Drewes Farms P'ship v. City of Toledo

• Decision Date: 27 February 2020
• Docket Number: Case No. 3:19 CV 434
• Citation: 441 F.Supp.3d 551
• Parties: DREWES FARMS PARTNERSHIP, Plaintiff, and State of Ohio, Intervenor, v. CITY OF TOLEDO, Defendant.
• Court: U.S. District Court — Northern District of Ohio

441 F.Supp.3d 551

DREWES FARMS PARTNERSHIP, Plaintiff,andState of Ohio, Intervenor,

v.CITY OF TOLEDO, Defendant.

Case No. 3:19 CV 434

United States District Court, N.D. Ohio, Western Division.

Signed February 27, 2020

Christopher L. Ingram, Daniel E. Shuey, Kimberly Weber Herlihy, Thomas H. Fusonie, Vorys, Sater, Seymour & Pease, Columbus, OH, for Plaintiff.

Amanda M. Ferguson, Daniel J. Martin, Gregg Henry Bachmann, Office of the Attorney General - Environmental Enforcement State of Ohio, Columbus, OH, for Intervenor.

Gerald R. Kowalski, Jennifer A. McHugh, Sarah K. Skow, Spengler Nathanson, Toledo, OH, for Defendant.

ORDER INVALIDATING LAKE ERIE BILL OF RIGHTS

JACK ZOUHARY, U.S. DISTRICT JUDGE

INTRODUCTION

On a Saturday morning in August 2014, City of Toledo officials issued a warning to residents: Don't drink the water. The City water supply contained unsafe levels of a toxic substance, and pollution in Lake Erie was the culprit.¹ The water remained undrinkable for nearly three days.²

In response, Toledo residents began a multi-year campaign to add a Lake Erie Bill of Rights ("LEBOR") to the City Charter (Doc. 10-3 at ¶ 6). They collected over ten thousand petition signatures, triggering a February 2019 special election under Article XVIII, Section 9 of the Ohio Constitution (Doc. 41 at 37–38). LEBOR won about sixty percent of the 16,215 votes cast, so it became part of the Charter the next month (id. at 38).

Plaintiff Drewes Farms Partnership, which grows crops in four counties near Toledo, initiated this lawsuit the day after the election (Doc. 1 at ¶¶ 18, 21). Intervenor State of Ohio joined a few months later (Doc. 21). Both ask this Court to declare LEBOR invalid under Federal Civil Rule 12(c) and 28 U.S.C. § 2201 (Docs. 34, 35, 52, 53, 59). Defendant City of Toledo opposes (Docs. 47, 48, 56, 60). The City contends neither Drewes Farms nor the State has a right to challenge LEBOR, and it further contends LEBOR is valid. With agreement from both sides, this Court issued a Preliminary Injunction last year (Doc. 9). The Injunction prevents enforcement of LEBOR until this lawsuit ends. This Court heard oral argument at a recent Hearing (Doc. 61) and received an amicus brief from Toledoans for Safe Water, Inc. (Doc. 51).

LAKE ERIE BILL OF RIGHTS

LEBOR declares that "Lake Erie, and the Lake Erie watershed, possess the right to exist, flourish, and naturally evolve." TOLEDO MUN. CODE ch. XVII, § 254(a). Additionally, the Charter amendment grants Toledo residents "the right to a clean and healthy environment." Id. § 254(b). Under LEBOR, Toledoans also "possess both a collective and individual right to self-government in their local community, a right to a system of government that embodies that right, and the right to a system of government that protects and secures their human, civil, and collective rights." Id. § 254(c). LEBOR contains no definitions or other provisions that would clarify the meaning of these rights, although it does indicate that the protected Lake Erie watershed includes "natural water features, communities of organisms, soil [sic] as well as terrestrial and aquatic sub ecosystems." Id. § 254(a).

"The City of Toledo, or any resident of the City," may sue to enforce the three rights enumerated in LEBOR. Id. § 256(b). Businesses and governments that infringe the rights "shall be guilty of an offense and, upon conviction thereof, shall be sentenced to pay the maximum fine allowable under State law for that violation." Id. § 256(a). LEBOR applies to businesses and governments "in or from any jurisdiction," id. § 256(c), and "implementing legislation shall not be required," id. § 254(d). State laws, regulations, permits, and licenses are declared invalid in Toledo to the extent they conflict with LEBOR. Id. §§ 255(b), 257(b). LEBOR also purports to supersede federal permits and licenses. Id. § 255(b). The full Charter amendment is attached to this Order.

STANDING

Before analyzing LEBOR, this Court must determine whether Drewes Farms or the State has a right to bring this lawsuit. The relevant doctrine is called standing. Litigants have standing to sue only if they "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). Standing ensures that federal courts do not issue advisory opinions, which the United States Constitution forbids. See Sierra Club v. Morton , 405 U.S. 727, 732 n.3, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). Federal courts adjudicate live disputes only. See FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 237, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). This lawsuit may proceed if either Drewes Farms or the State has standing, even if one or the other does not. See Janus v. AFSCME, Council 31 , 851 F.3d 746, 748 (7th Cir. 2017) (citing Vill. of Oakwood v. State Bank & Trust Co. , 481 F.3d 364, 367 (6th Cir. 2007) ), rev'd on other grounds by ––– U.S. ––––, 138 S. Ct. 2448, 2486, 201 L.Ed.2d 924 (2018).

The central dispute here concerns the injury-in-fact requirement. An injury in fact is an injury that is "concrete and particularized[,] and actual or imminent, not conjectural or hypothetical." Susan B. Anthony List v. Driehaus , 573 U.S. 149, 158, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (citation and internal quotation marks omitted). "An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur." Id. (citation and internal quotation marks omitted). Likely targets of a law need not wait for prosecution to challenge its validity. See id.

Drewes Farms and the State satisfy the injury-in-fact requirement. LEBOR has already injured the State: at least on paper, State laws, regulations, licenses, and permits are invalid in Toledo to the extent they conflict with LEBOR. See Maine v. Taylor , 477 U.S. 131, 136–37, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986). The State could also be sued under LEBOR for failing to sufficiently protect Lake Erie or for violating LEBOR's guarantee of local self-government. Drewes Farms falls within LEBOR's crosshairs, too. The business spreads fertilizer on fields in the Lake Erie watershed (Doc. 1 at ¶¶ 18, 24, 51), arguably infringing the watershed's right to "exist, flourish, and naturally evolve" and the right of Toledoans to a "clean and healthy environment." TOLEDO MUN. CODE ch. XVII, §§ 254(a), (b). The risk of suit under LEBOR is particularly high because enforcement does not depend on government prosecutors -- Toledo residents may file suit themselves. See Driehaus , 573 U.S. at 164, 134 S.Ct. 2334.

Drewes Farms and the State also satisfy the other two standing requirements: traceability and redressability. Their LEBOR-related injuries are traceable to the City -- LEBOR is part of the City Charter. True, LEBOR was enacted by voters rather than legislators, but the City is a proper defendant in this lawsuit nevertheless. See, e.g. , Romer v. Evans , 517 U.S. 620, 623, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ; Washington v. Seattle Sch. Dist. No. 1 , 458 U.S. 457, 462–64, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) ; Equal. Found. of Greater Cincinnati v. City of Cincinnati , 128 F.3d 289, 291 (6th Cir. 1997). Additionally, a court order invalidating LEBOR would redress the alleged injuries, meaning Drewes Farms and the State satisfy the third standing requirement. Having demonstrated their right to bring this lawsuit, both litigants are entitled to an adjudication of their claims. This Court therefore analyzes LEBOR next.

DUE PROCESS

The Fourteenth Amendment to the United States Constitution protects the right to due process. An "essential" element of due process is clarity of the laws. Roberts v. United States Jaycees , 468 U.S. 609, 629, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984) (citation omitted). If a law is so vague that "persons of common intelligence must necessarily guess at its meaning," it is unconstitutional. Id. (brackets and citation omitted). Heightened scrutiny applies to laws that impose criminal penalties, burden the exercise of constitutional rights, or apply a strict-liability standard.

Vill. of Hoffman Estates v. Flipside, Hoffman Estates , 455 U.S. 489, 498–99, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Vague laws are unconstitutional for at least two reasons: they "may trap the innocent by not providing fair warning," and they invite arbitrary enforcement by prosecutors, judges, and juries. Grayned v. City of Rockford , 408 U.S. 104, 108–09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). The clarity requirement also "ensures that [governmental] power will be exercised only on behalf of policies reflecting an authoritative choice among competing social values." Roberts , 468 U.S. at 629, 104 S.Ct. 3244.

Federal courts have invalidated municipal legislation on vagueness grounds. For example, a Cincinnati ordinance criminalized gathering on sidewalks "in a manner annoying to persons passing by." Coates v. City of Cincinnati , 402 U.S. 611, 611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). The Supreme Court struck it down because "[c]onduct that annoys some people does not annoy others." Id. at 614, 91 S.Ct. 1686. A Detroit-area township regulated the use of machines that keep water near boats and docks free from winter ice. Belle Maer Harbor v. Charter Twp. of Harrison , 170 F.3d 553, 555 (6th Cir. 1999). These ice-free areas could not exceed a "reasonable radius." Id. The Sixth Circuit found the ordinance void for vagueness, in part due to the "failure to include a definition of ‘reasonable.’ " Id. at 558–59. A Columbus gun-safety ordinance met the same fate. The ordinance banned forty-six specific guns, as well as "other models by the same manufacturer ... that have slight modifications or enhancements." Springfield Armory, Inc. v. City of Columbus , 29 F.3d 250, 251 (6th Cir. 199...