City of Englewood
333 W. National Road
Englewood OH 45379

and

Margaret Ballenger
6986 Salem Pike
Clayton, OH 45315

and

Roger Cox	Complaint for Declaratory Judgement
524 Snowglen Dr.	and Injunctive Relief
Englewood, OH 45322	Case No. 96-3455
	Judge.____________________

and

John B. Brinkman
333 Beckenham Rd.
Englewood, OH 45322

and

Helen Brinkman
333 Beckenham Rd.
Englewood, OH 45322

and

James V. Campise
7018 Stillmore Dr.
Englewood, OH 45322

and

Thomas J. Horan
317 Chris Dr.
Englewood, ON 45322

and

Judy Gerhard
201 S. Walnut St.
Englewood, OH 45322

and

Manuel Brown
106 McLaugnlin Dr.
Union, OH 45322

and

Alan Butler
215 W. Martindale Rd.
Union, OH 45322

and

Tom Hardwick
612 San Bernardino Trail
Union, OH 45322

and

Carol Hardwick
612 San Bernardino Trail
Union, ON 45322

and

Steve Roth
200 E. Martindale Road
Union, OH 45322

and

Eric Shafner
309 Lutz Dr.
Union, OH 45322

and

Dale Shields
714 W. Martindale Rd.
Union, OH 45322

and

Colette Shields
714 W. Martindale Rd.
Union, OH 45322

and

City of Union
118 N. Main St.
Union, OH 45322

Plaintiffs

The Village of Clayton
Clayton, Ohio 45315

and

Randolph Township
6996 Taywood Rd.
Englewood, ON 45322

and

Montgomery County Bd. Of Elections 14W. 4th St.
Dayton, ON 45422

and

Thomas J. Ritchie, Sr.
Chairman, Montgomery County
Board of Elections
14W. 4th St.
Dayton, ON 45422

and

Sue A. Finley
Member, Montgomery County
Board of Elections
14W 4th St.
Dayton, OH 45422

and

Doris A. Wilson
Member, Montgomery County
Board of Elections
14W. 4th. St.
Dayton, OH 45422

and

Patrick A. Flanagan
Member, Montgomery County
Board of Elections
14 W. 4th St.
Dayton, ON 45422

and

Lynda Hohnhorst
Director, Montgomery County
Board of Elections
14W. 4th St.
Dayton, OH 45422

and

Randolph Township/Village of Clayton
Merger Commission
6996 Taywood Road
Englewood, OH 45322

and

Joyce Marie Deitering
Merger Commission Member
Randolph Township Government Center
6996 Taywood Road
Englewood, OH 45322

and

Deborah A. Lieberman
Merger Commission Member
Randolph Township Government Center
6996 Taywood Road
Englewood, OH 45322

and

James T. Gorman
Merger Commission Member
Randolph Township Government Center
6996 Taywood Road
Englewood, OH 45322

and

James M. Longo
Merger Commission Member
Randolph Township Government Center
6996 Taywood Road
Englewood, OH 45322

and

Donald E. Imbus
Merger Commission Member
Randolph Township Government Center
6996 Taywood Road
Englewood, OH 45322

and

Janice Ward, Mayor
Village of Clayton
Merger Commission Member
Municipal Building
235 E. Salem
Clayton, OH 45315

and

Stephen C. Gross
Merger Commission Member
29 Water St.
Clayton, OH 45315

and

Robert E. Peters
Merger Commission Member
390 N. Diamond Mill Rd.
Clayton, OH 45315

and

Donald Hutchinson
Merger Commission Member
79 W. Salem
Clayton, OH 45315

and

John J. Beattie, Jr.
Merger Commission Member
495 E. Salem
Clayton, OH 45315

and

Attorney General Betty Montgomery
30 E. Broad St.
Columbus, Ohio 43215

1. Plaintiff City of Englewood (hereinafter `Englewood") is a charter municipality under the Ohio Constitution, Article XVIII, which exists inside the boundaries of Randolph Township, Montgomery County, Ohio. By reason of being located within the boundaries of Randolph Township, the City receives certain Township services, including fire and EMS protection.

2.Plaintiffs Margaret Ballenger, Roger Cox, John Brinkman, Helen Brinkman, James V. Campise, Thomas J. Horan and Judy Gerhard are individuals residing in the City of Englewood, Randolph Township, Montgomery County, Ohio, and are qualified electors of both the City of Englewood and Randolph Township.

3.Plaintiff City of Union (hereinafter "Union") is a charter municipality under the Ohio Constitution, Article XVIII, which exists in part inside the boundaries of Randolph Township, Montgomery County, Ohio. By reason of being located within the boundaries of Randolph Township, the City receives certain Township services, including fire and EMS protection.

4.Plaintiffs Manuel Brown, Alan Butler, Tom Hardwick, Carol Hardwick, Steve Roth, Eric Shafner, Dale Shields and Colette Shields are individuals residing in the City of Union, Montgomery County, Ohio, and electors in both the City of Union and Randolph Township, Ohio, having a right to vote for issues affecting Randolph Township and the City of Union.

5.Defendant Village of Clayton (hereinafter "Clayton") is a village under the Ohio Constitution Article XVIII, and state statutes which exists inside the boundaries of Randolph Township, Ohio.

6. Defendant Randolph Township (hereinafter "Township") is a political subdivision of the State of Ohio in Montgomery County, Ohio as set forth in Article X of the Ohio Constitution and Title 5 of the Ohio Revised Code, which township includes both un-incorporated areas and incorporated areas within its boundaries.

7.Defendant Montgomery County Board of Elections (hereinafter "Board of Elections") is the governmental entity charged with the responsibility of conducting and overseeing elections in Montgomery County, Ohio.

8.Defendants Thomas J. Ritchie, Sr., Sue A. Finley, Doris H. Wilson, and Patrick A. Flanagan are the duly appointed and acting members of the Board of Elections of Montgomery County.

9.Defendant Lynda Hohnhorst is the Director of the Board of Elections of Montgomery County, Ohio.

10.Defendant The Randolph Township/Village of Clayton Merger Commission (hereinafter "Merger Commission") is an entity established under §709.43, et seq. of the Ohio Revised Code, which Merger Commission was established at the General Election held in Montgomery County, Ohio in November of 1995. The Commission has the duties and authority, among other things, to establish the potential terms and conditions for merger of the Village of Clayton and Randolph Township.

11.Defendants Joyce Marie Deitering, Deborah A. Lieberman, James T. Gorman, James M. Longo, Donald E. Imbus, Janice Ward, Stephen C. Gross, Robert E. Peters, Donald Hutchinson and John J. Beattie, Jr. are the current members of the Randolph Township(Village of Clayton Merger Commission.

12.Defendant Attorney General Betty Montgomery is the duly elected attorney general in the State of Ohio and may have an interest in this action and is named in this action pursuant to §2721.12, Revised Code.

13.The incorporated territory of the Cities of Englewood and the Village of Clayton lie completely within the boundaries of Randolph Township, and the incorporated area of the city of Union lies partly in Randolph Township.

14.This action is brought in pant pursuant to Chapter 2721 of the Ohio Revised Code and Rule 57, Ohio Rules of Civil Procedure.

COUNT ONE

15.Plaintiffs restate, re-allege and incorporate by reference the allegations contained in paragraphs 1 through 14, as if fully rewritten herein,

16.In the early pant of 1995, Defendants Joyce Marie Deitering, Deborah A. Lieberman, James T. Gorman, James M. Longo, Donald E. Imbus, Janice Ward, Stephen C. Gross, Robert E. Peters, Donald Hutchinson and John J. Beattie, Jr., among others, circulated in the Village of Clayton and in the un-incorporated area of Randolph Township a petition for signatures seeking to form a Merger Commission for the purpose of studying a merger between the Village of Clayton and Randolph Township. The petitions claiming the Village of Clayton and Randolph Township were adjacent were addressed to the Montgomery County Board of Elections and stated, among other things, that the undersigned signers were "qualified electors of the political subdivisions of the Randolph Township and Village of Clayton" who respectfully petitioned the Board of Elections of Montgomery County, Ohio to submit to the electors of each political subdivision, according to law, the Following (sic)question, to wit: "Shall a commission be chosen to draw up a statement of conditions for merger of the political subdivisions of the Randolph Township and the Village of Clayton." The resulting signed petition, containing numerous part petitions, was flied with the Defendant Montgomery County Bd. of Elections, purportedly under §709.45 of the Ohio Revised Code.

17.Pursuant to §709.45 of the Ohio Revised Code, petitions seeking to establish a merger commission to study the condition of merger of political subdivisions:

...shall contain signatures of electors of each municipal corporation or of each municipal corporation and the unincorporated area of the township proposed to be merged and the signatures of electors of the municipal corporation with which merger is proposed, numbering not less than ten percent of the number of electors residing in each such political subdivision who voted for the office of governor at the most recent general election for such office. (Emphasis added.)

18.The political subdivisions sought to be merged were Randolph Township and the Village of Clayton.

19.Contrary to the petition and the applicable statutes, the merger petition did not contain ten (10) percent of the electors of Randolph Township. The electors of Randolph Township who reside in the City of Union and the City of Englewood were not counted towards the maintenance of the ten (10) percent majority necessary to begin the formation of the Merger Commission.

20.The Board of Elections erroneously and illegally determined that there were sufficient signatures to place the issue of whether or not a commission should be chosen to draw up a statement of conditions for merger of the political subdivisions of Randolph Township and the Village of Clayton.

21.The failure to follow §709.45 of the Ohio Revised Code and the failure of the petition to have ten percent of the total number of the electors of the subdivision sought to be merged makes the formation of the Merger Commission void and of no effect.

COUNT TWO

22.Plaintiffs herein restate, reallege and incorporate by reference the allegations contained in paragraphs 1 through 21 as if fully rewritten.

23. A petition purporting to meet the requirements of §709.45 of the Revised Code seeking to merge the Village of Clayton with Randolph Township was filed with the Board of Elections of Montgomery County, Ohio.

24.The political subdivisions sought to be merged in, the petitions filed with the Board of Elections were Randolph Township and the Village of Clayton.

25.Section 709.45 of the Ohio Revised Code requires that if a petition for merger is deemed sufficient by the Board of Elections of the county in which the petition is to be filed, then the Board of Elections shall submit the question

"Shall a commission be chosen to draw up conditions for merger of the political subdivisions of _______________,______________ and _________________ '?" for the approval or rejection of the electors of each political subdivision proposed to be merged and the electors of the municipal corporation to which merger is proposed at the next general election.

26.The Montgomery County Board of Elections has jurisdiction over merger petitions of entities within Randolph Township, Montgomery County, Ohio. Contrary to the provisions of §709.45, of the Ohio Revised Code, the Montgomery County Board of Elections certified the petitions and submitted the question of whether or not the merger commission should be drawn up to study conditions of merger of the Village of Clayton and Randolph Township in the general election of 1995, only to the electors in the unincorporated area of Randolph Township and the incorporated area of the Village of Clayton. The Board unlawfully and illegally failed to allow the electors of Randolph Township, the governmental entity sought to be annexed that resided in the cities of Englewood and Union to vote on the issue.

27.Manuel Brown, Alan Butler, Tom Hardwick, Carol Hardwick, Steve Roth, Eric Shafner, Dale Shields, Colette Shields, Margaret Ballenger, Roger Cox, John Brinkman, Helen Brinkman, and Judy Gerhard are electors of both Randolph Township and the respective cities of Union and Englewood.

28.At the election in November, 1995, electors Manuel Brown, Alan Butler, Tom Hardwick, Carol Hardwick, Steve Roth, Eric Shafner, Dale Shields, Colette Shields, Margaret Ballenger, Roger Cox, John Brinkman, Helen Brinkman, and Judy Gerhard were not permitted to vote on the issues of the formation of the merger commission, even though they were at the time qualified electors of Randolph Township.

29.The failure of the Board of Elections to allow the electors of Randolph Township within the City of Englewood and the City of Union to vote on whether or not a merger commission should be formed is contrary to law and invalidates the vote to form a merger commission to study and report on the conditions of merger for the Village of Clayton and Randolph Township and deprives the Plaintiffs Margaret Ballenger, Roger Cox, John Brinkman, Helen Brinkman, Judy Gerhard, Manuel Brown, Alan Butler, Tom Hardwick, Carol Hardwick, Steve Roth, Eric Shafner, Dale Shields, and Colette Shields of their statutory and constitutionally granted right to vote,

COUNT THREE

30.Plaintiffs herein restate, reallege and incorporate by reference the allegations contained in paragraphs 1 through 29 as if fully rewritten.

31.The City of Englewood and the electors of Randolph Township within the City of Englewood and the City of Union and the electors of Randolph Township in the City of Union receive their fire protection and emergency medical protection from Randolph Township. The electors in the incorporated areas of the City of Englewood and the City of Union vote for Township trustees and support the Township with property taxes, fire levies and emergency medical service levies and other services from Randolph Township.

32.On or about the 8th day of August, 1996, the Merger Commission for the merger of Clayton and Randolph Township filed with the Board of Elections of Montgomery County its final report of the Commission determining the terms upon which Randolph Township and the Village of Clayton would merge.

33.The terms and conditions of merger adopted by the Merger Commission specifically recognize that the Randolph Township Fire Department "has been and continues to be responsible for fire fighting, fire prevention, emergency medical and related services in and for the political subdivisions of Randolph Township, Village of Clayton, City of Englewood and City of Union."

34.While recognizing that the Randolph Township Fire Department provides fire protection for incorporated areas of Englewood and Union, the Merger Commission recognizes that the fire department, supported by all of Randolph Township, both inside and outside the incorporated areas, will be merged into the Village of Clayton, leaving the City of Englewood and the City of Union and the electors of both without a fire or emergency medical service by operation of the conditions of the proposed merger and by law. While recognizing that fire and emergency medical protection is desirable for all of the governmental units within Randolph Township, the establishment of a joint fire district or similar structure, although highly desirable, is not a "condition of merger."

35.The City of Englewood and the City of Union, by reason of their status as political entities within the State of Ohio, have a real and current interest, duty and obligation to provide fire and emergency medical service to the citizens of the Cities of Englewood and Union, and have an interest in the continued existence of Randolph Township and the Randolph Township Fire Department, which all of the electors of Randolph Township paid for and support..

36.On information and belief, Plaintiffs allege that, but for a ruling of this court, the Board of Elections will submit the issue of whether or not the merger terms and conditions will be accepted, to be voted upon only by the electors in the unincorporated area of Randolph Township and the incorporated area of the Village of Clayton and will not provide the electors of Randolph Township within The City of Englewood and within the City of Union with an opportunity to vote on the merger conditions.

37.Depriving the electors within Randolph Township who reside in Englewood and Union the right to vote on the issue which affects the entire township and will impair the safety, health and welfare of not only the individual electors of Englewood and Union, but also the rights and duties of the cities to prepare and protect their citizens and will deprive the electors of due process of law and is otherwise illegal and unlawful. Such deprivation constitutes irreparable injury to the citizens of the incorporated areas of Englewood and Union, as well as the corporate bodies themselves. The Cities of Englewood and Union have the right to have the statutes of the State of Ohio allowing merger to be properly applied and legally enforced and the individual Plaintiffs have the right to vote on any change in government under these circumstances,

38.Depriving the electors of the Cities of Englewood and Union of a vote on the issue of a change in government form by merger and denying the cities of township services is illegal and unconstitutional under the self - governing clause of Section 2, Article 1, Ohio Constitution.

COUNT FOUR

39.Plaintiffs herein restate, reallege and incorporate by reference the allegations contained in paragraphs 1 through 38 as if filly rewritten.

40.If the merger conditions are approved, Randolph Township will cease to exist and all of its rights and obligations will be transferred to the newly merged entity pursuant to §709,49 of the Ohio Revised Code.

41. The City of Union, The City of Englewood, and the electors of Randolph Township within the Cities of Englewood and Union have a vested right and property interest in the Randolph Township Fire Department, its assets and equipment, and the right to obtain fire protection.

42.Failing to allow the electors in the City of Englewood and the City of Union, who are also electors of Randolph Township, to vote on the issue of merger deprives the property owners and, indeed, The Cities of Englewood and Union their property rights without due process of law.

COUNT FIVE

43.Plnintiffs herein restate, reallege and incorporate by reference the allegations contained in paragraphs 1 through 42 as if fully rewritten.

44.The terms and conditions of merger, as filed with the Montgomery County Board of Elections, contain statements and conclusions which are not conditions of merger and contain terms which are so vague and indefinite as to cause confusion among the electors and to be misleading in the terms and effects of the merger and the rights and obligations of the parties to the merger.

45.As filed with the Board of Elections, the Report of the Merger Commission contains "General Conditions" as to the Equality and Quality of Life, stating what the merger commission "expects" and what it believes as to the general quality of life to be provided by the new municipality. Such statements are not conditions of merger and are included within "conditions of merger" in order to unjustly influence the voter.

46.In addition, the merger conditions propose to treat the citizens of the proposed merged entity differently. For example, the terms and conditions provide that the use of firearms shall be permitted in those areas of the new municipality, where the use existed prior to the effective date of the merger. Thus, firearm use in the Township portion of the New Municipality continues, while the portion of firearm use in the Village, which prohibits firearm use, is excluded.

47.The provisions for merger proposed by the Merger Commission include statements which are not merger conditions and are so indefinite and vague as to not allow a precise and concise vote on the issues presented by the Merger Commission, and as such they are not entitled to be on the ballot and they are violative of the Ohio Election laws requiring plain and concise statements.

Wherefore, Plaintiffs demand judgment as follows:

1.For a declaratory judgment declaring that the formation of the Merger Commission to study the merger of the Village of Clayton and Randolph Township is invalid and void;

2.Declare that the voters and electors in Randolph Township within the City of Englewood and the City of Union are entitled to vote on any merger of Randolph Township and any other entity, including the Village of Clayton;

3.Declare the actions of the Board of Elections of Montgomery County to be illegal and unconstitutional in the failure to provide voters with the right to vote on issues guaranteed by statute and the Constitution of the State of Ohio and to declare that the Randolph Township/Clayton Merger Commission is illegally formed;

4.Permanently enjoin the Defendant Montgomery County Board of Elections and Defendants Thomas J. Ritchie, Sr.., Sue A. Finley, Doris H. Wilson, Patrick A. Flanagan, and Lynda Hohnhorst from placing before the electorate at the next general election the conditions of merger of Randolph and Clayton as required under §709.46, et seq. of the Ohio Revised Code;

5.Declare the Randolph Township \Village of Clayton Merger Commission to be illegal and its formation null and void;

6.Declare that the petitions to establish a merger commission are void and the results of the election of November, 1995 to form such commission void;

7.Declare that §§709.48 and 709.49 of the Ohio Revised Code are unconstitutional to the extent they allow a change in governmental form from a township to a city without a vote of all of the people who are electors of the Township; and,

8.For such other relief to which Plaintiffs may be entitled.