March 11, 2005

Partner registry back in court as judges hear appeal

by Eric Resnick

Cleveland--The Cleveland Heights domestic partner registry, upheld by a judge last May, was back in court this week as its opponents appealed that ruling.

City council member Jimmie Hicks, Jr. and former school board member Charles Byrne appealed their case after Cuyahoga County Common Pleas Judge Robert Glickman ruled the registry constitutional.

A three-judge panel of the Eighth Ohio District Court of Appeals heard oral arguments in the appeal on March 7.

The registry was created by voters in 2003 and allows unmarried couples, same-sex and opposite sex, to register their relationship with the city. It is open to both residents and non-residents of Cleveland Heights. About 120 couples have registered.

Hicks and Byrne, who are represented by Cincinnati attorney David Langdon and underwritten by the anti-gay Alliance Defense Fund of Scottsdale, Arizona, claim that the registry violates Ohio�s 2004 �defense of marriage act� because DOMA prohibits cities from granting �benefits of legal marriage� to unmarried couples.

Langdon has also signaled through court briefs that he believes the registry can also be challenged under the anti- marriage amendment passed in November as Issue 1.

Glickman ruled that the registry is only a list of names that does not confer any benefits, and as such does not violate Ohio law. He also ruled that Hicks and Byrne failed to show that the registry harmed them, which diminished their right to bring the suit.

Those were the two issues before the panel which consisted of judges Frank D. Celebreeze, Jr., presiding, Sean C. Gallagher and Mary Eileen Kilbane.

The city was represented by its law director John Gibbon and attorney William Hanna. Gibbon said after the hearing that he hopes the court addresses the issue of the benefits, not just the issue of harm.

If the appeals court agrees with Glickman that the registry does not confer any marital benefits, it will make it more difficult for Langdon to file a separate suit under the new amendment.

Langdon agreed, saying, he �is still developing strategy around� bringing the additional suit. He expects that the matter in the current case will be settled by the Ohio Supreme Court, and is working toward getting it there.

Langdon also signaled that he intends to sue Cleveland Heights again over the partner benefits passed by city council in 2002. Hicks was the lone vote against the measure, which provides health benefits to the domestic partners of city employees, same as given to spouses.

�That�s a stronger case,� said Langdon. �This [the registry] doesn�t do anything. It doesn�t have any teeth. The domestic partner ordinance does.�

Langdon was peppered by questions from the bench, mostly from Judge Gallagher, who wanted to know how and why Langdon wants to limit the doctrine of home rule.

�You want to clamp down on [the city�s] ability to govern,� said Gallagher. �They decided they wanted [the registry] to be part of their function of government. Why should the court limit that when there is no conflict with state law?�

Langdon answered that the Ohio Supreme Court limits local self-government powers to functions of government that are matters of operation, arguing that the registry is not.

�This case comes down to a matter of constitutional interpretation,� said Langdon.

Langdon told Gallagher that a registry honoring veterans would also not be a function of government, and therefore not be permitted. He said that such operations by other municipalities go on only because they are not challenged.

Judge Kilbane asked two questions about the harm done to Hicks and Byrne by the registry.

�If you want to get past this, what is the harm?� asked Kilbane.

�We�re not arguing irreparable harm,� answered Langdon. �That standard is not applicable here.�

Langdon said that irreparable harm is not necessary to prove in a taxpayer action, which this suit is.

Gibbon was asked fewer questions and did not use all of his allotted 15 minutes.

He argued that the home rule doctrine allows the city to operate the registry, and that the case law that allows cities to do urban renewal using eminent domain says that municipal purpose is determined by the legislature, and that courts will not second guess that purpose.

Gibbon added that many cities, including Cleveland Heights, have many programs that would not pass under the interpretation Langdon is suggesting, including senior citizen programs and the recreation center.

Gibbon said the city maintains those programs in order to fulfill its purpose of being an attractive city, which the citizens and the legislature have made a function of government.

�How does Issue 1 affect the registry?� asked Gallagher.

�That issue is not before the court,� answered Gibbon. �But we do not create a legal status with the registry. It is largely symbolic.�

The court is expected to rule after a month.

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