Youngstown City School Dist. Bd. of Edn. v. State , 2017 Ohio 555 ( 2017 )

[Cite as Youngstown City School Dist. Bd. of Edn. v. State , 2017-Ohio-555.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Youngstown City School District :
Board of Education et al.,
:
Plaintiffs-Appellants,
: No. 15AP-941
v. (C.P.C. No. 15CV-7311)
:
State of Ohio et al., (REGULAR CALENDAR)
:
Defendants-Appellees.
:
D E C I S I O N
Rendered on February 16, 2017
On brief: Roth, Blair, Roberts, Strasfeld & Lodge L.P.A.,
James E. Roberts, David S. Barbee, Christine Z. Papa, and
Edward L. Ostrowski, for appellant Youngstown City School
District Board of Education; AFSCME Ohio Council 8, AFL-
CIO, and R. Sean Grayson, for appellant AFSCME Ohio
Council 8, AFL-CIO; Green, Haines, Sgambati, Co., L.P.A.,
Ira J. Mirkin, and Charles W. Oldfield, for appellants
Youngstown Education Association, Ohio Education
Association and Jane Haggerty. Argued: Charles W.
Oldfield.
On brief: Organ Cole LLP, Douglas R. Cole, and Carrie M.
Lymanstall, for appellee State of Ohio, Department of
Education and Superintendent of Public Instruction Lonny
Rivera. Argued: Douglas R. Cole.
APPEAL from the Franklin County Court of Common Pleas
BROWN, J.
{¶ 1} Plaintiffs-appellants Youngstown City School District Board of Education,
AFSCME Ohio Council 8, AFL-CIO, Youngstown Education Association, Ohio Education
Association, and Jane Haggerty, appeal from an order of the Franklin County Court of
Common Pleas denying their motion for a preliminary injunction.
No. 15AP-941 2
{¶ 2} Appellants began this action with a complaint seeking declaratory judgment
and challenging the constitutionality of 2015 Am.Sub.H.B. No. 70 ("H.B. No. 70"),
enacted by the 131st General Assembly and effective October 15, 2015. Although the
merits of the action, as will be established below, are not yet before us, the legislation at
issue amends Chapters 133, 3302, 3310, 3311, and 3314 of the Ohio Revised Code to grant
broader powers to defendant-appellee, the State of Ohio, through defendants-appellees
the Ohio Department of Education and the Superintendent of Public Instruction, to
identify under performing public school systems and intervene to implement remedial
measures. Appellant Youngstown City School District, under the current standards,
allegedly meets the negative criteria that would make it subject to appointment of an
"academic distress commission" under the new provisions of R.C. 3302.10(A) and (B).
That commission would then appoint a chief executive officer ("CEO") with operational,
managerial, and instructional control of the district under R.C. 3301.10(C)(1).
{¶ 3} After a two-day hearing, the trial court denied appellants' motion for a
preliminary injunction on October 13, 2015, two days before H.B. No. 70 would go into
effect. The trial court determined that appellants had not established by clear and
convincing evidence that they had a substantial likelihood of succeeding on the merits,
that they would suffer irreparable injury in the absence of an injunction, that there was a
grave risk to third parties if the state proceeded, and that an injunction was in the public
interest.
{¶ 4} Appellants have timely appealed from the trial court's denial of injunctive
relief. The matter is now before this court for an initial determination of whether the trial
court's denial of temporary injunctive relief constitutes a final, appealable order that
supports jurisdiction in this court. We find that it does not, and dismiss the appeal.
{¶ 5} Ohio appellate courts have jurisdiction to review only final, appealable
orders of trial courts within their districts. Ohio Constitution, Article IV, Section 3(B)(2);
R.C. 2501.02. In the absence of a final, appealable order, we lack jurisdiction and must
dismiss the appeal. Prod. Credit Assn. v. Hedges, 87 Ohio App. 3d 207, 210 (4th
Dist.1993), fn. 2. Subject-matter jurisdiction may not be waived or bestowed upon a court
by the parties to the case. State v. Wilson, 73 Ohio St. 3d 40, 46 (1995). As a result, an
appellate court may raise the question of its subject-matter jurisdiction sua sponte before
addressing the merits of an appeal. State ex rel. White v. Cuyahoga Metro. Hous. Auth.,
No. 15AP-941 3
79 Ohio St. 3d 543, 544 (1997); Noble v. Colwell, 44 Ohio St. 3d 92, 94 (1989); see also
Price v. Jillisky, 10th Dist. No. 03AP-801, 2004-Ohio-1221 (courts have not only the
authority but the duty to sua sponte examine an appeal for jurisdictional defects).
{¶ 6} A preliminary injunction is a provisional remedy, considered interlocutory,
tentative, and impermanent in nature. Wells Fargo Ins. Servs. USA v. Gingrich, 12th
Dist. No. CA2011-05-085, 2012-Ohio-677, ¶ 5. An order denying preliminary injunction
does not, therefore, qualify as a final, appealable order unless it meets the two-part test
set forth in R.C. 2505.02(B)(4) governing appeals from the grant or denial of provisional
remedies: "(a) The order in effect determines the action with respect to the provisional
remedy and prevents a judgment in the action in favor of the appealing party with respect
to the provisional remedy," and "(b) The appealing party would not be afforded a
meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action."
{¶ 7} The first prong of the statute is satisfied in this case because the trial court
has unequivocally denied appellants' request for a preliminary injunction. That order
fully determined the action with respect to the provisional remedy and prevented a
judgment in favor of appellants with respect to the requested injunctive relief. R.C.
2505.02(B)(4)(a). The remaining question, therefore, is "whether the denial of the
preliminary injunction precludes a meaningful or effective remedy by an appeal following
final judgment as to all proceedings, issues, claims, and parties in the action." Ankrom v.
Hageman, 10th Dist. No. 06AP-735, 2007-Ohio-5092, ¶ 10.
{¶ 8} We lack jurisdiction in this matter because appellants have not established,
pursuant to R.C. 2505.02(B)(4)(b), that they are deprived of a meaningful and effective
remedy in an appeal at a later stage of the proceedings.
{¶ 9} The declaratory judgment action that is at the heart of this case will
definitively address the constitutionality of H.B. No. 70. In the meantime, intervention in
school district affairs by appellees under the provisions of H.B. No. 70 does not
necessarily portend instantaneous, unilateral changes in school operations. The statute
provides for a series of steps, beginning with the appointment within 30 days of an
academic distress commission and designation of a chairperson by the state
superintendent of public instruction. R.C. 3302.10(B)(1). Sixty days after selection of a
chairperson, the commission is tasked with selecting and appointing a CEO for the school
No. 15AP-941 4
district. R.C. 3302.10(C)(1). While the CEO is vested with broad powers, R.C.
3302.10(C)(1)(a) through (q), the CEO is also required to meet with all community
stakeholders, and develop expectations for academic improvement. R.C. 3302.10(E)(1).
The CEO will also consult with stakeholder groups to formulate an overall plan directing
and improving the district's academic performance, which then is submitted to the
commission, which will review and approve or modify the plan. R.C. 3302.10(E)(2).
{¶ 10} Given the deliberate timeline encompassed by the legislation, the trial
court's denial of a temporary injunction in this case does not leave appellants without
recourse or effectively determine the action during the pendency of the trial court's
consideration of the constitutionality of the legislation in the underlying declaratory
judgment action. Denial of a provisional remedy in this case, particularly one considered
interlocutory, tentative, and impermanent, does not meet the two-part test of R.C.
2505.02(B)(4)(a) and (b) for a final, appealable order. We therefore sua sponte dismiss
this appeal.
Appeal dismissed.
SADLER, J., concurs.
BRUNNER, J., dissents.
BRUNNER, J., dissenting.
{¶ 11} This decision results from our review of the decision of the Franklin County
Court of Common Pleas denying preliminary injunction to plaintiffs-appellants,
Youngstown City School District Board of Education, AFSCME Ohio Council 8, AFL-CIO,
the Youngstown Education Association, and Jane Haggerty (collectively referred to as
"Youngstown"), sought against defendants-appellees, the State of Ohio, the Ohio
Department of Education, Superintendent of Public Instruction, and several individuals
("Ohio"). Youngstown sought an injunction against Ohio to stop it from implementing
new legislation pending final outcome of the action that would permit Ohio to take over1
Youngstown's responsibilities in educating the children of the Youngstown City School
District until certain legislated changes are made. This new legislation, Am.Sub.H.B. No.
1 Language from the bill includes the following: "[t]he school year in which the transition period begins
shall continue to apply and the chief executive officer shall work closely with the district board and district
superintendent to increase their ability to resume control of the district and sustain the district's
academic improvement over time." (Emphasis added.) R.C. 3302.10(N)(1).
No. 15AP-941 5
70, was adopted by the 131st Ohio General Assembly on June 24, 2015.2 I respectfully
dissent and would conclude that this Court has jurisdiction to hear Youngstown's appeal.
I would further find that the trial court abused its discretion when it denied Youngstown's
motion for preliminary injunction. Thus I would reverse the trial court's decision.
I. FACTS AND PROCEDURAL HISTORY
A. The Procedure in Adopting Am.Sub.H.B. No. 70
{¶ 12} While the majority briefly discussed the facts of the case before the trial
court, more detailed discussion of the facts is helpful. H.B. No. 70 was introduced in the
Ohio House of Representatives ("House") and read for the first time on February 18, 2015.
As introduced, the bill proposed to enact sections 3302.16, 3302.17, and 3302.18 of the
Revised Code to generally authorize school districts and community schools to initiate a
community learning center process to assist and guide school restructuring. H.B. No. 70
was read for a second time in the House on February 25, 2015, and it was referred to the
House Education Committee. The bill was reported out of committee and recommended
for passage on May 6, 2015. On May 19, H.B. No. 70 was reported out of committee, read
for a third time, and passed by the House. (Ex. 66, Sept. 29-30, 2015 Prelim. Inj.
Hearing.) H.B. No. 70 as passed by the House proposed the enactment of the three new
sections of law concerning public education in Ohio and was ten pages in length.
{¶ 13} H.B. No. 70 was read into the journal of the Ohio Senate ("Senate") on
May 20, 2015, having been referred to the Senate after the full House vote the previous
day. The bill was read into the journal of the Senate a second time on May 27, 2015, and
referred to the Senate Education Committee through an order of reference. Less than a
month later, on June 24, 2015, the Senate Education Committee adopted a substitute
H.B. No. 70 and reported it to the Senate Rules Committee for moving it to the Senate
floor for a vote by the full Senate. The Senate Education Committee had expanded H.B.
No. 70 to amend several existing sections of the Revised Code; to enact additional new
sections of the Revised Code; and to repeal an existing section of the Revised Code. The
Senate committee's changes caused H.B. No. 70 to become Sub.H.B. No. 70 and increased
the bill's length from 10 pages to 77 pages.
2 The Act was signed by the governor on July 16, 2015, and became effective on October 15, 2015.
No. 15AP-941 6
{¶ 14} Sub.H.B. No. 70 was read, amended,3 voted on, and passed by the full
Senate on June 24, 2015, the same day it was reported by the Senate Education
Committee to the Senate Rules Committee and scheduled for a floor vote. The same day,
Am.Sub.H.B. No. 70 was returned to the House for concurrence on Senate amendments.
The House floor vote on Am.Sub.H.B. No. 70 also occurred on the same day and resulted
in 55 members voting to concur in the Senate's changes and 40 voting against
concurrence. The lead sponsor of H.B. No. 70 voted against the Senate changes to H.B.
No. 70, and 24 of the 54 co-sponsors of the bill in the House withdrew their names as co-
sponsors when the House concurred in Senate changes to H.B. No. 70. All of this
occurred on one day, June 24, 2015. The governor signed Am.Sub.H.B. No. 70 on July 16,
2015.
B. The Substantive Differences between H.B. No. 70 and Am.Sub.H.B.
No. 70
{¶ 15} As introduced and passed by the House, H.B. No. 70 proposed enacting
three new sections in Ohio Revised Code Chapter 3302 so that, beginning with the 2015-
2016 school year, any school district board of education or community school governing
authority would be permitted to initiate the transition of any qualifying school building
under its control into a "community learning center." The bill defined "community
learning center" as a school or community school that "participates in a coordinated,
community-based effort with community partners to provide comprehensive educational,
developmental, family, and health services to students, families, and community
members during school hours and hours in which school is not in session." H.B. No. 70
at 1. The bill provided that a school building meeting any of the following conditions was
eligible for the community learning center process:
1. The building is in "improvement status," as defined by the
"No Child Left Behind Act of 2001" or under an agreement
between the Ohio department of education and the United
States secretary of education.
2. The building is a secondary school that is among the lowest
achieving fifteen percent of secondary schools statewide, as
determined by the department [of education].
3 The full Senate adopted two floor amendments to the bill before it was approved with a vote of 18 yeas
and 14 nays.
No. 15AP-941 7
3. The building is a secondary school with a graduation rate of
sixty percent or lower for three or more consecutive years.
4. The building is a school that the department [of education]
determines is persistently low-performing.
5. A school building is not in improvement status but for
which the school district board of education or community
school governing authority approves the operation of the
school as a community learning center.
H.B. No. 70 at 2-3.
{¶ 16} The House version of H.B. No. 70 prescribed procedural steps for initiating
the community learning center process, including holding public information hearings
and conducting an election among: (1) parents or guardians of students enrolled in the
building, (2) parents or guardians of students entitled to attend school in the building but
who are enrolled in a different school operated by a joint vocational school district, and
(3) teachers and non-teaching employees assigned to the building. In the event that a
community learning center process for a building were initiated, H.B. No. 70 provided for
the creation of a 12-member school action team comprised of parents or guardians of
students enrolled in school at the building, community members who are not teachers or
non-teaching employees, and teachers and non-teaching employees assigned to the school
building. The school action team would be responsible for carrying out certain duties
relating to monitoring and assisting in the community learning center implementation, as
well as monitoring progress related to academic achievement.
{¶ 17} When the Senate Education Committee reported out a substitute version of
H.B. No. 70, it retained the three sections of law that applied to all school districts of the
state as proposed by the original House version of H.B. No. 70. It also expanded the bill's
original community learning center model to include any school building where parents
supported the change through a voting process. But the committee also used H.B. No. 70
as a means to approach the collective test performance of students of the Youngstown City
School District through other provisions of the substitute bill that cause a drastic
restructuring of the Youngstown City School District. The substitute bill proposed
repealing existing R.C. 3302.10 (effective Sept. 17, 2014), which provided for a state-
appointed academic distress commission, and the enactment of a new R.C. 3302.10
(effective Oct. 15, 2015), which sets new standards for the academic distress commission
No. 15AP-941 8
and expands its powers. The new R.C. 3302.10 requires that the state superintendent of
public instruction establish a five-member academic distress commission for any school
district that meets one of the following conditions:
(1) The district has received an overall grade of "F" under
division (C)(3) of section 3302.03 of the Revised Code for
three consecutive years.
(2) An academic distress commission established for the
district under former section 3302.10 of the Revised Code
was still in existence on the effective date of this section and
has been in existence for at least four years.
R.C. 3302.10(A)(1) and (2).
{¶ 18} There was evidence heard at trial that numerous school districts had
received an "F" letter grade for having failed to meet state-required standards for the
2013-2014 school year. (Ex. 25 at 10-14.) However, the Youngstown City School District
is the only school district in the state of Ohio that fit the condition contained in R.C.
3302.10(A)(2) of having an academic distress commission as previously defined in the law
as of October 15, 2015 for at least four years. Under the language of the bill, Youngstown
was the only school district in the state that could be subject to the new condition of R.C.
3302.10(A)(2), since the old commission format was being dissolved under the bill and a
new one formed. R.C. 3302.10(B)(2). ("In the case of a school district that meets the
condition in division (A)(2) of this section, the academic distress commission established
for the district under former section 3302.10 of the Revised Code shall be abolished and a
new academic distress commission shall be appointed for the district pursuant to division
(B)(1) of this section.") And if an "improvement coordinator"4 was previously appointed
in the school district, the bill provides for that individual's termination through
termination of the position, but permits that that individual may be hired for other
positions by the new chief executive officer ("CEO") created under the bill. R.C.
3302.10(C)(2).
4 Under R.C. 3302.04(A)(2), an "improvement coordinator's" job is to "to coordinate the district's
academic improvement efforts and to build support among the community for those efforts."
No. 15AP-941 9
{¶ 19} The bill's new five-member academic distress commission is comprised of:
three members appointed by the state superintendent, one of whom is a resident of the
county in which a majority of the district's territory is located; one member appointed by
the president of the district board of education who must be a teacher employed by the
district; and one member appointed by the mayor of the municipality in which a majority
of the district's territory is located or, if no such municipality exists, by the mayor of a
municipality selected by the state superintendent in which the district has territory. R.C.
3302.10(B)(1)(a) through (c).
{¶ 20} The substitute bill requires the new academic distress commission for the
Youngstown City School District to appoint an individual having high-level management
experience in the public or private sector as CEO. R.C. 3302.10(C)(1). The CEO has
complete operational, managerial, and instructional control of the district, is paid by the
Ohio Department of Education, and serves at the pleasure of the commission. Id. The
CEO may delegate any functions to the superintendent or board of education of the
Youngstown City School District, but he or she does not have to, and may control all
aspects of district operation. The bill specifically enumerates the CEO's powers, but it
does not limit them. The enumerated CEO powers effectively replace the duties and
responsibilities of the elected board of education and of its superintendent in the
following areas:
(a) Replacing school administrators and central office staff;
(b) Assigning employees to schools and approving transfers;
(c) Hiring new employees;
(d) Defining employee responsibilities and job descriptions;
(e) Establishing employee compensation;
(f) Allocating teacher class loads;
(g) Conducting employee evaluations;
(h) Making reductions in staff under section 3319.17, 3319.171,
or 3319.172 of the Revised Code;
(i) Setting the school calendar;
(j) Creating a budget for the district;
No. 15AP-941 10
(k) Contracting for services for the district;
(l) Modifying policies and procedures established by the
district board;
(m) Establishing grade configurations of schools;
(n) Determining the school curriculum;
(o) Selecting instructional materials and assessments;
(p) Setting class sizes;
(q) Providing for staff professional development.
R.C. 3302.10(C)(1)(a) through (g). The Senate version of the bill further provides that the
academic distress commission, in consultation with the state superintendent and the
CEO, is responsible for expanding high-quality school choice options in the district,
including attracting schools not operated by the district, using an independent accelerator
formed by the commission in consultation with the state school superintendent and not
subject to the authority of the CEO. R.C. 3302.10(D).
{¶ 21} The CEO described by Am.Sub.H.B. No. 70 has enumerated powers, subject
to the approval of the commission, to "reconstitute any school operated by the district,"
including replacing school building staff, contracting with outside nonprofit and for-profit
entities to manage and staff the school, changing the focus of the school's curriculum,
permanently closing a school, and reopening negotiations for existing collective
bargaining contracts, the latter being done in consultation with the chair of the
commission. R.C. 3302.10(H)(1).
{¶ 22} To begin operations under the new law, the CEO for the Youngstown City
School District must, within 30 days after his or her appointment, convene a group of
community stakeholders, including educators, civic and business leaders, and
representatives of institutions of higher education and government service agencies. R.C.
3302.10(E)(1). The purpose of the group is "to develop expectations for academic
improvement in the district and to assist the district in building relationships with
organizations in the community that can provide needed services to students." Id. Within
90 days after the CEO's appointment, he or she is also required to convene a smaller
group of community stakeholders for each school operated by the district to develop
No. 15AP-941 11
expectations for academic improvement in that school. The stakeholder group for each
school must include teachers employed at the school and parents of students enrolled in
the school. Id. The CEO is required to create, in consultation with the groups of
stakeholders, a plan to improve the district's academic performance and to implement the
approved plan in each school year that the district is in academic distress pursuant to the
new R.C. 3302.10. R.C. 3302.10(E)(2).
{¶ 23} Am.Sub.H.B. No. 70 authorizes the appointment of a new board of
education for the Youngstown City School District in accordance with newly enacted R.C.
3302.11, characterized in the bill as a district receiving an overall grade of less than "C" in
each of the first four years it is placed in academic distress. The mayor of the appropriate
municipality appoints a five-member board of education for the district from a slate of
candidates nominated by a panel that is appointed by the state board of education and
chaired by the state superintendent as a nonvoting member according to detailed
guidelines as they exist in the bill. At the general election held in the first even-
numbered year occurring at least three years after the district's academic distress
commission ceases to exist, a referendum election must be held to determine if the
mayor shall continue to appoint the district board of education. At the general election,
the following question must be submitted to the electors of the district: "[s]hall the
mayor of (here insert the name of the applicable municipal corporation) continue to
appoint the members of the board of education of the (here insert the name of the
school district to which this section applies)?" R.C.3302.11(G)(1). R.C. 3302.11 sets
forth the procedures to be followed based on the outcome of the referendum election.
{¶ 24} Am.Sub.H.B. No. 70 also sets forth criteria and procedures for a district to
transition out of academic distress. When the transition period is completed, the CEO
relinquishes control of the district to the district board and district superintendent, and
the academic distress commission ceases to exist. R.C. 3302.10(N). The commission also
may cease to exist if no more schools exist in the district, having been reconstituted so as
not to be operated by the district any longer (such as privately operated) or having been
closed. R.C. 3302.10(O).
C. The Litigation About the Legislation
{¶ 25} On August 21, 2015, Youngstown filed a complaint for declaratory judgment
and an application for preliminary injunction in the trial court. Youngstown
No. 15AP-941 12
simultaneously filed a motion for preliminary injunction and request for evidentiary
hearing, seeking to enjoin Ohio from establishing an academic distress commission as set
forth in Am.Sub.H.B. No. 70. Youngstown asserted three constitutional challenges to
Am.Sub.H.B. No. 70 in its motion for preliminary injunction. Youngstown argued that the
manner in which the General Assembly adopted Am.Sub.H.B. No. 70 violated the three-
reading rule set forth in Article II, Section 15(C) of the Ohio Constitution. Second,
Youngstown argued that Am.Sub.H.B. No. 70 violates Article VI, Section 3 of the Ohio
Constitution because it eliminates all power of an elected school board and allows an
unelected CEO to eliminate every school within a city school district, thus eliminating the
right for electors in a city school district to determine the organization and number of
members of the city school district board of education. Third, Youngstown argued that
Am.Sub.H.B. No. 70 violates the Equal Protection Clauses of the United States and Ohio
Constitutions and unconstitutionally infringes the fundamental right to vote because the
Act eliminates all power conferred by the school district electors on an elected board of
education and grants that power to an unelected CEO.
{¶ 26} On September 15, 2015, Ohio filed a memorandum in opposition to
Youngstown's motion for preliminary injunction. On September 22, 2015, Youngstown
filed a reply memorandum in support of its motion for preliminary injunction. On
September 23, 2015, Ohio filed a motion to dismiss Youngstown's complaint, to which
Youngstown responded on October 7, 2015.
{¶ 27} The trial court held an evidentiary hearing on Youngstown's motion on
September 29 and 30, 2015, at which the parties presented evidence and arguments.
More than 1600 pages of exhibits, including transcriptions of legislative public
deliberations, were identified and admitted during the trial court's hearing on preliminary
injunction. On October 13, 2015, the trial court entered judgment denying Youngstown's
motion for preliminary injunction, having found that Youngstown had failed to prove by
clear and convincing evidence each of the four factors required for a preliminary
injunction.
{¶ 28} Am.Sub.H.B. No. 70 became effective on October 15, 2015. On October 14,
2015, Youngstown filed its notice of appeal and filed a motion for injunction pending
appeal with this Court. This Court denied that motion on October 29, 2015.
No. 15AP-941 13
II. JURISDICTION
{¶ 29} The threshold question before this Court is whether the trial court's order
denying temporary injunctive relief in this case is a final, appealable order over which this
Court has jurisdiction. The majority concludes it is not such a final, appealable order.
Respectfully, I would conclude that it is.
{¶ 30} During the pendency of our review of this appeal, this panel of judges was
selected to hear the appeal of the companion cases Electronic Classroom of Tomorrow v.
Ohio Dept. of Edn., 10th Dist. No. 16AP-692, and Electronic Classroom of Tomorrow v.
Ohio Dept. of Edn., 10th Dist. No. 16AP-695 (taken together, "ECOT"), which had been
heard and decided by the same trial court judge who heard this case now under review.
The trial court in ECOT had similarly denied appellants' motions for a restraining order
and preliminary injunctive relief. And, as in this case, the trial court found that ECOT had
not established a substantial likelihood of success on the merits, had not demonstrated
the likelihood of immediate and irreparable harm, loss, or damage that would result to
ECOT or ECOT families in the absence of an injunction, had not demonstrated the
imminence of harm to third parties, and could not demonstrate the injunction would
serve the public interest.
{¶ 31} In ECOT, this panel found in a 2-1 decision that the order appealed was not
a final, appealable order. There is the existence of a tangential mention of our jurisdiction
by one of the parties herein. Regardless of whether raised by any party, I agree with the
majority that it is incumbent on the Court to ascertain its jurisdiction on review of any
matter. State ex rel. White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St. 3d 543, 544
(1997); Noble v. Coldwell, 44 Ohio St. 3d 92, 94 (1989), fn. 1. See also Price v. Jillinsky,
10th Dist. No. 03AP-801, 2004-Ohio-1221 (courts have not only the authority but the duty
to sua sponte examine an appeal for jurisdictional defects).
{¶ 32} I also agree with the majority that Ohio appellate courts have jurisdiction to
review only final, appealable orders of trial courts within their districts. Ohio
Constitution, Article IV, Section 3(B)(2); R.C. 2501.02. If the underlying order is not a
final, appealable order, the appellate court lacks jurisdiction and must dismiss the appeal.
Production Credit Assn. v. Hedges, 87 Ohio App. 3d 207 (4th Dist.1993).
{¶ 33} Finally, I agree with the majority that a preliminary injunction is a
provisional remedy, considered interlocutory, tentative, and impermanent in nature.
No. 15AP-941 14
Wells Fargo Ins. Servs. USA v. Gingrich, 12th Dist. No. CA2011-05-085, 2012-Ohio-677,
¶ 5. An order denying preliminary injunction does not, therefore, qualify as a final,
appealable order unless it meets the two-part test set forth in R.C. 2505.02(B)(4)(a) and
(b) governing appeals from the grant or denial of provisional remedies:
(a) The order in effect determines the action with respect to
the provisional remedy and prevents a judgment in the action
in favor of the appealing party with respect to the provisional
remedy.
(b) The appealing party would not be afforded a meaningful
or effective remedy by an appeal following final judgment as
to all proceedings, issues, claims, and parties in the action.
{¶ 34} The record in ECOT arguably showed that ECOT had meaningful and
effective administrative and judicial remedies absent this Court's review of the denial of
preliminary injunction. The parties in that case acknowledged the trial court had before it
a motion for a permanent injunction, which the trial court refused to determine based on
the pendency of the then-current appeal having deprived it of jurisdiction. More
importantly, there was no dispute as to the existence of an R.C. 3314.08(K)(2)
administrative appeal process before the state board of education that provided further
review and potentially an avenue of legal relief for ECOT, absent review of the trial court's
decision on preliminary injunction.
{¶ 35} Because this administrative appeal process existed, ECOT arguably could
not satisfy the second part of the test of R.C. 2505.02(B)(4), that it would not be afforded
a meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action. The statutorily provided R.C.
3314.08(K)(2) administrative review proceeding through the Ohio Department of
Education available to ECOT had not yet begun and was undetermined, making our
review of the trial court's denial of preliminary injunction, at best, review of a provisional
remedy that was not so final or permanent as to effectuate jurisdiction for appellate
review. Accordingly, a majority of this panel issued an entry dismissing ECOT's appeals
for lack of jurisdiction.
{¶ 36} Analyzing Youngstown's action according to the statute on jurisdiction, the
first prong, R.C. 2505.02(B)(4)(a), is satisfied in this case because the trial court has
clearly denied Youngstown's request for a preliminary injunction. That order fully
No. 15AP-941 15
determined the action with respect to the provisional remedy sought and prevented a
judgment in favor of Youngstown with respect to preliminary injunctive relief. R.C.
2505.02(B)(4)(a).
{¶ 37} The determination of our jurisdiction, as in ECOT, turns on whether
Youngstown has been denied a meaningful remedy in the absence of an immediate
appeal. R.C. 2505.02(B)(4)(b).
R.C. 2505.02(B)(4)(b) requires a determination of whether
the denial of the preliminary injunction precludes a
meaningful or effective remedy by an appeal following final
judgment as to all proceedings, issues, claims, and parties in
the action.
(Emphasis added.) Ankrom v. Hageman, 10th Dist. No. 06AP-735, 2007-Ohio-5092,
¶ 10. In determining this question, this Court has previously held, "we do not construe
R.C. 2505.02(B)(4)(b) to require the absence of every theoretical remedy in order to find
that appellant would be denied a 'meaningful' or 'effective' remedy following final
judgment." Bob Krihwan Pontiac-GMC Truck, Inc. v. GMC, 141 Ohio App. 3d 777, 781
(10th Dist.2001). Thus, it is the appellate court's charge to examine and determine
whether there exists a meaningful or effective remedy, not the absence of any theoretical
remedy that may at some point exist.
{¶ 38} In contrast to ECOT, the trial court's order in Youngstown's case does meet
both of the two requirements of R.C. 2505.02(B)(4). The series of steps in the legislatively
mandated process cited by the majority are not appeals or opportunities for redress; they
are steps prescribed by a legislative process that may take time, but many are for all
intents and purposes irreversible. These steps in the new law do not provide any
meaningful or effective remedy by an appeal following final judgment as to all
proceedings, issues, claims, and parties in the action. For example, if teachers are fired
and school buildings are closed, or students assigned to private, charter schools or even
schools outside the district, there is no remedy by appeal to undo such drastic changes
that affect real people and their families. Injunction preserves such a remedy.
{¶ 39} Youngstown seeks relief from a newly enacted statute that it contends was
unconstitutionally adopted. The crucial distinction between ECOT and Youngstown is
that ECOT sought relief from an action of the Ohio Department of Education for which
there was the potential for administrative appellate relief. No such arguably meaningful
No. 15AP-941 16
or effective remedy exists for Youngstown following final judgment, absent review of the
trial court's denial of preliminary injunction.
{¶ 40} Evidence adduced at the trial court's hearing on preliminary injunction
supports this, showing that relief after final judgment as to all proceedings, issues, claims,
and parties in the action will be virtually meaningless or nonexistent. The record includes
testimony that the CEO's improvement plan to take place under Am.Sub.H.B. No. 70 has
the potential to "disrupt progress just beginning to come to fruition after years of effort"
and will "result in significant job loss and the closure of all or part of the public school
system." (Youngstown's Amended Brief at 36.)
{¶ 41} Youngstown presented evidence to the trial court about harm to the district
if Am.Sub.H.B. No. 70 is later declared to be unconstitutional, comparing the district's
situation to a rock rolling down hill: one cannot start pushing that rock back up the hill
until it stops going down. Youngstown stressed that the damage would be irreparable,
stating, "[i]f you give away schools, if you fire people, how do you take that back?"
(Sept. 29, 2015 Tr. Vol. I at 373.) The interim superintendent testified to the changes
permitted to the school district by the bill and likened undoing the implementation of
Am.Sub.H.B. No. 70 to "put[ting] the toothpaste back in the tube" – a universal nearly
impossible task. Id. With the ability of the CEO to fire teachers and to close and
consolidate schools, and even to change curriculum and contract to private parties the
operation of some or all of the schools, denying review of the trial court's decision on
preliminary injunction denies "fashion[ing] a remedy which would replace a potential loss
of business goodwill, or repair business relationships with third parties such as creditors
and suppliers." Krihwan at 781.
{¶ 42} And there is the question of harm to the students of the district, argued by
both Youngstown and Ohio. Under Am.Sub.H.B. No. 70, the newly empowered CEO for
the schools in Youngstown can undertake dramatic changes to the school district's
operations (firing teachers,5 closing and consolidating schools, changing curriculum and
contracting to private parties schools' operations). The CEO is empowered to generally
5 Youngstown also offered evidence of greater harm to students in part because of what the CEO could do
to the district's teachers. The record contains trial court testimony about the effects of the bill's disruption
to teachers and their classrooms and how it affects the district's students: "We need to be stable again so
that teachers can teach, they can do their jobs and the students can grasp what's being taught." (Tr. Vol. I
at 277.)
No. 15AP-941 17
upend the operation of the current educational schema in the school district to the point
that it cannot effectively change course to ensure that students, who do not stop growing
or matriculating toward graduation, would not be irreparably harmed. The bill contains a
specific provisional remedy in the form of a local election in contemplation that the CEO
may not be successful. But any such remedy provided by Am.Sub.H.B. No. 70 is years
down the road and itself subject to final judgment on the bill's constitutionality. If
Youngstown proves the statute is unconstitutional, any such statutorily provided remedy
will no longer exist.
{¶ 43} The trial court's order in this case meets the requirements of R.C.
2505.02(B)(4)(b) because Youngstown has established that it is deprived of a meaningful
and effective remedy if it is unable to prosecute this appeal. Youngstown seeks an order
effectively preserving the status quo until the constitutionality of Am.Sub.H.B. No. 70 is
determined with finality. The question of the bill's constitutionality is one that should be
undertaken with serious study and given due time for full consideration. Without our
review of the trial court's order on preliminary injunction, Youngstown could suffer
irreparable harm that cannot be remedied on final adjudication. Accordingly, I would
find jurisdiction to review Youngstown's appeal and would reverse the trial court for
abuse of discretion as explained below.
III. ASSIGNMENTS OF ERROR
{¶ 44} Youngstown appeals from the trial court's judgment denying its motion for
preliminary injunction, assigning four errors for this Court's review:
1. The trial court erred in finding that Plaintiffs-Appellants are
not likely to succeed on the merits of their claims.
2. The trial court erred in finding that Plaintiffs-Appellants
will not suffer irreparable harm without the requested
injunctive relief.
3. The trial court erred in finding that third parties would be
harmed by the requested relief.
4. The trial court erred in finding that the public interest will
not be served by the requested injunctive relief.
No. 15AP-941 18
IV. DISCUSSION
A. Standard of Review
{¶ 45} "An injunction is an extraordinary remedy in equity where there is no
adequate remedy available at law. It is not available as a right but may be granted by a
court if it is necessary to prevent a future wrong that the law cannot." Garono v. State, 37
Ohio St. 3d 171, 173 (1988), citing Sternberg v. Bd. of Trustees, 37 Ohio St. 2d 115, 118
(1974); State ex rel. Pressley, v. Indus. Comm., 11 Ohio St. 2d 141, 153 (1967); Perkins v.
Quaker City, 165 Ohio St. 120, 125 (1956); and Salem Iron Co. v. Hyland, 74 Ohio St. 160,
167 (1906). "The grant or denial of an injunction is solely within the trial court's
discretion and, therefore, a reviewing court should not disturb the judgment of the trial
court absent a showing of a clear abuse of discretion." Garono at 173, citing Perkins at
125. However, " 'no court has the authority, within its discretion, to commit an error of
law.' " JPMorgan Chase Bank, N.A. v. Liggins, 10th Dist. No. 15AP-242, 2016-Ohio-
3528, ¶ 18, quoting State v. Akbari, 10th Dist. No. 13AP-319, 2013-Ohio-5709, ¶ 7, citing
State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70. To the extent that the
trial court made legal determinations in reaching its decision on the motion for
preliminary injunction, this Court's review of the trial court's decision is plenary, and it
undertakes a de novo review of its judgment to that extent. Youngstown has argued:
[I]n this case the trial court's conclusion that [Youngstown]
did not demonstrate a substantial likelihood of success on the
merits turned on questions of law; i.e., whether the General
Assembly complied with the Three Reading Rule when it
passed H.B. 70 and whether H.B. 70 violated other
constitutional provisions. Because the conclusion that
[Youngstown] failed to demonstrate a substantial likelihood of
success on the merits presented questions of law, this Court
reviews that portion of the trial court's judgment de novo. See
City of St. Mary's v. Auglaize Cnty. Bd. of Commn., 115 Ohio
St.3d 387, 392, 875 N.E.2d 561, 2007-Ohio-5026, ¶38; W.
Branch Local Sch. Dist. Bd. of Edn. v. W. Branch Edn. Assn.,
2015-Ohio-2753, ¶¶ 1-2.
(Youngstown's Amended Brief at 15.)
{¶ 46} Youngstown argues further that its claims of constitutional violations are
subject to strict judicial scrutiny:
No. 15AP-941 19
There is no fundamental right to an elected school board. That
is, a legislature may provide for an elected or appointed school
board. However, in Kramer v. Union Free School Dist. No. 15,
395 U.S. 621 (1969), the United States Supreme Court
recognized that, once the legislature has provided for an
elected school board, the right to vote for that school board is
a fundamental right[.]
***
Ohio has granted voters the right to elect a school board.
Because that decision has been made, H.B. 70 is subject to
"exacting judicial scrutiny" because it disturbs that franchise.
[Kramer at 628-29].
(Youngstown's Amended Brief at 31-32.)
{¶ 47} Ohio counters that, "while questions of statutory interpretation may be
reviewed de novo, see State v. Consilio, 114 Ohio St. 3d 295, 297 (2007), the factual
findings underlying those determinations are reviewed for abuse of discretion, see
Americare Healthcare Servs., LLC v. Akabuaku, 2013-Ohio-3013, ¶ 9 (10th Dist.) "
(Ohio's Brief at 23.) Ohio asserts that Youngstown's "central claim focuses on whether
H.B. No. 70 was 'vitally altered' by Senate amendments." Id. Ohio further asserts that
Youngstown argued in the trial court that factual evidence was "relevant" in order to
decide the merits of its claims. Id. at 24. Ohio argues that, "[h]aving argued below that
facts matter to the merits of [its] constitutional claims, [Youngstown] must now concede
that abuse of discretion applies to all four preliminary injunction factors." Id. at 24.
{¶ 48} Such a review involves mixed questions of fact and law, and therefore, once
it has been determined that the trial court acted within its discretion in determining facts
relevant to its legal determinations, a de novo review of certain questions of law decided
by the trial court is in order. By analogy, in Liggins this Court discussed mixed questions
of fact and law as it relates to a review of trial court decisions on whether to admit
hearsay:
[Q]uestions about whether to admit hearsay often are hybrid
questions of fact and law. As such, they are based upon the
fact-judging abilities of the trial court and are reviewed for
abuse of discretion. Pontius [v. Riverside Radiology &
Interventional Assoc., 10th Dist. No. 15AP-906, 2016-Ohio-
1515, ¶ 15]; Thomas [v. Columbia Sussex Corp., 10th Dist. No.
10AP-93, 2011-Ohio-17, ¶ 17-18.] * * * In Pontius, for example,
No. 15AP-941 20
the trial court's abject failure to analyze the applicable hearsay
exception in deciding to exclude testimony, constituted an
error of law and, thus, an abuse of discretion. Id. at ¶ 23-24.
Liggins at ¶ 18. Similarly, when reviewing a trial court's decision on a question of law,
such as whether a contract exists, there is also a mixed question of fact and law. DeHoff v.
Veterinary Hosp. Operations of Cent. Ohio, Inc., 10th Dist. No. 02AP-454, 2003-Ohio-
3334, ¶ 49.
"An appellate court may freely review application of the law to
the facts. [citation omitted] It must, however, show deference
to the factual findings made by the trial court. Where there are
factual disputes, it is generally the province of the trial court
to resolve those disputes by weighing credibility of the
proffered testimony."
(Citations omitted.) DeHoff at ¶ 49, quoting Rudd v. Online Resources, Inc., 2d Dist. No.
17500 (June 18, 1999). In the context of a motion to suppress, another context of mixed
questions of law and fact, "the trial court assumes the role of the trier of fact and, is
therefore, in the best position to resolve factual questions and evaluate witness
credibility." State v. Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689, ¶ 8, citing State
v. Curry, 95 Ohio App. 3d 93, 96 (8th Dist.1994). On review, the appellate court accepts
the trial court's findings of fact so long as "they are supported by competent, credible
evidence." State v. Guysinger, 86 Ohio App. 3d 592, 594 (4th Dist.1993). The appellate
court reviews "the trial court's legal conclusions based on those facts" showing no
deference to its legal conclusions, since it is the appellate court's duty on review to
determine " 'whether as a matter of law, the facts meet the appropriate legal standard.' "
Parsley at ¶ 8, quoting Curry at 96.
{¶ 49} Other jurisdictions also have treated preliminary injunction review as one of
a mixed question of law and fact whereby reversal occurs only if the decision " 'is the
product of an abuse of discretion or misplaced reliance on an erroneous legal premise.' "
Uncle B's Bakery, Inc. v. O'Rourke, 920 F.Supp.1405, 1422 (N.D.Iowa 1996), quoting
Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556 (8th Cir.1993), cert. denied,
512 U.S. 1236 (1994). More recently, the United States Sixth Circuit Court of Appeals has
stated:
While the ultimate decision to grant or deny a preliminary
injunction is reviewed for an abuse of discretion, we review
No. 15AP-941 21
the district court's legal conclusions de novo and its factual
findings for clear error. Hunter v. Hamilton Cnty. Bd. of
Elections, 635 F.3d 219, 233 (6th Cir. 2011). "This standard of
review is 'highly deferential' to the district court's decision."
Id. (quoting Certified Restoration Dry Cleaning Network,
L.L.C. v. Tenke Corp., 511 F.3d 535, 541 (6th Cir. 2007)). "The
injunction will seldom be disturbed unless the district court
relied upon clearly erroneous findings of fact, improperly
applied the governing law, or used an erroneous legal
standard." Mascio v. Pub. Emps. Ret. Sys. of Ohio, 160 F.3d
310, 312 (6th Cir. 1998).
"A plaintiff seeking a preliminary injunction must establish
that he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of the equities tips in his favor, and that an
injunction is in the public interest." Winter v. Natural Res.
Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 172 L. Ed. 2d
249 (2008). The district court's determination that a plaintiff
is likely to succeed on the merits is a question of law that we
review de novo. Hunter, 635 F.3d at 233.
(Emphasis added.) Obama for Am. v. Husted, 697 F.3d 423, 428 (6th Cir.2012).
{¶ 50} Ohio law governing preliminary injunction requires that, in determining
whether to grant a preliminary injunction, a court must consider four factors: "1) whether
there is a substantial likelihood that plaintiff will prevail on the merits; 2) whether
plaintiff will suffer irreparable injury if the injunction is not granted; 3) whether third
parties will be unjustifiably harmed if the injunction is granted; and 4) whether the public
interest will be served by the injunction." Vanguard Transp. Sys., Inc. v. Edwards
Transfer & Storage Co., 109 Ohio App. 3d 786, 790 (10th Dist.1996), citing Valco
Cincinnati, Inc. v. N & D Machining Serv., Inc., 24 Ohio St. 3d 41 (1986). A party seeking
a preliminary injunction has the burden of establishing a right to the preliminary
injunction by demonstrating clear and convincing evidence of each of these factors.
Hydrofarm, Inc., v. Ordendorff, 180 Ohio App. 3d 339, 2008-Ohio-6819, ¶ 18 (10th
Dist.), citing Vanguard Transp. Sys., Inc. at 790. In determining whether to grant
injunctive relief, no one of the four preliminary injunction factors is dispositive; rather, a
balancing should be applied. Escape Enters., Ltd., v. Gosh Enters., Inc., 10th Dist. No.
04AP-834, 2005-Ohio-2637, ¶ 48, quoting Cleveland v. Cleveland Elec. Illum. Co., 115
Ohio App. 3d 1, 14 (8th Dist.1996).
No. 15AP-941 22
B. First Assignment of Error
{¶ 51} Youngstown contends that the trial court erred in finding that it is not likely
to succeed on the merits of its claims. Youngstown asserts three constitutional challenges
to Am.Sub.H.B. No. 70. First, Youngstown claims that the General Assembly violated the
three-reading rule set forth in Article II, Section 15(C) of the Ohio Constitution in enacting
Am.Sub.H.B. No. 70. Second, Youngstown claims that Am.Sub.H.B. No. 70 violates
Article VI, Section 3 of the Ohio Constitution because it infringes on the right of electors
of the school district to determine the number and organization of the board of education.
Third, Youngstown claims that Am.Sub.H.B. No. 70 violates the Equal Protection Clauses
of the United States and Ohio Constitutions, and Article V, Section 1 of the Ohio
Constitution because it denies Youngstown school district electors the right to vote or
dilutes or nullifies the electors' votes. I would consider first the three-reading rule.
1. Three-Reading Rule
{¶ 52} Youngstown argues that the trial court erred in finding that the General
Assembly considered H.B. No. 70 on three different days in each chamber according to
Article II, Section 15(C) of the Ohio Constitution. Youngstown argues that the trial court's
legal determination on the facts heard at the two-day hearing is in error and that the
General Assembly did violate this "three-reading rule." Id. I would agree.
{¶ 53} Article II, Section 15(C) of the Ohio Constitution provides that "[e]very bill
shall be considered by each house on three different days, unless two-thirds of the
members elected to the house in which it is pending suspend this requirement, and every
individual consideration of a bill or action suspending the requirement shall be recorded
in the journal of the respective house." Youngstown asserts that the General Assembly
violated this provision in adopting Am.Sub.H.B. No. 70 because the version passed by the
Senate had "vitally altered" the substance of H.B. No. 70 as it had been passed by the
House, and thus was required to be read three additional times in each chamber.
{¶ 54} With respect to the three-reading rule, the Supreme Court of Ohio has held
that "a legislative Act is valid if the requisite entries are made in the legislative journals
and there is no indication that the subject matter of the original bill was 'vitally altered'
such that there is no longer a common purpose or relationship between the original bill
and the bill as amended." (Emphasis sic.) State ex rel. AFL-CIO v. Voinovich, 69 Ohio
St.3d 225, 233 (1994). In Voinovich, the court discussed and amplified its prior decision
No. 15AP-941 23
in Hoover v. Bd. of Cty. Commrs., 19 Ohio St. 3d 1 (1985). The facts in Hoover involved
legislation that was introduced and read three times in the Senate, but a House committee
stripped the original language from the bill and substituted completely different content.
Because the final version of the bill had not been read three times in the Senate, the
Hoover court held that the plaintiffs stated a claim for a violation of the three-reading
rule. Voinovich at 232, citing Hoover at 5. By contrast, the Voinovich court concluded
that the legislation at issue had been heavily amended in both chambers of the General
Assembly and by a conference committee, and it held that the final version as passed by
both chambers retained its common purpose with the earlier versions read in each
chamber. Id. at 234.
{¶ 55} The Supreme Court found in Voinovich that the bill at issue (unlike in
Hoover) had not been "vitally altered" and thus did not violate the three-reading rule. See
also ComTech Sys., Inc. v. Limbach, 59 Ohio St. 3d 96 (1991) (holding that an amendment
imposing sales tax on automatic data processing and computer services did not vitally
alter an appropriations bill because "[r]aising and spending revenue are at the heart of an
appropriations bill; adding a new taxable transaction does not vitally alter this scheme").
In so holding, the Voinovich court acknowledged both the importance of legislative
consideration according to the three-reading rule and judicial deference to such legislative
consideration:
The difference between a valid bill that is heavily amended,
however, and an invalid one that is "vitally altered," as
relators would have us interpret that phrase, is one of degree.
Section 15(A), Article II of the Ohio Constitution reserves to
each house the right to freely alter, amend or reject bills
introduced by either. This court would be setting dangerous
and impracticable precedent if it undertook a duty to police
any such difference of degree.
Instead, we must look to the underlying purpose of the three-
consideration provision. As articulated by Justice Douglas in
his concurring opinion in Hoover, "the purpose of the 'three
reading rule' is to prevent hasty action and to lessen the
danger of ill-advised amendment at the last moment. The rule
provides time for more publicity and greater discussion and
affords each legislator an opportunity to study the proposed
legislation, communicate with his or her constituents, note the
comments of the press and become sensitive to public
No. 15AP-941 24
opinion." Id., 19 Ohio St.3d at 8, 19 OBR at 7, 482 N.E.2d at
582 (Douglas, J., concurring).
***
Based on the foregoing, we decline to extend the Hoover
analysis to the bill before us and declare the bill
unconstitutional. To do otherwise would place this court in
the position of directly policing every detail of the legislative
amendment process when bills are passed containing a
consistent theme.
Voinovich at 233-34.
{¶ 56} Relying on Voinovich, this Court subsequently, in a 2-1 decision in 2014,
rejected a three-reading challenge in Linndale v. State, 10th Dist. No. 14AP-21, 2014-
Ohio-4024, appeal not accepted, 142 Ohio St. 3d 1464, 2015-Ohio-1896, reconsideration
denied, 142 Ohio St. 3d 1464, 2015-Ohio-1896, concerning the enactment of H.B. No. 606
in 2012. The dissent offered a dim view of the facts in that case that are strikingly similar
to the facts here, with a rightly placed focus on the importance of process to complying
with the state constitutional mandate of Article II, Section 15(C) of the Ohio Constitution.
As stated in Voinovich, the purpose of the three-reading rule
is to provide time for publicity, discussion, and an opportunity
for legislators to study the legislation and confer on the issues.
Instead, it appears from this record that the process
undertaken to enact the mayors-court provision, one that
affects every Ohio municipal corporation with populations of
200 persons or less thereby eliminating some mayor's courts
in their entirety, was not only swift but also unanticipated.
Linndale (Sadler, J., dissenting at ¶ 7). It is for this reason I would agree with
Youngstown in its arguments concerning the three-reading rule.
{¶ 57} In Linndale, H.B. No. 606 as introduced and originally passed by the House
made a single change to R.C. 1901.08, reducing the number of full-time judges on the
Youngstown Municipal Court by one. The Senate amended H.B. No. 606 to eliminate
certain mayor's courts and to clarify the effect of state and municipal measures
prohibiting texting while driving. The House voted to concur in the Senate amendments.
Linndale at ¶ 2. The constitutionality of H.B. No. 606 was challenged on multiple
grounds, one of which was that it violated the three-reading rule. A two-judge majority of
this Court rejected the three-reading argument, finding that the two versions of H.B. No.
No. 15AP-941 25
606 "shared a common relationship," namely "regulating the organization and structure
of Ohio's statutory courts." Linndale at ¶ 22. That majority, relying on factual
circumstances involving no record of objections in floor debate to the bill's changes,
opined that the legislative process provides a fail-safe for ensuring sufficient consideration
of amendments. The majority in Linndale stated:
[T]he third version of the bill considered by the full Senate
contained the mayor's-court amendment. At this time,
members of the Senate could have moved that the
amendment be stripped or otherwise altered. They did not.
The Senate passed the version of the bill with the amendment.
Because this version was different from the version passed by
the House, it was returned to the House for further
consideration. At this time, members of the House could have
moved that the amendment be stripped or otherwise altered.
They did not. The House concurred with the version
containing the amendment, thereby foregoing the opportunity
to further consider and debate the bill in a conference
committee. Both the Senate and the House had opportunities
to consider the version of the bill with the mayor's-court
amendment consistent with the purpose of the three-reading
requirement.
Id. at ¶ 23.
{¶ 58} In the case under review, the trial court made factual findings that showed
that more opposition was shown to Am.Sub.H.B. No. 70 than was shown in the case of
H.B. No. 606, the subject of Linndale. In doing so, however, the trial court misconstrued
as "an opportunity to study and debate amended HB 70," a state senator's moving to
"recommit the bill to the Senate Education Committee," "two Legislators testify[ing] that
[they learned the night before that] there might be an amendment to HB 70 and were
able to obtain copies of the amendments the night before it went to the Senate Education
Committee" and "24 Legislators show[ing] their non support for Am. Sub. HB 70 by
taking their names off of the bill." (Oct. 13, 2015 Decision & Entry at 8-9.) As a matter of
law under the standards set forth in Hoover, Voinovich, and Linndale, while avoiding
"policing every detail of the legislative amendment process," the trial court erred as a
matter of law in finding that the three-reading rule was not violated and that Youngstown
had not shown by clear and convincing evidence its likelihood of success on the merits.
Voinovich at 234.
No. 15AP-941 26
{¶ 59} Linndale presents strikingly similar circumstances to Youngstown, except
the General Assembly cut it even closer in Youngstown's case than it did in Linndale. The
trial court record shows that there was, in fact, an uproar by legislators who opposed the
swift, cut-and-dried process undertaken, less than one year after our Linndale decision
was released. Representative Denise Driehaus, who had introduced H.B. No. 70 in the
House, urged the members of the House not to concur in the Senate's amendments to the
bill and summarized how the process to which H.B. No. 70 had been subjected stymied
the procedural safeguards of the three-reading rule:
REP. DRIEHAUS: This is House Bill 70, as passed by the
house. This is House Bill 70. I love this bill. This is a
transformational bill. People have turned their lives around in
Cincinnati because of this model. This is our bill. Most you
voted for this bill, a whole bunch of you put your name on it.
It's a good bill. I've been working on this bill for four years.
Some of you have come down to Cincinnati, some of you have
come to Oyler. I've heard nothing but rave reviews about
Oyler and the model, and I thank you for coming. It meant a
lot over the four-year period.
About 24 hours ago, though, I was asked to meet with the
Ohio Department of Education. I didn't know why we were
meeting. I even asked my aide, call them, what are we meeting
-- is it the budget? Is it the community learning -- what is it?
What are we meeting about? I would like to be prepared.
I couldn't get that information about what the meeting was
about. So I went to the meeting, and they told me they're
going to offer an amendment to House Bill 70 over on the
Senate side. I said okay. What's the purpose of the
amendment? Could I get the language of the amendment?
What's the hurry on the amendment and why my bill? What
are we doing -- we've got a budget rolling through right now.
We've got other bills rolling through right now. Really? I don't
know anything about this. Why House Bill 70? I got
incomplete answers to all of those questions.
So it turns out that this amendment is the antithesis of House
Bill 70. House Bill 70 is about a groundswell of support for
something in a community where you engage the community,
the parents, the teachers, the community at large. That's what
-- that's what the model is all about. Without that, there is no
No. 15AP-941 27
model. It's about community engagement; it's about
collaboration. The amendment turns the bill on its head.
The amendment is about Youngstown and every other
community that's going to go into academic distress, by the
way. This isn't just Youngstown. This will come to any
community that has this distress commission. So this is a
statewide policy.
And it talks about a process where a CEO is put in place, hired
by five people, three of whom are chosen by somebody here in
Columbus, and that person has ultimate authority over the
school district.
Eventually, according to this amendment, from my read, the
entire school district could be dismantled under this
amendment by way of the CEO. And I am not exaggerating.
That's what the language says. And it's a top down approach
to schools, to school districts. That is not what House Bill 70's
about. It's the opposite of what House Bill 70's about.
So we need to address the issues in Youngstown. I agree. I
don't know that much about the distress commission nor do I
know that much about the trials and tribulations over the last
four years in Youngstown. We need to address what's going
on in Youngstown, I agree. Let's work on it. Let's take our
time. Let's do it together. Let's create some good policy. Let's
do our work. We did our work; we did our due diligence. We
engaged interested parties. We worked in a bipartisan way all
the way through this bill. I've been working on this bill for
four years. In 24 hours the administration blew it up.
I do not agree with the administration's changes to my bill,
and I ask you to join me in nonconcurrence with the Senate
changes.
(Ex. C at 8-10, Aug. 21, 2015 Mot. for Prelim. Inj.)
{¶ 60} Representative Lepore-Hagan of Youngstown also rose on the House floor
to speak against concurring in the Senate's amendments:
REP. LEPORE-HAGAN: I rise in opposition to this bill in this
current form. While I still believe in its original intentions of
House Bill 70, I cannot in good conscience support a bill with
this amendment attached to it.
What started out as an organic community based plan for our
children's futures has really been turned on its head and
perverted by a fast track, heavy handed takeover of
No. 15AP-941 28
Youngstown city schools. The total loss of the citizens' right of
local control. I have concerns about the process and the
content of this amendment and how it was rushed through at
the last minute with no involvement from the legislative
delegation or the community.
We spent six months discussing the Cleveland plan, four
months discussing the Columbus plan, and now here we stand
given less than 24 hours to review a 66-page amendment that
had one brief public hearing this morning. This is now the
major policy for education? This is the change.
At the 11th hour, we're asked to consider an amendment to a
bill that received wide bipartisan support when it left the
chamber. This amendment was not vetted in the house
because we had no hearings on the amendment and yet we are
expected to concur.
Members had three years to consider the community learning
center models and many in this chamber visited the
Cincinnati schools to see first hand how the wraparound
services can change the lives of a community, its students and
it's [sic] the school, and it's [sic] an overwhelming success and
the development from the ground up opposite of the language
that is in the amendment.
We need to respect the fact that education decisions should be
made in consultation with parents, the teachers, regional
lawmakers, business leaders, local and elected officials. And in
the coming weeks, I intend to continue to hold my meeting
with community leaders in Youngstown to discuss
implementing a community learning center in Youngstown.
But today this fast track creates a slippery slope that ends up
being a slow transition to a dissolution of a school district,
forcing Youngstown city school kids to failed charter schools.
Our kids in Youngstown deserve a more deliberate and
thorough process for a plan that enables them to succeed, not
a plan that plans on their failures.
***
I urge a no vote, Mr. Speaker, on the concurrence of the
Senate amendment.
Id. at 11-13.
{¶ 61} The absence of an opportunity to adequately consider the Senate's
amendments to H.B. No. 70 is illustrated by the fact that another member of the House of
No. 15AP-941 29
Representatives, Representative Phillips, rose to ask a question, observing, "I'm reading
the synopsis of Senate amendments, and obviously we don't have the actual language of
the amendments before us, and there are a couple provisions in here that seem very
sweeping to me and somewhat different from what you stated previously, specifically how
widespread this might be." (Ex. C at 13.)
{¶ 62} The leeway given the General Assembly by this Court's majority in Linndale
was misapplied by the trial court in the circumstances faced by Youngstown. Boiling down
this assessment to understandable terms, it could be said that the General Assembly
figuratively drove an 18-wheel tractor-trailer rig through a mouse hole we left it under our
holding in Linndale. This is why I would look instead to the dissent in Linndale in
applying the Supreme Court's holding in Voinovich.
{¶ 63} The language of the dissent in Linndale is both salient and prudent as it
looks to "the underlying purpose of the three-consideration provision, which is 'to prevent
hasty action and to lessen the danger of ill-advised amendment at the last moment. The
[three-consideration] rule provides more time for publicity and greater discussion and
affords each legislator an opportunity to study the proposed legislation, communicate
with her or her constituents, note the comments of the press and become sensitive to
public opinion.' " Voinovich at 233-34, quoting Hoover at 8 (Douglas, J., concurring).
The trial court erred since this scenario is precisely what did not occur with
Am.Sub.H.B. No. 70. The facts in evidence show that the trial court abused its
discretion in finding as a matter of law that the General Assembly adopted Am.Sub.H.B.
No. 70 in accord with the three-reading rule of Article II, Section 15(C) of the Ohio
Constitution.
{¶ 64} Voinovich makes it clear that process is important to substance, and the
dissent in Linndale emphasized this principle:
[T]he three readings in the House occurred within a few
weeks, specifically, November 12, November 27, and
December 5, 2012, and the three readings in the Senate
occurred over eight days. As set forth in the majority's
decision, HB No. 606 was first read in the Senate on
December 6. On December 11, the bill was read for the second
time and referred to the Senate Committee on Judiciary. Two
days later, December 13, the bill with amendments was read
in the Senate, and the Senate passed it on the same day. The
following day, the House concurred in the Senate
No. 15AP-941 30
amendments. Hence, there is no indication that both
chambers deliberated the amendments for any length of time.
Additionally, there is no indication in this case that any
debates or hearings occurred as the amendments to H.B. No.
606 were read in the Senate on December 13, and, by the
following day, it had passed both the House and the Senate
without any reading of the amendments having occurred in
the House. Nor is there any indication in the record that this
matter was given any publicity so as to stimulate any debate,
as was the case in Voinovich.
Linndale (Sadler, J., dissenting at ¶ 6). There was no time under these facts to accomplish
the purpose of the three-reading rule, which, according to Voinovich, is "to provide time
for publicity, discussion, and an opportunity for legislators to study the legislation and
confer on the issues." Id. (Sadler, J., dissenting at ¶ 7). As with enacting the mayor's
court provision in Linndale, the Senate action on H.B. No. 70 was "not only swift but also
unanticipated." Id. Even if I were to agree, and the evidence does not support this, that
the House and Senate versions of the bill shared a common purpose or relationship, I
cannot conclude that the purpose of the three-reading rule was met and that no violation
of the rule occurred in Youngstown's case.
{¶ 65} I would distinguish this conclusion from the decision of the majority in
Linndale based on the fact that the action of the General Assembly in Youngstown's case
was even more drastic and less open to public debate than what occurred in Linndale.
Am.Sub.H.B. No. 70 was reported out of the Senate Education Committee to the Senate
Rules Committee, submitted to a vote of the full Senate, amended by the full Senate,
referred to the House and considered by the House, which concurred in the Senate's
amendments, all in the same day, June 24, 2015. This does not pass muster. Applying the
procedural considerations of the three-reading rule of Voinovich to Youngstown, I cannot
say that Am.Sub.H.B. No. 70 received three readings by each chamber of the General
Assembly in keeping with Voinovich's interpretation and application of the three-reading
rule found in Article II, Section 15(C) of the Ohio Constitution. The trial court's finding
that "there was an opportunity to study and debate amended HB 70" is counter indicated
by the record, which is replete with evidence of how the process by which Am.Sub.H.B.
No. 70 was enacted stymied the underlying purposes of the three-reading rule and
thwarted the constitutionally provided safeguards of "publicity, discussion, and an
No. 15AP-941 31
opportunity for legislators to study the legislation and confer on the issues." Linndale
(Sadler, J., dissenting at ¶ 7); (Decision & Entry at 9.)
{¶ 66} The trial court had before it uncontested evidence of vociferous objections
and extraordinary efforts made by legislators to stem the precipitously swift passage of
this bill without the necessary public debate. In my view, it erred when it determined from
that evidence that there was ample opportunity to study and debate the bill. I would thus
find that the trial court abused its discretion in finding that each chamber of the General
Assembly satisfied the constitutional mandates of the three-reading rule.
{¶ 67} Youngstown does have a likelihood of success on the merits of this claim.
Because this failure by the General Assembly in and of itself is fatal to the vitality of the
legislation, I would decline at this time to discuss the other issues raised by Youngstown
concerning the right of electors of the school district to determine the number and
organization of the board of education pursuant to Article VI, Section 3 of the Ohio
Constitution. I would also decline at this time to discuss Youngstown's Equal Protection
Claims concerning the electors' voting rights or dilution of them. I would conclude that
the process by which Am.Sub.H.B. No. 70 was adopted violated the three-reading rule is
unconstitutional and as such must be severed from the bill. Accordingly, I would sustain
Youngstown's first assignment of error.
C. Second, Third and Fourth Assignments of Error
{¶ 68} The likelihood that Youngstown will prevail on the merits of its claim that
Am.Sub.H.B. No. 70's adoption violated the three-reading rule weighs heavily in favor of
Youngstown's entitlement to the preliminary injunction. However, in determining
whether to grant injunctive relief, no one factor is dispositive and all four factors must be
balanced. Escape Enters., Ltd. "The four considerations applicable to preliminary
injunction decisions are factors to be balanced, not prerequisites that must be met."
Michigan Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.2001). Notwithstanding this
balancing approach, however, the likelihood of success and irreparable harm factors
predominate. Cummings v. Husted, 795 F. Supp. 2d 677, 686 (S.D.Ohio 2011).
{¶ 69} Because of this balancing requirement concerning the four factors and
Youngstown's likelihood of success on the merits, I would consider Youngstown's second,
third, and fourth assignments of error together—the irreparable harm that may befall
Youngstown without injunction (second assignment of error), the harm to third parties as
No. 15AP-941 32
balanced against harm to Youngstown (third assignment of error), and the public interest
(fourth assignment of error). The evidence at the hearing is for the most part relevant to
all of these three assignments of error and accommodates their being considered together.
{¶ 70} Youngstown claims that, without the requested injunctive relief, it will
suffer a complete disruption in operation, the elected school board's authority will be
eliminated, and the administration of the school district and the education of the students
will be disrupted. Youngstown argues that the Youngstown public educational system
and its students need stability, which will be denied them without injunctive relief:
The school district has been under the direction of an
academic distress commission for the past five years, setting
the foundation for academic improvement. Without a
preliminary injunction, the appointed CEO has the power to
change everything. The CEO can establish a new curriculum
and choose new materials, terminate existing employees, and
reconstitute and close the schools – all while this lawsuit is
pending before the Court. If the Court, then, [sic] determines
that [Am. Sub.] H.B. No. 70 is unconstitutional and invalid,
the school system, once again, has to reorganize, causing more
years of disruption to the education of the children in the
district. Pending judicial review, the status quo is the better
alternative.
(Mot. for Prelim. Inj. at 13.)
{¶ 71} Youngstown posits that a CEO-devised and driven improvement plan could
include any or all of the following:
[1.] Reconstituting schools for the 2016-2017 school year (R.C.
3302.(H)(1);
[2.] Closing schools for the 2016-2017 school year (R.C.
3302.10(H)(1));
[3.] Replacing school administrators, teachers, and staff for
the 2016-2017 school year (R.C. 3302.10(H)(1));
[4.] Re-opening collective bargaining agreements (R.C.
3302.10(H)(1));
[5.] Encouraging students to enroll in schools outside of the
district including private schools and charter schools (R.C.
3302.10(G)(3).
No. 15AP-941 33
(Youngstown's Amended Brief at 35-36.) Youngstown asserts that the CEO's
improvement plan has the potential to "disrupt progress just beginning to come to
fruition after years of effort" and "result in significant job loss and the closure of all or part
of the public school system," all consequences that cannot be undone. Id. at 36.
{¶ 72} Youngstown presented evidence via school district officials about the harm
that will befall the district if Am.Sub.H.B. No. 70 were later declared to be
unconstitutional. The interim superintendent of the school district compared the district's
situation if Am.Sub.H.B. No. 70 were overturned after implementation to a rock rolling
down hill, observing that one cannot start pushing that rock back up the hill until it stops
going down. He acknowledged that he could not speak to all the ramifications that
implementing Am.Sub.H.B. No. 70 could have on the district, primarily because he had
yet to hear officials of Ohio provide a consistent explanation of the Act. The interim
superintendent testified, however, that the damage would be irreparable, stating, "[i]f you
give away schools, if you fire people, how do you take that back?" (Tr. Vol. I at 384.) The
interim superintendent likened undoing the implementation of Am.Sub.H.B. No. 70 to
"put[ting] the toothpaste back in the tube." Id.
{¶ 73} Ohio challenges Youngstown's claim. Ohio argues that the district
operations already are, and have been, so disrupted that the district cannot adequately
administer itself or educate its students. Ohio presented evidence of the district's chronic
poor performance in several areas, including student enrollment, student success, and
financial operations for the past ten years, which includes the five years the district has
been under the direction of an academic distress commission pursuant to former
R.C. 3302.10. This explanation is the reason for Am.Sub.H.B. No. 70, not an excuse for
the disruption forced on Youngstown by Ohio without the constitutionally provided
safeguards of "publicity, discussion, and an opportunity for legislators to study the
legislation and confer on the issues." Linndale (Sadler, J., dissenting at ¶ 7).
{¶ 74} Regardless, Youngstown counters that the district shows recent
improvement. Youngstown points to successes obscured in the seemingly bleak
achievement data for the Youngstown City School District's 2013-2014:
Hidden in this bleak news is the fact that the District raised
passing percentages on state assessments in 14 of 22 rated
academic areas. Though subpar, the graduation rate is slowly
increasing, college acceptance rates are on the rise, and in
No. 15AP-941 34
buildings where teaching and leadership staff have embraced
the tenets of the Quaglia program to improve school culture
through enriched student-teacher and student-student
relationships, violence is down and suspensions and
expulsions have decreased.
***
Finally, the [Youngstown Academic Distress Commission]
depended heavily upon the previous plan. The District has
been challenged to make several changes in the past two
years, and those changes need time to settle into the fabric of
the District and the schools. Reference was made in the ODE
review of what is commonly called "initiative fatigue," a
common occurrence in districts that are desperately trying to
discover and deploy initiatives that will work to turn around
failing schools. Often times in education, promising changes
initially generate only moderate or even minimal
improvements and are abandoned as unsuccessful too soon.
This revision of the [Academic Recovery Plan] contains few, if
any, surprises and reflects an intent to keep forging ahead
with the strategies of the prior plan and to improve
monitoring and assessment efforts that focus on what is and is
not working in the District.
(Ex. 14b at 2-3, Sept. 29-30, 2015 Hearing.) Youngstown presented evidence that changes
for an entire school district are likely to be incremental and slow and that such changes
are often abandoned too soon, imperiling success rather than strengthening resolve to
keep going. This evidence supported the strength of the public interest in the status quo
as opposed to yet another change imposed by legislation aimed at Youngstown adopted by
constitutionally infirmed procedures.
{¶ 75} Youngtown City School District Interim Superintendent Stephen Anthony
Stohla testified that he took up his position around the time Am.Sub.H.B. No. 70 was
enacted. The enactment had surprised him because he soon determined that the district
was doing "a lot better" than it had in 2010, when he last worked in the district. (Tr. Vol. I
at 367.) Stohla testified that the district was experiencing a financial turnaround;
whereas, the district had projected in April 2015 a $48 million deficit at the end of 2020,
it now was projecting a $23 million surplus by the end of 2020. He attributed this
turnaround in part to school district changing health insurance plans. The interim
superintendent described improved math and literacy test scores and increased
participation in college preparation courses. He praised the school district's handling of
No. 15AP-941 35
the opening of the 2015-2016 school, notwithstanding an opening day that he
characterized as "chaotic." Id. at 378. Stohla stated that he was astounded at how well
the first two months of the school year had gone, given that the district's superintendent,
deputy superintendent, director of human resources, and approximately 20 percent of
staff had resigned before the new school year commenced. He credited Ohio Department
of Education with helping the district fill many of the vacancies in teaching positions. He
highlighted the stability of principals assigned to the district's 13 schools, noting that it
was a good starting point for the district.
{¶ 76} Brenda Kimble, president of the Youngstown City School District Board of
Education, testified about her positive relationship with the academic distress
commission created in 2010 under the former version of R.C. 3302.10. Kimble opined
that Am.Sub.H.B. No. 70's enactment sent a message to the board of education and to the
community that they "don't count." (Tr. Vol. I at 266.) Kimble described programs in
academics and the arts that offer the district's 5,400 students opportunities not available
in nearby school districts. She testified that Am.Sub.H.B. No. 70's implementation could
spell the end to those opportunities, leaving the students with nowhere to go, a concern
for parents as well as students and educators. Kimbel discussed the team-building
program in place in each district school that gives students a voice and a choice. Kimble
testified that education in the district is on an upswing but that stability is required to
maintain it. She offered the following explanation to the trial court:
Why I believe [that stability is important to the school district]
is because there has been so many changes in the past few
years from the state with curriculum and testing, it doesn't
give our students a chance to grasp anything or the teachers a
chance to know what to teach.
And now we have programs that are working in our district.
We have programs that the students are understanding. We
have support programs that they're helping our students
move forward and we need to be stable at this point. We need
to be stable again so that teachers can teach, they can do their
jobs and the students can grasp what's being taught.
(Tr. Vol. I at 277.) Youngstown demonstrated through this testimony the potential for
irreparable harm to the students and teachers of the district.
No. 15AP-941 36
{¶ 77} Ohio cites potential harm to the students of the school district as the basis of
its claim for potential for harm to third parties. A consideration of preliminary injunction
calls for a balancing of interests between the party seeking the injunction and third
parties. Both sides are urging there will be harm to students, one side saying it will occur
by not granting the injunction and the other side saying it will occur by granting it.
Youngstown argues not only for its students but also for its teachers. ("We need to be
stable again so that teachers can teach, they can do their jobs and the students can grasp
what's being taught." (Tr. Vol. I at 277.)). Based on the evidence adduced before the trial
judge, I would find as a matter of law that the balance tips in favor of Youngstown on the
issue of harm to the students of the school district.
{¶ 78} Children do not remain static while the various cohorts of the educational
community struggle against one another for the emergence of a "better" plan to improve
their educational performance, taking into account all good intentions. The reality is that
Youngstown presented clear and convincing evidence that stability is prudent in
protecting the educational interests of Youngstown and its students. In short,
Youngstown presented clear and convincing evidence of the analogy that leaving some
sailors on the proverbial deck of a leaking ship is preferable to a "clearing of the deck"
when the leak appears to be abating. At the very least, a preliminary injunction that
preserves the status quo will not exacerbate an already bad situation. The potential for
irreparable harm to Youngstown weighs more heavily than the claimed harm to third
parties if injunction is not granted while the trial court fully hears the claims of the
parties.
{¶ 79} The evidence before the trial judge was clear and convincing that denying
the requested injunctive relief would cause immediate and irreparable harm to
Youngstown's school students and teachers. Balancing the hardships created with and
without injunctive relief, I would find as a matter of law that the trial court abused its
discretion in finding from the evidence that denying the preliminary injunction would not
likely result in immediate and irreparable harm for Youngstown, its district and its
student population, and that the harm to third parties would outweigh the harm to
Youngstown. I would sustain Youngstown's second and third assignments of error.
{¶ 80} As to the fourth assignment of error, Youngstown claims that the trial court
erred in finding that the public interest will not be served by the requested injunctive
No. 15AP-941 37
relief. The record before the trial court contained evidence that the public does have
interests in being effectively served by its public education system, such that the public
"has an interest in having schools that are effective and that are properly educating
students." (Decision & Entry at 15.) Youngstown's previous factual arguments
encompassing stability and incremental improvement over time support its request for
injunction with clear and convincing evidence. I would hold that the trial court erred in
finding that, "[t]he General Assembly found that Am.Sub.HB 70 serves these interests in
public education" when it found that Youngstown had not "proven that the public
interests will be served by the injunction." Id. Because I would sustain Youngstown's first
assignment of error, holding that the trial court erred in determining that Am.Sub.H.B.
No. 70 was constitutionally enacted, I would also hold that the process by which the
General Assembly adopted Am.Sub.H.B. No. 70 is a matter of public interest for which
injunction was proper.
{¶ 81} Article I, Section 20 of the Ohio Constitution provides, "[t]his enumeration
of rights shall not be construed to impair or deny others retained by the people; and all
powers, not herein delegated, remain with the people." It is well established that this
provision makes the Ohio Constitution a document of delegated powers. State ex rel. A.
Bentley & Sons Co. v. Pierce, 96 Ohio St. 44 (1917). It also expressly excludes from the
General Assembly the exercise of power that is not delegated to it in the constitution.
State ex rel. Robertson Realty Co. v. Guilbert, 75 Ohio St.1 (1906). I would hold that
sustaining Youngstown's first assignment of error is proper because of the conclusion that
the process under which Am.Sub.H.B. No. 70 was adopted violated the three-reading
rule of Ohio Constitution, Article II, Section 15(C). As such, I would find that the General
Assembly's action in this matter also violated Ohio Constitution, Article I, Section 20
because that action was an exercise of power not delegated to it in the constitution.
{¶ 82} The record indicates that Youngstown and other persons had an interest in
Ohio following the three-reading rule in adopting Am.Sub.H.B. No. 70. The enactment of
statutes proposing to overhaul aspects of Ohio's education process constitutionally
requires "publicity, discussion, and an opportunity for legislators to study the legislation
and confer on the issues." Linndale (Sadler, J., dissenting at ¶ 7). On balance, the
public's interest in having Ohio follow the three-reading rule in this case supersedes
Ohio's interest in forcing the unconstitutional passage of Am.Sub.H.B. No. 70.
No. 15AP-941 38
{¶ 83} Accordingly, I would find that the trial court abused its discretion in finding
that Youngstown did not prove that the public interest will be served by the granting of a
preliminary injunction. Accordingly, I would sustain Youngstown's fourth assignment of
error.
V. CONCLUSION
{¶ 84} I would find that this Court has jurisdiction to hear Youngstown's appeal for
the reasons aforementioned. I would further find that the trial court abused its discretion
in finding that Youngstown had failed to prove all four preliminary injunction factors and,
consequently, in denying Youngstown's motion for preliminary injunction. I would,
therefore, sustain Youngstown's four assignments of error, but I would hold that
Youngstown's first assignment of error is sustained only as to its argument concerning the
three-reading rule contained in Article II, Section 15(C) of the Ohio Constitution. I would
hold that Youngstown's other arguments presented concerning the first assignment of
error are moot for now. Therefore, I would reverse the judgment of the Franklin County
Court of Common Pleas and remand this matter with instructions to grant a preliminary
injunction to Youngstown consistent with this decision.
____________________