The opinion
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The State ex rel. Semik v. Board of Elections of Cuyahoga Cty.
et al.
[Cite as State ex rel. Semik v. Bd. of Elections of Cuyahoga
Cty. (1993), Ohio St.3d .]
(No. 93-1238 -- Submitted and decided July 27, 1993 --
Opinion announced September 15, 1993.)
In Prohibition.
Relator, Grace Semik, sought a writ of prohibition to
prevent respondents, the Cuyahoga County Board of Elections and
its director, from placing a proposed amendment to the
Independence City Charter on the ballot at a special election
held August 3, 1993. She argued that holding a special
election violated Article X of the charter. She filed a
protest before the board of elections, but the protest was not
upheld.
Respondents filed a motion for summary judgment.1 On July
27, 1993, we granted respondents' motion for summary judgment
and denied the writ with opinion to follow. 67 Ohio St.3d
1414, N.E.2d . This is that opinion.
Rapoport, Spitz, Friedland & Courtney and Alan J.
Rapoport, for relator.
Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, and Michael P. Butler, Assistant Prosecuting
Attorney, for respondents.
Seeley, Savidge & Aussem and William E. Blackie III, for
intervening respondents.
Per Curiam. Relator contended that the special election
violated Article X of the Independence City Charter. Article X
states that, upon receipt of a petition proposing a charter
amendment signed by at least ten percent of the registered
voters of the city, the council "shall submit such proposed
amendment to the electors at the next general or regular
municipal election." The proposed amendment in this case was
to be submitted at a special election to be held on August 3,
1993, which was neither a general nor regular municipal
election date, in clear violation of the charter. However,
Section 9 of Article XVIII, Ohio Constitution, states in part
that submission of charter amendments to the electorate "shall
be governed by the requirements of section 8 [of Article XVIII]
as to the submission of the question of choosing a charter
commission," and Section 8 of Article XVIII states in relevant
part:
"The ordinance providing for the submission of such
question shall require that it be submitted to the electors at
the next regular municipal election if one shall occur not less
than sixty nor more than one hundred and twenty days after its
passage; otherwise it shall provide for the submission of the
question at a special election to be called and held within the
time aforesaid."
In this case, the ordinance certifying the proposed
amendment to the board of elections was passed on May 25, 1993;
August 3, 1993, the date of the special election, was between
sixty and one hundred twenty days after passage of the
ordinance, as required by Section 8 of Article XVIII, Ohio
Constitution, since no general or regular municipal election
occurred within that time. Thus, the special election complied
with the Constitution, but violated the charter.
In Billington v. Cotner (1971), 25 Ohio St.2d 140, at 146,
54 O.O.2d 270, at 273, 267 N.E.2d 410, at 414, we held that the
"manifest object" of Section 9 of Article XVIII "is to provide
the procedure for the submission of a charter amendment to
electors. The requirements are clear and complete, and are not
to be added to or subtracted from."
Relator argues that municipal corporations may "exercise
all powers of local self-government" under Section 3 of Article
XVIII, Ohio Constitution, and that this "home rule" authority
allows the charter to prescribe an alternative method for its
amendment. She cites cases in which home rule powers were held
to supersede state statutes. However, in State ex rel.
Hinchcliff v. Gibbons (1927), 116 Ohio St. 390, 156 N.E. 455,
we resolved a conflict between charter provisions and
constitutional procedures for amending a charter in favor of
the constitutional provisions. In that case, the Cleveland
City Charter provided for the filing of petitions proposing
charter amendments with the "election authorities," whereas
Section 9 of Article XVIII requires submission to the municipal
legislative authority. We held:
"Inasmuch as the Constitution requires the submission to
be made by legislative authority, it follows that the authority
need not make the submission unless satisfied of the
sufficiency of the petitions and that all statutory
requirements are fairly met. This function being reposed by
the Constitution in the legislative branch of the government,
it does not lie in the power of the people of the municipality
to transfer it to an arm of the executive branch, viz. the
board of elections. This must be true for a stronger reason.
The board of elections is not in any sense a municipal
functionary. It is strictly a board and an arm of the state
government. It would be anomalous indeed that an agency of the
state government could impose upon a municipality a special
election in a matter in which the municipality alone was
affected.
"In reaching a determination of this case it is not
necessary to declare Section 182 of the charter to be
unconstitutional. It is sufficient to say that its provisions
are contrary to the constitutional provisions, and, the
Constitution being the higher authority, it must be regarded,
and the charter must be ignored. The paramount authority must
prevail over the subordinate authority." 116 Ohio St. at 395,
156 N.E. at 457.
We affirm this conclusion. Section 7 of Article XVIII
authorizes municipal corporations to adopt and amend a charter,
and Sections 8 and 9 of Article XVIII prescribe the procedures
for adopting and amending a charter. None of these sections
authorizes alternative procedures to be adopted by charter.
Moreover, we have stated on other occasions that home rule
authority granted under Section 3 of Article XVIII is subject
to other provisions of the Constitution. Bazell v. Cincinnati
(1968), 13 Ohio St.2d 63, 42 O.O. 2d 137, 233 N.E.2d 864,
paragraph one of the syllabus; Billings v. Cleveland Ry. Co.
(1915), 92 Ohio St. 478, 484, 111 N.E. 155, 156.
Relator also argues that the charter and constitutional
provisions are not in conflict. However, the charter clearly
requires submission of a proposed charter amendment to the
electors at a general or regular municipal election and
Sections 8 and 9 of Article XVIII require submission between
sixty and one hundred twenty days after passage of the
certifying ordinance if no general or regular or municipal
election occurs within that time. While these requirements
might not conflict in all cases, they do in this case. In this
case, the Constitution must prevail, and the writ must be
denied.
Writ of Prohibition
Respondents also argue that a writ of prohibition will not
issue to prevent the respondent board from placing an issue
such as a proposed charter amendment on the ballot because the
board does not exercise quasi-judicial authority.2 Relator
argues that prohibition has been allowed to keep an
unauthorized candidate's name off the ballot. We recognize
that precedent on this issue is contradictory. However, we
cannot reconcile all conflicting precedent on these facts. We
do find, however, that Sections 8 and 9 of Article XVIII, Ohio
Constitution, require the municipal legislative authority to
adopt an ordinance to place a proposed charter amendment on the
ballot whenever sufficient petitions have been filed. The
municipal legislative authority must exercise quasi-judicial
authority in determining the sufficiency of the petitions. See
State ex rel. Patton v. Myers (1933), 127 Ohio St. 95, 98, 186
N.E. 872, 873. However, the respondent board of elections has
nothing but a ministerial role under the Constitution. Indeed,
under our decision in Hinchcliff, supra, the board cannot be
granted decisive authority in this area. Therefore, its
actions in placing the proposed amendment on the ballot are not
quasi-judicial, and the writ cannot be allowed. See State ex
rel. O'Grady v. Brown (1976), 48 Ohio St.2d 17, 20, 2 O.O.3d
94, 96, 356 N.E.2d 296, 298.
Accordingly, respondents' motion for summary judgment was
granted and the writ denied.
Writ denied.
Moyer, C.J., A.W. Sweeney, Wright, Resnick, F.E. Sweeney
and Pfeifer, JJ., concur.
Douglas, J., dissents.
FOOTNOTES
1 The petitioners who placed the charter amendment on the
ballot moved to intervene as respondents. We granted the
motion to intervene pursuant to Civ. R. 24(A)(2) in 67 Ohio
St.3d 1415, 616 N.E.2d 243. See Ohio Dept. of Adm. Serv.,
Office of Collective Bargaining v. State Emp. Relations Bd.
(1990), 54 Ohio St.3d 48, 51, 562 N.E.2d 125, 128; State ex
rel. Glass v. Brown (1977), 52 Ohio St.2d 7, 6 O.O.3d 76, 368
N.E.2d 837.
2 To obtain a writ of prohibition, relator must prove "(1)
that the court or officer against whom the writ is sought is
about to exercise judicial or quasi-judicial power, (2) that
the exercise of that power is unauthorized by law, and (3) that
denying a writ will result in injury for which no other
adequate remedy exists in the ordinary course of law." State
ex rel. Ruessman v. Flanagan (1992), 65 Ohio St.3d 464, 465,
605 N.E.2d 31, 33.