Kardules v. City of Columbus

• Decision Date: 20 September 1996
• Docket Number: No. 94-3704,94-3704
• Citation: 95 F.3d 1335
• Parties: Cally KARDULES, Mayor, Village of New Albany, Ohio, et al., Plaintiffs, Emery Bennett; David Mango, Plaintiffs-Appellants, v. CITY OF COLUMBUS; James P. Joyce, Director, Department of Public Utilities; George J. Arnold, Director, Development Department, Defendants-Appellees. Sixth Circuit
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1335

95 F.3d 1335

Cally KARDULES, Mayor, Village of New Albany, Ohio, et al., Plaintiffs, Emery Bennett; David Mango, Plaintiffs-Appellants, v. CITY OF COLUMBUS; James P. Joyce, Director, Department of

Public Utilities; George J. Arnold, Director,

Development Department, Defendants-Appellees.

No. 94-3704.

United States Court of Appeals,Sixth Circuit.

Argued June 12, 1996.

Decided Sept. 20, 1996.

John S. Marshall (briefed), Spater, Gittes, Schulte & Kolman, Columbus, OH, Louis A. Jacobs, Upper Arlington, OH, Neil E. Klingshirn (argued and briefed), Fortney & Klingshirn, Akron, OH, Brent Patterson, New Albany, OH, for Plaintiffs-Appellants.

Ronald J. O'Brien (argued and briefed), City Attys. Office, Columbus, OH, for Defendants-Appellees.

Before: KEITH and BATCHELDER, Circuit Judges; ROSEN, District Judge. ^*

ROSEN, D.J., delivered the opinion of the court, in which KEITH, J., joined. BATCHELDER, J. (pp. 1356-59), delivered a separate opinion concurring in the result only.

ROSEN, District Judge.

Plaintiffs-Appellants Emery Bennett and David Mango appeal decisions of the District Court granting a motion by Defendants- Appellees City of Columbus, James P. Joyce and George J. Arnold for summary judgment, and denying Appellants' motion for summary judgment. Appellants are two Ohio citizens who claim that their right to vote on a ballot issue concerning the proposed merger of two suburban Columbus communities, the Village of New Albany (the "Village") and the unincorporated portion of Plain Township (the "Township"), has been impaired by provisions in water and sewage contracts between the City of Columbus and the Village. Those contracts call for a ten-fold increase in the water and sewer service rates paid by Village customers should the Village and the Township merge. Appellees are the City of Columbus and two Columbus officials who were involved in preparation of the contracts (hereafter collectively referred to as the "City").

In addition to the substantive appeal, we have before us two motions filed by Appellees seeking dismissal on various jurisdictional grounds. Because we find that Appellants lack standing to bring their claims, we vacate the district court decision with respect to those claims, and remand with instructions to dismiss those claims.

I. PROCEDURAL AND FACTUAL BACKGROUND

Appellants commenced this action on February 11, 1994, asking the District Court to remove what they perceived to be an unconstitutional burden on their right to vote in the upcoming November 8, 1994, election on the proposed merger between the Village of New Albany and Plain Township, two communities on the outskirts of the City of Columbus. They were joined in their suit by two New Albany officials, the Village mayor and a member of the Village Council, who asserted claims in both their official and individual capacities, and the Village itself, which asserted state law claims. Cross-motions for summary judgment were filed on April 11, 1994. By opinion and order dated June 2, 1994, District Court Judge Beckwith granted Appellees' motion on Appellants' federal claims and denied Appellants' motion. Judge Beckwith then dismissed the Village's state law claims without prejudice for want of jurisdiction.

A. The Water and Sewage Contracts

Appellants' constitutional claims are based on provisions in water and sewage contracts between the Village and the City. In 1988, the Ohio Environmental Protection Agency found that existing water and sewage facilities in the Village violated state environmental laws, and ordered the Village to construct new facilities. The Village complied by entering into contracts for water and sewage services with its neighbor, the City of Columbus. Both contracts contain the following clauses:

Section 15. As a further consideration for this agreement the Village of New Albany agrees that it will take no action whatsoever to pursue merger with Plain Township pursuant to Section 709.43 through 709.48 of the Ohio Revised Code or any revision of or amendment to said sections. In consideration of the agreement of the Village of New Albany contained in this paragraph and as further consideration for this agreement the City of Columbus agrees as follows:

(a) Except for the road right-of-way the City of Columbus will not accept any annexation of those properties seven acres or less in size in Plain Township, Ohio unless owners of said properties have either signed the petition for annexation or request in writing that the City of Columbus accept said annexation pursuant to Section 709.02 through 709.21 of the Ohio Revised Code or any revision of or amendment to said sections.

* * * * * *

Section 16. The parties recognize that merger pursuant to section 709.43 through 709.46 of the Ohio Revised Code or any revision or amendment to said sections could occur without the act of the Village of New Albany. It is the conclusion of the parties that provision for water and sewer service to the Village of New Albany and a reasonable area within Plain Township is a more reasonable resolution of water and sewer service than merger. Accordingly, it is agreed by the parties that in the event merger between the Village of New Albany and Plain Township should occur, the City of Columbus shall incur no obligation to serve areas other than those specifically referred to in this contract. The parties further agree that as of the effective date of said merger, the rates chargeable hereunder shall become ten times those set forth in Section 8 hereof. The Village of New Albany consents to the provisions set forth in this section as related to the cost and expense of providing continued services under this Agreement and not as an exaction, tax or penalty in the event the conditions imposing this section occur. Further, the Village of New Albany consents and agrees that the provisions in this section are not confiscatory nor unreasonable.

(J.A. at 100-01.) These service contracts were unanimously approved by both the New Albany Village Council and the Columbus City Council.

B. The Merger Process

Under Ohio law, merger of two communities is a multi-step process governed by sections 709.43 through 709.48 of the Ohio Revised Code. The first step requires filing of a petition with the board of elections. The petition must include a certain number of signatures from registered voters in the affected communities, and must contain the names of five individuals from each community who would be willing to serve on a merger commission. Ohio Rev.Code Ann. § 709.45. If a proper petition is submitted to the board of elections at least 75 days before the next scheduled general election, the board must place the following question on the ballot: "Shall a commission be chosen to draw up a statement of conditions for merger of the political subdivisions of _____, _____, and _____?" Ohio Rev.Code Ann. § 709.45.

If a majority of voters in each involved community agrees to form a merger commission, the code instructs the designated commissioners "to meet as often as necessary to formulate conditions for merger that are satisfactory to a majority of the members of such commission from each political subdivision." Ohio Rev.Code Ann. § 709.46. Assuming the commission reaches agreement, the conditions of merger are then submitted to the board of elections and placed on the ballot for the next general election. However, "[r]egardless of whether a merger commission of a township and a municipal corporation succeeds in reaching agreement, the commission shall cease to exist on the seventy-fifth day prior to the next general election after the commission is elected." Ohio Rev.Code Ann. § 709.46. Finally, if merger is rejected by the voters at either stage--either the commission formation stage or the conditions of merger stage--Ohio law forbids the filing of any new merger petitions for at least three years after the date of such disapproval. Ohio Rev.Code Ann. §§ 709.46, 709.47.

The voters of the Village of New Albany and Plain Township approved formation of a merger commission on November 2, 1993. This lawsuit was filed by Appellants on February 11, 1994. As of that date, the merger commission formed pursuant to the 1993 election had not yet submitted conditions of merger to the board of elections. Under the terms of the Ohio statute, they had until August 25, 1994, to do so. Subsequently, the commission filed conditions with the board of elections in a timely manner.

The merger proposal was placed on the November 8, 1994, ballot, and was defeated. A majority of Plain Township voters supported the merger; however, Village voters rejected the proposal by a margin of approximately two to one (747 to 367).

C. The Parties to this Appeal

Appellant David M. Mango has been a resident of the Village for 22 years. He is registered to vote, and stated in his deposition that he intended to vote in the November 8, 1994, general election. However, he is neither a water nor a sewer customer of the City. Appellant Emery A. Bennett is a resident of Plain Township and a former resident of the Village. Bennett still owns his former Village residence, and is a City water customer at that address. Bennett is also a registered voter, and also stated in his deposition that he intended to vote in the November 8, 1994, election. Furthermore, both Mango and Bennett pay property taxes on property they own within the two communities. Consequently, if utility rates were increased, the Plain Local School District would be subject to those higher rates, and Appellants' property taxes presumably would increase correspondingly.

D. The Purpose and Effect of the Contracts' Rate Increase Provisions

Because the District Court concluded that under no circumstances could the water and sewage contract provisions be considered an unconstitutional burden on Appellants' right to vote, some factual issues remain unresolved. In particular, the parties dispute the...