Cincinnati v. State

[Cite as Cincinnati v. State, 2012-Ohio-3162.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CITY OF CINCINNATI, : APPEAL NO. C-110680
TRIAL NO. A-1005917
Plaintiff-Appellant, :
O P I N I O N.
vs. :
STATE OF OHIO, :
Defendant, :
and :
CINCINNATI ORGANIZED AND :
DEDICATED EMPLOYEES,
:
Defendant-Appellee.
:
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 13, 2012
John Curp, City Solicitor, and Richard Ganulin, Assistant City Solicitor, for Plaintiff-
Appellant,
Minnillo & Jenkins Co., LPA, Christian A. Jenkins, Amy Gullifer, and Niroshan
Wijesooriya, for Defendant-Appellee.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Plaintiff-appellant city of Cincinnati appeals from a decision of the
Hamilton County Court of Common Pleas, granting summary judgment in favor of
defendant-appellee Cincinnati Organized and Dedicated Employees (“CODE”). The
city had filed a declaratory judgment action asking the court to declare a city
ordinance that required city employees to live in the state of Ohio to be lawful. We
affirm the trial court’s judgment.
{¶2} The record shows that the city is a home-rule chartered municipal
corporation under the Ohio Constitution. CODE is the exclusive representative for
purposes of collective bargaining for approximately 850 city employees.
{¶3} In 2006, the Ohio legislature enacted R.C. 9.481, which generally
prohibited political subdivisions from imposing residency requirements on
employees. Subsequently, in Lima v. State, 122 Ohio St.3d 155 , 2009-Ohio-2597,
909 N.E.2d 616, the Ohio Supreme Court held that R.C. 9.481 was validly enacted
under the general welfare clause of the Ohio Constitution and that it, therefore,
prevailed over conflicting residency laws of political subdivisions. Id. at ¶ 1; Ohio
Patrolmen’s Benevolent Assn. v. Perrysburg, 6th Dist. No. WD-10-033, 2011-Ohio-
644, ¶ 21; Missig v. C/O Cleveland Civil Serv. Comm., 8th Dist. No. 91699, 2010-
Ohio-2595, ¶ 2.
{¶4} In 2010, the city amended Cincinnati Municipal Code 308-83(a) to
provide that “Except as otherwise provided herein, all employees appointed to
positions in the city service may only reside within the geographical boundaries of
the State of Ohio.” CODE filed a grievance contesting that requirement. An
arbitrator dismissed the grievance concluding that the issue of whether R.C. 9.481
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OHIO FIRST DISTRICT COURT OF APPEALS
permitted the city to require employees to reside in the state of Ohio was “a question
of external law and therefore beyond the authority of the Arbitrator to determine.”
{¶5} The city subsequently filed a complaint for a declaratory judgment
that R.C. 9.481 did not override Cincinnati Municipal Code 308-83(a) and did not
prevent the city from requiring that city employees reside in the state of Ohio. CODE
filed a counterclaim in which it asked the court to declare that Cincinnati Municipal
Code 308-83(a) was void and that CODE members had the right to reside any place
they desired, including outside of the state of Ohio.
{¶6} Both parties filed motions for summary judgment. After examining
the provisions of R.C. 9.481, the trial court found that employees of political
subdivisions “have the right to reside any place they desire without geographical
limitation[.]” It granted CODE’s motion for summary judgment and denied the
city’s. This appeal followed.
{¶7} In its sole assignment of error, the city contends that the trial court
erred in granting summary judgment in favor of CODE. It argues that the trial court
failed to properly apply the rules of statutory construction in finding that Cincinnati
Municipal Code 308.83(a) conflicted with R.C. 9.481. This assignment of error is not
well taken.
{¶8} The main goal of statutory construction is to determine and give effect
to the legislature’s intent. Basic Distrib. Corp. v. Ohio Dept. of Taxation, 94 Ohio
St.3d 287, 291, 762 N.E.2d 979 (2002); Bank of Am., NA v. Omega Design/Build
Group, LLC, 1st Dist. No. C-100018, 2011-Ohio-1650, ¶ 27. Courts must look first to
the language of the statute itself to determine the legislative intent. Zumwalde v.
Madeira and Indian Hill Joint Fire Dist., 128 Ohio St.3d 492, 2011-Ohio-1603, 946
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OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 748, ¶ 22-23; In re Burchfield, 51 Ohio App.3d 148, 152, 555 N.E.2d 325 (4th
Dist.1988).
{¶9} Courts must also evaluate the statute as a whole. Boley v. Goodyear
Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20-21;
Melampy v. Evans Landscaping, Inc., 12th Dist. No. CA2011-03-045, 2012-Ohio-
675, ¶ 18. They have a duty to give effect to all of the words used in the statute and
may not delete words or insert words that are not used. Bernardini v. Bd. of Edn.,
58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979); In re Estate of Myers, 1st Dist. No. C-
940828, 1995 Ohio App. Lexis 5790 (Dec. 29, 1995), *4; Burchfield at 152.
{¶10} R.C. 9.481 is entitled “Political subdivisions generally prohibited from
imposing residency requirements on employees.” Subsection (A) is a definitional
section. R.C. 9.481(B)(1) states that “[e]xcept as otherwise provided in division
(B)(2) of this section, no political subdivision shall require any of its employees, as a
condition of employment, to reside in any specific area of the state.” Subsection
(B)(2)(b) provides an exception that permits localities to require certain employees
to live no farther away than adjacent counties to “ensure adequate response times by
certain employees of political subdivisions to emergencies or disasters while
ensuring that those employees generally are free to reside throughout the state[.]”
Finally, subsection (C) states that “[e]xcept as provided in division (B)(2) of this
section, employees of political subdivisions of this state have the right to reside any
place they desire.”
{¶11} When viewed in its entirety, the structure of the statute is clear. It is
divided into three parts. Subsection (A) provides the definitions of certain terms.
Subsection (B) outlines the exceptions to the general rule set forth in subsection (C),
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OHIO FIRST DISTRICT COURT OF APPEALS
which is that employees of political subdivisions “have the right to reside any place
they desire.”
{¶12} The trial court correctly stated that “subsection (C) is a statement of
law.” It found that the language in subsections (B)(1) and (B)(2) referring to “the
state” was not “sufficient to overcome the clear and unambiguous language
contained in subsection (C) that allows public subdivision employees, who do not fall
[within] the scope of subsection (B)(2)(b) to reside wherever they want without
limitation.”
{¶13} The court noted that subsection (B)(1) is also a statement of law that
prohibits a political subdivision from preventing employees from residing in any
specific area of the state except as provided in subsection (B)(2)(b). It went on to
state:
Because subsection (B)(1) only stops a political subdivision from
preventing an employee residing in any specific area of the state,
there is an implication that a political subdivision could prevent an
employee from living outside the state. However, this is not the same
as expressly stating that the political subdivision has the right to
prevent its employees from living out of state. And the language of
subsection (B)(1) is not sufficient to trump the clear and
unambiguous language found in subsection (C).
{¶14} Using that logic, the trial court went on to conclude that “public
subdivision employees, pursuant to R.C. § 9.481(C), have the right to reside any place
they desire without geographical limitation except for those certain employees who
fall within the exception of R.C. § 9.481(B)(2)(b).” We agree with the trial court’s
reasoning.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} If the legislature had intended to limit the broad right of public
employees to live any place they desire as granted in subsection (C), it could have
done so by including the phrase “in this state” as it did in subsection (B). But it did
not, and we will not rewrite the statute by adding words the legislature did not use.
See Seeley v. Expert, Inc., 26 Ohio St.2d 61, 71, 269 N.E.2d 121 (1971); Myers, 1995
Ohio App. Lexis 5790, at *4.
{¶16} The city’s interpretation of the statute would render subsection (C)
superfluous, while the trial court’s result gives each section meaning. We must
presume that the legislature, in enacting statutes, intended the entire statute to be
effective. R.C. 1.47(B). “To determine legislative intent, ‘significance and effect
should be accorded to every word, phrase, sentence and part thereof, if possible.’ ”
State ex rel. Nation Bldg. Technical Academy v. Dept. of Edn., 123 Ohio St.3d 35,
2009-Ohio-4084, 913 N.E.2d 977, ¶ 18, quoting State v. Wilson, 77 Ohio St.3d 334,
336-337, 673 N.E.2d 1347 (1997).
{¶17} Consequently, we hold that Cincinnati Municipal Code 308-83(a) is in
conflict with R.C. 9.481, and it is, therefore, void. We overrule the city’s assignment
of error and affirm the trial court’s decision granting summary judgment in favor of
CODE.
Judgment affirmed.
S UNDERMANN , P.J., and H ENDON , J., concur.
Please note:
The court has recorded its own entry this date.
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