IN THE GREENE COUNTY COMMON PLEAS COURT

XENIA, OHIO
CIVIL DIVISION

Virgil Vaduva )
1247 June Dr. )
Xenia, OH 45385 )
) Case No. 2010 CV 0209
Plaintiff, )
v. )
)
City of Xenia ) Judge: John Kessler
101 N. Detroit Sst. )
Xenia, OH 45385 )
)
Xenia City Council )
101 N. Detroit St. )
Xenia, OH 45385 )
)
Xenia City Manager )
101 N. Detroit St. )
Xenia, OH 45385 )
)
Defendants. )
)

MEMORANDUM IN REPONSE TO DEFENDANTS’ OPPOSITION TO

MOTION FOR ORDER ENJOINING DEFENDANTS
FROM PAYING AVAKIAN CONSULTING

Plaintiff hereby submits this memorandum in response to Defendants’ request to

deny Plaintiff’s motion for order enjoining Defendants from paying Avakian Consulting,

and asks this court to grant Plaintiff’s motion for the reasons set forth herein.

In the Memorandum submitted to this court, Defendants have appeared to engage

in editorializing on several topics regarding Plaintiff and his motives for filing the initial
complaint in this case, neither of those topics being related to the merits of the case and

the evidence presented by Plaintiff. It was Mr. Percival, an agent for the Defendants

commenting first to media, specifically to Dayton Daily News, on the fact that Plaintiff is

a political candidate. Meanwhile, Plaintiff had taken obvious and painful steps to make

anonymous comments and postings regarding the complaint, all for avoiding the

appearance of impropriety.

Defendants are also engaged in dilatory practices towards a Pro Se litigant,

attempting to slow down the progress of the case, knowing time is of the essence; such

practices have been condemned by the U.S. Supreme court: “Due to sloth, inattention, or

desire to seize tactical advantage, lawyers have long engaged in dilatory practices…the

glacial place of much litigation breeds frustration with the Federal Courts, and ultimately,

disrespect for the law.” Roadway Express v. Pipe, 447 U.S. 752 at 757 (1982)

I. CONTRACT WITH AVAKIAN CONSULTING

While defendants publicly claim that the contract with Avakian Consulting is

sound, Plaintiff had already presented evidence which shows without a doubt that

Defendants are engaged in a fraudulent agreement with Avakian, using the contract as the

means to the ultimate goals of directly influencing the results of an election. This is

sustained by (1) the Defendants’ obstinate rush to sign the contract with Avakian

Consulting immediately after passing ordinance 10-02, and (2) minutes from Defendants’

meetings where agents for Defendants said in plain words that the purpose for the

relationship with Avakian was to “help pass the levy.” (see case exhibits E, F, G)
 Avakian Consulting is a political consultancy organization, with the primary

purpose of advising and helping municipalities and school districts with the passing

levies and influencing the general public to “Vote YES” on levy proposals.

Due to the fraudulent use of contract law, and the evidence presented in the case,

Plaintiff asks this court to void the Defendants’ contract with Avakian Consulting.

II. PLAINTIFF’S REPRESENTATION

In their Memorandum, Defendants are also attempting to infringe upon Plaintiff’s

rights to Pro Se representation. Pro Se representation rights are critical to the freedom

and liberty of U.S. citizens and “the practice of law is an occupation of common right.”

Sims v. Aherns, 271 SW 720 (1925)

“The right to file a lawsuit Pro Se is one of the most important rights under the

Constitution and laws.” Elmore v. McCammon (1986) 640 F. Supp. 905; and “there can

be no sanction or penalty imposed upon one because of his exercise of Constitutional

rights.” Sherar v. Cullen, 481 F. 2d 946 (1973)

Furthermore, by attempting to deny Plaintiff’s Pro Se representation, Defendants

are attempting to use technicalities in order to have the complaint dismissed; it has been

held that Pro Se pleadings are to be considered without regards to technicality and that

pro se litigants are not to be held to the same high standards as attorneys. Jenkins v.

McKeithen, 395 U.S. 411, 421 (1959); Picking v. Pennsylvania R. Co., 151 Fed 2nd 240;

Pucket v. Cox, 456 2nd 233.

As Plaintiff has not claimed to represent anyone other than himself, he has a well-

established and fundamental civil right to Pro Se representation and is exercising his
constitutional rights; he is well within the bounds of Pro Se litigation and is not “engaged

in the unauthorized practice of law.”

III. PLAINTIFF’S STANDING

Throughout his complaint and following proceedings, Plaintiff has held that

Defendants are in violation of R.C. Title 35 and are engaged in advertising,

electioneering, promoting and directly influencing the outcome of an election.

While R.C. Title 7 outlines the specific general instances in which a taxpayer can

bring suit against a municipality, the language is specifically aimed at a taxpayer bringing

a suit “on behalf of the municipal corporation.” (R.C. 733.59) As already shown,

Plaintiff’s action cannot be a “taxpayer action” as defined by R.C. 733.59 since Plaintiff

filed a Pro Se complaint in his own name, does not claim to represent anyone other than

himself – not the entire municipality – nor is he attempting to prosecute the Defendants

on behalf of others.

Secondly, the Defendants’ Law Director is in violation of R.C. 733.56 as he

carries the statutory burden to seek “an order of injunction” should the corporation be in

violation of law, which is what Plaintiff alleges to have happened.

Plaintiff maintains that due to the time constraints and the special circumstances

surrounding this case, (1) Plaintiff’s complaint falls outside of R.C. 733.59, that (2) due

to the Law Director’s violation of R.C. 733.56 Plaintiff had reasonable cause to consider

a request filed with Defendants’ Law Director futile, that (3) the Plaintiff’s complaint

cannot be defined by this court to be a “taxpayer action,” and (4) Defendants’ violation of

Title 35 entitles Plaintiff to stand and pursue urgent injunctive relief in this court.
 IV. COURT JURISDICTION

It is worth noting that the purposes of Ohio Election Laws as well as Federal

Election Laws are to broadly provide a “fair playing field” and financial accountability

for those involved in the electoral process. When the Defendants specifically and

government employees in general engage in the expenditure of public funds for the

purposes of surveying the electoral landscape and hiring political consultants as means to

“help pass a levy” they acquire an unfair advantage, are in violation of R.C. Title 35 and

are attempting to directly influence the outcome of an election. While Defendants are

free under Ohio Law to create a Political Action Committee and pursue private donors

and private funds for surveying and advertising purposes, they are instead using public

funds to “help pass a levy.” This sets a dangerous precedent and puts Plaintiff and the

general public, which may be opposed to the political platform espoused by the

Defendants, at a serious electoral disadvantage.

Even in the absence of some of the “magic words” referenced by Defendants and

defined in footnote 52 of Buckley v. Valeo 424 U.S. 1, 44, (“vote for,” “elect,” “support,”

“cast your ballot for,” “Smith for Congress,” “vote against,” “defeat,” and “reject”) the

Defendants’ actions still amount to sham issue advocacy through the publication of

pamphlets, videos, and other communications designed to directly influence the outcome

of the election by advertising the negative outcome and what could happen in theory,

should the Plaintiff refuse to go along with the Defendant’s plan to pass Issue 7. One

example of Plaintiff’s issue advocacy is the title of the pamphlet included by Defendants

in the Plaintiff’s utility bill, “Keep Xenia Safe,” which amounts to issue advocacy in that
Defendants are expressly advertising that a “no” vote on Issue 7 will make Plaintiff and

his family unsafe; the Defendants’ “Keep Xenia Safe” words are implying and

advocating that only a “yes” vote on the part of the Plaintiff can bring about safety.

The U.S. Supreme court recognized behavior similar to that of Defendants’ as a

“danger to ‘fair and effective government’” and concluded that this danger “posed by

partisan political conduct on the part of federal employees charged with administering the

law was a sufficiently important concern to justify broad restrictions on the employees'

right of partisan political association.” CSC v. Letter Carriers, 413 U.S. 548 (1973)

The court reaffirmed in Bucley v. Valeo, 424 U.S. 1 (1976) that “…Congress

could legitimately conclude that the avoidance of the appearance of improper influence is

also critical . . . if confidence in the system of representative Government is not to be

eroded to a disastrous extent.”

Another important thing to note is that Plaintiff also serves as the Treasurer for

StopXeniaTax.com, a Political Action Committee registered with the Greene County

Board of Elections. As Plaintiff is directly involved and interested in defeating Issue 7

for various principled and ideological reasons, his desire and goals to oppose Issue 7 in

the May 4 2010 election on a “level playing field” is violated by the Defendants’ actions

and spending of public funds. It is impossible and unreasonable to expect Plaintiff to be

able to compete in the electoral process on a “level playing field” against a government

entity that has free access to large sums of public funds, which are being freely used in

order to create political and electoral advantage for a particular ballot issue.

Plaintiff maintains that Defendants are in violation of Ohio Revised Code Title

35, (1) that Plaintiff’s complaint does not fall under the ORC 733.59 provisions, (2)
Defendants are engaged in electioneering and (3) creating an unfair electoral advantage in

their favor. Plaintiff therefore respectfully asks this court to enjoy Defendants from

further violation of Title 35 and the Greene County Board of election from placing Issue

7 on the May 4 2010 ballot.

V. DEFENDANTS’ VIOLATION OF ELECTION LAWS

In 1988 the Ohio Elections Committee issued advisory opinion in 88-3 clarifying

some of the criteria under which public funds may be used in certain situations. The

opinion (see attachment) established per R.C. 3517.18 that (1) money from the Ohio

Political Fund are “public funds,” that (2) public funds may not be used to assist a private

enterprise, and that (3) public funds may not be used to “influence directly the result of

any election.”

The Plaintiff consequently maintains that (1) municipality funds in the control of

the Defendants are to be considered “public funds” and that (2) the Defendants action to

spend such funds for the purpose mentioned by Defendants, namely “help pass a levy” is

in direct violation of the OEC advisory opinion 88-3 and R.C. 3517 .18(1) and (2).

The aforementioned opinion also holds that “when there is doubt as to the right to

expend public moneys, the doubt must be resolved in favor of the public and against

the grant of authority.” State ex rel Locker v. Menning, 95 Ohio St. 97 (1916).

Defendants’ insistence that the expenditure of funds was for helping with the

image of the City of Xenia is contradicted by evidence provided by Plaintiff; furthermore,

the two actions expressed by Defendants during the course of several meetings (minutes

attached to complaint as exhibits E, F, G), namely “help pass a levy” and “improve the

city’s image” cannot be coupled into one exploit under the guise of a contractual
agreement and still pass the litmus test required by R.C. 3517.18 and of the OEC

advisory opinion.

Consequently, Plaintiff maintains that Defendants have violated R.C. Title 35 and

is respectfully asking this court to enjoin Defendants and the Greene County Board of

Elections from placing Issue 7 on the May 4 ballot, from electioneering, and from

continuing the disbursal of public funds to any party for the purpose of directly

influencing the outcome of an election.

Respectfully submitted,

___________________________
Virgil Vaduva, Defendant
1247 June Dr.
Xenia, OH 45385