Lawsuit Coming — Council Preparing to Unlawfully Block Petition from Ballot

We wrote a letter to Columbus’ African American councilmembers asking them to go on record to reject an apparent city position that would seek to invalidate our proposal.  This letter came after months of other letters — and then in direct response to being confronted at a public debate for their lack of response.  Council has (finally) responded in writing (4 of the 7 — a majority), saying they are prepared to try to block the citizen initiative from the ballot. The battle lines are drawn.

Priscilla Tyson, Mitchell Brown, Shannon Hardin, and Jaiza Page (3 of whom are on the ballot for election in November) are all prepared to deny citizens the right to present this initiative by voting against putting it on the ballot — even if/when all petition signatures have been gathered. Zach Klein (current candidate for city attorney) has verbally stated the same.

They are prepared to take this unlawful action based on a politicized and faulty memo written by retiring City Attorney Rick Pfeiffer, through which Pfeiffer sought to intimidate Everyday People from circulating the petition.  In his memo, prepared prior to our circulating the petition for signatures, Pfeiffer claimed the  proposal would be invalid because “in my [his] opinion” it violated the “single subject” provision of the city charter governing petitions by including the form of council along with campaign finance restrictions in the same bill.  However, we know (and Pfeiffer admits) that “single subject” rules are designed to prevent topics that are not remotely related from appearing in the same bill, and that the Ohio Supreme Court has repeatedly ruled that as long as there is a “reasonable relationship” to a single general purpose or topic [with the court further saying that such general purpose or object must be “liberally construed”], a bill meets the single subject requirement.

Council somehow believes that 1) how we elect our council members and  2) how they finance their elections, do not have a “reasonable relationship” to the same general purpose or object of “city council elections.”  Idiotic, right?

Pfeiffer presented council fairly with the law, then gave his “opinion” as a political argument, not a legal argument.  His opinion was  most likely designed to deter us to voluntarily not go forward with signature collection unless we took out the campaign finance restrictions (caps on contributions to political campaigns).  We would not do that.  We recognize that Pfeiffer is the city’s partisan attorney — not the people’s attorney — and there is nothing unexpected about what he did to try to protect his clients (the elected officeholders) from an unwanted petition. Pfeiffer is not a judge, though, and his faulty opinion could not stop us from circulating the petition as written — which we did.

Unfortunately, council took the bait and has signaled its intent to take a final action which will force us to file a lawsuit against the city in order to get on the ballot.  We are willing to do so, though we would prefer not to have to do so and focus on the issue of fair elections we present.  If council votes against putting a successful petition on the ballot, that will be a final action which gives us standing to sue — and we will do so.  We expect to submit our petitions in early January and are preparing to file suit immediately if the council on the advice of the newly-elected/installed city attorney then refuses to certify our signatures to the ballot.  See below for an excerpt of our (4th) letter (since May 2017) to council on this issue — the letter that finally got council’s response.

We urge people to contact city council members and the city attorney candidates for office (Zach Klein and Don Kline) to reject this wrong-headed opinion.

On September 18, 2017, we wrote …

” … Council Non-Support for Columbus Citizens’ Civil Right to Referendum under the Ohio Constitution

Article XVIII of the Ohio Constitution grants home rule to charter municipalities, and further grants citizens the right of referendum on those charters.  The City Charter confirms that constitutional right –however, council recently voted to limit that right by imposing a single subject provision on citizen initiated proposals.

Single subject provisions have a valid use, and there is a long history of civil litigation that confirms their purpose, which is to avoid deceiving the public through log-rolling of a combination of wildly unrelated subjects.  Time and time again, the Ohio Supreme Court has ruled that single subject provisions do not bar comprehensive legislation on a single general subject:  they are designed to prevent disunity – not plurality of subjects under one enactment.  As I relayed to each council member on multiple occasions, including writing first in an email dated April 19, 2017, and then taking care to send the entirety of referenced court decisions on July 31th and September 4th , the court has ruled as follows:

Wilke v. Taft says “[T]he applicable test for determining compliance with the separate-vote requirement … is that ‘a proposal consists of one amendment … so long as each of its subjects bears some reasonable relationship to a single general object of purpose … Courts have generally taken a ‘liberal [view] in interpreting what such a single general purpose or object may be.'”

Dix v. Celeste says “…the one-subject provision is not directed at plurality, but at disunity in subject matter.” and an enactment can be invalidated for “only a manifestly gross and fraudulent violation of this rule.”

Hinkle v. Franklin County Bd of Elections says “the mere fact that a bill embraces more than one topic is not fatal, as long as a common purpose or relationship exists between the topics.”  Further that “when there are no discernible practical, rational or legitimate reasons for combining the provisions in one act [the act can be held to be invalid].”

Ohio Liberty Council v. Bruenner says”the power of initiative and referendum ns one of the most essential safeguards to representative government … the power of initiative must be liberally construed, and the General Assembly cannot diminish that power,” further saying “the ballot board has a clear legal duty to liberally construe the right of initiative, and as long as the citizen-initiated proposed amendment bears some reasonable relationship to a single general object or purpose, the board must certify its approval of the amendment as written.” [All emphases added]

However, despite recognizing and  affirming this case law governed the issue, outgoing city attorney Rick Pfeiffer opined in a memo to council in May that in his view, our petition cannot combine the method of electing members to council along with the financing of those elections.  In that opinion he is implausibly concluding that those topics are so disunited that do not share a “reasonable relationship to a single general object or purpose … [liberally construed]” — which single general purpose our petition title describes as “to enact electoral system changes to Columbus City Council.”

Either he can’t read, or I can’t read – or both of us can read, but he has a political motivation for reading and creating such a dumbfounding misapplication and opinion — because it baffles all understanding as to how council elections and the financing of those elections are “disunited” topics where there can be no “rational or legitimate reason for combining the provisions in one act.”

The practical effect of this is that Rick Pfeiffer gave council a fig leaf to hide behind, where council members can cowardly say “on the advice of counsel this petition violates the single subject provision of the charter, and we will not put this petition on the ballot for a vote of the people” — forcing us to sue for our state constitution-assured civil rights of referendum and ballot access.  I recognize it to be what it is – a partisan political effort to suppress the voice of the people.  However, the city attorney merely offers a politicized opinion—he is not the law.  In fact, he is not the decision maker, it is council that must look at the facts and make a decision.

Because of that, I asked each councilmember to thoughtfully review the existing case law, and affirm that the council would not seek to limit our petition based on single subject — to confirm that we, as petitioners, have a constitutional right to amend our charter and that under well established Ohio law the council would not seek to limit our right to petition to matters of the council’s choosing.

I asked multiple times both in person and in writing, for individual council members to affirm the civil rights of Columbus citizens under Ohio law, and to publicly pledge to not blocking this referendum from the ballot.  Again, not a single African American council member has responded – let alone none has affirmed our civil right under Ohio law to present our petition for changes to the city council electoral system.

Not ones to be bullied or intimidated out of hard-won civil rights, we did proceed with our petition as written, and we are close to confirming that we have sufficient petition signatures to place it on the May 2018 ballot.  Once we have sufficient signatures, by law, the council must vote to put it on the ballot within 120 days (unless council finds it violates single subject).

There is a looming confrontation we would hope to avoid: if council follows the city attorney’s wrongheaded opinion, council will vote to deny us access to the ballot, and then we will have to sue council to secure our civil/constitutional rights.  I have pleaded on multiple occasions to each of you that we do not want to sue – and I have asked each of you to publicly pledge that you would not vote to block our petition.  Not one of you has even responded – let alone agreed to follow the law.  Not. One. Black. Member. Has. Responded…”

[They since responded stating they will reject our petition and force us to sue]

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