Buckeye Community Hope Foundation v. City of Cuyahoga Falls

Moyer, C.J.,

dissenting. I respectfully dissent because the citizens of a municipality may not exercise powers of referendum, by charter or other means, greater than those powers granted by Section If, Article II of the Ohio Constitution.

I

Paragraph one of the syllabus in the majority opinion states that Section If, Article II of the Ohio Constitution does not limit the authority of municipalities to exercise the powers of self-government conferred by Sections 3 and 7 of Article XVIII. I disagree.

*571While the Home Rule Amendment grants broad powers to municipalities, the scope of those powers is confined by the remaining clauses of the Constitution. Section 3, Article XVIII provides, “Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.” In Canton v. Whitman (1975), 44 Ohio St.2d 62, 73 O.O.2d. 285, 337 N.E.2d 766, this court interpreted Section 3, Article XVIII: “This section, adopted in 1912, preserved the supremacy of the state in matters of ‘police, sanitary and other similar regulations,’ while granting municipalities sovereignty in matters of local self-government, limited only by other constitutional provisions. Municipalities may enact police and similar regulations under their powers of local self-government, but such regulations ‘must yield to general laws of statewide scope and application * * *.’ ” (Emphasis added.) Id. at 65, 73 O.O.2d at 287, 337 N.E.2d at 769. Thus, true sovereignty of municipal governments can be limited only by other provisions of the Constitution with respect to matters that are not of “police, sanitary and other similar regulations.” Conversely, it is evident that matters of “police, sanitary and other similar regulations” are subject to the supremacy of state power, i.e., “general laws of statewide scope and application,” as well as other provisions of the Constitution that may limit the exercise of this power.

Similarly, we described the limits of charter government by interpreting Section 7, Article XVIII, as follows: “A municipality that chooses to adopt a charter does so in order to manage its own purely local affairs without interference from the state, with the understanding that those local laws will not conflict with the constitution and general laws.” (Emphasis added.) Rispo Realty & Dev. Co. v. Parma (1990), 55 Ohio St.3d 101, 102, 564 N.E.2d 425, 426-427.

In Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864, paragraph one of the syllabus, the court held that a “charter city has all powers of local self-government except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of the municipality which the Constitution has authorized the General Assembly to impose.” (Emphasis added.) Therefore, any exercise of municipal authority under charter and pursuant to Section 3 must not, in order to be valid, conflict with any remaining provision of the Constitution. In essence, the authority to “exercise all powers of local self-government” is a delegation of the power to exercise all powers that are within the bounds of the Constitution.

The constitutional provision at issue here is Section If, Article II, which states that “[t]he initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter *572be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.”

Assuming, without analyzing, that the majority is correct in concluding that Section If, Article II is not a self-executing provision, see State ex rel. Bramblette v. Yordy (1970), 24 Ohio St.2d 147, 53 O.O.2d 348, 265 N.E.2d 273, governing bodies that may act to execute the powers of referendum and initiative as stated in Section If, Article II are municipal legislative bodies, where a municipality is governed by charter, and the General Assembly, which provides governing law on referendum and initiative matters for noncharter municipalities. R.C. 731.28 through 731.41.

However, when either a city council of a charter municipality or the General Assembly acts to execute the powers of Section If, Article II, the powers conferred by such an action cannot, by the very nature of the source, exceed the scope of the referendum and initiative powers contained in Section If, Article II. The legislative body may act only to execute those referendum and initiative powers that were reserved to the people of municipalities, by the people of the state, as stated in Section If, Article II.

As the United States Supreme Court stated in Eastlake v. Forest City Ent., Inc. (1976), 426 U.S. 668, 672, 96 S.Ct. 2358, 2361, 49 L.Ed.2d 132, 137, “[u]nder our constitutional assumptions, all power derives from the people, who can delegate it.to representative instruments which they create.” Therefore, to the extent that the action of a legislative body is required to execute power that the people have reserved for themselves, i.e., to execute a nonself-executing provision, the legislative body, in doing so, may not go beyond the power that has been reserved. Such an improper action would violate the intentions of the people of Ohio who established the Constitution, with the principle, among others, that any powers not so kept are assigned by the people, to be considered and decided on behalf of the people, by their representatives in legislative bodies.

Applying these principles to the majority’s analysis of the “nonself-executing” nature of Section If, Article II, it is apparent that the majority’s conclusions are not correct. In arriving at the determination that Section If, Article II does not limit the authority of municipalities to exercise local governing power, the majority confuses the original source of authority for initiative and referendum measures. The majority’s view implies that all a legislative body must do to execute Section If, Article II is enact legislation providing for initiative and referendum rights. Under the majority’s conclusions, charter municipalities may grant greater initiative and referendum rights than the General Assembly may grant to noncharter municipalities, despite the fact that the source for granting these powers in both cases is the same — Section If, Article II.

*573For charter municipalities, the source of authority, according to the majority, is “found in Sections 3 and 7, Article XVIII.” However, what this truly means is that the source of authority to carry into effect Section If, Article II, for charter municipalities, is Sections 3 and 7 of Article XVIII. The source of authority to carry into effect Section If, Article II, for the General Assembly, is Section 1, Article II. Those provisions used to carry into effect Section If, Article II are limited to executing only the powers specified in Section If, Article II. There is no constitutional authority given by the people to go beyond the meaning of Section If, Article II.

By its syllabus that Section If, Article II does not limit the authority of municipalities to “exercise all powers of local self-government,” the majority has overlooked that any action to carry into effect the provisions of Section If, Article II must be consistent with the limits established by that provision, since it is the sole constitutional source of referendum and initiative powers. Otherwise, the meaning of any constitutional provision we deem to be nonself-executing could be altered by the words of the legislation that is enacted to carry the provision into effect. The grant of local governing power to carry into effect Section If, Article II is therefore limited to actions that are consistent with the words of that provision.

Therefore, an analysis of Section If, Article II is required to determine the scope of referendum and initiative powers that the people have reserved to themselves and, correspondingly, what powers are delegated to the legislative branches. It is this analysis that then determines the validity of the charter provision at issue here, i.e., whether the powers of referendum and initiative granted by that charter provisions are within the bounds of Section If, Article II.

II

“The first step in determining the meaning of a constitutional provision is to look at the language of the provision itself.” State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513, 520, 644 N.E.2d 369, 375. Section If, Article II provides, in part, that “[t]he initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action.” (Emphasis added.) Therefore, whether the submission of the issue to the voters by the city in this case was constitutional turns on the meaning of “legislative action,” and if that issue was one that the municipality was authorized to determine by legislative action.

Words used in the Constitution that are not defined therein must be taken in their usual, normal, or customary meaning. See State ex rel. Herman v. Klopfleisch (1995), 72 Ohio St.3d 581, 584, 651 N.E.2d 995, 998; R.C. 1.42. *574Black’s Law Dictionary (6 Ed.1990) 899, defines “legislative” as “[mjaking or giving laws; * * * [ajctions which relate to subjects of permanent or general character are ‘legislative.’ ” Similarly, “legislative act” is defined as the “[e]nactment of laws. Law * * * passed by legislature in contrast to court-made law. One which prescribes what the law shall be in future cases arising under its provisions. ” (Emphasis added.) Id. Accordingly, the phrase “legislative action,” taken in its usual and customary meaning, is essentially the process by which law is enacted that prescribes what the law shall be in future cases arising under its provisions. The wording of Section If, Article II therefore means that initiative and referendum powers are reserved on all questions that a municipality may determine legislatively, i.e., on all questions that are resolved by enacting laws that have a general, prospective application.

In determining whether the issue here was one that the city was authorized to control by legislative action, it first must be understood that the distinction by this court in the past, and by the parties here, between “legislative” and “administrative” actions does not truly capture the actual meaning of “legislative action” as stated in Section If, Article II. That distinction is incorrect because administrative actions may include, according to general principles of administrative law, the performance of “quasi-legislative,” or rulemaking, as well as “quasi-judicial,” or adjudicatory, functions. The true determination to be made is whether a city council, acting pursuant to its administrative powers, see Donnelly v. Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500, paragraph one of the syllabus, is acting in a legislative or judicial capacity. Indeed, the first step in analyzing an administrative action is to determine whether the process is one of adjudication or rulemaking. 1 Koch, Administrative Law and Practice (2 Ed.1997) 45, Section 2.11.

An administrative action that is adjudicatory is a “determination of individual rights or duties.” Id. It is a decision-making process that applies “preexisting standards to individual circumstances,” and uses the specific facts of the case “to decide whether a given rule is applicable.” Any resultant policy making is incidental to the dispute. Id. at 46. See, also, Londoner v. Denver (1908), 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103. Administrative adjudications are often initiated by private citizens. “Private individuals find that they cannot engage in a certain conduct or activity without clearance from an administrative agency.” 2 Koch at 119, Section 5.31. " “[T]he applicant will first receive an administrative determination and the hearing will result only if the applicant chooses to challenge the result of that determination. One aspect of an application for a license or permit is that there are competing private interests.” Id.

By contrast, rulemaking is more like the activity of legislating. See 1 Koch at 47, Section 2.11. While the processes used to establish rules sometimes differ *575from typical legislative processes, the objective and the outcome of rulemaking is similar — the implementation of law or policy for the future. See United States v. Florida East Coast Ry. Co. (1973), 410 U.S. 224, 244-246, 93 S.Ct. 810, 820-821, 35 L.Ed.2d 223, 239-240. Rulemaking is characterized by a focus on general issues that affect future conduct, with an intent on making policy determinations: “The core facts in rulemaking are general facts. Rulemaking is investigation rather than individual dispute resolution and hence it is often said to be by nature legislative. It is a legislative-like activity because it focuses on resolving some sort of policy-type question and not merely resolution of factual disputes.” 1 Koch at 48, Section 2.11. See, also, Bi-Metallic Investment Co. v. State Bd. of Equalization (1915), 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372. Many of the rules established pursuant to the rulemaking process envision some form of public participation, a feature which is not apparent in adjudicatory proceedings. See 1 Koch at 325-326, Section 4.11.

The difference between adjudicatory and rulemaking administrative actions is important because city councils may preside over the performance of these functions by a variety of administrative agencies. “[A] city council may perform not only legislative acts, but administrative acts as well.” Myers v. Schiering (1971), 27 Ohio St.2d 11, 13, 56 O.O.2d 6, 7, 271 N.E.2d 864, 865. “A public body essentially legislative in character may act in an administrative capacity.” Donnelly, at paragraph one of the syllabus. When a city council has acted to approve or exercise final decision over an “administrative action” by an agency, as has happened in this case, the underlying nature of the act, i.e., adjudicatory or legislative, is critical because it is determinative of whether the final action by city council constitutes “legislative action,” or whether council is acting as the final arbiter in an adjudicatory process. If, for example, a city council participates as the final decisionmaker in the rulemaking process by approving the establishment of a rule, then it may be said that the council has acted, albeit in an administrative capacity, by “legislative action.” It has acted pursuant to a process that enacts law prescribing what the law shall be in future cases arising under its provisions. By contrast, if a city council has acted as the final decisionmaker in an adjudicatory matter that involves a determination of individual rights or duties by applying preexisting standards to a specific set of facts, then the action taken, whether by resolution or ordinance, cannot be said to be legislative. Rather, council is acting as a final arbiter, which cannot constitute “legislative action” that would permit the people to exercise initiative and referendum rights over such an action pursuant to Section If, Article II.

Applying those principles to this case, it is evident that the Cuyahoga Falls City Council acted in an adjudicatory manner when it passed Ordinance No. 48-1996 approving the plan for “development of land situated in an R-17 Medium Density Multiple Family zoning district in accordance with such district and *576zoning regulations as stipulated in the Codified Ordinances of the City of Cuyahoga Falls and as approved by the Planning Commission as per the plans and stipulations contained in Planning Commission File P-6-96-SP.” By the very words of the ordinance, the action by the council approves the Planning Commission’s application of the zoning regulations to Buckeye’s plan. Thus, the ordinance is a final determination of an application of the preexisting zoning standards to the individual plan submitted by the appellees. There are no rules approved in the ordinance, of the Planning Commission or any other agency, that are general and prospective in nature. There is no approval of any general public policy. The action taken by city council was an adjudicatory administrative action, which cannot by any definition fall under the phrase “legislative action” enumerated in Section If, Article II. Thus, there are no initiative or referendum rights which may be exercised on this question.

An analysis of the cases upon which Buckeye relies, Myers v. Schiering, and State ex rel. Srovnal v. Linton (1976), 46 Ohio St.2d 207, 75 O.O.2d 241, 346 N.E.2d 764, illustrates the correctness of the above approach in analyzing the true nature of “administrative actions” in interpreting “legislative action” under Section If, Article II. Like the case here, the underlying administrative actions in both cases were individualized, fact-specific matters which required an application of existing regulations to each circumstance. In Myers, the city council passed a resolution granting a permit to operate a landfill. In Srovnal, the city council adopted a resolution approving the Solon Planning and Zoning Commission’s issuance of a permit to build a hotel and office complex. Srovnal, 46 Ohio St.2d at 209, 75 O.O.2d at 242, 346 N.E.2d at 765-766. In both cases, this court held that the actions were not subject to referendum. Myers, at paragraph two of the syllabus; Srovnal, at syllabus. As in this case, both of the administrative actions there were adjudicatory in nature.

Ill

The majority opinion rests upon the assumption that because of Article XVIII, there is a difference in the initiative and referendum powers enjoyed by charter municipalities as opposed to noncharter municipalities. The majority’s distinction is one without a difference. Neither a charter nor a noncharter municipality can grant greater powers than those allowed by the Ohio Constitution. In this case, neither can grant more initiative or referendum power than what is permitted by Section If, Article II. An executing action going beyond the scope of Section If, Article II is not a valid action because there is no constitutional authority for such an action.

*577For the foregoing reasons, the judgment of the court of appeals should be reversed.

Pfeifer, J., concurs in the foregoing dissenting opinion.