Supreme Court of Clerk of Court - Filed March 19, 2021 - Case No. 2021-0312

IN THE : STATE OF OHIO ex rel. : Case No. 2021-0312 ACTION FOR HOUSING : NOW, et al. : Expedited Election Case Under : S.Ct.Prac.R. 12.08 Relators, : : v. : : HAMILTON COUNTY BOARD OF : ELECTIONS, et al., : : Respondents.

MERIT BRIEF OF RESPONDENT

Donald J. McTigue (0022849) ANDREW W. GARTH (0088905) J. Corey Colombo (0072398) City Solicitor Derek S. Clinger (0092075) Emily Smart Woerner (0089349) Ben F.C. Wallace (0095911) Deputy City Solicitor McTigue & Colombo, LLC Erica Faaborg (0081140) 545 East Town Street Assistant City Solicitor Columbus, Ohio 43215 801 Plum Street, Room 214 Phone: (614) 263-7000 Cincinnati, Ohio 45202 Fax: (614) 368-6961 Phone: (513) 352-3309 [email protected] Fax: (513) 352-1515 [email protected] [email protected] [email protected] [email protected] [email protected] Counsel for Respondent Cincinnati City Counsel for Relators Council

David T. Stevenson (0030014) David A. Yost (0056290) Assistant Prosecuting Attorney, Hamilton County, Ohio Heather L. Buchanan (0083032) 230 East 9th Street, Suite 4000 Caitlyn N. Johnson (0087724) Cincinnati, Ohio 45202 30 E. Broad St., 16th Floor (513) 946-3120 Columbus, Ohio 43215 [email protected] [email protected] Counsel for Respondent Hamilton County [email protected] Board of Elections and its Members Counsel for Respondent Frank LaRose TABLE OF CONTENTS I. TABLE OF AUTHORITIES ...... iii

II. INTRODUCTION...... 1

III. STATEMENT OF FACTS ...... 6

IV. ARGUMENT ...... 8

A. The ballot language comprehensively sets forth all four funding sources permitted by the proposed amendment...... 8

B. Ballot language that accurately apprises the electorate that the Ohio Revised Code currently constrains the City of Cincinnati from utilizing proposed funding sources is not misleading or argumentative...... 10

1. Ohio state law does not allow for the enaction of a new tax on stock option income...... 11

2. Ohio state law prohibits funding the Trust Fund with railway revenue...... 13

C. Ballot language that accurately informs voters of the impact of obligating Cincinnati City Council to make an annual $50 million appropriation to a restricted fund is not misleading, argumentative, or unfair...... 15

D. It is not a material omission or misleading to accurately describe the composition of a board of unelected volunteers where a proposed law mandates their appointment by Cincinnati City Council...... 18

E. Ballot language that concisely summarizes the purpose is not misleading, nor does it constitute a material omission...... 20

F. The unclean hands doctrine bars Relators’ from obtaining the relief they request...... 23

V. CONCLUSION ...... 24

CERTIFICATE OF SERVICE

APPENDIX

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TABLE OF AUTHORITIES

Cases

Beck v. Cincinnati, 162 Ohio St. 473, 124 N.E.2d 120 (1955) ...... 9, 14, 16, 17

Cincinnati Bell Tel. Co. v. City of Cincinnati, 81 Ohio St.3d 599, 607, 693 N.E.2d 212 (1998) ...... 12

City of Riverside v. State, 190 Ohio App.3d 765, 2010-Ohio-5868, 944 N.E.2d 281 ...... 12

Disciplinary Counsel v. Sargeant, 118 Ohio St.3d 322, 2008-Ohio-2330, 889 N.E.2d 96 ...... 4

Goldberger v. Bexley Properties, 5 Ohio St.3d 82, 448 N.E.2d 1380 (1983) ...... 23

Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137, 519 N.E.2d 347 (1988) ...... 15, 21, 22

Markus v. Trumbull Cty. Bd. of Elections, 22 Ohio St.2d 197, 259 N.E.2d 501 (1970) ...... 21

Pullman Co. v. Evatt, 144 Ohio 295, 58 N.E.2d 766 (1944) ...... 11

Schnoerr v. Miller, 2 Ohio St.2d 121, 206 N.E.2d 902 (1965) ...... 16

State ex rel. Albright v. Haber, 139 Ohio St. 551, 553, 41 N.E.2d 247 (1942) ...... 23

State ex rel. Bailey v. Celebrezze, 67 Ohio St.2d 516, 426 N.E.2d 493 (1981) ...... 11, 14, 17

State ex rel. Beard v. Hardin, 153 Ohio St.3d 571, 2018-Ohio-1286, 109 N.E.3d 1174 ...... 10

State ex rel. Burton v. Greater Portsmouth Growth Corp., 7 Ohio St.2d 34, 218 N.E.2d (1966) ...... 15

State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of Elections, 137 Ohio St. 3d 45, 2013-Ohio-4489, 997 N.E.2d 509...... 14, 15, 17, 20

State ex rel. Coughlin v. Summit County Bd. of Elections, 136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194 ...... 23

State ex rel. Kilby v. Summit Cty. Bd. of Elections, 133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d 590 ...... 17, 20, 23

State ex rel. Minus v. Brown, 30 Ohio St.2d 75, 283 N.E.2d 131 (1972) ...... 22

State ex re. ResponsibleOhio v. Ohio Ballot Bd., Slip Opinion No. 2015-Ohio-3758 ...... 22

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State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St. 3d 257, 2012-Ohio-4149, 978 N.E.2d 119 ...... 16, 17, 19, 20, 21

Willacy v. Bd. of Income Tax Review, 159 Ohio St.3d 383, 2020-Ohio-314, 151 N.E.3d 561 ...... 12

Statutes

G.C. 15149 ...... 13

Ohio Constitution, Article XVI, Section 1...... 21

R.C. 718.01(H)(1) ...... 12

R.C. 718.01(R)(1)(d)...... 12

R.C. 5705.14 ...... 13

R.C. 5705.14(C)(1) ...... 13

Other Authorities

Cincinnati City Charter, Article III, Section 2 ...... 18

Cincinnati City Charter, Article VII, Section 1 ...... 18

Cincinnati City Charter, Article VII, Section 2 ...... 18

Cincinnati City Charter, Article VII, Section 11 ...... 18

Cincinnati City Charter, Article VII, Section 14 ...... 18

Cincinnati Municipal Code Section 201-5 ...... 18

Cincinnati Municipal Code Section 207-3 ...... 18

Cincinnati Municipal Code Section 311-9-Q ...... 12

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INTRODUCTION

The voters of the City of Cincinnati have a right to know what they are voting on so that they can make an informed decision. The approved ballot language sheds light on the proposed

Charter amendment, while Relators seek to keep the voters in the dark. The comprehensive ballot language ordained by Cincinnati City Council fairly and accurately presents both the legislative scheme and sweeping impact of Relators’ proposed Charter amendment. Transparent and meticulous ballot language is always necessary, and it is especially important here where the proposed measure seeks to fundamentally and forever alter the City of Cincinnati’s Charter and operations. The ballot language here fairly summarizes the substance and intent of the proposed amendment. It accurately details the mandatory, annual $50 million appropriation, the available funding sources, the purpose and impact of such appropriations, and the composition of the Trust

Fund Board that would be empowered to administer appropriated funds.

Notably absent from Relators’ challenge is any attempt to argue the language they presented on their petition was even remotely sufficient to inform the voters of the true nature and impact of their sweeping proposal. That is likely because their proposed language was so deficient that it failed to include that the Charter amendment mandates a $50 million annual appropriation into the Trust Fund – the crucial component of the entire scheme. And so, the City was tasked with drafting language that presents the voters with a fair and accurate summary of the proposal, which was adopted by the Board of Elections and approved by the Secretary of State.

Relators’ assertions that the ballot language is misleading or argumentative are simply not supported by a plain review of the proposed amendment. For example, Relators assert the ballot language is deficient because it does not specify that appropriated funds will be used to promote, expand, and preserve access to affordable housing for low-income residents. (Relators’ Brief, pp.

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19-20). Yet, the ballot language plainly states that “the fund can be allocated to new construction,

renovation of vacant property, renovation of existing affordable units, operations costs of

affordable housing, and direct services. . . .” (Relators’ Exhibit D). This is a concise summary of

Section 1(2) of the proposed amendment that fairly and accurately informs voters that the purpose

of the proposed Affordable Housing Trust Fund (“Trust Fund”) is to increase and preserve

affordable housing. Relators’ quibble on this point is purely semantic.

Relators further maintain the ballot language improperly omits two of six listed funding

sources. But Section 3(2) of the proposed amendment identifies only four sources of appropriation: (1) general operating funds; (2) a new development fee; (3) a new stock option income tax; and (4) railway revenue. Section 3(2) does, however, contain six subsections, but two of these serve to prohibit funding sources. One subsection explicitly prohibits Cincinnati City

Council from appropriating any of the required $50 million through a tax increase (absent a

separate vote of the electorate). The other subsection prohibits the use of state or federal funds to

offset the $50 million required, annual appropriation (this restriction is present in the ballot

language in any event). No reasonable interpretation of Section 3(2) would allow for anyone to

conclude that it authorizes more than four sources of funds. To indicate otherwise would obfuscate

and confuse the issue. Moreover, two of those four permitted funding sources are illusory, and the

voters have a right to understand this.

Sections 3(2)(a) and 3(2)(c) of the proposed amendment slyly offer up two “straw man”

funding sources: a new tax on stock option income and revenue from a suggested railway lease.

But these are not currently lawful funding sources. Whether Relators knew these sources were

illusory is troubling, but ultimately irrelevant. Cincinnati City Council has a duty to ensure a fully,

fairly, and accurately informed electorate. The Ohio General Assembly, through Ohio Revised

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Code Section 718.01, prohibits municipalities from enacting new taxes on stock options. Because

the City of Cincinnati did not tax stock option income prior to this law’s enactment, it is foreclosed

from doing so now. To accurately explain this fact to voters is not misleading. It is a description

of the world as it is, essentially no different than telling a driver that they have to wear a seatbelt.

Likewise, the current state law mandates that all revenue from the Cincinnati Southern Railway

must be paid into the City’s bond retirement fund1 – the fund from which the City’s bonded debt

is paid.

The voters have a right to know that state law does not permit what Relators propose. If

passed, Cincinnati City Council must appropriate $50 million for the exclusive benefit of Relator’s

Trust Fund, which will overwhelmingly come from the City’s general operating funds given that

the only other option – a new fee on developers – could not realistically generate the massive

dollars required. The electorate is entitled to the facts and has a right to know that the seemingly

innocuous railway funds and stock option taxes are not currently legal funding sources for the

Trust Fund.

Relators’ assertions about the ballot language are not only inaccurate, they are hypocritical.

Notably, Relators do not now offer any proposed ballot language. Their petition’s ballot language

was woefully deficient and grossly misleading. Not only did it omit any information about

Cincinnati City Council’s obligation to perennially appropriate $50 million, but it also artfully

described the proposed amendment as authorizing “Council to provide for minimum financing. . .

.” (Relators’ Exhibit A) (emphasis added). Relators continue to strategically refer to this massive, mandatory appropriation as a “minimum amount of annual appropriation” and a “minimum level

1 “Bond retirement” is a term of art for municipal financing and has no relation to the City’s pension or retirement funds or obligations. 3

of funding.” (Relator’s Brief, pp. 1, 10). Ignoring that this “minimum” amount is $50 million

each year no matter what emergency, recession, or pandemic the City could face threatens to

misinform the public.

The City’s General Fund, the fund that is used to provide for general government and

essential services like public services and public health, was approximately $397 million in fiscal

year 2020 and $402 million in fiscal year 2021. The proposed amendment requires a $50 million

appropriation each year, equivalent to 12.5% of the City’s entire operating budget.2 This is not

“minimum funding” or a “minimum amount,” and any indication to the contrary, like in Relators’ petition ballot language, would induce most voters (and petition signers) into thinking the proposed amendment would have a minimal, even innocuous, impact on City operations. That could not be further from the truth.

The City furloughed huge portions of its workforce over the last year because of the

COVID-19 pandemic, and, prior to the recent passage of the federal stimulus, was anticipating an

approximately $25 million deficit for its next fiscal year. Considering the historic cuts to City

departments over the past decade due to increasing costs and decreasing revenue, it is an

understatement to say that this measure requires Cincinnati City Council to tap into “funding

sources otherwise dedicated to providing for essential City services and public infrastructure

needs. . . .” (Relators’ Exhibit D). If the proposed amendment is adopted, because it fails to

identify any new, legitimate revenue sources and spurns state or federal dollars from relieving the

$50 million obligation is therefore crushingly reliant on the City’s General Fund. The City will be

2See “Fiscal Year 2021 Approved All Funds Budget Update” at p. 11, available at https://www.cincinnati-oh.gov/finance/budget/approved-fy-2021-budget-update/ (last visited March 17, 2021). This 2021 update from the Finance & Budget Office provides a detailed explanation of the City’s budget and is appropriate for judicial notice. See Disciplinary Counsel v. Sargeant, 118 Ohio St.3d 322, 2008-Ohio-2330, 889 N.E.2d 96, ¶¶ 22-24. 4

left without an alternative and will have to resort to layoffs, service reductions, and elimination of

entire Departments to account for Relators’ $50 million Trust Fund.3 If that is the will of the

people, so be it, but the voters deserve to know these impacts before they cast their ballots.

To the extent Relators emphasize that over 9,000 voters “ratified” their proposed ballot

language when they signed petitions, it is not reasonable to assume that every person that signed

the petition comprehensively reviewed the proposed amendment. Even if that were the case, these

citizens were presented with misleading information, chiefly, that taxing stock option income or

using railway revenue was possible, and that the proposed amendment would require “minimum

financing” from Cincinnati City Council. In any event, the simple act of signing a petition to put

a measure on the ballot does not mean, as Relators suggest, that the signatory supports the

underlying law. And, here, where the ballot language presented to petition signers was woefully

deficient, such a contention is highly suspect.

In sum, Relators’ claims that the clear and accurate ballot language approved by Cincinnati

City Council is misleading are belied by their own linguistic gamesmanship. The ballot language

approved by Cincinnati City Council fairly and accurately summarizes the significant impact of

the proposed amendment and fully satisfies the goal of ensuring that voters understand what they

are voting for on Election Day.

3 It is important to note that the stimulus funds are largely restricted to alleviating the financial impacts caused by the COVID-19 pandemic. Additionally, local governments cannot use the stimulus funds to directly or indirectly offset tax cuts. Any argument that a budget deficit created by a ballot measure would be an eligible use of these federal funds is speculative at best and uninformed at worst. And, in any event, the stimulus money is temporary, while this measure is permanent. 5

STATEMENT OF FACTS

Relators are four of the five individuals who form the committee that advanced the instant

initiative. If passed, this proposed amendment would add a new Article XVIII to the Cincinnati

Charter. Section 1 of the proposed amendment provides for the establishment of a restricted

account, “the City of Cincinnati Affordable Housing Trust Fund” (the “Trust Fund”), and limits

the use of Trust Fund dollars to, inter alia, development and preservation of affordable housing,

which is defined as housing that does not require more than 30% of a household’s income. Section

2 sets forth details about the composition of and nominating and appointment process for the Trust

Fund’s 11-member board (the “Trust Fund Board”), including that nine members are nominated

by unelected officials with the other two being nominated by Cincinnati City Council’s President

Pro Tem. This section mandates that Cincinnati City Council appoint all nominees and there is no

process included for the City’s elected officials to vet or remove any nominee. Nor is there any

oversight over how the Trust Fund Board elects to spend appropriated funds. The provisions

regarding the mandatory, annual, and ever-increasing $50 million appropriation and allowable

funding sources are governed by Section 3, which prohibits counting any carry-over funds as part

of the annual appropriation. Section 3(2) lists the permissible four funding sources and otherwise

expressly prohibits Cincinnati City Council from utilizing a new income tax without a referendum

(which is already a legal requirement) or any state or federal funds to satisfy the continually

increasing $50 million annual appropriation. Section 4 governs how the $50 million will be used

by the Trust Fund Board, and mandates that at least half of the funds must be used for housing that

is affordable to individuals at or below 30% of the area median income (“AMI”) and the remainder

for housing affordable to households at or below 60% AMI, and otherwise places restrictions on

property owners who receive Trust Fund dollars. (Relators’ Exhibit A). Section 5 provides the

6 following ballot language offered by Relators in their capacity as members of the committee advancing this measure:

Shall the Charter of the City of Cincinnati be amended to establish the City of Cincinnati Affordable Housing Trust Fund for the purpose of creating and preserving affordable housing to meet the needs of families, households, and individuals with low incomes, preventing the displacement of families and individuals, promoting neighborhood stabilization and preventing the loss of affordable housing; establish the City of Cincinnati Housing Trust Fund Board to oversee the Fund; and authorize Council to provide for minimum financing of the Fund by enacting new Article XVII

(Id.).

On March 3, 2021, Cincinnati City Council passed Ordinance No. 66-2021 (the

“Ordinance”), which sets forth the below ballot language summarizing the proposed Charter amendment:

Shall the Charter of the City of Cincinnati be amended to require a permanent, annual contribution of fifty million dollars ($50,000,000) of City funds to a new restricted fund for housing that is affordable to persons with low incomes and for related purposes using funding sources otherwise dedicated to providing for essential City services and public infrastructure needs, to be administered by an unelected volunteer board by enacting new Article XVII, which also requires:

A. City Council shall appropriate no less than $50 million into the fund every fiscal year beginning July 1, 2021, to be paid from (1) the City's general operating or capital funds; (2) revenue from the lease or sale of the Cincinnati Southern Railway, which appropriation is currently prohibited by state law; (3) a proposed fee on developers of all commercial and some residential projects; or (4) a personal income tax on the award of stock options in publicly traded companies, which tax is currently prohibited by state law. The mandatory $50 million annual appropriation shall take priority over other funding needs of the City and could require the City to reduce City services and infrastructure projects by as much as $50 million annually compared to current City expenditures for general operating and capital projects. Any State or Federal funding received by the City and deposited in the fund shall not count toward the $50 million minimum annual contribution.

B. The fund is restricted to the purpose of creating and preserving housing that is affordable for households earning 60% of Hamilton County’s median household income, with half of the fund restricted to housing that is affordable for households earning 30% of Hamilton County’s median household income; that the fund can be

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allocated to new construction, renovation of vacant property, renovation of existing affordable units, operation costs of affordable housing, and direct services, provided that housing supported by the fund, with the exception of owner-occupied single-family housing, must be permanently dedicated as affordable by deed restriction; that all persons hired to construct, renovate, or operate any units supported by the fund must be paid a living wage; and that supported housing organizations must commit that fund project landlords will be limited in their ability to pursue evictions.

C. The fund will be controlled and managed by a board that will consist of eleven private citizens, nine of whom are selected by affordable housing and low income service organizations and two of whom are selected by the City Council President Pro Tem; who will serve staggered four-year terms; who will create the rules, regulations, and standards that govern the board.

(Relators’ Exhibit D). The Ordinance was sent to Respondent Hamilton County Board of Elections

(the “Board”) on March 4, 2021. The next day, the Board, pursuant to its statutory duty, sent the ballot language provided by the Ordinance to Respondent Ohio Secretary of State for his review.

The Secretary approved the ballot language on March 9, 2021. Relators initiated this action two days later.

ARGUMENT

A. The ballot language comprehensively sets forth all four funding sources permitted by the proposed amendment.

Any claim that the ballot language is misleading for correctly identifying that the proposed

amendment provides only four funding sources should be immediately rejected as unfounded

given the measure’s plain language. Section 2(3) of the proposed amendment identifies only four

sources from which City Council “shall appropriate funds” to fund Relators’ Trust Fund as follows:

a. The revenue generated from the lease of the Cincinnati Southern Railway. If revenue is generated from a sale of the Railway, all proceeds shall be placed in the Fund.

b. A fee to be assessed to developers of residential projects that include four or more residential units and all commercial or non-residential projects. Council may

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provide financial credits, not to exceed the fee, to developers who provide permanent affordable residential units in the project, as defined by the Board regulations.

c. A personal income tax on the award of stock options in publicly traded companies.

d. The city’s general operating or capital funds.

(Relators’ Exhibit A).

Relators mistakenly claim the ballot language materially omits a fifth funding source—a

nonexistent income tax increase. The hypothetical tax is referenced in Section 3(2)(e) of the

proposed amendment, which provides: “[n]othing herein shall be construed to permit the council

to raise revenue for purposes of this Article through an increase in the rate of the income tax unless

the issue is first submitted to a vote of the electorate pursuant to Article VIII of the Charter.” (Id.).

This Section does not, as Relators’ assert, identify a true funding source: it merely allows

Cincinnati City Council to use speculative income taxes—which are deposited into the general

fund—at some indefinite time in the future. Moreover, it would be misleading to voters to identify

theoretical future taxes as a source of funds. See Beck v. Cincinnati, 162 Ohio St. 473, 124 N.E.2d

120 (1955) (rejecting ballot language that inaccurately described the proposed amendment’s effect

on future taxes, or the lack thereof). Indeed, there is no guarantee that there will ever be any new

income tax revenue available for this purpose because the voters of Cincinnati may reject such a

measure. Relators may as well have offered up proceeds from equally intangible lottery winnings as a funding source.

It is telling that Relators, who had absolute discretion as the drafters of the proposed

amendment, chose to not include an income tax increase. A new tax would be a meaningful source

of revenue to support their goal of enhancing the City’s affordable housing stock—a goal which

is shared by Cincinnati City Council. Relators’ reticence to do so and, instead, rely almost

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exclusively on the City’s beyond-strained operating budget, is unfortunate.

The ballot language comprehensively, accurately, and fairly informs the voters about the only four funding sources provided for in the proposed amendment.

B. Ballot language that accurately apprises the electorate that the Ohio Revised Code currently constrains the City of Cincinnati from utilizing proposed funding sources is not misleading or argumentative.

Relators maintain the ballot language is misleading and is argumentative with respect to the funding sources identified in Section 3(2) of the proposed amendment.

In Section III of their brief, Relators argue, curiously, that “[t]he Proposed Charter

Amendment provides the city with several potential sources of funding for the Trust Fund, but the

Ballot Language misleads voters by stating that funding will be drawn from those sources.”

(Relator’s Brief, p. 16) (emphasis added). This finicky dispute boils down to whether it is misleading to summarize the proposed amendment’s provision that Cincinnati City Council “shall appropriate funds from among” certain sources as “City Council shall appropriate [funds] to be paid from” certain sources. Further, it appears to stem from Relators’ misinterpretation of the ballot language.

Relators assert the ballot language improperly misleads voters by not reflecting that the

proposed amendment “does not require the City to fund the Trust Fund from all the sources listed.

. . .” (Id., p. 17) (emphasis in original). The ballot language does not state, however, that

Cincinnati City Council must use all four sources: it states that the appropriation must be provided

from (1) operating funds, (2) railway revenue, (3) “a proposed fee on developers . . . or (4) a

personal income tax. . . .” (Relators’ Exhibit D) (emphasis added). The use of the disjunctive “or” makes clear that Cincinnati City Council is not required to use all listed sources, and may choose

from among them. See State ex rel. Beard v. Hardin, 153 Ohio St.3d 571, 2018-Ohio-1286, 109

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N.E.3d 1174, ¶¶ 29-32 (emphasizing that the word “or . . . cannot be read as and” in interpreting proposed charter amendment); Pullman Co. v. Evatt, 144 Ohio 295, 297, 58 N.E.2d 766 (1944)

(recognizing that a statute’s use of the “disjunctive or” plainly indicates the ability to choose from among listed options). Because the ballot language accurately reflects Cincinnati City Council’s

(constrained) ability under the proposed amendment to make appropriations from some, or only one, of the four proposed funding sources, there is no risk that it will mislead voters. See State ex rel. Bailey v. Celebrezze, 67 Ohio St.2d 516, 519, 426 N.E.2d 493 (1981) (“the test for determining the validity of proposed ballot language is not whether [others] might have used different words to describe the language in the proposed amendment but, rather, whether the language adopted . .

. properly describes the proposed amendment.”).

Likewise, the ballot language is not argumentative as Relators claim in Section V of their brief. Their claim in this regard relates to the ballot language’s clarification to voters that two of the four funding sources listed in the proposed amendment are currently prohibited by Ohio state law. Relators claim this accurate clarification is “an argumentative statement designed to dissuade voters . . . by unfairly and inappropriately” calling into question the feasibility of funding their

Trust Fund via a new stock option income tax or railway revenue. (Relator’s Brief, p. 18). Relators further claim that that inclusion of language indicating that these sources are “currently prohibited by state law” is the type of impermissible persuasive argument this Court addressed in Bailey.

Their argument misses the mark.

1. Ohio state law does not allow for the enaction of a new tax on stock option income.

Section 3(2)(c) of the proposed amendment identifies a “personal income tax on the award of stock options in publicly traded companies” as a source of revenue for the Trust Fund.

(Relators’ Exhibit A).

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The Ohio Constitution “presumes that both the state and municipalities may exercise full taxing power, unless the General Assembly has acted expressly to preempt municipal taxation, pursuant to its constitutional authority to do so.” Cincinnati Bell Tel. Co. v. City of Cincinnati, 81

Ohio St.3d 599, 607, 693 N.E.2d 212 (1998) (emphasis added). The City currently does not include the “sale, exchange, or other disposition of a stock option, the exercise of a stock option, or the sale, exchange, or other disposition of stock purchased under a stock option” in the definition of “qualifying wages” that are subject to the City’s income tax. See Cincinnati Municipal Code

Section 311-9-Q. This definition is identical to the definition in the Ohio Revised Code that identifies the wages that an Ohio municipality can tax.

Under Ohio Revised Code Section 718.01(R)(1)(d), any income arising from “the sale,

exchange, or other disposition of a stock option, the exercise of a stock option, or the sale,

exchange, or other disposition of stock purchased under a stock option” must be deducted from

income taxed by municipalities where “the municipal corporation has, by resolution or ordinance

adopted before January 1, 2016, exempted the amount from withholding and tax.” (emphasis

added).4

The City did not tax stock options as of and before January 1, 2016. Because the Ohio

General Assembly expressly prohibits municipal corporations from enacting stock option taxes,

the City cannot now amend its municipal code to tax stock options. See City of Riverside v. State,

190 Ohio App.3d 765, 2010-Ohio-5868, 944 N.E.2d 281, ¶ 30 (10th Dist.) (analyzing analogous

Ohio Revised Code 718.01(H)(1) and affirming that the “General Assembly can, and has, enacted

specific prohibitions on municipal taxation of certain types of income.”). To avoid misleading or

4 This Court recently analyzed the City of Cleveland’s taxation of stock options in Willacy v. Cleveland Bd. of Income Tax Review, 159 Ohio St.3d 383, 2020-Ohio-314, 151 N.E.3d 561, ¶¶ 8- 12 and upheld the constitutionality of the tax, in existence since, at least, 2014. 12

inducing voters, it is appropriate and necessary to explain that while the proposed amendment

identifies taxing stock option income as a funding source, this source is not available due to

constraints placed on the City by Ohio state law.

2. Ohio state law prohibits funding the Trust Fund with railway revenue.

Section 3(2)(a) of the proposed amendment offers up any future sale proceeds and “revenue

generated from the lease of the Cincinnati Southern Railway” as another source of revenue for the

Trust Fund. (Relators’ Exhibit A). But the law governing the use of revenue from the lease or

sale of the Cincinnati Southern Railway prohibit their use in this fashion.

Section 15149 of the Ohio General Code, known as the Ferguson Act, clearly states, in

relevant part:

[A]ll net earnings and incomes [from the Cincinnati Southern Railway lease] shall be paid into the treasury of said city to the credit of the sinking fund or bond retirement fund; and in the case of the sale or final disposition of said railroad, the purchase money or price shall be paid into the treasury of said city to the credit of the sinking fund or bond retirement fund and shall be applied to the reduction of the bonded debt of said city until the same shall be extinguished, due regard being had to the priority right of any issue or issues of bonds to the proceeds of such sale.

(emphasis added). The analysis could end there—the plain language of the Ferguson Act prohibits what the Charter amendment proposes. However, it is also illegal to transfer funds from the bond retirement fund unless all the City’s debts were repaid. Generally, Ohio Revised Code 5705.14

provides that funds cannot be transferred while the purpose of the fund is still needed or if there is

still outstanding debt. And Ohio Revised Code 5705.14(C)(1) provides a specific process for

unexpended funds remaining after debt is repaid: the funds must be deposited in another sinking fund or bond retirement fund. Only if these other funds cease to exist can the unexpended funds be deposited into another fund identified by the Court of Common Pleas. Thus, state law prohibits the Cincinnati Southern Railway proceeds from being directly allocated to the Trust Fund.

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It is clear from review of their proposed amendment, complaint, and brief that Relators do

not appreciate the intricacies of the City of Cincinnati’s financial obligations or how state law

impacts them. This is not unexpected given that Relators are not municipal lawyers or finance experts—they are a handful of citizens seeking to advance the admirable goal of ensuring every

Cincinnati resident has access to affordable housing. But because the proposed amendment does

not reflect legal reality, the ballot language must provide clarity to ensure that Relators’

(understandable) ignorance of the law does not improperly induce voters into voting for a measure

simply because they are misled about available funding sources.

The factual information here, intended to accurately and fairly inform the electorate, is not

the sort of persuasive argument this Court condemned in Bailey. The ballot language in Bailey

was invalidated because it inaccurately insinuated adoption of the proposed law would increase

costs to taxpayers, which was not a provision included in or ascertainable from the measure’s plain

language, and otherwise improperly inferred the measure would convert the non-profit worker’s compensation system into a for profit venture. See Bailey, 67 Ohio St.2d at 517, 520. In sum, the language inserted into the Bailey ballot language was inaccurate, and that inaccuracy led to invalidity.

The instant ballot language, however, inserts accurate language that is necessary to ensure

that voters know what the proposed amendment can and will actually do if passed. This Court has

recognized that even ballot language that is challenged as argumentative is permissible so long as

it is not inaccurate. See State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of

Elections, 137 Ohio St. 3d 45, 2013-Ohio-4489, 997 N.E.2d 509, ¶¶ 44-49.5 The ballot language

5 Relators appear to infer that Cincinnati for Pension Reform and Beck reflect 70-odd years of malfeasance on behalf of Cincinnati vis a vis ballot language. See Relators’ Brief, n.3. But the ballot language in Cincinnati for Pension Reform withstood the vast majority of challenges and, 14

here, just like the explanatory language affirmed in Cincinnati for Pension Reform, does “not

introduce a new subject . . . [a]nd there is nothing factually inaccurate about the descriptive

language.” Id., ¶ 49. Where, as here, the ballot language accurately reflects existing state law and

its impact on the proposed amendment, it is not only appropriate to include this information—it is

required. See Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137, 141, 519 N.E.2d 347

(1988), citing State ex rel. Burton v. Greater Portsmouth Growth Corp., 7 Ohio St.2d 34, 218

N.E.2d (1966) (“[A] voter has a right to know what it is he is being asked to vote upon.”).

C. Ballot language that accurately informs voters of the impact of obligating Cincinnati City Council to make an annual $50 million appropriation to a restricted fund is not misleading, argumentative, or unfair.

Relators seek to invalidate the ballot language because it accurately explains that by

mandating an annual $50 million appropriation for the exclusive use of the Trust Fund Board, the

bulk of which will be taken from the City’s General Fund, the funds will no longer be available to

fund the essential public services and infrastructure. Relators claim this language is “purely

argumentative” because their proposed amendment does not “even refer to” essential services.

(Relators’ Brief, p. 10). They further assert the ballot language is misleading for providing that

“[t]he mandatory $50 million annual appropriation shall take priority over other funding needs. . .

.” (Relators’ Exhibit A). These arguments demonstrate that even Relators, the drafters of the

proposed amendment, do not appreciate what this measure would do, which makes essential the

very language they attack.

First, the Cincinnati Charter is the City’s constitution, and Cincinnati City Council has no ability to defy it. By earmarking $50 million each year that cannot be used for any other purpose,

surely, any drafting errors committed by the Cincinnati’s mid-century legislature are not imputed to the Cincinnati City Council of 2021. 15

the proposed amendment specifies how the dollars are required to be allocated. This is the very

definition of prioritization. See Merriam-Webster.com, https://www.merriam-

webster.com/dictionary/priorize (accessed March 18, 2021) (prioritize: “to organize (things) so that the most important thing is done or dealt with first”). There is nothing persuasive or argumentative about the ballot language identifying that the proposed amendment prioritizes funding the Trust Fund when that is exactly what it does. And, frankly, it is odd that Relators make this argument at all given their apparent intent to force Cincinnati City Council to make access to affordable housing a priority.

Second, the law requires that ballot language fairly and accurately present the issue because

“in many instances, the only real knowledge a voter obtains on the issue for which he is voting

comes when he enters the polling place and reads the description of the proposed issue set forth

on the ballot.” State ex rel. Voters First v. Ohio Ballot Bd, 133 Ohio St. 3d 257, 2012-Ohio-4149,

978 N.E.2d 119, ¶ 29, quoting Schnoerr v. Miller, 2 Ohio St.2d 121, 125, 206 N.E.2d 902 (1965).

Relators take issue with informing voters that the massive appropriation their proposed amendment

could, by prioritizing the Trust Fund, result in budget cuts that would impact essential City

services. The ballot language is not a “scare tactic”—it is an accurate and significantly restrained

description of how the mandated appropriation will impact the City’s ability to provide services

that are funded with the same $50 million.

The matter presented here is in no way similar to the facts of Beck, where the drafters of

the ballot caption language inserted the following phrase: “If [tax] levy passes, there will be no

city income tax in 1955 or 1956.” 162 Ohio St. at 474. This Court found the insertion was

improper not only because it impermissibly altered the ballot caption but because it made a

nonbinding promise that was beyond the authority of Cincinnati City Council. Id. at 475. Though

16 not explicitly stated in the initial decision, this Court has since recognized that Beck’s “promise” was improper because it was purely persuasive argument calculated to induce voters. See Voters

First, 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 26; Cincinnati for Pension Reform,

2013-Ohio-4489, ¶ 40.

In contrast, the ballot language here describes as concisely and fairly as is possible how the proposed amendment’s mandatory $50 million appropriation, which would forever alter the City’s

Charter and constitute a complete departure from the very tenets of representational democracy, will impact City operations. This is not argument, it is not opinion: encumbering 12% of the City’s annual operating fund, regardless of how well-intentioned, will decrease the City’s ability to provide essential services. Had the intent of the ballot language been to scare voters away, it would have detailed what this actually means: sanitation brownouts, layoffs of medics and other critical safety personnel, and elimination of funding for shelter providers to name a few. And such language, even if accurate, would most likely have been overly alarming to voters. The instant ballot language is fair and measured, and it does not come close to the impermissible and inaccurate inducement at issue in Beck.

Plainly stating the actual impact of passing the proposed amendment is appropriate because

“even if the language [is persuasive], it [is] not inaccurate.” Cincinnati for Pension Reform, 2013-

Ohio-4489, ¶ 46, citing State ex rel. Kilby v. Summit Cty. Bd. of Elections, 133 Ohio St.3d 184,

2012-Ohio-4310, 977 N.E.2d 590, ¶ 22. Whether Relators might have preferred different language, or no language at all, is irrelevant. Relators represent a small group of vested stakeholders—they do not represent the electorate at large. The ballot language serves to accurately inform that electorate and “properly describes the proposed amendment.” Bailey, 67

Ohio St.2d at 519.

17

D. It is not a material omission or misleading to accurately describe the composition of a board of unelected volunteers where a proposed law mandates their appointment by Cincinnati City Council.

Section 2 of the proposed amendment governs who will be entitled to nominate members

of the Trust Fund Board. The ballot language accurately reflects that it will be comprised exclusively of unelected volunteers, the overwhelming majority of whom will be selected by unelected individuals and organizations, with only two being nominated by a single councilmember. The proposed amendment provides zero discretion to Cincinnati City Council in the process but, rather, purposefully limits their ability to vet nominees: “City Council will appoint all nominated members to the Board . . . Council shall confirm all nominations for appointment at the next meeting of Council.” Sections 2(9) and 2(9)(f) (emphasis added). This limitation means there is no meaningful opportunity for City Council at large or the general public to provide input into the nomination process, which process is for all practical purposes, the appointment process.

This is a complete departure from the nomination and appointment process for the other City boards referenced by Relators. (Relators’ Brief, n.5).6 This language also differs from the current

appointment language in the Charter. See, e.g., Charter, Article III, Section 2 (“All other

6 See Charter, Article VII, Section 1 (providing that “board of park commissioners” are appointed by the mayor and subjecting certain of their decisions to approval by Cincinnati City Council); Charter, Article VII, Section 2 (providing that the mayor appoints five members of the City Planning Commission and allotting the remaining seats to the City Manager and a Councilmember appointed by Cincinnati City Council); Charter, Article VII, Section 11 (providing that members of the Board of Health are appointed by the mayor and subjecting certain of their decisions to approval by Cincinnati City Council); Charter, Article VII, Section 14 (providing that five members of the Public Recreation Commission board include a member of the local board of education, an elected official, three individuals appointed by the mayor, and member appointed by the board itself); Cincinnati Municipal Code Section 201-5 (providing that members of the Public and Educational Access Advisory Board are “appointed by the mayor, with the advice and consent of council.”); and Section 207-3 (providing that members of the Cincinnati Community Development Advisory Board shall be appointed by “[t]he mayor, with the advice and consent of council”). Relators further cite to the Public Recreation Commission; this Commission no longer exists and the Charter provision governing it was repealed in 2014. 18 appointments to be made by the mayor shall be made with the advice and consent of the council except as otherwise provided in this charter”). Any omission here is immaterial because Cincinnati

City Council’s role in the appointment process is perfunctory.

Relators rely heavily on Voters First to support their contention; however, their reliance is misplaced and, when compared to the instant facts, this seminal case supports the instant ballot language. The amendment at issue in Voters First provided for the creation of a redistricting commission whose members were to be first determined by a panel of eight court of appeals judges selected by the Chief Justice of the Supreme Court, and then determined through a process of elimination involving bi-partisan input from the Ohio House of Representatives. See Voters First,

2012-Ohio-4149, ¶ 3. The ballot language offered only that the amendment would “[c]reate a state funded commission of appointed officials from a limited pool of applicants to replace the

[authority of elected representatives].” Id. at ¶ 13. This Court appropriately held that the failure to provide any language reflecting the detailed appointment process left “voters to speculate about who selects the commission members.” Id. at ¶ 34.

There is no material omission here because the ballot language accurately identifies who will be selecting the Trust Fund’s Board members. Specifically, Paragraph C of the ballot language clarifies that the Trust Fund Board “will consist of eleven private citizens, nine of whom are selected by affordable housing and low income service organizations and two of whom are selected by the City Council President Pro Tem. . . .” (Ordinance No. 66-2021). Because there is no room for Cincinnati City Council to do anything other than rubber stamp the nominees, it would be misleading to emphasize their role in the selection process. And it is entirely appropriate to make the voters aware that this $50 million Trust Fund will be administered by an “unelected volunteer board” because that is what the proposed amendment provides. As this Court has recognized, it is

19 appropriate to describe the impact of a measure so long as “there is nothing factually inaccurate about the descriptive language.” Cincinnati for Pension Reform, 2013-Ohio-4489, ¶ 49. See also

Kilby, 2012-Ohio-4310, ¶ 22 (rejecting claim that approved ballot language amounted to

“persuasive argument” where the language accurately described the actual impact of the proposed charter amendment).

Relators complain repeatedly that the ballot language “entirely omits the critical role played by the City Council” in appointing Trust Fund Board members. (Relator’s Brief, p. 15).

But Relators purposefully drafted the proposed amendment to ensure that City Council did not play a critical role; its role is minimized to ‘rubber stamping’ 11 nominees, none of whom may be an elected official, nine of whom are selected by private organizations, and two of whom are selected by a lone Councilmember. It is absolutely correct that “[w]ho does the appointing is just as important as who is appointed,” Voters First, 2012-Ohio-4149, ¶ 34, and that is why the ballot language does not inaccurately inflate Cincinnati City Council’s ministerial role. If Relators wanted Cincinnati City Council to play a “critical role,” they would have created one for it. But that is not what the proposed amendment provides, and the ballot language fairly and accurately describes the composition of and selection process for the Trust Fund Board. Accordingly, any omission is immaterial and “will not be misleading to the average voter.” Kilby, 2012-Ohio-4310,

¶ 22.

E. Ballot language that concisely summarizes the purpose is not misleading, nor does it constitute a material omission.

Relators complain that the Ordinance’s ballot language is deficient because the opening paragraph does not comprehensively list the Trust Fund’s four restricted purposes as set out in

Section 1(2) of the proposed amendment. Relators go so far as to claim this is a material omission and renders the ballot language misleading. (Relator’s Brief, pp. 19-20). These form-over-

20

substance claims lack merit because the ballot language fairly summarizes the Trust Fund’s

purposes and any omission is immaterial.

Section 1(2) of the proposed amendment provides that the Trust Fund’s purpose is to:

a. [I]ncrease resources available for affordable housing and neighborhood stabilization; b. [C]reate and preserve affordable and accessible housing to meet the needs of families, households, and individuals with low incomes in the city; c. [P]rovide housing investment to prevent displacement and the loss of affordable housing in neighborhoods; and d. [L]everage additional outside resources for the betterment of housing affordable to households with low incomes in the city.

(Id., Ex. A). These four goals are fairly and accurately reflected in Paragraph B of the ballot language, which provides that “the fund can be allocated to new construction, renovation of vacant property, renovation of existing affordable units, operation costs of affordable housing, and direct services” and otherwise in the opening sentence (“for housing that is affordable to persons with low incomes and for related purposes”). (Id., Ex. D – or Ord. 66-2021).

A voter presented with the ballot language would understand without question that the

purpose of the Trust Fund is to create and protect housing that is affordable to households with

low incomes. And there is no obligation that ballot language include the full text of a proposal.

See Voters First, 2012-Ohio-4149, ¶ 24, quoting Ohio Constitution, Article XVI, Section 1. The

critical issue is whether ballot language “fairly and accurately present[s] the question or issue to

be decided in order to assure a free, intelligent and informed vote by the average citizen affected.”

Markus v. Trumbull Cty. Bd. of Elections, 22 Ohio St.2d 197, 203, 259 N.E.2d 501 (1970). Here,

the ballot language is a fair and wholly accurate summation of Section 1(2) of the proposed

amendment and it is appropriate to condense the list of stated purposes, especially given the catch-

all “for other purposes” included in the opening sentence. See Jurcisin, 35 Ohio St.3d at 142

(“Additional language may have made the summary more complete as to some aspects of the

21

charter amendment but would also have defeated the purpose of the summary in providing a clear,

concise description of the amendment to the voters.”).

To support their position, Relators cite to State ex re. ResponsibleOhio v. Ohio Ballot Bd.,

Slip Opinion No. 2015-Ohio-3758, where this Court found the subject ballot language deficient

due to material omissions. Specifically, the ballot language, related to a proposed constitutional

amendment on the “Legalization, Regulation and Taxation of Medical and Personal Use of

Marijuana,” omitted “two critical facts concerning retail establishments selling marijuana . . .

products:” (1) that a license was required and (2) that licenses would issue only upon approval of

the local electorate. Id. at ¶¶ 2, 8. This missing information was clearly critical because, unlike here, there was no reference whatsoever to the licensure requirement or its limited availability, which would certainly have misled voters about the proposed measure’s strictures. The instant

case could not be more dissimilar.

The ballot language states in its opening sentence that the Trust Fund is “for housing that

is affordable to persons with low incomes and for related purposes,” which, standing alone,

sufficiently apprises voters of the measure’s scope. But the ballot language goes further and

includes appropriate details about how the Trust Fund might be deployed to support development

of new housing, serve to stabilize neighborhoods through the renovation of vacant property, and

protect against displacement by investing in existing affordable units. While the ballot language

does not include each and every word set out in Section 1(2) of the proposed amendment, it more

than fairly and accurately describes all essential elements to the average voter. Moreover,

Relators’ suggestion that each word is material runs contrary to the goal of presenting voters with

a concise summary. See Jurcisin, 35 Ohio St.3d at 142

The omission of a handful of words does not equate to a material omission where the ballot

22

language fairly reflects the purpose of the proposed amendment for and does not threaten to

confuse or mislead the average voter. See State ex rel. Minus v. Brown, 30 Ohio St.2d at 81; Kilby,

2012-Ohio-4310, ¶ 22. Because the ballot language is more than sufficient, Relators’ request should be denied.

F. The unclean hands doctrine bars Relators’ from obtaining the relief they request.

For all the reasons stated above, the request for a writ of mandamus should be denied

because the ballot language is not deficient under any of the theories advanced by Relators.

Additionally, Relators are not entitled to the extraordinary relief because they “do not come before

the court with clean hands.” State ex rel. Albright v. Haber, 139 Ohio St. 551, 553, 41 N.E.2d 247

(1942).

“The doctrine of unclean hands requires a showing that the party seeking relief engaged in

reprehensible conduct with respect to the subject matter of the action.” State ex rel. Coughlin v.

Summit County Bd. of Elections, 136 Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 16,

citing Goldberger v. Bexley Properties, 5 Ohio St.3d 82, 84-85, 448 N.E.2d 1380 (1983).

The record here establishes that Relators are the same individuals involved with drafting

the proposed amendment and circulating petitions. (Complaint, ¶¶ 5-6). The petitions circulated

included ballot language that utterly failed to accurately inform petition signers about critical

details of the proposed amendment. See Relators’ Exhibit A. Indeed, the ballot language presented

to the over 9000 electors was deceptively innocuous and impermissibly emphasized only the

altruistic mission. Astonishing as it is, the ballot language omitted entirely any reference to the

mandatory, annual $50 million appropriation and, instead, provided only that “minimum

financing” would be required from Cincinnati City Council.

The material omissions absent from Relators’ petition ballot language include, but are not

23

limited to:

• Information about the Trust Fund Board’s composition, or nomination and appointment process;

• The mandatory, permanent, and ever-increasing annual $50 million appropriation;

• Identification of the proposed funding sources;

• The prohibition against using any state or federal funds;

• The available uses for appropriated funds; and

• The obligatory restrictions placed on fund recipients.

See Relator’s Exhibit A. It is not just ironic that Relators now (erroneously) complain that, among

other things, the adopted ballot language omits Cincinnati City Council’s “critical role,” it is

reprehensible. Because Relators petition ballot language contravenes every legal doctrine they

cite in their brief, they are not entitled to the extraordinary equitable writ they seek.

CONCLUSION

The electorate has a right to know and understand the actual impact the proposed

amendment. This includes knowing that it requires an ever-escalating mandatory $50 million

annual appropriation, and the available funding sources. It also includes knowing who will be making decisions about how these taxpayer dollars are spent, and how the proposed amendment otherwise operates. The ballot language ordained by Cincinnati’s City Council accomplishes this significant task and presents a fair and accurate summary for consideration by voters that enables them to understand what they are voting for at the ballot box. Additionally, Relators should not be allowed to obtain relief in this matter given their utilization of petition ballot language that was at best misleading, and at worst intended to conceal critical facts from the electorate to induce them into signing their petition or voting for the proposed amendment.

24

Respondent Cincinnati City Council respectfully requests that the Court deny Relators’ request for a writ of mandamus.

Respectfully submitted,

ANDREW W. GARTH (0088905) CITY SOLICITOR

/s/ Erica Faaborg Emily Smart Woerner (0089349) Deputy City Solicitor Erica Faaborg (0081140) Assistant City Solicitor 801 Plum Street, Room 214 Cincinnati, Ohio 45202 Phone: (513) 352-3309 Fax: (513) 352-1515 [email protected] [email protected] Counsel for Amicus Curiae City of Cincinnati

25

CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing has been served upon the following by electronic mail on this 19th day of March 2021:

Donald J. McTigue (0022849) David T. Stevenson (0030014) J. Corey Colombo (0072398) Assistant Prosecuting Attorney, Hamilton Derek S. Clinger (0092075) County, Ohio Ben F.C. Wallace (0095911) 230 East 9th Street, Suite 4000 McTigue & Colombo, LLC Cincinnati, Ohio 45202 545 East Town Street (513) 946-3120 Columbus, Ohio 43215 [email protected] Phone: (614) 263-7000 Counsel for Respondent Hamilton County Fax: (614) 368-6961 Board of Elections and its Members [email protected] [email protected] [email protected] [email protected] Counsel for Relators

David A. Yost (0056290) Ohio Attorney General Heather L. Buchanan (0083032) Caitlyn N. Johnson (0087724) 30 E. Broad St., 16th Floor Columbus, Ohio 43215 [email protected] [email protected] Counsel for Respondent Ohio Secretary of State Frank LaRose

/s/ Erica Faaborg Erica Faaborg (0081140) Assistant City Solicitor Counsel for Respondent Cincinnati City Council

26

APPENDIX

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