McQueen v. Dohoney

2013 Ohio 2424

• Court: Ohio Court of Appeals
• Decided: June 12, 2013
• Docket: C-130196
• Status: Published

Opinion

[Cite as McQueen v. Dohoney, 2013-Ohio-2424.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

LISA MCQUEEN, : APPEAL NO. C-130196 TRIAL NO. A-1301595 SHIRLENE BRITTON, :

PETE WITTE, : O P I N I O N.

EDWARD D. HYDE, :

JOHN BRANNOCK, :

and :

DOUGLAS B. ROBINSON, JR., :

Plaintiffs-Appellees, :

CITY OF CINCINNATI EX REL. LISA : MCQUEEN, SHIRLENE BRITTON, PETE WITTE, EDWARD D. HYDE, : JOHN BRANNOCK, and DOUGLAS B. ROBINSON, JR., :

Relators-Appellees, :

vs. :

MILTON R. DOHONEY, JR., : CITY MANAGER, : and : THE CITY OF CINCINNATI, : Defendants-Respondents- Appellants. : OHIO FIRST DISTRICT COURT OF APPEALS

Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded with Instructions

Date of Judgment Entry on Appeal: June 12, 2013

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.

2 OHIO FIRST DISTRICT COURT OF APPEALS

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 the

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ordinance 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.

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{¶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.

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{¶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 sufficient

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signatures 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

issue pragmatically, considering both the positions taken by the parties and the

inadequacy of a remedy resulting from a delay in challenging the ordinance, which

became effective immediately. We hold that the common pleas court engaged in a

sound reasoning process and did not abuse its discretion in determining that the

plaintiffs-relators’ claim was justiciable.

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B. Jurisdiction for a Statutory Taxpayer Action

{¶18} Generally, R.C. 733.59 authorizes a taxpayer of a municipality to

bring an action in his own name, on behalf of the municipal corporation, to vindicate

a public right when a city or its officials refuse to do so. See R.C. 733.59. A taxpayer

with “good cause” may be allowed his costs, and for a prevailing taxpayer, those costs

may include his attorney fees.1 R.C. 733.61.

{¶19} But R.C. 733.59 prevents a court from entertaining this derivative

action unless the city’s law director has rejected the taxpayer’s written demand on

the city’s law director to pursue the action, and the taxpayer has provided security for

the costs of the proceedings. Typically, these requirements are jurisdictional

prerequisites. See State ex rel. Fisher v. City of Cleveland, 109 Ohio St.3d 33, 2006-

Ohio-1827, 845 N.E.2d 500, ¶ 11.

{¶20} The city argues that the cause was not properly brought as a statutory

taxpayer’s action because the plaintiffs-relators had failed to comply with the

security and demand requirements of R.C. 733.59. Because we agree that the

plaintiffs-relators failed to comply with the security requirement of R.C. 733.59, we

do not address whether the demand requirement was met.

{¶21} The record demonstrates that after adding the statutory taxpayer

claim, the plaintiffs-relators represented to the court by motion that they had

deposited $325 with the Hamilton County Clerk of Courts as security for costs in

accordance with the schedule set forth by the local rule. The plaintiffs-relators then

asked the court to accept the $325 deposit as sufficient security to meet the

requirement of R.C. 733.59. The common pleas court did so. But the clerk’s notation

1 The common pleas court did not address the issue of costs in its order but certified that there “[wa]s no just cause for delay.”

8 OHIO FIRST DISTRICT COURT OF APPEALS

on the appearance docket demonstrates that plaintiffs-relators failed to deposit the

promised funds or any funds with the clerk. Thus, they failed to satisfy the

jurisdictional requirement of R.C. 733.59.

{¶22} The plaintiffs-relators argue that the city waived this issue because it

failed to raise it in the court below. But even if we were to hold that another party

could waive this jurisdictional prerequisite, we could not find a waiver in this case

because the city raised the failure to post security as an affirmative defense in its

amended answer, and the plaintiffs-relators represented to the court that they had

paid the deposit.

{¶23} The plaintiffs-relators intimate that they cured the deficiency by

paying the $325 deposit after the common pleas court had entered its judgment. But

the record certified on appeal does not demonstrate that any deposit was made.

Therefore, we do not reach the issue of whether the plaintiffs-relators could have

corrected the defect in that manner.

{¶24} Because the plaintiffs-relators failed to satisfy the security

requirement of R.C. 733.59, we hold that the action was not properly brought under

that statute. See State ex rel. Citizens for a Better Portsmouth v. Sydnor, 61 Ohio

St.3d 49, 54, 572 N.E.2d 649 (1991). Accordingly, the statutory provision authorizing

an award of costs for a R.C. 733.59 action is inapplicable.

C. Vindication of a Public Right

{¶25} Finally, the city argues that the plaintiffs-realtors lacked standing to

bring their taxpayer claim for injunctive relief under R.C. 733.59 or the common law

because they did not seek to vindicate a public right, but merely sought to benefit

themselves.

9 OHIO FIRST DISTRICT COURT OF APPEALS

{¶26} To have standing to pursue relief for all taxpayers, the party must

demonstrate that he is volunteering “to enforce a right of action on behalf of and for

the benefit of the public.” State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 215

N.E.2d 592 (1966), paragraph two of the syllabus; State ex rel. Phillips Supply Co. v.

City of Cincinnati, 2012-Ohio-6096, 985 N.E.3d 257, ¶ 17 (1st Dist.); Trustees of

Prairie Twp. v. Garver, 41 Ohio App. 232, 238, 180 N.E. 747 (5th Dist.1931). Here,

the plaintiffs-relators argued that the public’s right to a referendum would be

negatively affected if the city was not enjoined from acting upon Ordinance No. 56-

2013.

{¶27} We agree that the right to referendum is a public right and that the

remedy requested, which will allow for an election on the issue, will benefit a public

interest. See Nimon at 4. Therefore, the plaintiffs-relators have common law

taxpayer standing because they seek injunctive relief to protect the public’s right to

referendum.

{¶28} In conclusion, we sustain the first assignment of error in part,

because the common pleas court erred by allowing the action to proceed as a

statutory taxpayer action, instead of a common law action, when the plaintiffs-

relators failed to give security for the costs of the case.

III. Is Ordinance No. 56-2013 Subject to Referendum?

{¶29} In its second assignment of error, the city argues that the common

pleas court erred in finding that the validly enacted emergency ordinance is subject

to referendum under the Charter. It maintains that the Charter incorporates state-

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law provisions that exempt emergency municipal legislation from referendum.2

A. Municipal Referendum under State Law

{¶30} The Ohio Constitution, by amendment in 1912, expressly “reserves” to

the citizens of each municipality in the state the powers of initiative and referendum.

Ohio Constitution, Article II, Section 1f, provides:

The initiative and referendum powers are hereby reserved to the

people of each municipality on all questions which such

municipalities may now or hereafter be authorized by law to

control by legislative action; such powers shall be exercised in the

manner now or hereafter provided by law. (Emphasis added.)

{¶31} The constitution limits the reserved powers to legislative action, but it

does not otherwise explicitly define the substantive or procedural aspects of these

reserved powers that will allow the citizens of municipalities to carry the powers into

effect. Buckeye Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539,

543-544, 697 N.E.2d 181 (1998). Instead, through the use of the emphasized

language, it leaves that responsibility to other sources of “law,” including state

statutes or municipal charters. See State ex rel. Bramblette v. Yordy, 24 Ohio St.2d

147, 148-149, 265 N.E.2d 273 (1970); Dubyak v. Kovach, 164 Ohio St. 247, 249, 129

N.E.2d 809 (1955); Dillon v. Cleveland, 117 Ohio St. 258, 276, 158 N.E. 606 (1927);

Shyrock v. Zanesville, 92 Ohio St. 375, 384, 110 N.E. 937 (1915).

{¶32} Ohio has statutes on municipal initiatives and referenda to carry into

effect the constitutional provision. See Yordy at 149; Dubyak at 249-250. Generally,

2 The plaintiffs-relators first raised the argument that the Charter subjected all municipal legislation to referendum, including valid emergency ordinances, after filing the amended complaint. The parties and the trial court proceeded as though the complaint had been constructively amended to include this claim for declaratory relief. We proceed accordingly.

11 OHIO FIRST DISTRICT COURT OF APPEALS

these provisions apply by default if a municipality has no charter or no charter

provisions on the matter. Only the power of municipal referendum—the process of

allowing electors to accept or reject legislation—is at issue in this appeal.

{¶33} R.C. 731.29 in pertinent part states:

Any ordinance or other measure passed by the legislative authority

of a municipal corporation shall be subject to the referendum

except as provided by section 731.30 of the Revised Code. No

ordinance or other measure shall go into effect until thirty days

after it is filed with the mayor of a city or passed by the legislative

authority in a village, except as provided by such section.

{¶34} R.C. 731.30 in pertinent part reads:

* * * [E]mergency ordinances or measures necessary for the

immediate preservation of the public peace, health, or safety in

such municipal corporation, shall go into immediate effect. Such

emergency ordinances or measures must, upon a yea or nay vote,

receive a two-thirds vote of all the members elected to the

legislative authority, and the reasons for such necessity shall be set

forth in one section of the ordinance or other measure.

{¶35} These statutes provide, as the common pleas court recognized in its

decision, that a validly enacted emergency municipal ordinance is not subject to

referendum.3 Instead, it is immediately effective. See R.C. 731.29 and 731.30; State

ex rel. Webb v. Bliss, 99 Ohio St.3d 166, 168-169, 2003-Ohio-3049, 789 N.E.2d 1102

3 R.C. 731.30 additionally exempts from the operation of the referendum ordinances or measures providing for appropriation for current expenses and certain ordinances or measures for street improvements.

12 OHIO FIRST DISTRICT COURT OF APPEALS

(“R.C. 731.30 provides that emergency ordinances ‘shall go into immediate effect,’

thereby exempting them from referendum.”). Conversely, under the statute, a

municipal ordinance that is subject to referendum has a delayed effective date, which

allows for the exercise of the power of referendum. See R.C. 731.29.

B. Cincinnati’s Charter

{¶36} The citizens of Cincinnati have adopted a charter form of government,

as authorized by the Ohio Constitution, Article XVIII, Section 7 (“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.”). Section 3 of the same Article provides as follow: “Municipalities

shall have authority to exercise all powers of local self-government and to adopt and

enforce within their limits such local police, sanitary and other similar regulations, as

are not in conflict with the general laws.”

{¶37} Charter municipalities such as Cincinnati have the power to adopt

referendum provisions that differ from the state law provisions, and these provisions

will be enforced if they do not conflict with Ohio’s Constitution. See Dillon, 117 Ohio

St. 258, 158 N.E. 606, at paragraph three of the syllabus; Buckeye Community Hope

Found., 82 Ohio St.3d at 543-544, 697 N.E.2d 181; see also R.C 731.41. This includes

the power to provide for referendum on emergency legislation. See State ex rel.

Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485, 955 N.E.2d 363,

¶ 42; State ex rel. Snyder v. Bd. of Elections, 78 Ohio App. 194, 201, 69 N.E.2d 634

(6th Dist.1946).

13 OHIO FIRST DISTRICT COURT OF APPEALS

1. Express Adoption of State Law on Referendum and No Express Provision for Referendum on Emergency Ordinances

{¶38} Cincinnati’s charter does not contain comprehensive provisions on

initiative and referendum. But the Charter provides in Article II, Section 3 as

follows:

The initiative and referendum powers are reserved to the

people of the city on all questions which the council is authorized

to control by legislative action; such powers shall be exercised in

the manner provided by the laws of the state of Ohio. Emergency

ordinances upon a yea and nay vote must receive the vote of the

majority of the members elected to the council, and the declaration

of an emergency and the reasons for the necessity of declaring said

ordinances to be emergency measures shall be set forth in one

section of the ordinance, which section shall be passed only upon a

yea and nay vote of two-thirds of the members elected to the

council upon a separate roll call thereon. If the emergency section

fails of passage, the clerk shall strike it from the ordinance and the

ordinance shall take effect at the earliest time allowed by law.

{¶39} The plaintiffs-relators argue that the first sentence of Article II,

Section 3 should be read to provide for referendum on emergency legislation. They

contend that the sentence contains “two separate and distinct provision[s],”

separated by a semicolon. Thus, they read the first clause as declaring the right of

referendum on “all” municipal legislation, without any exceptions. The second

clause, they contend, indicates deference to state law for “the manner” in which that

reserved right or power is to be exercised, but this deference only includes the

14 OHIO FIRST DISTRICT COURT OF APPEALS

procedural state law provisions pertaining to the exercise of the power, and not the

substantive provisions that provide the exceptions to referendum.

{¶40} The common pleas court concluded that because the Charter referred

to “all” legislation and did not expressly exempt from referendum emergency

ordinances, the Charter created a right of referendum as to an emergency ordinance.

The court also read the language after the semicolon—“exercised in the manner

provided by the laws of Ohio”—as merely incorporating the procedural methods set

forth in state law for seeking a referendum. After stating that the provision was “by

no means free from ambiguity,” the court construed the ambiguity liberally to permit

the exercise of the referendum power.

2. The Scope of the Power of Referendum in Cincinnati

{¶41} The interpretation of a city’s charter is an issue of law. State ex rel.

Paluf v. Feneli, 69 Ohio St.3d 138, 142, 630 N.E.2d 708 (1994). We review issues of

law de novo, without deference to the trial court’s decision. See Ceccarelli v. Levin,

127 Ohio St.3d 231, 2010-Ohio-5681, 938 N.E.2d 342, ¶ 8.

{¶42} In construing the Charter, we apply the general rules of statutory

construction, as the charter does not require otherwise with respect to the issue in

this case. See, e.g., State ex rel. Comm. For the Charter Amendment v. City of

Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 28. We are

mindful that “[w]ords and phrases shall be read in context and construed according

to the rules of grammar and common usage. Words and phrases that have acquired

a * * * particular meaning * * * shall be construed accordingly.” R.C. 1.42. As a

result, we must construe the charter section as a whole and give effect to every part

and sentence. See Cincinnati v. Ohio, 1st Dist. No. C-110680, 2012-Ohio-3162, ¶ 9.

15 OHIO FIRST DISTRICT COURT OF APPEALS

{¶43} Further, we are directed by the case law that has developed

specifically on interpreting charter initiative and referendum provisions. Generally,

where a charter specifically adopts state-law initiative and referendum provisions

and does not set forth conflicting provisions on the same matter, the state law

controls. See Nimon, 6 Ohio St.2d 1, 215 N.E.2d 592, at paragraph five of the

syllabus; State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 477, 764 N.E.2d

971 (2002); Citizens for a Better Beachwood v. Cuyahoga Cty. Bd. of Elections, 62

Ohio St.3d 167, 580 N.E.2d 1063 (1991). See also R.C. 731.41.

{¶44} Where a charter is ambiguous concerning the right of referendum, it

must be read in favor of the right of referendum. Julnes, 130 Ohio St.3d 6, 2011-

Ohio-4485, 955 N.E.2d 363, at ¶ 43; State ex rel. Laughlin v. James, 115 Ohio St.3d

231, 2007-Ohio-4811, 874 N.E.2d 1145, ¶ 25. But there is no need to construe a

charter provision on referendum liberally where the provision’s meaning is clear.

See Ditmars at 476.

3. Cincinnati’s Charter is not Ambiguous

{¶45} In Julnes, the Ohio Supreme Court found that the charter for the city

of South Euclid contained an ambiguity with respect to the citizens’ right of

referendum on emergency ordinances. Citing the rule that municipal referendum

provisions must be liberally construed in favor of referendum, the Supreme Court

determined that the emergency legislation was not excepted from the referendum

requirement. Id. at ¶ 43. The South Euclid charter language found ambiguous in

Julnes provided as follows:

Ordinances providing for a tax levy or for improvements

petitioned for by the owners of a majority of the feet front of the

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property benefited and to be specially assessed therefore, and

appropriation ordinances limited to the subject of appropriations

shall not be subject to referendum, but except as otherwise

provided by the Constitution or general laws of the State of Ohio,

all other ordinances and resolutions, including, but not limited to,

emergency ordinances and resolutions shall be subject to

referendum; provided, however, that emergency ordinances and

resolutions shall go into effect at the time indicated therein.

(Emphasis added.)

Julnes at ¶ 38. In determining that an ambiguity existed, the court was persuaded by

the fact that the charter contained a provision specifically subjecting emergency

legislation to referendum, and that that provision would be rendered meaningless if

the general provisions of R.C. 731.29 and 731.30, exempting emergency municipal

legislation from referendum, were read into the charter provisions. Id. at ¶ 43.

{¶46} Unlike the charter in Julnes, Cincinnati’s charter does not contain a

specific provision subjecting emergency municipal legislation to referendum.

Instead, Cincinnati’s charter, consistent with the constitutional provision on the

same subject, sets forth the reservation of the power of referendum and then

references “state law” for the “manner to exercise” the power.4

{¶47} A charter is a governing instrument, like a constitution. When

introducing the initiative and referendum powers of its citizenry, Cincinnati’s charter

uses the same sentence construction and almost the same phraseology as Ohio

4The Charter also includes a general provision that provides for the application of state laws that are not inconsistent with the Charter and not declared inoperative by ordinance of city council. Charter of the City of Cincinnati, Article II, Section 1.

17 OHIO FIRST DISTRICT COURT OF APPEALS

Constitution, Article II, Section 1f. And at the time Cincinnati adopted its charter,

the Ohio Supreme Court in Shyrock v. Zanesville had read the phrase “such powers

shall be exercised in the manner,” as found in Ohio Constitution, Article II, Section

1f, to encompass both substantive and procedural limitations on the power of

municipal referendum, where those limitations were provided by law. (Emphasis

added.) Shyrock, 92 Ohio St. at 384, 110 N.E. 937. The Shyrock court held this

notwithstanding that the phrase was part of a clause in a compound sentence that

was preceded by a clause reserving the initiative and referendum powers “on all

questions” of municipal “legislative action.” Id. The Supreme Court continues to

read the compound sentence in this way. See Taylor v. City of London, 88 Ohio St.3d

137, 143, 723 N.E.2d 1089 (2000); Yordy, 24 Ohio St.2d at 148-149, 265 N.E.2d 273.

4. Charter Provisions Must Be Read As A Whole and in Context

{¶48} Importantly, charter provisions, like statutes and constitutions, must

be read as a whole and in context. See MacDonald v. Bernard, 1 Ohio St.3d 85, 88-

89, 438 N.E.2d 410 (1982). We are not permitted—as the common pleas court did,

and Judge Dinkelacker’s dissent does—to look at the first sentence and disassociate it

from the context of the entire section.

{¶49} The first sentence of Article II, Section 3 of the Charter provides that

“The initiative and referendum powers are reserved to the people of the city on all

questions which the council is authorized to control by legislative action; such

powers shall be exercised in the manner provided by the laws of the state of Ohio.”

The remaining provisions of Article II, Section 3 of the Charter set forth the specific

requirements for the passage of “emergency ordinances” in Cincinnati. These

provisions alter the statutory procedures.

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{¶50} The placement of these provisions immediately after the sentence

allowing the exercise of the right of referendum in the manner provided by state law

is a confirmation that the state-law exception for emergency legislation applies and

validly enacted emergency ordinances are not subject to referendum in Cincinnati.

{¶51} Language in Article II, Section 6 of the Charter also supports our

conclusion that not all municipal legislation is subject to referendum in Cincinnati.

That section addresses the procedure to be followed if the mayor vetoes legislation,

and it provides in relevant part as follows:

If six members of the council vote affirmatively to override the

veto and enact the legislation, it becomes law notwithstanding the

mayoral veto. It shall be effective according to its terms upon the

affirmative vote and, if otherwise subject to referendum, the time

for referendum on the legislation shall begin to run again from that

date. (Emphasis added.)

Charter of the City of Cincinnati, Article II, Section 6.

{¶52} We must interpret the Charter within the framework of established

rules of construction and to avoid an absurd result. To that end, the only reasonable

conclusion at which we can arrive, after reviewing the Charter, is that the state-law

provisions on referendum are to be followed, except where the Charter sets forth

specific charter provisions that otherwise control. Because the Charter does not

specifically provide for referendum on emergency legislation, the state-law

provisions that preclude emergency municipal legislation from referendum apply.

{¶53} Thus, the facts of this case are wholly distinguishable from the facts in

Julnes. The general rule providing for the liberal construction of municipal

19 OHIO FIRST DISTRICT COURT OF APPEALS

referendum provisions does not apply in this case because the Charter’s meaning is

unequivocal and definite.5 See Ditmars, 94 Ohio St.3d at 476, 764 N.E.2d 971

(holding that there is no need to construe charter provision on initiative liberally

where meaning is “unequivocal.”). 5. 90 Years of Exempting Emergency Municipal Legislation from Referendum

{¶54} Our reading of Article II, Section 3 of the Charter is supported by the

case law in this district. For almost 90 years, Hamilton County courts ruling on

issues related to Article II, Section 3 of the Charter have interpreted that provision

consistent with the city’s position that the citizens of Cincinnati did not reserve the

power to approve or reject emergency municipal legislation by popular vote. In

Walsh v. Cincinnati City Council, 54 Ohio App.2d 107, 108-109, 375 N.E.2d 811 (1st

Dist.1977), we recognized that the Charter precluded the right of referendum on a

valid emergency ordinance, although we held that the ordinance “lack[ed] validity as

an emergency enactment.” Id. at 112.

{¶55} The common pleas court made a similar observation in Schultz v.

Cincinnati, 13 Ohio Op. 186, 28 Ohio Law Abs. 29, 1938 Ohio Misc. LEXIS 906, *7

(C.P.1938) (“By the adoption of [section] 2 of the ordinance [, which contains an

emergency clause,] the people of the City of Cincinnati are denied the right to express

their views concerning this ordinance by the referendum, for by operation of

[section] 2 of the ordinance[,] it becomes immediately effective.”). See also Sentinel

5 The city attached to its appellate brief a document captioned “Report of Charter Amendment

Commission.” The plaintiffs-relators contend that the city is impermissibly attempting to add to the record before the trial court. See, e.g., State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500, (1978), syllabus; Steinriede v. City of Cincinnati, 1st Dist. No. C-100289, 2011-Ohio-1480, ¶ 10. Because we find no ambiguity in the Charter language, we may not consider the “history” of the Charter. See R.C. 1.49. Therefore, we need not determine whether that document is properly before this court.

20 OHIO FIRST DISTRICT COURT OF APPEALS

Police Assn. v. Cincinnati, 1st Dist. No. C-940610, 1996 Ohio App. LEXIS 1512, *12

(Apr. 17, 1996) (citing R.C. 731.30 for the proposition that valid emergency

ordinances passed by Cincinnati’s city council become effective immediately);

Cincinnati ex rel. Newberry v. Brush, 1st Dist. No. C-830674, 1984 Ohio App. LEXIS

8835, *5 (Jan. 11, 1984) (stating that where city council passes an emergency

ordinance, but “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.”).

{¶56} We are not persuaded that Cincinnati’s Charter should be read

otherwise.

C. Is Ordinance 56-2013 a Valid Emergency Ordinance?

{¶57} Having determined that the Charter excludes valid emergency

ordinances from referendum, we must address the plaintiffs-relators’ claim that

Ordinance 56-2013 is not a valid emergency ordinance.

{¶58} Generally, judicial review concerning the validity of emergency

ordinances is limited to issues such as whether the legislation received the necessary

votes for passage and whether the legislation contained an emergency clause that set

forth the reasons for the emergency legislation. See State ex rel. Emrick v. Wasson,

62 Ohio App.3d 498, 505-506, 576 N.E.2d 814 (2d Dist.1990).

{¶59} If validly enacted, “the existence of an emergency or the soundness of

[the] reasons” presented for “declaring the emergency” is not within the purview of a

reviewing court. State ex rel. Fostoria v. King, 154 Ohio St. 213, 221, 94 N.E.2d 697

(1950). Rather, those issues are “subject to review only by the voters at such a

subsequent election of their representatives.” Id.; Bliss, 99 Ohio St.3d 166, 2003-

21 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio-3049, 789 N.E.2d 1102, at ¶ 12, citing Jurcisin v. Cuyahoga Cty. Bd. of

Elections, 35 Ohio St.3d 137, 519 N.E.2d 347 (1988), paragraph three of the syllabus;

Brush, 1st Dist. No. C-830674, 1984 Ohio App. LEXIS 8835, at *4-5.

1. Did the Emergency Ordinance Pass with Sufficient Votes?

{¶60} The ordinance at issue first passed with a simple majority, by a vote of

5 to 4. At that time, it did not contain an emergency clause. Council then voted on

whether to include an emergency clause in the ordinance, and that section, which

passed by a vote of 6 to 3, received two-thirds of the vote.

{¶61} The plaintiffs-relators contend that council’s method of passing the

legislation did not comply with the requirement in R.C. 731.30 that “emergency

ordinances or measures must * * * receive a two-thirds vote” because it is the entire

ordinance, not just the emergency clause, that must receive the two-thirds vote. The

city counters that the Charter was amended in 1994 to provide for the procedure

used by council.

{¶62} Contrary to R.C. 731.30, the Charter, in Article II, Section 3, provides

the following:

Emergency ordinances upon a yea and nay vote must receive

the vote of a majority of the members elected to council, and the

declaration of an emergency and the reasons for the necessity of

declaring said ordinances to be emergency measures shall be set

forth in one section of the ordinance, which section shall be passed

only upon a yea and nay vote of two-thirds of the members elected

to the council upon a separate roll call thereon.

22 OHIO FIRST DISTRICT COURT OF APPEALS

As we have previously held, the Charter alters in part the statutory procedures for

passing emergency ordinances by allowing for a separate roll-call vote on the

emergency clause. A 1994 amendment to the Charter brought additional changes.

This amendment provides that emergency ordinances must pass by a majority of

council, and that the separate roll-call vote on the emergency clause must produce

affirmative votes from two-thirds of council members.

{¶63} We hold that city council validly enacted Ordinance 56-2013 when

five members voted in favor of the ordinance and six members voted in favor of the

emergency clause. Accordingly, we reject the plaintiffs-relators’ claim that the

emergency ordinance is invalid for this reason.

2. Is the Language used in the Emergency Section Defective?

{¶64} The plaintiffs-relators also challenged the validity of the ordinance as

emergency legislation on the grounds that the emergency clause does not contain

language identical to the language in R.C. 731.30, which limits emergency ordinances

to those that are “necessary for the immediate preservation of the public peace,

health, or safety in [the] municipal corporation.”

{¶65} The emergency clause at issue, found in section 5 of the ordinance,

provides the following:

That this ordinance shall be an emergency measure necessary

for the preservation of the public peace, health, safety and general

welfare and shall, subject to the terms of Article II, Section 6 of the

Charter, be effective immediately. The reason for the emergency is

the immediate need to implement the budgetary measures

contemplated during the December 2012 City of Cincinnati budget

23 OHIO FIRST DISTRICT COURT OF APPEALS

determinations in order to avoid significant personnel layoffs and

budget cuts and resulting reductions in City services to Cincinnati

residents related to the City’s General Fund, which administrative

actions would be needed to balance the City’s FY 2013 and 2014

budgets in the absence of revenue generated by implementation of

the modernization of the City of Cincinnati parking system as

described herein.

{¶66} The city again argues that the Charter, which sets forth specific

requirements for the content of the emergency clause that are different from those in

R.C. 731.30, controls. Article II, Section 3 of the Charter requires only that “the

declaration of an emergency and the reasons for the necessity of declaring said

ordinances to be emergency measures shall be set forth in one section of the

ordinance.” The city further contends that the plaintiffs-relators’ challenge is

unfounded, because even when applying R.C. 731.30, courts have invalidated

emergency clauses only where the language providing the reason for the emergency

is purely illusory, conclusory, or tautological. See Laughlin, 115 Ohio St.3d 231,

2007-Ohio-4811, 874 N.E.2d 1145, at ¶ 28. And the Ohio Supreme Court has held an

emergency clause is not invalid merely because it does not include a conclusory

statement that its enactment is an “immediate” necessity, id. at ¶ 32, or because

council has used it with the intent to avoid a referendum on the issue. Id. at ¶ 37.

{¶67} Where city council included the reason for declaring the emergency in

a separate section of the ordinance, our review is limited to whether council’s reason

for the emergency, as set forth in the ordinance, is merely conclusory, tautological, or

illusory. Laughlin at ¶ 42. Section 5 of the ordinance contains a description of

24 OHIO FIRST DISTRICT COURT OF APPEALS

specific, concrete, and significant consequences that will flow from the inability to

immediately implement the ordinance. The plaintiffs-relators do not argue that the

reason for the necessity is conclusory, tautological, or illusory, and in light of the

reason given, we are unable to determine that it is.

{¶68} Therefore, we hold that city council satisfied the requirement of

setting forth a real, detailed reason to justify the need for the emergency action in

accordance with the Charter, and we reject the plaintiffs-relators’ argument

challenging the clause as insufficient.

D. Does the Ordinance Violate Article II, Section 7?

{¶69} The plaintiffs-relators’ final argument, presented in support of

declaratory and injunctive relief, centered on Article II, Section 7 of the Charter.

This provision in its entirety provides as follows:

The existing departments, divisions and boards of the city

government are continued unless changed by the provisions of this

charter or by ordinance of the council. Within six months after the

adoption of this charter, the council shall by ordinance adopt an

administrative code providing for a complete plan of

administrative organization of the city government. Thereafter,

except as established by the provisions of this charter, the council

may change, abolish, combine and re-arrange the departments,

divisions and boards of the city government provided for in said

administrative code, but an ordinance creating, combining,

abolishing or decreasing the powers of any department, division or

25 OHIO FIRST DISTRICT COURT OF APPEALS

board, shall require a vote of three-fourths of the members elected

to council, except the ordinance adopting an administrative code.

{¶70} According to the plaintiffs-relators, the three-fourths vote

requirement of Article II, Section 7 applied because the ordinance has the effect of

abolishing or decreasing the powers of the parking-facilities division of the

Department of Enterprise Services. Because city council did not approve Ordinance

No. 56-2013 with the seven votes that Article II, Section 7 required, plaintiffs-

relators argue that the ordinance was void.

{¶71} The city argued below that the voting requirement of Article II,

Section 7, applied only to ordinances affecting “departments, divisions and boards of

the city provided for in the administrative code.” The section did not apply to

Ordinance No. 56-2013 because the city’s parking operations were not in the city’s

administrative code, as demonstrated by exhibit B of the stipulated exhibits

submitted to the common pleas court. We agree.

{¶72} Because the city’s parking operations were not a part of the

“departments, divisions, [or] boards” arranged in the city’s administrative code, the

requirements of Article II, Section 7 did not apply as a matter of law. Accordingly,

the ordinance was not “void in its entirety” for failure to meet the vote requirements

of that section of the Charter.

{¶73} Consequently, we sustain the city’s second assignment of error.

IV. Conclusion

{¶74} We reverse the trial court’s judgment in favor of the plaintiffs-

relators. We remand the matter to the trial court with instructions to enter judgment

in favor of the city, in accordance with the law and this opinion.

26 OHIO FIRST DISTRICT COURT OF APPEALS

Judgment accordingly.

DEWINE, J., concurs in part and dissents in part. DINKELACKER, J., concurs in part and dissents in part.

DEWINE, J., concurring in part and dissenting in part.

{¶75} I join in parts II.A, II.C, III.B and III.C, and with the result reached

in Part III. I write separately because I employ a somewhat different analysis to

reach the conclusion that the Cincinnati City Charter incorporates provisions of state

law that provide that emergency ordinances are not subject to referendum. I

respectfully dissent from the majority’s conclusion in II.B.

I. Interpretation of the Charter

{¶76} We are tasked with interpreting a single sentence of the Cincinnati

Charter:

The initiative and referendum powers are hereby reserved

to the people of the City on all questions which the City is

authorized to control by legislative action; such powers shall be

exercised in the manner hereafter provided by law.

Charter of the City of Cincinnati, Article II, Section 3.

{¶77} The question before us is, does “all” in the first clause include

emergency legislation; or does the second clause incorporate provisions of state law

removing the right to referendum where legislation is passed as an emergency?

{¶78} If we were to interpret this sentence in a vacuum, it would be an easy

enough matter to determine that “all” means all and that the right to referendum is

absolute. We do not interpret in a vacuum, however. To the contrary, we are

constrained to interpret against a backdrop of precedent that suggests that city

27 OHIO FIRST DISTRICT COURT OF APPEALS

council may indeed thwart the citizens’ right to referendum by appending an

“emergency” clause to a piece of legislation. This conclusion, I believe, is mandated

by the interpretation of nearly-identical language in the Ohio Constitution provided

by the Ohio Supreme Court, by the consistent reading given to the city Charter since

its inception, and by the familiar rule of statutory construction that requires us to

give effect to all of the Charter’s provisions.

A. Shyrock and a Backdrop of Ohio Supreme Court Precedent Interpreting a Parallel Provision of the Ohio Constitution

{¶79} The Ohio Supreme Court interpreted a nearly-identical provision of

the Ohio Constitution in Shyrock v. Zanesville, 92 Ohio St. 375, 110 N.E. 937 (1915).

That provision provided:

The initiative and referendum powers are hereby reserved to the

control by legislative action; such powers shall be exercised in the

manner now or hereafter provided by law.

Id. at 380, citing Ohio Constitution, Article II, Section 1f.

{¶80} The Shyrock court found that despite the seemingly absolute

reservation of the referendum power on “all” questions, the second clause limited

that power in the case of emergency legislation. Id. at 384-385. The phrase “now or

hereafter provided by law,” the court concluded, incorporated a precursor to R.C.

731.30, which provided that emergency ordinances go into immediate effect. Id. at

385. Thus, Shyrock tells us that even though a governing document says that it

reserves the referendum power on “all questions,” the power may still be limited in

the case of emergency ordinances. It also tells us that the phrase “shall be exercised

28 OHIO FIRST DISTRICT COURT OF APPEALS

in the manner provided by law” is not merely procedural, but encompasses

substantive limitations, including those providing for the immediate effect of

emergency legislation. Id.

{¶81} As Judge Dinkelacker’s dissent points out, Shyrock dealt with the

construction of the Ohio constitution, while our case deals with the city Charter. But

there is nothing about the two different documents that would suggest that the same

words mean one thing in the Ohio Constitution and something altogether different in

the Charter. To the contrary, the Charter provision was enacted barely a decade after

the decision in Shyrock, and we must presume that the language chosen by the

drafters of the Charter was informed by the understanding expressed in Shyrock.

{¶82} Further, the Ohio Supreme Court has not backed away from

its limiting interpretation:

A superficial examination of that [Ohio Constitution, Article

II, Section 1f] might lead to the conclusion that referendum may

not be denied as to any municipal legislative action, the section

reserving to the people such power on ‘all questions which such

municipalities may * * * control by legislative action * * *.’ Such a

conclusion, however, uniformly has been rejected by this court.

State ex rel. Bramblette v. Yordy, 24 Ohio St.2d 147, 149, 265 N.E.2d 273 (1970),

citing Shyrock, supra.

{¶83} As recently as Taylor v. London, 88 Ohio St.3d 137, 143, 723 N.E.2d

1089 (2000), the Supreme Court reaffirmed that R.C. 721.29 and 731.30, which

preclude referendum on validly enacted emergency legislation, do not contravene the

right of referendum on “all questions” provided by the Ohio Constitution.

29 OHIO FIRST DISTRICT COURT OF APPEALS

{¶84} Thus, while plaintiffs advance an alluring argument, their reading of

the Charter language is impossible to reconcile with the Ohio Supreme Court’s

decisions in cases such as Shyrock and Taylor.

B. The Charter Provision Must Be Read as Whole

{¶85} As the lead opinion points out, the reading advanced by plaintiffs and

Judge Dinkelacker’s dissent would require us to ignore swaths of the city Charter.

The last two sentences of Article II, Section 3 of the Charter provide for a separate

vote on an emergency clause, and provide that if the emergency clause fails, the

legislation shall go into effect “at the earliest time allowed for by law.” Such a

provision only makes sense if emergency legislation goes into effect immediately. A

referendum suspends a legislative action before it goes into effect. See Ohio Valley

Elec. Ry. Co. v. Hagerty, 14 Ohio App. 398 (4th Dist.1921). Once the legislation is in

effect, there can be no referendum. Thus, by recognizing that council may pass

emergency legislation that has immediate effect, the Charter recognizes that council

may pass emergency legislation that is not subject to referendum.

{¶86} The interpretation advanced by Judge Dinkelacker’s dissent would

read these last two sentences of Article II, Section 3 out of the City Charter. We are

bound, however, to interpret the Charter if at all possible to give effect to all of its

provisions, or in the Latin, “verba cum effectu accipienda.” Scalia and Garner,

Reading Law: The Interpretation of Legal Texts, 174-179 (2012). The only way to do

so is to assume that the Charter adopts provisions of state law allowing a municipality

to adopt emergency legislation that is not subject to referendum.

30 OHIO FIRST DISTRICT COURT OF APPEALS

C. Consistent Understanding of the Charter Language

{¶87} It is also relevant to the analysis that it has been understood for

nearly 90 years that the Charter language allows council to pass emergency legislation

that is not subject to referendum.

{¶88} This was certainly the understanding of the drafters of the Charter.

The Report of the Charter Amendment Commission, submitted just two weeks before

council placed the Charter on the ballot, specifically noted that the language of Article

II, Section 3 tracked the parallel provisions of the State Constitution. The provision

“is practically an adaption of the [Ohio] constitutional provision preserving the

initiative and referendum,” explained the Commission. Report of Charter

Amendment Commission, August 2, 1926.6

{¶89} Further, as the lead opinion points out, Hamilton County courts have

assumed for nearly 90 years that council, may, in fact, pass emergency legislation that

is not subject to referendum. Judge Dinkelacker’s dissent notes that none of the

string of cases cited confronted the issue directly, but rather simply assumed the

existence of a power to pass emergency legislation that was not subject to referendum.

But, the failure of litigants to raise the issue says something too; it suggests that the

understanding that council possessed the power to enact emergency legislation was

so broadly held that even litigants challenging council’s decision to pass emergency

legislation not subject to referendum did not bother to attack council’s power to do

6 Reference to the Report of the Commission is appropriate not because the Charter provision is ambiguous but because it demonstrates the contemporaneous understanding of the Charter language at the time it was adopted. See District of Columbia v. Heller, 554 U.S. 570, 577-610, 128 S.Ct., 2783, 171 L.Ed.2d 637 (2008); see also Jeffrey S. Sutton, The Role of History in Judging Disputes About the Meaning of the Constitution, 41 Tex. Tech. L. Rev. 1173 (2009).

31 OHIO FIRST DISTRICT COURT OF APPEALS

so. Quite simply, until this case, council’s power to pass emergency legislation that is

not subject to referendum has been assumed.

{¶90} This long held understanding is not dispositive, but it does inform our

construction of the Charter provision. We are cautioned that “a fundamental

consideration[] of fairness recognized in every legal system is that settled expectations

honestly arrived at with respect to substantial interests ought not to be defeated.”

Singer, Statutes and Statutory Construction, Section 41:5 at 417 (6th Ed.2001). Here,

settled expectations support the construction advanced by the city.

D. Other Considerations

{¶91} Of course, where a charter provision is ambiguous, we construe the

provision liberally in favor of a referendum. But Shyrock and its progeny tell us the

words at issue here are not ambiguous; rather they tell us exactly what the pertinent

words mean. And plainly, Julnes, which dealt with a charter provision that expressly

provided for a right to referendum on emergency legislation, has no application to the

case at bar where the Charter is silent on referendum of emergency legislation and

adopts state law. Thus I believe that we are constrained to reverse the trial court.

{¶92} Our decision today is not an endorsement of a process that allows six

members of council to avoid the referendum power on even the most important of

questions by labeling a piece of legislation as an emergency. It is simply a

straightforward application of the language of the Charter based upon the precedent

we must follow. If the citizens of Cincinnati wish to restrict use of the emergency

label to avoid referendum, the remedy is to either amend the Charter to strengthen

the referendum power or to elect councilmembers less willing to append “emergency”

clauses to legislation.

32 OHIO FIRST DISTRICT COURT OF APPEALS

II. Statutory Taxpayer Action

{¶93} The majority concludes that this action could not be properly

maintained as a statutory taxpayer action because plaintiffs failed to pay a $325 filing

fee that the court said could serve as security, and that, therefore, the court lacked

jurisdiction over the statutory taxpayer claim.

{¶94} It is not clear from my reading of the record, however, that the filing

fee was not paid, and the issue was not litigated below. We need not reach the issue

because of our disposition of the other issues in the case. But if we had decided the

merits of this case differently, and did need to reach the issue, I would remand the

issue to the trial court. Rather than this court find that this action could not be

maintained as a statutory taxpayer action based upon an incomplete record, I would

allow the trial court to determine in the first instance whether plaintiffs complied with

the trial court’s order regarding the posting of security.

DINKELACKER, J., concurring in part and dissenting in part.

{¶95} While I agree with the lead opinion on all aspects of the issues of

jurisdiction and standing, I respectfully dissent from its interpretation of Article II,

Section 3 of the city charter. In my view, the charter language is ambiguous and,

therefore, we must liberally construe it in favor of permitting the people of Cincinnati

to exercise their power of referendum.

{¶96} The constitutional right of citizens to referendum is “of paramount

importance.” Courts must “liberally construe municipal referendum powers so as to

permit rather than preclude their exercise by the people.” State ex rel. Laughlin v.

James, 115 Ohio St.3d 231, 2007-Ohio-4811, 874 N.E.2d 1145, ¶ 25. Those powers

33 OHIO FIRST DISTRICT COURT OF APPEALS

should be promoted rather than prevented or obstructed. State ex rel. King v.

Portsmouth, 27 Ohio St.3d 1, 4, 497 N.E.2d 1126 (1986).

{¶97} The lead opinion, in holding that the emergency legislation is exempt

from the power of referendum, relies upon several Ohio Supreme Court cases that I

do not believe apply in this case, primarily because they rely heavily upon state law,

rather than the language of a city charter. See, e.g., Taylor v. London, 88 Ohio St.3d

137, 723 N.E.2d 1089 (2000); State ex rel. Bramblette v. Yordy, 24 Ohio St.2d 147,

265 N.E.2d 273 (1970); Shyrock v. Zanesville, 92 Ohio St. 375, 110 N.E. 937 (1915).

Instead, I find more the recent case of State ex rel. Julnes v. S. Euclid City Council,

130 Ohio St.3d 6, 2011-Ohio-4485, 955 N.E.2d 363, to be persuasive.

{¶98} In that case, a South Euclid ordinance stated that certain ordinances

were not subject to referendum, “but except as otherwise provided by the

Constitution or general laws of the State of Ohio, all other ordinances and

resolutions, including but not limited to, emergency ordinances and resolutions shall

be subject to referendum; provided however that emergency ordinances and

resolutions shall go into effect at the time indicated therein.” Id. at ¶ 38. The

Supreme Court stated that “the general rule in South Euclid that emergency

legislation is subject to referendum does not apply when ‘otherwise provided by the

Constitution or general laws of the State of Ohio.’ ” Id. at ¶ 39.

{¶99} The court went on to state that pursuant to R.C. 731.41, the

provisions of R.C. 731.28 through 731.41 do not apply to any municipal corporation

which adopts its own charter containing an initiative and referendum provision for

its own ordinances and legislative measures. It noted that South Euclid had adopted

its own charter, which expressly provided that, with a few specified exceptions, all

other ordinances, resolutions, including but not limited to, emergency ordinances

34 OHIO FIRST DISTRICT COURT OF APPEALS

and resolutions shall be subject to referendum. Id. at ¶ 42. Therefore, R.C. 731.29

and 731.30 did not exempt the ordinances in question from referendum, in light of

the specific charter provision subjecting it to referendum.

{¶100} Though the language in South Euclid’s charter differs somewhat

from the language of Cincinnati’s Charter, I do not find that difference to be

dispositive. The lead opinion relies heavily on R.C. 731.29 and 731.30. But as the

Supreme Court held in Julnes, R.C. 731.41 specifically provides that those sections

“do not apply to any municipal corporation which adopts its own charter containing

an initiative and referendum provision for its own ordinances and other legislative

measures.” The plain language of R.C. 731.41 unequivocally applies here. R.C.

731.29 and 731.30 are not applicable in this case.

{¶101} The city of Cincinnati is a charter municipality that derives its

powers of local self-government from the Ohio Constitution. Its power to enact

legislation is conferred by the city Charter, not the Ohio Revised Code. State ex rel.

Phillips Supply Co. v. Cincinnati, 1st Dist. No. C-120168, 2012-Ohio-6096, ¶ 53. “[A]

municipality which has adopted a comprehensive charter is governed by the terms of

the charter, and statutory provisions relating to subjects covered by the charter are

inapplicable.” State ex rel. Davis Invest. Co. v. Columbus, 175 Ohio St. 337, 341, 194

N.E.2d 859 (1963).

{¶102} As noted by the common pleas court, in Article II, Section 3 of the

charter, “the citizens of Cincinnati have reserved the initiative and referendum power

to themselves on all questions which the Council is authorized to control by

legislative action. Those powers shall be exercised in the manner provided by the

laws of the state of Ohio.” (Emphasis sic.) The remaining language in that section

35 OHIO FIRST DISTRICT COURT OF APPEALS

does not clearly and unambiguously indicate that the citizens of Cincinnati chose to

limit their referendum rights in the case of emergency ordinances.

{¶103} In regard to the first sentence of Article II, Section 3, I agree with the

common pleas court when it stated:

The City Charter does not specifically exempt emergency

legislation from the powers reserved to the people. The Charter

language is clear that it refers to all legislation passed by City

Counsel with no exceptions. If the people of Cincinnati had

intended to exempt emergency legislation from their referendum

powers, they could have done so when adopting Article II, Section

3 of the City Charter.

{¶104} The second sentence of Article II, Section 3 provides that the

referendum powers are to be exercised in the manner provided by the state of Ohio.

It is this sentence that causes ambiguity. Since it is ambiguous, it must be

interpreted in favor of allowing the people to exercise their power of referendum.

The common pleas court’s interpretation does just that, while still giving meaning to

the provision as a whole. See Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d

510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 20-21; Cincinnati v. Ohio, 1st Dist. No. C-

110681, 2012-Ohio-3162, ¶ 9.

{¶105} The lead opinion’s interpretation does not give effect to the whole

and is somewhat contradictory. In one paragraph, it states that “the Charter does

not specifically provide for referendum on emergency legislation.” In the next, it

states that “the Charter’s meaning is unequivocal and definite.” It cannot be both. I

agree with the trial court when it stated that “[t]he City Charter’s reference to Ohio

36 OHIO FIRST DISTRICT COURT OF APPEALS

law applies [to] the procedures to be followed in exercising the people’s right to

initiative and referendum; it places no restraint or limitation on that right.”

{¶106} If the city had intended for emergency legislation to be a limit of the

people’s unfettered right to referendum, it could simply have said so in the Charter.

It clearly did not. Courts have a duty to give effect to all of the words used in a

statute but they should not insert words that are not used. Bernardini v. Bd. of Edn.,

58 Ohio St.2d 1, 4, 387 N.E.2d 1222 (1979); Cincinnati at ¶ 9.

{¶107} Consequently, as the common pleas court stated: “As a matter of

statutory construction, the Court is not permitted to add language exempting

emergency legislation from referendum where no such language exists in the Charter

provision.” As this court very recently held in Brookville Equip. Corp. v. Cincinnati,

1st Dist. No. C-120434, 2012-Ohio-3648, ¶ 20: “Because council chose not to include

language in the ordinance, a court will not add that language when undertaking an

interpretation of such ordinance.” The same rules of construction apply to the city

Charter.

{¶108} I do not find persuasive the city’s argument that historically courts,

including this one, have interpreted Article II, Section 3 as providing that the power

of referendum does not apply to emergency ordinances. None of those cases

addressed the specific issue raised in this case, and this court never discussed it

directly in those cases.

{¶109} In this case, the city freely admits that it is trying to circumvent its

citizens’ constitutional right to exercise the power of referendum. But, without a

clear directive from the city Charter, that it cannot do. If we adopt the city’s

interpretation and add the language that would obviate any ambiguity, then this

court, i.e., the judicial branch of government, would be performing the function of

37 OHIO FIRST DISTRICT COURT OF APPEALS

the legislative branch and legislating by judicial fiat. The Ohio Constitution vests

legislative bodies, “not the courts, with legislative powers of government. Our role,

in the exercise of the judicial power granted to us by the Constitution is to interpret

and apply the law enacted by the [legislature], not to rewrite it.” Houdek v.

Thyssenkrupp Materials N.A., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, 983

N.E.2d 1253, ¶ 29. Consequently, I would affirm the common pleas court’s decision

granting a permanent injunction enjoining the city from implementing Ordinance

No. 56-2013.

Please note:

The court has rendered its own entry on the date of the release of this opinion.