Cincinnati v. State

[Cite as Cincinnati v. State, 2022-Ohio-1019.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

CITY OF CINCINNATI, : TRIAL NO. A-1902786

and :

MAYOR JOHN CRANLEY, :

Plaintiffs, :

vs. :

STATE OF OHIO, :

Defendant. :

:
CITY OF CINCINNATI, ex rel. APPEAL NOS. C-210343
THOMAS E. BRINKMAN, JR., : C-210353

Relator-Appellee-Cross-Appellant, : TRIAL NOS. A-1902786
A-1903779
vs. :

CITY OF CINCINNATI, :

and : O P I N I O N.

ANDREW W. GARTH, in his official :
capacity as Cincinnati City Solicitor,
:
Respondents-Appellants-Cross-
Appellees. :
 OHIO FIRST DISTRICT COURT OF APPEALS

Civil Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded in C-210343; Affirmed
in C-210353

Date of Judgment Entry on Appeal: March 30, 2022

The Law Firm of Curt C. Hartman and Curt C. Hartman, and Finney Law Firm,
LLC, and Christopher P. Finney, for Relator-Appellee-Cross-Appellant,

Andrew Garth, City Solicitor, Jacklyn Gonzalas Martin, Emily Smart Woerner and
Kevin M. Tidd, Assistant City Solicitors, for Respondent-Appellant-Cross-Appellee.

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Per Curiam.

{¶1} These consolidated appeals arise from a taxpayer action instituted by

relator, Thomas E. Brinkman, against respondents, the city of Cincinnati and the then

solicitor for the city acting in her official capacity, collectively referred to as “the city.”

Brinkman sought to enjoin an alleged abuse of corporate powers that began when the

solicitor filed a civil action against the state of Ohio on behalf of the city and its mayor

without obtaining Cincinnati City Council’s approval. Brinkman also sought a

declaration that the solicitor lacked the authority to file any civil action on behalf of

the city and its officials without prior authorization by council. The trial court granted

the requested injunctive relief but refused to grant declaratory relief.

{¶2} In the first appeal, numbered C-210343, the city1 appeals the part of the

order granting injunctive relief, which if not reversed prevents the city from continuing

its lawsuit against the state. In the second appeal, numbered C-210353, Brinkman

appeals the part of the order denying his claim for declaratory relief. Because

Cincinnati’s charter (also referred to as “the city’s charter” or “the Charter”) allows the

solicitor to file a civil action on behalf of the city and its officials without prior

authorization of council, we hold the trial court erred by granting injunctive relief. In

all other respects, we affirm the trial court’s judgment.

I. Background Facts

{¶3} In June 2019, the city through its solicitor, at that time Paula Boggs

Muething, filed a lawsuit against the state of Ohio in the Hamilton County Court of

Common Pleas challenging the constitutionality and legality of certain amendments

1 Brinkman suggests the city is seeking an advisory opinion through its appeal because the notice
of appeal filed by the solicitor named the city as the appellant and did not separately list as an
appellant the solicitor in the solicitor’s official capacity. We do not share his concern, because the
action is one against the solicitor’s office and “ ‘is treated as an action against the entity itself.’ ”
(Internal citation omitted.) State ex rel. Estate of Miles v. Village of Piketon, 121 Ohio St.3d 231,
2009-Ohio-786, 903 N.E.2d 311, ¶ 23.

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to R.C. 9.68 (the “R.C. 9.68 lawsuit”). That statute concerns the preemption of local

firearm regulations and authorizes a civil action by those adversely affected by local

firearm regulations.

{¶4} The record establishes that city council did not pass an ordinance or

resolution authorizing the solicitor to file the R.C. 9.68 lawsuit, but the city manager

and the city’s mayor did authorize the solicitor to file the lawsuit.

{¶5} Brinkman, a taxpayer and resident of Cincinnati, submitted a taxpayer

demand letter to the solicitor concerning the R.C. 9.68 lawsuit. Brinkman took the

position that the city’s power to sue could only be exercised by the solicitor upon

authorization by city council. Because city council did not authorize the filing of the

R.C. 9.68 lawsuit, Brinkman contended the solicitor had acted in abuse of municipal

corporate power. He requested the solicitor bring an action under R.C. 733.56 to

enjoin herself as solicitor from continuing with the R.C. 9.68 lawsuit.

{¶6} The solicitor denied Brinkman’s request, citing the city’s charter which

provides the solicitor “shall represent the city in all proceedings in court.” Brinkman

then filed a taxpayer action in his name, but on behalf of the city, naming as

respondents the city and its solicitor acting in her official capacity. Brinkman alleged

the solicitor had abused municipal corporate powers and sought both injunctive and

declaratory relief. Brinkman’s taxpayer action was consolidated with the R.C. 9.68

lawsuit in the Hamilton County Court of Common Pleas.

{¶7} Brinkman and the city filed cross-motions for summary judgment on

Brinkman’s claims. The trial court reviewed local and state law provisions concerning

the filing of lawsuits on behalf of a municipal corporation and determined that

Brinkman was entitled to injunctive relief. The court further determined that

Brinkman lacked standing to bring a claim for declaratory relief in his taxpayer action.

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Consequently, the trial court denied the city’s motion for summary judgment, granted

Brinkman’s motion for summary judgment in part, and enjoined the city from

continuing with the R.C. 9.68 lawsuit. The city and Brinkman both appeal from that

order.

I. The City’s Appeal

{¶8} In its sole assignment of error, the city argues the trial court erroneously

denied its motion for summary judgment and granted summary judgment to

Brinkman on the claim for injunctive relief. We review the trial court’s ruling on

summary judgment de novo, applying the standards set forth in Civ.R. 56. See Comer

v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8.

{¶9} As a taxpayer, Brinkman sought “an order of injunction to restrain * * *

the abuse of [] [municipal] corporate powers * * *.” See R.C. 733.56. The abuse of

corporate powers within the contemplation of R.C. 733.56 “includes the unlawful

exercise of powers possessed by the [municipal] corporation, as well as the assumption

of power not conferred.” Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374, 49 N.E.

335 (1898), paragraph six of the syllabus, quoted in State ex rel. Fisher v. City of

Cleveland, 109 Ohio St.3d 33, 2006-Ohio-1827, 845 N.E.2d 500, ¶ 19, and Porter v.

Oberlin, 1 Ohio St.2d 143, 146, 205 N.E.2d 363 (1965).

{¶10} The city’s charter, adopted by the citizens of Cincinnati under home rule

authority, sets forth the form of the city’s government and how the powers of the

government should be exercised. The first paragraph of the Charter, which governs

the subsequent provisions, provides:

The city shall have all powers of local self-government and home rule

and all other powers possible for a city to have under the constitution of

the state of Ohio. The city shall have all powers that now are or hereafter

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may be granted to municipalities by the laws of the state of Ohio. All

such powers shall be exercised in the manner prescribed in this charter,

or if not prescribed herein, in such manner as shall be provided by

ordinance of the council.

Cincinnati Charter, Article I.

{¶11} The interpretation of a city’s charter is an issue of law that this court

reviews de novo. See McQueen v. Dohoney, 1st Dist. Hamilton No. C-130196, 2013-

Ohio-2424, ¶ 41. We apply the general rules of statutory construction because the

charter does not provide otherwise. See id. at ¶ 42. “Words and phrases shall be read

in context and construed according to the rules of grammar and common usage.

Words and phrases that have acquired a technical or particular meaning, whether by

legislative definition or otherwise, shall be construed accordingly.” R.C. 1.42.

{¶12} Further, when interpreting the Charter, we are directed by the case law

that has developed specifically on the issue at hand—the powers of a municipality’s

chief legal officer with regard to lawsuits. See, e.g., McQueen at ¶ 43 (Applying case

law “developed specifically on interpreting charter initiative and referendum

provisions.”).

{¶13} It is not disputed that the city has the power to sue. See R.C. 715.01.

Thus, the only question is whether the solicitor instituted the lawsuit consistent with

the law, including the city’s charter.

{¶14} The Ohio Supreme Court has addressed charter provisions related to the

authority of a city’s chief legal officer to file lawsuits without prior approval by city

council. See State ex rel. City of Toledo v. Lucas Cty. Bd. of Elections, 95 Ohio St.3d

73, 765 N.E.2d 854 (2002). In Toledo, the court reviewed whether Toledo’s law

director had authority under the city’s charter to institute a mandamus action on

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behalf of the city to compel the Lucas County Board of Elections and its members to

conduct a special election to fill a vacancy on Toledo’s city council. That mandamus

action had not been previously approved by city council nor did it involve an officer’s

failure to perform a specific duty for which the law director was required to institute a

mandamus action. See id. at 75. The court found the mandamus action instituted by

the law director authorized. Id.

{¶15} In support of its decision, the court noted that Toledo Charter Section

109 provided that the city’s chief legal officer “ ‘shall prosecute or defend suits for and

in behalf of the City,’ without limiting that authority.” The other local provisions and

state provisions on the matter merely specified when the law director had a mandatory

duty with respect to lawsuits. Id. In light of the unrestricted language in Section 109

and a concern over the impracticality of obtaining prior approval in some

circumstances, the court concluded that the charter vested the city’s chief legal officer

with authority to seek a writ of mandamus on behalf of the city in the “exercise of

discretion.” Id.

{¶16} The Ninth District Court of Appeals reviewed whether a charter

provision authorized the chief legal officer of the city of Fairlawn to bring suit on behalf

of the city without the specific authorization of the city’s mayor or council. City of

Fairlawn v. Fraley, 9th Dist. Summit No. 9827, 1981 Ohio App. LEXIS 13742, *14

(Feb. 11, 1981). The Fairlawn Charter provides in relevant part that “The Director of

Law * * * shall prosecute for all offenses against the ordinances of the municipality and

such offenses against the laws of Ohio as may be required of him.” Id. The court

concluded that no authorization was required for the law director to bring suit for

offenses against municipal ordinances because the first phrase of this sentence was

not restricted by the phrase “as may be required of him.” Id.

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{¶17} Cincinnati’s charter, at the time the solicitor filed the R.C. 9.68 lawsuit,

provided the following with respect to the authority of the city solicitor, a part of the

executive branch of city government and the chief legal officer of the city:

The city manager shall appoint a city solicitor. No person shall be

eligible to the office who is not an attorney at law, duly admitted to

practice in this state. The solicitor shall serve the mayor, council,

officers and boards of the city as legal counsel and attorney, and shall

represent the city in all proceedings in court. The solicitor shall act as

prosecuting attorney in the municipal court. The solicitor shall perform

all other duties now or hereafter imposed upon city solicitors by the

laws of the state, unless otherwise provided by ordinance of the council,

and such other duties as the council may impose upon the solicitor

consistent with the office of city solicitor. The solicitor shall appoint his

or her assistants and fix their salaries, but the maximum number of

assistants and the total amounts of the assistants’ salaries shall be fixed

by council. The assistants shall hold their offices at the pleasure of the

solicitor.

(Emphasis added.) Cincinnati Charter, Article IV, Section 5.

{¶18} Cincinnati’s charter provision involving the authority of the city’s chief

legal officer differs from Section 109 of Toledo’s charter. Cincinnati’s charter

provision uses the words “shall represent the city in all proceedings in court” instead

of “shall prosecute or defend suits for and in behalf of the City.” The word “represent”

in this context, however, means the solicitor has the power to determine the city’s

position. See City of Cuyahoga Falls v. Robart, 58 Ohio St.3d 1, 6, 567 N.E.2d 987

(1991) (“[T]he duty to represent the city” involves the “power to determine the city’s

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position.”). Considering the common meaning of the words, we conclude the power

to determine the city’s position in all proceedings in court is equivalent to the power

to “prosecute or defend suits for and in behalf of the City.”

{¶19} Moreover, like in Section 109 of Toledo’s charter, there is no language

in Article IV, Section 5, of Cincinnati’s charter directly limiting the authority of the

chief legal officer with respect to the officer’s representation of the city in lawsuits.

Thus, we construe Article IV, Section 5, of the Charter as affording the solicitor

discretion to file lawsuits on behalf of the city, even absent authorization by council.

{¶20} Admittedly, Article IV, Section 5, provides council with indirect control

over the solicitor’s exercise of discretion, because council controls the appropriations

for the solicitor’s office. (“The solicitor shall appoint his or her assistants and fix their

salaries, but the maximum number of assistants and the total amounts of the

assistants’ salaries shall be fixed by council.”) That indirect control is not an issue in

this case, because there is no evidence the solicitor has requested an appropriation to

pursue the R.C. 9.68 lawsuit, such as an appropriation to hire outside counsel.

{¶21} The trial court, when determining whether an abuse of power occurred,

adopted Brinkman’s position and construed Article IV, Section 5, of the Charter to be

silent on the issue of the solicitor’s authority to file lawsuits. The court then turned to

general and default state laws, R.C. 715.03 and 733.53, which it interpreted as

requiring the solicitor to obtain prior approval from city council before filing a lawsuit.

{¶22} We disagree with the trial court’s construction of Article IV, Section 5,

of the Charter. While there is a paucity of case law on the issue, we conclude that this

case is governed by the principles announced in Toledo and Fairlawn. The citizens of

Cincinnati, by adopting Article IV, Section 5, intended the city’s chief legal officer to

have discretion to institute lawsuits without the prior authorization of council.

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{¶23} Consequently, Brinkman failed to show an abuse of the municipal

corporate power to sue when the solicitor filed the R.C. 9.68 lawsuit without prior

authorization of council. Thus, the trial court erred when resolving the competing

motions for summary judgment in favor of Brinkman on the claim for injunctive relief.

Accordingly, we sustain the city’s assignment of error and reverse the order enjoining

the city’s solicitor from continuing with the R.C. 9.68 lawsuit.

III. Brinkman’s Appeal

{¶24} Brinkman’s assignment of error relates to his claim for declaratory

judgment. He argues the trial court erred by refusing to enter a judgment declaring

that city council, the legislative authority of the city, must grant authorization for the

solicitor to initiate any lawsuit by the city or on behalf of its officials.

{¶25} The trial court determined that Brinkman was limited to seeking

injunctive relief, specific performance, or a writ of mandamus in the taxpayer action,

because that is the relief specified in R.C. 733.56 through 733.58, the statutes upon

which taxpayer actions are based. See R.C. 733.59 (“If the village solicitor or city

director of law fails, upon the written request of any taxpayer of the municipal

corporation, to make any application provided for in sections 733.56 to 733.58 of the

Revised Code, the taxpayer may institute suit in his own name, on behalf of the

municipal corporation.”). Thus, the trial court refused to grant Brinkman declaratory

relief due to lack of standing, even though the trial court enjoined the city from

continuing with the R.C. 9.68 lawsuit due to the lack of prior authorization from

council.

{¶26} We have already held, when disposing of the city’s assignment of error,

that the city solicitor’s filing of the R.C. 9.68 lawsuit was not an abuse of municipal

corporate power, even though it was not approved by city council. Considering our

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resolution of that issue, any error by the trial court in concluding that Brinkman lacked

standing to obtain declaratory relief is harmless in this case. See Civ.R. 61.

Accordingly, we overrule Brinkman’s assignment of error.

IV. Conclusion

{¶27} Because Article IV, Section 5, of Cincinnati’s charter provides the city’s

solicitor with authority to file a civil action on behalf of the city and its officials without

prior authorization of council, we hold the trial court erred by granting injunctive relief

in this taxpayer action. We reverse the order enjoining the city from continuing with

the R.C. 9.68 lawsuit against the state of Ohio, and remand the cause for the trial court

to enter a judgment in favor of the city in the taxpayer action and for further

proceedings consistent with this opinion. In all other respects, we affirm the trial

court’s judgment.

Judgment accordingly.

ZAYAS, P.J., WINKLER and BOCK, JJ.

Please note:

The court has recorded its own entry on the date of the release of this opinion.

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