Cleveland v. State (Slip Opinion) , 2019 Ohio 3820 ( 2019 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Cleveland v. State, Slip Opinion No. 2019-Ohio-3820.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2019-OHIO-3820
THE CITY OF CLEVELAND, APPELLEE, v. THE STATE OF OHIO, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as Cleveland v. State, Slip Opinion No. 2019-Ohio-3820.]
Municipalities—Required contract terms concerning hiring city residents—R.C.
9.75—Statute forbidding public authority from requiring contractors to
employ public authority’s residents overrides local legislation imposing
such requirements—Statute enacted pursuant to authority granted by
Article II, Section 34, Ohio Constitution.
(No. 2018-0097—Submitted March 6, 2019—Decided September 24, 2019.)
APPEAL from the Court of Appeals for Cuyahoga County,
No. 105500, 2017-Ohio-8882.
_______________________
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
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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.
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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
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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
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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 work in other parts of the state.
Because R.C. 9.75 benefits construction workers across Ohio, the state explains, it
provides for the general welfare of employees. Therefore, pursuant to Article II,
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Section 34, the statute prevails over an ordinance enacted pursuant to a
municipality’s home-rule authority. But in any case, the state argues that R.C. 9.75
does not violate the Home Rule Amendment, because the statute is a general law
that supersedes conflicting municipal ordinances such as the Fannie Lewis Law.
{¶ 13} The city asserts that R.C. 9.75 does not provide for the comfort and
general welfare of all employees, because the Fannie Lewis Law does not regulate
the residency of anyone but rather provides only contractual terms between the city
and its contractors relating to how the city will spend its own money. It notes that
this court’s cases upholding legislation enacted pursuant to Article II, Section 34,
including Lima, “involve statutory impacts on direct employer-employee
relationships,” while “R.C. 9.75 does not address an employer-employee
relationship, but rather the arms-length relationship between municipalities and
contractors in negotiating public contracts.” Lastly, the city contends that R.C. 9.75
violates the Home Rule Amendment, because providing the terms on which the city
will contract for public improvements is the exercise of local self-government, and
the statute cannot displace the ordinance because it is not a general law—it is not
part of a statewide and comprehensive plan, it improperly attempts to limit local
self-government, and it does not prescribe a rule of conduct upon citizens generally.
{¶ 14} We accepted two propositions of law for review:
(I) R.C. 9.75 is a valid exercise of authority under Article II,
Section 34, because it provides for the general welfare of employees
by protecting them from local preferences. Thus, no home-rule
analysis is needed.
(II) R.C. 9.75 satisfies home rule. Cleveland’s ordinance is
an exercise of police power designed to serve general-welfare
interests by shifting work to local residents. The challenged law is a
general law that counteracts the significant extraterritorial effects
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residency quotas have on Ohioans living outside the relevant local
jurisdiction.
Our resolution of the first proposition of law makes it unnecessary to decide the
second, and we decline to do so.
Law and Analysis
Standard of Review
{¶ 15} A statute cannot be enjoined unless it is unconstitutional. Toledo v.
State, 154 Ohio St. 3d 41, 2018-Ohio-2358, 110 N.E.3d 1257, ¶ 17. The power to
enjoin a statute is “further ‘circumscribed by the rule[s] that laws are entitled to a
strong presumption of constitutionality and that a party challenging the
constitutionality of a law bears the burden of proving that the law is unconstitutional
beyond a reasonable doubt.’ ” (Brackets added in Toledo.) Id. at ¶ 18, quoting
Yajnik v. Akron Dept. of Health, Hous. Div., 101 Ohio St. 3d 106, 2004-Ohio-357,
802 N.E.2d 632, ¶ 16. The determination whether a statute or ordinance is
constitutional is a question of law that we review de novo. Crutchfield Corp. v.
Testa, 151 Ohio St. 3d 278, 2016-Ohio-7760, 88 N.E.3d 900, ¶ 16; Toledo,
Columbus & Ohio River RR. Co. v. Miller, 108 Ohio St. 388, 140 N.E. 617,
paragraph two of the syllabus (1923).
Constitutional Construction
{¶ 16} The purpose of our written constitution is to define and limit the
powers of government and secure the rights of the people. It controls as written
unless changed by the people themselves through the amendment procedures
established by Article XVI of the Ohio Constitution. The Ohio Constitution is the
paramount law of this state, and we recognize that the framers chose its language
carefully and deliberately, employed words in their natural sense, and intended
what they said, see Gibbons v. Ogden, 22 U.S. 1, 188, 6 L. Ed. 23 (1824), Lawnwood
Med. Ctr., Inc. v. Seeger, 990 So. 2d 503, 510 (Fla.2008).
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{¶ 17} Therefore, in construing the Ohio Constitution, our duty is to
determine and give effect to the intent of the framers as expressed in its plain
language, State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St. 3d 322, 2009-
Ohio-4900, 916 N.E.2d 462, ¶ 50, so that “ ’[w]here the meaning of a provision is
clear on its face, we will not look beyond the provision in an attempt to divine what
the drafters intended it to mean.’ ” Toledo City School Dist. Bd. of Edn. v. State
Bd. of Edn., 146 Ohio St. 3d 356, 2016-Ohio-2806, 56 N.E.3d 950, ¶ 16, quoting
State ex rel. Maurer v. Sheward, 71 Ohio St. 3d 513, 520-521, 644 N.E.2d 369
(1994). We give undefined words in the Constitution their usual, normal, or
customary meaning, Toledo City School Dist. at ¶ 16, and we may go beyond the
text to consider other sources of meaning, such as the purpose of an amendment,
the history of its adoption, or its attending circumstances, only “when the language
being construed is ‘obscure or of doubtful meaning,’ ” State ex rel. Wallace v.
Celina, 29 Ohio St. 2d 109, 112, 279 N.E.2d 866 (1972), quoting Cleveland v. Bd.
of Tax Appeals, 153 Ohio St. 97, 103, 91 N.E.2d 480 (1950). See Maurer at 522
(“we will not look to the history of a provision where, as here, the language of the
provision is clear”). We may not use canons of interpretation to create ambiguity
that does not exist in the plain language itself. See State v. Krutz, 28 Ohio St. 3d 36,
37, 502 N.E.2d 210 (1986); Ali v. Fed. Bur. of Prisons, 552 U.S. 214, 227, 128
S. Ct. 831, 169 L. Ed. 2d 680 (2008). Doing so would be inconsistent with “the well-
established rule that the plain language of the enacted text is the best indicator of
intent.” Nixon v. United States, 506 U.S. 224, 232, 113 S. Ct. 732, 122 L. Ed. 2d 1
(1993).
Article II, Section 34
{¶ 18} Because the General Assembly is vested with the legislative power
of this state, it may enact any law that is not in conflict with the Ohio or United
States Constitutions. Toledo, 154 Ohio St. 3d 41, 2018-Ohio-2358, 110 N.E.3d
1257, at ¶ 17. Additionally, Article II, Section 34 of the Ohio Constitution
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provides: “Laws may be passed fixing and regulating the hours of labor,
establishing a minimum wage, and providing for the comfort, health, safety and
general welfare of all employes; and no other provision of the constitution shall
impair or limit this power.”
{¶ 19} What is now Article II, Section 34 was initially introduced as
Proposal No. 122, relating “to employment of women, children and persons
engaged in hazardous employment.” 1 Proceedings and Debates of the
Constitutional Convention of the State of Ohio 106 (1912). See generally Rocky
River v. State Emp. Relations Bd., 43 Ohio St. 3d 1, 14-15, 539 N.E.2d 103 (1989)
(providing a history of the debates regarding Article II, Section 34). On being
reported out of the committee on labor, the amended proposal addressed “all
employes.” 1 Proceedings and Debates at 755. The convention adopted Proposal
No. 122, more broadly titled “Welfare of employees,” by a vote of 96 yeas and 5
nays. 2 Proceedings and Debates at 1786. Following its approval by the people of
Ohio, the legislative authority to address the welfare of Ohio’s working people is
now enshrined in our Constitution as Article II, Section 34.
{¶ 20} We have described the language used in Section 34 as “so clear and
unequivocal that resort to secondary sources, such as the constitutional debates, is
actually unnecessary. * * * [I]t is the duty of courts to enforce the provision as
written.” Rocky River at 15.
{¶ 21} In giving undefined words in the Constitution their usual, normal, or
customary meaning, we rely on their dictionary definitions. E.g., State v. Carswell,
114 Ohio St. 3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 12; State ex rel. King v.
Summit Cty. Council, 99 Ohio St. 3d 172, 2003-Ohio-3050, 789 N.E.2d 1108, ¶ 35-
36; State ex rel. Lake Cty. Bd. of Commrs. v. Zupancic, 62 Ohio St. 3d 297, 300-
301, 581 N.E.2d 1086 (1991); State ex rel. Saxbe v. Brand, 176 Ohio St. 44, 46-47,
197 N.E.2d 328 (1964); accord People v. Rea, 500 Mich. 422, 428, 902 N.W.2d
362 (2017); Venice HMA, L.L.C. v. Sarasota Cty., 228 So. 3d 76, 81 (Fla.2017);
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Noffke ex rel. Swenson v. Bakke, 315 Wis. 2d 350, 2009 WI 10, 760 N.W.2d 156,
¶ 10.
{¶ 22} The 1911 edition of Webster’s New International Dictionary (1911)
defines “comfort” to mean “[s]trengthening aid,” “[a]ssistance; relief: succor;
support,” and “[s]tate or feeling of having relief, cheer, or consolation; specif.,
contented enjoyment in physical well-being, free from want or anxiety; mental ease
or satisfaction or material well-being; freedom from pain, want, or anxiety.” Id. at
446. The same dictionary defines “welfare” as “[s]tate of faring, or doing, well;
state or condition in regard to well-being; esp., condition of health, happiness,
prosperity, or the like * * *.” These meanings persist today. See Webster’s Third
New International Dictionary 454, 2594 (2002) (defining “comfort” and
“welfare”).
{¶ 23} The authority vested in the General Assembly by Article II, Section
34 to pass laws advancing employees’ comfort and general welfare therefore
includes laws providing for the assistance, support, well-being, and prosperity of
Ohio’s working people. Because the language of Section 34 is plain and
unambiguous, we may not resort to other forms of constitutional interpretation—
arguments concerning the structure of the Constitution, canons of construction such
as the doctrine of ejusdem generis and the rule against superfluities, and the
historical record available—that are used when a provision’s meaning is unclear.
{¶ 24} We reject the contention that authority to provide for the comfort and
general welfare of employees is limited to regulating the workplace environment
or workplace conditions and hazards. We must give effect to the broader language
the framers used, not narrow it under the guise of constitutional construction. And
tellingly, it has long been recognized that a constitutional grant of authority to
provide for the “general welfare” represents a broad grant of discretion to the
legislature. See, e.g., Agency for Internatl. Dev. v. Alliance for Open Soc. Internatl.,
Inc., 570 U.S. 205, 213, 133 S. Ct. 2321, 186 L. Ed. 2d 398 (2013) (explaining that
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the United States Constitution’s Spending Clause “provides Congress broad
discretion to tax and spend for the ‘general Welfare’ ”); New York v. United States,
505 U.S. 144, 158, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992) (noting the court’s
“broad construction” of Congress’ power to spend for “the general Welfare”); South
Dakota v. Dole, 483 U.S. 203, 207, 107 S. Ct. 2793, 97 L. Ed. 2d 171 (1987) (“In
considering whether a particular expenditure is intended to serve general public
purposes, courts should defer substantially to the judgment of Congress”).
{¶ 25} We understand that the authority to legislate for the comfort and
general welfare of employees may overlap with other powers granted to the General
Assembly in Section 34 and elsewhere in the Constitution. That does not render
those other provisions meaningless. Instead, the words the framers deliberately
chose remove any doubt that in addition to providing for employees’ comfort and
general welfare, the General Assembly also has the specific authority to pass laws
regulating wages, hours, health, and safety—as well as to create a workers’
compensation scheme (which relates to employee health, hours, and wages) and to
set hours for work on public-work projects (which implicates the authority to fix
and regulate the hours of labor). See Ali, 552 U.S. at 226, 128 S. Ct. 831, 169
L. Ed. 2d 680 (unnecessary examples may be inserted out of an abundance of
caution).
{¶ 26} We also recognize that the plain meaning of Section 34 permits the
General Assembly to advance the general welfare of employees notwithstanding
other protections secured by the Bill of Rights or the Home Rule Amendment.
Section 34 states that “no other provision of the constitution shall impair or limit
this power.” The framers were aware of the Bill of Rights, which predated the 1912
Constitution, as well as the home-rule provisions adopted at the 1912 convention,
yet they nonetheless decided that the powers granted in Section 34 would override
those other provisions. “[W]e must not ignore the words of our Constitution * * *
in order to reach a result which we believe to be desirable in this particular case.
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Our function is to interpret those words and not to revise them.” Johnson v. Indus.
Comm., 164 Ohio St. 297, 302, 130 N.E.2d 807 (1955).
Caselaw Construing Article II, Section 34
{¶ 27} In more than a century since the adoption of Section 34, we have
never suggested that its language is somehow ambiguous, unclear, or limited.
Rather, we have explained that Article II, Section 34 of the Ohio Constitution is “a
broad grant of authority to the General Assembly” to fix the hours of labor,
establish a minimum wage, and provide for the comfort, health, safety, and general
welfare of all employees. (Emphasis sic.) Am. Assn. of Univ. Professors, Cent.
State Univ. Chapter v. Cent. State Univ., 87 Ohio St. 3d 55, 61, 717 N.E.2d 286
(1999).
{¶ 28} Based on this constitutional grant of authority, we have upheld
statutes that limited the number of consecutive hours that city firefighters could
work, State ex rel. Strain v. Houston, 138 Ohio St. 203, 210, 34 N.E.2d 219 (1941),
compelled employers and employees to respect a day of rest through Sunday
closing laws, State v. Kidd, 167 Ohio St. 521, 527, 150 N.E.2d 413 (1958), and
increased teaching hours at state universities, Am. Assn. of Univ. Professors at 61.
{¶ 29} We have also sustained laws that regulate the conditions of
employment, including what minimum wage will be paid, Strain v. Southerton, 148
Ohio St. 153, 74 N.E.2d 69 (1947), what safety equipment must be used, Akron &
Barberton Belt RR. Co. v. Pub. Util. Comm., 148 Ohio St. 282, 286, 74 N.E.2d 256
(1947) (cabooses), and what benefits the employee will receive, State ex rel. Bd. of
Trustees of Police & Firemen’s Pension Fund v. Bd. of Trustees of Police Relief &
Pension Fund of Martins Ferry, 12 Ohio St. 2d 105, 107, 233 N.E.2d 135 (1967)
(state police and firefighter disability and pension fund); State ex rel. Mun. Constr.
Equip. Operators’ Labor Council v. Cleveland, 114 Ohio St. 3d 183, 2007-Ohio-
3831, 870 N.E.2d 1174, ¶ 78 (statutory sick-leave benefits).
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{¶ 30} In addition, we have validated enactments seeking to advance the
comfort and general welfare of employees. In Rocky River, we upheld the Ohio
Public Employees’ Collective Bargaining Act’s requirement for binding arbitration
as “indisputably concerned with the ‘general welfare’ of employees.” 43 Ohio
St.3d at 13, 539 N.E.2d 103. And in Lima, we let stand a statute forbidding political
subdivisions from imposing residency requirements on their employees, stating that
the statute “provides for the comfort and general welfare of public employees by
ensuring that they will be able to choose the municipality in which they reside.”
122 Ohio St. 3d 155, 2009-Ohio-2597, 909 N.E.2d 616, at ¶ 1, 14.
{¶ 31} And this court has consistently recognized that if a statute is enacted
pursuant to Article II, Section 34, then it is not limited by the Home Rule
Amendment’s reservation of all powers of local self-government to municipalities.
E.g., Lima at ¶ 1; Mun. Constr. Equip. Operators’ Labor Council v. Cleveland at
¶ 78; Rocky River at paragraph two of the syllabus.
R.C. 9.75 and the Fannie Lewis Law
{¶ 32} R.C. 9.75 prohibits municipalities such as the city of Cleveland from
requiring contractors to employ local residents on public-improvement projects. It
conflicts with Cleveland’s Fannie Lewis Law, which requires contractors on the
city’s public-improvement projects to set aside a minimum amount of work for
Cleveland’s residents.
{¶ 33} The Ohio Constitution entrusts the General Assembly with the
power to pass laws fixing the hours of labor, establishing a minimum wage, and
providing for the comfort, health, safety, and general welfare of all employees.
Necessarily within that power is the authority to regulate public-improvement
contracts that impose terms directly affecting the employment of Ohio workers,
including city-specific requirements for hours of work, minimum wages, or health
and safety protections. And Section 34 also authorizes the General Assembly to
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pass laws regulating public-improvement contracts when necessary to provide for
the comfort and general welfare of Ohio employees.
{¶ 34} Contrary to the appellate court’s conclusion, the General Assembly
has not acted only to restrict the city of Cleveland’s powers of local self-
government over contracting. The Fannie Lewis Law does not simply set forth
commercial terms on which the city is willing to bargain with contractors. Rather,
the ordinance regulates the employment of workers hired under public-works
contracts by requiring those contracts to exact binding promises dictating the
eligibility of a worker to be hired on a construction project. By reserving work for
Cleveland’s residents, the Fannie Lewis Law directly impacts hiring, the most basic
condition of employment, for workers on public-improvement projects. In doing
so, the city of Cleveland has legislated within a field subject to regulation by the
General Assembly pursuant to Article II, Section 34.
{¶ 35} Further, R.C. 9.75 provides for the assistance, support, well-being,
and prosperity of construction workers across this state when it prohibits terms in a
city’s public-improvement contracts that disqualify workers based solely on their
residency. See Lima, 122 Ohio St. 3d 155, 2009-Ohio-2597, 909 N.E.2d 616, at
¶ 14. Protectionist city-residency regulations affect all Ohio construction workers,
because every resident of a political subdivision is disfavored by the residency
restrictions imposed by another political subdivision. For example, Cleveland
residents are disadvantaged by Akron’s local hiring policy just as Akron residents
are disadvantaged by the Fannie Lewis Law. See Ohio Contrs. Assn. v. Akron,
N.D.Ohio No. 5:14CV0923, 2014 WL 1761611 (May 1, 2014), *1-2 (discussing
Akron’s local hiring policy). By providing an equal opportunity for Ohioans to
compete for work on public-improvement projects both inside and outside of the
political subdivisions in which they reside, R.C. 9.75 provides for the comfort and
general welfare of all citizens working in the construction trades.
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{¶ 36} We acknowledge the city’s assertion that the true motivation of the
legislature in enacting R.C. 9.75 was to benefit contractors, not employees.
However, “our job is to interpret the statute as written, not to puzzle over
motivations.” Sheet Metal Workers’ Internatl. Assn., Local Union No. 33 v. Gene’s
Refrig., Heating & Air Conditioning, Inc., 122 Ohio St. 3d 248, 2009-Ohio-2747,
910 N.E.2d 444, ¶ 51 (Pfeifer, J., dissenting). We look for the intent of the General
Assembly in the language that it enacted, Pelletier v. Campbell, 153 Ohio St. 3d
611, 2018-Ohio-2121, 109 N.E.3d 1210, ¶ 14, and in uncodified law enacted as part
of 2016 H.B. 180, Section 4, the legislature stated that enacting R.C. 9.75 was
“necessary in order to provide for the comfort, health, safety, and general welfare
of those employees [working on Ohio’s public-improvement projects].” We may
not look behind and second-guess such a plain statement of legislative intent.
{¶ 37} The city contends that “a contractor under the Fannie Lewis Law is
free to hire whomever it wants,” because the maximum penalty for failing to give
Cleveland residents 20 percent of the project’s work hours is 2.5 percent of the
value of the contract. But another possible penalty is disqualification from bidding
on future city contracts. In any case, the question presented in this case is whether
Article II, Section 34 authorizes the General Assembly to regulate public-works
contracts that subject Ohio’s workers to residency preferences or restrictions. And
the answer to that question is necessarily the same, regardless of the size of the
local-hiring quota or the penalty imposed for failing to meet it—the difference
between a 20 percent hiring quota and a 100 percent hiring quota is not one of kind
but of degree.
{¶ 38} Pursuant to R.C. 9.75, neither are permissible. Until a majority of
this court is prepared to overrule Lima, we adhere to our holding that the comfort
and general welfare of employees includes their choice of residency. And if the
legislature can prohibit a city from preferring its own residents when it hires city
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workers, it can also prohibit a city from requiring contractors to prefer the city’s
own residents in hiring for the city’s public-works projects.
{¶ 39} Accordingly, R.C. 9.75 is a valid exercise of the power granted by
Article II, Section 34 of the Ohio Constitution, and it supersedes the Fannie Lewis
Law, a local ordinance enacted by a municipality pursuant to its home-rule
authority.
Conclusion
{¶ 40} It is a fundamental precept of our tripartite form of state government
that the General Assembly is the ultimate arbiter of public policy. Kaminski v.
Metal & Wire Prods. Co., 125 Ohio St. 3d 250, 2010-Ohio-1027, 927 N.E.2d 1066,
at ¶ 59. Our role “in reviewing legislative enactments is limited to interpreting the
meaning of statutory provisions and determining whether they are in accord with
the federal and state Constitutions.” Toledo, 154 Ohio St. 3d 41, 2018-Ohio-2358,
110 N.E.3d 1257, at ¶ 31. Questioning the wisdom of the legislature’s public-policy
decisions does not fall within the scope of that review. See State ex rel. Ohio
Congress of Parents & Teachers v. State Bd. of Edn., 111 Ohio St. 3d 568, 2006-
Ohio-5512, 857 N.E.2d 1148, ¶ 20.
{¶ 41} Article II, Section 34 of the Ohio Constitution is an express grant of
power permitting the General Assembly to enact laws providing for the comfort,
health, safety, and general welfare of Ohio employees that control over local
ordinances passed pursuant to a municipality’s home-rule authority. This
legislative power encompasses laws that regulate what conditions on hiring and
employment local governments may impose in their public-improvement contracts.
{¶ 42} The General Assembly exercised that constitutional legislative
authority to enact R.C. 9.75. This statute provides for the welfare of Ohio
employees by prohibiting local-government contracts from imposing hiring
preferences that disfavor nonresident employees working in the construction trades.
Because R.C. 9.75 falls within the legislative power vested in the General Assembly
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by Article II, Section 34 of the Ohio Constitution, it is not limited by the Home
Rule Amendment, and the Fannie Lewis Law is not enforceable against contractors
on the city of Cleveland’s public-improvement projects.
{¶ 43} Accordingly, we reverse the judgment of the Eighth District Court
of Appeals and remand this matter to the trial court to dissolve the injunction and
enter judgment in favor of the state.
Judgment reversed
and cause remanded.
FRENCH and FISCHER, JJ., concur.
DEWINE, J., concurs in judgment only, with an opinion joined in part by
STEWART, J.
O’CONNOR, C.J., dissents, with an opinion joined by DONNELLY and
STEWART, JJ.
___________________
DEWINE, J., concurring in judgment only.
{¶ 44} I, too, would find that the state legislative enactment prevails over
Cleveland’s Fannie Lewis Law, but I arrive at the result by a different path than the
lead opinion. In my view, the lead opinion dangerously misreads Article II, Section
34 of the Ohio Constitution when it concludes that as long as a legislative enactment
affects the “welfare of the working people in Ohio,” the law need not comply with
any other provision of the Ohio Constitution. Lead opinion at ¶ 3; see also lead
opinion at ¶ 18-26. When we look to the structure, text, and context of our
Constitution, along with the historical record, it is evident that the authority granted
to the legislature by Article II, Section 34 to enact laws irrespective of other
constitutional safeguards is limited to laws that regulate work hours, set a minimum
wage, or regulate the workplace environment.
{¶ 45} Nonetheless, unlike the dissenting justices, I do not believe that the
state legislature violated the Home Rule Amendment to the Ohio Constitution.
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Rather, I believe it was within the legislature’s authority to enact R.C. 9.75 to ban
discriminatory hiring requirements on public-improvement projects. As a result, I
concur in the majority’s judgment but I do not join the lead opinion.
I. Article II, Section 34
{¶ 46} Article II, Section 34 states that “[l]aws may be passed fixing and
regulating the hours of labor, establishing a minimum wage, and providing for the
comfort, health, safety and general welfare of all employes; and no other provision
of the constitution shall impair or limit this power.” (Emphasis added.) Because
of the “no other provision” clause, any law passed under the comfort, health, safety,
and welfare clause avoids any other limitation of the Ohio Constitution.
{¶ 47} The lead opinion reads Article II, Section 34 very broadly as
authorizing the General Assembly to pass laws for “the assistance, support, well-
being, and prosperity of Ohio’s working people,” lead opinion at ¶ 23. When this
expansive reading is paired with the “no other provision” clause, the danger is
evident: the section threatens to eviscerate every other constitutional protection. In
other words, if the state legislature can plausibly say that it is acting for the welfare
of some group of working Ohioans, none of the other constitutional protections
apply.
{¶ 48} Consider for a moment what that means. Article I, Section 4 of the
Ohio Constitution guarantees the right to bear arms. What if out of concern about
workplace shootings the General Assembly prohibits anyone who works in a multi-
employee workplace from owning a gun at all? Under the lead opinion’s broad
reading, Article I, Section 4 presents no obstacle to such a law. Or maybe the
General Assembly decides that pre-work prayer is good for employees. Under the
lead opinion’s approach, the prohibition on compulsory worship in Article I,
Section 7 would fall to the wayside. Or, perhaps, the state wants to seize an Ohio
company’s assets and distribute those assets to the employees for the sake of
increasing employee welfare. If that power was exercised through Section 34, the
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just-compensation requirement of Article I, Section 19 would not apply, because
paying compensation would impair the government action.
{¶ 49} In the aforementioned examples, the federal constitution would
likely provide protection for Ohio citizens despite the evisceration of the guarantees
of the Ohio Constitution. But consider other examples in which no federal
constitutional counterpart would apply. Even though the federal right to a jury trial
in a civil case has not been incorporated against the states, see Gasperini v. Ctr. for
Humanities, Inc., 518 U.S. 415, 432, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996),
Article I, Section 5 of the Ohio Constitution guarantees Ohio citizens that right.
But, under the lead opinion’s reading of Article II, Section 34, the state legislature
could abolish the right to a jury trial in cases involving a dispute over an
employment contract on the notion that an administrative dispute resolution system
would be better for workers. Article XV prohibits lotteries except to support
schools, but under the lead opinion’s broad reading, the legislature could get around
that provision by using lottery profits to benefit working Ohioans. Article VIII of
the Ohio Constitution places significant constraints on the ability of the state to
incur public debt, but under the lead opinion’s view none of the restrictions would
apply when it comes to borrowing to support Ohio workers.
{¶ 50} The list could go on and on. The point is that under the lead
opinion’s reading, the legislature is given carte blanche to disregard all other
constitutional safeguards anytime it can plausibly say that something promotes the
welfare of working Ohioans.
{¶ 51} Did the Ohio voters who ratified Article II, Section 34 back in 1912
really intend to work such a dramatic reshuffling of our constitutional scheme? Did
they mean to give the legislature such a broad constitutional trump card—a
mechanism by which it could enact laws that would override all other constitutional
protections?
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{¶ 52} I think not. If we take a careful look at the text, context, broader
constitutional structure, and history of Article II, Section 34, it is clear that the
provision should not be read nearly as broadly as the lead opinion would have it.
And the mistake is not just the lead opinion’s today. As I will explain, today’s is
only the latest in an unfortunate series of opinions that continue to expand the reach
of Article II, Section 34 beyond its original meaning.
A. The text of Article II, Section 34, its context, and the structure of the
Constitution limit that provision to regulations of the workplace environment
{¶ 53} I have already touched upon one structural consideration—the
incompatibility of the lead opinion’s reading of Article II, Section 34 with the other
protections afforded by the Ohio Constitution. The Ohio Constitution follows the
model of the federal constitution: it sets out the structure and powers of the several
branches of state government, see Ohio Constitution, Articles II through IV, and it
protects certain basic rights of Ohio citizens from infringement by the government,
see Ohio Constitution, Article I. The Constitution acts as a check on majoritarian
impulses by placing certain rights outside of the legislative process. Thus, if the
legislature passes a law that infringes upon a right guaranteed by the constitution,
the constitutional right ordinarily prevails over the conflicting state law.
{¶ 54} Article II, Section 34, however, is in tension with this scheme. It
says that in certain instances, a legislative enactment will prevail notwithstanding
any other provision of the Ohio Constitution. This tension is a big indicator that
the framers of the provision understood that it would be read narrowly. To read it
otherwise is inconsistent with the very structure of the constitution itself. A system
that is premised upon the idea that certain rights are to be protected irrespective of
the temporary whims of the legislative branch cannot sit comfortably with a
provision that would allow the legislature to exempt large categories of legislative
enactments from all forms of constitutional restraint.
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{¶ 55} Keeping in mind the implausibility of the lead opinion’s reading
given our Constitution’s structure, let us turn next to the text of Article II, Section
34. Recall that the full text provides:
Laws may be passed fixing and regulating the hours of labor,
establishing a minimum wage, and providing for the comfort, health,
safety and general welfare of all employes; and no other provision
of the constitution shall impair or limit this power.
{¶ 56} Article II, Section 34 thus authorizes three types of legislative
enactments, those (1) fixing and regulating the hours of labor, (2) establishing a
minimum wage, and (3) providing for the comfort, health, safety, and general
welfare of all employees. Where, as here, specific items in a list are followed by a
more general category, a familiar rule of statutory construction, ejusdem generis,
says that the more general item is to be construed as of a similar character as the
specific items. We have explained:
So, where in a statute terms are first used which are confined to a
particular class of objects having well-known and definite features
and characteristics, and then afterwards a term is conjoined having
perhaps a broader signification, such latter term is, as indicative of
legislative intent, to be considered as embracing only things of a
similar character as those comprehended by the preceding limited
and confined terms.
State v. Aspell, 10 Ohio St. 2d 1, 4, 225 N.E.2d 226 (1967). The principle “parallels
common usage” in that “[w]hen the initial terms all belong to an obvious and
readily identifiable genus, one presumes that the speaker or writer has that category
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in mind for the entire passage.” Scalia & Garner, Reading Law: The Interpretation
of Legal Texts 199 (2012).
{¶ 57} Applying this principle of statutory construction suggests that the
general catchall category—providing for the comfort, health, safety, and general
welfare—was intended to authorize the legislature to enact legislation of the same
genus as the first two categories, regulating hours and minimum wages. Because
wage and hour regulations relate to the conditions of employment, the general-
welfare clause should be read in a similarly constrained manner.
{¶ 58} That makes sense. Part of the justification for the canon is that when
“the tagalong general term is given its broadest application, it renders the prior
enumeration superfluous.” Scalia & Garner, Reading Law at 199-200. This court
has long held that no part of an enactment “should be treated as superfluous unless
that is manifestly required, and the court should avoid that construction which
renders a provision meaningless or inoperative.” State ex rel. Myers v. Spencer
Twp. Rural School Dist. Bd. of Edn., 95 Ohio St. 367, 373, 116 N.E. 516 (1917).
But to read the comfort, health, safety, and general welfare provision in the broad
manner of the lead opinion is to render the first two categories superfluous. After
all, minimum-wage regulations and limitations on hours also promote employee
welfare. Thus, to give each term in the provision a distinct role, the comfort, health,
safety, and general-welfare clause must be read to exclude minimum-wage and
hour regulations.
{¶ 59} One might read the general-welfare clause to allow regulation of the
employer-employee relationship, but that would still make the hours and minimum-
wage components of the provision unnecessary. Wages and hours are features of
how employers and employees relate to one another. To give the minimum-wage
and hours provisions an independent role in the provision, the comfort, health,
safety, and general-welfare clause must be limited to laws governing the workplace
environment.
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{¶ 60} A similar point can be made about other parts of the constitutional
scheme. Article II, Section 35, which was also approved at the 1912 constitutional
convention, authorizes the legislature to create a workers’ compensation scheme.
Without question, a workers’-compensation scheme affects employee welfare in
some sense. Hence, if one reads the welfare provision of Section 34 as broadly as
the lead opinion does—as encompassing anything related to worker welfare—then
Section 35 would be totally unnecessary.
{¶ 61} The same goes for Article II, Section 33, which allows the General
Assembly to pass laws that protect “mechanics, artisans, laborers, sub-contractors
and material men” by placing a lien on projects that they had a hand in building.
That provision also protects worker welfare by helping to ensure payment for labor.
{¶ 62} The records of the proceedings at the 1912 convention show that the
delegates sought to avoid unnecessary duplication of constitutional provisions. For
instance, Article II, Section 37 of the Ohio Constitution, places an 8-hours-per-day
and 48-hours-per-week cap on work done by “workmen engaged on any public
work.” In discussing the proposal, Mr. Halfhill raised the worry that the Section
34 proposal, which had been adopted the day before, was being unnecessarily
duplicated by the Section 37 proposal. 2 Proceedings and Debates of the
Constitutional Convention of the State of Ohio 1340 (1912). Mr. Tetlow, in
response, explained that the Section 37 proposal was not duplicative, because it
specified the hours of work, rather than merely empowering the legislature to set
limits. Id. at 1341.
{¶ 63} No similar objection was raised in the debate on the Section 35
workers’-compensation proposal, which occurred almost directly after debate over
the Section 37 proposal concluded, or the Section 33 lien proposal, which occurred
a couple of days later. Id. at 1346, 1412. Thus there is good reason to think that
the delegates at the 1912 convention understood Sections, 33, 34, and 35 in a
nonoverlapping way. Again, the only plausible reading that accomplishes this is to
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construe Section 34’s comfort, health, safety, and general-welfare clause as limited
to workplace-environment laws.
B. The historical backdrop to Article II, Section 34 suggests that its reach was
limited to the workplace environment
{¶ 64} Consideration of the text of Article II, Section 34, its context, and
the structure of the Constitution indicates that the provision is not as broad as the
lead opinion assumes and instead should be limited to laws regulating the
workplace environment. But if there are any remaining doubts, the transcripts of
the debates at the constitutional convention, legislation passed by the General
Assembly directly after the amendment, and court cases discussing Article II,
Section 34 in the first several years after its enactment bolster that conclusion.
{¶ 65} Article II, Section 34 was adopted for submission to the voters at
Ohio’s 1912 constitutional convention. The historical record shows that it was
aimed at a very specific set of problems. In the late 1800s and early 1900s, courts
routinely struck down laws that regulated the hours of work on substantive-due-
process and freedom-of-contract grounds. Courts also limited the duties of
employers to provide safe and healthful work environments. And the
constitutionality of minimum-wage laws was in doubt. See 2 Proceedings and
Debates of the Constitutional Convention of the State of Ohio 1331 (1912). Article
II, Section 34 was adopted to ensure that the General Assembly had the power to
pass legislation on these topics. Id. at 1335.
{¶ 66} The most famous case to which Article II, Section 34 was responding
is the United States Supreme Court case, Lochner v. New York, 198 U.S. 45, 25
S. Ct. 539, 49 L. Ed. 937 (1905). There, the Court held that a law regulating hours
in bakeries was unconstitutional, because it was outside the state’s police power
and thus improperly infringed on the right of employers and employees to contract
with one another. Id. at 57-58, 64. Similar conclusions had been reached in Ohio
courts. For instance, in Cleveland v. Clements Bros. Constr. Co., the Ohio Supreme
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Court struck down a statute limiting the hours of workers in certain public-works
contracts, because it violated the freedom to contract and was not sufficiently
justified by considerations of public welfare to count as a legitimate exercise of the
state’s police power. 67 Ohio St. 197, 65 N.E. 885 (1902), paragraphs one and two
of the syllabus.
{¶ 67} At the same time, courts were also limiting the liability of employers
for industrial accidents. For instance, in Cincinnati, Hamilton & Dayton Ry. Co. v.
Frye, the Ohio Supreme Court held that an employer need not guarantee a safe work
environment for employees—ordinary care was enough. 80 Ohio St. 289, 299, 88
N.E. 642 (1909). As Justice Wanamaker explained a few years after the 1912
convention, the 1909 decision in Frye, which limited liability of employers, was
“ ’had in mind’ by the constitutional convention when they proposed and adopted
Section 34 as to safety.” Am. Woodenware Mfg. Co. v. Schorling, 96 Ohio St. 305,
344-345, 117 N.E. 366 (1917) (Wanamaker, J., dissenting).The convention
transcripts also show that workplace conditions were on the mind of the delegates.
One delegate, Mr. Dwyer, voiced a concern to provide “employes fair living wages,
good sanitary surroundings during hours of labor, protection as far as possible
against danger, [and] a fair working day” so as to “[m]ake his life as pleasant for
him as you can consistent with his employment.” 2 Proceedings and Debates of
the Constitutional Convention of the State of Ohio 1332-1333 (1912). Another, Mr.
Lampson, noted that “one of the greatest evils in the industrial situation in this
country today is what is known as sweatshop work.” Id. at 1332. The worry
expressed at the convention was that cases like the “bake-shop case in New York,”
i.e., Lochner, were overturning state laws aimed at worker protection. Id. at 1335.
And the goal of the proposal that would become Article II, Section 34, was to clarify
that the state had the power to pass such laws. Id. But there is no indication that
the delegates understood the provision to authorize anything more than legislation
relating to wages, hours, and the workplace environment.
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{¶ 68} In 1913, the year after the constitutional convention, the General
Assembly passed the Industrial Commission Act of 1913, which put into effect the
new laws that Article II, Section 34 ensured it could pass. Am.S.B. No. 137, 105
Ohio Laws 95 (“Industrial Commission Act”). These laws provide further evidence
that the scope of Section 34’s comfort, health, safety, and general-welfare clause
was originally understood to be limited to workplace-environment issues.
{¶ 69} The most telling data point is that whenever the Industrial
Commission Act speaks of worker “welfare” or “safety,” it is always in conjunction
with the “place of employment.” See Industrial Commission Act at Sections 15-
17, 20, 21. The specific duties imposed by the act also show a concern solely with
the workplace environment. Section 15 of the act imposes a duty on employers to
“furnish a place of employment which shall be safe for the employes therein, and
for frequenters thereof,” the latter defined as nontrespassers who may go or be in
the place of employment, id. at Section 13(5) (defining “frequenter”). Explicitly
mentioned is a duty to use safety devices and safeguards and safe methods and
processes. Id. at Section 15. In several provisions, the act also imposes a more
general duty to “do every other thing reasonably necessary to protect the life, health,
safety and welfare of such employes and frequenters.” Id. at Sections 15, 17;
accord Section 16. And Section 20 allows the commission to inspect the place of
employment in order to assess the “health, safety, and welfare of the employes
therein.” In short, the act is concerned with protecting employees and frequenters
from what we might colloquially call workplace hazards. Nothing in the act reaches
outside the workplace environment to serve worker welfare in a more general sense.
{¶ 70} Cases interpreting Article II, Section 34 shortly after its adoption
also paint a consistent picture showing that the comfort, health, safety, and general-
welfare clause was understood only to allow regulation of the workplace
environment. For instance, in 1916, in the case of Pittsburgh, Cincinnati, Chicago
& St. Louis Ry. Co. v. Kinney, the court described Article II, Section 34 as
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representing a “broad humanitarian policy of the state to safeguard the life, limb,
health, and safety of its people employed in the industrial world.” 95 Ohio St. 64,
70, 115 N.E. 505 (1916).
{¶ 71} In two other cases, Justice Wanamaker explained the relevance of
Section 34. Patten v. Aluminum Castings Co., 105 Ohio St. 1, 50-55, 136 N.E. 426
(1922) (Wanamaker, J., dissenting from original opinion); Toledo Cooker Co. v.
Sniegowski, 105 Ohio St. 161, 176, 136 N.E. 904 (1922) (Wanamaker, J.
dissenting). In Patten, Justice Wanamaker described the evils that Ohio’s new
employment-related constitutional provisions aimed to ameliorate. Patten at 50.
Those included “[a]n appalling number of industrial accidents, resulting in the
death of thousands and the disability, partial or complete, of a still larger number
of working men, working women, and working children.” Id.
{¶ 72} In Toledo Cooker, he explained that the comfort, health, safety, and
general-welfare clause was a direct response to the Ohio Supreme Court’s decision
in Frye, 80 Ohio St. 289, 88 N.E. 642. Toledo Cooker at 176-177. As noted above,
in Frye the court limited the legal duty of an employer to that of ordinary care—the
court explicitly rejected the view that the employer had a duty to ensure that the
place of employment was safe. Frye at 299. As Justice Wanamaker described it:
“There is little wonder that the working men of Ohio demanded something better,
something higher and more humane for their protection in the workshops and
factories. Hence Section 34 of the Constitution and the legislation of 1913 [i.e., the
Industrial Commission Act of 1913] followed.” Toledo Cooker at 177. It is telling
that the comfort, health, safety, and general-welfare clause was a direct response to
Frye, a case dealing with liability for injuries within the workplace environment.
{¶ 73} In sum, the historical evidence paints a uniform picture. The
comfort, health, safety, and general-welfare clause was originally understood as
ensuring that the General Assembly had the authority to protect workers in their
place of work. There is absolutely no evidence that it reached any further than this,
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and because of the “no other provision” clause, common sense dictates that we
presume its reach was limited in this way absent contrary evidence. The delegates
to the 1912 convention and the voters who enacted the amendment should not be
presumed to have created the potential for constitutional suicide by employment
regulation.
C. Over the past few decades, this court has expanded the scope of the Section 34
powers
{¶ 74} Prior to 1967, this court’s decisions invoking Article II, Section 34,
all related to workplace safety and protection, minimum-wage laws, and hours
regulations. See Akron & Barberton Belt RR. Co. v. Pub. Util. Comm., 148 Ohio
St. 282, 286, 74 N.E.2d 256 (1947) (railroad-safety laws); Strain v. Southerton, 148
Ohio St. 153, 156, 74 N.E.2d 69 (1947) (minimum wage); State v. Kidd, 167 Ohio
St. 521, 527, 150 N.E.2d 413 (1958) (law limiting labor on Sundays); State ex rel.
Strain v. Houston, 138 Ohio St. 203, 207, 34 N.E.2d 219 (1941) (regulating the
hours of local firefighters).
{¶ 75} Then in 1967, in what can charitably be described as an under-
reasoned opinion, this court held that a state law transferring the assets of local
firefighter pension funds to a state fund was authorized by the Section 34 powers.
State ex rel. Police & Firemen’s Pension Fund Bd. of Trustees v. Police Relief &
Pension Fund of Martins Ferry Bd. of Trustees, 12 Ohio St. 2d 105, 107, 233 N.E.2d
135 (1967). The floodgates opened. In 1989, over vigorous dissent, this court held
that a statute requiring public employers to engage in binding arbitration with their
employees was authorized by the “general welfare” portion of Article II, Section
34. Rocky River v. State Emp. Relations Bd., 43 Ohio St. 3d 1, 13, 539 N.E.2d 103
(1989). In 1999, this court suggested in passing that a law increasing the workload
of university professors could be passed under Article II, Section 34, thereby
turning a constitutional provision aimed at protecting workers on its head. Am.
Assn. of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio
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St.3d 55, 62, 717 N.E.2d 286 (1999). And in 2009, again over vigorous dissent,
this court held that a state law prohibiting municipalities from imposing residency
requirements on their workers was an exercise of the Section 34 powers. Lima v.
State, 122 Ohio St. 3d 155, 2009-Ohio-2597, 909 N.E.2d 616, ¶ 16.
D. R.C. 9.75 cannot be passed under Article II, Section 34
{¶ 76} While some of our case law has already expanded the Section 34
powers beyond the provision’s original meaning, those cases can at least be
categorized as all dealing with matters within the employer-employee relationship.
The lead opinion, today, goes a step further and concludes that a law that does not
govern the employer-employee relationship at all, but merely indirectly affects
employee welfare, is a Section 34 law.
{¶ 77} In continuing to expand the scope of Section 34 in ways never
countenanced by the people of 1912, this court is well on its way to transforming a
coherent constitutional scheme into a confusing and unstable muddle. Instead of
taking a further step down this misguided path, we should at least stop and find that
R.C. 9.75 cannot be passed under the Section 34 powers because it does not govern
even the employer-employee relationship, much less the workplace environment.
That conclusion could be reached without having to revisit any of our prior
holdings. A far better result, though, would be for this court to do a course
correction and return our case law to the original meaning of Article II, Section 34.
Such a result would restore the balance among our constitutional provisions
envisioned by their framers and ensure that Section 34 cannot improperly be used
as a vehicle to strip Ohioans of the other rights guaranteed to them.
II. Home Rule
{¶ 78} The fact that R.C. 9.75 cannot be enacted under Article II, Section
34 does not mean that it cannot be enacted at all. As this court has noted, the
legislature has authority to enact any law that is not prohibited by the Ohio or
United States Constitutions. Toledo v. State, 154 Ohio St. 3d 41, 2018-Ohio-2358,
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110 N.E.3d 1257, ¶ 17. Here, Cleveland argues that R.C. 9.75 conflicts with the
Ohio Constitution’s Home Rule Amendment. Not so.
{¶ 79} The Home Rule Amendment reads: “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.” Ohio Constitution, Article XVIII, Section 3.
Thus, a state statute will displace a local ordinance when (1) the ordinance is in
conflict with the state statute, (2) the ordinance is an exercise of the police power,
rather than a power of local self-government, and (3) the state statute is a general
law. Mendenhall v. Akron, 117 Ohio St. 3d 33, 2008-Ohio-270, 881 N.E.2d 255,
¶ 17. Only the second and third conditions are at issue here.
A. The Fannie Lewis Law is an Exercise of the Police Power
{¶ 80} The first question is whether the Fannie Lewis Law is an exercise of
a power of local self-government or an exercise of the police power. The distinction
is usually cashed out in terms of whether the ordinance relates solely to the
government and administration of the internal affairs of the municipality or instead
aims to protect the public health, safety or morals, or the general welfare. In re
Complaint of Reynoldsburg, 134 Ohio St. 3d 29, 2012-Ohio-5270, 979 N.E.2d
1229, ¶ 25; Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St. 3d 96, 2008-
Ohio-4605, 896 N.E.2d 967, ¶ 35.
{¶ 81} Paradigmatic of the powers of local self-government are laws that
control how a local government will organize itself and make decisions, for
instance, by settling on a method for electing municipal officers, see Fitzgerald v.
Cleveland, 88 Ohio St. 338, 347, 103 N.E. 512 (1913). In contrast, our cases show
that when an ordinance aims at controlling the behavior of third parties in service
of public health, safety, or welfare, it is an exercise of the police power. For
instance, in Clyde, this court held that a local ordinance prohibiting the carrying of
concealed handguns in city parks was an exercise of the police power. Clyde at ¶ 1.
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In Reynoldsburg, this court held that a city ordinance giving the city’s public-
service director the right to order utilities to remove or rearrange certain utility
facilities solely at the utility’s expense was an exercise of the police power.
Reynoldsburg at ¶ 26, 37. In Marich v. Bob Bennett Constr. Co., this court held
that an ordinance limiting the weight of vehicles on city streets was an exercise of
the police power. 116 Ohio St. 3d 553, 2008-Ohio-92, 880 N.E.2d 906, ¶ 15. And
in Ohio Assn. of Private Detective Agencies v. N. Olmsted, this court held that local
licensing requirements for private investigators were an exercise of the police
power. 65 Ohio St. 3d 242, 602 N.E.2d 1147 (1992), syllabus. The theme that
unites all of these cases is that when a local ordinance regulates the behavior of
third parties in service of public health, safety, or welfare, it is an exercise of the
police power and not merely a power of local self-government.
{¶ 82} What does this mean for the Fannie Lewis Law? The Fannie Lewis
Law requires city contracts to include certain terms that impose a penalty on public-
works contractors that do not employ a sufficient number of Cleveland residents.
Cleveland Codified Ordinances Chapter 188. Cleveland argues that because the
ordinance directly governs only the city’s power to contract, it is not an exercise of
the police power. And Cleveland notes that this court has held that at least some
exercises of the power to contract fall squarely within the sphere of local self-
government. See, e.g., Dies Elec. Co. v. Akron, 62 Ohio St. 2d 322, 327, 405 N.E.2d
1026 (1980).
{¶ 83} But it’s not true that any time a city exercises its power to contract it
is merely exercising a power of local self-government. As the United States
Supreme Court has recognized in a different legal context, contracts are not always
just a way to participate in a market; sometimes they function as market regulations.
South-Central Timber Dev., Inc. v. Wunnicke, 467 U.S. 82, 97, 104 S. Ct. 2237, 81
L. Ed. 2d 71 (1984). Thus, in Wunnicke, the Court held that a statutorily mandated
contract term requiring that state timber be processed in Alaska was functionally a
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regulation of the timber industry. Id. at 97-99. And it did not matter that the
regulatory goal was accomplished through contract, instead of by statute or
regulation. Id. at 97.
{¶ 84} The Fannie Lewis Law is functionally a regulation of the behavior
of contractors in their dealings with their employees and is not merely an innocent
exercise of Cleveland’s power to spend money as it sees fit. To see why, consider
a city ordinance that imposes a fine on contractors that do not employ a sufficient
number of local residents. That would unquestionably be an exercise of the police
power; it imposes a penalty in order to control the behavior of third parties. But
that is precisely what the Fannie Lewis Law does, albeit by way of contract rather
than through an ordinance. To pretend that the Fannie Lewis Law is not an exercise
of the police power because it achieves its result through contract rather than direct
regulation is a blinkered kind of formalism that ignores reality. Powerful economic
actors like Cleveland can effect regulatory ends through the power of contract. That
is what Cleveland attempts to do with the Fannie Lewis Law.
B. R.C. 9.75 is a General Law
{¶ 85} In suggesting that R.C. 9.75 is not a general law, the dissent relies
on this court’s four-part Canton test. See Canton v. State, 95 Ohio St. 3d 149, 2002-
Ohio-2005, 766 N.E.2d 963, ¶ 21. I have argued before that the test is unworkable
and that we should abandon it and return to the original understanding and the plain
language of the Home Rule Amendment. Dayton v. State, 151 Ohio St. 3d 168,
2017-Ohio-6909, 87 N.E.3d 176, ¶ 83-98 (DeWine, J., dissenting). As originally
understood, “general law” was nowhere near the confusing morass that this court’s
decisions have turned it into. As one delegate at the 1912 convention noted,
“[c]ourts have thoroughly well settled the construction of that term.” 2 Proceedings
and Debates of the Constitutional Convention of the State of Ohio 1471 (1912).
And indeed they had. For instance, in Cincinnati St. Ry. Co. v. Horstman, 72 Ohio
St. 93, 73 N.E. 1075 (1905), this court defined a general law as:
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“A law framed in general terms, restricted to no locality, and
operating equally upon all of a group of objects, which, having
regard to the purposes of the legislation, are distinguished by
characteristics sufficiently marked and important to make them a
class by themselves, is not a special or local law, but a general law.”
Id. at 109, quoting State ex rel. Van Riper v. Parsons, 40 N.J.L. 123 (1878),
paragraph one of the syllabus. Black’s Law Dictionary contained the same
definition at the time of the enactment of the Home Rule Amendment, Black’s Law
Dictionary 710 (2d Ed.1910).
{¶ 86} Is R.C. 9.75 a general law under this standard? On its face, it applies
only to “public authorities.” R.C. 9.75(B)(1); R.C. 9.75(B)(2). The statute defines
“public authority” to include the state, counties, townships, municipal corporations,
or any other political subdivision of the state; any public agency, authority,
commission, instrumentality, or special district of the state, a county, township,
municipal corporation, or political subdivision of the state; and any officers or
agents of such entities. R.C. 9.75(A)(6)(a) through (d). Because R.C. 9.75 applies
only to public authorities, the dissent concludes that it is not a general law because
it does not “prescribe a rule of conduct on Ohio’s citizens generally,” dissenting
opinion at ¶ 99. But that is not how a general law would have been understood in
1912. To count as a general law, the law need not apply to citizens generally but
rather to a group of objects that are “distinguished by characteristics sufficiently
marked and important to make them a class by themselves,” Horstman at 109,
quoting Parsons at paragraph one of the syllabus.
{¶ 87} Many laws apply only to a subset of the population. For instance,
laws regulating electricity producers apply only to electricity producers and not to
ice-cream makers. But if a law aims to limit emissions, electricity producers are
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“distinguished by characteristics sufficiently marked and important to make them
a class by themselves,” id. This is because electricity producers are prominent and
substantial contributors to emissions. As the Horstman court explained,
“[c]lassification is often proper and sometimes necessary in legislation, in order to
define the objects on which a general law is to take effect, and in order to effectuate
the purposes of the legislation.” Horstman, at 108 (quoting Gentsch v. State, 71
Ohio St. 151, 72 N.E. 900 (1904), paragraph one of the syllabus). In such cases, a
law that applies to a particular class is still a general law.
{¶ 88} Are public authorities (as distinct from private contracting parties)
distinguished by characteristics that are “sufficiently marked and important” to
make them a relevant class for purposes of preventing discrimination in
employment based on residency? The answer is yes. Public authorities have a
history of favoring local residents and an incentive to do so. And it is sensible for
a legislature to target a class when that class has a history of behavior that the state
seeks to curtail. In contrast, it would be rather idiosyncratic for a private contractor
to care about where its employees reside. The General Assembly need not legislate
to solve a problem that doesn’t exist in order for its solution to a problem that does
exist to count as a general law.
{¶ 89} Because R.C. 9.75 is a general law, it prevails over Cleveland’s
Fannie Lewis Law.
III. Conclusion
{¶ 90} In sum, R.C. 9.75 cannot be passed under the powers granted by
Article II, Section 34, because it does not regulate hours, set a minimum wage, or
regulate the workplace environment in order to secure the comfort, health, safety,
or general welfare of employees. But R.C. 9.75 is still a lawful exercise of the
General Assembly’s legislative power that does not violate the Ohio Constitution’s
Home Rule Amendment. It is a general law that preempts conflicting local
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exercises of the police power, like the Fannie Lewis Law. I therefore concur in the
majority’s judgment reversing the court of appeals.
STEWART, J., concurs in Part I of the foregoing opinion.
__________________
O’CONNOR, C.J., dissenting.
{¶ 91} Because R.C. 9.75 is not a valid exercise of the legislature’s
authority pursuant to Article II, Section 34 of the Ohio Constitution and because
the statute violates a municipality’s home-rule power under Article XVIII, Section
3 of the Ohio Constitution, I dissent.
R.C. 9.75 does not fall under the General Assembly’s authority in Article II,
Section 34 of the Ohio Constitution
{¶ 92} The lead opinion concludes that the General Assembly is authorized
under Article II, Section 34 “to pass laws regulating public-improvement contracts
when necessary to provide for the comfort and general welfare of Ohio employees.”
Lead opinion at ¶ 33. And, it concludes, R.C. 9.75 “provides for the comfort and
general welfare” of construction-trade workers “[b]y providing an equal
opportunity for Ohioans to compete for work on public-improvement projects both
inside and outside of the political subdivisions in which they reside.” Lead opinion
at ¶ 35.
{¶ 93} But R.C. 9.75 is not about wages, hours, or workplace conditions
and hazards. These were the issues in the minds of members of the constitutional
convention during which Article II, Section 34 was proposed. See lead opinion at
¶ 19; see also Lima v. State, 122 Ohio St. 3d 155, 2009-Ohio-2597, 909 N.E.2d 616,
¶ 30-31 (Lanzinger, J., dissenting); Rocky River v. State Emp. Relations Bd., 43
Ohio St. 3d 1, 14-15, 539 N.E.2d 103 (1989). And these were the types of issues
present in our prior decisions to uphold laws under Article II, Section 34. Am. Assn.
of Univ. Professors, Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St. 3d
55, 717 N.E.2d 286 (1999) (upholding a state law regulating faculty labor hours at
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public universities); Rocky River at 20 (upholding a state law mandating a
bargaining procedure in disputes between public employers and employees because
it “serves the purpose of promoting orderly public sector labor relations”); State ex
rel. Bd. of Trustees of Police & Firemen’s Pension Fund v. Bd. of Trustees of Police
Relief & Pension Fund of Martins Ferry, 12 Ohio St. 2d 105, 233 N.E.2d 135 (1967)
(upholding a law creating a state-controlled disability-and-pension fund for police
and fire personnel).
{¶ 94} It is true that in Lima, we upheld a state law that prohibited a political
subdivision from imposing a residency requirement on its employees. We
concluded that the law was validly enacted pursuant to Article II, Section 34
because the law provided “for the comfort and general welfare of public employees
by ensuring that [employees] will be able to choose the municipality in which they
reside.” Id. at ¶ 14.
{¶ 95} R.C. 9.75 does not exclude or regulate workers. It potentially affects
the employer’s bottom line and nothing else. R.C. 9.75 prohibits a public authority
engaging in a public-improvement project from including contract terms that
require a contractor to employ a certain number or percentage of laborers who
reside within the public authority. Thus, R.C. 9.75 seeks to affect only how a public
authority does business with its contractors.
{¶ 96} The local-ordinance residency requirements that were declared
invalid in Lima acted as a complete bar to city employment unless one resided
within the municipality. Lima, 122 Ohio St. 3d 155, 2009-Ohio-2597, 909 N.E.2d
616, at ¶ 2, 4. They were local laws that directly affected workers’ choice of
residency. The city of Cleveland’s Fannie Lewis Law does no such thing. The
Fannie Lewis Law is applicable only to contractors who are working on public
contracts in excess of $100,000. Cleveland Codified Ordinances 188.01(b). An
affected contractor can hire whomever it wishes. Resident and nonresident workers
are eligible to work 100 percent of the labor hours. If the contractor chooses not to
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use resident-worker labor for at least 20 percent of the labor hours required, the
contractor does not lose the contract—it just forfeits a portion of the contract price
as a penalty. See Cleveland Codified Ordinances 188.02, 188.05(b) (a contractor
that has not been otherwise excused from compliance shall pay one-eighth of one
percent, or .125%, of the total amount of the contract for each percentage of the 20
percent it does not meet). The Fannie Lewis Law says nothing about workers
shouldering any burden, being paid less, or being subjected to different hours or
working conditions. And it does not restrict workers’ choice of residency.
{¶ 97} The lead opinion concludes that R.C. 9.75 protects all construction-
trade workers from residency restrictions. The rationale seems to be that any
preference based on a worker’s residency is a detriment to every worker who
resides anywhere. But that rationale overlooks the fact that R.C. 9.75 works to the
detriment of the workers who benefit from the Fannie Lewis Law. As applied to
the Fannie Lewis Law or similar ordinances, R.C. 9.75 protects only the contractors
that are seeking public-improvement-project contracts and do not wish to employ
local resident workers for at least 20 percent of the construction hours performed
under the contract. It is undeniable that R.C. 9.75 would potentially affect the
demographics of the workers on all public projects in the urban areas of this state.
Interpreting R.C. 9.75 as the lead opinion instructs only restricts municipalities
from taking proactive measures to provide employment for residents of our urban
areas that have historically experienced underemployment. This cannot be the
result the legislature envisioned.
R.C. 9.75 is not a general law
{¶ 98} If not authorized under Article II, Section 34 of the Ohio
Constitution, R.C. 9.75 cannot stand if it violates a municipality’s home-rule
authority. Article XVIII, Section 3 of the Ohio Constitution provides that
municipalities may “exercise all powers of local self-government and * * * adopt
and enforce within their limits such local police, sanitary and other similar
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regulations, as are not in conflict with general laws.” Even if we assume for our
analysis that the local ordinances here are “local police, sanitary and other similar
regulations,” I would still hold that R.C. 9.75 is not a general law, so it cannot take
precedence over the local ordinances.
{¶ 99} A state statute controls if “(1) the ordinance is an exercise of the
police power, rather than of local self-government, (2) the statute is a general law,
and (3) the ordinance is in conflict with the statute.” (Emphasis added.)
Mendenhall v. Akron, 117 Ohio St. 3d 33, 2008-Ohio-270, 881 N.E.2d 255, ¶ 17. A
general law is one that (1) is part of a statewide and comprehensive legislative
enactment, (2) applies to all parts of the state alike and operates uniformly
throughout the state, (3) sets forth police, sanitary, or similar regulations, rather
than purporting only to grant or limit legislative power of a municipal corporation
to set forth police, sanitary, or similar regulations, and (4) prescribes a rule of
conduct upon citizens generally. Canton v. State, 95 Ohio St. 3d 149, 2002-Ohio-
2005, 766 N.E.2d 963, ¶ 21.
{¶ 100} At a minimum, R.C. 9.75 fails to meet the third and fourth
requirements of a general law. As stated in the bill, the purpose of the statute is “to
prohibit a public authority from requiring a contractor to employ a certain
percentage of individuals from the geographic area of the public authority for the
construction or professional design of a public improvement.” 2016 H.B. No. 180.
It is clear from this legislative statement that the law exists to limit a municipality’s
authority to establish certain contract terms with contractors. There is no “police,
sanitary, or similar” purpose served by R.C. 9.75. And the law does not prescribe
a rule of conduct on Ohio’s citizens generally. Instead, it seeks to prescribe the
specific terms of a contract between a public authority and a contractor that it does
business with for certain public-improvement projects. In this way, R.C. 9.75
applies to limit a municipality’s legislative body, not citizens generally. See Canton
at ¶ 34-36.
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January Term, 2019
{¶ 101} Because R.C. 9.75 is not a general law, it cannot preempt the Fannie
Lewis Law. I would hold that R.C. 9.75 is an invalid limitation on a municipality’s
home-rule authority under Article XVIII, Section 3 of the Ohio Constitution. For
the foregoing reasons, I dissent and would affirm the Eighth District Court of
Appeals.
DONNELLY and STEWART, JJ., concur in the foregoing opinion.
__________________
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; and
Garry E. Hunter, urging affirmance for amicus curiae Ohio Municipal League.
Scott & Winters Law Firm, L.L.C., and Joseph F. Scott, 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., urging reversal for
amicus curiae AIA Ohio.
Ice Miller, L.L.P., and Patrick A. Devine, urging reversal for amici curiae
Ohio Contractors Association, Associated General Contractors of Ohio, National
Federation of Independent Business, and Ohio Chamber of Commerce.
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Fadel & Beyer, L.L.C., Timothy R. Fadel, and Jonah D. Grabelsky, urging
reversal for amicus curiae International Union of Operating Engineers, Local 18.
Weston Hurd, L.L.P., Frederick T. Bills, and David T. Patterson, urging
reversal for amicus curiae American Council of Engineering Companies of Ohio.
___________________
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