INTHE COURT OF COMMON PLEAS OF GREENE COUNTY, OHIO CIVIL DIVISION VIRGIL VADUVA, Plainttt + CASENO, 2010 CV 0209 a 2 JUDGE KESSLER CITY OF XENIA, et al, Defendants, DEFENDANTS' MEMORANDUM IN OPPOSITION TO PLAINTIFF'S REQUEST FOR ADDITIONAL RELIEF NOT SOUGHT IN HIS ORIGINAL MOTION FOR INJUNCTIVE Ri MOTION FOR LEAVE TO FILE INSTANTER Defendants, the City of Xenia, the Xenia City Couneil and the Xenia City Manager (colletvely refered t0 herein as “the City” or "Xenia", hereby submit the following ‘memorandum in opposition to Plaintiff, Virgil Vadva’s motion for order enjoining Defendants from paying Avakian Consulting. Defendants also request leave to file this memorandum, Instanter, because Plans reply memorendum in support of hs orginal motion request elie? not originally requested in the original motion, Specifically, Plaintiffs reply seeks a new order enjoining Defendants and the Greene County Boatd of Blestions (*GCBOE”) from placing the levy on the ballot, Plant cites no thority in support of such a request, and father, sich request cannot be ordered because the GCBOR is not a party to this lawsuit, Accordingly, this action must also be dismissed because Plain has filed to join required and necesary parties. And, a discussed below, Pati ites no law to support the relief he now seeksNo law cited by Pint allows for removal of the tax levy from the citizens ballots. ‘And, no lai ited by Plait vest his Cour fo hea such a matter Regardless, for the reasons more fll st forth in Defendants! memorandum previously ‘led, this aston i ilegally file, the Court lack jurisdiction over this easy and Pain lack the requisite standing to pursue this action, ‘Thus, Pl ffs motions must be denied and this action must be dismissed, I. REGARDLESS OF THE FORM IN WHICH PLAINTIFF CHOSE TO CAPTION THIS CASE, THE SUBSTANCE OF THIS ACTION IS A TAXPAYER ACTION UNDER RC § 733.59. Plaintiff now contends that this isnot a taxpayer action, and instead, he contends that this suit is a private action asserted on his individual behalf, However, even if this action was ‘characterizedin that manner, Plaintiff would lack standing as a private litigant on his own behall because he has not “suffered or is threatened with direct and conerete injury ina manner oF degree diferent from that suffered by the public in general!" Stare ex vel. Academy of Trial Lawyers », Sheward, 86 Ohio $1.34 481, 1999-Ohio-123; seo, also, Brown v. Columbus Cty Bd. of Bd., Oth Dist, App. O8AP-1067, 2009-Ohio-3230, {13 (holding that an individual clearly has no private standing to pursue an action where the party “has no direst personal stake in the ‘outcome of the controversy” and has “not suffered and [is] not threatened with any direct and ‘concrete injury in a manner or degree different from that suffered by the public in genera”. Plsimtif's alleged interest in this action is no different than any other Xenia taxpayer or resident. The substance of P ‘complaint is clearly a taxpayer action as evidenced by the only allegation regarding Plaintf's purported interes in this suit: Pain is& resident ofthe City of Xenia, is subject to and directly affected by current taxing authority, income tax levy and city‘management practices and methodologies created and enforced by the Defendants, (Complain, 45). Such allegation clearly shows no interest beyond the alleged shared interest of all residents and taxpayers of Xenia, As a result, Plaintiff has no individual private interest different than te interest of any other Xenia resident or taxpayer, Thus, Plaintiff has no standing ‘to pursue a private action in hs individual capacity, Instead, the only other authority under which Plaintiff could assert this action isto seek enforcement of a public right. As clearly held by the Ohio Supreme Court, “R.C. 733.56 to 733.61 * ** codify the publicright doctrine as to municipal corporations" Thus, regardless of ‘how Plaintiff himself incidentally chose to caption his complain, the substance ofthe complaint seeks the exact relief provided for in R.C. § 733.56, ef seq., and an action under such statutory framework is the only vehicle Plaintiff can use to seek to enjoin the alleged misappropriation of public municipal funds. Substance must prevail over form. ‘As result, the substance of this action is purported taxpayer action pursuant to RC. § 733.56, ef seq, requesting injunctive relief from the Court. (See Complaint §). Even if ‘construed asa private action asserting an individual right, Plaintiff would lack standing because his interests no preater than that of any other taxpayer of Xenia, Il. THIS ACTION IS ILLEGALLY FILED AND PLAINTIFF IS ENGAGED IN ‘THE UNAUTHORIZED PRACTICE OF LAW, Plaintiff contends that he has right fo pursue this action “pro se.” While non-attorney citizens “may represent [their] own personal interests by prosecuting or defending a legal ation without the aid of an attomey[,|” Plain is not representing his “own personal interest” in this, action. See Orlov Patterson (1961), 115 Ohio App. 181, alirmed in Ouo x Patterson (1962),173 Ohio St. 174, 175-176, Asset forth above his interest in this ation is no different than any other taxpayer or resident of Xenia, and therefore, the only vehicle under which this suit may be pursued is a taxpayer action, Because such action “must be of benefit to the public” and intituted “on bohalf of the municipal corporation,” “txpayoe who ie not licensed to pation ta may not act as his own attorney ina taxpayer's ation brought pusuant to Section 73.59, Revised Code.” Ud Because Phintifs purported interests no diferent than any oter taxpayer or resident of Xenia, he is not acting “pro se.” Instead, Paintif's involves a purported question of public interest, and itis the public that is the “real party in interest,” leaving PlainifT as imply a nominal party. See State ex rel, Nimon v. Village of Springdale (1966), 6 Ohio St2d 1, 5. IF there was truly a legitimate action to be had here, which there is not, but if there had been, the residents of the City of Xenia deserve and require to have their interests lawfully represented by competent, sensed counsel in the State of Ohi. Because Plans not an attomey admited to the bar of Ohi, he is unlawfully engaged in the unauthorized practice of law by seeking to represent the interests ofthe texpaying public ofthe City of Xenia. Thus, tis setion must be dismissed as unlawfly filed, II.PLAINTIFF LACKS STANDING TO PURSUE THIS ACTION AND THE, ‘COURT LACKS JURISDICTION OVER THIS MATTER. ‘Asset fort i more det Defendants previously fled memorandum, Pal tacks standing to pusue this ation under RC. § 733.59, and has filed to atherwise present evidence to support his standing to pursue this action, Plan sled to make a writen request othe City of Xenia law director before fing this purported taxpayer aeton as requited by RC. § 733.59. Phin has also filed allege in his complaint, and further filed to provide any evidence, thatsuch a writen request Would have been unavailing or futile. Further, Plaintiff has filed to meet the fundamental jurisdictional prerequisite of posting security as required by R.C. § 733.59 Accordingly, Plinlff lacks standing to pursue this action and the Court lacks jristieton to pence Plaintiff assers, with no actual evidence to support his assertion or legal authority supporting such a legat proposition, thatthe request requiement should be considered futile because of “time constraints presented by this ation. rsditional requirements, i, the courts ulimate authority to hear and determine an action, cannot be excused simply because Plains nepligely failed to propery invoke the jurisdiction ofthe cour, end where Paints discovery of such negligent failure occurs ata point where “ime is ofthe essence." In fact futility must be shown by evidencing actions taken bythe law dieotor preseding the filing of the purported taxpayer action, Jenkins w Eberhart (1991), 71 Ohio App.3d 351, 356-357. Plaintiff presents no such evidence, and in fact, the allegations in his complaint suggest no failiy. (Complaint, $27). Further, Plaintiff contends that the futility requirement is met because of inaction, i, the purported failure of the law director to take action on his own under R.C. § 733.56 before Plaintifs fling of suit. Plaintifs suggested proposition in this regard would render the request requitement in R.C. § 733.59 meaningless in af! taxpayer actions. Therefore, Plaimtift's ‘contention in that regard has no merit Finally, the Court also lacks juris ition because Plaintiff filed to give security for this action as required by R.C. § 733.59, and has further filed to inquire about the posting of security pursuant to that section, Paintift's reply memorandum fails to address this issue, and therefore,it should be deemed conceded. Plaintiff has failed to file security as required by R.C. § 733.59, ‘and has further failed to inquire about cost for such security Accordingly, forthe foregoing reasons, Plant lacks standing to pursue this aetion and the Covet has no jorkition to prant she elie requested hy Plaintif: Therefore, this action must be dismissed IV.THE CITY HAS ACTED LAWFULLY. Paints motion must also be denied on the merits because the City has acted lawl Paint cites no applicable Iw to suppor his contention thatthe City has acted unawfly Instead, Plaintiff generally cites RC. Title 35, and the only specie seton cited by Plain is RC. § 3517.18, which concems uses ofthe “Ohio Potitcal Panty Fund:” Further, the advisory «inion ited by Plan, and aac to his reply, has no applicability to this ation because, it too, concems the “Ohio Poical Party Fund” And, Plant cites no authority to provide the new relieThe seeks ~ removal of the levy from the ballot. ‘The Ohio Political Party Fund is a fund wit inthe state treasury comprised of “fall moneys received as @ result of individuals exercising the checkoff option on thei state income tax roturns{J" R.C. § 3517.16(A). Without belaboring the issue, R.C. § 3517.18 does not apply to the City of Xenia because the City is nota political party as defined in R.C. Chapter 3517, and ‘Xenia the Ohio Political Party Fund is not involved inthis case, Plaintiff's action here concen the alleged and unfounded claim thatthe City has missppropriated municipal finds. Thus, R.C. § 3517.18 and the advisory opini cited by Pi has no applicability to this With regard to the City's contract with Avakian, public entities possess inherent authority to expend money for the purposes of disseminating information. See State ex rel. Corrigan x:Seminatore (1981), 66 Ohio St2d 459. Thus, “even without express statutory authority, public ‘officials and public offices may be permitted to inform the public ofthe consequences that are ‘expected to follow from the passage or defeat ofa particular tax levy.” 1999 Ohio Atty.Gen.Ops, No, 99.030, 1999 Ohio AG LEXIS 20, frS. Accordingly, “if vx leuy will provide and Fr particular program, or ifthe defeat ofa tax levy will result in the inabi ty to fund a particular program, public officials may so inform the publi, either orally or in print.” Id. This is exactly ‘what the materials disseminated to the publie by the City do, Le, inform the public of the ‘expected consequences of a vole. Plaintiff alleges some conspiracy t0 disseminate materials expressly advocating a “yes vote, However, all of the information attached to his complaint fall squarely within the City’s inherent authority to inform and educate about the expected consequences of theit vote, Nothing te Yes" and with election day fess than a month away, and absentee voting on al issues already undervay, i ch materials exist, Pint should have no problem evidencing sich existence, He does no, because none exist. The materials at issue here simply inform citizens ofthe expected consequences ofa their vote and des nt speiially advocate a yes" or “io vot, and thus, fll squarely within Xenia’ inherent authority to inform and educate the public. Further, as set forth in Defendant previous memorandum, Xenia Ordinance 10-03 specifically authorizes the Xenia City Manager “Yo ener ito contact with Avakian Consulting of Columbus, Ohio, to provide publi elation end education services to the Cty of Xenia at rotto-exceed cost of $25,000.00 and waive the Ciy's normal purchasing procedures” See (Kenia, Ordinance No. 10 ~ 63). Further, the Xenia City Charter clearly allows the Couneil to“authorize, in specific eases, expenditures of the funds ofthe City in amounts exeeeding the limit hereinabove stated (87,500), without bidding, for the City, for personal and professional services” (Xenia Charter, Section 9.16). Thus, even absent inherent authority to expend such money, the City af Xenia has followed the procedures set forth in its charter and has provided for such expenditure by the passage of an ordinance. Id, Accordingly, there is no likelihood that Plaintiff ean succeed on the merits of this ation. ‘The City of Xenia has acted lawfully, and further, the contract with Avakian is lawful. Thus, Paints request must be denied CONCLUSION For the foregoing veasons, Plaintiff's complaint and subsequent motions should be dismissed because: (1) Plaintiff's complaint and subsequent motions were illegally filed and Plaintiff continues to knowingly be engaged in the unauthorized practice of law; (2) Plaintiff lacks standing to seck the relief requested because he has failed to request action pursuant to RC, § 733.59; (3) the Court lacks jurisdiction over this action because Plaintiff has filed to give the security required by R.C. § 723.59; and (4) Xenia's actions are fully lawful and fall squarely ‘within the City's inherent authority to disseminate informative and edueational materials regarding their plans, policies and proposals. Accordingly, Defendants request that tis action be dismissed ane that Plaintfs motions be denied,Respectfully submitted, Tynnette Dinkler (0065455) [ynnette@dlinklerpregan com DINKLER PREGON, LLC 2625 Commons Blvd. Suite A Dayton, OH 45431, (037) 426-4200 (866) 831-0908 (fax) Attorney for Defendants, City of Xena, Xenia City Council, and Xenia City Manager CERTIFICATE OF SERVICE, | hereby cetify that a true copy of the foregoing was served by first class mail, postage prepaid upon the followings Virgil Vaduva, pro se 1247 June Deive Xenia, OH 45385 this 9" day of Apri, 2010. TyanetteDinkler (0065455) Feat deispsepebintietie