Opinion
No. 76-1092
Decided October 19, 1976.
Prohibition — Writ denied, when — Elections — Secretary of State — Placing issues on ballot and tabulating votes — Not exercise of quasi-judicial power.
IN PROHIBITION.
On September 27, 1976, relators, Eugene P. O'Grady, John M. Mountain and James A. Garry, filed a petition in this court to prohibit respondent, Secretary of State, "from allowing Issues 4, 5, 6, and 7, to be voted on by the electorate of Ohio in the general election to be held November 2, 1976," and to prohibit "defendant-respondent Secretary of State from tabulating any votes cast on Issues 4, 5, 6, and 7, at the November 2, 1976, general election."
In their petition relators allege, in part, and respondent in his answer admits, that:
"4. On August 3, 1976, and on September 7, 1976, a number of part-petitions and supplemental part-petitions, respectively, were filed with defendant-respondent Secretary of State seeking to amend the Constitution of the state of Ohio by the initiative method.
"5. On September 3, 1976, prior to the time the supplemental part-petitions were filed and the amendments were certified to be placed on the ballot at the November 2, 1976, general election, the committee named in the initiative petition filed arguments in favor of each of the four proposed amendments; however, at that time and all times prior thereto, neither the General Assembly nor the Governor appointed persons to prepare arguments or explanations in opposition to the proposed amendments.
"* * *
"7. On September 14, 1976, STATE OF OHIO, ex rel., SANDRA S. STERRETT, et al., being case No. 76-1043, was filed as an original action in this court against THE GENERAL ASSEMBLY OF OHIO and the defendant-respondent Secretary of State of Ohio, seeking by Complaint In Mandamus to Cause the proper publication of arguments and explanations, or both, in opposition to the proposed amendments to be published as required by the Constitution and laws of Ohio.
"8. Pursuant to the STERRETT litigation filing, the General Assembly adopted S.J.R. 49, on September 17, 1976, naming defendant-respondent, William J. Ahern, Thomas E. Carney, Margaret Cohn, and George C. Farris, being the members of the Ohio Ballot Board, to prepare the arguments, explanations, or both, in opposition to the proposed amendments, but defendant-respondent Secretary of State refused to accept his appointment and none of the other appointees has acted to prepare such opposition arguments, explanations, or both, for the required publication.
"9. Defendant-respondent Secretary of State stated on September 15, 1976, that the part-petitions, together with the supplemental part-petitions, were sufficient, and contain the requisite number of signatures, and the defendant-respondent Secretary of State is acting to place four Constitutional amendments on the ballot to be voted on separately as Issues 4, 5, 6, and 7, at the November 2, 1976, general election ballot.
"10. Section lg of Article II of the Ohio Constitution, and Section 3519.03 of the Ohio Revised Code, require arguments, or explanations, or both, to be prepared in favor of, and in opposition to the proposed amendments, and Section 3519.03 directs that such arguments, explanations, or both, be filed with Secretary of State at least sixty days prior to the date of the election at which the measure is to be voted upon. September 3, 1976, was the sixtieth day before the general election on November 2, 1976, and no arguments or explanations in opposition to the proposed amendments were filed with the Secretary of State because neither the General Assembly nor the Governor had appointed persons to prepare arguments or explanations in opposition to the proposed amendments.
"11. Section lg of Article II of the Ohio Constitution further requires that the defendant-respondent Secretary of State cause to be published the proposed amendments together with such arguments, or explanations, or both, as set forth in paragraph 10, supra, once a week for five consecutive weeks preceding the election, in at least one newspaper of general circulation in each county of the state, where a newspaper is published."
Respondent, in his answer, states, in part, that:
"3. The Secretary of State, by letter dated September 9, 1976 to the majority and minority leaders of both houses of the General Assembly, stated that he could not delay prescribing the form of legal advertising any longer and that he was transmitting the form to the boards of elections without the arguments or explanations in opposition to the proposed amendments.
"4. Publication of the proposed amendments and the arguments in favor of the amendments commenced the week of September 19, 1976."
Robert L. Loitz, Pauline L. Brokaw, and Brady E. Bancroft, who were involved in circulation of the initiative petition in question and participated in preparation of proponent arguments, were granted permission to intervene, and filed an answer and brief.
Messrs. Alexander, Ebinger, Holschuh, Fisher McAlister and Mr. Robert B. McAlister, for relators.
Mr. William J. Brown, attorney general, and Mr. Thomas V. Martin, for respondent Secretary of State.
Messrs. Moots, Hulton, Weinberger Cope, Mr. Robert M. Weinberger, Mr. Edward A. Harter and Mr. John Quinn, for respondent intervenors.
The determinative issue presented in this cause is whether a writ of prohibition is an available remedy for the relief sought by relators.
"It has long been the law of this state that the conditions which must exist to support the issuance of a writ of prohibition are: (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that refusal of the writ would result in injury for which there is no other adequate remedy. * * *" State, ex rel. Lehmann, v. Cmich (1970), 23 Ohio St.2d 11. It is the first of the above-stated requisites which is crucial in the instant cause. For relators to prevail there must be a "* * * showing that the acts [of the Secretary of State] sought to be prohibited constitute a usurpation of quasi-judicial power. * * *" State, ex rel. Schwartz, v. Brown (1972), 32 Ohio St.2d 1, 3.
Section 1g, Article II, Ohio Constitution, provides that the Secretary of State "shall cause to be placed upon the ballots" any proposed laws or amendments to the Constitution which are presented by initiative petition. Although the "* * * Secretary of State necessarily will act in a quasi-judicial capacity in determining the sufficiency of the petition" ( State, ex rel. Patton, v. Myers, 127 Ohio St. 95, 98), the placing of the issues on the ballots is ministerial in nature and not quasi-judicial. The acts of the Secretary of State herein sought to be prohibited fall squarely within the definition of "ministerial act" found in Black's Law Dictionary (4 Ed.). That definition, which was quoted approvingly by the court in Maloney v. Rhodes (1976), 45 Ohio St.2d 319, 323, reads: "One which a person performs in a given state of facts in a prescribed manner in obedience to the mandate of legal authority, without regard to or the exercise of his own judgment upon the propriety of the act being done."
It is the conclusion of this court that the placing of the issues in question on the ballots and tabulating the votes cast thereon do not constitute the exercise of quasi-judicial power by the Secretary of State. Therefore, there is "no showing that the acts sought to be prohibited constitute a usurpation of quasi-judicial power" ( State, ex rel. Schwartz, v. Brown, supra), and prohibition does not lie.
Although relators' request for a writ of prohibition must be denied for the reasons expressed above, it is fitting to observe that the delay between the time the Secretary of State informed the leaders of the General Assembly that he could no longer delay the advertising, on September 9, and the time of the filing of relators' action in this court on September 27, could, in itself, be sufficient cause to deny relief even if relators were otherwise entitled to it. In election cases "* * * where time is such an important factor, extreme diligence and the promptest of action * * *" are required, and can result in deprivation of the relief sought. State, ex rel. Schwartz, v. Brown (1964), 176 Ohio St. 91.
Accordingly, the writ of prohibition is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.