GARRY KANTER v. CITY OF CLEVELAND HEIGHTS
No. 104375
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 23, 2017
[Cite as Kanter v. Cleveland Hts., 2017-Ohio-1038.]
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-15-853953
BEFORE: Boyle, J., Keough, A.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: March 23, 2017
ATTORNEY FOR APPELLANT
Warner Mendenhall 190 N. Union Street, Suite 201 Akron, Ohio 44304
ATTORNEYS FOR APPELLEE
L. James Juliano Law Director Kevin P. Roberts Elizabeth Wells Rothenberg Assistant Directors of Law City of Cleveland Heights 40
MARY J. BOYLE, J.:
{¶1} Relator-appellant, Gary Kanter (“Kanter“), a resident of Cleveland Heights, appeals a judgment dismissing his complaint against respondent-appellee, city of Clevеland Heights. Kanter raises one assignment of error for our review:
The trial court erred in dismissing relator‘s complaint due to the fact that relator alleged facts that, if taken as admitted (as they must be in a motion to dismiss), entitled him to recovery.
{¶2} Finding no merit to his assigned error, we affirm.
I. Procedural History
{¶3} In November 2015, Kanter filed a complaint against the city of Cleveland
{¶4} Pursuant to
{¶5} Cleveland Heights moved to dismiss Kanter‘s complaint pursuant to Civ.R. 12(B)(6). In its motion, Cleveland Heights argued that the complaint failed to state a claim upon which relief could be granted because Cleveland Heights operated under its sovereign power pursuant to home rule аuthority provided in the Ohio Constitution, its charter, and its codified ordinances. Cleveland Heights asserted that where local rules differ from the state‘s general laws, such as the Sunshine Law at issue here (the Open Meetings Act), the local rule prevails.
{¶6} The trial court granted Cleveland Heights’ motion and dismissed Kanter‘s complaint. It is from this judgment that Kanter now appeals.
II. Standard of Review
{¶7} We review an order dismissing a complaint for failure to state a claim for relief de novo. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5. When reviewing a Civ.R. 12(B)(6) motion to dismiss, we must accept the material allegations of the complaint as true and make all reasonable inferences in favor of the plaintiff. Johnson v. Microsoft Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, 834 N.E.2d 791, ¶ 6. While the factual allegations of the complaint must be taken as true, “[u]nsupported conclusions of a complaint are not considered admitted * * * and are not sufficient to withstand a motion to dismiss.” State ex rel. Hickman v. Capots, 45 Ohio St.3d 324, 324, 544 N.E.2d 639 (1989). For a defendant to prevail on the motion, it must appear from the face of the complaint that the plaintiff can prove no set of facts that would justify a court in granting relief. O‘Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 245, 327 N.E.2d 753 (1975). “Under these rules, a plaintiff is not required to prove his or her case at the pleading stage. * * * [A]s long as there is a set of facts, consistent with the plaintiff‘s complaint, which would allow the plaintiff to recover, the court may not grаnt a defendant‘s motion to dismiss.” York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 144-145, 573 N.E.2d 1063 (1991).
{¶8} Kanter further sought relief in mandamus.
III. Ohio‘s Open Meetings Act and CHCO 107.04
{¶9} In his sole assignment of error, Kanter contends that the trial court erred when it dismissed his complaint against Cleveland Heights for failure to state a claim. He argues that he is entitled to relief pursuant to
{¶10} Ohio‘s “Sunshine Laws” include Ohio‘s Public Records Act and Ohio‘s Open Meetings Act. See Ohio Attorney General Mike Dewine, Ohio Sunshine Laws 2016: An Open Government Resource Manual, http://www.ohioattorneygeneral.gov/yellowbook (accessed Feb. 21, 2017). Ohio‘s Open Meetings Act, set forth in
The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspection. The minutes need only reflect the general subject matter of discussions in executive sessions authorized under division (G) or (J) of this section.
{¶11}
Any person may bring an action to enforce this section. An action under division (I)(1) of this section shall be brought within two years after the date of the alleged violation or threatened violation. Upon proof of a violation or threatened violation of this section in an action brought by any person, the court of common pleas shall issue an injunction to compel the members of the public body to comply with its provisions.
{¶12} Cleveland Heights counters that the trial court properly dismissed Kanter‘s complaint. It argues that under the Home Rule Amendment of the Ohio Constitution, municipalities that have adopted a city
{¶13}
The minutes of all regular, special and emergency meetings of Council, shall be promptly recorded in writing and open to the public for inspection. Minutes оf Council committee meetings may be recorded in writing. Minutes of executive sessions of public bodies need only reflect the general subject matter of discussion in such executive sessions.
(Emphasis added.)
{¶14} We must, therefore, determine if the trial court properly dismissed Kanter‘s complaint because, as Cleveland Heights contends, it was not required to follow Ohio‘s Open Meetings Act pursuant to its power of local self-government provided under the Home Rule Amendment.
IV. Home Rule Amendment and Cleveland Heights’ Charter
{¶15} The Home Rule Amendment of the Ohio Constitution resolves the question of the power of local self-government under a city charter. Piqua v. Piqua Daily Call, 64 Ohio App.2d 222, 225, 412 N.E.2d 1331 (2d Dist.1979). Home Rule gives municipalities a sovereignty over matters of local government. In such matters, if a provision of a municipal charter conflicts with state law, the charter provisions will prevail. State ex rel. Bardo v. Lyndhurst, 37 Ohio St.3d 106, 108-109, 524 N.E.2d 447 (1988), citing State ex rel. Devine v. Hoermle, 168 Ohio St. 461, 156 N.E.2d 131 (1959), and State ex rel. Allison v. Jones, 170 Ohio St. 323, 164 N.E. 2d 417 (1960); see also State ex rel. Lightfield v. Indian Hill, 69 Ohio St.3d 441, 442, 633 N.E.2d 524 (1994).
{¶16} The Home Rule Amendment, set forth in the
{¶17} Municipalities do not have to enact a charter to have the power over local self-government provided to them in the Ohio Constitution. N. Ohio Patrolmen‘s Benevolent Assn. v. Parma, 61 Ohio St.2d 375, 379-380, 402 N.E.2d 519 (1980). But municipalities exercise the powers of local self-government to the fullest by adopting а charter pursuant to
{¶18} The words “as are not in conflict with general laws” in
{¶19} In Mendenhall v. Akron, 117 Ohio St.3d 33, 2008-Ohio-270, 881 N.E.2d 255, the Ohio Supreme Court explained
{¶20} 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.2 If the state statute is a general law, then the local ordinance must give way if it conflicts with the general law. Id. at ¶ 17-18.
{¶21} 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. If there is no conflict, the municipal action is permissible even though the statute is a general law. Id.
V. Analysis
{¶22} Kanter concedes that
{¶23} Article II of the Cleveland Heights’ charter states:
The City of Cleveland Heights shall have all powers of local self-government now or hereafter granted to municipalities by the Constitution and laws of Ohio, and such further powers as may now or hereafter be granted by the laws of Ohio; and all such powers shall be exercised in the manner prescribed by this Charter or by ordinances of the Council created hereby.
{¶24} Article III, Section 8 of the city‘s charter further provides that “[t]he Council shall determine its own rules and order of business, provide for special meetings and keep a journal of its proceedings.”
{¶25} Thus, the city‘s charter establishes that city council will determine its own rules and order of business; that is, the city‘s charter expressly states that city council will follow its own rules, and not the rules of the state.
{¶26} Kanter further argues that even if this court determines that Cleveland
{¶27} Although we have already set forth the language of the statute and ordinance at issue,
The minutes of all regular, special and emergency meetings of council, shall be promptly recorded in writing and open to the public for inspection. Minutes of Council committee meetings may be recorded in writing. Minutes of executive sessions of public bodies need only reflect the general subject matter of discussion in such executive sessions.
{¶28}
The minutes of a regular or special meeting of any public body shall be promptly prepared, filed, and maintained and shall be open to public inspеction. The minutes need only reflect the general subject matter of discussions in executive sessions authorized under division (G) or (J) of this section.
{¶29} After comparing the ordinance and statute, it is clear that unlike
{¶30} Kanter further maintains that because
{¶31} Finally, Kanter asserts in his second “proposition of law” essentially that Cleveland Heights did not follow the mandates of
{¶32} In Long, the Ohio Supreme Court held that village council members had to prepare, file, and maintain full and accurate minutes of their public meetings pursuant to
{¶33} Indeed, the Ohio Supreme Court has stated that it is axiomatic that an ordinance, “if enacted by a chartered municipality, would prevail over the state law irrespective of any conflict.” N. Ohio Patrolmen‘s Benevolent Assn., 61 Ohio St.2d at 378, citing Mullen v. Akron, 116 Ohio App. 417, 188 N.E.2d 607 (9th Dist.1962). The issue in N. Ohio Patrolmen‘s was “whether a nonchartered municipality [had] similar powers to enact an ordinance in matters of local self-government [that] are at variance with state law.” Id. The Supreme Court held that a nonchartered municipality must follow state law on procedural matters, but may enact and follow its ordinances on substantive matters. Id. at 382-383.
{¶34} We find the present case more analogous to Hills & Dales, 4 Ohio App.3d 240, 448 N.E.2d 163 (9th Dist.). In Hills & Dales (“Hills & Dales“), a corporation sought a declaration that the city‘s new zoning code was invalid because it had been enacted in violation of Ohio‘s Open Meeting Act set forth in
{¶35} The Ninth District disagreed with Hills & Dales, holding that the city was not required to follow the mandates of
First, appellant‘s proposition that the “Sunshine Law” falls within the ambit of the state‘s general police powers is without judicial support. The “police powers” of the state encompass the areas of public health, safety, morals and general welfare. Courts which have reached the issuе have unanimously indicated that
R.C. 121.22 is not a police power statute. See Beacon Journal Publishing Co. v. Akron (1965), 3 Ohio St.2d 191, at 195 [32 O.O.2d 183]; and Piqua v. Piqua Daily Call (1979), 64 Ohio App.2d 222, at 225 [18 O.O.3d 168], motion to certify overruled (1979).Second, and most importantly, we are of the opinion that the procedure by which the municipality conducts its decision-making process is a matter solely within the purview of the powers of a chartered local self-government. Once this determination has been made, it makes little difference whether the “Sunshine Law” is a “general law” or a lаw of “statewide concern,” for in such a case, the constitutionally granted power of local self-government reigns supreme. See State, ex rel. Canada, v. Phillips, [168 Ohio St. 191, 151 N.E.2d 722 (1958)]; Dies Electric Co. v. Akron, [62 Ohio St.2d 322, 405 N.E.2d 1026 (1980)]; and Justice Locher‘s dissent in State, ex rel. Evans, v. Moore, [69 Ohio St.2d 88, 95-96, 431 N.E.2d 311(1982)].
{¶36} The Ninth District held in Hills & Dales “that a charter municipality, in
Although zoning regulations themselves fall within the definition of police powers, this is not a case where thе municipality‘s zoning ordinance is alleged to be in conflict with a general law of the state. This is a case which concerns a charter municipality‘s fundamental power to control the manner in which the local government decision-making process is conducted.
{¶37} Likewise, in Piqua, 64 Ohio App.2d 222, 412 N.E.2d 1331, Piqua Daily Call, a newspaper, sued the city of Piqua, a charter municipality, demanding “an injunction and rescission of all municipal resolutions and ordinances” that resulted from meetings that were not held open to the public in violation of
It is of the essence of home rule and of self-government that the sovereign body that has that power, whether described as a commission, council, аssembly or otherwise, has the inherent power to carry on its duties according to its own rules. Were it otherwise, home rule and self-government would become a fiction, and the purpose of the constitutional amendment would be denied.
* * *
* * * [
R.C. 121.22 ] does not and cannot amend the home rule provision of the Constitution which alone resolves the question of the power of local self-government under a city charter. Legislation that attempts to restrict the sovereign power of local self-government or the rules by which a local legislative assembly manages local affairs has no application to charter cities. The right to tell a charter city commission or assembly when, how, where and under what circumstances it may meet, adjourn or hold an executive meeting no longer exists in the General Assembly. This segment of sovereignty has been assigned, by the Constitution, to charter cities, and it is one in which the state, as a whole, no longer has any residual interest.
{¶38} Thus, after review, Kanter‘s first “proposition of law” (where he argues that
{¶39} Kanter‘s sole assignment of error is overruled.
{¶40} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
KATHLEEN ANN KEOUGH, A.J., and EILEEN A. GALLAGHER, J., CONCUR