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Published: Tuesday, 7/28/2009

Justices halt Finkbeiner recall effort

BY JIM PROVANCE
AND IGNAZIO MESSINA
BLADE STAFF WRITERS

COLUMBUS - Carty Finkbeiner will remain Toledo's mayor through the end of the year thanks to a narrow decision by the Ohio Supreme Court Monday that killed an attempt to recall him from office two months before his term ends.

Mr. Finkbeiner, who announced this month that he won't seek re-election, said he was not surprised by the ruling.

"For nearly 12 years, I have given my heart and soul to a city called Toledo," he said Monday. "The last few years - with a 15 percent unemployment rate, nearly $50 million cut from the city budget, and over 100 city employees laid off, demoted, or reassigned - have been tough, but the city is stable, the city is clean, and the city is safe.''

The all-Republican high court came to the defense of the Democratic mayor, unanimously agreeing that the Lucas County Board of Elections "clearly disregarded applicable law'' when it rejected Mr. Finkbeiner's protest that the recall petitions circulated by the group Take Back Toledo lacked a specific declaration mandated under state law that election falsification is a fifth-degree felony.

But the court divided 4-3 over whether it should have heard Mr. Finkbeiner's case in the first place.

In the end, the majority issued a writ prohibiting the board from placing the question on the Nov. 3 ballot as planned. Justices Paul Pfeifer, Evelyn Lundberg Stratton, Maureen O'Connor, and Judith Lanzinger found that time was too tight for the mayor to mount a challenge in the proper venue - Lucas County Common Pleas Court. It noted that the deadline for printing absentee ballots for the Nov. 3 election is just two months away.

"Election-law precedent should not be constructed as an elaborate trap for the unwary,'' the majority wrote.

But the minority - Chief Justice Thomas Moyer and Justices Robert Cupp and Terrence O'Donnell - disagreed.

"I fail to see how he lacked an adequate remedy in the ordinary course of law, given the availability of a prohibitory injunction through a court of common pleas,'' wrote Chief Justice Moyer. "Because Finkbeiner had an ample amount of time to seek such an injunction when he filed the present suit, I would dismiss the cause.''

But whether the 70-year-old mayor pursued his action directly through the Supreme Court or through action at the common pleas court level that could eventually work its way up to the high court, the end result would likely have been the same.

In the end, all the justices agreed that the election board's "quasi-judicial'' action was, as the minority put it, "legally unauthorized.''

The county board of elections approved the recall issue for the ballot based on the legal advice of Lucas County assistant prosecutor John Borell.

The decision by the high court cannot be appealed.

"There seems to be an upsurge in recalls all around the country,'' Mr. Finkbeiner's Columbus attorney, John J. Kulewicz, said. "We had to get up to speed quickly, but that's not unusual for an election case.''

"He is not going to be the mayor next year, and that was the point all along," Take Back Toledo spokesman Tom Schlachter said. "I do think people put in a lot of time and effort, and I think it should have been on the ballot."

Take Back Toledo - a committee of local suburban business owners and WSPD-AM radio, some of whom supported Mr. Finkbeiner when he ran in 2005 - contended that he had driven business from Toledo, embarrassed the city, and mismanaged the budget. The group turned in about 45,000 signatures, of which 22,231 were found to be valid.

The committee forged ahead even when it was clear Mr. Finkbeiner would not run.

"I kept it on the ballot because I didn't think it was my decision to countermand what 45,000 people wanted to be done," Mr. Schlachter said.

The mayor criticized the group as consisting mostly of out-of-town businessmen with an agenda. They included Andy Stuart, general manager of Clear Channel radio stations in Toledo, including WSPD, AM-1370 - which has been beating the drum for the recall drive in its programs in hopes of attracting conservative listeners - and Brian McMahon, president of Danberry National Ltd. of Perrysburg, a longtime foe of Mayor Finkbeiner whose development plans near Toledo Express were stymied by the mayor.

"WSPD led this botched attempt to bolster their poor ratings and dwindling listenership,'' said Lucas County Republican Party Chairman Jon Stainbrook. "The BOE should have tossed out the recall petitions before one dime of taxpayer money was spent. They wasted thousands of taxpayer dollars processing signatures and holding their dog-and-pony-show protest hearings.''

Patrick Kriner, elections board chairman, said the board wanted Toledo voters to decide on Nov. 3 whether to keep Mayor Finkbeiner, even if it was for just two more months.

"We took a position to let the voters decide," he said. "We were perplexed as to if the Ohio Revised Code or the city charter was the deciding factor. I guess I'm not disappointed, but it would have been nice to have voters have their say and now the court has decided they will not.''

Mr. Finkbeiner said he has not decided whether he will seek to have the county pay his personal legal expenses.

Contact Jim Provance at:

jprovance@theblade.com,

or 614-221-0496.



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