Russ v. City of Reynoldsburg
| Decision Date | 19 April 2017 |
| Docket Number | No. 16–CA–58,16–CA–58 |
| Citation | 2017 Ohio 1471,81 N.E.3d 493 |
| Parties | Darlene RUSS, Plaintiff–Appellant v. CITY OF REYNOLDSBURG, Defendant–Appellee |
| Court | Ohio Court of Appeals |
J. PHILIP CALABRESE, Porter, Wright Morris & Arthur LLP, 950 Main Avenue, Suite 500, Cleveland, Ohio 44113, for Plaintiff–Appellant
JOSEPH R. DURHAM, Eastman & Smith LTD., 100 E. Broad Street, Suite 2100, Columbus, Ohio 43215, and JAMES E. HOOD, MATTHEW R. ROTH, Reynoldsburg City Attorney, 7232 East Main Street, Reynoldsburg, Ohio 43068, for Defendant–Appellee
JUDGES: Hon. W. Scott Gwin, P.J., Hon. William B. Hoffman, J., Hon. Craig R. Baldwin, J.
{¶ 1} Plaintiff-appellant Darlene Russ appeals from the July 18, 2015 Judgment Entry of the Licking County Municipal Court denying her complaint for declaratory judgment and entering judgment in favor of defendant-appellee City of Reynoldsburg.
{¶ 2} Appellant Darlene Russ moved from upstate New York to the City of Reynoldsburg in Licking County, Ohio during Memorial Day weekend in 2014. At the time, she had a dog that she described as "a mixed Pit, some Terrier." Transcript at 11. Appellant conceded that veterinary records classify the dog as a pit bull. Appellant testified that she obtained a license for the dog after registering it with the Licking County Auditor and that on the day she moved into her apartment, she was cited for keeping, harboring, or owning a vicious dog in violation of Reynoldsburg Codified Ordinance Section 505.35 (a), which prohibits owning, harboring or keeping a vicious dog. Section 505.01(m) defines a vicious dog, in part, as a pit bull. Ultimately, the case against appellant was dismissed.
{¶ 3} Appellant, on September 24, 2015, filed a verified complaint for declaratory judgment in Licking County Municipal Court, challenging the constitutionality of Reynoldsburg's Ordinances prohibiting the ownership of dogs that the City considers pit bulls. Appellant specifically sought a declaration that appellee could not enforce its prohibitions against owning, keeping, or harboring a pit bull and that Section 505.01(m)(5) of the Codified Ordinances "impermissibly conflicts with State law in violation of the Home Rule Amendment to the Ohio Constitution, R.C. 955.221, or both ..." After Appellee City of Reynoldsburg filed an answer, appellant filed a Motion for Judgment on the Pleadings. The American Society for the Prevention of Cruelty to Animals filed an amicus curiae brief on November 23, 2015. Appellee filed a memorandum in opposition to the Motion for Judgment on the Pleadings and a Motion for Summary Judgment on December 15, 2015. As memorialized in a Judgment Entry filed on March 21, 2016, both the Motion for Judgment on the Pleadings and the Motion for Summary Judgment were denied.
{¶ 4} A bench trial was held on March 21, 2016. Both parties filed post trial briefs. The trial court, as memorialized in a Judgment Entry filed on July 18, 2016, denied appellant's complaint for declaratory judgment and entered judgment in favor of appellee. The trial court specifically found that R.C. 955.11(A)(6)(a) and 955.221(B)(3) were not general laws and that the City of Reynoldsburg did not exceed its authority under the Home Rule Amendment to the Ohio Constitution.
{¶ 5} Appellant now raises the following assignments of error on appeal:
{¶ 6} THE MUNICIPAL COURT ERRED WHEN IT BECAME THE FIRST COURT IN OHIO TO HOLD THAT CHAPTER 955 OF THE OHIO REVISED CODE, WHICH REGULATES DOG OWNERSHIP IN THE STATE, IS NOT A GENERAL LAW.
{¶ 7} THE CITY OF REYNOLDSBURG'S ORDINANCES PROHIBITING THE OWNERSHIP OF DOGS IT CONSIDERS PIT BULLS EXCEED THE CITY'S AUTHORITY UNDER THE HOME RULE AMENDMENT TO THE OHIO CONSTITUTION BECAUSE THEY PROHIBIT THAT WHICH STATE LAW PERMITS AND SPECIFICALLY LICENSES.
{¶ 8} The constitutionality of a statute or ordinance presents a question of law and is therefore reviewed under a de novo standard. Andreyko v. Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025 (1st Dist). In determining the constitutionality of an ordinance, we are mindful of the fundamental principle requiring courts to presume the constitutionality of lawfully enacted legislation. Akron v. Molyneaux , 144 Ohio App.3d 421, 426, 760 N.E.2d 461 (9th Dist. 2001), citing Univ. Hts. v. O'Leary , 68 Ohio St.2d 130, 135, 429 N.E.2d 148 (1981). The legislation being challenged will not be invalidated unless the challenger establishes that it is unconstitutional beyond a reasonable doubt. Molyneaux, 144 Ohio App.3d at 426, 760 N.E.2d 461.
I, II
{¶ 9} Appellant, in her first assignment of error, argues that the trial court erred in holding that the provisions of Chapter 955, as amended by House Bill 14 in 2012, are not general laws. In her second assignment of error, appellant contends that the City of Reynoldsburg's pit bull Ordinances conflict with state law and exceed its authority under the Home Rule Amendment to the Ohio Constitution.
{¶ 10} Article XVIII, Section 3 of the Ohio Constitution gives municipalities their powers of home rule. Article XVIII, Section 3 provides as follows: "Municipalities shall have authority 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." The Ohio Supreme Court has established the following three-part test to determine whether a municipal ordinance must yield to the provisions of a state statute: "A state statute takes precedence over a local ordinance when (1) the ordinance is in conflict with the statute, (2) the ordinance is an exercise of the police power, rather than of local self-government, and (3) the statute is a general law." Canton v. State of Ohio, 95 Ohio St.3d 149, 151, 2002-Ohio-2005, 766 N.E.2d 963, citing Ohio Assn. of Private Detective Agencies, Inc. v. N. Olmsted , 65 Ohio St.3d 242, 244–245, 602 N.E.2d 1147 (1992), and Auxter v. Toledo , 173 Ohio St. 444, 183 N.E.2d 920 (1962).
{¶ 11} At issue in the case sub judice is whether or not R.C. Chapter 955 is a general law. The trial court, in its July 18, 2016 Judgment Entry, found that it was not.
{¶ 12} The Ohio Supreme Court has set forth a four-part test for evaluating whether a statute is a general law in Canton, supra : "To constitute a general law for purposes of home-rule analysis, a statute must (1) be part of a statewide and comprehensive legislative enactment, (2) apply to all parts of the state alike and operate uniformly throughout the state, (3) set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulations, and (4) prescribe a rule of conduct upon citizens generally." Id. at syllabus. We note that, in Lima v. Stepleton , 2013-Ohio-5655, 5 N.E.3d 721, the City of Lima conceded that R.C. Chapter 955 was a general law.
{¶ 13} The trial court, in this matter, found that "the language in R.C. 955.11(A)(6)(a) and 955.221(B)(3) must be construed as being part of a statewide and comprehensive legislative enactment" and that the first and second prongs of the Canton test were met. We concur.
{¶ 14} Ohio Revised Code Chapter 955 is titled "Dogs" and contains state-wide comprehensive provisions relating to dog and kennel licenses, impounding, assistance dogs and other dog-related matters. R.C. 955.11(A)(6)(a), cited by the trial court, defines a "vicious dog" as follows:
{¶ 15} In turn, R.C. 955.221(B)(3) states that a "municipal corporation may adopt and enforce ordinances to control dogs within the municipal corporation that are not otherwise in conflict with any other provision of the Revised Code."
{¶ 16} As noted by the trial court, Chapter 955, as amended by House Bill 14, is part of state-wide comprehensive legislation for regulating ownership of dogs and applies to all parts of the state alike and "does not differentiate between regions of the state or contrast townships versus counties versus towns or cities." R.C. Chapter 955 applies uniformly to the whole state without exception.
{¶ 17} However, the trial court found that the third prong of the Canton test was not met. As is stated above, under such prong, the statute must "set forth police, sanitary, or similar regulations, rather than purport only to grant or limit legislative power of a municipal corporation to set forth police, sanitary, or similar regulation." The trial court specifically found that the provisions of R.C. 955.221(B)(3)"does not set forth ‘police, sanitary, or similar regulations' so much as it establishes a definition" and that R.C. 955.221(B)(3) both grants and limits the legislative authority of municipalities.
{¶ 18} However, as noted by the Court in Mendenhall v. City of Akron , 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255 at paragraph 27, ...
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