The opinion
[This decision has been published in Ohio Official Reports at 96 Ohio St.3d 352.]
THE STATE EX REL. MILES v. MCSWEENEY, CITY CLERK, ET AL.
[Cite as State ex rel. Miles v. McSweeney, 2002-Ohio-4455.]
Elections—Mandamus sought to compel Columbus City Clerk to submit
referendum petition on Columbus City Ordinance No. 0754-02, which
imposes an excise tax on the short-term rental of passenger vehicles in
Columbus to the city council at its next regular meeting—Writ granted—
Relator’s request for attorney fees denied for want of four affirmative
votes.
(No. 2002-1317—Submitted August 23, 2002—Decided August 30, 2002.)
IN MANDAMUS.
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Per Curiam.
{¶1} On June 24, 2002, the Council of the city of Columbus, Ohio, enacted
Columbus City Ordinance No. 0754-02, which imposes an excise tax of $4 per
passenger vehicle per day upon the short-term rental of passenger vehicles within
Columbus. The Acting Mayor of Columbus approved the ordinance on June 25,
2002. The specified effective date of the ordinance was August 1, 2002.
{¶2} Relator, Kevin Miles, an elector and taxpayer of Columbus, is a
member of a committee formed to circulate a referendum petition on Ordinance
No. 0754-02. On July 3, 2002, Miles, on behalf of the committee, filed a certified
precirculation copy of the referendum petition and Ordinance No. 0754-02 with the
office of respondent Columbus City Clerk Timothy McSweeney. The petition
requested that the ordinance either be repealed by the city council or be submitted
to the electorate at the November 5, 2002 general election. Following the filing of
the certified copy of the referendum petition, the part-petitions were circulated.
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{¶3} On July 23, 2002, Miles filed the referendum petition with the city
clerk’s office. The petition consisted of 483 part-petitions and contained more than
11,000 signatures. The petition was defective because it lacked the circulator
affidavits required by Section 49 of the Columbus Charter. See, e.g., State ex rel.
Ditmars v. McSweeney (2002), 94 Ohio St.3d 472, 475, 764 N.E.2d 971, where we
held that the comparable provision of Section 42 for initiative petitions required a
circulator affidavit. Instead, the petition contained unnotarized circulator
statements.
{¶4} On the morning of July 24, 2002, Miles withdrew the petition. Later
that day, Miles refiled the previously filed 483 part-petitions and 3 new part-
petitions as one instrument with the city clerk. Three hundred ninety-five of the
previously filed part-petitions and the 3 newly submitted part-petitions contained
notarized circulator affidavits that verified that (1) each circulator was a qualified
Ohio elector residing at the stated address, (2) each circulator was the circulator of
the specified part-petition containing the noted number of signatures, (3) each
circulator witnessed the affixing of every signature on the part-petition, with each
signature appended thereto in the circulator’s presence, and (4) to the best of each
circulator’s knowledge and belief, all signers were qualified to sign, and every
signature was the signature of the person whose signature it purported to be. The
remaining 88 part-petitions were resubmitted without circulator affidavits. July 24,
2002, was the final day for a valid referendum petition on Ordinance No. 0754-02
to be filed to prevent the ordinance from becoming effective. Section 48, Columbus
Charter.
{¶5} According to McSweeney, at least 27 part-petitions of the 486 part-
petitions submitted by Miles on July 24 contain some alteration to the original
unnotarized circulator statements, e.g., circulators’ names and signatures crossed
out and other circulators’ names and signatures added. Nevertheless, McSweeney
presented no evidence that these corrections occurred after the initial July 23, 2002
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filing of the petition. In fact, Miles stated in an affidavit that no changes were made
to the petition between the time it was withdrawn and the time it was refiled.
{¶6} By letter dated July 25, 2002, McSweeney advised Miles and other
members of the petitioning committee that the resubmitted referendum petition was
insufficient and invalid because the resubmission of the petition with attached
circulator affidavits constituted an improper alteration, addition, or correction to
the petition. McSweeney stated that although he would not submit the petition to
the city council for further action, he would nevertheless forward the petition to the
Franklin County Board of Elections for its determination of the number of valid
signatures on the petition.
{¶7} On July 29, 2002, the petitioning committee requested, pursuant to
R.C. 733.59, that the Columbus City Attorney file suit to compel McSweeney to
submit the referendum petition to city council and to enjoin the city from beginning
to collect the rental tax on August 1, 2002. On July 30, 2002, the city attorney
denied the committee’s request.
{¶8} On July 31, 2002, Miles, on relation of both the state and the city, filed
this action for a writ of mandamus to compel McSweeney to immediately submit
the referendum petition to the city council at its next regular meeting, provided that
the board of elections certified the sufficiency of the number of valid signatures on
the petition, and stayed or enjoined implementation of the ordinance. Miles also
named Columbus City Auditor Hugh J. Dorrian as a respondent because he has the
duty under Ordinance No. 0754-02 to administer and enforce it. Miles filed a
motion to expedite a briefing schedule.
{¶9} On August 2, we granted an alternative writ, issued an expedited
schedule for the presentation of evidence and briefs, and stayed the implementation
of Ordinance No. 0754-02.
{¶10} On that same date, the board of elections certified that the referendum
petition contained 4,189 valid signatures, which is more than the 3,922 signatures
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required under Section 48 of the Columbus Charter. These valid signatures were
contained in those part-petitions that included circulator affidavits. After receiving
the board’s certification of the sufficiency of the petition, McSweeney again
notified the petitioners, including Miles, that he would not submit the petition to
the city council for the reasons he had previously specified.
{¶11} This cause is now before the court for a consideration of the merits.
{¶12} Miles requests a writ of mandamus to compel McSweeney to perform
his legal duties under Section 50 of the Columbus Charter by submitting the petition
to the city council at its next regular meeting.
{¶13} In order to be entitled to the requested writ of mandamus, Miles must
establish a clear legal right to have McSweeney submit the referendum petition to
the city council at its next regular meeting, a corresponding clear legal duty on the
part of McSweeney to do so, and the lack of an adequate remedy in the ordinary
course of the law. Ditmars, 94 Ohio St.3d at 474, 764 N.E.2d 971. Miles has
established that he lacks an adequate remedy in the ordinary course of the law. See,
e.g., State ex rel. Thurn v. Cuyahoga Cty. Bd. of Elections (1995), 72 Ohio St.3d
289, 291-292, 649 N.E.2d 1205, quoting State ex rel. Smart v. McKinley (1980), 64
Ohio St.2d 5, 6, 18 O.O.3d 128, 412 N.E.2d 393 (“Concerning the third prerequisite
for a writ * * *, given the proximity of the election, an injunction would arguably
not constitute an adequate remedy because any ‘appellate process would last well
past the election’ ”). Therefore, we must determine whether Miles proved the
remaining requirements for extraordinary relief in mandamus.
{¶14} Under Section 50 of the Columbus Charter, McSweeney, as the city
clerk, has a duty, within ten days after the filing of a referendum petition, to certify
the number of signatures appended and submit the petition to the city council at its
next regular meeting:
{¶15} “All papers comprising any such petition shall be assembled and filed
with the city clerk as one instrument. The city clerk shall, within ten days after the
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filing thereof, certify thereon the number of signatures thereto appended, and shall
submit the petition to the council on the date of its next regular meeting. If the
petition contains the required number of signers, the council shall, within thirty
days after the date of filing such referendum petition by the city clerk, repeal the
ordinance therein sought to be repealed, or shall order and provide for the
submission of such ordinance to a vote of the electors of the city at an election to
be held not less than sixty days thereafter.” (Emphasis added.)
{¶16} McSweeney refused to submit the petition under Section 50 of the
charter because he determined that the petition violated R.C. 3501.38(I), which
mandates that “[n]o alterations, corrections, or additions may be made to a petition
after it is filed in a public office.” See Section 200(b), Columbus Charter (“Except
as otherwise provided for in the charter all elections shall be held and conducted
and the results thereof ascertained and certified as provided by the general laws of
the state and by the election authorities therein provided for”).
{¶17} In determining whether R.C. 3501.38(I) applies here, 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. The purpose of R.C. 3501.38(I) is to
ensure that what the voter signed is what is filed. State ex rel. Rose v. Lorain Cty.
Bd. of Elections (2000), 90 Ohio St.3d 229, 231-232, 736 N.E.2d 886. In other
words, “[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.” Id. at
231, 736 N.E.2d 886.
{¶18} In Rose, 90 Ohio St.3d 229, 736 N.E.2d 886, syllabus, we held,
“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.” In Rose, the
referendum petitioner filed a first petition that contained insufficient valid
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signatures and a second petition containing sufficient valid signatures. The
petitioner withdrew both petitions, combined them, and resubmitted them as one
petition.
{¶19} In this case, Miles withdrew the defective referendum petition,
attached the required circulator affidavits to 395 of the previously filed 483 part-
petitions, and attached circulator affidavits to 3 new part-petitions. The parties
agree that under Rose, Miles was authorized to withdraw the defective petition.
{¶20} Once the previously filed petition was withdrawn, there was “nothing
before the public office and, therefore, there [was] nothing to be acted upon.” Rose,
90 Ohio St.3d at 232, 736 N.E.2d 886. Consequently, R.C. 3501.38(I) did not
prevent the referendum petitioners from attaching the missing circulator affidavits
and resubmitting the petition. Consistent with the purpose of the statute and Rose,
the “alterations, corrections, or additions” specified in R.C. 3501.38(I) should be
construed to refer only to changes in the information assented to by the petition
signers. So construed, no violation of R.C. 3501.38(I) occurred because signers of
the referendum petition were neither deceived nor misled. Cf. State ex rel. Green
v. Casey (1990), 51 Ohio St.3d 83, 85, 554 N.E.2d 1288 (“the standard for
reviewing technical defects in declaration of candidacy and petition papers is
whether the defect could cause a signer to be deceived or misled. Correcting an
error in arithmetic after a petition has been signed is such a technical defect, and it
can not deceive or mislead the signers”).
{¶21} This construction of R.C. 3501.38(I) does not contravene the
legislative intent of the statute. The petition was not altered, corrected, or added to
in a manner that modified the substance of what the petition contained when
prospective voters signed it. The affidavits attached to 395 of the previously
submitted part-petitions had to be completed by the circulators after the part-
petitions were signed. The signers assented to what was and is still contained in
the petition; no assent to the circulator affidavits was given or necessary.
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{¶22} Moreover, construing R.C. 3501.38(I) in this manner will not, as
respondents claim, permit a petitioning committee to “change or correct the text,
dates, or other substantive matters in the petition despite the language of R.C.
3501.38(I).” Those specified changes would concern information assented to by
petition signers, which, unlike the matters at issue here, would be prohibited by
R.C. 3501.38(I).
{¶23} Further, this construction of R.C. 3501.38(I) comports with our duty
to liberally construe municipal referendum provisions so as to permit rather than
preclude the exercise of this constitutional power. Ditmars, 94 Ohio St.3d at 476,
764 N.E.2d 971; Section 1f, Article II, Ohio Constitution.
{¶24} Therefore, invalidating the referendum petition here based on the
grounds asserted by respondents serves no public interest or public purpose,
including the legislative purpose of R.C. 3501.38(I) as expressed in Rose. See
Stutzman v. Madison Cty. Bd. of Elections (2001), 93 Ohio St.3d 511, 515, 757
N.E.2d 297. The election process is benefited, rather than harmed, by permitting
the referendum petitioners to cure a defect that does not alter, correct, or add to
what petition signers agreed to in signing the petition. Consequently, the
withdrawal and refiling of the petition here is not prohibited by R.C. 3501.38(I).
See Rose, 90 Ohio St.3d at 234, 736 N.E.2d 886; see, also, State ex rel. Oster v.
Lorain Cty. Bd. of Elections (2001), 93 Ohio St.3d 480, 486, 756 N.E.2d 649 (court
has duty to construe statutes and charters to avoid unreasonable or absurd results).
{¶25} Moreover, respondents’ reliance on R.C. 731.32 to claim that the
filed precirculation copy of the petition differed from the petition filed on July 24
is misplaced. As Miles notes, R.C. 731.32 requires only that a precirculation
certified copy of the ordinance be filed. And the circulator statement contained on
the precirculation copy of the petition filed by relator contained language that was
largely identical to the language in the circulator affidavits later attached to the
petition.
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{¶26} Based on the foregoing, Miles has established a clear legal right to
have McSweeney submit the referendum petition to the city council for
consideration and a clear legal duty on the part of McSweeney to do so. Section
50, Columbus Charter. The withdrawal of the defective petition, the attachment of
circulator affidavits to the withdrawn petition, and the resubmission of the petition
with some new part-petitions is no more a violation of R.C. 3501.38(I) than the
combination of the previously filed and withdrawn referendum part-petitions at
issue in Rose.
{¶27} In addition, under Sections 48 and 50 of the charter, Ordinance No.
0754-02 shall not become operative unless it is approved by a majority of voters at
the November 5, 2002 election. Therefore, we grant a writ of mandamus to compel
McSweeney to submit the referendum petition to the city council at its next regular
meeting.
Alternate Claim
{¶28} In so holding, we reject Miles’s alternate claim that the pertinent
statutory and charter provisions should be construed so that the word “petition”
does not include circulator statements or affidavits. Miles’s claim in this regard is
meritless. R.C. 3501.38(E) specifies that the required circulator statement be
contained “[o]n each petition paper,” and Section 50 of the Columbus Charter
provides that “[a]ll papers comprising any such petition shall be assembled and
filed with the city clerk as one instrument.” See, also, Section 49, Columbus
Charter, which requires that “to each such [petition] paper there shall be attached
an affidavit by the circulator * * * .” Because the circulator affidavit is attached to
the petition and the petition papers are ultimately filed with the city clerk as one
instrument, the affidavit becomes part of the petition. As respondents correctly
observe, the circulator affidavits are a “necessary component of a valid and
complete petition.”
Attorney Fees
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{¶29} Finally, Miles requests attorney fees pursuant to R.C. 733.61. The
decision whether to award attorney fees to relator in a successful R.C. Chapter 733
taxpayer suit is committed to the discretion of the court. State ex rel. Commt. for
the Charter Amendment Petition v. Avon (1998), 81 Ohio St.3d 590, 595, 693
N.E.2d 205. In exercising this discretion, courts consider whether the case resulted
in a public benefit and if respondents had a reasonable basis to support their
position. Id.
{¶30} In this case, even though respondents’ position is incorrect, an award
of attorney fees is not warranted because their interpretation of R.C. 3501.38(I) and
precedent was not irrational. See State ex rel. Cater v. N. Olmsted (1994), 69 Ohio
St.3d 315, 321-322, 631 N.E.2d 1048. Rose is, as Miles concedes, not factually
identical to the case at bar, and we clarify the scope of that decision in this case.
Conclusion
{¶31} Based on the foregoing, we grant a writ of mandamus to compel
respondent McSweeney to submit the referendum petition to the city council at its
next regular meeting. Columbus Ordinance No. 0754-02 will not become operative
unless it is approved by a majority of voters at the November 5, 2002 election. We
further deny relator’s request for attorney fees.
Writ granted.
MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.
DOUGLAS, RESNICK and PFEIFER, JJ., concur in part and dissent in part.
COOK, J., dissents.
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DOUGLAS, J., concurring in part, dissenting in part.
{¶32} I concur with the majority on the main issue discussed in the opinion.
I respectfully dissent as to the denial of attorney fees to Miles. To compel this
relator to absorb the cost of seeking redress through the courts when his cause is
legally correct will, I believe, discourage other similarly situated citizens from
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bringing such an action even when they are sure that they are correct and when, in
the end, their position would be vindicated.
RESNICK and PFEIFER, JJ., concur in the foregoing opinion.
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COOK, J., dissenting.
{¶33} In State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio
St.3d 229, 736 N.E.2d 886, a majority of this court permitted a referendum
petitioner to withdraw separately filed petitions, combine them, and resubmit them
as one instrument. That holding undercut the requirements of R.C. 3501.38 by
ignoring the plain meaning of the statutory language. See id. at 235-237, 736
N.E.2d 886 (Cook, J., dissenting) (filing a referendum petition consisting of papers
included in previously filed and withdrawn petitions violates both R.C.
3501.38[I][improper amendments to first petition] and R.C. 3501.38[K] [improper
filing of petition material]). Today’s majority compounds this error by not only
permitting the withdrawal and refiling of petition papers previously filed, but by
now permitting a party to file additional material that had never been filed—in
contravention of Rose’s charge that a petitioner “preserve[e] * * * the integrity of
the contents of his petitions” and not “alter, correct, or add to the petitions.” Id. at
234, 736 N.E.2d 886.
{¶34} R.C. 3501.38(I) unambiguously prohibits any “alterations,
corrections, or additions” to a petition “after it is filed in a public office.”
“Addition” means “anything added,” and “alteration” means “a change in a legal
instrument that changes its legal effect.” Webster’s Third New International
Dictionary (1986) 24 and 63. Here, without the circulator affidavits, the original
filing was invalid. By resubmitting the petitions as altered by the addition of the
circulator-affidavits required by Section 49 of the Columbus Charter, the later filing
also contravened R.C. 3501.38(I). Because Miles withdrew, altered, and then
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refiled the defective referendum petition in contravention of a statutory provision,
I respectfully dissent and would deny the writ.
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Kegler, Brown, Hill & Ritter and Thomas W. Hill; Phillip L. Harmon, for
relator.
Janet E. Jackson, Columbus City Attorney, Daniel W. Drake and Susan E.
Ashbrook, Assistant City Attorneys, for respondents.
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