Embed Size (px)
Citation preview
Case No. 2008-1804
IN THE SUPREME COURT OF OHIO
STATE OF OHIO EX REL. CITY OF UPPER ARLINGTON, ET AL.
Relators,V.
FRANKLIN COUNTY BOARD OF ELECTIONS,
Respondenf.
Original Action in Mandamus and Prohibition,Expedited Election Matter Pursuant to S.Ct. Prac.R. X §9
MERIT BRIEF OF RELATORS
JEANINE A. HUMMER (0030565)ToM LINDSEY (0033165)CITY OF UPPER ARLINGTON3600 Tremont RoadUpper Arlington, Ohio 43215Tel: (614) 583-5020Fax: (614) [email protected]
PATRICK J. PICCININNI (0055324)ASST. FRANKLIN CTY. PROSECUTOR373 South High Street, 14 th FloorColumbus, Ohio 43215Tel: (614) 462-3555Fax: (614) [email protected]
Counsel for Respondent FranklinCounsel for Relator City of UpperArlington
DONALD J. McTIGUE (0022849)MARK A. MCGINNIS (0076275)THE McTIGUE LAW GROUP550 East Walnut StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) [email protected]
Special Counsel for Relator City of UpperArlington and Counsel for RelatorsMargaret Concilla and David A. Varda
County Board of Elections
JAMES C. BECKER (0024203)4380 Braunton RoadColumbus, Ohio 43220Tel: (614) 457-7863Fax: (614) [email protected]
Counsel for Intervening RespondentMichael A.
Ci,ERK OFU6UR7'SUPREME COURT OF OHIO
TABLE OF CONTENTS
PAGE S
TABLE OF CONTENTS ................................................ ii
iiiTABLE OF AUTHORITIES ............................................. ui
INTRODUCTION ............................................................... I
STATEMENT OF THE CASE AND FACTS ...................... 1
ARGUMENT ................................................................ 6
The Initiative Does Not Propose A LawAnd Must Be Rejected .......................................... 6
The Initiative Does Not Contain The RequiredNumber Of Signatures Of Electors And MustBe Rejected ......................................................... 12
The Initiative Petition Fails To Designate A CommitteeAnd Must Be Rejected .......................................... 16
CONCLUSION ............................................................ 22
CERTIFICATE OF SERVICE ......................................... 23
11
TABLE OF AUTHORITIES
Cases PAGE S
Buckeye Community Hope Foundation v. City of Cuyahoga Falls (1998),82 Ohio St. 3d 539, 697 N.E.2d 181 .............................. 7
Columbus, Springfield & Cincinnati Rd. Co. v. Mowatt (1880),35 Ohio St. 284 ....... .. .. ......... . .. ..... .. . .. .. .. .................. .. 18
Donnelly v. Fairview Park (1968),13 Ohio St. 2d 1, 233 N.E.2d 500 .................................. 7
Doss Petroleum v. Columbiana County Board of Elections(Columbiana App.),
164 Ohio App.3d 255, 2005-Ohio-5633, 842 N.E.2d 66..... 14
Lessee of Swazey's Heirs v. Blackman (1837),8 Ohio 5 .................................................................. 18
Myers v. Schiering (1971),27 Ohio St.2d 11, 271 N.E.2d 764 ................................ 7
Owensboro v. Board of Trustees, Owensboro Employees Pension Fund(1945),
301 Ky. 113,190 S.W.2d 1005 .................................... 10
Pennsylvania Road Co. v. Porterfield (1971),25 Ohio St.2d 223, 267 N.E.2d 792 .............................. 18
Provenzano v. Des Plaines (1993),256 lil.App.3d 458, 461, 629 N.E.2d 100 ........................ 10
Stanton v. Frankel Bros. Realty Co. (1927),117 Ohio St. 345, 158 N.E. 868 ................................... 18
State ex rel Barletta v. Fresch,99 Ohio St.3d 295, 2003-Ohio-3629, 791 N.E.2d 452...... 18
State.ex rel Beckstedt v. Eyrich (Hamilton App. 1963),
III
120 Ohio App. 338, 195 N.E.2d 371 .............................. 9
State ex rel. Chevalier v. Brown (1985),17 Ohio St.3d 61, 63, 477 N.E.2d 623 ........................... 14
State ex rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. Of Elections,111 Ohio St.3d 167, 2006-Ohio-5019, 855 N.E.2d 815...... 15
State ex rel Committee for the Referendum of Ord. No. 3844-02 v. Norris,99 Ohio St. 3d 336, 2003-Ohio-3887, 792 N.E.2d 186...... 7
State ex rel. Ditmars v. McSweeney,94 Ohio St.3d 472, 476, 2002-Ohio-997, 764 N.E.2d 971.. 13,14
State ex rel. Evans v. Blackwell,111 Ohio St.3d 1, 8, 2006-Ohio-4334, 854 N.E.2d 1025... 18
State ex rel. Kleem v. Kafer (Cuyahoga App. 1983),13 Ohio App. 3d 405, 469 N.E.2d 533 ............................ 7
State ex rel. Lewis v. Rolson,115 Ohio St. 3d 293, 2007-Ohio-5139, 874 N.E.2d 1200... 18
State ex rel. Loss v. Bd. of Elections (1972),29 Ohio St. 2d 233, 281 N.E.2d 186 ............................. 17
State ex rel. Marsalek v. S. Euclid City Council,111 Ohio St. 3d 163, 2006-Ohio-4973, 855 N.E.2d 811 .... 7
State ex rel. McMillian v. Ashtabula Cty. Bd. Of Elections,65 Ohio St.3d 186, 189, 1992-Ohio-85, 602 N.E.2d 631... 13
State ex rel Mika v. Lemon (1959),170 Ohio St. 1, 161 N.E.2d 488 ................................... 18
State ex rel. Moore v. Malone,96 Ohio St.3d 417, 2002-Ohio-4821, 775 N.E.2d 812...... 13
State ex rel Oberlin Citizens for Responsible Development v. Talarico,
iv
106 Ohio St. 3d 481, 2005-Ohio-5061, 836 N.E.2d 529..... 7,8
State ex rel Oster v. Lorain Cty. Bd. of Elections (2001),93 Ohio St. 3d 480, 756 N.E.2d 649 .............................. 20
State ex rel Patterson v. Schirmer (1934),129 Ohio St. 143, 146, 194 N.E. 13 ............................... 18
State ex rel. Reese v. Cuyahoga County Board of Elections,115 Ohio St.3d 126, 2007-Ohio-4588, 873 N.E.2d 1251.... 6
State ex rel. Rose v. Lorain Cty. Bd. Of Elections (2000),90 Ohio St.3d 229, 230, 736 N.E.2d 886 ........................ 14
State ex rel. Shaw v. Lynch (1991),62 Ohio St.3d 174, 176, 580 N.E.2d 1068 ...................... 14
State ex rel Sinay v. Sodders (1997),80 Ohio St. 3d 224, 228-229, 685 N.E. 2d 754 ................ 17
State ex rel. Steele v. Morrissey.103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107... 13,15, 18
State ex rel. Stoll v. Logan Cty. Bd. of Elections,117 Ohio St.3d 76, 81, 2008-Ohio-333, 881 N.E.2d 1214... 17
State ex rel. Svete v. Geauga Cty. Bd. Of Elections (1965),4 Ohio St.2d 16, 18, 212 N.E.2d 420 ............................. 14
State ex rel Srovnal v. Linton ( 1976),46 Ohio St.2d 207, 346 N.E.2d 764 .............................. 7
State ex rel. Wolfe v. Delaware Cty. Bd. Of Elections,88 Ohio St.3d 182, 186, 2000-Ohio-294, 724 N.E.2d 771.. 15
CONSTITUTIONAL AND STATUTORY PROVISIONS
SECTION 1f, ART. II,
Ohio Constitution ............................................... passim
v
R. C. § 1.57. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
R.C. §519.12 ............................................................ passim
R.C. §731.28 ............................................................ passim
R.C. §731.31 ............................................................ passim
R.C. §731.32 ............................................................ passim
R.C. §731.34 ............................................................ passim
R.C. §3501.38 .......................................................... passim
OTHER
McQuillan, THE LAW OF MUNICIPAL CORPORATIONS,
§21.41 (2008) . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section III,Charter of the City of Upper Arlington ............................ passim
Section 131.01,City of Upper Arlington Codified Ordinances ................... passim
Section 131.04,City of Upper Arlington Codified Ordinances ................... passim
Section 138.06,City of Upper Arlington Codified Ordinances ................... passim
Section 138.09,City of Upper Arlington Codified Ordinances ................... passim
Section 138.11,City of Upper Arlington Codified Ordinances ................... passim
vi
I. INTRODUCTION
Relators City of Upper Arlington, David Varda, and Margaret Concilla are seeking
a writ of prohibition because of the failure of an initiative petition to meet the most basic
constitutional and statutory requirements necessary to the exercise of the right of
initiative in a municipality, including the failure to propose a law or to be signed by
electors of the municipality equal to at least ten percent of the number of votes cast by
electors of the municipality in the most recent gubernatorial election.
The proposed ordinance - which is really just an opinion poll - purports to
conditionally repeal an administrative ordinance and require payment of contract
damages. It does not propose legislative action as required by Article II, § 1f of the
Ohio Constitution.
Respondent Board of Elections has chosen to ignore the 4,854 absentee ballots
cast by Upper Arlington electors when determining the number of signatures required
for the initiative petition. The Board has effectively disenfranchised these absentee
voters by refusing - for administrative convenience - to count their votes for governor in
the last election as required by R.C. 731.28.
Relators respectfully request this Court to issue the writ of prohibition.
li. STATEMENT OF THE CASE AND FACTS
The Procurement Code of the City of Upper Arlington, Chapter 138 of the City's
Codified Ordinances, specifically UACO § 138.09(C) expressly authorizes the City
Manager to enter into contracts for items in UACO § 138.06(B)(1) without City Council
approval provided that sufficient funds have already been appropriated. Included in
UACO § 138.06(B)(1) are contracts for solid waste disposal. Chapter 131 of the City's
1
Codified Ordinances sets forth the general duties of the City Manager. Among these,
UACO § 131.01 provides that the City Manager shall execute all contracts for the City
and UACO § 131.04 provides that the City Manager shall manage garbage services.
On December 10, 2007, the Council of the City of Upper Arlington adopted
Ordinance No. 106-2007, the Annual Appropriation Ordinance for the City, which
included an appropriation for Solid Waste Management. Following adoption of the
Annual Appropriation Ordinance, the Council then adopted on December 10, 2007,
Ordinance No. 124-2007 authorizing the City Manager to enter into a contract with
Inland Service Corporation for Solid Waste Services. On December 14, 2007, the
Upper Arlington City Council adopted Ordinance No. 126-2007, which repealed
Ordinance No. 124-2007 and then again authorized the City Manager to enter into a
contract with Inland Service Corporation for Solid Waste Services and declaring an
emergency. Neither Ordinance No. 124-2007, nor Ordinance No. 126-2007 contained
any provision requiring residents to pay an annual fee for solid waste services.
On January 28, 2008, in a separate ordinance, the Upper Arlington City Council
adopted Ordinance No. 7-2008, providing for an annual service fee to be paid by all
residents for trash collection services. Pursuant to this Ordinance, the annual service
fee was set by the City Manager, Virginia L. Barney, at thirty dollars ($30) per
household.
On January 31, 2008, Ms. Barney, acting in her capacity as City Manager of the
City of Upper Arlington, entered into a contract with Inland Service Corporation for solid
waste services on behalf of the residents of the City beginning on April 7, 2008. The
contract provides for a continuation of the option for residents to have garage or house
side collection service as opposed to taking their trash to the curb for collection.
2
On January 16, 2008, Intervenor Michael Schadek filed with the City Finance
Director under R.C. §731.32 a copy of a proposed ordinance which he stated in a cover
letter "we are seeking to place before the Upper Arlington voters by initiative at the next
applicable general election." There was no indication in the cover letter or the
certification as to who comprised the "we" referred to in the letter, other than Mr.
Schadek. The proposed ordinance referred to Ordinance No. 124-2007 which had
been repealed by the Upper Arlington City Council.
On January 28, 2008, Intervenor Michael Schadek filed with the City Finance
Director under R.C. §731.32 a copy of a second proposed ordinance which he stated in
a cover letter "we are seeking to place before the Upper Arlington voters by initiative at
the next applicable general election." As with the first proposed ordinance, there was
no indication in the cover letter or the certification as to who comprised the "we" referred
to in the letter, other than Mr. Schadek. The second proposed ordinance was identical
to the first proposed ordinance except that it referred to Ordinance No. 126-2007
instead of the repealed Ordinance No. 124-2007.
Six months later, on July 25, 2008, Mr. Schadek filed with the City Finance
Director an initiative petition purporting to propose an ordinance expressing certain
sentiments or positions regarding solid waste service issues, objecting to the contract
with Inland Service Corporation and purporting to repeal Ordinance No. 126-2007 and
require payment of contract damages to Inland Service Corporation, but conditioning
the repeal and payment of damages on a contingency. It is undisputed that the initiative
petition failed to designate any petitioners as a committee to be regarded as filing the
petition despite spaces for doing so on the Municipal Initiative Petition form prescribed
by the Ohio Secretary of State and used for the proposed "ordinance."
3
On August 8, 2008 the City Finance Director, acting pursuant to R.C. §731.28,
transmitted the petitions to Respondent and on August 14, 2008, Respondent
determiried that the part-petitions contained 1,716 valid signatures. On August 21,
2008, pursuant to her ministerial duty under R.C. §731.28, the City's Finance Director
certified the initiative petition to the Board, expressly not waiving the rights of the City to
challenge the legal validity of the petition.
On August 29, 2008, Relators City of Upper Arlington and Margaret Concilla, a
qualified elector of the City of Upper Arlington, filed a timely protest with Respondent,
alleging that the initiative petition contained numerous deficiencies and that the
proposed "ordinance" was not legislative and, therefore, not subject to the right of
initiative (hereafter "Protest"). The Protest included each of the grounds argued in this
brief, as well as a number of others affecting individual part-petitions that Relators have
elected not to pursue before the Court. On September 8, 2008, Respondent held a
hearing on the merits to consider Relator's protest. At that hearing, Respondent
received the testimony by affidavit of City Manager Virginia L. Barney, received into the
record Protestors' exhibits and legal memoranda and heard legal arguments, but then
declined to decide Relators' protest when no member of the Board made any motion,
effectively denying the protest and allowing the proposed Inland Contract revocation
"ordinance" to appear on the November 4, 2008 general election ballot.
However, following the filing of this case, which includes as alternative relief a
request for a writ of mandamus ordering Respondent to take action to accept or deny
the Protest, Respondent met on September 12, 2008 and voted to deny the Protest.
This action makes the requested writ for mandamus moot and Relators' Brief will
address only the request for a writ of prohibition.
4
Although Respondent initially determined that there were 1,716 valid signatures
on the initiative petition, it revised this number to 1,663 following presentation of
evidence at the Protest hearing as to particular part-petitions or signatures.
(Respondent's Answer, ¶12, pg 3)
In determining that the initiative petition has sufficient valid signatures under R.C.
§ 731.28 to be placed on the ballot, Respondent calculated ten percent of the Upper
Arlington vote for governor at the November 7, 2008 general election based on the
number of Upper Arlington electors who cast votes for governor at the polls on election
day, i.e., 13,536. Respondent did not include in the ten percent calculation the votes
cast for governor by Upper Arlington electors who voted by absentee ballot. There were
4,854 electors of Upper Arlington who cast timely absentee ballots, either by mail or in
person at the board of elections.
The ballot "style" used for Upper Arlington, Ballot Style #10, was also used in a
number of precincts in the City of Columbus, City of Grandview and Village of Marble
Cliff. A ballot style contains only the candidates and issues to be voted on by the
electors of a precinct. There is a different ballot style for each combination of candidates
and issues that electors in the county are entitled to vote upon. While Respondent could
have designated a single ballot style solely for Upper Arlington, it did not do so in order
to reduce ballot printing costs. As a result of this decision, Respondent is unable to
identify or separate the 4,854 Upper Arlington absentee ballots from the rest of the
Ballot Style #10 ballots cast.
While Respondent is unable to determine the precise number of votes for
governor on the 4,854 Upper Arlington absentee ballots, Respondent can determine the
lowest possible votes for governor on such ballots is 4,615. Therefore, the lowest
5
possible total number of votes for governor cast in Upper Arlington would be 18,151.
Ten percent of this number is 1,815, which is higher than the number of valid signatures
on the initiative petition.
Ill. ARGUMENT: RELATORS ARE ENTITLED TO A WRIT OF PROHIBITION
A writ of prohibition will be granted where the board of elections has exercised or
is about to exercise quasi-judicial power, the exercise of that power is unauthorized by
law, and denying the writ will result in injury for which no other adequate remedy exists
in the ordinary course of law. State ex ret. Reese v. Cuyahoga County Board of
Elections, 115 Ohio St.3d 126, 2007-Ohio-4588, 873 N.E.2d 1251, ¶ 16.
Respondent conducted a quasi-judicial proceeding on Relators' Protest by
receiving evidence and sworn testimony by affidavit and legal memoranda and oral
argument, ultimately voting to deny the Protest and to allow the issue to proceed to the
ballot contrary to the Ohio Constitution and Ohio statutes thereby constituting an abuse
of discretion.
a. The Initiative Does Not Propose a Law and Must Be Rejected
The right of initiative granted to citizens of municipalities in Art. II, § 1f of the Ohio
Constitution is limited to proposing measures that are legislative, Le., to proposing laws.
Section III of the Charter of the City of Upper Arlington provides that the right of initiative
is "reserved to the people of the City as authorized by State law." There are no special
charter provisions that would extend the right of initiative to measures - like the
proposed ordinance - that are administrative, Le., that execute existing laws, that are
opinion polls, or that have no legal effect.
It is well established that the power of municipal initiative and referendum may be
exercised solely with respect to legislative measures and not measures that are
6
essentially administrative in character. Further, the nature of the measure, legislative or
administrative, not its form, ordinance or resolution, is what controls. See, Donnelly v.
Fairview Park (1968), 13 Ohio St.2d 1, 233 N.E.2d 500; Myers v. Schiering (1971), 27
Ohio St.2d 11, 271 N.E.2d 864; State ex rel Srovnal v. Linton (1976), 46 Ohio St.2d
207, 346 N.E.2d 764; Buckeye Community Hope Foundation v. City of Cuyahoga Falls
(1998), 82 Ohio St.3d 539, 697 N.E.2d 181; State ex rel Committee for the Referendum
of Ord. No. 3844-02 v. Norris, 99 Ohio St. 3d 336, 2003-Ohio-3887, 792 N.E.2d 186;
State ex rel Oberlin Citizens for Responsible Development v. Talarico, 106 Ohio St.3d
481, 2005-Ohio-5061, 836 N.E.2d 529; State ex rel. Marsalek v. S. Euclid City Council,
111 Ohio St.3d 163, 2006-Ohio-4973, 855 N.E.2d 811; see also, State ex rel Kleem v.
Kafer (Cuyahoga App. 1983), 13 Ohio App. 3d 405, 469 N.E.2d 533 (Ordinance
authorizing entry into a contract for architectural services for renovation of courthouse
was administrative.)
The test for determining if a measure is legislative or administrative is whether
the measure enacts a law that creates new rights or duties or is action taken under an
existing law. An ordinance approving an action taken or to be taken under an existing
law is considered administrative because it merely implements existing law or provides
a stamp of approval that may not or may not be required under the existing law. See,
Buckeye Hope Foundation, 82 Ohio St.3d at 545.
In the present case, an examination of the pre-existing laws of the City of Upper
Arlington demonstrates that Ordinance No. 126-2007, which is the subject of the
initiative petition, was an administrative, not legislative, measure. Ordinance No. 126-
2007 authorized the City Manager to enter into a contract for solid waste collection
services with Inland Service Corporation. However, under the City's existing
7
Procurement Code enacted by Council, the City Manager already had such authority
and strictly speaking Ordinance No. 126-2007 was not required. Of course, it is not
unusual for administrators to seek confirmation or approval from their governing boards
for actions they are already authorized to take.
Section 138.09(C) of the City of Upper Arlington Codified Ordinances provides
that the City Manager may enter into contracts for the items set forth in UACO §
138.06(B)(1) without prior City Council approval, provided that sufficient funds have
already been appropriated. UACO § 138.06 generally provides for contracts that may
be awarded without formal competitive bidding. Included in UACO § 138.06(B)(1) are
contracts for solid waste disposal. When the City Manager entered into the contract
with Inland on January 28, 2008, there were already sufficient funds that had been
appropriated as part of the City's annual budget for solid waste purposes. Further
evidence of the administrative nature of the Ordinance No. 126-2007 is found in UACO
§ 138.11, which provides that all contracts made by the City shall be executed by the
City Manager and UACO § 131.04 which provides that one of the duties of the City
Manager is to manage garbage undertakings of the City.
The same legislative/administrative test also applies to an initiative ordinance
that seeks to repeal an ordinance previously passed by city council. If the original
ordinance was administrative in nature, then the repeal of the ordinance is
administrative, not legislative action. Such an initiative ordinance is not a proper subject
for initiative. Oberlin Citizens for Responsible Development, 106 Ohio St.3d at 482
(Ordinance proposed to repeal city ordinance approving a development agreement and
authorizing and directing the city manager to execute the agreement.)
8
The proposed ordinance purports to repeal Ordinance No. 126-2007 "in the event
that the City chooses to ignore this initiative process and enter into a contract with
Inland Services Corporation." However, this language does not convert the proposed
ordinance into a legislative act. It does not change any of the provisions of the
Procurement Code under which the City Manager had, and would still have, the
authority to enter into the contract. The original ordinance was an administrative act
and its repeal would likewise be an administrative act.
Even if the proposed ordinance required the City Manager to terminate the
contract with Inland, which it does not, this would constitute an administrative action.
Terminating a contract is not the creation of new rights or duties, but the implementation
of rights or duties under the contract or under existing contract laws. Similarly, the
payment of contract damages to Inland, which is mentioned in the proposed ordinance,
would also be administrative. The contract damages would be based on the terms of
the contract and the application of contract principles. While the interpretation of the
contract and the determination of damages might require judicial action, it is certainly
not legislative action.
Beyond the distinction between legislative and administrative action is that to be
a law, an action must actually have some effect. It can not simply be an expression of a
position. State ex rel Beckstedt v. Eyrich (Hamilton App. 1963), 120 Ohio App. 338, 195
N.E.2d 371. The proposed ordinance is really more like an opinion poll or a statement of
position, using the phrases such as ""do not want," "don't want" and "do not desire,"
than a legislative act.
While the proposed ordinance purports to repeal Ordinance No. 126-2007 under
a certain condition, this language does not actually accomplish anything for several
9
reasons. Firstly, it does not affect the contract with Inland. The language does not
actually state that the contract with Inland is terminated or rescinded. As a matter of
law, repealing Ordinance No. 126-2007 does not by itself result in termination of the
contract.
Secondly, repealing Ordinance No. 126-2007 would revive Ordinance No 124-
2007, which is identical to Ordinance No. 126-2007, except that it was not adopted as
an emergency, and was repealed by Ordinance No. 126-2007. The common-law rule is
that the repeal of a repealing statute or ordinance restores or revives the original statute
or ordinance. Some states have adopted repealer provisions to abrogate the common-
law. McQuillan, The Law of Municipal Corporations, §21.41 (2008).
R.C. §1.57 is such a repealer provision and provides that the "repeal of a
repealing statute does not revive the statute originally repealed". However, R.C. §1.57
only applies to statutes and a municipal ordinance is not a statute. See Provenzano v.
Des Plaines (1993), 256 III.App.3d 458, 461, 629 N.E.2d 100 (State repealer provision
referring to "act" did not apply to ordinances.), c.f. Owensboro v. Board of Trustees,
Owensboro Employees Pension Fund (1945), 301 Ky. 113, 190 S.W.2d 1005 (State
repealer provision referring to "a law" did apply to ordinances.) The Upper Arlington
City Charter and the Codified Ordinances do not contain any repealer provisions.
Assuming that the proposed ordinance actually repeals Ordinance No. 126-2007, the
common-law applicable to Upper Arlington ordinances would revive Ordinance No. 124-
2007. Therefore, the authorization for the City Manager to enter into the same contract
with Inland would still exist in ordinance form.
Thirdly, if the ordinance proposed by the petition were approved, the sole
provision for action that the ordinance calls for will never take place because it is made
10
contingent on an event that occurred before the ordinance would take effect. The
ordinance's language "in the event that the City chooses to ignore this initiative process
and enter into a contract with Inland Services Corporation such resolution and/or
ordinance shall be and hereby is repealed and the City shall pay for and be responsible
for any contract damages to Inland Service Corporation" can only apply to actions by
the City after the ordinance is adopted since it is not effective until five days after
certification of the election results. See, R. C. § 731.31. However, the City has already
entered into the contract with Inland. Therefore, the action called for by the ordinance is
purely illusory and will have no legal effect.
Finally, even if the proposed ordinance did repeal Ordinance No. 126-2007, and
even if R.C. 1.57 applied to ordinances, and even if the City Manager did not have
authority under the Procurement Code, the contract with Inland would not be impacted
because the City Manager executed the contract on January 31, 2008 prior to any
purported withdrawal of her authority to enter into the contract. Furthermore, paragraph
10 of the City's contract with Inland Service Corporation specifically states that
subsequent repeal of said Ordinance No. 126-2007 shall not result in termination or
cancellation of the contract and without cancellation there would also be no contract
damages to pay to Inland.
In addition to failing to actually propose a law, the poorly drafted proposed
ordinance will result in voter confusion. The opinion poll wording may prompt voters to
freely express their "opinion" about what they want or desire without a clear
understanding of the legal effect, if any, of the proposed ordinance. Voting that you "do
not desire the 'privatization' of trash services" or that you "don't want the City's
Administration to enter into any such contract" is not the same as voting to terminate the
11
existing contract and paying contract damages. Many of the items that the residents
"want to continue" - such as "solid waste stickers for refuse collection and not for
recycling with garage-side pickup" - are in fact continued in the solid waste contract
with Inland Service Corporation. The wording of the proposed ordinance needlessly
confuses the voters by failing to set forth clear and specific legislative action.
In conducting the hearing on the protest and ultimately denying the protest and
allowing the proposed ordinance to be placed on the November 4, 2008 general
election ballot, Respondent has exercised quasi-judicial power. Respondent's decision
and action is unauthorized by law and contrary to Art. II, § 1f, Ohio Constitution and
other clear legal provisions and an abuse of discretion. Since Relators otherwise lack a
plain and adequate remedy in the ordinary course of law, this Court should issue a Writ
of Prohibition.
b. The Initiative Does Not Contain the Required Number of Signaturesof Electors and Must Be Rejected
Section III of the Charter of the City of Upper Arlington adopts the requirements
of the Ohio Revised Code for the exercise of the right of initiative. Ohio Revised Code
§731.28 requires that to exercise the right of initiative in a municipality, the petition must
contain a minimum number of valid signatures of qualified electors of the municipality
equal to ten per cent of the total vote for governor in the municipality at the most recent
gubernatorial general election. The authority for the General Assembly to prescribe the
required number of signatures for a municipal initiative petition comes directly from Art.
II, § If, Ohio Constitution.
The initiative petition herein contains a legally insufficient number of signatures of
qualified electors of Upper Arlington. Even without taking into consideration the other
12
grounds of the protest, it is at least 152 signatures short of the statutorily required
minimum of 10% of the most recent vote for governor in the City of Upper Arlington. R.
C. § 731.28.
In the 2006 General Election, the last election for the office of governor, the
Franklin County Board of Elections received a record number of absentee ballots.
These ballots were counted by Respondent in a separate countywide "precinct."
Respondent has erroneously calculated the petitioners' signature threshold requirement
as 10% of the votes cast for governor only at the polling places on election day,
disregarding the 4,854 valid absentee ballots cast by qualified electors of Upper
Arlington at the 2006 general election and all of the votes for governor by those
electors. Respondent cannot alter the statutory threshold for qualification to appear on
the ballot, either by error or by failing to include votes cast by absentee ballot.
A Board of Elections may not accept a petition that fails to meet the statutory threshold
for the number of signatures required.
This Court has previously held that mistaken advice by a board of elections
regarding the number of signatures required does not estop the board from invalidating
a referendum petition, State ex rel. Moore v. Malone, 96 Ohio St.3d 417, 2002-Ohio-
4821, 775 N.E.2d 812, ¶40, or removing a candidate from the ballot. State ex rel.
McMillian v. Ashtabula Cty. Bd. Of Elections, 65 Ohio St.3d 186, 189, 1992-Ohio-85,
602 N.E.2d 631. These decisions are consistent with the Court's numerous rulings that
estoppel does not apply against election officials. State ex rel. Steele v. Morrissey, 103
Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶37 (Reliance on forms prescribed
by the Secretary of State and advice by the board of elections in completing initiative
petition.); State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 476, 2002-Ohio-997,
13
764 N.E.2d 971 (Auditor's four month delay in raising insufficiency of initiative petition.);
State ex rel. Shaw v. Lynch (1991), 62 Ohio St.3d 174, 176, 580 N.E.2d 1068 (Reliance
on city council clerk advice concerning referendum petitions); State ex rel. Chevalier v.
Brown (1985), 17 Ohio St.3d 61, 63, 477 N.E.2d 623 (Reliance on statements and
actions of Secretary of State and board of elections regarding mayoral election.); and
State ex rel. Svete v. Geauga Cty. Bd. Of Elections (1965), 4 Ohio St.2d 16, 18, 212
N.E.2d 420 (Reliance on advice of Board of Elections employee regarding candidate
petitions.); also see Doss Petroleum v. Columbiana County Board of Elections
(Columbiana App.), 164 Ohio App.3d 255, 2005-Ohio-5633, 842 N.E.2d 420 (Board of
Elections clerk told the petitioners that they would need to submit 82 valid signatures to
appear on the ballot when they actually needed to submit 96 valid signatures.)
R.C.§ 731.28 requires an initiative petition to "contain the signatures of not less
than ten per cent of the number of electors who voted for governor at the most recent
general election for the office of governor in the municipal corporation." When enacting
R.C. § 731.28, the General Assembly did not limit the number of electors to only include
those that voted at the polls. The Board has no statutory authority or discretion to
simply ignore the votes cast for governor by absentee voters.
While this Court has recognized that provisions for municipal initiative are
liberally construed State ex rel. Rose v. Lorain Cty. Bd. Of Elections (2000), 90 Ohio
St.3d 229, 230, 736 N.E.2d 886, "the settled rule is that election laws are mandatory
and require strict compliance and that substantial compliance is acceptable only when
an election provision states that it is." State ex rel. Ditmars v. McSweeney, 94 Ohio
St.3d 472, 476, 2002-Ohio-997, 764 N.E.2d 971 (Rejecting initiative petitioner's
argument that Columbus Charter circulator requirement be liberally construed). See
14
also State ex rel. Columbia Reserve Ltd. v. Lorain Cty. Bd. Of Elections, 111 Ohio St.3d
167, 2006-Ohio-5019, ¶743-45 (LANZINGER, J.J., concurring)(Granting writ of
prohibition due to lack of strict compliance with R.C. §519.12 despite township
supplying the referendum petitioners the wrong zoning map.)
R.C. §731.28 does not expressly permit substantial compliance in counting the
number of electors who voted for governor, therefore it requires strict compliance.
Furthermore, "[the Court] need not apply interpretative rules to discern its meaning; [the
Court] need only apply its unambiguous language. State ex ret. Wolfe v. Delaware Cty.
Bd. Of Elections, 88 Ohio St.3d 182, 186, 2000-Ohio-294, 724 N.E.2d 771 (Rejecting
sheriff candidate's argument that R.C. §311.01 be liberally construed). Because the
signature requirement in R.C. §731.28 is unambiguous, this Court can simply "apply the
statute rather than construe it" State ex ret. Steele v. Morrissey, 103 Ohio St.3d 355,
2004-Ohio-4960, 815 N.E.2d 1107, ¶34 (Rejecting initiative petitioners' argument that
R.C. §731.32 be liberally construed.).
Although Respondent can not determine the precise number of votes for
governor contained on the 4,854 Upper Arlington absentee ballots due to the fact that
Respondent used the same ballot style for absentee voters in Upper Arlington precincts
and a number of precincts in adjoining subdivisions in the same congressional and state
house of representatives districts, it is in fact possible to determine the lowest number of
votes for governor on the Upper Arlington absentee ballots. This favors would be
initiative and referendum petitioners by using the lowest possible vote for governor in
applying the 10% requirement. According to Respondent out of the all style 10
absentee ballots cast at the election (9,000 by mail and 791 on machines at the board's
office), there were 24 overvotes, 215 undervotes and 9,552 votes for governor. If all the
15
over and under votes are attributed to Upper Arlington absentee voters and subtracted
from the number of Upper Arlington absentee ballots, then the result is the lowest
possible number of votes for governor cast by absentee voters in the City of Upper
Arlington. The number is 4,615 (4854 minus 239). Combined with the number of votes
for governor at the polls in Upper Arlington, the total lowest possible number of votes for
governor cast by electors of the City of Upper Arlington is 18,151 (13,536 plus 4,615).
Ten percent of this number is 1,815 (rounding down the fraction). As determined by
Respondent, the initiative petition contains only 1,663 valid signatures, which is 152
short of the statutory minimum.
The minimum number of required signatures for the petition to be sufficient is not
something that Respondent may change. It is clear, that this petition falls short. The
initiative petition does not contain the minimum number of required signatures for the
proposed "ordinance" to be placed on the ballot. In denying the protest and allowing the
issue to be placed on the ballot, Respondent has acted contrary to clear legal
requirements for submission of the issue.
c. The Initiative Petition Fails to Designate a Committee and Must BeRejected
R.C. § 731.34 provides for petitioners to name on a municipal initiative petition a
committee of three or more of their number to be responsible for the filing of the petition.
This requirement is mandatory. The initiative petition filed herein fails to name anyone
on the petition as a committee responsible for filing the petition even though spaces are
provided on the front of the petition form for this purpose. The form prescribed by the
Ohio Secretary of State provides the following:
16
We h.ereby designate the following petitioriers a a committee to be regarded as filing this petitfon:
COMMITTEE OF NOT LESS THAN TI3REE PETITIONERS ADDRESS
In the present case, the spaces were left completely blank. Leaving a space blank
when it is required to be competed is a fatal error. See, State ex rel Loss v. Bd. of
Elections (1972), 29 Ohio St. 2d 233, 281 N.E.2d 186. In another case, in determining
whether a referendum petition was properly filed with the board of township trustees,
the Court relied upon the fact that the Secretary of State's prescribed form contained
blank spaces for inserting filing information. In State ex rel Stoll v. Logan Cty. Bd. of
Elections (2008), 117 Ohio St. 3d 76, 81, 2008-Ohio-333, 881 N.E.2d 1214, the Court
observed that: "In fact, the referendum petition included a space for the date it was filed
and a signature line for the township fiscal officer, but these spaces are blank. In
prescribing this form, the Secretary of State has apparently determined that R. C.
§519.12(H) requires filing of township zoning referendum petitions with the township
fiscal officers, and that is a reasonable interpretation of the statute. See, e.g., State ex
re! Sinay v. Sodders (1997), 80 Ohio St. 3d 224, 228-229, 685 N.E. 2d 754 (court defers
to reasonable interpretation of election statutes by Secretary of State as expressed in
petition forms prescribed by the secretary."
The mandatory nature of this requirement becomes obvious when the statutory
provision is read in context and in pari materia with other provisions. The Court has
stated that election laws on the same subject are to be construed together. See, State
17
ex rel Patterson v. Schirmer (1934), 129 Ohio St. 143, 146, 194 N.E. 13 and State ex rel
Evans v. Blackwell (2006), 111 Ohio St. 3d 1, 8, 2008-Ohio-4334, 854 N.E.2d 1025.
R.C. §731.34 provides that the petitioners may designate "a committee of at least
three of their number, who shall be regarded as filing the petition." (Emphasis supplied).
An established rule of statutory construction holds that "may" will be interpreted as
"shalP' in appropriate context, especially where the public interest is served.
Pennsylvania Road Co. v. Porteneld (1971), 25 Ohio St.2d 223, 226, 267 N.E.2d 792;
Stanton v. Frankel Bros. Realty Co. (1927), 117 Ohio St. 345, 158 N.E. 868; Lessee of
Swazey's Heirs v. Blackman (1837), 8 Ohio 5, 19; see also, Columbus, Springfield &
Cincinnati Rd. Co. v. Mowatt (1880), 35 Ohio St. 284, 287. While R. C. § 731.32 begins
by using the word "may," it becomes clear when read in the context of this section and
other statutory provisions, designating a committee is a mandatory requirement.
R.C. §731.32 specifically requires that "whoever seeks to propose an ordinance
or measure in a municipal corporation by initiative petition or files a referendum petition
against any ordinance or measure shall, before circulating such petition, file a certified
copy of the proposed ordinance or measure with the city auditor or village clerk." In
other words, R.C. §731.32, which is specific to initiating a city ordinance, requires that
the persons who intend to circulate an initiative petition must first file a certified copy
with the city. This Court has time and time again held this requirement to be mandatory.
See, State ex rel Mika v. Lemon (1959), 170 Ohio St. 1, 161 N.E.2d 488; State ex rel
Barletta v. Fresch (2003), 99 Ohio St. 3d 295, 2003-Ohio-3629, 791 N.E.2d 452; State
ex rel Steele v. Morrissey (2004), 103 Ohio St. 3d 355, 2004-Ohio-4960, 815 N.E.2d
1107; and State ex rel Lewis v. Rolson (2007), 115 Ohio St. 3d 293, 2007-Ohio-5139,
874 N.E.2d 1200.
18
As indicated by the statutory language, there is an obvious link between R. C. §§
731.32 and 731.34. The only way for election authorities to determine if the requirement
of R. C. § 731.32 has been followed when an initiative petition proposing an ordinance
or a referendum petition is subsequently filed, is for the petitioners to designate on the
petition, as provided by statute, at least three of their number as the committee that
shall be regarded as filing the petition. These individuals or at least one must be the
same as the person or persons fulfilling the requirement of R. C. § 731.32 that whoever
seeks to propose an ordinance or refer an ordinance must before circulation file a
certified copy of the ordinance or proposed ordinance. Otherwise, it is not certain that
the certified copy is by the same party or parties who subsequently file a petition. For
example, multiple referendum petitions may be circulated and filed on the same
ordinance.
R.C. §731.34 protects the public and those considering whether or not to sign the
petition by disclosing the names and address of the individuals who are responsible for
the issue and who can be contacted by the public, the municipality, or the board to
obtain additional information about the petition or to provide notice of any deficiency or
protest. The question in the present case regarding whom to notify on behalf of the
petitioners that a protest was filed and would be heard by Respondent highlights the
need to designate a committee. The Board notified one of the circulators, Michael
Schadek, but he is not legally designated as a representative for the petitioners, i.e., the
signers of the petition. He cannot speak for the petitioners or other circulators.
There is only one method provided by the governing statutes for petitioners to
designate a representative, i.e., by designating on the petition a committee of at least
three of their number, meaning three signers of the petition. Without the petitioners
19
designating Mr. Schadek as part of a committee to represent them, he is merely one of
the circulators and only competent to speak about his own acts as a circulator, not to
act in a representative capacity.
There is another important and vital function of the petitioners' committee. In the
sentence immediately following the one providing for the designation of a committee,
R.C. §731.34 then imposes a mandatory duty to be performed by the committee. It
provides that if, after an initiative is filed, the municipal legislative authority adopts the
proposed ordinance or a substitute approved by the committee, then a majority of the
committee shall notify the board of elections in writing and the proposed ordinance shall
not to be submitted to the electors. As a more specific provision, it controls over the
general provision at the beginning of the section. See, State ex rel Oster v. Lorain Cty.
Bd. of Elections (2001), 93 Ohio St. 3d 480, 756 N.E.2d 649. Without a committee
designated on the petition, this affirmative duty cannot be undertaken. Nor is there an
identified committee to approve a substitute version of the ordinance.
The failure to name a committee undermines both the statutory scheme and the
authority of the legislative branch of city government. If a city council were to adopt the
proposed ordinance and there was no committee to exercise the duty to notify the board
of elections, the proposed ordinance would still need to be submitted to the voters
because the board would have no authority to remove it. The board's authority to
remove the issue is conditioned on receiving the notification by a majority of the
committee. In addition to the waste of municipal and county moneys that would result
from holding an unnecessary election, not to mention voter confusion, if the issue
passes there would be two identical ordinances on the books with different effective
dates. If the issue failed, the ordinance passed by council would still be effective
20
despite the vote of the people. What avoids all of this unnecessary confusion is the
simple designation of a committee, which the General Assembly clearly intended given
the statutory scheme carefully crafted by it.
There is yet one other statutory provision that demonstrates the General
Assembly's intent with respect to R. C. § 731.34's provision for designating a
committee. R.C. §3501.38(I)(2)(b) provides that an issue may be withdrawn from the
ballot by a majority of the "petitioning committee" filing a written notice of withdrawal
with the board. This provision was enacted in 2006, and provides the only method for
voluntarily removing an issue from the ballot submitted by petition. The legislative intent
is obvious, i.e, to provide a procedure to prevent the waste of public resources when the
persons responsible for filing an initiative or referendum petition decide that they no
longer wish to submit the issue to the electors. In the case of a municipal initiative
petition, this can not be accomplished unless a committee has been designated
pursuant to R.C. § 731.34.
21
IV. CONCLUSION
In denying the protest and allowing the issue to be placed on the ballot,
Respondent has exercised quasi-judicial authority contrary to clear legal requirements
for submission of the issue. For all the reasons set forth herein, this Court should issue
a writ of prohibition prohibiting Respondent from placing the issue on the ballot.
Respectfully submitted,
JE wE A. HUMMER a65)T M LINDSEY (0033165)CITY OF UPPER ARLINGTON3600 Tremont RoadUpper Arlington, Ohio 43215Tel: (614) 583-5020Fax: (614) [email protected]
Counsel for Relator City of Upper Arlington
DONALD J. MCTiGUE (0022849)MARK A. McGiNNiS (0076275)THE MCTIGUE LAW GROUP550 East Walnut StreetColumbus, Ohio 43215Tel: (614) 263-7000Fax: (614) [email protected]
Special Counsel for Relator City of Upper Arlingtonand Counsel for Relators Margaret Concilla andDavid A. Varda
22
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was transmitted via
facsimile machine, electronic mail and/or personal service, this .2;^- day of September,
2008, to:
PATRICK PICCININNIASST. FRANKLIN CTY. PROSECUTOR373 South High Street, 14th FloorColumbus, Ohio 43215
Fax: (614) [email protected]
JAMES C. BECKER4380 Braunton RoadColumbus, Ohio 43220
Fax: (614) [email protected]
t
23
