Reply #49: It would appear that Mr. Malone is a homophobe as well [View All]

[paineinthearse]

http://www.ccv.org/images/Malone_v._Cincinnati_complaint.htm

IN THE COURT OF COMMON PLEAS

HAMILTON COUNTY, OHIO
CITY OF CINCINNATI ex rel. : Case No.:

SAM MALONE

1100 Fenmore Drive : Judge:
Cincinnati, Ohio 45237,
:

and
:

CITY OF CINCINNATI ex rel.
THOMAS E. BRINKMAN, JR. :
3215 Hardisty Avenue
Cincinnati, OH 45208, :
COMPLAINT FOR STATUTORY INJUNCTION

and :

CITY OF CINCINNATI ex rel.

MARK W. MILLER :
3630 Zumstein Avenue
Cincinnati, Ohio 45208, :
Plaintiffs, :
-vs- :

CITY OF CINCINNATI, :
801 Plum Street
Cincinnati, Ohio 45202, :

Defendant. :

_______________________________________
Now come Plaintiffs Sam Malone, Thomas E. Brinkman, Jr. and Mark W. Miller, and for their Complaint against Defendant City of Cincinnati (the “City”) state as follows:

INTRODUCTION
1. Plaintiffs bring this taxpayer action for an injunction under the authority of Ohio R.C. 733.56 and R.C. 733.59, which authorize taxpayers to institute a lawsuit against a municipal corporation in their own name, on behalf of the municipal corporation. Pursuant to those statutes, Plaintiffs request an injunction against the City enjoining the abuse of its corporate powers entailed by the recent enactment of the “Criminal Intimidation” ordinance, which enactment violates Article XII of the Charter of the City of Cincinnati.

PARTIES

2. Plaintiffs Sam Malone, Thomas E. Brinkman, Jr. and Mark W. Miller are taxpayers and residents of the City. Plaintiffs bring this action to enjoin operation of the Criminal Intimidation ordinance on behalf of the City and for the benefit of the public.

3. The City of Cincinnati is a municipal corporation created under the laws of the State of Ohio.

ALLEGATIONS

Article XII of the Cincinnati City Charter

4. The City exercises the powers of a home rule municipality pursuant to Article 18, Section 7 of the Ohio Constitution. The City’s home rule powers are governed by the Charter of the City of Cincinnati (“Charter”).

5. Article XII of the Charter provides, as applicable:

NO SPECIAL CLASS STATUS MAY BE GRANTED BASED UPON SEXUAL ORIENTATION, CONDUCT OR RELATIONSHIPS

The city of Cincinnati and its various Boards and Commissions may not enact, adopt, enforce or administer any ordinance, regulation, rule or policy which provides that homosexual, lesbian, or bisexual orientation, status, conduct or relationship constitutes, entitles, or otherwise provides a person with the basis to have any claim of minority or protected status, quota preference or other preferential treatment.

The Criminal Intimidation Law

6. On ­­­February 5, 2003, the Cincinnati City Council enacted Ordinance No. 32-2003 (the “Ordinance”). The Ordinance repealed former Section 908-3 of Division 908 of the Cincinnati Municipal Code and replaced it with an amended version, newly entitled “Criminal Intimidation.”

7. The text of the Ordinance, which took effect on March 5, 2003, provides:

(A) No person shall violate section 908-5, 908-7, 908-9, 908-11, 908-13, paragraphs (A)(3), (4) or (5) of section 908-15, or section 907-3 of the Municipal Code by reason of the actual or perceived race, color, religion, national origin, gender, disability or sexual orientation of another person or group of persons.

(B) Definitions

For the purposes of this section, the words and phrases used herein shall have the meanings respectively ascribed to them unless the context clearly indicates or requires a different meaning.

“Sexual orientation” shall mean an individual’s actual or perceived heterosexuality, homosexuality, bisexuality or transgendered status, by orientation or practice.

“Transgendered” shall mean the condition or state wherein a person manifests gender characteristics, behavior and/or self-identification typical of or commonly associated with persons of another gender, and which may be characterized by assumption of the clothes, hairstyles or cosmetic usage commonly associated with another gender and/or by the surgical or medical modification of primary sexual organs in order to assume the gender role of another sex both socially and sexually.

(C) Whoever violates this section is guilty of criminal intimidation, a misdemeanor of the first degree.

(Emphasis added.) A true and accurate copy of the Ordinance is attached at Exhibit A and made a part hereof.

8. The Ordinance violates the terms of Article XII, and Defendants in enacting and maintaining the operation of this Ordinance have abused the corporate powers of the City.

CLAIM FOR INJUNCTION

(Pursuant to R.C. 733.56 and R.C. 733.59)

9. Plaintiffs incorporate the allegations in Paragraphs 1 through 8 as if set forth fully herein.

10. R.C. 733.56 provides that when a municipal corporation abuses its corporate powers, “the 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 restrain the *** abuse of its corporate powers.”

11. R.C. 733.59 provides that if a taxpayer makes written request to the City Solicitor to pursue the injunctive relief provided in R.C. 733.56, and the Solicitor fails to make application for such relief, the taxpayer is authorized to institute a lawsuit for an injunction in his own name, on behalf of the municipal corporation.

12. On March 4, 2003, Plaintiffs through legal counsel sent a letter to City Solicitor J. Rita McNeil requesting that her office file a lawsuit in this Court seeking to have the operation of the Ordinance enjoined as a product of the City’s abuse of its corporate powers.

13. On March 14, 2003, Solicitor McNeil replied to Plaintiffs’ counsel in correspondence in which she declined to bring the lawsuit requested by Plaintiffs.

14. Pursuant to R.C. 733.59, Plaintiffs institute this suit for an injunction to enjoin the operation of the Ordinance as an abuse of the City’s corporate powers.

WHEREFORE, Plaintiff prays for judgment against Defendant and that the Court:

A. Adjudge, decree and declare the rights and other legal relations of the parties to the subject matter in controversy in order that such declarations shall have the force and effect of final judgment and that the Court retain jurisdiction of this matter for the purpose of enforcing the Court’s Orders;

B. Pursuant to R.C. 733.56 and R.C. 733.61, permanently enjoin Defendant from enforcing that portion of the Ordinance which violates Article XII of the Charter of the City of Cincinnati;

C. Pursuant to R.C. 733.61 and other applicable law, award Plaintiffs their costs and expenses incurred in bringing this action, including their reasonable attorneys’ fees; and

D. Grant such other and further relief as the Court deems equitable, just and proper. Respectfully submitted,
__________________________________

David R. Langdon (0067046)

Jeffrey A. Shafer (0067802)

Langdon & Shafer llc

11175 Reading Road, Suite 103

Cincinnati, Ohio 45241-1997

Telephone: [phone]

Facsimile: [phone]

Trial Attorneys for Plaintiffs Michael A. Carvin*

Jones Day
51 Louisiana Avenue, N.W.

Washington, D.C. 20001-2113

Telephone: [phone]

Facsimile: [phone]


* Pending Admission Pro Hac Vice