VIDEO
CONCERNED CITIZENS OF NORTH CANTON
ON
- JUDGE HAAS DECISION
- COMPLAINTS ABOUT COUNCIL
- COST OF COUNCIL TO TAXPAYERS
- WE'RE NOT GOING AWAY
APPENDIX
THE HAAS OPINION
(without footnotes)
============
FULL COMMENTS
OF
OSBORNE'S
ATTORNEY
================
COLLECTION
OF
OSBORNE QUOTES
- SCPR Note: Judge Haas was as trial judge a key figure in the Ohio Supreme Court finding that Lake Township officials in the election of November, 2011 on the advice of legal counsel Charles Hall had not properly framed the issue whereby Lake Township was seeking to convert Lake's police department into a township-wide department.
In a recent editorial, probably "the worst editorial board" for a city newspaper the size of Canton (so the SCPR thinks) erroneously says that it will be 2017 before amendments can be done to North Canton's Charter.
Well, just take a look at this language from the Charter itself:
Section 6.04. Charter Review.And.
In January, 1967, and in January of each tenth year thereafter, the Council shall appoint a commission of fifteen (15) electors of the municipality who hold no other municipal elective or appointive office, except on advisory bodies of the municipality, as members of a Charter Review Commission. Such commission shall review the Municipal Charter, and within five (5) calendar months after such appointment, recommend to Council such alterations, revisions, and amendments, if any, to this Charter, as in the judgment of the Charter Review Commission are desirable. The Council shall cause the recommendations of the Charter Review Commission to be published in a newspaper of general circulation within the municipality on two successive weeks, and Council shall hold a public hearing on such recommendations within one week after the second publication thereof. Meetings of the Charter Review Commission shall be public meetings
Section 6.05. Amendments.
This Charter may be amended in accordance with the terms and provisions of the Constitution of the State of Ohio.To be sure, every ten years North Canton is mandated by the Charter to review its provisions via a body of review commissioners which council appoints.
Let's see if these editors have the journalistic maturity to publicly correct their error.
On second thought, maybe North Canton government should have Judge Haas issue a declaratory judgment on The Rep's interpretation of the Charter on when it can be amended.
Who knows? He may find a basis to side with the editors.
Could we be looking at:
This Charter may be amended [only in seven year intervals beginning from 1967] in accordance with the terms and provisions of the Constitution of the State of Ohio.
. . . .
The editors are mighty powerful people; at least in their own eyes, no?
Though Osborne's initiative passed by an overwhelming margin, Haas "got cutesy" in his opinion adopting the position of North Canton Law Director Tim Fox that the measure was invalid for running afoul of North Canton's Charter.
Currently, the Charter read thusly on the matter of compensation included "fringe" benefits (e.g. health care insurance):
The Council shall have the power to fix the compensation of its members and that of the Mayor, the Director of Administration, the Director of Finance, the Director of Law, officers of the municipality, of each job classification, and the members of any board of commission of the municipality, wither elected, appointed, or chosenlHaas got all hung up (for months of seemingly interminable deliberation) on the fact that in the cited Section 4.04 language whether or not the omission of the word exclusive from the phrase (where the SCPR puts three dots) had legal significance: The Council shall have the . . . power to fix the compensation . . .
In a strange piece of reasoning that the SCPR cannot follow, he says that in omitting "exclusive" from the phrase (reference the .... above) the framers of the Charter in legal effect made Council the exclusive authority to deal with matters of North Canton government compensation.
Wrap your heads around that one!
It could be that Haas is
Osborne says the he is going to appeal.
But do not count on a reversal!
Percentage wise, relatively few trial courts get reversed, even if they made some mistakes in getting to a decision.
The Report has word that the longstanding antagonistic battle between Citizen Osborne (a former councilman, probably going back pre-year-2000 days) and more recently the Concerned Citizens of North Canton (CCNC) will likely include not only Osborne's appeal but an amendment initiative (not necessarily by Osborne) on the matter of power of the electorate to deal with compensation of North Canton government employees (including, of course part-time council persons).
The amendment initiative could come as soon as 2015 and perhaps in a special election.
But only if the initiators get permission from The Repository Editorial Board.
Ha! Ha! Ha!
Only kidding editors. Journalism has to have humor to it, doesn't it?
Should the electorate approve the North Canton Charter being amended, then any North Canton elector can once again go to North Canton voters to ensure as a matter of the fundamental law of North Canton (subject only to superseding and Ohio and federal constitutional limitations) that the electorate (i.e. "the people" of North Canton) has the right to "ultimately" decide what the compensation for city officials will be.
While the SCPR thinks that Haas could have just have easily interpreted (and, found legal precedent justification) the Section 4.04 language of the North Canton Charter language on compensation to allow the people's decision of November, 2012 to stand; it appears that he is more a of philosophical "republican" (leadership by the few) than a "democrat" (participation of the many) when it comes to the fundaments of American government and therefore his decision was predictable.
It is surreal that in a democracy a vote of the people gets overturned on the flimsy basis of Haas' ruling.
The Supreme Court case Haas cites as legal justification for his North Canton decision dealt with a situation that NEVER MADE IT TO THE BALLOT.
Decisions like these should be - going forward - a strong factor as to whether or not to vote for John Haas or those of his seeming philosophical persuasion in future elections.
And decisions like this should give Ohioans "pause for thought" on Ohio Supreme Court Chief Justice Maureen O'Connor's desire for Ohio judges to be appointed rather than elected.
No, thank you!
Elected officials like Haas should be held accountable at the polls for overturning a vote of the people on what largely boils down to his difference of opinion with Osborne's attorneys over whether or not Section 4.04 requires that he in effect "judicially" insert the word "exclusive."
Does Haas' action sound just a tad like a case of judicial activism (i.e. legislating from the bench)?
This decision the SCPR thinks undermines democracy and gives aid and comfort to imperial types in government (e.g. North Canton law director Tim Fox?) to interpret against the peoples' right to participate or to know (public records) in the peoples' government.
It is getting nearly impossible to get day-in, day-out citizens to be involved in government at any level (even vote) and the SCPR thinks government officials like Haas and Fox are to blame.
The Report does not ever want to hear from the lips of either lamentations regarding ordinary people disdaining government.
Here the people have clearly spoken, but their choice is wiped out by the stroke of Judge Haas' pen.
It would be nice for a judge to err on the judge of democracy rather than as a thwart to democracy.
It appears to the SCPR that Haas is implying in referring to the "mirror" legislation to the passed citizen initiative ordinance amounts to "no harm, no foul."
Maybe he's not suggesting such. But if he isn't, why is that fact in his decision?
In promising to file an appeal, Osborne certainly is not assuaged by the reference.
Lamentations are not likely, especially from Fox.
If there ever is a person who - in the opinion of the SCPR - ill suited (by temperament and his apparent "anti-citizen" attitude) to be a public official, it is North Canton Law Director Tim Fox.
Reports of his applying for a Republican Party (i.e. Republican governor John Kasich) appointment to replace Stephen Belden (who resigned effective November 30th) as a Canton Municipal Court judge is just a tad scary to the SCPR.
Stark County already has enough of power mongering judges, for example:
- Dixie Park, Stark County Probate Court,
- Frank Forchione, Stark County Court of Common Pleas, and
- Eddie Elum, Massillon Municipal Court,
Stephen Belden was egregious enough in that regard.
For him to be replaced by the autocratic Tim Fox would be more of the same if not worse, the SCPR thinks.
Most local politicos that the SCPR talks to think that that a Fox appointment is not going to happen.
If it does, by chance, happen, there is general consensus that nearly any of the Democrats considering the race would be odds on favorites to defeat him in November, 2015.
And maybe, on second thought, that is a win-win for everybody?
Of course, in enabling North Canton's imperial acting law director, his supporters on North Canton Council share responsibility (to name names) for citizens opting out in increasing numbers (e.g. percentage of citizens registering and actually voting going down) of our democratic-republican processes.
No doubt about it!
North Canton government is broken when it comes to most of the councilpersons and the mayor being citizen-participation-friendly.
However, over time it could be that a group of hardy citizens (Concerned Citizens of North Canton) will prevail in fixing what ails North Canton government.
The SCPR sat down with two representatives of the CCNC yesterday and videotaped these reactions to the Haas decision, the group's overall mission vis-a-vis council and its durability.
REACTION TO THE HAAS DECISION
ARTICULATION OF CCNC EFFORT TO REIN-IN COUNCIL & SPECIFIC COMPLAINTS ABOUT COUNCIL
IF NORTH CANTON COUNCIL MEMBERS RESUME COVERAGE, THE COST TO NORTH CANTON TAXPAYERS
"WE'RE NOT GOING AWAY"
And, to repeat, Baughman and McCleaster tell the SCPR that CCNC's message to North Canton City Council and Law Director Tim Fox is: "We are not going away!"
Look for council as a whole and the mayor to do everything they can to stymie the CCNC effort.
North Canton City Council is the only hostile council in all of Stark County in relationship to any Dogwood City citizen that dares to question or disagree with a majority of them.
Only a replacement next November of four of the seven (pick any four) will change the culture of North Canton City Council.
APPENDIX
THE HAAS DECISION
This matter came on for consideration upon separate motion.
This action involves the validity of the Initiative Healthcare Ordinance passed by the voters of the City of North Canton in the General Election held on November 6, 2012. On March 28, 2014, North Canton initiated this action with the filing of a Complaint for Declaratory Judgment seeking a declaration that the Initiative Healthcare Ordinance is invalid.
The parties have filed stipulations leaving one disputed legal issue for the Court's consideration: whether the Defendants' initiative action is contrary to North Canton's Charter or whether the initiative ordinance is a valid and enforceable ordinance in the City of North Canton.
North Canton asserts that because the Defendants initiative action seeks to reduce or deny North Canton's elected officials' health care benefits, it conflicts with its Charter requirement that City Council shall set those compensation levels, which levels include health care benefits. Defendants, on the other hand, maintain that the Initiative Healthcare Ordinance is valid and enforceable municipal legislation.
It should be noted that, even though North Canton believes that the Charter conflict rendered the initiative action void, because it reflected the will of the electorate, North Canton enacted a mirror ordinance to repeal the initiative and enacted a mirror ordinance in its place. The parties have stipulated that North Canton's elected officials have not just reduced their health care benefits to comply with the mirror ordinance, all eight of them have completely waived North Canton-paid health care benefits for themselves and their families.
Declaratory Judgment
In order to obtain a declaratory judgment, a moving party must show the following essential elements: 1) a real controversy exists between the parties; 2) the controversy is justiciable in character; and 3) speedy relief is necessary to preserve the rights of the parties.
Given the facts as admitted in the pleadings and Joint Stipulations, the Court finds that all three elements have been met.
Initiative Healthcare Ordinance is Void
North Canton has been a charter municipality since November 8, 1960. The Charter specifically adopts and incorporates the provisions of the Constitution and laws
of Ohio regarding initiative petitions and setting compensation for council. The initiative provision contained in the Charter provides as follows,
(1) INITIATIVE. The electors of the municipality shall have the power to propose ordinances and other measures by initiative petition in accordance with the provisions of the Constitution and laws of Ohio nowThe initiative power is, without doubt, an important component of a democratic government. However, the power is not without limitation. It is a well-settled principle that that a municipal ordinance in conflict with its charter is void. This is true whether passed by the legislative body or initiated by the electorate. North Canton's Charter provides as follows:
or hereafter in effect. Article V, Section 5.07(1).
The Council shall have the power to fix the compensation of its members and that of the Mayor, the Director of Administration, the Director of Finance, the Director of Law, officers of the municipality, of each job classification, and the members of any board of commission of the municipality, wither elected, appointed, or chosen. Article IV, Section 4.04.
Defendants contend that because Section 4.04 does not say that Council shall have exclusive power, the power of both city council and the people to legislate compensation runs concurrent. The Court is not persuaded by this argument. North Canton's charter does not conflict with Ohio's statutes regarding City Council setting compensation levels and with initiative actions. Additionally, "[m]unicipal charters must be construed to give effect to all separate provisions and to harmonize them with statutory provisions whenever possible. In applying these principles, the Court finds that no ambiguity exists, and, even if there is an ambiguity, in harmonizing all provisions, it is clear that only council, as the legislative body, may set compensation for its members.
The Supreme Court of Ohio has spoken to the issues before this Court. In State ex rel. Werner v. Koontz, the Supreme Court examined an initiative petition for a proposed ordinance that five men filed with the City of Columbus Clerk of Council. The initiative petition contained provisions fixing a minimum number of officers, members, and employees of the fire and police departments and fixing their minimum salaries. After examining the initiative petition with respect to the Columbus Charter, the Court found that the charter provided that the city council shall fix the salary or compensation of council members, the mayor, and all other officers and employees. The Court found that "(I]t is perfectly plain that the designated proposed ordinance if adopted would be directly contra to the charter's compensation provision."
The Court held that the initiative was actually a proposed charter amendment, cloaked "under the guise of initiating and adopting and ordinance." The Court went on to say that any amendment to the charter could be effected only in the manner prescribed by the charter. Likewise, if the North Canton electorate wishes to amend the Charter, it may, but the proper procedure must be followed.
Based upon the foregoing, the Court finds that the Initiative Healthcare Ordinance is invalid because it conflicts with the North Canton Charter. Accordingly, it is hereby ORDERED, ADJUDGED, AND DECREED that Defendants' Initiative Healthcare Ordinance is void, ab initio. Because Defendants' remaining claims are contingent upon the validity of the ordinance, those claims are hereby DISMISSED.
This is a final appealable order and there is no just cause for delay.
EXTENDED COMMENTS BY OSBORNE'S ATTORNEYS
“We are, of course, disappointed that the Court elected not to uphold the rights of all citizens to exercise their right to initiate legislation and actively engage in the legislative process.
The Ohio Constitution reserves to the people the inherent right of self-government, so when the concerned citizens of North Canton proposed and the voters overwhelmingly approved legislation to address fiscal irresponsibility by permanently restricting the benefits available to city employees, the peoplenaturally expected that their will would be done.
North Canton, like most governmental entities today, views itself as a superior legislative authority over and above the citizens they purport to represent.
The Court has again sided with the government to suppress the inherent power reserved to the people by the Ohio Constitution. We no longer live in a government of the people, by the people and for the people, but rather a government of the politicians, by the politicians and, most importantly, for the politicians.
We are discussing with our client his appellate rights.”
A COLLECTION OF OSBORNE COMMENTS
The ruling by the court was rather pathetic, especially given the statewide importance of the question before the court, the constitutional issues that were at play here and the work invested by both sides in this case. Our arguments were not even addressed by the Court. Nine months and this is the best the courts can come up with. I intend to have my attorneys move ahead with an appeal.
I am stunned that a court would find it so easy to throw out an entire election.
SAD DAY IN NORTH CANTON FOR DEMOCRACY!
Attached is the Trial Court ruling released this morning on the validity of Health Care ordinance that was initiated by the citizens of North Canton and passed overwhelmingly 3 to 1 by the voters of North Canton in the November 2012 General Election. North Canton’s elected officials raised no objections during the initiative process and actually participated in placing the issue on the ballot. The ballot issue was known as Issue 5.
Fourteen months after the Stark County Board of Elections certified the vote and the Initiative became law, North Canton’s elected officials raised objections claiming citizens had no right to restrict health care benefits to part-time elected officials under the North Canton City Charter.
The proposed ballot language was filed with the City of North Canton on May 9, 2012. At that time, City Law Director Hans Nilges raised no objections. Long-time North Canton Law Director Roy Batista, appointed interim Law Director soon after petitions signatures were turned in to the City raised no such concerns.
On February 27, 2014, Mayor Held released the legal opinion of Law Director Tim Fox claiming the Initiative Health Care Ordinance violated North Canton’s City Charter.
Why did it take North Canton Elected Officials from May 9, 2012 until February 27, 2014 to makes these claims?
ONLINE COMMENTS
POSTED TO [REPOSITORY] DECEMBER 6, 2014, EDITORIAL TITLED:
"ITS BACK TO THE DRAWING BOARD IN NORTH CANTON"
This editorial is factually incorrect just as, I believe, the court was in throwing out an entire election and ruling against the citizens of North Canton.
North Canton’s charter does NOT limit changes to its charter to 10-year intervals as stated in the editorial.
Did the Repository Editorial Board totally forget last year’s charter amendment to make the office of Mayor a full-time position? It was Issue 13 on the ballot. This paper did cover the story in numerous reports, and later urged voters to reject the proposed change!
I might add that there is nothing magical about “council appoint[ing] a 15-member charter commission that can recommend to voters changes it believes are appropriate.” The recommendations are actually made to Council.
It fact there is a major downside to that process. Council can introduce politics and refuse to place Charter Commission recommendations on the ballot.
This happened to the Charter Review Commission in 1977 when Council refused to place one of the four recommendations of the Charter Commission on the ballot. Citizens collected signatures on an Initiative, which were validated, forcing Council to place the fourth recommendation of the Charter Review Commission on the ballot.
Government exists to serve the people. Not the other way around. The right of Initiative is a protected right under the Ohio Constitution. It is too bad that the trial court had no interest in asserting rights of the people that are provided for in Ohio’s Constitution and instead chose to throw out an entire election.
The City’s charter does say, “The Council shall have the power to fix the compensation of its members and that of the Mayor” but that statement is not exclusionary. Two previous North Canton Law Directors had no problem with the ballot issue before the current City Law Director came along.
The trial court offers one opinion. And it will be reviewed by judges who hopefully realize the significance of the issues raised in this case.
Thank you,
Chuck Osborne
ONLINE COMMENTS
POSTED TO [REPOSITORY] DECEMBER 6, 2014, EDITORIAL TITLED:
"ITS BACK TO THE DRAWING BOARD IN NORTH CANTON"
This editorial is factually incorrect just as, I believe, the court was in throwing out an entire election and ruling against the citizens of North Canton.
North Canton’s charter does NOT limit changes to its charter to 10-year intervals as stated in the editorial.
Did the Repository Editorial Board totally forget last year’s charter amendment to make the office of Mayor a full-time position? It was Issue 13 on the ballot. This paper did cover the story in numerous reports, and later urged voters to reject the proposed change!
I might add that there is nothing magical about “council appoint[ing] a 15-member charter commission that can recommend to voters changes it believes are appropriate.” The recommendations are actually made to Council.
It fact there is a major downside to that process. Council can introduce politics and refuse to place Charter Commission recommendations on the ballot.
This happened to the Charter Review Commission in 1977 when Council refused to place one of the four recommendations of the Charter Commission on the ballot. Citizens collected signatures on an Initiative, which were validated, forcing Council to place the fourth recommendation of the Charter Review Commission on the ballot.
Government exists to serve the people. Not the other way around. The right of Initiative is a protected right under the Ohio Constitution. It is too bad that the trial court had no interest in asserting rights of the people that are provided for in Ohio’s Constitution and instead chose to throw out an entire election.
The City’s charter does say, “The Council shall have the power to fix the compensation of its members and that of the Mayor” but that statement is not exclusionary. Two previous North Canton Law Directors had no problem with the ballot issue before the current City Law Director came along.
The trial court offers one opinion. And it will be reviewed by judges who hopefully realize the significance of the issues raised in this case.
Thank you,
Chuck Osborne
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