State ex rel. Ditmars v. McSweeney

[This decision has been published in Ohio Official Reports at 94 Ohio St.3d 472.]

THE STATE EX REL. DITMARS v. MCSWEENEY, CLERK, ET AL.

[Cite as State ex rel. Ditmars v. McSweeney, 2002-Ohio-997.]

Elections—Initiative petitions—Mandamus sought to compel City Clerk of

Columbus to serve a certified copy of Columbus Ordinance No. 1760.01

concerning protection and preservation of the Big Darby watershed on

the Franklin County Board of Elections—Writ granted, when.

(No. 02-297—Submitted March 5, 2002—Decided March 8, 2002.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} Relator, David Ditmars, is a resident of the city of Columbus, Ohio,

and is a member of a petitioning committee that was formed to circulate an initiative

petition. The initiative petition contains a proposed ordinance entitled “Ordinance

to Protect and Preserve the Big Darby Watershed.”1 The proposed ordinance

provides that for five years after the ordinance becomes effective, Columbus may

not permit within the Big Darby watershed (1) any extension of an existing, or

construction of any new, public drinking-water delivery system or public sewer

system; (2) any extension of an existing, or construction of any new, private sewage

system; and (3) any material modification of the natural surface water drainage

topography.

{¶ 2} On March 26, 2001, Ditmars filed a certified precirculation copy of

the initiative petition with the office of respondent Timothy McSweeney, the City

Clerk of Columbus. On October 3, 2001, Ditmars and others filed the initiative

1. For purposes of the proposed ordinance, the Big Darby watershed is defined as the area of land

in which the natural surface water drains into the Big Darby Creek, the Hellbranch Run, the Clover

Groff Ditch, or the Hamilton Ditch.

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petition, which consisted of 888 part-petitions containing 12,221 signatures, with

the city clerk’s office. On each of the part-petitions, the circulator signed the

preprinted circulator statement, which had the following declaration:

“I, ________________ (printed name of circulator), declare under penalty

of election falsification that I am a qualified elector of the State of Ohio and reside

at the address appearing below my signature hereto; that I am the circulator of the

foregoing petition paper containing ____________ (number) signatures; that I

witnessed the affixing of every signature, that all signers were to the best of my

knowledge and belief qualified to sign, and that every signature is to the best of my

knowledge and belief the signature of the person whose signature it purports to be.”

See R.C. 3501.38(E).

{¶ 3} None of the circulator statements on the part-petitions was notarized

or otherwise sworn to by the circulator under oath.

{¶ 4} McSweeney sent the petition to the Franklin County Board of

Elections to verify the number of valid signatures of registered Columbus electors.

On October 11, 2001, the board returned the petition to McSweeney with its report

that the petition contained more than the required number of valid signatures.

{¶ 5} On October 15, 2001, McSweeney certified the petition and submitted

the proposed ordinance to the Columbus City Council. On October 22, the city

council unanimously voted not to enact the proposed ordinance. The city council

then immediately adopted Ordinance No. 1760-01, which was emergency

legislation to submit the proposed ordinance concerning the Big Darby watershed

to the “electors of the City of Columbus, Ohio pursuant to Section 44 of the City

Charter for their approval or rejection at an election to be held May 7, 2002.” The

ordinance further provided that the “Clerk of this Council shall forthwith serve a

certified copy of this Ordinance on the Franklin County, Ohio Board of Elections.”

Ordinance No. 1760-01 also acknowledged that “pursuant to Columbus City

Charter Section 44 Council is required forthwith to order and provide for the

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submission of such proposed ordinance which has been rejected to a vote of the

electors of the City at the next ensuing election to be held not less than sixty (60)

nor more than one hundred twenty (120) days thereafter; or, if no such election will

be held, at the next ensuing election.” On October 23, Columbus Mayor Michael

Coleman signed Ordinance No. 1760-01.

{¶ 6} McSweeney did not, as required by Ordinance No. 1760-01, serve a

certified copy of that ordinance on the board of elections. Instead, by letter dated

February 13, 2002, almost four months after the city council ordered him to serve

the certified copy of the ordinance, McSweeney notified members of the petitioning

committee, including Ditmars, that he would not certify the initiative to the board

of elections because the petition was insufficient and invalid. McSweeney stated

that the Columbus City Attorney had reviewed the petition and concluded that it

was defective because it lacked the circulators’ affidavits required by Columbus

Charter Section 42.

{¶ 7} On February 15, 2002, Ditmars instituted this expedited election case.

Ditmars requested a writ of mandamus to compel McSweeney and the board of

elections to “fulfill all of the legal duties imposed upon [them] under Columbus

City Council Ordinance No. 1760-01” and “to specifically compel the Board to

place the Proposed Ordinance on the City of Columbus May 7, 2002 ballot.” We

granted the motion of Rocky Lee Blauser and Blauser Family Partnership2 to

intervene as respondents, and the parties filed a joint application to dismiss the

board of elections from the case because the action was premature as to the board,

which had not had the initiative petition certified to or filed with it. On March 5,

we granted the joint application and dismissed the board of elections from this case.

McSweeney and the intervening respondents filed motions to dismiss, and the

2. Rocky Lee Blauser is a partner in Blauser Farm Partnership, which owns a two-hundred-three-

acre farm located within the Big Darby watershed, and would be adversely affected by the enactment

of the proposed ordinance.

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

S.Ct.Prac.R. X(9).

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

{¶ 9} Ditmars requests a writ of mandamus to compel McSweeney to fulfill

his legal duties under Columbus Ordinance No. 1760-01, i.e., to “forthwith serve a

certified copy of [the] Ordinance on the Franklin County, Ohio Board of Elections.”

In order to be entitled to the requested extraordinary relief in mandamus, Ditmars

must establish a clear legal right to have McSweeney comply with Ordinance No.

1760-01, a corresponding clear legal duty on the part of McSweeney to so comply,

and the lack of an adequate legal remedy in the ordinary course of the law. State

ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections (2001), 93 Ohio St.3d 529,

532, 757 N.E.2d 314. Ditmars has established that he lacks an adequate remedy in

the ordinary course of the law, so the dispositive issue is whether he has established

his right to the requested relief and McSweeney’s duty to provide it.

Sufficiency and Validity of Initiative Petition: Affidavit Requirement of

Columbus Charter

{¶ 10} Ditmars first asserts that McSweeney lacked authority to refuse to

certify the initiative to the board of elections because his stated reason for so

refusing is erroneous. McSweeney refused to certify the initiative to the board of

elections because the petition lacked the circulators’ affidavits required by the

charter. Section 42 of the Columbus Charter specifies that affidavits of circulators

must be attached to each initiative petition paper:

“The signatures to any such petition need not all be appended to one paper,

but to each such paper there shall be attached an affidavit by the circulator thereof

stating the number of signers to such part of the petition and that such signatures

were appended thereto in the presence of affiant.” (Emphasis added.)

{¶ 11} Ditmars contends that although the circulator statements in the

initiative petition were unsworn and not declared in the presence of an officer

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authorized to administer oaths, they complied with applicable legal provisions

because Section 42 of the Columbus Charter does not use the terms “notary” and

“notarization,” Section 42 does not conflict with R.C. 3501.38(E),3 and the

circulator statements contained in the initiative petition fully complied with R.C.

3501.38(E). These contentions are meritless.

{¶ 12} The word “affidavit” is not defined in the Columbus Charter.

Undefined language used in a municipal charter must be construed according to its

ordinary and common usage. State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d

1, 5, 716 N.E.2d 1114. Applying the ordinary and common meaning of the word

here, an “affidavit” is a “voluntary declaration of facts written down and sworn to

by the declarant before an officer authorized to administer oaths.” Black’s Law

Dictionary (7 Ed.1999) 58; see, also, Webster’s Third New International Dictionary

(1986) 35, defining “affidavit” as “a sworn statement in writing made esp. under

oath or on affirmation before an authorized magistrate or officer.” Therefore, the

mere fact that Section 42 of the Columbus Charter does not include terms like

“notary” or “notarization” in addition to “affidavit” does not obviate the

requirement that circulators of initiative petitions must declare under oath before

an officer authorized to administer oaths the number of signers on the part petitions

and that those signatures were made in their presence.

{¶ 13} Further, Section 42 of the Columbus Charter does conflict with R.C.

3501.38(E) insofar as the charter provision requires circulator affidavits and the

statute does not. Because the charter provision conflicts with the statute on the

affidavit requirement, the charter provision prevails. “ ‘In matters of local self-

government, if a portion of a municipal charter expressly conflicts with parallel

3. R.C. 3501.38(E) provides, “On each petition paper, the circulator shall indicate the number of

signatures contained on it, and shall sign a statement made under penalty of election falsification

that the circulator witnessed the affixing of every signature, that all signers were to the best of the

circulator’s knowledge and belief qualified to sign, and that every signature is to the best of the

circulator’s knowledge and belief the signature of the person whose signature it purports to be.”

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state law, the charter provisions will prevail.’ “ State ex rel. Fenley v. Kyger (1995),

72 Ohio St.3d 164, 165, 648 N.E.2d 493, quoting State ex rel. Lightfield v. Indian

Hill (1994), 69 Ohio St.3d 441, 442, 633 N.E.2d 524; Sections 3 and 7, Article

XVIII, Ohio Constitution.

{¶ 14} Based on the foregoing, McSweeney correctly concluded that the

initiative petition was insufficient and invalid because it did not comply with the

affidavit requirement of Columbus Charter Section 42. This conclusion is

consistent with precedent. See State ex rel. Van de Kerkhoff v. Dowling (1991), 61

Ohio St.3d 55, 572 N.E.2d 653 (referendum petition properly held to be insufficient

because it failed to comply with city charter requirement of circulator affidavits);

State ex rel. Humble v. Brown (1977), 52 Ohio St.2d 9, 6 O.O.3d 77, 368 N.E.2d

294 (local option election petition containing statement of circulator did not satisfy

statutory requirement of a circulator affidavit); State ex rel. Evergreen Co. v.

Franklin Cty. Bd. of Elections (1976), 48 Ohio St.2d 29, 2 O.O.3d 126, 356 N.E.2d

716 (lack of statement that notaries placed referendum petition circulators under

oath established failure to comply with statutory affidavit requirement).

Sufficiency and Validity of Initiative Petition: Liberal Construction of Municipal

Initiative Provisions

{¶ 15} Ditmars contends that liberal construction of the Columbus Charter

requirements for initiative petitions supports his claim that the petition met all

applicable legal requirements. It is true that provisions for municipal initiative or

referendum are liberally construed so as to permit rather than preclude the exercise

of this power. State ex rel. Rose v. Lorain Cty. Bd. of Elections (2000), 90 Ohio

St.3d 229, 230, 736 N.E.2d 886.

{¶ 16} Nevertheless, the settled rule is that election laws are mandatory and

require strict compliance and that substantial compliance is acceptable only when

an election provision expressly states that it is. See State ex rel. Phillips v. Lorain

Cty. Bd. of Elections (2001), 93 Ohio St.3d 535, 539, 757 N.E.2d 319. Section 42

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of the Columbus Charter does not expressly state that mere substantial compliance

with its circulator-affidavit requirement is acceptable, and even if it did, the

initiative petition filed by Ditmars and other petitioners did not substantially

comply with that requirement. See Van de Kerkhoff, 61 Ohio St.3d at 59-60, 572

N.E.2d 653 (an unsworn circulator statement in a referendum petition does not

comply, either strictly or substantially, with municipal charter requirement of a

circulator affidavit).

{¶ 17} Therefore, Ditmars’s reliance on the general rule of liberal

construction of municipal initiative provisions does not modify the conclusion that

the petition is invalid because it failed to comply with the unequivocal circulator-

affidavit requirement of Section 42 of the Columbus Charter. See State ex rel.

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

771 (no need to liberally construe a statute whose meaning is unequivocal and

definite).

Sufficiency and Validity of Initiative Petition: Estoppel

{¶ 18} Ditmars asserts that McSweeney, who could have discerned the lack

of circulator affidavits in the petition earlier, “waited until the last moment to kill

the election.”

{¶ 19} McSweeney, however, is not estopped from raising the insufficiency

and invalidity of a petition merely because he waited over four months from the

date the signed petition was filed with him to raise the Section 42 defect. Estoppel

does not apply against election officials in the exercise of governmental functions.

See State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections

(1997), 80 Ohio St.3d 302, 307, 686 N.E.2d 238. In other words, the petitioners’

duty to comply with the affidavit requirement of the charter is not conditioned upon

receiving notice from the city clerk that the duty exists. See State ex rel. Jedlicka

v. Cuyahoga Cty. Bd. of Elections (1969), 20 Ohio St.2d 13, 15, 49 O.O.2d 108,

251 N.E.2d 862 (R.C. 3517.10 “imposes a duty on every candidate to file a

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statement of receipts and expenses. That duty is explicit. It is not conditioned upon

receiving the notice from the board that the duty exists. Therefore, the failure of

the board to notify relator does not excuse him from his requirement to file his

statement of receipts and expenses”).

Authority of City Clerk to Determine Sufficiency and Validity of Initiative

Petition Following Enactment of Ordinance Ordering Certification of Initiative

{¶ 20} Ditmars next contends that even if McSweeney correctly concluded

that the initiative petition was invalid because it failed to comply with Section 42

of the Columbus Charter, McSweeney no longer had any authority to so conclude

after the city council had enacted an ordinance ordering him to certify the ordinance

to the board of elections. McSweeney counters that under R.C. 731.28 and Section

42 of the Columbus Charter, McSweeney retained the authority to refuse to certify

the initiative to the board of elections.

{¶ 21} The statutory procedure governing municipal initiative and

referendum in R.C. 731.28 through 731.41 applies to municipalities where the

charter incorporates general law by reference, except where the statutory procedure

conflicts with other charter provisions. Christy v. Summit Cty. Bd. of Elections

(1996), 77 Ohio St.3d 35, 38, 671 N.E.2d 1. Municipal charters must be construed

to give effect to all separate provisions and to harmonize them with statutory

provisions whenever possible. State ex rel. Fattlar v. Boyle (1998), 83 Ohio St.3d

123, 127, 698 N.E.2d 987.

{¶ 22} R.C. 731.28 provides the following procedure for municipal

initiative petitions: (1) when a petition for an initiated ordinance or other measure

is signed by the required number of electors, the city auditor or village clerk has a

mandatory, ministerial duty, after ten days from the date the petition was filed, to

transmit the petition and a certified copy of the text of the proposed ordinance or

other measure to the board of elections; (2) within ten days of receiving the petition,

the board of elections is required to determine the number of electors of the

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municipal corporation who signed the petition and return the petition to the auditor

or clerk together with a statement attesting to the number; (3) the auditor or clerk

then exercises limited, discretionary authority to determine the sufficiency and

validity of the petition; and (4) if the auditor or clerk certifies the sufficiency and

validity of the initiative petition to the board of elections, the board must submit

the proposed ordinance or other measure at the next succeeding general election

occurring after seventy-five days from the certification to the board of elections,

but only if the board determines under R.C. 3501.11(K) and 3501.39 that the

petition is sufficient and valid. See State ex rel. Sinay v. Sodders (1997), 80 Ohio

St.3d 224, 230-231, 685 N.E.2d 754.

{¶ 23} The Columbus Charter initiative procedure, which specifies in

Section 43 that initiative petitions are filed with the city clerk rather than the city

auditor, differs from the foregoing statutory procedure in several significant

respects: (1) within ten days after the filing of the initiative petition, the city clerk

certifies the number of signatures and submits the proposed ordinance to the city

council at its next regular meeting (Section 43); (2) if the petition contains the

required number of signatures, the city council refers the proposed ordinance to a

committee to report at the next regular council meeting (Section 44); (3) if the

council then either fails to take action or rejects the proposed ordinance in whole or

in part, it must order the submission of the proposed ordinance to the electorate at

the next election to be held not less than sixty nor more than one hundred and

twenty days thereafter (Section 44); and (4) the ordinance submitting the proposed

ordinance to a vote of the electorate shall be certified by the city clerk to the proper

election officials immediately upon passage by council (Section 200). In addition,

Section 42 of the charter provides, “The petition and signatures thereto appended,

so verified, shall be presumed to be in all respects sufficient, unless not later than

forty days before the election, it shall be otherwise proven.”

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{¶ 24} After construing these provisions in pari materia and giving effect

to all of the applicable provisions, it is evident that although the charter does not

completely negate the statutory procedure, it nonetheless alters that procedure.

R.C. 731.28 provides that city auditors and village clerks must exercise their

limited, discretionary authority to determine the sufficiency and validity of

initiative petitions when they receive the petitions back from the board of elections.

Here, the city clerk received the petition back from the board of elections before it

had a duty under the charter to certify the number of signatures and submit the

proposed ordinance to the city council. Columbus Charter, Section 43.

McSweeney should have then reviewed the petition and exercised his limited,

discretionary authority to determine the petition’s sufficiency and validity. Instead,

he waited until after council passed an ordinance ordering him to serve a certified

copy of the proposed ordinance to the board of elections.

{¶ 25} Adopting respondents’ contrary interpretation, which would permit

the city clerk to, in effect, trump the city council’s enactment of an ordinance and

the mayor’s approval thereof, would render nugatory the charter provisions

concerning council’s duties concerning initiative matters. And although Section 42

of the charter indicates that the municipal official or entity’s determination of

sufficiency concerning a petition may be made as late as forty days before an

election, it does not purport to negate the other charter provisions.

{¶ 26} Moreover, accepting respondents’ argument that the city clerk can

determine sufficiency even after he has been ordered by city council to serve a

certified copy of the ordinance on the board of elections would contravene the

general rule that only a new ordinance can repeal an existing ordinance. State ex

rel. Commt. for the Referendum of Ordinance No. 3543-00 v. White (2000), 90 Ohio

St.3d 212, 217, 736 N.E.2d 873. Council enacted no new ordinance repealing

Ordinance No. 1760-01 here.

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{¶ 27} Therefore, construing the pertinent charter and statutory provisions

in pari materia, McSweeney lacked authority following the enactment of

Ordinance No. 1760-01 to determine that the petition was insufficient. At the time

that the ordinance was enacted, he had a duty under the charter to immediately

certify the ordinance to the proper election officials. Columbus Charter, Section

200. In fact, the ordinance itself ordered McSweeney to forthwith serve a copy of

the ordinance on the board of elections. McSweeney did neither despite his clear

legal duty to do so under the charter and the ordinance.

Laches

{¶ 28} The intervening respondents assert that because Ditmars relies upon

the October 23 mayoral approval of the October 22 enactment of Ordinance No.

1760-01 to support his claim that McSweeney had a duty to serve a certified copy

of the ordinance on the board of elections, Ditmars’s expedited election action for

extraordinary relief in mandamus is barred by laches. This assertion is meritless.

{¶ 29} It is axiomatic that relators in election cases must act with the utmost

diligence. State ex rel. Newell v. Tuscarawas Cty. Bd. of Elections (2001), 93 Ohio

St.3d 592, 595, 757 N.E.2d 1135. But there is no evidence in this case that Ditmars

delayed in asserting his claims here. He could have reasonably relied upon the

passage of Ordinance No. 1760-01, which indicated that the initiative was

proceeding to be placed upon the May 7 ballot, until McSweeney notified him by

letter dated February 13, 2002, that the initiative had not been certified to the board

of elections. Ditmars then filed this action within two days of the notification letter.

And the date for the preparation of absentee ballots has not yet passed. See R.C.

3509.01. Therefore, under these circumstances, laches does not bar Ditmars’s

mandamus claim.

Conclusion

{¶ 30} Based on the foregoing, Ditmars has established entitlement to the

requested extraordinary relief in mandamus. He has a clear legal right under

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Ordinance No. 1760-01 and the Columbus Charter to have McSweeney

immediately serve a certified copy of the ordinance on the board of elections, and

McSweeney has a corresponding clear legal duty to do so. We therefore grant

Ditmars a writ of mandamus to compel McSweeney to serve a certified copy of

Ordinance No. 1760-01 on the board of elections.4

Writ granted.

MOYER, C.J., F.E. SWEENEY and LUNDBERG STRATTON, JJ., concur.

DOUGLAS, RESNICK and COOK, JJ., concur in judgment.

PFEIFER, J., dissents.

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Phillip L. Harmon, for relator.

Janet E. Jackson, Columbus City Attorney, Daniel W. Drake and Susan E.

Ashbrook, Assistant City Attorneys, for respondent Timothy McSweeney,

Columbus City Clerk.

Vorys, Sater, Seymour & Pease L.L.P., Bruce L. Ingram and Matthew R.

Wilson; Crabbe, Brown, Jones, Potts & Schmidt and Larry H. James, for

intervening respondents.

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4. By so holding, we are not ordering the board of elections to place this initiative on the May 7

ballot. In fact, Ditmars concedes that the board of elections is authorized to consider the sufficiency

and validity of the initiative petition. And nothing in the Columbus Charter, R.C. 731.28, or

precedent negates the board’s statutory authority to determine the sufficiency of the petition. See

Sinay, 80 Ohio St.3d at 231, 685 N.E.2d 754 (“If the General Assembly had intended to completely

divest boards of elections, which are the local authorities best equipped to gauge compliance with

election laws, of their authority to determine the sufficiency and validity of these petitions, it would

have done so with unambiguous language”); see, also, State ex rel. Kennedy v. Cuyahoga Cty. Bd.

of Elections (1976), 46 Ohio St.2d 37, 75 O.O.2d 100, 346 N.E.2d 283, holding that because nothing

in the municipal charter referred to the board of elections or purported to negate the board’s duties,

the board retained its full authority. Finally, the parties jointly dismissed the board of elections from

this mandamus action. Therefore, the board of elections retains its authority to determine the

sufficiency and validity of the initiative petition.

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