State ex rel. Ebersole v. Delaware Cty. Bd. of Elections (Slip Opinion)

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

State ex rel. Ebersole v. Delaware Cty. Bd. of Elections, Slip Opinion No. 2014-Ohio-4077.]

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-4077

THE STATE EX REL. EBERSOLE ET AL., v. DELAWARE COUNTY BOARD OF

ELECTIONS ET AL.

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

it may be cited as State ex rel. Ebersole v. Delaware Cty. Bd. of Elections,

Slip Opinion No. 2014-Ohio-4077.]

Elections—Initiative and referendum in charter municipalities—Administrative

action by city council distinguished from legislative action—Effect of

charter on duties of board of elections.

(No. 2014-1520—Submitted September 17, 2014—Decided September 19, 2014.)

IN MANDAMUS.

____________________

Per Curiam.

{¶ 1} On June 17, 2014, the city council of Powell, Ohio, approved

Ordinance 2014-10, a development plan for property in downtown Powell. In

response, relators, Brian Ebersole, Sharon Valvona, and Thomas Happensack,

formed a committee to circulate petitions to place three items on the November 4,

2014 ballot: a referendum to block Ordinance 2014-10 from taking effect, an

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initiative to pass an ordinance repealing Ordinance 2014-10, and an amendment to

the city charter that would, among other things, nullify Ordinance 2014-10.

{¶ 2} The city council approved the referendum and initiative for

placement on the ballot. However, the Delaware County Board of Elections

sustained a protest and refused to place them on the ballot. In this case, relators

seek a writ of mandamus to compel the board of elections to place the referendum

and initiative on the ballot.1 We deny the writ for the reasons explained below.

Legal Background on Referendum and Initiative

{¶ 3} The Ohio Constitution reserves the powers of initiative and

referendum to the people of each municipality “on all questions which such

municipality may now or hereafter be authorized by law to control by legislative

action,” in the manner provided by law. Ohio Constitution, Article II, Section 1f.

In this case, the city charter defines the manner in which these powers are

exercised.

{¶ 4} “Any ordinance passed by the Council shall be subject to

referendum, except emergency ordinances * * *.” Powell City Charter, Article

VI, Section 6.04. The process begins with the filing of a petition in the office of

the city council clerk, calling for the repeal of an ordinance passed within the last

30 days. The petition must contain signatures from electors of the city equal to at

least 10 percent of the total votes cast at the last preceding general municipal

election. Id.

{¶ 5} The clerk must transmit a certified copy of the petition to the board

of elections within ten days. The board’s responsibility at that point is merely to

verify the signatures on the petition. Within ten days, the board must return the

petition to the clerk, with a statement attesting to the number of electors who

1

The city council refused to refer the proposed charter amendment to the voters. In a related

action, Supreme Court case No. 2014-1469, relators seek a writ of mandamus to compel the city

council and city council clerk, Sue Ross, to place the charter amendment on the November ballot.

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signed the petition. The clerk must then submit the petition and statement to the

council on the date of its next regular meeting. Id.

{¶ 6} “Council shall determine the sufficiency and validity of the

petition.” Id. The meaning of the phrase “sufficiency and validity” is among the

disputes at the heart of these cases.

{¶ 7} If council determines that the petition is sufficient and valid, then

at that meeting, council shall read and act upon the petition. Either council will

itself repeal the existing ordinance or the clerk will provide for submission of the

new proposed ordinance to a vote of the city electors. In that case, the board of

elections shall submit the ordinance to the electors at the next general election

occurring subsequent to 75 days after receipt of the ordinance from the clerk of

council.

{¶ 8} The rules governing initiatives are identical to those for referenda

(with one minor distinction not relevant here). Id. at Section 6.02.2

Facts and Procedural History

{¶ 9} In 2005, the city council amended its zoning code to create the

Downtown Business District. The 2005 Ordinance established two new planned

districts, one of which was the Downtown Business District. Permissible property

uses in the Downtown Business District included retail shops, office facilities, and

multifamily dwellings. At the same time, council created the “Downtown District

Overlay District,” which imposed additional zoning requirements on the property

in the Downtown Business District.

{¶ 10} The property located at 147 West Olentangy Street in Powell,

Ohio, lies in the Downtown Business District. The property consists of 8.3 acres

of largely undeveloped land.

2

Pursuant to Section 6.04, the clerk must convey a referendum petition to the board of elections

for signature verification within ten days of receipt. For reasons that are not clear, Section 6.02

provides that the clerk cannot transmit an initiative petition to the board for signature verification

until after the passage of ten days.

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{¶ 11} The property owner, the Center at Powell Crossing, LLC (“Powell

Crossing”), filed a final-development-plan application with the city, proposing a

new construction on the property that would include 14,000 square feet of retail

space and 64 residential units. On June 17, 2014, the city council approved the

development plan by adopting Ordinance 2014-10.

{¶ 12} On July 17, 2014, relators filed petitions with the city council clerk

in support of three separate ballot measures:

{¶ 13} (1) A referendum to reject Ordinance 2014-10.

{¶ 14} (2) An initiative to approve an ordinance repealing Ordinance

2014-10.

{¶ 15} (3) An amendment to the city charter to establish a new

comprehensive plan for zoning and development.

{¶ 16} The council clerk transmitted the three petitions to the Delaware

County Board of Elections on July 28, 2014. On August 1, 2014, Powell

Crossing and Donald R. Kenney Jr. filed a notice of protest with the board,

contesting all three petitions. The board members deferred consideration of the

challenges, concluding that at that stage of the process, the role of the board was

limited to determining the validity of the petition signatures.

{¶ 17} The board voted to validate 376 signatures on the referendum

petition, 367 signatures on the repeal initiative petition, and 378 signatures on the

charter-amendment petition, and notified the city council of those validations.

{¶ 18} Ordinance 2014-41, to place the charter amendment on the

November ballot, received its first reading before the city council on August 5,

2014. The council took up the referendum as proposed Resolution 2014-16, and

the repeal initiative as proposed Resolution 2014-17, and voted to table both

matters.

{¶ 19} The next city council meeting occurred on August 19, 2014. The

council revised slightly the number of valid signatures on each petition from the

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numbers certified by the board of elections, but concluded nevertheless that each

of the three ballot measures had a sufficient number of valid signatures to qualify

for the ballot. The council then voted unanimously to approve Resolution 2014-

16 and Resolution 2014-17 and not to adopt Ordinance 2014-41.

{¶ 20} The board of elections met to consider the protests against the

referendum and initiative on August 26, 2014. (The protest against the charter

amendment was of course moot.) At that meeting, the board voted (1) to accept

the protest of the referendum on the grounds that the subject matter was

administrative in nature and therefore not subject to referendum, to accept the

protest of the initiative on the same grounds, to reject both protests to the extent

that they objected to the manner in which the petitions indicated the specific

precinct of the signers, and to accept the protest against both petitions on the

grounds that the format of the petitions did not comply with the Powell City

Charter and forms prescribed by the secretary of state.

{¶ 21} As a result of the combined actions of the city council and the

board of elections, none of the three ballot measures is currently certified for the

November 4, 2014 ballot.

{¶ 22} On September 2, 2014, relators filed this mandamus action to

compel the Delaware County Board of Elections to place the referendum and

initiative on the ballot. We granted leave to intervene to Powell Crossing and

denied intervention to Donald Kenney.

Analysis

Legal requirements for mandamus

{¶ 23} To be entitled to a writ of mandamus, relators must establish that

(1) they have a clear legal right to have their ballot measure(s) presented to the

voters, (2) respondents have a corresponding legal duty to submit the ballot

measure(s) to the electors of Powell on November 4, 2014, and (3) relators

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possess no adequate remedy in the ordinary course of the law. Morris v. City

Council of Macedonia, 71 Ohio St.3d 52, 54, 641 N.E.2d 1075 (1994).

{¶ 24} Because of the proximity of the November 4, 2014 election, and

specifically the September 20, 2014 deadline for finalizing UOCAVA ballots,3

relators have established that they lack a remedy in the ordinary course of the law.

State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-

1845, 928 N.E.2d 410, ¶ 27.

Laches

{¶ 25} At the outset, we must once again decide whether laches bars an

expedited elections case.4 The board of elections sustained the two protests on

August 26, 2014. Relators filed this case on September 2, 2014, seven days later.

The board accuses relators of unreasonable delay.

{¶ 26} But in fact the actual delay was only four days. August 30 and 31

fell on a weekend, and September 1 was Labor Day, so the clerk’s office was not

open to accept filings. Under these circumstances, we decline to bar the suit on

the grounds of laches.

The city council acted in its administrative capacity

{¶ 27} City councils can act in an administrative capacity. Donnelly v.

Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968), paragraph one of the

syllabus. And when they act in an administrative, rather than legislative, capacity,

3

Pursuant to R.C. 3511.04(B), the board of elections must begin providing absent voter ballots

upon request to certain uniformed service members, their families, and other citizens under the

Uniformed and Overseas Citizens Absentee Voters Act no later than 45 days before the general

election.

4

The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2)

absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong,

and (4) prejudice to the other party. State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio

St.3d 143, 145, 656 N.E.2d 1277 (1995). Laches may bar relief in an election-related matter if the

person seeking relief fails to act with the “ ‘utmost diligence.’ ” State ex rel. Monroe v. Mahoning

Cty. Bd. of Elections, 137 Ohio St.3d 62, 2013-Ohio-4490, 997 N.E.2d 524, ¶ 30, quoting State ex

rel. Fuller v. Medina Cty. Bd. of Elections, 97 Ohio St.3d 221, 2002-Ohio-5922, 778 N.E.2d 37,

¶ 7.

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January Term, 2014

their resolutions and ordinances are not subject to referendum. Buckeye

Community Hope Found. v. Cuyahoga Falls, 82 Ohio St.3d 539, 697 N.E.2d 181

(1998), paragraph two of the syllabus. The board of elections rejected the

referendum petition because it believed that Ordinance 2014-10 was passed by the

city council in its administrative capacity.

{¶ 28} Relators offer a number of responses to this contention. First, they

argue that Ordinance 2014-10 was a legislative act subject to referendum, not an

administrative act. Second, they contend that a challenge to the substance of a

referendum is unripe until the referendum is approved. And third, they claim that

the board has only ministerial duties in the referendum process and lacks authority

to review the substance of the referendum. We will consider each argument in

turn.

Legislative v. administrative action

{¶ 29} By its terms, Article II, Section 1f, limits the referendum and

initiative power to questions the municipality is “authorized by law to control by

legislative action.” See Myers v. Schiering, 27 Ohio St.2d 11, 271 N.E.2d 864

(1971), paragraph one of the syllabus. Because citizens of a municipality cannot

exercise referendum powers greater than what the Constitution affords, an

administrative action is beyond the scope of the referendum power. Buckeye

Community at 544.

{¶ 30} The test for determining if an action is legislative or administrative

is “whether the action taken is one enacting a law, ordinance, or regulation, or

executing a law, ordinance, or regulation already in existence.” Donnelly at

paragraph two of the syllabus. Thus, city ordinances that adopt final development

plans pursuant to preexisting planned community development, without changing

the zoning, are not subject to referendum. State ex rel. Commt. for the

Referendum of Ordinance No. 3844-02 v. Norris, 99 Ohio St.3d 336, 2003-Ohio-

3887, 792 N.E.2d 186, ¶ 33. In fact, we have made clear that in such cases, the

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board of elections is “required to withhold the initiative and referendum from the

ballot.” State ex rel. Oberlin Citizens for Responsible Dev. v. Talarico, 106 Ohio

St.3d 481, 2005-Ohio-5061, 836 N.E.2d 529, ¶ 17 (because it arises from the

same constitutional source, the power of initiative is subject to the same limitation

as the power of referendum).

{¶ 31} The development authorized by Ordinance 2014-10 complied with

the preexisting requirements for the Downtown Business District and for the

Downtown District Overlay District and did not require any zoning changes.

Relators do not dispute this point.

{¶ 32} Relators fashion a creative argument to suggest that the ordinance

nevertheless in effect operates as legislation, rather than as administrative

implementation of a preexisting scheme. Powell Zoning Code 1143.11(c)(9)

requires a developer to provide evidence of financing for a project. The Powell

director of development admitted at the protest hearing that he waived this

requirement because he was familiar with Powell Crossing through prior

development projects and so considered it responsible. According to relators,

Powell Crossing also failed to show its ability to post a bond, failed to have the

application signed by the property owner, failed to verify the truthfulness of the

information in the application, and omitted exhibits from the preliminary

development plan.

{¶ 33} Relators argue that strict compliance with the requirements of

Zoning Code 1143.11 is necessary to trigger the jurisdiction of the Powell zoning

administrator and the Planning and Zoning Commission, and they conclude that

“[w]hen Council acts to approve a Planned District Development Plan that did not

properly invoke the jurisdiction of the Powell Zoning and Planning Commission,

then it necessarily acts legislatively.”

{¶ 34} Relators’ argument rests on faulty logic. It erases the distinction

between when a legislature changes its zoning code and when a legislature

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misapplies or misconstrues its zoning code. In the former case, the amendment is

a legislative act subject to referendum. See, e.g., State ex rel. Zonders v.

Delaware Cty. Bd. of Elections, 69 Ohio St.3d 5, 13, 630 N.E.2d 313 (1994);

Peachtree Dev. Co. v. Paul, 67 Ohio St.2d 345, 351-352, 423 N.E.2d 1087

(1981). The latter is an error that the administrative appeal process in R.C.

Chapter 2506 exists to correct. Adopting relators’ argument would make every

alleged zoning error subject to referendum and wipe out the well-established

distinction between municipal legislative and administrative activity.

{¶ 35} The board unfortunately confuses the issue by citing R.C. 2506.01

to argue that relators failed to exhaust their administrative remedies and therefore,

because they had an adequate remedy in the ordinary course of the law, that

mandamus should not issue. The underlying grievance that relators seek to

remedy through mandamus is that the board refused to let the public vote on the

referendum and initiative, not that passage of the development plan was

procedurally improper.

{¶ 36} Nevertheless, the board is correct that Ordinance 2014-10, because

it approves development within the contours of a preexisting zoning code, is not

subject to referendum or ordinance.

{¶ 37} Alternatively, relators call upon us to overrule Buckeye

Community. This court will depart from stare decisis when the decision to be

overruled was wrongly decided at the time or when a change in circumstances has

rendered continued adherence to the decision no longer justified, the decision

defies practical workability, and abandoning the precedent would not create

undue hardship for those who have relied upon it. Westfield Ins. Co. v. Galatis,

100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 48. Under these

criteria, relators do not make a strong case for overruling Buckeye Community.

{¶ 38} In considering the future viability of Buckeye Community, we must

keep in mind what the case did and did not decide. Buckeye Community did not

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create the distinction between legislative and administrative actions at the

municipal level, nor did it announce the rule that administrative actions are

beyond the referendum power. Those principles were established 30 years prior

to Buckeye Community, in Donnelly, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968), and

Myers, 27 Ohio St.2d 11, 271 N.E.2d 864 (1971).

{¶ 39} The question in Buckeye Community was whether a different rule

should apply to charter municipalities. In the original decision, we had ruled that

the home-rule amendment, Article XVIII, Section 7, gave charter cities unlimited

discretion to fashion whatever form of government they chose, and Article II,

Section 1f was not a substantive limitation on that power. Buckeye Community

Hope Found. v. Cuyahoga Falls, 81 Ohio St.3d 559, 692 N.E.2d 997 (1998).

{¶ 40} However, on motion for reconsideration, we reversed course by a

four-to-three margin. The new majority opinion noted that since the inception of

home rule, this court had consistently held that the exercise of home-rule powers

was limited “by other provisions of the Constitution.” Buckeye Community, 82

Ohio St.3d 539, 541-542, 697 N.E.2d 181 (1998). We have repeatedly reaffirmed

the holding of Buckeye Community. E.g., State ex rel. Upper Arlington v.

Franklin Cty. Bd. of Elections, 119 Ohio St.3d 478, 2008-Ohio-5093, 895 N.E.2d

177, ¶ 20; State ex rel. Citizen Action v. Hamilton Cty. Bd. of Elections, 115 Ohio

St.3d 437, 2007-Ohio-5379, 875 N.E.2d 902, ¶ 35.

{¶ 41} But the strongest argument against overruling Buckeye Community

is that, far from eliminating an unworkable precedent (the second prong of the

Galatis standard), doing so would create a system rife with complications. The

scope of the referendum power would vary from municipality to municipality,

depending on whether or not the city had a charter and, if so, what referendum

powers that charter provided.

{¶ 42} In sum, the subject matter of the proposed referendum and

initiative is not proper for the ballot.

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Ripeness

{¶ 43} Alternatively, relators argue that no “case or controversy” exists

until and unless the voters approve the referendum (or initiative). Thus, according

to relators, the board’s objection to the contents of the two petitions was

premature.

{¶ 44} The response to this argument is simple: the “case or controversy”

requirement is a predicate requirement for a court to exercise subject-matter

jurisdiction. See, e.g., State v. Graves, 179 Ohio App.3d 107, 2008-Ohio-5763,

900 N.E.2d 1045 (4th Dist.), at ¶ 5 (“an appellate court’s jurisdiction is limited to

actual cases or controversies under Section 3, Article IV, of the Ohio

Constitution”). By contrast, as discussed in the next section, the board of

elections has an affirmative statutory duty to review the content of proposed

referenda and initiatives, and the only time that duty can be performed

meaningfully is before the election.

The jurisdiction of the board

{¶ 45} Finally, relators argue that the Powell City Charter does not vest

the board of elections with authority to review the substance of a ballot

submission. Rather, Article VI, Sections 6.02 (initiatives) and 6.04 (referendum)

state that the board of elections shall examine the signatures to determine the

number of electors signing and then “shall return” the petitions to the clerk.

{¶ 46} Under state law, the duties of the boards of elections include the

duty to “[r]eview, examine, and certify the sufficiency and validity of petitions.”

R.C. 3501.11(K). And R.C. 3501.39(A)(2) states that a board of elections must

accept a petition unless a written protest is filed, the board conducts a hearing, and

the election officials determine that “the petition violates any requirement

established by law.” According to relators, these state-law provisions are

inapplicable because “the Powell City Charter controls and makes no mention of

[them].”

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{¶ 47} This argument misstates fundamental home-rule principles. In

matters of local self-government, if a portion of a municipal charter expressly

conflicts with parallel state law, then the charter will prevail. State ex rel. Minor

v. Eschen, 74 Ohio St.3d 134, 138, 656 N.E.2d 940 (1995). The Powell charter is

silent on the question of the board’s power to conduct protests, and therefore no

conflict exists. Moreover, Article VI, Section 6.05 of the charter expressly states

that where the charter is silent concerning referendum and initiative procedures,

state law will govern.

{¶ 48} The issue is not as complicated as the parties make it appear. The

duties of the board, as set out in state law, supplement the duties described in the

charter. The board was within its statutory authority to conduct the protest

hearing.

Conclusion

{¶ 49} For the foregoing reasons, we deny the writ.

Writ denied.

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

O’NEILL, JJ., concur.

O’DONNELL, J., concurs in judgment only.

____________________

Callender Law Group and Christopher Burch, for relators.

Carol O’Brien, Delaware County Prosecuting Attorney, and Christopher

D. Betts and Andrew J. King, Assistant Prosecuting Attorneys, for respondent

Delaware County Board of Elections.

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

Miller, and Christopher L. Ingram, for intervening respondent the Center at

Powell Crossing, LLC.

__________________________

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