Case No IN THE SUPREME COURT OF OHIO REPLY BRIEF OF RELATORS STATE OF OHIO EX REL. CITY OF UPPER ARLINGTON, ET AL.

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1 Case No IN THE SUPREME COURT OF OHIO STATE OF OHIO EX REL. CITY OF UPPER ARLINGTON, ET AL. V. Relators, FRANKLIN COUNTY BOARD OF ELECTIONS, Respondent. Original Action in Mandamus and Prohibition, Expedited Election Matter Pursuant to S.Ct. Prac.R. X 9 REPLY BRIEF OF RELATORS JEANINE A. HUMMER ( ) ToM LINDSEY ( ) CITY OF UPPER ARLINGTON 3600 Tremont Road Upper Arlington, Ohio Tel: (614) Fax: (614) jhummer@uaoh.net Counsel for Relator City of Upper Arlington DONALD J. McTiGUE ( ) MARK A. McGiNNiS ( ) THE MCTIGUE LAW GROUP 550 East Walnut Street Columbus, Ohio Tel: (614) Fax: (614) mctiguelaw@rrohio.com Special Counsel for Relator City of Upper Arlington and Counsel for Relators Margaret Concilla and David A. Varda PATRICK J. PICCININNI ( ) ASST. FRANKLIN CTY. PROSECUTOR 373 South High Street, 14th Floor Columbus, Ohio Tel: (614) Fax: (614) pjpiccin@franklincountyohio.gov Counsel for Respondent Franklin County Board of Elections JAMES C. BECKER ( ) 4380 Braunton Road Columbus, Ohio Tel: (614) Fax: (614) Jbecke3@columbus.rr.com Counsel for Intervening Respondent Michael A. Schadek ^ CLERK OF COURT SUPREME COURT QF OHIO

2 STEPHEN L. BYRON ( ) REBECCA K. SCHALTENBRAND ( ) Schottenstein, Zox & Dunn Co., L.P.A. Intestate Square Building I 4230 State Route 306, Suite 240 Willoughby, Ohio Tel: (440) Fax: (216) JOHN GOTHERMAN ( ) OHIO MUNICIPAL LEAGUE 175 S. Third Street, #510 Columbus, Ohio Tel: (614) Fax: (614) Jgotherman(&-columbus.rr.com STEPHEN J. SMITH ( ) SCHOTTENSTEIN, Zox & DUNN Co., L.P.A. 250 West Street Columbus, Ohio Tel: (614) Fax: (614) ssmithc&szd.com ROBERT H. WILLARD ( ) HARRIS & MAZZA 941 Chatham Lane Suite 201 Columbus, Ohio Tel: (614) Fax: (614) robertwillard@harrismazzalaw.com Attorney for Amicus Curiae, Germaine Hirsch, William D. Kloss, Sr., Robert H. Maynard, Daniel McCormick, Melanie F. Myers, John E. Ross and Beverlee A. Tague, Residents Taxpayers and Registered Voters of the City of Upper Arlington, Ohio in support of Respondent Franklin County Board Of Elections and Intervening Respondent Michael A. Schadek and urging denial of the writ Attorneys for Amicus Curiae The Ohio Municipal League in support of Relators m

3 TABLE OF CONTENTS TABLE OF CONTENTS... iii TABLE OF AUTHORITIES... iv INTRODUCTION STATEMENT OF THE CASE AND FACTS... I ARG U M E NT The Initiative Does Not Propose A Law And Must Be Rejected... 5 The Initiative Does Not Contain The Required Number Of Signatures Of Electors And Must Be Rejected... 9 The Initiative Petition Fails To Designate A Committee And Must Be Rejected CONCLUSI ON CERTIFICATE OF SERVICE PAGE(S) 11

4 TABLE OF AUTHORITIES Cases PAGE(S) Buckeye Community Hope Foundation v. City of Cuyahoga Falls (1998), 82 Ohio St. 3d 539, 697 N.E.2d Christy v. Summit Cty. Bd. Of Elections, 77 Ohio St.3d 35, 1996-Ohio-357, 671 N.E.2d Doss Petroleum v. Columbiana County Board of Elections (Columbiana App.), 164 Ohio App.3d 255, 2005-Ohio-5633, 842 N.E.2d Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 495 N.E.2d State ex rel Baldzicki v. Cuyahoga Cty. Bd. Of Elections, 90 Ohio St.3d 238, 2000-Ohio-67, 736 N.E.2d State ex rel Brady v. Blackwell, 112 Ohio St.3d 12, 2006-Ohio-5878, 857 N.E.2d State ex rel. Citizen Action v. Hamilton Cty. Bd. Of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875N.E.2d , 7 State ex rel. DeBrossse v. Cool. 87 Ohio St.3d 1, 1999-Ohio-239, 716 N.E.2d ,6 State ex rel. Evans v. Blackwell, 111 Ohio St.3d 1, 8, 2006-Ohio-4334, 854 N.E.2d State ex rel. Harbarger v. Cuyahoga Cty. Bd. Of Elections (1996), 75 Ohio St. 3d 44, 661 N.E.2d State ex rel. McMillian v. Ashtabula Cty. Bd. Of Elections. 65 Ohio St.3d 186, 189, 1992-Ohio-85, 602 N.E.2d State ex rel. Moore v. Malone. 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d iii

5 State ex rel Oberlin Citizens for Responsible Development v. Talarico, 106 Ohio St. 3d 481, 2005-Ohio-5061, 836 N.E.2d , 5, 6, 8 State ex rel Patterson v. Schirmer (1934), 129 Ohio St. 143, 146, 194 N.E State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d State ex rel. Thurn v. Cuyahoga Cty. Bd. Of Elections (1995), 72 Ohio St.3d 289, 649 N.E.2d State ex rel Youngstown v. Mahoning Cty. Bd. Of Elections, 72 Ohio St.3d 69, 1995-Ohio-184, 647 N.E.2d State ex rel. Wolfe v. Delaware Cty. Bd. Of Elections, 88 Ohio St.3d 182, 186, 2000-Ohio-294, 724 N.E.2d CONSTITUTIONAL AND STATUTORY PROVISIONS SECTION 1f, ART. II, Ohio Constitution R.C R.C R.C R.C R.C , 4 iv

6 I. INTRODUCTION Relators City of Upper Arlington, David Varda, and Margaret Concilla are seeking a writ of prohibition because of the failure of an initiative petition to meet the most basic constitutional and statutory requirements necessary to the exercise of the right of initiative in a municipality, including the failure to propose a law or to be signed by electors of the municipality equal to at least ten percent of the number of votes cast by electors of the municipality in the most recent gubernatorial election. 11. STATEMENT OF THE CASE AND FACTS Relators would supplement the Statement of the Case and Facts in the Merit Brief with the following additional facts: Relator offered into evidence the sworn affidavit of City Manager Virginia Barney and various exhibits without objection from the Intervening Respondent. (Transcript 9/8/08 pg 7, Joint Evidence Exhibit A, Bates ) Karen Cotton, the manager of election operations, testified at the protest hearing that the reason for not including the votes for governor on the absentee ballots was because it "is the way we have always done it, since absentee at that time was a separate precinct." (Transcript 9/8/08 pg 37, Joint Evidence Exhibit A, Bates ). Franklin County Board of Elections records demonstrate that 4,854 absentee ballots were returned from Upper Arlington absentee voters. (Damschroder Affidavit 7, Bates ) These absentee ballots were not included in the 13,536 figure used by the Board. (Intervening Respondent Brief pg 3) 1

7 Ill. ARGUMENT: RELATORS ARE ENTITLED TO A WRIT OF PROHIBITION Intervening Respondent's contention that the Board did not exercise quasijudicial power is unsupported by the law or the facts. R.C (A)(2) required the Board of Elections to hold a hearing and make a determination on whether the petition violated the legal requirements. R.C does not require the presentation of live testimony by sworn witnesses and "sworn testimony" is not a requirement of exercising judicial or quasi-judicial power. Furthermore, the Board of Elections has stipulated that "it has exercised quasi-judicial power by denying Relators' protest and that Relators are without an adequate remedy at law if the writ is denied." (Respondent's Brief pg 2) This Court has previously held that a "protest hearing in election matters is a quasi-judicial proceeding." State ex rel. Harbarger v. Cuyahoga Cty. Bd. Of Elections (1996), 75 Ohio St.3d 44, 45, 661 N.E.2d 699. See also State ex rel. Oberlin Citizens for Responsible Development v. Talarico, 106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, 14-17(City auditor's lack of quasi-judicial power contrasted with board of election's responsibility to determine legislative nature of proposed ordinance.). This Court has never held that "sworn testimony" is a requirement of exercising judicial or quasi-judicial power. Contrary to Intervening Respondent's assertion, this Court in State ex rel Youngstown v. Mahoning Cty. Bd. Of Elections, 72 Ohio St.3d 69, 1995-Ohio-184, 647 N.E.2d 769 did not hold "that since there had not been a hearing resembling a judicial trial, including the swearing in of witnesses and the presentation of evidence, that judicial or quasi-judicial power had not been exercised". (Intervening Respondent Brief, pg 8.) The actual holding was that the board of elections' ministerial decision to hold the city council election "was not the appropriate subject for a statutory 2

8 protest. Therefore, no hearing was required." Youngstown at 72. This Court never even discussed the swearing in of witnesses or the presentation of evidence. In State ex rel. Baldzicki v. Cuyahoga Cty. Bd. Of Elections, 90 Ohio St.3d 238, 2000-Ohio-67, 736 N.E.2d 893, this Court's denial of the writ was based on the fact that "no statute or other pertinent law required the board to conduct a hearing". Baldzicki at 242. In the present case, R.C required the Board to hold a hearing and make a determination. While the Court noted that "no sworn testimony was introduced at the hearing", the Court also noted that the protester's evidentiary documents "were not formally introduced into evidence at the hearing and were not made part of the board hearing". Baldzicki at 242. It was the absence of any evidence - not the absence of sworn testimony - that prompted the Court's observation that the hearing was more of an appellate argument than an evidentiary hearing. This suggests that the real requirement is the presentation of evidence not the live testimony of a sworn witness. In the present case, the transcript of the Board of Elections protest hearing indicates that Relator offered into evidence the sworn affidavit of City Manager Virginia Barney and various exhibits without objection from the Intervening Respondent. In addition, Counsel for Intervening Respondent also offered an exhibit into the record during the hearing. Therefore, the hearing held by the Board was a quasi-judicial hearing and prohibition is the appropriate remedy. In the other two cases cited by Intervening Respondent this Court does not even discuss, let alone decide, whether sworn testimony is a requirement of quasi-judicial power. The references to sworn testimony appear as factual statements, not legal holdings, and do not even qualify as dicta. In Christy v. Summit Cty. Bd. Of Elections, 77 Ohio St.3d 35, 1996-Ohio-357, 671 N.E.2d 1, the Court denied the writ on other 3

9 grounds so the presence of sworn testimony was non-determinative of the case. In State ex rel. Thum v. Cuyahoga Cty. Bd. Of Elections (1995), 72 Ohio St.3d 289, 649 N.E.2d 1205, the Court held that the board exercised quasi-judicial authority because "R.C required a hearing which in some respects resembled a judicial trial". Thurn at 292. While observing that the particular hearing included "sworn testimony", the Court did not hold that every quasi-judicial hearing under R.C requires "sworn testimony". This Court is well aware that not every exercise of judicial power requires the live testimony of sworn witnesses. Judicial determinations are routinely made on the basis of affidavits, such as summary judgments granted under Civ.R. 56 or search warrants issued under Crim. R. 41. In fact, this Court's decision in this case - and almost every other original action - will be based on affidavits and exhibits. S.Ct. Prac.R. X, 7. See State ex rel. Brady v. Blackwell, 112 Ohio St.3d 12, 2006-Ohio-5878, 857 N.E.2d 1190 (By failing to submit an affidavit, Secretary of State failed to prevent sworn evidence of delegation.) The sworn affidavit of City Manager Barney offered without objection at the hearing was sufficient sworn evidence for the Board to make a quasi-judicial determination. In fact, judicial determinations are also made based on the factual stipulations of the parties or when no genuine issues of fact exist. The essence of the exercise of judicial power is not the holding of a trial, but the application of law to a particular set of facts. While not necessary for the Court to decide in this case, Relator would submit that even if no evidence had been submitted, the protest hearing required by R.C could still constitute the exercise of quasi-judicial power. 4

10 Furthermore, in addition to the sworn affidavit of City Manager Barney presented by Relators, the Board heard the testimony of Karen Cotton, the manager of elections. Intervening Respondent never requested that Ms. Cotton be sworn and never objected to the form of the Board's hearing. While Ms. Barney was present at the hearing, Intervening Respondent never sought to cross-examine her or to question her affidavit. Furthermore, Counsel for Intervening Respondent also offered an exhibit into the record during the hearing. Therefore, he has waived any claim that the Board did not exercise quasi-judicial power in overruling Relators protest without requiring the live testimony of sworn witnesses. a. The Initiative Does Not Propose a Law and Must Be Rejected There is no basis of support for Intervening Respondent's claim that Relators' challenge to the proposed ordinance is not ripe. Relator is well aware of this Court's prior decisions that it will not consider the constitutionality of an initiative ordinance prior to its approval by the voters and that initiative is available to repeal a legislative ordinance. State ex rel. DeBrosse v. Cool, 87 Ohio St.3d 1, 1999-Ohio-239, 716 N.E.2d While the proposed ordinance would constitute an unconstitutional impairment of contract see Middletown v. Ferguson (1986), 25 Ohio St.3d 71, 495 N.E.2d 380, Relators did not raise that issue in the Board protest. The issue Relators did raise, and that is ripe for this Court's determination, is whether the proposed ordinance violates Art. II, 1f of the Ohio Constitution limiting the right of initiative to legislative measures. See State ex rel. Oberlin Citizens for Responsible Development v. Talarico, 106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, 131 (Ordinance 5

11 proposed to repeal city ordinance approving a development agreement and authorizing and directing the city manager to execute the agreement.). An ordinance approving an action taken or to be taken under an existing law is considered administrative because it merely implements existing law or provides a stamp of approval that may not actually be required under the existing law. See, Buckeye Community Hope Foundation v. Cuyahoga Falls (1998), 82 Ohio St.3d 539, 545, 697 N.E.2d 181. Therefore, this Court's determination of whether the proposed ordinance was legislative or administrative can not be decided without consideration of the City's existing ordinances. Relators' Merit Brief fully set forth the City Manager's authority to execute the contract under Chapters 131 and 138 of the Codified Ordinances and need not be repeated here. However, Relator would note that Respondent and Intervening Respondent's Briefs do not dispute or even address the City's existing ordinances. As previously noted, it is not unusual for a Council to pass an ordinance approving or affirming administrative action that is already authorized under existing law. The cases relied upon by Intervening Respondent do not involve the execution of a contract by a City Manager that already has the necessary authority pursuant to the city's existing ordinances. As this Court observed in Oberlin Citizens, there is "no indication in Sharpe that the ordinance at issue there simply executed laws already in existence, as the ordinance here does." Oberlin Citizens at 486. Similarly, there is no indication in DeBrosse whether Piqua's existing ordinances authorized the hiring of independent legal counsel to pursue legal action to protect the city's legal interests in the Piqua Memorial Medical Center. Likewise, in State ex rel. Citizen Action v. Hamilton Cty. Bd. Of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902 there is no 6

12 indication that the existing ordinances provided such authority for the acquisition of park land. Furthermore, courts had previously held "that ordinances providing for acquisition of private property are legislative in nature" and "the power of eminent domain involves the exercise of legislative authority." Citizen Action at Intervening Respondent claims the proposed ordinance will "implement a trash removal system requiring ( 1) garage-side trash pickup (2) by the city's own employees (3) with no annual fee for trash collection." (Intervening Respondent Brief pg 11). Respondent claims the ordinances purposes the abandonment of "privatization" in favor of "pay as you throw approach". ( Respondent Brief pg 6) However, the ordinance does not actually require any of these things. If adopted by a vote of the people, this is how the "new law" would actually read: Section I. That the residents of Upper Arlington do not desire the "privatization" of trash services and want to continue Upper Arlington's "pay as you throw approach" requiring solid waste stickers for refuse collection and not for recycling with garage-side pick at their homes by the City's own employees with no annual fee for trash collection. Section II. That the residents of Upper Arlington don't want the City's Administration to enter into any such contract authorized under Upper Arlington Ordinance No with Inland Service Corporation for solid waste collection and processing services or any other third party contractor prior to a vote on this initiative at the next general election; but in the event that the City chooses to ignore this initiative process and enter into a contract with Inland Service Corporation such resolution and/or ordinance shall be and hereby is 7

13 repealed and the City shall pay for and be responsible for any contract damages to Inland Service Corporation. Even if the proposed ordinance had been written to actually repeal Ordinance No as opposed to the conditional repeal language that will never occur and is illusory - the proposed ordinance still fails to accomplish any legislative action. Ordinance No was administrative in nature and its repeal retains that administrative quality. The test is not simply whether Council passed the ordinance, but whether the ordinance was legislative or administrative. Since Ordinance No was administrative in nature, the repeal of Ordinance No retains that administrative quality and is not the proper subject for initiative. Oberlin Citizens for Responsible Development, 106 Ohio St.3d at 482. Furthermore, as discussed in Relators' Brief, the repeal of Ordinance No would only serve to revive Ordinance No which is essentially identical to Ordinance No Respondent and Intervening Respondent did not address this issue in their briefs. The proposed ordinance does not contain language that creates new rights or duties or even requires any changes in the solid waste disposal system. All it does is ask whether the residents "desire" the privatization of trash services, "want" the City to enter into such a contract, or "want" to continue garage-side pickup by the City's own employees. Contrary to Respondent's contention, the "pay as you throw approach" is not a new legislative purpose since it was continued under the contract with Inland Service Corporation. However, this resident opinion poll does not propose any legislative action to prohibit or terminate the City's existing contract with Inland Service Corporation or actually reinstitute garage-side pickup with City employees. 8

14 It should also be noted that the selection of who does the work (Contractor or City employees) involves administrative action and not legislative action. Relator has previously explained the City Manager's authority to contract for solid waste disposal. In the case of using City employees, this would also be an administrative process controlled by the state's collective bargaining laws and any recall rights provided in the agreement with the union. Therefore, even if the proposed ordinance did require trash pickup by City employees, this would not constitute legislative action. The proposed ordinance also does not contain any language that repeals the annual trash fee. The ordinance only asks whether residents "want" the annual fee. The $30 annual fee for solid waste collection was adopted in Ordinance No which amended UACO Chapter 935. While Ordinance No was legislative, the proposed ordinance does not repeal, amend, or even refer to Ordinance or UACO Chapter 935. Respondent's decision and action is unauthorized by law and contrary to Art. II, 1f, Ohio Constitution and other clear legal provisions and an abuse of discretion. Since Relators otherwise lack a plain and adequate remedy in the ordinary course of law, this Court should issue a Writ of Prohibition. b. The Initiative Does Not Contain the Required Number of Signatures of Electors and Must Be Rejected Respondent and Intervening Respondent have not provided this Court with any legal authority for the Board of Elections to approve an initiative petition that does not meet the signature requirement set forth R.C They simply ask this Court to ignore all of the absentee ballots because the Board can not determine the exact number of absentee votes for governor. However, the Board, and this Court, can 9

15 determine that the petition does not comply with the statute without determining the exact number of votes. Contrary to Intervening Respondent's suggestion, Relator is not "asking this Court to "guess", "theorize", "speculate", or "estimate" the actual number of votes case for governor. Mr. Damschroder is simply incorrect in his assertions that the 1,354 number is "the only number that can be accurately calculated" and that the initiative petition "contained the required number of signatures." (Damschroder Affidavit 10-11) As set forth below, Relator has "accurately calculated" the lowest possible number of votes cast for governor to prove without a doubt that the petition does not meet the signature requirement for submission to the ballot. Respondent has determined that there were 9,791 absentee ballots cast using Ballot Style #10 (9,000 by mail and 791 on machines at the board's office). Respondent determined that 239 of the 9,791 ballots did not contain a valid vote for governor (24 overvotes and 215 undervotes). Respondent has also determined that 4,854 of the 9,791 absentee ballots were cast by Upper Arlington voters. If all 239 over and under votes are attributed to Upper Arlington absentee voters and subtracted from the number of Upper Arlington absentee ballots, then the Board can determine with absolute certainty that 4,615 is the lowest possible number of votes for governor cast by absentee voters in the City of Upper Arlington (4,854 minus 239 equals 4,615). By combining this number with the number of votes for governor at the polls in Upper Arlington, the Board can determine with absolute certainty that 18,151 is the total lowest possible number of votes for governor cast by electors of the City of Upper Arlington (13,536 plus 4,615). Therefore, the lowest possible number of signatures required by R.C is at least 1,815 (10% of 18,151). 10

16 The initiative petition only contains 1,663 valid signatures. There is no disputing that 1,663 is less than 1,815. Therefore, the Board, as well as this Court, can determine without any doubt that the initiative petition did not contain the sufficient number of elector signatures required by R.C The Board has no statutory authority or discretion to simply ignore the votes cast for governor by absentee voters. The signature requirement in R.C is unambiguous and there is no reason to liberally construe it. State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, 34 (Rejecting initiative petitioners' argument that R.C be liberally construed.); State ex rel. Wolfe v. Delaware Cty. Bd. Of Elections, 88 Ohio St.3d 182, 186, 2000-Ohio-294, 724 N.E.2d 771 (Rejecting sheriff candidate's argument that R.C be liberally construed). According to Intervening Respondent, the Board has also failed to include the absentee ballots in determining the validity of a large number of initiative, referendum, or liquor options petitions. No protests involving this issue were filed against any of these petitions. It is due to Relators' timely filed protest that the Board's failure to count the absentee ballots has been brought to light. The sheer number of times the Board has consistently failed to follow the statutory requirements does not make it right. Respondent and Intervening Respondent both note that the absentee ballots were under seal as part of an election contest case. This is a red herring since the access granted after this case was filed did not change the Board's ability to determine the exact number of votes cast in Upper Arlington. 11

17 While it is unfortunate that the Board provided Counsel for Intervening Respondent with the wrong number, this Court has previously held that mistaken advice by a board of elections regarding the number of signatures required does not estop the board from invalidating a referendum petition, State ex rel. Moore v. Malone, 96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812, 40, or removing a candidate from the ballot. State ex rel. McMillian v. Ashtabula Cty. Bd. Of Elections, 65 Ohio St.3d 186, 189, 1992-Ohio-85, 602 N.E.2d 631; also see Doss Petroleum v. Columbiana County Board of Elections (Columbiana App.), 164 Ohio App.3d 255, 2005-Ohio-5633, 842 N.E.2d 420 (Board of Elections clerk told the petitioners that they would need to submit 82 valid signatures to appear on the ballot when they actually needed to submit 96 valid signatures.) In denying the protest and allowing the issue to be placed on the ballot, Respondent has disregarded and acted contrary to the clear legal requirements of R.C for submission of the issue. c. The Initiative Petition Fails to Designate a Committee and Must Be Rejected Relators argument that the committee requirement of R.C is mandatory is based upon the reading R.C and R.C and (I)(2)(b) in pari materia as this Court has previously done in election cases. State ex rel Patterson v. Schinner (1934), 129 Ohio St. 143, 146, 194 N.E. 13 and State ex rel Evans v. Blackwell (2006), 111 Ohio St. 3d 1, 8, 2008-Ohio-4334, 854 N.E.2d Respondent and Intervening Respondent failed to even discuss R.C (I)(2)(b) in their briefs. As set forth in Relators' Brief, this provision providing 12

18 that an issue may be only be withdrawn from the ballot by a majority of the "petitioning committee" establishes the legislative intent to require the naming of a committee on a municipal initiative petition. IV. CONCLUSION In denying the protest and allowing the issue to be placed on the ballot, Respondent has exercised quasi-judicial authority contrary to clear legal requirements for submission of the issue. For all the reasons set forth herein and in the Merit Brief, Relators respectfully request this Court to issue a writ of prohibition preventing Respondent from placing the issue on the ballot. Respectfully submitted INE A. HUMI ( ) M LINDSEY ( ) CITy OF UPPER ARLINGTON 3600 Tremont Road Upper Arlington, Ohio Tel: (614) Fax: (614) jhummer@uaoh.net Counsel for Relator City of UpperArlington DoriALD J. McTIGUE (00228'49) MARKA. MCGINNIS ( ) THE MCTIGUE LAW GROUP 550 East Walnut Street Columbus, Ohio Tel: (614) Fax: (614) mctiguelaw@rrohio.com Special Counsel for Relator City of Upper Arlington and Counsel for Relators Margaret Concilla and David A. Varda 13

19 CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was transmitted via facsimile machine, electronic mail and/or personal service, this ^ day of September, 2008, to: PATRICK PICCININNI ASST. FRANKLIN CTY. PROSECUTOR 373 South High Street, 14th Floor Columbus, Ohio Fax: (614) pipiccinafranklincountyohio.gov STEPHEN J. SMITH ( ) SCHOTTENSTEIN, Zox & DUNN Co., L.P.A. 250 West Street Columbus, Ohio Tel: (614) Fax: (614) ssmith@szd.com JAMES C. BECKER 4380 Braunton Road Columbus, Ohio Fax: (614) Jbecke30)-columbus. rr.com Attorneys for Amicus Curiae The Ohio Municipal League in support of Relators ROBERT H. WILLARD ( ) HARRIS & MAZZA STEPHEN L. BYRON ( ) 941 Chatham Lane REBECCA K. SCHALTENBRAND ( ) Suite 201 SCHOTTENSTEIN, Zox & DUNN Co., L.P.A. Columbus, Ohio Interstate Square Building I Tel: (614) State Route 306, Suite 240 Fax: (614) Willoughby, Ohio robertwillard@harrismazzalaw.com Tel: (440) Fax: (216) sbvron(dszd.com JOHN GOTHERMAN ( ) OHIO MUNICIPAL LEAGUE 175 S. Third Street, #510 Columbus, Ohio Tel: (614) Fax: (614) jgothermanccilcolumbus.rr.com Attorney for Amicus Curiae, Germaine Hirsch, William D. Kloss, Sr., Robert H. Maynard, Daniel McCormick, Melanie F. Myers, John E. Ross and Beverlee A. Tague, Residents, Taxpayers and Registered Voters of the City of Upper Arlington, Ohio in support of Respondent Franklin County Board of Elections and Intervening Respondent Michael A. Schadek and denial of the writ 14