State ex rel. Spadafora v. Toledo City Council

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The State ex rel. Spadafora et al. v. Toledo City Council.

[Cite as State ex rel. Spadafora v. Toledo City Council

(1994), Ohio St.3d .]

Mandamus to compel placement of proposed charter amendment

for city of Toledo on ballot -- Writ denied, when.

(No. 94-2210 -- Submitted October 25, 1994 -- Decided

December 30, 1994.)

In Mandamus.

In May 1993, a group named the Toledo Downtown Rooters

("TDR") was created to oppose plans to locate a branch of the

Center of Science and Industry ("COSI") in a vacant facility in

downtown Toledo known as the Portside Festival Marketplace

("Portside"). TDR initiated a petition drive to place a

proposed charter amendment on the ballot for the city of

Toledo. The proposed amendment would require the Portside

property to be used solely and exclusively as a "Festival

Marketplace" or as a "first-class commercial or retail use," as

defined in then-existing deeds. The practical effect of the

amendment would be to prohibit the location of the COSI branch

in Portside. The part-petitions contained a notarized "OATH OF

CIRCULATOR" which stated that the "circulator has received no

money or benefit or promise for obtaining these signatures."

The head of TDR, Betty Mauk, agreed to provide expense

money to William Baker in the amount of $2 per completed

part-petition that he circulated. Baker had Antonio Stewart

circulate some petitions for which Baker promised to pay him

the $2 Baker would receive for each completed part-petition.

On May 18, 1994, Baker signed a note agreeing to repay Mauk the

expense money, i.e., $400, he had received for the completed

part-petitions he had circulated. On June 17, 1994, a

quitclaim deed from the Maumee Valley Community Urban

Development Corporation released all conditions and

restrictions on the use of the Portside property, including the

restrictions quoted in the text of the part-petitions being

circulated.

On June 20 and July 15, 1994, a petition and supplement

thereto proposing the charter amendment which contained a total

of 19,694 signatures were filed with the clerk of respondent,

Toledo City Council. The petition was forwarded to the Lucas

County Board of Elections ("board"), which determined that it

contained 10,481 valid signatures. On July 25, 1994, the clerk

of council certified to council that the petition contained

10,481 valid signatures. A total of 9,520 signatures was

needed for submission of the proposed charter amendment to the

electorate.

The Director of Law (and the Acting Director of Law) for

the city of Toledo sent letters to the board protesting the

petition. On July 26 and August 9, 1994, council held regular

meetings but took no action on the petition. At its regular

meeting of August 23, 1994, council enacted an emergency

ordinance referring the petition to the board for review of the

law director's objections. By letter dated August 24, 1994 to

the board, the law director reiterated and supplemented his

objections to the petition.

The board, after conducting evidentiary hearings, decided

on September 2, 1994 that it lacked authority to determine the

validity and sufficiency of the charter amendment petitions.

Nevertheless, the board issued a report to council, detailing

its findings regarding each of the law director's objections.

The board determined that Baker had been compensated for

circulating part-petitions and that those petitions contained

1,450 valid signatures. The board did not determine if the

part-petitions were invalid because of Baker's compensation but

did decide that it would not refer him for criminal prosecution

since Baker had requested TDR not to file these

part-petitions. The board determined that all of the law

director's other objections to the petition were meritless.

On September 6, 1994, council passed an ordinance in which

it determined that the proposed charter amendment would not be

submitted to the electors because the petition was

"insufficient and/or invalid in some or all of the following

alternative respects:

"(a) The Law Department opinion, as supported by the

findings and report of the Board of Elections, is that the oath

of certain circulators (Baker and Stewart) on the original

petitions was false, in that they received compensation for

their services as circulator[s], which was contrary to their

oath and prohibited by Ohio Revised Code Section 3519.06(D),

thus invalidating approximately 1,600 signatures (Baker-1450,

Stewart-150) of 10,481 filed on June 20, 1994.

"(b) The Law Department opinion, which is not shared by

the Board of Elections, is that the content, purport and effect

of the petition, which refers to deed restrictions on the

Portside property, were false and invalid after the June 16,

1994 closing with the State of Ohio for COSI, and the

acceptance of deeds releasing said restrictions, the execution

of contracts and recording of documents; and the acts of

knowingly circulating such false petitions after June 16, 1994

constituted continuing misrepresentations prohibited by Ohio

Revised Code Sections 3599.14, 3599.36 and 731.36(A), thus

invalidating approximately 1,319 signatures obtained after said

date and filed on June 20, 1994 and July 15, 1994."

Toledo City Council thus concluded that 2,919 of the

10,481 previously certified signatures were invalid, leaving a

remainder of 7,562 valid signatures, less than the 9,520

required to submit the proposed charter amendment to the

electorate.

On October 17, 1994, almost six weeks following council's

determination, relators, Anthony A. Spadafora and Portside and

Renaissance Toledo Advocates ("PARTA"), initiated this action

seeking a peremptory writ of mandamus to compel council to

adopt an ordinance placing the proposed charter amendment on

the November 8, 1994 ballot. Relators alternatively requested

a peremptory writ compelling council to place the charter

amendment on the ballot at the first available time following

the November 8, 1994 ballot. Spadafora is an elector and

taxpayer of the city of Toledo and a signator of the charter

amendment petition. PARTA is a political action committee

operated by Spadafora and others as an arm of the charter

amendment proponents. On October 24, 1994, council filed an

answer, affidavit, and exhibits.

Jeffrey M. Gamso, for relators.

Mark S. Schmollinger, Toledo Acting Director of Law, and

Joseph Goldberg, Senior Attorney, for respondent.

Douglas, J. In the case at bar, certain circulators

(including William Baker) signed an oath on petitions that they

received no compensation for their services as petition

circulators. William Baker himself, the Lucas County Board of

Elections and the Toledo City Council all now agree that Baker

was paid to circulate the petitions and the oath of the

circulators was false. In fact, it was decided by the board of

elections not to refer Baker for criminal prosecution only

because Baker requested the TDR not to file the part-petitions

in question. The petitions were, however, filed.

R.C. 3519.06(D) provides that "[n]o initiative or

referendum part-petition is properly verified if it appears on

the face thereof, or is made to appear by satisfactory

evidence: * * * That the statement is false in any

respect[.]" (Emphasis added.) Admittedly, R.C. Chapter 3519

involves statewide initiative and referendum petitions.

However, in State ex rel. Watkins v. Quirk (1978), 59 Ohio

App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, the court held that

a municipal clerk of council does have authority to invalidate

all signatures affixed to referendum part-petitions where the

part-petition on its face violates R.C. 3519.06(C). We agree

that R.C. 3519.06 may be applied to a municipal referendum

petition. Here, the board of elections rendered a report to

the council which, in part, found (after a hearing) that Baker

had in fact been compensated for circulating part-petitions.

Certainly this is "satisfactory evidence" that on the face of

the petition, there was a false statement. See R.C.

3519.06(C). Thus, city council not only had the right to

reject the ordinance placing the proposed charter amendment on

the ballot -- it had the duty so to do.

Further, in 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, we said that "* * * it

follows that the legislature [city council] need not make the

submission [to the electors] unless satisfied of the

sufficiency of the petitions and that all statutory

requirements are fairly met." (Emphasis added.) 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.

Clearly, one of the requirements of R.C. 3519.06(D) is

that an initiative and/or referendum petition speak, on its

face, the truth. That statute was clearly violated here and,

accordingly, Toledo City Council had the right (and duty) not

to submit the question, based on these petitions, to the

electors of Toledo.

In consideration of the foregoing, the writ is denied and

the cause is dismissed.

Writ denied and

cause dismissed.

Resnick, F.E. Sweeney and Pfeifer, JJ., concur.

Moyer, C.J., A.W. Sweeney and Wright, JJ., concur

separately.

Moyer, C.J., concurring in judgment only. I concur in

judgment with the majority decision for the following reasons.

In a very brief opinion, the majority casts aside

well-established law relating to the authority of a city

council of a charter city to place or not place on the ballot a

charter amendment proposed by a requisite number of electors of

the municipality. Whatever our views may be with respect to

the desirability of locating a branch of the Center of Science

and Industry in Portside, we should not cast aside

well-established law and announce new law that will have a

dramatic impact upon the will of the voters to place issues on

the election ballots.

Section 7, Article XVIII of the Ohio Constitution

authorizes municipal corporations to adopt and amend a home-

rule charter. Sections 8 and 9 of Article XVIII prescribe the

procedures for adopting and amending a charter. State ex rel.

Semik v. Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d

334, 336, 617 N.E.2d 1120, 1122. On petition of ten percent of

the electors, the legislative authority of the city must

"forthwith" authorize by ordinance an election on the proposed

charter amendment. In a unanimous opinion we recently followed

well-established law and held that the authority of a city

council in determining the sufficiency of a petition is limited

to the form of the petition and does not include substantive

matters. Morris v. Macedonia City Council (1994), 71 Ohio

St.3d 52, 641 N.E.2d 1075; see State ex rel. Polcyn v. Burkhart

(1973), 33 Ohio St.2d 7, 62 O.O.2d 202, 292 N.E.2d 883. In

fact, there is no way to find the law in Morris inapplicable to

this case.

The city council's authority to determine if all

applicable statutory requirements have been met is not as broad

as that of a board of elections or the Secretary of State.

Council may not engage in judicial or quasi-judicial

determinations of matters which are not apparent on the face of

the petition or which require the aid of witnesses to

determine. See Morris, supra, at 55, 641 N.E.2d at 1078; State

ex rel. Citizens for a Better Portsmouth v. Sydnor (19791), 61

Ohio St.3d 49, 52, 572 N.E.2d 649, 651; and Polcyn, supra, 33

Ohio St.2d at 10-11, 62 O.O.2d at 203-204, 292 N.E.2d at 885.

Without any analysis, the majority opinion cites a court of

appeals' opinion, State ex rel. Watkins v. Quirk (1978), 59

Ohio App.2d 175, 13 O.O.3d 202, 392 N.E.2d 1302, to support

its holding that R.C. 3519.06(C), which clearly applies to

statewide initiative and referendum petitions, now applies to

petitions filed to amend the charter of a municipality. That

holding has far-reaching implications and should not be adopted

in this case.

It is clear from the plain words of the Constitution, the

cases applying the Constitution, and the statutes that the

policy of the law is to favor the right of citizens to amend

the charters of the municipalities in which they live. For

that reason, the law does not, among other things, give a city

council the right to act as a quasi-judicial body and

substantively attack citizens' rights to place charter

amendments on the ballot. The dilemma is that the law appears

to provide no remedy to persons who seek to disqualify

part-petitions on the basis that the circulators thereof made

false representations. It would appear, however, that an

action to enjoin a board of elections from placing an issue on

the ballot would be available to an appropriate party.

Notwithstanding the foregoing analysis, I concur in the

judgment of the majority. Council could have enacted an

ordinance placing the proposed charter amendment on the

November ballot, but refused to do so based upon alleged

defects which it was not authorized to consider. Had relators

filed their mandamus action timely, placement of the issue on

the November 8 ballot would have been warranted. However,

council argues that relators did not file this mandamus action

until forty-one days following its decision regarding the

sufficiency of the petition. In other cases, we have compelled

placement of a charter issue on the ballot for the next

regularly scheduled election where relators initiated mandamus

actions within ten days of either council's refusal or the

constitutional deadline to enact an enabling ordinance. See,

e.g., State ex rel. Jurcisin v. Cotner (1984), 10 Ohio St.3d

171, 10 OBR 503, 462 N.E.2d 381; State ex rel. Concerned

Citizens for More Professional Govt. v. Zanesville City Council

(1994), 70 Ohio St.3d 455, 639 N.E.2d 421; Sydnor; and Morris,

supra.

Diligence and promptness are required of those seeking to

affect the outcome of an election. See State ex rel. White v.

Franklin Cty. Bd. of Elections (1992), 65 Ohio St.3d 45, 49,

600 N.E.2d 656, 659. The failure of relators to act promptly

in this case made it virtually impossible to give electors

sufficient notice of the proposed charter amendment in time for

the November 8 election. See Sections 8 and 9, Article XVIII,

Ohio Constitution, and R.C. 731.211. In fact, relators

themselves complained that "if the proposed amendment gets on

the November 8, 1994, ballot, its advocates will have precious

little time to campaign for its passage." For that reason, we

refused relators' request for a writ of mandamus.

Relators alternatively request that we issue an order that

would place the issue on a subsequent special election ballot

within sixty and one hundred twenty days after the passage of

an enabling ordinance by council. Such special election would

be held at considerable cost, a cost that need not be borne had

relators acted in sufficient time to place the issue on the

November 8 ballot. Considering relators' considerable delay in

bringing this action, I would not issue an order requiring a

special election.

For the foregoing reasons, I concur only in the judgment

of the majority opinion.

A.W. Sweeney and Wright, JJ., concur in the foregoing

concurring opinion.