[Cite as DeMoss v. Silver Lake, 2016-Ohio-3241.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
GARY W. DEMOSS, et al. C.A. No. 27820
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE VILLAGE OF SILVER LAKE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2012-09-5141
DECISION AND JOURNAL ENTRY
Dated: June 1, 2016
CARR, Presiding Judge.
{¶1} Appellants, Gary DeMoss, Carl Harrison, and Mark Kennemuth, appeal the
judgment of the Summit County Court of Common Pleas. This Court reverses and remands.
I.
{¶2} In 1972, the Village of Silver Lake enacted an ordinance (76-1972), amending
section 139.05 of its codified ordinances, establishing medical and life insurance benefits for
employees who retired under the PERS or Police Pension plans after having completed at least
15 years of service to the Village. Messrs. DeMoss, Harrison, and Kennemuth all became
employed by the Village police department and completed 15 years of employment while the
1972 ordinance was in effect. In 1995, the Village again amended section 139.05 (pursuant to
enactment 58-1995), repealing the prior language regarding medical and life insurance benefits
for retirees, retaining such benefits solely for “permanent regular employees * * * under such 2
terms as Council may periodically determine provided such coverage is available from
commercial sources.”
{¶3} DeMoss and Harrison retired from the village police department in 2010 and
2012, respectively. Kennemuth continues his employment with the department. All three filed a
complaint in 2012, seeking a declaration that their rights after retirement to medical and life
insurance benefits under the 1972 amendment to section 139.05 vested upon each attaining 15
years of service with the Village prior to the enactment of the 1995 amendment. In the event
their rights were determined to have vested, DeMoss and Harrison further prayed for an order
requiring the Village immediately to pay their medical and life insurance premiums, including
retroactive amounts; while Kennemuth prayed for an order requiring the Village to pay his
medical and life insurance premiums at a future undetermined date after he retired. The Village
filed an answer and raised various affirmative defenses.
{¶4} The matter was referred to the magistrate, and the parties agreed to submit the
matter for resolution on briefs and agreed stipulations of fact. The magistrate issued a decision
finding that the 1972 ordinance contained language allowing the Village council to modify its
provision of benefits. He, thereafter, concluded that the language of the 1972 ordinance did not
evidence a statutory plan to provide coverage and that the 1972 ordinance both created the right
to insurance and terminated that right. The magistrate further concluded that the Village was
entitled to prevail based on its affirmative defense of laches. However, specifically as to
Kennemuth, who had not yet retired from the Village police department, the magistrate relied on
the Ohio Supreme Court’s holding in Sheehy v. Seilon, Inc., 10 Ohio St.2d 242, 243-244 (1967),
that, notwithstanding contractual benefits provided to induce employee loyalty, an employer
“may cancel insurance as to those of its employees who are still working and have not retired.” 3
{¶5} DeMoss, Harrison, and Kennemuth filed objections to multiple findings of fact
and conclusions of law in the magistrate’s decision. The Village opposed the objections. The
trial court sustained many of DeMoss’, Harrison’s, and Kennemuth’s objections, but ultimately
entered the following judgment:
The Village Ordinance No. 58-1995 passed by the Village of Silver Lake Council on or about June 6, 1995, allowed the Village to amend their previous Ordinance No. 76-1972, passed on December 18, 1972, to the extent that it legally effectuated a cancellation of any life or health insurance benefits to be paid to retirees of the Police Department, with specific reference to Gary W. DeMoss, Michael Kennemuth, and Carl Harrison.
{¶6} DeMoss, Harrison, and Kennemuth filed a timely appeal, raising one assignment
of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE VILLAGE OF SILVER LAKE HAD A LEGAL RIGHT TO MODIFY ORDINANCE NO. 76-1972 BY THE PASSAGE OF ORDINANCE NO. 58- 1995 AND BY NOT HOLDING THAT THE ORDINANCE WAS VIOLATIVE OF ARTICLE II, SEC. 28 OF THE OHIO CONSTITUTION AS BEING UNCONSTITUTIONALLY APPLIED RETROACTIVELY TO APPELLANTS[.]
{¶7} DeMoss, Harrison, and Kennemuth argue that the trial court erred by declaring
that the Village had the right to modify the version of section 139.05 of the codified ordinances
enacted in 1972 by way of the 1995 enactment. This Court agrees.
{¶8} When reviewing a trial court’s determination regarding legal issues relevant to the
entry of declaratory judgment, this Court must apply a de novo standard of review. Arnott v.
Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 1.
{¶9} DeMoss, Harrison, and Kennemuth sought a declaration that their rights to
medical and life insurance benefits had vested after 15 years of employment with the Village. 4
They argued that the 1995 ordinance violated the Retroactivity Clause of the Ohio Constitution,
and that the trial court failed to conduct the proper analysis in its determination. This Court
agrees.
{¶10} Article II, Section 28, of the Ohio Constitution proscribes the enactment of
retroactive laws. Unless the legislation is expressly made retrospective, it is presumed to be
prospective only in its application. R.C. 1.48. Courts apply a two-step analysis to determine
whether retroactive application of the law violates the constitutional proscription. State v. White,
132 Ohio St.3d 344, 2012-Ohio-2583, ¶ 27.
{¶11} First, as a threshold matter, a court must determine whether the legislature
intended for the statute to apply retroactively. Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000);
see also Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100 (1988), paragraph one of the
syllabus. Often, this determination can be made based on the plain language of the legislation.
See, e.g., White at ¶ 28-30 (finding legislative intent to apply death penalty statute retroactively
where statute expressly stated it would apply to all offenders sentenced to death on or after
October 19, 1981, the effective date of the current death penalty statute); Bielat, 87 Ohio St.3d at
353-354 (finding legislative intent to apply Ohio’s Transfer-on-Death Security Registration Act
retroactively where statute stated it applied “prior to, on, or after” the effective date of the Act);
State v. Cook, 83 Ohio St.3d 404, 410 (statute applies to sex offenders convicted, sentenced and
still imprisoned prior to effective date).
{¶12} Second, a court must determine whether the retroactive law is remedial or
substantive. Bielat at 354. As the high court has written:
A purely remedial statute does not violate Section 28, Article II of the Ohio Constitution [the Retroactivity Clause], even when it is applied retroactively. On the other hand, a retroactive statute is substantive – and therefore unconstitutionally retroactive – if it impairs vested rights, affects an accrued 5
substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction.
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[Cite as DeMoss v. Silver Lake, 2016-Ohio-3241.]
STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
GARY W. DEMOSS, et al. C.A. No. 27820
Appellants
v. APPEAL FROM JUDGMENT ENTERED IN THE VILLAGE OF SILVER LAKE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellee CASE No. CV 2012-09-5141
DECISION AND JOURNAL ENTRY
Dated: June 1, 2016
CARR, Presiding Judge.
{¶1} Appellants, Gary DeMoss, Carl Harrison, and Mark Kennemuth, appeal the
judgment of the Summit County Court of Common Pleas. This Court reverses and remands.
I.
{¶2} In 1972, the Village of Silver Lake enacted an ordinance (76-1972), amending
section 139.05 of its codified ordinances, establishing medical and life insurance benefits for
employees who retired under the PERS or Police Pension plans after having completed at least
15 years of service to the Village. Messrs. DeMoss, Harrison, and Kennemuth all became
employed by the Village police department and completed 15 years of employment while the
1972 ordinance was in effect. In 1995, the Village again amended section 139.05 (pursuant to
enactment 58-1995), repealing the prior language regarding medical and life insurance benefits
for retirees, retaining such benefits solely for “permanent regular employees * * * under such 2
terms as Council may periodically determine provided such coverage is available from
commercial sources.”
{¶3} DeMoss and Harrison retired from the village police department in 2010 and
2012, respectively. Kennemuth continues his employment with the department. All three filed a
complaint in 2012, seeking a declaration that their rights after retirement to medical and life
insurance benefits under the 1972 amendment to section 139.05 vested upon each attaining 15
years of service with the Village prior to the enactment of the 1995 amendment. In the event
their rights were determined to have vested, DeMoss and Harrison further prayed for an order
requiring the Village immediately to pay their medical and life insurance premiums, including
retroactive amounts; while Kennemuth prayed for an order requiring the Village to pay his
medical and life insurance premiums at a future undetermined date after he retired. The Village
filed an answer and raised various affirmative defenses.
{¶4} The matter was referred to the magistrate, and the parties agreed to submit the
matter for resolution on briefs and agreed stipulations of fact. The magistrate issued a decision
finding that the 1972 ordinance contained language allowing the Village council to modify its
provision of benefits. He, thereafter, concluded that the language of the 1972 ordinance did not
evidence a statutory plan to provide coverage and that the 1972 ordinance both created the right
to insurance and terminated that right. The magistrate further concluded that the Village was
entitled to prevail based on its affirmative defense of laches. However, specifically as to
Kennemuth, who had not yet retired from the Village police department, the magistrate relied on
the Ohio Supreme Court’s holding in Sheehy v. Seilon, Inc., 10 Ohio St.2d 242, 243-244 (1967),
that, notwithstanding contractual benefits provided to induce employee loyalty, an employer
“may cancel insurance as to those of its employees who are still working and have not retired.” 3
{¶5} DeMoss, Harrison, and Kennemuth filed objections to multiple findings of fact
and conclusions of law in the magistrate’s decision. The Village opposed the objections. The
trial court sustained many of DeMoss’, Harrison’s, and Kennemuth’s objections, but ultimately
entered the following judgment:
The Village Ordinance No. 58-1995 passed by the Village of Silver Lake Council on or about June 6, 1995, allowed the Village to amend their previous Ordinance No. 76-1972, passed on December 18, 1972, to the extent that it legally effectuated a cancellation of any life or health insurance benefits to be paid to retirees of the Police Department, with specific reference to Gary W. DeMoss, Michael Kennemuth, and Carl Harrison.
{¶6} DeMoss, Harrison, and Kennemuth filed a timely appeal, raising one assignment
of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED AS A MATTER OF LAW IN HOLDING THAT THE VILLAGE OF SILVER LAKE HAD A LEGAL RIGHT TO MODIFY ORDINANCE NO. 76-1972 BY THE PASSAGE OF ORDINANCE NO. 58- 1995 AND BY NOT HOLDING THAT THE ORDINANCE WAS VIOLATIVE OF ARTICLE II, SEC. 28 OF THE OHIO CONSTITUTION AS BEING UNCONSTITUTIONALLY APPLIED RETROACTIVELY TO APPELLANTS[.]
{¶7} DeMoss, Harrison, and Kennemuth argue that the trial court erred by declaring
that the Village had the right to modify the version of section 139.05 of the codified ordinances
enacted in 1972 by way of the 1995 enactment. This Court agrees.
{¶8} When reviewing a trial court’s determination regarding legal issues relevant to the
entry of declaratory judgment, this Court must apply a de novo standard of review. Arnott v.
Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, ¶ 1.
{¶9} DeMoss, Harrison, and Kennemuth sought a declaration that their rights to
medical and life insurance benefits had vested after 15 years of employment with the Village. 4
They argued that the 1995 ordinance violated the Retroactivity Clause of the Ohio Constitution,
and that the trial court failed to conduct the proper analysis in its determination. This Court
agrees.
{¶10} Article II, Section 28, of the Ohio Constitution proscribes the enactment of
retroactive laws. Unless the legislation is expressly made retrospective, it is presumed to be
prospective only in its application. R.C. 1.48. Courts apply a two-step analysis to determine
whether retroactive application of the law violates the constitutional proscription. State v. White,
132 Ohio St.3d 344, 2012-Ohio-2583, ¶ 27.
{¶11} First, as a threshold matter, a court must determine whether the legislature
intended for the statute to apply retroactively. Bielat v. Bielat, 87 Ohio St.3d 350, 353 (2000);
see also Van Fossen v. Babcock & Wilcox Co., 36 Ohio St.3d 100 (1988), paragraph one of the
syllabus. Often, this determination can be made based on the plain language of the legislation.
See, e.g., White at ¶ 28-30 (finding legislative intent to apply death penalty statute retroactively
where statute expressly stated it would apply to all offenders sentenced to death on or after
October 19, 1981, the effective date of the current death penalty statute); Bielat, 87 Ohio St.3d at
353-354 (finding legislative intent to apply Ohio’s Transfer-on-Death Security Registration Act
retroactively where statute stated it applied “prior to, on, or after” the effective date of the Act);
State v. Cook, 83 Ohio St.3d 404, 410 (statute applies to sex offenders convicted, sentenced and
still imprisoned prior to effective date).
{¶12} Second, a court must determine whether the retroactive law is remedial or
substantive. Bielat at 354. As the high court has written:
A purely remedial statute does not violate Section 28, Article II of the Ohio Constitution [the Retroactivity Clause], even when it is applied retroactively. On the other hand, a retroactive statute is substantive – and therefore unconstitutionally retroactive – if it impairs vested rights, affects an accrued 5
substantive right, or imposes new or additional burdens, duties, obligations, or liabilities as to a past transaction.
(Internal citations omitted; emphasis in original) Id. “‘The prohibition against retroactive laws *
* * is a protection for the individual who is assured that he may rely upon the law as it is written
and not later be subject to new obligations thereby.’” White at ¶ 34, quoting Lakengren, Inc. v.
Kosydar, 44 Ohio St.2d 199, 201 (1975). An “accrued right” is “a matured right; a right that is
ripe for enforcement.” White at ¶ 35, quoting Black’s Law Dictionary 1436 (9th Ed.2009).
{¶13} In this case, the trial court did not engage in the proper analysis to determine
whether the 1995 ordinance violated the Retroactivity Clause, so that it could be responsive to
the police officers’ prayer for a declaration regarding whether they had vested rights under the
1972 ordinance. Instead, the trial court reviewed the language of the 1972 ordinance, determined
that the Village identified two classes of individuals (employees and retirees who completed 15
years’ service to the Village) who “shall” be accorded benefits, and concluded that the prior
ordinance did not evidence any intent by the legislature to terminate health and life insurance
benefits in the future. The court did not, however, make any determination regarding whether
the Village council expressed any intent as to whether the 1995 ordinance should be applied
retroactively. In the absence of that threshold determination, any further determination regarding
whether the 1995 ordinance is remedial or substantive, i.e., whether or not any vested right is
implicated, is either moot or merely premature. Accordingly, as the trial court failed to conduct
the necessary inquiry relevant to the declaratory relief sought by DeMoss, Harrison, and
Kennemuth, this Court is compelled to reverse and remand the matter to the trial court for further
determination of the issue before it.
{¶14} Finally, this Court notes that the judgment entry appealed further appears to
contain various internal inconsistencies precluding affirmance. See generally Barker v. 6
Emergency Professional Servs., Inc., 11th Dist. Trumbull No. 2013-T-0018, 2014-Ohio-1368.
For example, the trial court identified the rights (to insurance benefits) created in 1972 for both
current employees and retirees with 15 years of service to the Village, recognizing merely that
the configuration of those benefits could be changed. It later concluded, however, that not
merely the configuration but the very existence of the rights could be changed.
{¶15} DeMoss’, Harrison’s, and Kennemuth’s sole assignment of error is sustained to
the extent that the trial court failed to perform the necessary analysis.
III.
{¶16} The sole assignment of error is sustained. The judgment of the Summit County
Court of Common Pleas is reversed and the cause remanded for further proceedings consistent
with this opinion.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30. 7
Costs taxed to Appellee.
DONNA J. CARR FOR THE COURT
WHITMORE, J. SCHAFER, J. CONCUR.
APPEARANCES:
LARRY SHENISE, Attorney at Law, for Appellants.
JOHN T. MCLANDRICH, FRANK H. SCIALDONE, and TAMI Z. HANNON, Attorneys at Law, for Appellee.