VILLAGE OF NEWBURGH HEIGHTS, ET AL. v. STATE OF OHIO

Cleveland, Ohio - Civil attorney represented Village of Newburgh Heights and the city of East Cleveland with appealing from a trial court judgment denying their motion for a preliminary injunction.

On June 27, 2019, Newburgh Heights filed a complaint in the

Cuyahoga County Court of Common Pleas, seeking a declaratory judgment and a

motion for preliminary and permanent injunction against defendant-appellee, the

state of Ohio, asking the court to enjoin the enforcement of certain provisions of

2019 Am.Sub.H.B. No. 62 ("H.B. 62”), which was set to become effective on July 3,

2019. Newburgh Heights alleged that the challenged provisions impermissibly

infringed upon Ohio municipalities' home rule authority to enact and operate traffic

photo enforcement programs.

On August 14, 2019, East Cleveland filed a motion to intervene, a

complaint, and a motion for preliminary and permanent injunction, also challenging

provisions of H.B. 62. The state did not object to East Cleveland intervening, and

the trial court granted East Cleveland's motion to intervene.

The plaintiffs challenged the following provisions of H.B. 62: (1) the

requirement that a law enforcement officer be present at every photo enforcement

device location at all times during operation, (2) reducing the local government fund

allocation by amounts collected from drivers who paid their traffic photo citation

and eliminating local government funds for local authorities that fail to report

revenues from a photo enforcement program, (3) conferring "exclusive jurisdiction”

over such actions to municipal and county courts that eliminated a local authority's

ability to appoint administrative hearing officers to adjudicate photo enforcement

tickets, and (4) requiring local authorities to provide advance and non-recoverable

court deposits to cover "all applicable court costs and fees” for civil actions related

to the photo enforcement programs.

After a hearing on the parties' motions for preliminary injunction, the

trial court denied them in part and granted them in part in October 2019. The trial

court granted the motions with respect to the first contested provision, i.e., the

requirement that a law enforcement officer be present at every photo enforcement

device location at all times during operation. The trial court denied the motions

regarding the remaining contested provisions.

B. Appellate Background

The cities appealed the trial court's decision denying their motions for

preliminary injunction with respect to their second, third, and fourth contested

provisions. This court consolidated the cases. The cities requested a stay in the trial

court, which the trial court denied. The cities also requested this court to issue an

injunction pending appeal. On December 4, 2019, this court issued the following

order:

Motion by appellant City of East Cleveland for injunction pending

appeal is granted in part. The state of Ohio is enjoined, pending the

resolution of this appeal, from enforcing the contested provisions in

H.B. 62 concerning (1) conferring exclusive jurisdiction over traffic

camera tickets to municipal and county courts and (2) requiring local

authorities to provide advance and non-recoverable court deposits to

cover all applicable costs and fees pertaining to the tickets. The

provision reducing the local government fund allocation does not

become effective until July 25, 2020; therefore, there is no immediate

irreparable harm as to that provision. The trial court has already

granted an injunction regarding the requirement that a law

enforcement officer be present at every traffic camera location. Once

briefing is complete, the appeal shall be set for hearing at the earliest

feasible date.

In early July 2o20, plaintiffs requested that this court reconsider the

"irreparable harm determination” with respect to the second contested provision (a

reduction in the local government fund allocation by the amounts collected from

drivers who paid their traffic photo citation and eliminating local government funds

for local authorities that fail to report revenues from a photo enforcement program)

because the state would act on the provision on July 25, 2020.

This court granted plaintiffs' motions on July 22, 2020, treating them

as renewed motions for an injunction pending appeal due to new circumstances that

existed.

We will discuss the cities' assigned errors and arguments out of order

where necessary for ease of discussion.

II. Preliminary Injunction

The purpose of a preliminary injunction ordinarily is to preserve the

status quo pending a trial on the merits. Mears v. Zeppe's Franchise Dev., 8th Dist.

Cuyahoga No. 90312, 2009-Ohio-27, ¶ 23. "An injunction is an extraordinary

remedy in equity where there is no adequate remedy available at law. It is not

available as a right but may be granted by a court if it is necessary to prevent a future

wrong that the law cannot.” Garono v. State, 37 Ohio St.3d 171, 173, 524 N.E.2d 496

(1988). Because an injunction is an extraordinary remedy, "'the moving party has a

substantial burden to meet in order to be entitled'” to a preliminary injunction. KLN

Logistics Corp. v. Norton, 174 Ohio App.3d 712, 2008-Ohio-212, 884 N.E.2d 631,

¶ 11 (8th Dist.), quoting Ormond v. Solon, 8th Dist. Cuyahoga No. 79223, 2001 Ohio

App. LEXIS 4654, 4 (Oct. 18, 2001). The party seeking the preliminary injunction

must establish a right to the preliminary injunction by showing clear and convincing

evidence of each element of the claim. Id., citing Vanguard Transp. Sys., Inc. v.

Edwards Transfer & Storage Co., Gen. Commodities Div., 109 Ohio App.3d 786,

790, 673 N.E.2d 182 (10th Dist.1996).

When ruling on a motion for a preliminary injunction, the trial court

must consider whether: (1) the movant has shown a strong or substantial likelihood

or probability of success on the merits, (2) the movant has shown irreparable injury,

(3) third parties will be harmed if the injunction is granted, and (4) the public

interest would be served by issuing the preliminary injunction. KLN Logistics Corp.

at ¶ 12, citing Vanguard Transp. Sys. at 790. No one factor is dispositive. Cleveland

v. Cleveland Elec. Illum. Co., 115 Ohio App.3d 1, 14, 684 N.E.2d 343 (8th Dist.1996).

When there is a strong likelihood of success on the merits, preliminary injunctive

relief may be justified even though a plaintiff's case of irreparable injury may be

weak. Id. Conversely, where a party's likelihood of success on the merits is low,

there must be a high likelihood of irreparable harm to justify injunctive relief. Aids

Taskforce of Greater Cleveland v. Ohio Dept. of Health, 2018-Ohio-2727, 116

N.E.3d 874, ¶ 23 (8th Dist.).

In Ohio, a statute cannot be invalidated or enjoined unless it is

unconstitutional. This is because Article II, Section 1 of the Ohio Constitution

confers all legislative power of the state on the General Assembly. "The General

Assembly has plenary power to enact legislation[.]” Tobacco Use Prevention &

Control Found. Bd. of Trustees v. Boyce, 127 Ohio St.3d 511, 2010-Ohio-6207, 941

N.E.2d 745, ¶ 10. Therefore, it may "enact any law that does not conflict with the

Ohio or United States Constitution.” Kaminski v. Metal & Wire Prods. Co., 125 Ohio

St.3d 250, 2010-Ohio-1027, 927 N.E.2d 1066, ¶ 60. For this reason, "'[b]efore any

legislative power, as expressed in a statute, can be held invalid, it must appear that

such power is clearly denied by some constitutional provision.'” Boyce at ¶ 10,

quoting Williams v. Scudder, 102 Ohio St. 305, 307, 131 N.E. 481 (1921).

The power to invalidate and 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.” Yajnik v. Akron Dept.

of Health, Hous. Div., 101 Ohio St.3d 106, 2004-Ohio-357, 802 N.E.2d 632, ¶ 16.

The decision as to whether such an injunction should be issued rests

in the sound discretion of the court and will not be reversed absent an abuse of that

discretion. Garono, 37 Ohio St.3d at 173, 524 N.E.2d 496. "Essentially, 'abuse of

discretion' describes a judgment neither comporting with the record, nor reason.”

In re S.E., 8th Dist. Cuyahoga No. 96031, 2011-Ohio-2042, ¶ 13, citing In re Wiley,

11th Dist. Lake No. 2007-P-0013, 2007-Ohio-7123, ¶ 17.

A. Likelihood of Success on the Merits

We will address the cities' second assignment of error first, i.e.,

whether the cities were likely to succeed on the merits of their motion with respect

to the three contested provisions that are before us on appeal. In their motions for

preliminary injunction, the cities raised several constitutional arguments. But their

first argument was that the contested provisions of H.B. 62 violate the Home Rule

Amendment. The trial court, however, largely ignored these arguments.1

Nonetheless, the trial court stated that any arguments not addressed in its opinion

"are not well taken by this [c]ourt for purposes of these motions.”

1. Home Rule Amendment

The Home Rule Amendment, set forth in the Ohio Constitution,

Section 3, Article XVIII, empowers municipalities 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.”

The phrase "as are not in conflict with general laws” in Section 3,

Article XVIII of the Ohio Constitution, has been universally construed to place a

limitation on a municipality's power to "adopt and enforce * * * local police, sanitary

and other similar regulations,” but not on the power of local self-government. Hills

& Dales, Inc. v. Wooster, 4 Ohio App.3d 240, 242, 448 N.E.2d 163 (9th Dist.1982),

citing State ex rel. Canada v. Phillips, 168 Ohio St. 191, 151 N.E.2d 722 (1958).

"Police powers” encompass the areas of public health, safety, morals, and general

welfare. Hills & Dales at id.

In Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881

N.E.2d 255, the Ohio Supreme Court explained that courts use a three-part test to

evaluate claims that a municipality has exceeded its powers under the Home Rule

1 The trial court only addressed the cities' home-rule argument with respect to the

first contested provision, which requires a police officer to be present at every automated

traffic camera. This provision is not before us on appeal because the trial court granted

the cities' motions with respect to this provision.

Amendment. First, courts must determine if the ordinance at issue is an exercise of

the city's "police power,” rather than of local self-government. Id. at ¶ 17, citing

Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, ¶ 9. "If an

allegedly conflicting city ordinance relates solely to self-government, the analysis

stops, because the Constitution authorizes a municipality to exercise all powers of

local self-government within its jurisdiction.” Id. at ¶ 18, quoting Am. Fin. Servs.

Assn. v. Cleveland, 112 Ohio St.3d 170, 2006-Ohio-6043, 858 N.E.2d 776, ¶ 23.

The second step of the Mendenhall test is necessary only if the city

ordinance involves an exercise of police power. This step requires a court to

determine whether the state law is a general law under the four-part test set forth in

Canton. Mendenhall at ¶ 17, citing Canton at ¶ 9.

The final step of the Mendenhall test is to determine whether the

ordinance conflicts with the statute, i.e., whether the ordinance permits that which

the statute forbids, and vice versa. If the ordinance conflicts with the general law, it

will be held unconstitutional. Id. at ¶ 28. If there is no conflict, the municipal action

is permissible even though the statute is a general law. Id.

To qualify as a general law under the Canton test, a statute must

(1) be part of a statewide and comprehensive legislative enactment, (2)

apply to all parts of the state alike and operate uniformly throughout

the state, (3) set forth police, sanitary, or similar regulations, rather

than purport only to grant or limit legislative power of a municipal

corporation to set forth police, sanitary, or similar regulations, and (4)

prescribe a rule of conduct upon citizens generally.

Id. at syllabus. If a statute meets the Canton general-law test, then the statute takes

precedence over any conflicting municipal ordinances. Dayton v. State, 151 Ohio

St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, ¶ 15. If, however, "the general-law test

is not satisfied, then the statute is 'an unconstitutional attempt to limit the legislative

home-rule powers' of municipalities.” Id., quoting Canton, 95 Ohio St.3d 149, 2002-

Ohio-2005, 7676 N.E.2d 963, at ¶ 10.

The Supreme Court of Ohio has found that photo enforcement

programs do not exceed an Ohio municipality's home rule authority provided the

municipality does not alter statewide traffic regulations. See Mendenhall, 117 Ohio

St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, at the syllabus. The Supreme Court

reaffirmed the holding of Mendenhall in Walker v. Toledo, 143 Ohio St.3d 420,

2014-Ohio-5461, 39 N.E.3d 474, explaining that "Ohio municipalities have homerule authority to establish administrative proceedings, including administrative

hearings, related to civil enforcement of traffic ordinances, and that these

administrative proceedings must be exhausted before offenders or the municipality

can pursue judicial remedies.” Walker at ¶ 3.

There is no question that under the Mendenhall test, the local

ordinances encompass the police power. "[T]he regulation of traffic is an exercise

of police power that relates to public health and safety, as well as to the general

welfare of the public.” Mendenhall at ¶ 19, citing Linndale v. State, 85 Ohio St.3d

52, 54, 706 N.E.2d 1227 (1999).

With respect to whether a conflict exists between the cities' local

ordinances setting forth their photo enforcement programs and the contested

provisions of H.B. 62, the state contends that the cities did not and cannot show that

a conflict exists. We disagree. The state statutes in this case indirectly prohibit what

the local ordinances permit. The Supreme Court of Ohio has recognized conflict by

implication. See Mendenhall at ¶ 31-32. In Mendhall, the Supreme Court found no

conflict by implication because the issue was whether the state "had exclusivity in

the area of speed enforcement,” which the court held it did not. Id. at ¶ 33. Here,

however, the state is attempting to exclusively control (1) the funds local authorities

receive from photo enforcement programs, (2) where citizens can challenge a photo

enforcement citation, and (3) who pays the court costs with respect to challenges to

a photo enforcement citation. We therefore find that a conflict exists between the

contested provisions of H.B. 62 and the local ordinances.

Thus, the only question remaining is whether the state statutes

qualify as a general law under the four-part test in Canton. The first two criteria are

easily met. The contested provisions of H.B. 62 (1) are part of a statewide and

comprehensive legislative enactment and (2) apply to all parts of the state alike (if a

local ordinance enacts a photo enforcement program).

Therefore, with respect to the contested provisions of H.B. 62, we

must determine only the last two Canton factors: (3) do the state statutes at issue

set forth police, sanitary, or similar regulations or do they grant or limit the

legislative power of a municipal corporation to set forth its own police, sanitary, or

similar regulations, and (4) do the state statutes prescribe a rule of conduct upon

citizens generally.

a. Dayton v. State

The Ohio Supreme Court's opinion in Dayton, 151 Ohio St.3d 168,

2017-Ohio-6909, 87 N.E.3d 176, is instructive here despite being a plurality opinion.

Three justices found the traffic-camera laws at issue were not general laws (and

therefore unconstitutional) because they violated the third prong of the Canton test.

Two justices found the camera laws at issue were not general laws (and therefore

unconstitutional) because they violated the fourth prong of the Canton test. We

therefore find Dayton to be instructive to our analysis.

The lead opinion in Dayton analyzed several Revised Code

provisions that were passed by the General Assembly in 2014 Am.Sub.S.B. No. 342

("S.B. 342”). These provisions regulated "local authorities' use of automated trafficenforcement programs.” Id. at ¶ 4. The three contested provisions of S.B. 342 were

set forth in R.C. 4511.093(B)(1), 4511.0912, and 4511.095. R.C. 4511.093(B)(1)

required the presence of a full-time law-enforcement officer at each traffic camera.

R.C. 4511.0912 provided that local authorities shall not issue a ticket for a speeding

violation unless "the vehicle involved in the violation is traveling at a speed that

exceeds the posted speed limit by not less than” 6 m.p.h. in a school zone or park

area or 10 m.p.h. in other locations. And R.C. 4511.095 required local authorities to

conduct safety studies and a public information campaign, educating and notifying

the public about the location of the cameras. The "sole issue” in Dayton was

"whether the contested provisions of S.B. 343 qualif[ied] as general laws” under the

Canton test. Dayton at ¶ 15. In doing so, the lead opinion focused only on the third

prong of the Canton test because it found it to be dispositive. Id. at ¶ 15.

Regarding the third prong of the Canton test, the general-law test, the

lead opinion in Dayton explained that it had to consider "whether the statute sets

forth police regulations or whether it merely grants or limits municipalities'

legislative power to set forth police regulations.” Dayton at ¶ 16, citing Canton, 95

Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, at ¶ 33. The Supreme Court

explained:

Under this court's precedent, so long as a statute serves an overriding

state interest with respect to police, sanitary, or similar regulations,

then the third prong of the Canton general-law test is satisfied, even if

the statute limits the legislative authority of municipalities. However,

when a statute expressly grants or limits the legislative power of a

municipal corporation to set forth police, sanitary, or similar

regulations, without serving an overriding statewide interest, then the

statute, or a portion of it, violates the Home Rule Amendment.

Id. at ¶ 20.

The lead opinion reviewed previous cases where the Supreme Court

had analyzed the third prong of the Canton test:

In Canton, the court considered whether R.C. 3781.184, which related

to the zoning of property for manufactured homes, violated the Home

Rule Amendment. R.C. 3781.184(C) provided that political

subdivisions must allow manufactured homes to be placed in areas

where single-family residences were permitted. R.C. 3781.184(D)

created an exception to division (C) that allowed private-property

owners to prohibit manufactured homes on their land by way of

restrictive covenants in deeds. The court determined that "R.C.

3781.184(C), on its face, appears to serve an overriding state interest in

providing more affordable housing options across the state.” Canton

at ¶ 33. It then determined, however, that "the exception contained in

R.C. 3781.184(D) defeats this purpose.” Id. According to the court,

R.C. 3781.184(C) would have "very little, if any, impact in areas of

development having effective deed restrictions or active homeowner

associations. Instead, the statute [would] effectively apply only in older

areas of the state, i.e., cities where residential areas no longer have

effective deed restrictions or no longer have active homeowner

associations.” Id. at ¶ 30. Because the statute did not serve an

overriding state interest, the Canton court determined that R.C.

3781.184(C) "purports only to grant or limit the legislative power of a

municipal corporation to set forth police, sanitary, or similar

regulations.” Id. at ¶ 33.

This court confronted the third prong of the Canton test in Ohioans for

Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605,

896 N.E.2d 967. In Ohioans for Concealed Carry, the court considered

whether a municipal ordinance that prohibited licensed gun owners

from carrying a concealed gun within a city's parks was constitutional

under the Home Rule Amendment. The municipal ordinance

conflicted with a state statute that allowed a licensed gun owner to carry

a gun anywhere in the state, subject to several exceptions that did not

include municipal parks. In analyzing the third prong of the Canton

general-law test, the court determined that the statute went beyond

preventing cities from enacting conflicting legislation because the

statute "provide[d] a program to foster proper, legal handgun

ownership in this state.” Id. at ¶ 50. The court determined that "[t]he

statute therefore represents both an exercise of the state's police power

and an attempt to limit legislative power of a municipal corporation to

set forth police, sanitary, or similar regulations.” Id.; see also

Mendenhall, 117 Ohio St. 3d 33, 2008-Ohio-270, at ¶ 24, 881 N.E.2d

255 (determining that R.C. 4511.21 "has extensive scope and does more

than grant or limit state powers”).

This court confronted the third prong of the Canton test again in

Cleveland v. State, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644.

The city of Cleveland sought a declaration that former R.C. 4921.25,

2012 Am.Sub.H.B. No. 487, was unconstitutional under the Home Rule

Amendment. Former R.C. 4921.25 vested the Public Utilities

Commission of Ohio ("PUCO”) with the authority to regulate towing

entities as for-hire motor carriers, but the second sentence of the

statute provided that "[s]uch an entity is not subject to any ordinance,

rule, or resolution of a municipal corporation, county, or township that

provides for the licensing, registering, or regulation of entities that tow

motor vehicles.” Cleveland challenged the second sentence of the

statute as unconstitutionally infringing on local authorities' abilities to

regulate towing companies. This court determined that the statute,

when read as a whole, did not merely limit the legislative power of

municipalities to set forth police, sanitary, or similar regulations,

Cleveland at ¶ 13; nevertheless, the court isolated the second sentence

of the statute, analyzed it separately, and determined that it was

unconstitutional, id. at ¶ 16-17. According to the court, "[u]nlike the

first sentence of R.C. 4921.25, which subjects towing entities to PUCO

regulation, the second sentence fails to set forth any police, sanitary, or

similar regulations.” Id. at ¶ 16.

Dayton at ¶ 17-19.

After applying the reasoning of those three cases to the contested

provisions of S.B. 342, the lead opinion of Dayton held that the three traffic-camera

statutes failed the third prong of the Canton test and improperly infringed upon

municipal power. Id. at ¶ 21-27. The lead opinion found that the three contested

provisions of S.B. 342, R.C. 4511.093(B)(1) (required police presence at the location

of a traffic camera), R.C. 4511.0912 (prohibited a municipality from issuing a fine for

speeding based on a traffic camera unless the driver's speed exceeded the speed limit

by six or ten miles per hour), and R.C. 4511.095 (required a municipality to perform

a study and public-information campaign before using the cameras) did not serve

an overriding statewide interest. Id.

Two justices in Dayton agreed with the lead opinion that the three

contested provisions of S.B. 342 were unconstitutional, but for a different reason.

See id. at ¶ 40-41 (French, J., concurring in judgment only ("CJO opinion”)). The

CJO opinion found the three contested provisions to be unconstitutional under the

fourth prong of the Canton test. The CJO opinion reviewed previous cases where

the Supreme Court had analyzed the fourth prong:

Under the fourth prong of the Canton test, a statute must "prescribe a

rule of conduct upon citizens generally” to qualify as a general law. Id.

at ¶ 21. The statute at issue in Canton — forbidding political

subdivisions from prohibiting or restricting the location of

permanently sited manufactured homes in any zone or district in which

a single-family home was permitted — did not satisfy that requirement

because it "applie[d] to municipal legislative bodies, not to citizens

generally.” Id. at ¶ 2, 36. In contrast, a statute that established speed

limits and stated, "'No person shall operate a motor vehicle * * * at a

speed greater or less than is reasonable or proper,'” prescribed a rule of

conduct upon citizens and satisfied the fourth prong of the Canton test.

Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d

255, ¶ 25, quoting R.C. 4511.21.

In Linndale v. State, 85 Ohio St.3d 52, 1999 Ohio 434, 706 N.E.2d 1227

(1999), this court considered a home-rule challenge to former R.C.

4549.17, which prohibited local law-enforcement officers from issuing

speeding and excess-weight citations on interstate freeways when (1)

less than 880 yards of the freeway were within the locality's

jurisdiction, (2) local officers had to travel outside their jurisdiction to

enter onto the freeway, and (3) local officers entered the freeway with

the primary purpose of issuing the citations. Linndale predates

Canton, but the court nevertheless addressed factors that it would later

incorporate into the Canton general-law test. Linndale at 55. The court

held that R.C. 4549.17 was not a general law but was simply a limit on

the legislative powers of municipalities to adopt and enforce police

regulations. Id. As relevant here, the court stated that the statute did

"not prescribe a rule of conduct upon citizens generally.” Id.

We reached a similar conclusion in Youngstown v. Evans, 121 Ohio St.

342, 7 Ohio Law Abs. 703, 168 N.E. 844 (1929). The statute at issue

there limited municipalities' authority to set punishments for

misdemeanor violations of a municipal ordinance. This court stated

that the statute was "not a general law in the sense of prescribing a rule

of conduct upon citizens generally. It is a limitation upon law making

by municipal legislative bodies.” Id. at 345.

The CJO opinion found that unlike the speed-limit statute in

Mendenhall, the contested traffic-camera provisions at issue in Dayton did "not

dictate a rule of conduct applicable to the citizens of the state.” Id. at ¶ 44. The CJO

opinion explained:

Indeed, nothing in S.B. 342 directs citizens' conduct with respect to the

operation of a motor vehicle. Driving in excess of the speed limit and

running a red light are violations of the law, whether or not a traffic

camera exists to record the violation and whether or not a lawenforcement officer has authority to issue a citation. The contested

provisions are phrased in terms of what a local authority shall or shall

not do. They apply not to citizens but to municipalities. Like the statute

in Linndale, the contested provisions of S.B. 342 merely limit

municipal authority to enforce other substantive laws.

Id.

b. Analysis

We now turn to the three contested provisions under H.B. 62 t0 apply

the third and fourth prong of the Canton test to determine if the contested

provisions are general laws.

i. The Second Contested Provision — Reduction of Funds

The second contested provision, reduction of the local government

funds from the state, is set forth in R.C. 5747.502. Under H.B. 62, this provision

states that any local authority "that operated, directly or indirectly, a traffic law

photo-monitoring device during the preceding fiscal year” must annually "file a

report with the tax commissioner that includes a detailed statement of the civil fines

the local authority * * * collected from drivers for any violation of any local ordinance

or resolution during that period that are based upon evidence recorded by a traffic

law photo-monitoring device.” R.C. 5747.502(B). A local authority's payments from

the state local government fund are then reduced by an amount equal to one-twelfth

of the gross amount of all fines indicated on the report. R.C. 5747.502(C)(1). If the

fines exceed the amount of state funds the local authority would otherwise receive,

its future funds are reduced as well. Id. If the local authority does not file a report

as required, all payments of local government funds to the locality will cease until a

report is filed. R.C. 5747.502(D). An amount equal to the payments withheld

(except for fines incurred in school zones) are then deposited into an Ohio highway

and transportation safety fund and used in the transportation district in which the

local authority is located. R.C. 5747.502(F).

The cities contend that there is no overriding state interest in R.C.

5747.502 and that it "serves merely to penalize municipalities that operate photo

enforcement programs without any overriding state interest, as the [s]tate simply

reallocates the local government funds that it takes away from offending cities.” R.C.

5747.502(F). The cities further maintain that R.C. 5747.502 does not prescribe a

rule of conduct applicable to the citizens of the state.

The state maintains that the Ohio Constitution provides that state

spending lies within the General Assembly's exclusive power. It argues that nowhere

in the Constitution is a mandate that the state even have a local government fund,

nor does the Constitution impose a duty on the state to appropriate funds to

municipalities. The state further contends that although the Home Rule

Amendment "protects municipalities' 'authority to exercise' the 'powers of local selfgovernment,' and to enforce 'local police * * * regulations[,] * * * it does not confer

a right to receive state money.' ” According to the state, the Ohio Constitution

expressly authorizes the General Assembly to pass laws "requir[ing] reports from

municipalities as to their financial condition and transactions,” which the General

Assembly has done on "other occasions.” Therefore, the state argues that this power

"implies a power to withhold funding based on what is reported when the General

Assembly exercises its authority to pass laws appropriating funds.”

After review, we agree with the cities. Indeed, we see no overriding

state interest in R.C. 5747.502, and the state has failed to set forth viable one. Just

because the state has the power to control state spending does not mean that it has

the power to penalize local authorities who are operating traffic-camera programs,

something the Supreme Court stated local authorities had the authority to do under

the Home Rule Amendment. See Mendenhall, 117 Ohio St.3d 33, 2008-Ohio-270,

881 N.E.2d 255; Walker, 143 Ohio St.3d 420, 2014-Ohio-5461, 39 N.E.3d 474.

We further find that R.C. 5747.502 fails the fourth prong of the

Canton test because it fails to prescribe a rule of conduct applicable to the citizens

of this state. Rather, the provisions are directed solely at the local authorities.

Therefore, R.C. 5747.502(C), (D), and (F) fail to satisfy the third and

fourth prongs of the Canton test.2 Accordingly, they are not general laws and are

unconstitutional attempts to limit the legislative home-rule powers of

municipalities.

ii. The Third Contested Provision — Exclusive Jurisdiction

2 We note, however, that R.C. 5747.502(B) is permissible because the state is

merely requesting reports from the municipalities, which it is authorized to do under the

Constitution.

The third contested provision, conferring "exclusive jurisdiction” over

such traffic-camera actions to municipal and county courts and eliminating a local

authority's ability to appoint administrative hearing officers to adjudicate photo

enforcement tickets, is set forth in R.C. 1901.20(A)(1) and 1907.02(C).

R.C. 1901.20(A)(1) as enacted by H.B. 62 sets forth criminal and

traffic jurisdiction in relevant part, stating:

The municipal court has jurisdiction to hear misdemeanor cases

committed within its territory and has jurisdiction over the violation of

any ordinance of any municipal corporation within its territory,

including exclusive jurisdiction over every civil action concerning a

violation of a state traffic law or a municipal traffic ordinance. The

municipal court does not have jurisdiction over a violation that is

required to be handled by a parking violations bureau or joint parking

violations bureau pursuant to Chapter 4521. of the Revised Code.

However, the municipal court has jurisdiction over the violation of a

vehicle parking or standing resolution or regulation if a local authority,

as defined in division (D) of section 4521.01 of the Revised Code, has

specified that it is not to be considered a criminal offense, if the

violation is committed within the limits of the court's territory, and if

the violation is not required to be handled by a parking violations

bureau or joint parking violations bureau pursuant to Chapter 4521. of

the Revised Code.

R.C. 1907.02(C) as enacted by H.B. 62 sets forth jurisdiction for

criminal cases and parking violations. It provides, "A county court has exclusive

jurisdiction over every civil action concerning a violation of a state traffic law or a

municipal traffic ordinance, if the violation is committed within the limits of the

court's territory.”

The cities make the same arguments with respect to the third

contested provisions, i.e., that R.C. 1901.20(A)(1) and 1907.02(C) do not serve any

overriding state interest and do not prescribe rules of conduct for the citizens of

Ohio.

The state contends that the General Assembly has the exclusive power

to define the jurisdiction of the lower courts and to provide for their maintenance.

It maintains that the Home Rule Amendment does not limit the plenary powers of

the General Assembly over inferior courts. The state cites to, inter alia, Cupps v.

Toledo, 170 Ohio St. 144, 163 N.E.2d 384 (1959), in support of its argument. In

Cupps, Toledo sought to deprive a lower court of its jurisdiction through a charter

provision that made decisions of the city's civil service commission final. State law,

however, made such decisions appealable to the common pleas courts. The Ohio

Supreme Court held that "the authority granted to municipalities by [the Home Rule

Amendment] * * * does not include the power to regulate the jurisdiction of courts

established by the Constitution or by the General Assembly thereunder.” Id. at 149-

150.

Mendenhall, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255,

Walker, 143 Ohio St.3d 420, 2014-Ohio-5461, 39 N.E.3d 474, and State ex rel.

Magsig v. Toledo, 160 Ohio St.3d 899, 2020-Ohio-3416, 156 N.E.3d 899, are

instructive. Mendenhall hit and killed a child in a hit-and-run accident in a school

crosswalk. Akron subsequently passed an ordinance implementing an "automated

mobile speed enforcement system.” Mendenhall at ¶ 4. The ordinance created a

system that was purely civil in nature and did not modify any state speed limits.

Violators received notices of civil liability and could pay the civil fines or pursue an

administrative appeal. Mendenhall received a notice of liability for speeding, which

was dismissed on administrative appeal. Mendenhall filed a class-action suit against

the municipality for a declaratory judgment, an injunction, and a monetary award.

Mendenhall asserted that the Akron ordinance conflicted with Ohio's general laws

regulating traffic, thereby exceeding Akron's home-rule authority and violating due

process.

The Ohio Supreme Court examined the following question in

Mendenhall: "Whether a municipality has the power under home rule to enact civil

penalties for the offense of violating a traffic signal light or for the offense of

speeding, both of which are criminal offenses under the Ohio Revised Code.” Id. at

¶ 2. The Supreme Court concluded: "[Akron's] ordinance provides for a

complementary system of civil enforcement that, rather than decriminalizing

behavior, allows for the administrative citation of vehicle owners under specific

circumstances. Akron has acted within its home rule authority granted by the

Constitution of Ohio.” Id. at ¶ 42.

In Walker, the Ohio Supreme Court cited to Cupps and

"acknowledge[d] that home-rule authority does not include the power to regulate

the jurisdiction of courts.” Id. at ¶ 20, citing Cupps at paragraph one of the syllabus.

But the Supreme Court reaffirmed its holding in Mendenhall "that municipalities

have home-rule authority under Article XVIII of the Ohio Constitution to impose

civil liability on traffic violators through an administrative enforcement system.” Id.

at ¶ 3. It further held that the "Ohio Constitution, Article IV, Section 1, which

authorizes the legislature to create municipal courts, and R.C. 1901.20, which sets

the jurisdiction of municipal courts, do not endow municipal courts with exclusive

authority over civil administrative enforcement of traffic-law violations” and that

"Ohio municipalities have home-rule authority to establish administrative

proceedings, including administrative hearings, related to civil enforcement of

traffic ordinances, and that these administrative proceedings must be exhausted

before offenders or the municipality can pursue judicial remedies.” Id.

Recently, however, in State ex rel Magsig v. Toledo, 160 Ohio St.3d

899, 2020-Ohio-3416, 156 N.E.3d 899, the Ohio Supreme Court addressed its

holding in Walker as well as the application of Walker to the exclusive-jurisdiction

provision in H.B. 62. The Supreme Court explained:

The version of R.C. 1901.20(A)(1) that was in effect at the time of our

Walker decision did not give municipal courts exclusive jurisdiction

over cases involving traffic-camera citations. Id. at ¶ 1-3. The previous

version of R.C. 1901.20(A)(1) stated: "The municipal court has

jurisdiction of the violation of any ordinance of any municipal

corporation within its territory[.]” Am.Sub.S.B. No. 98, 147 Ohio Laws,

Part IV, 7357. We held that "any” did not mean the same thing as

"exclusive,” and that the statute could therefore not be read as

conferring exclusive jurisdiction over civil traffic-law violations on

municipal courts. Id. at ¶ 25. But as amended by H.B. 62 in 2019, R.C.

1901.20(A)(1) now states that municipal courts have "exclusive

jurisdiction over every civil action concerning a violation of a state

traffic law or a municipal traffic ordinance.” (Emphasis added). The

current version of R.C. 1901.20(A)(1) clearly and unambiguously

reserves for municipal courts exclusive authority to adjudicate every

civil traffic-law violation. And that statutory grant of jurisdiction

"cannot be impaired or restricted by any municipal charter or

ordinance provision.” Cupps v. Toledo, 170 Ohio St. 144, 151, 163

N.E.2d 384 (1959).

Id. at ¶ 11.

The Supreme Court explicitly noted in Magsig that Toledo did not

challenge the constitutionality of the exclusive-jurisdiction clause of R.C. 1901.20(A)

as enacted by H.B. 62. Id. at ¶ 16. Nonetheless, the Supreme Court stated that

although Toledo did not do so, "the authority of the General Assembly to set the

jurisdiction of the municipal courts is undisputed.” Id.

After review, we agree with the state that the exclusive-jurisdiction

provision in H.B. 62 does not violate the Home Rule Amendment or any other

section of the Ohio Constitution. The cities' authority under the Home Rule

Amendment to regulate local police, sanitary, and other similar regulations does not

include the power to regulate the jurisdiction of courts. The power to regulate the

jurisdiction of courts is established by the Constitution or by the General Assembly,

and, thus, the Home Rule Amendment does not apply to R.C. 1901.20(A)(1) and

1907.02(C). But see Akron v. Ohio, Summit C.P. No. CV-2015-07-3666 (found that

these provisions failed the third prong of the Canton test because they limited the

city's police power without serving an overriding state interest).

iii. The Fourth Contested Provision — Advance Court Deposit

The fourth contested provision, requiring local authorities to provide

advance and nonrecoverable court deposits to cover "all applicable court costs and

fees” for civil actions related to the photo enforcement programs, is set forth in R.C.

4511.099(A). This deposit is not required in a school zone and is nonrefundable.

R.C. 4511.099(A) and (B). R.C. 4511.099(A) states:

[W]hen a certified copy of a ticket issued by a local authority based on

evidence recorded by a traffic law photo-monitoring device is filed with

the municipal court or county court with jurisdiction over the civil

action, the court shall require the local authority to provide an advance

deposit for the filing of the civil action. The advance deposit shall

consist of all applicable court costs and fees for the civil action. The

court shall retain the advance deposit regardless of which party prevails

in the civil action and shall not charge to the registered owner or

designated party any court costs and fees for the civil action.

The cities again argue that this provision does not have an overriding

state interest and does not prescribe a rule upon the citizens of the state.

The state contends that it has an overriding state interest in making

sure that municipal courts are properly funded. The state further maintains that

because "R.C. 1901.026(A) has long made cities responsible for contributing to the

'operating costs' of municipal courts whose jurisdictions include more than one

city,” the advance-deposit requirement of R.C. 4511.099(A) "prevents other cities

from having to share the costs associated with one city's traffic-camera program.”

After review, we agree with the cities that R.C. 4511.099(A) is not a

general law and is therefore, unconstitutional. Even if we assume that the state's

interest satisfies the third prong of the Canton test, R.C. 4511.099(A) still only

prescribes rules for the local municipalities and not citizens of the state. Therefore,

R.C. 4511.099(A) is not a general law and is an unconstitutional attempt to limit the

legislative home-rule powers of municipalities.

After review, we sustain the cities' second assignments of error in part

(because the cities are likely to succeed on the merits of their claims that the second

and fourth contested provisions of H.B. 62 violate the Home Rule Amendment) and

overrule them in part (because the cities are not likely to succeed on their claim that

the third contested provision violates the Home Rule Amendment).

2. Other Constitutional Challenges

Because we found that the second and fourth contested provisions

(reduction of funds and advance court deposit) violate the Home Rule Amendment,

we will address only the likelihood of success of the cities' other constitutional

arguments with respect to the third contested provision, i.e., the exclusivejurisdiction provision. We will also address only the other constitutional arguments

that the cities raise on appeal.

a. Separation-of-Powers

East Cleveland contends in its third assignment of error that the

exclusive-jurisdiction provision is unconstitutional because it violates the

separation-of-powers doctrine. It claims that H.B. 62 is an unconstitutional

"attempt to circumvent the [Ohio Supreme] Court's holding” in Mendenhall, 117

Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, and Walker, 143 Ohio St.3d 420,

2014-Ohio-5461, 39 N.E.3d 474, that "Ohio municipalities have home-rule authority

to establish administrative proceedings, including administrative hearings, related

to civil enforcement of traffic ordinances[.]”

As we already explained, however, the Ohio Supreme Court recently

stated in Magsig that the statute at issue in Walker did not grant exclusive

jurisdiction over civil traffic-law violations to municipal courts. Magsig, 160 Ohio

St.3d 899, 2020-Ohio-3416, 156 N.E.3d 899, at ¶ 11. Now, however, the General

Assembly has amended the statute to do so. Therefore, because these cases

addressed a different version of the statute, they do not support East Cleveland's

argument that the exclusive-jurisdiction provision as enacted in H.B. 62 violates the

separation-of-powers doctrine. East Cleveland's third assignment of error is

overruled because it is not likely to succeed on the merits of this claim.

b. One-Subject Rule

East Cleveland further argues in its fourth assignment of error that

the exclusive-jurisdiction provision violates the one-subject rule of the Ohio

Constitution. East Cleveland asserts H.B. is an appropriations bill with a stated

purpose to "increase the rate of and modify the distribution of revenue from motor

fuel excise taxes, to make appropriations for programs related to transportation and

public safety for the biennium beginning July 1, 2019, and ending June 30, 2021,

and to provide authorization and conditions for the operation of those programs.”

East Cleveland maintains that the contested provisions (although the exclusivejurisdiction provision is the only one at issue now) of H.B. 62 "attempt to regulate

photo enforcement programs funded by municipalities.” Specific to the exclusivejurisdiction provision, East Cleveland argues that this provision "does not belong in

a budget bill as the adjudication process for photo-enforcement cases does not

impact the state's budget.”

The one-subject rule is contained in Section 15(D), Article II of the

Ohio Constitution, which provides, "No bill shall contain more than one subject,

which shall be clearly expressed in its title.” This provision exists to prevent the

legislature from engaging in "logrolling,” i.e., ""the practice of several minorities

combining their several proposals as different provisions of a single bill and thus

consolidating their votes so that a majority is obtained for the omnibus bill where

perhaps no single proposal of each minority could have obtained majority approval

separately.”” State v. Bloomer, 122 Ohio St.3d 200, 2009-Ohio-2462, 909 N.E.2d

1254, ¶ 47, quoting State ex rel. Dix v. Celeste, 11 Ohio St.3d 141, 142-143, 464 N.E.2d

153 (1984).

A reviewing court's role in the enforcement of the one-subject

provision is limited. As explained by the Ohio Supreme Court:

To avoid interfering with the legislative process, we must afford the

General Assembly "great latitude in enacting comprehensive legislation

by not construing the one-subject provision so as to unnecessarily

restrict the scope and operation of laws, or to multiply their number

excessively, or to prevent legislation from embracing in one act all

matters properly connected with one general subject.”

State ex rel. Ohio Civ. Serv. Emps. Assn., AFSCME, Local 11, AFL-CIO v. State Emp.

Relations Bd., 104 Ohio St.3d 122, 2004-Ohio-6363, 818 N.E.2d 688, ¶ 27, quoting

Dix, 11 Ohio St.3d at 145, 464 N.E.2d 153. Every presumption in favor of the

enactment's validity should be indulged. Hoover v. Franklin Cty. Bd. of Commrs.,

19 Ohio St.3d 1, 6, 482 N.E.2d 575 (1985).

Only "[a] manifestly gross and fraudulent violation of the onesubjection provision contained in Section 15(D), Article II of the Ohio Constitution

will cause an enactment to be invalidated.” Bloomer, at ¶ 49, citing In re Nowak,

104 Ohio St.3d 466, 2004-Ohio-6777, 820 N.E.2d 335, paragraph one of the

syllabus. As long as common purpose or relationship exists between the topics, the

mere fact that a bill embraces more than one topic will not be fatal. Id. It is the

disunity of subject matter, rather than the aggregation of topics, that cause a bill to

violate the one-subject rule. Id. The one-subject rule is not directed at plurality but

at disunity in subject matter. Ohio Civ. Serv. Emps. Assn. at ¶ 28.

In this case, we must determine whether there is an alleged violation

of the one-subject rule within the context of an appropriations bill. "[T]he analysis

of the one-subject rule with respect to appropriation bills can be complicated

because appropriations bills 'encompass many items, all bound by the thread of

appropriations.'” Rumpke Sanitary Landfill, Inc. v. Ohio, 184 Ohio App.3d 135,

2009-Ohio-4888, 919 N.E.2d 826, ¶ 16 (1st Dist.2009), quoting Simmons-Harris v.

Goff, 86 Ohio St.3d 1, 16, 711 N.E.2d 203 (1999).

After review, we find that the exclusive-jurisdiction provision directly

relates to the authorization and conditions of the operation of photo-enforcement

programs. Moreover, East Cleveland's photo-enforcement program is explicitly

related to transportation safety, which is also directly related to the stated purpose

of the appropriations bill set forth in H.B. 62. Therefore, East Cleveland was not

likely to succeed on the merits of this claim, and its fourth assignment of error is

overruled.

The cities do not raise any other constitutional arguments on appeal.

B. Irreparable Harm

The second factor a trial court must consider is whether the movant

has shown irreparable harm. KLN Logistics Corp., 174 Ohio App.3d 712, 2008-

Ohio-212, 884 N.E.2d 631, at ¶ 12, citing Vanguard Transp. Sys., 109 Ohio App.3d

at 790, 673 N.E.2d 182. In their first assignments of error, the cities argue that the

trial court erred when it determined that they would not suffer irreparable harm if

the court did not enjoin the enforcement of the contested provisions.

The trial court found that the cities' evidence was not sufficient

because "[e]conomic harm is not sufficient to satisfy the element of irreparable

harm.” The trial court further found that the cities did not establish that the denial

of the injunction would adversely affect driver safety.

First, as we stated earlier, the trial court failed to analyze whether the

cities were likely to succeed on the merits of their Home Rule Amendment claims

(except with respect to the first contested provision, i.e., requiring an officer to be

present). Had it done so, it would have presumably recognized that the cities'

preliminary injunction could still be justified even if their evidence of irreparable

harm was weak. See Cleveland Elec. Illum. Co., 115 Ohio App.3d at 14, 684 N.E.2d

343. Because we have already determined that the cities were likely to succeed on

the merits of their claims that the reduction-of-funds provision and the advancedeposit provision violated the Home Rule Amendment, we find that their evidence

of irreparable harm (even if we assume, for the sake argument, is weak) was

sufficient to justify a preliminary injunction.

The cities presented evidence through testimony or affidavit that

since having photo enforcement programs, there have been significantly less redlight and speeding violations per camera. They also presented evidence that their

cameras have generated significant funds for the city, which helps fund city services

including the police and fire departments. Further, they presented evidence

establishing that complying with H.B. 62 would make it difficult for them to

continue to operate their photo enforcement programs.

After review, we conclude that the cities established that they would

suffer irreparable harm if the second (reduction of funds) and fourth (advance-court

deposit) contested provisions of H.B. 62 were not enjoined. Again, if they

established that they were likely to succeed on the merits of their claims, their

showing of irreparable harm did not have to be as strong. Accordingly, we sustain

the cities' first assignments of error.

C. Harm to Third Parties and Public Interest

The third and fourth factors that a trial court must consider when

deciding whether to grant a preliminary injunction motion are whether third parties

will be harmed if the injunction is granted and whether the public interest would be

served by issuing a preliminary injunction. KLN Logistics Corp., 174 Ohio App.3d

712, 2008-Ohio-212, 884 N.E.2d 631, at ¶ 12, citing Vanguard Transp. Sys., 109

Ohio App.3d at 790, 673 N.E.2d 182. In its third assignment of error, Newburgh

Heights maintains that the trial court erred because there was "no possibility of

substantial harm to the state of Ohio or other third parties” and that "granting of the

preliminary injunction was clearly in the public interest.”

The state counters that anytime "its duly enacted laws do not go into

effect,” it is harmed. It further contends that only the General Assembly "has the

authority to determine what the public interest is.”

After review, we agree with Newburgh Heights. First, the state cannot

be harmed when an unconstitutional law does not go into effect. We previously

found that the second (reduction of funds) and fourth (advance court deposit)

provisions of H.B. 62 are unconstitutional because they violate the Home Rule

Amendment. Therefore, the state cannot be harmed by the preliminary injunction

enjoining enforcement of those provisions. We further agree with Newburgh

Heights that there is no evidence that any other third party will be harmed by the

preliminary injunction.

Second, Newburgh Heights and East Cleveland presented evidence

showing that if they had to follow the mandates of H.B. 62, the cost of complying

would curtail their ability to maintain their photo-enforcement programs, which

would, in turn, make their roadways less safe. The state did not counter this

evidence. Accordingly, we agree that granting the preliminary injunction benefited

the public's interest.

Newburgh Heights' third assignment of error is sustained.

Judgment affirmed in part, reversed in part, and remanded. The trial

court’s judgment denying the cities’ motion for preliminary injunction with respect

to the third contested provision giving municipal courts exclusive jurisdiction is

affirmed. The trial court’s judgment denying the cities’ motion for preliminary

injunction regarding the second contested provision reducing the cities’ funds and

fourth contested provision requiring the cities to pay advance court deposits is

reversed. This case is remanded for further proceedings.