THE CITY OF CINCINNATI, APPELLANT, v. FOURTH NATIONAL REALTY, L.L.C., APPELLEE, ET AL.
SLIP OPINION NO. 2020-OHIO-6802
SUPREME COURT OF OHIO
December 22, 2020
2020-Ohio-6802
FRENCH, J.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as Cincinnati v. Fourth Natl. Realty, L.L.C., Slip Opinion No. 2020-Ohio-6802.] (No. 2019-0898—Submitted August 18, 2020—Decided December 22, 2020.) APPEAL from the Court of Appeals for Hamilton County, Nos. C-180156 and C-180174, 2019-Ohio-1868.
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
Declaratory-judgment action—
FRENCH, J.
{¶ 1} When a party seeks a declaratory judgment that a statute or municipal ordinance is unconstitutional,
{¶ 2} We disagree. While
FACTS AND PROCEDURAL HISTORY
{¶ 3} On July 1, 2015, Cincinnati filed an action for injunctive relief against Fourth National, seeking the removal of a billboard sign. Cincinnati alleged that Fourth National had installed an outdoor advertising sign without obtaining the necessary permit and variance. Fourth National answered and filed a counterclaim, seeking a declaration that the city’s outdoor advertising prohibitions violated its right to free speech under the First Amendment to the United States Constitution and its right to equal protection of the law under the Fourteenth Amendment to the United States Constitution.
{¶ 4} The parties filed competing motions for summary judgment. The trial court granted relief to the city in part, holding that Fourth National had not satisfied the redressability element of a constitutional challenge and thus could not challenge
{¶ 5} On remand, the city filed a second motion for summary judgment, arguing that the trial court did not have subject-matter jurisdiction because Fourth National had not served the attorney general with notice of the pending constitutional claim at the inception of Fourth National’s case in accordance with
{¶ 6} The attorney general chose not to file a brief or otherwise participate in the case. The trial court concluded that it had acquired subject-matter jurisdiction because the attorney general had ultimately been served and the city had not been prejudiced by the delay in serving the attorney general.
{¶ 7} The parties appealed. The court of appeals affirmed in part and reversed in part and again remanded the cause to the trial court. The court of appeals stated that the trial court had acquired subject-matter jurisdiction over the action when Fourth National served the attorney general. The court reasoned that the attorney general ultimately had been served and had chosen not to participate.
{¶ 8} We accepted Cincinnati’s discretionary appeal on the following proposition of law: “Service on the Attorney General of a [declaratory-judgment] claim alleging an ordinance is unconstitutional must be made at the inception of the case pursuant to
{¶ 9}
[W]hen declaratory relief is sought under this chapter in an action or proceeding, all persons who have or claim any interest that would be affected by the declaration shall be made parties to the action or proceeding. * * *. In any action or proceeding that involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and, if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general also shall be served with a copy of the complaint in the action or proceeding and shall be heard.
{¶ 10} With respect to the attorney general,
{¶ 12} By contrast, Fourth National satisfied both of the requirements in
{¶ 13} Dismissal of Fourth National’s counterclaim here would also contradict our precedent allowing parties to rectify belated service on the attorney general or the failure to serve a necessary party to a declaratory-judgment action. In Leisure v. State Farm Mut. Auto. Ins. Co., 89 Ohio St.3d 523, 733 N.E.2d 1117 (2000), we affirmed the lower court’s judgment, which vacated rulings entered by the trial court because the plaintiffs had not served the attorney general. But instead of dismissing the action, we remanded the cause to the trial court to permit the
CONCLUSION
{¶ 14} While
{¶ 15} We therefore affirm the First District’s judgment and remand the matter to the trial court to proceed on Fourth National’s constitutional challenge of Cincinnati’s ordinance. In accordance with Leisure, however, the trial court should vacate any judgments involving Fourth National’s counterclaim that the court issued before Fourth National served its counterclaim on the attorney general.
Judgment affirmed and cause remanded.
O’CONNOR, C.J., and STEWART, J., concur.
KENNEDY, J., concurs in judgment only, with an opinion.
PIPER, J., concurs in judgment only, with an opinion.
DONNELLY, J., concurs, with an opinion.
KLATT, J., dissents, with an opinion.
WILLIAM A. KLATT, J., of the Tenth District Court of Appeals, sitting for DEWINE, J.
THE CITY OF CINCINNATI, APPELLANT, v. FOURTH NATIONAL REALTY, L.L.C., APPELLEE, ET AL.
SLIP OPINION NO. 2020-OHIO-6802
SUPREME COURT OF OHIO
December 22, 2020
2020-Ohio-6802
KENNEDY, J., concurring in judgment only.
{¶ 16} Because the failure to serve a copy of the complaint on the attorney general in a declaratory-judgment action attacking the constitutionality of a statute or municipal ordinance does not deprive the common pleas court of subject-matter jurisdiction to proceed to judgment, any error in proceeding despite a lack of service is subject to harmless-error review. The majority, however, relies too heavily on the summary disposition of Leisure v. State Farm Mut. Auto. Ins. Co., 89 Ohio St.3d 523, 733 N.E.2d 1117 (2000), a case that was held for the decision in Cicco v. Stockmaster, 89 Ohio St.3d 95, 728 N.E.2d 1066 (2000), to prop up its holdings that (1) a trial court has subject-matter jurisdiction over a declaratory-judgment action notwithstanding a claimant’s failure to serve a constitutional claim on the attorney general and (2) any trial-court judgments on constitutional issues entered before the attorney general receives service must be vacated. The majority never explains why it apparently believes that those judgments on constitutional issues are void even if the trial court does not lack subject-matter jurisdiction over the action and even if there was no prejudice arising from those rulings.
{¶ 17} There is no need to confuse the law here. Subject-matter jurisdiction is the power of a court to hear a particular class or type of case, and the common pleas court is the proper forum for a declaratory-judgment action. Any error the trial court committed in proceeding to judgment is therefore the improper exercise of jurisdiction and, in this case, the error is harmless. Appellant, the city of Cincinnati, waited more than two years to challenge the failure of appellee, Fourth National Realty, L.L.C., to serve the attorney general, and once served, the attorney
Jurisdiction
{¶ 18} “[J]urisdiction is a vague term, ‘ “a word of many, too many, meanings.” ’ ” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493, 2008-Ohio-6323, 900 N.E.2d 601, ¶ 5, quoting Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), quoting United States v. Vanness, 85 F.3d 661, 663 (D.C.Cir.1996), fn. 2. It encompasses “[s]everal distinct concepts, including territorial jurisdiction, monetary jurisdiction, personal jurisdiction, and subject-matter jurisdiction,” id., as well as “jurisdiction over a particular case,” Bank of Am., N.A. v. Kuchta, 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 18. “The often unspecified use of this polysemic word can lead to confusion and has repeatedly required clarification as to which type of ‘jurisdiction’ is applicable in various legal analyses.” Id.
{¶ 19} Subject-matter jurisdiction refers to the constitutional or statutory power of a court to adjudicate a particular class or type of case. Corder v. Ohio Edison Co., ___ Ohio St. 3d ___, 2020-Ohio-5220, ___ N.E.3d ___, ¶ 14, citing Pratts v. Hurley, 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11-12, 34. “ ‘A court’s subject-matter jurisdiction is determined without regard to the rights of the individual parties involved in a particular case.’ ” Corder at ¶ 14, quoting Kuchta at ¶ 19. “Instead, ‘the focus is on whether the forum itself is
{¶ 20} “A court’s jurisdiction over a particular case refers to the court’s authority to proceed or rule on a case that is within the court’s subject-matter jurisdiction.” Kuchta at ¶ 19. This reference to “a court’s exercise of its jurisdiction over a particular case,” Pratts at ¶ 12, “involves consideration of the rights of the parties,” Kuchta at ¶ 19. That is, “ ‘ “[o]nce a tribunal has jurisdiction over both the subject matter of an action and the parties to it, ‘* * * the right to hear and determine is perfect; and the decision of every question thereafter arising is but the exercise of the jurisdiction thus conferred * * *.’ ” ’ ” (Ellipses added in Pizza.) Harper at ¶ 26, quoting Pratts at ¶ 12, quoting State ex rel. Pizza v. Rayford, 62 Ohio St.3d 382, 384, 582 N.E.2d 992 (1992), quoting Sheldon’s Lessee v. Newton, 3 Ohio St. 494, 499 (1854).
Subject-Matter Jurisdiction over Declaratory-Judgment Actions
{¶ 21} Article IV, Section 4(A) of the Ohio Constitution provides that “[t]here shall be a court of common pleas and such divisions thereof as may be established by law serving each county of the state,” and Article IV, Section 4(B) provides that “[t]he courts of common pleas and divisions thereof shall have such original jurisdiction over all justiciable matters * * * as may be provided by law.” “[W]e have interpreted Article IV’s mandate that the courts of common pleas have jurisdiction ‘as may be provided by law’ to mean that ‘[t]he general subject matter jurisdiction of Ohio courts of common pleas is defined entirely by statute.’ ” (Emphasis added in Ohio High School Athletic Assn.) Ohio High School Athletic Assn. v. Ruehlman, 157 Ohio St.3d 296, 2019-Ohio-2845, 136 N.E.3d 436, ¶ 7, quoting State v. Wilson, 73 Ohio St.3d 40, 42, 652 N.E.2d 196 (1995).
any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute, rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
{¶ 23} The court of common pleas therefore has subject-matter jurisdiction over this declaratory-judgment action attacking the constitutionality of a municipal ordinance. It is the proper forum to proceed to judgment.
Service of Notice on the Attorney General
{¶ 24} At issue here is
In any action or proceeding that involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and, if any statute or the ordinance or franchise is alleged to be unconstitutional, the attorney general also shall be served with a copy of the complaint in the action or proceeding and shall be heard.
{¶ 25} Construing this statute in Cicco, this court held that “[a] party who is challenging the constitutionality of a statute must assert the claim in the complaint (or other initial pleading) or an amendment thereto, and must serve the pleading upon the Attorney General in accordance with methods set forth in
{¶ 26} Since then, this court has said that “failure to serve the attorney general when filing a declaratory-judgment action under
{¶ 27} In none of these cases did we say that the failure to comply with
{¶ 28} Therefore, a party’s failure to comply with
Harmless Error
{¶ 29} Although it does not affect the court’s subject-matter jurisdiction, service on the attorney general is a statutory mandate, and proceeding on a declaratory-judgment action in violation of
{¶ 30} It is manifest that no one—Fourth National, the city, or the state—has been prejudiced by the delay in serving notice on the attorney general.
{¶ 31} As the Supreme Court of the United States has explained, “Clarity would be facilitated if courts and litigants used the label ‘jurisdictional’ not for claim-processing rules [i.e., those guiding the court’s exercise of jurisdiction], but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004).
{¶ 32} Because
THE CITY OF CINCINNATI, APPELLANT, v. FOURTH NATIONAL REALTY, L.L.C., APPELLEE, ET AL.
SLIP OPINION NO. 2020-OHIO-6802
SUPREME COURT OF OHIO
December 22, 2020
2020-Ohio-6802
PIPER, J., concurring in judgment only.
{¶ 33} Our various opinions in this case establish that the Ohio General Assembly needs to clearly set forth the law on when the Ohio Attorney General must be served in a declaratory-judgment action that challenges the constitutionality of an ordinance.
{¶ 34} I agree with all the other opinions to the extent that they expressly or implicitly indicate that neither
{¶ 36} According to the Cicco court, proper timing of the notice is “the beginning of the action or the initial pleading stage in which the constitutional challenge is raised.” Id. at 99. The court supported its conclusion by reasoning that service “at the inception of the action, or when a constitutional challenge is initially pleaded” would allow the attorney general “a reasonable amount of time in which to evaluate the issues and determine whether to participate in the case.” Id. The dissent’s point in the present case is well-taken; a temporal requirement already exists. The difficulty is that the requirement remains undefined.
{¶ 37} The other aspect lending credibility to the temporal requirement inherent in
{¶ 39} The General Assembly has provided no guidance within the statute to assist trial courts and practitioners in understanding the parameters of the temporal requirement. Thus, the General Assembly should act to clearly define applicable timeframes or otherwise clearly announce the legislation’s intent so that we are not left to wallow in the consequences of the ambiguity that has been created. The dissent’s point is also well-taken in that if Cicco’s holding was inconsistent with legislative intent, the General Assembly could have amended the statute within the last 20 years. I fear, however, that it may have been a quagmire into which the legislature dared not step.2
{¶ 40} I agree with the majority that a trial court does not lose subject-matter jurisdiction when a party fails to initially serve the attorney general and that precedent exists indicating that such a defect may be subsequently cured. However, I do not agree that the window of time within which the failure can be rectified is ad infinitum. Thus, I respectfully concur in judgment in only.
THE CITY OF CINCINNATI, APPELLANT, v. FOURTH NATIONAL REALTY, L.L.C., APPELLEE, ET AL.
SLIP OPINION NO. 2020-OHIO-6802
SUPREME COURT OF OHIO
December 22, 2020
2020-Ohio-6802
DONNELLY, J., concurring.
{¶ 41} I concur. I write separately to stress that
{¶ 42} In Cicco v. Stockmaster, 89 Ohio St.3d 95, 99, 728 N.E.2d 1066 (2000), this court, in construing
{¶ 43} Common sense suggests that a party asserting a constitutional claim pursuant to
THE CITY OF CINCINNATI, APPELLANT, v. FOURTH NATIONAL REALTY, L.L.C., APPELLEE, ET AL.
SLIP OPINION NO. 2020-OHIO-6802
SUPREME COURT OF OHIO
December 22, 2020
2020-Ohio-6802
KLATT, J., dissenting.
{¶ 44} Because I would follow the rationale expressed in Cicco v. Stockmaster, 89 Ohio St.3d 95, 99, 728 N.E.2d 1066 (2000), I respectfully dissent. In Cicco, this court, in construing
Paula Boggs Muething, Cincinnati City Solicitor, Marion E. Haynes III, Chief Counsel, and Mark R. Manning, Assistant City Solicitor, for appellant.
Holzapfel Law, L.L.C., and Eric C. Holzapfel, for appellee.
Dave Yost, Attorney General, Benjamin M. Flowers, Solicitor General, and Stephen P. Carney, Deputy Solicitor General, in support of neither side for amicus curiae, Ohio Attorney General Dave Yost.