McQueen v. Dohoney

Decision Date12 June 2013
Docket NumberAPPEAL NO. C-130196,TRIAL NO. A-1301595
Citation2013 Ohio 2424
PartiesLISA MCQUEEN, SHIRLENE BRITTON, PETE WITTE, EDWARD D. HYDE, JOHN BRANNOCK, and DOUGLAS B. ROBINSON, JR., Plaintiffs-Appellees, and CITY OF CINCINNATI EX REL. LISA MCQUEEN, SHIRLENE BRITTON, PETE WITTE, EDWARD D. HYDE, JOHN BRANNOCK, and DOUGLAS B. ROBINSON, JR., Relators-Appellees, v. MILTON R. DOHONEY, JR., CITY MANAGER, and THE CITY OF CINCINNATI, Defendants-Respondents-Appellants.
CourtOhio Court of Appeals
OPINION.

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded with Instructions

The Law Firm of Curt C. Hartman and Curt C. Hartman, and Finney, Stagnaro, Saba & Patterson and Christopher P. Finney, for Plaintiffs-Relators-Appellees,

John P. Curp, City Solicitor, and Terrance A. Nestor, Assistant City Solicitor, for Defendants-Respondents-Appellants,

Squire Sanders LLP, Scott A. Kane, Pierre H. Bergeron and Colter L. Paulson, for Amici Curiae Cincinnati Center City Development Corp., Port of Greater Cincinnati Development Authority, and Uptown Consortium, Inc.,

Taft Stettinius & Hollister, LLP, W. Stuart Dornette and John B. Nalbandian, for Amici Curiae Al Neyer, Associated Builders and Contractors, Flaherty & Collins Properties, JDL Warm Construction LLC, Messer Construction Co., Miller-Valentine Group, NorthPointe Group, Oswald Company, and Towne Properties,

Katz Teller Brandt & Hild, Robert A. Pitcairn and Mark J. Jahnke, for Amicus Curiae Cincinnati USA Regional Chamber.

Note: we have removed this case from the accelerated calendar.

CUNNINGHAM, Presiding Judge.

{¶1} The city of Cincinnati and its city manager, Milton R. Dohoney, Jr., ("the city") appeal the judgment of the Hamilton County Court of Common Pleas declaring that emergency Ordinance No. 56-2013 is subject to the referendum power of the citizens of Cincinnati, and enjoining the city from acting under that ordinance pending the outcome of the referendum process. Because we hold that, as a matter of law, the city's charter exempts the validly enacted emergency Ordinance No. 56-2013 from the referendum power of the citizenry, we reverse the common pleas court's judgment, and remand the case for the trial court to enter judgment in favor of the city.

I. Background Facts and Procedure

{¶2} On March 6, 2013, Cincinnati's city council passed Ordinance No. 56-2013, which relates to, and authorizes the city manager to execute an agreement for the long-term leasing of the city's parking system. The lease is captioned "Long-Term Lease and Modernization Agreement for the City of Cincinnati Parking System with the Port of Greater Cincinnati Development Authority." And under its anticipated terms, the city will receive immediate substantial compensation, yearly lease payments, and a technological upgrade to the parking meter hardware, in exchange for giving up control over some aspects of the identified parking system. The city manager proposed the lease as a solution to meet a significant budget shortfall beginning with the fiscal year commencing on July 1, 2013.

{¶3} Section 5 of Ordinance No. 56-2013 is an "emergency clause" that the city's administrators, including the city solicitor's office, "presented" to city council for its consideration. And at city council's special session held on March 5, 2013, the city solicitor, John Curp, told council that the emergency clause would exempt theordinance from a referendum. On March 6, 2013, city council voted to adopt the ordinance by a vote of 5-4 and voted to retain the emergency clause by a vote of 6-3.

{¶4} Subsequently, a group of people, stipulated to be city residents, voters, and taxpayers ("plaintiffs-relators"), filed with the Hamilton County Court of Common Pleas a verified complaint seeking an ex parte temporary order restraining the city manager from executing the parking lease agreement and enjoining the city and the city manager from taking any action in furtherance of the ordinance. The plaintiffs-relators also sought declaratory and injunctive relief, and requested attorney fees based on a claim under 42 U.S.C. 1983. The plaintiffs-relators claimed to have a legal right to referendum on the issue that would be lost if the city were permitted to act upon the newly enacted ordinance.

{¶5} The common pleas court granted the temporary restraining order. Several days later, a committee of petitioners, including some of the plaintiffs-realtors, filed a copy of a referendum petition regarding Ordinance No. 56-2013 with the city's finance director, in accordance with R.C. 731.32.

{¶6} Because it contained a 42 U.S.C. 1983 claim, the city moved the case to the federal district court. The plaintiffs-relators dismissed their federal claim and amended the complaint to assert a claim, and statutory taxpayer standing, under R.C. 733.59. The district court remanded the action back to the Hamilton County common pleas court.

{¶7} On remand, the common pleas court ordered a consolidated hearing on the preliminary-injunction, the permanent-injunction, and the declaratory-judgment claims.

{¶8} The plaintiffs-relators asked the court to declare that Ordinance No. 56-2013 is subject to a referendum and to enjoin the implementation of the ordinance. In support, they restated allegations set forth in the amended complaint: that Ordinance No. 56-2013 did not pass with the requisite number of votes needed for emergency legislation under R.C. 731.30; that city council did not strictly comply with statutory requirements to designate an ordinance as emergency legislation; and that city council did not obtain the number of votes mandated by Cincinnati's charter ("the city's charter" or "the Charter") to decrease or abolish the powers of any department or division of the city. Additionally, they argued for the first time that the Charter provides for a referendum on all legislative acts, without any exception for emergency legislation.

{¶9} On March 15, 2013, the common pleas court held a hearing on the claims and accepted into evidence joint exhibits, including six pages of stipulated facts. The court found an ambiguity in the Charter and construed the Charter liberally to provide citizens with an unrestricted right of referendum. In doing so, the court rejected the city's argument that the substantive restrictions on the power of municipal referendum set forth in the Ohio Revised Code—including an exception for emergency ordinances—were incorporated into the Charter.

{¶10} Ultimately, the common pleas court declared that Ordinance No. 56-2013 was subject to referendum, and granted injunctive relief prohibiting the city from taking any action to implement the ordinance pending the outcome of any referendum. The common pleas court did not address the plaintiffs-relators' other arguments in support of referendum because it found the issue that it had determined to be dispositive.

{¶11} The city now appeals, asserting in two assignments of error that the court of common pleas erred in granting declaratory and injunctive relief to the plaintiffs-relators. The city asks this court to reverse the common pleas court's order and enter judgment declaring that Ordinance No. 56-2013 is a validly enacted emergency ordinance that is immediately effective and not subject to referendum. Amici, a group of private developers and membership organizations for area businesses, also urge us to reverse.

II. Jurisdiction and Standing

{¶12} In its first assignment of error, the city raises the issues of jurisdiction and standing. We address these issues in turn.

A. Justiciability Requirement for a Declaratory-Judgment Action

{¶13} By force of the Ohio Constitution, the subject-matter jurisdiction of the common pleas courts is limited to "justiciable matters." Ohio Constitution, Article IV, Section 4(B). Thus, in all actions, there must be an "actual controvers[y] between parties legitimately affected by specific facts," such that the court can "render [a] judgment[] which can be carried into effect." Fortner v. Thomas, 22 Ohio St.2d 13, 14, 257 N.E.2d 371 (1970). The "actual controversy" requirement applies to actions for declaratory judgment. Mid-American Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 9, cited in Mallory v. Cincinnati, 1st Dist. No. C-110563, 2012-Ohio-2861, ¶ 10.

{¶14} Here, the city argues that the plaintiffs-relators' declaratory-judgment claim did not present an actual controversy. The city contends that when the amended complaint was filed, the claim was hypothetical, because sufficientsignatures to place the referendum on the ballot had not yet been collected, and the city had not refused to put the referendum on the ballot.

{¶15} The common pleas court rejected the city's argument that the declaratory-judgment claim was speculative. The court found that the case presented a real and substantial controversy, upon which the plaintiffs-relators and the city had assumed adversarial positions, concerning the right to subject the emergency ordinance to referendum. And the court found that the right to referendum or any meaningful relief would be impaired if the plaintiffs-relators could not proceed before the city implemented the agreement authorized by the ordinance.

{¶16} We review the lower court's decision with respect to justiciability under an abuse of discretion standard. Arnott v. Arnott, 132 Ohio St.3d 401, 2012-Ohio-3208, 972 N.E.2d 586, ¶ 13, clarifying Mid-American Fire & Cas., 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142. An abuse of discretion occurs when a decision is unreasonable, arbitrary, or unconscionable. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An "unreasonable" decision is one that is not supported by a "sound reasoning process." Id.

{¶17} In making its "justiciability" determination, the court approached the...

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