Community Hospitals and Wellness Centers, et al., Appellees v. The State of Ohio, et al., Appellees [James L. Butler, Jr.—Appellant] and Community Hospitals and Wellness Centers, et al., Appellees v. The State of Ohio, et al., Appellants
Court of Appeals Nos. WM-19-001, WM-19-002
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT WILLIAMS COUNTY
February 7, 2020
[Cite as Community Hosps. & Wellness Ctrs. v. State, 2020-Ohio-401.]
Enrique Rivera-Cerezo, for appellant State Representative James L. Butler, Jr.
Dave Yost, Ohio Attorney General, and Henry G. Appel, Assistant Attorney General, for appellant Ohio Department of Medicaid.
Dave Yost, Ohio Attorney General, Renata Y. Staff and Halli Brownfield Watson, for appellant state of Ohio.
*****
OSOWIK, J.
{¶ 1} This is a consolidated appeal from the judgments of the Williams County Court of Common Pleas which denied the motion to intervene by non-party appellant, State Representative James L. Butler, Jr. (hereafter, “Butler“) and granted the motion for partial summary judgment by the plaintiffs-appellees, Community Hospitals and Wellness Centers, Ohio Hospital Association, Ohio State Medical Association, Ohio Psychological Association, Ohio Physical Therapy Association, Ohio Chapter of the American Academy of Pediatrics, Ohio Chapter of the American College of Surgeons, Ohio Osteopathic Association, Academy of Medicine of Cleveland & Northern Ohio, Ohio Ophthalmologic Society, Ohio Gastroenterology Society, and Ohio Psychiatric Physicians Association. For the reasons set forth below, this court affirms the judgments of the trial court.
{¶ 3} Also on December 22, 2016, appellants agreed to refrain from any actions to implement
{¶ 4} On February 21, 2017, appellants filed a motion to dismiss alleging appellees lacked standing. Then on August 29, 2017, appellees filed a motion for partial
{¶ 5} Meanwhile on October 20, 2017, Butler filed a motion to intervene as an additional defendant and cross-claimant. Appellees opposed Butler‘s motion, and appellants opposed Butler‘s motion where he “unnecessarily and incorrectly calls into question the AGO‘s litigation strategies and tactics in defending the Price Transparency Law,” although appellants conceded Butler may “provide a unique perspective” as the law‘s author. On December 21, 2017, the trial court denied Butler‘s motion. Butler then sought reconsideration of the trial court‘s decision with his intent to file a writ of mandamus, which appellees opposed, and on January 24, 2018, the trial court denied Butler‘s motion. Butler appealed the trial court‘s decisions, and on September 19, 2018, this court dismissed the appeal for lack of jurisdiction.
{¶ 6} After completion of discovery and a stay pending Butler‘s appeal, on February 13, 2019, the trial court denied appellants’ motion to dismiss, granted appellees’ motion for partial summary judgment, granted injunctive relief to appellees, and determined “This is a FINAL, APPEALABLE ORDER under
- The trial court erred by denying State Representative James L. Butler Jr.‘s Motion to Intervene as [of] right under
Civ.R. 24(A)(2) . - The trial court erred by denying State Representative James L. Butler Jr.‘s Motion to Intervene permissively under
Civ.R. 24(B) . - The trial court erred by granting Plaintiffs’ Motion for Partial Summary Judgment.
{¶ 8} Appellants then filed their appeal, designated case No. WM-19-002, setting forth two assignments of error:
- The trial court erred by finding a single subject violation where there were practical and rational reasons to include a provision mandating medical providers to disclose their prices in a bill that funded the Bureau of Workers’ Compensation, an agency that administers and pays for healthcare.
- The trial court erred in finding that an amendment to a bill funding and regulating the Bureau of Workers’ Compensation that added a law intended to decrease health care costs is a vital alteration of the bill, thereby requiring three new considerations.
{¶ 9} Appellees also filed pursuant to
The trial court erred when it found that State Representative Butler had timely moved to intervene ten months after suit was filed, ten months after he publicly raised issues which were later the subject of his attempted intervention, and where he essentially sought to start a new lawsuit against the Director of the Department of Medicaid after all discovery was completed and dispositive motion briefing was done. - The trial court erred by finding that Butler had a cognizable interest, because the issue of statutory “nullification” was not before the trial court and counsel appointed by the Attorney General were already “zealously” defending the statute at issue.
{¶ 10} On May 3, 2019, this court ordered the consolidation of case Nos. WM-19-001 and WM-19-002.
I. Intervention
A. Standard of Review
{¶ 11} Appellate review of a trial court‘s decision on a motion to intervene is for an abuse of discretion, regardless of whether the
{¶ 12} “We construe
B. Intervention as of Right
{¶ 13} Intervention as of right is pursuant to
Upon timely application anyone shall be permitted to intervene in an action: * * * (2) when the applicant claims an interest relating to the property or transaction that is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant‘s ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
{¶ 14} In support of his first assignment of error, Butler argues he has a right to intervene because he is the Ohio legislator who authored
{¶ 15} This court has determined a successful applicant for intervention must prevail on each of four elements, Houtz v. Houtz, 6th Dist. Huron No. H-17-007, 2018-Ohio-1738, 111 N.E.3d 888, ¶ 21:
In order to intervene under
Civ.R. 24(A)(2) the motion must be (1) timely, and the following factors must be shown: (2) the intervenor‘s interest relates to the subject of the action, (3) the disposition of the action will, as a practical matter, impair or impede the intervenor‘s ability to protect its interest, and (4) the intervenor must demonstrate that its interest is not adequately represented by the existing parties.
a. Timeliness
{¶ 16} In support of their first cross-assignment of error, appellees argue the trial court abused its discretion when it found, “In the present case, there is no question that Rep. Butler timely filed his motion to intervene.” Appellees argue Butler‘s ten-month delay from when the lawsuit was filed was untimely because “Representative Butler had
{¶ 17} We review a trial court‘s decision on the timeliness of a motion to intervene for an abuse of discretion. State ex rel. First New Shiloh Baptist Church v. Meagher, 82 Ohio St.3d 501, 503, 696 N.E.2d 1058 (1998). Timeliness is determined on the facts and circumstances of the case and upon consideration of the following factors:
“(1) the point to which the suit had progressed; (2) the purpose for which intervention is sought; (3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case; (4) the prejudice to the original parties due to the proposed intervenor‘s failure after he knew or reasonably should have known of his interest in the case to apply promptly for intervention; and (5) the existence of unusual circumstances militating against or in favor of intervention.”
Id., quoting Triax Co. v. TRW, Inc., 724 F.2d 1224, 1228 (6th Cir. 1984).
{¶ 18} The record shows that Butler filed his motion to intervene on October 20, 2017, which was ten months after appellees filed their original complaint, eight months
{¶ 19} We find Butler‘s motion to intervene was untimely in light of the dispositive motions pending before the trial court, his awareness of attempts to delay the implementation of
{¶ 20} Appellees’ first cross-assignment of error is well-taken.
b. Legally Protectable Interest
{¶ 21} In support of their second cross-assignment of error, appellees argue the trial court erred by finding that Butler had a “cognizable interest.” Appellees argue, “There * * * is no right of individual members of the Ohio General Assembly to intervene to defend laws they have sponsored or supported.” Appellees further argue where there is no question that
{¶ 22} To satisfy the second element of intervention, Butler‘s interest must be “‘legally protectable,’ i.e., protected by law.” Rumpke Sanit. Landfill, Inc. v. State, 128 Ohio St.3d 41, 2010-Ohio-6037, 941 N.E.2d 1161, ¶ 14.
{¶ 23} We find the trial court abused its discretion when it found Butler satisfied the second element, stating he “possesses an interest in the ‘transaction’ (litigating whether healthcare transparency statute is a constitutionally valid law).” Butler urges this court to find he has standing for a “legally protectable” interest on the authority of the holding in State ex rel. Ohio Gen. Assembly v. Brunner, 114 Ohio St.3d 386, 2007-Ohio-3780, 872 N.E.2d 912, ¶ 17, amended on other grounds, 115 Ohio St.3d 103,
{¶ 24} For all of the foregoing reasons, we find the trial court abused its discretion when it unreasonably and arbitrarily found Butler had a legally protected interest to justify intervention as of right.
{¶ 25} Appellees’ second cross-assignment of error is well-taken.
c. Impediment and Adequate Representation
{¶ 26} Given our determinations on the first and second elements of intervention, Butler‘s motion to intervene fails, and it is unnecessary for us to review the third and fourth elements: impediment and adequate representation. We will not disturb the trial court‘s findings that whatever Butler‘s interests may be, they are not impeded and are adequately represented by appellants and their attorneys.
{¶ 28} Butler‘s first assignment of error is not well-taken.
d. Permissive Intervention
{¶ 29} Intervention by permission is pursuant to
Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of this state confers a conditional right to intervene; or (2) when an applicant‘s claim or defense and the main action have a question of law or fact in common. * * * In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
{¶ 30} In its December 21, 2017 judgment entry, the trial court stated:
Rep. Butler also seeks permissive intervention in this lawsuit. Pursuant to
Civ.R. 24(B) , the Court must consider whether the intervention will “unduly delay or prejudice the adjudication of the rights of the original parties” and whether the “applicant‘s claim or defense and the main action have a question of law or fact in common.” Based upon all of the above considerations, this Court likewise denies Rep. Butler‘s request for permissive intervention underCiv.R. 24(B) .
{¶ 32} In response, both appellants and appellees argue that the trial court did not abuse its discretion, although appellants “do not object if Representative Butler is permitted to permissively intervene in this matter.”
{¶ 33} Butler does not point to any statute that confers on him a conditional right to intervene, so
{¶ 34} Butler seeks intervention as an additional defendant in order to oppose appellees’ motion for partial summary judgment. To succeed, Butler must show he has a common question of law or fact with appellants regarding the constitutionality of the enactment of Am.Sub.H.B. No. 52 with
{¶ 36} Butler‘s further claim that he should be permitted to intervene because his “[m]andamus action and this present case have common questions of law and fact” is also without merit. This court previously determined, “We find that Butler is able to file an action in mandamus, an original action, without intervention in the instant litigation.” Community Hosps. & Wellness Ctrs. v. State, 6th Dist. No. WM-18-001 (Sept. 19, 2018). Although Butler has not yet done so, if he proceeded to file a writ of mandamus to compel the Director of Medicaid to draft regulations pursuant to
{¶ 37} Even if there were commonality of law or fact, Butler‘s intervention is still not guaranteed. “In exercising its discretion, the court ‘shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.‘” State ex rel. Greene Cty. Bd. of Commrs. v. O‘Diam, 156 Ohio St.3d 458, 2019-Ohio-1676, 129 N.E.3d 393, ¶ 10.
{¶ 39} Despite Butler‘s claim to the contrary that his intervention would promote the efficient and consistent resolution of all legal claims in one proceeding, we find that granting intervention at this point would unduly delay the adjudication of this litigation without the addition of any genuine issue of material fact for summary judgment purposes. Id. at ¶ 14.
{¶ 40} We reviewed the record and find the trial court did not abuse its discretion, and the trial court‘s attitude was not unreasonable, arbitrary or unconscionable, when it denied Butler‘s motion to permissively intervene.
e. Intervenor Opposing Summary Judgment
{¶ 42} “A nonparty who seeks intervention under
{¶ 43} We find Butler‘s third assignment of error impermissibly moves past the issue of intervention to oppose the trial court‘s summary judgment decision. We further find Butler repeats support of appellants’ merit arguments to oppose appellees’ motion for partial summary judgment.
{¶ 44} Butler‘s third assignment of error is not well-taken.
II. Summary Judgment
A. Standard of Review
{¶ 45} The trial court‘s granting partial summary judgment in favor of appellees was a final appealable order. Gen. Acc. Ins. Co. v. Ins. Co. of N. America, 44 Ohio St.3d 17, 21-23, 540 N.E.2d 266 (1989) (declaratory judgment actions are special proceedings within the context of
{¶ 46} Summary judgment may be granted only “if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law * * * [and] that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party‘s favor.”
{¶ 47} When seeking summary judgment, a party must specifically delineate the basis upon which the motion is brought and identify those portions of the record that affirmatively demonstrate the absence of a genuine issue of material fact—not the reliance on conclusory assertions that non-movant has no evidence to prove its case—regarding an essential element of the non-movant‘s case. Beckloff v. Amcor Rigid Plastics USA, LLC, 6th Dist. Sandusky No. S-16-041, 2017-Ohio-4467, ¶ 14. When a properly supported motion for summary judgment is made, an adverse party may not rest on mere allegations or denials in the pleadings, but must respond with specific facts showing that there is a genuine issue of material fact for trial in accordance with
B. One-Subject Rule
{¶ 48} The
{¶ 49} In its February 13, 2019 judgment entry, the trial court granted appellees’ motion for partial summary judgment on Count Nos. I and V. In reaching its decision, the trial court made its findings after having received and reviewed “the history of the price transparency law from the perspective of [appellees], [appellants] and the sponsor of the legislation, Representative James Butler.” The trial court determined “that the portions of House Bill 52, as amended and which added the cost transparency statute (
{¶ 50} In support of its first assignment of error, appellants argue courts should adopt their broad view of the legislation‘s subject: “the way care is paid for and provided in Ohio.” Appellants argue, “H.B. 52 reflects legislative efforts to regulate, fund, and reduce the cost of healthcare across the state. * * * To further address the objective of
{¶ 51} In response, appellees argue
{¶ 52} “A statute cannot be enjoined unless it is unconstitutional. * * * The determination whether a statute or ordinance is constitutional is a question of law that we review de novo.” Cleveland v. State, 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 15.
{¶ 53} Our de novo review ignores arguments relating to the policy or wisdom of
follows:
{54} The Ohio Supreme Court explains the purpose of the one-subject rule as
[T]he one-subject rule was added to our Constitution in 1851 as a means of placing “concrete limits on the power of the General Assembly to proceed however it saw fit in the enactment of legislation.” Specifically, “[t]he primary and universally recognized purpose of [the one-subject rule] is to prevent logrolling – * * * 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.” The one-subject rule therefore is a constitutional limitation on the legislative power of the General Assembly. Thus, a constitutional challenge to an enactment of the General Assembly based on violation of the one-subject rule is a challenge to the authority of the General Assembly to enact the bill, not a challenge to the underlying statutory provisions of the bill. (Citations omitted.)
Rumpke, 128 Ohio St.3d 41, 2010-Ohio-6037, 941 N.E.2d 1161, at ¶ 20.
{55} “It is difficult to prove that a statute is unconstitutional. All statutes have a strong presumption of constitutionality.” Arbino v. Johnson & Johnson, 116 Ohio St.3d 468, 2007-Ohio-6948, 880 N.E.2d 420, ¶ 25, citing Sorrell at 418-419. “[B]efore a court may declare it unconstitutional it must appear beyond a reasonable doubt that the
“A manifestly gross and fraudulent violation of the one-subject provision contained in
{56} Logrolling is evidenced by unnatural combinations of provisions in a single bill so that legislators “may consolidate votes and pass provisions that may not have been acceptable to a majority on their own merits.” Groch at ¶ 202. The one-subject rule violation can be found where “the best explanation for the unnatural combination is a tactical one – logrolling. In other words, the one-subject provision does not require evidence of fraud or logrolling beyond the unnatural combinations themselves.” (Citation omitted.) Nowak at ¶ 71. “[W]here there is a blatant disunity between topics and no rational reason for their combination can be discerned, it may be inferred that the bill is a result of log-rolling.” Hoover v. Bd. of Cty. Commrs., Franklin Cty., 19 Ohio St.3d 1, 6, 482 N.E.2d 575 (1985).
{57} “The one-subject rule does not prohibit a plurality of topics, only a disunity of subjects.” State ex rel. Ohio Civ. Serv. Emps. Assn. v. State, 2016-Ohio-478, 56 N.E.3d 913, ¶ 17. There is no disunity of subjects if multiple topics are germane to one subject and brought together “not * * * for purposes of logrolling but for the purposes of bringing greater order and cohesion to the law or of coordinating an improvement of the law‘s substance.” Id., quoting Dix at 145.
{58} “[I]dentification of a bill‘s subject is a question of law, which depends ‘upon the particular language and subject matter of the proposal.’ No fact-finding is necessary.” (Citation omitted.) Id. at ¶ 21. Determining a bill‘s subject and the connection of topics can be understood as points along a spectrum.
At one end, closely related topics unite under a narrowly denominated subject. As the topics embraced in a single act become more diverse, and as their connection to each other becomes more attenuated, so the statement of subject necessary to comprehend them broadens and expands. There comes a point past which a denominated subject becomes so strained in its effort to cohere diverse matter as to lose its legitimacy as such. It becomes a ruse by which to connect blatantly unrelated topics. At the farthest end of this spectrum lies the single enactment which endeavors to legislate on all matters under the heading of “law.”
Sheward, 86 Ohio St.3d at 499, 715 N.E.2d 1062.
{59} The one-subject rule is mandatory. Ohio Civ. Serv. Emps. Assn. at ¶ 16, citing Nowak, 104 Ohio St.3d 466, 2004-Ohio-6777, 820 N.E.2d 335, at ¶ 54. Courts must not abdicate their duty to enforce the
“(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?”
Cleveland, 138 Ohio St.3d 232, 2014-Ohio-86, 5 N.E.3d 644, at ¶ 19, quoting Geiger v. Geiger, 117 Ohio St. 451, 466, 160 N.E. 28 (1927). “[O]nly in the rare instance when we have been unable to discern a primary subject have we resorted to invalidating an entire bill.” Ohio Civ. Serv. Emps. Assn. at ¶ 22.
{60} We reviewed de novo the journals of the Ohio House and Senate and find that as introduced in the Ohio House on February 10, 2015, H.B. No. 52 proposed to amend
{61} Then when the Ohio Senate passed Sub.H.B. No. 52 on June 25, 2015, the substance of the bill‘s title remained identical as passed by the House on March 11, 2015, with the substitution being the Senate‘s addition to add more sponsor names to the title and to mandate the BWC Administrator conduct a cost reduction study and report the results to both chambers of the General Assembly.
{62} The Senate journal shows that upon reconsideration of its passage, the Senate amended the bill later on June 25, 2015, to specifically insert enacting
To amend sections
119.12 ,4121.129 ,4121.37 ,4121.61 ,4121.65 ,4121.66 ,4121.67 ,4121.68 ,4123.01 ,4123.291 ,4123.34 ,4123.343 ,4123.35 ,4123.351 ,4123.411 ,4123.419 ,4123.512 ,4123.56 , and4123.59 , to enact section5162.80 , and to repeal section4121.48 of theRevised Code to make changes to the Workers’ Compensation Law, to makeappropriations for the Bureau of Workers’ Compensation for the biennium beginning July 1, 2015, and ending June 30, 2017, and to provide authorization and conditions for the operation of the Bureau‘s programs. (Emphasis added.)
When the House concurred on June 26, 2015, with the Senate‘s eventual passage of Am.Sub.H.B. No. 52, the bill‘s title was no longer identical to the bill‘s title when introduced or as originally passed by both chambers of the Ohio General Assembly.
{63} As a matter of law we find the primary subject of Am.Sub.H.B. No. 52 is broadly regarding BWC operations and budget considerations for the period of July 1, 2015 to June 30, 2017. Although Ohio‘s Price Transparency Law is a relatively small portion of Am.Sub.H.B. No. 52, as a matter of law we find the broad subject of
{64} On de novo review, we find beyond a reasonable doubt that Am.Sub.H.B. No. 52 violates the one-subject rule contained in
{65} Appellant‘s first assignment of error is not well-taken.
III. Three-Considerations Rule
{66} The
{67} In its February 13, 2019 judgment entry, the trial court found, “Each chamber of the General Assembly satisfied the three-reading rule prior to the amendment adding the terms of
{68} In support of their second assignment of error, appellants argue the trial court erred by engaging in judicial overreach. Appellants argue “the addition of the Price Transparency Law did not change the single-subject of the bill and certainly did not vitally alter its common purpose so as to require each chamber of the General Assembly to consider the bill three more times.”
{69} In response, appellees argue the trial court did not err to prevent “the type of legislative gamesmanship that the three-considerations rule was designed to guard against.” Appellees argue
{70} The
In 1973 the
{71} We reviewed de novo the Ohio House and Senate journals and find beyond a reasonable doubt that Am.Sub.H.B. No. 52 violates the three-considerations rule contained in
{72} Appellants’ second assignment of error is not well-taken.
{73} On consideration whereof, the judgments of the Williams County Court of Common Pleas are affirmed. Appellants and Butler are jointly ordered to pay the costs of this appeal pursuant to
Judgments affirmed.
Community Hosps. &
Wellness Ctrs. v. Ohio
C.A. Nos. WM-19-001
WM-19-002
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. ___________________________
JUDGE
Arlene Singer, J. ___________________________
JUDGE
Thomas J. Osowik, J. ___________________________
JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.