Ferner v. State

[Cite as Ferner v. State, 

.]




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


Mike Ferner, et al.                                    Court of Appeals No. L-20-1041

        Appellants                                     Trial Court No. CI0201902904

v.

State of Ohio                                          DECISION AND JUDGMENT

        Appellee                                       Decided: September 30, 2020

                                                …

        Mike Ferner, Bryan Twitchell and John Michael Durback, pro se
        appellants.

        Dave Yost, Ohio Attorney General, Amanda M. Ferguson, Jenna Foos,
        Daniel J. Martin and Gregg H. Bachmann, Assistant Attorneys General,
        for appellee.

                                                …

        ZMUDA, P.J.

                                             I. Introduction

        {¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, dismissing the complaint for declaratory judgment of

plaintiffs-appellants Mike Ferner, Bryan Twitchell, and John Michael Durback, finding
appellants failed to state a claim for which relief might be granted. For the reasons that

follow, we reverse the trial court’s judgment.

                         II. Facts and Procedural Background

       {¶ 2} In August 2014, the city of Toledo issued a notice to area residents that the

water supply contained unsafe levels of a toxic substance, caused by pollution attributed

to agricultural run-off into Lake Erie. The water remained dangerous for consumption

for almost three days. To address the issue, concerned citizens initiated a campaign to

adopt a Lake Erie Bill of Rights (LEBOR) as part of the city Charter. After collecting

sufficient signatures, the citizens presented the proposed amendment to the Lucas County

Board of Elections and the Board of Elections rejected the proposed charter amendment,

finding the proposed amendment contained provisions the city had no authority to enact.

In an expedited election case, the Ohio Supreme Court denied a request for a writ of

mandamus to require the Board to place the amendment on the ballot in a plurality

opinion. State ex rel. Twitchell v. Saferin, 

, 

, 

.

       {¶ 3} On December 4, 2018, the Toledo City Council passed an ordinance,

declaring the citizen’s petition had sufficient signatures, and certifying the measure to the

Board for placement on the February 26, 2019 special-election ballot. Toledo resident

Josh Abernathy submitted a written protest to the Board, arguing LEBOR could not

appear on the ballot as its provisions exceeded the authority of the city to enact, and the

Supreme Court’s decision in Twitchell foreclosed inclusion on the ballot. State ex rel.




2.
Abernathy v. Lucas County Board of Elections, 

, 

, 

. The Ohio Supreme Court denied the writ, finding that, once a municipal

legislative body passes an ordinance to place a proposed charter amendment on the ballot,

a board of elections has “no legal authority to review the substance of a proposed charter

amendment and has no discretion to block the measure from the ballot based on an

assessment of its suitability.” 

 at ¶ 7 -9, citing State ex rel. Maxcy v. Saferin, 

, 

, 

.

       {¶ 4} The issue went to the voters, who favored the amendment to the charter, and

LEBOR became law. The day after the election, Drewes Farms Partnership, an entity

that farmed in counties near Toledo and would be subject to the provisions of LEBOR,

filed suit in federal court to declare LEBOR invalid. The city of Toledo opposed that

effort. Months into the litigation, the state of Ohio intervened as a party plaintiff. In

March 2019, the Drewes Farms, the city, and the state agreed to an injunction to stay

enforcement of LEBOR during the pendency of the federal suit. Drewes Farms

Partnership v. City of Toledo, N.D. Ohio Case No. 3:19 CV 434, 

(Mar. 18, 2019).

       {¶ 5} On June 27, 2019, while the stay of enforcement and the Drewes Farms suit

remained pending, appellants filed a complaint for declaratory action in the trial court

naming the state of Ohio as the sole defendant. Appellants alleged venue and jurisdiction

was proper, in part, because LEBOR created jurisdiction with the Lucas County Court of

Common Pleas. In articulating a cause of action, appellants described prior litigation to




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protect Lake Erie and its watershed from agricultural run-off and outlined the history of

and purpose for the citizen initiative process to establish LEBOR. Appellants alleged the

state violated LEBOR and Article I, Sections 1 and 2 of the Ohio Constitution by

bringing suit in federal court to challenge the validity of LEBOR. The complaint for

declaratory judgment, furthermore, sought an “order declaring LEBOR to be valid under

the Constitution and laws of the State of Ohio.” Additionally, appellants sought a finding

that the state maintains policies that fail to abate widespread pollution of Lake Erie and/or

have caused additional harm, a determination that LEBOR is valid and enforceable in its

entirety, and a permanent injunction against the state, any citizen, any person, and any

legal or fictitious entity, enjoining them from abridging appellants’ rights under LEBOR

or denying appellants the right to enforce any provision of LEBOR against “any person,

corporation, federal, state, or local governmental entity, and any other legal entity.”

       {¶ 6} On July 30, 2019, the state filed a motion to dismiss the complaint for failure

to state a claim. The state argued that appellants lacked standing to bring the suit, and

failed to allege any concrete harm caused by the state’s participation in the Drewes

Farms litigation, as the mere participation in the suit did not injure appellants, leaving

only a “potential, speculative injury” should the federal court invalidate LEBOR.

Additionally, the state argued that any ruling by the trial court would not prevent the

federal court from ruling on the separate federal and state constitutional provisions at

issue in the Drewes Farms suit, and an order barring the state’s participation would not

end the suit, as the state was only an intervening plaintiff in that case.




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       {¶ 7} Finally, the state argued that appellants lacked a legal basis to prevent the

state from defending its interests in Lake Erie or defending its laws. Significantly, the

state noted that LEBOR’s attempt to insulate its provisions from any legal challenge

essentially bars the state from participating in “the resolution of important questions of

state and federal constitutional law.” The provisions of LEBOR, therefore, purport to

silence the state where a third party seeks interpretation of laws affecting a natural

resource controlled by the state, or where conflicting local and state laws require

resolution, or where a part of the state challenges the validity of other environmental,

natural resources, and agricultural statutes and regulations.

       {¶ 8} In seeking dismissal for failure to state a claim, the state challenged the

validity of LEBOR, arguing the General Assembly exercises exclusive authority to vest

jurisdiction in a common pleas court, citing Article IV, Section 4(b) of the Ohio

Constitution. See Cupps v. City of Toledo, 

, 

 (1959), at

paragraph one of the syllabus (“The authority granted to municipalities by Section 3 of

Article XVIII, Ohio Constitution, 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’ and, by Section 7 of Article XVIII,

to ‘frame and adopt or amend a charter for its government and … exercise thereunder

all powers of local self-government’ does not include the power to regulate the

jurisdiction of courts established by the Constitution or by the General Assembly




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thereunder.”) Therefore, the state argued, LEBOR may not confer “original jurisdiction”

in a court, and the complaint is jurisdictionally flawed.

       {¶ 9} In opposing dismissal, appellants eschewed legal analysis for discussion of

“ecological reality,” arguing the importance for the trial court to declare “that the state

has failed to protect Lake Erie and all those who depend on her,” and asking the court to

declare LEBOR “enforceable in its entirety,” with no preemption by state law. As to

concrete injury, appellants argued the long history of pollution, including algae blooms

every summer, undrinkable water, swimming advisories, and other water quality issues.

Appellants traced these issues to the state’s failure to enforce regulatory laws, like the

Clean Water Act. Furthermore, appellants argued that by filing suit against the city in

2019 and stipulating to an injunction against enforcement of LEBOR during the

pendency of that suit, the state caused “a century of assault and ruin” to Lake Erie to

endure.

       {¶ 10} On September 24, 2019, the trial court requested additional briefing to

“assist the court in its decision.” The parties were asked to provide additional argument

on the applicability of Ohio’s Home Rule Amendment under Article XVIII, Section 3 of

the Ohio Constitution, as well as argument regarding whether sovereign immunity or

exclusive jurisdiction of the court of claims applied to the appellants’ claims.

       {¶ 11} After additional briefing, the trial court granted the state’s motion to

dismiss on January 15, 2020, finding appellants failed to allege a claim that presented a

justiciable controversy, and sought only an advisory opinion on the validity of LEBOR.




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The trial court did not address the actual claims alleged, including the allegation that the

state violated LEBOR and Article I, Sections 1 and 2 of the Ohio Constitution by filing

suit in federal court to challenge the validity of LEBOR or the allegation that the state’s

“permitting and licensing activities” cause “affirmative and cumulative harm” and violate

rights granted by LEBOR.

       {¶ 12} Appellants filed a timely appeal of the trial court’s judgment on

February 14, 2020.

       {¶ 13} On February 27, 2020, the federal court in Drewes Farms issued its

decision, addressing the issue of standing first. See Drewes Farms Partnership v. City of

Toledo, 

, 555 (Feb. 27, 2020), appeal dismissed sub nom. Drewes

Farms Partnership v. City of Toledo, OH, 

 (Apr. 14, 2020), and appeal

dismissed sub nom. Drewes Farms Partnership v. City of Toledo, OH, 

 (May 5, 2020). The Drewes Farms court determined that the state had standing

to challenge the validity of LEBOR, based on LEBOR provisions that invalidated

conflicting state laws, regulations, licenses, and permits. 

 The court next considered

the text of LEBOR and found its provisions vague and uncertain. Id. at 556. The court

considered the impossibility of interpreting “[w]hat conduct infringes the right of Lake

Erie and its watershed to ‘exist, flourish, and naturally evolve?’” Id.

       {¶ 14} After reviewing the rights articulated in LEBOR, the court found the

language was vague and amorphous, noting the ordinance “sounds powerful but has no

practical meaning.” Id. This vagueness extended throughout LEBOR, and the court




7.
determined that “[n]o part of LEBOR can be saved …. Once the three vague rights are

stripped away, the remainder is meaningless.” Id at 577. The court noted the language

recites “values and findings; it does not purport to create legal rights or obligations.” Id.

       {¶ 15} Finally, the Drewes Farms court determined that many provisions of

LEBOR failed “on their own merits.” Id.

       For example, LEBOR’s attempt to invalidate Ohio law in the name of

       environmental protection is a textbook example of what municipal

       government cannot do. Lake Erie is not a pond in Toledo. It is one of the

       five Great Lakes and one of the largest lakes on Earth, bordering dozens of

       cities, four states, and two countries. That means the Lake’s health falls

       well outside the City’s constitutional right to local self-government, which

       encompasses only “the government and administration of the internal

       affairs of the municipality.” In re Complaint of Reynoldsburg, 

, 

 (2012) (citation omitted). Consequently,

       municipal laws enacted to protect Lake Erie are generally void if they

       conflict with Ohio law. See Mendenhall v. City of Akron, 

, 

 (2008). See also Pa. Gen. Energy Co. v.

       Grant Twp., 

 (W.D. Pa. 2015) (invalidating part of

       local ordinance similar to LEBOR due to conflict with Pennsylvania state

       law). LEBOR flagrantly violates this rule.

Drewes Farms at 557.




8.
       {¶ 16} Appellants filed their brief in support of the appeal a day later, noting the

ruling in Drewes Farms, invalidating LEBOR in its entirety. The state attached the

Drewes Farms decision as an appendix to its appellee brief. The briefs of the parties

largely address the merits and validity of LEBOR, with little attention to the claims

contained within appellants’ complaint.

       {¶ 17} On August 25, 2020, we granted the parties leave to file supplemental

briefs to address the Drewes Farms decision, recently issued. Each party filed a

supplemental brief, again primarily addressing the merits and validity of LEBOR, in light

of the findings in the Drewes Farms decision. Appellee acknowledged that the present

appeal does not concern adjudication on the merits, but urged this court to take judicial

notice of the Drewes Farms ruling. Appellants acknowledged that the Drewes Farms

ruling likely “killed LEBOR,” but urged this court to consider the policy implications for

protecting Lake Erie. With the filing of supplemental briefs, the matter is now

decisional.

                                 III. Assignment of Error

       {¶ 18} Appellants now challenge the trial court’s dismissal of the declaratory

judgment action, asserting the following as error:

              The trial court improperly dismissed the Plaintiffs’ Complaint for

       Declaratory Judgment when it ruled that it is beyond doubt that the

       plaintiffs can prove no set of facts to support plaintiffs’ claims that justifies

       the relief sought.




9.
                                       IV. Analysis

       {¶ 19} The trial court dismissed appellants’ complaint for failure to state a claim,

pursuant to Civ.R. 12(B)(6). “An order granting a Civ.R. 12(B)(6) motion to dismiss is

subject to de novo review.” Perrysburg Twp. v. Rossford, 

, 2004-Ohio-

4362, 

, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp., 

,

, 

, ¶ 4-5.

       {¶ 20} Although mindful of the likely failure of appellants’ complaint on the

merits, as acknowledged by the parties, the matter before us is a narrow, procedural

issue. Pursuant to Civ.R. 12(B)(6), a complaint may be dismissed for “failure to state a

claim upon which relief can be granted.” To sufficiently state a claim for relief, a

plaintiff “need not allege in the complaint every fact he intends to prove … [b]ut

plaintiff must allege a set of facts that would support a cause of action.” Haas v. Stryker,

6th Dist. Williams No. WM-12-004, 

, ¶ 8, citing Beretta at ¶ 5. In

reviewing the pleading, we must accept the factual allegations as true and construe all

reasonable inferences in the plaintiff’s favor. Mitchell v. Lawson Milk Co., 

, 

 (1988).

       {¶ 21} Our review is limited to the complaint and any documents properly

incorporated within the complaint, with no consideration of matters beyond the pleading.

(Citation omitted.) Smith v. Candiello, 6th Dist. Lucas No. L-15-1125, 

. In this case, the complaint alleges a declaratory judgment action to determine the

enforceability of LEBOR.




10.
       {¶ 22} Declaratory judgment actions provide a means to enforce legal rights. See

R.C. 2721.03. A valid declaratory judgment action requires a real and justiciable

controversy between adverse parties, with speedy relief necessary to preserve rights in

danger of being impaired or lost. Fairview Gen. Hosp. v. Fletcher, 

, 

 (1992). In this instance, appellants’ complaint alleges facts that,

if we accept as true, articulate a claim for declaratory judgment regarding the

enforceability of LEBOR, a charter amendment granting Lake Erie and the citizenry

certain rights, including standing to sue to protect those rights. Appellants alleged facts

constituting a violation of LEBOR by the state and sought a declaration regarding the

enforceability of LEBOR and a permanent injunction to prevent violation of LEBOR.

       {¶ 23} In arguing for dismissal, appellee argues the issue is moot based on the

adverse ruling in Drewes Farms, and appellee asks this court to take judicial notice of

that court’s decision and subsequent proceedings, specifically, the city’s dismissal of its

appeals and apparent abandonment of efforts to enforce LEBOR. We note, however, that

a “court cannot take judicial notice of court proceedings in another case.” In re W.E., 6th

Dist. Lucas No. L-11-1076, 

, ¶ 5, citing Woodman v. Tubbs Jones, 

 (8th Dist.1995), citing Diversified Mtge. Investors, Inc. v. Athens

Cty. Bd. of Revision, 

, 

 (4th Dist.1982) and State v.

Velez, 

, 

 (3d Dist.1991). Furthermore, the issue is not

rendered moot by the decision by the federal district court in Drewes Farms, as decisions




11.
by federal trial courts are not binding on the state courts and provide only persuasive

authority. See State v. Burnett, 

, 

 (2001).

       {¶ 24} Appellee also argues that appellants’ complaint presents no justiciable

issue, based on the lack of a live controversy between parties with standing. In support,

appellee argues the provisions of LEBOR, granting standing and enforceable rights, are

invalid. This argument appears opposite to the state’s position in the Drewes Farms

matter, where the federal court found the state had standing to challenge the

enforceability of LEBOR through a declaratory judgment action. See Drewes Farms, 441

F.Supp.3d at 555 (finding the existence of LEBOR injures the state “on paper” by

invalidating its laws, regulations, licenses, and permits).

       {¶ 25} While we do not consider the Drewes Farms decision to be controlling in

this matter, we find the federal court’s ruling regarding standing persuasive in the general

sense, and in this instance, the federal court decision lends support to a finding that

appellants have standing to seek declaratory relief. Appellants sought the same review in

the trial court that appellee sought in federal court, which was review of the validity of

LEBOR and consideration of the same tensions between the state’s authority and

LEBOR’s broad proscriptions.1




1
 We do note that the federal court determination was made pursuant to Federal Civil
Rule 12(C) and 28 U.S.C. 2201, the federal declaratory judgment statute, and not Ohio
Civ.R. 12(B)(6). Drewes Farms, 441 F.Supp.3d at 554.




12.
       {¶ 26} While the merits of appellants’ complaint are placed in doubt by the

Drewes Farms findings, appellants nonetheless articulate a sufficient legal claim for

declaratory judgment regarding the enforceability of a properly enacted law, LEBOR.

While appellee argues that the claimed defects in this law provide a basis to find an

insufficient claim for relief, we must consider the merits of the very claim that appellants

put forth in the trial court to reach this conclusion. A Civ.R. 12(B)(6) determination does

not reach the merits of the challenged claims, beyond the facts alleged on the face of the

pleading, regardless of “however hurried a court may be in its efforts to reach the merits

of a controversy[.]” Miller v. Lint, 

, 

 (1980).

       {¶ 27} We must avoid the temptation to wade into waters belonging to the trial

court, as consideration of the merits is beyond the determination under Civ.R. 12(B)(6).

In this case, the trial court could have converted the motion to dismiss to a determination

on summary judgment, in order to address the merits of appellants’ claims. See Civ.R.

12(B); Petrey v. Simon, 

, 

 (1983), paragraph one of the

syllabus. The trial court did not do so, however, and the matter on appeal is therefore

limited to a procedural review. Accordingly, based solely on the facts alleged, we find

appellants stated a sufficient claim, and the trial court erred in dismissing the matter

pursuant to Civ.R. 12(B)(6).




13.
       {¶ 28} We find appellants’ sole assignment of error well-taken, and reverse and

remand the proceedings to the trial court. Costs of the appeal are assessed to the state

pursuant to App.R. 24.

                                                                         Judgment reversed
                                                                            and remanded.




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




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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