City of Cincinnati ex rel. Smitherman v. City of Cincinnati

934 N.E.2d 985, 188 Ohio App. 3d 171
CourtOhio Court of Appeals
DecidedJune 18, 2010
DocketNo. C-090502
StatusPublished
Cited by1 cases

This text of 934 N.E.2d 985 (City of Cincinnati ex rel. Smitherman v. City of Cincinnati) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Cincinnati ex rel. Smitherman v. City of Cincinnati, 934 N.E.2d 985, 188 Ohio App. 3d 171 (Ohio Ct. App. 2010).

Opinion

Per Curiam.

{¶ 1} Relator-appellee, Christopher Smitherman, instituted this taxpayer action seeking to restrain the abuse of corporate powers by the city of Cincinnati, acting [174]*174through its city council, in applying newly enacted Ordinance 419-2008 to require the consent of the council for any appointment by the city manager to the board of the local metropolitan housing authority. In addition, Smitherman sought a declaratory judgment that the city manager has the full right and authority under R.C. 3735.27(B)(1)(b) to appoint members to the board, and that the city council has no authority to review, approve, or otherwise limit any such appointment.

{¶ 2} Respondent-appellant, the city of Cincinnati, now appeals the trial court’s judgment granting declaratory and injunctive relief, as well as attorney fees, to Smitherman.

The Background

{¶ 3} The Cincinnati Metropolitan Housing Authority (“CMHA”) is governed by a five-member board of commissioners. Pursuant to R.C. 3735.27(B)(1)(b), one member is appointed by the probate court, one member is appointed by the court of common pleas, one member is appointed by the board of county commissioners, and two of the board’s members are appointed by the chief executive officer of the most populous city in the district. With respect to the CMHA, the city of Cincinnati is the most populous city in the district, and its chief executive officer is the city manager. Thus, two of the CMHA board members are appointed by the city manager, each for a five-year term.

{¶ 4} On December 7, 2008, the five-year term of Don Driehaus, one of the two CMHA board members appointed by Cincinnati’s city manager, expired, thereby making that seat available for an appointment.

{¶ 5} On December 10, 2008, at a meeting of Cincinnati’s city council, seven council members presented a motion seeking the city manager’s reappointment of Driehaus to another five-year term as a CMHA board member. But the city’s mayor ruled the motion out of order, so no vote was taken on it.

{¶ 6} A second motion seeking the city manager’s reappointment of Driehaus was presented and approved by the council. In addition, the council considered and passed Ordinance No. 419-2008, which required the council’s confirmation of any person appointed by the city manager to boards or commissions not within the city’s executive operations. In the ordinance itself, the council recognized that “there is currently no procedure in place which allows [c]ouncil to confirm appointments made by the [c]ity [m]anager pursuant to state or local law.”

{¶ 7} The ordinance stated the following: “Section 1. That council hereby requires that as permitted by law, with regard to any individuals who are being considered for appointment by the City Manager to any boards or commissions independent of the administrative or executive operations of the City of Cincinnati, the City Manager shall initially submit the names of such individuals to City [175]*175Council at least seven days prior to appointment to allow for Council confirmation of such individuals, but providing that such confirmation procedure would not be applicable to any appointments related to the executive and administrative authority of the City Manager to direct the operations of the City under his or her authority under the Charter of the City of Cincinnati.

{¶ 8} “Section 2. That this ordinance shall be an emergency measure necessary for the preservation of the public peace, health, safety and general welfare and shall * * * be effective immediately. The reason for the emergency is the immediate need to ensure that a procedure allowing for Council confirmation of applicable appointments to be made by the City Manager be implemented at the earliest possible time.”

{¶ 9} The city manager, since his hiring in August 2006, had not appointed anyone to any board or commission independent of the internal administrative or executive functions of the city. Moreover, the city stipulated that the city manager was not aware of any such boards to which he would make appointments in his capacity as the city manager.

{¶ 10} In a memorandum dated December 11, 2008, the city solicitor advised Cincinnati’s mayor that the city council “may not enact legislation that contradicts a mandatory state law regarding an appointment procedure for a state-created entity” like CMHA. The solicitor warned that the city’s attempt to deviate from the state-mandated method of appointment to the CMHA would expose the city to litigation regarding the legality of the appointment.

{¶ 11} On December 12, 2008, the city manager appointed Lacretia Carter to the board of the CMHA. The position to which Carter was appointed was not the seat left vacant by Driehaus.

{¶ 12} On January 15, 2009, Richard Rust, the interim executive director of the CMHA, advised the city that the board refused to seat Carter as a board member “until either (1) the court resolves the controversy surrounding the city ordinance in the Smitherman suit, or (2) City Council approves her appointment.” Rust notified Carter that until the lawsuit was resolved, “it is presumed that the [c]ouncil’s ordinance is lawful and that CMHA must abide by what appears to be their decision to be the official appointing body.”

{¶ 13} At some point, when it was determined that Carter had been appointed three days before the effective date of Ordinance 419-2008, the CMHA withdrew its earlier refusal to seat Carter on the board.

{¶ 14} On December 15, 2008, relator-appellee, Christopher Smitherman, tendered a written request to the city solicitor to apply, in the name of the city, for an injunction under R.C. 733.56 to restrain the city council from illegally requiring the city manager to submit names of prospective CMHA board [176]*176appointees to the council for review and confirmation. Despite his earlier opinion that the council’s attempt to usurp the city manager’s appointment authority was improper and would expose the city to litigation, the city solicitor rejected Smitherman’s request. So Smitherman instituted a taxpayer suit in his own name.

{¶ 15} In its motion to dismiss the action, the city indicated to the court that it was “willing to participate in a proper declaratory judgment with all necessary parties.” The trial court denied the motion.

{¶ 16} The trial court granted summary judgment in favor of Smitherman. In addition, the court entered a permanent injunction enjoining the city from undertaking any efforts to apply or otherwise enforce Ordinance 419-2008 as it relates to appointments by the city manager to the board of the CMHA. The court awarded attorney fees to Smitherman. This appeal followed.

{¶ 17} In four assignments of error, the city argues that the trial court erred by (1) granting attorney fees, (2) denying the city’s motion to dismiss, (3) granting summary judgment in favor of Smitherman, and (4) issuing an injunction. We address the assignments of error out of order.

{¶ 18} In its second assignment of error, the city argues that the trial court erred by failing to dismiss Smitherman’s action. The city argues that Smitherman had no personal stake in the case’s outcome and, therefore, had no standing to obtain a declaratory judgment. We are not persuaded.

Standing

{¶ 19} A taxpayer has standing to enforce a public right, regardless of a private or personal benefit.1

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Cite This Page — Counsel Stack

Bluebook (online)
934 N.E.2d 985, 188 Ohio App. 3d 171, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-cincinnati-ex-rel-smitherman-v-city-of-cincinnati-ohioctapp-2010.