State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 80 Ohio St.3d 165.]

THE STATE EX REL. HAZEL ET AL. V. CUYAHOGA COUNTY BOARD OF

ELECTIONS ET AL.

[Cite as State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections, 1997-Ohio-129.]

Elections—Mandamus compelling Cuyahoga County Board of Elections to

submit proposed building code ordinance to the city of Parma electorate

at the November 4, 1997 election—Writ granted, when.

(No. 97-1822—Submitted September 22, 1997—Decided September 23, 1997.)

IN MANDAMUS and PROHIBITION.

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{¶ 1} In July 1997, relators, resident electors of the city of Parma, filed an

initiative petition with the Parma auditor. The petition contained over 7,000

signatures and requested that a proposed ordinance be placed on the November 4,

1997 election ballot. The title and text of the proposed ordinance, as set forth in

the initiative petition, provided:

“PART FIFTEEN — BUILDING CODE be Amended by adding the

following section thereto:

“CHAPTER 1529. General Building Regulations.

“(1529.44) Penal Facilities Acquisition/Construction/Regulation

“(A.) The City of Parma, Ohio may establish, erect, maintain, and regulate

a jail, workhouse, station house, prison, and farm school, so as long as the combined

total number of inmates, prisoners, detainees, or arrestees held throughout the entire

City at anytime, does not exceed 15. [Sic.]

“(B.) The City of Parma shall not maintain any facility which houses for

any period of time an inmate, prisoner, detainee, or arrestee who is not or was not

incarcerated as a result of an offense committed within the boundaries of the City.

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“There is an exception in this subsection (B.), for inmates, prisoners,

detainees, or arrestees who are awaiting an appearance before the Parma Municipal

Court; however, such an inmate may not be incarcerated in the facility for longer

than 24 hours.

“(C.) The City of Parma shall not maintain any facility as noted above in

any residentially zoned area or an otherwise zoned area that abuts any residential

area; there is an exception in this subsection (C.), for the current facility that exists

at West 54th Street.

“(D.) All ordinances, resolutions, proclamations, motions and provisions

inconsistent with this Section, and these Subsections (A.), (B.), (C.), (D.), (E.), are

hereby repealed and declared null and void.

“(E.) This section shall be severable if any Subsection, Part, Word or

Application thereof is held invalid for any reason by a court of competent

jurisdiction and the holding of invalidity of any subsection hereunder or word

hereunder shall not have an effect upon the rest of the section hereof.”

{¶ 2} After holding the initiative petition for at least ten days, the auditor

transmitted a certified copy of the text of the proposed ordinance and the petition

to respondent Cuyahoga County Board of Elections. The board returned the

petition to the auditor with a statement attesting that it contained signatures of the

required number of electors for placement on the ballot. The auditor then certified

the validity and sufficiency of the petition and requested that the board place the

proposed ordinance on the November 4, 1997 election ballot.

{¶ 3} On August 5, 1997, Walter A. Savage filed a written protest with the

board, claiming that the petition was invalid and could not be lawfully submitted to

the electorate. Savage set forth the following grounds for his protest:

“1) The Petition attempts to control administrative actions, and therefore

contravenes Article II, Section 1f of the Ohio Constitution;

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“2) The title of the proposed ordinance is omitted, a violation of Section

731.31 of the Ohio Revised Code; the Petition does not present a fair, accurate and

unambiguous question for the electors of Parma, Ohio.”

{¶ 4} On August 26, the board held a hearing on the protest. At the

conclusion of the hearing, the board sustained the protest and held that the initiative

petition was invalid because it violated the requirement of R.C. 731.31 that

initiative petitions contain a full and correct copy of the title and text of the

proposed ordinance. The board thus refused to place the proposed ordinance on

the November 4, 1997 election ballot.

{¶ 5} Two days later, relators filed this action. Relators request a writ of

mandamus directing respondents, the board and its members, to submit the

proposed ordinance to the Parma electorate at the November 4, 1997 election and

a writ of prohibition to prevent the board from granting the protest and refusing to

submit the proposal to the Parma electors on the November 4, 1997 election ballot.

Respondents filed an answer and a motion for summary judgment, and the parties

subsequently filed evidence and merit briefs.

{¶ 6} This cause is now before the court for consideration of the merits.

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Law Offices of R.A. Pelagalli and Rodger A. Pelagalli, for relators.

Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, Patrick J.

Murphy and Jeffrey I. Sherwin, Assistant Prosecuting Attorneys, for respondents.

__________________

Per Curiam.

{¶ 7} Relators initially request a writ of mandamus. The board’s decision

to uphold the protest will be set aside and a writ of mandamus will issue to compel

placement of the proposed ordinance on the November 4 ballot if the board engaged

in fraud, corruption, abuse of discretion or clear disregard of statutes or applicable

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legal provisions.1 State ex rel. Hawkins v. Pickaway Cty. Bd. of Elections (1996),

75 Ohio St.3d 275, 277, 662 N.E.2d 17, 19. Relators assert that the board abused

its discretion and acted in clear disregard of applicable law by refusing to certify

the proposed ordinance for the November 4 election ballot. An abuse of discretion

connotes unreasonable, arbitrary, or unconscionable conduct. State ex rel. Richard

v. Seidner (1996), 76 Ohio St.3d 149, 151, 666 N.E.2d 1134, 1136.

{¶ 8} The board determined that the initiative petition was invalid because

it violated the requirement of R.C. 731.31 that each petition part contain a “full and

correct copy of the title and text of the proposed ordinance.” Omitting the title

and/or text of a proposed ordinance is a fatal defect because it interferes with the

petition’s ability to fairly and substantially present the issue and might mislead

electors. State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio

St.3d 289, 292, 649 N.E.2d 1205, 1208.

{¶ 9} The board ruled that the requirement of R.C. 731.31 was not satisfied

because the title and text of the proposed ordinance are ambiguous and misleading.

But the board erroneously relies on cases in which the title and/or text of the

ordinance was omitted or which involved the requirement of a summary for zoning

referendum petitions. See State ex rel. Esch v. Lake Cty. Bd. of Elections (1991),

61 Ohio St.3d 595, 575 N.E.2d 835 (petition did not include title of proposed

ordinance); State ex rel. Burech v. Belmont Cty. Bd. of Elections (1985), 19 Ohio

St.3d 154, 19 OBR 437, 484 N.E.2d 153 (petition did not include title and text of

county resolution sought to be repealed); Shelly & Sands, Inc. v. Franklin Cty. Bd.

of Elections (1984), 12 Ohio St.3d 140, 12 OBR 180, 465 N.E.2d 883 (zoning

referendum petition summary); Markus v. Trumbull Cty. Bd. of Elections (1970),

22 Ohio St.2d 197, 51 O.O.2d 277, 259 N.E.2d 501 (zoning referendum petition

1. Respondents concede that relators do not have an adequate remedy in the ordinary course of the

law.

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summary). As we recently held in Christy v. Summit Cty. Bd. of Elections (1996),

77 Ohio St.3d 35, 38, 671 N.E.2d 1, 4, such cases are inapposite.

{¶ 10} As in Christy, 77 Ohio St.3d at 38, 671 N.E.2d at 4, the initiative

petition parts fully complied with R.C. 731.31 because they contained a full and

correct copy of the title and text of the proposed ordinance. Contrary to the board’s

argument, the proposed ordinance contains a title, which is designated as “Penal

Facilities Acquisition/Construction/Regulation.” See, generally, Black’s Law

Dictionary (6 Ed.1990) 1485 (“[I]n legislation, the title of the statute is the heading

or preliminary part * * *.”).

{¶ 11} In addition, as in Christy, 77 Ohio St.3d at 39, 671 N.E.2d at 4-5,

even assuming that the standards of the zoning referendum petition and ballot

language cases applied, inclusion of the full title and text of the ordinance satisfied

constitutional and statutory requirements. See, e.g., State ex rel. Williams v. Brown

(1977), 52 Ohio St.2d 13, 19-20, 6 O.O.3d 79, 83, 368 N.E.2d 838, 842.

Furthermore, Paragraph D of the proposed ordinance, which repeals and declares

void all municipal legislation that is inconsistent with the ordinance, is not, as the

board contends, ambiguous or misleading because it fails to specify the inconsistent

legislation. Cf. R.C. 1.52(A); State ex rel. Finegold v. Lorain Cty. Bd. of Commrs.

(1928), 29 Ohio App. 364, 371, 163 N.E. 585, 587 (“When the Legislature declared

in plain language that the procedure set forth in the [new act] should supersede the

procedure inconsistent therewith provided by other laws * * *, it in effect repealed

such other laws, not by implication, but by express enactment * * *.”).

{¶ 12} The board thus abused its discretion and acted in clear disregard of

applicable law by refusing to place the proposed ordinance on the November 4

election ballot because of asserted noncompliance with R.C. 731.31.

{¶ 13} The board next suggests that other reasons support its decision to

refuse to submit the issue to the electorate. It notes that although it granted the

protest because of the alleged noncompliance with R.C. 731.31, the protestor also

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contended that the ordinance was not subject to municipal initiative powers because

it constituted administrative rather than legislative action. Mandamus will not lie

to compel a board of elections to submit an ordinance proposed by initiative petition

to the electorate if the ordinance does not involve a subject which a municipality is

authorized by law to control by legislative action. State ex rel. Rhodes v. Lake Cty.

Bd. of Elections (1967), 12 Ohio St.2d 4, 41 O.O.2d 2, 230 N.E.2d 347.

{¶ 14} Section 1f, Article II of the Ohio Constitution provides that “[t]he

initiative and referendum powers are hereby reserved to the people of each

municipality on all questions which such municipalities may now or hereafter be

authorized by law to control by legislative action * * *.” Administrative actions

are not subject to municipal powers of initiative and referendum. Donnelly v.

Fairview Park (1968), 13 Ohio St.2d 1, 42 O.O.2d 1, 233 N.E.2d 500. “The test

for determining whether the action of a legislative body is legislative or

administrative is whether the action taken is one enacting a law, ordinance or

regulation, or executing or administering a law, ordinance or regulation already in

existence.” Id. at paragraph two of the syllabus.

{¶ 15} Parma has general authority under R.C. 715.16(A) to enact the

proposed ordinance. In addition, the enactment of the ordinance would constitute

a permissible legislative act because it does not simply administer laws already in

existence. Id.; cf. State ex rel. Zonders v. Delaware Cty. Bd. of Elections (1994),

69 Ohio St.3d 5, 11, 630 N.E.2d 313, 317 (“Generally, the adoption of a zoning

amendment, like the enactment of the original zoning ordinance, is a legislative act

which is subject to referendum.”). Therefore, the board could not rely on Section

1f, Article II of the Ohio Constitution to refuse to place the proposed ordinance on

the election ballot. In fact, the board did not base its ultimate decision on this

contention.

{¶ 16} A final asserted reason to invalidate the proposed ordinance that the

ordinance violates R.C. 731.19 by containing more than one subject, addresses the

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substance or propriety of the ordinance rather than the validity and sufficiency of

the initiative petition under the pertinent constitutional and statutory requirements

for initiative petitions. These contentions are thus premature. Thurn, 72 Ohio St.3d

at 293, 649 N.E.2d at 1208 (“[A]ny claim alleging the unconstitutionality or

illegality of the substance of the proposed ordinances prior to their approval by the

electorate is premature.”); Cincinnati v. Hillenbrand (1921), 103 Ohio St. 286, 133

N.E. 556, paragraph two of the syllabus (“[W]here the mandatory provisions of the

constitution or statute prescribing the necessary preliminary steps to authorize the

submission to the electors of an initiative statute or ordinance have been complied

with[,] the submission will not be enjoined.”).

{¶ 17} Based on the foregoing, relators established that the board abused its

discretion and acted in clear disregard of applicable law by sustaining the protest

and refusing to submit the proposed ordinance to the electorate at the November 4

election. This conclusion is also supported by our duty to liberally construe

municipal initiative provisions to permit the exercise of such power. Christy, 77

Ohio St.3d at 40, 671 N.E.2d at 5. Accordingly, we grant a writ of mandamus to

compel the board and its members to submit the proposed ordinance to the Parma

electorate at the November 4, 1997 election.2

Writ granted.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and

LUNDBERG STRATTON, JJ., concur.

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2. This moots relators’ alternative claim for a writ of prohibition.

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