[Cite as Osborne v. N. Canton, 2014-Ohio-3199.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

CHARLES OSBORNE 

 Plaintiff-Appellant 

-vsCITY OF NORTH CANTON 

 Defendant-Appellee 

JUDGES: 

Hon. William B. Hoffman, P. J. 

Hon. W. Scott Gwin, J. 

Hon. John W. Wise, J. 

Case No. 2013 CA 00246 

O P I N I O N 

CHARACTER OF PROCEEDING: Civil Appeal from the Court of Common 

Pleas, Case No. 2013 CV 02037 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: July 21, 2014 

APPEARANCES: 

For Plaintiff-Appellant For Defendant-Appellee 

ROBERT H. CYPERSKI TIMOTHY L. FOX 

1201 - 30th Street, NW Suite 102-B 145 North Main Street 

Canton, Ohio 44709 North Canton, Ohio 44720 
[Cite as Osborne v. N. Canton, 2014-Ohio-3199.]

Wise, J. 

{¶1} Appellant Charles Osborne appeals the November 22, 2013, decision of 

the Stark County Common Pleas Court granting Appellee City of North Canton’s Motion 

to Dismiss. 

STATEMENT OF THE FACTS AND CASE

{¶2} The Charter of the Municipality of North Canton ("Charter'') states that the 

"compensation of the mayor and each member of council shall be fixed at least thirty 

(30) days prior to the filing date of the nominating petitions for the terms beginning on 

the next succeeding first of December, and shall not be changed during the term of 

office or any part thereof.'' Charter Section 4.04, Salaries and Bonds.

{¶3} In addition to the City’s Charter, North Canton is also subject to the filing 

deadlines posed by the Stark County Board of Election. That relevant deadline herein 

required that Ordinance 47-13 be passed 90 days prior to the November 5, 2013, 

general election.

{¶4} With the combination of both the Charter and the Stark County Board of 

Election's deadlines, Ordinance 47-13 needed to be enacted at least 120 days prior to 

the November 5, 2013, general election to become effective.

{¶5} On July 8, 2013, Appellee City of North Canton's City Council passed 

Municipal Ordinance 47-13 to increase the compensation rate of the future mayor and 

future members of City Council.

{¶6} The Ordinance states that it establishes "the rates of compensation for 

elected officials of the City of North Canton, Ohio, effective December 1, 2013." It also 

states that it was enacted into law to establish the compensation rates for future elected 
Stark County, Case No. 2013 CA 00246 3 

officials effective December 1, 2013, and that the reason for its urgency was to meet the 

Stark County Board of Election's filing requirements for the November 5, 2013, General 

Election.

{¶7} The Ordinance was thereby enacted into law immediately upon the 

mayor's signature, and just prior to the Stark County Board of Election's and the 

Charter's filing deadlines.

{¶8} On August 5, 2013, Appellant Charles Osborne filed a "Complaint for 

Declaratory Judgment and Injunction" against North Canton in Stark County's Common 

Pleas Court alleging therein that the Ordinance is invalid because the reason for the 

declaration of the ordinance is not specified or is insufficient to justify a valid 

emergency, and that the "ordinance was passed under false premises of emergency 

legislation" to prevent the right of referendum.

{¶9} On September 3, 2013, Appellee filed a Motion to Dismiss pursuant to 

Civ.R. 12(B)(6).

{¶10} By Judgment Entry filed November 22, 2013, the trial court dismissed 

Osborne's complaint under Civ.R. 12(B)(6) for his failure to prove a set of facts entitling 

him to relief. The court found that the reasoning for North Canton's emergency 

measure: (1) was "stated with sufficient detail," (2) was "not conclusory, illusory, or 

tautological," and (3) that "council's ordinance took effect immediately upon its passage 

to satisfy the requirements of North Canton's Charter and the Stark County Board of 

Election's filing deadline, thus it satisfie[d] the immediacy requirement."

{¶11} Appellant now appeals, assigning the following error for review: 
Stark County, Case No. 2013 CA 00246 4 

ASSIGNMENT OF ERROR

{¶12} “I. THE TRIAL COURT ERRED IN CONCLUDING THERE WAS NO 

GENUINE ISSUE OF MATERIAL FACT IN DISPUTE AND THEREFORE ERRED IN 

GRANTING APPELLEE’S MOTION TO DISMISS. 

I.

{¶13} In his sole Assignment of Error, Appellant argues that the trial court erred 

in granting Appellee’s motion to dismiss. We disagree. 

{¶14} Appellant herein argues that Ordinance 47-13 is “not a valid emergency 

ordinance in that the reasons for the declaration of the ordinance as an emergency 

were not specified and/or were insufficient to justify an emergency and/or were not valid 

reasons for an emergency.” (Appellant’s brief at 6.) 

{¶15} The statutory referendum procedure is set forth in R.C. Chapter 731. R.C. 

§731.29 provides that, unless an exception in R.C. §731.30 is applicable, any ordinance 

passed by the legislative authority of a municipality can be the subject of a referendum 

election if a proper petition is filed with the city clerk within thirty days after its passage. 

The section further states that the clerk must transmit the petition and a certified copy of 

the ordinance to the board of elections. 

{¶16} As an exception to this procedure, R.C. §731.30 expressly states that an 

ordinance shall take effect immediately if it is an emergency measure which is needed 

to preserve the public peace, health, or safety of the municipality. This section also 

indicates that, before this exception can apply, the ordinance must set forth the basis of 

the legislative authority's determination that an emergency situation exists. 
Stark County, Case No. 2013 CA 00246 5 

{¶17} In relation to these requirements, the Supreme Court of Ohio has stated 

that, even though the merits of a legislature's emergency determination is not subject to 

judicial review, the issue of whether the legislation sets forth the basis of the decision is. 

State ex rel. Moore v. Abrams (1991), 62 Ohio St.3d 130, 132, 580 N.E.2d 11. 

{¶18} In Abrams, the Supreme Court stated that “[w]here an ordinance, passed 

by the council of a municipality, is declared to be an emergency in accordance with that 

municipality's laws and sets forth the reasons for the immediate necessity thereof, the 

legislative determination of the existence of an emergency is not reviewable by a court.” 

Id. at 132, 580 N.E.2d at 12, quoting Jurcisin v. Cuyahoga Cty. Bd. of Elections (1988), 

35 Ohio St.3d 137, 519 N.E.2d 347, paragraph three of the syllabus. The rationale for 

the rule is stated, in part, as follows: 

{¶19} “ ‘If there was in fact no emergency or if the reasons given for such 

necessity are not valid reasons, the voters have an opportunity to take appropriate 

action in the subsequent election of their representatives. However, the existence of an 

emergency or the soundness of such reasons is subject to review only by the voters at 

such a subsequent election of their representatives. They are not subject to review by 

the courts.’ ” Abrams at 132, 580 N.E.2d at 12, quoting State ex rel. Fostoria v. King

(1950), 154 Ohio St. 213, 220-221, 43 O.O. 1, 4-5, 94 N.E.2d 697, 701. 

{¶20} Specifically, the Supreme Court has held that a legislature's duty to state 

the reasons for the emergency is mandatory and that the failure to satisfy this duty will 

prevent the legislation from immediately becoming effective. Id. Strict compliance is 

required because: (1) the statement of reasons shows that a legislature fully considered 

the issue prior to declaring the emergency; and (2) the statement gives relevant 
Stark County, Case No. 2013 CA 00246 6 

information to the public. State ex rel. Emrick v. Wasson (1990), 62 Ohio App.3d 498. 

505, 576 N.E.2d 814. 

{¶21} To satisfy the “reason” requirement, a legislature cannot use conclusory, 

illusory, or tautological language; i.e., a legislature cannot simply state that the 

legislation must take effect immediately in order to protect the public peace, health, and 

safety. Moore. However, the courts of this state have also indicated that a prolonged 

explanation is not necessary. 

{¶22} For example, in Huebner v. Miles (1993), 92 Ohio App.3d 493, 636 N.E.2d 

348, the court held that it was sufficient for the legislature to state that the emergency 

legislation was necessary because the municipality needed additional revenues in order 

to continue to provide vital services. 

{¶23} Similarly, in City of Warren ex rel. Bluedorn v. Hicks, city taxpayers 

brought a lawsuit challenging the validity of ordinances passed by initiative, which had 

effectively reset pay levels for elected city officials below levels to which they had 

recently been raised by city ordinances. Upon review, the Court of Appeals held, inter 

alia, that the city acted within its authority by enacting ordinances granting pay 

increases for elective officials, effective for terms which had not yet begun. 

{¶24} In the instant action, North Canton City Ordinance No. 47-13 expressly 

stated that the ordinance had to take effect immediately “to meet the Stark County 

Board of Election’s filing requirements for the November 5, 2013, general election.” 

Under the foregoing authority, this statement was sufficient to inform the public of the 

basis of the North Canton City Council's decision. 
Stark County, Case No. 2013 CA 00246 7 

{¶25} We find that the reasoning for the emergency in the case at bar is stated 

with sufficient detail, and it is not conclusory, illusory, or tautological, in derogation of the 

rule set forth in Walsh v. Cincinnati City Council (1977), 54 Ohio App.2d 107, 111, 8 

O.O.3d 208, 210-211, 375 N.E.2d 811, 814. The preamble to the ordinance in this case 

states that the Ordinance was “declared to be an emergency measure necessary for the 

preservation of health, safety and peace of the City of North Canton and further 

necessary to meet the Stark County Board of Election’s filing deadline for the November 

5, 2013, general election” is sufficient. Abrams, 62 Ohio St.3d at 133, 580 N.E.2d at 13. 

Furthermore, the council's ordinance took effect immediately upon passage and thereby 

satisfied the immediacy requirement. See Walsh at 110-111, 375 N.E.2d at 813-814, 

citing State ex rel. Lipovsky v. Kizak (1968), 15 Ohio St.2d 27, 238 N.E.2d 777. 

{¶26} Therefore, because the city council satisfied the “emergency” exception in 

R.C. §731.30, the statutory referendum procedure was not applicable to the ordinance 

in question. Appellant’s sole Assignment of Error is overruled. 

{¶27} For the foregoing reasons, the decision of the Court of Common Pleas of 

Stark County, Ohio, is affirmed. 

By: Wise, J. 

Gwin, J., concurs. 

Hoffman, P. J., disssents. 

 

JWW/d 0702 
Stark County, Case No. 2013 CA 00246 8 

Hoffman, P.J., dissenting 

{¶28} I respectfully dissent from the majority opinion. 

{¶29} While I agree North Canton City Ordinance No. 47-13 expressly and 

sufficiently states the reasons why it was necessary to pass the ordinance as an 

emergency at to "when" it was passed; i.e., the time restrictions found in Charter 

Section 4.04 and the Stark County Board of Election's filing requirements - I find the 

Ordinance's declaration as to "why" it was passed as an emergency measure - that is 

that it was "necessary for the preservation of health, safety and peace of the City of 

North Canton" is conclusory, illusory and tautological. 

{¶30} Lest my dissent be misunderstood, I offer no opinion as to the merits of 

the enacted pay raises. I dissent because I find no enunciated nor proffered nexus 

between the enactment of the pay raises and the preservation of the public peace, 

health or safety of the City of North Canton, let alone why passage of the pay raises as 

an "emergency" was necessary to maintain the same. 

{¶31} The pay raise ordinance could have been proposed and adopted via the 

normal legislative process at an earlier time that would have satisfied the time 

restrictions of both Charter Section 4.04 and the Stark County Board of Elections. 

Failure to do so earlier had the effect of self-generating the reason for the purported 

emergency. The passage of the ordinance as an emergency measure effectively 

thwarted the ability to challenge the ordinance by referendum prior to the effective date 

of the pay raises. 
Stark County, Case No. 2013 CA 00246 9 

{¶32} I find no threat to the public health, safety and peace of the City of North 

Canton existed to justify passage of the ordinance as an "emergency" measure. 

 

 ________________________________ 

 HON. WILLIAM B. HOFFMAN