure that “the dispute sought to be adjudicated
will be presented in an adversary context and in a form historically viewed as a
capable of judicial resolution,” Flast v. Cohen, 392 U.S. 83, 101, 88 S. Ct. 1942, 20
L. Ed. 2d 947 [1968] * * *’ ” [ellipses added in Dallman]). Thus, standing must be
determined on the allegations presented in each case.
8
January Term, 2020
{¶ 21} Finally, appellants also seem to contend that they have standing
simply because they are entitled to relief under R.C. 9.68 on the merits of their
challenge. Specifically, appellants argue in their merit brief that “[w]hether any
Plaintiff owned or planned to own any of the several firearm components banned
by the City * * * is entirely beside the point. Columbus undid what the General
Assembly did in enacting statewide preemption.” As we stated above, however,
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., 139
Ohio St. 3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 7.
{¶ 22} In sum, we find no basis under former R.C. 9.68, which was in effect
at the time this case was filed, to conclude that appellants have established standing
in this case.
C. Taxpayer Standing Under R.C. 733.59
{¶ 23} Appellants next argue that they have standing under R.C. 733.59 to
bring a taxpayer action for injunctive relief. When a statute provides for judicial
review, “ ‘the inquiry as to standing must begin with a determination of whether
the statute in question authorizes review at the behest of the plaintiff.’ ”
Middletown, 25 Ohio St. 3d at 75-76, 495 N.E.2d 380, quoting Sierra Club, 405
U.S. at 732, 92 S. Ct. 1361, 31 L. Ed. 2d 636. Accordingly, we begin with R.C.
733.59, which sets forth the prerequisites for a taxpayer’s action:
If the village solicitor or city director of law fails, upon the
written request of any taxpayer of the municipal corporation, to
make any application provided for in sections 733.56 to 733.58 of
the Revised Code, the taxpayer may institute suit in his own name,
on behalf of the municipal corporation.
9
SUPREME COURT OF OHIO
“Taxpayer,” as used in R.C. 733.59, contemplates and includes “ ‘any person who,
in a private capacity as a citizen, elector, freeholder or taxpayer, volunteers to
enforce a right of action on behalf of and for the benefit of the public.’ ” State ex
rel. White v. Cleveland, 34 Ohio St. 2d 37, 40, 295 N.E.2d 665 (1973), quoting State
ex rel. Nimon v. Springdale, 6 Ohio St. 2d 1, 215 N.E.2d 592 (1966), paragraph two
of the syllabus.
{¶ 24} Nowhere within the complaint do appellants allege that they are
citizens, electors, freeholders, or taxpayers themselves. Instead, they allege that
they are “not-for-profit Ohio corporation[s]” composed of “firearm owners across
the state of Ohio, including members who are taxpayers of the City of Columbus.”
Nevertheless, appellants argue that they have associational standing under R.C.
733.59 by virtue of Witt’s individual-taxpayer standing. Associational standing is
for organizations who sue on behalf of their members. See Peoples Rights Org.,
Inc. v. Columbus, 152 F.3d 522, 527 (6th Cir.1998) (“An association * * * can have
standing as a representative of its members”). Notably, however, appellants’
complaint does not allege that they are bringing a taxpayer action on behalf of Witt.
The complaint alleges that the letter sent to initiate the taxpayer action, as required
under the statute, was sent by “Plaintiff OCC and Plaintiff BFF, on behalf of
themselves, and Plaintiff Witt on behalf of himself.” (Emphasis added.) Here, it is
clear that appellants are suing on behalf of themselves. As a result, Witt’s
individual-taxpayer standing does not confer standing upon appellants.
{¶ 25} Appellants also argue that the Tenth District’s judgment must be
reversed because although the court stated that “Ohio courts have implicitly
recognized the standing of associations in statutory taxpayer actions,” 2019-Ohio-
3105, 140 N.E.3d 1215, at ¶ 37, it ignored appellants’ associational standing. And
allowing this judgment to stand would “undo legions of cases,” including State ex
rel. Fisher v. Cleveland, 109 Ohio St. 3d 33, 2006-Ohio-1827, 845 N.E.2d 500. We
disagree.
10
January Term, 2020
{¶ 26} Our decision in Fisher addressed only the specific standing
argument that had been presented in that case; namely, whether relators had
asserted a matter that concerned a public right or benefit. “A taxpayer action is
properly brought only when the right under review in the action is one benefitting
the public.” Id. at ¶ 10. In Fisher, the civil suit had been initiated by an individual,
Robert Fisher, and the Association of Cleveland Fire Fighters, Local 93 of the
International Association of Fire Fighters. Our analysis did not reach the issue
whether the Association of Cleveland Fire Fighters had properly asserted standing
as a taxpayer, either alone or on behalf of its individual member, because we
concluded that the action did not affect a public right. Id. ¶ 14.
{¶ 27} Here, appellants fail to identify the other cases that are purportedly
among the “legions” we would have to undo if we affirmed the court of appeals’
judgment. Nonetheless, we note that the court of appeals recognized that the cases
it cited in support of its statement that Ohio courts have implicitly recognized the
standing of organizations in taxpayer actions did not “directly address standing nor
inform what the associations alleged in their complaints, i.e., did they allege they
met the definition of taxpayer,” 2019-Ohio-3105, 140 N.E.3d 1215, at ¶ 37. Nor
did the cases address associational standing. See id., citing State ex rel. Jones v.
Hamilton Cty. Bd. of Commrs., 124 Ohio App. 3d 184, 187, 705 N.E.2d 1247 (1st
Dist.1997); Natl. Elec. Contrs. Assn. v. Mentor, 108 Ohio App. 3d 373, 380, 670
N.E.2d 1042 (11th Dist.1995).
{¶ 28} The court of appeals also cited Ohioans for Concealed Carry, Inc. v.
Cleveland, 2017-Ohio-1560, 90 N.E.3d 80 (8th Dist.). We find this case
instructive. In Ohioans for Concealed Carry, Inc., the Eighth District noted that
the requirement in R.C. 733.59 that a written request be served on the city law
director asking that he or she initiate suit on behalf of the city is a mandatory
prerequisite to a taxpayer action. Id. at ¶ 42. But OCC had sent the letter on the
individual plaintiff’s behalf, and R.C. 733.59 “does not authorize taxpayer actions
11
SUPREME COURT OF OHIO
by proxy,” id. at ¶ 43, and OCC “is not an individual taxpayer or citizen,” id. at
¶ 44. For these reasons, the court of appeals upheld the trial court’s determination
that the individual plaintiff lacked standing to pursue a taxpayer action because he
did not properly initiate the taxpayer action. Id.
{¶ 29} Here, the complaint alleged that Witt sent the letter to initiate the
taxpayer action on behalf of himself, and Witt’s taxpayer action in this case is
proceeding. And the complaint alleged that appellants sent the letter to initiate the
taxpayer action “on behalf of themselves.” Thus, appellants have not alleged a
taxpayer action on Witt’s behalf. Because they are not taxpayers in their own right,
they have not established standing to bring a taxpayer action for injunctive relief
under R.C. 733.59 to challenge the ordinances.
D. Standing Under the Declaratory Judgment Act
{¶ 30} Appellants also assert that they have standing under R.C. 2721.03 to
seek a declaration that the ordinances are unlawful. R.C. 2721.03 pertains only to
“person[s] whose rights, status, or other legal relations are affected by a
constitutional provision, statute, * * * [or] municipal ordinance.” The three
prerequisites to declaratory relief include “(1) a real controversy between the
parties, (2) justiciability, and (3) the necessity of speedy relief to preserve the
parties’ rights.” ProgressOhio.org, Inc., 139 Ohio St. 3d 520, 2014-Ohio-2382, 13
N.E.3d 1101, at ¶ 19; see also Moore, 133 Ohio St. 3d 55, 2012-Ohio-3897, 975
N.E.2d 977, at ¶ 49.
{¶ 31} Appellants argue that these requirements apply to them and that the
traditional standing requirements must “yield” here because they are seeking a
declaration that the city’s ordinances are unconstitutional. Consequently,
appellants argue that they do not need to show that they have actually been injured
or that they have suffered any particularized harm. Additionally, appellants assert
that they do not need to wait for the ordinances to be enforced before challenging
the constitutionality of the ordinances.
12
January Term, 2020
{¶ 32} Although a declaratory-judgment action generally contemplates that
the action is brought before an injury-in-fact has occurred, a plaintiff must
nonetheless demonstrate “actual present harm or a significant possibility of future
harm to justify pre-enforcement relief.” Peoples Rights Org., Inc. v. Columbus,
152 F.3d 522, 527 (6th Cir.1998). Certain impending injury is sufficient to obtain
preventative relief; a plaintiff need not wait for an injury to actually occur. Id.
{¶ 33} In Peoples Rights Org., Inc., the plaintiffs challenged in federal court
a Columbus City Code provision that prohibited the sale, transfer, acquisition, or
possession of any assault weapon. Id. at 527-528. The Sixth Circuit Court of
Appeals concluded that the individual plaintiffs established standing to pursue their
declaratory-judgment action based on a significant possibility of future harm. Id.
at 530-531. The court also determined that the organization plaintiff established
associational standing. Id. at 531. A review of the allegations in the complaint is
instructive.
{¶ 34} In that case, the organization plaintiff, Peoples Rights Organization,
Inc. (“PRO”), and two of its members brought a pre-enforcement action seeking a
declaration that a Columbus City Code provision prohibiting assault weapons was
unconstitutional. Id. at 526. PRO alleged that its members owned firearms that
may have been defined as “assault weapons” under the ordinance. Id. at 528-529.
They also alleged that members had not registered their firearms, because they were
unsure whether they qualified as “assault weapons” under the ordinance. Id. at 528.
The complaint alleged that the individual plaintiffs and members of PRO owned
semiautomatic handguns and that they could not determine whether those weapons
constituted “assault weapons” under the ordinance. Id. One of the individual
plaintiffs alleged that he owned a rifle with a detachable magazine, which he
believed was the only magazine that would fit the rifle, but that he could not
determine whether that weapon constituted an “assault weapon” under the
ordinance. Id.
13
 SUPREME COURT OF OHIO
{¶ 35} Here, in stark contrast, the only allegation in appellants’ complaint
relating to firearms is that appellants’ members own firearms. The complaint
contains no allegation that the members own firearms with bump stocks or some
other accessory that could be considered within the purview of the ordinance. It
also lacks any allegation that the members wish to own bump stocks. And there is
no allegation that members offer bump stocks for sale. The complaint similarly
contains no allegations specific to the weapons-under-disability ordinance. For
example, there is no allegation that any of appellants’ members have been charged
with or convicted of a misdemeanor offense of domestic violence. The complaint
is simply devoid of any allegation on which we could conclude the significant
possibility of future injury.3
{¶ 36} In Peoples Rights Org., Inc., the Sixth Circuit noted, “It is clear from
the complaint the predicament that [the plaintiffs] face.” Id., 152 F.3d at 528. Here,
however, appellants have alleged no predicament. Nonetheless, in support of their
cause of action for declaratory relief, they allege that they are entitled to a
3. The first dissenting opinion suggests that because this case has proceeded past the close of the
pleadings, the standing inquiry resembles the standard for a motion for judgment on the pleadings
pursuant to Civ.R. 12(C). Applying that standard, that dissent concludes that the city has failed to
demonstrate beyond a reasonable doubt that appellants cannot prove that any of their members have
been injured by the ordinance because “it is possible” appellants could prove that a member has
been harmed by the ordinances. Dissenting opinion of Kennedy, J., at ¶ 54. But the standard for
motions for judgment on the pleadings pursuant to Civ.R. 12(C) is still grounded in the pleadings.
Indeed, “[t]he trial court must limit its inquiry to the material allegations in the pleadings—accepting
those allegations and all reasonable inferences as true—and, if it is clear from the pleadings that
plaintiff could prove no set of facts which would entitle him to relief, judgment on the pleadings is
appropriate as a matter of law.” Fisher v. Ahmed, 2020-Ohio-1196, 153 N.E.3d 612, ¶ 11 (9th Dist.).
Here, there are no allegations in the complaint on which to base the first dissenting opinion’s
assumptions about appellants’ potential proof of harm. Moreover, “[w]hile the proof required to
establish standing increases as the suit proceeds, * * *, the standing inquiry remains focused on
whether the party invoking jurisdiction had the requisite stake in the outcome when the suit was
filed.” Davis v. Fed. Election Comm., 554 U.S. 724, 734, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008).
We also note, as does the first dissenting opinion, that appellants presented no evidence of standing
at the trial court’s hearing on the motion for a preliminary injunction. In fact, appellants asserted
that no evidence was required to rebut the city’s standing challenge and that the issues to be argued
at the hearing were appellants’ and Witt’s “legal standing and the efficacy of the claims raised in
the [c]omplaint.”
14
January Term, 2020
declaration that the ordinances, “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” are unlawful. As we stated in
ProgressOhio.org, Inc., an “idealistic opposition” to a challenged law is
insufficient to establish standing under the Declaratory Judgment Act. 139 Ohio
St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, at ¶ 19.
{¶ 37} Appellants also argue in their merit brief that Ohio’s Declaratory
Judgment Act broadly authorizes actions for declaratory relief predicated on
constitutional or nonconstitutional grounds, and that such relief “should be
employed to ensure the City’s unconstitutional Ordinances will not subject firearms
owners to new municipal criminal penalties.” The general availability of an action
for declaratory relief to challenge an ordinance is not the subject of this appeal.
This appeal relates to appellants’ standing to pursue such relief. The strength of
the merits of a claim for declaratory relief is not relevant to a plaintiff’s burden to
establish standing. Standing depends 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. at ¶ 7. Thus, we decline the
invitation to establish a blanket rule that a certain plaintiff will always have standing
under the Declaratory Judgment Act to challenge municipal ordinances under R.C.
9.68. We conclude that in this case, on the allegations in the complaint and on the
arguments presented, appellants have not established standing.
E. Appellants’ Future Ability to Establish Standing Is Not Before this Court
{¶ 38} Both dissenting opinions suggest that appellants could demonstrate
standing based on harm to one of their members by the city ordinances. Dissenting
opinion of Kennedy, J., at ¶ 54; dissenting opinion of DeWine, J., at ¶ 64. In doing
so though, each dissenting opinion implicitly acknowledges that appellants have
not alleged or proved a basis for standing in this case at this time.
15
SUPREME COURT OF OHIO
{¶ 39} In an attempt to circumvent this fact, the second dissenting opinion
fashions a newly minted argument that offers appellants an opportunity to reargue
their standing case with the benefit of the court’s collective agreement that they
have not alleged a proper basis for standing. This approach not only would relieve
appellants of their well-established burden to establish standing and present the
court with a justiciable claim, but also would provide appellants with an
unprecedented belief that even if they cannot establish standing on their asserted
theory, they can try again on remand.
{¶ 40} At every level, appellants have argued that they have standing under
R.C. 9.68 to pursue injunctive and declaratory relief without having to demonstrate
harm. Indeed, in appellants’ reply brief to this court, they made the following
statements: (1) “The City’s arguments about the standing of [appellants] under R.C.
9.68 fail because the requirements for standing do not require actual injury or
particularized harm for relief from the City’s firearm Ordinances” and (2) “Neither
[appellant] need demonstrate that its members own guns. * * * The interest in
uniformity is, in and of itself, sufficient to create standing * * *.” And even though
the claim for injunctive relief may proceed on Witt’s taxpayer standing under R.C.
733.59, appellants’ proposition of law is seeking a broad, bright-line rule that “[a]
non-profit 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.” (Emphasis added.) Appellants have requested that this court
reverse the Tenth District’s standing decision on its merits, not because it was
“premature,” dissenting opinion of DeWine, J., at ¶ 58. We should not allow a
party another opportunity to establish standing on remand after the issue was
argued by the parties and determined by the court.
{¶ 41} Moreover, the second dissenting opinion states that appellants “were
never individually put to the burden of proving standing in the proceeding below.”
16
January Term, 2020
Dissenting opinion of DeWine, J., at ¶ 63. Yet appellants had ample opportunity
to prove standing below; first in their complaint and again when the city challenged
their standing in its memorandum in opposition to a preliminary injunction.
Nevertheless, the dissenting opinions assert that the city missed the boat for not
challenging standing via the proper procedural vehicle or failing to “show beyond
doubt,” dissenting opinion of Kennedy, J., at ¶ 54, appellants lacked standing when
it is the plaintiff’s burden to allege a basis for standing. See also dissenting opinion
of DeWine, J., at ¶ 63; Albanese v. Batman, 148 Ohio St. 3d 85, 2016-Ohio-5814,
68 N.E.3d 800, ¶ 24 (“To have standing, the party bringing the action must assert
a personal stake in the outcome of the action” [emphasis sic]); Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992)
(emphasizing that a plaintiff’s burden to establish standing is “an indispensable part
of the plaintiff’s case”).
{¶ 42} But contrary to the second dissenting opinion’s suggestion, there is
no magical moment during litigation that a plaintiff is relieved of its burden to
establish standing. It is a “jurisdictional requirement” that must be met for a party
to maintain a lawsuit. Dallman, 35 Ohio St. 2d at 179, 298 N.E.2d 515. Thus,
standing “may be raised at any time during the pendency of the proceedings,” New
Boston Coke Corp. v. Tyler, 32 Ohio St. 3d 216, 513 N.E.2d 302 (1987), paragraph
two of the syllabus, including by a reviewing court sua sponte, Dallman at 178 (this
court sua sponte raising the issue of standing and dismissing the appeal based on a
party’s failure to allege a personal stake in the outcome of the proceedings).
{¶ 43} Further, the case at hand is different than Planned Parenthood of
Idaho, Inc. v. Wasden, 376 F.3d 908 (9th Cir.2004), on which the second dissenting
opinion relies to promote such a view. In that case, the district court explicitly
declined to decide whether Planned Parenthood had standing, because another
plaintiff had standing to sue, and Planned Parenthood requested that the Ninth
Circuit do the same, decline review of its standing, in an attempt to have the merits
17
SUPREME COURT OF OHIO
of the appeal decided. Id. at 917-918. The trial court here made no such caveat as
to appellants’ standing, and appellants have argued the exact opposite on appeal,
asserting that they have standing under the theories asserted and that the Tenth
District should affirm their own standing to bring their claims for declaratory and
injunctive relief.
{¶ 44} In sum, there is no basis for a remand on standing here. We have
not identified an error in the Tenth District’s decision nor have we announced a
new test or standard for the lower courts to apply. The threshold requirement that
a plaintiff must establish standing is far from a new concept in the law. See
Dallman at 179 (“It is an elementary concept of law that a party lacks standing to
invoke the jurisdiction of the court unless he has * * * some real interest in the
subject matter of the action”). To hold as we do today, that appellants have not met
that threshold requirement does not deprive them of another opportunity to seek
relief from the city ordinances under R.C. 9.68. Our holding simply means that
they, like every plaintiff who files a lawsuit, must establish standing to maintain
their suit. See Clifton v. Blanchester, 131 Ohio St. 3d 287, 2012-Ohio-780, 964
N.E.2d 414, ¶ 15, quoting State ex rel. Ohio Academy of Trial Lawyers v. Sheward,
86 Ohio St. 3d 451, 469, 715 N.E.2d 1062 (1999) (“ ‘It is well established that
before an Ohio court can consider the merits of a legal claim, the person seeking
relief must establish standing to sue’ ”). Here, appellants adopted a flawed theory
of standing and continued to rely on it throughout the adversarial process. Because
their theory is incorrect in this case, we cannot remedy it here. For whatever case
appellants may file in the future, they will have the benefit of this court’s decision
today as well as the dissenting opinions’ observations on how to properly establish
standing.
18
January Term, 2020
III. Conclusion
{¶ 45} For the foregoing reasons, we conclude that appellants have not
established standing under R.C. 9.68, R.C. 733.58, or R.C. Chapter 2721 to
challenge the ordinances. Therefore, we affirm the court of appeals’ judgment.
Judgment affirmed.
FRENCH, DONNELLY, and STEWART, JJ., concur.
KENNEDY, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion joined by FISCHER, J.
_________________
KENNEDY, J., dissenting.
{¶ 46} Because appellees, the city of Columbus and Columbus City
Attorney Zach M. Klein (collectively, “the city”), cannot demonstrate beyond
doubt that appellants, Ohioans for Concealed Carry, Inc., and Buckeye Firearms
Foundation, Inc., can prove no set of facts establishing that they have standing to
sue on behalf of their members, I dissent and would reverse the judgment of the
Tenth District Court of Appeals dismissing the associations from this litigation and
would remand this matter for a trial on the merits of the request for a permanent
injunction.
{¶ 47} In May 2018, Columbus City Council passed Ordinance 1116-2018,
which enacted Columbus City Code (“C.C.C.”) 2323.13 (penalizing the possession
of weapons by (1) those who have been convicted of various felony offenses that
are not barred by state law, (2) those who have been convicted of misdemeanor
domestic violence, and (3) those who are subject to certain domestic-violence
protection orders) and 2323.171 (criminalizing the possession of firearm
components such as bump stocks, which accelerate the rate of fire).
{¶ 48} Ohioans for Concealed Carry, Buckeye Firearms, and Gary Witt—a
member of Ohioans for Concealed Carry and a resident of Columbus—filed a
complaint seeking a permanent injunction and a motion seeking a preliminary
19
SUPREME COURT OF OHIO
injunction against the city’s enforcement of the new ordinances, asserting that the
ordinances conflicted with R.C. 9.68, a general law permitting Ohioans to possess
firearms, firearm parts, firearm components, and ammunition “[e]xcept as
specifically provided by the United States Constitution, Ohio Constitution, state
law, or federal law.”
{¶ 49} Relevant here, the city responded by asserting that Ohioans for
Concealed Carry and Buckeye Firearms had failed to sufficiently allege that any of
their members would have standing to sue to enjoin the ordinances, and at the
preliminary-injunction hearing, the parties did not present any evidence on the issue
of associational standing. The trial court found that Ohioans for Concealed Carry,
Buckeye Firearms, and Witt had standing to sue, and it permanently enjoined the
city from enforcing the bump-stock ban, C.C.C. 2323.171, but denied the request
to enjoin enforcement of the weapons-under-disability law, C.C.C. 2323.13.
{¶ 50} The Tenth District Court of Appeals reversed the trial court’s
judgment and remanded the case to the trial court, concluding that the trial court
erred in granting a permanent injunction when the matter had been set for a hearing
on the request for a preliminary injunction. 2019-Ohio-3105, 140 N.E.3d 1215,
¶ 57, 59 (10th Dist.). It also held that Ohioans for Concealed Carry and Buckeye
Firearms lacked standing to sue on behalf of their members. In so holding, the court
of appeals looked only to the complaint and held that the associations had not
adequately alleged that their members would have had standing to sue in their own
right. Id. at ¶ 45.
{¶ 51} Standing is established “in the same way as any other matter on
which the plaintiff bears the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the litigation.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). Therefore,
the stage of the proceeding (such as on a motion to dismiss, a motion for judgment
20
January Term, 2020
on the pleadings, or a motion for summary judgment) dictates the standard of
review.
{¶ 52} The court of appeals reviewed the sufficiency of the complaint’s
allegations when analyzing whether Ohioans for Concealed Carry and Buckeye
Firearms have standing to sue on behalf of their members. However, it failed to
apply the applicable standard of review. When a defendant challenges the adequacy
of a complaint after the close of pleadings, a court construes as true the material
allegations in the complaint and draws all reasonable inferences from them in favor
of the nonmoving party and decides whether it is beyond doubt that the plaintiff
can prove no set of facts entitling it to relief. State ex rel. Midwest Pride IV, Inc. v.
Pontious, 75 Ohio St. 3d 565, 569-570, 664 N.E.2d 931 (1996).
{¶ 53} An association has standing to bring a lawsuit on behalf of its
members when (1) its members would otherwise have standing to sue in their own
right, (2) the interests the association seeks to protect are germane to its purpose,
and (3) neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit. State ex rel. Food & Water Watch v. State,
153 Ohio St. 3d 1, 2018-Ohio-555, 100 N.E.3d 391, ¶ 18. An association suing as
a representative of its members must have “at least one member with standing to
present, in his or her own right, the claim (or the type of claim) pleaded by the
association.” United Food & Commercial Workers Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 555, 116 S. Ct. 1529, 134 L. Ed. 2d 758 (1996). However,
a member is not required to be a named plaintiff. See id. at 547, fn. 2 (standing was
not defeated when a union was the named party and the trial court had denied a
motion to amend the complaint to add members); see also Food & Water Watch at
¶ 18 (associational standing may apply when neither the claim asserted nor the
relief requested requires the participation of individual members).
{¶ 54} The city has failed to show beyond doubt that Ohioans for Concealed
Carry and Buckeye Firearms cannot prove that any of their respective members
21
SUPREME COURT OF OHIO
have been injured by the ordinances. The complaint describes both entities as
associations of firearm owners and Columbus taxpayers, and it alleges that they
“seek 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.” It is possible that they could prove
that at least one member from each association has been harmed by the ordinances,
either because he or she has been prohibited from owning or possessing a rate-of-
fire acceleration device or because he or she has been disarmed in Columbus by
virtue of a disqualifying conviction or a domestic-violence protection order.
Similarly, it is possible that they could prove that they each have a member who
has been prosecuted or threatened with prosecution under those ordinances or who
objects to spending tax dollars to enforce them.
{¶ 55} “[A] plaintiff or relator is not required to prove his or her case at the
pleading stage and need only give reasonable notice of the claim.” State ex rel.
Harris v. Toledo, 74 Ohio St. 3d 36, 37, 656 N.E.2d 334 (1995). The associations
have met that burden here.
{¶ 56} Lastly, the fact that the Columbus City Council repealed C.C.C.
2323.171 (the bump-stock ban) after we accepted jurisdiction in this case does not
render any part of this case moot. As the United States Supreme Court has
explained, “[t]he voluntary cessation of challenged conduct does not ordinarily
render a case moot because a dismissal for mootness would permit a resumption of
the challenged conduct as soon as the case is dismissed.” Knox v. Serv. Emps.
Internatl. Union, Local 1000, 567 U.S. 298, 307, 132 S. Ct. 2277, 183 L. Ed. 2d 281
(2012). Such “maneuvers designed to insulate a decision from review by [a court]
must be viewed with a critical eye.” Id. And here, the associations have a
continuing interest in vindicating their standing to challenge criminal ordinances
that limit their members’ right to keep and bear arms and a continuing interest in
seeking an award of attorney fees, costs, and nominal damages if they succeed in
22
January Term, 2020
the trial court. See R.C. 9.68; Memphis Community School Dist. v. Stachura, 477
U.S. 299, 308, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986), fn. 11.
{¶ 57} I therefore would reverse the judgment of the court of appeals
dismissing Ohioans for Concealed Carry and Buckeye Firearms from the lawsuit.
Because this court did not accept any other issue for review, this matter should be
remanded to the trial court to conduct an evidentiary hearing on the request for a
permanent injunction.
_________________
DEWINE, J., dissenting.
{¶ 58} In my view, it was premature for the Tenth District Court of Appeals
to determine that Ohioans for Concealed Carry, Inc., and Buckeye Firearms
Foundation, Inc. (collectively, “the gun-rights groups”), lack standing. I would
leave that matter for further proceedings in the trial court. I dissent from the
majority’s decision to do otherwise.
{¶ 59} The procedural posture of this case is unique. Gary Witt and the
gun-rights groups filed a complaint seeking to enjoin the city’s enforcement of two
Columbus code provisions. At the same time, the gun-rights groups and Witt filed
a motion for a preliminary injunction. After a hearing on the motion, the trial court
permanently enjoined the city from enforcing Columbus City Code 2323.171.
Importantly, at no point in the trial court did the city move to dismiss the gun-rights
groups or Witt from the lawsuit for lack of standing. It did argue generally,
however, that injunctive relief should be denied because all the parties lacked
standing.
{¶ 60} On appeal in the Tenth District, the city argued that the trial court
should not have granted the injunction, because none of the parties had standing.
The Tenth District concluded that Witt had standing to maintain a claim under R.C.
733.59. 2019-Ohio-3105, 140 N.E.3d 1215, ¶ 32 (10th Dist.). The court of appeals
also determined that the trial court should not have issued a permanent injunction
23
SUPREME COURT OF OHIO
when the matter had been set for a hearing on only a preliminary injunction. Id. at
¶ 56-57. As a consequence, it remanded the matter to the trial court for further
proceedings.
{¶ 61} The city did not challenge the holding that Witt possessed standing.
So we must assume for present purposes that the court of appeals’ decision on that
issue was correct. Curiously, though, after concluding that Witt had standing, the
Tenth District then concluded that the gun-rights groups did not have standing. Id.
at ¶ 46. This was unnecessary. On a claim for injunctive relief, only one plaintiff
needs to establish standing to assert a claim in order for a court to have subject-
matter jurisdiction over the claim. See Rumsfeld v. Forum for Academic &
Institutional Rights, Inc., 547 U.S. 47, 52, 126 S. Ct. 1297, 164 L. Ed. 2d 156 (2006),
fn. 2 (noting that the court of appeals did not determine whether other plaintiffs had
standing, because the presence of one plaintiff with standing is sufficient to make
a case justiciable); Beaver Excavating Co. v. Testa, 134 Ohio St. 3d 565, 2012-Ohio-
5776, 983 N.E.2d 1317, ¶ 16 (“[I]t is sufficient for purposes of jurisdiction that at
least one plaintiff has standing for the claims of the remaining plaintiffs to be heard
and the court to proceed to decide the case on the merits”). Based on the
determination by the court of appeals that Witt had standing, the trial court had the
authority to issue injunctive relief. So there was no need for the court of appeals to
decide whether the gun-rights groups possessed standing.
{¶ 62} The majority argues that a remand would relieve “appellants of their
well-established burden to establish standing and present the court with a justiciable
claim.” Majority opinion at ¶ 39. Indeed, the authority cited by the majority deals
largely with whether a claim is justiciable. See id. at ¶ 41, citing Lujan v. Defenders
of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). But of
course, “justiciablity” is not the issue here. Because we must assume that Witt had
standing, the claim is justiciable. See Dept. of Commerce v. United States House
of Representatives, 525 U.S. 316, 330-334, 119 S. Ct. 765, 142 L. Ed. 2d 797 (1999)
24
January Term, 2020
(holding that the presence of one plaintiff with standing is all that is needed to make
claim justiciable, and finding it unnecessary to consider the standing of the other
plaintiffs).
{¶ 63} It is of course true that even though only one plaintiff need have
standing for a court to issue injunctive relief, a court may still dismiss parties
without a personal stake in the outcome. See Planned Parenthood of Idaho, Inc. v.
Wasden, 376 F.3d 908, 918 (9th Cir.2004), fn. 6 (noting that because one plaintiff
had standing, there was no reason to consider the standing of the other plaintiffs for
purposes of appeal, but on remand, the district court may need to determine whether
the party was a proper plaintiff because only proper parties may enforce an
injunction). But the problem that I have with the majority’s decision to affirm the
court of appeals’ dismissal of the gun-rights groups as parties for lack of standing
is that the groups were never individually put to the burden of proving standing in
the proceeding below. The city did not move to dismiss any of the plaintiffs from
the lawsuit for lack of standing nor did it move for summary judgment as to any of
the plaintiffs. The city did argue that the court lacked jurisdiction to grant
injunctive relief because all three of the plaintiffs lacked standing, but all that was
necessary to defeat this argument was a showing that any one plaintiff had standing.
{¶ 64} As the other dissent points out, it may be possible for the gun-rights
groups to establish associational standing by showing that they have a member who
has been injured or threatened with injury by the Columbus provisions. Dissenting
opinion of Kennedy, J., at ¶ 54. The matter is being remanded to the trial court. If
the city believes there are grounds to dismiss the gun-rights groups from the case
for lack of standing, it can file an appropriate motion, the gun-rights groups can
respond, and the trial court can rule accordingly.
{¶ 65} A remand that allows for the possibility of further proceedings on
the standing issue seems particularly appropriate here. The court of appeals
reversed the judgment granting a permanent injunction because the trial court’s
25
SUPREME COURT OF OHIO
consolidation of the matter with the preliminary injunction deprived the city of “a
full and fair opportunity to present evidence.” 2019-Ohio-3105, 140 N.E.3d 1215,
at ¶ 57. The gun-rights groups deserve the same consideration.
{¶ 66} I would reverse the decision of the court of appeals dismissing the
gun-rights groups from the action for lack of standing and remand the matter to the
trial court. Because the majority does otherwise, I respectfully dissent.
FISCHER, J., concurs in the foregoing opinion.
_________________
Haynes, Kessler, Myers & Postalakis, Inc., David S. Kessler, Stephen P.
Postalakis, and Eric B. Hershberger; and Barney DeBrosse, L.L.C. and Derek A.
DeBrosse, for appellant Ohioans for Concealed Carry, Inc.
James P. Sean Maloney; and Ronald Lemieux, for appellant Buckeye
Firearms Foundation, Inc.
Zach Klein, Columbus City Attorney, Richard N. Coglianese, City Solicitor
General, and Lara N. Baker-Morrish, for appellees.
_________________
26