IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY
REGINA M. ROHAN, et al., CASE NO. 2025-P-0089
Plaintiffs-Appellants,
Civil Appeal from the
- vs - Court of Common Pleas
CITY OF STREETSBORO, Trial Court No. 2024 CV 00461 Defendant-Appellee.
OPINION AND JUDGMENT ENTRY
Decided: August 24, 2026
Judgment: Affirmed
Warner D. Mendenhall, and Jensen E. Silvis, Mendenhall Law Group, 190 North Union Street, Suite 201, Akron, OH 44304 (For Plaintiffs-Appellants).
John D. Latchney, and William H. Kotar, Hanna Campbell & Powell, L.L.P., 3737 Embassy Parkway, Suite 100, Akron, OH 44333 (For Defendant-Appellee).
ROBERT J. PATTON, J.
{¶1} Plaintiffs-appellants, Regina Rohan (“Rohan”) and Laura Lewis and Sam Lewis (“the Lewises”) (collectively, “appellants”) appeal the decision of the Portage County Court of Common Pleas granting summary judgment in favor of the City of Streetsboro (“Streetsboro”) on their complaint for declaratory judgment. For the following reasons, we affirm.
Substantive and Procedural Facts
{¶2} Streetsboro is a municipal corporation with a charter. Appellants are residents of Streetsboro. It is undisputed that Streetsboro has its own water distribution utility and that Streetsboro purchases water from Portage County Water Resources. According to Streetsboro, it was experiencing a loss of water due to undetected leaks and inaccurate meters. Streetsboro alleged that the analog meters were worn out, no longer accurate, and a financial liability to the city.
{¶3} In August 2023, Streetsboro City Council passed Ord. 2023-115, an ordinance authorizing the mayor of the city to contract with a private company for water meter replacements and an integration project. Streetsboro contracted to have the analog meters replaced with an electronic meter, the Kamstrup Flow IQ 2200 (“Kamstrup”). The Kamstrup meter has a feature called “acoustic leakage detection” which monitors the pipes and detects noise patterns and other changes to identify potential leaks. Streetsboro informed residents that they would need to schedule an appointment with the company to have their meters replaced. Residents were informed that the cost of installation was at Streetsboro’s expense.
{¶4} According to appellants, they learned that Streetsboro planned to replace their analog water meters with “smart” meters and started to receive letters threatening water shut-off if they did not schedule the installation of the new meter. Streetsboro then sent a notice that water would be shut off due to appellants’ refusal to permit the company to replace the meter. Appellants were concerned with potential negative health effects the new meters would have on their family members, some of which have significant pre- existing health conditions. Additionally, the appellants were concerned with the warrantless collection of information from inside the home. Specifically, appellants expressed their privacy concerns as the meter has the capability to “listen” to the pipes within the home and remotely share water meter data several times throughout the day.
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According to appellants, they sought an opt-out option, but Streetsboro informed appellants that one was not available.
{¶5} According to Streetsboro, “other than vacant properties, all the homes in the city had the new water meters installed, except” the appellants. After appellants failed to schedule the meter to be replaced despite requests to do so, Streetsboro sent a notice informing them that the water service would be shut off.
{¶6} On June 24, 2024, appellants filed a complaint against Streetsboro to enjoin shut off of appellants’ water supply and the installation of “smart” meters due to violations of Constitutional rights. Specifically, appellants sought declaratory relief under three separate sections of the Ohio Constitution, Ohio Const., art. 1, § 1, 14, and 16. According to appellant’s complaint, Streetsboro’s forced installation of smart water meters at their homes deprived them of their inalienable rights, their right to be free from unreasonable warrantless searches, and their right to due process.
{¶7} In addition to their complaint, appellants also filed a motion for a temporary restraining order. The motion for temporary restraining order was granted by the court below on June 25, 2024, and Streetsboro was prohibited from shutting off appellants’ water service until further proceedings.
{¶8} Streetsboro filed its answer to the complaint on August 12, 2024, and asked that the complaint be dismissed with prejudice.
{¶9} On December 16, 2024, appellants filed a “Notice of Identification of Experts and Service of Expert Reports” naming Dr. Kent Chamberlin, Ph.D. and Dr. Paul Heroux, Ph.D. as their intended experts. On February 25, 2025, Streetsboro filed a notice of
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service of their first expert report (that did not identify an expert). Streetsboro filed a second report on March 14, 2025.
{¶10} On August 19, 2025, Streetsboro filed its motion for summary judgment. In its motion, Streetsboro alleged that appellants’ claims failed as a matter of law because the complaint failed to state a cognizable claim under the three constitutional provisions cited by appellants. Streetsboro further alleged that it has a legitimate government purpose to implement the new system and that Ohio Const., art. XVIII in conjunction with R.C. 743.03 permits it to update the water system and require the residents to use the smart meters.
{¶11} Appellants filed their response to the motion on September 15, 2025.
Appellants asserted that the declaratory judgment action was proper despite the non-self- executing nature of the constitutional provisions cited in their complaint. Appellants attached several exhibits to their motion, including the Kamstrup manual, affidavits of Lewis and Rohan, and the expert reports/opinion.
{¶12} Dr. Chamberlin provided a report on behalf of appellants. Dr. Chamberlin is the president of the Environmental Heath Trust (EHT), a group that focuses on “the toxic effect of wireless radiation exposure.” Dr. Chamberlin’s report utilized research involving radiation at microwave frequencies and cell phone radiation. Dr. Chamberlin opined that smart meters “can be injurious to human health” and make “private information vulnerable to hacking.” Dr. Heroux surmised that “it would have been wiser for Streetsboro to select a data transmission method that does not expose residents to Electromagnetic Radiation (EMR)” due to the potential harmful health effects from the radiation.
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{¶13} Rohan, during her deposition and in her affidavits, stated that she was worried about the additional EMF radiation from the smart meters and was concerned that the radiation may have additional adverse health effects on her children with complex medical issues. Rohan conceded that she had various other devices in the home which emit radiation. Rohan did not consult her medical team or doctor about the possible exposure risks. Rohan further asserted that she had concerns about the amount of data that was being shared by the meter and the possibility that the meter could be hacked.
{¶14} Similarly, Laura Lewis was also concerned with the possible effects of radiation on her children, who have various medical issues, and her mother, who resides with her at the Streetsboro residence. Lewis generally expressed concerns with the potential effects of radiation on her childrens’ future reproductive health. Additionally, Lewis worried about the frequency of the collection of data and privacy.
{¶15} The trial court granted Streetsboro’s motion for summary judgment on November 13, 2025. Specifically, the trial court determined that no genuine issues of material fact existed and that Streetsboro was entitled to judgment as a matter of law. The trial court determined that appellants’ claims failed as a matter of law, explaining that
[t]he Ohio Supreme Court and multiple appellate courts have consistently held that Article I, Sections 1 (inalienable rights), 14 (search and seizure), and 16 (open courts/due process)
are not self-executing and thus do not create private causes of action for damages or declaratory relief absent statutory authorization.
{¶16} Additionally, the trial court also determined that Streetsboro’s “installation and operation of electronic water meters does not constitute an unreasonable search or invasion of privacy” and that “the ordinance at issue applied uniformly to all [c]ity residents and involved no individualized adjudication or deprivation.” The trial court concluded that PAGE 5 OF 24 appellants were not entitled to injunctive relief as they had failed to establish any underlying legal right or violation and noted that Streetsboro “acted within its home-rule authority under Article XVIII, Sections 3 and 7 of the Ohio Constitution to regulate municipal utilities and ensure efficient water service.”
{¶17} Appellants appeal.
The Appeal
[1.] The trial court erred in ruling that Plaintiff-Appellants cannot maintain declaratory judgment action for violations of Article I, Sections 1, 14, and 16 of the Ohio Constitution.
[2.] The trial court erred in ruling that Plaintiffs-Appellants Article I, Section 14 unreasonable search and invasion of privacy claims fail on the merits.
[3.] The trial court erred in ruling that Plaintiffs-Appellants’
expert reports are inadmissible under Evidence Rule 702(C).
[4.] The trial court erred in dismissing Plaintiffs’ Article I, Section 16 Due Process claim.
{¶18} We address appellants’ first, second, and fourth assignments of error together as they are related. The court will thereafter address appellants’ third assignment of error.
Motion for Summary Judgment
{¶19} The court will review an entry of summary judgment by a lower court de novo, “i.e., ‘independently and without deference to the trial court’s determination.’” Superior Waterproofing, Inc. v. Karnofel, 2017-Ohio-7966, ¶ 19 (11th Dist.), quoting Brown v. Cty. Commrs. of Scioto Cty., 87 Ohio App.3d 704, 711 (4th Dist. 1993), citing Grafton v. Ohio Edison Co., 1996-Ohio-336, ¶ 10.
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{¶20} Civ.R. 56, which governs summary judgment proceedings, provides, in relevant part:
Summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any, timely filed in the action, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from the evidence or stipulation, and only from the evidence or stipulation, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made, that party being entitled to have the evidence or stipulation construed most strongly in the party’s favor.
{¶21} The party seeking summary judgment has the initial burden to set forth specific facts demonstrating that no issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Dresher v. Burt, 1996-Ohio-107, ¶ 17-18. Once this burden is met, the burden shifts to the nonmoving party to establish that a genuine issue of material fact exists. Id. Not every factual dispute will preclude summary judgment. “[O]nly disputes as to the material facts,” those that may affect the outcome, will preclude summary judgment. Found. Medici v. Butler Inst. of Am. Art, 2022-Ohio-2923, ¶ 19 (11th Dist.), citing Bender v. Logan, 2016-Ohio-5317, ¶ 49 (4th Dist.), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
{¶22} R.C. 2721.03 provides in relevant part:
Subject to division (B) of section 2721.02 of the Revised Code . . . any person whose rights, status, or other legal relations are affected by a constitutional provision, statute, rule as defined in section 119.01 of the Revised Code, municipal ordinance, township resolution, contract, or franchise may have determined any question of construction or validity arising under the instrument, constitutional provision, statute,
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rule, ordinance, resolution, contract, or franchise and obtain a declaration of rights, status, or other legal relations under it.
{¶23} “The three essential elements for declaratory relief are that (1) a real controversy exists between the parties, (2) the controversy is justiciable in character, and (3) speedy relief is necessary to preserve the rights of the parties.” Wymsylo v. Bartec, Inc., 2012-Ohio-2187, ¶ 31, citing Burger Brewing Co. v. Liquor Control Comm., 34 Ohio St.2d 93, 97 (1973). A trial court “properly dismisses a complaint seeking declaratory relief if ‘there is (1) neither a justiciable issue nor an actual controversy between the parties requiring speedy relief, or (2) the declaratory judgment will not terminate the uncertainty or controversy.’” Twang, L.L.C. v. Cincinnati, 2024-Ohio-6077, ¶ 89 (1st Dist.), quoting M6 Motors, Inc. v. Nissan of N. Olmsted, L.L.C., 2014-Ohio-2537, ¶ 19 (8th Dist.).
{¶24} “[T]he abuse-of-discretion standard applies to the review of a trial court's holding regarding justiciability; once a trial court determines that a matter is appropriate for declaratory judgment, its holdings regarding questions of law are reviewed on a de novo basis.” Voyage Capital Properties, L.L.C. v. Voyage Capital Properties III, L.L.C., 2024-Ohio-890, ¶ 12 (11th Dist.), quoting Arnott v. Arnott, 2012-Ohio-3208, ¶ 13. An abuse of discretion is the trial court's “‘failure to exercise sound, reasonable, and legal decision-making.’” State v. Beechler, 2010-Ohio-1900, ¶ 62 (2d Dist.), quoting Black's Law Dictionary (8th Ed. 2004).
Trial Court’s Decision Constitutes a Final Appealable Order
{¶25} R.C. 2721.02 (A) provides: “[s]ubject to division (B) of this section, courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for under this chapter. The declaration may be PAGE 8 OF 24 either affirmative or negative in form and effect. The declaration has the effect of a final judgment or decree.”
{¶26} This court has explained:
Given the specific purpose of a declaratory judgment action, a judgment in such a case will not constitute a final appealable order unless it expressly declares the rights and responsibilities of the parties . . . . “‘“[A] court fails to fulfill its function in a declaratory judgment action when it disposes of the issues by journalizing an entry merely sustaining or overruling a motion for summary judgment without setting forth any construction of the document or law under construction.”’” Nickschinski v. Sentry Ins. Co., 88 Ohio App.3d 185, 189 (8th Dist.1993), quoting Waldeck v. N.
College Hill, 24 Ohio App.3d 189, 190 (1st Dist.1985).
Kilroy v. Sheridan, 2014-Ohio-1873, ¶ 22 (11th Dist.).
{¶27} Thus, “a declaratory judgment action may not be ideally suited for summary judgment because it is an action seeking a declaration of the rights and obligations of the parties.” Premium Beverage Supply, Ltd. v. TBK Prod. Works, Inc., 2014-Ohio-4171, ¶ 15 (10th Dist.), citing DeAscentis v. Margello, 2005-Ohio-1520, ¶ 23 (10th Dist.), citing Waldeck v. N. College Hill, 24 Ohio App.3d 189, 190 (1st Dist.1985).
{¶28} On appeal, the parties do not argue that the trial court failed to fulfill its function in a declaratory judgment action when it granted Streetsboro’s motion for summary judgment or otherwise contend that the entry does not constitute a final appealable order. Arguably, the trial court did not address the construction of the document or law under consideration, to wit: the Streetsboro Ordinance at issue. However, the trial court seemingly determined that Streetsboro’s action, requiring analog meters to be replaced with Kamstrup meters, was a lawful exercise of its municipal authority under Ohio Const., art. XVIII. Accordingly, we conclude that the trial court
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expressly declared the rights and responsibilities of the parties and that such order is a final, appealable order.
Summary Judgment in Favor of Streetsboro was Proper
{¶29} In appellants’ first assignment of error, they allege that the trial court erred in ruling that they could not maintain a declaratory judgment action for violations of Ohio Const., art. I, § 1, 14, and 16. Specifically, appellants contend that the trial court erred when it determined that appellants’ claims could not succeed as a matter of law as they were premised upon non-self-executing provisions of the state constitution.
{¶30} Appellants’ complaint asserted that Streetsboro Ord. 2023-115 did not authorize exclusive installation of smart meters. Appellants have continually asserted that “nothing in the ordinance authorizes exclusive installation of smart meters” and challenged Streetsboro’s decision and authority to require residents to participate in the upgrade of the city’s meters from analog to “smart” meters. Appellants sought a declaratory judgment finding that mandatory installation of “smart” water meters violate these provisions as the meters constituted an invasion of privacy, a warrantless search, and a denial of due process as failure to comply resulted in the threatened termination of their water service.
{¶31} Notably, appellants do not argue that the ordinance, or any other provision, is unconstitutional. Instead, appellants argue that Streetsboro’s conduct, requiring all residents to participate without an alternative opt-out option, and the city’s threat to terminate the appellant’s water service for failure to comply runs afoul of their constitutional rights.
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{¶32} Streetsboro alleged in the court below that a declaratory judgment action must be premised upon a challenge to the constitutionality of a statute, rule, regulation, or ordinance and that simply alleging a violation is not the type of case for which the appellants could file a claim. The court below agreed with Streetsboro.
{¶33} “[A] constitutional provision alone has no force unless it is self-executing. A constitutional provision is self-executing if it supplies a sufficient rule by which the protection that it affords can be enforced without legislative enactment.” State v. Jackson, 2004-Ohio-3206, ¶ 20, citing State v. Williams, 2000-Ohio-428, ¶ 34.
{¶34} Ohio Const., art. I, § 1 provides that “[a]ll men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.” This language “is a broad statement limiting the power of our state government to interfere with certain rights of individuals.” Williams at ¶ 33. In other words, Ohio Const., art. I, § 1 is not a self-executing right subject to judicial enforcement. Cooper v. Jones, 2006-Ohio-1770, ¶ 35 (4th Dist.), citing Williams at ¶ 42. While we recognize that neither Williams nor Jones involved a declaratory judgment action, their consideration is warranted given the nature of the provisions at issue in this appeal.
{¶35} Ohio Const., art. I, § 14 provides: "The right of the people to be secure in their persons, houses, papers, and possessions, against unreasonable searches and seizures shall not be violated; and no warrant shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched, and the person and things to be seized."
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{¶36} Ohio Const., art. I, § 16 provides:
All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay. Suits may be brought against the state, in such courts and in such manner, as may be provided by law.
{¶37} The trial court, in granting Streetsboro’s motion for summary judgment, relied upon Johnson v. Port Clinton, 2025-Ohio-3100 (6th Dist.) in determining that Streetsboro was entitled to judgment as a matter of law because none of the constitutional provisions raised by appellants were self-executing and could not be raised as an independent cause of action. In Johnson, among his other causes of action, Johnson asserted that that the trial court erred when it dismissed his claim for a declaratory judgment that his due process rights were violated when it removed him as Fire Chief. The Sixth District Court of appeals assumed, for purposes of the analysis, that the city did not provide appellant due process when it failed to follow the statutory procedures before removing him from the position. Id. at ¶ 53. The Johnson court then explained that Johnson’s “complaint suggests that the declaratory judgment claim is to enforce appellant's due process rights since he seeks a declaration that appellees have violated [Ohio Const., art. I, § 16]. Ohio courts, however, have not recognized an independent cause of action for violation of that constitutional right.” Id. at ¶ 58. The Johnson court relied upon PDU, Inc. v. Cleveland, 2003-Ohio-3671 (8th Dist.) and Autumn Care Ctr., Inc. v. Todd, 2014-Ohio-5235 (5th Dist.). In both of those cases, the courts stated that Ohio Const., art. I, § 16, does not create an independent cause of action.
{¶38} Specifically, in Autumn Care, a nursing home facility filed a complaint for a declaratory judgment, “seeking a declaration that [the Ohio Department of Health] violated PAGE 12 OF 24 its rights to due course of law and equal protection under the Ohio Constitution.” Id. at ¶ 2. The complaint was dismissed for failure to state a claim upon which relief could be granted. Id. On review, the Fifth District Court of Appeals affirmed the trial court’s decision dismissing the claim. The appellate court explained that “it is clear that the equal protection and due course of law clauses in the Ohio Constitution are statements of fundamental ideals upon which governments are created. As with Article I, Section 1, the language in Article I, Sections 2 and 16, ‘lacks the completeness required to offer meaningful guidance for judicial enforcement.’” Id. at ¶ 14, quoting State v. Williams, 2000-Ohio-428 at ¶ 42.
{¶39} As recognized in Autum Care, R.C. 2721.03 “does not by itself provide a plaintiff with the standing to sue, but rather serves as the legal basis for obtaining declaratory judgment by a plaintiff who already has standing.” Id., at ¶ 17 quoting Bridge v. Aames Capital Corp., 2010 WL 3834059, *5 (N.D. Ohio Sept. 29, 2010); citing Aarti Hospitality LLC v. City of Grove City, Ohio, 486 F.Supp.2d 696 (S.D.Ohio 2007), 486 U.S. at 700 (“The statute itself is simply a mechanism through which an appropriate plaintiff may proceed, but the statute does not create the appropriate plaintiff.”); see also Walgash v. Bd. Of Trs. of Monclova Twp. Lucas County, 1981 WL 5518, at *4 (6th Dist. Mar. 20, 1981) (“While R.C. 2721.03 creates the right to bring a declaratory judgment action to determine the validity of an ordinance, the requirements of justiciability, including standing and ripeness, must still be met before a court can entertain the action.”)
{¶40} The Johnson court also distinguished the case from Riverside v. State, 2014-Ohio-1974 (2d Dist.), which is relied upon by the appellants. In Riverside, the city filed a declaratory judgment against the State of Ohio, asserting that R.C. 718.11(H)(11),
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which exempts certain individuals who work on Wright Patterson Air Force Base (“WPAFB”) from municipal taxation, violates the Equal Protection Clauses of the United States and Ohio State constitutions. Id. at ¶ 3. The State argued that the complaint should be dismissed because the Equal Protection Clause of the Ohio Constitution, Ohio Const., article I, § 2, is not self-executing and does not provide substantive rights. Id. at ¶ 31. The Second District rejected this emphasizing that numerous courts have permitted declaratory judgment actions to contest the constitutionality of a statute. Id. at ¶ 34. The Second District also distinguished the case before it from PDU, noting that Riverside was not attempting to bring a private action to recover a judgment against the State, but was instead attempting to challenge the constitutionality of a particular statute enacted by the General Assembly. Id. at ¶ 38, 40. It therefore held that PDU was “irrelevant” and reversed the trial court’s decision dismissing the declaratory judgment action for failure to state a claim upon which relief could be granted. Id. at ¶ 40.
{¶41} Here, the trial court did not review or dismiss appellants’ complaint under Civ.R.12(B)(6) for failure to state a claim for which relief could be granted. Instead, it reviewed appellants’ claims on summary judgment under Civ.R. 56. Therefore, the issue before this court is whether the court erred when it determined that no genuine issue of material fact existed and that Streetsboro was entitled to judgment as a matter of law on appellants’ declaratory judgment claim.
{¶42} Appellants did not argue that the Streetsboro Ordinance was unconstitutional. Instead, the appellants argued that Streetsboro’s actions implementing a mandatory meter upgrade was a violation of their individual rights. Accordingly, to the extent that appellants present a cause of action solely for the violation of their rights under
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Ohio Const., art. I, § 1, 14, and 16, no private cause of action exists as these sections are not self-executing. See Johnson, 2025-Ohio-3100, at ¶ 62 (6th Dist.). Therefore, appellants’ claim as framed in his complaint could not prevail on declaratory judgment. R.C. 2721.03.
{¶43} Upon review of the complaint and the record in this case in the light most favorable to the nonmoving party (appellants), we conclude that no genuine issue of material fact existed and Streetsboro was entitled to judgment as a matter of law on appellants’ claims.
{¶44} Accordingly, the first assignment of error is without merit.
Unreasonable Searches and Privacy Claims
{¶45} In appellants’ second assignment of error, appellants assert that the trial court erred in ruling that their unreasonable search and privacy allegations fail on the merits. We disagree.
{¶46} The trial court determined that “the [c]ity’s installation and operation of electronic water meters does not constitute an unreasonable search or invasion of privacy.” The trial court relied upon the persuasive authority of both Naperville Smart Meter Awareness v. City of Naperville, 900 F.3d 521 (7th Circ. 2018), and Klien v. Met Ed, 2020 WL 94077 (M.D. Pa. Jan. 8, 2020).
{¶47} In Naperville, the Seventh Circuit Court of Appeals emphasized:
Indeed, “[t]he touchstone of the Fourth Amendment is reasonableness.” Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Thus, if Naperville's search is reasonable, it may collect the data without a warrant.
Since these searches are not performed as part of a criminal investigation, see Riley v. California, ––– U.S. ––––, 134 S.Ct.
2473, 2482, 189 L.Ed.2d 430 (2014), we can turn immediately to an assessment of whether they are reasonable, “by
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balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.” Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 187–88, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ). Although in this case, our balancing begins with the presumption that this warrantless search is unreasonable, see Kyllo, 533 U.S. at 40, 121 S.Ct. 2038, Naperville's smart-meter ordinance overcomes this presumption.
Residents certainly have a privacy interest in their energy-
consumption data. But its collection—even if routine and frequent—is far less invasive than the prototypical Fourth Amendment search of a home. Critically, Naperville conducts the search with no prosecutorial intent. Employees of the city's public utility—not law enforcement—collect and review the data.
Naperville Smart Meter Awareness, 900 F.3d 521, at 527-528 (7th Cir. 2018).
{¶48} The Seventh Circuit recognized that a government’s interest in the data collect is “substantial” and that modernization of the electrical grid was a priority for both the city and the federal government. Id. The court noted that the smart meters allow utilities to restore service more quickly when power goes out precisely because they provide energy-consumption data at regular intervals. Id. Additionally, the smart meters permit utilities to offer time-based pricing, an innovation which reduces strain on the grid by encouraging consumers to shift usage away from peak demand period, and they reduce utilities’ labor costs because home visits are needed less frequently. Id.
With these benefits stacked together, the government's interest in smart meters is significant. Smart meters allow utilities to reduce costs, provide cheaper power to consumers, encourage energy efficiency, and increase grid stability. We hold that these interests render the city's search reasonable, where the search is unrelated to law enforcement, is minimally invasive, and presents little risk of corollary criminal consequences.
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Id. at 529.
{¶49} However, the Seventh Circuit advised that its holding was dependent upon the “particular circumstances” presented before it. Id. We find the reasoning in Naperville persuasive and applicable to the case sub judice. The Kamstrup “smart” water meter monitors the consumption for the entire home and transmits the amount used. The meter is capable of detecting leaks or bursts by monitoring the acoustic vibrations in the pipes through the meter. The data is collected by the meter and transmitted to the city’s water department, not law enforcement. The meters are designed to transmit data no more than eight times per day. Streetsboro indicated that the modernization of the meters was required to ensure accurate readings, to identify leaks and bursts quickly, and to reduce water loss by Streetsboro. After installation of the meters, Streetsboro indicated that it experienced a significant reduction in water loss. Accordingly, in line with the reasoning in Naperville, this is not a “search” within the meaning of the Fourth Amendment, is minimally invasive if at all, is unrelated to law enforcement, and does not appear to present any risk of criminal consequences. Therefore, the Kamstrup meter usage is reasonable and does not run afoul of appellants’ constitutional protections against unreasonable searches. Similarly, we acknowledge that our holding also “depends on the particular circumstances of this case” and is limited to the facts of the case presented before us.
{¶50} As for the privacy concerns, there is nothing in the record to suggest that the information collected is being shared with any third parties. There was also nothing presented, other than speculation, that the meter could be hacked to obtain personal information or be used beyond the scope of water usage data collection. Indeed, the
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record indicates that the information transmitted from the meter is encrypted. Patrick Mause, CTO and parter at Morgan Technology, indicated during his deposition that it would be “impossible” for someone to sit in a vehicle and hack into the water meter’s data and that others could not use the technology to listen to conversations of the homeowners.
{¶51} Accordingly, based on the record, there is no genuine issue as to any material fact regarding these claims, and Streetsboro was entitled to judgment as a matter of law. It is evident from the evidence that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party.
{¶52} As such, appellants’ second assignment of error is without merit.
Due Process Claim
{¶53} Similarly, in appellants’ fourth assignment of error, appellants argue that the trial court erred when it dismissed appellants’ due process claims. Specifically, on appeal, appellants assert that their due process rights were violated when Streetsboro failed to provide the administrative process as set forth in Streetsboro’s Water Department’s Rules and Regulations, Rule 100.07(12).
{¶54} The court below determined that the enactment and execution of a generally applicable municipal ordinance is a legislative act and not subject to procedural due process requirements and also that Streetsboro acted within its home-rule authority under Ohio Const., art. XVIII, § 3 and 7. While the trial court focused on the Ordinance granting the mayor the authority to contract with a third party for the Kamstrup meters, it did not discuss appellants’ claims that their rights were violated by the city for failing to comply with the due process procedures for water termination or shut off.
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{¶55} Generally, in cases such as this, a declaratory judgment action is utilized to test the validity of ordinance, and not as a vehicle to address a municipality’s compliance with their rules. See Ross v. Toledo, 2009-Ohio-1475, ¶ 31 (6th Dist.) (noting that “whether or not the city complied with the ordinance and made accurate determinations of each factor cannot be addressed in a declaratory judgment action.”) Appellants attempt to argue similarly, that Streetsboro failed to comply with the ordinance. Such claim cannot be addressed in a declaratory judgment action. Accordingly, appellants’ claim fails.
{¶56} Therefore, summary judgment in favor of Streetsboro was proper as to this claim as well. As such, appellants’ fourth assignment of error is meritless.
Admissibility of Expert Reports
{¶57} Appellants assert in their third assignment of error that the trial court erred when it determined that appellants’ two expert reports were inadmissible under Evid.R. 702(C).
{¶58} As an initial matter, “expert testimony must meet the threshold of being relevant to a trial issue.” State v. York, 2018-Ohio-612, ¶ 46 (2d Dist.), citing Evid.R. 401. If the testimony is relevant, then the expert witness and his or her testimony must be evaluated under Evid.R. 702.
{¶59} Evid R. 702 provides:
A witness may testify as an expert if the proponent demonstrates to the court that it is more likely than not that all of the following apply: (A) The witness' testimony either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;
(B) The witness is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;
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(C) The witness' testimony is based on reliable scientific, technical, or other specialized information and the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. To the extent that the testimony reports the result of a procedure, test, or experiment, the testimony is reliable only if all of the following apply:
(1) The theory upon which the procedure, test, or experiment is based is objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles;
(2) The design of the procedure, test, or experiment reliably implements the theory;
(3) The particular procedure, test, or experiment was conducted in a way that will yield an accurate result.
{¶60} Generally, “[t]rial courts have broad discretion in determining the admissibility of expert testimony, subject to review for an abuse of discretion.” Terry v. Caputo, 2007-Ohio-5023, ¶ 16; citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). “‘Abuse of discretion’ suggests unreasonableness, arbitrariness, or unconscionability. Without those elements, it is not the role of this court to substitute its judgment for that of the trial court.” Parmertor v. Chardon Local Schools, 2019-Ohio-328,
¶ 27 (11th Dist.), quoting Valentine v. Conrad, 2006-Ohio-3561, ¶ 9, quoting Calderon v. Sharkey, 70 Ohio St.2d 218, 222, (1982). However, in a summary judgment exercise, “the decision to admit evidence is purely a legal one as it involves solely a question of law, thus necessarily the standard of review is de novo.” Id., quoting Rilley v. Brimfield Twp., 2010-Ohio-5181, ¶ 56 (11th Dist.).
{¶61} “‘Ohio's standards regarding the admissibility of expert opinions are relatively lenient as to a determination of who is an expert but relatively strict in governing the admissibility of the expert testimony.’” Id. at ¶ 59, quoting Douglass v. Salem PAGE 20 OF 24
Community Hosp., 2003-Ohio-4006, ¶ 31 (7th Dist.), citing State v. Rangel, 140 Ohio App.3d 291, 295 (1st Dist.2000); accord Parmertor v. Chardon Local Schools, 2019-Ohio- 328, ¶ 27 (11th Dist.).
{¶62} Appellants assert that “the expert reports are introduced to show how smart meters send data, how often they collect and transmit it, and potential health-related issues.” Appellants note that both reports consist of over 30 pages and include numerous citations to other studies. Streetsboro contends that Dr. Heroux’s report “failed to establish that there has been a valid scientific study on human beings to determine whether particular devices emit harmful levels of EMF radiation,” and that Dr. Heroux did not perform any studies or testing of the Kamstrup water meter. According to Streetsboro, Dr. Chamberlin’s report consisted of “a general opinion” about the dangers of EMF radiation but relied on studies regarding cell phones and mesh-networks, neither of which were applicable to the issue before the trial court. Additionally, Streetsboro asserts that Dr. Chamberlin’s reliance on the New Hampshire study involving EMF radiation in 900- 2400 MHz frequency range was misplaced and inapplicable because the Streetsboro “smart” meters function at 450-470 MHz.
{¶63} In the entry granting summary judgment, the trial court determined that appellants “provided no admissible evidence that the Kamstrup meters record audio, visual, or interior household activity” and that appellants’ expert opinions “failed to identify a causal connection between the meters and any concrete harm.” The trial court determined that the expert reports offered by appellants were “speculative and inadmissible under Evid.R. 702(C).”
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{¶64} At the outset, we note expert testimony must meet the threshold of being relevant to a trial issue. “‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Evid.R. 401.
The mere fact that testimony is logically relevant does not in all cases make it admissible. It must also be legally relevant.
A fact which in connection with other facts renders probable the existence of a fact in issue may still be rejected, if in the opinion of the judge and under the circumstances of the case it is considered essentially misleading or too remote.
Whiteman v. State, 119 Ohio St. 285, 289 (1928).
{¶65} It is clear from the record that Dr. Heroux and Dr. Chamberlin could qualify as expert witnesses based on their experience. However, the trial court determined that the reports fell short of the requirements in Evid.R. 702(C). We agree. The reports cited to “specialized information,” but the reports did not demonstrate that the specialized information, which involved different types of devices and higher levels of EMF radiation, were applicable to the facts of this case. Both reports seemingly speculate that there is a possibility of adverse health effects from EMF radiation. Neither expert conducted any procedures, tests, or experiments on the Kamstrup smart meter or discussed the level of EMF radiation produced by the device.
{¶66} Accordingly, the reports did not meet the requirements of Evid.R. 702(C)
and the trial court did not abuse its discretion in finding the reports to be inadmissible. Even if the trial court erred in determining the reports admissibility, such determination would be harmless as appellants’ declaratory judgment claim fails as a matter of law as discussed above.
{¶67} Accordingly, appellants’ third assignment of error is also meritless.
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Conclusion
{¶68} For the reasons set forth above, the decision of the Portage County Court of Common Pleas is affirmed.
JOHN J. EKLUND, J., SCOTT LYNCH, J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this court, appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed.
Costs to be taxed against appellants.
JUDGE ROBERT J. PATTON
JUDGE JOHN J. EKLUND,
concurs
JUDGE SCOTT LYNCH,
concurs
THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY
A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure.
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