[Cite as Toledo v. Ohio, 2017-Ohio-215.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


City of Toledo                                       Court of Appeals No. L-15-1286

        Appellee                                     Trial Court No. CI0201501828

v.

State of Ohio, et al.                                DECISION AND JUDGMENT

        Appellants                                   Decided: January 20, 2017

                                              *****

        Adam Loukx, Law Director, and Jeffrey B. Charles, Chief
        of Litigation, for appellee.

        Mike DeWine, Ohio Attorney General, Nicole M. Koppitch,
        Halli Brownfield Watson and Jordan Berman, Assistant Attorneys
        General, for appellants.

                                              *****

        YARBROUGH, J.

                                           I. Introduction

        {¶ 1} Appellants, the state of Ohio and Ohio Attorney General Mike DeWine

(collectively referred to as “the state”), appeal the judgment of the Lucas County Court of

Common Pleas granting appellee’s, the city of Toledo, “Motion for Order to Enforce

Permanent Injunction.” We affirm.
                          A. Facts and Procedural Background

       {¶ 2} On December 19, 2014, the General Assembly signed Am.Sub.S.B. No. 342

(“S.B. 342”) into law. S.B. 342 regulates the use of traffic law photo-monitoring devices

throughout the state. The city, which uses such devices to enforce red light and speeding

laws, filed a complaint in the trial court on March 13, 2015, alleging that S.B. 342 was an

unconstitutional infringement of its right to self-governance under Article XVIII, Section

3, of the Ohio Constitution (the “home rule provision”). The city requested injunctive

relief and a stay of the enforcement of S.B. 342 until such time as the trial court could

determine its constitutionality.

       {¶ 3} On April 27, 2015, the trial court granted, in part, the city’s motion for

summary judgment upon a finding that a number of the statutory provisions enacted

under S.B. 342 were unconstitutional under the home rule provision. Consequently, the

trial court enjoined the enforcement of certain provisions of S.B. 342.1 On May 7, 2015,


1
  In particular, the court enjoined the enforcement of the following provisions: (1) R.C.
4511.093(B)(1) and (3) (requiring police officer presence during the operation of photo-
monitoring devices); (2) R.C. 4511.095 (mandating the completion of a safety study prior
to implementation of photo-monitoring system); (3) R.C. 4511.096 (setting forth various
law enforcement officer duties); (4) R.C. 4511.097 (specifying the requirements for
tickets issued under an automated traffic control program); (5) R.C. 4511.098 (indicating
the procedure that should be followed by one who receives a ticket alleging a violation of
the traffic law under the automated traffic control program); (6) R.C. 4511.099
(providing for an administrative hearing for those wishing to appeal a citation under the
automated traffic control program); (7) R.C. 4511.0911(A) and (B) (requiring
manufacturers to provide maintenance records for photo-monitoring devices, along with a
certificate of proper operation that attests to the accuracy of such devices); and (8) R.C.
4511.0912 (specifying that speed limit violations are only punishable if the speed exceeds
the posted limit by at least 6 m.p.h. in a school zone and 10 m.p.h. elsewhere).




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the state appealed the trial court’s decision to this court. We subsequently affirmed the

trial court’s decision in Toledo v. Ohio, 6th Dist. Lucas No. L-15-1121, 2016-Ohio-4906,

56 N.E.3d 997.2

       {¶ 4} While the state’s appeal was pending, the General Assembly passed

Am.Sub.H.B. No. 64, the state’s biennial budget bill (“H.B. 64”). H.B. 64 includes R.C.

4511.0915(A)-(C), 5747.50(C)(5), and 5747.502 (collectively referred to as the “budget

bill provisions”), which condition a municipality’s receipt of certain state funds on

compliance with the traffic law photo-monitoring provisions in S.B. 342 that the trial

court found to be unconstitutional. Under the budget bill provisions, the city is required

to file a report with the Auditor of State indicating whether its program is “fully

complying with R.C. Sec. 4511.092 to Sec. 4511.0914.” If the city’s program is not in

compliance, it must inform the auditor of the amount equal to the “civil fines the local

authority has billed to drivers.” The Ohio Tax Commissioner is then required to reduce

payments of local government funds to the city by the amount billed to drivers.

       {¶ 5} In response to the General Assembly’s passage of H.B. 64, the city, on

July 8, 2015, filed a “Motion for Order to Enforce Permanent Injunction,” in which it

sought to permanently enjoin the enforcement of the budget bill provisions. In its

motion, the city argued that the General Assembly’s passage of these provisions was in


2
 Thereafter, the state appealed our decision to the Supreme Court of Ohio, which
accepted the discretionary appeal. Toledo v. Ohio, 147 Ohio St.3d 1411, 2016-Ohio-
7455, 62 N.E.3d 185. That appeal is currently pending before the Ohio Supreme Court,
which heard oral arguments on the matter on January 10, 2017.




3.
“blatant disregard for the concept of separation of powers” and in retaliation against the

city for successfully challenging the constitutionality of S.B. 342. The city went on to

assert that the budget bill provisions were unconstitutional insofar as they interfered with

the trial court’s authority to enforce its own orders by forcing municipalities to comply

with statutes the trial court had already found to be unconstitutional.

       {¶ 6} Two weeks later, the state filed its memorandum in opposition to the city’s

motion, in which it argued that the court did not have jurisdiction in this case to strike

down the budget bill provisions when the city’s initial complaint only challenged the

constitutionality of S.B. 342. In other words, the state contended that the city was

required to file a new complaint challenging the constitutionality of the budget bill

provisions if it wished to have such provisions enjoined by the trial court. Further, the

state argued that the budget bill provisions did not violate the trial court’s injunction

regarding S.B. 342. In that regard, the state asserted that the trial court’s finding that S.B.

342 was unconstitutional did not preclude it from “distributing its money in a manner that

incentivizes particular conduct on the part of local entities.” According to the state, the

budget bill provisions do not compel municipalities to comply with S.B. 342. Rather, the

state insisted that the provisions “merely establish a reporting system and financial

incentives for cities to [comply with S.B. 342] through the manner in which the State

distributes its money.” The state went on to analogize its act of conditioning local

government funds on compliance with S.B. 342 to the common practice of the federal

government conditioning a grant of federal funds to the states based upon the states’




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compliance with federal directives in areas in which the federal government could not

directly regulate under the United States Constitution.

       {¶ 7} In its reply to the state’s memorandum, the city dismissed the state’s analogy

of the present case to cases involving the federal government and the states. The city

argued that none of the cases cited by the state in support of the analogy involved

Congress requiring the states to comply with a statute that had been declared

unconstitutional. Moreover, the city noted the absence of a home rule provision in the

United States Constitution.

       {¶ 8} Upon consideration of the foregoing arguments, the trial court released its

decision on the city’s motion on October 8, 2015. In its decision, the trial court found

that the state’s attempt to withhold funds from the city would constitute contempt of the

court’s prior permanent injunction insofar as it would force the city to comply with the

provisions of S.B. 342 that it had already deemed unconstitutional. This, the court

concluded, amounted to “economic dragooning.” Thus, the court granted the city’s

motion, thereby enjoining the state “from taking any action that would result in a

reduction of State funding to the City as a result of the City’s noncompliance with the

unconstitutional statutes.” It is from this order that the state timely appealed.




5.
                                B. Assignments of Error

      {¶ 9} On appeal, the state assigns the following errors for our review:

             Assignment of Error No. 1: The trial court acted without jurisdiction

      when it issued a post-judgment order enjoining laws not at issue in the

      complaint.

             Assignment of Error No. 2: The trial court violated the separation of

      powers doctrine by using its prior injunction to encroach upon the General

      Assembly’s role as arbiter of public policy.

             Assignment of Error No. 3: Assuming arguendo that the trial court

      had jurisdiction, the trial court abused its discretion in holding that portions

      of Am.Sub.H.B. No. 64, the Budget Bill, violate its April 27, 2015 Order

      and that action to enforce those provisions establishes contempt of court.

             Assignment of Error No. 4: Assuming arguendo [that] the trial court

      had jurisdiction, it abused its discretion by enjoining the Budget Bill

      provisions when the City failed to offer evidence demonstrating its

      entitlement to an injunction.

                                        II. Analysis

                                      A. Jurisdiction

      {¶ 10} In its first assignment of error, the state argues that the trial court acted

without jurisdiction when it issued its post-judgment injunction preventing the




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enforcement of the budget bill provisions, which were not part of the underlying

proceedings challenging the constitutionality of S.B. 342.

       {¶ 11} “A question of jurisdiction is reviewed de novo, with no deference given to

the trial court.” Sullivan v. Sullivan, 6th Dist. Lucas No. L-09-1022, 2010-Ohio-3064,

¶ 14, citing Swayne v. Newman, 131 Ohio App.3d 793, 795, 723 N.E.2d 1117 (4th

Dist.1998).

              When a permanent injunction has been issued by the trial court on

       the merits of a claim, the court has continuing jurisdiction to enforce the

       injunction. * * * A permanent injunction may be enforced as an act of the

       court and disobedience with the order may be punished as contempt. * * *

       The permanent injunction may be enforced by motion without the necessity

       of an independent action. (Citations omitted.) Hosta v. Chrysler, 172 Ohio

       App.3d 654, 2007-Ohio-4205, 876 N.E.2d 998, ¶ 32 (2d Dist.).

       {¶ 12} In support of its argument that the city improperly challenged the

constitutionality of the budget bill provisions without the filing of a new complaint, the

state cites the Supreme Court of Ohio’s decision in Cicco v. Stockmaster, 89 Ohio St.3d

95, 728 N.E.2d 1066 (2000). In that case, the court was tasked with interpreting the

jurisdictional requirements of R.C. 2721.12, relating to actions seeking declaratory relief.

Construing that statute, the court held that “a 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




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General in accordance with methods set forth in Civ.R. 4.1 in order to vest a trial court

with jurisdiction under R.C. 2721.12.” Id. at 97.

       {¶ 13} Responding to the state’s argument, the city challenges the state’s

characterization of the trial court’s action, insisting that the trial court merely took

appropriate steps to enforce its prior injunction by granting the city’s motion. Contrary to

the state’s position, the city asserts that the trial court did not declare the budget bill

provisions unconstitutional, nor did the city seek such relief. Rather, the trial court found

that the enforcement of those provisions should be enjoined on the basis that it would

violate the court’s prior injunction concerning S.B. 342 by forcing municipalities to

comply with the statutory provisions therein.

       {¶ 14} Having reviewed the trial court’s order, we agree with the city that the trial

court did not determine the constitutionality of the budget bill provisions. Instead, the

court examined the mandate of the budget bill provisions, namely the reduction of local

government funds to municipalities such as the city that operated noncompliant

automated traffic monitoring programs, and concluded that the mandate violated the

court’s prior injunction by penalizing the city for refusing to comply with statutes that the

trial court had already deemed unconstitutional. As such, the trial court enjoined the state

from “taking any action that would result in a reduction of State funding to the City of

Toledo.” As noted above, the trial court possessed continuing jurisdiction to enforce its

permanent injunction. Hosta, supra, at ¶ 32; American Motors Corp. v. Huffstutler, 61

Ohio St.3d 343, 348, 575 N.E.2d 116 (1991) (“The Wood County Court of Common




8.
Pleas, having in personam continuing jurisdiction over Huffstutler, can continue to

exercise supervisory authority over his compliance with the injunction.”). Moreover, we

find no merit to the state’s argument that the trial court has no jurisdiction to issue a new

injunction post-judgment where such relief is required in order to stop the state from

acting in a manner inconsistent with the trial court prior injunction.

       {¶ 15} Accordingly, the state’s first assignment of error is not well-taken.

                                 B. Separation of Powers

       {¶ 16} In the state’s second assignment of error, it argues that the trial court’s

order improperly encroached upon the General Assembly’s role as arbiter of public

policy. Specifically, the state contends that the trial court “exceeded its constitutional

authority by using its prior order to control the policy decisions of the General Assembly

and striking down new and different legislation when it was without jurisdiction to

evaluate its constitutionality.” The state goes on to characterize the General Assembly’s

passage of the budget bill provisions as a “response to the few trial court determinations

that portions of [S.B. 342] are unconstitutional in an effort to cure the constitutional

deficiencies found by those courts. The Budget Bill provisions were not a mere re-

enactment of previously stuck down legislation, but were substantially different

provisions.”

       {¶ 17} Assuming, arguendo, that the state has accurately characterized the General

Assembly’s motives behind passage of the budget bill provisions, we nonetheless find

that the trial court was within its constitutional authority when it enjoined the state from




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enforcing those provisions based upon a finding that enforcement of the provisions would

result in a violation of the court’s prior injunction. Although new legislation may be

enacted to “cure the constitutional deficiencies” found by the trial court, such deficiencies

are not cured where the new legislation merely compels a municipality to comply with

the very statutes that were struck down. In such circumstances, a trial court does not

implicate separation of powers issues by preventing the enforcement of the newly enacted

provisions because the court is not acting as an arbiter of public policy, but is instead

policing the parties’ compliance with its prior court order. “The power of a court to

enforce its own proper orders is fundamental and inherent, as well as constitutional;

necessarily so, to give it standing and afford respect and obedience to its judgment. This

is upon the broad ground of public policy, and without which power the judicial edifice

would fall.” Wind v. State, 102 Ohio St. 62, 64, 130 N.E. 35 (1921). Thus, we find no

merit to the state’s separation of powers argument.

       {¶ 18} Accordingly, the state’s second assignment of error is not well-taken.

                     C. Contempt Finding and Grant of Injunction

       {¶ 19} In its third assignment of error, the state argues that the trial court abused

its discretion in holding that the budget bill provisions violate the court’s April 27, 2015

order and that action to enforce those provisions constitutes contempt of court. Similarly,

in its fourth assignment of error, the state argues that the trial court abused its discretion

by enjoining the budget bill provisions because the city failed to offer evidence

demonstrating its entitlement to an injunction.




10.
       {¶ 20} A trial court has broad discretion in contempt proceedings. State ex rel.

Ventrone v. Birkel, 65 Ohio St.2d 10, 11, 417 N.E.2d 1249 (1981). We review the trial

court’s finding of contempt for an abuse of its discretion. Id. Likewise, the standard of

review for this court regarding the granting of an injunction by a trial court is whether the

trial court abused its discretion. Perkins v. Quaker City, 165 Ohio St. 120, 125, 133

N.E.2d 595 (1956). In order to find an abuse of discretion, we must find that the trial

court’s decision was unreasonable, arbitrary or unconscionable and not merely an error of

law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 21} In determining whether to grant injunctive relief, courts take into

consideration the following four factors: (1) the likelihood or probability of a plaintiff’s

success on the merits; (2) whether the issuance of the injunction will prevent irreparable

harm to the plaintiff; (3) what injury to others will be caused by the granting of the

injunction; and (4) whether the public interest will be served by the granting of the

injunction. State ex rel. City of Cleveland v. Foxworth, 8th Dist. Cuyahoga No. 101651,

2015-Ohio-1825, ¶ 25, citing Corbett v. Ohio Bldg. Auth., 86 Ohio App.3d 44, 49, 619

N.E.2d 1145 (10th Dist.1993).

       {¶ 22} Here, the state argues that the trial court abused its discretion in finding that

the budget bill provisions compelled the city to comply with the provisions of S.B. 342

that the court had previously enjoined. The state urges that the budget bill provisions do

not enforce or compel compliance with S.B. 342. Rather, the state asserts that the budget




11.
bill provisions merely set up financial incentives using discretionary state funds to

encourage municipalities to comply with S.B. 342. The state insists that such a scheme is

constitutionally permissible.

       {¶ 23} In advancing its constitutional argument, the state relies on precedent

established by the United States Supreme Court in United States v. Sanchez, 340 U.S. 42,

71 S.Ct. 108, 95 L.Ed. 47 (1950), South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793,

97 L.Ed.2d 171 (1987), and Natl. Fedn. of Indep. Bus. v. Sebelius, 132 S.Ct. 2566, 183

L.Ed.2d 450 (2012). Generally speaking, these cases permit the federal government to

regulate matters typically reserved for the states through the use of financial incentives to

encourage the states to act or refrain from acting in a certain manner.

       {¶ 24} Notably, these cases are silent on the issue of whether a state legislature

may enact legislation that interferes with a municipality’s home rule authority under the

Ohio Constitution. Further, we need not consider the constitutional question of whether

the General Assembly possesses the authority under the home rule provision of the Ohio

Constitution to incentivize compliance with S.B. 342 because the pertinent issue here is a

more basic one. The issue before us is whether the General Assembly, in enacting the

budget bill provisions, has impermissibly interfered with the trial court’s inherent power

to enforce its injunction. In deciding this legal issue it is unnecessary to reach the

question of the constitutionality of the budget bill provisions. See State ex rel. DeBrosse

v. Cool, 87 Ohio St.3d 1, 7, 716 N.E.2d 1114 (1999), citing State ex rel. BSW




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Development Group v. Dayton, 83 Ohio St. 3d 338, 345, 699 N.E.2d 1271 (1998)

(“Courts decide constitutional issues only when absolutely necessary.”).

       {¶ 25} Having examined the parties’ arguments, we disagree with the state’s

contention that the budget bill provisions do not compel action in contravention of the

trial court’s injunction. The court’s prior injunction forbade the state from enforcing S.B.

342. The budget bill seeks to resurrect the city’s obligation to comply with S.B. 342,

with no changes being made to the constitutionally defective provisions, through the use

of financial coercion; that is, the city is required to choose between compliance with the

unconstitutional statute or face a loss of state funding for its noncompliance. In other

words, allowing the budget bill provisions to be enforced against the city would result in

the city being penalized for its refusal to comply with the very statutes that the trial court

already deemed unconstitutional. This act of the General Assembly essentially amounts

to an end-run around the trial court’s injunction in an effort to enforce S.B. 342, which, if

permitted, would unconstitutionally deprive the court of its inherent power to enforce its

injunction. State ex rel. Johnston v. Taulbee, 66 Ohio St.2d 417, 423 N.E.2d 80 (1981),

paragraph one of the syllabus (“The administration of justice by the judicial branch of the

government cannot be impeded by the other branches of the government in the exercise

of their respective powers.”).

       {¶ 26} Under these facts, we find that the trial court did not abuse its discretion in

finding that the budget bill provisions violated its April 27, 2015 order and that action to

enforce those provisions constitutes contempt of court. Moreover, we find no merit to the




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state’s argument that the city failed to offer evidence demonstrating its entitlement to an

injunction, where the budget bill provisions speak for themselves and represent a clear

violation of the trial court’s injunction. Accordingly, the state’s third and fourth

assignments of error are not well-taken.

                                        {¶ 27} Conclusion

       {¶ 28} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. The state is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Stephen A. Yarbrough, J.
                                                _______________________________
James D. Jensen, P.J.                                       JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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