State ex rel. Rose v. Lorain Cty. Bd. of Elections

[This opinion has been published in Ohio Official Reports at 90 Ohio St.3d 229.]

THE STATE EX REL. ROSE ET AL. v. LORAIN COUNTY BOARD OF ELECTIONS ET

AL.

[Cite as State ex rel. Rose v. Lorain Cty. Bd. of Elections, 2000-Ohio-65.]

Elections—Mandamus sought to compel Lorain County Board of Elections and

Columbia Township to place a referendum issue involving a zoning

amendment approved by the Columbia Township Board of Trustees on the

November 7, 2000 election ballot—Neither R.C. 3501.38(I) nor (K)

prohibits the withdrawal of previously filed petitions and the submission

of either new petitions or resubmission of combined but unaltered

petitions before the filing deadline—Writ granted.

Neither R.C. 3501.38(I) nor (K) prohibits the withdrawal of previously filed

petitions and the submission of either new petitions or the resubmission of

combined but unaltered petitions before the filing deadline. (State ex rel.

Weaver v. Wiethe [1965], 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, and

its progeny, overruled to the extent that they are inconsistent herewith.)

(No. 00-1593—Submitted September 26, 2000—Decided October 5, 2000.)

IN MANDAMUS.

{¶ 1} On May 1, 2000, the Columbia Township Board of Trustees approved

Amendment 00-02 to the Columbia Township Zoning Resolution. The amendment

added alternate members to both the Columbia Township Zoning Commission and

the Columbia Township Board of Zoning Appeals and authorized the zoning

inspector to approve uses to fulfill the intent of certain zoning districts.

{¶ 2} On May 26, relator Thomas J. Rose, the sole petitioner for the

referendum of the township zoning amendment, filed a petition with the Clerk of

Columbia Township, requesting that the amendment be submitted to the electors at

the November 7, 2000 general election for a referendum. The first petition

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consisted of two part-petitions and contained twenty valid signatures. On May 30,

Rose filed his second petition for a referendum on the amendment. The second

petition consisted of nine part-petitions and contained one hundred sixty-nine valid

signatures. Under R.C. 519.12(H), one hundred sixty-eight valid signatures were

required for a valid Columbia Township referendum petition.

{¶ 3} On May 31, Rose attempted to withdraw his first and second

referendum petitions and resubmit them as one petition, consisting of eleven part-

petitions and containing one hundred eighty-nine valid signatures. Rose’s attorney

specified that in doing so, Rose had “elected his right to amend the petition” and

that his eleven part-petitions were being resubmitted “as amended.” (Emphasis

added.)

{¶ 4} On June 6, the Columbia Township Board of Trustees submitted the

petitions to respondent Lorain County Board of Elections with its recommendation

that the board of elections find the petitions insufficient because the first petition

did not contain sufficient valid signatures, the second petition could not be filed,

and the petitions could not be withdrawn and resubmitted as one document. On

July 25, the board of elections declined to consider the issue and returned the

petitions to the board of trustees.

{¶ 5} On August 11, relators, Rose and other taxpayer-residents of

Columbia Township, demanded that the board of elections certify the township

zoning amendment for the November 7, 2000 election ballot. On August 21,

following a hearing, the board of elections rejected relators’ demand.

{¶ 6} On September 1, relators filed this action for a writ of mandamus to

compel respondents, the board of elections and Columbia Township, to place the

amendment on the November 7, 2000 election ballot. Respondents filed an answer,

and the parties filed evidence and briefs pursuant to the expedited election schedule

set forth in S.Ct.Prac.R. X(9).

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{¶ 7} This cause is now before the court upon a consideration of the merits

of relators’ mandamus claim.

__________________

Phillips & Co., L.P.A., and Gerald W. Phillips, for relators.

Gregory A. White, Lorain County Prosecuting Attorney, and Gerald A.

Innes, Assistant Prosecuting Attorney, for respondents.

__________________

LUNDBERG STRATTON, J.

{¶ 8} Relators assert that they are entitled to the requested extraordinary

relief in mandamus to compel the board of elections and the township to place the

referendum issue on the November 7 election ballot. Relators contend that the

board of elections abused its discretion and disregarded applicable law by refusing

to place the referendum issue on the November 7 election ballot. According to

relators, Rose had a common-law right to withdraw his first and second petitions

and resubmit them as one petition.

{¶ 9} We are cognizant 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; such powers shall be exercised in the manner now or hereafter provided by

law.” Section 1f, Article II of the Ohio Constitution. Moreover, “ ‘ “[p]rovisions

for municipal initiative or referendum should be liberally construed in favor of the

power reserved so as to permit rather than preclude the exercise of such power, and

the object sought to be attained should be promoted rather than prevented or

obstructed.” ’ ” Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35,

40, 671 N.E.2d 1, 5, quoting State ex rel. King v. Portsmouth (1986), 27 Ohio St.3d

1, 4, 27 OBR 73, 75, 497 N.E.2d 1126, 1128, quoting State ex rel. Sharpe v. Hitt

(1951), 155 Ohio St. 529, 535, 44 O.O. 489, 491, 99 N.E.2d 659, 662.

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{¶ 10} R.C. 519.12(H) requires that each referendum petition on a zoning

resolution amendment adopted by a board of township trustees “[i]n addition to

meeting the requirements of this section, * * * shall be governed by the rules

specified in section 3501.38 of the Revised Code.” (Emphasis added.) See, also,

Markus v. Trumbull Cty. Bd. of Elections (1970), 22 Ohio St.2d 197, 199, 51

O.O.2d 277, 279, 259 N.E.2d 501, 502. The board of elections determined that

R.C. 3501.38 prohibited relators from filing any petition besides Rose’s first

petition.

{¶ 11} In construing R.C. 3501.38, our paramount concern is the legislative

intent in enacting the statute. In re Election Contest of Democratic Primary Held

May 4, 1999 for Clerk, Youngstown Mun. Court (2000), 88 Ohio St.3d 258, 265,

725 N.E.2d 271, 277. We must first review the statutory language. Words and

phrases used shall be read in context and construed according to the rules of

grammar and common usage. State ex rel. Antonucci v. Youngstown City School

Dist. Bd. of Edn. (2000), 87 Ohio St.3d 564, 565, 722 N.E.2d 69, 71; R.C. 1.42.

{¶ 12} R.C. 3501.38 provides:

“All * * * petitions presented to or filed with * * * a board of elections

* * * for the holding of an election on any issue shall, in addition to meeting the

other specific requirements prescribed in the sections of the Revised Code relating

thereto, be governed by the following rules:

“***

“(I) No alterations, corrections, or additions may be made to a petition after

it is filed in a public office.

“***

“(K) All separate petition papers shall be filed at the same time, as one

instrument.” (Emphasis added.)

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{¶ 13} Respondents contend that R.C. 3501.38(I) and (K) prohibit the

withdrawal and refiling of the petitions as the refiling constitutes an amendment.

Therefore, we must reexamine R.C. 3501.38(I) and (K).

R.C. 3501.38(I)

{¶ 14} R.C. 3501.38(I), read literally, makes eminent sense. A voter should

have confidence that the petition he or she signed reflects all of the information and

only the information assented to by the signatory. In this provision, the General

Assembly ensures that what the voter signed is what is filed. Thus, under R.C.

3501.38(I), it would not be proper for the petitioner to withdraw the petition, change

a date, and then resubmit the same petition. See State ex rel. Clinard v. Greene

Cty. Bd. of Elections (1990), 51 Ohio St.3d 87, 554 N.E.2d 895. This would defeat

the purpose of the R.C. 3501.38(I) requirement that petitions, once filed, not be

altered. However, nowhere in R.C. 3501.38(I) does the language of the statute

prohibit withdrawal of a petition.

{¶ 15} In this case, the petitioner did not alter the petitions in any way. He

simply refiled the same petitions that had been previously signed by the voters.

Therefore, since the petitioner only withdrew and refiled the petitions without

alteration, we conclude that R.C. 3501.38(I) does not prohibit what occurred in this

case.1 The mere withdrawal of the petitions is not an alteration, correction, or

addition to the petitions. While an alteration, correction, or addition would involve

some sort of physical change to the petitions, a withdrawal merely involves the

removal of the petitions from the public office in which they were filed. After the

withdrawal of the petitions, there is nothing before the public office and, therefore,

there is nothing to be acted upon. Rose may even be permitted to withdraw and

discard previously filed petitions, and then refile a new petition before the filing

1. Although Rose’s attorney specified that by attempting to withdraw the first and second petitions

and resubmit them, Rose was exercising his “right to amend” the petitions and resubmit them “as

amended” (emphasis added), we find that he was actually attempting to withdraw the petitions,

combine them, and resubmit them as one unaltered instrument.

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deadline, because a new petition with fresh signatures ensures the integrity of the

contents of the petition.

{¶ 16} Accordingly, since R.C. 3501.38(I) expressly deals only with

alterations, corrections, and additions to petitions filed and in the possession of the

public office, but contains no express provision prohibiting the withdrawal of the

petitions, we therefore hold that R.C. 3501.38(I) does not prohibit the withdrawal

and refiling of Rose’s combined petitions.

R.C. 3501.38(K)

{¶ 17} Respondents also claim that R.C. 3501.38(K) bars the filing of the

two previously withdrawn and now combined petitions. The respondents contend

that the petition, once filed, may not be withdrawn and refiled, for to do so would

constitute an amendment. However, upon carefully examining the statute, we

conclude that R.C. 3501.38(K) does not expressly prohibit the withdrawal and

refiling of a petition.

{¶ 18} The respondents rely on our holdings in at least three prior cases that

appear to prohibit withdrawal and refiling of petitions. First, in State ex rel. Weaver

v. Wiethe (1965), 4 Ohio St.2d 1, 33 O.O.2d 1, 210 N.E.2d 881, a candidate for city

council filed a nominating petition consisting of several separate petition papers

containing an insufficient number of valid signatures. After the board of elections

took action on his petition and notified the candidate of the insufficiency, he

attempted to withdraw his nominating petition to obtain additional valid signatures

on additional petition papers and to refile at a later time. We held that the city

charter, which read much like R.C. 3501.38(K), precluded the candidate from

withdrawing his petition papers or filing additional papers. Id. at 3, 33 O.O.2d at

2, 210 N.E.2d at 882. Moreover, we concluded that R.C. 3501.38(I) prohibited

adding to a petition after it is filed in a public office. Id.

{¶ 19} Second, in State ex rel. Senn v. Cuyahoga Cty. Bd. of Elections

(1977), 51 Ohio St.2d 173, 5 O.O.3d 381, 367 N.E.2d 879, a candidate filed several

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part-petitions and then later, upon learning that he had not filed his master form,

filed that form on a later date. It is unclear whether the candidate attempted to

withdraw his first set of petitions. However, either way, he was barred when he

attempted to file his master form. We held that this attempted filing violated R.C.

3513.05, which is analogous to the “one instrument” provision of R.C. 3501.38(K).

{¶ 20} Finally, in State ex rel. McMillan v. Ashtabula Cty. Bd. of Elections

(1992), 65 Ohio St.3d 186, 602 N.E.2d 631, a candidate for county court judge

submitted a petition containing insufficient valid signatures on July 2, 1992. Upon

learning of the deficiency, the candidate filed additional petition papers with

sufficient valid signatures on August 4, 1992. The board of elections accepted the

second filing. We granted a writ of prohibition and ordered the board of elections

to remove the candidate’s name from the ballot. Under R.C. 3513.05, both the

master form and all separate petition papers must be filed at the same time as one

instrument. We held that “[u]nder this authority, a candidate may file only one

declaration of candidacy and set of petition papers as one instrument with the board

of elections.” Id. at 189, 602 N.E.2d at 633.

{¶ 21} We agree that a candidate may file only one instrument. However,

we find that Weaver is inconsistent with the intent of the General Assembly in R.C.

3501.38(I) and (K). Accordingly, we overrule Weaver and its progeny. Despite

our prior interpretation of R.C. 3501.38(I) and (K), we now hold that there is no

express language in either R.C. 3501.38(I) or (K) prohibiting the withdrawal of a

petition. Therefore, we conclude that neither R.C. 3501.38(I) nor 3501.38(K)

expressly prohibits the action taken in this case, namely, the withdrawal of petitions

previously filed and the refiling of those combined and unaltered petitions.

Accordingly, to the extent that our prior case law holds otherwise, we clarify today

that neither R.C. 3501.38(I) nor (K) prohibits the withdrawal of previously filed

petitions, combining those petitions, and then refiling them as one unaltered

instrument.

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{¶ 22} We recognize the maze of technical requirements through which

candidates and petitioners must travel in order to comply with filing requirements.

Thus when a candidate or petitioner files a petition and then learns before the filing

deadline that the petition has some deficiency, the process is benefited, rather than

harmed, by permitting the petitioner the opportunity to cure the defect by

withdrawing the petition and filing a newly signed petition. Our previous

interpretation did not “liberally construe” the process in favor of referenda. By

allowing a petitioner to correct any technical mistakes by a withdrawal and

resubmission of a combined but unaltered petition by the filing deadline, or by

withdrawing previously filed petitions and submitting fresh petitions signed anew

by the voters, we promote the exercise of such power rather than the prevention or

obstruction of that power. Christy, supra, 77 Ohio St.3d at 40, 671 N.E.2d at 5.

Therefore, we conclude that neither R.C. 3501.38(I) nor (K) prohibits the

withdrawal of previously filed petitions and the submission of either new petitions

or the resubmission of combined but unaltered petitions before the filing deadline.

{¶ 23} In this case, Rose withdrew his petitions, combined them, and

resubmitted them as one instrument. Rose did not alter, correct, or add to the

petitions. He submitted the combined petitions at the same time, as one unaltered

document, as per R.C. 3501.38(I) and (K). Rose preserved both the integrity of the

contents of his petitions as well as the constitutional right of referendum.

{¶ 24} Therefore, because we overrule our previous line of cases and

modify the law accordingly, we conclude that under the plain language of the

provisions, R.C. 3501.38(I) is inapplicable because Rose did not alter the petitions

and R.C. 3501.38(K) does not operate to bar Rose from withdrawing the two

petitions, combining them, and resubmitting them as one unaltered instrument

before the filing deadline. Thus, the board of elections is ordered to place relators’

combined and unaltered petition on the November 7, 2000 election ballot.

{¶ 25} Accordingly, the writ of mandamus is hereby granted.

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Writ granted.

MOYER, C.J., F.E. SWEENEY and PFEIFER, JJ., concur.

DOUGLAS and RESNICK, JJ., concur separately.

COOK, J., dissents.

__________________

DOUGLAS, J., concurring.

{¶ 26} I concur in the well-reasoned majority opinion. I write separately

only for the purpose of reemphasizing the sacrosanct character of the right of

referendum, which has deep roots in our country’s history.2 “When the people of

Ohio amended their state [C]onstitution one of the primary, paramount purposes to

be effected in the amendment was to give the people of Ohio the final word by

referendum upon legislative acts * * *. This right of referendum is stated and

safeguarded again and again in the [C]onstitution. Indeed one cannot read the

Constitution of 1912 without being persuaded again and again that it was the

systematic studied effort of the people to check the arbitrary power of the general

assembly and of our courts in the administration of the people’s government.

{¶ 27} “In addition to the referendum provided upon laws of a general

nature the Constitution gave specifically to the people of the cities the right of

referendum upon all ‘additional laws’ affecting their government before they

should become operative in the cities.” Cleveland v. Pub. Util. Comm. (1919), 100

Ohio St. 121, 153, 125 N.E. 864, 873 (Wanamaker, J., dissenting).

{¶ 28} Referendum is a right of the people to have legislative enactments

submitted for their approval or rejection at an election. In this manner, a

referendum is a mechanism for the citizens of a community to assert their interests

and maintain a check over their elected representatives. Eastlake v. Forest City

2. The concept of referendum was introduced in the United States as early as 1776 in Thomas

Paine’s pamphlet entitled “Common Sense.” Chesley, The Current Use of the Initiative and

Referendum in Ohio and Other States (1984), 53 U.Cin.L.Rev. 541, 543.

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Enterprises, Inc. (1976), 426 U.S. 668, 678, 96 S.Ct. 2358, 2364, 49 L.Ed.2d 132,

140. Thus, procedural limitations on the referendum should be interpreted as

narrowly as possible to preserve the constitutional right to referendum.

{¶ 29} Finally, not one of the cases that were cited in support of

respondents’ position involved a referendum petition. For this reason, I believe that

the cases cited by respondents are distinguishable from the case at bar.

Accordingly, while I would distinguish rather than overrule the cases overruled by

the majority, I nevertheless concur.

RESNICK, J., concurs in the foregoing concurring opinion.

__________________

COOK, J., dissenting.

{¶ 30} Because the majority opinion permits what the statute and decisional

law forbids, I must respectfully dissent from the majority’s decision to grant the

writ.

{¶ 31} As the majority notes, even Rose’s attorney characterized Rose’s

conduct as electing to use his “right to amend the petition” and resubmit the eleven

part-petitions “as amended.” (Emphasis added.) “Amend” is defined as “to put

right,” “to change or modify in any way for the better,” or “to alter * * * formally

by modification, deletion, or addition.” Webster’s Third New International

Dictionary (1986) 68. Therefore, Rose’s “amendment” is simply another word for

alteration, correction, or addition—actions that are expressly precluded by the plain

language of R.C. 3501.38(I). The majority has recast Rose’s amendment as merely

a withdrawal and refiling. This characterization, however, relies upon semantic

distinctions to vitiate long-standing requirements.

{¶ 32} Under R.C. 3501.38(I) and (K), the board of elections could have

considered only the first petition filed by Rose in assessing sufficiency. The second

petition and the resubmitted petition consisting of the papers included in the first

and second petitions were either improper amendments or additions to the first

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petition, as prohibited by R.C. 3501.38(I), or were filed at different times following

the first petition, as prohibited by R.C. 3501.38(K).

{¶ 33} The majority cites the axiom that it is the general duty of courts to

liberally construe municipal referendum petitions to permit rather than to preclude

the exercise of the power of referendum. Christy v. Summit Cty. Bd. of Elections

(1996), 77 Ohio St.3d 35, 40, 671 N.E.2d 1, 5. But given the clarity of the language

of the statutory provisions at issue here, we need not look to interpretative rules.

See State ex rel. Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182,

186, 724 N.E.2d 771, 774. The majority’s construction contravenes the statutory

language by allowing relators to amend and refile petitions that R.C. 3501.38(I) and

(K) prohibit. This view thwarts the statutory scheme. Now, no set of petitions can

be held to constitute an “instrument” under R.C. 3501.38(K) until the last second

of the last day that constitutes the filing deadline. Until that time, the majority

would have any prior filing remain subject to continual withdrawal and refiling.

{¶ 34} The majority permits “alterations, corrections, or additions” after

filing by characterizing what occurred here as a “withdrawal.” This approach

diminishes the finality that the statutory scheme attaches to filed petitions. This

diminished legal significance seems irreconcilable with provisions of R.C. 3501.38

that emphasize the act of filing as the point at which the rights of petition circulators

and signers change. R.C. 3501.38(G), for example, provides that “[t]he circulator

of a petition may, before filing it in a public office, strike from it any signature he

does not wish to present as a part of his petition.” (Emphasis added.) Similarly,

R.C. 3501.38(H) provides that “[a]ny signer of a petition may remove his signature

therefrom at any time before the petition is filed in a public office * * * [but] no

signature may be removed after the petition is filed in any public office.”

(Emphasis added.) If the prior filing is not considered filed, or, as the majority

states, “there is nothing before the public office and, therefore, there is nothing to

be acted upon,” then petition circulators or electors may arguably strike specific

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signatures from the petitions at will following “withdrawal.” The majority would

disagree, as shown by its continual use of “unaltered” to describe the refiled

petitions. But the majority cannot have it both ways. On the one hand, the majority

deems a petition that has been filed and then withdrawn as subject to R.C.

3501.38(I)’s prohibition on alterations, corrections, or changes, which applies only

to filed petitions. On the other hand, the majority at the same time regards such a

petition as not filed in order to avoid conflict with R.C. 3501.38(K)’s mandate that

“[a]ll separate petition papers shall be filed at the same time, as one instrument.”

{¶ 35} This majority opinion will also generate confusion regarding R.C.

3501.38(A). That section ties decisions as to qualifications of electors to “the date

when the petition is filed.” Thus it becomes unclear under the majority’s new

construction of these election laws which filing should be used: the first filing,

which the majority has controlling some portions of R.C. 3501.38, or the final

filing, which constitutes the filing that “counts” for the one-instrument requirement.

Would the majority have separate petitions that are filed and then withdrawn

evaluated for purposes of determining qualified electors whenever they are first

filed—despite R.C. 3501.38(K)’s clear mandate that “[a]ll separate petition papers

shall be filed at the same time”? If the final filing date should be used, the statute

is rendered arbitrary in the application of its provisions, with electors and election

officials left to guess what applies when.

{¶ 36} The single filing that R.C. 3501.38 appears to contemplate would

resolve this confusion; something is either filed or it is not. The multiple-filings

construction that the majority adopts illogically recognizes the withdrawn petition

as filed for every purpose save the requirement that all petition papers be filed at

once.

{¶ 37} Accordingly, I would hold that the board of elections neither abused

its discretion nor clearly disregarded applicable law in denying relators’ demand to

place the referendum issue on the November 7, 2000 election ballot. Only relators’

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first petition was properly before the board of elections, and that petition included

insufficient valid signatures to warrant submission of the referendum issue to the

electorate. I would therefore deny the writ and leave well-established precedent

undisturbed. This holding would not jeopardize the right to referendum; it would

just require that the right be exercised in proper legal form.

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