In a Decision issued on September 12, 2018, Secretary Husted broke the Board of Elections’ tie vote in favor of putting the Proposed Ordinance on the November 2018 ballot. In doing so, the Secretary flatly rejected the City’s Protest.
Noting that the City failed to support its position with any detail or substance, the Secretary found that the Proposed Ordinance is a zoning ordinance. And, because the City has authority to enact such legislation, the Proposed Ordinance is the proper subject of a citizen-led initiative, which was recognized by the Supreme Court in 1994. The Supreme Court affirmed this long-standing principle last Friday, September 7, 2018, when it issued the Harris Decision.
Secretary Husted next rejected the City’s position that the petitioners were required but failed to submit the Proposed Ordinance first to the City’s Planning Commission and then to City Council for approval. Calling the City’s argument and position “confused,” he stated that there was nothing to suggest that the petitioners failed to comply with the Ohio Constitution as the City claimed. In fact, the petitioners followed the letter of the law.
The legal principles which guided Secretary Husted in his decision are not new or novel and should have stopped the City from ever lodging its Protest in the first instance. To be clear, the decision to lodge the Protest was not made by City Council resolution, as it should have been. Instead, Mayor DeGraw and the unelected City Attorney, Joelle Khouzam, alone made the misguided decision, peddling scare tactics. (Whether Mayor DeGraw and City Attorney Khouzam had authority to do that or not is the subject of another upcoming post.) These tactics, like their legal arguments, lack credibility.
Anyone can file a lawsuit, but the mere filing of one does not mean the underlying claims have merit. Take, for example, the City’s filing of its Protest which completely lacks merit as the Secretary effectively stated in his Decision.
In an effort to get ahead of a possible adverse decision by the Secretary of State and justify her actions as well as those of the Mayor if that occurred, the City Attorney stated at the September 4, 2018 City Council meeting that the Board of Elections’ tie vote demonstrated just how “complex” the issues are in relation to the Proposed Ordinance. Really? The Board’s 2-2 vote was straight along party lines with 2 Republicans voting to keep the Proposed Ordinance off the ballot and 2 Democrats voting to put it on. As long as the City might be able to keep the Proposed Ordinance off the ballot, it mattered little that one of the votes to keep the Proposed Ordinance off the ballot came from a lawyer at the same firm that represents the property owners who have threatened to sue the City and refused to recuse himself in the face of a bona fide conflict.
Make no mistake, the City was gambling on political clout and gamesmanship, not relying on the strength of its legal arguments, when it decided to file the Protest with the Board of Elections. Along the way, the City wasted taxpayer money and resources, as well as the time and money of residents supporting the initiative.
Thankfully for the residents of Grandview Heights, there are decision makers like Secretary Husted who are not afraid to make the right decisions, regardless of party lines. His decision ought to be a wake up call to the elected members of City Council, let alone to the Mayor and the unelected City Attorney Khouzam.