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Petitioners ask Supreme Court to dismiss Cleveland's collusive lawsuit against itself regarding referendum on Quicken Loans Arena subsidy

Friday, June 23, 2017

Petitioners to institute separate proceedings or alternatively seek to intervene in law director's suit to ensure that city council clerk is required

CLEVELAND, OHIO - Today, Cleveland taxpayers Diane S. Bufford, Jennifer A. Blakeney, Verdia Y. Conner, Khalilah A. Worley, and Linda C. Robinson ("petitioners") filed a motion in the Ohio Supreme Court requesting that the Court dismiss the Cleveland law director's collusive lawsuit against the city council clerk regarding the petition for a ballot referendum on the passage of a controversial subsidy to renovate Quicken Loans Arena.

Petitioners allege that the law director's suit reflects a collusive effort by the mayor and city council to thwart voters' right to a referendum, and thus must be dismissed because Ohio courts only have jurisdiction to decide cases that present an "actual controversy between genuinely adverse parties." As further explained in petitioners' motion,

The mayor and council—who are controlling this lawsuit—have a substantial and undeniable political interest in avoiding a referendum here. They have outspokenly supported the controversial Q deal against a vigorous public outcry, and know that a referendum will bring this issue (and their support of it) under heavy scrutiny in a cycle where they are all (the mayor and all 17 council members) up for reelection. They also know—given Clevelanders' rejection of a similar "Sin Tax" arena subsidy at the ballot in 2014 that was more defensible because taxpayers arguably had a legal obligation to fund the renovations at issue—that they are likely to lose this referendum.

Desperation to avoid a referendum is the only explanation for the law director's sudden flip-flop on whether the council clerk had a legal duty to accept the petition. On May 22, the Council president, Kevin Kelley, cited a legal opinion from the law director's office to explain council's position that the petition could not legally be accepted because of the Contract Clause. And now, by this suit, the law director purports to advocate on behalf of the opposite position. In doing so, the law director now purports to deny petitioners their right to file a taxpayer suit to vindicate their right to a referendum in Court under Charter § 90.

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The law director and city council cannot legitimately claim to be adverse parties here, and the law does not permit the risk that the law director steer the parties' request for an advisory opinion in the wrong direction.

The motion also quotes at length from the mayor and council president's joint press-conference about the suit, including their statements that the suit presents a test between two equally "valid legal arguments." Amplifying concerns over a collusive suit, petitioners note that, the law director cited inapplicable caselaw that argues against her stated position, and failed to name petitioners as party defendants as they requested, which, under R.C. 733.581, would have conferred "the right to assist in presenting all issues of law and fact to the court in order that a full and complete adjudication of the controversy may be had."

Petitioners, who are in the process of instituting separate proceedings in the Ohio Supreme Court, where they will properly advocate on behalf of their petition, also asked the Court to allow them to intervene in the law director's suit should the Court decline to dismiss it.

"The City's decision to sue itself is apparently another desperate move to avoid letting the voters have their say on whether public money should continue to flow to corporate interests at the expense of our neighborhoods," said Peter Pattakos, attorney for the petitioners. "While the Supreme Court should put a stop to these shenanigans and swiftly affirm the citizens' right to a referendum, it's just as important that voters pay close attention to the way these elected officials are attempting to subvert democracy here, and hold them accountable accordingly."

Petitioners, who are also represented by former Cleveland law director Subodh Chandra of The Chandra Law Firm LLC, are part of a coalition of citizens led by members of Greater Cleveland Congregations, SEIU Local 1199, Cuyahoga County Progressive Caucus, AFSCME Ohio Council 8, and Amalgamated Transit Union Local 268. The petition submitted by these citizens, consistent with the requirements of the City of Cleveland Charter, contained 20,603 signatures of Cleveland residents, more than three times the number required by law.

The motion to dismiss or alternatively to intervene is available here.

Related Practice Areas
Constitutional LawVoting RightsGovernment Ethics, Misconduct, Fraud, & AbuseTaxpayer Lawsuits in Ohio

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