Motion to Stay Enforcement of Parking Plot Ruling

7/28/2019 Motion to Stay Enforcement of Parking Plot Ruling

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FIRST DISTRICT COURT OF APPEALS

HAMILTON COUNTY, OHIO

LISA MCQUEEN, et al.,

Plaintiffs-Appellees,

and

CITY OF CINCINNATI ex rel.

LISA McQUEEN,

Relators-Appellees,

v.

MILTON R. DOHONEY , JR.,etc.

,

Defendants-Respondents-Appellants.

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Case No. C-13-00196

APPELLEES MOTION FOR

STAY OF EXECUTION OF

THE JUDGMENT MANDATE

Pursuant to Rule 27 of the Ohio Rules of Appellate Procedure, Plaintiffs-Appellees

hereby move to stay, pending appeal to the Ohio Supreme Court, execution of the judgment

mandate issuing as a result of this Courts Decision herein on June 12, 2013.

As this Court recognized in its Decision, this case involves the question, inter alia, of

whether Ordinance No. 56-2013 is a validly enacted emergency ordinance that is immediately

effective and not subject to referendum. See Decision 11. While a majority of this Court

determined that, pursuant to the Cincinnati City Charter and state law, ordinances adopted by the

Cincinnati City Council with emergency clauses are not subject to referendum, the dissent and

the decision by the court below demonstrate that there is clearly a valid legal argument to be

made that the citizens of Cincinnati reserved unto themselves the power to referendum even

ordinances passed as emergencies. Thus, with all due respect to this Courts Decision,

Appellees intend to pursue that legal question to the Ohio Supreme Court through the filing of a

forthcoming notice of appeal and jurisdictional memorandum.


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In light of the Decision, though, officials with the City of Cincinnati have already made

public pronouncements of their intent to immediately sign and implement the Parking Lease

Agreement provided for in Ordinance No. 56-2013 without allowing for the entire judicial

process to be completed. In fact, in a public statement concerning this Courts Decision and

issued the same date thereof, the city manager of the City of Cincinnati declared that The City

will sign the Parking Lease and Modernization Plan with the Port of Greater Cincinnati upon the

trial court signing the actual orders.1

The clear purpose of pursuing such a course of action is to

thwart any efforts of the Appellees to have a final adjudication of the issues herein fully and

completely resolved through the judicial system and, specifically, by the Ohio Supreme Court.

Appellants have already sought to have the trial court effectuate the mandate of this Courts

Decision with no regard for the remaining appellate process afforded to the Appellees and still

outstanding.

Through this motion, Appellees are asking this Court to err on the side of the First

Amendment less the City undertake actions while an appeal is pending to deny the resolution of

the legal issues herein by the Ohio Supreme Court. For without the issuance of the stay of

execution of the judgment mandate, the potential power and right of the people of the City of

Cincinnati to referendum will be eviscerated. For if the Ohio Supreme Court should (or would)

conclude that this Courts Decision was legally incorrect, i.e., that the provision of the Cincinnati

City Charter which expressly reserves the power of referendum to the people on all ordinances

includes the power to referendum ordinances passed with emergency clauses, then, without the

issuance of the stay of the execution of the judgment mandate, the City will clearly undertake

actions (and has already declared its intent to undertake actions) which have the potential to

1The complete statement is available from the website of the City of Cincinnati at

http://www.cincinnati-oh.gov/parking/news/city-managers-statement-parking-ruling/


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moot any resolution of the legal issues herein by the Ohio Supreme Court. Such action will, in

turn, effectively deny the people the right to referendum if the Supreme Court would have

resolved the case differently than this Court. Such a result would constitute a denial of First

Amendment rights and an irreparable injury to the people of the City of Cincinnati. See State ex

rel. Oster v. Lorain Cty. Bd. of Elections, 2001-Ohio-1605, 93 Ohio St.3d 480, 487, 756 N.E.2d

649 (2001)(where the people reserve the initiative or referendum power, the exercise of that

power is protected by the First Amendment (quoting Stone v. Prescott173 F.3d 1172, 1175 (9th

Cir. 1999)); Elrod v. Burns, 427 U.S. 347, 373-747 (1976)([t]he loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury).

Because it is always in the public interest to prevent the violation of a partys constitutional

rights,G & V Lounge, Inc. v. Michigan Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir.

1994), Appellees request the mandate judgment be stayed as that is the only viable option to

ensure that any putative First Amendment rights of the citizens of the City of Cincinnati are not

terminated and extinguished prematurely, i.e., before the entire judicial process the Ohio

Supreme Courtcan address and resolve the legal issues herein.

While the presence of a claimed emergency by the Appellants may, on first blush,

dissuade the Court from issuing the requested stay, it is important to note that the stated

emergency in Ordinance No. 56-2013 concerned the need to balance the city s budget.

Specifically, the emergency clause declared:

The reasons for the emergency is the immediate need to implement the budgetary

measure contemplated during the December 2012 City of Cincinnati budget

determinations in order to avoid significant personnel layoffs and budget cuts and

resulting reductions in City services to Cincinnati residents related to the CitysGeneral Fund, which administrative actions would be needed to balance the Citys

FY 2013 and 2014 budgets in the absence of revenue generated by

implementation of the modernizations of the City of Cincinnati parking system asdescribed herein.


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(T.d. 26, Stipulations Exh. W.) And this was reiterated by the Appellants when they moved this

Court to expedite the briefing scheduling, citing the following emergency:

The timely disposition of this case is important to all parties. The City and itscitizens need to know by May 1 whether the City must begin the process ofeliminating 443 positions and notifying 338 employees that they are losing their

jobs.

(Appellants Emergency Motion for Expedited Brief, filed on March 29, 2013, at 1.) And

attached to their motion, the Appellants included an exhibit supposedly listing the positions

slated for elimination, included the termination of 140 police officers and 80 firefighters.

But all of this doom-and-gloom posited by the City to both the trial court and to this court

proved false; for no such emergency truly or presently exists which would militate against the

issuance of the requested stay of the execution of the judgment mandate. For, in the interim, the

Cincinnati City Council recently passed a budget which did not contain any layoffs in the public

safety sector and significantly fewer layoffs elsewhere. In a recent analysis from the earlier hype

put out by the City officials versus the reality, The Cincinnati Enquirerin a story just last week

noted the history and significant difference between what was said to the public and to this Court

by City officials, on the one hand, and the reality, on the other hand:2

When city officials announced a plan to privatize Cincinnatis parking system in

February, they touted it as the way to balance the 2014 and 2015 budgets, avoidhundreds of police and fire layoffs and jump-start economic development

projects.

As opposition to the plan emerged with the launching of a petition drive, MayorMark Mallory said: If youre signing a petition, youre signing a pink slip for a

cop or firefighter. None was laid off.

. . .

2This report by The Cincinnati Enquirer is available on-line at http://news.cincinnati.com/

article/20130608/ NEWS/306080047.


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Mallory said it more than once: If you support the parking referendum, youre

helping lay off police officers and firefighters. He was very direct about it at two

press conferences.The city is laying off 63 people. But none from police or fire.

. . .

[City Manager] Dohoney originally said 344 people could be laid off if theparking lease didnt happen. But he used extra casino revenues and reduced thatnumber. Then Mallory cut other things, including closing Westwood Town Hall,

and reduced the public safety layoffs more. Council found more places to borrow

and other funds to take money from, and the end result was zero police and firelayoffs.

Thus, the reality today is that a budget has been passed with significantly fewer layoffs than that

which the Appellants previously represented, with no layoffs in the public safety areas of police

and fire. Thus, any prior claim of an emergency by the Appellants has clearly not lived up to its

hype.

The bottom line is that the Appellees seek to have a full and complete access to the entire

judicial process afforded to them, including an appeal to the Ohio Supreme Court, with respect to

their claim of entitlement to subject Ordinance No. 56-2013 to referendum pursuant to the City

Charter. But without the issuance of the requested stay of the execution of the judgment

mandate, the very real and imminent prospect exists that the First Amendment rights of the

Appellees and other citizens of the City could be denied. While this assumes the Ohio Supreme

Court reaches the opposite legal conclusion than this Court did, is it not best to err in favor of

fundamental constitutional rights, especially when the previously claimed emergency on the part

of the City has passed and is no longer is imminent. Accordingly, pursuant to Rule 27 of the

Ohio Rules of Appellate Procedure, Plaintiffs-Appellees hereby move to stay, pending appeal to

the Ohio Supreme Court, execution of the judgment mandate issuing as a result of this Courts

Decision herein on June 12, 2013.


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Respectfully submitted,

/s/ Curt C. Hartman____________Curt C. Hartman (0064242)

THE LAW FIRM OF CURT C.HARTMAN3749 Fox Point Ct.Amelia OH 45102

(513) 752-8800

[email protected]

Christopher P. Finney (0038998)

FINNEY,STAGNARO,SABA &PATTERSON LLP

2623 Erie AvenueCincinnati, Ohio 45208

(513) 533-2980

[email protected]

Attorneys for Plaintiffs-Relators-Appellees

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing will be served via e-mail on the 12th day of June2013, upon:

Terry Nestor

Aaron HerzigOffice of the City Solicitor

801 Plum Street, Room 214

Cincinnati, OH 45202

/s/ Curt C. Hartman____________

Documents

Motion to Stay Enforcement of Parking Plot Ruling