[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn., Slip Opinion No. 2016-Ohio-2806.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in an
     advance sheet of the Ohio Official Reports. Readers are requested to
     promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
     South Front Street, Columbus, Ohio 43215, of any typographical or other
     formal errors in the opinion, in order that corrections may be made before
     the opinion is published.


                         SLIP OPINION NO. 2016-OHIO-2806
TOLEDO CITY SCHOOL DISTRICT BOARD OF EDUCATION ET AL., APPELLEES, v.
           STATE BOARD OF EDUCATION OF OHIO ET AL., APPELLANTS.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
   may be cited as Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn.,
                         Slip Opinion No. 2016-Ohio-2806.]
Constitutional law—Article II, Section 28 of the Ohio Constitution—School
        funding—Retroactivity clause does not protect political subdivisions—
        General Assembly has constitutional authority to adjust local school
        funding retrospectively.
     (No. 2014-1769—Submitted December 2, 2015—Decided May 4, 2016.)
              APPEAL from the Court of Appeals for Franklin County,
             Nos. 14AP-93, 14AP-94, and 14AP-95, 2014-Ohio-3741.
                                  _________________
        KENNEDY, J.
        {¶ 1} In this discretionary appeal from the Tenth District Court of Appeals,
we consider whether the General Assembly has the constitutional authority to
retroactively reduce the amount of state funding allocated to local school districts
                              SUPREME COURT OF OHIO




and to immunize appellant State Board of Education of Ohio (“the department”)
against legal claims by school districts seeking reimbursement for retroactive
reductions in school-foundation funding. The department advances the following
proposition of law: “The General Assembly has constitutional authority to adjust
local school funding retrospectively.” We agree.
       {¶ 2} For the reasons that follow, we conclude that the Retroactivity Clause,
Article II, Section 28 of the Ohio Constitution, does not protect political
subdivisions like appellees Toledo City School District Board of Education, Dayton
City School District Board of Education, and Cleveland Metropolitan School
District Board of Education (“the boards”) that are created by the state to carry out
the state’s governmental functions. Therefore, we hold that the General Assembly
has constitutional authority to adjust local school funding retrospectively. We
reverse the judgment of the court of appeals and remand this matter to the trial court
for further proceedings.
                           I. Facts and Procedural History
A.     Public School District Funding for Fiscal Years 2005 through 2007
       {¶ 3} A school district’s revenue is derived primarily from state and local
funds, with federal funds playing a lesser role. State funding is determined and
distributed through the School Foundation Program, R.C. Chapter 3317, which is
administered by the department. R.C. 3317.01. One component used in the
formula for calculating a school district’s funding is the district’s average daily
membership (“formula ADM”).
       {¶ 4} For fiscal year 2005, a school district’s formula ADM consisted of the
total number of students actually receiving the district’s educational services plus
the total number of students who were entitled to attend school in the district but
who received educational services elsewhere, including at community schools.
Former R.C. 3317.03(A)(1) and (2), Am.Sub.H.B. No. 106, 150 Ohio Laws, Part
III, 4254-4255. Each school district certified its formula ADM to the department




                                          2
                               January Term, 2016




based on a one-time student count conducted in early October (the “October
count”). Former R.C. 3317.03(A), Am.Sub.H.B. No. 106, 150 Ohio Laws, Part III,
4254.
        {¶ 5} Enrollment changes that occurred outside of the October count did not
increase or decrease a school district’s funding, with one exception: students who
attended community schools but who were not included in their district’s October
count were added to the formula ADM. Former R.C. 3317.03(F)(3), Am.Sub.H.B.
No. 106, 150 Ohio Laws, Part III, 4262.
        {¶ 6} While community-school students were included in school districts’
October counts under former R.C. 3317.03(A)(2)(a), 150 Ohio Laws, Part III, 4255,
the community schools’ funding was not determined based upon those counts.
Instead, that funding was based on the number of students in attendance at the
community schools, which was submitted monthly to the department in an
enrollment report known as the Community School Average Daily Membership
(“CSADM”). Cincinnati City School Dist. Bd. of Edn. v. State Bd. of Edn., 176
Ohio App.3d 157, 2008-Ohio-1434, 891 N.E.2d 352, ¶ 7 (1st Dist.). Based upon
the CSADM report, the funds attributable to a student enrolled at a community
school were deducted from the student’s school district’s school-foundation funds
and paid to the community school that reported the student in its CSADM. Former
R.C. 3314.08(C), Am.Sub.H.B. No. 95, 150 Ohio Laws, Part I, 1117-1118.
B.      Department Adjusts Funding for Fiscal Years 2005 through 2007
        {¶ 7} During fiscal year 2005, the department noticed that the number of
community-school students reported in some districts’ October counts was greater
than the number reported in the CSADMs. Believing the CSADMs to be more
accurate, the department recalculated those school districts’ school-foundation
funding for that fiscal year. The boards respectively allege that the department
determined the October counts were too high by the following numbers of students:
Toledo, 561 students; Dayton, 688 students; and Cleveland, 575 students.




                                          3
                             SUPREME COURT OF OHIO




       {¶ 8} This recalculation resulted in the department’s determination that the
boards had been overpaid for fiscal year 2005. The department recouped the
overpayment by deducting the overpaid amounts from the boards’ school-
foundation funding during fiscal years 2005, 2006, and 2007. The boards allege
that the department reduced funding during these years by the following amounts:
Toledo, $3,576,948; Dayton, $2,548,120; and Cleveland, $1,857,311.
C.     Cincinnati Board of Education Litigation
       {¶ 9} In 2007, the Cincinnati School District sued the department over its
fiscal-year-2005 adjustment of Cincinnati’s school-foundation funding. Cincinnati
City School Dist. Bd. of Edn., 176 Ohio App.3d 157, 2008-Ohio-1434, 891 N.E.2d
352. The trial court determined that Ohio law mandated that the formula ADM
from the October count be used to calculate school-foundation funding—not the
monthly CSADM data from the community schools. Id. at ¶ 2. The First District
Court of Appeals affirmed. Id.
       {¶ 10} The department appealed to this court and we accepted review. 119
Ohio St.3d 1443, 2008-Ohio-4487, 893 N.E.2d 515. The action, however, was
dismissed before briefing because the parties reached a settlement. 119 Ohio St.3d
1498, 2008-Ohio-5500, 895 N.E.2d 562.
D.     General Assembly Amends Statute
       {¶ 11} During the pendency of the Cincinnati litigation, the General
Assembly amended R.C. 3317.03 to authorize the department to adjust formula
ADM if an error was discovered. Former R.C. 3317.03(K), 2007 Am.Sub.H.B. No.
119.   Additionally, in the 2009 biennial budget bill, the General Assembly
immunized the department from liability for any legal claim for reimbursement
brought by a school district for the reduction of school-foundation funding for fiscal
years 2005, 2006, or 2007 (“budget provision”). See 2009 Am.Sub.H.B. No. 1,
Section 265.60.70.




                                          4
                                  January Term, 2016




E.     Toledo, Cleveland, and Dayton Litigation
       {¶ 12} In 2011, four years after the last reduction in funding resulting from
the 2005 adjustment of their formula ADMs, the boards filed complaints seeking
an order that the department had to pay their respective funds for fiscal years 2005
through 2007 using only the formula ADMs from the October counts and not from
the CSADMs. The boards also sought equitable restitution for funds they claimed
that the department had wrongfully withheld. Parents of some children in the
school districts joined the suits but did not allege separate claims. The three cases
were transferred to the Franklin County Court of Common Pleas and consolidated.
       {¶ 13} The department moved for judgment on the pleadings, arguing in
part that the budget provision barred the boards’ claims and insulated the
department from liability.     The trial court held that the budget provision’s
elimination of potential state liability was unconstitutionally retroactive. The Tenth
District Court of Appeals affirmed. 2014-Ohio-3741, 18 N.E.3d 505. It held that
the budget provision was unconstitutionally retroactive because it impaired the
boards’ “substantive right to School Foundation funds that accrued under the
statutory law in place for FY 2005 through FY 2007.” Id. at ¶ 42.
                               II. Law and Analysis
A.     Positions of the Parties
       {¶ 14} The department argues that the Retroactivity Clause protects private
parties, not arms of the state, and that therefore, the boards’ claims that the budget
provisions are unconstitutionally retroactive fails.     The department sets forth
numerous bases for its position. First, when the 1851 Constitution was adopted,
the settled meaning of “retroactive laws” did not reach laws affecting government
entities, and debate during the 1850-1851 constitutional convention reveals the
intention to incorporate the settled meaning into the Constitution. Second, the Ohio
Constitution’s structure reinforces the conclusion that the phrase “retroactive laws”
does not apply to laws affecting the state’s political arms. Third, decisions of this




                                          5
                             SUPREME COURT OF OHIO




court after the Constitution’s ratification hold that the Retroactivity Clause does not
prohibit retroactive laws negatively affecting state subdivisions.         Lastly, the
department argues that the Tenth District relied upon cases that did not squarely
address this issue.
       {¶ 15} In response, the boards argue that the Retroactivity Clause is
absolute in its prohibition and, as such, there is no reason to engage in historical
analysis. Nevertheless, if historical context is considered, they argue, the intention
of the framers was for the clause to protect all parties, not just private ones. The
boards posit that the framers’ discussion regarding the prohibition of retroactive
laws was discussed as an all-or-nothing proposition. They also contend that this
court has afforded political subdivisions the protections of the Retroactivity Clause.
B.     Constitutionality; General Considerations
       {¶ 16} Generally speaking, in construing the Constitution, we apply the
same rules of construction that we apply in construing statutes. Miami Cty. v.
Dayton, 92 Ohio St. 215, 223, 110 N.E. 726 (1915). Therefore, the intent of the
framers is controlling. State v. Jackson, 102 Ohio St.3d 380, 2004-Ohio-3206, 811
N.E.2d 68, ¶ 14. To determine intent, we must begin by looking at the language of
the provision itself. State ex rel. Maurer v. Sheward, 71 Ohio St.3d 513, 520, 644
N.E.2d 369 (1994). “Where the meaning of a provision is clear on its face, we will
not look beyond the provision in an attempt to divine what the drafters intended it
to mean.” Id. at 520-521. Words used in the Constitution that are not defined
therein must be taken in their usual, normal, or customary meaning. State ex rel.
Herman v. Klopfleisch, 72 Ohio St.3d 581, 584, 651 N.E.2d 995 (1995); see also
R.C. 1.42. If the meaning of a provision cannot be ascertained by its plain language,
a court may look to the purpose of the provision to determine its meaning. See
Castleberry v. Evatt, 147 Ohio St. 30, 67 N.E.2d 861 (1946), paragraph one of the
syllabus.




                                          6
                                January Term, 2016




C.      Retroactivity Clause
        {¶ 17} The Retroactively Clause of the Ohio Constitution, Article II,
Section 28, remains unchanged from its adoption in 1851:


                The general assembly shall have no power to pass retroactive
        laws, or laws impairing the obligation of contracts; but may, by
        general laws, authorize courts to carry into effect, upon such terms
        as shall be just and equitable, the manifest intention of parties, and
        officers, by curing omissions, defects, and errors, in instruments and
        proceedings, arising out of their want of conformity with the laws of
        this state.


        {¶ 18} The literal meaning of the clause is that the legislature is absolutely
prohibited from passing any law that is “ ‘made to affect acts or facts occurring, or
rights accruing, before it come into force.’ ” Bielat v. Bielat, 87 Ohio St.3d 350,
353, 721 N.E.2d 28 (2000), quoting Black’s Law Dictionary 1317 (6th Ed.1990).
This court, however, has recognized that “retroactivity itself is not always forbidden
by Ohio law.” Id. Instead, “there is a crucial distinction between statues that merely
apply retroactively * * * and those that do so in a manner that offends our
Constitution.” Id., citing Rairden v. Holden, 15 Ohio St. 207, 210-211 (1864), and
State v. Cook, 83 Ohio St.3d 404, 410, 700 N.E.2d 570 (1998). Accordingly, we
must look to the purpose of the Retroactivity Clause to determine whether the
statute at issue offends it.
D.      Meaning of Retroactivity in 1851
        {¶ 19} We begin by examining whether “retroactive laws” was a term of art
with an established meaning at the time of the ratification of the 1851 Constitution.
Compare Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30
(1990) (“ex post facto law” was a term of art with an established meaning at the




                                           7
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time of the framing of the United States Constitution). If so, the meaning may have
been incorporated from common law, see Richardson v. Doe, 176 Ohio St. 370,
372-373, 199 N.E.2d 878 (1964) (discussing the origin of the term “malpractice”
and noting that “where a statute uses a word which has a definite meaning at
common law, it will be presumed to be used in that sense”), or from other state
constitutions or laws at the time, see State ex rel. Durbin v. Smith, 102 Ohio St.
591, 599, 133 N.E. 457 (1921) (noting that the debates at the Ohio constitutional
convention show that Ohio’s referendum provision was copied from the Oregon
Constitution and that a decision of the Oregon Supreme Court regarding that
provision was considered at the convention).
       1.      Other States’ Constitutions
       {¶ 20} Prior to 1851, New Hampshire, Missouri, Tennessee, and Texas had
adopted constitutional provisions prohibiting retroactive laws. See New Hampshire
Constitution, Part 1, Article 23 (1784); Missouri Constitution, Article XIII, Section
17 (1820); Tennessee Constitution, Article 1, Section 20 (1834); Texas
Constitution, Article 1, Section 14 (1845). By 1851, the supreme courts of both
New Hampshire and Texas had had the opportunity to construe the meaning of their
respective provisions. See Merrill v. Sherburne, 1 N.H. 199, 212-213 (1818);
DeCordova v. Galveston, 4 Tex. 470, 479 (1849). The Merrill court, in concluding
that an act was unconstitutionally retroactive, stressed that only those retrospective
acts that “operate on the interests of individuals or of private corporations” violate
the constitution, explaining that “all public[] officers impliedly consent to
alterations of the institutions in which they officiate, provided the public[] deem it
expedient to introduce a change.” (Emphasis sic.) Merrill at 213, 217. The
DeCordova court noted Merrill’s statement about individuals and private
corporations and found that Merrill “illustrate[d] the intention of the [Texas]
convention in imposing the restriction.” DeCordova at 479.




                                          8
                                January Term, 2016




       2.      Established Common-Law Principles
       {¶ 21} At the time of the Ohio constitutional convention, it was an
established principle that an act was not unconstitutionally retroactive “unless [it]
impair[ed] rights which are vested: because most civil rights are derived from
public[] laws; and if, before the rights become vested in particular individuals, the
convenience of the state produces amendments or repeals of those law, those
individual have no cause of complaint.” (Emphasis sic.) Merrill at 213-214; see
also DeCordova at 470, 479-80 (law was unconstitutionally retrospective if it
“destroy[ed] or impair[ed] vested rights or rights to do certain actions or possess
certain things”); Proprietors of Kennebec Purchase v. Laboree, 2 Me. 275, 295
(1823) (finding a law unconstitutionally retroactive “because such operation would
impair and destroy vested rights” [emphasis sic]).
       {¶ 22} By 1851, it was understood that both individuals and private
corporations could acquire vested rights. The Supreme Court of the United States
had held that the charter founding a college that was a private corporation was a
contract between the government and the corporation and that the legislature could
not repeal, impair, or alter the rights and privileges conferred by the charter.
Trustees of Dartmouth College v. Woodward, 17 U.S. 518, 643-644, 650-654, 4
L.Ed. 629 (1819).
       {¶ 23} This court had, however, concluded that public corporations did not
enjoy vested rights:


       [A] public corporation, created for the purposes of government, can
       not be considered as a contract. * * * “In respect to public
       corporations, which exist only for public purposes, as counties,
       cities, and towns, the legislature, under proper limitations, have a
       right to change, modify, enlarge, or restrain them, securing,




                                         9
                                SUPREME COURT OF OHIO




       however, the property, for the uses of those for whom it was
       purchased.”


Marietta v. Fearing, 4 Ohio 427, 432 (1831), quoting 2 Kent’s Commentaries on
American Law (1st Ed.1827) 245.
       {¶ 24} The supreme courts of Louisiana and Indiana had espoused the same
principle. The Louisiana court had stated:


       The questions as to the violation of contracts or vested rights under
       the Constitution of the United States, or of the State, does not arise.
       Those questions grow entirely out of the violation of contracts with,
       or the vested rights of individuals or private corporations established
       for individual profit.
               The corporation of a town is established for public purposes
       alone, and to administer a part of the sovereign power of the State
       over a small portion of its territory. It is created by the Legislature
       and is entirely subject to Legislative will.


Police Jury of Bossier v. Corp. of Shreveport, 5 La.Ann. 661, 665 (1850). The
Indiana court had stated:


       The special powers conferred upon [public or municipal
       corporations] are not vested rights as against the State, but being
       wholly political exist only during the will of the general Legislature
       * * *. Such powers may at any time be repealed or abrogated by the
       Legislature, either by a general law operating upon the whole State,
       or by a special act altering the powers of the corporation.




                                         10
                                 January Term, 2016




Sloan v. State, 8 Blackf. 361, 364 (Ind.1847).
         {¶ 25} Around this time, the Supreme Court of the United States also
recognized that public corporations did not enjoy the same protections as
individuals and private corporations:


         [the legislature] had unquestionably the power to change its policy,
         and allow the company to pursue a different course, and to release
         it from its obligations both as to the direction of the road and the
         payment of the money. For, in doing this, it was dealing altogether
         with matters of public concern, and interfered with no private right;
         for neither the commissioners, nor the county, nor any one of its
         citizens, had acquired any separate or private interests which could
         be maintained in a court of justice.


Maryland v. Baltimore & Ohio RR. Co., 44 U.S. 534, 549-50, 11 L.Ed. 714 (1845)
(upholding a state legislature’s ability to revoke a previous grant of funds to a
county, because it had been made for public, not private, purposes and to a public
body).
         {¶ 26} Accordingly, at the time of the 1850-1851 constitutional convention,
two key principles were established. First, unconstitutional retroactive acts were
those that operated on the vested rights of individuals or of private corporations.
Second, political subdivisions as creatures of the state did not have vested rights.
E.       Debates of the 1850-1851 Constitutional Convention of Ohio
         {¶ 27} We have previously noted the function of the proceedings of the
constitutional convention in revealing the intent of a provision in the Constitution.
“ ‘[D]ebates of the convention * * * may fortify [the court] in following the natural
import of [the provision’s] language, and legitimately aid in removing doubts.’ ”
Steele, Hopkins & Meredith Co. v. Miller, 92 Ohio St. 115, 122, 110 N.E. 648




                                           11
                             SUPREME COURT OF OHIO




(1915), quoting Cass v. Dillon, 2 Ohio St. 607, 621 (1853). An examination of the
debates from the 1850-1851 constitutional convention confirms that the intent of
the framers was to incorporate the aforementioned principles regarding “retroactive
laws” into Article II, Section 28.
       {¶ 28} The debate regarding the retroactivity provision reveals that
delegates to the convention saw a need to provide private individuals with certainty
in the law. One delegate expressed his approval of the provision as it “settles
forever and conclusively one or two questions of controversy, which exist in this
State and leave the law in a most distressing uncertainty. It matters not whether it
is right or wrong—it has left the law in uncertainty and the rights of individuals
dependent upon the opinions of the Supreme Court.” 1 Report of the Debates and
Proceedings of the Convention for the Revision of the Constitution of the State of
Ohio, 1850-1851 (“Debates”) 268. The delegate also expressed his belief “in the
principle that men’s rights are to be settled by the law in force at the time they
accrued.” Id. at 270.
       {¶ 29} Similarly, another delegate expressed that


       it is indispensably necessary that the exercise of [the] power [to
       prescribe the rules of civil action] should only look ahead, that it
       should be only prospective in its operation, for the idea of making a
       rule to punish the action of men, or to affect their rights and interests,
       already past and accrued, would be as bad as the practice of the
       Roman despot, when he wrote his laws in small characters, and stuck
       them up so high that the people could not read them.


2 Debates 591.
       {¶ 30} The debate concerning the legislature’s ability to enact “curative”
laws was also centered on individuals. One delegate “intended merely to call




                                          12
                                January Term, 2016




attention to the difficulty that might arise out of the adoption of this section; and
which might go far to affect the rights of a citizen.” 1 Debates 265. Other delegates
stressed the desire to protect the legislature’s ability to pass curative laws as “they
are laws of peace and affording security to the rights of the citizen,” id. at 274, and
they “may be used for the protection of private rights—for the purpose of curing
those evils which sometimes arise in society, and which, if not cured, would work
immense mischief and wrong,” 2 Debates 240.
       {¶ 31} The delegation was also cognizant of the New Hampshire
Constitution’s retroactivity provision and its interpretation by the Merrill court. A
delegate in favor of adopting the retroactivity provision stated:


       the New Hampshire constitution contains a prohibition against retro-
       spective, or, as called here, retro-active laws[.] The[s]e two are
       equiv[a]lent terms. It * * * precludes [the legislature] from in
       terfering [sic] with any right already vested; from making any law
       which, instead of looking to the future, interferes with the rights of
       persons and property which are already vested. If gentlemen will
       look [at Merrill] they will find an opinion * * * which * * * discusses
       the whole subject of retro-active legislation, and the effect of this
       term retrospective.


1 Debates 269.
       {¶ 32} There was also an acknowledgment of the distinction that had
developed in case law between private and public corporations. Referencing
Trustees of Dartmouth College, 17 U.S. 518, 4 L.Ed. 629, and this court’s decision
in Fearing, 4 Ohio 427, one delegate stated that unlike private corporations,
municipal corporations “were always liable to repeal.” 2 Debates 270.




                                          13
                              SUPREME COURT OF OHIO




        {¶ 33} Accordingly, when Article II, Section 28 was adopted in 1851, the
delegates knew that similar provisions in other state constitutions had been
interpreted to “operate on the interests of individuals or of private corporations.”
Merrill, 1 N.H. at 212-213. They also comprehended that a legislative enactment
had to impair the vested rights of individuals or private corporations to be
unconstitutionally retroactive.
F.      Decisions after Adoption of Retroactively Provision
        {¶ 34} This court’s precedent in the years following the enactment of
Article II, Section 28 provides further support for finding that the Retroactivity
Clause applies to private citizens and corporations but not to political subdivisions.
We have rejected retroactivity challenges to legislation that sought to impose a new
duty and/or create a new obligation upon political subdivisions, consistently finding
that the state is able to injuriously affect its own rights.
        {¶ 35} A retroactivity challenge was asserted to legislation that imposed a
new obligation upon cities to pay bounties to Civil War veterans who had reenlisted
and to whom, at the time of reenlistment, the city had not made any promise or
pledge to pay a bounty. State ex rel. Bates v. Richland Twp. Trustees, 20 Ohio St.
362 (1870). We found that the legislature had not “transcended their constitutional
authority” because “counties, townships, and cities are public agencies in the
system of the State government; and, in the class of laws now under consideration,
they are employed by the legislature as mere instrumentalities to raise a tax for a
public object, and to effect its equitable distribution among those for whom it was
intended.” Id. at 371.
        {¶ 36} In examining the effect that a legislative amendment had on the
payment of unused vacation time upon a state employee’s retirement, we noted that
a “statute which impairs only the rights of the state may constitutionally be given
retroactive effect.” State ex rel. Sweeney v. Donahue, 12 Ohio St.2d 84, 87, 232
N.E.2d 398 (1967), citing State ex rel. Dept. of Mental Hygiene & Correction v.




                                           14
                                 January Term, 2016




Eichenberg, 2 Ohio App.2d 274, 207 N.E.2d 790 (9th Dist.1965) (“This law cannot
be deemed to be a retroactive law for it does not injuriously affect a citizen or
interfere with a citizen’s vested right”). Similarly, a challenge to a statute that
retroactively relieved a public official and his sureties of liability for lost or stolen
funds was without merit because “the legislature undoubtedly has authority to
release obligations which could only be * * * prosecuted [in the name of the state].”
Bd. of Edn. v. McLandsborough, 36 Ohio St. 227, 232 (1880).
        {¶ 37} This court also examined a retroactivity challenge to legislation that
validated previously ratified municipal ordinances authorizing contractors to lay
pipes to supply the public with steam heat and power. The legislation was found
to be valid because Article II, Section 28 “ ‘does not apply to legislation recognizing
or affirming the binding obligation of the state, or any of its subordinate agencies,
with respect to past transactions,’ ” but instead “ ‘is designed to prevent
retrospective legislation injuriously affecting individuals, and thus protect vested
rights from invasion.’ ” Kumler v. Silsbee, 38 Ohio St. 445 (1882), quoting New
Orleans v. Clark, 95 U.S. 644, 655, 24 L.Ed. 521 (1877).
        {¶ 38} In contrast to the foregoing, there is a body of cases that appears to
support a finding that political subdivisions are entitled to the protection granted
under Article II, Section 28. This court has found legislative acts that have imposed
new obligations on state subdivisions to be unconstitutionally retroactive. See
Hamilton Cty. Commrs. v. Rosche, 50 Ohio St. 103, 33 N.E. 408 (1893), paragraph
one of the syllabus (law requiring county to refund taxes that had already been
paid); State ex rel. Crotty v. Zangerle, 133 Ohio St. 532, 534-535, 14 N.E.2d 932
(1938) (law requiring county to refund tax penalties that had already been paid);
Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty. Bd. of Revision, 91 Ohio St.3d
308, 316-317, 744 N.E.2d 751 (2001) (law allowing parties to correct errors in
valuation complaints, which would impose new burdens on county officials to
defend previously dismissed claims).




                                           15
                             SUPREME COURT OF OHIO




       {¶ 39} Upon close examination, however, these cases are all silent on the
threshold issue; that is, whether political subdivisions have rights under Article II,
Section 28. Instead, in each case, there is an assumption that the protection afforded
by the Retroactivity Clause is available to political subdivisions and the analysis is
solely devoted to whether the law in question is retroactive. Accordingly, these
cases lack precedential value and we are not bound by them. See State ex rel.
United Auto., Aerospace & Agricultural Implement Workers of Am. v. Bur. of
Workers’ Comp., 108 Ohio St.3d 432, 2006-Ohio-1327, 844 N.E.2d 335, ¶ 46
(“ ‘ “when questions of jurisdiction have been passed on in prior decisions sub
silentio, this Court has never considered itself bound when a subsequent case finally
brings the jurisdictional issue before us” ’ ”), quoting Grendell v. Ohio Supreme
Court, 252 F.3d 828, 837 (6th Cir.2001), quoting Hagans v. Lavine, 415 U.S. 528,
535, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), fn. 5.
       {¶ 40} Our decision in Avon Lake City School Dist. v. Limbach, 35 Ohio
St.3d 118, 518 N.E.2d 1190 (1988), provides strong support for determining that
political subdivisions do not have rights under Article II, Section 28. In that case,
two school districts challenged the tax commissioner’s valuation of personal
property of public utility companies. The Board of Tax Appeals dismissed the
appeals, ruling that the school districts did not have standing to file an appeal. We
were presented with the issue whether the dismissals by the Board of Tax Appeals
deprived the school districts of their right to due process of law. We reviewed cases
that “conclude[d] that a political subdivision may not invoke the protection
provided by the Constitution against its own state and is prevented from attacking
the constitutionality of state legislation on the grounds that its own rights had been
impaired.” Id. at 121-122. “[P]ersuaded that a school district is a political
subdivision created by the General Assembly and that it may not assert any
constitutional protections regarding due course of law or due process of law against
the state, its creator,” we concluded that the school districts could not “assert these




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protections against the state by asking [us] to declare the statute unconstitutional
for these reasons.” Id. at 122.
       {¶ 41} Accordingly, we have recognized that political subdivisions are not
entitled to all protections afforded by the Constitution. Additionally, our precedent
in the years following the enactment of Article II, Section 28 provides strong
support for concluding that the Retroactivity Clause does not apply to political
subdivisions.
G.      Decisions by Sister Supreme Courts
       {¶ 42} A number of our sister supreme courts have examined whether the
prohibition on retroactive laws extends to political subdivisions; their opinions
provide additional guidance. The supreme courts of New Hampshire and Texas
have both reaffirmed their previous holdings. See Nottingham v. Harvey, 120 N.H.
889, 898, 424 A.2d 1125 (1980) (a town “is a mere political subdivision of the State
over which the legislature may exercise complete control”); Deacon v. Euless, 405
S.W.2d 59, 62 (Tex.1966) (“Municipal Corporations do not acquire vested rights
against the State”). The supreme courts of Massachusetts, Idaho, and Tennessee
have concluded similarly. See Greenaway’s Case, 319 Mass. 121, 123, 65 N.E.2d
16 (1946) (no constitutional challenge can succeed where a state enacts retroactive
legislation impairing its own rights); Garden City v. Boise, 104 Idaho 512, 515, 660
P.2d 1355 (1983) (legislature has absolute power to change, modify, or destroy at
its discretion the powers granted to a municipal corporation); State ex rel. Meyer v.
Cobb, 467 S.W.2d 854, 856 (Mo.1971) (retroactivity provision is for the protection
of the citizen and not the state, and the state may retroactively impose new liabilities
on itself or its governmental subdivisions). The United State Supreme Court has
also reached the same conclusion with respect to Louisiana’s constitution. New
Orleans v. Clark, 95 U.S. at 655, 24 L.Ed. 521 (prohibition against retroactivity is
to prevent injuriously affecting individuals; it does not apply to recognizing or




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affirming a binding obligation of the state or its subordinate agencies with respect
to past transactions).
        {¶ 43} A Missouri case is particularly instructive due to its similarities to
the case now before us. See Savannah R-III School Dist. v. Pub. School Retirement
Sys. of Missouri, 950 S.W.2d 854 (Mo.1997). In that case, the Missouri Public
Employees Retirement System had notified school districts that the value of health-
insurance premiums provided to teachers was to be included as salary for the
purpose of calculating the teachers’ contribution amount.              Years later, some
districts filed a class-action lawsuit seeking a refund of the overpayment, as the
legislative definition of salary did not include health-insurance premiums. While
the action was pending, the Missouri legislature amended the statute so that the
definition of salary included health-insurance premiums. The legislation also stated
that any contributions made before the effective date of the amendment were
deemed to have been in compliance with the statute.
        {¶ 44} The       school     districts    argued   that   the   amendment    was
unconstitutionally retroactive. The court rejected the challenge, noting that the
prohibition’s purpose was to protect citizens, not the state. The court’s statement
regarding school districts is particularly germane:


        “School districts are bodies corporate, instrumentalities of the state
        established by statute to facilitate effectual discharge of the General
        Assembly’s constitutional mandate to establish and maintain free
        public schools * * *.” State ex rel. Independence Sch. Dist. v. Jones,
        653 S.W.2d 178, 185 (Mo. banc 1983) (quotation omitted). As
        “creatures of the legislature,” the rights and responsibilities of
        school districts are created and governed by the legislature. Id.
        Hence, the legislature may waive or impair the vested rights of
        school districts without violating the retrospective law prohibition.




                                                18
                                 January Term, 2016




        Dye v. School Dist. No. 32, 355 Mo. 231, 195 S.W.2d 874, 879 (banc
        1946).


Savannah R-III School Dist., 950 S.W.2d at 858.
                                   III. Conclusion
        {¶ 45} The avenues examined all converge at the conclusion that political
subdivisions are not entitled to the protection of Article II, Section 28. Prior to the
1850-1851 constitutional convention, the law that had developed in the country was
that retroactivity provisions protected the vested rights of individuals and private
corporations and that public corporations did not have vested rights. The debates
from the convention reveal that the delegates understood this to be the scope of the
protection provided by the retroactivity provision. Our early cases reflect this
understanding. Finally, the weight of the authority from our sister supreme courts
points toward the same conclusion.
        {¶ 46} Accordingly, we hold that the Retroactivity Clause, Article II,
Section 28 of the Ohio Constitution, does not protect political subdivisions, like
school districts, that are created by the state to carry out its governmental functions.
Therefore, the legislature was able to authorize the department to adjust local school
funding calculations and to retroactively immunize the department from liability
for any legal claim of reimbursement by a school district for a reduction of school-
foundation funding, without violating the Retroactivity Clause. We reverse the
judgment of the Tenth District and remand the matter to the trial court for
consideration of the issues not addressed in its decision on the department’s motion
for judgment on the pleadings.
                                                                   Judgment reversed
                                                                 and cause remanded.
        O’CONNOR, C.J., and O’DONNELL and FRENCH, JJ., concur.
        PFEIFER, J., concurs in judgment with an opinion.




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                             SUPREME COURT OF OHIO




       O’NEILL, J., dissents with an opinion that LANZINGER, J., joins.
                               _________________
       PFEIFER, J., concurring.
       {¶ 47} I concur in the judgment of the majority but not in the reasoning
behind that judgment. As Justice O’Neill states in his dissent, Article II, Section
28 of the Ohio Constitution provides “a restraint on the power of the General
Assembly.” Dissenting opinion at ¶ 56. That restraint is a clearly stated, absolute
prohibition without limitation. We need not go outside the text of the Ohio
Constitution to search for meaning. “Where there is no doubt, no ambiguity, no
uncertainty as to the meaning of the language employed by the Constitution makers,
there is clearly neither right nor authority for the court to assume to interpret that
which needs no interpretation and to construe that which needs no construction.”
State v. Rose, 89 Ohio St. 383, 387, 106 N.E. 50 (1914).
       {¶ 48} Political subdivisions may successfully sue the state based on
violations of the Retroactivity Clause. See, e.g., Hamilton Cty. Commrs. v. Rosche,
50 Ohio St. 103, 112-113, 33 N.E. 408 (1893); see also State ex rel. Crotty v.
Zangerle, 133 Ohio St. 532, 534-535, 14 N.E.2d 932 (1938).
       {¶ 49} In a recent case, Cincinnati School Dist. Bd. of Edn. v. Hamilton Cty.
Bd. of Revision, 91 Ohio St.3d 308, 744 N.E.2d 751, this court held that an
amendment to R.C. 5715.19 that allowed taxpayers to refile previously dismissed
challenges to real-property-valuation assessments before county boards of revision
“violate[d] Section 28, Article II of the Ohio Constitution, which prohibits the
enactment of retroactive legislation.” Id. at paragraph two if the syllabus. This
court had held in Sharon Village Ltd. v. Licking Cty. Bd. of Revision, 78 Ohio St.3d
479, 678 N.E.2d 932 (1997), that a valuation complaint filed on behalf of a
corporation by a nonattorney was invalid, affirming the board of revision’s
dismissal of the corporation’s valuation complaint for lack of jurisdiction.
Cincinnati at 310. The General Assembly, through passage of Sub.H.B. No. 694,




                                         20
                                January Term, 2016




set out to ease the effect of that decision. Among other things, that bill created an
exception to the general statutory rule that a real-property taxpayer is, in the
absence of a showing of a change in circumstances, prohibited from filing
successive valuation complaints in the same three-year period. Id. The amendment
essentially allowed taxpayers adversely affected by the Sharon Village decision a
“do-over” to refile their complaint, exempting them from the three-year rule.
       {¶ 50} This court held that the General Assembly could relax the three-year
rule but could not do so retroactively because of the effect of a retroactive
application on political subdivisions:


       The county officials who opposed reduction in assessed valuations
       when the first complaints were dismissed could have concluded that
       those dismissals, followed by exhaustion of judicial review, ended
       the valuation proceedings and established the value of the property
       for the triennium period, thereby creating a “reasonable expectation
       of finality.” Cf. State ex rel. Matz v. Brown (1988), 37 Ohio St.3d
       279, 281, 525 N.E.2d 805, 808. But Sub.H.B. No. 694 imposes on
       those officials a burden to again defend the value determined by the
       auditor and, potentially, to refund taxes if the complainant is
       successful. Under Bielat [v. Bielat, 87 Ohio St.3d 350, 721 N.E.2d
       28 (2000),] and Crotty, Sub.H.B. No. 694 is unconstitutionally
       retroactive because it creates a new right while, at the same time,
       imposing a new burden on parties who had appeared in opposition
       to the merits of once-dismissed valuation complaints or
       countercomplaints.


Id. at 316-317.




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        {¶ 51} Despite the fact that this court held in Cincinnati that Sub.H.B. No.
694 was unconstitutionally retroactive, the majority states that the holding “lack[s]
precedential value” because it employs “an assumption that the protection afforded
by the Retroactivity Clause is available to political subdivisions, and the analysis is
solely devoted to whether the law in question is retroactive.” Majority opinion at
¶ 39.   How could this court find in Cincinnati that Sub.H.B. No. 694 was
unconstitutionally retroactive because it imposed a new burden on political
subdivisions without the implicit holding that the protection provided by Article II,
Section 28 is available to political subdivisions? Certainly, nothing in the plain
language of the Ohio Constitution would have suggested otherwise to the court in
Cincinnati. Further, none of this court’s precedents cited by the majority comes
close to establishing a categorical denial of the protections of the Retroactivity
Clause for political subdivisions.
        {¶ 52} Nonetheless, I would hold that the Retroactivity Clause does not
apply in this case. The school districts in this case had no vested right or reasonable
expectation of finality in the Ohio Department of Education’s treatment of funds
that were as yet undistributed. The ODE was not powerless to dispute enrollment
figures submitted by the districts and to adjust the funds to be distributed.
        {¶ 53} The nuclear option imposed by the majority is not necessary to reach
a conclusion in favor of the state in this case. We need only determine whether the
particular measures passed by the General Assembly “impair[ed] vested rights,
affect[ed] an accrued substantive right, or impose[d] new or additional burdens,
duties, obligations or liabilities as to a past transaction.” Bielat, 87 Ohio St.3d at
354, 721 N.E.2d 28. Instead, the majority eliminates even the possibility that the
General Assembly could ever pass legislation that is unconstitutionally retroactive
as to political subdivisions. The majority thus removes an important check on the
power of the General Assembly. This court—not our Constitution—has given the




                                          22
                                 January Term, 2016




clear green light to the General Assembly to assert a power it had no reason to
believe it had until today.
                                _________________
         O’NEILL, J., dissenting.
         {¶ 54} Respectfully, I must dissent. I would hold that the uncodified
language in the 2009 budget bill that extinguished the public school districts’ cause
of action against the Ohio Department of Education (“ODE”) violates the
constitutional prohibition on the passage of retroactive laws.
         {¶ 55} The Retroactivity Clause, Article II, Section 28 of the Ohio
Constitution, provides:


                 The general assembly shall have no power to pass retroactive
         laws, or laws impairing the obligation of contracts; but may, by
         general laws, authorize courts to carry into effect, upon such terms
         as shall be just and equitable, the manifest intention of parties, and
         officers, by curing omissions, defects, and errors, in instruments and
         proceedings, arising out of their want of conformity with the laws of
         this state.


         {¶ 56} The majority’s conclusion that the Retroactivity Clause does not
protect school districts created by the state ignores the plain language of the
provision itself. The plain language of the Retroactivity Clause does not confer
protection upon anyone. Article II, Section 28 of the Ohio Constitution is instead
a restraint on the power of the General Assembly. It prohibits the legislature from
passing laws that are retroactive. It really is that simple.
         {¶ 57} In our system of government, the people possess all governmental
power.     In the constitutional distribution of power, the three branches of
government have areas of overlapping power but none of the three branches is




                                          23
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subordinate. Johnson v. Taulbee, 66 Ohio St.2d 417, 422, 423 N.E.2d 80 (1981),
citing Hale v. State, 55 Ohio St. 210, 213-214, 45 N.E. 199 (1896). The legislative
branch decides what the law will be, the executive branch applies the law, and the
judiciary interprets the law. As we explained in Bartlett v. State, the General
Assembly “cannot annul, reverse, or modify a judgment of a court already rendered,
nor require the courts to treat as valid laws those which are unconstitutional. If this
could be permitted, the whole power of the government would at once become
absorbed and taken into itself by the Legislature.” 73 Ohio St. 54, 58, 75 N.E. 939
(1905).
          {¶ 58} As the Tenth District pointed out, this court has established the
analysis required to determine whether the retroactive application of a statute
violates the Retroactivity Clause. 2014-Ohio-3741, 18 N.E.3d 505, ¶ 26, citing
State v. White, 132 Ohio St.3d 344, 2012-Ohio-2583, 972 N.E.2d 534, ¶ 27. The
first step is to determine whether the law was intended to apply retroactively. White
at ¶ 27. The second step is to determine whether the statute is remedial or
substantive. Id. And if the statute is substantive, retroactive application of the
statute is forbidden. Id.
          {¶ 59} In White, this court reiterated that if a statute affects an accrued
substantive right, the statute is substantive. Id. at ¶ 34. Again, we need look no
further than one of this court’s own decisions. In State ex rel. Kenton City School
Dist. Bd. of Edn. v. State Bd. of Edn., 174 Ohio St. 257, 260-262, 189 N.E.2d 72
(1963), this court determined that the school-funding statute at issue in that case,
R.C. 3317.02, created a right that was not affected by the subsequent amendment
of the statute. Accordingly, the district was entitled to the school-funding formula
guaranteed by the statute. And most importantly, the district was entitled to enforce
the statutory formula by a writ of mandamus. Id. at 262-263.
          {¶ 60} As this court thoroughly and eloquently explained in State v. Bodyke,
126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, protecting the borders




                                           24
                                 January Term, 2016




separating the three branches of government preserves the integrity and harmony
of the government as a whole. Id. at ¶ 42-49. Despite the challenge of navigating
the boundaries between interdependence and independence of the three branches,
we must be vigilant against provisions of law that impermissibly threaten the
integrity of the judiciary. Id. at ¶ 50-53.
        {¶ 61} The simple fact is that for fiscal years 2005 through 2007, the validly
enacted ADM formula provided the sole means for ODE to distribute funds to
public schools. Unlike current law, the law in effect for fiscal years 2005 through
2007 provided no departmental discretion to modify the statutory formula, yet that
is what the department did.       There is nothing any of the three branches of
government can do to change what the law was at the time these funds were
wrongfully withheld from public schools. It is the role of the judiciary to interpret
the law and to order the state to comply with the law. The uncodified language at
issue here works to legislatively extinguish the public schools’ causes of action
under the validly enacted statutory school-funding formula. In so doing, the
General Assembly has retroactively eliminated a substantive right and
impermissibly encroached upon the role of the judiciary.
        {¶ 62} This is not an action for punitive damages or an action to otherwise
feather the nests of the districts. This action seeking a writ of mandamus and
equitable restitution is a means for the public school districts to recover public
dollars. Mandamus is one of the means by which courts force governmental actors
to comply with the law.
        {¶ 63} The framers of the Ohio Constitution were absolutely clear about
who the Retroactivity Clause applies to. It applies to the legislature. Clearly, the
Ohio legislature has the constitutional authority to adjust school-funding statutes
prospectively. However, it is the province of the courts to interpret and apply the
law as enacted. It is beyond dispute that the legislature is without the constitutional
authority to retroactively “adjust” the school-funding statutes in order to extinguish




                                          25
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a public school district’s substantive ability to enforce a validly enacted statute. I
dissent.
       LANZINGER, J., concurs in the foregoing opinion.
                               _________________
       Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor,
Michael J. Hendershot, Chief Deputy Solicitor, Hannah C. Wilson, Deputy
Solicitor, and Todd R. Marti, Assistant Attorney General, for appellants.
       Bricker & Eckler, L.L.P., Nicholas A. Pittner, James J. Hughes III, Susan
B. Greenberger, and Jennifer A. Flint, for appellees Toledo City School District
Board of Education, Dayton City School District Board of Education, and
Cleveland Metropolitan School District Board of Education.
       Marshall & Marshall, L.L.C., and Amy M. Natyshak, for appellee Toledo
City School District Board of Education.
       Jyllian R. Guerriero, for appellee Dayton City School District Board of
Education.
       Wayne J. Belock, for appellee Cleveland Metropolitan School District
Board of Education.
       Scott, Scriven & Wahoff, L.L.P., Patrick J. Schmitz, and Derek J. Towster,
urging affirmance for amici curiae Ohio School Boards Association, Buckeye
Association of School Administrators, Ohio Association of School Business
Officials, Ohio Education Association, and Ohio Federation of Teachers.
       Peck, Shaffer & Williams, Thomas A. Luebbers, and Michael T. Dean,
urging affirmance for amicus curiae County Commissioners Association of Ohio.
                              ___________________




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