Reading v. Public Utilities Commission

• Citation: 2006 Ohio 2181,109 Ohio St.3d 193,846 N.E.2d 840
• Decision Date: 17 May 2006
• Docket Number: No. 2005-0245.,2005-0245.
• Parties: City of READING, Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio et al., Appellees.
• Court: United States State Supreme Court of Ohio

846 N.E.2d 840

109 Ohio St.3d 193

2006-Ohio-2181

City of READING, Appellant, v. PUBLIC UTILITIES COMMISSION of Ohio et al., Appellees.

No. 2005-0245.

Supreme Court of Ohio.

Submitted January 11, 2006.

Decided May 17, 2006.

Chester, Willcox and Saxbe, L.L.P., Todd M. Rodgers, John W. Bentine, Sarah Daggett Morrison, and Stephen C. Fitch, Columbus, for appellant.

Jim Petro, Attorney General, and Duane W. Luckey, William L. Wright, and Steve L. Beeler, Assistant Attorneys General, for appellee Public Utilities Commission of Ohio.

Porter, Wright, Morris & Arthur, L.L.P., Carl A. Aveni II, R. Leland Evans, and Anne M. Hughes, Columbus, for intervening appellee, Indiana & Ohio Railroad, Inc.

Byron & Byron Co., L.P.A., Barry M. Byron, and Stephen L. Byron, Willoughby; John Gotherman, Cleveland, urging reversal for amicus curiae Ohio Municipal Leage.

Gallagher, Sharp, Fulton & Norman and Joseph J. Santoro, Cleveland, urging affirmance for amicus curiae Ohio Railroad Association.

MOYER, C.J.

Background

{¶ 1} This is an appeal as of right by appellant, the city of Reading, from an order of the Public Utilities Commission of Ohio in In the Matter of the Petition of Indiana & Ohio Railroad, Inc. to Close to Vehicular Traffic the Vorhees Street Crossing in the City of Reading, Hamilton County, Ohio, case No. 02-589-RR-UNC 2003 WL 23415030 (Oct. 13, 2004). The Indiana & Ohio Railroad, Inc. was the petitioner, and Reading was an intervening party at the commission. The railroad has intervened as an appellee. The Ohio Municipal League has filed an amicus brief in support of Reading, and the Ohio Railroad Association has filed an amicus brief in support of the commission and the railroad.

{¶ 2} Reading is an Ohio municipality with an area of approximately three and one-half square miles. Reading is divided in half by the Oasis line of railroad track, which extends 16 miles, from north of Reading in Evendale and south through Reading to the Ohio River in downtown Cincinnati. Through most of Reading, the Oasis line runs parallel to the major north-south road in Reading, known as Reading Road or U.S. Route 42. There are eight public railroad grade crossings in Reading located within a distance of 6,800 feet (approximately 1.3 miles), including the subject of this appeal, the Vorhees Street crossing.

{¶ 3} In 2002, the railroad filed a petition with the commission pursuant to R.C. 4907.474 to close the grade crossing at Vorhees Street in Reading. Vorhees Street is a two-block-long, two-lane-wide street that runs east to west and intersects the Oasis line. There are three businesses located west of the Vorhees crossing and three homes east of the crossing. These businesses and houses are accessible by other nearby crossings.

{¶ 4} Reading opposed the closing of the Vorhees crossing, and a public hearing was held in Reading pursuant to R.C. 4907.474(B). An evidentiary hearing was later held before the commission.

{¶ 5} The railroad presented evidence to the commission that the crossing was a severe safety hazard. The crossing had previously been the site of a vehicle-train accident. In addition, the physical characteristics of the crossing made it particularly vulnerable to a collision. A steep grade on both sides of the crossing and a blind curve on the tracks limit visibility for cars and pedestrians. Because of the steep grade, tractor-trailers and other heavy vehicles continually get hung up on the crossing and are unable to dislodge without being towed.

{¶ 6} In October 2004, the commission issued its order finding that there was "not a demonstrable need" for the Vorhees crossing, granting the railroad's petition, and directing Reading to close the Vorhees crossing to all vehicular and pedestrian traffic.

{¶ 7} On rehearing, the commission clarified that the railroad would be responsible for the cost of closing the grade crossing. The commission's order was affirmed in all other respects. Reading timely filed its notice of appeal.

Introduction

{¶ 8} The sole issue raised in this appeal is whether R.C. 4907.474 violates Section 3, Article XVIII of the Ohio Constitution, commonly known as the Home Rule Amendment. The parties agree that Reading has properly preserved a facial constitutional challenge to R.C. 4907.474. Reading further maintained during oral argument that it had preserved a constitutional challenge to R.C. 4907.474 as it has been applied in this case. Thus, we will address this issue first.

Specifying Constitutional Errors for Appeal

{¶ 9} During oral argument, Reading claimed that it had raised an "as applied" constitutional challenge to R.C. 4907.474 on three separate occasions before the commission: prior to the evidentiary hearing, in its posthearing brief, and in its application for rehearing.

{¶ 10} In each instance, Reading's sole reference to any constitutional claim is contained in a footnote. For example, Reading states in one footnote:

{¶ 11} "The City specifically reserves its right to argue that R.C. 4907.474 may be unconstitutional, either facially or as applied, as a violation of the City's `Home Rule' authority granted by, inter alia, Article XVIII, Sections 3 and 4 of the Ohio Constitution."

{¶ 12} In Atwood Resources, Inc. v. Pub. Util. Comm. (1989), 43 Ohio St.3d 96, 100-101, 538 N.E.2d 1049, we held that a constitutional claim was not properly before us because the appellant, Atwood, had failed to comply with the specificity requirements of R.C. 4903.10. Additionally, we noted that elevating a question to constitutional proportions does not necessarily allow the matter to be raised initially in this court. Where extrinsic facts are required to properly resolve the issue, the error must be specified at the first available opportunity. Id. at 101, 538 N.E.2d 1049, citing Cleveland Gear Co. v. Limbach (1988), 35 Ohio St.3d 229, 520 N.E.2d 188. See, also, Akron v. Pub. Util. Comm. (1978), 55 Ohio St.2d 155, 161-162, 9 O.O.3d 122, 378 N.E.2d 480; Agin v. Pub. Util. Comm. (1967), 12 Ohio St.2d 97, 97-99, 41 O.O.2d 406, 232 N.E.2d 828.

{¶ 13} In Atwood, we cited Cleveland Gear, 35 Ohio St.3d 229, 520 N.E.2d 188, which held that the question of whether a tax statute is unconstitutional on its face may be raised initially in the Supreme Court although not previously raised before the Board of Tax Appeals. Id., paragraph two of the syllabus. We recognized that the Board of Tax Appeals, as an administrative agency, may not declare a statute unconstitutional. Id., paragraph one of the syllabus. Nevertheless, we held that when a statute is challenged on the basis that it is unconstitutional as applied to a particular state of facts, that challenge must be raised before the board in order to develop a factual record. Id., paragraph three of the syllabus.

{¶ 14} While Cleveland Gear involved tax appeals, the rationale of the decision is applicable to appeals from the commission. The commission, similar to the Board of Tax Appeals, is an administrative agency with powers specifically granted by the Revised Code, and it has no authority to declare a statute unconstitutional. See, e.g., Panhandle E. Pipe Line Co. v. Pub. Util. Comm. (1978), 56 Ohio St.2d 334, 346, 10 O.O.3d 452, 383 N.E.2d 1163.

{¶ 15} The commission is statutorily authorized to receive evidence in its role as fact-finder. See R.C. 4903.09. Extrinsic facts are not needed to determine whether a statute is unconstitutional on its face. When a party challenges the constitutionality of a statute as applied to a specific set of facts, however, a record is required. The proponent of the constitutionality of a statute also needs notice and an opportunity to develop an evidentiary record to support that view. See Cleveland Gear, 35 Ohio St.3d at 232, 520 N.E.2d 188.

{¶ 16} For these reasons, we hold that a facial constitutional challenge to a statute need not first be raised before the commission. However, a litigant must raise an as-applied constitutional challenge in the first instance during the proceedings before the commission in order to allow the parties to develop an evidentiary record.

{¶ 17} In the instant case, Reading failed to raise an as-applied constitutional challenge to R.C. 4907.474 before the commission. Reading's reservation in a footnote of a right to raise the issue is not the same as actually raising the issue. In no instance before the commission did Reading actually raise any constitutional challenge to R.C. 4907.474.

{¶ 18} Even if we were to find that Reading's reservation of this right sufficed, Reading failed to present any evidence at the commission that would support its contention that R.C. 4907.474 is unconstitutional in its application. The burden is on the party making the challenge to present clear and convincing evidence of existing facts that make the statute unconstitutional and void when applied. Cleveland Gear, 35 Ohio St.3d at 231, 520 N.E.2d 188, citing Belden v. Union Cent. Life Ins. Co. (1944), 143 Ohio St. 329, 28 O.O. 295, 55 N.E.2d 629, paragraph six of the syllabus. Yet Reading's evidence before the commission was directed solely to whether the Vorhees crossing should be closed according to the criteria set forth in R.C. 4907.474, not to whether the statute was constitutionally infirm. Therefore, we find that Reading has preserved only a facial constitutional challenge to R.C. 4907.474.

Constitutionality of R.C. 4907.474

{¶ 19} Under R.C. 4907.474, the commission is authorized to close a municipal railroad grade crossing to vehicular and pedestrian traffic and divert travel to other crossings. The section provides:

{¶ 20} "(A) In making the survey provided for by section 4907.471 of the Revised Code, the public utilities commission shall determine as to each crossing whether there is a demonstrable need for such crossing to exist and whether the crossing could be closed to vehicular traffic, or to pedestrian traffic, or to both, and the travel over the crossing diverted...