2022 Ohio 1019
Ohio Ct. App.2022Background
- In June 2019 Cincinnati’s city solicitor filed a lawsuit challenging amendments to R.C. 9.68 (the “R.C. 9.68 lawsuit”) without a prior ordinance or resolution from City Council; the mayor and city manager had authorized the filing.
- Taxpayer-relator Thomas E. Brinkman sent a demand letter and, after the solicitor declined to act under R.C. 733.56, brought a taxpayer action alleging an abuse of municipal corporate power and seeking injunctive and declaratory relief.
- The common pleas court consolidated Brinkman’s taxpayer action with the R.C. 9.68 lawsuit, granted injunctive relief enjoining the city from continuing the R.C. 9.68 suit, and denied declaratory relief to Brinkman.
- The city appealed the injunction; Brinkman cross-appealed the denial of declaratory relief. The principal legal dispute concerned whether the city solicitor may file civil actions on behalf of the city without prior Council authorization under Cincinnati’s charter.
- The First District reversed the injunction (holding the solicitor had discretionary authority to file suits under the charter) and affirmed the remainder of the trial-court judgment; it remanded with instructions to enter judgment for the city on the taxpayer claim.
Issues
| Issue | Plaintiff's Argument (Brinkman) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether the city solicitor may file civil actions on behalf of the city without prior Council authorization under the Cincinnati Charter | Solicitor lacks authority to sue absent prior Council approval; filing without Council approval is an abuse of corporate powers | Article IV, §5 (“shall represent the city in all proceedings in court”) gives the solicitor discretion to prosecute or defend suits without prior Council authorization | Held for City: charter vests the solicitor with discretion to file suits without prior Council approval; injunction reversed |
| Whether Brinkman had standing in his taxpayer action to obtain declaratory relief that Council must authorize all lawsuits | Brinkman sought a declaratory judgment requiring Council authorization for any city-initiated lawsuit | City argued taxpayer relief under R.C. 733.56–.59 is limited and trial court correctly denied declaratory relief | Court rejected Brinkman’s assignment as harmless because it ruled the filing was not an abuse of power; Brinkman’s declaratory- relief issue moot/overruled |
Key Cases Cited
- State ex rel. City of Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio St.3d 73, 765 N.E.2d 854 (2002) (Ohio Supreme Court construed broad charter language giving the law director authority to institute mandamus without prior council approval)
- City of Cuyahoga Falls v. Robart, 58 Ohio St.3d 1, 567 N.E.2d 987 (1991) (discusses solicitor’s duty to represent city and the attendant power to determine the city’s position)
- Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374, 49 N.E. 335 (1898) (definition of ‘‘abuse of corporate powers’’ in taxpayer suits)
- Porter v. Oberlin, 1 Ohio St.2d 143, 205 N.E.2d 363 (1965) (taxpayer-suit principles regarding municipal authority and remedies)
- State ex rel. Fisher v. City of Cleveland, 109 Ohio St.3d 33, 845 N.E.2d 500 (2006) (discusses scope of relief and standing in municipal taxpayer actions)