MSJ draft - DOC by warnermendenhall

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									                          IN THE COURT OF COMMON PLEAS
                               SUMMIT COUNTY, OHIO


State of Ohio ex rel.                )             Case No. CV 2009-03-2204
PATRICIA LONGVILLE,                  )
                                     )             Judge Lynne S. Callahan
              Relator,               )
                                     )
     -vs.-                           )
                                     )
CITY OF AKRON,                       )             RELATOR‟S MOTION FOR
                                     )             SUMMARY JUDGMENT
              Respondent.            )
____________________________________ )


     Now comes the Relator, by and through undersigned counsel, to respectfully move the

court to grant summary judgment in her favor. The grounds for this motion are more fully set

out in the Memorandum of Law that follows.


                                                   Respectfully submitted,


                                                   ___________________________________
                                                   Warner Mendenhall, #0070165
                                                   The Law Offices of Warner Mendenhall
                                                   190 N. Union St., Ste. 201
                                                   Akron, OH 44304
                                                   330-535-9160; fax 330-762-9743
                                                   warnermendenhall@hotmail.com

                                                   Counsel for Relator
                                                 MEMORANDUM


I.       Introduction

         “Money buys many of the good things in life, but no one has cited any constitutional

history suggesting that money is supposed to be the milk of politics or that large political

contributions are a necessary ingredient of representative government protected by the

Constitution.” Frank v. City of Akron (6th Cir. 2002), 290 F.3d 813, 817.

         In this case, Relator Patricia Longville presents three very simple questions concerning the

very campaign finance reform provisions that the Sixth Circuit judges were discussing in Frank:

         1.      Does Akron City Charter Section 5 allow a candidate for a City Council ward seat to

raise $100 or $200 per contributor?

         2.      Does the same charter section allow a candidate for a City Council at-large seat or a

candidate for Mayor to raise $300 or $600 per contributor?

         3.      Did Mayor Donald Plusquellic violate City Charter Section 5 when he was running

for re-election in 2007?


II.      Facts

         The facts are very also very simple, and have been outlined in the federal court opinions in

Frank v. City of Akron (N.D. Ohio 1999), 95 F. Supp.2d 706, and Frank v. City of Akron (6th Cir.

2001), 290 F.3d 813, rehearing denied (6th Cir. 2002), 303 F.3d 752.1

         In the fall of 1998, Relator Longville joined a group of Akron citizens that included Greg

Coleridge of the American Friends Service Committee, Mike Parsons, and current City

Councilman Bruce Kilby to start a grassroots effort to reform Akron‟s elections. Their group,


1
    The decisions are attached for the court‟s convenience.


                                                              2
later called the Yes on 11 Campaign, aimed to amend Akron‟s charter to place limits on

campaign fundraising to stop businessmen and others from trading campaign contributions for

city contracts and other favors. See Frank, 290 F.3d at 816. The group obtained enough

signatures on their initiative petition to get the proposed amendment on the November 3, 1998

ballot,2 where it passed overwhelmingly with 68 percent of the vote. It was added to Akron‟s

City Charter as Section 5, titled “Campaign Finance Reform.” It is reproduced as Exhibit A.

       As passed, Charter Section 5 contained 10 sections:

         A. A preamble stating that the section‟s goals were to promote ethics; to further

         integrity in campaigns for public office; to prevent corruption and the appearance

         of corruption; and to restore citizens‟ faith in city government.

         B. A definition of a “fundraising season” that also prohibited campaign

         fundraising outside the “fundraising season.”

         C. A $25 cap on all cash contributions.

         D. Limits on noncash monetary and in-kind contributions, and loans that prohibit

         ward council candidates from accepting loans, noncash contributions and in-kind

         contributions of more than $100 from any contributor, and prohibit at-large

         council candidates and mayoral hopefuls from accepting loans, noncash

         contributions and in-kind contributions of more than $300 from any contributor.

         E. Limits on contributions from people living outside Akron.




2
 Not without a fight, however; after the group met all of the City Charter‟s requirement for an initiative petition,
Coleridge had to seek a Writ of Mandamus in Summit County Common Pleas Court to force Akron City Council‟s
apparently reluctant Clerk to submit the initiative to the Board of Elections. See Coleridge v. City of Akron, CV
1998-09-3492, writ granted on September 9, 1998.



                                                          3
           F. A requirement that candidates disgorge any leftovers in their campaign funds

           to the City‟s general fund after an election.

           G. Disclosure requirements.

           H. A severability provision.

           I.   An outline of penalties for violations.

           J.   A provision calling on Council to enact enabling legislation. See Exhibit A,

           Akron Charter Section 5.

         In December 1998, a group composed of one former City Council member, two sitting

Council members, and three political contributors, filed suit to challenge Akron Charter Section

5 as violative of the First Amendment to the United States Constitution. By the time the dust

settled at the Sixth Circuit Court of Appeals in 2003, Paragraphs B, E, F, and I had been declared

unconstitutional, and have been stricken from Akron‟s Charter.

         Paragraph D, however, remains in effect, but Longville and the City of Akron do not agree

on how it should be interpreted. Longville asserts that the Charter‟s language clearly prohibits a

ward council candidate from accepting any contribution of more than $100 from any contributor,

and prohibits at-large council candidates and mayoral hopefuls from accepting contributions of

more than $300 from any contributor, from the time these candidates become “candidates”

through the date of the general election for the office they seek. Believing that Mayor Donald

Plusquellic had violated Akron Charter Section 5 during his 2007 re-election campaign by

accepting donations of more than $300 per contributor, Longville asked the undersigned to

outline her position to then-Law Director Max Rothal and to ask him (pursuant to R.C. § 733.59)

to enforce the Charter and enabling ordinances. See Exhibit B, March 2, 2009 letter.3


3
    Rothal‟s March 9, 2009, response is reproduced as Exhibit C.


                                                          4
       The City, on the other hand, claims that the Charter‟s language clearly allows a ward

council candidate to accept $100 from any contributor during the lead-up to the primary election,

and an additional $100 from the same contributor—or a total of $200—from the date of the

primary election through the date of the general election, and allows at-large and mayoral

candidates to accept a total of $600 per donor—$300 in the primary, and another $300 for the

general election.


III.    Law and Argument


A.      Summary Judgment Standard

        Summary judgment is appropriate when, construing the evidence most strongly in favor

of the nonmoving party, there is no genuine issue of material fact, the moving party is entitled to

judgment as a matter of law, and reasonable minds can only come to a conclusion adverse to the

nonmovant. See, e.g., Byrd v. Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, ¶ 10, 850 N.E.2d 47;

Murphy v. Reynoldsburg (1992), 65 Ohio St.3d 356, 604 N.E.2d 138; Zivich v. Mentor Soccer

Club, (1998), 82 Ohio St.3d 367, 369-370, 606 N.E.2d 201, citing Horton v. Hardwick Chem.

Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, para. 3 of the syllabus; Blanton v. Cuyahoga

County Bd. Of Elections, 150 Ohio App. 3d 61, & 11, 2002-Ohio-6044, 779 N.E.2d 788;

Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264.

        There is no genuine issue of material fact in this case that requires a trial. As Longville

will demonstrate further in this Motion, reasonable minds can only come to a conclusion in her

favor, and she is entitled to judgment as a matter of law on both prongs of her case.




                                                  5
B.       Longville’s Taxpayer Action

         Longville filed this lawsuit as a taxpayer action under R.C. §§ 733.58 and 733.59, because

she wants Akron‟s Law Director to enforce Akron City Charter Section 5.4

1.         Taxpayer Actions

           Ohio Rev. Code § 733.59 reads:

           Suit by taxpayer. If the village solicitor or city director of law fails, upon the
           written request of any taxpayer of the municipal corporation, to make any
           application provided for in sections 733.56 to 733.58 of the Revised Code, the
           taxpayer may institute suit in his own name, on behalf of the municipal
           corporation. Any taxpayer of any municipal corporation in which there is no
           village solicitor or city director of law may bring such suit on behalf of the
           municipal corporation. No such suit or proceeding shall be entertained by any
           court until the taxpayer gives security for the cost of the proceeding.

R.C. § 733.59. Along with having a writ of mandamus issued to the law director, a prevailing

taxpayer can also receive reimbursement for the legal expenses and reasonable attorneys‟ fees he

or she incurred. R.C. § 733.61.

           The “applications” referred to in R.C. § 733.59 are:

           1.       For an injunction to restrain

                    a.       The misapplication of the municipal corporation‟s funds;

                    b.       The abuse of the municipality‟s corporate powers; or

                    c.       The execution or performance of any contract illegally or fraudulently

                    made on the municipal corporation‟s behalf, R.C. § 733.56;

           2.       For specific performance or a forfeiture when an obligation or contract made on

           the municipality‟s behalf, granting a right or easement or creating a public duty, is being

           evaded or violated, R.C. § 733.57; or




4
    She also paid the “security for costs” of the proceeding—namely, the filing fee.


                                                            6
       3.      For mandamus in case a municipal officer or board fails to perform any duty

       expressly enjoined by law or ordinance, R.C. § 733.58.

       R.C. §§ 733.56 through 733.59 do not provide the special or exclusive statutory remedy

for a taxpayer seeking to prevent or remedy an abuse of municipal power, because taxpayers are

still entitled to bring actions to prevent or remedy an abuse of municipal power under either R.C.

Chap. 733 or under the common law. See State ex rel. Fisher v. Cleveland, 109 Ohio St.3d 33,

2006-Ohio-1827, ¶¶ 42-44, 845 N.E.2d 500 (employees sought redress for abuse of corporate

powers; court determined whether their suit was under common law or under statute for purposes

of awarding attorneys fees); Assn. of Cleveland Fire Fighters, Local 93 v. Cleveland, 156 Ohio

St.3d 368, 2004-Ohio-994, ¶ 24, 806 N.E.2d 170; State ex rel. Citizens for a Better Portsmouth

v. Sydnor (1991), 62 Ohio St.3d 49, 572 N.E.2d 649; Cuyahoga Falls v. Robart (1991), 58 Ohio

St.3d 1, 567 N.E.2d 987; Porter v. Oberlin (1965), 1 Ohio St.2d 143, 205 N.E.2d 363; Brooks v.

Cook Chevrolet, Inc. (1974), 34 Ohio App.2d 98, 109, 112, 296 N.E.2d 300; Jenkins v. Eberhart

(1991), 71 Ohio App.3d 351, 357-358, 594 N.E.2d 29.

       So, taxpayers like Longville may seek declaratory judgments in their R.C. Chap. 733

actions.

2.    Interpreting Akron City Charter Section 5

      When deciphering any law, whether it‟s an ordinance, statute, or charter provision, the

paramount concern is to determine the intent behind the law. See, e.g., State ex rel. Stokes v.

Brunner, 120 Ohio St.3d 250, 2008-Ohio-5392, 898 N.E.2d 23, ¶ 19; State ex rel. Law Office of

the Montgomery Cty. Pub. Defender v. Rosencrans, 111 Ohio St.3d 338, 2006-Ohio-5793, 856

N.E.2d 250, ¶ 23; State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815

N.E.2d 1107, ¶ 21. The first step is to consider the plain language of the law, reading its words




                                                 7
and phrases in context and construing them according to the rules of grammar and common

usage. See Brunner at id.; State ex rel. Choices for South-Western City Schools v. Anthony, 108

Ohio St.3d 1, 2005-Ohio-5362, 840 N.E.2d 582, ¶ 40.

       Where provisions address the same subject matter, they must be read in pari materia and

harmonized if possible; this includes constitutional, charter, and statutory provisions, which

should, if possible, be construed so as to give them “reasonable and operable effect.” State ex

rel. City of Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio St.3d 73, 78, 2002-Ohio-1383, 765

N.E.2d 854, quoting Toledo Edison Co. v. Bryan (2000), 90 Ohio St.3d 288, 292, 737 N.E.2d

529 and State ex rel. Grace v. Franklin Cty. Bd. of Elections (1948), 149 Ohio St. 173, 177, 36

O.O. 508, 78 N.E.2d 38; see also State ex rel. Paluf v. Feneli, 69 Ohio St.3d 138, 142, 1994-

Ohio-325, 630 N.E.2d 708. When a city charter does not contain express language showing that

it conflicts with state law, the courts are to harmonize the charter provisions with state laws on

the same subject matter. See Reisig v. Camarato (1996), 111 Ohio App.3d 479, 485, 676 N.E.2d

594, quoting State e rel. Bardo v. Lyndhurst (1988), 37 Ohio St.3d 106, 109, 534 N.E.2d 447.

       Plus, “once words acquire a settled meaning in a statutory construction, the same meaning

is applied to a subsequent statute on a similar or analogous matter.” Reisig, 111 Ohio App.3d at

487; see also R.C. § 1.42; Brennaman v. R.M.I. Co. (1994), 70 Ohio St.3d 460, 464, 639 N.E.2d

425.


3.     Akron’s Charter and Codes.

       Again, the critical section of Akron City Charter Section 5 is paragraph D, which reads as

follows:

        D. LIMITS ON NONCASH MONETARY AND IN-KIND CONTRIBUTIONS
        AND LOANS. No candidate for Mayor or At-Large Council shall accept or
        solicit, as a noncash monetary (i.e., checks, money orders, credit cards) or in-kind



                                                 8
       campaign contribution or loan, more than $300 from any person, campaign
       committee, political party, or political action committee.
           No candidate for a Council Ward position shall accept or solicit, as a
       noncash monetary or in-kind campaign contribution or loan, more than $100 from
       any person, campaign committee, political party, or political action committee.
           No person, political action committee, political party or political campaign
       shall contribute funds or in-kind contributions in excess of said amounts.
       Contributions from the candidate and labor or volunteers are exempt from these
       provisions.


      Akron City council passed legislation enabling this Charter section, but the Akron Codified

Ordinances to not resolve the ambiguity. ACO § 30.11(A) through (D) essentially reiterate

Charter Section 5, and ACO § 30.11(E) states that “The contributions set forth in this section

shall be per election.”

      However, City Council‟s definition of “per election” is not helpful. First, it is surplusage

that is not justified in the Charter (which restricts campaign contributions by candidates, not

elections). It also seeks to resurrect the “campaign season” concept that was stricken by the

federal courts.

      Second, when read in pari materia with the rest of the Chapter, ACO § 30.11(E)‟s

reference to “per election” is confusion not clarifying. ACO § 30.10 defines the phrase as

follows: “„Per election‟ means for each general election, primary election, special election or

runoff election in which a candidate‟s name appears on the ballot or in which the candidate has

filed at the Summit County Board of Elections a declaration of candidacy or intent to run as a

write-in candidate.” ACO § 30.10, emphasis added.

      The inclusion of the alternative, “or in which the candidate has filed… a declaration of

candidacy,” confuses the issue because, under the Ohio Revised Code, all candidates who want

to run for their party‟s nomination, or for election to an office that will be voted for at a primary




                                                  9
election, must file one declaration of candidacy 75 days before the primary;5 no second

declaration of candidacy is to be filed to run in the general election. See R.C. §§ 3513.04,

3513.05.

         Akron Codified Ordinance § 30.11‟s definition of “candidate,” on the other hand, is

helpful:

                “Candidate” means any qualified person certified in accordance with the
           provisions of the revised code for placement on the official ballot of a primary,
           general or special election to be held in this state, or any qualified person who
           represents himself to be a write-in candidate, or who knowingly assents to such
           representation by another at either a primary, general or special election to be held
           in this state or any person who, at any time before or after an election, receives
           contributions or makes expenditures or other use of contributions, has given
           consent for another to receive contributions or make expenditures or other use of
           contributions, or appoints a campaign treasurer, for the purpose of bringing about
           his nomination or election as Mayor or a member of City Council in the city. 6

         Finally, the Charter requirement limiting donations to candidates treats all candidates alike.

Were donations based on a per election interpretation, Independent candidates, who do not

participate in partisan primary elections, would only be entitled to raise half the amount of funds

allowed to Democratic and Republican candidates. Such a reading of the Charter Amendment

would unconstitutionally discriminate against Independent candidates.


4.       Intent of the Yes on 11 Committee

         The court also has the ability to look to the stated motivations of the citizen activists who

circulated initiative or referendum petitions to determine the intent behind an initiative or

referendum. See Buckeye Community Hope Found. v. City of Cuyahoga Falls (N.D. Ohio 1997),

970 F. Supp. 1289, 1318, citing Arthur v. City of Toledo, Ohio (6th Cir. 1986), 782 F.2d 565.


5
    In presidential election years, the deadline is moved back to 60 days before the primary. See R.C. § 3513.05.

6
    This definition is broader than that of a “candidate” in R.C. § 3501.01(H).


                                                           10
      Both Longville and Greg Coleridge of the American Friends Service Committee were part

of the Yes on 11 Committee that circulated the petitions to get campaign finance reform on the

ballot. Both envisioned that the provision would cap contributions at $100 or $300 from the time

a candidate filed his or her declaration of candidacy through the general election, not at

$200/$600. See Exhibit D, Affidavit of Greg Coleridge; see Exhibit E, Affidavit of Patricia

Longville. In fact, Coleridge remembers that he would have been able to obtain fewer citizen

signatures on the initiative petitions if the caps had been $200/$600. See Exhibit D. The

“campaign season” language was also designed to clarify when a person is considered a

“candidate.” See Exhibits D and E.


C.    Mandamus

      It‟s settled law that in order to be entitled to a writ of mandamus, Longville must establish

three things: 1) that she has a clear legal right to the relief she seeks; 2) a corresponding clear

legal duty on the part of the law director to provide it; and 2) the lack of an adequate remedy in

the course of the law. See State ex rel. Stokes v. Brunner, 120 Ohio St.3d 250, 2008-Ohio-5392,

898 N.E.2d 23, ¶ 13. Longville contends that ACO § 30.99(E)—the “penalties” section of the

campaign finance reform enabling legislation—required Rothal to enforce the campaign finance

reform provision, but that in the face of Rothal‟s refusal, she has no other recourse but through

this suit. Furthermore, it is evident that enforcement is merited, no matter what contribution

limits are upheld.

      If Plusquellic became a “candidate” at the time he filed his declaration of candidacy, then

according to the Revised Code, he became a candidate for Mayor in 2007 no later than July 29,

2007, which was 75 days before the September 11, 2007 primary election. Records obtained




                                                  11
from the Board of Elections indicate that Plusquellic filed his declaration of candidacy on June 8,

2007.

        Under ACO 30.10, Plusquellic conceivably was continuously a candidate, and certainly a

candidate for the 2007 election, by January 1, 2007, because well before that election, he

“receive[d] contributions or [made] expenditures or other use of contributions, or appoint[ed] a

campaign treasurer, for the purpose of bringing about his nomination or election as Mayor…”

ACO 30.10.

        An examination of the campaign finance reports and declaration of candidacy filed by

Plusquellic and his campaign committee indicates that between March 1, 2007, and the

November general election, Plusquellic‟s campaign accepted donations and loans of more than

$600 from donors, including the following:

       From Cathy Cavanaugh of Wadsworth, $1,100;
       From Anthony Gorant of Akron, $900;
       From Malcolm Donley of Chagrin Falls, $900;
       From the IBEW-COPE, $900;
       From Paul Thomarios of Akron, $900;
       From Ronald Peckham of Liverpool, NY, Tom Mosure and Dave Mosure of Youngstown,
      Anthony Manna of Akron, Paul Glenchur of Vienna, Va., and Michael Wojno of Akron,
      $800 apiece;
        Plusquellic‟s campaign also accepted credit card purchases, which reflect loans in excess

of the $300 limit on loans, made by the issuing bank (in this case, FirstMerit) to the campaign, to

the tune of:

     $4,334.07 for expenditures dating from June 4, 2007, through July 2, 2007;
     $1,732.17 from July 5, 2007, through August 5, 2007; $2,619.43 from August 2, 2007,
      through September 5, 20077;
     $3,336.78 from September 5, 2007 through October 3, 2007; and

7
    The campaign‟s credit card statements indicate some delay in billing by some vendors; hence the overlap.


                                                          12
   $3,930.54 from October 4, 2007, through November 3, 2007. See Exhibit E, Longville
    Affidavit, Exhibit 1, pp. 47-53.



                                          CONCLUSION


      The language and citizens‟ intent behind Akron‟s campaign finance reform provision

support only one interpretation of Akron City Charter Section 5: that ward council candidates

can accept no more than $100 in noncash contributions or loans from any donor, and that

mayoral and at-large council candidates can accept no more than $300 in noncash contributions

or loans from any donor, and that these limits apply from the date that a candidate forms a

campaign finance committee, files a declaration of candidacy, or takes out petitions to run for

office, whichever comes first, until the polls close in the general election. This interpretation is

consistent with Akron‟s enabling ordinances, Ohio law, and the U.S. Constitution. Therefore,

Relator Longville asks the Court to issue a judgment declaring as much.

      In addition, the evidence shows that, under both Relator and Respondent‟s interpretations

of the campaign finance limits, Mayor Plusquellic failed to abide by the Charter or the Code, and

accepted donations and loans in excess of the limits. Based upon that evidence, Longville is

entitled to judgment in her favor on her taxpayer action, and is entitled to a Writ of Mandamus

ordering Akron‟s Law Director to enforce ACO § 30.99.




                                                  13
     Respectfully submitted,


     _______________________________
     Warner Mendenhall, #0070165
     Law Offices of Warner Mendenhall
     190 N. Union St., Ste. 201
     Akron, OH 44304
     330-535-9160; fax 330-762-9743
     warnermendenhall@hotmail.com

     Counsel for Relator




14
                                CERTIFICATE OF SERVICE


      A copy of the foregoing was sent via regular U.S. Mail on this 6th day of October, 2009, to
the following:

Karen Lefton
Jeffrey T. Heintz
Michael G. Vanburen
Brouse McDowell
388 S. Main St., Ste. 500
Akron, OH 44311

And

Cheri B. Cunningham
Law Director
City of Akron
161 S. High St., Ste. 202
Akron, OH 44308



_________________________________
Warner Mendenhall, #0070165
Counsel for Relator




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