City of Cleveland v. State

157 Ohio St.3d 330

136 N.E.3d 466

2019 Ohio 3820

The CITY OF CLEVELAND, Appellee,

v.The STATE of Ohio, Appellant.

No. 2018-0097

Supreme Court of Ohio.

Submitted March 6, 2019

Decided September 24, 2019

Barbara A. Langhenry, Cleveland Director of Law, Gary S. Singletary, Chief Counsel, and L. Stewart Hastings and Elizabeth M. Crook, Assistant Law Directors, for appellee.

Dave Yost, Attorney General, Benjamin M. Flowers, State Solicitor, Stephen P. Carney, Deputy Solicitor, and Zachary P. Keller, Assistant Attorney General, for appellant.

Frost Brown Todd, L.L.C., Philip K. Hartmann, and Yazan S. Ashrawi ; Columbus, and Garry E. Hunter, Athens, urging affirmance for amicus curiae Ohio Municipal League.

Scott & Winters Law Firm, L.L.C., and Joseph F. Scott, Cleveland, urging affirmance for amici curiae Campaign to Defend Local Solutions, Legal Scholars, and International Municipal Lawyers Association.

Eve V. Belfance, Akron Director of Law, and Brian D. Bremer, Assistant Law Director, urging affirmance for amicus curiae city of Akron.

Zach Klein, Columbus City Attorney, Lara N. Baker-Morrish, City Solicitor General, and Orly Ahroni, Assistant City Prosecutor, urging affirmance for amicus curiae Columbus City Attorney Zach Klein.

Graff and McGovern, L.P.A., and Luther L. Liggett Jr., Columbus, urging reversal for amicus curiae AIA Ohio.

Ice Miller, L.L.P., and Patrick A. Devine, Columbus, urging reversal for amici curiae Ohio Contractors Association, Associated General Contractors of Ohio, National Federation of Independent Business, and Ohio Chamber of Commerce.

Fadel & Beyer, L.L.C., Timothy R. Fadel, and Jonah D. Grabelsky, Cleveland, urging reversal for amicus curiae International Union of Operating Engineers, Local 18.

Weston Hurd, L.L.P., Frederick T. Bills, and David T. Patterson, Columbus, urging reversal for amicus curiae American Council of Engineering Companies of Ohio.

Kennedy, J. {¶ 1} In this discretionary appeal from a judgment of the Eighth District Court of Appeals, we consider whether the enactment of R.C. 9.75, which prohibits a public authority from requiring that contractors on public-improvement projects employ a specific number or percentage of the public authority's residents, is within the power granted to the General Assembly by Article II, Section 34 of the Ohio Constitution. That constitutional provision affords the legislature the authority to enact laws "providing for the comfort, health, safety and general welfare of all employes."

{¶ 2} The appellate court affirmed the trial court's order permanently enjoining enforcement of R.C. 9.75 and held that Article II, Section 34 did not authorize the General Assembly to infringe on appellee city of Cleveland's municipal home-rule authority under Article XVIII, Section 3 of the Ohio Constitution ("Home Rule Amendment") to impose city-residency preferences in Cleveland's public-improvement contracts.

{¶ 3} We reject that analysis. Article II, Section 34 of the Ohio Constitution is a broad grant of authority to the General Assembly to legislate for the welfare of the working people in Ohio. The legislature exercised that authority in enacting R.C. 9.75, which protects all employees engaged in the construction trades from public-improvement contracts that impose conditions on employment favoring a public authority's own residents to the detriment of other construction workers in the state. Because every resident of a political subdivision is affected by the residency restrictions imposed by another political subdivision, the statute provides for the comfort and general welfare of all Ohio construction employees and therefore supersedes conflicting local ordinances.

{¶ 4} Accordingly, we reverse the judgment of the court of appeals and remand this matter to the trial court to dissolve the injunction and enter judgment in favor of appellant, the state of Ohio.

Facts and Procedural History

{¶ 5} In 2003, the Cleveland City Council found that few of the employment opportunities created by the city's expenditures for public improvements were going to city residents. Seeking to help alleviate unemployment and poverty in Cleveland, the city council enacted the Fannie M. Lewis Cleveland Resident Employment Law, Cleveland Codified Ordinances Chapter 188.

{¶ 6} The Fannie Lewis Law requires public-construction contracts in an amount of $100,000 or more to include a provision mandating that city residents perform 20 percent of the total construction work hours under the contract. Cleveland Codified Ordinances 188.01(b), 188.02(a)(1). It also requires the construction contract to specify penalties for a contractor's failure to comply with this contractual term. Cleveland Codified Ordinances 188.02(a)(2), 188.05. Those penalties include damages of up to 2.5 percent of the final total amount of the contract as well as the possibility of the city withholding payments, terminating the contract, or disqualifying the contractor from future bids. Cleveland Codified Ordinances 188.05(b), 188.05(c).

{¶ 7} In 2016, the General Assembly enacted what is now R.C. 9.75 (originally enacted as R.C. 9.49, 2016 H.B. No. 180), which provides:

(B)(1) No public authority shall require a contractor, as part of a prequalification process or for the construction of a specific public improvement or the provision of professional design services for that public improvement, to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.

(2) No public authority shall provide a bid award bonus or preference to a contractor as an incentive to employ as laborers a certain number or percentage of individuals who reside within the defined geographic area or service area of the public authority.

R.C. 9.75(A)(6) defines "public authority" to include municipalities such as the city of Cleveland and other political subdivisions of the state. The statute also states that a "public improvement" includes "[a]ny structure or work constructed by a public authority or by another person on behalf of a public authority pursuant to a contract with the public authority." R.C. 9.75(A)(7)(d).

{¶ 8} In uncodified language, the General Assembly recognized "[t]he inalienable and fundamental right of an individual to choose where to live," 2016 H.B. No. 180, Section 3(A), and found that "it is a matter of statewide concern to generally allow the employees working on Ohio's public improvement projects to choose where to live," id. at Section 4. It declared its intent "to provide for the comfort, health, safety, and general welfare of those employees" by enacting legislation to "prohibit public authorities from requiring contractors, as a condition of accepting contracts for public improvement projects, to employ a certain number or percentage of individuals who reside in any specific area of the state." Id.

{¶ 9} The city of Cleveland brought this action seeking a temporary restraining order, injunctive relief, and a judgment declaring R.C. 9.75 to be unconstitutional because it conflicts with the city's home-rule authority. It also sought a declaration that "the General Assembly's reference to Article II Section 34 of the Ohio Constitution as a justification for enacting [ R.C. 9.75 ] is improper, not well taken, and unconstitutional."

{¶ 10} The trial court permanently enjoined enforcement of R.C. 9.75. It found that R.C. 9.75 "does not provide for the comfort, health, safety, and welfare of employees; rather, [it] seeks only to dictate the terms by which municipalities may contract for workers in construction projects within their realm." It therefore determined that the statute exceeds the authority afforded the legislature by Article II, Section 34. Moreover, the court concluded that R.C. 9.75 violates the Home Rule Amendment, Article XVIII, Section 3 of the Ohio Constitution because the statute limits the city's exercise of local self-government. And the court, assuming for the sake of argument that the ordinance was an exercise of the city's police power, declared that R.C. 9.75 is not a general law and therefore must yield to the city's home-rule authority.

{¶ 11} The Eighth District Court of Appeals affirmed, holding that " R.C. 9.75 does not relate to the right of an individual to choose where to live or a matter implicating the general welfare of all employees." 2017-Ohio-8882, 90 N.E.3d 979, ¶ 24. The appellate court explained that the statute is not an exercise of the General Assembly's authority granted by Article II, Section 34 of the Ohio Constitution, id. at ¶ 26, concluding that "[i]t is readily apparent that R.C. 9.75 is no more than an attempt to preempt powers of local self-government and to restrict the contract terms between public authorities and contractors who choose to bid on local public improvement contracts," id. at ¶ 25. The court further determined that the Fannie Lewis Law constitutes an exercise of local self-government by providing contract terms for the city's public-improvement contracts. Id. at ¶ 35. The appellate court further explained that R.C. 9.75 is not a general law that supersedes conflicting ordinances, because it is not part of a statewide and comprehensive scheme, id. at ¶ 41, it only serves to limit the legislative power of a municipal corporation, id. at ¶ 42, and it does not prescribe a rule of conduct upon citizens generally, id. at ¶ 43.

Positions of the Parties

{¶ 12} On appeal to this court, the state contends that the General Assembly exercised the power granted by Article II, Section 34 of the Ohio Constitution to pass laws for employees' comfort and general welfare when it enacted R.C. 9.75. Relying on Lima v. State , 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616, the state maintains that the statute protects employees from a city's preference for its own residents and ensures that all employees are free to decide where to live without sacrificing the opportunity to compete for...