BEFORE THE BOARD OF ELECTIONS LUCAS COUNTY, OHIO

BEFORE THE BOARD OF ELECTIONS LUCAS COUNTY, OHIO IN RE: REQUEST TO SET DATE / FOR RECALL ELECTION OF / MAYOR CARLETON S. FINKBEINER / / / / Scott A. Ciolek (0082779) / CIOLEK & WICKLUND / 520 Madison Avenue, Suite 820 / Toledo, OH 43604 / (419) 491-7270 / (866) 890-0419 / scott@cw.law.pro / / ATTORNEY FOR / TAKE BACK TOLEDO RESPONSE TO MAYOR FINKBEINERʼS NOTICE OF PROTEST Now come Respondents Take Back Toledo, by and through counsel, and respectfully request an opportunity to raise several points in response to Mayor Finkbeinerʼs Notice of Protest dated April 18, 2009: 1. The Take Back Toledo recall petition is governed by the Toledo Charter, and parallel provisions contained in the Ohio Revised Code are therefore inapplicable; 2. The Take Back Toledo recall petition meets all applicable requirements set forth in the Toledo Charter; 3. Take Back Toledo has gathered a number of valid signatures more than sufficient to place the recall issue on the September 15, 2009 ballot. For these reasons, Take Back Toledo respectfully requests the Board of Elections to deny Mayor Finkbeinerʼs request to reverse the Clerk of Councilʼs decision to certify the Take Back Toledo recall petition. 1

MEMORANDUM IN SUPPORT On April 9, 2009, Take Back Toledo, a group of local citizen activists, delivered to the Clerk of Council a petition to recall Mayor Carleton S. Finkbeiner. On April 28, 2009, Mayor Finkbeiner filed a Notice of Protest, claiming that the recall petition failed to meet all statutory requirements. Specifically, Mayor Finkbeiner argues, the recall petition fails to comply with the requirement of Ohio Revised Code 3501.38(J). 1 However, this argument fails for several reasons. First and foremost, Revised Code 3501.38(J) does not apply to the Take Back Toledo recall petition because the Toledo Charter provides a comprehensive regulatory scheme governing recall petitions. Second, the Take Back Toledo recall petition satisfies every applicable requirement set forth in the Toledo Charter. As such, the Clerk of Council properly certified the Take Back Toledo recall petition, and Take Back Toledo respectfully requests the Board of Elections to comply with the Clerkʼs request to fix a day for holding the recall election at the next regular municipal election, pursuant to Toledo Charter Section 87(A). 2 A. Because the Toledo Charter provides a comprehensive regulatory scheme regarding recall petitions, parallel provisions of the Ohio Revised Code do not affect the Take Back Toledo recall petition. Mayor Finkbeinerʼs primary objection to the Take Back Toledo recall petition is alleged noncompliance with Ohio Revised Code 3501.38(J). 3 Of course, this argument begs the question of whether the Take Back Toledo petition is in fact subject 1 Notice of Protest, page 1. Pursuant to ORC 3501.38(J), All declarations of candidacy, nominating petitions, or other petitions under this section shall be accompanied by the following statement in boldface capital letters: WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE. 2 In this case, the next regular municipal election will be September 15, 2009. 3 Notice of Protest, page 1. 2

to state law. As a background principle, a Municipal Charter takes precedent over the Revised Code in matters relating to referenda. State ex rel. Blackman v. Hitte, 449 N.E.2d 1279 (Ohio, 1983). Pursuant to Section 11 of the Toledo Charter: [a]ll elections provided for by this Charter, whether for the choice of officers or the submission of questions to the voters, shall be conducted by the election authorities prescribed by general laws and the provisions of the general laws of the State shall apply to all such elections except as provision is otherwise made by this Chapter [emphasis added]. Thus, as Mayor Finkbeiner apparently concedes, state election law is supplanted where localities enact comprehensive regulations: In the absence of any local provisions as to their form and content, [Toledo] recall petitions...remain subject to state law. 4 Notwithstanding the Mayorʼs impressive-sounding exposition of pertinent legislative history, the Toledo Charter provides a clear, comprehensive regulatory scheme governing recall petitions, and Revised Code 3501.38(J) is therefore inapplicable to the Take Back Toledo recall petition. 1. The Toledo Charter governs the form and content of recall petitions. In his Notice of Protest, Mayor Finkbeiner contends that the Toledo Charter does not contain any local provisions as to [the] form and content of recall petitions. However, contrary to Mayor Finkbeinerʼs assertions, the Toledo Charter contains numerous provisions as to the form and content of recall petitions. Many of these requirements are set forth in Section 87(A), which requires that a recall petition must contain a statement of the grounds for the recall. This statement of particulars may not exceed two hundred (200) words. Regarding form, content and procedure, Section 87(A) is significantly more detailed than the recall petition requirements adopted 4 Notice of Protest, page 7. 3

by Toledo in 1914. 5 To say the least, it is somewhat odd for Mayor Finkbeiner to argue that the 1914 recall requirements contained provisions regarding form and content sufficient to supersede the Ohio Revised Code, yet a significantly more detailed regulatory regime adopted in 1992 does not. In addition to the requirements of Section 87(A), the Toledo Charter contains several additional provisions affecting the form and content of recall petitions. For example, Section 94 states as follows: Every petition, whether for initiating an ordinance or other purpose, shall bear the names of five electors whose names shall appear on each petition paper, and who shall thereon be designated as the proponents of the proposition of the petition, and who shall be recognized as the committee in charge thereof [emphasis added]. Given the every petition and or other purpose language, Section 94 is applicable to recall petitions. Without a doubt, this signature requirement affects both form and content. Moreover, pursuant to Section 93 of the Toledo Charter: Petition papers circulated with respect to any proposition shall be uniform in character and form. The Clerk shall determine and keep on file forms of blanks to be used in the several instances of petition, and all petition papers shall conform to such forms, respectively [emphasis added]. Regarding the language of Section 93, two points must be emphasized. First, the uniformity requirement applies to any proposition, which necessarily includes petitions for recall. Second, further underscoring the supremacy of local standards as to form and content, Section 93 provides the Clerk with authority to determine and keep on file 5 Section 92 of the Toledo Charter, as adopted in 1914, read as follows: A petition for recall, or to initiate an ordinance, or for a referendum of an ordinance or resolution, or of an amendment to this charter, need not be made on one paper, but may be the aggregate of two or more petition papers. Each signer of a petition paper shall sign his or her name in ink or indelible pencil, and shall place thereon, after his or her name, his or her place of residence by street and number. To each paper there shall be attached an affidavit by the circulator thereof stating the number of signers thereto and that each signature thereon is the genuine signature of the person whose name it purports to be, and that it was made in the presence of the affiant. 4

forms of blanks for petitions. Where the Clerk sets standards regarding form and content, all petition papers shall conform to those standards. By vesting this authority with the Clerk, Section 93 undercuts Mayor Finkbeinerʼs contention that there are are no current local provision for form and content of recall provisions. 6 In fact, the Clerk has promulgated a Sample Recall Petition, which specifies both form and content. 7 Issuing this form is a clear manifestation of Toledoʼs intent to regulate all aspects of the recall process. As the above discussion illustrates, various provisions of the Toledo Charter provide a comprehensive regulatory scheme governing recall petitions. Of equal significance, Section 87(A) also contains language indicating that the form and content of recall petitions are governed exclusively by the Toledo Municipal Code. As discussed Above, Section 87(A) requires a statement in not more than two hundred words of the grounds for the recall. In addition, Section 87(A) states: Such petition to be sufficient shall be signed by at least that number of electors which equals twenty-five percent (25%) of the electors voting at the last regular City election for that office. Within ten (10) days after the day on which such petition shall have been filed, the Clerk shall determine whether or not it meets the requirements hereof......if the Clerk shall find the petition sufficient, the Clerk shall promptly so certify to the election authorities, shall deliver a copy of such certificate to the officer whose removal is sought, and shall make a record of such delivery [emphasis added]. To be sufficient under Section 87(A), a recall petition must meet the requirements hereof, as verified by the Clerk of Council. When interpreting Section 87(A), it should 6 Notice of Protest, page 7. 7 Appendix A, Sample Recall Petition. 5

be presumed that Toledo City Council chose these specific words with purposeful intent. When interpreting a legislative enactment:...a cardinal rule is that the legislature will be presumed to have inserted every part of a statute for a purpose and to have intended that every part should be carried into effect. Indeed, it is also a cardinal rule that significance and effect should be accorded every part of the statute including every section, paragraph, sentence, clause, phrase and word. State v. Kasnett, 283 N.E.2d 636 (Ohio App. 4 Dist., 1972 (overruled on other grounds; citing United States v. Fisher, 109 U.S. 143 (1883)). In the context of Section 87, Toledo City Councilʼs use of the word hereof is a clear manifestation of intent to supersede the Ohio Revised Code in matters related to recall petitions. By its nature, the word hereof is a term denoting exclusivity. According to Blackʼs Law Dictionary, hereof means of this thing (such as a provision or document). 8 Merriam-Webster Dictionary defines the term as meaning of this. 9 As one author recently noted, many documents provide that here, as in hereof and hereby, refers to the entire document. 10 For this reason, hereof, as in ʻsection 2 hereof,ʼ can simply be dropped...unless otherwise stated, section references are to sections of the document. 11 In light of these definitions, the only reasonable meaning of the phrase requirements hereof is requirements within the Toledo Municipal Code. 2. The recall provisions found in the Toledo Charter are sufficiently comprehensive to preclude application of the Ohio Revised Code. Essentially, the Mayor argues that state law should govern Toledo recall petitions because the recall provisions enacted by Toledo in 1992 do not expressly re-affirm 8 Blackʼs Law Dictionary 744 (8th ed. 2004). 9 Merriam Webster Online, http://mw1.m-w.com/dictionary/hereof (last visited May 25, 2009). 10 Howard Darmstadter, Hereof, Thereof, and Everywhereof: A Contrarian Guide to Legal Drafting 5 (American Bar Association, 2nd ed. 2008). 11 Id. 6

earlier recall provisions deleted from the Charter in 1934. 12 As a matter of common sense, however, legislative intent in 1992 does not necessarily reflect legislative intent in 1934. As discussed above, the Toledo Charter manifests clear intent to provide a comprehensive regulatory scheme regarding recall petitions. Additionally, Ohio courts considering the same issues have declined to apply state law in absence of express provisions incorporating state law. In Wilson v. City of Pickerington, the Fifth District Court of Appeals concluded that Revised Code 3501.38 did not apply to a local recall effort where the locality had adopted a recall procedure in its charter, reasoning as follows: Article VIII, Section 8.07(3) of the Municipal Charter sets forth the recall procedure for removing elected officials in the Municipality of Pickerington, Ohio. Unlike Sections 8.07(1) and (2) which concern initiatives and referendums, respectively, Section 8.07(3) does not contain any language either referencing or incorporating state laws. Further, the text of Section 8.07(3) contains requirements for recall procedures which are less stringent than those set forth in R.C. 3501.38. In light of the conspicuous absence of language in Section 8.07(3) incorporating state laws and that Section's clear rejection of R.C. 3501.38's additional requirements, we find the procedures set forth in R.C. 3501.38 to be inconsistent with the procedures which the Pickerington Municipal Charter intends to utilize. Because we find R.C. 3501.38's additional requirements to be inconsistent with Section 8.07(3), we find the recall petition in the instant case was not required to comply with R.C. 3501.38 pursuant to the express language of Municipal Charter Section 1.02 [emphasis added]. 1996 Ohio App. LEXIS 2893. The Ohio Supreme Court reached a strikingly similar result in State, ex rel. Blackman v. Hitte: Section 4.06 of the charter provides, in pertinent part: "* * * such recall election [shall be] conducted by the Board of Elections of Warren County, Ohio, as stated in Section 11.02 * * *." Section 11.02 provides, in part: "Conduct of Elections. Both regular and special Municipal elections shall be conducted by the Board of Elections of Warren County, Ohio, under the provisions of this Charter. Where the Charter is silent, the provisions of the State election law shall be followed. * * *" First, we note that both of these provisions deal with the conduct of elections 12 Notice of Protest, pages 5-8. 7

rather than the components of recall petitions. Furthermore, this court has already held that a municipal charter takes precedence over the Revised Code in matters relating to referenda: "Thus, in Ohio National Bank, this court in finding R.C. 3501.38 (E) inapplicable to the circulators' petitions stated: 'It is apparent, therefore, that the circulators need not be in compliance with R.C. 731.29 to 731.40, or other provisions of the Revised Code relating to a referendum, but must be in compliance with the city charter.'" State, ex rel. Madison, v.. Cotner (1981), 66 Ohio St. 2d 448, 451. In light of the logic of Madison and Ohio National Bank, as well as the limited language of Sections 4.06 and 11.02 of the charter, we need not impose the requirements of R.C. 3501.38(J) on relators' petitions. 449 N.E.2d 1297 (1983). Regarding recall petitions, the Toledo Charter is at least as detailed as the charter provisions in Wilson and Hitte, and this authority therefore supports the conclusion that Revised Code 3501.38(J) does not apply to the Take Back Toledo recall petition. Mayor Finkbeinerʼs lengthy exposition of legislative history may be of limited academic interest, but is superfluous for the purposes of resolving this dispute, and only functions to muddy the waters surrounding an otherwise straightforward issue. The Toledo Charter provides a comprehensive regulatory scheme, and contains no express provisions incorporating the Ohio Revised Code. As such, the Clerk of Council correctly concluded that Revised Code 3501.38(J) is inapplicable in these circumstances. B. The Take Back Toledo recall petition satisfies every applicable requirement set forth in the Toledo Charter. As discussed above, a petition to recall a Toledo mayor is governed exclusively by the Toledo Charter. The petitions utilized by Take Back Toledo meet all applicable requirements found in the Charter, including: 1) A statement of grounds for recall, not more than 200 words in length, as required by Section 87(A); 8

2) The petition conforms with the blank recall petition forms promulgated by the Clerk, as required by Section 93; 3) The petition papers circulated were uniform in character and form, as required by Section 93; 4) The petition bear[s] the names of five electors whose names...appear on each petition paper, and who [are] designated as the proponents of the proposition of the petition, and who [are] recognized as the committee in charge thereof, as required by Section 94; 5) The petition was signed by at least that number of electors which equals twenty-five percent (25%) of the electors voting at the last regular City election for Mayor; 6) Pursuant to Section 87(A), the petitions were delivered to the Clerk of Council, and timely certified to the Board of Elections. As the Take Back Toledo recall petition satisfies each of these requirements, the Clerkʼs decision to certify the petition was proper, and the recall issue should appear on the next regular municipal election, as required by the Toledo Charter. C. Take Back Toledo has gathered a number of valid signatures more than sufficient to place the recall issue on the November ballot. In addition to the statutory issue discussed above, Mayor Finkbeiner raises a second objection to the recall petition: The Board of Elections itself already has reported the invalidity of 18,899 of the 39,994 petition signatures that it examined. The proof shows that an additional 2,530 petition signatures are likewise false or otherwise invalid. The remaining 18,565 signatures are less than the number (19,753) required to certify a recall issue for the ballot. 13 First, the Mayorʼs assertion of 2,530 additional invalid signatures is highly questionable. Take Back Toledo, at great expense, conducted an independent review of the gathered signatures, and identified 18,219 invalid signatures. 14 This number closely corresponds 13 Notice of Protest, page 2. 14 See Appendix B. 9

with the findings of the Board of Elections (within a fraction of one percent). Moreover, following the filing of Mayor Finkbeinerʼs Notice of Protest, the Board of Elections counted additional Take Back Toledo signatures. Of 5,072 additional signatures, the Board verified 2,385 signatures as valid, raising the total number of valid signatures to 22,829. Thus, even taking into account the Mayorʼs contention that 2,530 additional signatures are invalid, Take Back Toledo has gathered more than enough signatures for the Board to certify the recall issue for the ballot. CONCLUSION As the Clerk of Council properly concluded, the recall petition filed by Take Back Toledo is governed exclusively by Chapter VI of the Toledo Charter. Various provisions of the Toledo Charter set forth requirements as to form and content, in addition to procedural requirements. As such, parallel provisions contained in the Ohio Revised Code are inapplicable. The recall petition filed by Take Back Toledo satisfies every applicable provision of the Toledo Charter, and the Clerk of Council properly certified the petition to the Board of Elections. On this basis, Take Back Toledo respectfully requests the Board of Elections to place the recall issue on the September 15, 2009 ballot, as required by the Toledo Charter. 10

Respectfully submitted, Scott A. Ciolek (0082779) 520 Madison Avenue, Suite 820 Toledo, OH 43604 (419) 931-6431 (866) 890-0419 scott@cw.law.pro ATTORNEY FOR TAKE BACK TOLEDO 11