FIRST DISTRICT COURT OF APPEALS HAMILTON COUNTY, OHIO LISA MCQUEEN, et al., Plaintiffs-Appellees, and CITY OF CINCINNATI ex rel.

LISA McQUEEN, Relators-Appellees, v. MILTON R. DOHONEY , JR., etc., Defendants-Respondents-Appellants. : : : : : : : : : : : : : : : : Case No. C-13-00196

APPELLEES MOTION FOR STAY OF EXECUTION OF THE JUDGMENT MANDATE

Pursuant to Rule 27 of the Ohio Rules of Appellate Procedure, Plaintiffs-Appellees hereby move to stay, pending appeal to the Ohio Supreme Court, execution of the judgment mandate issuing as a result of this Courts 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 immediately effective and not subject to referendum. See Decision 11. While a majority of this Court

determined that, pursuant to the Cincinnati City Charter and state law, ordinances adopted by the Cincinnati City Council with emergency clauses are not subject to referendum, the dissent and the decision by the court below demonstrate that there is clearly a valid legal argument to be made that the citizens of Cincinnati reserved unto themselves the power to referendum even ordinances passed as emergencies. Thus, with all due respect to this Courts Decision,

Appellees intend to pursue that legal question to the Ohio Supreme Court through the filing of a forthcoming notice of appeal and jurisdictional memorandum.

In 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 Lease Agreement 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 Courts Decision and issued the same date thereof, the city manager of the City of Cincinnati declared that The City will sign the Parking Lease and Modernization Plan with the Port of Greater Cincinnati upon the trial court signing the actual orders.1 The clear purpose of pursuing such a course of action is to thwart any efforts of the Appellees to have a final adjudication of the issues herein fully and completely 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 Courts Decision with no regard for the remaining appellate process afforded to the Appellees and still outstanding. Through this motion, Appellees are asking this Court to err on the side of the First Amendment 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 Courts Decision was legally incorrect, i.e., that the provision of the Cincinnati City Charter which expressly reserves the power of referendum to the people on all ordinances includes the power to referendum ordinances passed with emergency clauses, then, without the issuance of the stay of the execution of the judgment mandate, the City will clearly undertake actions (and has already declared its intent to undertake actions) which have the potential to The complete statement is available from the website of the City of Cincinnati at http://www.cincinnati-oh.gov/parking/news/city-managers-statement-parking-ruling/ 2
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moot any resolution of the legal issues herein by the Ohio Supreme Court. Such action will, in turn, effectively deny the people the right to referendum if the Supreme Court would have resolved the case differently than this Court. Such a result would constitute a denial of First Amendment rights and an irreparable injury to the people of the City of Cincinnati. See State ex rel. Oster v. Lorain Cty. Bd. of Elections, 2001-Ohio-1605, 93 Ohio St.3d 480, 487, 756 N.E.2d 649 (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 (9th Cir. 1999)); Elrod v. Burns, 427 U.S. 347, 373-747 (1976)([t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury). Because it is always in the public interest to prevent the violation of a partys constitutional rights, G & V Lounge, Inc. v. Michigan Liquor Control Commn, 23 F.3d 1071, 1079 (6th Cir. 1994), Appellees request the mandate judgment be stayed as that is the only viable option to ensure that any putative First Amendment rights of the citizens of the City of Cincinnati are not terminated and extinguished prematurely, i.e., before the entire judicial process the Ohio Supreme 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 stated emergency in Ordinance No. 56-2013 concerned the need to balance the citys budget. Specifically, the emergency clause declared: The reasons for the emergency is the immediate need to implement the budgetary measure contemplated during the December 2012 City of Cincinnati budget determinations in order to avoid significant personnel layoffs and budget cuts and resulting reductions in City services to Cincinnati residents related to the Citys General Fund, which administrative actions would be needed to balance the Citys FY 2013 and 2014 budgets in the absence of revenue generated by implementation of the modernizations of the City of Cincinnati parking system as described herein. 3

(T.d. 26, Stipulations Exh. W.) And this was reiterated by the Appellants when they moved this Court to expedite the briefing scheduling, citing the following emergency: The timely disposition of this case is important to all parties. The City and its citizens need to know by May 1 whether the City must begin the process of eliminating 443 positions and notifying 338 employees that they are losing their jobs. (Appellants Emergency Motion for Expedited Brief, filed on March 29, 2013, at 1.) And attached to their motion, the Appellants included an exhibit supposedly listing the positions slated for elimination, included the termination of 140 police officers and 80 firefighters. But all of this doom-and-gloom posited by the City to both the trial court and to this court proved false; for no such emergency truly or presently exists which would militate against the issuance of the requested stay of the execution of the judgment mandate. For, in the interim, the Cincinnati City Council recently passed a budget which did not contain any layoffs in the public safety sector and significantly fewer layoffs elsewhere. In a recent analysis from the earlier hype put out by the City officials versus the reality, The Cincinnati Enquirer in a story just last week noted the history and significant difference between what was said to the public and to this Court by City officials, on the one hand, and the reality, on the other hand:2 When city officials announced a plan to privatize Cincinnatis parking system in February, they touted it as the way to balance the 2014 and 2015 budgets, avoid hundreds of police and fire layoffs and jump-start economic development projects. As opposition to the plan emerged with the launching of a petition drive, Mayor Mark Mallory said: If youre signing a petition, youre signing a pink slip for a cop or firefighter. None was laid off. ...

This report by The Cincinnati Enquirer is available on-line at http://news.cincinnati.com/ article/20130608/ NEWS/306080047. 4

Mallory said it more than once: If you support the parking referendum, youre helping lay off police officers and firefighters. He was very direct about it at two press conferences. The city is laying off 63 people. But none from police or fire. ... [City Manager] Dohoney originally said 344 people could be laid off if the parking lease didnt happen. But he used extra casino revenues and reduced that number. Then Mallory cut other things, including closing Westwood Town Hall, and reduced the public safety layoffs more. Council found more places to borrow and other funds to take money from, and the end result was zero police and fire layoffs. Thus, the reality today is that a budget has been passed with significantly fewer layoffs than that which the Appellants previously represented, with no layoffs in the public safety areas of police and fire. Thus, any prior claim of an emergency by the Appellants has clearly not lived up to its hype. The bottom line is that the Appellees seek to have a full and complete access to the entire judicial process afforded to them, including an appeal to the Ohio Supreme Court, with respect to their claim of entitlement to subject Ordinance No. 56-2013 to referendum pursuant to the City Charter. But without the issuance of the requested stay of the execution of the judgment mandate, the very real and imminent prospect exists that the First Amendment rights of the Appellees and other citizens of the City could be denied. While this assumes the Ohio Supreme Court reaches the opposite legal conclusion than this Court did, is it not best to err in favor of fundamental constitutional rights, especially when the previously claimed emergency on the part of the City has passed and is no longer is imminent. Accordingly, pursuant to Rule 27 of the Ohio Rules of Appellate Procedure, Plaintiffs-Appellees hereby move to stay, pending appeal to the Ohio Supreme Court, execution of the judgment mandate issuing as a result of this Courts Decision herein on June 12, 2013.

Respectfully submitted,

/s/ Curt C. Hartman____________ Curt C. Hartman (0064242) THE LAW FIRM OF CURT C. HARTMAN 3749 Fox Point Ct. Amelia OH 45102 (513) 752-8800 hartmanlawfirm@fuse.net Christopher P. Finney (0038998) FINNEY, STAGNARO, SABA & PATTERSON LLP 2623 Erie Avenue Cincinnati, Ohio 45208 (513) 533-2980 cfinney@fssp-law.com Attorneys for Plaintiffs-Relators-Appellees

CERTIFICATE OF SERVICE I certify that a copy of the foregoing will be served via e-mail on the 12th day of June 2013, upon: Terry Nestor Aaron Herzig Office of the City Solicitor 801 Plum Street, Room 214 Cincinnati, OH 45202 /s/ Curt C. Hartman____________