Supreme Court of Ohio Clerk of Court - Filed March 11, 2021 - Case No. 2021-0312
IN THE SUPREME COURT OF OHIO STATE EX REL. CINCINNATI 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 OHIO SECRETARY OF STATE 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 Ohio Attorney General [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 Cincinnati City Council 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