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SEP I a Z007 CLERK of COURT SUPREME COURT of OHIO

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SEP I a Z007 CLERK of COURT SUPREME COURT of OHIO IN THE SUPREME COURT OF OHIO State of Ohio CASE NO. City of Bay Village, ex rel. Committee for the Charter Amendment for ORIGINAL ACTION IN an Elected Law Director MANDAMUS Lucian A. Dade, Chairperson 584 Bradley Rd. VERIFIED COMPLAINT IN Bay Village, Ohio 44140 MANDAMUS and EXPEDITED ELECTION CASE Lucian A. Dade 584 Bradley Rd. Bay Village, Oliio 44140 and Karen Dade 584 Bradley Rd. Bay Village, Ohio 44140 and Eric Hansen 30401Edni1 Dr. Bay Village, Ohio 44140 Relators V. City of Bay Village 350 Dover Center Rd. Bay Village, Ohio 44140 Upon: Mayor Deborah L. Sutherland and MU) Joan T. Kemper SEP i a Z007 Clerk of Council City of Bay Village CLERK OF COURT 350 Dover Center Rd. SUPREME COURT OF OHIO Bay Village, Ohio 44140 and City of Bay Village City Council 350 Dover Center Rd. Bay Village, Ohio 44140 Upon: Brian A. Cruse, President Respondents ORIGINAL ACTION IN MANDAMUS EXPEDITED ELECTION CASE RELATORS' VERIFIED COMPLAINT IN MANDAMUS Gerald W. Phillips Attorney for Relators Phillips & Co., L.P.A. P.O. Box 269 461 Windward Way Avon Lake, Ohio 44012 (440) 933-9142 Fax No. (440) 930-0747 Reg. No. 0024804 IN THE SUPREME COURT OF OHIO State of Ohio ) CASE NO. City of Bay Village, ex rel. Committee for the Charter Amendment for ) ORIGINAL ACTION IN an Elected Law Director ) MANDAMUS Lucian A. Dade, Chairperson, et a] VERIFIED COMPLAINT IN Relators ) MANDAMUS V. EXPEDITED ELECTION CASE City of Bay Village et al Respondents PARTIES 1. Relator the Committee for the Charter Amendment for an Elected Law Director, is the duly authorized committee designated for the Charter Amendment Petitions (hereinafter referred to as the "Committee"); 2. Relator, the Committee, is composed of the following taxpayers, residents, and members: Relators, Lucian A. Dade, Chairperson, Karen Dade, and Eric Hansen; 3. Relator Lucian A. Dade is also commonly known in the residential and business community as Alex Dade; 4. Relator Eric Hansen also owns a personal residential dwelling at 600 Bradley Rd. Bay Village, Ohio 44140, in addition to his residence at 30401Edni1 Dr., Bay Village, Ohio 44140; 5. Respondent Joan T. Kemper is the Clerk of Council for the City of Bay Village (hereinafter referred to as "Clerk"); 6. Respondent City of Bay Village is a charter municipality in the State of Ohio (hereinafter referred to as the "City"); 7. Respondent City of Bay Village's legislative authority or body is its City Council, composed of seven members, Brian A. Cruse its President, Paul A. Koomar, Donald L Zimmerman, Mark E. Barbour, James R. Scott, Scott A. Pohlkamp, and Michael A. Young (hereinafter referred to as "City Council"); JURISDICTION 8. Relators bring forth their verified Complaint in Mandamus pursuant to this Court's original jurisdiction, Ohio Constitution Article 4, Section 2(B), Ohio Supreme Court Rule 10, and ORC Section 2731; 9. Pursuant to Ohio Supreme Court Rule X, Section 9 the herein action is an Expedited Election Case necessitating an expedited schedule; CAUSES OF ACTION (Factual Background) 10. On August 29, 2007 the Committee filed with the Clerk, forty six (46) Part Petitions containing 907 signatures for an amendment to the City Charter of the City of Bay Village, Proposed Charter Amendment: A Proposed Charter Amendment to provide for the election of the Director of Law by the electorate and to provide for the office of the Director of Law by amending Sections 4.2, 4.3, and 11.2 of Bay Village City Charter ("Charter Amendment Petitions") as one (1) instrument, a true and accurate copy of the receipt for the Charter Amendment Petitions is attached hereto and made a part hereof as Exhibit A; 11. On August 29, 2007 the Committee by and through its Counsel filed with the Clerk a memorandum of law stating the number of signatures needed for the Charter Amendment Petitions, the constitutional duty to "forthwith" submit the Charter Amendment Petitions to the electorate at the November 6, 2007 General Election, that time was of the essence, and case law and authority to assist the Respondents in the performance of their constitutional duty with respect to the Charter Amendment Petitions to "forthwith" submit them to the electorate at the November 6, 2007 General Election, a true and accurate copy of the memorandum of law is attached hereto and made a part hereof as Exhibit B; 12. On August 29, 2007 the Respondent City Council by its President Brian A. Cruse wrote a cover letter to the Cuyahoga County Board of Elections ("Board of Elections") which was delivered to the Board of Elections with the Charter Amendment Petitions on August 30, 2007, a true and accurate copy of the letter is attached hereto and made a part hereof as Exhibit C ("Submission Letter"). 13. On August 30, 2007 the Clerk delivered the Charter Amendment Petitions and the Submission Letter to the Board of Elections, a true and accurate copy of the receipt for these documents is attached hereto and made a part hereof as Exhibit D; 14. On August 30, 2007 and August 31, 2007 the Board of Elections checked and verified the signatures on the Charter Amendment Petitions and determined that there were 825 valid signatures of duly registered voters in the City of Bay Village on the Charter Amendment Petitions and that 677 valid signatures were needed for the Charter Amendment Petitions, a true and accurate copy of the Board of Elections Signature Verification Statement is attached hereto and made a part hereof as Exhibit E. 15. On August 31, 2007 the Board of Elections informed the Respondents that the Board of Elections had finished its verification of signatures on the Charter Amendment Petitions and that the Board of Elections Signature Verification Statement and Charter Amendment Petitions were available for pick up, and the Clerk did pick up the Board of Elections Signature Verification Statement and Charter Amendment Petitions on August 31, 2007 as is evidenced by Exhibit D; 16. Upon receipt of the Board of Elections Signature Verification Statement and Charter Amendment Petitions on August 31, 2007 the Respondent City Council by its President Brian A. Cruse contested the signature requirement of 677 and asked the Board of Elections to provide him with the number of registered voters in the City of Bay Village, and the Board of Elections responded and provided the Respondent City Council President Brian A. Cruse with a response, and a true and accurate copy of the response is attached hereto and made a part hereof as Exhibit F; 17. The Respondents in response to the Relators filing of the Charter Amendment Petitions and the signature verification by the Board of Elections scheduled a special council meeting for September 6, 2007 at 6:30 P.M. to consider the Charter Amendment Petitions and their validity and sufficiency and certification and submission to the Board of Elections, but did not send or give the Relators Counsel any written notice of the special council meeting; 18. The Respondents did not inform or notify the Relators that they were challenging and contesting the signature requirement for the Charter Amendment Petitions or their validity or sufficiency; 19. The Relators after extensive research and investigation discovered that the Respondents were challenging and contesting the signature requirement for the Charter Amendment Petitions, and they immediately prepared and submitted a letter informing the Respondents of their clear error of law and demanding and requesting the performance of their mandatory duty enjoined by law to submit the Charter Amendment Petitions to the electorate at the November 6, 2007 General Election, a true and accurate copy of their letter is attached hereto and made a part hereof as Exhibit G, ("Taxpayers Demand Letter"); 20. The Relators provided the Clerk with copies of the Taxpayers Demand Letter for herself and for all members of Respondent City Council, and a true and accurate copy of the letter providing these copies is attached hereto and made a part hereof as Exhibit H; 21. The Respondent City's Law Director Gary A. Ebert retained the services of outside counsel Stephen M. O'Bryan from the law firm of Taft, Stettinius & Hollister to respond and advise Respondent City Council with respect to the Charter Amendment Petitions and the Taxpayers Demand Letter; 22. On September 6, 2007, the Respondent City Council held its special city council meeting at 6:30 P.M. to consider the Charter Amendment Petitions and their validity and sufficiency and certification and submission to the Board of Elections; 23. The Respondents prepared an agenda for the special council meeting for September 6, 2007 which included a proposed ordinance to submit to the electorate a proposed charter amendment identical to the Charter Amendment Petitions which was distributed to the public and to the Relators for the first time at the special council meeting, a true and accurate copy of the agenda including the proposed ordinance is attached hereto and made a part hereof as Exhibit I; 24. At the September 6, 2007 special city council meeting the outside counsel of the Respondents Stephen M. O'Bryan retained by the Respondent City's Law Director Gary A. Ebert rejected the Relators Taxpayers Demand Letter; 25. At the September 6, 2007 special city council meeting, the proposed ordinance to submit to the electorate a proposed charter amendment identical to the Charter Amendment Petitions, Ordinance No. 07-83 was defeated by a vote of two (2) yeas, four (nays) and one (1) absent member after considering the advice consultation and opinions of the outside counsel of the Respondents Stephen O'Bryan retained by the Respondent City's Law Director Gary A.
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