CASE DISMISSED: Unanimous Supreme Court sends Toby Hoover packing

UPDATE! July 14, 2004, 5:25 p.m. ET
Associated Press

COLUMBUS, Ohio (AP) — The state's three-month-old concealed weapons law passed its first test on Wednesday when a unanimous Ohio Supreme Court threw out a lawsuit that claimed county sheriffs do not have the resources to conduct thorough background checks of permit applicants.

The court, without comment, dismissed the lawsuit filed by the Ohio Coalition Against Gun Violence, which promised to keep fighting the law.

The Legislature passed the law after nine years of debate, and Gov. Bob Taft signed it on Jan. 7. It went into effect April 8, and the coalition sued the sheriffs the next day.

The law, which bars people who have been institutionalized against their will from obtaining permits, does not provide adequate resources for checking the records of applicants who have a history of mental illness, the coalition said.

The law also does not provide enough money for sheriffs to process the applications, the group said. The $45 fee applicants pay for the permits is split among law enforcement groups that conduct the checks and process the permits.

Under the law, most Ohioans can carry hidden guns but not in government buildings, day-care centers, bars or on property where the owner prohibits them. Gun owners also must pass a background check and complete 12 hours of safety training.

The lawsuit also contended the court already had ruled that the ban on concealed weapons was constitutional and that the new law interferes with Ohioans' right to safety.

Toby Hoover, the coalition's executive director, said she had hoped the Supreme Court would consider the lawsuit, but the coalition would likely refile it in a common pleas court.

"Eventually, it would end back up with the Supreme Court anyway, which is why we wanted to take the fastest vehicle," Hoover said.

Later Wednesday, the coalition released a statement saying it would "continue to pursue remedies to this danger to our families through other avenues."

Rep. Bill Seitz, a Cincinnati Republican and a member of the House Criminal Justice Committee, said he was pleased with the court's dismissal.

"I am satisfied that Ohio took the constitutional and lawful first steps toward joining 44 other states" that have some type of concealed weapons law.

He said he is more interested, though, in a Cuyahoga County lawsuit that questions a provision of the law that requires weapons in cars to be locked up or in holsters. He said the requirement goes against the rest of the law and the Legislature should try to change it in its next session, which begins in January.

The provision was put in by the Senate to persuade the State Highway Patrol to drop its opposition to the bill. Taft had insisted that the patrol not oppose the bill before he would sign it.

Click on the "Read More..." link below for the text of the unanimous Supreme Court ruling, and for commentary.

Text of the ruling:

2004-0601. State ex rel. Ohio Coalition Against Gun Violence v. Alexander.
In Mandamus. On motion for leave to intervene of Ohio Attorney General Jim Petro, answer of intervening respondent Ohio Attorney General Jim Petro, answer of respondent Michael J. Navarre, Chief of Police, motion for judgment on pleadings of Michael J. Navarre, Chief of Police, answer of respondent Jim Karnes, Sheriff, motion to dismiss of Michael Matulavich, Chief of Police, motion to dismiss of Drew Alexander, Summit County Sheriff, answer of respondent James G. Jackson, Chief of Police, City of Columbus, motion to dismiss of respondent James G. Jackson, Chief of Police, City of Columbus, motion to dismiss of Ohio Attorney General Jim Petro, and motion to dismiss of James A. Telb, Lucas County Sheriff. Motion for leave to intervene granted and motions to dismiss sustained. Cause dismissed.

Moyer, C.J., Resnick, F.E. Sweeney, Pfeifer, Lundberg Stratton,
O'Connor and O'Donnell, JJ., concur.

Commentary:
There is much more to this story than what is contained in this Associated Press story.

On April 10, OFCC broke the news that Hoover had filed a lawsuit, almost three days before the Associated Press or any other Ohio media.

The case was filed on behalf of Hoover by none other than Ulmer & Berne LLP, the law firm which employs Stephanie Trudeau, the Cleveland lawyer who began shopping an anti-self-defense op-ed just days after the law was passed in January. Trudeau was quoted by Crain's Cleveland business as stating that businesses "need to ban." And as we have reported previously, the law firm failed to serve notice to the Attorney General's office that the constitutionality of an Ohio law was being challenged, as is proper courtesy and procedure.

On May 6, OFCC broke the news that Attorney General Jim Petro had filed a motion to dismiss Hoover's lawsuit. This action received NO coverage by Ohio's major media outlets.

In the Motion, Petro argued that Hoover and her anti-gun attorneys (the Relators) "lack proper standing" before the Ohio Supreme Court with a Writ of Mandamus, and that "the complaint fails to state a claim upon which relief can be granted by this Court."

..."The very fact that they seek a writ of
mandamus ordering public officials to cease and desist from specific activities belies any claim to the extraordinary writ of mandamus. Rather, Relators’ claims are clearly grounded in declaratory and injunctive relief, and this Court has repeatedly held that it does not have jurisdiction to grant such relief."

Indeed, Relators’ reliance upon this Court’s decision in Klein v. Leis, 99 Ohio St.3d 537,
2003-Ohio-4779, is an irony. In Klein, the Attorney General appeared to defend prior statutes regulating the carrying of concealed weapons on the basis that Appellees were asking the court to overturn a legislative regulatory scheme because they did not like the policy choices made by
the Ohio General Assembly. Here, in a fashion similar to the Plaintiffs in Klein, Relators appear before this Court attempting to strike down a legislative choice with which they disagree."

...This Court should reject Relators’ claims to the standing established by Sheward and their complaint should be dismissed."

"Hoover's lawsuit was dismissed because it's baseless," said Jim Irvine, OFCC Spokesperson, "just like her claims
that concealed carry will cause more deaths."

"Before business blindly follow the advice of Ulmer & Berne LLP, or any other law firm advising them to ban guns, they should look at what they are buying," continued Irvine. "If you are going to buy advice on a firearms policy, make sure your attorney is competent and knowledgeable about firearms. Sadly, companies have paid money for advice that actually increases their risk of a violent shooting, does not strengthen their immunity protection, and probably actually weakens it."

"Most of the trade groups are presenting objective, information based guidance on this issue, and not presenting agenda driven hysteria," remarked Ken Hanson, Litigation Chair of OFCC's Office of General Counsel. "I have seen some very solid informational pieces out of a bank association and an underwriters association - straight information without spin. Business owners need to evaluate their sources carefully. The plain language of HB 12 grants immunity for actions of a license holder, and the plain facts from 45 other states show that these aren't the people going on shooting sprees."

"This flawed lawsuit was the latest effort to grasp at straws in an effort to prevent Ohioans from exercising their right to self-defense," said Jeff Garvas, OFCC President. "Hoover's efforts were met with a unanimous dismissal of the case."

"The law is now on the side of individual Ohioans who wish to protect themselves and their familes," continued Garvas. "When Cuyahoga County Sheriff Gerald McFaul refused to perform his duty under the law, court action by OFCC's Jim Irvine solved the problem. In this case, court action by one anti-gun individual and one unprofessional law firm backfired."

OFCC would like to encourage city officials in Clyde, Arcanum and elsewhere take note - the courts will also soon be asked to solve the problem of their illegal ordinances, which enforce restrictions on concealed carry, if they do not do first remedy the problem on their own.