Madigan v. ClevelandMadigan v. Cleveland
JUDGMENT: AFFIRMED IN PART; REVERSED IN PART
Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CV-675397
BEFORE: Cooney, J., McMonagle, P.J., and Stewart, J.
RELEASED: March 25, 2010
JOURNALIZED:
ATTORNEYS FOR APPELLANT
Director of Law
Barbara A. Langhenry
Theodora M. Monegan
Chief Assistant Law Directors
James C. Cochran
Gary S. Singletary
Assistant Law Directors
City of Cleveland Department of Law
601 Lakeside Avenue, Room 106
Cleveland, Ohio 44114
ATTORNEYS FOR APPELLEES
For Patrick Madigan, et al.
John Swansinger
Drue M. Skaryd
Ritzler, Coughlin & Swansinger, Ltd.
1360 East Ninth Street
1000 IMG Center
Cleveland, Ohio 44114
Kevin P. Prendergast
27999 Clemens Road
Suite One
Westlake, Ohio 44145
For Steve Loomis, et al.
Patrick A. D‘Angelo
R. Brian Moriarty
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
For May Betley, et al.
Faulkner, Muskovitz & Phillips, LLP
820 West Superior Avenue
Ninth Floor
Cleveland, Ohio 44113-1800
For Stephen Palek, et al.
Ryan J. Lemmerbrock
Susannah Muskovitz
Faulkner, Muskovitz & Phillips, LLP
820 West Superior Avenue
Ninth Floor
Cleveland, Ohio 44113-1800
N.B. This entry is an announcement of the court‘s decision. See App.R. 22(B) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(C) unless a motion for reconsideration with suppоrting brief per App.R. 26(A), or a motion for consideration en banc with supporting brief per Loc.App.R. 25.1(B)(2), is filed within ten days of the announcement of the court‘s decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court‘s announcement of decision by the clerk per Apр.R. 22(C). See, also, S.Ct. Prac.R. 2.2(A)(1).
{¶ 1} Defendant-appellant, city of Cleveland (“City“), appeals from the trial court‘s judgment denying its motion to dismiss and granting plaintiffs-appellees, Patrick Madigan (“Madigan“), Cara Milcinovic (“Milcinovic“), and the Cleveland Civil Service Employees Association‘s (“CSEA“) (collectively referred to as “CSEA appellеes“) motion for preliminary and permanent injunction.1 Finding some merit to the appeal, we affirm in part and reverse in part.
{¶ 2} In September 2008, Cleveland City Council enacted Ordinance No. 1319-08, Sections (1)-(6), which approved for submission on the November 4, 2008 election ballot a proposal to amend the City‘s Charter as it relatеs to civil service. Ordinance No. 1319-08 provides in pertinent part:
“Section 1. That this Council authorizes the submission to the electors of the City of Cleveland at a general election to be held * * * in the City of Cleveland on Tuesday, November 4, 2008, of a proposal to amend the Charter of the City of Cleveland by amending existing Sections 121, 126 аnd 130 and enacting new Section 131-1 * * *.”
{¶ 3} The proposal, which is found in Section 6 of Ordinance No. 1319-08, was placed on the ballot as Issue 38, and reads as follows:
“Shall various sections of the Charter of the City of Cleveland related to civil service be amended to (1) allow appeals of employees to the Civil Service Cоmmission from suspensions of more than 3 days and authorize the Commission to set the appeal for hearing within 30 days; (2) provide that the unclassified service shall include assistant directors of departments, executive and special assistant to the Mayor, temporary employees for a period not to exceed 90 days, seasonal employees for a period not to exceed 180, and students enrolled in any recognized educational institution; (3) provide that the non-competitive class shall include all positions requiring specialized training, or skills requiring certifications or licensure, and qualifications of a scientific, business, manageriаl, professional or educational character, as determined by the Commission and that fitness of applicants in the non-competitive class shall be based on the applicant‘s knowledge, skills and abilities relative to the qualifications for the position; (4) rename the ordinary unskilled labor class as the general lаbor class that includes semi-skilled and unskilled labor positions for which it is impractical to give competitive tests and that vacancies in the general labor class shall be filled from the registration list containing qualified applicants provided to the appointing authority by the Commission; (5) provide that in the absence of an еligible list, any position in the competitive service may be filled temporarily, without test, for a period not to exceed one year; and (6) grandfather employees hired in their current position on or before August 6, 2008, who have served for 90 consecutive days without test, who meet the qualifications for their position, and who have a satisfactory employment record as regular employees in their position without test, provided that any grandfathered employee is not eligible to apply for any other position in the classified service without test and compliance with all other applicable civil service laws and rules?”
{¶ 4} Clevеland voters passed the proposal on November 4, 2008. The next day, the CSEA appellees filed a complaint for declaratory relief, seeking that the trial court declare “Ordinance Number 1319-08 unconstitutional as it violates Article XV, Section 10 of the Ohio Constitution” and that “Ordinance Number 1319-08 [was] unconstitutionally enacted[.]”
{¶ 6} Prior to the hearing, intervenors-appellees, Walter May, President, and Brian Betley, Vice-President, of the Fraternal Order of Police, Lodge 8 (collectively referred to as “FOP“); Steve Loomis and the Cleveland Police Patrolmen‘s Association (collectively referred to as “CPPA“); and Stephen Palek and the Cleveland Association of Rescue Employees (collectively referred to as “CARE“) each moved to intervene as a new-party plaintiff.2 At the preliminary injunction hearing, the court granted the intervenors’ motions and found that the City did not violate the Ohio Constitution by placing the proposed Charter amendments on the November 2008 ballot. The court then continued the hearing and instructed the parties to submit briefs on the constitutionality of the approved Charter amendments.
“Cleveland charter amendment, Ordinance No. 1319-08, Sections (2)-(6), is unconstitutional as it violates Article XV, Section 10, of the Ohio Constitution which requires that appointment and promotion in the civil service of the city shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. The Court hereby grants a permanent [restraining] order prohibiting the City of Cleveland from enforcing or enacting Ordinance Number 1319-08, Sections (2)-(6) as those provision are found to be unconstitutional and void.”
{¶ 8} It is from this order that the City appeals, raising seven assignments of error for our review, which shall be discussed out of order where appropriate.
Motions to Intervene
{¶ 9} In the sixth assignment of error, the City argues that the trial court erred in granting the intervenors’ motiоns to intervene. It claims that FOP, CARE, and CPPA cannot be plaintiffs because they did not file complaints as required by
{¶ 11} The party seeking to intervene must comply with
“A person desiring to intervene shall serve a motion to intervene upon the parties as provided in
Civ.R. 5 . The motion and any supporting memorandum shall state the grounds for intervention and shall be accompanied by a pleading, аs defined inCiv.R. 7(A) , setting forth the claim or defense for which intervention is sought.”
{¶ 12}
{¶ 13} In the instant case, CPPA attached a complaint to its motion to intervene and also incorporated by reference “all claims, averments, and
{¶ 14} We note that
{¶ 16} However, the instant case presents far different circumstances. Unlike Crittenden, timeliness was not at issue and the trial court in the instant case granted the motions to intervene. Furthermore, neither FOP nor CARE provided any reason to explain their failure to attach an intervening complaint to their motions to intervene. Lastly, unlike Fidelity,
{¶ 17} Accordingly, the sixth assignment of error is sustained in part and overruled in part.
Motion to Dismiss
{¶ 18} In December 2008, the City moved to dismiss the CSEA appellees’ complaint for declaratory judgment and injunctive relief under
{¶ 20} An appellate court reviews a
{¶ 22} The CSEA appellees argue that “[t]he City cannot, in good-faith, claim that by referencing the amendmеnts on the Ordinance by Ordinance Number and not each Charter section that was being amended that the City some how is unaware of what is being challenged.” They further argue that the City failed to raise this argument before the trial court and is prohibited from raising it for the first time on appeal. We disagree.
{¶ 23} It is clear from the record that the City raised this argument in its motion to dismiss. Furthermore, the City does not argue that it was unaware of what the CSEA appellees challenged. Rather, it argues that the CSEA appellees failed to present any evidence or make any arguments to demonstrate that Ordinance No. 1319-08 violates Section 10, Article XV, of the Ohio Constitution. The City clаims that not one of the allegations in the
{¶ 24} The sole purpose of Ordinance No. 1319-08 was to authorize the submission to the electors of the City a proposal to amend Cleveland Charter Sections 121, 126, and 130 and enact a new section, Section 131-1. Once the voters passed Issue 38, amended Charter Sections 121, 126, and 130, and newly enacted Charter Section 131-1 became effective.
{¶ 25} By challenging the ordinance that merely authorized the placement of the proposed amendments on the ballot, instead of challenging each specific Charter Section in their complaint, we find that the CSEA
{¶ 26} Accordingly, the first assignment of error is sustained.
{¶ 27} In the second assignment of error, the City argues that the trial court erred in finding all the Charter provisions unconstitutional. In the third assignment of error, the City argues that the trial court erred in shifting the burden to the City to prоve that the Charter provisions were constitutional. In the fourth assignment of error, the City argues that the trial court erred in not dismissing the declaratory judgment. In the fifth assignment of error, the City argues that the trial court lacked jurisdiction to decide whether Cleveland Charter Section 131-1 is constitutional. In the seventh assignment of error, the City argues that thе trial court erred in denying its motion to dismiss for lack of standing.
{¶ 28} However, based on our disposition of the first assignment of error, we overrule these assignments of error as moot. See
{¶ 29} Judgment is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.
It is ordered that appellant and appellees share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to
COLLEEN CONWAY COONEY, JUDGE
CHRISTINE T. McMONAGLE, P.J., and MELODY J. STEWART, J., CONCUR