Youngstown City Sch. Dist. Bd. of Educ. v. State

[Cite as Youngstown Cty. School Dist. v. State, 2018-Ohio-2532.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Youngstown City School District :
Board of Education et al.,
:
Plaintiffs-Appellants,
: No. 17AP-775
v. (C.P.C. No. 15CV-7311)
:
State of Ohio et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on June 28, 2018
On brief: Roth, Blair, Roberts, Strasfeld & Lodge L.P.A.,
James E. Roberts, David S. Barbee, Christine Z. Papa, and
Edward L. Ostrowski, for appellant Youngstown City School
District Board of Education; R. Sean Grayson, for appellant
AFSCME Ohio Council 8 AFL-CIO; Green, Haines, Sgambati,
Co., L.P.A., Ira J. Mirkin, and Charles W. Oldfield, for
appellants Youngstown Education Association, Ohio
Education Association, and Jane Haggerty. Argued:
Charles W. Oldfield.
On brief: Bricker & Eckler LLP, Maria J. Armstrong,
Nicole M. Donovsky, and Bryan Smeenk, Amicus Curiae Ohio
School Boards Association, Buckeye Association of School
Administrators, and the Ohio Federation of Teachers, in
support of Appellants.
On brief: Organ Cole LLP, Douglas R. Cole, and Carrie M.
Lymanstall, for appellees. Argued: Carrie M. Lymanstall.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
No. 17AP-775 2
{¶ 1} Plaintiffs-appellants, Youngstown City School District Board of Education,
AFSCME Ohio Council 8, AFL-CIO, Youngstown Education Association, Ohio Education
Association, and Jane Haggerty (collectively, "appellants"), appeal from a judgment of the
Franklin County Court of Common Pleas denying their claim for declaratory judgment and
motion for permanent injunction. For the reasons that follow, we affirm.
I. Facts and Procedural History
{¶ 2} Appellants challenge the constitutionality of legislation introduced as H.B.
No. 70 and ultimately adopted as Am.Sub.H.B. No. 70 by the Ohio General Assembly in
2015. H.B. No. 70 was introduced in the Ohio House of Representatives on February 18,
2015, and read for the first time. As introduced, H.B. No. 70 proposed to enact new sections
within R.C. Chapter 3302 authorizing school districts and community schools to create
community learning centers. On February 25, 2015, H.B. No. 70 was read a second time in
the House and referred to the House Education Committee. On May 6, 2015, H.B. No. 70
was reported out of committee with a recommendation that it be passed. On May 19, 2015,
H.B. No. 70 was read a third time in the House and passed by a vote of 92 to 6. On May 20,
2015, H.B. No. 70 was introduced in the Ohio Senate and read for the first time. The bill
was read a second time in the Senate on May 27, 2015, and referred to the Senate Education
Committee.
{¶ 3} In the Senate Education Committee, H.B. No. 70 was amended twice on the
morning of June 24, 2015. One amendment expanded the definition of facilities that were
eligible to become community learning centers. The second amendment modified the
structure of academic distress commissions under existing law by repealing and replacing
existing R.C. 3302.10, enacting a new R.C. 3302.11, and by making changes to other
sections in R.C. Chapters 3302 and 3310. The committee adopted the second amendment
by a vote of 7 to 5. The committee then voted 8 to 4 to pass the legislation, referred to as
Sub.H.B. No. 70.
{¶ 4} On the afternoon of June 24, 2015, the Senate took up Sub.H.B. No. 70 as
reported by the Senate Education Committee. Amendments were adopted on the Senate
floor modifying the residency requirement for members of an academic distress
commission appointed by the state superintendent of education and indicating that a chief
executive officer for a school district appointed by an academic distress commission would
No. 17AP-775 3
serve at the pleasure of the commission; thereafter, the bill was referred to as Am.Sub.H.B.
No. 70. Following those amendments, the Senate passed Am.Sub.H.B. No. 70 by a vote of
18 to 14. The same day, Am.Sub.H.B. No. 70 was taken up for consideration in the House.
The House voted to concur in the Senate amendments to the bill by a vote of 55 to 40. The
governor signed Am.Sub.H.B. No. 70 on July 16, 2015, and the legislation became effective
October 15, 2015.
{¶ 5} On August 21, 2015, appellants filed a complaint for declaratory judgment
and permanent injunction in the Franklin County Court of Common Pleas, alleging the
Youngstown City School District was subject to the academic distress commission
provisions contained in Am.Sub.H.B. No. 70 and challenging the constitutionality of the
law. Appellants also filed a motion for preliminary injunction and requested an evidentiary
hearing. After conducting an evidentiary hearing on September 29 and 30, 2015, the trial
court issued an order denying appellants' motion for preliminary injunction on October 13,
2015. Appellants appealed the denial of the preliminary injunction to this court. In a
decision rendered February 16, 2017, this court dismissed the appeal sua sponte for lack of
a final appealable order and remanded the case to the trial court. Youngstown City School
Dist. Bd. of Edn. v. State of Ohio, 10th Dist. No. 15AP-941, 2017-Ohio-555.
{¶ 6} On remand, the parties agreed to submit the issues for final determination by
the trial court based on the evidence submitted at the hearing conducted on September 29
and 30, 2015, and on briefs to be filed with the court. On October 11, 2017, the trial court
issued a decision denying appellants' claims for permanent injunction and declaratory
judgment and finding defendants-appellees, State of Ohio, Dr. Richard A. Ross,
Superintendent of Public Instruction, and Ohio Department of Education, were entitled to
judgment in their favor as a matter of law.
II. Assignments of Error
{¶ 7} Appellants appeal and assign the following four assignments of error for our
review:
[I.] The trial court erred in finding that Plaintiffs-Appellants
did not succeed on the merits of their claims.
[II.] The trial court erred in finding that Plaintiffs-Appellants
failed to show irreparable injury.
No. 17AP-775 4
[III.] The trial court erred in finding that Plaintiffs-Appellants
failed to show harm to third parties if an injunction is not
granted.
[IV.] The trial court erred in finding that the public interest
will not be served by an injunction.
III. Discussion
A. Standard of Review
{¶ 8} Appellants sought a declaratory judgment that Am.Sub.H.B. No. 70 violated
the Ohio Constitution and the United States Constitution. A claim for declaratory judgment
is a civil action that provides a remedy in addition to other available legal and equitable
remedies. State ex rel. Gelesh v. State Med. Bd., 172 Ohio App.3d 365, 2007-Ohio-3328,
¶ 7 (10th Dist.). Under Ohio's declaratory judgment action statute, "any person whose
rights, status, or other legal relations are affected by a * * * statute * * * may have
determined any question of construction or validity arising under the * * * statute * * * and
obtain a declaration of rights, status, or legal relations under it." R.C. 2721.03. The three
essential prerequisites for a declaratory judgment claim are: (1) a real controversy between
the parties, (2) the controversy is justiciable, and (3) speedy relief is necessary to preserve
the rights of the parties. Gelesh at ¶ 7. A trial court's determination of the justiciability of
a declaratory judgment claim is reviewed for abuse of discretion; once a matter is found to
be appropriate for declaratory judgment, the trial court's holdings regarding questions of
law are reviewed de novo. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 13.
{¶ 9} Appellants also sought a permanent injunction preventing enforcement of
Am.Sub.H.B. No. 70. "A permanent injunction is an equitable remedy that will be granted
only where the act sought to be enjoined will cause immediate and irreparable injury to the
complaining party and there is no adequate remedy at law." Franklin Cty. Dist. Bd. of
Health v. Paxson, 152 Ohio App.3d 193, 2003-Ohio-1331, ¶ 25 (10th Dist.). "A party seeking
a permanent injunction 'must demonstrate by clear and convincing evidence that they are
entitled to relief under applicable statutory law, that an injunction is necessary to prevent
irreparable harm, and that no adequate remedy at law exists.' " McDowell v. Gahanna,
10th Dist. No. 08AP-1041, 2009-Ohio-6768, ¶ 9, quoting Acacia on the Green
Condominium Assn., Inc. v. Gottlieb, 8th Dist. No. 92145, 2009-Ohio-4878, ¶ 18. See also
Vineyard Christian Fellowship of Columbus v. Anderson, 10th Dist. No. 15AP-151, 2015-
No. 17AP-775 5
Ohio-5083, ¶ 11 (holding that party seeking a permanent injunction must show that (1) it
prevails on the merits, (2) it will suffer irreparable injury if the injunction is not granted,
(3) no third parties will be unjustifiably harmed if the injunction is granted, and (4) the
public interest will be served by the injunction). Clear and convincing evidence is more
than a preponderance of the evidence but less than evidence beyond a reasonable doubt; it
consists of evidence "which will produce in the mind of the trier of facts a firm belief or
conviction as to the facts sought to be established." Cross v. Ledford, 161 Ohio St. 469(1954), paragraph three of the syllabus. The decision to grant or deny an injunction lies
within the discretion of the trial court and generally will not be reversed absent an abuse of
discretion. Paxson at ¶ 24. An abuse of discretion occurs when a decision is unreasonable,
arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
B. Appellants' Failure to Establish Success on the Merits
{¶ 10} In their first assignment of error, appellants assert the trial court erred by
concluding they did not succeed on the merits of their claims. Appellants asserted three
claims, and we will consider each of them in turn. Each of appellants' claims challenge the
constitutionality of Am.Sub.H.B. No. 70. "When reviewing the constitutionality of statutes,
we are guided by the presumption that enactments of the General Assembly are
constitutional." Libertarian Party of Ohio v. Husted, 10th Dist. No. 16AP-496, 2017-Ohio-
7737, ¶ 31, citing State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, ¶ 10. The party
challenging the constitutionality of a statute must demonstrate beyond a reasonable doubt
that the statute and the constitutional provision are incompatible. Husted at ¶ 31. The
constitutionality of a statute is a question of law, which we review de novo on appeal.
Fowler v. Ohio Dept. of Public Safety, 10th Dist. No. 16AP-867, 2017-Ohio-7038, ¶ 7.
1. Claim that legislation violates Article II, Section 15(C) of the Ohio
Constitution—the Three Reading Rule
{¶ 11} Appellants argue the General Assembly violated the Three Reading Rule
contained in Article II, Section 15(C) in enacting Am.Sub.H.B. No. 70. Appellants claim the
amendments relating to academic distress commissions vitally altered the substance of the
legislation and the General Assembly violated the Three Reading Rule because
Am.Sub.H.B. No. 70 was not considered three times in each chamber and there was no vote
to suspend the Three Reading Rule. Appellants argue that in addition to considering the
No. 17AP-775 6
text of the legislation and its amendments, the court must consider the underlying purposes
of the Three Reading Rule and assert that the process by which Am.Sub.H.B. No. 70 was
amended and adopted did not satisfy those purposes. Appellees claim the Three Reading
Rule was not violated, arguing the amendments did not vitally alter the legislation because
both the introduced and final versions of the legislation shared the common purpose of
restructuring and improving underperforming school districts. Appellees further claim
that adopting appellants' position would result in excessive judicial encroachment on the
legislative process.
{¶ 12} Article II, Section 15(C) of the Ohio Constitution governs passage of
legislation by the General Assembly and provides "[e]very bill shall be considered by each
house on three different days, unless two-thirds of the members elected to the house in
which it is pending suspend this requirement, and every individual consideration of a bill
or action suspending the requirement shall be recorded in the journal of the respective
house." The Supreme Court of Ohio has held that if it can be proven that a bill was not
considered three times in each legislative chamber, the bill is void and without legal effect
pursuant to Article II, Section 15(C). Hoover v. Bd. of Cty. Commrs., 19 Ohio St.3d 1, 3
(1985). The court has further held that when a bill is amended during the legislative
process, "amendments which do not vitally alter the substance of a bill do not trigger a
requirement for three considerations anew of such an amended bill." Id. at 5.
{¶ 13} The plaintiff in Hoover asserted the challenged legislation had been
introduced and adopted by the Senate as a measure pertaining to criminal non-support,
but had been amended in the House Judiciary Committee through a "substitute bill,
completely different in content" from the original measure, dealing with financing,
acquisition, and construction of hospitals and healthcare facilities. (Emphasis sic.) Hoover
at 5. The Supreme Court held that the plaintiff's claim survived a motion for summary
judgment because it alleged that the version of the bill passed by the House was "entirely
different in title and subject matter" from the version passed by the Senate, and that the
revised version had not been considered by the Senate on three different days. Id. In a
concurring opinion, Justice Douglas addressed the purpose of the Three Reading Rule:
[T]he purpose of the "three reading" rule is to prevent hasty
action and to lessen the danger of ill-advised amendment at the
last moment. The rule provides time for more publicity and
No. 17AP-775 7
greater discussion and affords each legislator an opportunity to
study the proposed legislation, communicate with his or her
constituents, note the comments of the press and become
sensitive to public opinion. Adherence to this rule will help to
ensure well-reasoned legislation.
Id. at 8.
{¶ 14} The Supreme Court subsequently expounded on the Three Reading Rule in a
later decision, State ex rel. AFL-CIO v. Voinovich, 69 Ohio St.3d 225 (1994). Commenting
on Hoover, the court noted that the bill in Hoover was "wholly changed" and that mere
deference to legislative journals to enforce compliance with the Three Reading Rule was
not enough. Rather, "a more demanding constitutional test is one that examines whether
a bill was 'vitally altered,' departing entirely from a consistent theme. (Emphasis added.)
Id. at 233. The court held "a legislative Act is valid if the requisite entries are made in the
legislative journals and there is no indication that the subject matter of the original bill was
'vitally altered' such that there is no longer a common purpose or relationship between the
original bill and the bill as amended." (Emphasis sic.) Id. The court concluded in
Voinovich that the challenged legislation had been heavily amended but not vitally altered.
It began as a measure to make appropriations for the Ohio Bureau of Workers'
Compensation and was then amended by a House committee, on the floor of the House, by
a Senate committee, on the floor of the Senate, and by a conference committee. The final
version of the legislation abolished the existing Industrial Commission of Ohio, created a
new version of the Industrial Commission, substantially amended workers' compensation
law, and made appropriations for the Bureau of Workers' Compensation and the Industrial
Commission. Id. The court determined that despite the extensive amendments, the final
version of the bill "retain[ed] its common purpose to modify the workers' compensation
laws." Id at 234.
{¶ 15} The Voinovich court further stated that the difference between a heavily
amended bill and a vitally altered bill is one of degree. It noted that Article II, Section 15(A)
of the Ohio Constitution "reserves to each house the right to freely alter, amend or reject
bills introduced by either [house]. This court would be setting dangerous and impracticable
precedent if it undertook a duty to police any such difference of degree."1 Id. at 233. The
1 In relevant part, Article II, Section 15(A) of the Ohio Constitution provides that "[b]ills may originate in either
house, but may be altered, amended, or rejected in the other."
No. 17AP-775 8
court suggested instead that it was necessary to consider the underlying purpose of the
Three Reading Rule and pointed to the purpose language from Justice Douglas's
concurrence in Hoover. Id. However, the court expressly declined to extend the Hoover
analysis to the legislation before it. Id. at 234. The court noted both chambers of the
General Assembly had deliberated on the bill and various amendments for several months
and the Governor stimulated debate regarding the bill by announcing he would veto any
appropriations bill that did not substantially reform the workers' compensation system. Id.
The court held that declaring the bill unconstitutional under the Three Reading Rule
"would place this court in the position of directly policing every detail of the legislative
amendment process when bills are passed containing a consistent theme." (Emphasis
added.) Id. See also Comtech Sys., Inc. v. Limbach, 59 Ohio St.3d 96, 100 (1991) (holding
that adding a new object of taxation to an appropriations bill did not vitally alter the
substance of the bill because "[r]aising and spending revenue are at the heart of an
appropriations bill").
{¶ 16} This court recently applied the Three Reading Rule in a challenge to
legislation eliminating certain mayor's courts. Village of Linndale v. State, 10th Dist. No.
14AP-21, 2014-Ohio-4024. As introduced, the challenged legislation eliminated one full-
time judge from the Youngstown Municipal Court. Id. at ¶ 2. That version of the bill was
read three times and adopted by the House and read twice in the Senate before being
referred to the Senate Judiciary Committee on December 11, 2012. In committee, the
legislation was amended to eliminate certain mayor's courts and clarify the effect of state
and municipal prohibitions on texting while driving. On December 13, 2012, the Senate
passed the amended version of the legislation and the following day the House concurred
in the Senate amendments to the bill. Id. On appeal from a judgment granting a motion to
dismiss, this court held that the amendment to the legislation eliminating certain mayor's
courts did not vitally alter the original bill. We concluded that the amended version of the
legislation retained a common purpose with the original version, holding that "while the
amended bill contained two topics, they shared a common relationship of regulating the
organization and structure of Ohio's statutory courts." Id. at ¶ 22. Further, the court noted
that when the full Senate considered the amended version of the legislation, no member
sought to strip the amendment or otherwise alter or further amend the legislation.
No. 17AP-775 9
Likewise, when the full House considered and voted to concur in the Senate amendments,
no member sought to remove those amendments or otherwise amend the legislation. Id.
at ¶ 23.
{¶ 17} In the present case, each chamber of the General Assembly considered the
legislation on three different occasions, but considered the final, amended version of the
legislation only once. The question before us, therefore, is whether the subject matter of
the legislation was vitally altered by the amendments, departing entirely from a consistent
theme, such that there was no longer a common purpose or relationship between the
original legislation and the amended legislation. See Voinovich at 233.
{¶ 18} As introduced, H.B. No. 70 was a relatively brief bill comprising of 10 pages
that proposed to enact three new sections under R.C. Chapter 3302 authorizing school
districts and community schools to create community learning centers. As finally adopted
by both chambers of the General Assembly, Am.Sub.H.B. No. 70 was comprised of 77 pages
and amended or enacted new sections of law in R.C. Chapters 133, 3302, 3310, 3311, and
3314. The amendments to the legislation primarily involved revising the law related to
academic distress commissions. Appellants cite to the increased length and complexity of
Am.Sub.H.B. No. 70 in arguing that the amendments vitally altered the original legislation.
However, in determining whether legislation was vitally altered by amendments, we must
focus on the content of the amendments and ascertain whether there remained "a common
purpose or relationship between the original bill and the bill as amended." Voinovich at
233.
{¶ 19} H.B. No. 70, as introduced, authorized the creation of community learning
centers in underperforming school buildings. If the community learning center process was
initiated, the board of education was required to create a school action team composed of
12 members, including 7 parents or guardians of students enrolled in the school and
members of the community, and 5 teaching or non-teaching employees assigned to the
school. R.C. 3302.18(A). The school action team would conduct a performance audit of the
school and propose an improvement plan. R.C. 3302.17(E) and (F).
{¶ 20} As amended, Am.Sub.H.B. No. 70 retained the community learning center
provisions, and added provisions revising the law related to academic distress
commissions. It provided that an academic distress commission was to be established for
No. 17AP-775 10
any school district that received an overall failing grade for three consecutive years or had
been subject to an academic distress commission under prior law for at least four years.
R.C. 3302.10(A). The academic distress commission would be comprised of three members
appointed by the state superintendent of education, one teacher employed by the district to
be appointed by the president of the board of education, and one member appointed by the
mayor of the appropriate municipality. R.C. 3302.10(B)(1). The academic distress
commission would then appoint a chief executive officer, whose duties would include
creating a plan to improve the district's academic performance, subject to the review and
approval of the commission. R.C. 3302.10(E).
{¶ 21} In this case, the original legislation and the amended final version not only
involved the same general subject area of education, but the specific subject of improving
underperforming schools. Notably, the community learning center provisions contained in
the original legislation were retained in the final version, with some changes through the
amendment process. Unlike the scenario in Hoover, Am.Sub.H.B. No. 70 was not
completely different in content from H.B. No. 70 as introduced. Rather, the original
version, which provided one method of improving underperforming schools, was amended
to include another method of improving underperforming schools. Thus, the legislation at
issue in this case is more analogous to the heavily amended bill in Voinovich or to the
legislation considered by this court in Village of Linndale, each of which did not violate the
Three Reading Rule.
{¶ 22} Appellants also argue the process by which Am.Sub.H.B. No. 70 was
amended and adopted violated the purposes of the Three Reading Rule, asserting the
amendments were drafted in secret to deny the opportunity for debate and pushed through
both chambers of the General Assembly in a single day. Appellants claim this distinguishes
the present case from Voinovich, where the court found the amendments had been debated
for several months and were subject to multiple hearings.
{¶ 23} In the present case, it is clear that amendment and adoption of Am.Sub.H.B.
No. 70 occurred quickly. Amendments to the legislation were adopted in the Senate
Education Committee on the morning of June 24, 2015, and the full Senate considered the
amended bill later that afternoon. The House voted to concur in the Senate amendments
later that same day. Thus, this case does not involve the same sort of lengthy, deliberative
No. 17AP-775 11
process described by the Voinovich court, and a more deliberative process may be
preferred. However, we are mindful of the Voinovich court's warning that it would be
inappropriate to "polic[e] every detail of the legislative amendment process when bills are
passed containing a consistent theme," its declining to extend the Hoover analysis, and
examination as to whether the legislation departed entirely from a consistent theme.
Voinovich at 234. We conclude that H.B. No. 70 as introduced and Am.Sub.H.B. No. 70 as
adopted shared a common purpose of providing measures to improve underperforming
schools. Moreover, although the amendment and adoption process occurred quickly in this
case, the record reflects that legislators who opposed the amendments were able to present
their arguments to their colleagues.2
{¶ 24} As to the merits of this claim, based on the record before us, appellants have
failed to prove beyond a reasonable doubt that the General Assembly violated Article II,
Section 15(C) of the Ohio Constitution in enacting Am.Sub.H.B. No. 70.
2 Appellants introduced transcripts of the Senate and House proceedings on Am.Sub.H.B. No. 70
demonstrating that opponents of the amendments spoke out against them and urged their colleagues to
oppose them. On the floor of the Senate, Senator Lehner, the chair of the education committee, argued in favor
of the legislation but acknowledged the amendments had been brought to her committee late and that some
committee members were concerned the amendments had not been properly vetted. Senator Sawyer argued
against the legislation, asserting that the amendments had not been adequately vetted and arguing that more
time was needed to build consensus on the appropriate reforms. Similarly, Senators Schiavoni, Thomas,
Tavares, Skindell, Yuko, and Brown argued extensively against the bill, asserting concerns that the
amendments had been drafted by a small group of people and had been introduced too quickly without
providing adequate time for review and consideration. Senator Brown moved to recommit the bill to the
education committee and that motion was defeated. Senator Schiavoni also offered two amendments to the
legislation on the floor of the Senate modifying the residency requirement for members of the academic
distress commission appointed by the state superintendent of education and indicating that a chief executive
officer for a school district appointed by an academic distress commission would serve at the pleasure of the
commission; these amendments were adopted without objection. Following the floor discussion and
amendment, the Senate passed Am.Sub.H.B. No. 70 by a vote of 18 to 14.
In the House, similar objections were expressed. One of the original sponsors of the legislation, Representative
Driehaus, argued against the amendments, citing, in part, the speed with which the legislation was amended
and urging her colleagues not to concur in the Senate amendments. Representatives Lepore-Hagan, O'Brien,
Gerberry, Ramos, Fedor, and Strahorn also expressed concerns about the content and complexity of the
Senate amendments and the speed with which they were adopted. After the floor discussion, the House voted
to concur in the Senate amendments to the bill by a vote of 55 to 40, whereas the House had passed the original
version of H.B. No. 70 by a vote of 92 to 6. This extensive record establishes that members of the Senate and
House were made aware of the speed with which the amendments had been adopted and the concerns arising
from that process. Thus, although the amendments proceeded quickly there was significant debate and
discussion before each chamber adopted the final version of Am.Sub.H.B. No. 70. Under these circumstances,
we cannot conclude that the underlying purpose of the Three Reading Rule was violated.
No. 17AP-775 12
2. Claim that legislation violates Article VI, Section 3 of the Ohio Constitution
relating to school boards
{¶ 25} Appellants further argue Am.Sub.H.B. No. 70 violates Article VI, Section 3 of
the Ohio Constitution, which provides, in relevant part, that "each school district embraced
wholly or in part within any city shall have the power by referendum vote to determine for
itself the number of members and the organization of the district board of education."
Appellants assert Am.Sub.H.B. No. 70 usurps all powers of elected school boards by
granting the chief executive officer appointed by an academic distress commission
complete operational, managerial, and instructional control over the school district,
thereby rendering meaningless the constitutional rights guaranteed under Article VI,
Section 3.
{¶ 26} The Supreme Court has held that the General Assembly has broad authority
over public schools. "Under Sections 1, 2, and 3 of Article VI of the Ohio Constitution, the
General Assembly is given exceedingly broad powers to provide a thorough and efficient
system of common schools by taxation, and for the organization, administration, and
control thereof." State ex rel. Core v. Green, 160 Ohio St. 175, 180 (1953). "It follows that
the General Assembly has the power to provide for the creation of school districts, for
changes and modifications thereof, and for the methods by which changes and
modifications may be accomplished, and, where it has provided methods by which changes
in school districts may be made, no citizen has a vested or contractual right to the
continuation of such methods, and if a particular method is abolished or changed by
legislative enactment there can be no basis for a claim that a contractual or vested right is
impaired." Id. See also State ex rel. Maxwell v. Wilson, 106 Ohio St. 224, 228 (1922) ("The
whole question of school organization and management has been by the constitution left in
the hands of the general assembly, with comparatively few constitutional restrictions.");
State ex rel. Maxwell v. Schneider, 103 Ohio St. 492, 497 (1921) ("Section 3, Article VI of
the Ohio Constitution, confers upon the legislature full power and authority over the
organization, administration and control of the public school system of the state.").
{¶ 27} The Supreme Court rejected a similar challenge pursuant to Article VI,
Section 3 to laws authorizing charter schools. State ex rel. Ohio Congress of Parents &
Teachers v. State Bd. of Edn., 111 Ohio St.3d 568, 2006-Ohio-5512, ¶ 42-47. The law
No. 17AP-775 13
provided that charter schools were public schools but were independent of any school
district. Id. at ¶ 7. The challengers argued the law usurped the right of local educational
self-determination by authorizing the creation of charter schools that were not governed by
locally elected school boards. Id. at ¶ 14. The Supreme Court rejected this argument, holding
that "Section 3, Article IV [sic] governs questions of size and organization, not the power
and authority, of city school boards." Id. at ¶ 47. The court further noted that boards of
education only have the powers that are conferred by statute. Id. The court held the
challengers failed to prove that by permitting charter schools to be independent of city
school boards the law usurped the powers of the city school districts, thereby rendering the
law unconstitutional. Id. Similarly, the Seventh District Court of Appeals rejected a
challenge to the School District Fiscal Emergency law, which authorized appointment of a
financial planning and supervision commission for a school declared to be in a state of fiscal
emergency. E. Liverpool Edn. Assn. v. E. Liverpool City School Dist. Bd. of Edn., 177 Ohio
App.3d 87, 2008-Ohio-3327, ¶ 34-42 (7th Dist.). Under the law, the commission had
authority to reduce the number of teachers in a school district, even if an applicable
collective bargaining agreement provided otherwise. Id. at ¶ 4. Finding that the
commission was appointed only to assume the school board's fiscal responsibilities while
the state of fiscal emergency existed, but that the elected school board retained all other
rights and duties, the court concluded the law did not violate Article VI, Section 3 by
usurping the authority of the elected school board. Id. at ¶ 39.
{¶ 28} Appellants argue Am.Sub.H.B. No. 70 is distinguishable from the laws
challenged in Congress of Parents & Teachers and E. Liverpool because it usurps all powers
of the elected school board. Pursuant to R.C. 3302.10(C)(1), a chief executive officer
appointed by an academic distress commission "shall exercise complete operational,
managerial, and instructional control of the district" and provides a non-exclusive list of
powers and duties the chief executive officer may exercise. Citing this provision, appellants
argue that the chief executive officer assumes all powers of the school board.
{¶ 29} Although the language of R.C. 3302.10(C)(1) grants broad authority to a chief
executive officer appointed by an academic distress commission, it does not appear to usurp
all powers of the elected school board. For example, pursuant to R.C. 5705.21, a school
board may, by a two-thirds vote of its members, adopt a resolution seeking to impose an
No. 17AP-775 14
additional tax levy, subject to approval by the electors of the district. Appellants argue that
because there is no language in R.C. 3302.10(C)(1) limiting a chief executive officer's
authority, it necessarily encompasses all of the school board's powers. However, the phrase
"operational, managerial, and instructional control" in R.C. 3302.10(C)(1) constitutes an
implicit limit on a chief executive officer's authority. Had the General Assembly intended
to give the chief executive officer authority to perform all of the school board's duties, it
could have written the statute to provide that the chief executive officer would exercise
complete control of the district, without including the limiting phrase "operational,
managerial, and instructional control."
{¶ 30} Thus, in this case, as in the E. Liverpool decision, as to the merits of this
claim, appellants have failed to prove beyond a reasonable doubt that Am.Sub.H.B. No. 70
violates Article VI, Section 3 of the Ohio Constitution.
3. Claim that legislation violates the Equal Protection Clauses of the Ohio
Constitution and the United States Constitution
{¶ 31} Appellants further claim Am.Sub.H.B. No. 70 violates the Equal Protection
Clause by denying the fundamental right to vote for members of the school board. This
court recently addressed the scope of the Equal Protection Clauses of the state and federal
constitutions:
Article I, Section 2 [of the Ohio Constitution] provides in
pertinent part: "All political power is inherent in the people.
Government is instituted for their equal protection and
benefit." The Fourteenth Amendment, Section 1 to the United
States Constitution provides in pertinent part that "[n]o State
shall * * * deny to any person within its jurisdiction the equal
protection of the laws."
"An equal protection analysis of any law centers upon the law's
classification of persons and whether the classification relates
to a legitimate government interest." Mole at ¶ 24, citing State
ex rel. Doersam v. Indus. Comm., 45 Ohio St.3d 115, 119-20
(1989). The federal guarantee of equal protection does not deny
the government the power to treat different classes of persons
in different ways, but rather denies the power to provide that
"different treatment be accorded to persons placed by a statute
in to different classes on the basis of criteria wholly unrelated
to the objective of that statute." (Quotations and citation
omitted.) Johnson v. Robison, 415 U.S. 361, 374 (1974). See
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439
No. 17AP-775 15
(1985) (stating that the Equal Protection Clause is "essentially
a direction that all persons similarly situated should be treated
alike").
Husted at ¶ 43-44. When a law infringes on a fundamental right, it is subject to strict
scrutiny; where no fundamental right is involved, we apply a rational-basis test. Arbino v.
Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, ¶ 64. Under the rational-basis
test, a statute will be upheld if it is rationally related to a legitimate government purpose.
Id. at ¶ 66.
{¶ 32} Appellants concede that voters can still cast ballots for elected school board
members, but argue these votes are meaningless because Am.Sub.H.B. No. 70 eliminates
the authority of the school board. In effect, appellants argue voters in a school district
where an academic distress commission is appointed would be denied equal protection of
the law because the school board members they vote into office have less authority than
school board members in other districts.
{¶ 33} The United States Supreme Court has held there is "no constitutional reason
why state or local officers of the nonlegislative character * * * may not be chosen by the
governor, by the legislature, or by some other appointive means rather than by an election."
Sailors v. Bd. of Edn. of Kent Cty., 387 U.S. 105, 108 (1967). Based on this holding, state
and federal courts in Ohio have held there is no fundamental right to elect an administrative
body, such as a school board. Mixon v. Ohio, 193 F.3d 389, 403 (6th Cir.1999); Spivey v.
Ohio, 999 F.Supp. 987, 995 (N.D.Ohio 1998); Shelby Assn. of Support Staff v. Shelby City
School Dist. Bd. of Edn., 5th Dist. No. 06CA86, 2008-Ohio-1388, ¶ 33; Barnesville Edn.
Assn. OEA/NEA v. Barnesville Exempted Village School Dist. Bd. of Edn., 7th Dist. No. 06
BE 32, 2007-Ohio-1109, ¶ 40-42. Accordingly, we apply rational-basis review to appellants'
equal protection claims.
{¶ 34} In Mixon, the United States Court of Appeals for the Sixth Circuit considered
a challenge to a law changing the composition and size of the Cleveland school board by
allowing the mayor to appoint a new school board, where the board had previously been
elected by residents of the school district. Mixon at 393. Applying rational-basis scrutiny,
the court noted the flexibility and potential benefits resulting from an appointed school
board and concluded the law was rationally related to the state's legitimate purpose of
improving the quality of public schools. Id. at 403-04. Similarly, in Barnesville, the
No. 17AP-775 16
Seventh District Court of Appeals rejected an equal protection challenge to the school
district fiscal emergency statute (the same law challenged in the E. Liverpool decision),
holding there was a rational relationship between the statute and the state's legitimate
interests in ensuring the proper education of children and the fiscal integrity of school
districts. Barnesville at ¶ 47-50. See also Shelby at ¶ 42-46 (concurring in reasoning of
Barnesville decision).
{¶ 35} As the Supreme Court of Ohio noted in Ohio Congress of Parents & Teachers,
the Ohio Constitution requires establishment of a system of common schools and the state
has an interest in ensuring that all children receive an adequate education that complies
with the Thorough and Efficient Clause contained in Article VI, Section 2 of the Ohio
Constitution. Ohio Congress of Parents & Teachers at ¶ 32. Pursuant to R.C. 3302.10(A),
as enacted through Am.Sub.H.B. No. 70, an academic distress commission may be
established for any school district that has received an overall failing grade for three
consecutive years or where an academic distress commission had been established under
prior law and had been in existence for at least four years. Thus, the changes authorized
under the law are limited to school districts that are consistently underperforming. Similar
to the law permitting mayoral appointment of certain school boards that was upheld in
Mixon, Am.Sub.H.B. No. 70 is rationally related to the state's legitimate interest in ensuring
a quality education system and improving the quality of underperforming public schools.
{¶ 36} Thus, based on the record in this case, appellants have failed to establish
beyond a reasonable doubt that Am.Sub.H.B. No. 70 violates the Equal Protection Clause
of the Ohio Constitution or the United States Constitution.
{¶ 37} Accordingly, we overrule appellants' first assignment of error.
{¶ 38} Having concluded that appellants' failed to demonstrate success on the
merits of their claims, their remaining assignments of error are likely rendered moot.
However, in the interest of justice, we will consider appellants' arguments.
C. Appellants' Failure to Show Irreparable Injury
{¶ 39} Appellants argue in their second assignment of error the trial court erred by
concluding they failed to show irreparable injury would occur if the injunction was not
granted. In support of this assignment of error, appellants cite various provisions of R.C.
3302.10(G) and (H), authorizing a chief executive officer appointed by an academic distress
No. 17AP-775 17
commission to reconstitute or close schools, replace school administrators, teachers, and
staff, reopen collective bargaining agreements, and contract with a non-profit or for-profit
entity to manage operations of the school. However, as appellees note, Am.Sub.H.B. No.
70 went into effect on October 15, 2015, and appellants have not demonstrated any
irreparable injury that has occurred during the intervening period. Under these
circumstances, we cannot conclude the trial court abused its discretion by concluding
appellants failed to show that immediate and irreparable harm would result if a permanent
injunction was not granted.
{¶ 40} Accordingly, we overrule appellants' second assignment of error.
D. Appellants' Failure to Show an Injunction Would Not Cause Harm to Third
Parties and Would Serve the Public Interest
{¶ 41} Appellants claim in their third assignment of error the trial court erred by
concluding they failed to establish that third parties would not be harmed by granting a
permanent injunction. In their fourth assignment of error, appellants assert the trial court
erred by concluding they failed to establish that granting an injunction would serve the
public interest. Because appellants raise similar arguments in support of their third and
fourth assignments of error, we will consider them together.
{¶ 42} Appellants argue third parties and the public have an interest in ensuring that
the protections of the Ohio Constitution are preserved and that laws are properly enacted,
as well as ensuring the right to vote is protected. Appellants further assert that third parties
would not be harmed by the grant of a permanent injunction because enjoining
Am.Sub.H.B. No. 70 would retain the academic distress commission that existed in
Youngstown under prior law.
{¶ 43} The trial court concluded appellants failed to prove that third parties would
not be harmed by granting an injunction, noting that if Am.Sub.H.B. 70 was enjoined, the
chief executive officer to be appointed by a newly constituted academic distress commission
would be prevented from creating an improvement plan for the school district. With respect
to appellants' public interest arguments, the trial court concluded that while the public has
interests in ensuring constitutional rights are preserved, the public also has an interest in
having effective public schools, and that the latter interest was served by Am.Sub.H.B. No.
70.
No. 17AP-775 18
{¶ 44} Appellants' argument that third parties would not be harmed by granting a
permanent injunction is implicitly based on a presumption that the Youngstown school
district would improve if the existing academic distress commission structure was left in
place. In support of their motion for preliminary injunction and in their brief on appeal,
appellants cite only to testimony from the superintendent of the school district stating his
belief that the school district was on its way to recovery when he was hired shortly before
passage of Am.Sub.H.B. No. 70. Under these circumstances, we cannot conclude the trial
court abused its discretion by determining appellants failed to demonstrate by clear and
convincing evidence that granting a permanent injunction would not harm third parties.
Similarly, as explained above, we find that Am.Sub.H.B. No. 70 does not violate the
protections provided under the Ohio Constitution or the United States Constitution.
Therefore, we cannot conclude the trial court abused its discretion by rejecting appellants'
assertion that the public interest would be served by granting a permanent injunction.
{¶ 45} Accordingly, we overrule appellants' third and fourth assignments of error.
IV. Conclusion
{¶ 46} For the foregoing reasons, we overrule appellants' four assignments of error
and affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN, P.J., concurs.
TYACK, J., dissents.
TYACK, J., dissenting.
{¶ 47} I do not agree with the majority of this panel on the issue of the Three Reading
Rule because the various amendments did vitally alter the legislation. Since the Three
Reading Rule is a very simple requirement to meet, I do not foresee judicial encroachment
on the legislative process. All the Ohio legislature has to do is comply with the simple rules
applicable to passing laws. Here, it did not.
{¶ 48} A bill does not have to be wholly changed in order to be vitally altered. I note
that Am.Sub.H.B. No. 70 went from being a 10 page bill to a 77 page bill in a period of less
than 24 hours. It was then passed on a party-line vote. It went from allowing school
districts to create community learning centers to a law which allowed the state of Ohio to
take complete control of a school district, pitching the local school board and local
No. 17AP-775 19
superintendent out of the day-to-day running of the school district. I see this as vitally
altering a bill with little or no opportunity for input from the full range of interested parties.
Such input as occurred came from the political friends of the Governor of Ohio and from
persons closely wired to the leadership of the Ohio General Assembly.
{¶ 49} The persons who wrote the Ohio Constitution displayed impressive wisdom.
They said bills should have three readings so the public can know what is being considered
and possibly passed. They said bills should have one subject, not one part to create
community learning centers and another part which allows government to divest control of
the local school district from local elected leadership to persons chosen by state leadership.
We ignore the wisdom of the persons who drafted our Ohio Constitution at great peril to
good government.
{¶ 50} I respectfully dissent from the majority opinion.