Supreme Court of Clerk of Court - Filed March 11, 2021 - Case No. 2021-0312

IN THE STATE EX REL. ACTION FOR HOUSING NOW 545 E. Town St. Columbus, OH 43215 CASE NO:

STATE EX REL. FANNIE JOHNSON 10033 Regency Ct. Cincinnati, OH 45251 ORIGINAL ACTION IN MANDAMUS STATE EX REL. JOSHUA WESLEY SPRING 29 E. Clifton Ave. ALTERNATIVE AND Cincinnati, OH 45202 PEREMPTORY WRITS REQUESTED STATE EX REL. MARGARET ANNE FOX 2200 Victory Pkwy., Apt. 1601 EXPEDITED ELECTION Cincinnati, OH 45206 MATTER PURSUANT TO S.CT.PRAC.R. 12.08 STATE EX REL. MICHAEL W. VOLMER 102 Juergens Ave. Cincinnati, OH 45220 Relators,

v.

HAMILTON COUNTY BOARD OF ELECTIONS 4700 Smith Rd. Cincinnati, OH 45212

GWEN L. MCFARLIN CHAIR, HAMILTON COUNTY BOARD OF ELECTIONS 4700 Smith Rd. Cincinnati, OH 45212

ALEX M. TRIANTAFILOU MEMBER, HAMILTON COUNTY BOARD OF ELECTIONS 4700 Smith Rd. Cincinnati, OH 45212

JOSEPH L. MALLORY MEMBER, HAMILTON COUNTY BOARD OF ELECTIONS 4700 Smith Rd. Cincinnati, OH 45212 CHARLES H. GERHARDT III MEMBER, HAMILTON COUNTY BOARD OF ELECTIONS 4700 Smith Rd. Cincinnati, OH 45212

HON. FRANK LAROSE 22 N. Fourth St., 16th Floor Columbus, OH 43215

CINCINNATI CITY COUNCIL 801 Plum St. Cincinnati, OH 45202

Respondents.

RELATORS’ VERIFIED COMPLAINT IN ORIGINAL ACTION FOR WRIT OF MANDAMUS

Donald J. McTigue (0022849) Joseph Deters (0012084) J. Corey Colombo (0072398) Hamilton County Prosecuting Attorney Derek S. Clinger (0092075) 230 E. 9th St., Ste. 4000 Ben F.C. Wallace (0095911) Cincinnati, OH 45202 McTigue & Colombo, LLC Counsel for Respondents Hamilton County 545 East Town Street Board of Elections and its Members Columbus, Ohio 43215 Phone: (614) 263-7000 David A. Yost (0056290) Fax: (614) 368-6961 [email protected] Bridget C. Coontz (0072919) [email protected] 30 E. Broad St., 16th Floor [email protected] Columbus, OH 43215 [email protected] Counsel for Respondent Ohio Secretary of Counsel for Relators State Frank LaRose

Relators hereby aver as follows:

NATURE OF THE ACTION AND JURISDICTION

1. This is an original action commenced pursuant to this Court’s original jurisdiction under

Section 2, Article IV of the Ohio Constitution and Chapter 2731 of the Ohio Revised

Code to ensure that the ballot language with respect to the Cincinnati Affordable Housing

Charter Amendment (“Proposed Charter Amendment) accurately and fairly presents the

proposed amendment to the electors of the City of Cincinnati.

2. Relators seek an Order, Judgment, and/or Writ from this Court compelling Respondent

Hamilton County Board of Elections, Respondent Board Members, and Respondent Ohio

Secretary of State Frank LaRose to approve ballot language for the Proposed Charter

Amendment that is accurate, not misleading, and free of material omissions and political

arguments.

3. Relators affirmatively allege that they have acted with the utmost diligence in bringing

the instant action, that there has been no unreasonable delay or lapse of time in asserting

their rights to be vindicated herein, and, further, there is no prejudice to Respondents.

This action was filed one day after Relators received the approved ballot language. See,

e.g., State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656

N.E.2d 1277 (1995).

4. Because of the proximity of the May 4, 2021 election, Relators lack an adequate remedy

in the ordinary course of law. See, e.g., State ex rel. Greene v. Montgomery Cty. Bd. of

Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 N.E.2d 300, ¶ 10.

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PARTIES

5. Relator Cincinnati Action for Housing Now is the political committee formed to support

the Proposed Charter Amendment.

6. Relators Fannie Johnson, Joshua Wesley Spring, Margaret Anne Fox, and Michael W.

Volmer (“Relators”), who are all qualified electors of the City of Cincinnati, are four of

the five members of the committee listed on the Proposed Charter Amendment petition.

7. Respondent Hamilton County Board of Elections (“Respondent Board”) is the board of

elections, created pursuant to R.C. 3501.06 of Hamilton County, Ohio, in which the City

of Cincinnati is located.

8. Respondents Gwen L. McFarlin, Alex M. Triantifilou, Joseph L. Mallory, and Charles H.

Gerhardt III (“Respondent Board Members”) are the members of the Hamilton County

Board of Elections.

9. Respondent Ohio Secretary of State Frank LaRose (“Respondent Secretary”) is the Ohio

Secretary of State, the Chief Elections Officer of the State of Ohio.

10. Respondent is the legislative body for the political subdivision

City of Cincinnati which passed the municipal ordinance regarding the proposed

municipal charter amendment which is at issue in this action.

ALLEGATIONS IN SUPPORT OF CLAIMS

11. Prior to February 23, 2021, Relators caused to be filed with the City of Cincinnati by

initiative petition the Proposed Charter Amendment to the City of Cincinnati. Attached

hereto as Exhibit A is a true copy of the text of the Proposed Charter Amendment as

filed.

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12. The Proposed Charter Amendment initiative petition was signed by over 9,000 residents

of the City of Cincinnati and would create and fund an Affordable Housing Trust Fund to

expand, preserve, and improve affordable housing options for low-income residents in

the City of Cincinnati.

13. On February 23, 2021 Respondent Board reported that the initiative petition containing

the Proposed Charter Amendment contained more than the number of qualified

signatures for submission to the electors. Attached hereto as Exhibit B is a true copy of

the letter from the Director of Respondent Board to the City of Cincinnati Clerk of

Council verifying the number of qualified signatures on the petition.

14. The petition containing the Proposed Charter Amendment is sufficient and valid in all

respects.

15. On March 2, 2021 a proposed ordinance, No. 66-2021, to submit the Proposed Charter

Amendment to the voters of the City of Cincinnati was voted out of the Economic

Growth and Zoning Committee to the full Respondent Cincinnati City Council. The

proposed ordinance contained proposed ballot language (“Ballot Language”) for the

Proposed Charter Amendment to appear on the May 4, 2021 election ballot.

16. On March 3, 2021 Relators’ counsel transmitted a letter to Respondent Cincinnati City

Council which identified deficiencies in the Ballot Language under Ohio law and this

Court’s precedent. Attached hereto as Exhibit C is a true copy of the transmittal email

and letter.

17. Relator Joshua Spring, Executive Director of the Greater Cincinnati Homeless Coalition,

which supports the Proposed Charter Amendment, testified at the March 3, 2021 meeting

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of Respondent Cincinnati City Council meeting regarding, among other issues, the

inaccuracies and deficiencies in the Ballot Language.

18. Despite these timely objections, on March 3, 2021, Respondent Cincinnati City Council

adopted Ordinance No. 66-2021 (“Ordinance), to submit the Proposed Charter

Amendment to the voters of the City of Cincinnati at the May 4, 2021 election. The

Ordinance contained the Ballot Language that was voted out of the Economic Growth

and Zoning Committee. Attached hereto as Exhibit D is a true copy of the Ordinance as

passed by Respondent Cincinnati City Council which includes the Ballot Language.

19. On March 4, 2021 the Ordinance was transmitted to Respondent Board.

20. On March 4, 2021, counsel for Relators transmitted a letter to Respondent Board that

identified the same deficiencies in the Ballot Language under Ohio law and this Court’s

precedent. Attached hereto as Exhibit E is a true copy of the transmittal email and letter.

21. On or about March 5, 2021, Respondent Board transmitted the Ordinance with the same

Ballot Language as proposed by Respondent Cincinnati City Council to the office of

Respondent Secretary for approval.

22. On March 8, 2021 Relators’ counsel transmitted a letter to Respondent Secretary’s staff,

informing Respondent Secretary and his staff of the same deficiencies in the Ballot

Language under Ohio law and this Court’s precedent. Attached hereto as Exhibit F is a

true copy of the transmittal email and letter.

23. On March 9, 2021 Respondent Secretary’s office approved the Ballot Language without

any revisions to the Ballot Language as included in the Ordinance and as transmitted by

Respondent Board. Attached hereto as Exhibit G is a true copy of the Ballot Language as

approved by Respondent Secretary.

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24. On March 9, 2021 Relators’ counsel requested an update on the status of the ballot

language from Respondent Secretary’s office. On March 10, 2021 Relators’ counsel

received responses from Respondent Board and Respondent Secretary and a copy of the

Ballot Language as approved by Respondent Secretary. Attached hereto as Exhibit H is a

true copy of these emails and corresponding attachments.

25. The Ballot Language, as approved by Respondent Board and Respondent Secretary, is

identical to the Ballot Language in the Ordinance passed by the Cincinnati City Council.

CLAIM FOR RELIEF

26. Each and every allegation above is incorporated as if fully rewritten herein.

27. R.C. 3501.11(V) requires boards of elections to “[g]ive approval to ballot language for

any local question or issue and transmit the language to the secretary of state for the

secretary of state’s final approval.”

28. With respect to the Respondent Secretary, R.C. 3501.05(J) provides “[e]xcept as otherwise

provided in division (I)(2)(b) of section 3501.38 of the Revised Code, [the secretary of

state shall] give final approval to ballot language for any local question or issue approved

and transmitted by boards of elections under section 3501.11 of the Revised Code.”

29. This Court has held that ballot language approved by a board of elections and the Secretary

of State must not be “inaccurate, incorrect, or illegal,” and it must also not be “confusing,

misleading, or argumentative.” State ex rel. Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35

Ohio St.3d 137, 141 (1988).

30. This Court further requires that ballot language “must fairly and accurately present the

question or issue to be decided in order to assure a free, intelligent and informed vote by

the average citizen affected.” State ex rel. Schuck v. Columbus, 152 Ohio St.3d 590, 2018-

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Ohio-1428, ¶ 14 (quoting State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257,

20212-Ohio-4149, ¶ 29).

31. This Court has held that ballot language must be free of material omissions. State ex rel.

Cincinnati for Pension Reform v. Hamilton County Bd. of Elections, 137 Ohio St.3d 45,

2013-Ohio-4489, ¶ 47 (“The ballot language ought to be free from any misleading

tendency, whether of amplification, or omission (internal quotes omitted); State ex rel.

Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257, 20212-Ohio-4149, ¶ 30 (“any omitted

substance of the proposal must not be material, i.e., its absence must not affect the fairness

or accuracy of the text”).

32. The Proposed Charter Amendment has a goal of promoting, expanding, and preserving

access to affordable housing for low-income residents of the City of Cincinnati through

multiple different mechanisms, including new affordable housing construction, renovation

of existing affordable housing, renovation of vacant properties, leveraging outside

resources to improve affordable housing, and other approaches. However, the opening

paragraph of the Ballot Language only states that the purpose of the Proposed Charter

Amendment is to appropriate funds for “housing that is affordable to persons with low

incomes and for related purposes.” [See attached Exhibits A and G.] This language

materially omits multiple key approaches for achieving affordable housing described in the

Proposed Charter Amendment.

33. The Proposed Charter Amendment does not call for any changes to the manner or degree

in which the City of Cincinnati funds essential services or public projects other than

affordable housing. The opening paragraph of the Ballot Language states that the

affordable housing funding prescribed in the Proposed Charter Amendment will be paid

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for “using funding sources otherwise dedicated to providing for essential City services and

public infrastructure needs.” [Exhibit G.] There is no provision in the Proposed Charter

Amendment that states this. The very next paragraph in the Ballot Language further

misleads voters as to the appropriation provisions included in the Proposed Charter

Amendment by stating as follows:

The mandatory $50 million annual appropriate 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.

[Exhibit G.] There is no such language in the Proposed Charter Amendment and there is

no provision in the Proposed Charter Amendment that dictates that appropriations for

affordable housing takes priority over appropriations for any other City projects. These

insertions in the Ballot Language are a transparent attempt to insert an argument against

the Proposed Charter Amendment into the Ballot Language. The language is unfair,

misleading, argumentative, and inaccurate.

34. The Proposed Charter Amendment calls for the creation of the Cincinnati Affordable

Housing Trust Fund Board (“Trust Fund Board”) to administer the provisions of the

Proposed Charter Amendment. The Trust Fund Board members are to be selected initially

by various affordable housing and low-income advocates in the City of Cincinnati and from

various economic and professional backgrounds, with those names then submitted to the

Cincinnati City Council: “[T]he City Council will appoint all nominated members to the

[Trust Fund] Board.” [Exhibit A.] The opening paragraph of the Ballot Language states

that the Affordable Housing Trust Fund will be “administered by an unelected volunteer

board.” [Exhibit G.] Paragraph C of the Ballot Language then states that the Trust Fund

Board “will consist of eleven private citizens, nine of whom are selected by affordable

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housing and low income service organizations[.]” [Exhibit G.] These Ballot Language

descriptions of the Proposed Charter Amendment entirely omit the crucial and material fact

that the Trust Fund Board members must be appointed by the elected Cincinnati City

Council.

35. The Proposed Charter Amendment provides that funding for the Trust Fund Board shall be

appropriated “from among the following sources,” whereupon six different funding

sources are provided for. [Exhibit A.] Paragraph A of the Ballot Language, however, lists

only four of the six sources identified in the Proposed Charter Amendment. [Exhibit G.]

This is a material omission. Furthermore, the Proposed Charter Amendment does not

provide that any single, or all, of the funding sources listed be used, only that funding shall

come from “among” those sources. These inaccuracies and omission will tend to mislead

voters as to the sources of funding provided for in the Proposed Charter Amendment.

36. Paragraph A of the Ballot Language makes the claim that two of the funding sources in the

Proposed Charter Amendment would violate state law. [Exhibit G.] This is a statement of

legal opinion, not a summary of the language contained in the Proposed Charter

Amendment and amounts to inserting an argument in the Ballot Language.

37. The cumulative effect of permitting these inaccurate, misleading, and argumentative

elements of the Ballot Language, which also contains numerous material omissions, to

appear on the ballot is that the voters who will cast their ballot for or against the Proposed

Charter Amendment will be misled as to the substance of the Proposed Charter

Amendment.

38. The failure by Respondent Board, Respondent Board Members, and Respondent Secretary

to approve ballot language for the Proposed Charter Amendment that is accurate, not

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misleading, not argumentative, and which is free of material omission was, and continues

to be, in clear disregard of applicable law and/or an abuse of discretion.

39. Respondent Board, Respondent Board Members, and Respondent Secretary have a clear

legal duty to approve ballot language for the Proposed Charter Amendment that is accurate,

not misleading, not argumentative, and which is free of material omissions.

40. Relators have a clear legal right to require Respondent Board, Respondent Board Members,

and Respondent Secretary to approve ballot language for the Proposed Charter Amendment

that is accurate, not misleading, and not argumentative, and which does not contain

material omissions.

41. Relators lack any other adequate remedy other than an order or judgment from this Court

ordering Respondent Board, Respondent Board Members, and Respondent Secretary to

approve ballot language that is accurate, not misleading, and not argumentative, and which

is free of material omissions.

PRAYER FOR RELIEF

WHEREFORE, Relators respectfully request that the Court:

A. Issue an Order, Judgment and/or Writ of Mandamus declaring that the Proposed

Ballot Language is invalid;

B. Issue an Order, Judgment and/or Writ of Mandamus ordering Respondent Board and Respondent Board Members to immediately adopt ballot language for the Proposed Charter

Amendment that is accurate, not misleading, not argumentative, and which does not contain material omissions;

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C. Issue an Order, Judgment and/or Writ of Mandamus ordering Respondent

Secretary to approve ballot language for the Proposed Charter Amendment that is accurate, not misleading, not argumentative, and which does not contain material omissions;

D. Issue a Peremptory Writ of Mandamus ordering the relief set forth above after the filing of the Answer to the Complaint;

E. Assess the costs of this action against Respondents;

F. Award Relators their attorneys’ fees and expenses, including pursuant to R.C.

309.13; and

G. Award such other relief as may be appropriate.

Respectfully submitted,

/s/ Donald J. McTigue ______Donald J. McTigue (0022849) J. Corey Colombo (0072398) Derek S. Clinger (0092075) Ben F.C. Wallace (0095911) MCTIGUE & COLOMBO LLC 545 East Town Street Columbus, Ohio 43215 Phone: (614) 263-7000 Fax: (614) 368-6961 [email protected] [email protected] [email protected] [email protected] Counsel for Relators

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EXHIBIT A

TEXT OF PROPOSED CHARTER AMENDMENT

EXHIBIT B

RESPONDENT BOARD DOCUMENTATION OF SIGNATURE VERIFICATION

EXHIBIT C

3/3/21 CORRESPONDENCE BETWEEN RELATORS’ COUNSEL AND CINCINNATI CITY COUNCIL

EXHIBIT D

CITY OF CINCINNATI ORDINANCE NO. 66-2021

EXHIBIT E

3/4/21 CORRESPONDENCE BETWEEN RELATORS’ COUNSEL AND RESPONDENT BOARD

EXHIBIT F

3/8/21 CORRESPONDENCE BETWEEN RELATORS’ COUNSEL AND RESPONDENT SECRETARY’S OFFICE

EXHIBIT G

BALLOT LANGUAGE AS APPROVED BY RESPONDENT SECRETARY