The ballot language for a proposed charter amendment that would prevent the City of Cincinnati from spending any money for passenger rail right-of-way acquisition or capital improvements without a public vote will remain as written, Cincinnati City council's Rules and Government Operations Committee decided yesterday.

As written, what would become Article 14 of the charter reads:

"The City, and its various Boards and Commissions, may not spend any monies for
right-of-way acquisition or construction of improvements for passenger rail
transportation (e.g., a trolley or streetcar) within the city limits without
first submitting the question of approval of such expenditure to a vote of the
electorate of the City and receiving a majority affirmative vote for the same."

A dozen residents spoke out against the proposed amendment, with the vast majority questioning the language's clarity.

John Schneider, director of Alliance for Regional Transit, took issue with the phrases "right-of-way acquisition" and "e.g., a trolley or streetcar".

Schneider says that because trolleys and streetcars ride in the streets, no right-of-way acquisition would be necessary – meaning that the parenthetical "e.g." should be removed.

"Taken in context, each phrase is a fundamental contradiction of the other, and so the non-essential phrase should be dropped from the language."

Both Don Mooney and Bobby Maly, treasurer and committee co-chair for Cincinnatians for Progress, respectively, agreed, saying that if the parenthetical isn't dropped, then other forms of rail transportation should be added for the sake of clarity.

Both Over-the-Rhine Chamber of Commerce president Brian Tiffany and Brad Thomas of CincyStreetcar.com reinforced that argument with their testimony.

"I do think council has a duty to look at the ballot language, not the language in the proposed charter amendment," Mooney said.

Mooney referred to a Cincinnati Enquirer piece that referred to the ballot language as "weasel words" that were deceptive and confusing.

He added that the Ohio Supreme Court has ruled that, when drafting ballot language, it is to be done in such a way that voters are not misled, and suggested that the words "streetcar and trolley" be removed from the ballot language to avoid voter confusion.

"I think you owe to the voters of Cincinnati a clear explanation of what they're voting on," Mooney said. "That's what we're trying to do here today. We'll continue to do it throughout the campaign, but I think the bottom line is what will they see when they walk into the polling place. We think you have the authority to make it clearer to them."

Rob Richardson, also a co-chair for Cincinnatians for Progress, was also seeking clarity.

"They have made it clear that they oppose all rail, and yet, when they were selling these to voters, they made it all about the streetcar," he said. "Depending on what time and who their audience is it's about streetcars, and then the very next sentence it's about passenger rail."

To Richardson, it was council's "power and duty" to make the language clear.

"We have reviewed this and looked across different cities and have never really seen ballot language that limits the ability of a city to even invest or spend any money on passenger rail," he said.


The chair speaks

Committee chair Jeff Berding asked for a clarification of the intent of the ballot language from WeDemandAVote legal counsel Chris Finney.

"The language is an extremely simple sentence," Finney said. "It speaks for itself. These people feigning that they can't somehow understand the Queen's English, it seems to me to be a bit contrived."

Finney said that the "e.g." was included because it illustrated a precise example, but was not limiting language.

"They teach you what 'e.g.' means in grade school," he said. "Eighth graders typically know that."

Finney said that changing the ballot language, which 11,000 people signed onto on the petitions, would be disingenuous and dishonest.

He added that once the signatures were submitted, council's political role disappeared and that it was its job to pass it.

"What the voters will vote on on Election Day, regardless of what's on the ballot, is this language," Finney said. "This is what will be added to the charter verbatim. Anything you do to tinker with that is something other than what will be added to the charter. And the notion that you can change the language that would be added to the charter. And the notion that you can change the language of what will be added to the charter to more properly describe what will be added to the charter is sort of arrogant on your part. I'm not saying you are, but if you did that it would be an improper role for council to take."


A civics lession

Councilmember David Crowley prefaced his questions to Finney by saying that he was neither an English major nor an attorney, but wondered if the language would have been clearer if it had only mentioned passenger rail.

Finney said that Cincinnati NAACP president Christopher Smitherman will soon speak to that, but said that he agreed with Smitherman that any narrowly-tailored, precise language could provide a loophole for bureaucrats to exploit – thereby evading voters.

"Politicians and bureaucrats, left to their own devices, will figure out ways around a limiting language," he said. "So, if you look up, for example, in the dictionary what a trolley or streetcar is, or you ask experts to define light rail, define heavy rail, tell us what a trolley and so on, you end up with a lot of explanations of the differences between those."

But Crowley said that in an attempt to utilize broader language, it's the coalition that has caused this confusion.

As a rebuttal, Finney gave an explanation on how referenda make the ballot – either through the hard work of citizen volunteers, or by council vote.

"When you do that, Mr. Crowley, you have the right to write the language," he said. "And you can ask people to vote on anything you want when you do that. But, you know what, you didn't do that in this circumstance. You didn't give people the right to vote on what they wanted to vote on, so you've waived that right, okay? The voters have exercised their right. Now, what you want to do...is second guess those 11,000 people who told you what your legal obligation is – to put this on the ballot. And fortunately for the voters, the Ohio Constitution doesn't give you that right."

"Mr. Finney, I would suggest to you that it's you and your team who created the confusion, and you have to live with it," Crowley said. "It seems to me that the way that this is written is deliberately designed to confuse signers, potential signers, and voters. I understand the civics lesson you're trying to impart this morning. I understand my role as a City council member, and my role is to find out everything I can about a proposed piece of legislation."


Was there deception?

Joe Sprengard, the third co-chair for Cincinnatians for Progress, said that the coalition has not stayed on topic about its intent, referring to last Sunday night's City Talk radio program on WKRC.

"I think we can look in the last 48 hours and realize that the proponents of this ballot language are really talking out of both sides of their mouths," Sprengard said. "In fact, Sunday night, Mark Miller from WeDemandAVote coalition said the following: 'They have a streetcar agenda, and that's what this measure is aimed, specifically.' Nineteen seconds later, the same person said the following: 'We want to restrain all passenger rail transportation.' Both of those aren't the same thing."

"Make no mistake, the vague language of the petition was certainly well thought out, intentional, and crafted to garner the required number of signatures," said Julie Fay, a resident of Over-the-Rhine since 1993. "It was put together by attorneys in a way that made various people want to sign it, and it was just misrepresented."

Fay said that the ballot initiative was a way to take control away from the elected representatives who research legislation and to put control into the hands of voters, using emotional language.

She said that the recent trend of government by referendum needs to stop, and that we have to find a way to have our elected officials represent us.

"I think this group of people found a very willing bedfellow in someone who was thwarted in a recent re-election attempt to City council and wants to show his power from afar," Fay said.

"There is a legal procedure that you all can follow, if they wanted to challenge the validity of the signatures, including on the basis that the signers were misled," Finney said. "Mr. Mooney is an attorney who is versed in election law, and, if they thought they had a challenge on that basis, I think they would have brought it. We're here today without any challenge to the sufficiency of the signatures because no one has done that."

So, instead of the ability to confront its accusers, Finney says that the coalition's accusers are just hanging out there, making baseless accusations.

"We're more than happy to defend these [signatures] in a legal procedure if it came to that, but it didn't," Finney said. "So the time is here for you all to vote to put it on the ballot, and it's your job to do that."


Portland or Detroit?

Speaker John Rockwell said that the amendment could cripple the City's ability to participate in regional rail projects such as the proposed 3C Corridor between Cincinnati and Cleveland the Midwest Regional Rail Initiative, which would connect Cincinnati with Chicago.

Calling the amendment "a step backwards", he would like the ballot language to be cleaned up to let voters know that it's about more than the streetcar.

"People circulating petitions are advertising it as an anti-streetcar petition, but, when you read it, it clearly states 'passenger rail transportation within the City limits,'" Rockwell said. "You could tell it to me it's a proposal 'Do we want to be Portland or do we want to be Detroit,' but that's only my personal opinion on the issue."

Bren Blaine, former CEO of Tender Mercies and an Over-the-Rhine resident, said that other cities he has visited make Cincinnati "look so far backward it's just unbelievable".

He said that the legislation would be damaging.

"I see no reason, as we are today, why businesses would move here, anyone would move here that is interested in working in the core," Blaine said. "I understand now why our neighbors in the outlying districts don't even come Downtown to work. It's simply too difficult."

"Gas prices will not remain low forever, but the Anti-Passenger Rail Amendment will represent a permanent impediment to investment in the future of this City," Brad Thomas said.

But Finney said that the ballot measure won't have any of those consequences.

"It's been misapplied by the media and by our opponents to say that this is somehow purely an obstructionist measure," Finney said. "All this says is that, if you have a good idea on council – something that you want to do – that you think is a fantastic idea for the community, then submit it to the voters and let them vote on it."

Finney said that the idea that the amendment would "stop" the streetcar simply isn't true.

"Really, the legal result of this is that nothing specifically happens other than that the voters have a say," Finney said. "But for the first time, the voters will have a say in this specific proposal – the trolley that's being proposed."


That depends on what the definition of 'any' is

Councilmember Cecil Thomas wondered if there would be unintended consequences if the amendment passes, which could enter the City into an uncharted, slowed process and a host of legal questions.

Councilmember Roxanne Qualls agreed and wondered if "any monies" would include federal, state, and private funding that moves through the City before it's appropriated.

"I don't know if I'm an authority on what the intent is," Finney said. "The voters signed a petition to put it on. The courts will ultimately decide, like every other law, what it means. But to me the words 'any monies' means 'any monies.'"

After an exchange in which Finney further explained his understanding of "any monies", Qualls came to her own conclusion.

"I'm going to conclude that that means any state dollars, any federal dollars, any sort of local dollars, any private dollars," Qualls said. "That references all of that."

"I don't necessarily want to be cross-examined on that language, but to me the word 'any' typically means 'any'," Finney said.

"I'm not trying to cross-examine you," Qualls said. "What I'm trying to do is just get some clarity."

"What I'm trying to do is explain to you that this sentence, which is structured as a simple sentence, is a simple sentence," Finney said. "It's not hard for people to understand. These people who signed it understood it. The five-member petition committee that submitted it to you understood it, and it's very clear. The words 'any monies', Ms. Qualls, as far as I'm concerned, means 'any monies'."

"So that means that if I were to word this in a way that actually stated what the intent of this charter amendment is, it would read, 'Shall the Charter of the City of Cincinnati be amended to prohibit the City, and its various boards and commissions, from spending any federal, state, or local money for right-of-way acquisition or construction of improvements for passenger rail transportation (including, but not limited to trolleys or streetcars) within the City limits without first submitting the question of approval of such expenditure to a vote of the electorate of the City and receiving a majority affirmative vote for the same..' So thank you, Mr. Finney. Now I understand exactly what this means."


What happens next?

Compelled by the number of signatures gathered, Bortz said that the ballot language should pass out off committee as-is.

"I don't agree with this charter amendment," he said. "I don't plan on voting for it on November 3. It think there are a lot of things that can hurt our ability to govern, hurt our ability to expand our transportation system. And I will speak out against it over the next couple of months."

Even Finney agreed that the language could be subject to dispute.

"I think, at a later date, a judge or a jury might give you some interpretation of what the language means, but to me it's extremely straightforward English language," he said. "It means what it says."

Maly promised that Cincinnatians for Progress will continue the fight.

"We'll be at the Board of Elections as well, and the Secretary of State if need be," he said.

Finney said that the prospect of streetcars was extremely unpopular among Cincinnati voters.

"People do not want it," Finney said. "And you will hear the voters this fall. They do not want the trolley."

City council meets today at 2 p.m. and could vote to put the amendment on the ballot.

Previous reading on BC:
Monzel asks Cincinnati to cease and desist all streetcar activity (8/10/09)
Partnership selected to manage streetcar project (6/15/09)
Cincinnatians for Progress has new website, endorsements; WeDemandAVote two-thirds of way to ballot (6/9/09)
Give Back Cincinnati sessions to focus on streetcars (1/29/09)
City will issue RFP for Uptown streetcar route analysis (1/26/09)