Stutzman v. Madison Cty. Bd. of Elections

[This decision has been published in Ohio Official Reports at 93 Ohio St.3d 511.]

STUTZMAN v. MADISON COUNTY BOARD OF ELECTIONS ET AL.

[Cite as Stutzman v. Madison Cty. Bd. of Elections, 2001-Ohio-1624.]

Elections—Prohibition—Writ sought to prevent Madison County Board of

Elections and its members from submitting Ordinance No. 06-01 to the

Plain City electors at the November 6, 2001 general election—Writ denied,

when.

(No. 01-1669—Submitted October 2, 2001—Decided October 11, 2001.)

IN PROHIBITION.

__________________

Lundberg Stratton, J.

{¶ 1} On April 23, 2001, the Council of the Village of Plain City, Ohio,

enacted Ordinance No. 06-01, which rezones approximately 89.425 acres of land

owned by relator, Henry J. Stutzman, to RS3 Single Family Residential District.

The title of Ordinance No. 06-01 is:

“AN ORDINANCE AMENDING THE ZONING MAP OF THE

VILLAGE OF PLAIN CITY, OHIO, AT THE APPLICATION OF

DOMINION HOMES, AS TO APPROXIMATELY 89.425 ACRES OF LAND

LOCATED WEST OF U.S. ROUTE 42 AND SOUTH OF PROPERTY

OWNED BY HOMEWOOD HOMES, INC.” (Boldface sic.)

{¶ 2} On May 10, 2001, a referendum petition on Ordinance No. 06-01 was

filed with the Plain City Clerk-Treasurer. The petitioners requested that Ordinance

No. 06-01 be submitted to the village electors for their approval or rejection at the

November 6, 2001 general election. The referendum petition specified:

“The following is a full and correct copy of the title and number of the

Ordinance:

“Ordinance No. 06-01

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“AN ORDINANCE AMENDING THE ZONING MAP OF THE

VILLAGE OF PLAIN CITY, OHIO, AT THE APPLICATION OF

DOMINION HOMES, AS TO APPROXIMATELY 89.45 ACRES OF LAND

LOCATED WEST OF U.S. ROUTE 42 AND SOUTH OF PROPERTY

OWNED BY HOMEWOOD HOMES INC.” (Boldface sic.)

{¶ 3} The referendum petition, printed on a form prescribed by the

Secretary of State of Ohio in November 1996, also contained the following

statement:

“THE PENALTY FOR ELECTION FALSIFICATION IS

IMPRISONMENT FOR NOT MORE THAN SIX MONTHS OR A FINE OF

NOT MORE THAN $1,000, OR BOTH.” (Boldface sic.)

{¶ 4} After respondent Madison County Board of Elections (“board”)

verified that the referendum petition contained sufficient valid signatures, the Plain

City Clerk-Treasurer certified the petition to the board for placement of the

referendum on Ordinance No. 06-01 on the November 6, 2001 general election

ballot.

{¶ 5} On August 30, 2001, Stutzman filed a written protest with the board

challenging the referendum petition on Ordinance No. 06-01. Stutzman contended

that the petition was defective because it failed to state the correct title of the

ordinance in that the acreage listed on the petition (89.45) differed from the acreage

in the ordinance (89.425) and the petition did not include a comma in the name of

the owner of property to the north of the rezoned property (“Homewood Homes,

Inc.”). Stutzman further claimed that the referendum petition failed to contain the

mandatory election falsification language set forth in R.C. 3599.36.

{¶ 6} On September 12, 2001, the board held a hearing on Stutzman’s

protest and then took the matter under advisement. On September 13, the board

issued a decision denying Stutzman’s protest. The board concluded that the

misstatements of the acreage and omission of the comma in Homewood Homes,

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Inc. were not defects requiring rejection of the petition because there was no

evidence that the petition conveyed a confusing or mistaken impression about the

substance of the zoning ordinance that was the subject of the referendum petition.

The board further concluded that the referendum petition contained the election

falsification language required by law and that the “new election falsification

language referred to by [the] protest took effect on August 28, 2001.”

{¶ 7} On September 14, 2001, i.e., only one day after the board’s decision,

Stutzman filed this expedited election action for a writ of prohibition to prevent

respondents, the board and its members, from submitting to the Plain City electorate

the referendum on Ordinance No. 06-01. Respondents filed a motion to dismiss,1

and after Stutzman filed evidence and a merit brief, respondents failed to file a merit

brief, which was due on Friday, September 28, 2001. See S.Ct.Prac.R. X(9).

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

{¶ 9} Stutzman requests a writ of prohibition to prevent the submission of

Ordinance No. 06-01 to the Plain City electors at the November 6, 2001 general

election. In order to be entitled to a writ of prohibition, Stutzman must establish

that (1) the board is about to exercise judicial or quasi-judicial power, (2) the

exercise of that power is unauthorized by law, and (3) denial of the writ will cause

injury for which no other adequate remedy in the ordinary course of law exists.

State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 238,

241, 736 N.E.2d 893, 896. It is uncontroverted that Stutzman has satisfied the first

and third of these requirements, so the dispositive issue is whether Stutzman

established that the board’s exercise of quasi-judicial authority in denying the

protest was unauthorized by law.

1. We note that respondents’ motion to dismiss is inappropriate in expedited election cases, see State

ex rel. Ryant Commt. v. Lorain Cty. Bd. of Elections (1999), 86 Ohio St.3d 107, 111, 712 N.E.2d

696, 700, and we will therefore proceed to consider the merits of this cause.

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{¶ 10} In determining if Stutzman established this requirement, the

applicable standard is whether the board engaged in fraud or corruption, abused its

discretion, or acted in clear disregard of applicable legal provisions in denying

Stutzman’s protest. State ex rel. Crossman Communities of Ohio, Inc. v. Greene

Cty. Bd. of Elections (1999), 87 Ohio St.3d 132, 135-136, 717 N.E.2d 1091, 1095.

Stutzman asserts that the board abused its discretion and acted in clear disregard of

applicable legal provisions in denying the protest. For the reasons that follow, we

hold that the board neither abused its discretion nor clearly disregarded applicable

law in denying Stutzman’s protest and deny Stutzman’s request for extraordinary

relief in prohibition.

R.C. 731.31; Full and Correct Copy of Title of the Ordinance

{¶ 11} Stutzman initially contends that the board abused its discretion and

acted in clear disregard of R.C. 731.31 by upholding the validity of the referendum

petition although it did not include “a full and correct copy of the title of the

ordinance or other measure sought to be referred.”

{¶ 12} R.C. 731.31 provides that “each part of any referendum petition shall

contain * * * a full and correct copy of the title of the ordinance or other measure

sought to be referred.” Stutzman claims that R.C. 731.31 requires strict compliance

and that the petition did not strictly comply with R.C. 731.31 because it misstated

the acreage involved in the title of the ordinance as 89.45 acres instead of the 89.425

acres actually listed in the title of the ordinance.

{¶ 13} In general, election statutes in Ohio are mandatory and require strict

compliance unless the statute specifically permits substantial compliance. State ex

rel. Wilson v. Hisrich (1994), 69 Ohio St.3d 13, 16, 630 N.E.2d 319, 322; State ex

rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65

Ohio St.3d 167, 169, 602 N.E.2d 615, 617. In accordance with this general rule,

because R.C. 731.31 does not expressly allow substantial compliance, we normally

require strict compliance with it, Crossman Communities, 87 Ohio St.3d at 137,

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717 N.E.2d at 1096, including the requirement that the petition contain a full and

correct copy of the title of the ordinance. State ex rel. Esch v. Lake Cty. Bd. of

Elections (1991), 61 Ohio St.3d 595, 597, 575 N.E.2d 835, 836-837.

{¶ 14} Nevertheless, we have also at times held that courts must avoid

unduly technical interpretations that impede public policy in election cases. See,

e.g., State ex rel. Ruehlmann v. Luken (1992), 65 Ohio St.3d 1, 3, 598 N.E.2d 1149,

1151. The policy involved here is the preeminent constitutional right of referendum

“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.” Section 1f, Article II of the Ohio Constitution. We must liberally construe

provisions for municipal referendum so as to permit the exercise of the power and

to promote rather than prevent or obstruct the object sought to be attained. See

State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio St.3d 229, 230-

231, 736 N.E.2d 886, 888; State ex rel. Oster v. Lorain Cty. Bd. of Elections (2001),

93 Ohio St.3d 480, 756 N.E.2d 649.

{¶ 15} In applying these competing considerations to the R.C. 731.31

requirement that referendum petitions contain a “full and correct copy of the title

of the ordinance,” we are guided by the precept that our paramount concern in

construing any statutory requirement 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. In

construing the comparable R.C. 731.31 requirement that initiative petitions contain

a “full and correct copy of the title and text of the proposed ordinance,” we have

held that the purpose of this requirement is to fairly and substantially present the

issue to electors in order to avoid misleading them. Christy v. Summit Cty. Bd. of

Elections (1996), 77 Ohio St.3d 35, 38, 671 N.E.2d 1, 4 (“Omitting the title and/or

text of a proposed ordinance is a fatal defect because it interferes with a petition’s

ability to fairly and substantially present the issue and might mislead electors”);

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State ex rel. Hazel v. Cuyahoga Cty. Bd. of Elections (1997), 80 Ohio St.3d 165,

167, 685 N.E.2d 224, 226.

{¶ 16} Rejecting the petition here because of a slight misstatement in the

acreage listed in the ordinance does not further the legislative purposes of fairly

presenting the ordinance to electors and preventing them from being misled. In this

regard, the title of the ordinance states that the property involved is approximately

89.425 acres, and the referendum petition specifies the title of the ordinance as

involving property that is approximately 89.45 acres. There is no evidence nor is

there any reasonable argument that this de minimis error could have misled electors

to sign a petition that they would not have signed had the correct acreage been

listed. The same conclusion is warranted for Stutzman’s other contention

concerning the lack of a comma in the corporate name of Homewood Homes, Inc.

{¶ 17} As we have previously held in an election case in which a petitioner

had failed to comply with a technical election requirement, “ ‘[a]bsolute

compliance with every technicality should not be required * * * unless such

complete and absolute conformance to each technical requirement * * * serves a

public interest and a public purpose.’ ” (Ellipses sic.) State ex rel. Fite v. Saddler

(1991), 62 Ohio St.3d 170, 173, 580 N.E.2d 1065, 1067, quoting Stern v. Cuyahoga

Cty. Bd. of Elections (1968), 14 Ohio St.2d 175, 180, 43 O.O.2d 286, 289, 237

N.E.2d 313, 317. Invalidating the referendum petition here based on the

hypertechnical grounds suggested by Stutzman serves no public interest or public

purpose, including the legislative purpose of the R.C. 731.31 requirement of a “full

and correct copy of the title of the ordinance.”

{¶ 18} Moreover, Stutzman’s reliance on Esch and State ex rel. Burech v.

Belmont Cty. Bd. of Elections (1985), 19 Ohio St.3d 154, 19 OBR 437, 484 N.E.2d

153, to claim that the referendum petition is fatally defective is misplaced. Esch

involved an initiative petition that contained no title of the proposed ordinance, and

Burech addressed a referendum petition that contained neither the title nor the text

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of the resolution, as required by R.C. 305.32. The title is not completely missing

from the petition here. And both of these cases emphasized the potential for

misleading petition signers, which is nonexistent here.

{¶ 19} Therefore, the board neither abused its discretion nor clearly

disregarded R.C. 731.31 in denying Stutzman’s protest.

R.C. 3599.36; Election Falsification Statement

{¶ 20} Stutzman next contends that the board abused its discretion and

acted in clear disregard of R.C. 3599.36 by upholding the validity of the referendum

petition even though the petition failed to include the election falsification

statement required by that statute. We hold that the board neither abused its

discretion nor clearly disregarded R.C. 3599.36, albeit for different reasons than

those expressed by the board.

{¶ 21} The referendum petition included the language specified in former

R.C. 3501.38(J), which provided prior to August 28, 2001:

“All declarations of candidacy, nominating petitions, or other petitions

under this section shall be accompanied by the following statement in boldface

capital letters: THE PENALTY FOR ELECTION FALSIFICATION IS

IMPRISONMENT FOR NOT MORE THAN SIX MONTHS, OR A FINE OF

NOT MORE THAN ONE THOUSAND DOLLARS, OR BOTH.” (Boldface

sic.) 143 Ohio Laws, Part II, 1940, 1941.

{¶ 22} Before December 9, 1997, R.C. 3599.36 similarly provided that

election falsification was a misdemeanor of the first degree and that “[e]very paper,

card, or other document relating to any election matter which calls for a statement

to be made under penalty of election falsification shall be accompanied by the

following statement in boldface capital letters: ‘The penalty for election

falsification is imprisonment for not more than six months, or a fine of not more

than one thousand dollars, or both.’ ” 138 Ohio Laws, Part II, 4570, 4748.

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{¶ 23} Effective December 9, 1997, however, the General Assembly

enacted Am.Sub.S.B. No. 116, which amended R.C. 3599.36 to provide:

“Whoever violates this section is guilty of election falsification, a felony of

the fifth degree.

“Every paper, card, or other document relating to any election matter that

calls for a statement to be made under penalty of election falsification shall be

accompanied by the following statement in bold face capital letters: ‘Whoever

commits election falsification is guilty of a felony of the fifth degree.’ ” 147 Ohio

Laws, Part IV, 7608, 7667.

{¶ 24} The referendum petition here, which required circulators’ statements

to be made under penalty of election falsification, see R.C. 3501.38(E), contained

the language in former R.C. 3501.38(J) instead of the language required by R.C.

3599.36. Under R.C. 1.52(A), “If statutes enacted at the same or different sessions

of the legislature are irreconcilable, the statute latest in date of enactment prevails.”

See, also, State v. Rush (1998), 83 Ohio St.3d 53, 58, 697 N.E.2d 634, 638. Former

R.C. 3501.38(J) is irreconcilable with R.C. 3599.36. Unlike the current version,

which became effective on August 28, 2001, former R.C. 3501.38(J) retained the

penalties for a first-degree misdemeanor even though effective December 9, 1997,

the General Assembly amended R.C. 3599.36 to make election falsification a fifth-

degree felony, which carries harsher penalties than those specified in former R.C.

3501.38(J). See, e.g., R.C. 2929.14(A)(5) and 2929.18(A)(3)(e).

{¶ 25} Therefore, under R.C. 1.52(A), R.C. 3599.36, the statute later in date

of enactment, prevails over former R.C. 3501.38(J).

{¶ 26} The board was consequently mistaken in determining that the

petition contained the appropriate election falsification language.

{¶ 27} Nevertheless, as we noted in our previous discussion analyzing R.C.

731.31, in construing the applicable election falsification petition requirement, our

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paramount concern is the legislative intent. In re Election Contest, 88 Ohio St.3d at

265, 725 N.E.2d at 277.

{¶ 28} In State ex rel. Griffin v. Krumholtz (1982), 70 Ohio St.2d 125, 24

O.O.3d 234, 435 N.E.2d 1110, we held that the absence of the statutorily mandated

election falsification statement in a referendum petition rendered the petition

defective. In that case, we specified that the purpose of the election falsification

statement is “to insure not only that the signers and circulators of the petition be

made aware of the fact that election falsification is a crime but also that significant

sanctions are imposed for violations of the election laws.” Id. at 127, 24 O.O.3d at

235, 435 N.E.2d at 1111.

{¶ 29} This purpose is sufficiently advanced here by the inclusion of the

language used by the petitioners, which was on the form supplied by the office of

the Secretary of State and was consistent with the language of former R.C.

3501.38(J), which the General Assembly had failed to amend at the same time it

amended R.C. 3599.36. In other words, the language, though technically incorrect

because of the amendment to R.C. 3599.36, ensured that petition signers and

circulators were aware that election falsification is a crime and that it carries

significant sanctions. While the actual statutory penalty was erroneous, the petition

satisfied the purposes of the statutory requirement.

{¶ 30} We note that in the period from December 9, 1997 until August 28,

2001, when there were confusing, conflicting “mandatory” statutory requirements

for the appropriate election falsification statement, petitioners seeking to exercise

their important constitutional right of referendum reasonably relied on former R.C.

3501.38(J) and used a form prescribed by the Secretary of State. There is no

evidence or even a contention by Stutzman that the persons who either signed or

circulated the petition appreciated the distinction between “imprisonment for not

more than six months or a fine of not more than $1,000, or both” and “a felony of

the fifth degree.” Nor is there evidence or any argument that persons would not

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have signed or circulated the petition if the petition instead contained the language

required by R.C. 3599.36.

{¶ 31} We note, however, that with the August 28, 2001 amendment to R.C.

3501.38(J), both it and R.C. 3599.36 now require the same language, and that

petitioners should follow this requirement in the future in order to avoid any

invalidation of their petition. But under the limited circumstances evident here,

where the different statutes provided mixed signals from the General Assembly, the

petitioners’ constitutional right of referendum should not be thwarted by their

technical violation of R.C. 3599.36. The board neither abused its discretion nor

clearly disregarded applicable law by refusing to invalidate the referendum petition

on this basis.

Conclusion

{¶ 32} Based on the foregoing, Stutzman has failed to establish his

entitlement to the writ. The board acted properly by denying his protest and

submitting the referendum issue to the electorate. The board specifically found that

there was no evidence that the petition conveyed a confusing or mistaken

impression about the substance of the zoning ordinance that was the subject of the

referendum petition. The petition included the notification of the potential for

criminal prosecution and sanctions for election falsification. There was also no

evidence or any contention by Stutzman of any willful or knowing

misrepresentation in order to persuade persons to sign the petition.

{¶ 33} Accordingly, we deny the requested writ of prohibition and permit

the board and its members to proceed with submitting the referendum on Ordinance

No. 06-01 to the Plain City electorate. Under the unique circumstances of this case,

a contrary holding would constitute an unreasonable restriction on the

constitutional right of referendum reserved to the people of each municipality. See

State ex rel. Commt. for the Referendum of Ordinance No. 3543-00 v. White (2000),

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90 Ohio St.3d 212, 218, 736 N.E.2d 873, 878 (court’s duty to avoid unreasonable

or absurd results).

Writ denied.

DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

MOYER, C.J., and COOK, J., dissent.

__________________

MOYER, C.J., dissenting.

{¶ 34} In concurring with the dissent authored by Justice Cook I write to

express my concern that a majority opinion would so easily disregard the clear

direction of the General Assembly in its amendment of R.C. 3599.36. The majority

attempts to confine its holding to the confusion created by the “mixed signals from

the General Assembly.” One can only hope that it will be so confined. But, as is

true in so many issues decided by a Supreme Court, the majority opinion produces

implications far beyond the facts of this case.

{¶ 35} As observed in Justice Cook’s dissent, boards of elections and others

responsible for efficient and fair elections will not know when “substantial”

compliance with a clear statutory mandate is sufficient or whether actual

compliance is required. With one opinion, we have obfuscated a rule of statutory

construction and principles upon which an important body of election law has been

developed.

{¶ 36} I respectfully dissent.

COOK, J., concurs in the foregoing dissenting opinion.

__________________

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COOK, J., dissenting.

{¶ 37} I respectfully dissent. As the majority notes, the dispositive issue in

this case is whether the board of elections abused its discretion or clearly

disregarded applicable law by denying Stutzman’s protest. Because the board

clearly disregarded the election falsification language requirement of R.C. 3599.36,

Stutzman is entitled to the requested writ of prohibition.

{¶ 38} As the majority recognizes, R.C. 3599.36, the statute later in date of

enactment, prevails over former R.C. 3501.38(J). See R.C. 1.52(A) (“If statutes

enacted at the same or different sessions of the legislature are irreconcilable, the

statute latest in date of enactment prevails”). “[T]he settled rule is that election

laws are mandatory and require strict compliance,” and that “[s]ubstantial

compliance is acceptable only when an election statute expressly permits it.”

(Emphasis added.) State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995),

72 Ohio St.3d 289, 294, 649 N.E.2d 1205, 1209-1210; State ex rel. Citizens for

Responsible Taxation v. Scioto Cty. Bd. of Elections (1992), 65 Ohio St.3d 167,

169, 602 N.E.2d 615, 617. We have held that the election falsification language

requirement at issue here is mandatory and requires strict compliance. See State ex

rel. Griffin v. Krumholtz (1982), 70 Ohio St.2d 125, 127, 24 O.O.3d 234, 235, 435

N.E.2d 1110, 1111-1112.

{¶ 39} The majority erroneously rules on the supposed intent of the General

Assembly to support its departure from the statutory language. “In order to

determine legislative intent it is a cardinal rule of statutory construction that a

court must first look to the language of the statute itself.” (Emphasis added.) State

v. Jordan (2000), 89 Ohio St.3d 488, 492, 733 N.E.2d 601, 605. R.C. 3599.36 is

unambiguous and must be applied as written, without resort to interpretative rules

that would apply only if the statutes were ambiguous. State ex rel. Wolfe v.

Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182, 186, 724 N.E.2d 771,

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774; Bailey v. Republic Engineered Steels, Inc. (2001), 91 Ohio St.3d 38, 39-40,

741 N.E.2d 121, 123.

{¶ 40} R.C. 3599.36 provides that “[e]very paper, card, or other document

relating to any election matter that calls for a statement to be made under penalty

of election falsification shall be accompanied by the following statement in bold

face capital letters: ‘Whoever commits election falsification is guilty of a felony

of the fifth degree.’ ” (Emphasis added.) This statute sets forth a patent and

unambiguous requirement that the majority concedes was not satisfied here. The

majority simply holds that these errors are “technical” and hence not fatal to the

petition. But there is nothing in the statutory language that distinguishes between

“technical” and “nontechnical” statutory violations. In making this distinction, the

majority has inserted words that are not included in these statutes. See Bailey, 91

Ohio St.3d at 39-40, 741 N.E.2d at 123 (“In considering statutory language, it is

the duty of the court to give effect to the words used in a statute, not to delete words

used or to insert words not used”). Although we have a duty to liberally construe

statutes in favor of the constitutional right to referendum, requiring the falsification

statement in R.C. 3599.36 does not contravene this duty; it merely applies the plain

language of the applicable statutes. E. Ohio Gas Co. v. Wood Cty. Bd. of Elections

(1998), 83 Ohio St.3d 298, 302, 699 N.E.2d 916, 919.

{¶ 41} Furthermore, the majority’s reliance on authorities such as Stern v.

Cuyahoga Cty. Bd. of Elections (1968), 14 Ohio St.2d 175, 43 O.O.2d 286, 237

N.E.2d 313, is misplaced. That case’s dictum—stating that absolute technical

compliance with statutory election petition requirements is not always necessary—

is limited to cases “where the statute requires only substantial compliance,” which

is not the case with the statute involved here. (Emphasis sic.) Id. at 184, 43 O.O.2d

at 291, 237 N.E.2d at 319; see, also, State ex rel. Esch v. Lake Cty. Bd. of Elections

(1991), 61 Ohio St.3d 595, 597, 575 N.E.2d 835, 837 (“The court of appeals

properly distinguished Stern * * * because the statutes in [that case] expressly

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allowed substantial compliance, and R.C. 731.31 does not”); but, cf., State ex rel.

Fite v. Saddler (1991), 62 Ohio St.3d 170, 580 N.E.2d 1065.

{¶ 42} The board of elections here did not even reach the analysis engaged

in by the majority concerning the lack of an R.C. 3599.36 election falsification

statement because it wrongly concluded that this requirement did not become

effective until August 28, 2001. As the majority points out, this portion of R.C.

3599.36 was in effect as of December 9, 1997, and during the time the referendum

petition was circulated and signed.

{¶ 43} The Legislative Service Commission noted that the Am.Sub.H.B.

No. 5 amendment to R.C. 3501.38(J), effective August 28, 2001, merely changed

that section to comport with the continuing viable and controlling law set forth in

R.C. 3599.36:

“Continuing law makes election falsification a felony of the fifth degree

(sec. 3599.36—not in the act). But, under former law, various forms in the Election

Law, and in other parts of the Revised Code, that had to be signed under ‘penalty

of election falsification’ incorrectly identified the penalty for the offense as

imprisonment for not more than six months, a fine of not more than $1,000, or both;

these sanctions pertain to the time when the offense was a misdemeanor of the first

degree. The act changes these incorrect references to match continuing law’s

‘felony of the fifth degree’ status of election falsification.” (Emphasis added.)

Legislative Service Commission, Final Bill Analysis of Am.Sub.H.B. No. 5, at 11.

{¶ 44} The board’s reliance on the fact that the petition was on a form

prescribed by the Secretary of State is also misplaced because the form was

prescribed in November 1996, which predates the December 9, 1997 amendment

to R.C. 3599.36 that is dispositive here. In fact, in State ex rel. Ascani v. Stark Cty.

Bd. of Elections (1998), 83 Ohio St.3d 490, 700 N.E.2d 1234, the Secretary of State

denied a protest to a local option petition that included the R.C. 3599.36 election

falsification statement instead of the former R.C. 3501.38(J) language. One could

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reasonably infer from Ascani that the Secretary of State viewed R.C. 3599.36 to set

forth the required election falsification statement, not former R.C. 3501.38(J). See

State ex rel. Stevens v. Geauga Cty. Bd. of Elections (2000), 90 Ohio St.3d 223,

227, 736 N.E.2d 882, 885, quoting State ex rel. Herman v. Klopfleisch (1995), 72

Ohio St.3d 581, 586, 651 N.E.2d 995, 999 (“ ‘[W]hen an election statute is subject

to two different, but equally reasonable, interpretations, the interpretation of the

Secretary of State, the state’s chief election officer, is entitled to more weight’ ”).

{¶ 45} Finally, I would note that in Griffin, 70 Ohio St.2d at 127, 24 O.O.3d

at 235, 435 N.E.2d at 1111-1112, we rejected an argument comparable to the ones

espoused by the majority and the board by holding:

“Relator’s argument that his statement more accurately described what

election falsification entailed is without merit. To adopt relator’s argument would

necessarily require this court to find that relator, and not the General Assembly, is

in the best position to determine the appropriate language to be included in

referendum petitions. This we decline to do.” (Emphasis added.)

{¶ 46} Similarly, we should not substitute our judgment as to what is or is

not required for election petitions in contravention of the plain language provided

by the General Assembly in its statutes. The General Assembly is in the best

position to determine the applicable requirements for election petitions and it has

done so here by enacting R.C. 3599.36. By amending R.C. 3599.36 in 1997, the

General Assembly’s uncontroverted intent was that petition signers and circulators

be aware that election falsification is a felony of the fifth degree. The majority’s

interpretation does not comport with this intent. This decision can only add

confusion to the election process as to whether other statutory requirements need

to be followed or can be ignored on the basis that they are only “technical”

requirements.

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SUPREME COURT OF OHIO

{¶ 47} As even the majority recognizes, the board clearly disregarded the

specific requirements of R.C. 3599.36. Therefore, based on the applicable standard,

Stutzman is entitled to the requested writ of prohibition.

MOYER, C.J., concurs in the foregoing dissenting opinion.

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Donald J. McTigue, for relator.

Stephen J. Pronai, Madison County Prosecuting Attorney, for respondents.

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