BY RON NUNNARI
Associate Editor
Independent 2/26/97
The Montgomery County Second District Court of Appeals issued a ruling in favor of the village of Clayton and Randolph Township, upholding the Montgomery County Common Pleas Court ruling that the Randolph/Clayton merger was in fact valid. The cities of Englewood and Union filed a joint lawsuit on Aug. 19, 1996 asking the court to declare the election null and void and that the statutes were unconstitutional because it denied Englewood and Union residents the right to vote on the merger.

In its 36 page unanimous decision, the court declared that the merger statutes did not permit the residents of Englewood and Union to vote on the merger, because the merger statues as adopted by the Ohio General Assembly specifically exempt municipal residents from voting on a merger involving an unincorporated township. In addition, the court held that such a provision did not deny Englewood and Union residents any Constitutional rights because the two cities had previously incorporated, and for the most part have removed themselves from the township.

In addition to challenging the election, Englewood and Union have also requested the trial court to split apart the Randolph Township Fire Department in order to divide its assets up among Englewood, Clayton and Union.

The trial court has awaited the court of appeals election ruling before proceeding with this facet of the lawsuit. On Friday the cities of Englewood and Union requested the court to expedite its hearing on this phase of the case.

Township officials have indicated that they vigorously oppose dividing up the fire department assets and are seeking to enter into a joint fire district agreement with Englewood and Union, or if unsuccessful in reaching an agreement, have indicated a possibility of presenting a joint fire district proposal to the members of each community this November by way of an initiative petition.

According to township officials, if an agreement is reached prior to the August 1997 election filing deadline, there will be no need for such a ballot proposal.

"We will respect the appeals court decision," said Englewood City Manager Eric Smith when contacted Friday regarding the court ruling. "Citizens of Englewood and Union are also citizens of Randolph Township and they felt like they should have been allowed to vote. They will be disappointed by the ruling. But the best thing we can do now is to consider the issue settled. Now we have to continue to look for responsible ways to deal with the changes the merger of Randolph Township and Clayton will require."

Smith pointed out that certification of the merger vote is only one half of the lawsuit. The other half pertains to preserving Englewood's and Union's right to a proportionate share of the fire department since the township will no longer exist.

Smith added, "Fire protection for the citizens of Englewood and Union can't wait and we are taking prudent steps to ensure that we maintain a high level of service. We will not permit the new city to walk away with our fire department. That is the issue."

Smith stated that it is unlikely Friday's court ruling will be appealed.

Randolph Trustee President Ted Gudorf stated, "The court of appeals decision affirms what we have said all along. The election was proper and legal and there was no basis for challenging it. Hopefully our opponents will stop spending hundreds of thousands of tax payers' dollars filing lawsuits and publishing personal attack newspaper ads.

"My number one priority is to hammer out a joint fire district agreement. The residents of Clayton, Englewood and Union have my personal commitment that I will do everything in my power to save our fire department."

"The people know that one fire department is substantially less expensive than two fire departments. A joint fire department will save our area millions of dollars and will provide for better quality fire and ambulance service than two separate departments.

In its 36 page ruling, the court stated, "The complaint demanded declaratory judgment regarding the following: (1) that the formation of the Merger Commission is invalid and void; (2) that the voters and electors of Randolph residing in Englewood and Union are entitled to vote on the merger issue; (3) that the actions of the Board of Elections of Montgomery County are illegal and unconstitutional because they failed to provide voters the right to vote on issues guaranteed by statute and the Constitution of the State of Ohio and to declare that the Merger Commission was illegally formed; (4) that the Merger Commission is illegal and its formation null and void; (5) that the petitions to establish the Merger Commission are void and that the results of the November 1995 elections establishing the Merger Commission are void; (6) that Ohio Revised Code 709.45 through 709.48 (the Merger Statutes) are unconstitutional; and (7) that Englewood and Union are entitled to an apportionment of the assets of Randolph if the merger occurred."

Randolph/Clayton filed motions to dismiss and/or for summary judgment. Englewood/Union filed a cross motion for summary judgment.

The trial court granted partial summary judgment in favor of Randolph/Clayton on Oct. 28, 1996. In its judgment entry, the trial court set forth its conclusions as follows: "(1) The plaintiffs have failed to follow the statutes and administrative remedies to protest the vote, and therefore, are not entitled to the relief requested. (2) Neither declaratory Judgment nor Injunction are the proper remedies. (3) Individual plaintiffs have no interest in the election and therefore, no cause of action against defendants' merger proposal and no right to vote on same. (4) The municipal entities of Englewood and Union are not township residents according to statute, and also are unable to vote."

The trial court found that the issue of allocation of Randolph assets was not ripe for review, as the merger might not be approved by the voters.

Englewood/Union argued that the trial court erred by granting summary judgment.

"This argument is premised on appellants' contention that the rules of statutory construction require that the "Merger Statutes" of Ohio Revised Code 709.45 through 709.48 be interpreted to permit their residents the right to vote on the issue of merger between Clayton and the unincorporated portions of Randolph Township. In the alternative, they claim that the statutes are unconstitutional."

The court ruling found these arguments "not persuasive."

The court stated, "To read the statutes as urged by appellants (Englewood/Union) strains common sense and is contrary to the expressed intent of the General Assembly. None of the statutory interpretations advanced by appellants are well-taken.

"Appellants have chosen to incorporate into cities, thereby adopting the municipal corporation form of self-govenment. By doing so, Union and Englewood have essentially decided that the corporations, not the townships, shall govern their residents. The appellants presumably incorporated in order to provide their citizens with more localized government services.

"The form of government that Union and Englewood have chosen is not the township form. The proposed merger will not change the fact that the appellants are municipalities, and it will not alter or abolish the form of government they have chosen."

In conclusion the court of appeals stated, "Because we conclude that the Merger Statutes do not allow the appellants to vote on merger, and we further conclude that the Statutes are constitutional, we affirm the judgment of the trial court. The order of this court enjoining the Board from certifying the results of the November, 1996, election is vacated, effective ten days after the filing of the judgment of this court."