Dublin v. State, 99CVH-08-7007.

• Decision Date: 01 April 2002
• Docket Number: No. 99CVH-08-7007.,99CVH-08-7007.
• Parties: CITY OF DUBLIN et al. v. The STATE of Ohio.
• Court: Ohio Court of Common Pleas

118 Ohio Misc.2d 18

2002-Ohio-2431

769 NE 2d 436

2002-Ohio-2431

CITY OF DUBLIN et al. v. The STATE of Ohio.

No. 99CVH-08-7007.

Court of Common Pleas of Ohio, Franklin County.

Decided April 1, 2002.

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Steven Smith, John Gilligan, Daniel Anderson and John C. McDonald, for plaintiff city of Dublin.

Sharon Hunter Pfancuff, for plaintiff city of Upper Arlington.

Betty D. Montgomery, Attorney General, Elizabeth Luper Schuster and Judith L. French, Assistant Attorneys General, for defendant state of Ohio.

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DANIEL T. HOGAN, Judge.

Introduction

{s 1} Plaintiffs, the cities of Upper Arlington and Dublin, seek a declaration that R.C. Chapter 4939 ("Chapter 4939") is unconstitutional. It was enacted as a rider on an 855-page biennial appropriations bill. Chapter 4939 defines "public ways" so as to include any "public street, road, highway, public easement, or public waterway," including "the entire width of any right of way associated with the public way." Chapter 4939 then limits the extent to which any political subdivision can control the use of its own public ways by "utility service providers" and "cable operators," including (1) requiring restoration of public ways to the same material condition they were in prior to installation of utility and cable lines and equipment, (2) recovering full compensation from any cable operator or utility service provider who fails to do so, (3) charging a reasonable fee for the use of the political subdivision's public way property by such commercial enterprises, (4) protecting public ways from becoming lumpy strips of patchwork tar and asphalt, under a vast network of overhead wires, lined by utility, telephone, and wireless phone poles, not to mention sheds, fenced-off utility compounds, switch boxes, satellite receivers, and any other new eyesore that next year's technology, or clever opportunism, might devise, and (5) creating an organized, efficient system for installation and location of equipment that might enhance life in the municipality rather than harm it, and attract commercial development without imposing unreasonable expenses upon utility service providers and cable operators. The parties might disagree about the extent to which Chapter 4939 restricts pursuit of the latter two goals, but it is clear that Chapter 4939 is explicitly intended to restrict local power to control the use of municipal streets, and, hence, it is beyond reasonable doubt that Chapter 4939 limits, at least to some degree, a municipality's ability to pursue those goals.

{s 2} Plaintiffs allege that Chapter 4939 is unconstitutional since (1) it deprives municipalities of their home rule powers under the Ohio Constitution, (2) its enactment violated the "one subject" requirement of the Ohio Constitution, (3) it does not operate uniformly across the state as required by the Ohio Constitution, and (4) it "takes" the property of Ohio municipalities without just compensation in violation of the Ohio and United States Constitutions. Plaintiffs' summary judgment motion seeks summary judgment based on the first three of those grounds.

The Single-Subject Rule

{s 3} Section 15(D), Article II of the Ohio Constitution provides that "no bill shall contain more than one subject, which shall be clearly expressed in its title." The Cuyahoga County Court of Appeals has already been asked to decide whether the enactment of Chapter 4939 violated that requirement. The majority declined to decide the issue. However, Judge Kilbane, in her concurring opinion, argued that there was a need to resolve the constitutional issue in order to decide the case and proceeded to find that the enactment of Chapter 4939 violated the Single-Subject Rule. She wrote:

{s 4} "R.C. Chapter 4939, consisting of four sections, was enacted in 1999 as part of the General Assembly's Biennial Operating Appropriations legislation. It deals with the restrictions and licensing requirements political subdivisions may place upon any utility or cable provider within that subdivision. That portion of the act, which also repealed R.C. 4931.01, .03, .20, .23, and .24, does not have any relationship with the State budget, the allotment of state funds or the organization of state agencies, which are the subjects of the super-majority of the 855page bill. R.C. Chapter 4939 can be fairly characterized as a special law, an unconnected rider improperly included in the bill, and must be invalidated." The Payphone Assn. of Ohio v. Cleveland (2001), 146 Ohio App.3d 319, 766 N.E.2d 167 (Kilbane, J., concurring).

{s 5} For the reasons that follow, this court agrees with Judge Kilbane.

{s 6} The Ohio Supreme Court has recently reviewed the rationale for the single-subject requirement:

{s 7} "One delegate to the Constitutional Convention of 1851 remarked:

{s 8} "`It is well known that special charters are always "got through" our Legislature at will, and it must be evident that it always will be so, in the absence of a constitutional prohibition. When was there ever an instance within the recollection of the oldest legislator on this floor, where a single special act of incorporation was defeatedâ I mean an act applying to any subject matter embraced in this report. * * * It is but too generally known, that these "special acts" are "got through" by a log-rolling system as it is called, the friends of one "bill" voting for the bills of others, in consideration of their aid, when the final vote is taken upon his own. These acts will always pass a legislative bodyâ the "dignity" and "purity" of your General Assembly to the contrary, notwithstanding. Any association of capitalists, who ask for a right of way, through any part of the country, will always get it, and ten thousand remonstrances might be sent up in vain. A single member could carry it through the Legislature, if each other member had had a bill of his own for similar acts of incorporation.' I Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio (1851) 351.

{s 9} "One commentator, writing approximately sixty years later, identified the above quote as `an illuminating exposition of the devious ways of legislatures sixty years ago.' Galbreath, Constitutional Conventions of Ohio (1911) 27.

{s 10} "Thus, as we explained in Dix, supra, 11 Ohio St.3d at 142-143, 11 OBR at 438, 464 N.E.2d at 155:

{s 11} "`Ohio is one of among forty-one states whose Constitution contains a one-subject provision. The primary and universally recognized purpose of such provisions is to prevent logrollingâ " * * * the practice of several minorities combining their several proposals as different provisions of a single bill and thus consolidating their votes so that a majority is obtained for the omnibus bill where perhaps no single proposal of each minority could have obtained majority approval separately." * * *

{s 12} "`The one-subject provision attacks logrolling by disallowing unnatural combinations of provisions in acts, i.e., those dealing with more than one subject, on the theory that the best explanation for the unnatural combination is a tactical oneâ logrolling. By limiting each bill to a single subject, the bill will have unity and thus the purpose of the provision will be satisfied.'" State ex rel. Ohio Academy of Trial Lawyers v. Sheward (1999), 86 Ohio St.3d 451, 495-496, 715 N.E.2d 1062.

{s 13} The court went on to discuss the standards for applying the singlesubject rule:

{s 14} "In attempting to define our role in the enforcement of the one-subject provision of Section 15(D), Article II of the Ohio Constitution, this court has been emphatic about its reluctance to interfere or become entangled with the legislative process. We have endeavored to `accord appropriate respect to the General Assembly, a coordinate branch of the state government.' Dix, supra, 11 Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157. In so doing, we have recognized `the necessity of giving the General Assembly great latitude in enacting comprehensive legislation by not construing the one-subject provision so as to unnecessarily restrict the scope and operation of laws, or to multiply their number excessively, or to prevent legislation from embracing in one act all matters properly connected with one general subject.' Id. at 145, 11 OBR at 440, 464 N.E.2d at 157. We have emphasized that `every presumption in favor of the enactment's validity should be indulged.' Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 6, 19 OBR 1, 5, 482 N.E.2d 575, 580, and noted that `while this provision has been invoked in hundreds of cases in various jurisdictions,' * * * in only a handful of cases have the courts held an act to embrace more than one subject."` Dix, 11 Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157, quoting Ruud, `No Law Shall Embrace More Than One Subject' (1958), 42 Minn.L.Rev. 389, 447.

{s 15} "On the other hand, we have been equally emphatic about not extending this reluctance to impede the legislative process so far as to negate the onesubject provision of Section 15(D), Article II of the Ohio Constitution. `While this court has consistently expressed its reluctance to interfere with the legislative process, it will not, however, abdicate in its duty to enforce the Ohio Constitution.' Dix, 11 Ohio St.3d at 144, 11 OBR at 439, 464 N.E.2d at 157. See, also, Ohio AFL-CIO v. Voinovich, supra, 69 Ohio St.3d at 229, 631 N.E.2d at 586.

{s 16} "With these principles in mind, we have adopted the...