Supreme Court Case No. 2017-0753 STATE EX REL. BARBARA A
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Supreme Court of Ohio Clerk of Court - Filed July 20, 2017 - Case No. 2017-0753 IN THE SUPREME COURT OF OHIO Supreme Court Case No. 2017-0753 STATE EX REL. BARBARA A. LANGHENRY, Director of Law, Relator, v. PATRICIA BRITT, City Clerk, Clerk of Council Respondent AMICI CURIAE DOWNTOWN CLEVELAND ALLIANCE AND GREATER CLEVELAND SPORTS COMMISSION’S BRIEF IN SUPPORT OF RESPONDENT Michael W. Deemer (0075501) Stephen W. Funk (58506)) Downtown Cleveland Alliance Leighann K. Fink (0077765) 1010 Euclid Avenue Roetzel & Andress Cleveland, Ohio 44115 222 South Main Street, Suite 400 Telephone: 216-325-0998 Akron, Ohio 44308 E-mail: [email protected] Telephone: (330) 849-6602 Facsimile: (330) 376-4577 Counsel for Amici Curiae Downtown E-mail: [email protected]; Cleveland Alliance and Greater [email protected] Cleveland Sports Commission Attorneys for Relator Barbara A. Langhenry R. Todd Hunt (0008591) City of Cleveland Director of Law Aimee W. Lane (0071392) Walter & Haverfield LLP Andrew R. Mayle (0075622) The Tower at Erieview Mayle Ray Mayle LLC 1301 East 9th Street, Suite 3500 210 South Fremont Street Cleveland, Ohio 4114 Fremont, Ohio 43420 Telephone: (216) 781-1212 Telephone: (419) 334-8377 Facsimile: (216) 916-2372 E-mail: [email protected] E-mail: [email protected]; [email protected]; Attorneys for Amicus Curiae Property Investor’s, Inc. Attorneys for Respondent, Patricia J. Britt Subodh Chandra (0069233) Peter Patakos (00822884) The Chandra Law Firm LLC 1265 West 6th Street, Suite 400 Cleveland, Ohio 44113 Telephone: (216) 578-1800 Facsimile: (216) 578-1800 E-mail: [email protected]; [email protected] Attorneys for Intervening Relators Diane Bufford, Jennifer Blakeney, Verdia Conner, Khalilah Worley, and Linda Robinson TABLE OF CONTENTS Table of Authorities .........................................................................................................................ii Statement of Amici Curiae’s Interest in the Case .......................................................................1 Statement of the Case and Facts ...................................................................................................2 Argument ........................................................................................................................................2 I. Relators’ interpretation of City Charter Section 64 would make enacting emergency measures authorizing the City to enter into contracts to advance economic and community development projects virtually unworkable ................................................2 A. This Court should not issue a writ of mandamus because Charter Section 64 does not apply to emergency measures authorizing the City to enter into contracts and which adopt provisions for specific terms in those contracts……………………….3 B. The City’s strong public policy interest in responding to substantial economic and community development opportunities support this Court denying Relators’ motion for writ of mandamus..……………………….……………………….………….....4 1. The Supplemental Agreement advances the City’s public policy of keeping the Q renovated and competitive to attract more events and greater tax revenue and economic impact generating events.……………………….…………………...5 2. The renovation and improvement of the Q will achieve these substantial economic and community development benefits with significant support from the Cavaliers, without raising taxes, and with substantial protections for taxpayers.……………………….……………………….………………………6 3. Subjecting the Ordinance to the costly delays and uncertainty of the referendum process would delay, diminish, or deny the project’s substantial economic and community benefits.……………………….……………………………………7 II. Relators’ interpretation of City Charter Section 64 would yield absurd results that would virtually paralyze the City from participating in economic and community development projects, many of which require swift government action to negotiate and enter into contracts .......................................................................................................…7 III. Even if the Ordinance is subject to referendum, this Court should deny the writ of mandamus because the referendum process itself unconstitutionally impairs a valid and binding contract between the City and County ..............................................................8 Conclusion ....................................................................................................................................9 Proof of Service ............................................................................................................................10 i TABLE OF AUTHORITIES Cases: Donnelly v. City of Fairview Park, 13 Ohio St.3d 1, 2233 N.E.2d 500, paragraph two of the syllabus (1968)…………………………………………………………………………………….4 Middletown v. Gerfuson, 25 Ohio St.3d 71 (1986).………………………………………….........8 Perona v. Arceci, 129 Ohio App.3d 15 (9th Dist. 1998)…………………………………………..9 Peppers v. Beier, 75 Ohio App.3d 420 (3rd Dist. 1991)…………………………………………..9 City of London v. Proctor, 10th App. 01AP-34, 2001 WL 548756……………………………….9 Charter Provisions: City of Cleveland Charter, Section 64………………………………………….........2, 3, 4, 7, 8, 9 Constitutional Provisions: United States Constitution, Article I, Section 10……………………………………………..2, 3, 9 ii STATEMENT OF AMICI CURIAE’S INTEREST IN THE CASE Downtown Cleveland Alliance (“DCA”) is a non-profit corporation, organized under Section 501(c)(3) of the Internal Revenue, established to assist with the improvement, development and enhancement of the downtown area of the City of Cleveland. DCA works with property owners, residents, business leaders, philanthropies, neighborhood community development organizations, and other interested parties in fulfillment of this purpose. Because of the complexity of downtown real estate development, DCA stakeholders are deeply interested in public and private sectors being able to work effectively together, leverage each other’s resources, and collaboratively invest in the community. DCA is interested in ensuring that local government is able to effectively work with the private sector to create jobs, generate tax revenue, provide quality services, and improve the overall condition of the community. Greater Cleveland Sports Commission (“GCSC”) is a non-profit corporation, organized under Section 501(c)(3) of the Internal Revenue, established to generate economic impact and improve the quality of life and image of Northeast Ohio by attracting and managing sporting competitions and events. The issues that Amici DCA and GCSC would like to address are 1) the extent to which the City of Cleveland’s charter protects both the right to referendum and the City’s ability to govern effectively 2) the compelling public policy objectives that Relators’ interpretation of the City’s charter would impede and 3) the extent to which Relators’ interpretation of the City of Cleveland’s charter provisions would impede the City and other similarly situated political subdivisions in the State of Ohio from governing effectively. 1 STATEMENT OF THE CASE AND FACTS Downtown Cleveland is undergoing a renaissance fueled by increases in jobs, population and visitors. This continued progress depends upon local government being able to participate as a reliable partner in economic and community development projects. The outcome of this case will determine whether the City of Cleveland and other similarly situated political subdivisions in the State of Ohio can effectively negotiate and follow-through on economic and community development projects that provide substantial job creation, tax revenue, and other community benefits. Amici curiae DCA and GCSC hereby adopt the statement of facts outlined in Respondent Britt’s Memorandum in Support of the Motion to Dismiss. ARGUMENT I. Relators’ interpretation of Charter Section 64 would make enacting emergency measures authorizing the City to enter into contracts to advance economic and community development projects virtually unworkable. This case is about whether the City of Cleveland (“City”) can effectively govern and participate in job creating and tax revenue generating economic and community development projects. Subjecting the Ordinance to Referendum would delay, diminish or deny the Project’s substantial job creation and other significant community benefits. Fortunately, neither the City Charter nor Section 10, Article I of the United States Constitution (“Contract Clause”) permit such an undesirable outcome. Charter Section 64 does not permit emergency measures like the one authorizing the Supplemental Agreement to be subject to referendum, advancing the City’s public policy of ensuring its ability to effectively govern, negotiate and participate in economic and community development projects. Even if the Court accepts Relators’ interpretation that City Charter Section 64 requires that the Ordinance be subject to a referendum, the writ of mandamus 2 should be denied because the referendum unconstitutionally impairs the Supplemental Agreement and the City’s contractual obligations, as well as the substantial economic and community development benefits that will flow from their fulfillment. A. This Court should not issue a writ of mandamus because Charter Section 64 does not apply to emergency measures authorizing the City to enter into contracts and which adopt provisions for specific terms in those contracts. Charter Section 64 does not apply to emergency measures authorizing the City to