BREAKING NEWS: Ohio Supreme Court issues order to Q expansion deal litigants

Court orders parties to file responses by this Friday

More Late-breaking News: Eric J. Brewer, Tony Madalone, Robert Kilo file more signatures hoping to get on ballot for Cleveland's Sept. 12 mayoral primary

The litigation to determine whether the voters of Cleveland are entitled to have a referendum on the Quicken Loans Arena expansion deal may be headed to a fast-track decision by the Ohio Supreme Court.

The Court this afternoon gave Cleveland Law Director Barbara Langhenry and Cleveland City Council Clerk Patricia Britt less than 48 hours to respond to a motion filed by five Cleveland voters on behalf of the more than 20,600 citizens who signed petitions asking for a chance to vote on the Q deal.

The Supreme Court case was initiated by Cleveland mayor Frank Jackson [through Langhenry] and Council president Kevin Kelly [Britt’s boss] last month. Jackson and Kelly, who both support the Q deal, filed the mandamus action, alleging that they did not know whether the referendum petitions should be accepted by the council clerk because the city charter provision ordering their acceptance was in apparent conflict with the fact that the city had already proceeded to act on the legislation the petitioners want to overturn.

The five Cleveland voters, acting on behalf of the petition signers, filed a motion with the Supreme Court on June . They want the Court to throw out the original suit. The petitioners argue the suit is “collusive” litigation cooked up by Jackson and Kelley to delay any referendum vote until after this year’s citywide municipal elections. Jackson and Kelly are both up for reelection, and all 17 council races are contested. Both the mayoral race and possibly as many as 14 of the council seats are slated for the September 12 primary.

Political observers suggest that were the referendum to be on the same ballot as the municipal elections, the increased turnout could very well jeopardize the reelection chances of the mayor and those council members who voted in favor of the Q deal.

The timing of the Court’s eventual ruling on the merits of this case thus becomes almost as important as its eventual decision. Generally speaking, the County Board of Elections orders ballots printed about 45 days in advance of an election. Should the Court rule that Britt must accept the petitions, and her office then finds at least 6,000 or so of them valid, city council would then either have to reverse its vote or put the issue before the voters. Theoretically, at least, if the Court were to rule in the voters’ favor in the next ten days or so, the referendum could come during the primary election, for which early voting starts August 15.

It would be speculation to infer that the Court’s order to all parties to expedite their responses to pending motions indicates a leaning in favor of one side or another. But it does seem to indicate the Court’s awareness that that the extraordinary remedies being sought by the parties have time-related consequences.

It should be noted that while the Jackson/Kelley argument that a referendum would impair contractual rights — the city signed an agreement with Cuyahoga County authorizing it to proceed with construction within hours of Jackson’s signing the enabling legislation — the County hasn’t yet issued the bonds to finance the work, undoubtedly because the potential for a referendum vote creates an uncertainty that bondholders would be unlikely to accept. This reality would seem to undermine the validity of the city’s already tenuous argument that the deal authorization was an emergency measure. All parties knew before the ordinance was passed that the referendum process provided for by city charter would be invoked.

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Meanwhile, the campaign watching continues with reports that three mayoral contenders — former East Cleveland mayor Eric Brewer, 2009 mayoral candidate Robert Kilo, and businessman Tony Madalone — each met today’s noon deadline to file additional signatures to qualify for September’s primary. They must now await petition checks to determine whether their names will appear on the September primary ballot alongside those of Jackson and five other previously validated mayoral candidates: Cleveland Councilmen Jeff Johnson and Zack Reed, state Rep. Bill Patmon, social entrepreneur Brandon Chrostowski, and Dyrone Smith.