Ferner v. State

Decision Date30 September 2020
Docket NumberNo. L-20-1041,L-20-1041
Citation159 N.E.3d 917
Parties Mike FERNER, et al., Appellants v. STATE of Ohio, Appellee
CourtOhio Court of Appeals

Mike Ferner, Bryan Twitchell and John Michael Durback, pro se appellants.

Dave Yost, Ohio Attorney General, Amanda M. Ferguson, Jenna Foos, Daniel J. Martin and Gregg H. Bachmann, Assistant Attorneys General, for appellee.



I. Introduction

{¶ 1} This matter is before the court on appeal from the judgment of the Lucas County Court of Common Pleas, dismissing the complaint for declaratory judgment of plaintiffs-appellants Mike Ferner, Bryan Twitchell, and John Michael Durback, finding appellants failed to state a claim for which relief might be granted. For the reasons that follow, we reverse the trial court's judgment.

II. Facts and Procedural Background

{¶ 2} In August 2014, the city of Toledo issued a notice to area residents that the water supply contained unsafe levels of a toxic substance, caused by pollution attributed to agricultural run-off into Lake Erie. The water remained dangerous for consumption for almost three days. To address the issue, concerned citizens initiated a campaign to adopt a Lake Erie Bill of Rights (LEBOR) as part of the city Charter. After collecting sufficient signatures, the citizens presented the proposed amendment to the Lucas County Board of Elections and the Board of Elections rejected the proposed charter amendment, finding the proposed amendment contained provisions the city had no authority to enact. In an expedited election case, the Ohio Supreme Court denied a request for a writ of mandamus to require the Board to place the amendment on the ballot in a plurality opinion.

State ex rel. Twitchell v. Saferin , 155 Ohio St.3d 52, 2018-Ohio-3829, 119 N.E.3d 365, ¶ 3.

{¶ 3} On December 4, 2018, the Toledo City Council passed an ordinance, declaring the citizen's petition had sufficient signatures, and certifying the measure to the Board for placement on the February 26, 2019 special-election ballot. Toledo resident Josh Abernathy submitted a written protest to the Board, arguing LEBOR could not appear on the ballot as its provisions exceeded the authority of the city to enact, and the Supreme Court's decision in Twitchell foreclosed inclusion on the ballot. State ex rel. Abernathy v. Lucas County Board of Elections, 156 Ohio St.3d 238, 2019-Ohio-201, 125 N.E.3d 832, ¶ 2. The Ohio Supreme Court denied the writ, finding that, once a municipal legislative body passes an ordinance to place a proposed charter amendment on the ballot, a board of elections has "no legal authority to review the substance of a proposed charter amendment and has no discretion to block the measure from the ballot based on an assessment of its suitability." Id. at ¶¶ 7-9, citing State ex rel. Maxcy v. Saferin, 155 Ohio St.3d 496, 2018-Ohio-4035, 122 N.E.3d 1165, ¶¶ 13, 18-19.

{¶ 4} The issue went to the voters, who favored the amendment to the charter, and LEBOR became law. The day after the election, Drewes Farms Partnership, an entity that farmed in counties near Toledo and would be subject to the provisions of LEBOR, filed suit in federal court to declare LEBOR invalid. The city of Toledo opposed that effort. Months into the litigation, the state of Ohio intervened as a party plaintiff. In March 2019, the Drewes Farms, the city, and the state agreed to an injunction to stay enforcement of LEBOR during the pendency of the federal suit. Drewes Farms Partnership v. City of Toledo , N.D. Ohio Case No. 3:19 CV 434, 2019 WL 1254011 (Mar. 18, 2019).

{¶ 5} On June 27, 2019, while the stay of enforcement and the Drewes Farms suit remained pending, appellants filed a complaint for declaratory action in the trial court naming the state of Ohio as the sole defendant. Appellants alleged venue and jurisdiction was proper, in part, because LEBOR created jurisdiction with the Lucas County Court of Common Pleas. In articulating a cause of action, appellants described prior litigation to protect Lake Erie and its watershed from agricultural run-off and outlined the history of and purpose for the citizen initiative process to establish LEBOR. Appellants alleged the state violated LEBOR and Article I, Sections 1 and 2 of the Ohio Constitution by bringing suit in federal court to challenge the validity of LEBOR. The complaint for declaratory judgment, furthermore, sought an "order declaring LEBOR to be valid under the Constitution and laws of the State of Ohio." Additionally, appellants sought a finding that the state maintains policies that fail to abate widespread pollution of Lake Erie and/or have caused additional harm, a determination that LEBOR is valid and enforceable in its entirety, and a permanent injunction against the state, any citizen, any person, and any legal or fictitious entity, enjoining them from abridging appellants' rights under LEBOR or denying appellants the right to enforce any provision of LEBOR against "any person, corporation, federal, state, or local governmental entity, and any other legal entity."

{¶ 6} On July 30, 2019, the state filed a motion to dismiss the complaint for failure to state a claim. The state argued that appellants lacked standing to bring the suit, and failed to allege any concrete harm caused by the state's participation in the Drewes Farms litigation, as the mere participation in the suit did not injure appellants, leaving only a "potential, speculative injury" should the federal court invalidate LEBOR. Additionally, the state argued that any ruling by the trial court would not prevent the federal court from ruling on the separate federal and state constitutional provisions at issue in the Drewes Farms suit, and an order barring the state's participation would not end the suit, as the state was only an intervening plaintiff in that case.

{¶ 7} Finally, the state argued that appellants lacked a legal basis to prevent the state from defending its interests in Lake Erie or defending its laws. Significantly, the state noted that LEBOR's attempt to insulate its provisions from any legal challenge essentially bars the state from participating in "the resolution of important questions of state and federal constitutional law." The provisions of LEBOR, therefore, purport to silence the state where a third party seeks interpretation of laws affecting a natural resource controlled by the state, or where conflicting local and state laws require resolution, or where a part of the state challenges the validity of other environmental, natural resources, and agricultural statutes and regulations.

{¶ 8} In seeking dismissal for failure to state a claim, the state challenged the validity of LEBOR, arguing the General Assembly exercises exclusive authority to vest jurisdiction in a common pleas court, citing Article IV, Section 4(b) of the Ohio Constitution. See Cupps v. City of Toledo , 170 Ohio St. 144, 163 N.E.2d 384 (1959), at paragraph one of the syllabus ("The authority granted to municipalities by Section 3 of Article XVIII, Ohio Constitution, 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’ and, by Section 7 of Article XVIII, to ‘frame and adopt or amend a charter for its government and * * * exercise thereunder all powers of local self-government’ does not include the power to regulate the jurisdiction of courts established by the Constitution or by the General Assembly thereunder.") Therefore, the state argued, LEBOR may not confer "original jurisdiction" in a court, and the complaint is jurisdictionally flawed.

{¶ 9} In opposing dismissal, appellants eschewed legal analysis for discussion of "ecological reality," arguing the importance for the trial court to declare "that the state has failed to protect Lake Erie and all those who depend on her," and asking the court to declare LEBOR "enforceable in its entirety," with no preemption by state law. As to concrete injury, appellants argued the long history of pollution, including algae blooms every summer, undrinkable water, swimming advisories, and other water quality issues. Appellants traced these issues to the state's failure to enforce regulatory laws, like the Clean Water Act. Furthermore, appellants argued that by filing suit against the city in 2019 and stipulating to an injunction against enforcement of LEBOR during the pendency of that suit, the state caused "a century of assault and ruin" to Lake Erie to endure.

{¶ 10} On September 24, 2019, the trial court requested additional briefing to "assist the court in its decision." The parties were asked to provide additional argument on the applicability of Ohio's Home Rule Amendment under Article XVIII, Section 3 of the Ohio Constitution, as well as argument regarding whether sovereign immunity or exclusive jurisdiction of the court of claims applied to the appellants' claims.

{¶ 11} After additional briefing, the trial court granted the state's motion to dismiss on January 15, 2020, finding appellants failed to allege a claim that presented a justiciable controversy, and sought only an advisory opinion on the validity of LEBOR. The trial court did not address the actual claims alleged, including the allegation that the state violated LEBOR and Article I, Sections 1 and 2 of the Ohio Constitution by filing suit in federal court to challenge the validity of LEBOR or the allegation that the state's "permitting and licensing activities" cause "affirmative and cumulative harm" and violate rights granted by LEBOR.

{¶ 12} Appellants filed a timely appeal of the trial court's judgment on February 14, 2020.

{¶ 13} On February 27, 2020, the federal court in Drewes Farms issued its decision, addressing the issue of standing first. See Drewes Farms Partnership v. City of Toledo , 441 F.Supp.3d 551, 555 (Feb. 27, 2020), appeal dismissed sub nom. Drewes Farms...

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