Council Weighs in on City’s Ballsy Legal Maneuver in Q Deal: Suing Itself

Neither side has a “slam dunk argument” in the Q Deal controversy, Cleveland.com reported last week, in a story that topped the PD Sunday edition’s front page. The case “could hinge on whether Cleveland’s charter is in line with the Ohio Constitution, and whether actions the city has taken after the legislation was approved on an emergency basis can check the right of repeal by citizens.”

This is correct. But what’s also apparent is that city leaders (Mayor Frank Jackson, Council President Kevin Kelley, the law department, perhaps others) have worked tirelessly to ensure that the citizens of Cleveland will not have a say on this issue, the proposed arena renovation that will commit otherwise unencumbered admissions tax revenue at the Q from 2023-2034, along with money from the county, Destination Cleveland, and the Cavs. The city referendum only concerns the city’s contribution. Taking the matter to the Supreme Court is an attempt to legally justify the circumvention efforts. It can only be explained in the context of the city’s desire to prevent a referendum.

The city has said the state Supreme Court must decide between two “equally valid” legal arguments, which are as follows:

1. The Clerk of Council must accept the referendum petitions, per her role as delineated in the City Charter.
   
2. The Clerk cannot accept the petitions, as a voter referendum would impair an already executed contract, per the U.S. Constitution’s Contract clause.

Scene invited every city councilmember to weigh in on the suit last week. (Correction: Scene did not solicit comment from Council President Kevin Kelley, as he had announced the suit alongside Mayor Frank Jackson and provided comment at the press conference earlier in the week). Many responded. Those who opposed the deal were, expectedly, critical of the city’s suit. Those who supported the deal claimed to support both the citizens’ right to referendum and council’s legal authority to pass legislation under emergency ordinance (which was sought, don’t forget, largely if not exclusively to speed up the process and prevent a referendum). Most of the Q Deal supporters, in similarly worded emailed responses, found the suit “wholly appropriate,” “completely appropriate,” or otherwise appropriate.

“The parties are in search of an equitable remedy to a constitutional issue with competing legal views,” wrote Councilman Martin Keane in a message essentially duplicated by councilman Brian Kazy. “I appreciate that the Law Department went straight to the Supreme Court of Ohio in the hopes, for parties to the action and all otherwise interested, of a swift and definitive order. Not being a party to the action I would hesitate to analyze further.”

Here’s a refresher on what happened: The Chandra law firm sent a letter to city law director Barbara Langhenry on May 26, four days after more than 20,000 signatures had been rejected by the Deputy City Council Clerk, Allan Dreyer. The Chandra letter asked that Langhenry compel Clerk of Council Pat Britt to accept the signatures (which is her job) or else face a lawsuit.

In response, the city announced that it would sue itself: The city law department filed a mandamus action against Pat Britt asking her to accept the signatures. At a press conference, both Council President Kevin Kelley and Mayor Frank Jackson (representing the opposing sides?) said that taking the issue to the Ohio Supreme Court would bring about a swift resolution. They described the suit as precisely what the opposition attorneys had requested.

The Chandra lawyers disagreed. If the city were serious about asking Pat Britt to do her job, they wouldn’t need to file a mandamus action to do so. Subodh Chandra told Scene last week that Kevin Kelley (for whom Pat Britt works) could have merely walked to her office and told her to accept the signatures. That would be that.

The current legal tactic can be read in a number of ways. On one hand, it attempts to prevent the Chandra Law Firm from taking part in the case. Frank Jackson explicitly acknowledged that this was so, though Subodh Chandra said that his firm intends to intervene. Additionally, it delays a decision on the issue. Despite Kevin Kelley’s claims of an “expeditious” resolution, one Akron lawyer whom Cleveland.com managed to contact said the process could take “months.”

That’s important because both Kelley and Jackson are also increasingly concerned, per opposition council members, about the effect of this case on their electability.

“They don’t want this on the ballot in September or November,” said Councilman Jeff Johnson, who is an opponent of the deal and is also running for Mayor. Johnson, in harsh language, called the lawsuit a “charade” and said it was indicative of “collusion in circumventing the City Charter.” He also said that this is being done at the expense of the project itself. Indeed, the current suit flies in the face of the the stated goals of the “emergency” designation: to expedite the county bond sale and the construction at the arena.

Zack Reed, another council member who opposes the deal and is running for Mayor, said that Frank Jackson, not Kevin Kelley, should be seen as the architect of the legal plot: Kelley was merely the Mayor’s “water boy.”

“The Mayor literally called this the best deal he’d ever seen,” Reed said, referencing a video Jackson made when he signed the ordinance into law. “If it’s so good, why is he afraid to take it to the voters of the City of Cleveland?”

Kevin Kelley has told Scene that a legal challenge on this issue was inevitable. That is almost certainly the case. There was always some question about whether or not the Q Deal legislation, passed as an emergency, could be subject to voter referendum. But according to Councilman Mike Polensek, that wasn’t for Kelley or the clerk to decide.

“If the boys with the fat checkbooks from Detroit wanted to oppose this then they would have an opportunity to take legal action once the petitions were certified,” he wrote. “For the Council Leadership to tell 20,000+ residents to “stick it” is outrageous.”

Councilmen Terrell Pruitt, Matt Zone and Tony Brancatelli all said they supported the deal, but also supported the referendum, provided there was no legal violation. Pruitt and Brancatelli, like Keane and Kazy, reaffirmed that they’d done their homework and genuinely believed the Q Deal was a benefit to Cleveland as a whole and to the neighborhoods they represented.

Fair enough. But the “legal violation” the referendum has been said to represent — per Allan Dreyer’s memo — is of the U.S. Constitution’s Contract Clause. It was said that the referendum would impair an already executed and binding contract (the Q Deal itself).

And in the words of the taxpayer demand letter: “It is unimaginable that the Contract Clause was intended to give government officials carte blanche to propose new laws against the will of the electorate and then rush into contracts in an effort to void the electorate’s statutory right to repeal those laws.”

If that’s not a legal slam dunk, it sounds like a moral one.

This article appears in Jun 7-13, 2017.