Preterm-Cleveland, Inc. v. Kasich

68 N.E.3d 314

2016 Ohio 4859

PRETERM–CLEVELAND, INC., Plaintiff–Appellant

v.Governor John R. KASICH, et al., Defendants–Appellees.

No. 103103.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 7, 2016.

Beatrice Jessie Hill, Case Western Reserve University, School of Law, Elizabeth Bonham, Freda J. Levenson, American Civil Liberties Union of Ohio, Justine L. Konicki, Susan O. Scheutzow, Kohrman, Jackson & Krantz P.L.L., Cleveland, OH, Lorie A. Chaiten, Roger Baldwin Foundation of ACLU, Inc., Chicago, IL, Jennifer Lee, American Civil Liberties Union of Ohio, New York, NY, for appellant.

Mike De Wine, Ohio Attorney General by Tiffany L. Carwile, Ryan L. Richardson, Assistant Attorneys General, Columbus, OH, for John R. Kasich, et al.

Timothy J. McGinty, Cuyahoga County Prosecutor by Charles E. Hannan, Assistant County Prosecutor, Cleveland, OH, for Timothy J. McGinty.

Before: E.A. GALLAGHER, P.J., McCORMACK, J., and STEWART, J.

TIM McCORMACK, J.

{¶ 1} Plaintiff-appellant, Preterm–Cleveland, Inc. ("Preterm"), appeals the trial court's granting summary judgment for defendants and denying Preterm's summary judgment motion. For the reasons that follow, we reverse the decision of the trial court as it relates to defendants' motion for summary judgment concerning standing and remand to the trial court for further proceedings consistent with this opinion.

Procedural History and Substantive Facts

{¶ 2} Preterm is a state-licensed ambulatory surgical facility ("ASF") that provides reproductive health services, including family planning and abortion procedures and care. On October 9, 2013, Preterm filed a complaint seeking injunctive and declaratory relief against the following: Governor John R. Kasich; the state of Ohio; the Ohio Department of Health; Theodore E. Wymslo, M.D.; the State Medical Board of Ohio; its members Anita M. Steinbergh, D.O.; Kris Ramprasad, M.D.; J. Craig Strafford, M.D., M.P.H., F.A.C.O.G.; Mark A. Bechtel, M.D.; Michael L. Gonidakis; Donald R. Kenney, Sr.; Bruce R. Saferin, D.P.M.; Sushil M. Sethi, M.D., M.P.H., F.A.C.S.; Amol Soin, M.D., M.B.A.; Lance A. Talmage, M.D.; the Ohio Department of Job and Family Services; Michael B. Colbert; and Cuyahoga County Prosecutor Timothy J. McGinty.

{¶ 3} In its complaint, Preterm alleges that the 2014–2015 Ohio Budget Bill, Am.Sub.H.B.No. 59 ("HB 59") violated the one-subject rule of the Ohio Constitution, Article II, Section 15 (D). Specifically, it alleges that three provisions of HB 59—the "heartbeat provisions," the "written transfer agreement provisions," and the "parenting and pregnancy provisions"—have no relation to appropriations and therefore destroy the bill's unity of purpose.

{¶ 4} Initially, defendants moved to dismiss Preterm's complaint on the grounds that Preterm lacked standing to challenge HB 59. The trial court denied defendants' motion, finding that Preterm was "threatened with a direct and concrete injury by the enactment of the written transfer agreement provisions, which regulate licensing of an ASF in a restrictive and onerous manner." Thereafter, Preterm moved for summary judgment, claiming that HB 59 violated the one-subject rule of the Ohio constitution as a matter of law. In response, Prosecutor McGinty moved for partial summary judgment regarding the noncriminal provisions of the budget bill ("written transfer agreement provisions" and "parenting and pregnancy provisions"), which Preterm did not oppose. The remaining defendants also moved for summary judgment against Preterm, claiming that Preterm lacked standing to challenge HB 59.

{¶ 5} On May 18, 2015, following a hearing on summary judgment, the trial court granted defendants' motion regarding standing, finding that Preterm lacked standing to challenge each of the relevant provisions of HB 59. The trial court explained that its review upon summary judgment was much broader and therefore permitted consideration of a wider range of admissible evidence. The court also granted Prosecutor McGinty's partial motion for summary judgment regarding the "parenting and pregnancy provisions" and the "written transfer agreement provisions," finding such claims unopposed and conceded by Preterm. Finally, determining that Preterm lacked standing, the trial court declined to address the merits of Preterm's motion for summary judgment as it related to a violation of the one-subject rule.

{¶ 6} Preterm now appeals the trial court's judgment, assigning the following errors for our review:

I. The trial court erred in granting summary judgment for the defendants based on its erroneous conclusion that Preterm lacked standing.

II. The trial court erred in denying Preterm's motion for summary judgment, which demonstrated as a matter of law, that HB 59 blatantly violates the one-subject rule of the Ohio constitution.

Summary Judgment

{¶ 7} Summary judgment is appropriate when: (1) there is no genuine issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) after construing the evidence most favorably for the party against whom the motion is made, reasonable minds can reach only a conclusion that is adverse to the nonmoving party. Civ.R. 56(C). Once a moving party satisfies its burden, the nonmoving party may not rest upon the mere allegations or denials of the moving party's pleadings; rather, it has a reciprocal burden of setting forth specific facts demonstrating that there is a genuine triable issue. State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 449, 663 N.E.2d 639 (1996).

{¶ 8} We review the trial court's judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996).

Standing

{¶ 9} It is well established in Ohio that before a court can properly consider the merits of a claim, the party seeking relief must establish standing to sue. State ex rel. Walgate v. Kasich, 147 Ohio St.3d 1, 2016-Ohio-1176, 59 N.E.3d 1240, ¶ 18 ; Ohio Contrs. Assn. v. Bicking, 71 Ohio St.3d 318, 320, 643 N.E.2d 1088 (1994). Under traditional standing principles, a plaintiff must show that it has suffered " ‘(1) an injury that is (2) fairly traceable to the defendant's allegedly unlawful conduct, and (3) likely to be redressed by the requested relief.’ " ProgressOhio.org, Inc. v. JobsOhio, 139 Ohio St.3d 520, 2014-Ohio-2382, 13 N.E.3d 1101, 13, ¶ 7, quoting Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 22.

{¶ 10} The injury need not be large or economic, but it must be "palpable." LULAC v. Kasich, 10th Dist. Franklin No. 10AP–639, 2012-Ohio-947, 2012 WL 760800, ¶ 21 ; see State ex rel. Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d 451, 469–470, 715 N.E.2d 1062 (1999) ("any injury, however small, is sufficient for purposes of private-action standing * * * "). The injury, however, may not be merely speculative. LULAC.

{¶ 11} When challenging the constitutionality of a legislative enactment, the party must demonstrate that it "has suffered or is threatened with direct and concrete injury in a manner or degree different from that suffered by the public in general." Sheward at 469–470, 715 N.E.2d 1062. "[P]rivate citizens may not restrain official acts when they fail to allege and prove damage to themselves different in character from that sustained by the public generally." State ex rel. Masterson v. Ohio State Racing Comm., 162 Ohio St. 366, 368, 123 N.E.2d 1 (1954), citing 39 Ohio Jurisprudence, 22, Section 12; 52 American Jurisprudence, 3, Section 3. However, "[n]otwithstanding the general requirement for injury, standing is a self-imposed judicial rule of restraint, and courts ‘are free to dispense with the requirement for injury where the public interest so demands.’ " Akron Metro. Hous. Auth. Bd. of Trustees v. State, 10th Dist. Franklin No. 07AP–738, 2008-Ohio-2836, 2008 WL 2390802, ¶ 11, quoting Sheward at 470, 715 N.E.2d 1062.

{¶ 12} When a party challenging the legality of a government action is "an object of the action, * * * there is ordinarily little question" that the action caused injury and a judgment preventing the action will redress it. Clifton v. Blanchester, 131 Ohio St.3d 287, 2012-Ohio-780, 964 N.E.2d 414, ¶ 16 ; Planned Parenthood Sw. Ohio Region v. DeWine, 64 F.Supp.3d 1060, 1065 (S.D.Ohio 2014) (plaintiffs had standing to challenge a statute where they were "indisputably targeted" by the statute); Navegar, Inc. v. United States, 322 U.S.App.D.C. 288, 103 F.3d 994, 1000 (1997) (finding it unlikely that the legislature would enact laws targeting a specific industry if it had no intention of applying those laws to the individual participants in that particular industry).

{¶ 13} A party in a one-subject rule challenge, who alleges injury from a particular provision of the legislation, has standing where it challenges the enactment of the legislation in its entirety. Akron Metro. Hous. Auth. Bd. of Trustees v. State, 10th Dist. Franklin No. 07AP–738, 2008-Ohio-2836, 2008 WL 2390802, ¶ 14. "Because [the party] alleged injury resulting from the enactment of the legislation, [it has] a direct interest in the challenged legislation that is adverse to the legal interests of the state and gives rise to an actual controversy for the courts to decide." Id. To deny standing in a case where a party alleged injury by anything less than all of the provisions of the statute it challenged "would insulate legislation from one-subject constitutional scrutiny unless a coalition of plaintiffs could be assembled to cover the wide variety of subjects amassed in a single piece of legislation." Id.

{¶ 14} Whether a party has established standing is a question of law, which this court reviews de novo. Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 975 N.E.2d 977, ¶ 20, citing Cuyahoga Cty. Bd. of Commrs. v. State, 112 Ohio St.3d 59, 2006-Ohio-6499, 858 N.E.2d 330, ¶ 23.

{¶ 15} Here, Preterm contends that it has standing to challenge HB 59, particularly as it relates to the "heartbeat provisions," the "written...