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8/9/2019 MEMORANDUM IN REPONSE TO XENIAS OPPOSITION TO MOTION FOR ORDER ENJOINING XENIA FROM PAYING AVAKI
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IN THE GREENE COUNTY COMMON PLEAS COURTXENIA, OHIO
CIVIL DIVISION
Virgil Vaduva )1247 June Dr. )Xenia, OH 45385 )
) Case No. 2010 CV 0209Plaintiff, )
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 TOMOTION FOR ORDER ENJOINING DEFENDANTS
FROM PAYING AVAKIAN CONSULTING
Plaintiff hereby submits this memorandum in response to Defendants request to
deny Plaintiffs motion for order enjoining Defendants from paying Avakian Consulting,
and asks this court to grant Plaintiffs 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
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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 practicesthe
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)
8/9/2019 MEMORANDUM IN REPONSE TO XENIAS OPPOSITION TO MOTION FOR ORDER ENJOINING XENIA FROM PAYING AVAKI
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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. PLAINTIFFS REPRESENTATION
In their Memorandum, Defendants are also attempting to infringe upon Plaintiffs
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 Plaintiffs 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
8/9/2019 MEMORANDUM IN REPONSE TO XENIAS OPPOSITION TO MOTION FOR ORDER ENJOINING XENIA FROM PAYING AVAKI
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constitutional rights; he is well within the bounds of Pro Se litigation and is not engaged
in the unauthorized practice of law.
III. PLAINTIFFS 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,Plaintiffs 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) Plaintiffs complaint falls outside of R.C. 733.59, that (2) due
to the Law Directors violation of R.C. 733.56 Plaintiff had reasonable cause to consider
a request filed with Defendants Law Director futile, that (3) the Plaintiffs 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.
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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 arefree 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 Defendants plan to pass Issue 7. One
example of Plaintiffs issue advocacy is the title of the pamphlet included by Defendants
in the Plaintiffs utility bill, Keep Xenia Safe, which amounts to issue advocacy in that
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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 Congresscould 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 Plaintiffs complaint does not fall under the ORC 733.59 provisions, (2)
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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 privateenterprise, 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
citys image cannot be coupled into one exploit under the guise of a contractual
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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, Defendant1247 June Dr.Xenia, OH 45385