City of Cleveland v. State

[Cite as Cleveland v. State, 138 Ohio St.3d 232, 2014-Ohio-86.]

THE CITY OF CLEVELAND, APPELLEE, v. THE STATE OF OHIO, APPELLANT.

[Cite as Cleveland v. State, 138 Ohio St.3d 232, 2014-Ohio-86.]

The General Assembly may not by statute prohibit the municipal home-rule

authority granted by Article XVIII, Section 3 of the Ohio Constitution—

R.C. 4921.25 is a general law that will prevail over conflicting municipal

ordinances, but the second sentence of the statute purporting to limit

municipal home-rule authority violates Article XVIII, Section 3 of the

Ohio Constitution—The second sentence of R.C. 4921.25 is severed from

the statute.

(No. 2012-1616—Submitted August 21, 2013—Decided January 21, 2014.)

APPEAL from the Court of Appeals for Cuyahoga County, No. 97679,

2012-Ohio-3572.

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SYLLABUS OF THE COURT

1. The General Assembly may not by statute prohibit the municipal home-rule

authority granted by Article XVIII, Section 3 of the Ohio Constitution.

2. R.C. 4921.25 is a general law that will prevail over conflicting municipal

ordinances, but the second sentence of the statute purporting to limit

municipal home-rule authority violates Article XVIII, Section 3 of the

Ohio Constitution.

3. The second sentence of R.C. 4921.25, which reads, “Such an entity is not

subject to any ordinance, rule, or resolution of a municipal corporation,

county, or township that provides for the licensing, registering, or

regulation of entities that tow motor vehicles,” is severed from the statute.

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SUPREME COURT OF OHIO

LANZINGER, J.

{¶ 1} This case arises from a complaint for declaratory judgment brought

by appellee, the city of Cleveland, challenging the constitutionality of R.C.

4921.25,1 a law that grants the Public Utilities Commission of Ohio (“PUCO”)

authority to regulate towing companies as “for-hire motor carriers.” Because we

agree with the city that the second sentence of R.C. 4921.25 violates the Ohio

Constitution’s Home Rule Amendment, Article XVIII, Section 3, by prohibiting

the “licensing, registering, or regulation” of entities that tow motor vehicles, we

sever that portion of the statute. We further hold that the first sentence of R.C.

4921.25 is a general law. Therefore, we affirm in part and reverse in part the

judgment of the Eighth District Court of Appeals, which held that the entire

statute was unconstitutional.

I. Case Background

{¶ 2} Towing companies were not regulated by the PUCO as motor

carriers under R.C. Chapter 4921 until 2003, when the General Assembly enacted

Am.Sub.H.B. No. 87, 150 Ohio Laws, Part I, 59, 157-158 (enacting R.C. 4921.30

[now R.C. 4921.25], which provides that entities engaged in towing motor

vehicles are subject to regulation by the PUCO as for-hire motor carriers). In

2009, the city of Cleveland filed a declaratory-judgment action seeking a

declaration that R.C. 4921.25 violates the Home Rule Amendment of the Ohio

Constitution, which authorizes municipalities to adopt and enforce ordinances that

do not conflict with general state laws. The trial court granted summary judgment

to the state on the grounds that the statute was a general law that does not

unconstitutionally infringe on the city’s home-rule authority. The Eighth District

Court of Appeals, however, reversed the trial court’s judgment in a two-to-one

1. The statute was numbered R.C. 4921.30 when the city’s declaratory-judgment action was filed,

but as of June 11, 2012, the provision was renumbered by 2012 Am.Sub.H.B. No. 487. We

will refer to the current number of the statute throughout this opinion.

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decision, concluding that R.C. 4921.25 failed the general-law test outlined in

Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963.

Specifically, the Eighth District determined that the statute is “not part of a

statewide and comprehensive legislative enactment,” “does not have uniform

operation throughout the state,” fails to set forth police regulations for the

operation of tow-truck entities and instead simply curtails the city’s police powers

in this area, and does not prescribe a rule of conduct upon citizens generally.

2012-Ohio-3572, 974 N.E.2d 123, ¶ 34-41 (8th Dist.). The court of appeals

accordingly held that because R.C. 4921.25 is not a general law, it

unconstitutionally attempts to limit municipal home-rule authority.

{¶ 3} We accepted the state’s discretionary appeal on the following

proposition of law: “Because R.C. 4921.25 is part of a comprehensive, statewide

legislative framework that regulates tow truck operations, it is a general law that

displaces municipal tow truck ordinances.”

II. Legal Analysis

{¶ 4} The state argues that the court of appeals erred as a matter of law

in concluding that R.C. 4921.25 is not a general law and that it unconstitutionally

attempts to limit municipal home-rule authority. It asserts that the statute is a

general law as defined by this court’s decisions and that the statute displaces local

towing ordinances. On the other hand, the city argues that the preemption

language within R.C. 4921.25 does not qualify as a general law, is outside the

recognized regulatory scheme for Ohio for-hire motor carriers established in R.C.

Chapter 4921, and unconstitutionally attempts to limit the city’s municipal home-

rule authority. Neither party is entirely accurate, for contrary to the city’s view,

the entire statute must be examined to determine if the statute is a general law,

and contrary to the state’s suggestion, a general law may not preempt all local

ordinances.

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{¶ 5} R.C. 4921.25 provides:

Any person, firm, copartnership, voluntary association,

joint-stock association, company, or corporation, wherever

organized or incorporated, that is engaged in the towing of motor

vehicles is subject to regulation by the public utilities commission

as a for-hire motor carrier under this chapter. Such an entity is not

subject to any ordinance, rule, or resolution of a municipal

corporation, county, or township that provides for the licensing,

registering, or regulation of entities that tow motor vehicles.

{¶ 6} While the city does not challenge the state’s ability to regulate

towing entities as it does other motor carriers, the city does attack the

constitutionality of the statute’s second sentence that purports to totally preempt

local authority to regulate towing entities, even through ordinances that do not

conflict. We must examine this legal question using home-rule precedent.

A. R.C. 4921.25 as a General Law

{¶ 7} Article XVIII, Section 3 of the Ohio Constitution states,

“Municipalities shall have authority to exercise all powers of local self-

government and to adopt and enforce within their limits such local police, sanitary

and other similar regulations, as are not in conflict with general laws.”

{¶ 8} A state statute takes precedence over a local ordinance when “(1)

the ordinance is an exercise of the police power, rather than of local self-

government, (2) the statute is a general law, and (3) the ordinance is in conflict

with the statute.” Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881

N.E.2d 255, ¶ 17. No one disputes that any city ordinance regulating towing

entities would be a matter of police power or safety rather than an exercise of self-

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January Term, 2014

government. Thus, any city ordinance of this type must yield if it conflicts with a

general state law.

{¶ 9} We set forth a four-part test for evaluating whether a statute is a

general law in Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d

963: “To constitute a general law for purposes of home-rule analysis, a statute

must (1) be part of a statewide and comprehensive legislative enactment, (2)

apply to all parts of the state alike and operate uniformly throughout the state, (3)

set forth police, sanitary, or similar regulations, rather than purport only to grant

or limit legislative power of a municipal corporation to set forth police, sanitary,

or similar regulations, and (4) prescribe a rule of conduct upon citizens

generally.” Id. at syllabus. We agree with the reasoning of the appellate panel’s

dissenting judge in this case to hold that R.C. 4921.25 meets all four parts of the

general-law test.

1. Statewide and Comprehensive Legislative Enactment

{¶ 10} The court of appeals concluded that there is no comprehensive

statutory scheme that covered tow-truck companies and that it could not infer an

intent to preempt local legislation based upon broad regulatory enactment in this

field. With respect to the court’s conclusion that the statute violates part one of

the test because the General Assembly did not enact a separate statutory scheme

for towing entities but merely redefined “for-hire motor carriers” to include

towing companies, we do not agree that the General Assembly was required to do

more. R.C. 4921.25 is part of the statewide and comprehensive statutory scheme

for regulating for-hire motor carriers.

{¶ 11} R.C. 4921.25 specifically classifies towing entities as for-hire

motor carriers subject to PUCO regulation. The PUCO is accordingly tasked with

a number of duties relating to these entities: supervising and regulating them,

regulating their safe operation, adopting reasonable rules for highway

transportation of property in interstate and intrastate commerce, and requiring the

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SUPREME COURT OF OHIO

filing of reports and other data. R.C. 4905.81. Clearly, by subjecting towing

enterprises to the PUCO’s regulations, the General Assembly has made R.C.

4921.25 a part of statewide and comprehensive legislative enactment. The statute

satisfies the first prong of the Canton test.

2. Uniform Operation Throughout the State

{¶ 12} The second prong of the Canton test asks whether the statute

applies and operates uniformly throughout the state. There can be no question

that R.C. 4921.25 applies and operates uniformly throughout Ohio, and the

determination by the court of appeals that an exception exists for “private motor

carriers” is inapposite. R.C. 4921.25 applies to “[a]ny person, firm,

copartnership, voluntary association, joint-stock association, company, or

corporation, wherever organized or incorporated, that is engaged in the towing of

motor vehicles.” Thus the statute’s scope is statewide, and there are no

limitations upon the statute’s operation. The statute applies uniformly to all

towing entities and thus satisfies the second prong of the Canton test.

3. Establishment of Police Regulations

{¶ 13} In holding that R.C. 4921.25 fails to satisfy the third prong of the

Canton test, the court of appeals concluded that by enacting this statute, the

legislature did not establish police regulations but instead merely limited

municipal legislative power. Just as with the first prong, however, an in pari

materia reading of the statute indicates otherwise. By placing towing companies

under the regulation of the PUCO—including but not limited to the PUCO’s

traffic regulations governing for-hire motor carriers—R.C. 4921.25 is an exercise

of the state’s police power. The statute as a whole does not merely limit the

legislative power of a municipal corporation to set forth police, sanitary, or

similar regulations, and so satisfies the third prong of the Canton test.

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January Term, 2014

4. Establishment of Rule of Conduct upon Citizens Generally

{¶ 14} The court of appeals relies upon its determination that the statute is

not part of a system of uniform statewide regulation in finding that R.C. 4921.25

fails to meet the fourth prong of the Canton test. As discussed above, the statute

applies to all entities engaged in towing operations throughout the state, without

exception. We accordingly hold that R.C. 4921.25 meets the fourth Canton prong

and is a general law for the purposes of home-rule analysis.

B. Municipal-Home-Rule Violation

{¶ 15} While we hold that R.C. 4921.25 itself qualifies as a general law

under the Canton test, we conclude that a portion of the statute does fail as an

unconstitutional limit upon municipal home-rule authority.

1. Unconstitutional Limitation of Home-Rule Authority

{¶ 16} The second sentence of R.C. 4921.25 provides that “[towing

entities are] not subject to any ordinance, rule, or resolution of a municipal

corporation, county, or township that provides for the licensing, registering, or

regulation of entities that tow motor vehicles.” This sentence violates the third

prong of the Canton test by purporting to limit legislative power of a municipal

corporation to set forth police, sanitary, or similar regulations. Unlike the first

sentence of R.C. 4921.25, which subjects towing entities to PUCO regulation, the

second sentence fails to set forth any police, sanitary, or similar regulations.

Furthermore, the broad language of the second sentence of R.C. 4921.25 directly

contradicts the language of Article XVIII, Section 3 of the Ohio Constitution,

which provides that “[m]unicipalities shall have authority * * * to adopt and

enforce within their limits such local police, sanitary and other similar

regulations, as are not in conflict with general laws.” Although R.C. 4921.25

places towing entities under the PUCO’s regulation as “for-hire motor carriers,”

there may be areas in which the PUCO has not regulated, allowing municipalities

to adopt and enforce regulations in those areas. We will not speculate by

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SUPREME COURT OF OHIO

identifying these areas, although the city asserts that Cleveland Codified

Ordinance 677A.11 is an example of an ordinance that may survive. It is enough

to say that municipalities may supplement state law in these unregulated areas,

provided that the city ordinances do not conflict with general laws.

{¶ 17} The second sentence of R.C. 4921.25 contradicts Article XVIII,

Section 3 of the Ohio Constitution. We accordingly hold that the second sentence

of R.C. 4921.25 unconstitutionally limits municipal home-rule authority.

2. The Remedy of Severance

{¶ 18} When this court holds that a statute is unconstitutional, severing

the provision that causes it to be unconstitutional may be appropriate. R.C. 1.50;

see, e.g., State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 94-

99 (severing portions of felony sentencing laws after determining that they

violated federal law); Simmons-Harris v. Goff, 86 Ohio St.3d 1, 17, 711 N.E.2d

203 (1999) (severing the portion of a bill that violated the one-subject rule); State

ex rel. Maurer v. Sheward , 71 Ohio St.3d 513, 523-524, 644 N.E.2d 369 (1994)

(severing the portion of a statute that violated Article III, Section 11 of the Ohio

Constitution, which at the time of the decision authorized the General Assembly

to regulate the application process for pardons but not commutations or

reprieves); State ex rel. Ohio AFL-CIO v. Voinovich, 69 Ohio St.3d 225, 230, 631

N.E.2d 582 (1994) (severing the portion of a bill that violated the one-subject

rule); State ex rel. Hinkle v. Franklin Cty. Bd. of Elections, 62 Ohio St.3d 145,

149, 580 N.E.2d 767 (1991) (same). Severance is suitable, however, only when it

satisfies our well-established standard.

{¶ 19} The severance test was first pronounced by this court in Geiger v.

Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927). Three questions are to be

answered in determining whether severance is appropriate:

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January Term, 2014

“(1) Are the constitutional and the unconstitutional parts

capable of separation so that each may be read and may stand by

itself? (2) Is the unconstitutional part so connected with the

general scope of the whole as to make it impossible to give effect

to the apparent intention of the Legislature if the clause or part is

stricken out? (3) Is the insertion of words or terms necessary in

order to separate the constitutional part from the unconstitutional

part, and to give effect to the former only?”

Id. at 466-467, quoting State v. Bickford, 28 N.D. 36, 147 N.W. 407 (1913),

paragraph nineteen of the syllabus.

{¶ 20} Applying the severance test to R.C. 4921.25, we hold that severing

the second sentence of the statute is appropriate. As to the first question of the

test, each sentence in R.C. 4921.25 can stand by itself. The first sentence defines

towing entities as for-hire motor carriers and places them under the regulation of

PUCO. The second sentence places towing entities outside the realm of local

regulation. Neither of these sentences depends on the other for any of its

meaning.

{¶ 21} Regarding the second question of the test, the second sentence of

R.C. 4921.25 is not so connected with the general scope of the statute as to make

it impossible to give effect to the General Assembly’s intention if the second

sentence is stricken. If the second sentence is severed, the first sentence of the

statute remains fully effective. Towing entities are placed under the PUCO’s

jurisdiction as for-hire motor carriers, and state regulations prevail over any

conflicting municipal regulations.

{¶ 22} The statute also satisfies the third test question. The insertion of

words or terms is not necessary in order to separate the constitutional part of R.C.

4921.25 from the unconstitutional part and to give effect to the first sentence only.

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We accordingly conclude that severance is a suitable remedy. The second

sentence of R.C. 4921.25, which reads, “Such an entity is not subject to any

ordinance, rule, or resolution of a municipal corporation, county, or township that

provides for the licensing, registering, or regulation of entities that tow motor

vehicles,” is severed from the statute.

C. Effect of City Ordinances

{¶ 23} Finally, the city has provided an example of how it may regulate

towing companies in a way that does not conflict with existing PUCO regulations.

Cleveland Codified Ordinance 677A.11 addresses public safety and has no

comparable PUCO rule or regulation. It states:

No person licensed under Section 677A.02, or any of his

or her agents or employees, shall respond to the scene of an

accident unless either summoned by a person having a direct

interest in the vehicle or vehicles involved or dispatched thereto

as provided in the rules and regulations promulgated by the

Director of Public Safety pursuant to Chapter 135.

We of course do not decide today whether this ordinance conflicts with any

general laws, as that issue is not before us. But at the very least, the Ohio

Constitution grants municipalities the authority “to adopt and enforce within

their limits such local police, sanitary and other similar regulations, as are not in

conflict with general laws.” (Emphasis added.) Article XVIII, Section 3, Ohio

Constitution. The question of which city ordinances survive as nonconflicting

remains for another day.

III. Conclusion

{¶ 24} The General Assembly may not by statute prohibit the municipal

home-rule authority granted by Article XVIII, Section 3 of the Ohio Constitution.

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January Term, 2014

R.C. 4921.25 is a general law that will prevail over conflicting municipal

ordinances, but the second sentence of the statute purporting to limit municipal

home-rule authority violates Article XVIII, Section 3 of the Ohio Constitution and

so will be severed. The judgment of the Eighth District Court of Appeals is

affirmed in part and reversed in part.

Judgment affirmed in part

and reversed in part.

O’CONNOR, C.J., and PFEIFER, KENNEDY, FRENCH, and O’NEILL, JJ.,

concur.

O’DONNELL, J., concurs in the judgment and in paragraph two of the

syllabus.

_____________________

Barbara A. Langhenry, Cleveland Director of Law, and Gary S.

Singletary, Assistant Director of Law, for appellee.

Michael DeWine, Attorney General, Michael J. Hendershot, Chief Deputy

Solicitor, Megan Dillhoff, Deputy Solicitor, and Pearl M. Chin, Associate

Assistant Attorney General, for appellant.

The Ferris Law Group, L.L.C., and David A. Ferris, urging reversal for

amicus curiae Towing & Recovery Association of Ohio, Inc.

John P. Curp, Cincinnati City Solicitor, and Katherine A. Miefert,

Assistant City Solicitor, urging affirmance for amicus curiae city of Cincinnati.

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