State ex rel. Sensible Norwood v. Hamilton 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. Sensible Norwood v. Hamilton Cty. Bd. of Elections, Slip Opinion No. 2016-Ohio-5919.]

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-5919

THE STATE EX REL. SENSIBLE NORWOOD ET AL. v. HAMILTON COUNTY

BOARD OF ELECTIONS.

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

may be cited as State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of

Elections, Slip Opinion No. 2016-Ohio-5919.]

Mandamus—Writ of mandamus sought to compel board of elections to place

proposed city ordinance on the election ballot—Proposed ordinance

attempts to enact provisions that are beyond the scope of a municipality’s

authority to enact—Writ denied.

(No. 2016-1277—Submitted September 20, 2016—Decided September 22, 2016.)

IN MANDAMUS.

_________________

Per Curiam.

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

mandamus to require respondent, the Hamilton County Board of Elections, to place

a proposed “Sensible Marihuana Ordinance” on the ballot for the city of Norwood

at the November 8, 2016 general election. We deny the requested writ because

January Term, 2016

relators have failed to establish a clear legal right to requested relief and a clear

legal duty on the part of the board to provide the relief.

I. Factual and procedural history

{¶ 2} Relator Sensible Norwood is a political-action committee

established under R.C. Chapter 3517 to support an initiative proposing an ordinance

to decriminalize marijuana and hashish in the city of Norwood. Relator Amy

Wolfinbarger is the founder of Sensible Norwood and is one of the committee

members designated under R.C. 731.34 to represent the petitioners who filed the

initiative petition.

{¶ 3} On July 20, 2016, petitioners filed initiative petitions with signatures

to have a proposed ordinance placed on the November general-election ballot to

change the Norwood city ordinances regarding the legality of and penalties for

using and selling marijuana and hashish. Pursuant to R.C. 731.28, the petitions

were filed with the city auditor, who transmitted them to the Hamilton County

Board of Elections to determine the sufficiency of the signatures. After receiving

the board’s certification that the petitions contained sufficient signatures, the

auditor, on August 2, 2016, sent a letter to the board requesting that it place the

proposed ordinance on the ballot for the November 8, 2016 election.

{¶ 4} The board discussed placing the proposed ordinance on the ballot at

two meetings—on August 16, 2016, and on August 22, 2016. At the August 22,

2016 meeting, the board voted unanimously not to place the proposed ordinance on

the ballot, reasoning that it attempts (1) to enact felony offenses, which the board

members believed was beyond the authority of a city ordinance, and (2) to impose

administrative restrictions on the enforcement of existing laws.

{¶ 5} On August 29, 2016, relators initiated this action as an expedited

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

require the Hamilton County Board of Elections to place the proposed ordinance

on the ballot.

2

SUPREME COURT OF OHIO

II. Legal analysis

A. Review of petitions

{¶ 6} We have previously determined that county boards of elections have

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

petitions.’ ” State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749,

43 N.E.3d 419, ¶ 11, quoting R.C. 3501.11(K). That authority can be exercised in

regard to municipal initiative petitions even after the board verifies the number of

signatures.

[I]f the auditor or clerk certifies the sufficiency and validity of the

initiative petition to the board of elections, the board must submit

the proposed ordinance or other measure at the next succeeding

general election occurring after seventy-five1 days from the

certification to the board of elections, but only if the board

determines under R.C. 3501.11(K) and 3501.39 that the petition is

sufficient and valid.

(Emphasis added.) State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 477,

764 N.E.2d 971 (2002).

{¶ 7} While municipal officials, like the Norwood city auditor, “have

limited discretionary authority concerning matters of form, but not matters of

substance * * * a board of elections has greater discretion to inquire into the

sufficiency of a proposed ballot measure than municipal officials do.” Walker at

¶ 10-11. A board may reject a petition if it “violates the requirements of [R.C.

1

R.C. 731.28 previously required a measure to be placed on a ballot at the next succeeding general

election occurring 75 days from the certification to the board of elections. In 2010, the number of

days was changed to 90. 2010 Am.Sub.H.B. No. 48.

3

January Term, 2016

Chapter 3501], Chapter 3513. of the Revised Code, or any other requirements

established by law.” R.C. 3501.39(A)(3).

B. Does the proposed ordinance satisfy the requirements for an initiated

ordinance?

{¶ 8} The Hamilton County Board of Elections was authorized to review

the validity of the petition after the auditor asked the board to place the proposed

ordinance on the ballot. We therefore must consider whether the board properly

rejected the petition.

1. Proposed ordinance attempts to enact felony offenses and associated

penalties

{¶ 9} “ ‘Mandamus will not lie to compel a board of elections to submit

an ordinance proposed by initiative petition to the electorate if the ordinance does

not involve a subject which a municipality is authorized by law to control by

legislative action.’ ” State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d

437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 34, quoting State ex rel. Hazel v.

Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 168, 685 N.E.2d 224 (1997);

see Ohio Constitution, Article II, Section 1f.

{¶ 10} R.C. 715.67 specifies that a “municipal corporation may make the

violation of any of its ordinances a misdemeanor, and provide for the punishment

thereof by fine or imprisonment, or both.” However, “[t]he power to define and

classify and prescribe punishment for felonies committed within the state is lodged

in the General Assembly.” State v. O’Mara, 105 Ohio St. 94, 136 N.E. 885 (1922),

paragraph one of the syllabus, overruled in part on other grounds, Steele v. State,

121 Ohio St. 332, 168 N.E. 846 (1929).

{¶ 11} The proposed ordinance purports to enact felony offenses and

impose penalties for possessing or using marijuana and hashish. For example,

proposed section 513.15(b) establishes an offense for the possession of marijuana

and then in subsection (3) states, “If the amount of the drug involved equals or

4

SUPREME COURT OF OHIO

exceeds two hundred grams, possession of marihuana is a fifth degree felony drug

abuse offense. Persons convicted of violating this section shall not be fined and no

incarceration, probation, nor any other punitive or rehabilitative measure shall be

imposed.” (Emphasis added.) Similar language applies to the possession of

hashish.

{¶ 12} Although the proposed ordinance specifically prohibits any

punishment for the offense, the language also states that the offense is a felony. 2

While a city may define misdemeanor offenses and impose penalties by ordinance,

a city does not have authority to define felony offenses. Because the authority to

define and to propose penalties for felonies is limited to the General Assembly,

relators are not entitled to have a proposed ordinance that purports to enact a felony

offense placed on the ballot.

2. Proposed ordinance attempts to place administrative restrictions on

the enforcement of existing laws

{¶ 13} “Administrative actions are not subject to initiative.” N. Main St.

Coalition, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, at ¶ 34. “The

test for determining whether the action of a legislative body is legislative or

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

regulation, or executing or administering a law, ordinance or regulation already in

existence.” Donnelly v. Fairview Park, 13 Ohio St.2d 1, 233 N.E.2d 500 (1968),

paragraph two of the syllabus.

{¶ 14} In applying this test to the proposed ordinance, we conclude that

significant portions of the proposed ordinance attempt to govern the execution of

existing law rather than enact new law. The following provisions are distinctly

administrative:

2

For the purpose of state law, “any offense specifically classified as a felony is a felony.” R.C.

2901.02(D). An offense not otherwise classified is a felony “if imprisonment for more than one

year may be imposed as a penalty.” R.C. 2901.02(E).

5

January Term, 2016

{¶ 15} (1) Section 513.15(m) prohibits a Norwood police officer or the

officer’s agent from reporting the possession, sale, use, or distribution of marijuana

or hashish to any authority other than the city attorney. The city attorney is

prohibited from referring a report of a violation to any other authority for

prosecution or for any other reason. The language is not restricted to instances

involving violations of the city’s ordinance.

{¶ 16} (2) Section 513.15(o) prohibits any authority from seeking criminal

or civil asset forfeiture based on violations of the proposed ordinance. However,

existing state and federal laws authorize criminal and civil asset forfeiture for

violations of controlled-substance laws. See, e.g., R.C. 2925.42.

{¶ 17} (3) Section 513.15(s) prohibits the suspension of a driver’s or

commercial driver’s license or permit for any length of time based on the drug-

abuse offenses in the proposed ordinance. Numerous sections of R.C. Chapter

2925, the drug-offenses laws, include provisions permitting or requiring a court to

suspend an offender’s driver’s license upon conviction. See, e.g., R.C. 2925.02(D),

2925.05(D), and 2925.04(D). See also R.C. 4510.05 and 4510.07 (providing for

the suspension of a driver’s or commercial driver’s license upon conviction of

violating municipal ordinances substantially similar to Revised Code provisions).

{¶ 18} Relators claim that these provisions are legislative rather than

administrative because the proposed ordinance would repeal and amend Norwood’s

current criminal law. Relators allege that the provisions are not administrative and

that those portions that direct how the proposed law should be enforced do not make

the provisions administrative. However, the language reaches far beyond the

enforcement of the proposed ordinance and attempts to prohibit the enforcement of

existing state and federal controlled-substance laws. These provisions are clearly

administrative.

{¶ 19} Relators argue that even if sections of the proposed ordinance are

administrative, it should be submitted to the ballot because it includes a severability

6

SUPREME COURT OF OHIO

clause. They contend that if a court later determines that certain provisions are

administrative, those provisions could be excised from the ordinance pursuant to

the severability clause. However, “we have made clear that [where a proposed

action is administrative], the board of elections is ‘required to withhold the initiative

and referendum from the ballot.’ ” State ex rel. Ebersole v. Delaware Cty. Bd. of

Elections, 140 Ohio St.3d 487, 2014-Ohio-4077, 20 N.E.3d 678, ¶ 30, quoting State

ex rel. Oberlin Citizens for Responsible Dev. v. Talarico, 106 Ohio St.3d 481, 2005-

Ohio-5061, 836 N.E.2d 529, ¶ 17.

{¶ 20} Because a significant portion of the proposed ordinance is

administrative, the board of elections properly refused to place it on the ballot.

C. Are relators entitled to a writ of mandamus?

{¶ 21} To be eligible for a writ of mandamus, relators must “establish a

clear legal right to the requested relief, a clear legal duty on the part of the board

and its members to provide it, and the lack of an adequate remedy in the ordinary

course of the law.” State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55, 2012-Ohio-

69, 960 N.E.2d 452, ¶ 6.

{¶ 22} Relators have failed to establish a clear legal right to their requested

relief and a clear legal duty on the part of the board to provide it. As we have

previously acknowledged, “[e]lection officials serve as gatekeepers, to ensure that

only those measures that actually constitute initiatives or referenda are placed on

the ballot.” Walker, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d 419, at ¶ 13.

The Sensible Norwood proposed ordinance was properly rejected by the board of

elections because it attempts to enact provisions that are beyond the scope of a

municipality’s authority to enact.

Writ denied.

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

FRENCH, and O’NEILL, JJ., concur.

_________________________

7

January Term, 2016

Kalniz, Iorio, & Reardon Co., L.P.A., and Edward J. Stechschulte, for

relators.

Joseph T. Deters, Hamilton County Prosecuting Attorney, and David T.

Stevenson and Cooper D. Bowen, Assistant Prosecuting Attorneys, for respondent.

Keith D. Moore, Norwood Law Director, and Timothy A. Garry Jr.,

Assistant Law Director, urging denial of the writ for amicus curiae city of Norwood.

_________________

8