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Motion to Stay Enforcement of Parking Plot Ruling

Motion to Stay Enforcement of Parking Plot Ruling

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Published by COAST
Motion of City voters to stay enforcement of the Court of Appeals' ruling in the Parking Plot case
Motion of City voters to stay enforcement of the Court of Appeals' ruling in the Parking Plot case

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Published by: COAST on Jun 13, 2013
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12/13/2013

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FIRST DISTRICT COURT OF APPEALSHAMILTON COUNTY, OHIOLISA MCQUEEN,
et al.
,Plaintiffs-Appellees,andCITY OF CINCINNATI ex rel.LISA McQUEEN,Relators-Appellees,v.MILTON R. DOHONEY , JR.,
etc.
,Defendants-Respondents-Appellants.::::::::::::::::Case No. C-13-00196APPELLEES
’ MOTION FOR 
STAY OF EXECUTION OFTHE JUDGMENT MANDATE
Pursuant to Rule 27 of the Ohio Rules of Appellate Procedure, Plaintiffs-Appelleeshereby move to stay, pending appeal to the Ohio Supreme Court, execution of the judgmentmandate issuing as a result of this Court
’s
Decision herein on June 12, 2013.As this Court recognized in its Decision, this case involves the question,
inter alia
, of whether Ordinance No. 56-2013 is a validly enacted emergency ordinance that is immediatelyeffective and not subject to referendum.
See
Decision ¶11. While a majority of this Courtdetermined that, pursuant to the Cincinnati City Charter and state law, ordinances adopted by theCincinnati City Council with emergency clauses are not subject to referendum, the dissent andthe decision by the court below demonstrate that there is clearly a valid legal argument to bemade that the citizens of Cincinnati reserved unto themselves the power to referendum evenordinances passed as emergencies. Thus, with all due respect to this Court
’s Decision,
Appellees intend to pursue that legal question to the Ohio Supreme Court through the filing of aforthcoming notice of appeal and jurisdictional memorandum.
 
 2In light of the Decision, though, officials with the City of Cincinnati have already made public pronouncements of their intent to immediately sign and implement the Parking LeaseAgreement provided for in Ordinance No. 56-2013 without allowing for the entire judicial process to be completed. In fact, in a public statement concerning this Court
s Decision andissued the same date thereof, the city manager of the City of Cincinnati declared that
The Citywill sign the Parking Lease and Modernization Plan with the Port of Greater Cincinnati upon thetrial court signing the actual orders.
1
The clear purpose of pursuing such a course of action is tothwart any efforts of the Appellees to have a final adjudication of the issues herein fully andcompletely resolved through the judicial system and, specifically, by the Ohio Supreme Court.Appellants have already sought to have the trial court effectuate the mandate of this Court
sDecision with no regard for the remaining appellate process afforded to the Appellees and stilloutstanding.Through this motion, Appellees are asking this Court to err on the side of the FirstAmendment less the City undertake actions while an appeal is pending to deny the resolution of the legal issues herein by the Ohio Supreme Court. For without the issuance of the stay of execution of the judgment mandate, the potential power and right of the people of the City of Cincinnati to referendum will be eviscerated. For if the Ohio Supreme Court should (or would)conclude that this Court
s Decision was legally incorrect,
i.e.
, that the provision of the CincinnatiCity Charter which expressly reserves the power of referendum to the people on
all
ordinancesincludes the power to referendum ordinances passed with emergency clauses, then, without theissuance of the stay of the execution of the judgment mandate, the City will clearly undertakeactions (and has already declared its intent to undertake actions) which have the potential to
1
The complete statement is available from the website of the City of Cincinnati athttp://www.cincinnati-oh.gov/parking/news/city-managers-statement-parking-ruling/
 
 3moot any resolution of the legal issues herein by the Ohio Supreme Court. Such action will, inturn, effectively deny the people the right to referendum if the Supreme Court would haveresolved the case differently than this Court. Such a result would constitute a denial of FirstAmendment rights and an irreparable injury to the people of the City of Cincinnati.
See State exrel. Oster v. Lorain Cty. Bd. of Elections
, 2001-Ohio-1605, 93 Ohio St.3d 480, 487, 756 N.E.2d649 (2001)(
where the people reserve the initiative or referendum power, the exercise of that power is protected by the First Amendment
(quoting Stone
v. Prescott 
173 F.3d 1172, 1175 (9thCir. 1999));
 Elrod v. Burns,
427 U.S. 347, 373-747 (1976)(
[t]he loss of First Amendmentfreedoms, for even minimal periods of time, unquestionably constitutes irreparable injury
).Because
“it is always in the public interest to prevent the violation of a party’s constitutional
rights,
 
G & V Lounge, Inc. v. Michigan Liquor Control Comm’n
, 23 F.3d 1071, 1079 (6th Cir.1994), Appellees request the mandate judgment be stayed as that is the only viable option toensure that any putative First Amendment rights of the citizens of the City of Cincinnati are notterminated and extinguished prematurely,
i.e.
, before the entire judicial process
 – 
the OhioSupreme Court
 – 
can address and resolve the legal issues herein.While the presence of a claimed emergency by the Appellants may, on first blush,dissuade the Court from issuing the requested stay, it is important to note that the statedemergency in Ordinance No. 56-2013 concerned the need to balance the city
’s budget.
Specifically, the emergency clause declared:The reasons for the emergency is the immediate need to implement the budgetarymeasure contemplated during the December 2012 City of Cincinnati budgetdeterminations in order to avoid significant personnel layoffs and budget cuts andresulting reductions in Cit
y services to Cincinnati residents related to the City’sGeneral Fund, which administrative actions would be needed to balance the City’s
FY 2013 and 2014 budgets in the absence of revenue generated byimplementation of the modernizations of the City of Cincinnati parking system as
described herein.”

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