04>/5 /4411 IN THE SUPREME CGOURT OF OHIO ~«@563 CASE NO. STATE EX REL BOARD OF TRUSTEES OF ST. CLAIR TOWNSHIP, BUTLER COUNTY, OHIO and TOM BARNES TRUSTEE and GARY R. COUCH TRUSTEE and JUDY VALERIO TRUSTEE Relators, v. CITY OF HAMILTON, OHIO and JOSHUA SMITH L _;, CITY MANAGER OF HAMILTO 3‘? 1 APT? ~. = and CLERK OF COURT SUPREME COURT OF OHIO THOMAS VANDERHORST FINANCE DIRECTOR OF HAMILTON Respondents, Original Action in Mandamus RELATORS’ MOTION AND SUPPORTING MEMORANDUM FOR A PEREMPTORY WRIT OF MANDAMUS COUNSEL FOR RELA TORS COUNSEL FOR RESPONDENTS Gary L. Sheets (0019384) Heather Sanderson Lewis (0069212) Attorney At Law Director of Law 1731 Cleveland Avenue City of Hamilton, Ohio Hamilton, Ohio 45013 345 High Street glsheetsgii/1'use.net Hamilton, Ohio 45011 Office: 513-520-5517 Office: 513-785-7180 lewis@mfitt0n.eom Catherine A. Cunningham (0015730) Richard C. Brahm (0009481) Kegler, Brown, Hill & Ritter 65 East State Street, Suite 1800 Columbus, Ohio 43215 (614) 462-5486 Fax: (614) 228-1472 ccuninghamflkeglerbrownxom [email protected] IN THE SUPREME COURT OF OHIO STATE EX REL BOARD OF TRUSTEES OF ST. CLAIR TOWNSHIP, BUTLER COUNTY et al. Relators, V. Case No. CITY OF HAMILTON, OHIO et al \a~a~a\/sax/sasasysa Respondents, RELATORS' MOTION AND SUPPORTING MEMORANDUM FOR A PEREMPTORY WRIT OF MANDAMUS Relators St. Clair Township and its Trustees move this Court to issue a peremptory writ of mandamus in this case directed to the Respondents City of Hamilton, Ohio, its City Manager Joshua Smith, and its Finance Director Tom Vanderhorst. As grounds for the granting of such a peremptory writ, Relators say the relevant facts in this case are uncontroverted and it appears beyond doubt that St. Clair Township is entitled to extraordinary relief in mandamus as a matter of law. A Memorandum In Support of this Motion is attached hereto and made a part hereof. Wherefore Relators move this Court to issue a peremptory writ of mandamus to the Respondents instructing them to carry out their duty as public officials pursuant to the instruction .1. of R.C. 709.1903) . Respectfully submitted, Gary L. Sheets (0019384) Attorney For Relators 1731 Cleveland Avenue Hamilton, Ohio 45013 [email protected] Office: 513-520-5517 MEMORANDUM IN SUPPORT OF MOTION FOR PEREMPTORY WRIT OF MANDAMUS When an original action in mandamus is filed in this Court, it must determine whether to dismissal, issue an alternative writ, or issue a peremptory writ. S.Ct.Prac.R, l2.04(C) State ex rel. Duke Energy Ohio, Inc. v. Hamilton Ctfy. Court of Common Pleas, 126 Ohio St.3d 41, 2010-Ohio-2450, 930 N.E.2d 299 13. {I Dismissal is required if it appears beyond doubt, after presuming the truth of all material factual allegations_of the complaint and making all reasonable inferences in its favor, that the Relator is not entitled to the requested extraordinary relief in mandamus. State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, 10. 11 If, however, after so construing the complaint, it appears that the claim for extraordinary relief may have merit, this court will grant an alternative writ and issue a schedule for the presentation of evidence and briefs. State ex rel. Mason v. Burnside, 1 17 Ohio St.3d 1, 2()07—Ohio-6754, 881 N.E.2d 8. 224, T1 With respect to entitlement to a peremptory writ of mandamus this court held that in original actions, that a peremptory writ of mandamus should issue in the first instance when the material facts are such that a relator is entitled to relief as a matter of both law and fact. State ex rel. Conley v. Park, 146 Ohio St.3d 454, 2015-Ohio-5226, 58 N.E.3d 1112, 11 9 citing State ex rel. Beacon Journal Publishing Co. v. Radel, 57 Ohio St.3d 102, 103, 566 N.E.2d 661 (1991) quoting State ex rel Temke v. Outcall, 49 Ohio St.2d 189, 191, 360 N.E.2d 701 (1977). Although the granting of peremptory writ is the exception rather then the rule, this is an exceptional case. The determinative facts giving rise to Relators’ entitlement to mandamus relief come from I-lamilton‘s legislative record as well as the legislative record of the Butler County Commissioners. R.C. 709.19(B) is equally clear and unambiguous. When the facts and law are undisputed and show Relator is entitled to mandamus relief, issuance of a peremptory writ is in order. 1. THE MATERIAL FACTS ARE CLEAR, WELL-DOCUMENTED, AND UNDISPUTED R.C. 709.19(B) provides for the payment of lost tax revenue compensation by a municipal corporation when it uses R~C4 503.07 to adjust the boundary between itself and a township located within its borders. R.C. 503.07, in turn, points to two legislative acts by a municipal corporation: securing (a) county commissioner approval of an annexation petition, and (b) followed by securing county commissioner approval of a boundary adjustment petition. In this case, the dispositive legislative acts of both the Respondent City of Hamilton and the Butler County Commissioners giving rise to Relators’ entitlement to mandamus relief are set forth in certified copies of legislative action attached to Relators’ Complaint. .3. There can be no dispute whatsoever that on September 14, 2016, Hamilton City Council adopted Emergency Ordinance No. EOR 2016-9-81 and instructed Hamilton’s City Manager (Respondent Joshua Smith) to file a R.C. 503.07 boundary adjustment petition with the Butler County Commissioners. The purpose of Emergency Ordinance No. EOR 2016-9-81 was to remove the territory of the four (4) townships‘ then located within the City of Hamilton and relocate that territory into a paper township named Hamilton Township which was to lie exclusively and entirely within the city limits of Hamilton so as to make it a “paper township.” I-[amilton’s own records show this! There can also be no dispute whatsoever that on October 3, 2016, the Butler County Commissioners adopted their Resolution 2016-10-03663 in order to grant Hamilton’s R.C. 503.07 boundary adjustment petition. A certified copy of a Butler County Commissioner Resolution show this! As a result ofthe county commissioners’ adoption of a Resolution granting Hamilton’s boundary adjustment petition, all but fifiy (50) acres of the territory from Relator St. Clair Township (and the three other Butler County Townships involved) was removed from within their boundaries within Hamilton and was relocated into Hamilton Township. As a matter of Ohio law, removing territory from a township brings about two distinct results: (1) the removed territory is no longer considered to be a part of the township from which it was removed,; and (2) residents within the removed territory are no longer considered to reside ' Because fifty (50) acres of annexed territory was brought into Hamilton’s city limits using Senate Bill 5 annexation procedures that forbade removal of such annexed territory from the township from which it was annexed unless certain requirements were satisfied (and they were not), fifty acres within the City could not be relocated into Hamilton Township. .4. within the Township and they, therefore, are no longer entitled to vote in township elections but they are also no longer subject to township general fund real estate millage levies. 2005 Ohio Atty. Gen. Op. No. 2005-024 Respondent City of I-larnilton cannot dispute that it instituted R.C. 503.07 boundary adjustment proceedings to bring about an adjustment of its boundary with Relator St. Clair Township (and the three (3) other townships) and that the Butler County Commissioners granted I-lamilton’s petition to complete the boundary adjustment Hamilton sought. The only issue left to be resolved is what, if any, legal consequences follow from this boundary adjustment action. 2. R.C. 709.l9(B) IS CLEAR AND UNAMBIGUOUS THAT LOST TAX REVENUE COMPENSATION PAYMENTS BECOME DUE AND PAYABLE WHEN A MUNICIPAL CORPORATION SUCCESSFULLY UTILIZES R.C. 503.07 TO REMOVE TERRITORY FROM ONE TOWNSHIP AND RELOCATE IT INTO A DIFFERENT TOWNSHIP OF THE MUNICIPAL CORPORATION’S CHOOSING. On October 3, 2016, when Respondent Hamilton secured a R.C. 503.07 boundary adjustment from the Board of Butler County Commissioners that resulted in the removal of territory from Relator St. Clair Township and its relocation into Hamilton Township, R.C. 709.l9(B) provided: “If unincorporated territory is annexed to a municipal corporation and excluded from a township under section 503.07 of the Revised Code, upon exclusion of that territory, the municipal corporation that annexed the territory shall make payments to the township from which the territory was annexed only as provided in this section, except that, if the legislative authority of the municipal corporation enters into an agreement under section 701.07, 709.191, or 709.192 of the .5. Revised Code with the township from which the territory was annexed that makes alternate provisions regarding payments by the municipal corporation, then the payment provisions in that agreement shall apply in lieu of the provisions of this section.” Two things must happen before lost tax revenue compensation payments are due. First, township territory must be annexed into a municipal corporation. Second, already annexed territory must be removed from the township of which it was a part of when annexed and be relocated into a different township. Both predicates have occurred here. So Hamilton’s obligation to pay lost tax revenue compensation payments has attached as a matter of law. Given that both the facts and R.C. 709.19(B) are clear, the only remaining issue is how much lost tax revenue compensation is St.