The opinion of the court was delivered by: Chief Magistrate Judge Michael R. Merz
District Judge Susan J. Dlott
This case is before the Court on Defendant ACLU's Emergency Motion for Declaratory Judgment Pending Final Resolution in this Case (Doc. No. 24). The Motion is not classified as "dispositive" by 28 U.S.C. §636(b)(1)(A) and is therefore a magistrate judge has authority to rule on it rather than recommending a disposition.
Plaintiff Simon L. Leis, Jr., the Sheriff of Hamilton County, Ohio, announced in October, 2005, the possibility that his department would begin policing patrols in the Over-The-Rhine neighborhood of the City of Cincinnati. Defendant ACLU welcomed that additional police protection for the citizens, but insisted the Sheriff should operate under the Collaborative Agreement to govern policing in the City, negotiated in 2002 among the City, the Fraternal Order of Police, the ACLU, and the Black United Front.*fn1 The Sheriff demurred and brought this action to obtain a declaration of the obligations, if any, imposed on him and his department by the Collaborative Agreement.
The Sheriff originally sought relief in the Hamilton County Common Pleas Court, but the ACLU removed the case to this Court which had supervised the negotiations and eventually entered the Collaborative Agreement as a court order. Sheriff Leis moved to remand, but has never filed objections to the recommended decision that this Court retain jurisdiction.*fn2 Shortly after remand was denied, the City of Cincinnati intervened in the case, also asserting that the Sheriff should be bound by the Collaborative Agreement when performing policing activities in the City.
Once the remand motion was denied, the parties agreed on a schedule for resolution of this case and the Court adopted that schedule (Doc. Nos. 20, 22). Under the schedule, discovery is to be completed by August 15, 2006, and summary judgment motions would be filed by September 15, 2006, with a decision to follow as soon as possible thereafter. The Court emphasizes that this schedule was proposed by and agreed to by all parties, including the Sheriff.
However, rather than wait for the relief he himself requested, Sheriff Leis began the patrols on August 1, 2006. During an emergency conference with the Court that day, the Sheriff, through counsel, refused without explanation a request to delay the patrols pending a court decision. The ACLU's Motion followed the same day and the Sheriff and City have briefed the matter on an expedited basis.*fn3
The ACLU seeks an emergency declaration that, pending final decision of this case, the Collaborative Agreement is binding on Sheriff Leis and his patrols inside the City are subject to it (Doc. No. 24 at 3-4). The City of Cincinnati has responded that it neither objects to the Sheriff's patrols nor to the ACLU request that the Sheriff be subject to the Collaborative Agreement pending final decision (Doc. No. 25).
Sheriff Leis opposes the ACLU's Motion on a number of grounds*fn4 . He asserts first of all that it is without evidentiary support, asking the Court to exclude the letters between the Sheriff and Chief Streicher attached to the Motion. Despite that objection, the Sheriff himself makes unsupported factual assertions, such as these patrols are in response to "urgent public requests."
Glaringly absent from the Sheriff's Memorandum is any explanation of why, having invoked the Court's jurisdiction, he has now proceeded without awaiting the relief he sought. What has changed his mind? He does not say. Surely it cannot be delay by the Court, for we are proceeding on the schedule he proposed and agreed to; if he believed a quicker answer was needed, he could always have moved to amend the schedule. He does not claim that the Cincinnati Police have become less effective since he filed the suit and the citizens cannot wait any longer. Nor does he suggest how his department's effectiveness would be in any way impaired by complying with the Collaborative Agreement until this case is decided. In sum, the Sheriff makes no policy case for his position at all.
Instead of stating whatever objections he has to the Collaborative, the Sheriff asserts that the law does not recognize declaratory relief pending trial, that the relief the ACLU seeks is in the nature of preliminary injunctive relief, and the ACLU has not made an adequate showing to be entitled to such relief. He asserts that, as an independently elected law enforcement officer, he has general authority to enforce the law inside the City of Cincinnati without reference to the Collaborative Agreement, to which he is not a party.
To obtain a preliminary injunction a party must show:
1) A strong or substantial likelihood or probability of ...