[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

ex rel. Langhenry v. Britt, Slip Opinion No. 2017-Ohio-7172.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2017-OHIO-7172

THE STATE EX REL. LANGHENRY, LAW DIR., ET AL. v. BRITT, CLERK.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State ex rel. Langhenry v. Britt, Slip Opinion No. 

2017-Ohio-7172.] 

Mandamus—Elections—Under the Cleveland City Charter, an emergency measure 

providing for the usual daily operation of a municipal department is subject 

to referendum—Clerk of the Cleveland City Council had a clear legal duty 

to verify the sufficiency of petition signatures—Relators have a clear legal 

right to compel performance of that ministerial duty—The right to seek 

repeal of a law by initiative is not an adequate remedy in the ordinary 

course of the law—Clerk and law director have adverse legal interests in 

this case—Writ granted.

(No. 2017-0753—Submitted July 26, 2017—Decided August 10, 2017.) 

IN MANDAMUS. 

________________ 

 
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KENNEDY, J. 

I. Introduction 

{¶ 1} Respondent, Patricia Britt, clerk of the Cleveland City Council (“the 

clerk”), rejected a referendum petition on the grounds that it would 

unconstitutionally abridge an existing contract. Relator, Barbara A. Langhenry, 

law director of the city of Cleveland, seeks a writ of mandamus to compel the clerk 

to determine the sufficiency of the referendum petition. We grant the writ. 

II. Facts and Procedural History 

{¶ 2} On September 15, 1992, the city of Cleveland and Cuyahoga County 

entered into a “Cooperative Agreement” relating to the “Gateway Arena Project” 

to construct, among other things, a new professional basketball arena. As part of 

the agreement, the county agreed to issue “Series 1992 Arena Bonds” to finance 

the cost of constructing the arena. The county also agreed to make the construction 

funds available to the Gateway Economic Development Corporation of Greater 

Cleveland (“Gateway”) through a revolving loan agreement. 

{¶ 3} To assist with the financing, the city passed Cleveland Ordinance No. 

324-92, exempting arena admissions proceeds from municipal taxation, so long as 

the Series 1992 Arena Bonds remained outstanding. The ordinance required 

Gateway to place in trust the amount it otherwise would have paid to the city in 

taxes, with those funds being used to service the bonds and with the excess payable 

to the city’s general revenue fund. 

{¶ 4} Twenty-five years later, on April 24, 2017, the Cleveland City 

Council adopted Cleveland Ordinance No. 305-17. The ordinance contained two 

relevant provisions. First, it added an admission-proceeds-tax exemption relating 

to new “Series 2017 Arena Bonds” issued by Cuyahoga County to finance 

renovations to the arena. The exemption, issued under similar terms and conditions 

as the original 1992 tax exemption, would remain in effect so long as the Series 

2017 Arena Bonds remained outstanding. Second, the ordinance authorized the 
January Term, 2017 

3

city’s directors of finance and law to enter into an amendment to the Cooperative 

Agreement. 

{¶ 5} The city council approved the ordinance as an emergency measure, to 

take effect immediately, by a vote of more than two-thirds of the members. 

Cleveland Ordinance No. 305-17 therefore became effective on April 25, 2017. 

{¶ 6} Also on April 25, 2017, the city, through its directors of finance and 

law, and Cuyahoga County executed “Supplemental Agreement No. 1” to the 

Cooperative Agreement. Supplemental Agreement No. 1 was based on the 

county’s issuance of Series 2017 Arena Bonds to finance improvements to the 

arena. This agreement recognized the city’s commitment to keep admissions 

proceeds exempt from taxation during the life of the Series 2017 Arena Bonds so 

long as the amount Gateway otherwise would have paid to the city in taxes is held 

in trust to service the bonds. 

{¶ 7} On May 22, 2017, the clerk received a petition for a referendum on 

Cleveland Ordinance No. 305-17. Upon receipt of the petition, the clerk did not 

determine the sufficiency of the signatures on the part-petitions. Instead, acting 

through her deputy clerk, she rejected the petition on the ground that repealing 

Cleveland Ordinance No. 305-17 “would unconstitutionally impair an already 

existing and binding contract.” 

{¶ 8} On May 26, 2017, Diane S. Bufford, Jennifer A. Blakeney, Verdia Y. 

Conner, Khalilah A. Worley, and Linda C. Robinson sent a letter to the law director, 

demanding that she exercise her authority to seek a writ of mandamus compelling 

the clerk to accept the petition. In response, Langhenry commenced the present 

complaint for a writ of mandamus. 

{¶ 9} On July 12, 2017, we denied motions to dismiss and issued an 

alternative writ of mandamus. ___ Ohio St.3d ___, 2017-Ohio-5799, ___ N.E.3d 

___. In the same order, we granted Bufford, Blakeney, Conner, Worley, and 

Robinson leave to intervene as relators. Id. 
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III. Legal Analysis 

A. The Law Director is Entitled to a Writ of Mandamus 

{¶ 10} To be entitled to a writ of mandamus, a relator must establish, by 

clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a 

clear legal duty on the part of the respondent to provide it, and (3) the lack of an 

adequate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth,

131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 6. Although this case 

primarily concerns the first two prongs—clear legal right and clear legal duty—the 

clerk also disputes the third element. 

{¶ 11} A writ of mandamus is not available if the relator has an adequate 

remedy in the ordinary course of the law. State ex rel. JobsOhio v. Goodman, 133 

Ohio St.3d 297, 2012-Ohio-4425, 978 N.E.2d 153, ¶ 15. The clerk contends that 

there is an adequate remedy available: opponents of the ordinance could attempt to 

repeal it by initiative. But “[t]he principle that mandamus will not lie where there 

is an adequate remedy in the ordinary course of the law signifies such latter remedy 

in the courts.” (Emphasis sic.) State ex rel. Conn v. Noble, 165 Ohio St. 564, 566, 

138 N.E.2d 302 (1956) (rejecting claim that the right of initiative was an adequate 

remedy at law). The relators in this case have no adequate remedy in the ordinary

course of the law. We therefore must consider whether they have shown the 

existence of a legal right and a legal duty. 

1. The right of referendum under the Cleveland City Charter 

{¶ 12} The constitutional right of referendum “ ‘ “amount[s] to a veto 

power, over enactments of representative bodies.” ’ ” State ex rel. LetOhioVote.org 

v. Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 18, quoting 

Eastlake v. Forest City Ents., Inc., 426 U.S. 668, 673, 96 S.Ct. 2358, 49 L.Ed.2d 

132 (1976), quoting James v. Valtierra, 402 U.S. 137, 141, 91 S.Ct. 1331, 28 

L.Ed.2d 678 (1971). The Ohio Constitution reserves to the people the right to 

referenda of laws passed by the General Assembly and provides that no law shall 
January Term, 2017 

5

go into effect for a period of 90 days following enactment, so as to allow time for 

a referendum. Ohio Constitution, Article II, Section 1c. However, there are certain 

categories of state laws to which the right of referendum does not extend, one of 

which is emergency laws that go into effect immediately. Ohio Constitution, 

Article II, Section 1d. 

{¶ 13} The Cleveland City Charter provision governing municipal 

referenda is significantly different. Under the charter, an emergency measure may 

address either of two contingencies: (1) it may be “for the immediate preservation 

of the public peace, property, health, or safety,” or (2) it may “provid[e] for the 

usual daily operation of a Municipal department.” Cleveland City Charter Section 

36. One category of emergency legislation is subject to the right of referendum, 

and the other is not: 

Ordinances passed as emergency measures for the immediate 

preservation of the public peace, property, health, or safety and 

providing for the refinancing of bonds, notes or other securities of the 

City shall not be subject to referendum. Otherwise, emergency 

measures shall be subject to referendum in like manner as other 

ordinances, except that they shall go into effect at the time indicated 

in the ordinances. 

Cleveland City Charter Section 64. 

{¶ 14} The first clause of Cleveland Ordinance No. 305-17 states, “[T]his 

ordinance constitutes an emergency measure providing for the usual daily operation 

of a municipal department.” By its plain language, Cleveland Ordinance No. 305-

17 is subject to referendum. 

 
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2. The authority of the clerk 

{¶ 15} The central question in this case is whether the clerk had the 

authority to reject the referendum petition. As a general rule, when reviewing the 

sufficiency of a petition, municipal legislative officials have limited discretion to 

assess matters of form and no authority to review matters of substance such as the 

legality of the proposed measure. See State ex rel. N. Main St. Coalition v. Webb, 

106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 30-31 (village clerk 

exceeded her authority by deciding that the initiative petition involved a subject 

that the village was not authorized to control by legislative action). 

{¶ 16} The Cleveland charter confers no greater discretion upon the clerk. 

“When [a referendum] petition is filed with the Clerk of the Council he shall 

determine the sufficiency thereof in the manner provided in this Charter for an 

initiative petition for an ordinance.” Cleveland City Charter Section 60. In 

accordance with Section 51 of the Cleveland City Charter, the clerk shall determine 

whether the petition has been signed by the required number of qualified electors. 

Cleveland City Charter Section 51. 

{¶ 17} The clerk suggests a number of reasons why it was within her 

discretion to reject the petitions. She argues that the petitions were untimely 

because the emergency ordinance had already gone into effect before they were 

filed, but she cites no authority for her proposition that a referendum petition must 

in all cases be filed before the ordinance goes into effect. Indeed, Section 64 of the 

Cleveland City Charter clearly contemplates that some emergency measures will 

be subject to referendum notwithstanding the fact that they take effect immediately. 

The final sentence of Section 64 even addresses what happens when an ordinance 

is rejected in a referendum after taking effect: 

If, when submitted to a vote of the electors of the City, an emergency 

measure be not approved by a majority of those voting thereon, it 
January Term, 2017 

7

shall be considered repealed as regards any further action 

thereunder; but the measure so repealed shall be deemed sufficient 

authority for payment in accordance with the ordinance, of any 

expense incurred previous to the referendum vote thereon. 

Rejecting the petition on the grounds that it was untimely would therefore have 

been an error and an abuse of discretion. 

{¶ 18} Alternatively, the clerk contends that she was within her rights to 

reject the referendum petition because Cleveland Ordinance No. 305-17 was an 

administrative measure and therefore not subject to referendum. The constitutional 

power of referendum applies to matters that municipalities are authorized to control 

“by legislative action.” Ohio Constitution, Article II, Section1f. When a city 

council acts in an administrative fashion, its resolutions and ordinances are not 

subject to referendum. State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 

140 Ohio St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 27. We need not reach the 

question whether the clerk has discretion to determine whether a measure is 

administrative because Cleveland Ordinance No. 305-17 is a legislative measure. 

{¶ 19} “The test for determining whether an action is legislative or 

administrative is ‘whether the action taken is one enacting a law, ordinance, or 

regulation, or executing a law, ordinance, or regulation already in existence.’ ” Id. 

at ¶ 30, quoting Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 

(1968), paragraph two of the syllabus. Stated differently, an ordinance that merely 

carries out the policy or purpose already declared by the legislative body is an 

administrative action. State ex rel. Citizen Action for a Livable Montgomery v. 

Hamilton Cty. Bd. of Elections, 115 Ohio St.3d 437, 2007-Ohio-5379, 875 N.E.2d 

902, ¶ 44. So, for example, approval of a development plan that comports with 

existing zoning regulations is administrative. State ex rel. Oberlin Citizens for 

Responsible Dev. v. Talarico, 106 Ohio St.3d 481, 2005-Ohio-5061, 836 N.E.2d 
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529, ¶ 27-28. But an amendment to the zoning code itself is a legislative act. See 

State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 168-169, 

685 N.E.2d 224 (1997). 

{¶ 20} In 1992, Cleveland City Council approved a tax abatement to help 

finance the construction of a downtown basketball arena. That abatement 

contained a sunset provision: it expired upon repayment of the Series 1992 Arena 

Bonds. The city did not, in 1992, obligate itself to pay for future renovations to the 

arena. Cleveland Ordinance No. 305-17 therefore represents the adoption of a new 

policy and a new undertaking: the refurbishment of the arena, financed by Series 

2017 Arena Bonds. City officials in 2017 had no legislative authority to enter into 

a new agreement with the county absent an enabling ordinance. We therefore 

conclude that Cleveland Ordinance No. 305-17 is a legislative measure and not an 

administrative one. 

{¶ 21} Finally, the clerk contends that she was correct to reject the 

referendum petition because it is unconstitutional. Whether the referendum is 

unconstitutional is a different question from whether the clerk has the legal 

authority to make that determination. To bridge the gap, the clerk posits a 

distinction between the referendum petition itself and the substance of the petition, 

claiming that she 

has not made a determination as to the legality or constitutionality 

of the substantive terms of the referendum petition or the Ordinance. 

Instead, [she] has applied a separate legal principle * * * to 

determine that the referendum petition itself, not the substance of 

the measure being initiated or the Ordinance that is sought to be 

repealed, violates the Contract Clause. 
January Term, 2017 

9

This proposed distinction finds no support in the Cleveland City Charter or the 

jurisprudence of this court. In fact, it conflicts with the rule that “the city council 

[cannot] assess the constitutionality of a proposal, because that role is reserved for 

the courts.” State ex rel. Ebersole v. Powell, 141 Ohio St.3d 17, 2014-Ohio-4283, 

21 N.E.3d 274, ¶ 6. 

{¶ 22} Ebersole v. Powell suggests that we should grant the writ of 

mandamus without reaching the constitutional question. See id. at ¶ 13-14. One of 

the amici, the Cavaliers Operating Company, L.L.C., argues that we should deny

the writ without reaching the constitutional question. 

{¶ 23} The Cavaliers urge the court to find that the referendum is a nullity 

because it seeks to repeal legal authorization of acts that have already been fully 

performed. Cleveland Ordinance No. 305-17 authorized city officials to enter into 

the Supplemental Agreement, and they have done so. According to the Cavaliers, 

therefore, there is nothing left for a referendum to invalidate. This argument rests 

on a false premise. Cleveland Ordinance No. 305-17 contained a second relevant 

provision, namely, the admission-proceeds-tax exemption in connection with the 

Series 2017 Arena Bonds. That provision has not been fully performed. Therefore, 

the Cavaliers mootness argument is not well taken. 

{¶ 24} The clerk had a clear legal duty to perform the ministerial function 

of her office—verifying the sufficiency of the petition signatures—and relators 

have a clear legal right to compel the performance of that duty. Relators are without 

an adequate remedy in the ordinary course of the law. We therefore grant the writ 

of mandamus. 

3. The constitutional claim 

{¶ 25} In light of the foregoing analysis, it is unnecessary to address the 

underlying constitutional question at this juncture. See Ebersole v. Powell, 141 

Ohio St.3d 17, 2014-Ohio-4283, 21 N.E.3d 274, at ¶ 13 (“The proper time for an 
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aggrieved party to challenge the constitutionality of the charter amendment is after 

the voters approve the measure, assuming they do so”). 

B. The Cleveland Director of Law Has Standing 

{¶ 26} None of the seven justices has expressed any disagreement with the 

premise set forth above: the clerk violated the Cleveland City Charter when she 

refused to carry out her ministerial duty. The dissenting justices would dismiss the 

case. They would hold that the law director and the clerk are not adverse parties. 

That, however, is not so. 

{¶ 27} The charter commands that when a city officer “fails to perform any 

duty required by law,” the law director “shall” make an application for a writ of 

mandamus. Cleveland City Charter Section 89. The clerk failed to perform a duty 

required by law when she refused to review the petition, so the law director was 

legally required to file this lawsuit. The law director would have been in violation 

of the charter if she had not done so. 

{¶ 28} The dissent seems to think that there is no adversity of interest 

between the parties because the director of law worked with the city council and 

the mayor on the deal to renovate the arena. But the issue before us is not whether 

the arena deal should go forward. The issue here is simpler: whether the clerk must 

determine the sufficiency of the petition and, if the petition is sufficient, allow the 

people to vote on the referendum. One may reasonably be in favor of both the arena 

renovation and providing citizens the opportunity to vote on the renovation. 

{¶ 29} Moreover, there is a genuine dispute in this case because the charter 

mandates that the law director file a mandamus action if the clerk fails to perform 

any of her duties. And here, the clerk has failed to perform a duty. The law director 

argues that the clerk must review the sufficiency of the petitions. The clerk argues 

that she does not have to complete this task because the proposed referendum is 

unconstitutional. Therefore, the law director and the clerk have adverse legal 

interests in this case. 
January Term, 2017 

11 

{¶ 30} In addition, the adversity requirement is met because in filing this 

mandamus action, the law director was defending a “public right,” and it has long 

been understood that “the people are regarded as the real party” in such a lawsuit. 

State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 5, 215 N.E.2d 592 (1966). 

{¶ 31} In reaching the opposite conclusion, the dissent relies on three cases 

that are highly distinguishable because none of them involves a director of law or 

her responsibility to ensure that an officer of a municipal corporation performs her 

public duty according to charter and statute. In State ex rel. Wood v. McClelland, 

a lawyer representing a mortgagor in a foreclosure action filed a writ of prohibition 

in his own name attempting to prevent the judge and magistrate in the underlying 

action from exercising jurisdiction over a count in the complaint. 140 Ohio St.3d 

331, 2014-Ohio-3969, 18 N.E.3d 423, ¶ 1-2, 10. In State ex rel. Lorain Cty. Bd. of 

Commrs. v. Lorain Cty. Court of Common Pleas, we granted a writ of prohibition 

preventing a common pleas judge from ordering the county commissioners to pay 

the sheriff to provide security for court operations, because no lawsuit had been 

filed between the commissioners and the sheriff. 143 Ohio St.3d 522, 2015-Ohio3704, 39 N.E.3d 1245, ¶ 2, 21, 26-27. Lastly, in Kincaid v. Erie Ins. Co., this court 

correctly held that when an insured has not actually presented a claim for expenses 

to an insurer for payment, “there is no actual controversy.” 128 Ohio St.3d 322, 

2010-Ohio-6036, 944 N.E.2d 207, ¶ 20. 

{¶ 32} One wonders what would happen if the dissent’s view carried the 

day. In this case, the intervenors sought to dismiss the law director’s lawsuit and 

to pursue their own taxpayer lawsuit. In moving to dismiss, the intervenors raised 

arguments similar to those advanced by the dissent today. The court voted six to 

one to overrule the intervenors’ motion to dismiss and allowed them to intervene in 

this lawsuit. ___ Ohio St.3d ___, 2017-Ohio-5799, ___ N.E.3d ___. As a 

consequence, the intervenors filed an application to dismiss their separate taxpayer 
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lawsuit, which this court granted. Cleveland ex rel. Blakeney v. Britt, ___ Ohio 

St.3d ___, 2017-Ohio-5832, ___ N.E.3d ___. 

{¶ 33} Imagine if the court now reversed course and, as urged by the 

dissent, dismissed the law director’s lawsuit. Almost certainly, the intervenors 

would refile the lawsuit they had dismissed. The Cleveland City Charter allows for 

a taxpayer lawsuit if after demand upon the law director, the law director fails to 

file a lawsuit. Cleveland City Charter Section 90. If the dissent’s view were 

adopted, we would have to figure out how to apply this provision. There are only 

two possible options. 

{¶ 34} One possibility is that we could say the taxpayers couldn’t pursue 

their lawsuit because the law director had not failed to file a lawsuit—indeed, the 

law director filed one and we dismissed it. This would be a literal reading of the 

charter. The result, though, would be that no one could challenge the clerk’s refusal 

to follow the law—not the law director because, in the dissent’s view, there wasn’t 

the requisite adversity and not the taxpayers because the law director had not failed 

to file a lawsuit. It’s the ultimate Catch-22: heads, the city wins; tails, the taxpayers 

lose. 

{¶ 35} The other possibility is that we could decide to ignore the “fail to 

file” requirement because we had dismissed the law director’s lawsuit. This 

scenario would at least preserve the rights guaranteed to taxpayers under the 

charter. But it would not get the opponents of the referendum what they want. 

Faced with such a lawsuit, we would have little choice but to grant the writ of 

mandamus: municipal clerks plainly don’t have the authority under Ohio law to 

decide if a referendum petition is constitutional. So under this scenario—if the 

dissent’s view were to carry the day—the result would be the same as the one 

reached by the majority today. All we would be doing is delaying the inevitable. 

 
January Term, 2017 

13 

Conclusion

{¶ 36} For the reasons stated above, we hold that relators are entitled to the 

requested writ of mandamus. 

Writ granted. 

O’NEILL, FISCHER, and DEWINE, JJ., concur. 

O’DONNELL, J., dissents, with an opinion joined by O’Connor, C.J., and 

French, J. 

_________________ 

O’DONNELL, J., dissenting. 

{¶ 37} Respectfully, I dissent. 

{¶ 38} Before this court will issue a writ of mandamus, the circumstances 

must demonstrate that the relator has a clear legal right to the relief prayed for, that 

the respondent is under a clear legal duty to perform the requested act, and that the 

relator has no plain and adequate remedy at law. State ex rel. Manley v. Walsh, 142 

Ohio St.3d 384, 2014-Ohio-4563, 31 N.E.3d 608, ¶ 18. “The writ of mandamus is 

not granted by right. It is a high prerogative writ, and its issuance rests in the sound 

discretion of the court.” Patton v. Springfield Bd. of Edn., 40 Ohio St.3d 14, 15, 

531 N.E.2d 310 (1988). 

{¶ 39} Nonetheless, this court only decides cases that present actual 

controversies. State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, 140 Ohio 

St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 44; Fortner v. Thomas, 22 Ohio St.2d 

13, 14, 257 N.E.2d 371 (1970). 

{¶ 40} And as we explained in State ex rel. Barclays Bank, P.L.C. v. 

Hamilton Cty. Court of Common Pleas, 74 Ohio St.3d 536, 660 N.E.2d 458 (1996), 

Actual controversies are presented only when the plaintiff sues an 

adverse party. This means not merely a party in sharp and 

acrimonious disagreement with the plaintiff, but a party from whose 
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adverse conduct or adverse property interest the plaintiff properly 

claims the protection of the law. Thus, we hold that the presence of 

a disagreement, however sharp and acrimonious it may be, is 

insufficient to create an actual controversy if the parties to the action 

do not have adverse legal interests. 

Id. at 542. 

{¶ 41} Here, the law director and the clerk are not adverse parties with 

adverse legal interests. Pursuant to Section 78 of the Cleveland City Charter, the 

law director serves at the pleasure of the mayor, and pursuant to Section 31, the 

council clerk serves at the pleasure of the city council. Thus, the law director and 

the council clerk each answer to people whose interests are aligned in favor of the 

arena renovation and in opposition to the referendum. The law director worked 

with the mayor and the city council—as required by Cleveland City Charter Section 

83—in enacting the tax exemption to secure financing for the arena renovation. 

Supplemental Agreement No. 1 to the Cooperative Agreement contains the 

endorsement by the law director as required by Section 83, and the law director, 

along with the finance director of the city of Cleveland, are signatories on behalf of 

the city. 

{¶ 42} When the petition seeking a referendum was presented to the clerk 

of the city council and the clerk refused to certify it, Cleveland City Charter Section 

89 required the law director to file an action in mandamus. That section provides: 

“In case any officer or commission fails to perform any duty required by law, the 

Director of Law shall apply to a court of competent jurisdiction for a writ of 

mandamus to compel the performance of such duty.” (Emphasis added.) 

{¶ 43} Nonetheless, the charter contemplates that the law director may be 

unwilling or unable to bring such an action, and it states in Section 90: 
January Term, 2017 

15 

In case the Director of Law, upon written request of any taxpayer of 

the City, fails to make any application provided for in the preceding 

three sections, such taxpayer may institute suit or proceedings for 

such purpose in his own name on behalf of the City. No such suit 

or proceeding shall be entertained by any court until such request to 

the Director of Law shall first have been made, nor until the taxpayer 

shall have given security for the costs of the proceedings. 

Thus, when the law director cannot or does not comply with Section 89, Section 90 

authorizes a taxpayer to institute a mandamus action if the taxpayer has asked the 

law director to institute an action and the law director fails to do so. 

{¶ 44} But here, the law director seems to have recognized that filing this 

mandamus action may have raised a conflict of interest, and she appointed outside 

counsel to represent both parties and then brought this action in her own name. 

However, the appointment of outside counsel does not change the fact that the 

named parties to this mandamus action lack adverse legal interests—outside 

counsel is not the party in this case but only an advocate with no standing to bring 

this action in its own right. See State ex rel. Wood v. McClelland, 140 Ohio St.3d 

331, 2014-Ohio-3969, 18 N.E.3d 423, ¶ 10 (“lawyers do not have standing to bring 

claims in their own names based on violations of their clients’ rights”). And 

without adverse parties to this litigation, there is no justiciable issue that this court 

can decide. 

{¶ 45} The majority confuses standing with the need for an adverse legal 

interest. After all, State ex rel. Nimon v. Springdale, 6 Ohio St.2d 1, 5, 215 N.E.2d 

592 (1966), on which it relies, is a taxpayer standing case. And although standing 

and an adverse legal interest are both necessary components of a justiciable case, 

they are different concepts—standing requires either a personal stake in the 

outcome of the controversy, Fed. Home Loan Mtge. Corp. v. Schwartzwald, 134 
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Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, ¶ 21, or the authority to sue 

created by legislation, Moore v. Middletown, 133 Ohio St.3d 55, 2012-Ohio-3897, 

975 N.E.2d 977, ¶ 48. 

{¶ 46} Section 89 of the Cleveland City Charter gives the law director 

standing to seek a writ of mandamus to compel an officer or commission to perform 

a duty required by law without having any personal stake in the controversy. But 

the existence of standing, by itself, does not demonstrate that the law director and 

the city council clerk in fact have adverse legal interests in this mandamus action. 

{¶ 47} In my view, the court ought not to wade into this morass, where the 

city is essentially suing itself to repeal legislation approved by the legislative 

branch—because it was enacted by the city council—and authorized by the 

executive branch—because it was signed into law by the mayor—all in an effort to 

invalidate a contract that the relator herself signed. This matter is analogous to 

State ex rel. Lorain Cty. Bd. of Commrs. v. Lorain Cty. Court of Common Pleas, 

143 Ohio St.3d 522, 2015-Ohio-3704, 39 N.E.3d 1245, in which the common pleas 

court ordered the county commissioners to appropriate funds to pay for security at 

the courthouse and another facility. In that case, we explained that the common 

pleas court had no authority to adjudicate the dispute between the county 

commissioners and the county sheriff; because the sheriff had not sued the 

commissioners, there were no adverse parties before the court and no justiciable 

controversy presented for decision. Id. at ¶ 2, 21. 

{¶ 48} Similarly here, the law director and the clerk are not adverse parties, 

there is no justiciable controversy for this court to decide, and this action should be 

dismissed. See Kincaid v. Erie Ins. Co., 128 Ohio St.3d 322, 2010-Ohio-6036, 944 

N.E.2d 207, ¶ 20. 

{¶ 49} I recognize that the taxpayers who circulated the referendum 

petitions have been permitted to intervene in this action. However, that does not 

save this case from dismissal. We determine justiciability as of the commencement 
January Term, 2017 

17 

of suit, and post-filing events, such as the substitution of the real party in interest 

for a party with no standing to sue, cannot cure a lack of justiciability at the outset. 

See Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, 979 N.E.2d 1214, at ¶ 24-

26, 38. These intervenors were not the parties that filed this action, and therefore 

they cannot make this nonjusticiable controversy retroactively justiciable. 

{¶ 50} The majority’s reliance on its forecast of a parade of horribles is 

nothing more than an “in terrorem” argument that the taxpayers may or may not be 

able to institute suit in their own names if the court were to dismiss this case, and 

its speculation that eventually the case might end up in the same place as proposed 

by the majority is contrary to our role as a court. After all, it is well-settled law that 

this court does not issue advisory opinions. State ex rel. LetOhioVote.org v. 

Brunner, 123 Ohio St.3d 322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 51; State ex rel. 

White v. Kilbane Koch, 96 Ohio St.3d 395, 2002-Ohio-4848, 775 N.E.2d 508, 

¶ 18, citing State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90 Ohio St.3d 

238, 242, 736 N.E.2d 893 (2000), and Egan v. Natl. Distillers & Chem. Corp., 25 

Ohio St.3d 176, 495 N.E.2d 904 (1986), syllabus. The predictive exercise is also 

highly unseemly because it reads like an advocate’s brief rather than an opinion of 

this court. 

{¶ 51} A thorough review of the facts of this case leads to the conclusion 

that there is no justiciable issue for this court to decide because the law director and 

the city council clerk lack adverse legal interests, and therefore I would dismiss the 

complaint. 

O’CONNOR, C.J., and FRENCH, J., concur in the foregoing opinion. 

_________________ 

Roetzel & Andress, L.P.A., Stephen W. Funk, and Leighann K. Fink, for 

relator. 

The Chandra Law Firm, L.L.C., Subodh Chandra, and Peter Pattakos, for 

intervening relators. 
SUPREME COURT OF OHIO

18 

Walter Haverfield, L.L.P., R. Todd Hunt, Aimee W. Lane, and Benjamin 

G. Chojnacki, for respondent. 

Mayle, Ray & Mayle, L.L.C., and Andrew R. Mayle, urging granting of the 

writ for amicus curiae Property Investor’s Network, Inc. 

Goldstein Gragel, L.L.C., Susan L. Gragel, and Richard L. Stoper Jr., urging 

denial of the writ for amicus curiae Building Laborers’ Union Local 310. 

Michael W. Deemer, urging denial of the writ for amicus curiae Downtown 

Cleveland Alliance and Greater Cleveland Sports Commission. 

Jason Hillman, urging denial of the writ for amicus curiae Cavaliers 

Operating Company, L.L.C. 

Calfee, Halter & Griswold, L.L.P., and James F. Lang, urging denial of the 

writ for amicus curiae Rick Chiricosta, Christopher M. Connor, Dr. Delos 

Cosgrove, Alexander Cutler, Carole Hoover, Chuck Jones, Jerry Kelsheimer, Bill 

Lacey, Ed Largent, A. Malachi Mixon III, Beth Mooney, Bernie Moreno, Merrick 

Murphy, Joe Roman, Matthew A. Ouimet, Albert Ratner, and Dr. Jerry Sue 

Thornton. 

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