Warren ex rel. Bluedorn v. Hicks

• Decision Date: 29 December 1997
• Docket Number: No. 97-T-0008,97-T-0008
• Citation: 707 N.E.2d 15,124 Ohio App.3d 621
• Parties: CITY OF WARREN ex rel. BLUEDORN et al., Appellees, v. HICKS, Law Dir., et al., Appellees; Citizens-In-Action, Appellant. *
• Court: Ohio Court of Appeals

Page 621

124 Ohio App.3d 621

707 N.E.2d 15

CITY OF WARREN ex rel. BLUEDORN et al., Appellees, v. HICKS, Law Dir., et al., Appellees; Citizens-In-Action, Appellant. ^*

No. 97-T-0008.

Court of Appeals of Ohio Eleventh District, Trumbull County.

Decided Dec. 29, 1997.

Ohlin & Scher Co., L.P.A., and Joseph D. Ohlin, Warren, for plaintiffs-appellees.

Richards & Meola, and William J. Meola, Warren, for defendants-appellees.

L. Steven Robinson, Sr., Warren, for intervenor-appellant.

MARY CACIOPPO, Judge.

This is an appeal from the Trumbull County Court of Common Pleas. Appellant-defendant-intervenor, Citizens-in-Action, appeals from a judgment of the trial court granting the motion for preliminary and permanent injunction of appellees-relators, Samuel F. Bluedorn ("Bluedorn"), Charles E. Ohlin ("Ohlin"), and James R. Scher ("Scher"), to enjoin the adoption and enforcement of initiative ordinances re-setting the compensation of elected officials in Warren, Ohio, including appellees-defendants-respondents: Gregory V. Hicks ("Hicks"), Law Director; David Griffing ("Griffing"), Auditor; Patricia Leon-Games ("Leon-Games"), Treasurer; and Henry Angelo ("Angelo"), Mayor. The complaint, styled as a taxpayer's lawsuit, R.C. 733.59, and seeking injunctive relief, was filed by appellees-relators on behalf of the city of Warren ("plaintiff") against appellees-defendants-respondents Hicks, Griffing, Leon-Games, and Angelo on November 22, 1996. The trial court permitted appellant to intervene on November 27, 1996 as a co-defendant. In addition to seeking reversal of the lower court's judgment, appellant appeals the trial court's overruling of its motion for attorney fees.

On December 27, 1995, the Warren City Council, a non-charter municipality, passed ordinances granting pay increases for elected officials effective for their terms running from January 1, 1996 to December 31, 1999. ¹ The ordinances were passed via emergency legislation under R.C. 731.30, and were published on January 23, 1996 and January 30, 1996.

On November 5, 1996, the citizens of Warren, by a referendum initiated by appellant, passed initiative ordinances effectively re-setting the salaries of the elected officials at lower compensation levels.

On November 22, 1996, appellees-relators Bluedorn, Ohlin, and Scher, taxpayers of Warren and attorneys, filed a lawsuit on behalf of the city against appellees-defendants-respondents Hicks, Griffing, Leon-Games, and Angelo. ² In the complaint, the appellees-relators sought an order to (1) have the initiated ordinances declared invalid, void, unconstitutional, and an abuse of the corporate powers of the city, and (2) enjoin defendants, their employees, agents, and representatives from taking any action to implement the initiative ordinances passed by the citizens of Warren. The trial court conducted a hearing on November 27, 1996, at which time the court allowed appellant to intervene as co-defendant/co-respondent. Additional hearings were conducted on December 16 and 17, 1996.

On December 19, 1996, the trial court ruled in favor of appellees-relators, and ordered "that all four initiative ordinances of the intervening Defendants, Citizens in Action, be and the same are declared void, unconstitutional and in violation of [R.C. 731.07]; that Ordinance Numbers 10855/6195, 10859/6195, 10860/6195 and 10861/6195 passed by the Warren City Council are declared to be adopted and passed pursuant to law and remain the authority for establishing the salaries of the officials involved; that reference to the opinion of the Ethics Commission and the charges by the Citizens Committee of unethical behavior are misplaced in this case. If they have merit, those claims belong in another forum. The Ethics Commission's opinion to which the director made reference is not a legal finding but merely an advisory one."

Appellant filed a timely notice of appeal, and raises the following assignments of error:

"[1.] The trial court erred when it found that Warren City Ordinance Numbers 10855/6195, 10859/6195, 10860/6195 and 10861/6195 were adopted pursuant to law.

"[2.] The trial court erred to the prejudice [of appellant] when the court declared thee [sic ] initiative ordinances void[,] unconstitutional and in violation of [R.C.] 731.07.

"[3.] The trial court erred when it ruled that reference to the opinions of the Ohio Ethics [Commission] are [sic ] misplaced in this forum.

"[4.] The trial court erred to the prejudice of [appellant] when the court denied the grant of attorney fees to [appellant's] attorneys." ³

We will address the assigned errors out of order. Appellant's second assignment is not well taken. Section 20, Article II of the Ohio Constitution states that the salary of an officer shall not be changed during his/her existing term "unless the office be abolished." R.C. 731.07 provides, in part, that "[t]he salary of any officer of a city shall not be increased or diminished during the term for which he was elected or appointed." (Emphasis added.) In Creed v Hubbard (1992), 78 Ohio App.3d 461, 605 N.E.2d 415, affirmed, Hubbard ex rel. Creed v. Sauline (1996), 74 Ohio St.3d 402, 659 N.E.2d 781, ⁴ this court held:

"Whenever possible, the general law and municipal ordinances shall be harmonized. Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 377, 15 O.O.3d 450, 451-452, 402 N.E.2d 519, 521. If the two are in conflict, the general law controls procedural matters. Id., paragraph one of the syllabus. The municipality's law governs substantive local self-governmental matters. Id. at 383, 15 O.O.3d at 455-456, 402 N.E.2d at 524-525.

"When a city determines that its officers' compensation should be increased, that is a matter of local concern. However, the time for payment of that increase is a procedural matter and is governed by general laws, namely R.C. 731.07. This section prohibits in-term pay increases for a city official * * *." Id. at 463-464, 605 N.E.2d at 417.

Enforcement of the initiative ordinances would have changed the compensation of the elected officials in the midst of their respective terms, in derogation of Section 20, Article II of the Ohio Constitution, and in contradiction of R.C. 731.07. The Ohio Supreme Court stated in State ex rel. Singer v. Cartledge (1935), 129 Ohio St. 279, 285, 2 O.O. 194, 194, 195 N.E. 237, 239 that "[a]n initiated law or ordinance of a non-chartered city * * * has no greater sanctity than legislation adopted by a city council." Consequently, the trial court did not err by holding that the initiated ordinances were unconstitutional, void, and in violation of R.C. 731.07. Appellant's second assignment of error is without merit.

The first assigned error is baseless for three reasons. First, under Section 3, Article XVIII of the Ohio Constitution, a municipality has the authority to exercise all powers of local self-government and to adopt and enforce laws not in conflict with general laws. However, that authority is not unmitigated, as stated by the court in Benevolent Assn. v. Parma, at paragraph one of the syllabus:

"An Ohio municipality which has not adopted a charter for its government, as authorized by Section 7 of Article XVIII of the Constitution of Ohio, must, in the passage of legislation, follow the procedure prescribed by statutes enacted pursuant to the mandate of Section 2 of Article XVIII of the Constitution.* * * "

Appellant concedes that S. Euclid v. Bilkey (1933), 126 Ohio St. 505, 186 N.E. 101, upholding an ordinance effecting a pre-term pay increase, supports appellees' position. In Bilkey at paragraph one of the syllabus, the court held that "changes in the compensation of a village officer may be made subsequent to his election, if the ordinance making such change be regularly enacted and in effect prior to the date of the beginning of his term of office." See, also, Bry v. Rocky River (Apr. 1, 1976), Cuyahoga App. No. 34668, unreported, at 6, 1976 Ohio App. LEXIS 8315. Thus, the action taken by the city council in this case is not unprecedented.

Second, appellant relies on R.C. 731.13, which governs compensation and bonds of village officers and employees. However, the time requirement in that statute expressly applies to villages, not cities, and is not applicable in the case sub judice.

Third, the trial court here was compelled to defer to the council's legislative determination of the existence of an emergency. In State ex rel. Moore v. Abrams (1991), 62 Ohio St.3d 130, 580 N.E.2d 11, the court stated that " '[w]here an ordinance, passed by the council of a municipality, is declared to be an emergency in accordance with that municipality's laws and sets forth the reasons for the immediate necessity thereof, the legislative determination of the existence of an emergency is not reviewable by a court.' " Id. at 132, 580 N.E.2d at 12, quoting Jurcisin v. Cuyahoga Cty. Bd. of Elections (1988), 35 Ohio St.3d 137, 519 N.E.2d 347, paragraph three of the syllabus. The rationale for the rule is stated, in part, as follows:

" 'If there was in fact no emergency or if the reasons given for such necessity are not valid reasons, the voters have an opportunity to take appropriate action in the subsequent election of their representatives. However, the existence of an emergency or the soundness of such reasons is subject to review only by the voters at such a subsequent election of their representatives. They are not subject to review by the courts.' " Abrams at 132, 580 N.E.2d at 12, quoting State ex rel. Fostoria v. King (1950), 154 Ohio St. 213, 220-221, 43 O.O. 1, 4-5, 94 N.E.2d 697, 701.

In our opinion, the reasoning for the emergency in the case at bar is stated with sufficient detail, and it is not conclusory, illusory, or tautological, in derogation of the rule set forth in Walsh v. Cincinnati City Council (1977), 54 Ohio App.2d 107, 111, 8 O.O.3d 208, 210-211, 375 N.E.2d 811, 814. The preamble to each ordinance in this case states that "an...