IN THE SUPREME COURT OF OHIO : CASE NO:

Transcription

1 ^^^^^AL IN THE SUPREME COURT OF OHIO The City of Shaker Heights, Ohio, ex rel. Cannon, et al. v. Sylvia DeFranco, et al. Plaintiffs-Appellees, Defendants-Appellants. : CASE NO: (Seeking Appeal from Eighth District. Court of Appeals - Case No: CA-12- : 98063) ORIG I NAL MEMORDANDUM IN RESPONSE OF APPELLEES ROBERT H. BAKER, IN HIS OFFICIAL CAPACITY AS FISCAL OFFICER FOR THE COUNCIL TO PROTECT OHIO'S COMMUNITIES, AND THE COUNCIL TO PROTECT OHIO'S COMMUNITIES TO MEMORANDUM IN SUPPORT OF JURISDICTION 1Vlaurice A. Thompson ( ) 1851 Center for Constitutional Law 208 E. State Street Columbus, Ohio Phone: mthompson(u^ohioconstitution.or^ Counsel for Appellants Sylvia DeFranco, et al. L. James Juliano, Jr. ( ) Matthew T. Fitzsimmons ( ) Nicola, Gudbranson & Cooper, LLC 25 W. Prospect Avenue, Suite 1400 Cleveland, Ohio Phone: (216) Fax: (216) _iuliano(a^nicola.com fitzsimmons(a^nicola.com Counsel for Appellees _ Robert H. Baker, In His Official Capacity ( ^,^- ^(^ (^ D As Fiscal Officer For The Council To U`' ^., L (^ Protect Ohio's Communities, And The ^^^^ ^` ^ ^:^^;r^ ^ ^^ :^ ^..^ ^ ^. c^e^^ ^F ^ourr SUPREME COURT OF OHIO ^0^ ^ ^, ^.^ 3^ ^ ^^ ^^ 0^ OOOR^ SUP ^' ^O^R ^ OF 0^^0 Council To Protect Ohio's Communities Stephen L. Byron ( ) Margaret A. Cannon ( ) Walter & Haverfield LLP The Tower at Erieview 1301 E. Ninth Street, Suite 3500 Cleveland, Ohio Ph: (216) Fx: (216) sb^ron(a^,walterhav.eom mcannon(a^walterhav.com

2 William M. Ondrey Gruber ( ) Law Director Shaker Heights City Hall 3400 Lee Road Shaker Heights, OH Ph: (216) Counsel for Appellee The City of Shaker Heights Laura A. Abrams ( ) The Abrams Law Firm LLC 365 Wood Street Batavia, OH Ph: (413) Counsel for Appellee Springfield Township Franklin A. HIaine, Jr. ( ) Joseph J. Braun ( ) Strauss & Troy The Federal Reserve Building 150 East Fourth Street Cincinnati, OH Ph: (937) Counsel for Appellee The City of Loveland Robert F. Jacques ( ) City of Oakwood Law Department 30 Park Avenue Dayton, OH Ph: (937) Counsel for Appellee The City of Oakwood v2

3 Table of Contents Pa^e Table of Contents Table of Authorities I. Appellees' Statement Regarding Substantial Constitutional Question / Public or Great General Interest II. Statement of the Case III. Statement of Facts IV. Argument V. Conclusion i ii v2 ^

4 TABLE OF AUTHORITIES Ohio Revised Code Chapter 167 2, v2

5 I. APPELLEES' STATEMENT REGARDING SUBSTANTIAL CONSTITUTIONAL QUESTION / PUBLIC OR GREAT GENERAL INTEREST This case does not involve a substantial constitutional question or a matter of public or great general interest. In affirming the trial court's grant of summary judgment in favor of appellees, the Eighth District simply applied well-settled principles of Ohio law. Ohio courts do not need additional guidance from the Supreme Court on these settled issues. Appellees Robert H. Baker, in his official capacity as Fiscal Officer for the Council to Protect Ohio's Communities ("Appellee Baker"), and The Council to Protect Ohio's Communities ("Appellee CPOC") (collectively, the "CPOC Appellees")1 adopt and incorporate ' by reference the arguments set forth in the'memorandum in Response of Appellee the City of Shaker Heights, Ohio (to the extent not inconsistent with the positions and arguments of the CPOC Appellees). II. STATEMENT OF THE CASE The CPOC Appellees hereby state the following propositions: 1. The CPOC Appellees incorporate by reference the arguments set forth in the Mem^randum in Resnonse of Appellee the City of Shaker Heights, Ohio. The arguments in the Memorandum in Response of Appellee the City of Shaker Heights reflect the arguments in plaintiffs' Motion for Sunlmary Judgment in the trial court. The CPOC Appellees filed a joint response on September 2, 2011 that stated that the CPOC Appellees would not oppose the Motion for Summary Judgment. 1 For reasons that are unclear, Appellants did not list the CPOC Appellees as parties in their Ohio Supreme Court papers, or serve ccunsel for the CPOC Appellees with the Notice of Appeal and Memorandum in Support of Jurisdiction - even though the CPOC Appellees filed a brief in the Court of Appeals and were, obviously, parties at the trial court and Court of Appeals v2 1

6 2. The members of Appellee CPOC have followed the process of formation as provided by Ohio Revised Code Chapter 167, and Appellants have never challenged this point. 3. Appellants have only attempted to challenge the validity of the purpose as set forth in Exhibit A to the Complaint: The purpose of CPOC is to preserve our communities by maintaining revenue sources and amounts that support services and expenditures that benefit citizens of local communities throughout the State of Ohio. However, for the reasons set forth in the Memorandum in Response of Appellee the City of Shaker Heights, this purpose falls within the statutory authority of the CPOC ^ Appellees. Appellants have not challenged the validity of the CPOC as a statutory corporate entity. 4. Appellee CPOC has at all times acted in accordance with its purpose and function and in compliance with all applicable provisions of the Ohio Revised Code. 5. Appellees the Cities of Shaker Heights, et al. joined Appellee Baker as a party in his official capacity as Fiscal Officer and not in his personal or individual capacity, so Appellee Baker's interests exactly coincide with the interests of Appellee CPOC. In light of the above, the CPOC Appellees incorporate by reference the Statement of the Case set forth in the Memorandum in Response of Appellee the City of Shaker Heights. III. STATEMENT OF FACTS The CPOC Appellees incorporate by reference the Statement of Facts set forth in the Memorandum in Response of Appellee the City of Shaker Heights. IV. ARGUMENT THE COUNCIL TO PROTECT OHIO'S COMMUNITIES HAS THE AUTII RITY T PROCEED WITH ITS PURPOSE IN THAT THE MEMBERS HAVE PROPERLY FOLLOWED THE PROCEDURE AND HA^E CONDUCTED ALL ACTIVITY WITHIN THE SCOPE OF OHIO REVISED CODE CHAPTER 167. ooazz2^i^z 2

7 The CPOC Appellees incorporate by reference the arguments set forth in the Memorandum in Response of Appellee the City of Shaker Heights. The CPOC Appellees emphasize that the members of Appellee CPOC have established this entity in accordance with the procedures set forth in Ohio Revised Code Chapter 167. At all times, Appellee CPOC has acted consistently with the purposes set forth by its members as reflected in the document entitled, "An Agreement Establishing A Regional Council of Governments to be known as the Council to Protect Ohio's Communities," (Exhibit A attached to the Complaint). V. CONCLUSION The CPOC Appellees urge the Court decline jurisdiction of this attempted appeal. This case does not present a novel, cutting-edge legal issue for the Supreme Court to announce a new principle of law for Ohio courts to follow. This case does not involve a matter of public or great general interest. The trial court's 12-page Opinion and the Court of Appeals' unanimous 16- page Opinion are thoughtful, well-researched, well-written -- and correct as a matter of existing, settled Ohio law v2 3

8 Respectfully submitted, NICOLA, GUDBRANSON & COOPER, LLC ^ ^^ L. James Juliano, Jr. ( 0 993) Matthew T. Fitzsimmo D013404) 25 W. Prospect Avenue, Suite 1400 Cleveland, Ohio Phone: Fax: ^uliano(^lnicola.co^n fitzsimmons(c^lnicola.com Attorneys For Appellees Robert H. Baker, In His Official Capacity As Fiscal Officer For The Council To Protect Ohio's Communities, And The Council To Protect Ohio's Communities ooazz2^iv2 4

9 CERTIFICATE OF SERVICE A copy of the foregoing Memorandum in Response of Appellees Robert H. Baker, In His Official Capacity As Fiscal Officer For The Council To P^otect Ohio's Communities, And The Council To Protect Ohio's Communities to Memorandum in Support of Jurisdiction has been sent via regular U.S. mail, postage pre-paid this 14th day of November, 2012 to: Maurice A. Thompson 1851 Center for Constitutional Law 208 E. State Street Colurnbus, OH Stephen L. Byron Margaret A. Cannon Walter & Haverfield LLP The Tower at Erieview 1301 E. Ninth Street, Suite 3500 Cleveland, Ohio Burges & Burges Strategists, Inc Lake Shore Blvd. Cleveland, OH Government Strategies Group, LLC 700 Walnut Street, Suite 450 Cincinnati, OH William M. Ondrey Gruber Shaker Heights City Hall 3400 Lee Road Shaker Heights, OH Laura A. Abrams The Abrams Law Firm LLC 365 Wood Street Batavia, OH Franklin A. Klaine, Jr. Joseph J. Braun Strauss & Troy The Federal Reserve Building 150 East Fourth Street Cincinnati, OH Robert F. Jacques City of Oakwood Law Department 30 Park Avenue Dayton, OH r Ir L. Ja _es Juliano, Jr. ( OS 93) Matthew T. Fitzsimmo 13404) oo322z^i^2 5