Thu June 13, 2013
City objects to further stay in parking case
UPDATE: 6/13 5:40 pm
Cincinnati lawyers have filed a brief with the appeals court objecting to the plaintiffs' request for a stay in parking case. The first two paragraphs from the city's request:
The Court yesterday reinforced for the public that its role is not to embroil itself in political debates, but rather engage in a straightforward application of the language of the Cincinnati Charter. Plaintiffs' request for a stay is a political document, an invitation for the Court to entangle itself in the parking lease debate that is best let to the legislature. The court should again decline this invitation. Plaintiffs' motion focuses more on Plaintiffs' disagreement with the public statements of officials during the budget process than it does on its merits. As explained below, Plaintiffs' motion is not well-taken, and the City respectfully requests that it be denied.
Plaintiffs' motion glosses over the fact that what they seek is, in essence, reinstatement of the trial court's permanent injunction order. This would operate specifically to enjoin the City from implementing Ordinance 56-2013, which authorizes entering into the Parking Lease, and from passing emergency ordinances that are immediately effective. Again, the citizens of Cincinnati would be mired in uncertainty -- uncertainty that the Court carefully and expeditiously resolved in its opinion and mandate.
UPDATE: 6/13 7:15 am
Plaintiffs who oppose a Cincinnati parking lease agreement have asked the Ohio First District Court of Appeals for a stay of its Wednesday decision, which cleared the way for the city to go ahead with the parking plan.
The plaintiffs' attorneys have asked the court to stay its decision - which said that Cincinnati ordinances passed as emergency measures are not subject to referendum - pending an appeal of the decision to the Ohio Supreme Court.
They have 45 days from Wednesday to file with the Ohio Supreme Court.
The city of Cincinnati won its legal battle to continue to pass emergency ordinances Wednesday, but sources told WVXU that some council members may act today to try to repeal the parking lease ordinance that began the the legal battle in the first place.
The Ohio First District Court of Appeals has ruled in favor of the city of Cincinnati, saying that the parking lease agreement council passed in March is not subject to a voter referendum, because it was passed as an emergency ordinance.
Cincinnati City Solicitor John Curp, via a text message, called the decision “a complete victory on all issues for the city.”
But, since council recently balanced the budget without the money it would have received from leasing out the city's parking system, some council members are trying to repeal the ordinance altogether.
Before Wednesday's council meeting, five council members signed a motion asking that the ordinance passed in March be repealed. And, they ask that the administration develop a budget deficit reduction plan "that does not include upfront parking funds to offset future budget deficits."
Council members Charlie Winburn, Christopher Smitherman, P.G. Sittenfeld, Chris Seelbach and Laure Quinlivan signed the motion. They would need six to bring the issue before council.
But Mayor Mark Mallory, a supporter of the parking lease ordinance, would be the one to place the issue on the council agenda or refer it to council; and he said Wednesday he would not do either.
"They can have six or seven signatures; it's not going to happen,'' Mallory said.
Christopher Finney, a lawyer for the citizens who brought the lawsuit against the parking leasse ordinance passed by council as an emergency ordinance in March, said the plaintiffs have 45 days to decide whether or not to appeal to the Ohio Supreme Court.
The three judges who heard the case – Penelope Cunningham, Patrick DeWine and Patrick Dinkelacker – all concurred in the basic decision, but two of them dissented in part.
Dinkelacker, in his partial dissent , said that the city charter language “is ambiguous and, therefore, we must liberally construe it in favor of permitting the people of Cincinnati to exercise their power of referendum."
DeWine, in his partial dissent, wrote that the decision was “simply a straightforward application of the language of the (city) charter based upon the precedent we must follow.”
“If the citizens of Cincinnati wish to restrict the use of the emergency label to avoid referendum, the remedy is either to amend the charter to strengthen the referendum power or elect council members less willing to append ‘emergency’ clauses to legislation,’’ DeWine wrote.
Nonetheless, the three judges concluded that the Common Pleas Court Judge Robert Winkler erred in issuing an injunction against the city implementing a plan to turn the parking system over to the Port Authority in exchange for a $92 million up-front payment and that he should not have declared that “a validly enacted municipal emergency ordinance" was subject to referendum – something that has been part of the city charter since the late 1920s.
The three-judge panel, in its ruling, ordered that the case be sent back to Winkler "with instructions to enter judgment in favor of the city, in accordance with the the law and this decision."
After the ordinance was passed in March, a group of citizens filed a lawsuit to block the ordinance from going into effect. A coalition of groups and individuals mounted a successful petition campaign to place the ordinance on the November ballot for an up-or-down vote.