[Cite as Osborne v. N. Canton,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

CHARLES OSBORNE JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellant Hon. W. Scott Gwin, J. Hon. John W. Wise, J. -vs- Case No. 2013 CA 00246 CITY OF NORTH CANTON

Defendant-Appellee OPINION

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common Pleas, Case No. 2013 CV 02037

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 21, 2014

APPEARANCES:

For Plaintiff-Appellant For Defendant-Appellee

ROBERT H. CYPERSKI TIMOTHY L. FOX 1201 - 30th Street, NW Suite 102-B 145 North Main Street Canton, Ohio 44709 North Canton, Ohio 44720 [Cite as Osborne v. N. Canton,

.]

Wise, J.

{¶1} Appellant Charles Osborne appeals the November 22, 2013, decision of

the Stark County Common Pleas Court granting Appellee City of North Canton’s Motion

to Dismiss.

STATEMENT OF THE FACTS AND CASE

{¶2} The Charter of the Municipality of North Canton ("Charter'') states that the

"compensation of the mayor and each member of council shall be fixed at least thirty

(30) days prior to the filing date of the nominating petitions for the terms beginning on

the next succeeding first of December, and shall not be changed during the term of

office or any part thereof.'' Charter Section 4.04, Salaries and Bonds.

{¶3} In addition to the City’s Charter, North Canton is also subject to the filing

deadlines posed by the Stark County Board of Election. That relevant deadline herein

required that Ordinance 47-13 be passed 90 days prior to the November 5, 2013,

general election.

{¶4} With the combination of both the Charter and the Stark County Board of

Election's deadlines, Ordinance 47-13 needed to be enacted at least 120 days prior to

the November 5, 2013, general election to become effective.

{¶5} On July 8, 2013, Appellee City of North Canton's City Council passed

Municipal Ordinance 47-13 to increase the compensation rate of the future mayor and

future members of City Council.

{¶6} The Ordinance states that it establishes "the rates of compensation for

elected officials of the City of North Canton, Ohio, effective December 1, 2013." It also

states that it was enacted into law to establish the compensation rates for future elected Stark County, Case No. 2013 CA 00246 3

officials effective December 1, 2013, and that the reason for its urgency was to meet the

Stark County Board of Election's filing requirements for the November 5, 2013, General

Election.

{¶7} The Ordinance was thereby enacted into law immediately upon the

mayor's signature, and just prior to the Stark County Board of Election's and the

Charter's filing deadlines.

{¶8} On August 5, 2013, Appellant Charles Osborne filed a "Complaint for

Declaratory Judgment and Injunction" against North Canton in Stark County's Common

Pleas Court alleging therein that the Ordinance is invalid because the reason for the

declaration of the ordinance is not specified or is insufficient to justify a valid

emergency, and that the "ordinance was passed under false premises of emergency

legislation" to prevent the right of referendum.

{¶9} On September 3, 2013, Appellee filed a Motion to Dismiss pursuant to

Civ.R. 12(B)(6).

{¶10} By Judgment Entry filed November 22, 2013, the trial court dismissed

Osborne's complaint under Civ.R. 12(B)(6) for his failure to prove a set of facts entitling

him to relief. The court found that the reasoning for North Canton's emergency

measure: (1) was "stated with sufficient detail," (2) was "not conclusory, illusory, or

tautological," and (3) that "council's ordinance took effect immediately upon its passage

to satisfy the requirements of North Canton's Charter and the Stark County Board of

Election's filing deadline, thus it satisfie[d] the immediacy requirement."

{¶11} Appellant now appeals, assigning the following error for review: Stark County, Case No. 2013 CA 00246 4

ASSIGNMENT OF ERROR

{¶12} “I. THE TRIAL COURT ERRED IN CONCLUDING THERE WAS NO

GENUINE ISSUE OF MATERIAL FACT IN DISPUTE AND THEREFORE ERRED IN

GRANTING APPELLEE’S MOTION TO DISMISS.

I.

{¶13} In his sole Assignment of Error, Appellant argues that the trial court erred

in granting Appellee’s motion to dismiss. We disagree.

{¶14} Appellant herein argues that Ordinance 47-13 is “not a valid emergency

ordinance in that the reasons for the declaration of the ordinance as an emergency

were not specified and/or were insufficient to justify an emergency and/or were not valid

reasons for an emergency.” (Appellant’s brief at 6.)

{¶15} The statutory referendum procedure is set forth in R.C. Chapter 731. R.C.

§731.29 provides that, unless an exception in R.C. §731.30 is applicable, any ordinance

passed by the legislative authority of a municipality can be the subject of a referendum

election if a proper petition is filed with the city clerk within thirty days after its passage.

The section further states that the clerk must transmit the petition and a certified copy of

the ordinance to the board of elections.

{¶16} As an exception to this procedure, R.C. §731.30 expressly states that an

ordinance shall take effect immediately if it is an emergency measure which is needed

to preserve the public peace, health, or safety of the municipality. This section also

indicates that, before this exception can apply, the ordinance must set forth the basis of

the legislative authority's determination that an emergency situation exists. Stark County, Case No. 2013 CA 00246 5

{¶17} In relation to these requirements, the Supreme Court of Ohio has stated

that, even though the merits of a legislature's emergency determination is not subject to

judicial review, the issue of whether the legislation sets forth the basis of the decision is.

State ex rel. Moore v. Abrams (1991),

,

.

{¶18} In Abrams, the Supreme Court stated that “[w]here an ordinance, passed

by the council of a municipality, is declared to be an emergency in accordance with that

municipality's laws and sets forth the reasons for the immediate necessity thereof, the

legislative determination of the existence of an emergency is not reviewable by a court.”

,

, quoting Jurcisin v. Cuyahoga Cty. Bd. of Elections (1988),

,

, paragraph three of the syllabus. The rationale for

the rule is stated, in part, as follows:

{¶19} “ ‘If there was in fact no emergency or if the reasons given for such

necessity are not valid reasons, the voters have an opportunity to take appropriate

action in the subsequent election of their representatives. However, the existence of an

emergency or the soundness of such reasons is subject to review only by the voters at

such a subsequent election of their representatives. They are not subject to review by

the courts.’ ”

,

, quoting State ex rel. Fostoria v. King

(1950),

,

,

.

{¶20} Specifically, the Supreme Court has held that a legislature's duty to state

the reasons for the emergency is mandatory and that the failure to satisfy this duty will

prevent the legislation from immediately becoming effective.

Strict compliance is

required because: (1) the statement of reasons shows that a legislature fully considered

the issue prior to declaring the emergency; and (2) the statement gives relevant Stark County, Case No. 2013 CA 00246 6

information to the public. State ex rel. Emrick v. Wasson (1990),

.

505,

.

{¶21} To satisfy the “reason” requirement, a legislature cannot use conclusory,

illusory, or tautological language; i.e., a legislature cannot simply state that the

legislation must take effect immediately in order to protect the public peace, health, and

safety. Moore. However, the courts of this state have also indicated that a prolonged

explanation is not necessary.

{¶22} For example, in Huebner v. Miles (1993),

,

, the court held that it was sufficient for the legislature to state that the emergency

legislation was necessary because the municipality needed additional revenues in order

to continue to provide vital services.

{¶23} Similarly, in City of Warren ex rel. Bluedorn v. Hicks, city taxpayers

brought a lawsuit challenging the validity of ordinances passed by initiative, which had

effectively reset pay levels for elected city officials below levels to which they had

recently been raised by city ordinances. Upon review, the Court of Appeals held, inter

alia, that the city acted within its authority by enacting ordinances granting pay

increases for elective officials, effective for terms which had not yet begun.

{¶24} In the instant action, North Canton City Ordinance No. 47-13 expressly

stated that the ordinance had to take effect immediately “to meet the Stark County

Board of Election’s filing requirements for the November 5, 2013, general election.”

Under the foregoing authority, this statement was sufficient to inform the public of the

basis of the North Canton City Council's decision. Stark County, Case No. 2013 CA 00246 7

{¶25} We find that the reasoning for the emergency in the case at bar is stated

with sufficient detail, and it is not conclusory, illusory, or tautological, in derogation of the

rule set forth in Walsh v. Cincinnati City Council (1977),

,

,

. The preamble to the ordinance in this case

states that the Ordinance was “declared to be an emergency measure necessary for the

preservation of health, safety and peace of the City of North Canton and further

necessary to meet the Stark County Board of Election’s filing deadline for the November

5, 2013, general election” is sufficient. Abrams,

,

.

Furthermore, the council's ordinance took effect immediately upon passage and thereby

satisfied the immediacy requirement. See

,

,

citing State ex rel. Lipovsky v. Kizak (1968),

,

.

{¶26} Therefore, because the city council satisfied the “emergency” exception in

R.C. §731.30, the statutory referendum procedure was not applicable to the ordinance

in question. Appellant’s sole Assignment of Error is overruled.

{¶27} For the foregoing reasons, the decision of the Court of Common Pleas of

Stark County, Ohio, is affirmed.

By: Wise, J. Gwin, J., concurs. Hoffman, P. J., disssents.

JWW/d 0702 Stark County, Case No. 2013 CA 00246 8

Hoffman, P.J., dissenting

{¶28} I respectfully dissent from the majority opinion.

{¶29} While I agree North Canton City Ordinance No. 47-13 expressly and

sufficiently states the reasons why it was necessary to pass the ordinance as an

emergency at to "when" it was passed; i.e., the time restrictions found in Charter

Section 4.04 and the Stark County Board of Election's filing requirements - I find the

Ordinance's declaration as to "why" it was passed as an emergency measure - that is

that it was "necessary for the preservation of health, safety and peace of the City of

North Canton" is conclusory, illusory and tautological.

{¶30} Lest my dissent be misunderstood, I offer no opinion as to the merits of

the enacted pay raises. I dissent because I find no enunciated nor proffered nexus

between the enactment of the pay raises and the preservation of the public peace,

health or safety of the City of North Canton, let alone why passage of the pay raises as

an "emergency" was necessary to maintain the same.

{¶31} The pay raise ordinance could have been proposed and adopted via the

normal legislative process at an earlier time that would have satisfied the time

restrictions of both Charter Section 4.04 and the Stark County Board of Elections.

Failure to do so earlier had the effect of self-generating the reason for the purported

emergency. The passage of the ordinance as an emergency measure effectively

thwarted the ability to challenge the ordinance by referendum prior to the effective date

of the pay raises. Stark County, Case No. 2013 CA 00246 9

{¶32} I find no threat to the public health, safety and peace of the City of North

Canton existed to justify passage of the ordinance as an "emergency" measure.

________________________________ HON. WILLIAM B. HOFFMAN