Livingston To City: Enforce The Law

Lately I've been hearing a lot of talk about the right of citizens to petition their government and very little talk about the responsibility that goes along with that right.

Posted below is the text from latest letter putting the city on notice that I will sue them if they don't do their duty and determine the validity of any charter amendment petitions presented to them. Obviously, this letter is a follow up to the letter I sent to Mayor Mark Mallory and Cincinnati City Solicitor John Curp last week.

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Mark Mallory
Mayor
City of Cincinnati
Room 150
801 Plum Street
Cincinnati, Ohio 45202-5705

John P. Curp
City Solicitor
City of Cincinnati
Room 214
801 Plum Street
Cincinnati, Ohio 45202-1985

Sally J. Krisel
Director of Elections
Hamilton County
Suite 3
824 Broadway Street
Cincinnati, Ohio 45202-1345

Joseph T. Deters
Prosecuting Attorney
Hamilton County
Suite 4000
230 East Ninth Street
Cincinnati, Ohio 45202-2151

RE: NOTICE OF LAWSUIT IF CITY ACTS ON PROPOSED CHARTER AMENDMENTS

Greetings:

In response to a letter[1] I wrote to Mayor Mark Mallory and Cincinnati City Solicitor John Curp on June 17, 2009, I received an e-mail from Assistant City Solicitor Terry Nestor on June 19, 2009.[2] The text of Mr. Nestor’s e-mail follows:

Thank you for your letter dated June 17, 2009. The Solicitor’s Office researched R.C. 731.32 based on your letter. Please note that the Ohio Supreme Court already disposed of the precise issue you raise. I am attaching the case for your review. Based on the case, the Solicitor’s Office will not be pursuing any action.

The Ohio Supreme Court case attached to and referenced in Mr. Nestor’s letter was State ex rel. Blackwell v. Bachrach. In it, the Court held that the provisions of Sections 731.28 and 731.32 of the Revised Code do not apply to initiative petitions to amend a city charter. Having reviewed the case, I presume this is why Mr. Nestor states that the Solicitor’s Office will not be pursuing any action. This is troubling. In the same case cited by the city, the Court held (citations omitted and emphasis added):

This court held in State ex rel. Hinchliffe v. Gibbons, that a petition proposing an amendment to the charter of a city, under the provisions of Section 9, Article XVIII, must be submitted to the city council, and that IT IS THE DUTY OF COUNCIL TO DETERMINE THE VALIDITY OF THE PETITION. See, also, State ex rel. Waltz v. Michell.

The very plain wording of Section 9, Article XVIII, places the duty to submit a proposed amendment to the electors upon the council and the council alone. It provides further that the submission shall be governed by the requirement of Section 8, Article XVIII, that the council shall provide by ordinance for the submission to the electors. It is clear that once a petition for a charter amendment containing sufficient valid signatures is filed with the council, the only body or person thereafter charged with any duty of submitting the question to the electors is the city council.

The city can’t follow one part of the decision and ignore other parts. When charter amendment petitions are submitted to a city council, that council has a duty to determine whether the petitions are valid.

When, as in this instance, Cincinnati City Council has a clear legal duty to determine the validity of charter amendment petitions submitted to them, and, in the recent past, Council has skirted their duty in this regard, and there is a great likelihood that Council will soon be presented with more petitions, and Mr. Nestor signals that Council will again fail to do its duty and determine the validity of the petitions, a citizen, like me, is entitled to petition a court for a writ of mandamus forcing Council to perform its clear legal duty.

The position of city solicitor is provided for in the city’s charter. The solicitor is the city’s legal advisor. He has a duty to instruct the mayor and members of council on their clear legal duty to determine the validity of charter amendment petitions submitted to them for placement on the ballot. Like all attorneys, the city solicitor and his assistant solicitors must adhere to the rules established by the Ohio Supreme Court and codified in the Ohio Rules of Professional Conduct. Those rules prohibit attorneys from making legal arguments based on a knowingly false representation of law. The Solicitor’s Office must provide the mayor and the members of city council with an accurate instruction of their legal duty to determine the validity of petitions and make clear that they are not legally allowed to simply rubberstamp petitions presented to them. Should the Solicitor’s Office fail to so advise the mayor and council, I will have no choice but to seek a writ requiring the mayor and council to perform their duty.

In 1994, the Ohio Supreme Court, in Spadafora v. Toledo City Council,[4] held that a city council may invalidate signatures affixed to a charter amendment petition where the petition on its face violates R.C. 3519.06(c) or (d). In that case, the Court explicitly held that Ohio Revised Code Chapter 3519 applies to initiative petitions to amend a city charter. Mayor Mallory and the members of Council should be advised of this. They need to know that they may invalidate signatures affixed to any charter amendment petition where those petitions violate any section within Chapter 3519.

From Spadafora:

Further, in State ex rel. Concerned Citizens for More Professional Govt. v. Zanesville City Council (1994), we said that ". . . it follows that the legislature [city council] need not make the submission [to the electors] unless satisfied of the sufficiency of the petitions and that all statutory requirements are fairly met." (Emphasis added.) See, also, State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections (1993).

Clearly, one of the requirements of R.C. 3519.06(D) is that an initiative and/or referendum petition speak, on its face, the truth.

If the charter amendment petitions currently being circulated do not speak, on their face, the truth, the mayor and council should be advised that they have a clear legal duty to refuse to submit them to the electors because the statutory requirements have not been met.

In addition to Chapter 3519, I believe an unbiased reading of Blackwell and Spadafora and the many cases cited within them can only lead to the conclusion that R.C. 3599.14 and 731.36 apply to charter amendment initiative petitions. I have found no case law saying otherwise. If the city has not adopted the position that these two statutes apply to charter amendment initiative petitions it should do so immediately as there is a basis in law for doing so that is most certainly not frivolous and which might well lead the city to extend existing law.

Several sections of R.C. 3599.14 apply to the situation we face today:

(A) No person shall knowingly, directly or indirectly, do any of the following in connection with any ... petition presented to or filed with ... a board of elections, or any other public office ... for the purpose of submitting a question or issue to the electors at an election….

(1) Misrepresent the contents, purpose, or effect of the petition or declaration for the purpose of persuading a person to sign or refrain from signing the petition or declaration;

....

(7) Make a false certification or statement concerning the petition or declaration;

....

(B) Whoever violates division (A) of this section is guilty of a felony of the fifth degree.

The city is certainly aware that Christopher Smitherman, the president of the Cincinnati NAACP (the organization leading the petition drives), and other petition circulators, have knowingly, and directly, misrepresented the contents, purpose, and effect of their anti-passenger rail and anti-water district petitions. The obvious purpose was to persuade people to sign the petitions. [If the city claims to be unaware of these knowing and direct misrepresentations, I am willing to provide press releases, statements, audio clips and published writings from the NAACP, the Coalition Opposed to Additional Spending and Taxes (COAST), and individual petition circulators as proof.]

R.C. 731.36(A) provides:

No person shall, directly or indirectly:

(A) Willfully misrepresent the contents of any initiative or referendum petition.

Again, I am notifying the city that I have evidence that numerous people circulating charter amendment petitions have, directly and willfully, misrepresented the contents of the anti-passenger rail and anti-water district petitions.

To be fair, I am well aware that Justice Moyer, in concurring with the judgment only in Spadafora wrote:

The city council's authority to determine if all applicable statutory requirements have been met is not as broad as that of a board of elections or the Secretary of State. Council may not engage in judicial or quasi-judicial determinations of matters which are not apparent on the face of the petition or which require the aid of witnesses to determine.

That said, Justice Moyer was discussing a council’s authority and role after a charter amendment initiative petition has been filed. There is absolutely nothing to prevent council from conducting an investigation and having a hearing right now, before any petitions are filed.

The Council may engage in a quasi-judicial proceeding to determine if the people of Cincinnati (citizens they are sworn to protect) are being, and have been, lied to, misled, hoodwinked, and bamboozled by the petition circulators. If memory serves me correctly, Council has the power to administer oaths, and subpoena power to require the attendance of witnesses and/or the production of documents. Beyond depending on a report from the Hamilton County Board of Elections (an issue I address below), how can Council adequately perform its duty to determine the validity of charter amendment petitions? How can they know whether Cincinnati electors had the contents, purpose, or effect of the petitions misrepresented to them? I suggest that once Council is made aware that this conduct is occurring, they must act in a responsible way to find out if it is true. That requires a hearing with witnesses, testimony and evidence. Then, after the hearing, if Council is satisfied that the conduct is happening, it must charge the Law Department with going to court to stop the petition circulators from further engaging in the outlawed conduct. I believe Council would also be obligated to have the Law Department seek criminal prosecutions if the conduct clearly violated certain criminal statutes.

In addition to advising the mayor and members of city council of their legal duty, in my previous letter, I asked the Solicitor’s Office to advise the finance director[5] and the clerk of council[6] of their clear legal duties as they relate to charter amendment initiative petitions. In State ex rel. Watkins v. Quirk, the Ohio Supreme Court held that a municipal clerk of council has authority to invalidate all signatures affixed to referendum part-petitions where the part-petition on its face violates R.C. 3519.06(C). Are there any other clear legal duties that the clerk of council or finance director should be advised on? I don’t know. The city budgets over Six Million Dollars ($6,000,000.00) annually to the Law Department. The solicitors should research these things.

My last letter was specifically directed toward the City of Cincinnati; therefore, the Hamilton County Board of Elections was excluded from inclusion in it. Since I wrote my last letter, I have researched the issue and determined that the board has a role in determining the validity of charter amendment initiative petitions. Currently, at least to the best of my knowledge, the board limits challenges to whether signatures affixed to petitions are valid or not. If my understanding is accurate, this is a mistake by the board.

In Spadafora, the Supreme Court wrote:

Here, the board of elections rendered a report to the council which, in part, found (after a hearing) that Baker had in fact been compensated for circulating part-petitions. Certainly this is "satisfactory evidence" that on the face of the petition, there was a false statement. See R.C. 3519.06(C). Thus, city council not only had the right to reject the ordinance placing the proposed charter amendment on the ballot -- it had the duty so to do.

In the event that the clerk of council does not use her authority and invalidate all signatures affixed to the charter amendment petitions because on their face they violate R.C. 3519.06(c) or (d), the board must schedule a hearing and take evidence to determine if anyone circulating petitions, directly or indirectly, willfully misrepresented the contents of the petitions; misrepresented the contents, purpose, or effect of the petitions for the purpose of persuading people to sign the petition; and/or made a false certification or statement concerning the petitions.

The board cannot have a sham hearing; the hearing must be real, meaning the board must, at the request of the challengers, subpoena witnesses, compel the production of books, records, and other evidence, administer oaths, and take evidence. And if the evidence shows that the petition circulators felony crimes or otherwise broke the law, the board must not only turn them over to the Prosecutor’s Office and request their indictment, it must also render a report to the council with its findings.

If you have any questions or concerns, please feel free to contact me using the addresses or phone number listed above.

Sincerely,

Nathaniel Livingston, Jr.

cc:

Members of Cincinnati City Council
Melissa Autry, Cincinnati Clerk of Council
Joe Gray, Cincinnati Finance Director
Roshani de Soyza Hardin, Assistant City Solicitor and Chief Counsel
Christine Marie Zimmer, Assistant City Solicitor
Terrance Aloysius Nestor, Assistant City Solicitor
Richard Ganulin, Assistant City Solicitor
Members of the Hamilton County Board of County Commissioners
Patrick Thompson, Hamilton County Administrator
Members of the Hamilton County Board of Elections
Amy L. Searcy, Hamilton County Deputy Director of Elections

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[1] A copy of that letter is attached.

[2] A copy of the e-mail is attached.

[3] 166 Ohio St. 301; 143 N.E.2d 127 (1957).

[4] 71 Ohio St. 3d 546; 644 N.E.2d 393 (1994).

[5] Joe Gray is the Cincinnati Finance Director.

[6] Melissa Autry is the Cincinnati Clerk of Council.