State ex rel. Coover v. Husted (Slip Opinion)

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

ex rel. Coover v. Husted, Slip Opinion No. 2016-Ohio-5794.]

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. 2016-OHIO-5794

THE STATE EX REL. COOVER ET AL. v. HUSTED ET AL.

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

may be cited as State ex rel. Coover v. Husted, Slip Opinion No.

2016-Ohio-5794.]

Elections—Mandamus—County-charter petitions—Secretary of state and boards

of elections did not violate relators’ constitutional rights by examining

proposed county charters to determine whether they satisfied threshold

requirements of Article X, Section 3 of Ohio Constitution for inclusion on

ballot—Secretary and boards did not abuse discretion in determining that

proposed charters did not satisfy threshold requirements of Article X,

Section 3—Writ denied.

(No. 2016-1247—Submitted September 7, 2016—Decided September 13, 2016.)

IN MANDAMUS.

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Per Curiam.

{¶ 1} This is an expedited election case in which relators seek a writ of

mandamus requiring respondents, Secretary of State Jon Husted and the boards of

elections of Athens, Meigs, and Portage Counties (“the boards of elections”),1 to

place proposed charters for those counties on the ballot at the November 8, 2016

general election. We hold that relators are not entitled to the writ.

Factual and procedural history

{¶ 2} Relators are members of the committees that filed petitions under

Article X, Section 3 of the Ohio Constitution and R.C. 307.94 proposing the

adoption of county charters in Athens, Meigs, and Portage Counties.2

{¶ 3} Each of the boards of elections reviewed the petition filed in its county

to determine its validity and whether it contained sufficient signatures. Though

determining that the petitions contained sufficient signatures, the boards

unanimously rejected the petitions as invalid. Relators filed a timely protest of each

of these decisions pursuant to R.C. 307.95(B). On August 15, 2016, Secretary

Husted issued a single decision denying all three protests and instructing the boards

not to place the proposed charters on the ballot.

{¶ 4} On August 19, 2016, relators initiated this action as an expedited

election matter pursuant to S.Ct.Prac.R. 12.08. They seek a writ of mandamus

requiring Secretary Husted and the boards of elections to place the proposed

charters on the ballot.

1

The Athens County Board of Elections includes Helen Walker, Kate McGuckin, Ken Ryan, and

Aundrea Carpenter-Colvin. The Meigs County Board of Elections includes Charles E. Williams,

David W. Fox, Rita Slavin, and James V. Stewart. The Portage County Board of Elections includes

Craig M. Stephens, Patricia Nelson, Andrew Manning, and Doria Daniels.

2

Virginia L. Coover, John Howell, Richard McGinn, Michael H. Rowe, and Sally Jo Wiley are

members of the committee that filed the Athens County petition. Dennis J. Sargent, Kathy Lynn

Sargent, Gregory D. Howard, and Marsha Nagy Whitton are members of the committee that filed

the Meigs County petition. Kathleen M. Schumann, Gwen B. Fischer, Bradford Brotje, JoEllen

Armstrong, and Sandra Engle are members of the committee that filed the Portage County petition.

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Summary of the issues

{¶ 5} The Athens County Board of Elections rejected the Athens County

committee’s petition because it failed to alter the form of government, failed to vest

powers from the municipalities and townships with the county, and relied on the

Revised Code to determine the qualifications and salaries of elected officials. The

Meigs County and Portage County boards of elections rejected the petitions filed

in their counties because they failed to provide for a county executive under R.C.

302.02.

{¶ 6} In denying relators’ protests, Secretary Husted reasoned that the

petitions were invalid because the proposed charters failed to provide for the

performance of all duties imposed on county officers. He also indicated that while

the petitions could be interpreted as attempting to establish an alternative form of

government under R.C. Chapter 302, the proposed charters failed to provide for

either an elective or appointive county executive. He now argues that the petitions

are invalid because the proposed charters do not include the information required

under Article X, Section 3 of the Ohio Constitution to constitute a valid county

charter.

{¶ 7} Relators contend that the secretary of state’s and the boards of

elections’ pre-election examination of the content of the proposed charters violated

their constitutional rights; alternatively, they argue that the secretary of state and

the boards of elections abused their discretion in conducting the pre-election

review. They contend that the proposed charters do include a form of government

and do provide for the exercise of all necessary powers and duties.

Legal analysis

Pre-election review of the proposed charters

{¶ 8} Article X, Section 3 of the Ohio Constitution requires a county charter

to set forth certain information.

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Every such charter shall provide the form of government of the

county and shall determine which of its officers shall be elected and

the manner of their election. It shall provide for the exercise of all

powers vested in, and the performance of all duties imposed upon

counties and county officers by law.

{¶ 9} We have previously determined that it is within the secretary of state’s

discretion to determine whether a proposed county charter is invalid on the ground

that it does not set forth the form of government, “which is the sine qua non of a

valid charter initiative.” State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-

Ohio-3749, 43 N.E.3d 419, ¶ 24. Similarly, the county boards of elections have the

authority “to review, examine, and certify ‘the sufficiency and validity of

petitions.’ ” Id. at ¶ 11, quoting R.C. 3501.11(K).

{¶ 10} Relators, however, claim that permitting any pre-election review of

the content of their proposed charters violates their First Amendment rights and ask

us to overturn Walker “to the extent that it authorizes pre-election review of the

substance of the Charters at issue.”

{¶ 11} Walker, however, does not stand for the proposition that the

secretary of state or a board of elections may conduct a substantive review of the

content of a proposed charter; instead, Walker recognizes the authority of election

officials to determine whether a charter initiative meets the threshold requirements

for inclusion on the ballot. Here, as in Walker, the boards of elections and the

secretary of state invalidated the petitions on the grounds that the proposed charters

failed to set forth the information required under Article X, Section 3 of the Ohio

Constitution. Their determinations were consistent with our prior decisions

authorizing election officials to determine whether a proposal exceeds the scope of

the authority under which it is placed on the ballot. See, e.g., State ex rel. Choices

for South-Western City Schools v. Anthony, 108 Ohio St.3d 1, 2005-Ohio-5362, 840

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January Term, 2016

N.E.2d 582 (determining that the board of elections did not abuse its discretion by

refusing to place an attempted levy repeal on the ballot under a statutory provision

authorizing ballot measures for levy reductions).

{¶ 12} Relators further contend that the secretary of state and the boards of

elections violated another fundamental right—an asserted right to local self-

government—by imposing requirements on a county charter petition. However,

we are reluctant to consider the broader application of Article X, Section 3 in the

context of this expedited mandamus case, which seeks to place specific proposals

on the ballot. Relators have failed to persuasively demonstrate why we should

recognize a new fundamental right in the current proceeding.

{¶ 13} Moreover, there is no indication that the boards of elections or the

secretary of state attempted to thwart the principles of local self-government. They

did not deny relators the right to establish a charter form of county government;

instead, they merely examined the charter initiatives to determine whether they met

the threshold requirements for inclusion on the ballot.

{¶ 14} Pursuant to Walker, the secretary of state and the boards of elections

did not violate relators’ constitutional rights by examining the proposed county

charters to determine whether they included the information required under Article

X, Section 3 to constitute a valid charter initiative.

Validity of the petitions under Article X, Section 3

{¶ 15} In support of his decision denying relators’ protests, Secretary

Husted argues that the proposed charters were deficient for failing to provide for

the exercise of “all powers” vested in, and for failing to provide for the performance

of “all duties” imposed upon, counties and county officers. The boards of elections

of Athens and Portage Counties similarly contend that the proposed charters failed

to adequately provide for the exercise of these powers and the performance of these

duties.

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{¶ 16} The proposed charters include broad language ostensibly fulfilling

this requirement. Other than the name of the specified county, the language in all

three proposals is identical. The relevant charter language states:

The County * * * is responsible within its boundaries for the

exercise of all powers vested in, and the performance of all duties

imposed upon, counties and County officers by general law * * *.

***

When not prescribed by the Charter or by amendment to this

Charter, by local law enacted by the County Commissioners, or by

local law enacted by the people, such powers shall be exercised in

the manner prescribed by the Constitution of Ohio or by general law.

{¶ 17} Secretary Husted and the boards of elections reasonably determined

that this language is insufficient to provide for the exercise of all powers vested in,

and the performance of all duties imposed upon, counties and county officers. As

in Walker, the powers and duties are not individually delineated, forcing one to

“look to sources outside the proposed charters to determine the form of government

they purport to establish, and therefore they do not satisfy the legal prerequisites.”

Walker, 144 Ohio St.3d 419, 2015-Ohio-3749, 43 N.E.3d 419, at ¶ 23.

{¶ 18} Accordingly, we conclude that the secretary of state and boards of

elections did not abuse their discretion in determining that the proposed county

charters fail to satisfy the requirements under Article X, Section 3 of the Ohio

Constitution for a valid charter initiative.

Writ denied.

O’CONNOR, C.J., and PFEIFER, O’DONNELL, LANZINGER, and FRENCH, JJ.,

concur.

KENNEDY, J., concurs in judgment only.

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January Term, 2016

O’NEILL, J., dissents, with an opinion.

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O’NEILL, J., dissenting.

{¶ 19} Respectfully, I must dissent.

{¶ 20} R.C. Chapter 302 regulates adoption of an “alternative form of

county government.” For at least two reasons, the provisions in Chapter 302 are

separate and distinct from the review of the validity of a charter petition submitted

under Article X, Section 3 of the Ohio Constitution.

{¶ 21} First, Article X, Section 3 makes no mention of “alternative form[s]

of county government.” Article X, Section 3 authorizes the people of a county to

“frame and adopt or amend a charter.” That section does not empower the General

Assembly to further limit the form of county government that may be enacted by

the people. Article X, Section 3 states generally that a “charter shall provide the

form of government of the county and shall determine which of its officers shall be

elected and the manner of their election.” The proposed charters at issue here

accomplish this by reference to some but not all of the provisions of the Revised

Code.

{¶ 22} And why not? The majority would prefer that relators reinvent the

wheel of government in one document. I disagree.

{¶ 23} Second, Article X, Section 1 is the only portion of the Ohio

Constitution that does mention “alternative forms of county government.” On a

plain reading, that section requires the General Assembly to create counties and

authorizes the General Assembly to offer “alternative forms of county government”

that may be submitted to and adopted by the electors of the various counties. The

adjectival use of “alternative” suggests a circumstance in which several options are

made available and one option may be chosen. To the extent that R.C. Chapter 302

provides several frameworks for a county government that may be adopted by a

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majority of the electors of a county, the law comports with Article X, Section 1 of

the Ohio Constitution. There is no conflict here.

{¶ 24} To the extent that the secretary of state asks this court to apply the

provisions of the Revised Code to limit the form of government that the people may

adopt for themselves through Article X, Section 3, that interpretation exceeds the

constitutional authority of the General Assembly and the secretary of state by

invading the broad power reserved to the people. The secretary of state does not

have the power to veto charter petitions on behalf of the oil and gas industry simply

because the citizens did not pick exclusively from the two forms of county

government delineated in R.C. 302.02.3 This is a usurpation of power from the

people that we should not indulge.

{¶ 25} Although not required by Article X, Section 3, the General

Assembly provided statutory ballot access for citizens who wish to propose a new

county charter. See R.C. 307.94 and 307.95. Given the reticence that the various

boards of elections and secretary of state have shown toward the people and their

attempts to self-govern, I refer all interested Ohioans to Article X, Section 4, which

provides for an alternative form of ballot access:

The legislative authority of any county, upon petition of ten

per cent of the electors of the county, shall forthwith, by resolution,

submit to the electors of the county, in the manner provided in this

section for the submission of the question whether a charter

commission shall be chosen, the question of the adoption of a charter

in the form attached to such petition.

3

R.C. 302.02 names two alternative forms, the “elective executive plan” and the “appointive

executive plan.” R.C. 302.02 refers to the applicable statutory provisions that define each plan.

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January Term, 2016

{¶ 26} The citizens of all 88 counties have the right to choose their form of

county government. The majority limits the right of the citizens of Athens, Meigs,

and Portage Counties to choose a charter.

{¶ 27} To be clear, I dissent.

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James Kinsman and Terry J. Lodge, for relators.

Michael DeWine, Attorney General, and Nicole M. Koppitch and Brodi J.

Conover, Assistant Attorneys General, for respondent Secretary of State Jon

Husted.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Zachary L.

Saunders, Assistant Prosecuting Attorney, for respondents Athens County Board of

Elections and its members.

Victor V. Vigluicci, Portage County Prosecuting Attorney, and Denise L.

Smith and Charmine Ballard, Assistant Prosecuting Attorneys, for respondents

Portage County Board of Elections and its members.

Chad A. Endsley, Leah F. Curtis, and Amy M. Milam, urging denial of the

writ for amici curiae Ohio Farm Bureau Federation, Athens-Meigs Farm Bureau,

and Portage County Farm Bureau.

Porter, Wright, Morris & Arthur, L.L.P., L. Bradfield Hughes, and Kathleen

M. Trafford, urging denial of the writ for amici curiae Ohio Chamber of Commerce,

Affiliated Construction Trades Ohio Foundation, and the American Petroleum

Institute.

McTigue & Colombo, L.L.C., and Donald J. McTigue, urging denial of the

writ for amici curiae Affiliated Construction Trades Ohio Foundation and the

American Petroleum Institute.

Vorys, Sater, Seymour & Pease, L.L.P., Lisa Babish Forbes, Aaron M.

Williams, and Natalia Cabrera, urging denial of the writ for amicus curiae Ohio Oil

and Gas Association.

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