William Malson, Associate Member, University of Cincinnati Law Review
In 2003, the City of Cleveland (“the City”) passed the “Fannie Lewis Law,” requiring public-construction contracts of $100,000 or more to mandate that city residents perform 20% of the total hours worked under the contract. The penalty for failure to comply with this contractual term included damages of up to 2.5% of the final amount of the contract. In 2006, the General Assembly enacted R.C. 9.75, which prohibited a public authority from requiring a contractor for public improvements to employ a certain number or percentage of city residents, in direct conflict with the Fannie Lewis Law. In response, the City challenged the constitutionality of R.C. 9.75, claiming that the General Assembly improperly invoked Oh. Const. art. II, § 34, pertaining to the welfare of employees, and that the statute infringed upon the City’s “Home Rule” authority under article XVIII, §§ 3 and 7, granting municipalities the power of local self-government. Until 1989, these provisions were interpreted in favor of local self-government. Over the next thirty years, these provisions lost almost all power, culminating in a radical expansion of § 34 in City of Cleveland v. State, decided on September 24, 2019.
This article discusses how the Supreme Court has eroded Home Rule since 1989 by expanding the scope of article II, § 34, and recommends that the Supreme Court of Ohio should reconsider Cleveland and overturn the case that contributed to its recent ruling, City of Rocky River v. State Emp. Rels. Bd., 43 Ohio St.3d 1, 539 N.E.2d 103 (1989).
II. Home Rule
Oh. Const. art. XVIII, § 7 grants municipalities power to adopt a charter for its government and exercise all powers of local government, subject to § 3, which additionally grants municipalities the authority “to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” These local and municipal powers are referred to as “home rule powers.” Before 1989, the court had consistently held that general laws of Ohio could only affect the latter portion of § 3, namely, the power to enforce local police, sanity and other similar regulations. All other aspects of home rule were given, constitutionally, to municipalities. To effectuate this distinction, the “statewide concern doctrine” emerged in 1929. As a later court would put it, “[i]t is a fundamental principle of Ohio law that, pursuant to the ‘statewide concern’ doctrine, a municipality may not, in the regulation of local matters, infringe on matters of a general and statewide concern.” Thus, if a local regulation affects the general public of the state as a whole more than the local inhabitants, the matter passes to the General Assembly. This doctrine cut both ways: an Ohio law that was not on a matter of statewide concern unconstitutionally infringed upon local powers of self-government. That all changed with Rocky River.
The Rocky River court upheld an Ohio law requiring binding arbitration between a city and its safety forces in the event of a collective bargaining issue. In doing so, it changed its historical interpretation of § 3 to include, under the general laws exception, the entirety of local self-government, “effectively read[ing] the home-rule provisions right out of the Ohio Constitution.” In effect, the statewide concern doctrine was eliminated, and the general laws of Ohio superseded home rule.
III. Article II, § 34
In the same decision, the Rocky River court expanded the state’s power under article II, § 34. § 34 grants the General Assembly the power to regulate the hours of labor, establish a minimum wage, and “provid[e] for the comfort, health, safety and general welfare of all employes; and no other provision of the constitution shall impair or limit this power.” The court held that the language of § 34 was “clear, certain and unambiguous,” and that collective bargaining was “indisputably concerned with the ‘general welfare’ of employees.” Thus, the Ohio law constitutionally superseded local law. This decision laid the groundwork for the court to uphold, in City of Lima v. State, state prohibitions on political subdivisions from requiring its employees to reside within the city, and most recently, R.C. 9.75.
In holding that the general welfare clause applies to city regulations on public-construction contracts, the Cleveland court defined “comfort” and “welfare” so broadly that it’s difficult to see how future legislation even remotely related to employees would fall outside the state’s power. “Comfort” includes “free[dom] from want or anxiety; mental ease or satisfaction or material well-being.” “Welfare” includes “[s]tate of faring, or doing, well.” Armed with the Cleveland court’s interpretation, the General Assembly could justify any regulation in the name of worker anxiety, satisfaction, or “doing well”—truly an incredibly power.
What makes expansion of § 34 so dangerous to home rule is its final clause, that “no other provision of the constitution shall impair or limit this power.” By expanding its scope, the court gives the General Assembly carte blanche—limited only by the U.S. Constitution—as long as its legislation somehow affects the welfare of employees. In effect, the legislature may “advance the general welfare of employees notwithstanding other protections secured by the [Ohio] Bill of Rightsor the Home Rule Amendment” (emphasis added).
IV. General Laws
The final protection of municipalities is the court’s test of general laws. Despite the obvious trend of the court to erode home rule with the practical elimination of the statewide concern doctrine and the expansion of § 34, courts still devised a test, fully assembled in City of Canton v. State, that limited the state’s authority over municipalities:
To constitute a general law for purposes of home-rule analysis, 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.
This test was followed by the court in 2017 in City of Dayton v. State,but it may not be around for long. Justice DeWine, in his concurring opinion in Cleveland, recommends replacing the general laws test with a definition found in the 1910 edition of Black’s Law Dictionary:
A law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, which, having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special or local law, but a general law.
Such a broad definition leaves municipalities with almost no protection against state encroachments on home rule. Effectively, any law that applies statewide would be a general law—and would supersede home rule.
V. The Court Should Overturn Rocky River and Cleveland
DeWine is right to reject the new general law test. As originally understood, “general law” was a highly inclusive term. But the state’s power under article II, § 34, and article XVIII, §§ 3 and 7, was not.
§ 34: General Welfare of Employes
The court’s interpretation of § 34 powers has expanded far beyond its original scope. While the provision was certainly a broad grant of authority to the general assembly, debate on the proposed amendment during the Ohio Constitutional Convention of 1912 was limited to wages, workers conditions, protection against danger, and a “fair working day.” In modern terms, the amendment, originally conceived, was about minimum wages, maximum hours, and workplace conditions or hazards. Cases shortly after the convention “paint[ed] a consistent picture showing that the . . . general-welfare clause was understood only to allow regulation of the workplace environment.” For example, in 1916, the court considered the provision to be a “broad humanitarian policy of the state to safeguard the life, limb, health, and safety of its people employed in the industrial world” (emphasis added). The court in Rocky River expanded the general welfare clause far beyond “what was conceivably intended,” allowing the Cleveland court to effectively allow all legislation that promotes the “general welfare of all employes” to render other constitutional provisions powerless. Overturning Rocky River would correct this error.
§ 3: Home Rule
The Rocky River court erroneously held that general laws superseded not just police, sanitation, and similar regulations, but powers of local self-government. Prior to 1989, the court had consistently held otherwise. The majority justifies its casual dismissal with a mere footnote, quoting one single individual from the Ohio Constitutional Convention of 1912. The effect is to eliminate home rule. If Cleveland is an indication of what’s to come, municipalities may have cause to fear that any Ohio law would automatically supersede their own. Overturning Rocky River would correct this error as well.
Cleveland was decided incorrectly. Under the original meaning of article II, § 34, and article XVIII, §§ 3 and 7, R.C. 9.75 would not constitutionally override the Fannie Lewis Law. The court should determine, using the statewide concern doctrine, whether R.C. 9.75 is an unconstitutional encroachment of municipal home rule. Instead, the court radically expanded state power under § 34. Cleveland should be reconsidered, and Rocky River overruled.
City of Cleveland v. State, 2019-Ohio-3820, ¶ 5-6 (hereafter “Cleveland”).
Id. at ¶ 6.
See Ohio Rev. Code Ann. § 9.75 (LexisNexis 2019); Cleveland at ¶ 7.
City of Cleveland v. State, 90 N.E.3d 979, 983 (8th Dist.), overruled by Cleveland.
State ex rel. Toledo v. Lynch, 88 Ohio St. 71, 97, 102 N.E. 670 (1913), overruled on other grounds.
State ex rel. Canada v. Phillips, 168 Ohio St. 191, 197, 151 N.E.2d 722 (1958).
See Bucyrus v. State Dept. of Health, 120 Ohio St. 426, 166 N.E. 370 (1929).
State ex rel. Evans v. Moore, 69 Ohio St.2d 88, 89-90, 431 N.E.2d 311 (1982).
See Beachwood v. Bd. of Elections, 167 Ohio St. 369, 371, 148 N.E.2d 921 (1958); Cleveland Elec. Illum. Co. v. Painesville, 15 Ohio St.2d 125, 129, 239 N.E.2d 75 (1968).
See City of Rocky River v. State Emp. Rels. Bd., 43 Ohio St.3d 1, 42, 539 N.E.2d 103 (1989) (Wright, J., dissenting); City of Cleveland v. State, 2017-Ohio-8882 at ¶ 9.
Rocky River, 43 Ohio St.3d at 12-13.
Id. at 3.
Id. at 42 (Wright, J., dissenting).
Id. at 15, 13 (Majority opinion).
See City of Lima v. State, 122 Ohio St.3d 155, 2009-Ohio-2597, 909 N.E.2d 616.
Cleveland at ¶ 22.
Oh. Const. art. II, § 34.
Cleveland at ¶ 26.
City of Canton v. State, 95 Ohio St.3d 149, 2002-Ohio-2005, 766 N.E.2d 963, syllabus.
City of Dayton v. State, 151 Ohio St.3d 168, 2017-Ohio-6909, 87 N.E.3d 176, ¶ 15.
Cleveland at ¶ 85 (DeWine, J., concurring).
Am. Assn. of Univ. Professors v. Cent. State Univ., 87 Ohio St.3d 55, 61, 1999-Ohio-248, 717 N.E.2d 286.
See Cleveland at ¶ 19; Cleveland at ¶ 93 (O’Connor, C.J., dissenting), Rocky River, 43 Ohio St.3d at 14-15.
See Cleveland at ¶ 93 (O’Connor, C.J., dissenting), Rocky River at 28, 30 (Wright, J., dissenting).
Cleveland at ¶ 70 (DeWine, J., concurring).
Pittsburgh, C., C. & S. L. R. Co. v. Kinney, 95 Ohio St. 64, 70, 115 N.E. 505 (1916).
Rocky River at 26-27 (Wright, J., dissenting).