Dayton v. State

892 N.E.2d 506

176 Ohio App.3d 469

2008-Ohio-2589

DAYTON, Appellant, v. The STATE of Ohio et al., Appellees.

No. 22221.

Court of Appeals of Ohio, Second District, Montgomery County.

Decided May 30, 2008.

Green & Green, Thomas M. Green, Jane M. Lynch, and Jared A. Wagner, Dayton, for appellant.

Nancy Hardin Rogers, Attorney General, and Frank M. Strigari and Julie Kelley Cannatti, Assistant Attorneys General, for appellee state of Ohio.

Trisha M. Duff, for appellee IAFF Local #136.

Livorno & Arnett Co., L.P.A. and Henry A. Arnett, Columbus, for amicus curiae Ohio Association of Professional Fire Fighters.

FAIN, Judge

{¶ 1} Plaintiff-appellant, the city of Dayton, has a residency requirement for employees. Defendant-appellee state of Ohio has enacted a statute that prohibits a political subdivision of the state from imposing residency requirements for its employees. This appeal concerns the constitutionality, under the Ohio Constitution, of the state's restriction on residency requirements. Specifically, Dayton appeals from a summary judgment rendered in favor of the state and third-party defendant-appellee International Association of Firefighters Local #136 ("IAFF #136"). After considering cross-motions for summary judgment, the trial court rendered summary judgment in favor of the state and IAFF #136. In so doing, the trial court upheld the constitutionality of R.C. 9.481, which prohibits political subdivisions from requiring full-time employees, as a condition of employment, to reside in any specific area of the state.

{¶ 2} Dayton contends that the trial court erred in finding that R.C. 9.481 was enacted pursuant to Section 34, Article II of the Ohio Constitution and in finding that R.C. 9.481 prevails over residency requirements adopted under Dayton's home-rule authority. Dayton also contends that the trial court erred in holding that R.C. 9.481 satisfies requirements for preempting local ordinances.

{¶ 3} According to Dayton, R.C. 9.481 is an impermissible attempt by the legislature to interpret the Ohio Constitution and create a right at variance with holdings of both the Supreme Court of the United States and the Supreme Court of Ohio. Finally, Dayton contends that R.C. 9.481 violates Section 26, Article II of the Ohio Constitution.

{¶ 4} We conclude that the enactment of R.C. 9.481 is authorized by the broad grant of authority to provide for the general welfare of working persons provided for in Section 34, Article II of the Ohio Constitution, that may not be impaired by the home-rule provision in Section 3, Article XVIII of the Ohio Constitution, or by any other provision of the Ohio Constitution, including the preamble.

{¶ 5} Because we conclude that R.C. 9.481 is authorized by Section 34, Article II of the Ohio Constitution, we need not consider Dayton's argument that the statute violates the home-rule provision of Section 3, Article XVIII, in that it conflicts with provisions of an ordinance adopted pursuant to home-rule powers.

{¶ 6} Finally, we conclude that the General Assembly did not impermissibly interfere with the role of the judiciary by enacting R.C. 9.481, nor does the statute itself violate the Uniformity Clause. Accordingly, the judgment of the trial court is affirmed.

I

{¶ 7} In 1912, Ohio citizens approved various amendments to their constitution, including Article XVIII ("the home rule amendment"), which allowed municipalities the ability to adopt charters and to exercise powers of self-government. Article II was adopted during the same process and gave Ohio's legislature broad authority over employee welfare.

{¶ 8} In 1913, Dayton adopted its first charter. Subsequently, in 1978, Dayton's City Commission adopted Ordinance No. 25558. This ordinance required all employees in Dayton's Civil Service to be actual residents and reside physically in the city of Dayton, and to continue to live in the city during the term of their employment. The commission also enacted Ordinance No. 27505 in 1987, for the purpose of placing the residency issue before the electorate. Based on the approval of the electorate in March 1987, Section 102 was placed in Dayton's charter.

{¶ 9} Section 102 provides:

{¶ 10} "(A) All employees in the Civil Service of the City of Dayton, appointed after the effective date of this Charter section, must and shall be actual residents of and physically live in the City of Dayton at the time of their appointment, and shall continue to be actual residents and physically live in the City of Dayton during the term of their employment.

{¶ 11} "(B) All employees in the Civil Service of the City of Dayton, required by Ordinance No. 25558, dated June 28, 1978, and/or personnel regulations, including, but not specifically limited to, Personnel Policies and Procedures Manual § 2.01, originally adopted June 28, 1978, as § 9.10 and revisions thereof, to have actual residence and physically live in the City of Dayton at the time of the effective date of this Charter section shall and must continue to be actual residents of and physically live in the City of Dayton during the term of their employment.

{¶ 12} "(C) Irrespective and notwithstanding any other provision of this Charter, violation of the provisions of this section shall result in discharge.

{¶ 13} "(D) The Commission may enact such ordinances as may be necessary and consistent with implementation of this section." Revised Code of General Ordinances of the City of Dayton ("R.C.G.O.") 102.

{¶ 14} Consistent with R.C.G.O. 102, Dayton employees have been required to reside in Dayton as a condition of employment, and the requirement has been routinely enforced.

{¶ 15} In 2006, the General Assembly passed S.B. 82, which became effective as R.C. 9.481, in May 2006. R.C. 9.481 applies to all political subdivisions and provides:

{¶ 16} "(B)(1) Except as otherwise provided in division (B)(2) of this section, no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.

{¶ 17} "(2)(a) Division (B)(1) of this section does not apply to a volunteer.

{¶ 18} "(b) To ensure adequate response times by certain employees of political subdivisions to emergencies or disasters while ensuring that those employees generally are free to reside throughout the state, the electors of any political subdivision may file an initiative petition to submit a local law to the electorate, or the legislative authority of the political subdivision may adopt an ordinance or resolution, that requires any individual employed by that political subdivision, as a condition of employment, to reside either in the county where the political subdivision is located or in any adjacent county in this state. * * *

{¶ 19} "(C) Except as otherwise provided in division (B)(2) of this section, employees of political subdivisions of this state have the right to reside any place they desire."

{¶ 20} The statute defines a "volunteer" as "a person who is not paid for service or who is employed on less than a permanent full-time basis." R.C. 9.481(A)(2). Thus, after R.C. 9.481 became effective, Dayton's full-time employees were no longer required to live in the city as a condition of employment. However, volunteers or part-time employees could be subjected to a residency requirement.

{¶ 21} Dayton was dissatisfied with this situation and filed a declaratory judgment action against the state of Ohio in May 2006, asking the trial court to declare that R.C. 9.481 is invalid and unenforceable and that it violates the Ohio Constitution. Dayton also asked for preliminary and permanent injunctions barring enforcement of the statute.

{¶ 22} After the state filed an answer, IAFF # 136 was given permission to intervene as a third-party defendant. All parties then filed cross-motions for summary judgment. Dayton noted in its motion that the city's population had been declining steadily since the 1970 census. As of November 2006, Dayton had 2,195 employees, 70 percent of whom resided in the northeast and southeast portions of the city. Of these individuals, 819 are employed in the police and fire departments, and 80 percent live in the northeast and southeast sections of the city.

{¶ 23} Dayton's motion also noted that in February 2005, the city had 2,500 vacant residential properties. Dayton's economic expert predicted an adverse effect on the city's population, property values, and tax revenues if the residency requirement were abolished.

{¶ 24} According to the state, the General Assembly found that 125 cities and 13 villages in Ohio subject employees to residency requirements. The General Assembly also made the following legislative comments when it enacted S.B. 82:

{¶ 25} "Section 2. In enacting section 9.481 of the Revised Code in this act, the General Assembly hereby declares its intent to recognize both of the following:

{¶ 26} "(A) The inalienable and fundamental right of an individual to choose where to live pursuant to Section 1 of Article I, Ohio Constitution.

{¶ 27} "(B) Section 34 of Article II, Ohio Constitution, specifies that laws may be passed providing for the comfort, health, safety, and general welfare of all employees, and that no other provision of the Ohio Constitution impairs or limits this power, including Section 3 of Article XVIII, Ohio Constitution.

{¶ 28} "Section 3. The General Assembly finds, in enacting section 9.481 of the Revised Code in this act, that it is a matter of statewide concern to generally allow the employees of Ohio's political subdivisions to choose where to live, and that it is necessary to generally prohibit political subdivisions from requiring their employees, as a condition of employment, to reside in any specific area of the state in order to provide for the comfort, health, safety, and general welfare of those public employees."

{¶ 29} In June 2007, the trial court granted summary judgment in favor of the state and IAFF # 136 and...