State ex rel. Huebner v. W. Jefferson Village Council

[This opinion has been published in Ohio Official Reports at 75 Ohio St.3d 381.]

THE STATE EX REL. HUEBNER, APPELLANT, v. WEST JEFFERSON VILLAGE

COUNCIL ET AL., APPELLEES.

[Cite as State ex rel. Huebner v. W. Jefferson Village Council, 1996-Ohio-303.]

Elections—Reconsideration procedures may be invoked to correct decisions

made in error—S.Ct.Prac.R. XI—Determination of number of valid part-

petition signatures for placement on ballot of proposed municipal charter

amendment—Sections 5, 8, 9, and 14, Article XVIII, Ohio Constitution,

construed in pari materia—Writ granted, when.

(No. 95-58—Submitted April 4, 1995—Decided July 26, 1995—Reconsideration

Granted, Judgment Reversed, and Writ Allowed March 6, 1996.)

APPEAL from the Court of Appeals for Madison County, No. CA94-08-030.

ON MOTION FOR RECONSIDERATION.

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{¶ 1} Appellant, David A. Huebner, and other individuals circulated part-

petitions to place a proposed charter amendment on the November 8, 1994 ballot

for the village of West Jefferson. The amendment would restrict the village in

taxing wages originating within its boundaries to a rate of one percent. On July 18,

1994, the petition, which contained 208 valid signatures, was filed with the Clerk

of the West Jefferson Village Council. As of that date, there were 2,272 registered

voters in the village. The number of registered voters who had voted at the last

preceding general municipal election on November 2, 1993 was 482.

{¶ 2} On August 15, 1994, appellees, West Jefferson Village Council

members, voted not to certify the part-petitions to the board of elections “for the

reason that they are not sufficient in form and in substance.” Appellees determined

that the petition did not contain sufficient valid signatures because it lacked

signatures of at least ten percent of all the electors in the village on the date the

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petition was filed, i.e., ten percent of the total number of West Jefferson registered

voters (2,272), or 228 valid signatures.

{¶ 3} On August 19, 1994, Huebner filed a complaint in the Court of

Appeals for Madison County for a writ of mandamus compelling appellees to

certify the proposed charter amendment to the board of elections for placement of

the issue on the ballot for the next regular municipal election. The court of appeals

granted appellees’ motion for summary judgment and denied the writ, thereby

rejecting appellant’s contention that the requisite number of signatures was ten

percent of the number of registered voters who had voted at the last preceding

municipal election, i.e., 49 signatures.

{¶ 4} On Huebner’s pro se appeal as of right from the denial of the writ, a

four to three majority of this court affirmed the court of appeals. State ex rel.

Huebner v. W. Jefferson Village Council (1995), 72 Ohio St.3d 589, 651 N.E.2d

1001.

{¶ 5} The cause is now before the court upon appellant’s motion for

reconsideration, and motions for leave to intervene in support of appellant’s motion

filed by the city of Cincinnati and the Secretary of State.

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S. David Worhatch, for appellant.

Betty D. Montgomery, Attorney General, Susan E. Ashbrook and Andrew

S. Bergman, Assistant Attorneys General, for intervenor Secretary of State.

Fay D. Dupuis, City Solicitor, Robert H. Johnstone, Deputy City Solicitor,

and Richard Gonulin, Assistant City Solicitor, for intervenor city of Cincinnati.

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MOYER, C.J.

{¶ 6} Following our July 26, 1995 decision in this cause, appellant retained

counsel, who filed the motion for reconsideration here and the complaint for a writ

of mandamus in a separate expedited election case, State ex rel. Ricchiuto v.

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Reagan, case No. 95-1679. Both Ricchiuto and another expedited election case,

State ex rel. Taxpayers for Accountable Govt. v. Cincinnati City Council, case No.

95-1714, challenged the validity of Huebner. A third expedited election case, State

ex rel. Lewis v. Hamilton Cty. Bd. of Elections, case No. 95-1689, sought to apply

Huebner to prevent a previously certified charter amendment proposal from being

submitted to the electorate for vote. Ricchiuto was resolved when this court denied

the writ requested by the relators. State ex rel. Ricchiuto v. Reagan (1995), 74 Ohio

St.3d 11, 655 N.E.2d 1298. Taxpayers and Lewis were also subsequently

dismissed. State ex rel. Lewis v. Hamilton Cty. Bd. of Elections (1995), 74 Ohio

St.3d 1201, 655 N.E.2d 177 (entry dismissing cause), 74 Ohio St.3d at 1202-1203,

655 N.E.2d at 177-178 (Moyer, C.J., concurring) and 74 Ohio St.3d at 1203-1205,

655 N.E.2d at 178-179 (Douglas, J., concurring).

{¶ 7} Appellant and the city of Cincinnati1 now contend on reconsideration

that we should vacate our decision in Huebner and adopt the position of the

dissenting opinion therein or, alternatively, should modify Huebner so as to restrict

its effect to prospective cases.

{¶ 8} We have invoked the reconsideration procedures set forth in

S.Ct.Prac.R. XI to correct decisions which, upon reflection, are deemed to have

been made in error. See State ex rel. Mirlisena v. Hamilton Cty. Bd. of Elections

(1993), 67 Ohio St.3d 597, 622 N.E.2d 329 (reasoning contained in a previous

dissenting opinion adopted by a majority of this court pursuant to a motion for

reconsideration); State ex rel. Eaton Corp. v. Lancaster (1989), 44 Ohio St.3d 106,

541 N.E.2d 64 (views contained in a previous concurring opinion adopted by a

majority of this court pursuant to a motion for “rehearing”).

1. The motions for leave to intervene filed by the city of Cincinnati and the Secretary of State are

granted.

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{¶ 9} The majority Huebner opinion reasoned that denial of the requested

writ was justified, in part, by the Home Rule Amendment to the Ohio Constitution,

which authorizes municipalities “to exercise all powers of local self-government

and to adopt and enforce within their limits such local police, sanitary and other

similar regulations, as are not in conflict with general laws.” Section 3, Article

XVIII, Ohio Constitution. This justification for denial of the writ was not raised

by appellees or discussed by the court of appeals, nor was it fully briefed in this

court prior to issuance of our first opinion. We note, additionally, that the

discussion of the Home Rule Amendment in our original opinion appears to be

contrary to established precedent, and the sole case cited therein appears to be

inapposite. State ex rel. Bedford v. Cuyahoga Cty. Bd. of Elections (1991), 62 Ohio

St.3d 17, 577 N.E.2d 645. See, also, State ex rel. Semik v. Cuyahoga Cty. Bd. of

Elections (1993), 67 Ohio St.3d 334, 335-336, 617 N.E.2d 1120, 1122, citing State

ex rel. Hinchliffe v. Gibbons (1927), 116 Ohio St. 390, 395, 156 N.E. 455, 457;

Bazell v. Cincinnati (1968), 13 Ohio St.2d 63, 42 O.O.2d 137, 233 N.E.2d 864,

paragraph one of the syllabus. Appellant now urges us to recognize and reaffirm

the principle that subordinate authority must always yield to contrary paramount

authority, and hold that municipal charters may not be construed so as to overrule

rights guaranteed to the citizens of Ohio by the Ohio Constitution. Upon further

reflection, and on this record, we conclude that the Home Rule Amendment cannot

support denial of the writ requested in this case.

{¶ 10} The second rationale of our Huebner decision, and the basis of the

court of appeals’ decision, is the premise that Section 9, Article XVIII of the Ohio

Constitution constitutes a special provision (concerning charter amendments)

which is in irreconcilable conflict with the general provision of Section 14, Article

XVIII, Ohio Constitution. However, appellant and the Huebner dissent argue for a

different interpretation of Sections 9 and 14. While Sections 5, 8, and 9 of Article

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XVIII refer to petitions of “ten per centum of the electors,” they do not specify the

basis or date upon which the “ten per centum of electors” is to be calculated.

{¶ 11} The court of appeals additionally determined that Section 9 should

be deemed to prevail over Section 14 because Section 9 was last amended in 1971.

On reconsideration, appellant argues against this view, in that the 1971 amendment

to Section 9 did not affect the number of signatures required for submission of a

proposed charter amendment to the electorate, but rather authorized notice of

proposed charter amendments to be given by newspaper publication and not by

mailing. Am.Sub.S.J.R. No. 31, 133 Ohio Senate Journal (1969-1970), at 1508.

We agree.

{¶ 12} A majority of this court now concludes that Section 14 is

reconcilable with Sections 5, 8, and 9, of Article XVIII for the reasons set forth in

the dissent to our first Huebner opinion as summarized herein. We hold that, in

determining the number of valid part-petition signatures necessary to establish a

right to the placement of a proposed amendment of a municipal charter before the

voters, Sections 5, 8, 9 and 14, Article XVIII of the Ohio Constitution must be

construed in pari materia. Accordingly, the percentage of electors required to sign

such part-petitions is ten percent of the electors of the municipality based upon the

total number of votes cast at the last preceding general municipal election. In the

case at bar the relator was therefore required to present 49 valid signatures to create

a legal duty on the part of the appellees to certify the proposed amendment for

presentation on the ballot. Appellant met and exceeded that requirement by

presenting part-petitions that contained 208 valid signatures.

{¶ 13} Our decision is based upon a clear reading and consistent application

of the Ohio Constitution. It is also the correct result for reasons of public policy.

As appellant contends in his motion for reconsideration, our original opinion

precludes electors from knowing the exact number of valid signatures required

when circulating part-petitions. Under our earlier opinion, the percentage is not

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determined until the date the petition is filed, and the number of actual electors of

a municipality may vary over time based on voter registration drives, annexations,

or other events. Conversely, this uncertainty does not exist if Section 14 is applied,

since petitioners know the precise number of valid signatures required for

submission of the issue to the electorate. Furthermore, this interpretation fosters

the goal of providing citizens with access to the ballot, a foundation of our

democracy. Moreover, Section 14 was adopted contemporaneously with the

pertinent provisions of Sections 5, 8, and 9 of Article XVIII, all of which became

effective in 1912, and have been construed in pari materia since that time. We note

as well that the Secretary of State, the state’s chief election officer, has urged this

interpretation of the relevant provisions of the Ohio Constitution. (Motion to

dismiss, case No. 95-1689, State ex rel. Lewis, supra.)

{¶ 14} Having concluded that the reasoning contained in our prior opinion

of July 26, 1995 should be rejected, we must now discuss issues which the court of

appeals found unnecessary to address in view of its conclusion that appellant failed

to present a sufficient number of signatures.

{¶ 15} In addition to an alleged lack of sufficient number of signatures,

appellees further justified their refusal to certify the proposed charter amendment

based on their conclusion that the petition misled electors and was confusing.

However, a municipal legislative authority such as a city or village council lacks

authority to consider substantive errors in reviewing the sufficiency of petitions,

and is instead limited to reviewing the form of the petition. State ex rel. Polcyn v.

Burkhart (1973), 33 Ohio St.2d 7, 11-12, 62 O.O.2d 202, 204, 292 N.E.2d 883,

886; State ex rel. Concerned Citizens for More Professional Govt. v. Zanesville

City Council (1994), 70 Ohio St.3d 455, 457-458, 639 N.E.2d 421, 423; State ex

rel. Citizens for a Better Portsmouth v. Sydnor (1991), 61 Ohio St.3d 49, 572

N.E.2d 649. Appellees conceded below that they rejected the petition partly based

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on its substance. The appellees thereby exceeded their authority, and this proffered

alternative basis for rejecting the petition is invalid.

{¶ 16} Where a municipal legislative authority erroneously either fails to

submit a charter amendment when it is presented with a legally sufficient petition

or fails to make a prompt determination on the sufficiency of the petition within the

constitutional time period, this court has issued writs of mandamus to order

placement on the next regular election ballot. Morris v. Macedonia City Council

(1994), 71 Ohio St.3d 52, 641 N.E.2d 1075; State ex rel. Citizens for a Better

Portsmouth v. Sydnor, supra; State ex rel. Jurcisin v. Cotner (1984), 10 Ohio St.3d

171, 10 OBR 503, 462 N.E.2d 381. A regular primary election is scheduled to

occur in this state not less than sixty nor more than one hundred and twenty days

from the date of this decision. Cf. Section 8, Article XVIII, Ohio Constitution. We

find presentation of the charter amendment issue on the March 1996 primary ballot

to be the most equitable resolution of this cause for both relator and the public.

{¶ 17} Pursuant to S.Ct.Prac.R. XI, the timely filing of a motion for

reconsideration temporarily relieves the Clerk of this court of the duty to issue a

mandate in accordance with the court’s judgment. Because the appellant timely

filed the instant motion for reconsideration in this cause, no mandate has yet been

issued in this action to implement the opinion previously rendered on July 26, 1995

and reported at 72 Ohio St.3d 589, 651 N.E.2d 1001. Pursuant to S.Ct.Prac.R.

XI(3)(A)(2), where a motion for reconsideration is timely filed and granted, a

mandate is to issue at the time the Supreme Court’s judgment entry on

reconsideration is entered. Because a majority of this court concludes that the

motion for reconsideration in this cause should be granted and that the judgment of

the court of appeals should be reversed, the Clerk is instructed to issue a writ of

mandamus compelling appellees to certify the proposed charter amendment to the

board of elections for placement on the primary election ballot as a special election

issue to be presented to the electorate of West Jefferson on March 19, 1996.

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Motion for reconsideration

granted, judgment reversed

and writ granted.

WRIGHT, PFEIFER and COOK, JJ., concur.

PFEIFER, J., concurs separately.

DOUGLAS, RESNICK and F.E. SWEENEY, JJ., dissent.

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PFEIFER, J., concurring.

{¶ 18} I concur with the legal determinations made by the majority because

I do not believe that Section 9, Article XVIII of the Ohio Constitution clearly

prevails over Section 14, Article XVIII. The two provisions in the Constitution

contradict one another. After reviewing the brief submitted by the intervenor

Secretary of State, I conclude that our decision in State ex rel. Huebner v. W.

Jefferson Village Council (1995), 72 Ohio St.3d 589, 651 N.E.2d 1001, is

impractical and that the majority’s new approach is the better way to harmonize

these conflicting provisions of the Ohio Constitution.

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DOUGLAS, J., dissenting.

{¶ 19} I respectfully dissent from the judgment and the opinion of the

majority because I believe the majority makes not only a fundamental error of law

but also a dangerous and unprecedented error of public policy. The damage of

today’s blow to charter municipalities cannot be overestimated.

{¶ 20} Section 7, Article XVIII of the Ohio Constitution provides that

“[a]ny municipality may frame and adopt or amend a charter for its government

and may, subject to the provisions of section 3 of this article, exercise thereunder

all powers of local self-government.” (Emphasis added.) This is the “home rule”

provision of the Ohio Constitution.

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{¶ 21} Section 9, Article XVIII of the Ohio Constitution sets forth the

procedure to be used in amending a charter created in accordance with Section 7.

Section 9 provides, in pertinent part, that “[a]mendments to any charter framed and

adopted as herein provided may be submitted to the electors of a municipality by a

two-thirds vote of the legislative authority thereof, and, upon petitions signed by

ten per centum of the electors of the municipality setting forth any such proposed

amendment, shall be submitted by such legislative authority.” (Emphasis added.)

{¶ 22} R.C. 3501.01(N) defines “elector.” “‘Elector’ * * * means a person

having the qualifications provided by law to be entitled to vote.” (Emphasis added.)

R.C. 3501.01(O) defines “voter.” “‘Voter’ means an elector who votes at an

election.” (Emphasis added.) The difference between a person who is an “elector”

and one who is a “voter” is obvious from these definitions.

{¶ 23} Two other sections of Article XVIII of the Constitution use the term

“electors” in connection with the right of petition. Section 5 deals with a

municipality’s efforts “* * * to acquire, construct, own, lease or operate a public

utility * * *.” The section provides that “[i]f within * * * thirty days a petition

signed by ten per centum of the electors of the municipality shall be filed with the

executive authority thereof demanding a referendum on such ordinance it shall not

take effect until submitted to the electors and approved by a majority of those voting

thereon.” (Emphasis added.)

{¶ 24} Section 8 provides, in part, that “* * * upon petition of ten per

centum of the electors [the legislative authority of any city or village] shall

forthwith, provide by ordinance for the submission to the electors, of the question,

‘Shall a commission be chosen to frame a charter.’”

{¶ 25} Thus, Sections 5, 8 and 9 of Article XVIII of the Ohio Constitution

provide for petitions signed by ten per centum of the electors to place on a ballot

matters concerning public utilities, charter commissions and charter amendments.

Notwithstanding these clear, unambiguous and mandatory provisions, the majority

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today says that signatures of ten per centum of the electors are not needed. All that

is needed to place these important issues on a ballot for, if successful, inclusion in

the charter of a municipality, are the signatures of ten per centum of the persons

voting (voters) at the last preceding general municipal election. To arrive at this

result, the majority references Section 14, Article XVIII of the Ohio Constitution.

If the majority’s conclusion is correct, then Section 14 conflicts with Sections 5, 8

and 9, and the specific provisions of Sections 5, 8 and 9 prevail over the general

provisions of Section 14. R.C. 1.51. No matter how the majority says it in different

ways and no matter how many times the majority says otherwise, the terms

“electors” and “voters” cannot be made to mean the same. Our duty is to harmonize

such conflicts but, sometimes, harmony is not possible. One could not conceive of

harmonizing the hymn “Amazing Grace” with the song “Yellow Submarine.”

“Electors” are those people registered to vote. “Voters” are those electors who

actually vote in a given election.

{¶ 26} Why is any or all of this so important? Because the charter of a city

is comparable to a local constitution. In State ex rel. Bednar v. N. Canton (1994),

69 Ohio St.3d 278, 281, 631 N.E.2d 621, 624, we said that “[m]any ‘matters of

local self-government’ are, in fact, matters of detail and procedure that are out of

place in a charter, which is comparable to a local constitution.” We repeated this

in the very recent case of State ex rel. Hipp v. N. Canton (1996), 75 Ohio St.3d 221,

___, 661 N.E.2d 1090, ___. Yet, today the majority makes it easier to obtain a vote

to place a matter in a municipality’s constitution than it is to obtain a vote on a

simple ordinance. By today’s decision, the majority negates, I believe, many

municipal charter provisions that we do not, nor cannot, even know exist. Take just

two examples.

{¶ 27} In a recent case decided by this court, Paschal v. Cuyahoga Cty. Bd.

of Elections (1995), 74 Ohio St.3d 141, 656 N.E.2d 1276 (decided by the court on

grounds different than the issue now before us in the case at bar), a number of

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residents of the village of Highland Hills in Cuyahoga County initiated and signed

petitions seeking to have placed on the ballot an ordinance that would have

prohibited, if the ordinance were passed, any new penal facilities within the village.

The petitions were circulated pursuant to Article VI (Initiative, Referendum and

Recall) of the charter of the village of Highland Hills.

{¶ 28} Section 1(b), Article VI of the charter of the village states, in part,

that: “An initiated ordinance or resolution shall be submitted to Council by a

petition signed by qualified electors equal in number to at least fifteen percent

(15%) of the total vote cast in the last regular municipal election.” (Emphasis

added.) Further, a subsequent provision in the same section (Section 1) states that

“[i]f the initiative petition is signed by qualified electors equal in number to at least

twenty-five percent (25%) of the total votes cast at the last regular municipal

election, the date of the election may be fixed by the petition.” (Emphasis added.)

Thus, to initiate an ordinance in Highland Hills, petitions signed by at least fifteen

percent of the electors of the village who voted in the last regular municipal election

must be presented. If the petitioners choose to designate a date for the election,

then signatures of twenty-five percent of the total number of people who cast votes

cast at the last regular municipal election must be submitted.

{¶ 29} By today’s majority decision, it will now be easier to propose the

amending of the constitution (charter) of the village of Highland Hills than to

initiate an ordinance. Accordingly, if a proposed charter amendment, placed on the

ballot, pursuant to today’s majority decision, by signatures of ten percent of those

voting at the last regular municipal election were adopted, then the constitution of

the village of Highland Hills would contain the “no new jails” provision. Clearly,

the cited provisions of the charter of Highland Hills and all other charters in this

state with like or similar provisions are rendered, by a stroke of our pens,

inoperative.

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{¶ 30} Or, as yet another example, take the charter of the city of Toledo.

Section 5, Chapter I of the charter provides for the amending of the charter. The

section provides, in part, that “[a]ny amendment to this Charter * * * shall be

submitted when a petition is filed with the Clerk of the Council setting forth the

proposed amendment and signed by not less than ten percent of the electors.”

(Emphasis added.) Section 6, Chapter I defines “electors” as “residents of the City

qualified to vote to fill all elective offices.”

{¶ 31} Chapter VI of the charter of the city of Toledo is entitled “Initiative,

Referendum and Recall.” Section 75, Chapter VI provides for how ordinances may

be initiated. The section provides that “[a]ny proposed ordinance may be submitted

to the Council by petitions filed with the Clerk and signed by electors of the City

equal in number to twelve percent (12%) of the total number of votes cast for all

candidates for Mayor at the most recent general municipal election at which the

Mayor was elected.” (Emphasis added.)

{¶ 32} Now suppose a group of well-meaning citizens of Toledo decided

that no junk cars may be parked or stored on a residential property, or that no spray

paint may be sold to minors because the city has a graffiti problem, or that each cat

owned by a citizen must have, like dogs, a license, or that there should be a curfew

(there now is) in the city. The citizens set about trying to find the easiest way to

have such proposals become the law of the city. They determine that a vote of the

people of Toledo is necessary because city council rejects all the citizens’ ideas.

{¶ 33} Assume that the last general municipal election was held in

November 1993. At that election, there were 172,0002 registered voters

(“electors”). A total of 95,500 electors voted (“voters”) and 92,500 of those voted

in the mayor’s race. If these citizens wanted to initiate an ordinance on any one or

all of the matters referenced, they would need (to place the matter on the ballot)

2. All numbers have been rounded off.

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petitions containing the signatures (pursuant to the charter) of twelve percent of

92,500 or 11,100. If they want their proposal(s) to be in the constitution of the city,

then a charter amendment is necessary and, by the terms of Section 5, Chapter I

they need the signatures of ten percent of 172,000 (electors) or 17,200. But by

today’s majority decision, they can decide that it is easier to put “anti-graffiti” in

the city constitution because all they now need, to place the question on the ballot

as a charter amendment, are petitions containing the signatures of ten percent of

95,500 or 9,550 signatures. Thus, it is now easier to propose amendments to the

charters of villages and municipalities than it is to initiate an ordinance or

resolution.

{¶ 34} It is clear that those persons framing charters know the difference

between “electors” and “voters.” This is evidenced by the fact that the term

“electors” is used and defined, and when the framers of the Highland Hills charter

meant “voters,” they spelled out “the total vote cast in the last regular municipal

election.”

{¶ 35} Sir Winston Churchill once said, “I have always considered that the

substitution of the internal combustion engine for the horse marked a very gloomy

milestone in the progress of mankind.” International Dictionary of Thoughts

(1969) 586. While some will hail today’s majority decision as progress for easy

access to the ballot, I can foresee that those governmental subdivisions with charters

will consider this day to be a gloomy milestone for their constitutions.

{¶ 36} I respectfully dissent. I would deny the motion for reconsideration

and adhere to our decision reported in 72 Ohio St.3d 589, 651 N.E.2d 1001, which

affirmed the well-reasoned judgment of the court of appeals. Our prior case was

decided on July 26, 1995—less than eight months ago. At least now maybe we will

not see any more lectures on stare decisis.

RESNICK and F.E. SWEENEY, JJ., concur in the foregoing dissenting opinion.

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