OHIOANS FOR CONCEALED CARRY, INC., et al. v. CITY OF OBERLIN, OHIO
C.A. No. 15CA010781
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
January 9, 2017
[Cite as Ohioans for Concealed Carry, Inc. v. Oberlin, 2017-Ohio-36.]
CANNON, Judge.
STATE OF OHIO COUNTY OF LORAIN ss: APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 13CV181618
Dated: January 9, 2017
CANNON, Judge.
{¶1} Plaintiffs-Appellants Ohioans for Concealed Carry, Inc., Brian J. Kuzawa, and Janae R. Kuzawa (collectively “OCC“) appeal the judgment of the Lorain County Court of Common Pleas. For the reasons set forth below, we affirm in part, and reverse in part.
I.
{¶2} Mr. and Mrs. Kuzawa were frequent visitors to Oberlin city parks. On August 2, 2013, Mr. Kuzawa noticed a sign in an Oberlin park indicating that firearms were not permitted in the park. Mr. Kuzawa believed that the ordinance conflicted with
{¶3} On October 1, 2013, OCC filed a complaint against Oberlin seeking a declaratory judgment that Oberlin Codified Ordinances 927.07 (prohibiting the possession of firearms in city parks and recreation areas) and 375.03 were unlawful and in violation of
{¶4} Shortly thereafter, on October 3, 2013, OCC amended its complaint, pointing out that Oberlin had amended the language of Oberlin Codified Ordinance 927.07 to prohibit the unlawful possession of firearms in city parks and recreation areas. Additionally, OCC alleged that Oberlin Codified Ordinances 927.07, 549.02, 549.04, 549.10, 549.12, as well as other unspecified ordinances, were unlawful and in violation of
{¶5} On November 18, 2013, Oberlin adopted a resolution repealing Oberlin Codified Ordinances 549.02 through 549.07, 549.10, and 549.12. Thereafter, Oberlin filed a motion for partial summary judgment asserting that the declaratory judgment action was moot with respect to any alleged conflict between
{¶6} In ruling on the pending motions, the trial court determined that there was no longer a controversy involving the repealed ordinances, that Oberlin Codified Ordinance 927.07 was lawful and constitutional, and that, with respect to the award of attorney fees under
{¶7} OCC has appealed, raising three “[i]ssue[s]” for our review, which will be addressed out of sequence to facilitate our analysis.1
II.
ASSIGNMENT OF ERROR II
[OBERLIN‘S] LAST REMAINING ORDINANCE CONCERNING FIREARMS IN CITY PARKS IS PROHIBITED BY
R.C. []9.68 .
{¶9} We review an award of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105 (1996). We apply the same standard as the trial court, viewing the facts of the case in the light most favorable to the non-moving party and resolving any doubt in favor of the non-moving party. Viock v. Stowe-Woodward Co., 13 Ohio App.3d 7, 12 (6th Dist.1983).
{¶10} Pursuant to
(1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party.
Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). The party moving for summary judgment bears the initial burden of informing the trial court of the basis for the motion and pointing to parts of the record that show the absence of a genuine issue of material fact. Dresher v. Burt, 75 Ohio St.3d 280, 292-93 (1996). “If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied.” Id. at 293. If the moving party fulfills this burden, then the burden shifts to the nonmoving party to prove that a genuine issue of material fact exists. Id.
{¶11} With respect to actions for declaratory judgment, “an appellate court * * * should apply an abuse-of-discretion standard in regard to the trial court‘s holding concerning the appropriateness of the case for declaratory judgment, i.e., the matter‘s justiciability, and should apply a de novo standard of review in regard to the trial court‘s determination of legal issues in
{¶12} The question before this Court is whether Oberlin Codified Ordinance 927.07 as amended conflicts with
{¶13} “Section 3, Article XVIII of the Ohio Constitution, commonly known as the Home Rule Amendment, gives municipalities the ‘authority 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.‘” Cleveland v. State, 128 Ohio St.3d 135, 2010-Ohio-6318, ¶ 7, quoting
{¶14} “A home-rule analysis presents a three-step process. The first step is to determine whether the ordinance at issue involves an exercise of local self-government or an exercise of local police power.” (Internal quotations and citations omitted.) Ohioans for Concealed Carry, Inc. v. Clyde, 120 Ohio St.3d 96, 2008-Ohio-4605, ¶ 24. “If the ordinance is one relating solely to matters of self-government, the analysis stops, because the Constitution authorizes a municipality to exercise all powers of local self-government within its jurisdiction.” (Internal quotations and citations omitted.) Clyde at ¶ 24.
{¶15} The parties do not dispute that the ordinance is an exercise of police power. See id. at ¶ 34. “The second step, which becomes necessary if the local ordinance is an exercise of police power, requires a review of the statute to determine whether it is a general law[.]” Id. at ¶ 25. The Supreme Court of Ohio has already determined that
{¶16} “The final step in the analysis, therefore, is to determine whether the ordinance conflicts with the statute, i.e., whether the ordinance permits or licenses that which the statute forbids * * *, and vice versa.” (Internal quotations and citations omitted.) Clyde at ¶ 26; see also State ex rel. Morrison v. Beck Energy Corp., 143 Ohio St.3d 271, 2015-Ohio-485, ¶ 24.
{¶17}
The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition. Except as specifically provided by the United States Constitution, Ohio Constitution, state law, or federal law, a person, without further license, permission, restriction, delay, or process, may own, possess, purchase, sell, transfer, transport, store, or keep any firearm, part of a firearm, its components, and its ammunition.
(Emphasis added.)
{¶18} Oberlin Codified Ordinance 927.07 as amended states in relevant part that, “[t]he unlawful possession, use or discharge of any type of a firearm * * * within a City park or recreation area is strictly forbidden. * * * The term ‘firearm’ as used in this section shall have the same meaning as in Ohio
{¶19} The trial court concluded that Oberlin‘s ordinance “complements rather than conflicts with
{¶20} Here, we conclude that Oberlin Codified Ordinance 927.07 does not prohibit that which
{¶21} Thus, we cannot say that that trial court erred in finding Oberlin Codified Ordinance 927.07 valid and not in conflict with
ASSIGNMENT OF ERROR I
[OBERLIN] REFUSED FOR SEVEN YEARS TO COMPLY WITH
R.C. []9.68 AND REPEALED ITS UNLAWFUL FIREARM ORDINANCES ONLY AFTER IT WAS SUED BY [OCC]. THE CASE IS NOT MOOT BECAUSE [OCC] [IS] ENTITLED TO DECLARATORY JUDGMENT, ATTORNEY FEES AND COSTS.
{¶23} As we noted above, “the abuse-of-discretion standard applies to the review of a trial court‘s holding regarding justiciability; [and,] once a trial court determines that a matter is appropriate for declaratory judgment, its holdings regarding questions of law are reviewed on a de novo basis.” Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 13. “To be justiciable, a controversy must be grounded on a present dispute, not on a possible future dispute.” Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, ¶ 17.
{¶24} OCC‘s amended complaint sought declarations that the now-repealed ordinances were unlawful and in violation of
{¶25} Nonetheless, OCC argues that it is still entitled to a declaration that it prevailed in a challenge under
{¶26}
{¶27} OCC argues that it did prevail in a challenge because Oberlin only repealed the ordinances after OCC initiated this suit. Thus, OCC argues it caused the repeal of the ordinances, and thus, prevailed in a challenge. OCC additionally points out that
{¶28} Neither “prevail” nor “challenge” is defined in the statute, and thus, we look to the ordinary meaning of the words. Anderson v. Barclay‘s Capital Real Estate, Inc., 136 Ohio St.3d 31, 2013-Ohio-1933, ¶ 16, 29. “[P]revail” has been defined as “[t]o obtain the relief sought in an action; to win a lawsuit[.]” Black‘s Law Dictionary 1226 (8th Ed.2004). “[C]hallenge” has been defined as “[a]n act or instance of formally questioning the legality or legal qualifications of a person, action or thing[.]” Black‘s Law Dictionary 244 (8th Ed.2004).
{¶29} While these definitions could possibly lead to an interpretation that would not extend recovery to OCC under the circumstances, it is important to keep in mind not only the summary judgment standard, but also the opening language of
The importance placed upon this provision is amplified by subsection (B), which makes the award of attorney fees mandatory if any person or entity “prevails in a challenge to an ordinance * * * as being in conflict” with the statute.
{¶30} In support of its request for summary judgment on the attorney fee issue, Oberlin cited two unreported common pleas cases in support of its position. Both cases are clearly distinguishable. The first is Buckeye Firearms Foundation, Inc., v. Cleveland, Cuyahoga C.P. No. CV 09 685734. In that case, plaintiff filed suit in March of 2009 against the City of Cleveland challenging its ordinance. However, Cleveland had filed a declaratory judgment suit two years earlier in March of 2007 against the State of Ohio seeking to have
{¶31} In the second case, Ohioans for Concealed Carry, Inc. v. Campbell, Mahoning C.P. No. 10 CV 1487, the plaintiff filed suit in April of 2010. The suit was served on the City of Campbell on May 20, 2010. Four weeks prior to being served with the complaint, the city repealed its ordinance. In addition, the Ohio Supreme Court decision in the Cleveland case was not issued until December 29, 2010.
{¶32} We have a much different scenario here. In the amended complaint, OCC alleged that Oberlin was aware that its ordinances were unlawful, and that “* * * despite [OCC‘s] efforts to have the ordinances repealed or properly amended, [Oberlin] * * * abjectly refused to take appropriate action.” Because Oberlin did not repeal the ordinances, suit was filed. OCC submitted evidentiary materials that show it made clear communication to Oberlin prior to filing suit about the ordinances in question. The minutes from the meetings of council and other evidence OCC filed during its summary judgment motion practice suggest the ordinances were repealed as direct result of the lawsuit filed by OCC herein. In other words, there was some evidence presented that, but for this lawsuit, the ordinances might well still be in effect. Accordingly, a trier of fact could conclude that OCC accomplished by filing the lawsuit what it could not accomplish without it. We thus disagree that “relief sought” has to be given in the form of a court order. See Black‘s at 1226. If it did, it would appear that one could never “prevail” in a challenge such as this because a city could simply repeal an ordinance in conflict with the state and federal laws after suit was filed. See id. The legislature could not have intended that result given its clear statement of intention. See
ASSIGNMENT OF ERROR III
[OBERLIN‘S] PARK ORDINANCE IS UNCONSTITUTIONALLY VAGUE.
{¶33} OCC asserts in its third assignment of error that Oberlin Codified Ordinance 927.07 is unconstitutionally vague and the trial court erred in failing to declare it unconstitutional.
{¶34} First, we note that it is not clear from the trial court‘s entry that it addressed this issue. While the trial court in its judgment entry did declare Oberlin Codified Ordinance 927.07 to be valid and constitutional, it appears that it was only concluding that Oberlin Codified Ordinance 927.07 did not conflict with
{¶35} We conclude that the trial court did not err in failing to address OCC‘s argument because the trial court was without jurisdiction to do so. OCC did not in its complaint or amended complaint seek a declaration that Oberlin Codified Ordinance was unconstitutionally vague. In fact, it did not raise this issue until it moved for summary judgment.
{¶36} There is no dispute that OCC‘s action is one seeking declaratory judgment.
Subject to division (B) of this section, when 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. Except as provided in division (B) of this section, a declaration shall not prejudice the rights of persons who are not 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. In any action or proceeding that involves the validity of a township resolution, the township shall be made a party and shall be heard.
(Emphasis added.)
{¶37} In interpreting a prior version of the statute that was more ambiguous and only required that the attorney general “be served with a copy of the proceeding[,]” the Supreme Court nonetheless concluded that “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
{¶38} Here, OCC did not assert in its complaint or amended complaint a claim that the ordinance was unconstitutionally vague, and accordingly, OCC could not have served the attorney general with a copy of a pleading that would have provided the attorney general with notice of OCC‘s claim that the ordinance was unconstitutionally vague.2 Therefore, the trial
III.
{¶39} In light of the foregoing, OCC‘s second and third assignments of error are overruled. OCC‘s first assignment of error is sustained to the extent discussed above. The judgment of the Lorain County Court of Common Pleas is affirmed in part, reversed in part, and this matter is remanded for proceedings consistent with this opinion.
Judgment affirmed in part, reversed in part, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed equally to both parties.
TIMOTHY P. CANNON
FOR THE COURT
CARR, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶40} I concur with the lead opinion‘s resolution of the second and third assignments of error. I concur in judgment only as it relates to the first assignment of error because I would analyze it differently.
{¶41} I agree that the trial court‘s judgment related to attorney fees must be reversed. In its order, the trial court decided as a matter of law that OCC was not entitled to attorney fees. The lead opinion applies the summary judgment standard and concludes that a genuine issue of material fact remains on this point. I would instead reverse the trial court‘s judgment and remand for the trial court to consider this question in the first instance. State v. Bracy, 9th Dist. Lorain Nos. 15CA010788 and 15CA010795, 2016-Ohio-7536, ¶ 21. “[W]hen the trial court fails to address a claim in the first instance, we are left with no choice but to reverse the judgment and remand the matter for the trial court to address it.” Wilmoth v. Akron Metro. Hous. Auth., 9th Dist. Summit No. 27746, 2016-Ohio-3441, ¶ 25. Because I agree that the trial court erred when it found OCC was not entitled to attorney fees as a matter of law, I would reverse that part of its judgment and remand for the trial court to address it.
MOORE, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶42} I concur with the most of the lead opinion‘s analysis. However, I respectfully dissent from the lead opinion‘s determination that a genuine issue of material fact remains with respect to whether OCC is entitled to an award of attorney fees pursuant to
{¶43} I agree with the definitions used by the lead opinion. Nonetheless, I would conclude that when those definitions are considered in light of the statutory language, the plain language of the statute does not contemplate recovery under the circumstances of this case.
{¶44} Here, prior to the trial court determining whether Oberlin Codified Ordinances 549.02-549.07, 549.10, and 549.12 conflicted with
(Cannon, J., of the Eleventh District Court of Appeals, sitting by assignment.)
APPEARANCES:
DAVID S. KESSLER, Attorney at Law, for Appellants.
ABRAHAM CANTOR, Attorney at Law, for Appellee.
JON D. CLARK, Law Director, for Appellee.