State ex rel. Columbus Coalition for Responsive Govt. v. Blevins (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as

State ex rel. Columbus Coalition for Responsive Govt. v. Blevins, Slip Opinion No. 2014-Ohio-

3745.]

NOTICE

This slip opinion is subject to formal revision before it is published in

an advance sheet of the Ohio Official Reports. Readers are requested

to promptly notify the Reporter of Decisions, Supreme Court of Ohio,

65 South Front Street, Columbus, Ohio 43215, of any typographical or

other formal errors in the opinion, in order that corrections may be

made before the opinion is published.

SLIP OPINION NO. 2014-OHIO-3745

THE STATE EX REL. COLUMBUS COALITION FOR

RESPONSIVE GOVERNMENT ET AL., v. BLEVINS.

[Until this opinion appears in the Ohio Official Reports advance sheets,

it may be cited as State ex rel. Columbus Coalition for Responsive Govt. v.

Blevins, Slip Opinion No. 2014-Ohio-3745.]

Elections—Initiative petition for municipal ordinance—R.C. 731.32—Strict

compliance with requirement to file copy of proposed ordinance with city

auditor.

(No. 2014-1337—Submitted August 20, 2014—Decided August 29, 2014.)

IN MANDAMUS.

____________________

Per Curiam.

{¶ 1} This is an expedited election action by relators, the Columbus

Coalition for Responsive Government, Jonathan C. Beard, Willis E. Brown,

Robert J. Fitrakis, and Suzanne M. Patzer (“the Coalition”), for a writ of

mandamus to compel Andrea Blevins, the Columbus city clerk, to verify the

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signatures on an initiative petition and submit the proposed imitative to city

council. For the reasons set forth below, we deny the writ.

Facts

{¶ 2} On April 15, the Coalition filed a certified precirculation copy of a

proposed initiative ordinance, entitled “The Columbus Fair Campaign Code,”

with the Columbus city clerk. The clerk’s office accepted and date-stamped the

filing, and no one informed the Coalition that the precirculation copy had been

misfiled or that a copy needed to be filed with the city auditor. The Coalition

began collecting petition signatures and on July 15, 2014, submitted 497 part-

petitions to the city clerk.

{¶ 3} On July 18, 2014, the Coalition received two documents from the

city. The first was a legal opinion from the Columbus city attorney stating that

the part-petitions were defective because the Coalition had failed to file a certified

precirculation copy with the city auditor, as required by R.C. 731.32. The second

document was a notification from Blevins, the city clerk, advising that, based on

the city attorney’s legal advice, she would not submit the petition to city council.

{¶ 4} On August 6, 2014, the Coalition filed an original action in this

court for a writ of mandamus to compel Blevins to verify the petition signatures

and submit the petition to city council. Blevins filed an answer, and the parties

filed briefs in accordance with the schedule governing expedited elections cases

set forth in S.Ct.Prac.R. 12.08(A)(2). The matter is now ripe for decision.

Analysis

{¶ 5} R.C. 731.32 provides: “Whoever seeks to propose an ordinance

* * * in a municipal corporation by initiative petition * * * shall, before

circulating such petition, file a certified copy of the proposed ordinance or

measure with the city auditor or the village clerk.”

{¶ 6} The Columbus city charter is silent on the matter of precirculation

filing requirements but does set forth postcirculation procedures. Signed part-

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petitions must be filed with the city clerk. Columbus City Charter, Section 43.

The clerk then has ten days to certify the number of signatures and submit the

proposed ordinance to the city council for consideration at its next regular

meeting. Id. The charter expressly adopts all general laws of the state applicable

to municipal corporations that are not in conflict with the terms of the charter. Id.,

Section 232.

{¶ 7} When a city’s charter is silent on the subject of precirculation

requirements, as Columbus’s is, then the procedures in R.C. 731.32 apply. State

ex rel. Julnes v. S. Euclid City Council, 130 Ohio St.3d 6, 2011-Ohio-4485, 955

N.E.2d 363, ¶ 13. And if a municipality has an auditor, then the proponents of an

initiative must file a precirculation copy with the auditor, or else they have no

right to place their initiative on the ballot. State ex rel. Bogart v. Cuyahoga Cty.

Bd. of Elections, 67 Ohio St.3d 554, 555, 621 N.E.2d 389 (1993). Columbus has

a city auditor.

{¶ 8} The Coalition contends that it met its precirculation obligation by

filing the proposed initiative with the city clerk. According to the Coalition, “the

clear meaning of R.C. Section 731.32 is that a petition is to be filed with the

officer of the government unit charged with the responsibility of accepting,

reviewing and forwarding petitions to the governmental unit’s legislative body for

further consideration.” In Columbus, according to the Coalition, the most

appropriate official with whom to file the precirculation copy is the clerk, because

the city charter assigns postcirculation responsibilities to the clerk and gives the

auditor no role in the process.

{¶ 9} This argument overlooks the fact that the city clerk in Bogart had

the same postcirculation duties as the Columbus city clerk. Nevertheless, we held

that the precirculation mandate of R.C. 731.32 controlled.

{¶ 10} R.C. 731.32 requires strict compliance. State ex rel. Barletta v.

Fersch, 99 Ohio St.3d 295, 2003-Ohio-3629, 791 N.E.2d 452, ¶ 17; see also State

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ex rel. Mika v. Lemon, 170 Ohio St. 1, 161 N.E.2d 488 (1959), paragraph two of

the syllabus (holding that absent strict compliance with R.C. 731.32, “no duty

falls upon the city clerk to receive and file with the board of elections a

referendum petition otherwise valid”). The Coalition’s position is the opposite of

strict compliance: it asks us to elevate what the Coalition believes to be the

General Assembly’s intent over the plain and unambiguous statutory language.

{¶ 11} The Coalition cites Mika for the proposition that the proper official

to receive the R.C. 731.32 precirculation submission depends on “who ‘performs

the duties customarily performed by the officials designated in Section 731.32,’ ”

quoting Mika at 5. But the reason the court examined the job duties of various

officials in Mika was that the city of Youngstown did not have a city auditor.

Mika at 5 (“many cities no longer have city auditors, as is the case with

Youngstown”). This fact distinguishes the other cases cited by the Coalition.

See, e.g., Julnes, 130 Ohio St.3d 6, 2011-Ohio-4485, 955 N.E.2d 363, ¶ 17

(“South Euclid does not have a city auditor”); Edward Rose of Ohio, Inc. v.

McLaughlin, 22 Ohio App.2d 190, 191, 259 N.E.2d 754 (2d Dist.1970) (“the

charter does not provide for a city auditor, and there is none”). Unlike the

municipalities in those cases, Columbus does have an auditor, and so it is

unnecessary to consider which Columbus official performs functions most

comparable to the officials named in R.C. 731.32.

{¶ 12} Finally, the Coalition suggests that Blevins has unclean hands

because she had a duty to inform them that they were filing their precirculation

copy in the wrong office. The Coalition cites no authority for the existence of

such a duty. But even if such a duty existed, the doctrine of unclean hands

requires a showing that Blevins engaged in reprehensible conduct, not merely

negligent conduct. State ex rel. Coughlin v. Summit Cty. Bd. of Elections, 136

Ohio St.3d 371, 2013-Ohio-3867, 995 N.E.2d 1194, ¶ 16. The Coalition has

made no such showing.

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Writ denied.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,

FRENCH, and O’NEILL, JJ., concur.

___________________

Law Offices of William M. Todd, Ltd., and William M. Todd, for relators.

Richard C. Pfeiffer Jr., Columbus City Attorney, and Joshua T. Cox, Chief

Counsel, for respondent.

_________________________

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