[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as Cleveland Elec. Illum. Co. v. Cleveland , Slip Opinion No. 2021-Ohio-4463.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O

. 2021-O HIO -4463

T HE C LEVELAND E LECTRIC I LLUMINATING C O ., A PPELLANT AND C ROSS

A PPELLEE , v . T HE C ITY OF C LEVELAND ET AL ., A PPELLEES AND C ROSS

A PPELLANTS

. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as Cleveland Elec. Illum. Co. v. Cleveland , Slip Opinion No. 2021-Ohio-4463.] Ohio Constitution, Article XVIII, Sections 4 and 6—Municipal utilities—Surplus product—Summary judgment—Court of appeals’ judgment reversing trial court’s grant of summary judgment in favor of municipality affirmed. (No. 2020-0277—Submitted April 27, 2021— Decided December 21, 20 21.)

A PPEAL from the Court of Appeals for Cuyahoga County, No. 108560, 2020-Ohio-33.

_________________ S TEWART , J., announcing the judgme nt of the court. {¶ 1} Article XVIII, Section 6 of the Ohio Constitution allows a municipality that operates a pub lic utility for the purpose of supplying the utility’sS UPREME C OURT OF O HIO

2 product to the municipality or its inhabitants to generate or p urchase electricity and sell outside the municipality’s boundaries up to 50 percent of the “surplus product.” The Ohio Constitution, however, “necessarily precludes a munici pality from purchasing electricity solely for the purpose of reselling the entire amount of the purchased electricity to an entity outside the municipality’s g eographic limits.” Toledo Edison Co. v. Bryan , 90 Ohio St.3d 288, 293, 737 N.E.2d 529. In this appeal, we consider the concept of an “artificial surplus” of e lectricity and whether a municipality violates Article XVIII, Section 6 by selling suc h a surplus to

customers outside the municipality’s boundaries. {¶ 2} In 2001, Ohio deregulated the electricity industry. See MigdenOstrander v. Pub. Util. Comm. , 102 Ohio St.3d 451, 2004-Ohio-3924, 812 N.E.2d 955, ¶ 2. Deregulation led to the rise of wholesale markets th rough which electricity distributers may purchase electricity on demand bas ed on the current power needs of its customers. See generally In re Ohio Power Co. , 155 Ohio St.3d 320, 2018-Ohio-4697, 121 N.E.3d 315. Appellee and cross-appell ant the city of Cleveland, through its electricity -distribution company, appell ee and crossappellant Cleveland P ublic Power (“CPP”) (collectively, “the ci ty”), sells surplus electricity outside its boundaries in an amount representing ap proximately 4 percent of the electricity that the c ity sells inside its boundaries. Appellant and crossappellee, the Cleveland Electric Illuminating Company (“CEI”), argues that because the city may purchase th e precise of amount of electric ity required to satisfy the current demands of its territorial customers, the e lectricity that the city sells extraterritorially as surplus is necessarily acquired sol ely to sell it beyond the city’s boundaries, in violation of this court’s decision in Toledo Edison Co . and the

Ohio Constitution. {¶ 3} The Eighth District Court of Appeals determined below that Arti cle XVIII, Section 6 of the Ohio Constitution does not require a mu nicipality to buy “the exact amount” of electricity required by its inhabitants a t any given time andJanuary Term, 2021

3 that there may be other reasons justifying the purchase of elec tricity beyond a municipality’s immediate needs. 2020-Ohio-33, ¶ 36. We agree. Neither Article XVIII, Section 6 nor this court’s decision in Toledo Edison Co. requires a municipality to purchase the exact amount of electricity requir ed to satisfy the

current needs of its territorial customers. Although a municip al utility may not acquire surplus product for the sole purpose of selling it extr aterritorially, it may acquire excess capacity for pur poses other than reselling it as surplus beyond the municipality’s boundaries without violating the Ohio Constituti on. We also agree with the court of appeals that que stions of material fact exist as to whether the city obtained surplus electricity for the sole purpose of selling it to a neighboring city.

We therefore affirm the judgment of the Eighth District. Factual and procedural background {¶ 4} CEI is an investor-owned utility company regulated by the Publi c Utilities Commission of Ohio (“PUCO”). See R.C. 4905.04 (“The public utilities commission is hereby vested with t he power and jurisdiction to supervise and regulate public utilities * * *”). Article XVIII, Section 4 of the Ohio Constitution and Cleveland City Charter Chapt er 523 authorize the city to op erate CPP. Both

CEI and CPP distribute electricity and direc tly compete with ea ch other to provide

distribution services in Cleveland. {¶ 5} Both CEI and CPP purchase electricity through the wholesale electricity market. PJM Interc onnection, L.L.C. (“PJM”), a reg ional transmission organization (“RTO”), runs the w holesale electricity market in Ohio. PJM’s

mission is to ensure nondiscriminat ory access to the electricit y-transmission grid. PJM manages the generation, tran smission, and distribution of e lectricity within its assigned area by establishing pric ing at auction, with market a dministrators using algorithms to match the least e xpensive generation-supply resou rce with customer demand. PJM’s customers may buy el ectricity one day in advance of its expectedS UPREME C OURT OF O HIO

4 use based on expected customer demand or on a real-time basis t o account for differences between expected a nd actual customer demand. {¶ 6} Along with wholesale electricity bought through PJM, CPP has an interest in several electricity -generation plants through its m embership in American Municipal Power (“AMP”), a nonpr ofit wholesale-power supplier r epresenting municipalities in Ohio and other states. Through AMP, the city has a portfolio of power-generation interests, inc luding hydroelectric, wind, natu ral gas, and coal. Some of those interests require long-term purchases that CPP us es to mitigate the risk of volatility in the PJM energy markets. CPP’s commitment s for long-term purchases from AMP projects and generation assets will result i n CPP’s cost of electricity dropping dramatically when it pays off the bonds us ed to finance

construction relati ng to the projects. {¶ 7} In 2017, the city agreed to buy all the electricity generated b y a solarenergy project in the city of Brooklyn. The city planned to us e the electricity generated by the project to supply power to buildings owned by Cuyahoga County. The city also signed a ten-year a greement to be the exclusive e lectricity provider to several municipal buildings in Brooklyn. {¶ 8} CEI filed in the Cuyahoga Count y Court of Common Pleas a declaratory-judgment action against the city and CPP, alleging that the city had unlawfully signed an agreement to sell electricity to Brooklyn at a rate 5 percent below CEI’s statutorily mandate d tariff. CEI claimed that the city extended distribution lines from the solar-energy project solely to poac h CEI’s customers. It alleged that the city did not need the electricity generated by the solar project to serve its own citizens, because it could satisfy its territoria l demands solely with wholesale electricity purchases, so “any and all sales of elect ricity to Brooklyn, the inhabitants of Brooklyn, and ot her customers outside Cleveland’ s municipal

boundaries will derive from an ar tificial surplus intentionally sustained and increased by CPP, acting as a de facto extraterritorial broker. ”January Term, 2021

5 {¶ 9} The parties submitted cross-moti ons for summary judgment. The trial court determined that electricity from the solar project would be used to serve 12 Cuyahoga County propertie s and customers in Brooklyn. It also determined that the city had sold as surplus outside its boundaries “a very sma ll percentage” of the total electricity that it had sold to customers within its boun daries and that the amount was “nowhere near” the 50 percent limitation for selling surplus product under Article XVIII, Section 6 of the Ohio Constitution. Findi ng that the electricity that the city had sold outside its boundaries did not exceed th e constitutional limitation, the trial cour t granted the city’s motion for summa ry judgment on that

claim. {¶ 10} CEI appealed the trial court’s j udgment to the Eighth District Court of Appeals, arguing that the trial court erred by not granting summary judgment in its favor and by granting summary judgment to the city. The Ei ghth District reversed the grant of summary j udgment in favor of the city. A lthough the court of appeals agreed with CEI that the trial court erred in granting summary judgment to the city because the record did not demonstrate that all the ci ty’s electricity purchases are for the purpose of providing service to customers within the city’s boundaries, the court refused to conclude that any surplus elec tricity CPP possesses is an artificial surplus acquired only for the purpose of selli ng it outside the city’s boundaries. 2020-Ohio-33 at ¶ 35- 39. The court determined tha t a municipality may, consistent with the Ohio Constitution, “acquire a surplus of electricity for reasons other than ‘solely for the purpose of reselling’ surplu s electricity outside its municipal boundaries.” Id . at ¶ 36, quoting Toledo Edison Co. , 90 Ohio St.3d at 293, 737 N.E.2d 529. But the court als o concluded that CPP’s t en-year agreement to supply electricity to Brooklyn suggested that “the only way [Cleveland] could ensure that it had a sufficient supply of electricity to fulfil l its contractual obligations to Brooklyn was if it intentionally purchased some electricity solely for the purpose of rese lling it to Brooklyn.” Id . at ¶ 38.S UPREME C OURT OF O HIO

6 {¶ 11} CEI appealed to this court, and the city cross-appealed. We ac cepted CEI’s appeal on three propositions of law:

1. A municipal utility violates Article XVIII, Sections 4 and 6 if it sells electricity outsi de municipal boundaries from an artificial surplus, including any avoidabl e excess electricity a municipal ity purchases that was not to supply t he city or its inhabitants. 2. A municipal utility violates Article XVIII, Sections 4 and 6 if it can buy only the amount of el ectricity needed within th e city, but instead it buys excess electricity and sells electricity ou tside municipal boundaries. 3. A municipal utility violates Article XVIII, Sections 4 and 6 if it buys any amount of electricity for a purpose other than supplying that electricity to itself or its inhabitants, then s ells the resulting excess to custo mers outside city limits.

See 159 Ohio St.3d 1417, 2020-Ohio-3365, 147 N.E.3d 662. We accep ted the city’s cross-appeal on the following proposition of law:

A municipal corporation has th e right to sell electricity to extraterritorial customers so long as the amount sold to

extraterritorial customers does not exceed fifty percent of the total electricity consumed within the municipal corporation’s limits, and so long as the municipal corporation does not purchase electric ity solely for the purposes of reselling the entire amount of that electricity extraterritorially.

See id.January Term, 2021

7 Analysis {¶ 12} Before 1912, “utilities could only be owned and operated under power specially conferred by legislative enactment.” Euclid v. Camp Wise Assn ., 102 Ohio St. 207, 213, 131 N.E. 349 (1921). Courts generally e mployed the rule that “the jurisdiction of a municipality ceases at its boundari es, and, for it to exercise extraterritorial jur isdiction, its power to do so must be clearly expressed.”

See Richards v. Portland , 121 Ore. 340, 345, 255 P. 326 (1927). But when the

framers amended the Ohio Constitution in 1912 to establish muni cipalities’ homerule powers, they intended to “r emov[e] once and for all, all l egitimate questions as to the authority of municipalities to undertake and carry on es sential municipal

activities.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio 1433 (1912). {¶ 13} Two specific provisions of the Ohio Constitution authorize municipalities to ope rate utilities. First, Article XVIII, Sec tion 4 of the Ohio Constitution states: “Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public util ity the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for a ny such product or service.” Sec ond, Article XVIII,

Section 6 of the Ohio C onstitution states:

Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the municipality or its inhabitants, may also sell and deliver to o thers any transportation service of such utility and the surplus prod uct of any other utility in an amount not exceeding in either case fif ty per cent of the total service or p roduct supplied by such utility w ithin the municipality * * *.S UPREME C OURT OF O HIO

8 When read in harmony, these sections “allow a municipality to p urchase electricity primarily for the purpose of s upplying its residents and resell ing only surplus electricity from that purchase to entities outside the municipa lity.” Toledo Edison

Co. , 90 Ohio St.3d at 292, 737 N.E.2d 529. {¶ 14} The question then is what does the phrase “surplus product” mea n?

In Toledo Edison Co. , we observed that the word “surplus,” given its ordinary meaning, means “ ‘the amount that remains when use or need is s atisfied.’ ” Id . at 292, quoting Webster’s Third New In ternational Dictionary 2301 (1993). In that case, four municipalities had joined to persuade a commercial c ustomer of Toledo Edison’s to buy electricity from them. Id. at 288-289. The four municipalities bought electricity on the wholesale market and sold it to the c ommercial customer, which was located beyond the municipalities’ territorial bounda ries. Id. at 290. We interpreted Article XVIII, S ections 4 and 6 and c oncluded that

a municipality is prohibited from in effect engaging in the bus iness of brokering electricity to entities outside the municipality i n direct competition with public utilities. This prohibition includes a de facto brokering of electricity, i.e., where a municipality purc hases electricity solely to create an artificial surplus for the purp ose of selling the electricity to an entity not within the municipalit y’s geographic boundaries.

Id . at 293. {¶ 15} CEI argues that any kilowatt of e lectricity that the city buys beyond the immediate needs of its territorial customers is, by definit ion, surplus product. Yet the framers of Article XVIII, Section 6 understood it diffe rently. Consider that Section 6 and its 50 percent limitation on “surplus product” ap plies not only to traditional utilities like water and electricity, but also to t ransportation service.January Term, 2021

9 During the debate on Section 6 during the Ohio Constitutional C onvention of 1912, the following exchange took place:

MR. KRAMER: I want to ask a question or two to find out how far municipalities will be allowed to go into business. Ta ke

Cincinnati. It has three hundred and fifty miles of street rai lway. Suppose Cincinnati should take over that three hundred and fift y miles of street railway and suppose they take in $2,000,000 a y ear. Does this section mean that th e city of Cincinnati could go out side of Cincinnati with a railway to the extent of one hundred and seventy-five miles of inter-urban roads, or does it mean that Cincinnati could go outside a su fficient extent to take in $1,0 00,000? MR. KNIGHT: It was intended that the mileage outside of the city in the case of transportation service could not be in excess of one-half of that within the c ity itself. In the case of wat er supply it may supply outside of the city its surplus, but in no event to exceed one-half of that actually supplied to the people of the municip ality, and the same way with lighting service.

(Capitalization sic.) 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio at 1455. {¶ 16} The debate provided further evid ence clarifying that Section 6 works “the same way with lighting service”:

Mr. HARBARGER: In lines 44 and 45 you say “in an amount not exceeding in either case fifty per centum of the tot al

service.” In the case of a m unicipal lighting plant do I under standS UPREME C OURT OF O HIO

10 they are limited to the amount t hey can sell in the municipalit y and

that much more? Mr. KNIGHT: That section applies to selling outside and you can only sell outside one-h alf as much as inside.

(Capitalization sic.) 2 Proceedings and Debates at 1445. {¶ 17} The debate shows that the framers not only intended for municipalities to be allowed to purchase railways or power plan ts located outside their boundaries, but also that they intended to allow municipa lities to sell the services or products therefrom ex traterritorially. But under C EI’s rationale regarding the law relating to el ectricity surplus, we would als o have to consider any railway established outside a municipality’s territorial bounda ries to be “surplus,” because more railroad tracks would be unnecessary to serve peop le within the municipality’s boundaries. As not ed above, the debate during t he Constitutional

Convention of 1912 refutes that contention. {¶ 18} CEI maintains that CPP has no c onstitutionally authorized reaso n to buy or resell extra energy. It reasons that the city may fulfi ll its electricity requirements solely through the w holesale market, so it never n eeds to have any excess electricity that it might sell as surplus. {¶ 19} Our decision in Toledo Edison Co. forbids the purchase of electricity

“ solely for the purpose of reselling the entire amount of the purchased electricity to an entity outside the municipality’s geographic limits.” (Emph asis added.) 90 Ohio St.3d at 292, 737 N.E.2d 529. And here, the Eighth District de termined that “a municipality may acquire a surplus of electricity for reasons o ther than ‘solely for the purpose of reselling’ surplus electricity outside its munic ipal boundaries.” 2020-Ohio-33 at ¶ 36, quoting Toledo Edison Co. at 293. {¶ 20} CEI complains that the court of appeals failed to explain what it meant by the phrase “reasons other than ‘solely for the purpose of reselling.’ ” Id. ,January Term, 2021

11 quoting Toledo Edison Co. at 293. That complaint lacks merit. The court of appeals listed “cost, risk mitigation, ec onomies of scale, environmenta l impact[,] and reliability” as reasons that the city might have for purchasing surplus electricity.

Id . at ¶ 39. We agree with the court of appeals. Prices in the RTO markets vary. Economic practicalities might cause a municipality to commit to long-term purchases of electricity in quantities beyond the current, real -time demands of its customers. We also recognize that volume purchasing contracts may be a hedge against the volatility of the spot wholesale markets. Long-ter m purchasing

commitments can stabilize a muni cipality’s supply and cost of e lectricity. {¶ 21} The city also offers evidence s howing that PJM requires the cit y to maintain a capacity-reserve margin. The reserve margin is dete rmined by calculating the average of CPP’s coincident-peak-capacity deman d from the prior year, adjusted for losses and increased by a PJM-determined res erve factor. The surplus-reserve margin accounts for generation outages, fluctua tions caused by weather conditions, and other chan ges in total customer demand. {¶ 22} CEI argues that even if the city’s long-term commitments and reserve-margin requirements lead to a surplus, the city may dir ectly sell the surplus to RTO-administered markets rather than selling it extraterrito rially. It thus concludes that CPP may, once c onnected to the Brooklyn solar pr oject, sell that electricity directly t o the PJM wholesale ma rket rather than to Brooklyn. {¶ 23} The city offers evidence indica ting that selling surplus electr icity to the wholesale market might sometimes be “a practical impossibil ity.” And it submits that selling electricity to the wholesale market might lead to a loss for the city, because PJM pays a price f or wholesale electricity that i s lower than the price for which it sold that same electricity to a utility. In the b rief of amici curiae Buckeye Power, Inc., and Ohio R ural Electric Cooperatives, Inc. , amici curiae claim similar difficulties, arguing that municipal-utility poac hing of their customers “would put cooperative members, the residents of areas abutting municipalities, atS UPREME C OURT OF O HIO

12 risk of bearing stranded costs.” Such “stranded costs” arise w hen a utility loses customers to a competitor and is left with debts for infrastruc ture and equipment that it might no longer need. But CPP has similar costs associ ated with its longterm investments in AMP generation projects, and those costs wo uld be stranded if CPP were to be required to purch ase electricity solely on the w holesale market. Amici curiae offer no compelling reason why priority should be given to minimizing the impact of their pot ential stranded costs over th ose of CPP. {¶ 24} But more importantly, Article XVIII, Section 6 of the Ohio Constitution specifically authorizes a municipality to sell exc ess surplus product extraterritorially. That provi sion does not require a municipa lity to sell surplus product back to its source. And while it might be more economi cally advantageous for CEI if the city pays for electricity as it goes, “the court s cannot prohibit a municipality from making a profit on the operation of its elect ric light and power system.” Niles v. Union Ice Corp ., 133 Ohio St. 169, 182, 12 N.E.2d 483 (1938), citing Shirk v. Lancaster , 313 Pa. 158, 168-169, 169 A. 557 (1933). {¶ 25} CEI also argues that practices such as those employed by the ci ty here lead to the type of unfair competition that was feared by the framers of the

Ohio Constitution and this court in Toledo Edison Co . It maintains that its regulation by the PUCO puts it at a competitive disadvantage wi th CPP, which “cherrypicks large, energy-intensive customers outside the city .” CEI also argues that because the PUCO does not regulate municipal electricity d istributers like CPP,

CPP’s activities disr upt the competitive ba lance and harm the p ublic interest. {¶ 26} Investor-owned utilities raised the same argument against Artic le XVIII, Section 6 during the Ohio Constitutional Convention of 1 912. The “chief assault” against municipal ope ration of utilities “came from sp okesmen for the public-service corporations who ar gued that the amendment threa tened to destroy their interests by failing to restrain unfair competition by mu nicipally owned utilities.” Warner, Ohio’s Constitutional Convention of 1912 , 61 Ohio History J.January Term, 2021

13 11, 24 (1952), available at https://resources.ohiohistory.org/o hj/browse/ displaypages.php?display[]=0061&di splay[]=11&display[]=31 (acce ssed Dec. 10, 2021) [https://perma.cc/JS9R-7FJC]. Herbert Seely Bigelow, the president of the Constitutional Convention of 1912, recalled that the issue of m unicipal operation of public utilities “does not tend to sanctify the memories of the Convention for those whose political views are colored by their own interest i n public utility securities.” Bigelow, Fourth Ohio Constitutional Convention , Ohio Legislative History 409, 410 (1913), available at https://www.law.csuohio.e du/

sites/default/files/la wlibrary/ohioconlaw /1912delegates.pdf (ac cessed Dec. 10, 2021) [https://perma.cc/U9EP-5BMJ]. Facing opposition from inv estor-owned utilities, the framers were careful as to how they worded Artic le XVIII, Section 6: “Now, we took a great deal of time in getting the correct phras eology for this

section. The members will reca ll how every word was weighed, w hat its effect was

in relation to what we had in mind.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio at 1458. This consideration led to plain language in Section 6 th at permits a municipality to sell surplus product extraterritorially, provided th at the amount sold does not exce ed 50 percent of the amount the municipality sells within its boundaries. CEI ackno wledges in its merit brief that the city’s extrate rritorial sales in 2017 amounted t o “approximately [three percent] of CPP’s total sales.” The fact that such a relativel y small amount of surplus product was sold by CPP ex traterritorially belies CEI’s claims of unfair competition. {¶ 27} Today’s wholesale electricity mar ket operates in a way that the

framers of the 1912 Constitution could not have foreseen. But the changing electricity market does not allow us to undermine the clear lan guage of Article XVIII, Section 6. CEI’s public-policy arguments are no differe nt from the ones that were made when the people of Ohio adopted the amendments t o the Ohio Constitution in 1912. It is up to the General Assembly and Ohi o’s voters, perhapsS UPREME C OURT OF O HIO

14 through constitutional amendment , to address any issues of comp etitive imbalance

between investor-owned utilitie s and municipal utilities. {¶ 28} We now turn to the agreement at the heart of this case: the cit y’s contract to provide Brooklyn with electricity for ten years. T he court of appeals determined that “since the city currently generates very little power of its own, arguably the only way the city could ensure that it had a suffi cient supply of electricity to fulfill its contr actual obligations to Brooklyn was if it intentionally purchased some electricity solely for the purpose of reselling it to Brooklyn.” 2020- Ohio-33 at ¶ 38. {¶ 29} A court must grant summary judgment if, after viewing the evide nce most favorably to the nonmoving party, “reasonable minds can co me to but one

conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made.” Civ.R. 56(C). {¶ 30} The city claims that it obtains electricity from various source s, that it must purchase some electricity that exceeds the daily needs of its territorial customers, and that it uses some of that surplus to provide ele ctricity to Brooklyn. However, the record does not show the amount of electricity tha t CPP has in surplus at any given time and how much of that surplus is used to satis fy its commitment to Brooklyn. We therefore agree with the court of appeals that reasonable minds could differ on whether the city uses an “artificial surplus” t o supply Brooklyn with electricity. The trial court e rred by granting summary judgmen t in favor of the city.

Conclusion {¶ 31} Neither Article XVIII, Section 6 of the Ohio Constitution nor t his

court’s decision in Toledo Edison Co. requires a municipality to purchase the exact of amount of electricity necessary to satisfy the current needs of its territorial customers. A municipal utility may acquire excess electricity capacity for reasons other than reselling it as surplus beyond the municipality’s bo undaries without violating the Ohio Constitution. A municipal utility may not, however, acquireJanuary Term, 2021

15 excess capacity for the sole purpose of reselling it outside th e municipality’s

territorial boundaries. {¶ 32} Because there are existing issues of material fact, we affirm t he judgment of the Eighth District Court of Appeals, which reverse d the trial court’s grant of summary judgment in fa vor of the city a nd remanded the cause to the trial court for further proceedings. Judgment affirmed.

O’C ONNOR , C.J., concurs.

D ONNELLY , J., concurs in judgment only.

D E W INE , J., concurs in judgment only in part and dissents in part, wi th an opinion joined by F ISCHER , J.

K ENNEDY , J., dissents, with an opinion.

B RUNNER , J., dissents, with an opinion.

_________________ D E W INE , J., concurring in judgment only in part and dissenting in part. {¶ 33} This case calls for the application of two provisions of the Oh io Constitution. The first provision authorizes a municipality to operate a public utility or to purchase products or services from another utilit y for the use of the municipality or its inhabitants. Ohio Constitution, Article XV III, Section 4. The second provision permits a municipality to dispose of “surplus product” that was generated from the operation of its own utility by selling it t o others outside the municipality’s limits. Ohio Constitution, Article XVIII, Secti on 6. Neither provision allows a municipality to act as a de facto broker by purchasing utility products and then rese lling them to custome rs outside the munic ipality. {¶ 34} The plain text of these constitutional provisions dictates this result. And history, as well as our caselaw in the years following the adoption of the constitutional provisions, reinforce the conclusion that this r eading is the correct one. The lead opinion and the dissents, though, have gotten si detracked. RelyingS UPREME C OURT OF O HIO

16 on a decision of this court from 2000, they focus almost exclus ively on the meaning of the word “surplus” in determin ing whether the city of Clevel and may resell electricity that it has purchased to customers outside the muni cipality. See Toledo Edison Co. v. Bryan , 90 Ohio St.3d 288, 737 N.E.2d 529 (2000). But whether electricity that is resold in a brokered arrangement could be d escribed as “surplus” is beside the point. Under the constitutional provisions at is sue, the city lacks any authority to resell electricity that it has purchased to those outside the municipality; it may only sell excess electricity that it has produced

. {¶ 35} I would therefore hold that a municipality’s purchase of electr icity for purposes other than to supply the municipality or its inhab itants is unconstitutional under Article XVIII, Section 4 of the Ohio Con stitution. And I would hold that Article XVIII, Section 6 of the Ohio Constituti on does not permit a municipality to resell electricity that it has purchased from another utility to those outside the municipality.

I. The text of the muni cipal-utility amendments {¶ 36} The lead opinion devotes relatively little of its analysis to t he actual text of the constitutional provisions at issue. But that’s whe re we need to start. And a careful reading of the text dict ates the outcome of this case

. {¶ 37} Article XVIII, Section 4 of the O hio Constitution (“Section 4”) provides: “Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants , and may contract with

others for any such product or service .” (Emphasis added.) By its plain terms, Section 4 permits a municipality to purchase a product such as electricity for the purpose of supplying it to the municipality or its residents. But within this grant of authority is an inherent constrai nt: the municipality may not p urchase electricity for purposes other than its use within the municipality’s limits.January Term, 2021

17 {¶ 38} This is clear from the text. Section 4 grants a municipality t he authority to “contract with other s” for “any such product or se rvice.” The language “any such product” refers back to the previous clause, “any pub lic utility the product or service of which is or is to be supplied to the muni cipality or its

inhabitants.” Id. In other words, a municipality has the power to establish a pub lic utility, but there is a limitation: “the product or service” of that utility must “be supplied to the municipality or its inhabitants.” Id. And it may contract with others for “any such product or service”—that is, a utility “product o r service [that] is or is to be supplied to the municipality or its inhabitants.” Id. Thus, both the authority to establish a utility and the a uthority to contract for utilit y services are cabined by the use requirement: the product or service in question must be supplied to the municipality or its inhabitants. {¶ 39} Article XVIII, Section 6 of the O hio Constitution (“Section 6”) is the counterpart to Section 4. Wher eas Section 4 deals with a munic ipality’s power to establish its own public utility, Section 6 authorizes the muni cipality to sell the utility’s excess product . Section 6 states:

Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the municipality or its inhabitants , may also sell and deliver to others any transportation service of such utility and the surplus prod uct of any other utility in an amount not exceeding in either case fif ty per cent of the total service or product supplied by such utility within the municipality * * *.

(Emphasis added.) {¶ 40} While Section 4 allows a municipality to operate a utility “the product or service of which” is s upplied to the municipality’s residents, Section 6S UPREME C OURT OF O HIO

18 allows a limited amount of a surplus produced by a municipal ut ility to be sold outside the municipality. But not hing in section 6 authorizes a municipality to resell any product that wa s purchased elsewhere. {¶ 41} This is evident from the structure of Section 6. The phrase “t he surplus product of any other [i.e., nontransportation] utility” relates back to the “public utility” identified in the first part of the provision. Id. And such a public utility is specifically identified as “a public utility [owned or operated by the municipality] for the purpose of supplying the service or produ ct thereof to the municipality or its inhabitants.” Id. {¶ 42} In short, Section 4 “grants municipalities broad powers to own and operate public utilities” and authorizes them “to contract for public utility services.” Steinglass & Scarselli, The Ohio State Constitution 349-350 (2011). Section 6, in turn, “allows a municipality that owns or operates a utility to sell the surplus product produced by the utility as long as the surplus does not exceed 50 percent of the total product used by the municipality owning or operating the utilit y.” Id. at 351. Indeed, as one authority has explained:

It is only where a utility is acquired or operated by a municip ality for the purpose of supplying services or products to its inhabi tants under Section 4 that the municipa lity is further authorized by Section 6 to treat undisposed of services and products as ‘surp lus,’ which may be distributed to cons umers other than inhabitants of the municipality.

Vaubel, Municipal Home Rule in Ohio: Part V , 3 Ohio N.U.L.Rev. 1375, 1459 (1976); see also Miller v. Orrville , 48 Ohio App. 87, 90-91, 192 N.E. 474 (9th Dist.1934) (“Section 4 expressly au thorizes a municipality to o wn and operate a utility outside of the municipa lity if the product or service t hereof is to be suppliedJanuary Term, 2021

19 to the inhabitants of such municipality; and section 6 provides that a municipality which, through its own utility, supplies the service or product to its inhabitants, ‘may also sell and deliver to others * * * the surplus product,’ etc.” [emphasis and ellipsis in original]). {¶ 43} The lead and dissenting opinions d ebate whether the practice of buying electricity for the purpos e of reselling it outside the municipality fits within the meaning of “surplus” and is thus permitted under Section 6. By homing in on that word, they overlook the fact that the practice runs afoul of both Section 4 and

Section 6. Section 4 authorizes t he purchase of electricity on ly for the purpose of supplying it to the municipality or its inhabitants—not for sel ling it to others outside the municipality. And Section 6 does not permit a municipality to dispose of excess product that it purchased for the use of its inhabitants; it speaks to only the disposal of surplus product created by a municipality’s own utility plan t. The two provisions neither contemplate nor allow a municipality to act as a de fac to broker for the sale of utility products. {¶ 44} Quite simply, Section 4 requires th at a municipality’s acquisit ion or operation of a public utility be unde rtaken for the purpose of supplying the municipality or its inhabitants, and it is only when the operat ion of the utility creates excess product beyond the needs of the municipality or its inha bitants that the municipality is authorized by Section 6 to sell the excess to o thers outside the municipality. II. The history of the muni cipal-utility amendments {¶ 45} History reinforces that the plai n meaning of the text is the co rrect one. Before the adoption of A rticle XVIII in 1912, “municipali ties could only exercise those powers granted to them by the General Assembly,” and there was a growing call for cities to have more control over their own aff airs. Steinglass & Scarselli, The Ohio State Constitution , at 49-50. Thus, a central feature of the Ohio Constitutional Convention of 1912 was the proposal of a municip al-home-ruleS UPREME C OURT OF O HIO

20 amendment. This amendment “cha nged the relationship between st ate and local governments by granting municipalities the specific constitutio nal power to choose their own form of government,” “to exercise the powers of gover nment over local affairs independent of the Genera l Assembly,” and “to operate a nd control public

utilities.” Id . at 345. Following debates, the amendment was proposed by the convention and adopted by the vot ers at the September 3, 1912 g eneral election.

Id . at 52-53. {¶ 46} The topic of municipal ownership and operation of utilities was of particular concern to the delegates at the 1912 convention. In years prior, the legislature had granted municipalities that operated water util ities limited authority to supply water to neighboring municipalities. See G.C. 348, 66 Ohio Laws 207 (1869); G.C. 352, 66 Ohio Laws 208 (1869). Those provisions we re later amended to apply to publicly owned electrical utilities. See Miller , 48 Ohio App. at 92, 192 N.E. 474. But the question of a municipality’s “power to own a nd operate a public utility had been open to some question,” Vaubel, Municipal Home Rule in Ohio:

Part V , at 1382-1383, and prior to the a doption of Article XVIII, “th e courts had held that the power to contract with public utilities was depen dent upon the uncertainties of statutory grant, like other municipal authorit y,” id. at 1383 . Thus

, “[t]he convention was to provide a means for alleviating the gr owing inconvenience caused [to] municipalities by the ir continuing need to seek aut hority from the state legislature to compete with pri vate firms in the expanding fiel d of public utility

services.” Id . Professor George Knight, one of the drafters of the provisio ns, explained that the amendment sought to

make clearer or make broader the power of municipalities to con trol, either by leasing, constructing, or acquiring from corporations now owning or operating the public utilities within the corporation , the water supply, the lighting and heating supply and other things—January Term, 2021

21 without specifying—which come w ithin the purview of municipal public utilities, thus removing once and for all, all legitimat e questions as to the authority of municipalities to undertake an d carry on essential municipal activities.

2 Proceedings and Debates of the Constituti onal Convention of the State of Ohio 1433 (1912). {¶ 47} Still, the discussion of the municipal-utility amendments at th e 1912 convention focused on the authority of a municipality to operat e public utilities for

the benefit of its inhabitants and to sell the surplus product of those utilities. As George W. Harris, the chairman of the convention’s committee on municipal government, explained, “Section 4 confers power to acquire thro ugh purchase, lease or construction any and all public utilities, and the pow er is given to condemn for public use any existing private utility.” 2 Proceedings and Debates at 1458.

He elaborated on the m eaning of Section 6:

Section 6 gives to the municip ality the right to sell an amount

of its surplus product or service in any public utility equal to fifty per cent of that supplied to the inhabitants of the municipalit y. . Now, we took a great deal of time in getting the correct phraseology for this section. The members will recall how ever y word was weighed, what its effect was in relation to what we ha d in mind, and it was found an absolute necessity in order to make municipal ownership feasible , because if you were going to stop a traction line at the city limits frequently you might as well h ave no traction line, but, to prevent that, the limit of fifty per cen t excess product or service was determined on, which seemed very

reasonable.S UPREME C OURT OF O HIO

22 (Emphasis added.) Id . It was therefore clear to the delegates that the provision allowing the municipality to se ll or deliver surplus product or services outside the municipality was necessary to make municipal ownership and oper ation of a utility economically viable—it was foreseeable that such a utility woul d produce more product than could be used by the municipality and that the mun icipality would, as a practical matter, ne ed to sell that surplus product elsewhere

. {¶ 48} The notion that the surplus-sal e provision is tied to a municip ality’s own production is reflected elsew here in the debates. One dele gate raised the question whether a municipality was permitted to acquire a rail road that had more rail line extending outside the municipality’s limits than with in its limits, and the following exchange occurred:

MR. KRAMER: Where is there anything that prevents the municipality from owning an inter urban line clear to Columbus?

MR. KNIGHT: What would it do with it? What could it do

with it? MR. KRAMER: Suppose it wanted to go into the railway

service?

MR. KNIGHT: What for?

MR. KRAMER: As a matter of profit.

MR. KNIGHT: It can not do it. It can not furnish service to anybody outside of the corporate limits in any amount exceeding fifty per cent of what it fu rnishes inside the limits.

(Capitalization in original.) Id . at 1444. Knight went on to say that the municipality “can not furnish transportation outside of its corporate limits exceeding fifty perJanuary Term, 2021

23 cent of what it furnishes in side. Suppose you built a railroad clear across the state. The municipality coul dn’t operate it.” Id . at 1445. {¶ 49} Neither the plain language of th e municipal-utility amendments nor the debate surrounding them sugge st that the framers understood the provisions to authorize the resale of utility products purchased by the munic ipality from other suppliers. This is consistent with broader views on municipal- utility ownership at the time. As one contemporary tre atise recognized, the authori ty of a municipality to provide water or light for its inhabitants does not permit t he municipality “to go into the business of buying and selling water as a commodity to other municipalities.” (Emphasis deleted.) 3 John F. Dillon, Commentaries on the Law of Municipal Corporations 2121 (5th Ed.1911). But the treatise also recognized

that

[w]hen a city owns, maintains, and operates its own water or li ght plant, it is to be reasonably expected that in the prudent mana gement

of its works some excess beyond the natural requirements of the public will arise; that there will be some surplus which will b e available for disposal over and above such as it requires for i ts own purposes and such as its inhabitants can claim by reason of the prior duty which it owes them. With reference to the surplus so arising, the city may contract with private individuals for the private use thereof so long as it does so without affecting the supply whic h is required for public or quasi -public purposes.

(Emphasis in original.) Id . at 2127. {¶ 50} Another contemporary commentator explained that “a municipality may contract to furnish a suppl y from its plant, for use outsid e of the city, where not prohibited by statute or cha rter provision, and where there is sufficient water toS UPREME C OURT OF O HIO

24 furnish the residents all that i s necessary for their use.” 4 Eugene McQuillin, A Treatise on the Law of Municipal Corporations , Section 1800, at 3855 (1912). But even when such implicit authority is recognized, “a distinction is to be drawn between a municipality which has contracted for a supply of wat er and then contracts to furnish a part of it to another municipality, whic h is unauthorized, and a municipality which contracts to furnish a supply from its own plant.” Id . at 3857-

3858. {¶ 51} In sum, at the very same time that the framers otherwise grante d broad home-rule powers to muni cipalities, they placed explicit limitations on the power of municipalities to sell utility products and services. Municipalities were authorized to operate utilities, but they were subjected to res trictions that were designed to ensure that the utilities stayed within their prope r purpose of serving the inhabitants of the municipa lity. The framers recognized th at economies of scale, vagaries in supply and demand, and the need to plan for future growth meant that a prudent municipal utility might sometimes produce more t han its residents then needed. As a consequence, the constitutional provisions a llowed a municipality to sell its own ex cess product but imposed the 50 percent limitation to ensure that the municipal utility didn’t stray too far beyond t he authorized purpose of serving its own citizens. Further, the provisions allowed a municipality to make purchases necessary for it to serve its own citizens but did no t permit the resale of purchased utility services. III. Caselaw interpreting the mun icipal-utility amendments {¶ 52} At least until our decision in Toledo Edison , 90 Ohio St.3d 288, 737 N.E.2d 529, this court’s longtime understanding of Sections 4 a nd 6 was in accord with the plain language of thei r text and the historical contex t in which they were adopted by Ohio voters.January Term, 2021

25 A. Cases decided before Toledo Edison {¶ 53} Our 20th century caselaw comports with the view that Sections 4 and 6 limit the authority of a municipality to purchase and sell ut ility products and services. As far back as 1919, this court described Section 4 as “expressly authoriz[ing] a municipality to contract with any public utilit y, the product or service of which is to be supplied to the municipality or its i nhabitants.” Ohio River

Power Co. v. Steubenville , 99 Ohio St. 421, 124 N.E. 246 (1919). In other words, the municipality may purchase electricity, but only for its own internal use. {¶ 54} In State ex rel. Wilson v. Hance , 169 Ohio St. 457, 458, 159 N.E.2d 741 (1959), this court considered a contract under which a city was to lease and operate an electricity-generation plant for the purpose of prov iding electricity to

nonresident consumers. This cour t noted that Section 4 authori zes municipalities to acquire public utilities for the purpose of serving their in habitants and to contract with others for utility products or services. Id. at 460. But we went on to stress that “the disposition of the surplus services of such utilities are strictly limited by

Section 6 of Article XVIII.” Id . In analyzing that provisi on, this court reasoned:

It is obvious from a consideration of that constitutional limitation that, although the framers of the Constitution belie ved that it would be advantageous for muni cipal corporations to have the power to provide public-utility services to their inhabitants a nd recognized that such an operation could create a surplus product which could be disposed of outside the corporate limits of the municipality, they clearly int ended to limit municipalities pri marily to the furnishing of services to their own inhabitants and to prevent such municipalities from entering into the general public-utili ty

business outside their boundaries in competition with private enterprise.S UPREME C OURT OF O HIO

26 (Emphasis added.) Id. at 461. {¶ 55} In Britt v. Columbus , 38 Ohio St.2d 1, 5-6, 309 N.E.2d 412 (1974), this court considered whether Sections 4 and 6 granted a munici pality the authority to appropriate property outside the municipality’s limits for t he purpose of selling its public-utility product to nonres idents. We held that it wa s not authorized to do so. . We recognized that Secti on 4 unquestionably gave the mu nicipality eminentdomain authority outside the muni cipality for the purpose of es tablishing a public utility. Id . at 8, citing Blue Ash v. Cincinnati , 173 Ohio St. 345, 182 N.E.2d 557 (1962). But we explained that b ecause that power was “expressl y restricted to public utilities, the product[] or s ervice[] of which is or is to be supplied to the municipality or its inhabitants, the exercise of eminent domain authority for such purpose under Section 4 is n ecessarily likewise limited.” Id . at 8-9. And we went on to note our prior decisions holding that “the power to ‘cont ract with others for any such product or service’ c onfers authority to contract solely for the purchase by the municipality of utility produc ts or services for its inhabitants .” (Emphasis added.) Id. at 9, citing State ex rel. Mitchell v. Council of Milan , 133 Ohio St. 499, 14 N.E.2d 772 (1938), and Ohio Power Co. v. Attica , 23 Ohio St.2d 37, 261 N.E.2d 123 (1970). We therefore concluded that because the municipali ty sought to exercise its eminent-domain authority “for purposes other than supplying a public utility product or service to [th e] municipality or its inhabit ants,” the municipality’s

actions were not a uthorized by Section 4. Id

. {¶ 56} This court in Britt proceeded to consider the question whether Section 6 independently granted a municipality the authority to acquire land through eminent-domain powers for the purpose of selling excess product to nonresidents. We held that Section 6 gave no such authority. We explained that the framers of the amendment had anticipated that “in the operation of a public utility by a municipality for its inhabitants, surplus products or services might beJanuary Term, 2021

27 created which could * * * be disposed of beyond the corporate l imits of the municipality.” (Em phasis added.) Id . at 9-10, citing Hance . But we observed that while the framers had explicitly addressed the power of condemn ation with respect to municipal ownership of pub lic utilities under Section 4, the y had not done the same regarding the sale of s urplus product under Section 6. Id. at 11. {¶ 57} The above cases demonstrate this court’s long-standing recognit ion that Section 4 authorizes a municipality to provide utility pro ducts or services to its inhabitants, either through its o wn operation of a public utili ty or by contracting with others for such products or services, and that Section 6 p ermits the municipality to sell to others only surplus product that has be en generated by the public utility.

B. Toledo Edison {¶ 58} The one outlier case is Toledo Edison , 90 Ohio St.3d 288, 737 N.E.2d 529. In that brief, 11-paragraph opinion, we confronted the question whether “a municipality has constitutional authority to purchas e electricity solely for direct resale to an entity that is not an inhabitant of the municipality and not within the municipality’s limits.” Id . at 291. The Toledo Edison court began by emphasizing the language in Sec tion 4 permitting a municipality to operate a public utility “ ‘the product or service of which is or is to be supplied to the municipality

or its inhabitants .’ ” (Emphasis in original.) Id. , quoting Ohio Constitution, Article XVIII, Section 4. Consistent with our prior cases, this court explained that under Section 4, “a municipality’s aut hority to produce or purchase e lectricity is limited ‘primarily to the furnishing of s ervices to their own inhabitan ts.’ ” Id . at 291-292, quoting Hance , 169 Ohio St. at 461, 159 N.E.2d 741. {¶ 59} The court then turned to the la nguage of Section 6. In accord with our prior holdings, we recognized that “Section 6 allows a muni cipality that owns or operates a utility for the purpos e of generating its own electricity to sell surplusS UPREME C OURT OF O HIO

28 electricity.” (Emphasis added.) Id . at 292. This court concluded that, read together,

Sections 4 and 6 only allow a municipality to purchase electric ity primarily for the purpose of suppl ying its residents and resell ing only surplus electricity from that purchase to entities outside the municipality. This interpreta tion necessarily precludes a municipality from purchasing electricity solely for the purpose of reselling the entire amount of the purchased electricity to an entity outside the municipality’s geographic limits.

Id. {¶ 60} In reaching that conclusion, the Toledo Edison court correctly determined that the purchase of electricity authorized by Secti on 4 is limited to that which is to be supplied to the municipality or its inhabitants. The question in that

case could have been answered on those grounds alone: Section 4 does not permit a municipality to purchase electricity for the purpose of resel ling it to others outside the municipality. But instead, the court incorrectly assumed t hat the surplus-sale provision in Section 6 permitted th e resale of excess energy th at resulted from a purchase of electricity. In doing so, the court overlooked the textual constraints imposed by Sections 4 and 6, which limit resale to the surplus product created through the municipality’s operation of a public utility. {¶ 61} Like the lead opinion in this case, the Toledo Edison majority focused on the meaning of the word “surplus” and whether the pr actice of buying extra electricity that is not intended for use within the munic ipality amounts to creating an “artificial surplus.” See 90 Ohio St.3d at 292-293, 737 N.E.2d 52. But the resolution of the issue in that case (and the one here) did not depend on whetherJanuary Term, 2021

29 the sale stemmed from a “genuine” or “artificial” surplus. Thi s is because the resale of electricity purchased by the municipality isn’t authorized at all. {¶ 62} Because Section 4 authorizes a m unicipality to operate an elect ricity plant or to purchase electricity for only the purpose of supply ing electricity within the municipality, and because Section 6 sanctions only the sale of surplus product generated by the municipality’s plant, the municipality has no authority to act as a de facto broker by purchasing electricity and reselling it to o thers outside the municipality’s limits. Thus, the Toledo Edison court’s ultimate conclusion was correct: “a municipality is prohibited from in effect engaging in the business of brokering electricity to entities outside the municipality in d irect competition with public utilities.” Id. at 293. But in suggesting that purchased products may in some situations be resold under Sections 4 and 6, the Toledo Edison court misread the

constitutional text.

IV. Resolution {¶ 63} I agree with the lead opinion th at the Eighth District Court of Appeals correctly concluded that the trial court erred in grant ing Cleveland’s motion for summary judgment. So to that limited extent, I conc ur in the judgment. But, unlike the lead opinion, I would instruct the trial court on remand to apply the plain language of the constituti onal provisions: Cleveland may not resell electricity that it has purchased. {¶ 64} The Eighth District als o affirmed the trial court’s denial of acrossmotion for summary judgment filed by the Cleveland Electric Ill uminating Company seeking a declaratory j udgment as to the meaning of Sec tions 4 and 6. 2020-Ohio-33, ¶ 19, 42. I would reverse the judgment of the Ei ghth District on that point and instruct the trial cour t on remand to grant Cleveland Electric’s motion and enter a declaratory judgmen t consistent with this opinion. Because the court does otherwise, I concur in j udgment only in part and otherwise dissent.

F ISCHER , J., concurs in the foregoing opinion.S UPREME C OURT OF O HIO

30 _________________ K ENNEDY , J., dissenting. {¶ 65} I dissent. Article XVIII, Sec tion 6 of the Ohio Constitution empowers municipalities to sell their surplus utility services and products to those outside of the municipality “in an amount not exceeding * * * f ifty per cent of the total service or product supplied by such utility within the mu nicipality.” Appellee and cross-appellant the city of C leveland therefore has express home-rule authority to contract to sell its surplus electricity to the city of Broo klyn in the amount at issue here—approximately 4 percent of the electricity that the city supplies inside its borders. The Ohio Constitution contains no language prohib iting municipalities from selling electricity to nonres idents from an “artificial,” lead opinion at ¶ 30, or purposely created surplus of elect ricity, and this court may no t add such language. Rather, courts should read the w ords of a constitutional provis ion as written and apply their plain meaning. State ex rel. Sylvania Home Tel. Co. v. Richards , 94 Ohio St. 287, 294, 114 N.E. 263 (1916). For these reasons, I d issent and would reverse the judgment of the Ei ghth District Court of Appeals an d reinstate the trial court’s grant of summary judgm ent in favor of Cleveland. Constitutional Interpretation {¶ 66} “The purpose of our written constitution is to define and limit the powers of government and secure the rights of the people.” Cleveland v. State , 157 Ohio St.3d 330, 2019-Ohio-3820, 136 N.E.3d 466, ¶ 16 (lead opin ion). Its language controls as written unless it is c hanged by the people themselves through the amendment procedures established by Article XVI of the Ohio Constitution. The Ohio Constitution is the paramount law of this state, and w e recognize that its framers chose its language caref ully and deliberately, employed words in their natural sense, and intended what the words said, see Gibbons v. Ogden , 22 U.S. 1, 188, 6 L.Ed. 23 (1824), and Lawnwood Med. Ctr., Inc. v. Seeger , 990 So.2d 503, 510 (Fla.2008).January Term, 2021

31 {¶ 67} Therefore, in construing the Ohio Constitution, our duty is to determine and give effect to the meaning expressed in its plain language, State ex rel. LetOhioVote.org v. Brunner , 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 50, and “ ‘[w]here the mean ing of a provision is clear o n its face, we will not look beyond the provision in an attempt to divine what the draf ters intended it to mean,’ ” Toledo City School Dist. Bd. of Edn. v. State Bd. of Edn. , 146 Ohio St.3d 356, 2016-Ohio-2806, 56 N.E.3d 950, ¶ 16, quoting State ex rel. Maurer v.

Sheward , 71 Ohio St.3d 513, 520-521, 644 N.E.2d 369 (1994). We give u ndefined words in the Constitution their usual, normal, or customary mea ning, id. at ¶ 16, and we may go beyond the text to consider other sources of mean ing, such as the purpose of an amendment, the history of its adoption, or its at tending circumstances, only “when the language being construed is ‘obsc ure or of doubtful meaning,’ ” State ex rel. Wallace v. Celina , 29 Ohio St.2d 109, 112, 279 N.E.2d 866 (1972), quoting Cleveland v. Bd. of Tax Appeals , 153 Ohio St. 97, 103, 91 N.E.2d 480 (1950); see also Maurer at 522 (“we will not look to the history of a provision where * * * the l anguage of the provision is clear”).

The Home Rule Amendment {¶ 68} Prior to 1912, “the source and extent of municipal power was de rived from the enactments of the General Assembly.” Cincinnati Bell Tel. Co. v. Cincinnati , 81 Ohio St.3d 599, 605, 693 N.E.2d 212. “[M]unicipalities co uld exercise only those powers delegated by statute.” Geauga Cty. Bd. of Commrs. v.

Munn Rd. Sand & Gravel , 67 Ohio St.3d 579, 582, 621 N.E.2d 696 (1993). “Such power, being legislative only, could be withdrawn from the muni cipalities, or amended, at any session of the L egislature, * * * and there was neither stability of law, touching municipal power, no r sufficient elasticity of law to meet changed and changing municipal conditions.” Perrysburg v. Ridgway , 108 Ohio St. 245, 255, 140 N.E. 595 (1923).S UPREME C OURT OF O HIO

32 {¶ 69} The General Assembly also had th e power to create, regulate, an d abolish municipal utilities. Euclid v. Camp Wise Assn. , 102 Ohio St. 207, 210, 131 N.E. 349 (1921). “Prior to the 1912 amendment, and subsequent to 1851, utilities could only be owned and operated under power specially conferre d by legislative

enactment.” Id. at 213. Under the 1851 Ohio Constitution, municipalities did n ot have the “inherent right” to operate utilities, and when author ized by statute, municipal utilities were subject t o “restrictions and condition s relative to [the utility] without limit.” Id. at 210. {¶ 70} To remedy those problems, the pe ople of this state adopted Ohio ’s Home Rule Amendment in 1912, whic h provides that “[m]unicipalit ies shall have authority to exercise all powers of local self-government and t o adopt and enforce within their limits such local police, sanitary and other simil ar regulations, as are not in conflict with general law s.” Article XVIII, Section 3, Ohio Constitution. Article XVIII, Section 7 states t hat “[a]ny municipality may fr ame and adopt or amend a charter for its government and may, subject to the prov isions of section 3 of this article, exercise there under all powers of local self-g overnment.” {¶ 71} “[T]he intention of the Home Rule Amendment was to eliminate statutory control over municipalities by the General Assembly.” Cincinnati Bell

Tel. Co. , 81 Ohio St.3d at 605, 693 N.E.2d 212. Accordingly,

“[b]y reason of Sections 3 and 7 of Article XVIII of the Ohio Constitution, a charter city has all powers of local self-gover nment except to the extent that those powers are taken from it or limited by other provisions of the Constitution or by statutory limitations on the powers of the municipality which the Constitution has

authorized the General Assembly to impose.”January Term, 2021

33 (Emphasis added in Westlake .) State ex rel. Commt. for the Charter Amendment, City Trash Collection v. Westlake , 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 31, quoting Bazell v. Cincinnati , 13 Ohio St.2d 63, 233 N.E.2d 864 (1968), paragraph one of the syllabus. {¶ 72} And “[w]ith respect to a municipally operated public utility, t he municipality’s powers, rights and privileges are derived direct ly from the people, pursuant to the provisions of Sections 4 and 6 of Article XVIII of the Constitution, and not from the General Assembly.” State ex rel. McCann v. Defiance , 167 Ohio St. 313, 316, 148 N.E.2d 221 (1958). Article XVIII, Section 4 states, “Any municipality may acquire, construct, own, lease and operate wit hin or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contra ct with others for any such product or service.” Artic le XVIII, Section 6 further pro vides:

Any municipality, owning or operating a public utility for the purpose of supplying the service or product thereof to the municipality or its inhabitants, may also sell and deliver to o thers any transportation service of such utility and the surplus prod uct of any other utility in an amount not exceeding in either case fif ty per cent of the total service or p roduct supplied by such utility w ithin the municipality, provided that such fifty per cent limitation shall not apply to the sale of wat er or sewage services.

{¶ 73} The Home Rule Amendment, then, reversed the balance of power between the state and municipalities regarding the operation an d regulation of municipal utilities. As this court explained in McCann , “it would appear that the General Assembly has no power t o limit or restrict, by regulati on or otherwise, the power and authority of a munici pality to operate a public utili ty for the purpose ofS UPREME C OURT OF O HIO

34 supplying the product thereof to such municipality or its inhab itants, or selling and delivering to others some of the surplus product thereof.” Id. at 316. Toledo Edison Co. v. Bryan {¶ 74} In Toledo Edison Co. v. Bryan , this court confronted the same issue presented in this case: “whether a municipality has constitutio nal authority to purchase electricity solely for direct resale to an entity that is not an inhabitant of the municipality and not within the municipality’s limits.” 90 Ohio St.3d 288, 291, 737 N.E.2d 529 (2000). We explaine d that in adopting Article X VIII, Section 4, the people “intend[ed] to limit a municipality’s authority to p roduce or acquire electricity primarily for the purpose of serving it or its inha bitants’ needs,” id. at 292, and that the people intended for Article XVIII, Section 6 “to limit a municipality’s ability to sell only that electricity that is in excess of what is needed by the municipality or its inhabitants,” id. And we read Sections 4 and 6 in pari

materia to “only allow a municipality to purchase electricity primarily for the purpose of supplying its residents and reselling only surplus e lectricity from that purchase to entities outsi de the municipality.” Id

. {¶ 75} “This interpretation,” this court determined, “necessarily prec ludes a municipality from purchasing electricity solely for the purpo se of reselling the entire amount of the purchased el ectricity to an entity outside the municipality’s geographic limits.” Id. “This prohibition includes a de facto brokering of electricity, i.e., where a municipality purchases electricity s olely to create an artificial surplus for the purpose of selling the electricity t o an entity not within the municipality’s geographic boundaries.” Id. at 293. {¶ 76} Toledo Edison Co. provides the rule of decision in this case, and the doctrine of stare decisis genera lly requires a court to adhere to an established precedent in subsequent cases i n which the same question of law is at issue. Clark v. Snapper Power Equip., Inc. , 21 Ohio St.3d 58, 60, 488 N.E.2d 138 (1986). But stare decisis does not compel this court to follow an incorrect interpretation of theJanuary Term, 2021

35 Constitution. As we explained in Rocky River v. State Emp. Relations Bd ., “each judge remembers above all that she or he has sworn to support a nd defend the Constitution—not as someone else has interpreted it but as the judge deciding the case at bar interprets it.” 43 Ohio St.3d 1, 6-7, 539 N.E.2d 1 03 (1989). Because it is “beyond the power of the legislature to change or ‘correct’ judicial interpretation of the Constitution,” id. at 6, “it is incumbent on the court to make the necessary changes and yield to the f orce of better reasoning,” id. {¶ 77} In my view, Toledo Edison Co. should be overruled. To begin, this court erroneously construed Article XVIII, Section 6 as imposin g a prohibition on reselling electricity. However, the purpose of the Home Rule A mendment was to rebalance the allocation of power between the state and municip alities. Article XVIII, Sections 4 and 6 represent a positive grant of power to municipalities, creating a constitutional default rule that if a municipality o wns and operates a utility within the bounds of the power granted to it, it is imm une from regulation enacted by the General Assembly. See McCann , 167 Ohio St. at 316, 148 N.E.2d 221 (the General Assembly has “no power” to restrict municipali ties’ exercise of power under Article XVIII, Sections 4 and 6). Section 6 theref ore limits the extent of the specific home-rule pow er granted to municipalities to op erate utilities, but it does not prohibit a municipality from acting in ways otherwise permitted by the home-rule authority conferred by Ar ticle XVIII, Section 3 or by state law. Section 6 says what a municipality m ay do, not what it shall not do. {¶ 78} Operating a municipal utility is a proprietary function that is separate from a municipality’s governmental functions. Akron v. Pub. Util. Comm. , 149 Ohio St. 347, 354, 78 N.E.2d 890 (1948); see also R.C. 2744.01(G)(2)(c) (operating a municipal utility defined as a proprietary function); Schenkolewski v. Cleveland Metroparks Sys ., 67 Ohio St.2d 31, 33, 36-37, 426 N.E.2d 784 (1981) (municipa l corporations have both governme ntal and proprietary functions). And we have recognized that “so far as a m unicipality acts in a proprietary capacity it possessesS UPREME C OURT OF O HIO

36 the same rights and powers and is subject to the same restricti ons and regulations as other like proprietors.” Akron at 354. The state genera lly excludes municipal utilities from regulation, see R.C. 4928.01(A)(11) and 4933.81( A), and neither the court below nor the parties point to any statute prohibiting mu nicipalities from reselling electricity to nonresidents. {¶ 79} But more fundamenta lly, this court in Toledo Edison Co. failed to give effect to the plain meaning of the Ohio Constitution’s lan guage. According to a dictionary that was published contemporarily with the adoptio n of the Home Rule Amendment, the word “surplus” m eant “[t]hat which remains when use or need is satisfied; excess; overplus,” Webster’s New Intern ational Dictionary 2086 (1911), and “[b]eing or constituting a surplus; more than sufficient,” id. at 2087. The word “surplus” does not have any connot ation distinguishing between its being natural or artificial, or purposeful or accidental. It simply means ha ving more than enough. Therefore, according to the natural reading of Article XVIII, S ection 6, a municipality has the express constitutional authority to sell i ts excess electricity to nonresidents so long as (1) the need s of its residents are sati sfied first and (2) sales to nonresidents do not exceed 50 percent of the total electrici ty supplied within the municipality. To hold that Secti on 6 prohibits sales from an “ artificial” or purposely created surplus, then, is to add words to the constit utional provision; however, a court may not “add to o r subtract from the plain and usual meaning of [a] constitutional provision,” State v. Billotto , 104 Ohio St. 13, 15-16, 135 N.E. 285 (1922). {¶ 80} We are obligated to construe the words in Article XVIII, Sectio n 6 in the way that the people who adopted the 1912 Ohio Constituti on would have naturally understood them. See Centerville v. Knab , 162 Ohio St.3d 623, 2020- Ohio-5219, 166 N.E.3d 1167, ¶ 22. Although framed during the O hio

Constitutional Convention of 1912, the Constitution was adopted through the votes of the body of electors in this state. And as the United State s Supreme Court hasJanuary Term, 2021

37 explained, that is the reason that “[t]he simplest and most obv ious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.” Lake Cty. v. Rollins , 130 U.S. 662, 671, 9 S.Ct. 651, 32 L.Ed. 1060 (1889). It is manifest that the people in 1912 were unfamiliar with the current realities of electricity generation and distribution in this co untry, including deregulation, interstate wholesal e markets, long- and short-ter m contracting, and reserve-capacity regulations. We cannot take the meaning of th e word “surplus” as it is might be understood in the modern-day law of public utili ties and project it

onto the 1912 voters. {¶ 81} Rather, the people who adopted A rticle XVIII, Section 6 underst ood it to mean what it said: municipalities would be permitted to s ell as much as onethird of its utilities’ total pr oduct to nonresidents after the needs of its residents were satisfied. Such a large surplus—one-third of the total su pplied to both

residents and nonresidents—coul d be produced only by operating the utility at a capacity greater than necessary to serve the municipality’s res idents, with the purpose of selling the excess to nonresidents. As one delegate to the 1912 convention explained, allowing sa les to nonresidents was “an ab solute necessity in order to make municipal ownership feasible.” 2 Proceedings and Debates of the Constitutional Convention of the State of Ohio 1458 (1912). That is, a large amount of a utility’s production was expected to be sold to nonresiden ts in order to make

sales to residents cost-effective. {¶ 82} In this case, Cleveland sells t o nonresidents an amount of elec tricity that is approximately 4 percent of the electricity that its mun icipal utility supplies within the city, and there is no indication that the electricit y supplied to nonresidents prevents the utility from satisfying the demand of Cleveland residents first. Article XVIII, Section 6 t herefore expressly authorizes these sales. The trial court properly entered summar y judgment in favor of the city, a nd I would reverse the contrary judgment of the court of appeals. Because this co urt does not, I dissent.S UPREME C OURT OF O HIO

38 _________________ B RUNNER , J., dissenting. {¶ 83} I agree with the lead opinion that Article XVIII, Section 6 of the Ohio Constitution does not require a municipal utility to purch ase only the exact amount of electricity that it need s to serve its inhabitants an d that there are numerous lawful reasons why it might acquire a surplus. I disa gree, however, with the judgment affirming the rema nd of this case to the trial cou rt on the ground that appellee and cross-appellant, t he city of Cleveland, may have v iolated Article XVIII, Section 6 when it agreed to provide electricity to appel lee and crossappellant, the city of Brooklyn. The lead opinion bases its de termination on the

rule that this court announced in Toledo Edison Co. v. Bryan , 90 Ohio St.3d 288, 737 N.E.2d 529 (2000). In my view, the facts here do not enabl e appellant and cross-appellee, the Cleveland El ectric Illuminating Company (“C leveland Electric”), to prevail on its claim under Toledo Edison Co

. {¶ 84} In Toledo Edison Co. , a public utility sued four municipalities after the municipalities formed a joint venture and began providing e lectricity to an

industrial customer located out side their geographic limits. Id. at 288-289. In its complaint, the public utility identified ordinances by which th e individual municipalities had authorized their respective utilities to ent er into power-purchase agreements with a wholesale electricity supplier. Id. at 289. It also alleged that the resulting agreements were entere d into for the purpose of enabl ing the municipalities to provide electri city to the industrial custome r. Id. Overall, the public utility claimed, this meant that the purchase agreements violated Article XVIII, Section 4 and that the municipalities’ resale to the ind ustrial customer of the electricity purchased under those agreements violated Section 6

. Id. {¶ 85} When the dispute reached this court, the four municipalities acknowledged in their briefs to this court that they had entere d into the agreements with the wholesale electricity supplier “[a]s part of their arr angements to supplyJanuary Term, 2021

39 electricity to” the industrial customer. Toledo Edison Co. v. Bryan , case No. 1999- 1280, *7-8 (Feb. 23, 2000). They argued, however, that these a greements did not mean that they acted as electricity brokers. Id. at *8. They also emphasized that some of the electricity that th ey provided to the industrial cu stomer came from

another source: it had been “r eallocated from preexisting joint wholesale electricity purchase.” Id. {¶ 86} Given that background, we observe d that “[t]he municipalities h ad to purchase electricity in order to fulfill their obligation to provide [the industrial customer] with electricity.” Toledo Edison Co. , 90 Ohio St.3d at 289, 737 N.E.2d 529. . We then held that Sections 4 and 6 prohibit a municipa lity from “purchasing electricity solely for the purpose of reselling it to an entity that is not within the municipality’s geographic limits.” Id. at 293. This includes “a de facto brokering of electricity, i.e., where a municipality purchases electricit y solely to create an artificial surplus” for res ale outside its boundaries. Id. We therefore entered judgment remanding the case to the trial court for it to determ ine “whether the electricity purchased by the municipalities [in the agreements with the wholesale electricity supplier] was solely for the purpose of resale to a n entity outside the geographic boundaries of the municipalities.” Id. {¶ 87} In my view, the holding of Toledo Edison Co. is properly understood as being limited to its facts. That is, the case announces a r ule to be applied when considering specific power-purchase agreements. The dispute be fore this court was clearly focused on specific power-purchase agreements that the municipal utilities acknowledged were entered into for the purpose of resale to the industrial customer. This court’s holding and remand or der therefore provided the tr ial court with a concrete and manageable task: it was required to determine whet her the specific agreements with the wholesale e lectricity supplier were entered into “solely” for the purpose of resale. If so, they were unlawful.S UPREME C OURT OF O HIO

40 {¶ 88} The lead opinion here does not i dentify any fact indicating tha t appellee and cross-appellant, C leveland Public P ower (“CPP”), e ntered into any specific power-purchase agreement in order to meet its obligati on to provide electricity to Brooklyn. Nor does Cleveland Electric. Instead , Cleveland Electric discusses in its briefs CPP’s power-purchase contracts as a who le and argues that they enable CPP to purchase ex actly the amount of electricity t hat it needs to serve entities within Cleveland, meaning that any additional electricity that CPP obtains is an unlawful artificial surplus under Article XVIII, Sections 4 and 6. I agree with the lead opinion’s rejecting this argument. And because the pa rties have already had an opportunity to conduct di scovery, no additional facts on these matters should

be identified or de veloped on remand. {¶ 89} In my view, Cleveland Electric has not met its burden on summar y judgment. It has not identified any fact that would enable a r easonable juror to

conclude that CPP ente red into any power-purchase agreement “so lely” for the purpose of reselling that power to Brooklyn. Cleveland and CPP are therefore entitled to summary judgment on Cleveland Electric’s claim unde r Sections 4 and

6. {¶ 90} For these reasons, I respectfully dissent.

_________________ Benesch, Friedlander, Coplan & A ronoff, L.L.P., Gregory J. Phil lips, Michael J. Montgomery, Michael D. Meuti, James E. von der Heydt , and James J. Walsh Jr., for appellant and cross-appellee. Carpenter, Lipps & Leland, L.L.P ., Kimberly W. Bojko, Angela Pa ul Whitfield, and Stephen E. Dutt on, for appellees and cross-appel lants the city of

Cleveland and Clevela nd Public Power. Bricker & Eckler, L.L.P., Drew H. Campbell, and Elyse Akhbari, for appellee and cross-appe llant Cuyahoga County.January Term, 2021

41 Kevin M. Butler, Brooklyn Law Director, for appellee and cross- appellant city of Brooklyn. Thompson Hine, L.L.P., and Stephanie M. Chmiel; and Kurt Helfri ch and Lija Kaleps-Clark, urging reversa l for amici curiae Buckeye Pow er, Inc., and Ohio Rural Electric Cooperatives, Inc. Steven T. Nourse, urging reversal for amicus curiae Ohio Power Company. James E. McLean, urging reversal for amicus curiae Duke Energy Ohio,

Inc. Michael J. Schuler, urging revers al for amicus curiae The Dayto n Power and Light Company. Lisa G. McAlister and Gerit F. Hull, for amicus curiae American Municipal Power, Inc., in support of appell ees and cross-appellants. Lisa G. McAlister, for amicus curiae Ohio Municipal Electric As sociation, in support of appellees a nd cross-appellants. Garry E. Hunter; and Paul W. Flow ers Co., L.P.A., Paul W. Flowe rs, and Louis E. Grube, for amicus cur iae Ohio Municipal League, in sup port of appellees and cross-appellants.

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