The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State ex rel. Wilen v. Kent, Slip Opinion No. 2015-Ohio-3763.]
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. 2015-OHIO-3763
THE STATE EX REL. WILEN ET AL. v. THE CITY OF KENT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Wilen v. Kent, Slip Opinion No. 2015-Ohio-3763.]
Elections—Mandamus—Action to compel placement of proposed amendment to
city charter on ballot—Relators submitted sufficient number of petition
signatures under Ohio Constitution, Article XVIII, Sections 9 and 14—
Writ granted.
(No. 2015-1456—Submitted September 15, 2015—Decided September 17, 2015.)
IN MANDAMUS.
________________
Per Curiam.
{¶ 1} The relators1 in this expedited election case seek a writ of mandamus
to compel respondent, the city of Kent, to certify a proposed charter amendment
to the Portage County Board of Elections for inclusion on the November 3, 2015
ballot. We grant the writ.
1
The relators are Kathryn Wilen, William Wilen, Lee Brooker, Perry Phillips, Deborah
Silverstein, and James Voneida.
SUPREME COURT OF OHIO
Background
{¶ 2} Relators circulated a petition to amend the city charter of Kent. The
proposed amendment was entitled “Kent Initiative Calling on Congress to Amend
the U.S. Constitution to Establish That Corporations Are Not People and Money
Is Not Speech.” On the advice of the city law director, the city council voted
against certifying the issue to the board of elections.
{¶ 3} The question presented for decision is, how many valid signatures
are required to place the charter-amendment initiative on the ballot?
Legal Analysis
{¶ 4} Ohio Constitution, Article XVIII, Section 9 provides that proposed
amendments to a municipal charter may be submitted to the voters “upon petitions
signed by ten per centum of the electors of the municipality.” Article XVIII,
Section 14 then adds the following explanation: “The percentage of electors
required to sign any petition provided for herein shall be based upon the total vote
cast at the last preceding general municipal election.”
{¶ 5} Reading these two provisions together, we have held that a
qualifying petition to amend a municipal charter will qualify for the ballot when it
contains signatures of 10 percent of the electors “based upon the total number of
votes cast at the last preceding general municipal election.” State ex rel. Huebner
v. W. Jefferson Village Council, 75 Ohio St.3d 381, 384, 662 N.E.2d 339 (1996).
There were 3,324 votes cast in the November 3, 2013 general municipal election
in Kent, so under Huebner, relators needed only 333 valid signatures to qualify
for the ballot. Relators submitted 621 valid petition signatures.
{¶ 6} In response to relators’ arguments, Kent points to Section 7A of the
Kent City Charter, which states that “[a]t least 10 percent of the qualified electors
of the City registered to vote at the next preceding regular Municipal election
must sign the initiative petitions for Charter change.” According to Kent, there
were 17,067 registered voters in Kent on November 3, 2013. Kent’s position is
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January Term, 2015
that its charter trumps Huebner and that relators needed to submit 1,707 valid
signatures, which they failed to do.
{¶ 7} If the amendment procedures spelled out in a municipal charter
conflict with the Ohio Constitution, the constitutional provisions will prevail.
State ex rel. Commt. for the Charter Amendment, City Trash Collection v.
Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, ¶ 30. To avoid
a conflict, we harmonize constitutional and charter requirements when possible.
Id. at ¶ 28. But Kent is adamant that the phrase “qualified electors of the City
registered to vote” in its charter refers to all registered voters, that no
harmonization is required or possible, and that its home-rule authority permits this
language to be given effect. This approach, however, is contrary to Huebner, 75
Ohio St.3d 381, 662 N.E.2d 339, and Huebner establishes that relators submitted
sufficient signatures.
{¶ 8} The relevant decision in Huebner was issued upon the granting of a
motion for reconsideration. The original opinion of this court held that the
Constitution required signatures from 10 percent of the registered voters as of the
last general election. State ex rel. Huebner v. W. Jefferson Village Council, 72
Ohio St.3d 589, 593, 651 N.E.2d 1001 (1995). Amicus curiae, Ohio Municipal
League, urges us to readopt our original Huebner decision and to overrule the
later decision reached on reconsideration. We decline this invitation.
{¶ 9} The Ohio Municipal League argues that by making Article XVIII,
Section 9 subject to Article XVIII, Section 14, the decision on reconsideration in
Huebner created internal inconsistencies: the word “electors” now means
different things in different sentences of the Ohio Constitution. But Article
XVIII, Section 14 does not redefine the word “electors”; it merely serves to
explain the signature requirement in Section 9 and elsewhere. The Ohio
Municipal League’s resolution of the alleged conflict is to interpret the Ohio
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SUPREME COURT OF OHIO
Constitution as if Article XVIII, Section 14 does not exist, which is precisely the
result we ultimately rejected in Huebner.
{¶ 10} Next, we must address Kent’s “counterclaim for injunctive relief.”
Kent contends that the proposed charter amendment is unconstitutional, but
acknowledges that a city council does not have the authority to keep a measure off
the ballot based on its content. So instead, Kent asks for a declaration from this
court that the measure is unconstitutional and the issuance of an injunction. Kent
explains that it asks for this relief, at least in part, to prevent a possible future
assertion that it waived any objection to the measure’s constitutionality by failing
to raise the issue as a compulsory counterclaim.
{¶ 11} This court “will not consider, in an action to strike an issue from
the ballot, a claim that the proposed amendment would be unconstitutional if
approved, such claim being premature.” State ex rel. Cramer v. Brown, 7 Ohio
St.3d 5, 6, 454 N.E.2d 1321 (1983). Applying Cramer, we decline to consider the
city’s constitutional challenge at this time. In doing so, we note that we have no
original jurisdiction to grant prohibitory injunctive relief or declaratory judgment.
ProgressOhio.org, Inc. v. Kasich, 129 Ohio St.3d 449, 2011-Ohio-4101, 953
N.E.2d 329, ¶ 2. Therefore, Kent’s claim that the substance of the charter
amendment is unconstitutional cannot be a compulsory counterclaim in this
action.
{¶ 12} Finally, we grant relators’ unopposed motion, filed September 14,
2015, for leave to file amended verifications.
Writ granted and
motion granted.
O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, KENNEDY,
FRENCH, and O’NEILL, JJ., concur.
_________________
Law Offices of Warner Mendenhall and Warner Mendenhall, for relators.
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January Term, 2015
James R. Silver, Kent Law Director, for respondent.
Frost Brown Todd, L.L.C., Philip K. Hartmann, Eugene L. Hollins, and
Yazan S. Ashrawi; and John Gotherman, urging denial of the writ for amicus
curiae, Ohio Municipal League.
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