COURT OF COMMON PLEAS HAMILTON COUNTY, OHIO CITY OF CINCINNATI exrel. Case NoTHOMAS E. BRINKMAN, JR., 2 Judge 7? Relator, as. v. MOTION FOR ISSUANCE U8 3 2*?3 OF INJUNCTION PURSUANT CITQF OF CINCINNATI, et al., TO R.C. 733.56 .- 1 Respondents. Now comes the CITY OF CINCINNATI, by and through Relator THOMAS E. BRINKMAN, JR., as a taxpayer and resident of the CITY OF CINCINNATI, and hereby moves, pursuant Ohio Rev. Code 733.56, for the immediate issuance of an injunction to restrain and estop the abuse of corporate powers by and in the name of the CITY OF CINCINNATI. Speci?cally, injunctive relief is need and statutorily mandated in order to restrain the abuse of corporate powers by PAULA BOGGS MUETHING, in her capacity as the Cincinnati City Solicitor, whereby she authorized the ?ling and prosecution of a lawsuit on behalf of and in the name of the CITY OF CINCINNATI and currently pending in the Hamilton County Common Pleas Court, styled City of Cincinnati v. State of Ohio, with Case NO. A-19-02786 (the 9.68 Lawsuit?), when the ?ling of such lawsuit on behalf of the municipal corporation was not authorized by the Cincinnati City Council. Ohio Rev. Code 733.56 provides, in pertinent part, that: city director of law shall apply, in the name of the municipal corporation, to a court of competent jurisdiction for an order of Injunction to .the abuse of [the] corporate powers [of the municipality]. ?All the cases construing this section hold that it is remedial in its nature, and should be given a liberal construction.? City of Wilmington v. Buckley, 86 Ohio App. 117, 118, 90 174 (lst Dist. 1949). Just as ?any unlawful exercise of power by [city] council, or the assuming of power by [city] council which is not conferred by the constitution or the statutes, is an abuse of corporate power,? Village of Warrensville Heights v. Cleveland Raceways, 116 837, 838 (8th Dist. 1954), so too is the assumption of power and authority by an of?cer or of?cial of a municipality when such power or authority is not vested in such of?cer or of?cial. Thus, ?[t]he abuse of corporate powers, within the purview of [Ohio Rev. Code 733.56], includes the unlawful exercise of powers possessed by the corporation, as well as the assumption of power not conferred.? Elyria Gas Water Co. v. City of Elyria, 57 Ohio St. 374, 375, 49 NE. 335 (1898). In the case sub judice, Respondent PAULA BOGGS MUETHING, in her capacity as Cincinnati City Solicitor, has ,sought to assume and exercise a power of the CITY OF CINCINNATI qua a municipal corporation beyond that authorized by law. Speci?cally, on June 6, 2019, the CITY OF CINCINNATI, at the behest of PAULA BOGGS MUETHING as Cincinnati City Solicitor, ?led a lawsuit against the State of Ohio, in the Hamilton County Common Pleas Court, in a case styled City of Cincinnati v. State of Ohio, and assigned Case No. (referred to herein as the 9.68 Lawsuit?). Verified Complaint 1l20. At no time has the Cincinnati City Council authorized or directed PAULA BOGGS MUETHIN as the Cincinnati City Solicitor to ?le the RC 9.68 Lawsuit by and in the name of the CITY OF CINCINNATI or as an of?cial-capacity lawsuit by and in the name of a official with the CITY OF CINCINNATI. Veri?ed Complaint 1[22. As a municipal corporation, the CITY OF CINCINNATI is a body politic and corporate, capable of suing and being sued. Ohio Rev. Code 715.01. And Ohio Rev. Code 715.03 expressly provides that All municipal corporations have the general powers mentioned in sections 715.01 to 715.67, inclusive, of the Revised Code, and the legislative authority of such municipal corporations may provide by ordinance or resolution for the exercise and enforcement of such powers. Ohio Rev. Code 715.03 (emphasis added). Thus, under state law, the authority to sue on behalf of a municipal corporation must be given by ordinance or resolution of the legislative authority; in the case sub judice, by the Cincinnati City Council. While Article IV, Section 5 of the Cincinnati City Charter provides that the Cincinnati City Solicitor ?shall represent the city in all proceedings in court?, said responsibility does not grant carte blanche power and authority to the Cincinnati City Solicit to commence legal proceedings in any court on behalf. Instead, such provision simply imposed and de?nes a duty of the Cincinati City Solicitor; it does not delegate the clear legislative prerogative to actually authorize the initiation of a lawsuit on behalf of and in the name of the CITY OF CINCINNATI. Furthermore, the authority to exercise the corporate power to sue is inherent in the legislative branch, the Cincinnati City Council, which may provide, by ordinance or resolution, the authority for an executive branch officer to direct or authorize the bringing of an action on behalf of the corporation. See Cincinnati City Charter, Article II, Section I legislative powers of the city shall be vested, subject to the terms of this charter and of the constitution of the state of Ohio, in the council?). And, in fact, there are numerous instances where the Cincinnati City Council expressly authorized the Cincinnati City Solicitor to bring actions on behalf of and in the name of the CITY OF CINCINNATI. Veri?ed Complaint, Exhibit C. The RC 9. 68 Lawsuit is not one of those instances. -3- In responding to the Taxpayer Demand Letter tendered by THOMAS BRINKMAN pursuant to Ohio Rev. Code 733.59, in the Response Letter, PAULA BOGGS MUETHIN cited to the authority given to her in Article Section 2 of the Cincinnati Administrative Code: The city solicitor shall be the legal advisory of the city government and all its agencies, and shall represent the city as attorney and counsel in all judicial proceedings in which the city is a party before any court or governmental commission having judicial power, and as such attorney may settle or compromise claims or suits at law or in equity to which the city may be a party, either by judgment entry or otherwise. Verified Complaint, Exhibit E. She then proceeded to declare that ?[t]his mean that City Council recognizes that the City Solicitor has the power to initiate, dismiss, or settle litigation on behalf of the City of Cincinnati.? Veri?ed Complaint, Exhibit E. In making such a declaration, though, PAUL BOGGS MUETHIN has impermissibly added language to the Cincinnati Administrative Code so as to assume a power not granted to her. While Article Section 2 of the Cincinnati Administrative Code does empower the Cincinnati City Solicitor to ?settle or compromise? lawsuits, nothing with the Cincinnati Administrative Code grants her carte blanche authority to initiate lawsuits; this is a distintion with a signi?cant difference. Finally, as PAULA BOGGS MUETHING noted in the Response Letter, Article II, Section 1 of the Cincinnati City Charter declares that ?[t]he laws of the state of Ohio not inconsistent with this have the force and effect of ordinance of the city of The Cincinnati City Charter does not address directly the authority to initiate lawsuit by and in the name of the CITY OF thus, state law, i. 6., Ohio Rev. Code 715.03, controls. And while the Cincinnati City Council has exercised its prerogative in certain speci?c instances, i. as set forth in Exhibit to the Verified Complaint, the Cincinnati City Council has not authorized the ?ling of the RC 9. 68 Lawsuit. Thus, in authorizing the filing and -4- continuing to prosecute the RC 9. 68 Lawsuit, PAULA BOGGS MUETHING, in her capacity as Cincinnati City Solciitor, has abused the corporate powers and, pursuant to Ohio Rev. Code 733.56, an injunction shall issue to retain such abuse. As an abuse of corporate powers of the CITY OF exists and continues to occur, the issuance of an ?order of injunction to abuse of [the] corporate powers [of the municipality]? pursuant to Ohio Rev. Co 733.56 is ted and mandated ?amma? (0i) 4 42)? LAW FIRM OF CU C. HARTMAN 73 4 Ridgepoint Drive, Suite 8 Cin innati, OH 45230 (513) 379-2923 Christopher P. inney (0038998) Brian C. Shrive (0088980) Finney Law Firm, LLC 4270 Ivy Pointe Blvd., Suite 225 Cincinnati, OH 45245 (513) 943-6655 Attorneys for Relator CERTIFICATE OF SERVICE I certify that a copy of the foregoing was or will be served upon the following on the 13pth day of August 2019, via e?mail: Peter Stackpole Deputy City Solicitor, City of Cincinnati 801 Plum Street, Room 214 Cincinnati, OH 45202 gov