Mahoning Educ. Assoc. of Developmental Disabilities v. State Emp't Relations Bd.

• Decision Date: 28 June 2012
• Docket Number: No. 11 MA 52.,11 MA 52.
• Citation: 2012 -Ohio- 3000,973 N.E.2d 322
• Parties: MAHONING EDUCATION ASSOC. OF DEVELOPMENTAL DISABILITIES, Appellant, v. STATE EMPLOYMENT RELATIONS BOARD, et al., Appellees.
• Court: Ohio Court of Appeals

973 N.E.2d 322

2012 -Ohio- 3000

MAHONING EDUCATION ASSOC. OF DEVELOPMENTAL DISABILITIES, Appellant,

v.STATE EMPLOYMENT RELATIONS BOARD, et al., Appellees.

No. 11 MA 52.

Court of Appeals of Ohio, Seventh District, Mahoning County.

June 28, 2012.

Held Unconstitutional

R.C. § 4117.11(B)(8).

Ira Mirkin, Richard Bush, Stanley Okusewsky, III, Charles Oldfield, Youngstown, OH, for appellant.

Michael DeWine, Ohio Attorney General, Lori Weisman, Assistant Attorney General, Cleveland, OH, Michael Allen, Assistant Attorney General, Columbus, OH, for State Employment Relations Bd.

Eugene Nevada, Dublin, OH, for Mahoning County Board of Developmental Disabilities.

Before: JOSEPH J. VUKOVICH, J., GENE DONOFRIO, J., and CHERYL L. WAITE, J.

VUKOVICH, J.

{¶ 1} Appellant Mahoning Education Association of Developmental Disabilities (the union) appeals the decision of the Mahoning County Common Pleas Court which upheld the constitutionality of the portion of R.C. 4117.11(B)(8) prohibiting picketing by a public employee or a public employee organization unless ten days' written notice is provided to the public employer. The union's threshold argument is that the law is an unconstitutional content-based restriction on speech that does not meet the strict scrutiny test. SERB counters that the statute is a content-neutral time, place, and manner regulation and thus subject to intermediate scrutiny.

{¶ 2} Because the law only applies to public employees and their employee organizations, the law delineates a “disfavored speaker” and is thus treated as a content-based restriction subject to strict scrutiny. In applying the strict scrutiny test, we conclude that the government has not met its burden of showing that the law, requiring ten days of notice before mere picketing, is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest. Accordingly, we reverse the trial court's judgment and hold that the provision at issue in R.C. 4117.11(B)(8) is unconstitutional.

STATEMENT OF THE CASE

{¶ 3} The union was in negotiations for a new contract with the Mahoning County Board of Developmental Disabilities (the employer). On November 5, 2007, the union picketed an evening board meeting. An unlawful labor practice charge was filed with the State Employment Relations Board (SERB), and SERB concluded that the union violated R.C. 4117.11(B)(8) which states:

{¶ 4} “It is an unfair labor practice for an employee organization, its agents, or representatives, or public employees to: * * * Engage in any picketing, striking, or other concerted refusal to work without giving written notice to the public employer and to the state employment relations board not less than ten days prior to the action. The notice shall state the date and time that the action will commence and, once the notice is given, the parties may extend it by the written agreement of both.”

{¶ 5} Besides contesting the alleged violation, the union had also challenged the constitutionality of the statute, but SERB found that, as an administrative agency, it had no authority to find a statute unconstitutional. The union appealed to the trial court, where the parties briefed the statute's constitutionality. On March 2, 2011, the trial court found that R.C. 4117.11(B)(8) was not unconstitutional and affirmed SERB's unfair labor practice decision. The union filed a timely appeal, assigning the following as error: “THE TRIAL COURT ERRED WHEN IT FOUND R.C. 4117.11(B)(8) DOES NOT VIOLATE THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 11, ARTICLE 1, OHIO CONSTITUTION.”

{¶ 6} Within this assignment of error, the union raises various issues: (1) whether the statutory provision is content-based requiring strict scrutiny or content-neutral requiring only intermediate scrutiny; (2) whether the law survives strict scrutiny; (3) whether the law survives intermediate scrutiny; (4) whether the law is a prior restraint and thus subject to strict scrutiny on this alternative ground ¹; and (5) whether strict scrutiny could alternatively apply because the location was a designated public forum at the time of the public meeting. Due to our resolution of the first two issues in favor of the union, the alternative arguments made by the union are moot.

CONTENT–BASED OR CONTENT–NEUTRAL

{¶ 7} When a statute that burdens speech is challenged on a First Amendment basis, an important line of inquiry is whether the regulation is content-based or content-neutral in order to determine the applicable level of scrutiny: strict or intermediate. If the statutory provision is content-based, then the strict scrutiny test is applied to determine the restriction's constitutionality. Painesville Bldg. Dept. v. Dworken & Bernstein Co., L.P.A., 89 Ohio St.3d 564, 567, 733 N.E.2d 1152 (2000). This is because content-based regulations are presumptively invalid. R.A.V. v. St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). In meeting the strict scrutiny test for a content-based law, the government is required to show that the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest. United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).

{¶ 8} A content-neutral regulation, on the other hand, is subject only to an intermediate level of scrutiny. Turner Broadcasting Sys. v. F.C.C., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). A content-neutral regulation thus may impose reasonable restrictions on the time, place, or manner of speech as long as the restrictions are: justified without reference to the content of the regulated speech, narrowly tailored to serve a significant or substantial (as opposed to compelling) governmental interest, and leave open alternative channels for communication of the information. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Upon outlining these levels of scrutiny, we turn to the distinction between content-based and content-neutral laws.

{¶ 9} A content-based regulation typically “stifles speech on account of its message.” Turner Broadcasting, 512 U.S. at 641–642, 114 S.Ct. 2445, 129 L.Ed.2d 497. A law is content-based if it applies to speech based on not just a particular viewpoint but also if it applies to burden an entire topic of expression regardless of viewpoint. Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992).

{¶ 10} In contrast, a regulation is said to be content-neutral if it is unrelated to the content of the speech and merely regulates the time, place, and manner of the speech. Id. at 642, 114 S.Ct. 2445, 129 L.Ed.2d 497. The distinction, however, is not a clear one. “Determination of whether individual regulations are content-based or content-neutral has proved problematic in practice * * *.” Painesville, 89 Ohio St.3d at 568, 733 N.E.2d 1152.

{¶ 11} The union cites two Supreme Court cases here, which SERB urges are distinguishable. In one case, an ordinance prohibited picketing near a school unless it was peaceful labor picketing of a school involved in a labor dispute. Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). An equal protection claim was found to be closely intertwined with freedom of expression doctrines. Id. at 95, 92 S.Ct. 2286, 33 L.Ed.2d 212. The Court held that the ordinance was content-based because it “describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter.” Id. at 99, 92 S.Ct. 2286, 33 L.Ed.2d 212. The Court then concluded that the discrimination against non-labor picketing was not narrowly tailored to achieve its end as peaceful non-labor picketing would not be more disruptive than peaceful labor picketing. Id.

{¶ 12} In the other case, a statute banned picketing of a residence unless used as a place of employment and specified that it does not prohibit picketing a place of employment involved in a labor dispute. Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 263 (1980). The Court applied the Mosley rationale and invalidated the statute. Id. at 463–469, 100 S.Ct. 2286, 65 L.Ed.2d 263.

{¶ 13} The union contends that the statute at issue similarly singles out labor picketing by imposing a burden before labor speech can be used. As the union notes, the Eighth district has cited these cases in support of its decision to find that a different provision, R.C. 4117.11(B)(7), was content-based. United Electrical, Radio and Machine Workers of America v. SERB, 126 Ohio App.3d 345, 355–356, 710 N.E.2d 358 (8th Dist.1998). As the union points out, the United Court also characterized (B)(8) as a content-based law.

{¶ 14} Yet, the United court made this declaration without a full analysis. Rather, the court seemed to find (B)(8) content-based by relying on its analysis regarding why (B)(7) was content-based. However, a comparison of division (B)(7) with (B)(8) shows that the divisions have distinguishable language. Pursuant to R.C. 4117.11:

{¶ 15} “(B) It is an unfair labor practice for an employee organization, its agents, or representatives, or public employees to: * * *

{¶ 16} “(7) Induce or encourage any individual in connection with a labor relations dispute to picket the residence or any place or private employment of any public official or representative of the public employer.

{¶ 17} “(8) Engage in any picketing, striking, or other concerted refusal to work without giving written notice to the public employer and to the state employment relations board not less than ten days prior to the action.* * *.” (Emphasis added).

{¶ 18} Division (B)(7) specifically refers to picketing in connection with a labor relations dispute. However, division (B)(8) does not delineate the subject matter of the picketing. That is, an employee or her...