The opinion
[Cite as Toledo v. State, 2018-Ohio-4534.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
City of Toledo, et al. Court of Appeals No. L-18-1011
L-18-1016
Appellees
Trial Court No. CI0201702028
CI0201702599
v.
State of Ohio, et al. DECISION AND JUDGMENT
Appellants Decided: November 9, 2018
*****
Dale R. Emch, Law Director, and Thomas E. Puffenberger, for appellee,
City of Toledo.
Beth A. Tischler, Law Director, for appellees, City of Maumee, City of Sylvania,
City of Napoleon, and City of Perrysburg.
Michael DeWine, Ohio Attorney General, Sarah E. Pierce and Renata Y. Staff,
Assistant Attorney Generals, for appellant, State of Ohio.
J. Philip Calabrese, Kathleen M. Trafford, and L. Bradfield Hughes, Andrew C.
Emerson, for appellant, CTIA.
*****
MAYLE, P.J.
{¶ 1} In this consolidated appeal, defendant-appellant, the state of Ohio, and
intervenor-appellant, CTIA –the Wireless Association, appeal the December 19, 2017
judgment of the Lucas County Court of Common Pleas, denying their motions for
summary judgment and granting summary judgment to plaintiffs-appellees, the cities of
Toledo, Maumee, Napoleon, Sylvania, and Perrysburg. For the reasons that follow, we
affirm the trial court judgment.
I. Background
{¶ 2} On May 17, 2016, 2016 Am.S.B. No. 331 was introduced by the Ohio
Senate, proposing to amend and enact numerous provisions to R.C. Chapter 956
(regulation and licensing of dog kennels). The stated purpose of the bill was “to regulate
the sale of dogs from pet stores and dog retailers and to require the Director of
Agriculture to license pet stores.”
{¶ 3} On May 25, 2016, the Senate passed the bill after expanding it slightly “to
regulate the sale of dogs from pet stores and dog retailers, to require the Director of
Agriculture to license pet stores, to revise the civil penalties applicable to dog breeders
and other specified entities, and to make an appropriation.” It was introduced to the
House of Representatives on May 31, 2016.
{¶ 4} After stagnating in the House for several months, 2016 Am.Sub.S.B. No.
331 (“S.B. 331”) eventually emerged from the House Finance Committee on December
7, 2016, with proposed amendments and enactments to R.C. Chapters 956, 959 (offenses
2.
relating to domestic animals), 1717 (humane societies), 4111 (minimum fair wage
standards), 4113 (miscellaneous labor provisions), and 4939 (use of municipal public
way). The stated purpose of the bill was substantially expanded as follows:
[T]o regulate the sale of dogs from pet stores and dog retailers, to
require the Director of Agriculture to license pet stores, and to revise the
civil penalties applicable to dog breeders and other specified entities; to
govern construction and attachment activities related to micro wireless
facilities in the public way; to prohibit political subdivisions from
establishing minimum wage rates different from the rate required by state
law; to generally grant private employers exclusive authority to establish
policies concerning hours and location of work, scheduling, and fringe
benefits, unless an exception applies; to prohibit a person from engaging in
sexual conduct with an animal and related acts, to provide for the seizure
and impoundment of an animal that is the subject of a violation, and to
authorize a sentencing court to require an offender to undergo
psychological evaluation or counseling; to prohibit and establish an
increased penalty for knowingly engaging in activities associated with
cockfighting, bearbaiting, or pitting an animal against another; to remove
the residency requirement for the appointment of an agent to a county
humane society; and to make an appropriation.
3.
{¶ 5} This version of the bill was passed by the House, approved by the Senate,
and signed into law by Governor John Kasich on December 19, 2016, with an effective
date of March 21, 2017.
{¶ 6} In separate actions, the city of Toledo and the cities of Maumee, Napoleon,
Sylvania, and Perrysburg (“the cities”), filed complaints against the state of Ohio for
declaratory and injunctive relief, seeking to invalidate S.B. 331. The cities’ cases were
consolidated on May 8, 2017. The cities raised a number of reasons to invalidate the bill.
Pertinent to our discussion here, they claimed that it violates the one-subject rule of
Article II, Section 15(D) of the Ohio Constitution.
{¶ 7} On July 12, 2017, the trial court granted a motion by CTIA-the Wireless
Association (“CTIA”) to intervene in this action. CTIA “represents diverse stakeholders
in the wireless industry,” and claimed that those stakeholders would be impacted by the
amendments and enactments to R.C. Chapter 4939. CTIA had been permitted to
intervene in a number of similar suits filed in Cuyahoga, Franklin, Hamilton, and Summit
counties. See City of Cleveland v. State of Ohio, Cuyahoga C.P. No. CV-17-877584; City
of Bexley v. State of Ohio, Franklin C.P. No. 17CV-2672, 92 N.E.3d 397 (2017); City of
Cincinnati v. State of Ohio, Hamilton C.P. No. A1701966; City of Hudson v. State of
Ohio, Summit C.P. No. CV-2017-03-1103.
{¶ 8} All parties filed motions for summary judgment on the narrow issue of
whether S.B. 331 violates the one-subject rule of Article II, Section 15(D) of the Ohio
Constitution. In a judgment journalized on December 19, 2017, the trial court found that
4.
the bill does violate the one-subject rule, and it granted summary judgment in favor of the
cities and against the state and CTIA. It declared S.B. 331 unconstitutional and incapable
of being severed.
{¶ 9} The state and CTIA both appealed. The state assigns the following error for
our review:
The trial court erred when it invalidated Senate Bill 331 under
Article II, Section 15(D) of the Ohio Constitution, commonly referred to as
the single-subject rule.
CTIA assigns the following errors:
1. The trial court erred in ruling that 2017 Sub. S.B. No. 331 (“S.B.
331”) violates Article II, Section 15(D) of the Ohio Constitution (the
“single-subject rule”). (See December 18, 2017 Opinion and Judgment
Entry (“Decision”) at 5-17, attached hereto as Appendix A.)
2. The trial court erred in invalidating provisions within S.B. 331
related to the statewide regulation of micro-wireless equipment pursuant to
its ruling that S.B. 331 violates the single-subject rule. (See Decision at 19-
20.)
II. Standard of Review
{¶ 10} Appellate review of a summary judgment is de novo, Grafton v. Ohio
Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996), employing the same
standard as trial courts. Lorain Natl. Bank v. Saratoga Apts., 61 Ohio App.3d 127, 129,
5.
572 N.E.2d 198 (9th Dist.1989). The motion may be granted only when it is
demonstrated:
(1) that there is no genuine issue as to any material fact; (2) that the
moving party is entitled to judgment as a matter of law; and (3) that
reasonable minds can come to but one conclusion, and that conclusion is
adverse to the party against whom the motion for summary judgment is
made, who is entitled to have the evidence construed most strongly in his
favor. Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 67, 375
N.E.2d 46 (1978), Civ.R. 56(C).
{¶ 11} When seeking summary judgment, a party must specifically delineate the
basis upon which the motion is brought, Mitseff v. Wheeler, 38 Ohio St.3d 112, 526
N.E.2d 798 (1988), syllabus, and identify those portions of the record that demonstrate
the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 293,
662 N.E.2d 264 (1996). When a properly supported motion for summary judgment is
made, an adverse party may not rest on mere allegations or denials in the pleadings, but
must respond with specific facts showing that there is a genuine issue of material fact.
Civ.R. 56(E); Riley v. Montgomery, 11 Ohio St.3d 75, 79, 463 N.E.2d 1246 (1984). A
“material” fact is one which would affect the outcome of the suit under the applicable
substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 304, 733
N.E.2d 1186 (6th Dist.1999); Needham v. Provident Bank, 110 Ohio App.3d 817, 826,
6.
675 N.E.2d 514 (8th Dist.1996), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248, 106 S.Ct. 2505, 91 L.Ed.2d 201 (1986).
III. Law and Analysis
{¶ 12} The state’s single assignment of error and CTIA’s first assignment of error
both challenge the trial court’s determination that S.B. 331 violates the one-subject rule
of Article II, Section 15(D) of the Ohio Constitution. CTIA’s second assignment of error
challenges the trial court’s decision invalidating the provisions of S.B. 331 related to the
statewide regulation of micro-wireless equipment. We begin by addressing the one-
subject rule challenge. We next address the trial court’s decision invalidating the
provisions of the bill impacting CTIA.
A. “No bill shall contain more than one subject.”
{¶ 13} Article II, Section 15(D) of the Ohio Constitution provides that “No bill
shall contain more than one subject, which shall be clearly expressed in its title.” The
rule is designed to prevent logrolling, “which occurs when legislators combine
disharmonious proposals in a single bill to ensure passage of proposals that might not
have won acceptance on their own.” State ex rel. Ohio Civ. Serv. Emp. Assn. v. State,
146 Ohio St.3d 315, 2016-Ohio-478, 56 N.E.3d 913, ¶ 15, citing State ex rel. Dix v.
Celeste, 11 Ohio St.3d 141, 142-143, 464 N.E.2d 153 (1984). The one-subject rule is
mandatory, however, courts must “liberally construe the term ‘subject’ for purposes of
the rule.” Id. at ¶ 16, citing State ex. rel. Ohio Academy of Trial Lawyers v. Sheward, 86
Ohio St.3d 451, 498, 715 N.E.2d 1062 (1999).
7.
{¶ 14} The one-subject rule does not prohibit lawmakers from passing a bill
addressing a plurality of topics; it prohibits them from passing a bill containing “a
disunity of subjects.” Id. at ¶ 17, citing State ex rel. Hinkle v. Franklin Cty. Bd. of
Elections, 62 Ohio St.3d 145, 148, 580 N.E.2d 767 (1991). That a bill addresses multiple
topics is not fatal so long as there exists a common purpose or relationship between the
topics. Id., citing Hoover v. Franklin Cty. Bd. of Commrs., 19 Ohio St.3d 1, 6, 482
N.E.2d 575 (1985). The Ohio Supreme Court has explained that “[o]nly when there is no
practical, rational or legitimate reason for combining provisions in one act will we find a
one-subject-rule violation.” Id., quoting Dix at 145. To that end, the court has refused to
invalidate statutes under the one-subject rule unless they contain “‘a manifestly gross and
fraudulent violation.’” Id.
{¶ 15} It is well-established that we must presume the constitutionality of lawfully
enacted legislation. Zeigler v. Zumbar, 129 Ohio St.3d 240, 2011-Ohio-2939, 951
N.E.2d 405, ¶ 24. “[B]efore a statute is struck down ‘it must appear beyond a reasonable
doubt that the legislation and constitutional provisions are clearly incompatible.’” Id.,
quoting State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59 (1955),
paragraph one of the syllabus. We examine S.B. 331 with these principles in mind.
B. “Blatant disunity” exists among the provisions of S.B. 331.
{¶ 16} S.B. 331 as originally introduced in the Senate proposed numerous
amendments and enactments to only R.C. Chapter 956—the chapter of the Revised Code
governing the regulation and licensing of dog kennels. The bill that ultimately was
8.
approved and signed into law added diverse new provisions, including provisions
governing construction and attachment activities related to micro wireless facilities in the
public way; prohibiting political subdivisions from establishing minimum wage rates
different from the rate required by state law; granting private employers exclusive
authority to establish policies concerning various terms of employment; criminalizing
sexual conduct with animals; prohibiting cockfighting, bearbaiting, or pitting animals
against each other; removing residency requirements for county humane society agents;
and appropriating funds for programs involving animal health and food safety.
{¶ 17} The state argues that the topics of S.B. 331 are unified by a common
purpose: “to standardize the manner in which businesses are regulated in Ohio to avoid a
patchwork of local ordinances.” Similarly, CTIA argues that S.B. 331 “reflects a single
legislative public-policy determination—that economic development in Ohio is better
served when certain types of business activity are freed from a patchwork quilt of
differing local regulations, and instead subjected to a uniform statewide rule.” CTIA
claims that while the Senate initially chose to apply this policy determination solely to the
regulation of dog sales, the House chose to expand it to “three additional business
activities”—“minimum wages, employment conditions, and micro-wireless equipment
installation.”
{¶ 18} The city of Toledo insists, however, that S.B. 331 addresses a “hodgepodge
of subjects” and “fails to provide any glimmer of a unifying theme.” The other plaintiff-
cities maintain that “[t]he assertion that the purpose is business regulation or uniform
9.
business regulation throughout the state is not clearly identified in the subject of the bill
and is so strained that it lacks legitimacy.”
{¶ 19} The trial court agreed with the cities. It found that “[t]he final version of
S.B. 331 embodies a jumble of incongruous provisions governing disparate activities and
relations across several substantive areas of law without any suggestion of a single
subject, overreaching purpose, or unifying scheme that brings them into common focus.”
It further found that “the proposed hypothetical subjects in this case are unreasonably
broad and capacious in their attempt to conjoin the disparate matters embraced by S.B.
331.” And, citing Sheward, 86 Ohio St.3d 451, 499, 715 N.E.2d 1062, it concluded that
the proposed hypothetical subjects are “‘a ruse by which to connect blatantly unrelated
topics.’”
{¶ 20} The trial court’s conclusion is in accord with the conclusions reached by
the Cuyahoga, Franklin, and Hamilton County common pleas courts, which considered
the same issue. The trial court in City of Cleveland, Cuyahoga C.P. No. CV-17-877584
(Dec. 6, 2017), rejected the defendants’ “broad concept of single-subject” and found “no
practical, rational, or legitimate reason for combining these provisions into one act.” Id.
at * 2. It concluded that “[p]rohibitions against pet sales, animal fighting, and sexual acts
with animals share nothing in common with small cell wireless facilities and equipment
or statewide minimum wage provisions and work condition policies,” and it declared the
combination of these subjects a “classic example of logrolling.” Id.
10.
{¶ 21} Similarly, in City of Bexley, Franklin C.P. No. 17CV-2672, 92 N.E.3d 397
(2017), the Franklin County trial court concluded that “a blatant disunity exists” and “[a]
constitutional violation has been demonstrated.” Id. at 406. It reasoned that “[a]lthough
defendants argue that most of S.B. 331 fits neatly under an overarching theme of
eliminating a patchwork quilt of municipal business regulations, even that generous view
of the ‘subject’ fails to capture all this diversity.” Id. at 405. It found that “were a court
to accept that broad concept of a single ‘subject’ it would eviscerate the Constitutional
rule.” Id.
{¶ 22} And the Hamilton County trial court in City of Cincinnati, Hamilton C.P.
No. A1701966 (Sept. 26, 2017), found “beyond a reasonable doubt, that blatant disunity
exists” in the subject-matter of the bill that ultimately passed. Id. at * 6. The court stated
that it could find “‘no practical, rational or legitimate reason’ for combining these
provisions into one act.” Id. It posited that under the unifying subject identified by the
defendants—the public-policy determination that certain business activities should be
subjected to a uniform statewide rule—“the General Assembly would have been free to
add virtually any topic to this bill, as long as there was a general statewide interest
requiring statewide regulation, which in the Court’s opinion would effectively render the
one-subject rule meaningless.” Id. at * 3.
{¶ 23} Only the Summit County trial court reached a different conclusion. It
concluded that the bill’s one subject was to “limit * * * the power of municipal
corporations to exercise their self-governing authority regarding the matters covered by
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Substitute Senate Bill No. 331.” City of Hudson v. State of Ohio, Summit C.P. No. CV-
2017-03-1103, *16 (July 7, 2017). It found that only four of the 16 amendments and 25
enactments achieved by passage of S.B. 331 did not fall into this single purpose of the
bill.
{¶ 24} The Ohio Supreme Court has on numerous occasions considered claims of
one-subject violations. It explained in Sheward, 86 Ohio St.3d 451, 499, 715 N.E.2d
1062:
These cases 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.”
{¶ 25} In Sheward, the court examined Am.Sub.H.B. No. 350, a bill “purport[ing]
to encompass ‘changes in the laws pertaining to tort and other civil actions.’” Id. at 494.
The bill “attempt[ed] to combine the wearing of seat belts with employment
discrimination claims, class actions arising from the sale of securities with limitations on
12.
agency liability in actions against a hospital, recall notification with qualified immunity
for athletic coaches, actions by a roller skater with supporting affidavits in a medical
claim, and so on.” Id. at 499. The court found that the substance and content of the
provisions were so diverse and the commonality of purpose or relationship so attenuated
that the statement of subject necessary to encompass them was so broad and expansive
that any suggestion of unity of subject matter was illusory. It commented that if it
accepted the notion that “tort and other civil actions” was a legitimate subject under
which to combine the provisions of the bill, “the General Assembly could conceivably
revamp all Ohio law in two strokes of the legislative pen -- writing once on civil law and
again on criminal law.” Id. at 499.
{¶ 26} In this case, we find that the topics embraced in S.B. 331 are so diverse,
and their connection to each other so attenuated, that the statement of subject purporting
to connect them—the need for uniform statewide regulation—is strained to the point of
losing its legitimacy. We agree with the well-reasoned decision of the trial court, and we
find beyond a reasonable doubt that S.B. 331 violates the one-subject rule contained in
Article II, Section 15(D) of the Ohio Constitution and is, therefore, unconstitutional.
{¶ 27} We find the state’s assignment of error and CTIA’s first assignment of
error not well-taken.
C. With no discernible primary purpose, severance is not possible.
{¶ 28} Having found that S.B. 331 violates the one-subject rule, the trial court
considered whether the severance doctrine could be applied to save portions of the bill. It
13.
determined that “application of the severance doctrine to save any portion of S.B. 331 is
unwarranted because there is no discernible primary subject of the bill.”
{¶ 29} Although the state does not specifically assign error in the trial court’s
refusal to sever portions of S.B. 331, it argues on appeal that the cities in their complaints
sought to enjoin only the micro-wireless and minimum wage provisions of the bill,
therefore, the trial court “erred by reaching unchallenged provisions of S.B. 331 which
Plaintiffs had not even alleged standing to challenge.” CTIA continues to argue that the
primary purpose of the bill was to relieve businesses from burdensome local regulation,
and insists that the trial court erred by failing to narrowly tailor its decision by striking
provisions of the bill that are related to this primary purpose. And CTIA, like the state,
challenges the cities’ standing. It quotes Preterm-Cleveland, Inc. v. Kasich, 153 Ohio
St.3d 157, 2018-Ohio-441, 102 N.E.3d 461, ¶ 30, and argues that “a party challenging
multiple provisions in an enactment of the General Assembly as violating the Single
Subject Clause must prove standing as to each provision the party seeks to have severed
from the enactment by demonstrating it suffered or is threatened with direct and concrete
injury in a manner or degree different from that suffered by the general public because of
each provision.”
{¶ 30} In State ex rel. Hinkle, 62 Ohio St.3d 145, 580 N.E.2d 767, the Ohio
Supreme Court provided the authority “to sever portions of an act that violate the one-
subject rule in order ‘to cure the defect and save the portions * * * which do relate to a
single subject.’” This requires the court “to ascertain which subject is primary and which
14.
subject is an unrelated add-on. The former is then saved by severing the latter.” Id.
Where the court can discern no “primary” subject matter of the bill, severance is not
possible and the bill must be held unconstitutional in its entirety. Akron Metro. Hous.
Auth. Bd. of Trustees v. State, 10th Dist. Franklin No. 07AP-738, 2008-Ohio-2836, ¶ 27.
{¶ 31} We agree with the trial court that while the originally-introduced legislation
had a discernible primary subject, S.B. 331 as approved does not. It was, therefore, not
possible to save any provisions of the bill.
{¶ 32} And as to the challenge to the cities’ standing, the cases cited by the state
and CTIA all involved private litigants—not cities and municipalities whose authority to
pass laws has been stymied by legislation. Also, to the extent that the state claims that
“Plaintiffs did not even ask for the relief that the trial court granted,” we observe that the
cities in their complaints challenge the bill in its entirety. See, e.g., the city of Toledo’s
complaint at ¶ 69 (“S.B. 331 is unconstitutional in toto as it was passed in violation of the
single-subject rule * * *.”); paragraph A of the city of Toledo’s prayer for relief (“Toledo
demands * * * [o]n its First Claim for Relief, a declaration that the S.B. 331 is
unconstitutional as it was passed in violation of the single-subject rule * * *.”). We find
no merit to the position that the cities lack standing.
{¶ 33} Accordingly, we find CTIA’s second assignment of error not well-taken.
IV. Conclusion
{¶ 34} We find beyond a reasonable doubt that blatant disunity exists in the
subject-matter of S.B. 331, and the bill, therefore, violates the one-subject rule of Article
15.
II, Section 15(D) of the Ohio Constitution. And because the bill lacks a discernible
primary subject, the severance doctrine cannot operate to save any portion of it.
Accordingly, we find the state’s sole assignment of error and CTIA’s two assignments of
error not well-taken. We affirm the December 19, 2017 judgment of the Lucas County
Court of Common Pleas. The costs of this appeal are assessed to the state of Ohio and
CTIA under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, J.
_______________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
16.