Payphone Ass'n v. City of Cleveland ( 2001 )

On this appeal from the decision of Judge Bridget M. McCafferty, I agree with the majority that the City's exclusive grant of a franchise to Ameritech alone requires reversal and that the case should be remanded for each section of Cleveland Codified Ordinances ("C.C.O.") 670(B) to be separately evaluated for adherence to the limits of the City's home-rule authority. I write separately, however, because it is a logical inconsistency to decline to address the constitutionality of R.C. 4939 while at the same time applying it to the City's detriment in ruling that C.C.O. 670(B) conflicts with R.C. 4939, a "general law" containing an anti-discrimination provision.

The City's counterclaim in this declaratory judgment action asserted that C.C.O. 670(B) was enacted under its home-rule powers and, regardless of whether its provisions conflicted with those of R.C. 4939, that statute was created in violation of the one subject provision of the Ohio Constitution and should be invalidated in toto.

Courts find it unnecessary to address constitutional issues where the party raising that issue can prevail on other grounds, making constitutional decisions unnecessary because any assumed constitutional infirmity does not prejudice the complaining party.² The majority, however, chooses to ignore the City's constitutional issue of whether R.C. 4939 is valid, despite knowledge that its application results in a partially injurious result for the City. In this case, the constitutional issues should be decided before the statute is actually applied.

Ohio has adopted the "one subject rule," through Article II, Section 15(D) of its constitution, in order to prevent state legislators from combining unrelated issues in one bill because such a practice prevents legislators from fully voting their position on each major issue and promotes pork-barrel politics. It also prevents groups of minority blocs from voting for a bill in order to secure passage of one tiny part of the bill they support — a practice known as "logrolling."

"With these principles in mind, [The Ohio Supreme Court has] adopted the position that "the one-subject provision is not directed at plurality but at disunity in subject matter."³ Thus, "the mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics."⁴ However "when there is an absence of common purpose or relationship between specific topics in an act and when there are no discernible practical, rational or legitimate reasons for combining the provisions in one act, there is a strong suggestion that the provisions were combined for tactical reasons, i.e., logrolling. Inasmuch as this was the very evil the one-subject rule was designed to prevent, an act which contains such unrelated provisions must necessarily be held to be invalid in order to effectuate the purpose of the rule."⁵"⁶

R.C. 4939, consisting of four sections, was enacted in 1999 as part of the General Assembly's Biennial Operating Appropriations legislation.⁷ It deals with the restrictions and licensing requirements political subdivisions may place upon any utility or cable provider within that subdivision. That portion of the act, which also repealed R.C. 4931.01, .03, .20, .23, and .24, does not have any relationship with the State budget, the allotment of state funds or the organization of state agencies, which are the subjects of the super-majority of the 855-page bill. R.C. 4939 can be fairly characterized as a special law, an unconnected ride improperly included in the bill, and must be invalidated.

"[W]hen a court strikes down a statute as unconstitutional, and the offending statute replaced an existing law that had been repealed in the same bill that enacted the offending statute, the repeal is also invalid unless it clearly appears that the General Assembly meant the repeal to have effect even if the offending statute had never been passed."⁸ The precursor statutes to R.C. 4939 are found in R.C. 4931, and the judge should have evaluated C.C.O. 670(B) as a valid use of the city's constitutional police power against the backdrop of the relevant sections of Chapter 4931 which were replaced by Chapter 4939.⁹

Expressly stated in R.C. 4939.02(E), but notably absent from Chapter 4931 before its alteration, is the preemption of any municipal home-rule powers due to a legislatively professed reservation of outdoor pay telephone regulation as a "state-wide concern."¹⁰ R.C. Chapter 4931 had explicitly delegated regulation of such issues to municipalities in requiring "consent" before a utility could construct fixtures or lines within a city's limits.

The Ohio Attorney General attempts to gloss over the fatal flaws of the legislation by suggesting that the "common purpose" element of the single subject analysis was satisfied because R.C. 4939.03 "removed a funding source" from local governments by prohibiting a fee, tax or charge for a utility or cable provider's use of a public way and, therefore, "changed the amount of funding that would be available to local governments * * *." As the appropriations bills provides for a certain level of funding for local governments during the biennium and, therefore, adds funding to the local governments, the Attorney General boldly asserts that this too is a "change in funding" and, Q.E.D., the "common purpose." Logrolling, however semantically disguised, is still "the very evil the one-subject rule was designed to prevent."¹¹

In this case, the only necessary inquiry would be to determine if each section of C.C.O. 670(B), as enacted or enforced, oversteps the bounds of the City's full home-rule powers.

² State ex rel. Hayburn v. Kiefer (1993), 68 Ohio St.3d 132,624 N.E.2d 699; State ex rel Crabtree v. Bureau of Worker's Comp. (1994), 71 Ohio St.3d 504, 644 N.E.2d 361.

³ State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d 141, 146,464 N.E.2d 153, 158. See, also, State ex rel. Hinkle v. Franklin Cty. Bd. of Elections (1991), 62 Ohio St.3d 145, 148, 580 N.E.2d 767,770.

⁴ Hoover v. Bd. of Franklin Cty. Commrs. (1985), 19 Ohio St.3d 1, 6,482 N.E.2d 575, 580; State ex rel. Ohio AFL-CIO v. Voinovich (1994),69 Ohio St.3d 225, 229, 631 N.E.2d 582, 586.

⁵ Dix, 11 Ohio St. 3d at 145, 11 Ohio B. Rep. at 440,464 N.E.2d at 157. See, also, Beagle v. Walden (1997), 78 Ohio St.3d 59, 62,676 N.E.2d 506, 507; Hinkle, supra, 62 Ohio St. 3d at 148-149,580 N.E.2d at 770; Hoover, supra, 19 Ohio St. 3d at 6, 482 N.E.2d at 580.

⁶ State ex rel. Academy of Trial Lawyers v. Sheward (1999),86 Ohio St.3d 451, 496-497, 715 N.E.2d 1062, 1100.

⁷ 147 v Am. Sub. H.B. 283.

⁸ State v. Sullivan (2001), 90 Ohio St.3d 502,509, 739 N.E.2d 788,794; See, also, State v. McClay (July 19, 2001), Cuyahoga App. No. 78432, unreported.

⁹ R.C. 4931.20 states: Any company owning and operating a telephone exchange or doing a telegraph business, in any municipal corporation in this state, may construct and maintain underground wires, pipes, conduits, and other fixtures for containing, protecting, and operating such wires, in the streets and public ways of such municipal corporation, when the consent of such municipal corporation has been obtained. Any ordinance of any village purporting to grant the right or privilege to any telephone or telegraph company to construct and maintain underground wires and pipes, conduits, and other underground fixtures for containing, protecting, and operating such wires, in the streets and public ways of such village, when such grant has been accepted, or when money has been expended in good faith on account thereof, is valid and effective. R.C. 4931.23 states, Consent of a municipal corporation to the construction and maintenance of underground wires, pipes, conduits, and other fixtures, by a company owning and operating a telephone exchange or doing a telegraph business, shall be given by the legislative authority of such municipal corporation.

¹⁰ "The construction, repair, placement, maintenance, or operation of lines, poles, pipes, conduits, ducts, equipment, and related appurtenances and facilities by a utility service provider or cable operator is declared to be a matter of statewide concern."

¹¹ State ex rel. Dix v. Celeste (1984), 11 Ohio St.3d at 146,464 N.E.2d at 158.