Opposition Brief — City of Columbus v. Golden

In The

Supreme Court of the United States

a

CITY OF COLUMBUS, et al.,

Telephone: (614) 221-9800

Facsimile: (614) 221-9810

Attorneys for Hazel Golden

II ————

QUESTION PRESENTED

Whether a municipality's termination of water service

to a current tenant and its refusal to permit that tenant to

contract for water service, because cf the failure of the

prior tenant or the landlord to pay an outstanding water

bill, violate the Fourteenth Amendment rights of the

current tenant who did not incur the arrearage.’

* Petitioners frame the question, “Whether the government's

termination of water service to a rental property based on the landlord's

failure to pay the unit’s outstanding utility bill violates the equal

protection rights of a current tenant who did not incur the arrearage.”

y

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ......:.csecsecessessesessssesseeessesseses i

TATED OU COUT TTT I cic cn seecsccntcesocctemevecvsscdossiee ii

TABLES OF AUT TERORIT TI 5a. dices secscsssccecesvenesscssesesecvece iii

NT odie tie 1

SUMMARY OF ARGUMENT ...0.........csccscesseseesceesseseeeee 4

REASONS FOR DENYING THE WRIT..............:0:0++0+: 6

I. The Circuit Courts Are Not “Deeply Divided”

Over Whether The Equal Protection Clause

Permits A Municipality to Terminate Utility

Service To A Rental Property When The Current

Tenant Is Not Responsible For The Debt ............ 6

II. Petitioners Wrongly Allege That The Golden

Decision Prevents Landlords From Being Held

Responsible For Tenants’ Bills .......................+ 9

Ill. The Golden Court Used Rational Basis Review

~ The Least Deferential Level Of Scrutiny — In

Its Equal Protection Analysis And, Therefore,

Did Not Substantially Depart From This

Ca FE siciecnsninalicnsinnitepiaticiarhpenintnnseiasies 10

IV. The Present Case Is Not The Proper Vehicle

For Resolution Of Any Of The Issues Raised

IID de cinicsvinttimnintindapurincspaiishdatintontiente 11

SIGs SUNN nclocennsasentnersinbniienismmmpniibiiplatiiiedivicnpentiis 13

TABLE OF AUTHORITIES

Page

CASES

Craft v. Memphis Light, Gas & Water Div., 534 F.2d

684 (CA6 1976), aff’d, 436 U.S. 1 (1978).........cccccccceserees 3

Davis v. Weir, 497 F.2d 139 (1974) ..........:.cccccseseeeserenrees 3,9

DiMassimo v. Clearwater, 805 F.2d 1036 (CAI1

EARS RENE Se oS a OES ALPS NEEL OE 3, 7,12

James v. City of St. Petersburg, 33 F.3d 1304 (CA11

EEN ASE EM ELSE OR Be IIT Me EET 3,12

Mansfield Apt. Owners Assoc. v. City of Mansfield,

968 F.2d 1469 (CAG 1998) ......ccscccrccsorocessesersnevcosesees 5, 8,9

Midkiff v. Adams Cty. Regional Water Dist., 409

F.3d 758 (CA6 2005), reh’g and reh’g en banc

denied, 2005 U.S. App. LEXIS 19254 (CA6 Aug.

i, I Seth escichcccisniistirles be esiheiclajitetohendanniiitigiiaivdiia 4,7,8,13

Morrical v. Village of New Miami, 476 N.E.2d 378

SE ER: FE DON it pocccensicswepies bseabeiikatniannibionacscesates 5, 8

O’Neal v. City of Seattle, 66 F.3d 1064 (CA9 1995)...6, 7, 9, 11

Ransom v. Marrazzo, 848 F.2d 398 (CA3 1988)........... 4,67

Sterling v. Village of Maywood, 579 F.2d 1350 (CA7

1978), cert. denied, 440 U.S. 913 (1979).................. 6, 7,9

Turpen v. City of Corvallis, 26 F.3d 978 (CA9), cert.

denied, 513 U.S. 963 (1994)...........c.-cccceceseerreeseeres 3, 7,12

STATUTES

City of Columbus Code 1105.045(C) ................ccceseeeeeeeeeeeees 1

City of Columbus Code 1105.045(E) 20.0. ........22..cceceeeeeeeeeeeee 1

STATEMENT

Respondent Hazel Golden is a former tenant of a

rental house in Columbus, Ohio. Unknown to Ms. Golden,

at the time she moved into the house, there was an out-

standing balance on the water bill for the premises in-

curred by a prior tenant which neither the prior tenant

nor the landlord had paid. According to the City of Colum-

bus City Code, “owners of real estate premises installing

or maintaining water service shall be liable for all water

charges incurred for service at said premises.” City of

Columbus Code 1105.045(C). When the landlord failed to

abide by City Code and pay the bill, the City terminated

water service to the house without providing Ms. Golden

with notice or an opportunity to be heard. Service was

resumed on several occasions at the request of the City’s

code enforcement department, but turned off again when

the landlord continued to fail to pay the outstanding water

bill.

During this time, Ms. Golden attempted to obtain

water service in her name. As a tenant, the only method

by which Ms. Golden could open an account in her name

was under a “direct billing agreement.” Ms. Golden

submitted a “direct billing agreement” but received no

response. In any event, because there was a pending

arrearage by the former tenant, Ms. Golden did not qualify

for a direct billing arrangement under the code. See City of

Columbus Code 1105.045(E). Ultimately, she vacated the

premises.

* The City permitted tenants to have accounts in their names in

limited circumstances if the landlord agreed to such an arrangement

via a direct billing agreement. See City of Columbus Code 1105.045(E).

2

On July 25, 2001, Ms. Golden filed suit in the South-

ern District of Ohio, alleging among other things that

petitioners violated her right to equal protection and due

process of law by terminating water service to her rental

unit based on a debt for which she was not responsible

without notice and an opportunity to be heard, and by

refusing to allow her to establish water service in her

name. On June 6, 2002, the district court dismissed her

equal protection and due process claims.

With respect to equal protection, the district court

rejected Ms. Golden’s assertion that water is a fundamen-

tal right requiring the City to have a compelling reason for

treating landowners and non-landowners differently.

Instead, the district court applied rational basis review r)

finding that the City’s policy affected only economic

interests rather than fundamental constitutional rights.

The district court then held that the City’s policy was a

rational means of ensuring payment of water bills.

With respect to due process, the district court found

that tenants do not have a protected property interest in

the right to water service for purposes of due process and,

as such, dismissed Ms. Golden’s due process claim.

On appeal, the Sixth Circuit reversed the district

court’s dismissal of Ms. Golden’s equal protection claim

but upheld the dismissal of her due process claim. With

respect to equal protection, the court of appeals agreed

with the district court that rational basis scrutiny applied

to Ms. Golden’s claims; however, it disagreed with the

district court’s determination that the City’s policy was

rational. Instead, the court concluded that the City’s policy

“divides tenants in an irrational manner because it denies

water service only to those tenants whose predecessors or

3

landlords failed to pay the water bills.” The court ex-

plained that this conclusion was compelled by its prior

decision in Craft v. Memphis Light, Gas & Water Div., 534

F.2d 684 (CA6 1976), aff’d, 436 U.S. 1 (1978), which in

turn adopted the reasoning of the Fifth Circuit’s decision

in Davis v. Weir, 497 F.2d 139 (1974). The court in Davis

held unconstitutional a similar policy, reasoning that

“[t}he City has no valid governmental interest in securing

revenue from innocent applicants who are forced to honor

the obligations of another or face constructive eviction

from their homes for lack of an essential to existence —

water.” Id. at 145. Because the court in Davis construed

such policies as an illegitimate attempt to extract payment

from the new tenant, it held that scheme was “devoid of

logical relation to the collection of unpaid water bills from

the defaulting debtor.” Id. at 144-45.

With respect to due process, the court noted that Ms.

Golden failed to cite to Ohio’s Landlord Tenant Act as a

potential source of property rights for purposes of due

process. The court noted that, “other circuits have held

that certain provisions common to landlord-tenant stat-

utes to be sufficient for this purpose,” citing the Eleventh

Circuit cases of James v. City of St. Petersburg, 33 F.3d

1304, 1306-07 (CA11 1994) (en banc); DiMassimo v. Clear-

water, 805 F.2d 1536, 1539-40 (CA11 1986), and the Ninth

Circuit case of Turpen v. City of Corvallis, 26 F.3d 978, 979

(CAQ), cert. denied, 513 U.S. 963 (1994). The court did not

* The Sixth Circuit understood that the classification for purposes

of equal protection was between two classes of tenants as opposed to the

district court’s conclusion that the classification was hetween landown-

ers and tenants.

4

express a o7/ 1 as to whether these precedents would

have weighed fis. Golden’s favor and determined that

Ms. Golden did no’: demonstrate that she had a cognizable

property interest in continued water service.‘ The Sixth

Circuit therefore affirmed the district court’s dismissal of

Ms. Golden’s due process claim, which is not an issue in

she current Petition."

This timely Petition for Writ of Certiorari was filed

September 15, 205.

7

SUMMARY OF THE ARGUMENT

First, the circuit courts are not “deeply divided” over

whether the Equal Protection Clause permits a city to

terminate utility service to a rental property when the

current tenant is not responsible for the debt. The only

case cited by petitioners to make an equal protection

decision contrary to the one in Golden is a 1988 Third

Circuit decision. See Ransom v. Marrazzo, 848 F.2d 398,

414 (CA3 1988). More important, that case may not truly

represent a split of authority because it can be factually

distinguishable as the Ransom plaintiffs were “non-

tenants.”

* Since the time of the Sixth Circuit's decision in Golden, that court

has had an opportunity to determine the question of whether Ohio’s

Landlord Tenant Act creates in a tenant a property interest to contin-

ued water service. See Midkiff v. Adams Cty. Regional Water Dist., 409

F.3d 758 (CA6 2005), reh’g and reh’g en bance denied, 2005 U.S. App.

_ LEXIS 19254 (CA6 Aug. 30, 2005). The court answered that question in

the negative.

* The court of appeals also upheld the district court’s dismissal of

respondent’s Equal Credit Opportunity Act claims and its denial of

class certification.

5

The case cited by petitioners that allegedly demon-

strates a conflict between Golden and the state courts of

Ohio is also off the mark. See Morrical v. Village of New

Miami, 476 N.E.2d 378 (Ohio Ct. App. 1984). That case is

not from Ohio’s highest court and, in any event, deals with

the issue of whether a landlord can be held responsible for

the debts of a tenant, which, as stated, infra, is not the

issue before this Court.

Second, petitioners confuse the issue to overstate and

misstate the effect of the Golden decision on “the financial

stability of tens of thousands of municipal utilities.” Pet.

Br. 10. Petitioners’ argument suggests that the Golden

decision affects a municipality's ability to hold a property

owner responsible for a delinquent tenant's bill. That is

not true, as many municipal utilities in Ohio and else-

where address the concern of delinquent tenants by

holding a landlord ultimately responsible for payment.

This practice has been held to be rational and legal. See

Mansfield Apt. Owners Assoc. v. City of Mansfield, 988

F.2d 1469, 1478 (CA6 1993). Golden does not affect that

practice but instead deals with the very different question

of the constitutional rights of tenants who are denied

water service.

Next, the Golden decision is not a “substantial depar-

ture” from this Court’s equal protection precedents. The

Golden court used rational basis scrutiny, the least defer-

ential level of scrutiny, which is hardly a substantial

departure from this Court’s long line of equal protection

precedent.

Finally, the present case is not the proper vehicle for

resolution of any of the issues raised by petitioners.

Petitioners present an equal protection argument only;

however, the issues raised by the denial of utility service

to tenants involve both the Equal Protection Clause and

the Due Process Clause. It would be confusing and a waste

of judicial resources for this Court to decide only the equal

protection issue.

7

REASONS FOR DENYING THE WRIT

The Circuit Courts Are Not “Deeply Divided”

Over Whether The Equal Protection Clause

Permits A Municipality to Terminate Utility

Service To A Rental Property When The Cur-

rent Tenant Is Not Responsible For The Debt.

A. This issue does not necessarily present a

true question of law warranting review by

this Court.

Petitioners refer to a recurring conflict among the

federal courts of appeals; however, this “conflict” may

hinge on factual distinctions rather than a true question of

law signifying a split among the circuits. The only case

cited by petitioners to hold contrary to the equal protection

holding in Golden was decided by the Third Circuit over

seventeen years ago. See Ransom v. Marrazzo, 848 F.2d

393, 412-13 (CA3 1988). That case may not present a true

split in the law of equal protection because it’s factually

distinguishable from Golden and its predecessors.’ The

plaintiffs in Ransom cannot be compared to those in

Golden or its predecessors because the plaintiffs in Ran-

som were “non-tenants.” Jd. at 401. The Ransom court

* Davis v. Weir, 497 F.2d 139 (CAS 1974); Sterling v. Village of

Maywood, 579 F.2d 1350 (CA7 1978), cert. denied, 440 U.S. 913 (1979),

O'Neal v. City of Seattle, 66 F.3d 1064 (CA9 1995).

——==_. 7

specifically noted this fact stating, “Thus, we do not reach

the question of whether the asymmetries in the landlord-

tenant relationship introduce an added constitutional

dimension to the propriety of denying service to non-

delinquent tenants.” Id. at 402 n.1 (emphasis added).’ As

such, Ransom acknowledges that it does not address the

issue presented by Golden and may indicate that there is

not a split of authority that is ripe for this Court’s consid-

eration.’

Another good example of factual distinction that can

obscure the legal issues raised by petitioners is illustrated

by the Sixth Circuit’s decision in Midkiff v. Adams Cty.

Regional Water Dist., 409 F.3d 758 (CA6 2005), reh’g and

reh’g en banc denied, 2005 U.S. App. LEXIS 19254 (CA6

Aug. 30, 2005).’ The Sixth Circuit decided Midkiff shortly

after it decided Golden, but found there was no equal

protection violation in Midkiff, despite the fact that

Midkiff involved a municipality's shut-off of a tenant’s

water service based on the debts of past tenants. The Sixth

Circuit found that unlike in Golden, in which the court

* The Ninth Circuit recognized this distinction, but nonetheless

chose to distinguish Ransom on its merits. See O’Neal v. City of Seattle,

66 F.3d 1064, 1068 n.3 (CA9 1995). (“Although the Ransom court may

have intended to limit the scope of its opinion, its substantive discus-

sion of the landlord-tenant cases is, at a minimum, instructive. We

therefore discuss its analysis without attempting to distinguish the

case on landlord-tenant grounds.”)

* Petitions for Writs of Certiorari have been denied in similar cases

twice. See Turpen v. City of Corvallis, 26 F.3d 978, 979 (CA9), cert.

denied, 513 U.S. 963 (1994); Sterling v. Village of Maywood, 579 F.2d

1350 (CA7 1978), cert. denied, 440 U.S. 913 (1979).

* See also DiMassimo v. City cf Clearwater, 805 F.2d 1536, 1541

(CA11 1986) (finding no equal protection violation because the classifi-

cation in that case was between landlords and tenants rather than two

different classifications of tenants).

compared different classifications of tenants for purposes of

equal protection, the only classification set forth in Midkiff

was between landlords and tenants, two groups that are

not similarly situated for equal protection purposes. The

Sixth Circuit narrowly construed Golden; it distinguished

Golden not by a different interpretation of equal protection

law, but by different factual circumstances in the case.

B. Petitioners’ allegation that the Golden case

is in conflict with Ohio state law is wrong.

Petitioners further argue that the Golden decision

conflicts with the law of Ohio, citing to Morrical v. Village

of New Miami, 476 N.E.2d 378 (Ohio Ct. App. 1984).

Again, Petitioners confuse the issues presented by Golden.

The Morrical case holds:

A municipal ordinance which imposes liability on

a property owner for water services provided *~ a

tenant on the premises does not violate either

the Due Process or Equal Protection Clauses of

either the state or federal Constitutions.

Id. at syllabus { 1. The holding of that case therefore deals

with the liability of property owners, which is not at issue

in the Golden decision.” No matter what the outcome of

Golden, municipalities always have the right to collect

utility debts from the owner of the property on which the

debt was incurred. See, e.g., Mansfield Apt. Owners Assoc.

uv. City of Mansfield, 988 F.2d 1469, 1478 (CA6 1993).

” See further discussion in Section II.

9

Il. Petitioners Wrongly Allege That The Golden

Decision Prevents Landlords From Being Held

Responsible For Tenants’ Bills.

The purportedly great economic effect of this decision

alleged by petitioners comes from petitioners’ misstated

argument regarding the effect of the Golden decision.

Petitioners go on at length about the importance of hold-

ing landowners ultimately responsible for the debts of

their tenants. However, the Golden decision has no effect

on this practice.

Petitioners contend that the Golden decision” “prohib-

its a municipality from making landlords responsible for

the payment of utility bills for their rental properties and

terminating service to the property if the bill is not paid

and the tenant living in the unit at the time of termination

is not responsible for the arrearage.” Pet. Br. 5.

Petitioners’ argument and language suggest to this

Court that these decisions prohibit a municipality from

holding landlords responsible for payment of utility bills

for their rental properties. This is simply not true. It is

well established that a municipality does not violate the

constitution by holding a landlord liable for utility debts

incurred on his er her property. See Mansfield Apt. Owners

Assoc., 988 F.2d at 1478. Instead, the effect of Golden and

its predecessors is to prohibit one means of enforcement of

a municipality's right to collect from a landlord when that

" As well as the decisions in Davis vo. Weir, 497 F.2d 139 (CAS

1974); Sterling v. Village of Maywood, 579 F.2d 1350 (CA7 1978), cert.

denied, 440 U.S. 913 (1975), and O'Neal v. City of Seattle, 66 F.3d 1064

(CAS 1996).

10

enforcement violates the constitutional rights of an inno-

cent, subsequent tenant.

Petitioners attempt to commingie and confuse these

two separate issues in an effort to make unconstitutional

policies appear “rational.” Again and again in their argu-

ment, petitioners refer to the right to “hold landlords

responsible for utility bills on their rental properties and

to terminate service for nonpay xent.” That is not the issue

presented. The issue is whether a municipality can deny

water service to tenants and terminate water service to a

tenant based on the bill of a third party, because the

municipality wants a method of enforcement to strong arm

landlords into paying bills for delinquent tenants who

have since moved off the property. Regardless of the

answer to that question, the municipality always has the

right to hold the landlord responsible for the debt.

In sum, petitioners’ argument regarding the great

economic effect of the Golden decision is exaggerated and

overstated. Municipalities will continue to have the right

to hold landlords responsible for utility debts incurred on

their property regardless of the Golden decision.

Ill. The Golden Court Used Rational Basis Review

~ The Least Deferential Level Of Scrutiny - In

Its Equal Protection Analysis And, Therefore,

Did Not Substantially Depart From This

Court’s Precedent.

Petitioners claim that the decision in Golde: is a

substantial departure from “the deferential standard of

review required for ordinary economic legislation.” It is

somewhat puzzling that petitioners raise the issue of the

standard of review used for equal protection review or

11

suggest there is a conflict about that standard when there

has never been an argument nor a difference among the

courts regarding that issue. Respondent conceded to the

Sixth Circuit that raticnal basis review was the appropri-

ate standard, and that court applied rational basis review,

the least deferential standard.

The Golden court found, as did the Ninth Circuit in

O’Neal, “pursuing payment from the pricr tenant and the

landlord would be rationally related to the City’s goal;

refusing service to an unobligated new tenant would not.”

Golden, 404 F.3d at 962 (quoting O’Neal, 66 F.3d at 1068).

The Golden court got it right. Petitioners’ argument to the

contrary is again based on their flawed premise that the

only way to hold the landlord responsible for the debts of

tenants — their economic rationality argument — is to

withhold service from landlords for nonpayment, no

matter what the consequences are to innocent subsequent

tenants. The Golden court carefully analyzed the situation

using the proper standard of review. This is hardly a

substantial departure from precedent warranting over-

sight from this Court.

IV. The Present Case Is Not The Proper Vehicle

For Resolution Of Any Of The Issues Raised By

Petitioners.

A. This case fails to raise due process issues, a

critical part of the analysis in every case

that has addressed this issue.

This case is not the proper vehicle for resolution for

any of the issues raised by petitioners. In the present case,

12

petitioners do not raise a due process argument because the

Golden court agreed with their position on due process.”

However, every single case cited by petitioners that has

considered the equal protection argument has also consid-

ered the corresponding due process issue. If this Court is

going to resolve the Fourteenth Amendment questions

resulting from this issue, it should consider the issue fully

and determine both the due process and equal protection

arguments in a case that presents both arguments. It

would be a waste of judicial resources for this Court to

resolve only a portion of this issue.

B. This case fails to raise a fundamental ques-

tion: whether tenants have a protected

property right to continued water service.

For purposes of due process, a fundamental issue that

is raised by the case law in this area — but not at issue in

the Petition - is whether tenants have a protected prop-

erty interest in continued water service. This is a funda-

mental question that should be answered by this Court in

any analysis of the rights of tenants with respect to water

service.

Several circuit courts have found a source of such a

property interest to exist in state landlord-tenant statutes.

See, e.g., James v. City of St. Petersburg, 33 F.3d 1304,

1306-07 (CA11 1994) (en banc); DiMassimo v. Clearwater,

805 F.2d 1536, 1539-40 (CAl1 1986); Turpen v. City of

Corvallis, 26 F.3d 978, 979 (CA9), cert. denied, 513 U.S. 963

(1994). Unfortunately, the issue of the Ohio landlord-tenant

* Respondent chose not to cross petition because she failed to raise

Ohio’s Landlord-Tenant statutes in the lower court, as more fully

explained in Sec. IV, Part B.

13

statutes was not raised in the Golden case, as noted by the

Sixth Circuit, “[w)e express no opinion as to whether these

precedents weigh in Golden’s favor because Golden does

not rely upon any provision of Ohio’s landlord-tenant law

in this appeal.” Golden, 404 F.3d at 958. However, after

Golden, the Sixth Circuit found that Ohio’s landlord-

tenant statutes do not confer a property interest to tenants

in continued water service. See Midkiff v. Adams Cty.

Regional Water Dist., 409 F.3d 758, 765 (CA6 2005), reh'g

and reh’g en banc denied, 2005 U.S. App. LEXIS 19254

(CA6 Aug. 30, 2005). If there is any disagreement among

the circuits, it is regarding that question which cannot be

resolved by the Golden case.

Accordingly, state landlord-tenant statutes are not at

issue in Golden and, therefore, Golden is not the proper

case for this Court to resolve the due process issues nor

the greater Fourteenth Amendment issues.

+

CONCLUSION

For all the foregoing reasons, the Petition for Writ of

Certiorari should be denied.

Respectfully submitted,

BENSON A. WOLMAN

Counsel of Record

KIMBERLY M. SKAGGS

EQUAL JUSTICE FOUNDATION

88 East Broad Street, Suite 1509

Columbus, Ohio 43215

Telephone: (614) 221-9800

Facsimile: (614) 221-9810

Attorneys for Hazel Golden

No. 05-354

Inu the Supreme Court of the Hnited States

CIiry OF COLUMBUS, ET AL., PETITIONERS

HAZEL GOLDEN

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOINT BRIEF OF AMICI CURIAE

IN SUPPORT OF PETITIONER

Andrew Jay Burkholder

Acting Law Director

Attorney for Amicus

Curiae The City of

Springfield

Julia L. McNeil

City Solicitor

Attorney for Amicus

Curiae

The City of Cincinnati

Max Rothal

Director of Law

Attorney for Amicus

Curiae

The City of Akron

Barry M. Byron

Counsel of Record

John E. Gotherman

Interstate Sq. Building I

Suite 240

4230 State Route 306

Willoughby, Ohio 44094

(440) 951-2303

Attorneys for Amicus

Curiae The Ohio

Municipal League

CURRY 4 TAYLOR @ WASH O.C. ¢ (202) 223-3140 ¢ USBSCINFO.cOm

Court,

PILED

OCT 19 205

THE CLERK

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTERESTS OF AMICI CURIAE .......ccccceesesseseeseseereveesensnvees vlisdaie l

INTRODUCTION: SUMMARY OF ARGUMENT............c0sccecsorerenees 6

ARGUMENT

IMPORTANCE OF THIS CASE

LEGAL ARGUMENTS

SERS SS CES RE OCR Oe en SPER 13

ii

TABLE OF AUTHORITIES

CASES

CiTy OF BUCYRUS V. SEARS, 34 OHIO APP. 450, 171

N.E. 256 (1930)

CiTy OF CANTON V. CANTON REALTY & DEV., 1999 OHIO

App. LEXIS 2791

CLEBURNE V. CLEBURNE LIVING CENTER, INC., 473

U.S. 482, 489, 87 L. ED. 2D 313, 105 S. Cr. 3249

CRAFT V. MEMPHIS LIGHT, GAS & WATER DIv., 534

F.2D 684, 689-90 (6TH CIR. 1976), AFF'D ON OTHER

GROUNDS, 436 U.S. 1, 56 L.ED.2D 30, 98 S.CT. 1554

HEMBREE V. MID-AMERICA FEDERAL (1989), 64

OHIO APP. 3D 144, 580 N.E.2p 1108

MORRICAL V. VILLAGE OF NEW MIAMI, 16 OHIO

APP. 3D 439, 476 N.E.2D 378 (1984)

NEW YORK LIFE INS. Co. Vv. SIMPLEX PRODUCTS

CorP. (1939), 135 OHIO ST. 501, 21 N.E.2D 585..................

PFAU V. CITY OF CINCINNATI, 142 OHIO ST. 101, 50

N.E.2D 172 (1943)

VILLAGE OF LUCAS V. LUCAS LOCAL SCHOOL

DISTRICT, 2 OHIO ST.3D 13, 442 N.E.2D 449 (1982)

STATUTES

Ohio Revised Code Section 743.04(A)

l

INTERESTS OF AMICI CURIAE'

Springfield

The City of Springfield, Ohio (“Springfield”)

operates a municipal water utility providing services to

customers within its corporate boundaries and beyond.

Springfield's municipal water utility ordinances require

the City Manager to charge, assess and collect charges

for water services from property owners. Those

ordinances do not provide for charging, assessing or

collecting charges for water services from tenants. The

Springfield municipal water utility ordinances also

authorize the termination of water services if the water

bill is not paid. Resumption of water service is

conditioned upon the payment of all charges and fees

due. Termination of water services for non-payment of

water bills has been an effective method to enforce the

collection of revenue to which Springfield is entitled for

services rendered. As a practical matter, Springfield's

policy for billing and collecting water utility charges

related to residential rental properties is equivalent to

that of the City of Columbus.

The 6th Circuit Court of Appeals decision in

Golden v. City of Columbus will effectively prevent the

use of this collection method when property owners

succeed in renting units to new tenants before past due

water bills are paid. The consequence will be elevated

costs to the municipal utility in the form of increased

uncollected receivables and the increased costs and

personnel time associated with collection litigation

"No person, other than amici and their counsel, participated in the

writing of this brief or made any financial contribution to the brief.

2

against delinquent property owners -- all to the

prejudice of utility rate payers. Further, the additional

collection litigation against delinquent property owners

will add a significant burden to the local courts - to the

prejudice of the community as a whole.

Cincinnati

The City of Cincinnati, Ohio (“Cincinnati”)

operates a municipal water utility providing services to

customers within its corporate boundaries and beyond.

Cincinnati's municipal water utility ordinances require

the Director of the water utility to charge, assess and

collect charges for water services from property

owners. Those ordinances do not provide for charging,

assessing or collecting charges for water services from

tenants.

The Cincinnati municipal water utility

ordinances also authorize the termination of water

services if the water bill is not paid. Resumption of

water service is conditioned upon the payment of all

past due charges or such other payment arrangements

as may be agreed upon by the utility and the property

owner. Payment arrangements are not made directly

with a non-owner.

As a practical business process, and courtesy to

property owners, Cincinnati will send a duplicate copy

of the billing statement to a third party and accept

payment from same. The Ohio Revised Code provides

for rent escrows to assist tenants whose landlords are

not fulfilling the terms of lease agreements or

maintaining properties according to certain standards.

Additionally, the Cincinnati Municipal Code of

Ordinances (ref. Section 401-93-A(e)) provides for

tenants to make payment on past due balances to

3

prevent disconnection of services, or to effect

reconnection of services, on behalf of the property

owner, and to deduct such payments from rents owed

the property owner without the need to set up escrow.

Termination of water services for non-payment

of water bills has been an effective method to enforce

the collection of revenue to which the Cincinnati is

entitled for services rendered.

As a practical matter, Cincinnati's policy for

billing and collecting water utility charges related to

residential rental properties is similar to that of the

City of Columbus. One clear exception is that

Cincinnati maintains no direct tenant relationship,

requiring the property owner’s name on all accounts.

Tenant occupied properties are served written notice at

least 7 days prior to disconnection. The notice explains

tenant rights and the Cincinnati Call Center maintains

a referral list of agencies that will assist them.

Cincinnati joins Springfield in its assessment of

the effect of the Golden case upon collection practices,

increased costs of collection and the adverse impact on

the local courts.

Akron

The City of Akron, Ohio (“Akron”) operates a

municipal water works utility providing services to

customers within its corporate boundaries and beyond.

Akron’s Water Works Rules and Regulations require

all contracts for water service be between Akron and

property owners. The Rules and Regulations also

authorize the termination of water services if the water

bill is not paid.* Resumption of water service is

*' The practice of terminating water service to rental properties

4

conditioned upon the payment of all charges and fees

due. Akron permits property owners to make payment

arrangements on delinquent utilities billings.

Only property owners may enter into payment

arrangements and contract for service. Payments may

be accepted from third parties, including tenants and

land contract buyers. However, the property owner is

ultimately responsible for all billings. As a courtesy,

billings will also be mailed to third parties if requested

by a property owner. Land contract buyers are also

permitted to act as agents for the property owners with

the property owner’s written consent and ultimate

responsibility

Termination of water services for non-payment

of water bills has been an effective method to enforce

the collection of revenue to which Akron is entitled for

services rendered. As a practical matter, Akron’s

policy for billing and collecting water utility charges

related to rental properties is similar to that of the City

of Columbus.

Akron joins Springfield and Cincinnati in their

analysis of the effect of Golden v. City of Columbus on

Akron’s water service. The case will effectively

prevent the use of a rational collection method when

property owners succeed in renting units to new

tenants before past due water bills are paid. The

consequence will be elevated costs to the municipal

utility in the form of increased uncollected receivables

and the increased costs and personnel time associated

with collection litigation against delinquent property

owners — all to the prejudice of utility rate payers.

Further, the additional collection litigation against

delinquent property owners will add a significant

has been suspended by Akron during the pendency of this case.

5

burden to the local courts — to the prejudice of the

community as a whole.

The Ohio Municipal League

The Ohio Municipal League (“League”) is an

Ohio non-profit corporation whose membership includes

over 750 cities and villages in the State of Ohio. When

issues relating to an Ohio municipality’s lawful

authority are raised in litigation, the League frequently

advocates for such authority as an amicus on behalf of

the municipality.

The League seeks to amplify the positions of

Cincinnati, Springfield and Akron: the Sixth Circuit

Court of Appeals’ decision is of state-wide importance

in Ohio, and Ohio municipal utilities will suffer an

adverse impact if the improper decision is permitted to

remain the law of the Sixth Circuit.

Because of Article XVIII of Ohio’s constitution,

which grants broad home rule powers to municipalities,

there are an indefinite number of methods by which

Ohio municipalities may seek to ensure that municipal

utility bills are paid. The League asserts that as long as

any method of collection is undergirded by a rational

basis, as the Columbus policy is, such method ought to

be permitted under the Fourteenth Amendment to the

United States Constitution.

INTRODUCTION: SUMMARY OF

ARGUMENT

Cincinnati, Springfield, Akron and the League

(“Amici”) believe that the arguments of the City of

Columbus in support of the petition are compelling.

Those arguments will not be repeated at length herein.

The Amici write in order to emphasize the importance

of this case in Ohio, and to the Amici municipalities

which run utility systems (see Interests of Amici

Curiae, above).

Since 1912, municipalities in Ohio have had the

constitutional authority to acquire and operate public

utilities. This indicates the importance the people of

Ohio have placed on having reliable municipal utility

services,

Numerous municipal utilities across Ohio,

including those operated by the Amici municipalities,

have policies which are similar to those of Columbus.

These policies allow for the termination of water

service to a property when a bill is delinquent. As a

consequence of the Sixth Circuit’s ruling, these

municipal utilities have been denied an extremely

effective tool for the prompt collection of delinquent

water bills when a property owner succeeds in leasing a

property before the delinquent bill is paid. This tool

helps to ensure the efficient collection of revenues

which are sufficient to pay for current operational

expenses and debt service.

Additionally, persons who rent from landlords

who have delinquent debt are not similarly situated,

under Ohio property law, to those persons who rent

from landlords who are not delinquent on their debt.

Consequently, the policy of the City of Columbus does

"7

not violate the Equal Protection Clause of the

Fourteenth Amendment.

The Amici urge this honorable court to take this

case and resolve the conflict which has developed

between the Federal Circuit Courts of Appeal. Of

particular significance to Ohio’s municipalities: the

Sixth Circuit’s decision under the Fourteenth

Amendment conflicts with an Ohio court’s analysis of

the Equal Protection issue, and this conflict should be

resolved by this court.

ARGUMENT

Amici concur with the legal arguments made by

the Petitioners and will not restate them, in full, here.

S.Ct. Rule 37.1 (“An amicus curiae brief that brings to

the attention of the Court relevant matters not already

brought to its attention by the parties may be of

considerable help to the Court. An amicus curiae brief

that does not serve this purpose burdens the Court, and

its filing is not favored.”)

Instead, Amici will explain why this case is of

importance to Ohio municipalities. Amici will also,

briefly, discuss why a tenant who moves into a property

which is burdened by a delinquent debt is not similarly

situated, as a matter of law, to the tenant who moves

into a property which is not so burdened.

8

THE IMPORTANCE OF THIS CASE

The Ohio Constitution

On September 3, 1912, the people of the State of

Ohio gave Ohio municipalities the constitutional right to

operate public utilities. Article X VIII, Section 4 of the

Ohio Constitution provides:

Any municipality may acquire, construct, own,

lease and operate within or without its corporate

limits, any public utility the product or service of

which is or is to be supplied to the municipality

or its inhabitants, and may contract with others

for any such product or service. The acquisition

of any such public utility may be by

condemnation or otherwise, and a municipality

may acquire thereby the use of, or full title to,

the property and franchise of any company or

person supplying to the municipality or its

inhabitants the service or product of any such

utility.

Rather than rely on the legislative authority of

the state to grant the power to municipalities to

operate public utilities, the people of Ohio determined

that municipal public utilities were a matter of such

importance that they warranted a place in the

constitution. Village of Lucas v. Lucas Local School

District, 2 Ohio St.3d 13, 442 N.E.2d 449 (1982).

The importance of municipal utility powers to

the people of Ohio has not changed since 1912.

i)

Collections

It is reasonable to assume that the people of

Ohio, in providing constitutional authority to

municipalities to construct, acquire and operate

municipal utilities, wanted those utilities to function

properly. They wanted the municipal utilities to deliver

the municipal utility service, expand capacity as the

service territory grew, and collect rates and fees which

were sufficient to finance capital costs and pay current

expenses.

In performing the functions expected of them by

the people of Ohio, municipalities have found that a

policy of making property owners responsible for utility

charges is far more practical than merely holding

tenants in possession of the property responsible.

There are several obvious reasons for these policies.

Tenants are, frequently, transient making collection

problematic. City of Canton v. Canton Realty & Dev.,

1999 Ohio App. LEXIS 2791, at *11. Additionally, the

landlord can adjust vne rent to cover utility charges.

Id. There is also the ability to place delinquent water

charges on the tax list and duplicate, to be collected as a

tax. Ohio Revised Code Section 743.04(A) This filing

also serves as a lien on property to which the service

has been rendered, ensuring that payment of the

delinquent charges is made to the municipality at the

time the property is transferred. /d.

The policy of holding the property owner

responsible for the consumption of utility service by

occupants of the served property has been repeatedly

upheld by the Ohio courts. Pfau v. City of Cincinnati,

142 Ohio St. 101, 50 N.E.2d 172 (1943); Morrical v.

Village of New Miami, 16 Ohio App. 3d 439, 476 N.E.2d

378 (1984); City of Bucyrus v. Sears, 34 Ohio App. 450,