Opinion
No. 16–CA–0049.
09-16-2016
The STATE of Ohio ex rel. Kelli A. BARTLETT, Relator v. Gene COLLIER, Clerk of Council for City of New Carlisle, Respondent.
{¶ 1} Kelli A. Bartlett filed a Verified Complaint for a Peremptory Writ of Mandamus or Alternative Writ of Mandamus on August 23, 2016. She asks this court to compel Gene Collier, Clerk of Council for City of New Carlisle (the "Clerk"), to certify the sufficiency and validity of her initiative petition to the Clark County Board of Elections.
{¶ 2} The Clerk filed an answer to the complaint on September 12, 2016, as well as a motion for judgment on the pleadings. On September 13, 2016, Bartlett filed a combined response to the Clerk's motion, as well as her own motion for summary judgment. Collier filed a response to the motion for summary judgment on September 16, 2016. For the following reasons, we grant a writ of mandamus.
Facts and Procedural History
{¶ 3} The facts underlying the complaint are largely undisputed. Bartlett submitted a document entitled "CITY OF NEW CARLISLE, OHIO INITIATIVE PETITION" to the Clerk on July 26, 2016 (the "Petition"). The Petition asked "that the ordinance proposed herein be adopted by the Council or submitted to a vote of the electors of this city for their approval or rejection at the next general election in accordance with Section 10.01 of the municipal code." The proposed ordinance was entitled:
AN INCOME TAX CREDIT IN AN AMOUNT EQUAL TO INCOME TAXES PAID BY A RESIDENT TAXPAYER TO ANOTHER MUNICIPAL CORPORATION WHICH INCLUDES AMENDING MUNICIPAL TAX CODE SECTION 880.04 REGARDING THE IMPOSITION AND RATE OF INCOME TAX.
The Petition contained a notice, in large font, on the top of each page, that read: "Whoever knowingly signs this petition more than once, signs a name other than his own, or signs when not a legal voter is liable to prosecution." It also contained a "Circulator Statement" on the last page, signed by Bartlett.
{¶ 4} The Clerk transmitted the Petition to the Clark County Board of Elections, which found 157 valid signatures thereon. The parties agree that the Petition contained a sufficient number of valid signatures. However, the Clerk, relying on the opinion of the City of New Carlisle's law director, refused to certify validity and sufficiency of the Petition to the Clark County Board of Elections for inclusion on the November 8, 2016 ballot. The parties exchanged correspondence through August 19, 2016 concerning alleged defects in the Petition, which include the timeliness of the petition, the "legality" of a portion of the petition, and the omission of certain statements required by statute. On August 23, 2016, Bartlett filed the instant complaint in mandamus.
Mandamus
{¶ 5} To be entitled to a writ of mandamus, Bartlett must show that the she has a clear legal right to certification of the petition, that the Clerk has a corresponding clear legal duty to certify the petition, and that she lacks an adequate remedy at law. State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 23. The parties' dispute centers on the first two elements, as the upcoming November 8, 2016 election precludes an adequate remedy in the ordinary course of the law. Id. at ¶ 42–43 ("Given the proximity of the November 8 election, any appellate process would last well past the election").
Motions
{¶ 6} The Clerk has moved for judgment on the pleadings. Dismissal under Civ.R. 12(C)"is appropriate where a court (1) construes the material allegations in the complaint, with all reasonable inferences to be drawn therefrom, in favor of the nonmoving party as true, and (2) finds beyond doubt, that the plaintiff could prove no set of facts in support of his claim that would entitle him to relief." State ex rel. Midwest Pride IV, Inc. v. Pontious, 75 Ohio St.3d 565, 570, 664 N.E.2d 931 (1996), citing Lin v. Gatehouse Constr. Co., 84 Ohio App.3d 96, 99, 616 N.E.2d 519 (8th Dist.1992).
{¶ 7} Bartlett has moved for summary judgment. To be entitled to summary judgment, "it must be determined that: (1) No genuine issue as to any material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the party against whom the motion for summary judgment is made, that conclusion is adverse to that party." Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327, 364 N.E.2d 267 (1977), citing Civ.R. 56(C).
Statutes
{¶ 8} The rules governing initiative petitions in municipal corporations are found in Chapter 731 of the Revised Code, specifically, Section 731.28 through Section 731.42. The presentation of such a petition is governed by R.C. 731.31, which sets forth certain rules and states that "[p]etitions shall be governed in all other respects by the rules set forth in section 3501.38 of the Revised Code."
{¶ 9} R.C. 3501.38 is part of Chapter 3501 governing election procedure and officials, and part of the subchapter on candidacy. It contains two provisions that the Clerk alleges, and Bartlett concedes, are not satisfied here:
(E)(1) On each petition paper, the circulator shall indicate the number of signatures contained on it, and shall sign a statement made under penalty of election falsification that the circulator witnessed the affixing of every signature, that all signers were to the best of the circulator's knowledge and belief qualified to sign, and that every signature is to the best of the circulator's knowledge and belief the signature of the person whose signature it purports to be or of an attorney in fact acting pursuant to section 3501.382 of the Revised Code. On the circulator's statement for a declaration of candidacy or nominating petition for a person seeking to become a statewide
candidate or for a statewide initiative or a statewide referendum petition, the circulator shall identify the circulator's name, the address of the circulator's permanent residence, and the name and address of the person employing the circulator to circulate the petition, if any.
* * *
(J) All declarations of candidacy, nominating petitions, or other petitions under this section shall be accompanied by the following statement in boldface capital letters: WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.
{¶ 10} However, R.C. 731.31, which incorporates R.C. 3501.38 into the requirements for municipal initiative petitions, does "not apply to any municipal corporation which adopts its own charter containing an initiative and referendum provision for its own ordinances and other legislative measures." R.C. 731.41. Instead, the charter provisions apply. State ex rel. Ohio Nat. Bank. v. Lancione, 54 Ohio St.2d 416, 418, 377 N.E.2d 507 (1978) (finding it "apparent" that the charter provisions apply, not the statutes). Whether a board of elections appropriately applies the requirements of R.C. 3501.38 in addition to charter provisions has not been consistently resolved, and is not before the court at this time. Compare State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 32 (holding that R.C. 3501.38(J) applies to a mayoral recall petition where the charter incorporated Ohio's general election law) with State ex rel. Blackman v. Hitte, 5 Ohio St.3d 156, 158, 449 N.E.2d 1279 (1983) (holding that R.C. 3501.38(J) did not apply where the charter language was limited), Lancione at 417–418, 377 N.E.2d 507 (circulators under a charter need not comply with R.C. 3501.38(E) and (J) ), and State ex rel. Madison v. Cotner, 66 Ohio St.2d 448, 450, 423 N.E.2d 72 (1981) (R.C. 3501.38(E)"has no applicability to relators' petition").
City Charter
{¶ 11} The City of New Carlisle has adopted and is governed by a Charter. Article X, Section 10.01 of the Charter concerns initiative and referendum petitions, and provides in its entirety:
(a) Ordinances and resolutions may be proposed by initiative petition and adopted by election. Ordinances and resolutions adopted by Council shall be subject to referendum as provided by the Constitution and laws of Ohio, except as deviated from by this Charter as follows:
(1) Initiative and referendum petitions must be signed by not less than ten percent (10%) of the number of persons voting in the City in the preceding gubernatorial election;
(2) Initiative and referendum petitions shall be filed with the Office of the Clerk of Council for review of sufficiency including the number, but not the validity, of signatures as indicated in (a)(1) above.
(b) When an initiative petition which meets the requirements of this Charter is properly filed with the Office of the Clerk of Council, the Clerk shall, within ten (10) days, transmit a certified copy of the text of the proposed ordinance or other measure, together with the petition, to the Board of Elections.
(c) When a referendum petition which meets the requirements of this Charter, signed as in (a)(1) above, is properly filed with the Office of the Clerk within fifteen (15) days after any ordinance or other measure is passed by the legislative authority, ordering such ordinance or measure to be submitted to the
electors of the City for their approval or rejection, the Clerk, within ten (10) days, shall transmit the petition and a certified copy of the text of the proposed ordinance or other measure to the Board of Elections.
(d) The Board shall examine all signatures on initiative and referendum petitions to determine the number of qualified electors of the City who signed the petition. The Board shall return the petition to the Clerk within ten (10) days after receiving it, together with a statement attesting to the number of such electors who signed the petition. If the petition contains the required number of valid signatures, the Clerk shall forthwith certify the sufficiency and validity of the petition to the Board of Elections.
(e) The Board shall submit the ordinance or measure to the electors of the City, for their approval or rejection, at the next succeeding general election, occurring subsequent to seventy-five (75) days after the Clerk certifies the sufficiency and validity of the petition to the Board of Elections, unless Council, by a majority vote of its members, submits such ordinance or measure for approval or rejection at a special election.
Charter, Article X, Section 10.01.
{¶ 12} Notably, Section 10.01 governing initiative petitions does not provide for the Clerk's consultation with the city's law director, or require that the form, sufficiency, and regularity of an initiative petition "be determined as provided in the general election law" (compare Article X, Section 10.02(d) and (b) concerning recall petitions); does not require the use of a standard form as prescribed by the board of elections, or require that each part of an initiative petition be "verified under oath by the circulator as required by the election laws of the State of Ohio" (compare Article IX, Section 9.01 concerning nominating petitions); or require that an initiative petition be "reviewed as to form and correctness" by the law director (compare Article IV, Section 4.14(a) concerning ordinances proposed by the council). The Supreme Court of Ohio has held that charter provisions for initiative petitions should be liberally construed to permit the exercise of the power of initiative. State ex rel. Sharpe v. Hitt, 155 Ohio St. 529, 535, 99 N.E.2d 659 (1951) ; State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 47.
{¶ 13} The Charter defines the Clerk of Council's duties. Article IV, Section 4.09 states that "[a]ll petitions which meet the requirements of this Charter, except recall petitions which shall be handled as set forth in Article X, Section 10.02 Recall, shall be delivered to the Board of Elections for certification as provided in Section 10.01 of this Charter." Id.
Analysis
{¶ 14} Before addressing the merits of this mandamus action, we must address two preliminary issues. First, the parties disagree whether the Petition is an initiative petition or a referendum petition. We conclude that it is an initiative petition, as it proposes a new ordinance for approval by the electors, rather than asking the electors to decide whether a newly-enacted ordinance should be accepted or rejected in toto. See Black's Law Dictionary (10th ed. 2014) (Initiative is "[a]n electoral process by which a percentage of voters can propose legislation and compel a vote on it by the legislature or by the full electorate," while referendum is "[t]he process of referring a state legislative act, a state constitutional amendment, or an important public issue to the people for final approval by popular vote"). Compare State ex rel. Osborne v. Zumbar, 5th Dist. Stark No. 2008CA00177, 2008-Ohio-4437, 2008 WL 4061197, ¶ 14 (petition that sought to hold all previous inconsistent legislation null and void was a referendum, not an initiative). This Petition is an initiative petition by definition and in substance.
{¶ 15} Second, the Clerk argues that Bartlett's complaint is barred by laches. The Supreme Court of Ohio has held that "[i]f relators do not act with the required promptness, laches may bar the action for extraordinary relief in an election-related matter." State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 20 (internal citations and quotations omitted). Here, we find that Bartlett acted promptly. The last correspondence between the parties attempting to resolve this issue was sent by the Clerk on August 19, 2016, and Bartlett filed this action on August 23, 2016. We conclude that the complaint is not barred by laches.
{¶ 16} The first two elements of a mandamus action require a relator to show an entitlement to certification of a petition, and a corresponding duty on the part of the respondent to certify. The Charter sets out the Clerk's duties with respect to petitions. "All petitions which meet the requirements of this Charter, except recall petitions which shall be handled as set forth in Article X, Section 10.02 Recall, shall be delivered to the Board of Elections for certification as provided in Section 10.01 of this Charter." Charter, Article IV, Section 4.09.
{¶ 17} The Charter's requirements are set forth in Article X, Section 10.01, which describes a multi-step process for an initiative petition. First, a petition "shall be filed with the Office of the Clerk of Council for review of sufficiency including the number, but not the validity, of signatures * * *." Section 10.01(a)(2). It must be signed by not less than 10% of the number of persons voting in the City in the preceding gubernatorial election. Section 10.01(a)(1). The parties agree this step was completed.
{¶ 18} Second, the initiative petition is transmitted by the Clerk to the Board of Elections: "When an initiative petition which meets the requirements of this Charter is properly filed with the Office of the Clerk of Council, the Clerk shall, within ten (10) days, transmit a certified copy of the text of the proposed ordinance or other measure, together with the petition, to the Board of Elections." Section 10.01(b). The parties agree this step was completed.
{¶ 19} Third, the "Board shall examine all signatures on initiative and referendum petitions to determine the number of qualified electors of the City who signed the petition. The Board shall return the petition to the Clerk within ten (10) days after receiving it, together with a statement attesting to the number of such electors who signed the petition." Section 10.01(d). The parties agree this step was completed. They also agree that the Petition contained a sufficient number of signatures.
{¶ 20} Fourth, "[i]f the petition contains the required number of valid signatures, the Clerk shall forthwith certify the sufficiency and validity of the petition to the Board of Elections." This step is not complete, and is the source of the dispute here.
{¶ 21} The final step is also not complete: "The Board shall submit the ordinance or measure to the electors of the City, for their approval or rejection, at the next succeeding general election, occurring subsequent to seventy-five (75) days after the Clerk certifies the sufficiency and validity of the petition to the Board of Elections, unless Council, by a majority vote of its members, submits such ordinance or measure for approval or rejection at a special election." Section 10.01(e). The Clark County Board of Elections' other responsibilities are not before the court at this time, as the Board is not a party to this case.
{¶ 22} Bartlett argues that the Clerk has a duty to certify the sufficiency and validity of the petition to the Clark County Board of Elections as plainly set forth in Section 10.02(d): "If the petition contains the required number of valid signatures, the Clerk shall forthwith certify the sufficiency and validity of the petition to the Board of Elections." Bartlett argues that the Clerk has a ministerial duty to certify and no discretion to refuse to certify where the petition contains the required number of valid signatures. This argument is supported by the language of Section 4.09 of the Charter, which provides that "[a]ll petitions which meet the requirements of this Charter * * * shall be delivered to the Board of Elections for certification as provided in Section 10.01 of this Charter."
{¶ 23} The Clerk argues that he has discretionary authority to certify the sufficiency and validity of the petition. He cites State ex rel. Sinay v. Sodders, 80 Ohio St.3d 224, 685 N.E.2d 754 (1997), which interprets R.C. 731.28, the parallel state statute governing initiative petitions. The statute does not apply here, because New Carlisle adopted its own charter provision for initiative petitions. R.C. 731.41 (" Sections 731.28 to 731.41, inclusive, of the Revised Code do not apply to any municipal corporation which adopts its own charter containing an initiative and referendum provision for its own ordinances and other legislative measures").
{¶ 24} Sinay is instructive, however. Under the statute, when presented with an initiative petition bearing a sufficient number of signatures, "[t]he auditor or clerk then exercises limited, discretionary authority to determine the sufficiency and validity of the petition. * * * The auditor or clerk does not inquire into questions not evident on the face of the petition or conduct a judicial or quasi-judicial proceeding." Id. at 231, 685 N.E.2d 754. The Supreme Court observed in Sinay "that the discretion of city auditors and village clerks in determining the sufficiency and validity of initiative petitions is similar to the limited discretion of municipal legislative authorities in deciding the sufficiency of petitions to amend a city charter." State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 30, citing Sinay at 231, 685 N.E.2d 754 (relying on Morris v. Macedonia City Council, 71 Ohio St.3d 52, 55, 641 N.E.2d 1075 (1994) ). "A municipal legislative authority's discretion in these cases is ‘limited to matters of form, not substance,’ is ‘more restricted than that of a board of elections,’ does not involve ‘judicial or quasi-judicial determinations, e.g., analyzing if the requirements of R.C. 3501.38(F) have been satisfied,’ and does not permit ‘inquir[ing] into questions not apparent on the face of the petitions themselves or which require the aid of witnesses to determine.’ " Webb at ¶ 30, citing Morris at 55, 641 N.E.2d 1075.
{¶ 25} The Supreme Court found such limited, discretionary authority in the text of the statute, which currently provides:
The board shall submit such proposed ordinance or measure for the approval or rejection of the electors of the municipal corporation at the next general election occurring subsequent to ninety days after the auditor or clerk certifies the sufficiency and validity of the initiative petition to the board of elections.
(Emphasis added). R.C. 731.28.
{¶ 26} As noted above, the Charter, rather than R.C. 731.28, applies in this case. The Charter provides: "If the petition contains the required number of valid signatures, the Clerk shall forthwith certify the sufficiency and validity of the petition to the Board of Elections." Section 10.01(d). Bartlett likens the Charter to a prior version of R.C. 731.28, under which the clerk "had only a ministerial duty to certify to the board of elections the text of a proposal for which sufficient signatures had been obtained, whereas the board of elections had authority under R.C. 3501.11(K) to review the sufficiency and validity of the petition." State ex rel. Osborne v. Zumbar, 5th Dist. Stark No. 2008CA00177, 2008-Ohio-4437, 2008 WL 4061197, ¶ 9, citing State ex rel. Williams v. Iannucci, 39 Ohio St.3d 292, 294, 530 N.E.2d 869 (1988). The prior version of the statute provided:
Where a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days, certify the text of the proposed ordinance or measure to the board of elections. The auditor or clerk shall retain the petition.
The board shall submit such proposed ordinance or measure for the approval or rejection of the electors of the municipal corporation at the next succeeding general election, occurring subsequent to seventy-five days after the certifying of such initiative petition to the board of elections. (138 Ohio Laws, Part II, 4619).
Sinay at 229–230, 685 N.E.2d 754.
{¶ 27} We conclude that the Charter here grants the Clerk some limited, discretionary authority to certify the sufficiency and validity of the petition similar to the current version of R.C. 731.28. The prior version of R.C. 731.28 left "sufficiency and validity" determinations to the Board of Elections; the current version allows the clerk to make such a determination. The Charter likewise allows the Clerk to determine sufficiency and validity. We will not construe the terms to be meaningless. See generally Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 21 (court should avoid construing a provision as meaningless or inoperative).
{¶ 28} As the Supreme Court noted in Webb, however, the Clerk's authority is narrow and does not extend to legal or quasi-legal determinations, such as analyzing whether the requirements of R.C. 3501.38 have been satisfied. Webb at ¶ 30. It also does not allow the Clerk to seek information from witnesses concerning the legality or substance of the Petition. Id. at ¶ 31–32.
{¶ 29} Here, the Clerk relied on the law director's legal opinion about the substance of the petition to reject it. See August 12, 2016 Letter from Law Director ("I have been asked to provide a legal opinion about the sufficiency and validity of the petition * * * "); August 12, 2016 Letter from the Clerk ("For the reasons set forth in the Law Director's Legal Opinion I am unable to certify the sufficiency and validity of the petition * * * "). The law director, in turn, relied on the Clark County Board of Elections' opinion. See August 12, 2016 Letter from Law Director ("The City of New Carlisle and the Clark County Board of Elections are in agreement that the petition fails to comply with both Ohio Revised Code 3501.38(E)(1) and (J)"). The Clerk's final rejection of Bartlett's petition likewise contains numerous legal citations and opinions.See August 19, 2016 Letter from the Clerk (addressing the legal arguments raised by Bartlett by reference to caselaw, the Revised Code, and the law director and Board of Elections' opinions).
{¶ 30} As in Webb, here the Clerk "improperly engaged in a judicial or quasi-judicial determination to decide the manifestly substantive issues." Webb at ¶ 31. Regardless of whether he is correct, the Clerk abused his limited, discretionary authority by making such determinations. Specifically, he relied on the law director's opinion that the text of the petition was "legally incorrect." This is clearly a legal determination outside the Clerk's limited, discretionary authority. It is also a premature finding, which, even if correct, would not bar a petition from certification to the Board of Elections. State ex rel. DeBrosse v. Cool, 87 Ohio St.3d 1, 6, 716 N.E.2d 1114 (1999). In DeBrosse, the Supreme Court held, in a similar mandamus action, that it need not address the Clerk's claim that the proposed ordinance was "substantively illegal," because such a claim "does not bar an election on the proposed initiative ordinance." Id. at 6, 716 N.E.2d 1114. "Any claims alleging the unconstitutionality or illegality of the substance of the proposed ordinance, or actions to be taken pursuant to the ordinance when enacted, are premature before its approval by the electorate." Id.
{¶ 31} Likewise, the Clerk's reliance on the legal director's opinion that the Petition failed to satisfy the requirements of R.C. 3501.38(E)(1) and (J) is outside the Clerk's limited, discretionary authority. Subdivisions (E)(1) and (J) require a circulator's statement and warnings concerning election falsification. Whether the petition satisfies these legal requirements, and indeed, as Bartlett argues, whether these requirements apply, are legal questions not intended for resolution by the Clerk. See Webb at ¶ 30, citing Morris at 55, 641 N.E.2d 1075 ("analyzing if the requirements of R.C. 3501.38(F) have been satisfied" is outside the Clerk's authority).
{¶ 32} We conclude that the Clerk abused his limited, discretionary authority in refusing to certify the Petition to the Clark County Board of Elections on the basis of his legal or quasi-legal investigation into the matter. Bartlett is entitled to a writ of mandamus compelling the Clerk to certify the Petition to the Board of Elections pursuant to the Charter, Article X, Section 10.01(d).
{¶ 33} We emphasize that this is not a determination on the merits or legality of the Petition, or whether the statutory requirements discussed herein apply, or whether the Petition satisfies any applicable statutory requirements. It is not a determination of what the Clark County Board of Elections, not a party here, must decide or do. While there may be legal or quasi-legal determinations to be made, our holding today is that the Clerk of Council is not the right person to make them.
{¶ 34} Accordingly, we OVERRULE the Clerk's motion for judgment on the pleadings, SUSTAIN Bartlett's motion for summary judgment, and GRANT the requested writ of mandamus. Gene Collier, Clerk of Council for City of New Carlisle, is ORDERED to forthwith certify the sufficiency and validity of the Petition to the Clark County Board of Elections.
SO ORDERED.