Kellard v. City of Cincinnati

Decision Date23 April 2021
Docket NumberC-200029,NOS. C-200024,S. C-200024
Citation171 N.E.3d 868
CourtOhio Court of Appeals
Parties Timothy KELLARD, Plaintiff-Appellee/Cross-Appellant, v. City of CINCINNATI, Defendant-Appellant/Cross-Appellee.

Phillips Law Firm, John H. Phillips, and Kyle E. Hackett, Cincinnati, and Robb S. Stokar, for Plaintiff-Appellee/Cross-Appellant.

Andrew W. Garth, Interim City Solicitor, and Emily Smart Woerner, Deputy City Solicitor, for Defendant-Appellant/Cross-Appellee.

OPINION

Bergeron, Judge.

{¶1} For two years after the Ohio General Assembly passed legislation invalidating its gun-related employment policies, the city of Cincinnati dragged its feet, failing to implement the necessary revisions. Frustrated by this delay, a disgruntled employee sued, which spurred the cogs of local government into motion. Within four days, and before the trial court ever convened a hearing in this case, the city's policies complied with the relevant statute. Yet the employee remained unsatisfied, and he convinced the trial court that only injunctive relief could prevent the city's future defiance of Ohio law.

{¶2} The trial court awarded a litany of remedies in this case, including a permanent injunction, declaratory judgment, costs, attorneys’ fees, and damages. The parties, in turn, present us with a variety of issues on appeal and cross-appeal. We conclude that, although the employee is entitled to some attorneys’ fees, the trial court exceeded the bounds of its subject matter jurisdiction by awarding declaratory and injunctive relief for a purely speculative future harm. We sustain the city's two assignments of error in part, overrule the employee's two cross-assignments of error, and modify the trial court's attorney fee award.

I.

{¶3} The origins of this case stretch back to 2017, when the Ohio General Assembly enacted the current form of R.C. 2923.1210. The statute reads, in pertinent part:

(A) A business entity, property owner, or public or private employer may not establish, maintain, or enforce a policy or rule that prohibits or has the effect of prohibiting a person who has been issued a valid concealed handgun license from transporting or storing a firearm or ammunition when both of the following conditions are met:
(1) Each firearm and all of the ammunition remains inside the person's privately owned motor vehicle while the person is physically present inside the motor vehicle, or each firearm and all of the ammunition is locked within the trunk, glove box, or other enclosed compartment or container within or on the person's privately owned motor vehicle;
(2) The vehicle is in a location where it is otherwise permitted to be.

Under former (and current) R.C. 9.68, R.C. 2923.1210 preempts all contradictory local regulation of concealed handgun license-carriers. If a party "prevails in a challenge to an ordinance, rule, or regulation as being in conflict" with R.C. 2923.1210 (and by extension, R.C. 9.68(A) ), then the court "shall award costs and reasonable attorney fees." (Emphasis added.) Former R.C. 9.68(B).

{¶4} At the time of R.C. 2923.1210 ’s promulgation, two of the city's policies—Human Resources Policy and Procedure 5.1 ("H.R. 5.1") and Administrative Regulation 49 ("Admin. Reg. 49")—ran afoul of the new statute. The city recognized the issue and began discussing the need to revise the policies, shortly in the aftermath of the legislative change. But for unknown reasons, these efforts stalled, and the offending provisions remained on the books.

{¶5} Fast forward two years to the present conflict. On August 15, 2019, Timothy Kellard—a city of Cincinnati employee—filed a complaint and motion for a temporary restraining order ("TRO") and preliminary injunction against the city. As a valid CCW license-holder, Mr. Kellard complained that he desired "to lawfully store his handgun in his privately-owned vehicle in a city parking lot," but had "never done so because he reasonably fear[ed] discipline, up to and including termination." He alleged that the city was in active violation of R.C. 2923.1210, that it was enforcing its illegal policies, and that those policies created a "chilling effect on other City employees" with concealed-carry licenses. As remedies for the city's violation of R.C. 2923.1210, Mr. Kellard sought declaratory judgment, injunctive relief, costs and attorneys’ fees, and compensatory and punitive damages.

{¶6} The timeline of this case proves critical to its outcome, but the parties disagree on a few key facts. The city maintains that it stopped enforcing H.R. 5.1 and Admin. Reg. 49 after the enactment of R.C. 2923.1210 in 2017, and Mr. Kellard remained free to store his gun in his car on city property notwithstanding the policies in question. It points to draft policy revisions and internal correspondence as proof that formal changes were forthcoming—just delayed a bit. Mr. Kellard, for his part, insists that the policies were being enforced, he "feared discipline and/or retaliation for highlighting the City's non-compliance with Ohio law," and he therefore did not feel comfortable asking a supervisor, human resources professional, or any other city representative about the policies. The parties agreed that Mr. Kellard never inquired about the policies or communicated his desire to store his firearm in his vehicle. But the city also conceded that in the two years that passed between enactment of R.C. 2923.1210 and Mr. Kellard's lawsuit, it never formally revised its policies—nor did it notify employees of its intent not to enforce them.

{¶7} By the time of the trial court's initial hearing on Mr. Kellard's requested TRO, one thing was clear: the offending portions of H.R. 5.1 and Admin. Reg. 49 were no longer on the books. Between August 15 (when Mr. Kellard filed suit) and August 19 (when the trial court issued its first order in this case), the city formally amended both policies to bring them in line with Ohio law. Although Mr. Kellard did not contest that the amended policies satisfied R.C. 2923.1210, he nevertheless continued his quest for injunctive relief against the city, arguing that without a permanent injunction, the city remained free to return to (and presumably enforce) its erstwhile policies.

{¶8} From the outset of the August 19 TRO hearing in this case, the city maintained that any justiciable controversy evaporated with its successful overhaul of H.R. 5.1 and Admin. Reg. 49. Unswayed by the challenge to its subject matter jurisdiction, the trial court granted Mr. Kellard's motion for a TRO. Following a September 11 hearing on injunctive relief, the trial court explicitly found Mr. Kellard's suit justiciable for both declaratory judgment and injunctive relief. It also held that the city changed its policies "in response to the lawsuit filed by Timothy Kellard," which—in the trial court's view—rendered him a "prevailing party" entitled to attorneys’ fees under former R.C. 9.68(B). The trial court entered a permanent injunction against the city, prohibiting it:

directly and indirectly, from changing any aspect of its Human Resources Policies and Procedures of its Administrative Regulations to prohibit or have the effect of prohibiting City employees who are valid CCW License holders from transporting and storing their firearms in their private vehicles so long as the employees follow the statutory requirements set forth in R.C. 2923.1210 and R.C. 9.68.

A few weeks later, the trial court convened an additional hearing on attorneys’ fees and damages. It awarded approximately $47,000 in attorneys’ fees to Mr. Kellard's counsel and $702.96 in damages to Mr. Kellard for "time and gas spent retrieving his firearm after work every day." The city of Cincinnati now appeals the trial court's grant of injunctive and declaratory relief, as well as its award of fees and damages.1

Mr. Kellard cross-appeals the trial court's award of attorneys’ fees and damages.

II.

{¶9} In the first issue framed by its first assignment of error, the city challenges the trial court's exercise of jurisdiction to enter injunctive and declaratory relief. We review a trial court's determination on the issue of justiciability for abuse of discretion. Fulton RR. Co. v. City of Cincinnati , 1st Dist. Hamilton No. C-150373, 2016-Ohio-3520, 2016 WL 3430019, ¶ 7, citing Arnott v. Arnott , 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13. Reversal is "warranted only if the court's decision regarding justiciability was unreasonable, arbitrary, or unconscionable." Id.

{¶10} "The Ohio Constitution mandates that the subject-matter jurisdiction of the common pleas courts is limited to ‘justiciable matters.’ " Waldman v. Pitcher , 2016-Ohio-5909, 70 N.E.3d 1025, ¶ 20 (1st Dist.), quoting the Ohio Constitution, Article IV, Section 4 (B). A justiciable matter is "more than a disagreement; the parties must have adverse legal interests." Kincaid v. Erie Ins. Co. , 128 Ohio St.3d 322, 2010-Ohio-6036, 944 N.E.2d 207, ¶ 10. A party seeking a declaratory judgment "need not have sustained a cognizable loss, [but] he or she must face a set of circumstances that exhibits the imminent threat of loss * * *." Pitcher at ¶ 23, citing MedImmune, Inc. v. Genentech, Inc. , 549 U.S. 118, 127, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). This "danger or dilemma of the plaintiff must be present, and it must not be contingent on the happening of a hypothetical future event." Fulton at ¶ 9, citing Mid-Am. Fire & Cas. Co. v. Heasley , 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9.

{¶11} Two Ohio appellate courts have squarely addressed the issue before us of justiciability and former R.C. 9.68. First, in 2007, the Tenth District confronted a challenge to two Columbus ordinances regulating assault weapons. Smolak v. Columbus, 10th Dist. Franklin No. 07AP-373, 2007-Ohio-4671, 2007 WL 2636038, ¶ 2. The plaintiff sought a declaratory judgment that the ordinances violated R.C. 9.68. Id. The city countered with a ...

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