The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Langhenry v. Britt, Slip Opinion No. 2017-Ohio-7172.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2017-OHIO-7172
THE STATE EX REL. LANGHENRY, LAW DIR., ET AL. v. BRITT, CLERK.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Langhenry v. Britt, Slip Opinion No.
2017-Ohio-7172.]
Mandamus—Elections—Under the Cleveland City Charter, an emergency measure
providing for the usual daily operation of a municipal department is subject
to referendum—Clerk of the Cleveland City Council had a clear legal duty
to verify the sufficiency of petition signatures—Relators have a clear legal
right to compel performance of that ministerial duty—The right to seek
repeal of a law by initiative is not an adequate remedy in the ordinary
course of the law—Clerk and law director have adverse legal interests in
this case—Writ granted.
(No. 2017-0753—Submitted July 26, 2017—Decided August 10, 2017.)
IN MANDAMUS.
________________
SUPREME COURT OF OHIO
KENNEDY, J.
I. Introduction
{¶ 1} Respondent, Patricia Britt, clerk of the Cleveland City Council (“the
clerk”), rejected a referendum petition on the grounds that it would
unconstitutionally abridge an existing contract. Relator, Barbara A. Langhenry,
law director of the city of Cleveland, seeks a writ of mandamus to compel the clerk
to determine the sufficiency of the referendum petition. We grant the writ.
II. Facts and Procedural History
{¶ 2} On September 15, 1992, the city of Cleveland and Cuyahoga County
entered into a “Cooperative Agreement” relating to the “Gateway Arena Project”
to construct, among other things, a new professional basketball arena. As part of
the agreement, the county agreed to issue “Series 1992 Arena Bonds” to finance
the cost of constructing the arena. The county also agreed to make the construction
funds available to the Gateway Economic Development Corporation of Greater
Cleveland (“Gateway”) through a revolving loan agreement.
{¶ 3} To assist with the financing, the city passed Cleveland Ordinance No.
324-92, exempting arena admissions proceeds from municipal taxation, so long as
the Series 1992 Arena Bonds remained outstanding. The ordinance required
Gateway to place in trust the amount it otherwise would have paid to the city in
taxes, with those funds being used to service the bonds and with the excess payable
to the city’s general revenue fund.
{¶ 4} Twenty-five years later, on April 24, 2017, the Cleveland City
Council adopted Cleveland Ordinance No. 305-17. The ordinance contained two
relevant provisions. First, it added an admission-proceeds-tax exemption relating
to new “Series 2017 Arena Bonds” issued by Cuyahoga County to finance
renovations to the arena. The exemption, issued under similar terms and conditions
as the original 1992 tax exemption, would remain in effect so long as the Series
2017 Arena Bonds remained outstanding. Second, the ordinance authorized the
2
January Term, 2017
city’s directors of finance and law to enter into an amendment to the Cooperative
Agreement.
{¶ 5} The city council approved the ordinance as an emergency measure, to
take effect immediately, by a vote of more than two-thirds of the members.
Cleveland Ordinance No. 305-17 therefore became effective on April 25, 2017.
{¶ 6} Also on April 25, 2017, the city, through its directors of finance and
law, and Cuyahoga County executed “Supplemental Agreement No. 1” to the
Cooperative Agreement. Supplemental Agreement No. 1 was based on the
county’s issuance of Series 2017 Arena Bonds to finance improvements to the
arena. This agreement recognized the city’s commitment to keep admissions
proceeds exempt from taxation during the life of the Series 2017 Arena Bonds so
long as the amount Gateway otherwise would have paid to the city in taxes is held
in trust to service the bonds.
{¶ 7} On May 22, 2017, the clerk received a petition for a referendum on
Cleveland Ordinance No. 305-17. Upon receipt of the petition, the clerk did not
determine the sufficiency of the signatures on the part-petitions. Instead, acting
through her deputy clerk, she rejected the petition on the ground that repealing
Cleveland Ordinance No. 305-17 “would unconstitutionally impair an already
existing and binding contract.”
{¶ 8} On May 26, 2017, Diane S. Bufford, Jennifer A. Blakeney, Verdia Y.
Conner, Khalilah A. Worley, and Linda C. Robinson sent a letter to the law director,
demanding that she exercise her authority to seek a writ of mandamus compelling
the clerk to accept the petition. In response, Langhenry commenced the present
complaint for a writ of mandamus.
{¶ 9} On July 12, 2017, we denied motions to dismiss and issued an
alternative writ of mandamus. ___ Ohio St.3d ___, 2017-Ohio-5799, ___ N.E.3d
___. In the same order, we granted Bufford, Blakeney, Conner, Worley, and
Robinson leave to intervene as relators. Id.
3
SUPREME COURT OF OHIO
III. Legal Analysis
A. The Law Director is Entitled to a Writ of Mandamus
{¶ 10} To be entitled to a writ of mandamus, a relator must establish, by
clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a
clear legal duty on the part of the respondent to provide it, and (3) the lack of an
adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth,
131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Although this case
primarily concerns the first two prongs—clear legal right and clear legal duty—the
clerk also disputes the third element.
{¶ 11} A writ of mandamus is not available if the relator has an adequate
remedy in the ordinary course of the law. State ex rel. JobsOhio v. Goodman, 133
Ohio St.3d 297, 2012-Ohio-4425, 978 N.E.2d 153, ¶ 15. The clerk contends that
there is an adequate remedy available: opponents of the ordinance could attempt to
repeal it by initiative. But “[t]he principle that mandamus will not lie where there
is an adequate remedy in the ordinary course of the law signifies such latter remedy
in the courts.” (Emphasis sic.) State ex rel. Conn v. Noble, 165 Ohio St. 564, 566,
138 N.E.2d 302 (1956) (rejecting claim that the right of initiative was an adequate
remedy at law). The relators in this case have no adequate remedy in the ordinary
course of the law. We therefore must consider whether they have shown the
existence of a legal right and a legal duty.
1. The right of referendum under the Cleveland City Charter
{¶ 12} The constitutional right of referendum “ ‘ “amount[s] to a veto
power, over enactments of representative bodies.” ’ ” State ex rel. LetOhioVote.org
v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 18, quoting
Eastlake v. Forest City Ents., Inc., 426 U.S. 668, 673, 96 S.Ct. 2358, 49 L.Ed.2d
132 (1976), quoting James v. Valtierra, 402 U.S. 137, 141, 91 S.Ct. 1331, 28
L.Ed.2d 678 (1971). The Ohio Constitution reserves to the people the right to
referenda of laws passed by the General Assembly and provides that no law shall
4
January Term, 2017
go into effect for a period of 90 days following enactment, so as to allow time for
a referendum. Ohio Constitution, Article II, Section 1c. However, there are certain
categories of state laws to which the right of referendum does not extend, one of
which is emergency laws that go into effect immediately. Ohio Constitution,
Article II, Section 1d.
{¶ 13} The Cleveland City Charter provision governing municipal
referenda is significantly different. Under the charter, an emergency measure may
address either of two contingencies: (1) it may be “for the immediate preservation
of the public peace, property, health, or safety,” or (2) it may “provid[e] for the
usual daily operation of a Municipal department.” Cleveland City Charter Section
36. One category of emergency legislation is subject to the right of referendum,
and the other is not:
Ordinances passed as emergency measures for the immediate
preservation of the public peace, property, health, or safety and
providing for the refinancing of bonds, notes or other securities of the
City shall not be subject to referendum. Otherwise, emergency
measures shall be subject to referendum in like manner as other
ordinances, except that they shall go into effect at the time indicated
in the ordinances.
Cleveland City Charter Section 64.
{¶ 14} The first clause of Cleveland Ordinance No. 305-17 states, “[T]his
ordinance constitutes an emergency measure providing for the usual daily operation
of a municipal department.” By its plain language, Cleveland Ordinance No. 305-
17 is subject to referendum.
5
SUPREME COURT OF OHIO
2. The authority of the clerk
{¶ 15} The central question in this case is whether the clerk had the
authority to reject the referendum petition. As a general rule, when reviewing the
sufficiency of a petition, municipal legislative officials have limited discretion to
assess matters of form and no authority to review matters of substance such as the
legality of the proposed measure. See State ex rel. N. Main St. Coalition v. Webb,
106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 30-31 (village clerk
exceeded her authority by deciding that the initiative petition involved a subject
that the village was not authorized to control by legislative action).
{¶ 16} The Cleveland charter confers no greater discretion upon the clerk.
“When [a referendum] petition is filed with the Clerk of the Council he shall
determine the sufficiency thereof in the manner provided in this Charter for an
initiative petition for an ordinance.” Cleveland City Charter Section 60. In
accordance with Section 51 of the Cleveland City Charter, the clerk shall determine
whether the petition has been signed by the required number of qualified electors.
Cleveland City Charter Section 51.
{¶ 17} The clerk suggests a number of reasons why it was within her
discretion to reject the petitions. She argues that the petitions were untimely
because the emergency ordinance had already gone into effect before they were
filed, but she cites no authority for her proposition that a referendum petition must
in all cases be filed before the ordinance goes into effect. Indeed, Section 64 of the
Cleveland City Charter clearly contemplates that some emergency measures will
be subject to referendum notwithstanding the fact that they take effect immediately.
The final sentence of Section 64 even addresses what happens when an ordinance
is rejected in a referendum after taking effect:
If, when submitted to a vote of the electors of the City, an emergency
measure be not approved by a majority of those voting thereon, it
6
January Term, 2017
shall be considered repealed as regards any further action
thereunder; but the measure so repealed shall be deemed sufficient
authority for payment in accordance with the ordinance, of any
expense incurred previous to the referendum vote thereon.
Rejecting the petition on the grounds that it was untimely would therefore have
been an error and an abuse of discretion.
{¶ 18} Alternatively, the clerk contends that she was within her rights to
reject the referendum petition because Cleveland Ordinance No. 305-17 was an
administrative measure and therefore not subject to referendum. The constitutional
power of referendum applies to matters that municipalities are authorized to control
“by legislative action.” Ohio Constitution, Article II, Section1f. When a city
council acts in an administrative fashion, its resolutions and ordinances are not
subject to referendum. State ex rel. Ebersole v. Delaware Cty. Bd. of Elections,
140 Ohio St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 27. We need not reach the
question whether the clerk has discretion to determine whether a measure is
administrative because Cleveland Ordinance No. 305-17 is a legislative measure.
{¶ 19} “The test for determining whether an action is legislative or
administrative is ‘whether the action taken is one enacting a law, ordinance, or
regulation, or executing a law, ordinance, or regulation already in existence.’ ” Id.
at ¶ 30, quoting Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500
(1968), paragraph two of the syllabus. Stated differently, an ordinance that merely
carries out the policy or purpose already declared by the legislative body is an
administrative action. State ex rel. Citizen Action for a Livable Montgomery v.
Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d
902, ¶ 44. So, for example, approval of a development plan that comports with
existing zoning regulations is administrative. State ex rel. Oberlin Citizens for
Responsible Dev. v. Talarico, 106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d
7
SUPREME COURT OF OHIO
529, ¶ 27-28. But an amendment to the zoning code itself is a legislative act. See
State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 168-169,
685 N.E.2d 224 (1997).
{¶ 20} In 1992, Cleveland City Council approved a tax abatement to help
finance the construction of a downtown basketball arena. That abatement
contained a sunset provision: it expired upon repayment of the Series 1992 Arena
Bonds. The city did not, in 1992, obligate itself to pay for future renovations to the
arena. Cleveland Ordinance No. 305-17 therefore represents the adoption of a new
policy and a new undertaking: the refurbishment of the arena, financed by Series
2017 Arena Bonds. City officials in 2017 had no legislative authority to enter into
a new agreement with the county absent an enabling ordinance. We therefore
conclude that Cleveland Ordinance No. 305-17 is a legislative measure and not an
administrative one.
{¶ 21} Finally, the clerk contends that she was correct to reject the
referendum petition because it is unconstitutional. Whether the referendum is
unconstitutional is a different question from whether the clerk has the legal
authority to make that determination. To bridge the gap, the clerk posits a
distinction between the referendum petition itself and the substance of the petition,
claiming that she
has not made a determination as to the legality or constitutionality
of the substantive terms of the referendum petition or the Ordinance.
Instead, [she] has applied a separate legal principle * * * to
determine that the referendum petition itself, not the substance of
the measure being initiated or the Ordinance that is sought to be
repealed, violates the Contract Clause.
8
January Term, 2017
This proposed distinction finds no support in the Cleveland City Charter or the
jurisprudence of this court. In fact, it conflicts with the rule that “the city council
[cannot] assess the constitutionality of a proposal, because that role is reserved for
the courts.” State ex rel. Ebersole v. Powell, 141 Ohio St.3d 17, 2014-Ohio-4283,
21 N.E.3d 274, ¶ 6.
{¶ 22} Ebersole v. Powell suggests that we should grant the writ of
mandamus without reaching the constitutional question. See id. at ¶ 13-14. One of
the amici, the Cavaliers Operating Company, L.L.C., argues that we should deny
the writ without reaching the constitutional question.
{¶ 23} The Cavaliers urge the court to find that the referendum is a nullity
because it seeks to repeal legal authorization of acts that have already been fully
performed. Cleveland Ordinance No. 305-17 authorized city officials to enter into
the Supplemental Agreement, and they have done so. According to the Cavaliers,
therefore, there is nothing left for a referendum to invalidate. This argument rests
on a false premise. Cleveland Ordinance No. 305-17 contained a second relevant
provision, namely, the admission-proceeds-tax exemption in connection with the
Series 2017 Arena Bonds. That provision has not been fully performed. Therefore,
the Cavaliers mootness argument is not well taken.
{¶ 24} The clerk had a clear legal duty to perform the ministerial function
of her office—verifying the sufficiency of the petition signatures—and relators
have a clear legal right to compel the performance of that duty. Relators are without
an adequate remedy in the ordinary course of the law. We therefore grant the writ
of mandamus.
3. The constitutional claim
{¶ 25} In light of the foregoing analysis, it is unnecessary to address the
underlying constitutional question at this juncture. See Ebersole v. Powell, 141
Ohio St.3d 17, 2014-Ohio-4283, 21 N.E.3d 274, at ¶ 13 (“The proper time for an
9
SUPREME COURT OF OHIO
aggrieved party to challenge the constitutionality of the charter amendment is after
the voters approve the measure, assuming they do so”).
B. The Cleveland Director of Law Has Standing
{¶ 26} None of the seven justices has expressed any disagreement with the
premise set forth above: the clerk violated the Cleveland City Charter when she
refused to carry out her ministerial duty. The dissenting justices would dismiss the
case. They would hold that the law director and the clerk are not adverse parties.
That, however, is not so.
{¶ 27} The charter commands that when a city officer “fails to perform any
duty required by law,” the law director “shall” make an application for a writ of
mandamus. Cleveland City Charter Section 89. The clerk failed to perform a duty
required by law when she refused to review the petition, so the law director was
legally required to file this lawsuit. The law director would have been in violation
of the charter if she had not done so.
{¶ 28} The dissent seems to think that there is no adversity of interest
between the parties because the director of law worked with the city council and
the mayor on the deal to renovate the arena. But the issue before us is not whether
the arena deal should go forward. The issue here is simpler: whether the clerk must
determine the sufficiency of the petition and, if the petition is sufficient, allow the
people to vote on the referendum. One may reasonably be in favor of both the arena
renovation and providing citizens the opportunity to vote on the renovation.
{¶ 29} Moreover, there is a genuine dispute in this case because the charter
mandates that the law director file a mandamus action if the clerk fails to perform
any of her duties. And here, the clerk has failed to perform a duty. The law director
argues that the clerk must review the sufficiency of the petitions. The clerk argues
that she does not have to complete this task because the proposed referendum is
unconstitutional. Therefore, the law director and the clerk have adverse legal
interests in this case.
10
January Term, 2017
{¶ 30} In addition, the adversity requirement is met because in filing this
mandamus action, the law director was defending a “public right,” and it has long
been understood that “the people are regarded as the real party” in such a lawsuit.
State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 5, 215 N.E.2d 592 (1966).
{¶ 31} In reaching the opposite conclusion, the dissent relies on three cases
that are highly distinguishable because none of them involves a director of law or
her responsibility to ensure that an officer of a municipal corporation performs her
public duty according to charter and statute. In State ex rel. Wood v. McClelland,
a lawyer representing a mortgagor in a foreclosure action filed a writ of prohibition
in his own name attempting to prevent the judge and magistrate in the underlying
action from exercising jurisdiction over a count in the complaint. 140 Ohio St.3d
331, 2014-Ohio-3969, 18 N.E.3d 423, ¶ 1-2, 10. In State ex rel. Lorain Cty. Bd. of
Commrs. v. Lorain Cty. Court of Common Pleas, we granted a writ of prohibition
preventing a common pleas judge from ordering the county commissioners to pay
the sheriff to provide security for court operations, because no lawsuit had been
filed between the commissioners and the sheriff. 143 Ohio St.3d 522, 2015-Ohio-
3704, 39 N.E.3d 1245, ¶ 2, 21, 26-27. Lastly, in Kincaid v. Erie Ins. Co., this court
correctly held that when an insured has not actually presented a claim for expenses
to an insurer for payment, “there is no actual controversy.” 128 Ohio St.3d 322,
2010-Ohio-6036, 944 N.E.2d 207, ¶ 20.
{¶ 32} One wonders what would happen if the dissent’s view carried the
day. In this case, the intervenors sought to dismiss the law director’s lawsuit and
to pursue their own taxpayer lawsuit. In moving to dismiss, the intervenors raised
arguments similar to those advanced by the dissent today. The court voted six to
one to overrule the intervenors’ motion to dismiss and allowed them to intervene in
this lawsuit. ___ Ohio St.3d ___, 2017-Ohio-5799, ___ N.E.3d ___. As a
consequence, the intervenors filed an application to dismiss their separate taxpayer
11
SUPREME COURT OF OHIO
lawsuit, which this court granted. Cleveland ex rel. Blakeney v. Britt, ___ Ohio
St.3d ___, 2017-Ohio-5832, ___ N.E.3d ___.
{¶ 33} Imagine if the court now reversed course and, as urged by the
dissent, dismissed the law director’s lawsuit. Almost certainly, the intervenors
would refile the lawsuit they had dismissed. The Cleveland City Charter allows for
a taxpayer lawsuit if after demand upon the law director, the law director fails to
file a lawsuit. Cleveland City Charter Section 90. If the dissent’s view were
adopted, we would have to figure out how to apply this provision. There are only
two possible options.
{¶ 34} One possibility is that we could say the taxpayers couldn’t pursue
their lawsuit because the law director had not failed to file a lawsuit—indeed, the
law director filed one and we dismissed it. This would be a literal reading of the
charter. The result, though, would be that no one could challenge the clerk’s refusal
to follow the law—not the law director because, in the dissent’s view, there wasn’t
the requisite adversity and not the taxpayers because the law director had not failed
to file a lawsuit. It’s the ultimate Catch-22: heads, the city wins; tails, the taxpayers
lose.
{¶ 35} The other possibility is that we could decide to ignore the “fail to
file” requirement because we had dismissed the law director’s lawsuit. This
scenario would at least preserve the rights guaranteed to taxpayers under the
charter. But it would not get the opponents of the referendum what they want.
Faced with such a lawsuit, we would have little choice but to grant the writ of
mandamus: municipal clerks plainly don’t have the authority under Ohio law to
decide if a referendum petition is constitutional. So under this scenario—if the
dissent’s view were to carry the day—the result would be the same as the one
reached by the majority today. All we would be doing is delaying the inevitable.
12
January Term, 2017
Conclusion
{¶ 36} For the reasons stated above, we hold that relators are entitled to the
requested writ of mandamus.
Writ granted.
O’NEILL, FISCHER, and DEWINE, JJ., concur.
O’DONNELL, J., dissents, with an opinion joined by O’Connor, C.J., and
French, J.
_________________
O’DONNELL, J., dissenting.
{¶ 37} Respectfully, I dissent.
{¶ 38} Before this court will issue a writ of mandamus, the circumstances
must demonstrate that the relator has a clear legal right to the relief prayed for, that
the respondent is under a clear legal duty to perform the requested act, and that the
relator has no plain and adequate remedy at law. State ex rel. Manley v. Walsh, 142
Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 18. “The writ of mandamus is
not granted by right. It is a high prerogative writ, and its issuance rests in the sound
discretion of the court.” Patton v. Springfield Bd. of Edn., 40 Ohio St.3d 14, 15,
531 N.E.2d 310 (1988).
{¶ 39} Nonetheless, this court only decides cases that present actual
controversies. State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio
St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 44; Fortner v. Thomas, 22 Ohio St.2d
13, 14, 257 N.E.2d 371 (1970).
{¶ 40} And as we explained in State ex rel. Barclays Bank, P.L.C. v.
Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 536, 660 N.E.2d 458 (1996),
Actual controversies are presented only when the plaintiff sues an
adverse party. This means not merely a party in sharp and
acrimonious disagreement with the plaintiff, but a party from whose
13
SUPREME COURT OF OHIO
adverse conduct or adverse property interest the plaintiff properly
claims the protection of the law. Thus, we hold that the presence of
a disagreement, however sharp and acrimonious it may be, is
insufficient to create an actual controversy if the parties to the action
do not have adverse legal interests.
Id. at 542.
{¶ 41} Here, the law director and the clerk are not adverse parties with
adverse legal interests. Pursuant to Section 78 of the Cleveland City Charter, the
law director serves at the pleasure of the mayor, and pursuant to Section 31, the
council clerk serves at the pleasure of the city council. Thus, the law director and
the council clerk each answer to people whose interests are aligned in favor of the
arena renovation and in opposition to the referendum. The law director worked
with the mayor and the city council—as required by Cleveland City Charter Section
83—in enacting the tax exemption to secure financing for the arena renovation.
Supplemental Agreement No. 1 to the Cooperative Agreement contains the
endorsement by the law director as required by Section 83, and the law director,
along with the finance director of the city of Cleveland, are signatories on behalf of
the city.
{¶ 42} When the petition seeking a referendum was presented to the clerk
of the city council and the clerk refused to certify it, Cleveland City Charter Section
89 required the law director to file an action in mandamus. That section provides:
“In case any officer or commission fails to perform any duty required by law, the
Director of Law shall apply to a court of competent jurisdiction for a writ of
mandamus to compel the performance of such duty.” (Emphasis added.)
{¶ 43} Nonetheless, the charter contemplates that the law director may be
unwilling or unable to bring such an action, and it states in Section 90:
14
January Term, 2017
In case the Director of Law, upon written request of any taxpayer of
the City, fails to make any application provided for in the preceding
three sections, such taxpayer may institute suit or proceedings for
such purpose in his own name on behalf of the City. No such suit
or proceeding shall be entertained by any court until such request to
the Director of Law shall first have been made, nor until the taxpayer
shall have given security for the costs of the proceedings.
Thus, when the law director cannot or does not comply with Section 89, Section 90
authorizes a taxpayer to institute a mandamus action if the taxpayer has asked the
law director to institute an action and the law director fails to do so.
{¶ 44} But here, the law director seems to have recognized that filing this
mandamus action may have raised a conflict of interest, and she appointed outside
counsel to represent both parties and then brought this action in her own name.
However, the appointment of outside counsel does not change the fact that the
named parties to this mandamus action lack adverse legal interests—outside
counsel is not the party in this case but only an advocate with no standing to bring
this action in its own right. See State ex rel. Wood v. McClelland, 140 Ohio St.3d
331, 2014-Ohio-3969, 18 N.E.3d 423, ¶ 10 (“lawyers do not have standing to bring
claims in their own names based on violations of their clients’ rights”). And
without adverse parties to this litigation, there is no justiciable issue that this court
can decide.
{¶ 45} The majority confuses standing with the need for an adverse legal
interest. After all, State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 5, 215 N.E.2d
592 (1966), on which it relies, is a taxpayer standing case. And although standing
and an adverse legal interest are both necessary components of a justiciable case,
they are different concepts—standing requires either a personal stake in the
outcome of the controversy, Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134
15
SUPREME COURT OF OHIO
Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 21, or the authority to sue
created by legislation, Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897,
975 N.E.2d 977, ¶ 48.
{¶ 46} Section 89 of the Cleveland City Charter gives the law director
standing to seek a writ of mandamus to compel an officer or commission to perform
a duty required by law without having any personal stake in the controversy. But
the existence of standing, by itself, does not demonstrate that the law director and
the city council clerk in fact have adverse legal interests in this mandamus action.
{¶ 47} In my view, the court ought not to wade into this morass, where the
city is essentially suing itself to repeal legislation approved by the legislative
branch—because it was enacted by the city council—and authorized by the
executive branch—because it was signed into law by the mayor—all in an effort to
invalidate a contract that the relator herself signed. This matter is analogous to
State ex rel. Lorain Cty. Bd. of Commrs. v. Lorain Cty. Court of Common Pleas,
143 Ohio St.3d 522, 2015-Ohio-3704, 39 N.E.3d 1245, in which the common pleas
court ordered the county commissioners to appropriate funds to pay for security at
the courthouse and another facility. In that case, we explained that the common
pleas court had no authority to adjudicate the dispute between the county
commissioners and the county sheriff; because the sheriff had not sued the
commissioners, there were no adverse parties before the court and no justiciable
controversy presented for decision. Id. at ¶ 2, 21.
{¶ 48} Similarly here, the law director and the clerk are not adverse parties,
there is no justiciable controversy for this court to decide, and this action should be
dismissed. See Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944
N.E.2d 207, ¶ 20.
{¶ 49} I recognize that the taxpayers who circulated the referendum
petitions have been permitted to intervene in this action. However, that does not
save this case from dismissal. We determine justiciability as of the commencement
16
January Term, 2017
of suit, and post-filing events, such as the substitution of the real party in interest
for a party with no standing to sue, cannot cure a lack of justiciability at the outset.
See Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 24-
26, 38. These intervenors were not the parties that filed this action, and therefore
they cannot make this nonjusticiable controversy retroactively justiciable.
{¶ 50} The majority’s reliance on its forecast of a parade of horribles is
nothing more than an “in terrorem” argument that the taxpayers may or may not be
able to institute suit in their own names if the court were to dismiss this case, and
its speculation that eventually the case might end up in the same place as proposed
by the majority is contrary to our role as a court. After all, it is well-settled law that
this court does not issue advisory opinions. State ex rel. LetOhioVote.org v.
Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51; State ex rel.
White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508,
¶ 18, citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d
238, 242, 736 N.E.2d 893 (2000), and Egan v. Natl. Distillers & Chem. Corp., 25
Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus. The predictive exercise is also
highly unseemly because it reads like an advocate’s brief rather than an opinion of
this court.
{¶ 51} A thorough review of the facts of this case leads to the conclusion
that there is no justiciable issue for this court to decide because the law director and
the city council clerk lack adverse legal interests, and therefore I would dismiss the
complaint.
O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion.
_________________
Roetzel & Andress, L.P.A., Stephen W. Funk, and Leighann K. Fink, for
relator.
The Chandra Law Firm, L.L.C., Subodh Chandra, and Peter Pattakos, for
intervening relators.
17
SUPREME COURT OF OHIO
Walter Haverfield, L.L.P., R. Todd Hunt, Aimee W. Lane, and Benjamin
G. Chojnacki, for respondent.
Mayle, Ray & Mayle, L.L.C., and Andrew R. Mayle, urging granting of the
writ for amicus curiae Property Investor’s Network, Inc.
Goldstein Gragel, L.L.C., Susan L. Gragel, and Richard L. Stoper Jr., urging
denial of the writ for amicus curiae Building Laborers’ Union Local 310.
Michael W. Deemer, urging denial of the writ for amicus curiae Downtown
Cleveland Alliance and Greater Cleveland Sports Commission.
Jason Hillman, urging denial of the writ for amicus curiae Cavaliers
Operating Company, L.L.C.
Calfee, Halter & Griswold, L.L.P., and James F. Lang, urging denial of the
writ for amicus curiae Rick Chiricosta, Christopher M. Connor, Dr. Delos
Cosgrove, Alexander Cutler, Carole Hoover, Chuck Jones, Jerry Kelsheimer, Bill
Lacey, Ed Largent, A. Malachi Mixon III, Beth Mooney, Bernie Moreno, Merrick
Murphy, Joe Roman, Matthew A. Ouimet, Albert Ratner, and Dr. Jerry Sue
Thornton.
_________________
18