Nunneker v. Murdock

Klusmeier, J.,

dissenting. I respectfully dissent. Although I have no disagreement with the majority in all but one of the deviations noted by the trial court, that one remaining is, in my opinion, evidence of a failure of the referendum petition

sub judice

to comply substantially with the statutory form given in R.C. 303.12. The language given in the statutory form is that the proposal is to be submitted “for approval or rejection at a special election to be held on the day of the next primary or general election to be held on .. . (date).. . pursuant to Section 303.12 of the Revised Code.” The comparable language in the referendum petition as submitted is that the proposal be submitted for “approval or rejection at an election to be held in the manner provided by law.” There is a substantial difference between the statutory language and the language of the petition. The referendum issue must be presented at a special election. R.C. 303.12. The persons solicited for signature are entitled to be informed of the need for a special election because the costs of the special election are chargeable against the subdivision seeking the referendum. R.C. 3501.17. That consideration may be critical to the decision to sign or decline to sign the petition.

The statute requires that the special election be held on the day of the next primary or general election and the statutory form further specifies the time of the election by providing a space to insert the exact date of the primary or general election. The terms of R.C. 303.12 and 519.12 are, for practical purposes, identical. The Supreme Court of Ohio has held that R.C. 519.12 and 3501.02(F) are to be read

in pari materia

and certification of a township zoning question or issue sixty days (now seventy-five days) prior to election is the minimum time in order to assure that the voters will have an adequate time to become familiar with the issue to be voted upon.

State, ex rel. English,

v.

Bd. of Elections

(1977), 52 Ohio St. 2d 49, 51 [ 6 O.O.3d 190 ]. In a proposal to amend the charter of the city of Cleveland, pursuant to Sections 8 and 9, Article XVIII of the Ohio Constitution, the Supreme Court of Ohio held that the failure of the city council to designate the date of a special election on the issue was a “gross omission, not a trivial one.”

Billington

v.

Cotner

(1971), 25 Ohio St. 2d 140, 152 [ 54 O.O.2d 270 ], Although the comment is perhaps

obiter dictum,

the Supreme Court of Ohio in a unanimous opinion stated that had appellant failed to place any date of the election involved in the space provided, “it is clear that the part-petitions would be invalid.”

Hill

v.

Bd. of Elections

(1981), 68 Ohio St. 2d 39, 41 [ 22 O.O.3d 179 ]. Finally, the lack of a valid circulator’s affidavit was held in

*79

another opinion by the Supreme Court of Ohio to invalidate a nominating petition. The language employed by the court is relevant. “Substantial compliance does not contemplate complete omission. The statutory form, like any suggested statutory form, need not be followed absolutely as to its wording. The statute itself provides for only substantial compliance. However, as we have said, substantial compliance would not warrant complete omission * *

State, ex rel. Allen,

v.

Bd. of Elections

(1959), 170 Ohio St. 19 , 20 [ 9 O.O.2d 337 ].

I would affirm the judgment of the trial court.