And with this, where do you draw the line.  Then, can you work for Cuyahoga County and live in Medina County, or can you work for the state of Ohio out of an office in Toledo, but live in Temperence, Michigan.  As far fetched as that sounds, it's true.  if you change residency laws for city services, where do you draw the line.  I am a firm believer of if you work for a city you should live in that city.  If you don't want to, then you should owe the average property tax back to that city every year along with your Regional Income tax requirement. 

^^ I applaud this because I DO work for the city...I DO have children..and now that I do, I would like to give them the same opportunity that was given me...good public schools.

 

^ Why should I have to pay the average income tax?  I don't do that now as a renter. 

 

Let's face it, the people who bitch about city employees that have used the american judicial system to try to change what we perceive as an injustice are usually A) Younger people that haven't lived enough life to understand that changes that occur in life B) Empty nesters and or gays that don't TRULY understand the difficulties or raising a child (ren)....(not meant as a shot, but rather from what I gather) C) People that cannot or do not want to move

 

Why should I follow a law that the safety director enforces, but yet he DOES NOT live in the city?  (he wasn't grandfathered, he was retired, THEN rehired.  Why are some people allowed out, but others not?  Why do teachers not have to live in the city?  Mayor Jackson claimed he wanted Cleveland to be a "city of choice"..so let us choose.  Why should the perceived economic status of the city be the burden of it's employees? Let the city make it a livable place.  Not all cities have residency restrictions, yet somehow they seem to do fine.(Look to Columbus and how they do it)

 

I know.."if you don't like it, go to another city"..why should I?  I like working in the city of Cleveland, I HAVE worked for another city that had no residency (Lakewood)and came here.  I know the other arguement...how can I do my job effectively when I don't live in the city I work.  Well my friends, I do this job for the passion of what I do, not because it's just a job...no matter WHERE I live.  In fact, where I work and where I live IN the city are two different worlds.  I have absolutely nothing in common with the neighborhood in which I work, but I still do my job to the fullest.  So if it's the need to feel safe or secure to live next to a police officer or firefighter..if the supreme court upholds the law, then you are more than welcome to move next to me wherever it may be.

^ wow. do you realize what lifting that requirement (which is supported by the ohio state constitution) would do to the city of Cleveland? Strong neighborhoods would be vacated, the tax base would get crushed... which in turn would eliminate many of said jobs. I really don't understand how anyone thinks they support the city of cleveland and applaud things like this.

 

You are completely ignoring the flip side of the argument... that being that the City will have a MUCH better talent base/pool from which to chose its officers/employees, that the residency law actually makes many City employees despise the City, that the City invests thousands (if not hundreds of thousands) of taxpayer dollars into "residency investigations" and civil service proceedings which they routinely lose when the termination is appealed to the court system and more legal fees are incurred.  I could go on, but to infer that the City will fall into shambles if the residency law is lifted is simply not accurate.  There are plenty of cities in this state that don't have residency laws and are still alive and well.

 

Moreover, you are also speculating as to the effect of the law.  You simply assume that all City employees will move outside the City if the Supreme Court comes down against the cities.  There is no way to prove that there will be any mass exodus of biblical proportions.  Fact is that many, if not most, City employees who don't want to live in the City and/or raise their family there moved out long ago.  What they want is piece of mind that the city's investigators will not continue to peek in their windows, film their residences and follow their children to school.

 

Now, I am not saying that you are wrong.  You just can't totally dismiss the other side of the argument.  The effect of the state ban is still up in the air.

 

Lastly, where did you get the idea that the Ohio Constitution "supports" residency laws.  It is true that residency laws are not UNconstitutional but that is saying something altogether different.  You forgot to mention that the Constitution does say that the General Assembly can pass laws that, in its judgment and disceretion, are for the health, safety and general welfare of all employeees in the state.  That includes municipal employees as well and that is what happened here.  Further, the Constitution further states that no other provision of the constitution (which includes the home rule amendment) may be used to limit this power.

 

I hope most workers do not move, but I would like them to have that choice.

All this hoopla caused by this article is really pointless.  The City did file its argument with the Supreme Court.  Why they were even planning on filing the same brief twice in two cases that involve identical issues is beyond me.  In reality, the duplicative filing probably would have just pissed off the justices.

Incredible....... The dorks at Cleveland.com are smelling blood. Yet an almost identical thing happened a few years ago in tony Westlake, when paperwork for a proposed school levy arrived a day late via the U.S. Mail at the board of elections.

 

The same should be allowed to happen here. Cleveland deserves a pass, just as Westlake did.

 

 

Hardly a good comparison, an issue inclusive to Westlake alone vs. joining a statewide battle.

It's ashame this has been so overdramatized. 

 

Missed filing won't hurt Cleveland in residency law case

http://www.wksu.org/news/story/22399

 

Hardly a good comparison, an issue inclusive to Westlake alone vs. joining a statewide battle.

 

I am basing my comparison on the similarility of the delay and that a delivery service was responsible for the delay in both situations. I don't consider any other factors as relevant.

^ Yeah, people who can't pay their bills on time blame the Post Office too!!  :wink2:

And companies with managers who post on message boards at work blame low profits on tax increases.  :wink2:

And companies with managers who post on message boards at work blame low profits on tax increases.  :wink2:

 

Very good David!!!  Very clever!    :clap:  :clap:

 

November 4, 2008

City of Lima, Ohio

v. Case No. 08-0128

State of Ohio

NOTICE OF ORAL. ARGUMENT

TO: Anthony L. Geiger Benjamin C. Mizer

The Supreme Court of Ohio will hold an oral argument on the merits in this case

on Tuesday, January 20, 2009. Time allowed for oral argument will be 15 minutes per

side:

Attorneys who argue before the Court must comply with the provisions of Rule

IX of the Rules of Practice of the Supreme Court of Ohio and the instructions that

follow. Pursuant to Rule IX, Section 3, counsel for either or both parties may waive oral

argument and submit the case upon briefs. The Clerk must be notified in writing of the

waiver at least seven days before the date scheduled for the oral argument.

Court convenes promptly at 9 a.m. Counsel in all cases are expected to be present

when court convenes. Counsel must register with the Chief Deputy Clerk prior to 8:45

a.m. at the information desk outside the Courtroom on the first floor of the Ohio Judicial

Center.

For more information on protocol for presenting oral argument before the

Suprerne Court of Ohio, counsel may refer to the "Guide for Counsel Presenting Oral

Argument" located at www.sconet.state.oh.us/Clerk of Court.

Note: Assignments in the Supreme Court take precedence over other

assignments.

KRISTINA D. FROST CLERK

CHIEF DEPUTY CLERK

 

http://www.sconet.state.oh.us/Clerk_of_Court/eCMS/resultsbycasenumber.asp?type=3&year=2008&number=0418&myPage=searchbycasenumber%2Easp

 

http://www.sconet.state.oh.us/Clerk_of_Court/eCMS/resultsbycasenumber.asp?type=3&year=2008&number=0128&myPage=searchbycasenumber%2Easp

interesting read:

http://www.uc.edu/cas/firescience/reflibrary/Ohio%20Residency.pdf

 

You are completely ignoring the flip side of the argument... that being that the City will have a MUCH better talent base/pool from which to chose its officers/employees

 

This consistantly stands out to me here in Cleveland, especially when we see people like Zack Reed in the news all the time for the wrong reasons.  I realize elected officials are different than city employees, but I often ask myself "how does Zack Reed get re-elected?"  Well, who else who lives in his ward can (and wants to) do a better job?

 

If a city were to get better employees and better leaders, regardless of where they lived, the city itself would become more appealing and thus would draw more residents.

^^ Agreed... to an extent.  The City should choose its "employees" from the best available talent, regardless of where they live.  The City's consultants, contractors, legal counsel (outside of the law dept) don't have to be chosen from residents of the City and for good reason.  Why not bring such latitude to the employee selection process?  For some top positions, the City grants exemptions to the residency rule so it can hire the best candidate, but the choice of when to use that discretion is arbitrarily made IMHO.

 

Elected officials are a different story though.  Those people HAVE to be City residents.  They are chosen from the people and by the people of the City.

 

BTW, how ironic is it that Marty Flask, the City's Public Safety Director, is not a resident of the City.  Yep, that is the same Marty Flask that issues the termination letters to police, fire and EMS employees found in violation of the residency requirement.  Further, the individuals charged with investigating residency compliance are also not residents of the City.

 

While people insist that the residency requirement ensures that the City's employees "care" about the City, I can assure you that nothing causes employees to hate (and bad-mouth) the City more than this outdated rule.

http://blog.cleveland.com/metro/2009/01/cleveland_will_get_to_argue_oh.html

I don't think I agree with this, personally. I don't know if I believe that people should be forced to live within a municipality just because they work for it.

 

But I think the thing that really bothers me about this is, would Cleveland really be putting up a fight if it weren't losing residents? I just feel like this could be seen as a desperate attempt to keep people within its borders .. but at the same time, does Cleveland have a valid case on its hands?

However you feel about residency requirements, this resolution of this case has much broader implications.  It is more a battle between the State and "incorporated" municipalities, than it is about employer vs. employee.  There's a huge "home rule" issue here surrounding the state's ability to regulate municipal employment - specifically, "qualifications" for municipal employment.  This will be a landmark decision no matter which way it goes.

 

How about splitting the baby?  The Cities can require that initial hires are residents of the City, but cannot require residency as a condition of "continued" employment.  The Cities could set the requirement at whatever they want... 2 years (used a lot for elected officials), 5 yrs, 10 yrs.  It also eliminates the harsh effects of residency requirements on employees and their families.

 

Pratically speaking, it is a stupid idea because the City would limit its job pool, cut off its ability to bring in new tax payers through employment and not recoup (through taxing) the money it pays those who move out once hired.

 

All that said, the wider implications of this decision may be better served.  The republican dominated Ohio Supreme Court is probably not going to part with past precedent and create a limitation on the power of the General Assembly to provide for the welfare of the "employee".  But the Cities have a legitimate argument that a candidate for hire is not an "employee" and any restriction can be placed on the candidate that the City desires (absent constitutional violations of course).  While it wouldn't be a victory for the immediate fiscal needs of the Cities who are in this fight, such a resolution would be a victory for home rule.     

Oral arguments were held this morning.  My best guess from the tone of the justices is that the decision will be 5-2 or 4-3 in favor of the state law.

I can see both sides of this and don't have a strong position on it, but I lean toward the cities' position.  If municipal finance were handled differently, more fairly, the cities would probably not even bother fighting this.  I can understand a blight-stricken central city not wanting to pay out its own tax revenues to enhance some suburban tax base instead of its own.  And technically, "at-will" employment in the private sector means anyone can fire you any time for any reason, including where you live.  If cities now can't, they'd be the only ones who can't.

Federal Law > State Law > Local Law.  Seems clear enough to me

Federal Law > State Law > Local Law.  Seems clear enough to me

 

Ohio hasn't worked like that since 1912.  On some issues, which are virtually impossible to categorize or define, local trumps state.  The debate here centers primarily on whether this is one of those issues, I would assume.

Here you go boys and girls...these are the videos of the cases heard this AM....

 

http://www.sconet.state.oh.us/videostream/archives/2009/

.

If you work for a private entity, you may have to move b/c of your job's location. However, as long as you can reasonably get to work everyday on time, they can't tell an employee they cannot live somewhere. If they want to live 2 hours from work and drive everyday, as the laws are currently written, they have the legal right to do so. Even if it is to the chagrin of urbanists or enivronmentalists.

 

I'm pretty sure a private entity can fire you for literally anything or nothing, in the absense of a contract.  I once had a private company tell me I had to move to Cleveland from Youngstown, to demonstrate proper long-term devotion.  They can do that. 

 

The only restriction on "at will" terminations would be a specific prohibition of civil rights law, like you're fired for being Chinese or for being Baptist.  That's not legal.  A private entity also cannot fire somebody for refusing to break a law, or for complying with jury duty.  Ohio requires that the employee cite a specific statute or regulation when challenging a termination on these grounds.  All exceptions to the at will doctrine are very narrowly construed.

That's why I would be OK with the state winning this.  If the cities win, I would be OK with that too, for the reasons listed above.  It's a messy issue, as is home rule in general.

Such requirement is a huge invasion into a person's life and in essence a violation of the basic rights of all Americans as stated in the U.S. Constitution.

 

One might think, but both the Ohio Supreme Court and the United States Supreme Court have specifically held that a City worker has no constituionally protected right to choose where to live AND demand employment with the City at the same time.

 

This case is not about individual constitutional rights.  It is about home rule and the State's pre-emptive power to regulate matters of employment. 

 

 

^Well put.  Of course anyone has the right to live where they want; the question is whether or not cities have the right to employ only those who live within their boarders.

 

I don't know all the legal wrinkles, but if the cities lose this, I wonder if they will be able to require some types of employees to live within a certain distance of the employee's main employment location, without regard to municipal boundaries.  I don't think its unreasonable at all for for the City to expect emergency responders to be able to show up for work on very short notice in case of a catastrophe.  With regard to Cleveland, that's pretty hard to do if the employee is living in southern Medina County.

^ To be honest, if you reside in the city and a catastrophe happens, I think it would be human nature to get your own family to safety before you would leave your house and head into work, so to me, that arguement doesn't fly.  On top of that, I would like to know how many times in the history of Cleveland that the safety forces have had a mandatory recall...not many if at all.

^^ I'm almost positive that cities can require safety forces to live within a certain distance. I remember hearing that one of the outer suburbs like Westlake or Avon had such a requirement. If I recall it was around 30 miles.

^ Prior to the law passed in May of 2006 (the one being challenged in court) the cities chose to institute residency or not, whether it be by the voters, collective bargaining, or the city.  It's not like cities HAVE to do this, some chose to and some not.

The new law allows municipalities to require that there "emergency responders" live within a certain radius.  What that radius will be yet another lawsuit because the law is vague and not well written on this point.  You could read it to permit Cleveland to force those workers to live within Cuyahoga County.  Another interpretation would permit Cleveland to force those workers to live within a Cuyahoga or any adjacent county.

 

The validity of the "emergency responders" concern went out the window years ago when we replaced the horse and buggy with more modern means of transportation.  Besides, the earlier poster is right - recalls rarely, if ever, happen.  The "24 on 48 off" shifts of Firefighters ensures that there should be a boatload of able emergency responders sitting around at their station house playing cards and watching TV (occasionally running drills and doing chores  :wink:) just waiting to risk their otherwise liesure life whenever that alarm rings.  If minimum manning laws are maintained, there should never be an issue with emergency response absent absolute catastrophies. 

9.481 Residency requirements prohibited for certain employees.

(A) As used in this section:

 

(1) “Political subdivision” has the same meaning as in section 2743.01 of the Revised Code.

 

(2) “Volunteer” means a person who is not paid for service or who is employed on less than a permanent full-time basis.

 

(B)(1) Except as otherwise provided in division (B)(2) of this section, no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.

 

(2)(a) Division (B)(1) of this section does not apply to a volunteer.

 

(b) To ensure adequate response times by certain employees of political subdivisions to emergencies or disasters while ensuring that those employees generally are free to reside throughout the state, the electors of any political subdivision may file an initiative petition to submit a local law to the electorate, or the legislative authority of the political subdivision may adopt an ordinance or resolution, that requires any individual employed by that political subdivision, as a condition of employment, to reside either in the county where the political subdivision is located or in any adjacent county in this state. For the purposes of this section, an initiative petition shall be filed and considered as provided in sections 731.28 and 731.31 of the Revised Code, except that the fiscal officer of the political subdivision shall take the actions prescribed for the auditor or clerk if the political subdivision has no auditor or clerk, and except that references to a municipal corporation shall be considered to be references to the applicable political subdivision.

 

© Except as otherwise provided in division (B)(2) of this section, employees of political subdivisions of this state have the right to reside any place they desire.

 

Effective Date: 05-01-2006

.

 

 

The question is, does this mean that the latter stipulation can be enforced through popular vote of the citizens, city leaders, or collective bargining.  Also, would employees that fall under the new law be exempt from the "county or adjoining county" because the law would be enacted before the latter stipulation be put into affect?  Would that only apply to new hires after the latter stipulation?  It seems it would be hard to retro enforce that stipulation....this all being said if the Supreme Court finds in favor of the State. 

 

The other question of legality that could be brought into play (if the Supreme Court finds for the cities), would the overturned law go into affect from THAT point on for new hires, and the current employees fall under the blanket of the law passed in 2006?

Who cares about this question really?  If the best candidate for mayor of Cleveland lives in Youngstown lives in Cleveland should he be able to run for mayor in Cleveland? No.  But what about the trash man or the water works guy?  Maybe.

 

BTW, all of this debate is thanks to Paul Woody in Dayton who got mad when a police officer who didn't live in Dayton asked him why he was living in such a cruddy part of town (the cop lived outside of Dayton).

If the goal is ultimately to keep workers in Cleveland, it seems like some kind of incentive would work better than compulsion.  Rather than excluding potential hires, wouldn't it make more sense to try to attract employees to the city with special property tax cuts (Or some other benefit that doesn't exclude renters) for public workers who live within the city limits?  Ultimately, you want these jobs to be desirable and you want people to choose Cleveland as home.

BTW, all of this debate is thanks to Paul Woody in Dayton who got mad when a police officer who didn't live in Dayton asked him why he was living in such a cruddy part of town (the cop lived outside of Dayton).

 

Really?  Where did you get this info from?  I know for a fact that a firefighter from Cleveland was the driving force for this whole movement over ten years ago.  Due dire and extreme personal family matters he asked for a residency reprive and was denied by the city.  His personal grass roots effort became a statewide cause.  He has been involved in this matter every step of the way.  Whether you agree with the law or not, you have to give props for one guy to make this much of an impact for so many people.  Now it's in the hands of the State Supreme Court.

Who cares about this question really?  If the best candidate for mayor of Cleveland lives in Youngstown lives in Cleveland should he be able to run for mayor in Cleveland? No.  But what about the trash man or the water works guy?  Maybe.

 

BTW, all of this debate is thanks to Paul Woody in Dayton who got mad when a police officer who didn't live in Dayton asked him why he was living in such a cruddy part of town (the cop lived outside of Dayton).

 

There is a big difference between requiring residency of elected officials and requiring residency of employees.

 

On your other point, Senator Tim Grendel pushed this legislation through.  The safety force unions have been trying to push it through for better part of the decade.  The unions have tried to challenge residency restrictions on constitutional grounds in both state and federal court, only to be shown the door. 

 

JDD is right about the individual firefighter who was denied the exemption.  That denial was inexcusable, completely unjust and really allowed the fight to pick up a lot of steam.  The cities might not be in such a pickle if they had a heart when it came to handing out exemptions.  From what I can tell, only the top brass is able to obtain the City's blessing to violate the residency rule regardless of circumstances.

out of curiosity does anyone know why he filed for the exemption and why he was turned down?

out of curiosity does anyone know why he filed for the exemption and why he was turned down?

 

If myself and JDD are on the same page, the Firefighter aksed to move out of the City so he could be near to and care for his terminally ill child during his off-hours (the child was living with the mother).  You have to remember that Firefighters in Cleveland are off-duty for 48 straight hours between shifts and the City does not permit dual residency - meaning you are not in compliance with the residency requirement simply by maintaining a home in Cleveland.... you have to actually spend the majority of your downtime at that Cleveland address.

 

There were AT LEAST two other exemption requests during the same time period from Safety Force members that were of a similar ilk - I believe concerning sick/ill parents.  In one of those requests, the mother could not walk up and down stairs and lived in a ranch outside of the City.  The employee asked for an exemption because his Cleveland address had no first floor bedrooms.  The City said no.

 

I also know of a police officer whose family was receiving threats from a neighborhood gang because he had arrested one of their members.  I really did not have that big a beef with the denial of this request.  I found his story somewhat hard to believe as being fully accurate.  Plus, he could have moved to another neighborhood and did not have to leave the City. 

 

The City's basis for denying these requests was not expressed.  I guess it did not want to set precedent.  I know of no member of the safety forces that has EVER been granted an exemption, regardless of how dire the circumstances.

Hello. I am an engineer that went to the University of Toledo for an undergrad and two grad degrees.  I moved away from the city for 4 years and recently came back for an engineering position in a suburb 1 year ago.  My wife got a job teaching preschool for the city and I agreed to live in the city due to the residency requirement.  I have been fairly disappointed with the city services and would much rather live out of town with a couple acres and a workshop ...

 

Does anyone know how long an Ohio Supreme Court decision usually takes and if after this decision I will be able to move?

Should be announced shortly.  I would say July at the latest.

Court Upholds State Law Barring Cities from Requiring Employees to Live Within City Limits

2008-0128 and 2008-0418.  Lima v. State, Slip Opinion No. 2009-Ohio-2597.Allen App. No. 1-07-21, 177 Ohio App.3d 744, 2007-Ohio-6419, and Summit App. No. 23660, 2008-Ohio-38.  Judgments reversed.

Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.

Moyer, C.J., and Lanzinger, J., dissent.

Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-2597.pdf 

 

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion released by the Court, but only for those cases considered noteworthy or of great public interest. Opinion summaries are not to be considered as official headnotes or syllabi of Court opinions. The full text of this and other Court opinions from 1992 to the present are available online from the Reporter of Decisions. In the Full Text search box, enter the eight-digit case number at the top of this summary and click "Submit."

 

(June 10, 2009) The Supreme Court of Ohio today upheld as constitutional a 2006 state law that bars a political subdivision of the state (e.g., a city, county, township or school district) from requiring its employees, as a condition of employment, to reside within that political subdivision.

 

The Court’s 5-2 majority opinion, authored by Justice Paul E. Pfeifer, rejected arguments advanced by the cities of Lima and Akron that in barring enforcement of local residency requirements the General Assembly exceeded its authority and violated the cities’ home rule authority to “exercise all powers of local self-government” under Article XVIII of the Ohio Constitution.

 

Prior to enactment of the statute, R.C. 9.481, Lima’s city charter required all city employees who are appointed by the mayor to live within the city limits. Akron’s city charter required that all classified and unclassified city employees must reside within the city for the duration of their employment. Shortly after the legislature enacted R.C. 9.481, both cities filed court actions seeking declarations that it was unconstitutional. 

 

The Allen County Court of Common Pleas granted summary judgment in favor of the state, ruling that the state law prevailed over the Lima ordinance. On review, however, the 3rd District Court of Appeals reversed the trial court, holding that the statute was unconstitutional and therefore unenforceable because it violated Lima’s powers of local self-government. In the Akron case, the Summit County Court of Common Pleas ruled that the statute was constitutional. Its decision was subsequently overturned by the 9th District Court of Appeals, which held that the statewide ban on residency requirements imposed by R.C. 9.481 was not a valid exercise of the authority granted to the General Assembly by Section 34, Article II of the state constitution to pass laws for the “general welfare” of employees. The Supreme Court agreed to review both cases. [several other cities with employee residency ordinances, including Cleveland, Toledo, Dayton and Warren, also sought Supreme Court review of the constitutionality of R.C. 9.481. In separate cases, the Court accepted their appeals, and held their cases pending its decision in the Akron and Lima cases].

 

Writing for the majority in today’s decision, Justice Pfeifer cited specific language in Section 34, Article II of the Ohio Constitution stating that the General Assembly may enact laws “providing for the comfort, health, safety and general welfare of all employes [sic]; and no other provision of the constitution shall impair or limit this power.” In light of this language, he wrote, a finding that the legislature enacted R.C. 9.481 for the “general welfare” of public employees pursuant to Section 34 precludes further analysis of the statute under any other provision of the constitution such as the home rule provisions of Article XVIII, because the only purpose of such analysis would be to “impair or limit” the General Assembly’s exercise of its power under Section 34.

 

“On at least three separate occasions, this court has upheld the constitutionality of statutes enacted pursuant to Section 34, Article II,” wrote Justice Pfeifer. “In Rocky River (v. State Emp. Relations Bd.) (1989),we relied on Section 34 in upholding the constitutionality of a statute that mandated binding arbitration between a city and its safety forces in the event of a collective-bargaining impasse, rejecting the city’s argument that the statute interfered with its home-rule powers.  ... In State ex rel. Bd. of Trustees of Police & Firemen’s Pension Fund v. Bd. of Trustees of Police Relief & Pension Fund of Martins Ferry (1967) ... we upheld as constitutional a statute that required local police pension funds to surrender their assets to a newly created state-controlled disability and pension fund for police officers and fire fighters, again rejecting objections based on home rule in favor of a broad reading of Section 34. Although the case did not involve a home-rule issue, Am. Assn. of Univ. Professors (v. Cent. State Univ.) (1999) upheld as constitutional under Section 34’s ‘broad grant of authority’ a statute that increased teaching-hour requirements for faculty at state universities.”

 

“R.C. 9.481 states that ‘no political subdivision shall require any of its employees, as a condition of employment, to reside in any specific area of the state.’ Considering the statutes declared constitutional in Rocky River, Am. Assn. of Univ. Professors, and Pension Fund, we conclude that R.C. 9.481 provides for the comfort and general welfare of employees. By allowing city employees more freedom of choice of residency, R.C. 9.481 provides for the employees’ comfort and general welfare. ... The General Assembly expressly declared in enacting the statute that ‘it is a matter of statewide concern to generally allow the employees of Ohio's political subdivisions to choose where to live, and that it is necessary to generally prohibit political subdivisions from requiring their employees, as a condition of employment, to reside in any specific area of the state in order to provide for the comfort, health, safety, and general welfare of those public employees.’ ... R.C. 9.481 provides for the comfort and general welfare of public employees by ensuring that they will be able to choose the municipality in which they reside. We hold that R.C. 9.481 was enacted pursuant to the authority granted in Section 34, Article II.”

 

Citing the explicit language in Section 34 that “no other provision” of the constitution may impair or limit the legislature’s power under Section 34,  Justice Pfeifer wrote: “This prohibition, of course, includes the ‘home rule’ provision contained in Section 3, Article XVIII. ... Thus, even if we assume that Sections 105a and 106(5b) of the Charter of the City of Akron and Lima City Ordinance 201-00 were enacted pursuant to Section 3, Article XVIII, which authorizes municipalities ‘to exercise all powers of local self-government,’ they cannot stand because they ‘impair or limit’ the power of the General Assembly to enact R.C. 9.481 pursuant to Section 34. ... We conclude that R.C. 9.481 is constitutional and, therefore, that municipalities may not require their employees to reside in a particular municipality, other than as provided in R.C. 9.481(B)(2)(b).”

 

The majority decision was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.  Justice O’Donnell also entered a separate concurring opinion that was joined by Justices Pfeifer, Stratton, and Cupp.

 

Justice Judith Ann Lanzinger entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer. Chief Justice Moyer also entered a dissent that was joined by Justice Lanzinger.

 

Justice Lanzinger expressed concern that by interpreting Section 34, Article II of the state constitution too broadly “the majority has opened the door for the General Assembly to use this section – which trumps all other constitutional provisions – in a conceivably limitless variety of situations to eviscerate municipal home rule.” She wrote that in her view R.C. 9.481 was not enacted pursuant to the legislature’s power under Section 34, Article II because that power extends only to legislation affecting the health, safety, and general welfare of employees in the performance of their job duties, and does not encompass regulating where employees live during their non-work hours. 

 

Consequently, she wrote, the statute is subject to review under the home rule provisions of Article XVIII, and violates those provisions by impermissibly imposing a statutory restriction on a city’s local government power to set conditions of employment for its own workers.  “Municipalities clearly have a strong interest in the qualifications of their employees and the makeup of their work forces.  Much like a private employer may seek employees who are invested members of the local community, a municipality may place a great premium on hiring individuals who exhibit a high level of commitment to that municipality. It is well settled that the terms and conditions of employment for municipal officers are purely a local matter,” wrote Justice Lanzinger. “ ... Qualifications regarding the residency of municipal employees are not aspects of the police power, but rather are matters of local self-government. Because this is not a matter of statewide concern, the ordinances should be upheld as a matter of self-governance and should prevail against R.C. 9.481 as home rule enactments.”

 

In his opinion, Chief Justice Moyer concurred with Justice Lanzinger’s analysis and added that, in combination with the Court’s 2008 decision in  Ohioans for Concealed Carry v. Clyde, today’s majority holding unbalances the equilibrium created in the Ohio Constitution under which local officials determine matters that have no statewide application and the General Assembly determines matters that are of general public interest.  He wrote that, in his view, the balance between state and local authority “is now tipped dramatically against the authority of local elected officials under the new conception of home rule.”

 

“I suggest that if such a dramatic change in the application of constitutional principles is to be created, it should be through an amendment to the Ohio Constitution and not through the decisions of this court,” wrote Chief Justice Moyer.  “Because today’s decision once again undercuts the system of dual sovereignty established in the Ohio Constitution and supported by earlier decisions of this court I respectfully dissent from the decision and the opinion of the majority.

 

In his opinion concurring with the majority holding, Justice O’Donnell wrote that, contrary to implications in the dissents, the majority did not base its decision on analysis of the “home rule” powers granted to municipalities by Article XVIII of the state constitution, but instead determined that the broad power vested in the General Assembly by Section 34, Article II to enact laws for the “general welfare” of employees includes legislation affecting where employees may reside as a condition of employment.

 

While acknowledging that the Court’s 2008 decision in Citizens for Concealed Carry v. Clyde overturned a local gun ordinance on the basis that it was in conflict with a general law of the state, Justice O’Donnell noted that the Court applied the same three-step home-rule analysis utilized in Clyde to uphold the valid exercise of home-rule authority by municipalities in Mendenhall v. Akron (2008) and Canton v. State (2002). “Thus, despite claims to the contrary, constitutional home-rule authority retains it vitality in Ohio,” wrote Justice O’Donnell.

 

Contacts

Benjamin C. Mizer, 614.466.8980, for the State of Ohio.

 

Anthony L. Geiger, 419.221.5183, for the City of Lima.

 

Deborah M. Forfia, 330.375.2030, for the City of Akron.

 

Oral arguments were held this morning. My best guess from the tone of the justices is that the decision will be 5-2 or 4-3 in favor of the state law.

 

Hate to sound prophetic, but........

Good call, Hts44121.  I think Pfeifer's reading is correct.  They were way off the mark when they denied Cleveland's attempt to impose stricter predatory lending laws, but this decision (probably because Pfeifer wrote it) makes a lot more sense.  Employment matters are not matters of local self-government.  Simple enough. 

 

I wrote a paper on the origin of home rule in Ohio, analyzing the debates at the 1912 constitutional convention from which it came.  The whole thing was largely a smokescreen for the prohibition issue.  There were secondary reasons for wanting home rule, chief among them being Progressivism's fetish for the most direct democracy possible.  There was also discussion of allowing popular "recall" of unpopular judges-- and of specific judicial decisions.

 

But home rule also meant that the cities, who didn't want prohibition, could opt out of it.  The rural delegates were on a mission to ban alcohol and neither side trusted the other.  Obviously, national prohibition settled that issue a few years later.  But we're still stuck with an incomprehensible home rule regime, born of urban-rural cultural differences from 100 years ago.  If you read the debates, it's clear that none of the delegates understood what they were voting for, and some of them may have been duped.

This decision is plainly wrong.  Municipal residency requirements do not implicate the state’s plenary power to regulate working conditions within the state.  The state’s ability to regulate for the “general welfare”, i.e. the police power, has been historically understood to include typical health and safety concerns – water quality, sewage systems, building codes, food purity, etc., not terms of employment.  Without this strained interpretation of the state’s police power, the residency requirements are clearly constitutional under the Home Rule Amendment, which grants municipalities plenary power of matters of “local self government.”

 

Residency requirements are clearly matters of local self government.  Such laws have no extraterritorial effect; they do not regulate conduct outside of city borders and only incidentally effect other governmental bodies.  That is the standard, or should I say it is a reasonable approximation of the standard.  Oddly, the Ohio Supreme Court has been unable, over the years, to make up its mind.  It has opportunistically used three different standards.  That said, under any of the three, residency requirements do not seem to implicate matters of statewide concern. 

 

One of the comments earlier in this thread is right though -- we shouldn't have to mandate where city employees live.  But, the reality is that if we want to maintain any sort of a middle class in cities like Cleveland, we have to have a residency law.  If we don't, we won't have the resources to improve services and create neighborhoods of choice within our cities.  So now, it is going to be even more difficult to create the type of schools and provide the type of service that will attract middle and upper class residents to Ohio's cities. 

 

When are our elected officials (Supreme Court justices included) going to realize that as our cities languish, so will our state?  What an unfortunate ruling.

 

Three Cent Fare:

 

Your beef is with the General Assembly, not the Supreme Court.  The political questions involved in this case were debated and resolved by that body several years back.  The Supreme Court's review was limited to whether the prohibition on residency requirements is a valid exercise of the State's power under Art. II, Sec. 34.  The Court is not permitted to weigh the "wisdom" of the legislation, just its constitutionality.

 

As to the first part of your post though, there is considerable debate as to the scope of Art II, Sec. 34.  The Appellate District accross the state had no consensus on this particular issue.  Your reasoning mirrors that which was first announced in the 3rd District and, subsequently, followed in the 9th and 8th. 

 

I tend to disagree with the argument that the State's power to regulate employment is limited to "working conditions."  The key language here is "general welfare" - defined by courts as "comfort, safety, peace of mind." 

 

If the delegates at the 1912 constitutional convention intended the provision to mirror the driving force of the Lockner Era (regulation of working conditions - hours, wages, safety) they should not have made the language so broad.  As it is, the State's power to regulate Collective Bargaining, Pension Funds and now Residency Requirements have all been upheld under the General Welfare clause.  In this case, it was a clear matter of stare decisis.

 

Not saying I agree with the political wisdom of the legislation.  I just prefer that the Court not act as a super legislature.  Subjective fairness is not the determiner of constitutionality. 

Three Cent Fare, you've clearly read the cases and your argument is sound.  I think the distinction here is that it's not an interpretation of the general police power, it's an explicit constitutional grant which explicitly overrides other constitutional grants.  The extraterritorial effect is that if you live extraterritorially, your employment options are lessened, and the statewide concern is promoting employment-- the state has an income tax while many municipalities don't.  That last part I totally made up, but I've seen this Court use even crazier reasoning to find "statewide concern."

 

I like the decision and here's why:  I believe that eliminating home rule is the first step to regionalism in Ohio.  Home rule has been the primary lever of balkanization and sprawl.  As illustrated in this and other decisions, Ohio's home rule is not structured to benefit central cities (nor is our Supreme Court).  It's structured to encourage as many tiny independent governments as possible.  The more power your little town can have, the more incentive there is to establish one and to perpetually refuse annexation or merger.

The whole question of "statewide concern" is irrelevant.  That is a term used in home-rule analysis.  Home-rule analysis is not applied to laws properly enacted under Art. II, Sec. 34.  ALL laws properly enacted under Art. II, Sec. 34 override local ordinances.  There is no test as is applied in other cases involving conflicting state and local laws, such as traffic cameras, concealed carry, etc. 

The whole question of "statewide concern" is irrelevant. That is a term used in home-rule analysis. Home-rule analysis is not applied to laws properly enacted under Art. II, Sec. 34. ALL laws properly enacted under Art. II, Sec. 34 override local ordinances. There is no test as is applied in other cases involving conflicting state and local laws, such as traffic cameras, concealed carry, etc.

 

I believe you are 100% correct.  The SWC continuum is much more fun to play with though, compared to some silly ol' bright line rule.

Lanzinger's dissent is far more well reasoned than the majority opinion as she actually analyzes home rule, which should have been the key issue here, not the narrow interpretation of the vague phrase "general welfare" as it relates to Sec. 34 of the Ohio Constitution.  Her dissent rightfully argues that the majority opinion opens a Pandora's box as to what constitutes "general welfare."  The law was intended to regulate work as it was performed (e.g., safety of workers operating presses and lathes), not the tangental notion of where someone lives when not working. 

Lanzinger's dissent is far more well reasoned than the majority opinion as she actually analyzes home rule, which should have been the key issue here, not the narrow interpretation of the vague phrase "general welfare" as it relates to Sec. 34 of the Ohio Constitution.  Her dissent rightfully argues that the majority opinion opens a Pandora's box as to what constitutes "general welfare."  The law was intended to regulate work as it was performed (e.g., safety of workers operating presses and lathes), not the tangental notion of where someone lives when not working. 

 

So should we disband/dissolve the State Employment Relations Board?  Can Cities decide whether or not they will collectively bargain with their employees?  How about the regulation of pension funds?  None of those issues have anything to do with regulating work as it is performed.

 

Fact is, the majority in this opinion opened no pandora's box that was not left wide open, and arguably intentionally so, by the delegates of the 1912 Constitutional Convention and acknowledged by past Supreme Court decisions.

Having not read the opinion very carefully, but being familiar with the Home Rule Amendment, I think that Home Rule is the issue.  The state constitution confers the home rule power upon incorporated municipalities.  This, by definition, is a limitation on the General Assembly's ability to pass laws.  Thus, the scope of a city's home rule power is critical to determining the state's ability to legislate for the "general welfare."  Only once the initial constitutional hurdle has been cleared can we discuss the propriety of the General Assembly's conduct. 

 

I am not familiar with Employment Boards, pension funds, or collective bargaining, but I am sure that those are also regulated by the federal government, which adds another level of complexity to the power relationships between governments.  That said, residency does not, to my knowledge, implicate any federal laws.  So we are left with the state's power relative to that of its cities.  And the way we determine the scope of each political body relative to each other is through the Home Rule Amendment.  The 2006 legislature may not have liked this, but that's the system our most recent constitutional convention created.