Miyazawa v. City of Cincinnati

• Decision Date: 06 May 1993
• Docket Number: No. C-1-92-311.,C-1-92-311.
• Parties: Kimberly A. MIYAZAWA, Plaintiff, v. CITY OF CINCINNATI, et al., Defendant.
• Court: U.S. District Court — Southern District of Ohio

825 F. Supp. 816

Kimberly A. MIYAZAWA, Plaintiff, v. CITY OF CINCINNATI, et al., Defendant.

No. C-1-92-311.

United States District Court, S.D. Ohio, W.D.

May 6, 1993.

Eric Kearney, Cincinnati, OH, for plaintiff.

Mark Yurick, Cincinnati, OH, Philip Zorn, Jr., Cincy, OH, for defendant.

ORDER

CARL B. RUBIN, District Judge.

This matter is before the Court upon motions for cross summary Judgment (Docs. 15, 16, 17) and the replies thereto (Docs. 18, 19). The Court notes in passing that no person affected by the change in charter has filed any pleadings indicating opposition to such amendments.

FACTUAL BACKGROUND

The material facts are not at issue in this case. The Parties filed a Stipulation of Facts (Doc. 14) on Feb. 8, 1993.

At the general election held November 5, 1991, the electors of the City of Cincinnati were given an opportunity to repeal Section 2 of Article IX of the Charter of the City of Cincinnati and adopt Sections 2, and 12 of Article IX, which limited a member of city council to four consecutive two year terms. This Issue was approved by a majority of voters and became a portion of the City Charter. On April 7, 1992, the Plaintiff herein filed an action in District Court asserting that the adoption of that charter amendment violated her rights under the First and Fourteenth Amendments to the U.S. Constitution.

OPINION

In order to consider this matter in its appropriate context it, would be advisable to note some basic principles of law that apply herein.

In the State of Ohio the Constitution has established certain rights of municipalities. Under Article XVIII, Section 3:

Municipalities shall have the authority to exercise all powers of self government....

That Article further provides for what is referred to as "Home Rule." Subsection 7 provides:

Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this Article, exercise thereunder all powers of local self government. (Emphasis added)

The import of Article XVIII provides in any event that a municipal corporation shall have all powers of local self government. The only distinction being that a municipality may adopt a charter under Section 7.

The City of Cincinnati adopted a charter pursuant to Section 7 and has for the last seventy years conducted its municipal affairs in accordance with that charter. It has with some frequency amended and changed the method of electing members of City Council. The citizens of Cincinnati retain the right further to amend the City Charter and to provide for an elected legislature known as City Council in any fashion that a majority of the voters deem appropriate. The power to determine the nature of the legislature in a city charter may be traced back to the Constitution of Ohio which has been in effect for over eighty years.

The issues before this court are: 1) does the Plaintiff have standing to bring this matter and 2) if she does have standing, does the referendum violate her constitutional rights under the United States and Ohio Constitutions.

A. Standing

Article III of the United States Constitution provides that parties attempting to invoke federal court jurisdiction must allege an actual case or controversy. O'Shea v. Littleton, 414 U.S. 488, 493-94, 94 S.Ct. 669, 674-75, 38 L.Ed.2d 674 (1974); Flast v. Cohen, 392 U.S. 83, 94-101, 88 S.Ct. 1942, 1949-53, 20 L.Ed.2d 947 (1968). Thus, it is a threshold requirement that a plaintiff allege that she has "sustained or is in immediate danger of sustaining some direct injury." Massachusetts v. Mellon, 262 U.S. 447, 448, 43 S.Ct. 597, 588, 67 L.Ed. 1078 (1923). Furthermore, "the injury must be both `real and immediate', not `conjectural' or `hypothetical'." O'Shea v. Littleton, supra.

The Plaintiff argues that she has standing via the "capable of repetition, yet evading review" ripeness doctrine. Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). The city of Cincinnati and county defendants claim that Plaintiff is raising only a general voting issue on behalf of herself and that she is raising potential claims of council members for whom she has no right to raise such claims. In either case, her standing claim will not withstand constitutional scrutiny.

In the case of Zielasko v. State of Ohio, 873 F.2d 957 (6th Cir.1989), Judge Zielasko, who was over seventy years of age and a registered voter who supported Judge Zielasko, Ms. Bowman, brought an action challenging the constitutionality of an Ohio constitutional provision precluding the election or appointment of any judicial officer over the age of 70. The State argued that Zielasko and Bowman did not have standing because no action was taken to promote Zielasko's candidacy or to secure his place on the ballot. However, the Court determined that Zielasko had standing because to have promoted his candidacy would have caused him to run the risk of criminal penalty for `election falsification' as he would have had to sign a document declaring he was under 70. Accordingly, fear of some certain legal penalty may constitute an actual harm or injury sufficient to save a case from dismissal where dismissal is sought on the ground that no actual case or controversy exists. Zielasko, at 959. Bowman's standing was recognized through Zielasko.

In this case no such harm can be found. The Plaintiff is merely asserting a general complaint that a candidate she may want to vote for will not be eligible for the ballot. She has no close relationship to, or any personal stake in the claim made. At best Plaintiff shares a political harm with every other voter in the City of Cincinnati.

The Plaintiff's argument that this is an issue which is "capable of repetition, yet evading review" is unpersuasive. The City Charter is not a static document but rather one that will change from time to time. It is likely, indeed probable, that there are few changes within that charter that do not upset someone or some segment of the population of Cincinnati. It is not the function of the Federal courts to review each amendment voted on in a general election at the behest of the losing minority. Undoubtedly, there are voters who are unhappy with the outcomes from elections, however, their unhappiness does not rise to the level of a constitutional violation.

Accordingly, the Plaintiff has suffered no harm, nor will she suffer any harm greater than that of any other voter in Hamilton County or in the City of Cincinnati, that would provide her with standing in this litigation.

B. The Constitutionality of Term Limitations

Even if the Plaintiff were to be successful in showing standing, she would still fail on the merits of this case. The Plaintiff claims that Issue 5 is unconstitutional in that it violates her First and Fourteenth Amendment rights. In the inquiry into an Equal Protection claim, the threshold question is generally, should the term limitation be tested under the rational basis or compelling state interest standard of review. Manson v. Edwards, 482 F.2d 1076, 1077 (6th Cir.1973). "The Supreme Court has explained the two tests and their application to state legislation as follows:

The Equal Protection Clause allows the States to considerable leeway to enact legislation that may appear to affect similarly situated people differently. Legislatures are ordinarily assumed to have acted constitutionally. Under traditional equal protection principles, distinctions need only be drawn in such a manner as to bear some rational relationship to a legitimate state end. Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the States goals and only if no grounds can be conceived of to justify them. See, e.g. McDonald v. Board of Election Comm'rs, 394 U.S. 802, 808-809, 89 S.Ct. 1404, 1408, 22 L.Ed.2d 739 (1969); McGowan v. Maryland, 366 U.S. 420, 425-426, 81 S.Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961). We have departed from traditional equal protection principles only when the challenged statute places burdens upon "suspect classes" of persons or on a constitutional right that is deemed to be fundamental." San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 17, 93 S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973).

Thus, we must first determine whether the provisions challenged in this case deserve `scrutiny' more vigorous than that which the traditional principles would require. Clements v. Fashing, 457 U.S. 957, 962-963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982).

Zielasko v. State of Ohio, 693 F.Supp. 577 (N.D.Ohio 1988).

The problem this court faces is how to harmonize the Supreme Court rulings that Plaintiff is not a member of a suspect class under the Equal Protection Clause and therefore, is tested under the rational basis standard with the Supreme Court rulings in ballot access cases where a voter's First Amendment rights are weaved with Equal Protection claims. There is "no litmus-paper test for separating those restrictions which are valid from those that are invidious under the Equal Protection Clause." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). The Supreme Court, however, has provided guidance. In Anderson, et al. v. Celebrezze, Secretary of State of Ohio, 460 U.S. 780, 786, 103 S.Ct. 1564, 1568, 75 L.Ed.2d 547 (1983), the Court established the following analysis to be applied:

"Constitutional challenges to specific provisions of a State's election laws ... are to be resolved by the Court ... first considering the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. The Court must then identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court also must consider the extent to which those interests make it necessary to burden the

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