The opinion
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Twitchell v. Saferin, Slip Opinion No. 2018-Ohio-3829.]
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. 2018-OHIO-3829
THE STATE EX REL. TWITCHELL ET AL. v.
SAFERIN ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Twitchell v. Saferin, Slip Opinion No.
2018-Ohio-3829.]
Mandamus—Writ of mandamus sought to compel board of elections to place a
proposed charter amendment on the ballot for the November 2018 ballot—
Relators failed to show that the board of elections abused its discretion in
keeping the proposed amendment off the ballot—Writ denied.
(No. 2018-1238—Submitted September 13, 2018—Decided September 21, 2018.)
IN MANDAMUS.
__________________
Per Curiam.
{¶ 1} In this expedited election case, relators, Bryan Twitchell, Julian C.
Mack, and Sean M. Nestor, seek a writ of mandamus to compel respondent Lucas
SUPREME COURT OF OHIO
County Board of Elections1 to place a proposed charter amendment on the
November 6, 2018 general-election ballot. For the reasons set forth below, we deny
the writ.
Background
{¶ 2} On August 6, 2018, Twitchell, Mack, and Nestor submitted part-
petitions in support of a proposed amendment to the Toledo City Charter entitled
the Lake Erie Bill of Rights (“LEBOR”). The LEBOR would declare that Lake
Erie and the Lake Erie watershed “possess the right to exist, flourish, and naturally
evolve” and that the citizens of Toledo have a right to a clean and healthy
environment, including the Lake Erie ecosystem. Section 2 would make it unlawful
for a corporation or government to violate the rights secured by the LEBOR and
declares that, within the city of Toledo, any corporate license or privilege that
would violate these rights would be void. Section 3 would make it a crime to violate
the provisions of the LEBOR, would allow the city of Toledo, or any resident, to
“enforce the rights and prohibitions of this law through an action brought in the
Lucas County Court of Common Pleas,” and would recognize the right of the Lake
Erie ecosystem itself to enforce its rights in an action prosecuted by the city or any
resident of the city. Finally, Section 4 purports to nullify any state laws or agency
rules that conflict with the provisions of the LEBOR.
{¶ 3} The Lucas County Board of Elections verified a sufficient number of
petition signatures to qualify the measure for the ballot. However, on August 28,
2018, the board voted 4-0 to refuse to place the charter amendment on the ballot on
the ground that it contained provisions that are beyond the authority of the city to
enact. Specifically, the board followed the recommendation of its legal counsel to
reject the petition on the grounds that (1) it creates a new cause of action and (2) it
confers jurisdiction on the common pleas court to hear the new cause of action.
1
Individual members of the board, Dr. Bruce Saferin, Brenda Hill, Joshua Hughes, and David
Karmol, in their official capacities, were also named as respondents.
2
January Term, 2018
{¶ 4} On August 30, Twitchell, Mack, and Nestor filed the present
expedited election complaint. The parties have filed briefs and evidence in
accordance with the calendar for expedited election cases in S.Ct.Prac.R. 12.08,
and we have received two amicus briefs in support of respondents.
Analysis
{¶ 5} To be entitled to a writ of mandamus, a relator must establish, by clear
and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear
legal duty on the part of the respondent to provide that relief, and (3) 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. To satisfy the first two
requirements, a relator must show that the respondent engaged in fraud or corruption,
abused its discretion, or acted in clear disregard of applicable legal provisions.
State ex rel. Jacquemin v. Union Cty. Bd. of Elections, 147 Ohio St.3d 467, 2016-
Ohio-5880, 67 N.E.3d 759, ¶ 9. Because there is no allegation of fraud or corruption
in this case, Twitchell, Mack, and Nestor must show that the board abused its
discretion or disregarded the law when it rejected the petition.
{¶ 6} Twitchell, Mack, and Nestor have not shown that the elections board
abused its discretion in keeping the LEBOR off the ballot. The elections board
relied on this court’s decision in State ex rel. Flak v. Betras, 152 Ohio St.3d 244,
2017-Ohio-8109, 95 N.E.3d 329, which held that elections boards are authorized “
‘to determine whether a ballot measure falls within the scope of the constitutional
power of referendum or initiative,’ ” id. at ¶ 11, quoting State ex rel. Youngstown v.
Mahoning Cty. Bd. of Elections, 144 Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d
1229, ¶ 9. We do not find an abuse of discretion or disregard of the law in the
election board’s reliance on Flak given that Flak also involved proposed
amendments to a city charter. “County boards of elections are of statutory creation,
and the members thereof in the performance of their duties must comply with
applicable statutory requirements.” State ex rel. Babcock v. Perkins, 165 Ohio St.
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185, 187, 134 N.E.2d 839 (1956). It was not unreasonable for the elections board
to look to Flak for guidance on its statutory duties.
{¶ 7} Twitchell, Mack, and Nestor argue that the elections board should
have relied on this court’s decision in State ex rel. Espen v. Wood Cty. Bd. of
Elections, ___ Ohio St.3d ___, 2017-Ohio-8223, ___ N.E.3d ___. But that case did
not result in a court majority. Thus, the elections board did not improperly
disregard Espen.
{¶ 8} Twitchell, Mack, and Nestor also argue that the authority granted to
elections boards in R.C. 3501.11(K)(2), adopted in 2016 Sub.H.B. No. 463 (“H.B.
463”) is unconstitutional because it violates either the doctrine of separation of
powers or the single-subject rule. But as we have observed in other recent
decisions, we need not reach these issues because we can decide this case under
pre-H.B. 463 caselaw. See Flak, 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d
329, at ¶ 17; State ex rel. Bolzenius v. Preisse, ___ Ohio St.3d ___, 2018-Ohio-____,
333 N.E.3d ____ .
{¶ 9} Because Twitchell, Mack, and Nestor have not demonstrated that the
board of elections abused its discretion when it relied on Flak to deny the request to
place the LEBOR charter amendments on the ballot, we deny the writ.
Writ denied.
O’CONNOR, C.J., and FRENCH and DEGENARO, JJ., concur.
O’CONNOR, C.J., concurs, with an opinion.
KENNEDY, J., concurs in judgment only, with an opinion joined by
O’DONNELL and DEWINE, JJ.
O’DONNELL, J., joins Justice Kennedy’s opinion and recognizes Justice
Fischer’s position that portions of H.B. 463 are unconstitutional, but finds it
unnecessary to reach that issue in this case.
FISCHER, J., dissents, with an opinion.
_________________
4
January Term, 2018
O’CONNOR, C.J., concurring.
{¶ 10} I concur with the per curiam opinion that the Lucas County Board of
Elections did not abuse its discretion in refusing to place the charter amendment on
the ballot and therefore relators, Bryan Twitchell, Julian C. Mack, and Sean M.
Nestor, have failed to establish that they are entitled to a writ of mandamus. I write
separately to address the impropriety of reaching the issues raised by the opinion
concurring in judgment only.
{¶ 11} “While there may be exceptions, it is not generally the proper role of
this court to develop a party’s arguments.” In re Columbus S. Power Co., 129 Ohio
St.3d 271, 2011-Ohio-2638, 951 N.E.2d 751, ¶ 19. Indeed, the opinion concurring
in judgment only would not only rewrite significant constitutional provisions, it
would sua sponte declare portions of the Toledo city charter to be in conflict with
the Ohio Constitution, all without the slightest input from the parties. We should
adhere to this court’s long-standing policy not to address issues not raised by the
parties. Sizemore v. Smith, 6 Ohio St.3d 330, 333, 453 N.E.2d 632 (1983), fn. 2.
We have recognized that “justice is far better served” when we have the benefit of
the parties’ briefing and arguments before we make a final determination. Id.; see
also Apple Group, Ltd. v. Granger Twp. Bd. of Zoning Appeals, 144 Ohio St.3d
188, 2015-Ohio-2343, 41 N.E.3d 1185, ¶ 52 (Kennedy, J., dissenting) (critiquing
the majority opinion’s reliance in that case on an issue that was not appealed to this
court, that “the parties did not brief or argue,” and that was decided “without relying
on experts or authoritative statements and without considering the unique needs”
of the parties).
{¶ 12} As recently as last week, this court denied a writ of mandamus by
relying, in part, on State ex rel. Flak v. Betras, 152 Ohio St.3d 244, 2017-Ohio-
8109, 95 N.E.3d 329. Today, the opinion concurring in judgment only—which is
advanced by justices who concurred in the decision in Flak—sua sponte concludes
that our prior decisions were in error. But nothing has changed in the short time
5
SUPREME COURT OF OHIO
since Flak was announced; not the relevant statutes or constitutional provisions, not
the parties’ arguments, and not the makeup of this court. To so quickly abandon
our prior case law without the benefit of briefing by the parties, as the opinion
concurring in judgment only suggests that we do, would leave the law vulnerable
to the whims of those sitting on the bench, rather than moored to the principled and
disciplined approach that is the cornerstone of an independent judiciary.
{¶ 13} That is not to say that this court should be so tied to precedent that it
would reject an opportunity to correct an error. But it is a frivolous use of judicial
authority to sua sponte abandon our precedent, and act as both advocate and arbiter
without the input of the parties, particularly in the context of expedited election
cases, which involve such critical issues as the power reserved to the people by our
state constitution to participate in their government.
{¶ 14} Indeed, the opinion concurring in judgment only raises more
questions than it answers in its effort to sua sponte alter the court’s jurisprudence
in this line of election cases. For example, it assumes that a proposed charter
amendment initiated by the voters is not an “initiative” at all, that the voters’ power
to amend a charter arises exclusively from Article XVIII, Sections 7, 8, and 9 of
the Ohio Constitution, that Article II, Section 1f of the Ohio Constitution has no
application to a proposed charter amendment initiated by the people, and that a
board of elections’ duties are different when presented with a municipal-charter
amendment than when it is presented with other voter-initiated efforts. But this
argument implicates many legal conclusions, including that Article XVIII is the
exclusive provision under which charter amendments are governed. And it requires
interpreting the meaning of the term “initiative” to exclude voter-initiated efforts to
amend a municipal charter. Whether these conclusions are clear from the language
of the relevant constitutional provisions is not a question before us nor one that the
parties have briefed.
6
January Term, 2018
{¶ 15} Additionally, the opinion concurring in judgment only concludes
that the Ohio Constitution requires the Toledo city council to approve an ordinance
placing the initiated charter amendment on the ballot and that absent such an
ordinance, relators’ complaint for a writ of mandamus against the board of elections
is premature. The opinion then goes so far as to conclude that the Toledo city
charter is inconsistent with the Ohio Constitution. But these arguments have not
been presented to this court. And the question whether the process of submitting a
voter-initiated charter amendment to the electors arises exclusively under Article
XVIII of the Ohio Constitution has not been presented to this court nor briefed by
the parties. For example, Article XVIII, Section 9, requires a “legislative authority”
(in this case, city council) to submit a qualifying initiative to the ballot, but it does
not mandate how that is to be accomplished (by passage of an ordinance,
certification by the clerk of a city council, or by another method).
{¶ 16} It is the court’s role to act as an arbiter, not an advocate. Here, the
opinion concurring in judgment only exceeds the bounds of our judicial authority.
We should treat such attempt with circumspection.
_________________
KENNEDY, J., concurring in judgment only.
{¶ 17} I agree with the majority that relators, Bryan Twitchell, Julian C.
Mack, and Sean M. Nestor, have failed to establish that they have a clear legal right
to issuance of a writ of mandamus against the board of elections. I write separately,
however, to urge that we clear up the confusion created by our recent caselaw,
which has begun treating a petition to amend a municipal charter pursuant to Article
XVIII, Section 9 of the Ohio Constitution as the equivalent of an initiative petition
to enact an ordinance pursuant to Article II, Section 1f of the Ohio Constitution.
However, the right of initiative is separate from the right of the people of a
municipality to frame a form of government. Until recently, we had recognized
that Article XVIII, Section 9 sets forth the specific procedure for amending a
7
SUPREME COURT OF OHIO
municipal charter and requires a municipality’s legislative body to pass an
ordinance placing a proposed charter amendment on the ballot when its proponents
present a sufficient petition. Because there is no evidence here that the Toledo city
council passed such an ordinance, the Lucas County Board of Elections ultimately
was correct in refusing to place the charter amendment on the ballot for the
November 2018 election. Therefore, I concur in the judgment denying the writ.
Power of Initiative and Referendum
{¶ 18} Article II, Section 1f of the Ohio Constitution, adopted in 1912,
reserves to the people of a municipality the power of initiative and referendum:
“The initiative and referendum powers are hereby reserved to the people of each
municipality on all questions which such municipalities may now or hereafter be
authorized by law to control by legislative action; such powers shall be exercised
in the manner now or hereafter provided by law.” Our caselaw construing this
amendment has long held that a board of elections has authority to deny ballot
access when an initiative petition “does not contain any question which a
municipality is authorized by law to control by legislative action.” State ex rel.
Rhodes v. Lake Cty. Bd. of Elections, 12 Ohio St.2d 4, 230 N.E.2d 347 (1967);
accord State ex rel. Sensible Norwood v. Hamilton Cty. Bd. of Elections, 148 Ohio
St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696, ¶ 9; State ex rel. N. Main St. Coalition
v. Webb, 106 Ohio St.3d 437, 2005-Ohio-5009, 835 N.E.2d 1222, ¶ 34; State ex rel.
Hazel v. Cuyahoga Cty. Bd. of Elections, 80 Ohio St.3d 165, 168, 685 N.E.2d 224
(1997).
{¶ 19} In Sensible Norwood, the board of elections refused to place on the
ballot a proposed municipal ordinance that would decriminalize marijuana and
hashish in the city of Norwood. We noted that a municipality has authority to define
misdemeanor offenses but that the power to define and prescribe punishment for
felonies is vested in the General Assembly. Id. at ¶ 10. And because the power to
designate felonies is not a matter that municipalities are “authorized by law to
8
January Term, 2018
control by legislative action,” Article II, Section 1f of the Ohio Constitution, the
supporters of the proposed ordinance did not have the right to have the measure
placed on the ballot. Id. at ¶ 12.
{¶ 20} The power of a municipality or of the people of a municipality to
adopt and amend a municipal charter, however, flows from a separate constitutional
provision.
Power to Adopt or Amend a Municipal Charter
{¶ 21} Article XVIII, Section 7 of the Ohio Constitution was also adopted
in 1912. It authorizes a municipality to “frame and adopt or amend” a charter form
of government. Section 9 of Article XVIII specifies the procedure for placing a
proposed amendment to the charter on the ballot:
Amendments to any charter framed and adopted as herein
provided may be submitted to the electors of a municipality by a
two-thirds vote of the legislative authority thereof, and upon
petitions signed by ten per centum of the electors of the municipality
setting forth any such proposed amendment, shall be submitted by
such legislative authority. The submission of proposed amendments
to the electors shall be governed by the requirements of section 8 as
to the submission of the question of choosing a charter commission
* * *. If any such amendment is approved by a majority of the
electors voting thereon, it shall become a part of the charter of the
municipality.
In turn, Article XVIII, Section 8, states, “The legislative authority of any city or
village may by a two-thirds vote of its members, and upon petition of ten per centum
of the electors shall forthwith, provide by ordinance for the submission to the
electors, of the question, ‘Shall a commission be chosen to frame a charter.’ ”
9
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{¶ 22} We have therefore explained that “ ‘Section 9 of Article XVIII,
which incorporates the requirements of Section 8, allows, and on petition by ten
percent of the electors, requires, the legislative authority of any city, e.g., city
council, to “forthwith” authorize by ordinance an election on the charter
amendment issue.’ (Emphasis sic.)” 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, ¶ 23, quoting State ex rel. Commt. for Charter Amendment
Petition v. Avon, 81 Ohio St.3d 590, 592, 693 N.E.2d 205 (1998). “The ‘manifest
object’ of Section 9 of Article XVIII ‘is to provide the procedure for the submission
of a charter amendment to electors’ and these ‘requirements are clear and complete,
and are not to be added to or subtracted from.’ ” Id. at ¶ 31, quoting Billington v.
Cotner, 25 Ohio St.2d 140, 146, 267 N.E.2d 410 (1971).
{¶ 23} We have held that in placing a proposed amendment to a municipal
charter on the ballot, “[the] board of elections has nothing but a ministerial role
under the Constitution.” State ex rel. Semik v. Cuyahoga Cty. Bd. of Elections, 67
Ohio St.3d 334, 337, 617 N.E.2d 1120 (1993). And “[s]ince the Constitution
requires that the admission [sic, submission] of the charter amendment initiative be
made by the legislature, it follows that the legislature need not make the submission
unless satisfied of the sufficiency of the petitions and that all statutory requirements
are fairly met.” Morris v. Macedonia City Council, 71 Ohio St.3d 52, 55, 641
N.E.2d 1075 (1994). “ ‘This function being reposed by the Constitution in the
legislative branch of the government, it does not lie in the power of the people of
the municipality to transfer it to an arm of the executive branch, viz. the board of
elections.’ ” Semik at 336, quoting State ex rel. Hinchcliffe v. Gibbons, 116 Ohio
St. 390, 395, 156 N.E. 455 (1927). For this reason, “the board cannot be granted
decisive authority in this area.” Id. at 337.
{¶ 24} Our caselaw had been consistent on this point since we decided
Hinchcliffe in 1927. Recently, however, in reviewing mandamus actions involving
10
January Term, 2018
ordinances to amend municipal charters, we began applying our caselaw construing
the power of initiative and referendum as if Article II, Section 1f were the source
of the authority to amend a municipal charter.
{¶ 25} In State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144
Ohio St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, we addressed the board of
elections’ authority to review an ordinance proposing a charter amendment, but we
did not even mention Article XVIII, Sections 7, 8, and 9, or any of our prior caselaw
construing those provisions. We therefore did not recognize that the authority to
amend a municipal charter arises from a constitutional provision separate from the
right of initiative. Even though an ordinance had instructed the board to place the
charter amendment on the ballot, we relied on R.C. 3501.11(K) and held that the
board had authority to review a charter-amendment petition and “determine
whether a ballot measure falls within the scope of the constitutional power of
referendum or initiative.” Id. at ¶ 9. However, our error did not affect the outcome
of the case; we ordered the charter amendment on the ballot, explaining that “boards
of elections do not have authority to sit as arbiters of the legality or constitutionality
of a ballot measure’s substantive terms. An unconstitutional amendment may be a
proper item for referendum or initiative.” (Emphasis sic.) Id. at ¶ 11.
{¶ 26} We continued our error in State ex rel. Flak v. Betras, 152 Ohio St.3d
244, 2017-Ohio-8109, 95 N.E.3d 329, in which we considered whether the
Mahoning County Board of Elections had a clear legal duty to place two proposed
charter amendments on the ballot. The Youngstown city council had unanimously
passed ordinances instructing the board to place the proposed amendments on the
ballot, but the board refused to do so on the grounds that the amendments contained
provisions that exceeded the scope of the city’s power to enact by initiative. Id. at
¶ 7. In reviewing a mandamus action challenging that decision, we again relied on
Article II, Section 1f of the Ohio Constitution without mentioning Article XVIII,
Sections 7, 8, and 9. The city had enacted ordinances placing charter amendments
11
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on the ballot on authority of Article XVIII, Section 9, not Article II, Section 1f, but
we held that under R.C. 3501.11(K)(1), the board had authority to review the
sufficiency and validity of the charter-amendment petitions and determine whether
the charter amendments fell within the scope of the power to initiate legislation.
Flak at ¶ 11. Then, we compounded the error by relying on Sensible Norwood, 148
Ohio St.3d 176, 2016-Ohio-5919, 69 N.E.3d 696—a case involving an initiative
petition for a proposed municipal ordinance, not an ordinance proposing to amend
a charter—and concluded that the board of elections properly rejected the petitions
because the proposed charter amendments exceeded the municipality’s legislative
power by purporting to create a cause of action. Id. at ¶ 15-16.
{¶ 27} We relied on our faulty reasoning in Flak in State ex rel.
Khumprakob v. Mahoning Cty. Bd. of Elections, ___ Ohio St.3d ___, 2018-Ohio-
1602, ___ N.E.3d ___. However, our discussion of Flak did not affect the outcome
in Khumprakob, because we held that the board of elections abused its discretion
in finding that the amendment exceeded the city of Youngstown’s legislative
power. We nonetheless assumed that a charter amendment involves the power to
initiate legislation controlled by Article II, Section 1f of the Ohio Constitution
rather than the power to amend a charter form of municipal government controlled
by Article XVIII, Section 9 of the Ohio Constitution.
{¶ 28} The majority today apparently recognizes that our reasoning in Flak
is flawed, because the majority does not actually apply that decision to this case but
rather concludes that “[i]t was not unreasonable for the elections board to look to
Flak for guidance on its statutory duties,” majority opinion at ¶ 6. But the board of
elections had nothing but a ministerial role in placing the proposed charter
amendment on the ballot. Semik, 67 Ohio St.3d at 337, 617 N.E.2d 1120. It
therefore had no discretion to exercise, and the reasonableness of its reliance on
Flak is irrelevant. And more fundamentally, we should not abdicate the judicial
responsibility to “say what the law is,” Marbury v. Madison, 5 U.S. 137, 177, 2
12
January Term, 2018
L.Ed. 60 (1803), and permit the board of elections to decide ballot access by
applying whichever of our conflicting lines of authority supports the desired result.
{¶ 29} Here, the board of elections concluded that the proposed charter
amendment exceeds the scope of the municipality’s legislative authority to enact
through initiative pursuant to Article II, Section 1f. But to reach that conclusion,
the board had to ignore language on the petition citing “Constitution of Ohio, Art.
XVIII, Section 9 and 14.” The Ohio secretary of state used this language in Form
6-B, the petition for submission of a proposed charter amendment. (The secretary
provides a separate Form 6-I for initiative petitions). And the board of elections
did not follow the secretary of state’s Ohio Ballot Questions and Issues Handbook
10-6 (2018), available at https://www.sos.state.oh.us/globalassets/elections
/eoresources/general/questionsandissues.pdf (accessed Sept. 20, 2018), a guide for
the boards of elections that states:
The authority and procedure for approving an amendment to
a municipal charter are found in Article XVIII, Section 9 of the Ohio
Constitution. * * *
An amendment to a charter may be submitted to the electors
by one of the two following methods:
i. Two-thirds vote of the legislative authority of the
municipality.
ii. A petition containing the full text of the proposed
amendment and signed by 10 percent of the electors of the
municipality. The filing of a valid and sufficient petition requires
the legislative authority to pass an ordinance ordering the board of
elections to submit the amendment to the electors.
The municipal legislative authority determines the
sufficiency and validity of a petition to amend a charter. The board
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of elections’ initial role in reviewing the petition is strictly
ministerial; i.e., determining the sufficiency and validity of the
signatures and reporting its findings to the legislative authority.
(Footnotes omitted.)
{¶ 30} A charter amendment is not an exercise of the people’s power to
initiate legislation—i.e., to enact an ordinance—but rather is the municipality’s
authority to establish and amend its form of government through the action of the
municipality’s legislative branch. Accordingly, I would apply Article XVIII,
Sections 7, 8, and 9, and caselaw construing those provisions in cases in which a
city council enacts an ordinance ordering the placement of a proposed amendment
to the municipality’s charter on a ballot and would not treat an ordinance ordering
the placement of a proposed amendment on a ballot the same as an initiative petition
seeking to enact an ordinance.
{¶ 31} The concurring opinion asserts that this opinion “assumes that a
proposed charter amendment initiated by the voters is not an ‘initiative’ at all, that
the voters’ power to amend a charter arises exclusively from Article XVIII,
Sections 7, 8 and 9, of the Ohio Constitution, that Article II, Section 1f, of the Ohio
Constitution has no application to a proposed charter amendment initiated by the
people, and that a board of elections’ duties are different when presented with a
municipal-charter amendment than when it is presented with other voter-initiated
efforts.” Concurring opinion at ¶ 14. Of course, had the framers intended for the
people of a municipality to adopt and amend a municipal charter through the right
of initiative reserved by Article II, Section 1f, there would be no reason to adopt
procedures for amending a charter in Article XVIII, Sections 7, 8 and 9.
{¶ 32} It is a general rule of constitutional interpretation that when a
specific constitutional provision applies, it controls over a more general provision.
State v. Anderson, 148 Ohio St.3d 74, 2016-Ohio-5791, 68 N.E.3d 790, ¶ 26;
14
January Term, 2018
Sacramento Cty. v. Lewis, 523 U.S. 833, 844, 118 S.Ct. 1708, 140 L.Ed.2d 1043
(1998). Article XVIII, Sections 7, 8, and 9 provide specific procedures for
amending a charter, while Article II, Section 1f does not. We should be hesitant to
adopt an analysis that would allow a party to evade the procedure expressly
provided by the Constitution for amending a municipal charter simply by
characterizing the petition as seeking an initiative rather than a petition for a charter
amendment.
{¶ 33} The concurring opinion also asserts that “Article XVIII, Section 9
requires a ‘legislative authority’ (in this case, city council) to submit a qualifying
initiative to the ballot, but it does not mandate how that is to be accomplished (by
passage of an ordinance, certification by the clerk of city council, or by another
method).” (Emphasis sic.) Concurring opinion at ¶ 15. That claim disregards the
plain language of Article XVIII, Section 9, expressly incorporating Article XVIII,
Section 8, and requiring the legislative authority of the municipality to “provide by
ordinance” for the submission of the charter amendment to the people.
{¶ 34} And it is peculiar that in writing to uphold the importance of stare
decisis, the concurring opinion is so willing to abandon our caselaw recognizing
that presentation of a sufficient petition requires the legislative authority of the
municipality to pass an ordinance placing the charter amendment on the ballot. See,
e.g., Commt. for the Charter Amendment, 97 Ohio St.3d 100, 2002-Ohio-5302, 776
N.E.2d 1041, at ¶ 23; Commt. for Charter Amendment Petition, 81 Ohio St.3d at
592, 693 N.E.2d 205; Semik, 67 Ohio St.3d at 337, 617 N.E.2d 1120; State ex rel.
Blackwell v. Bachrach, 166 Ohio St. 301, 306, 143 N.E.2d 127 (1957). In fact, our
recent decision in State ex rel. Commt. for Charter Amendment Petition v. Maple
Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, granted a writ of
mandamus to compel a city council to pass an ordinance placing a charter
amendment on the ballot.
15
SUPREME COURT OF OHIO
{¶ 35} Last, I recognize that it would be helpful to order supplemental
briefing on these questions, but the shortened timeline of an expedited election
action make that impractical if not impossible—the deadline for preparing absentee
ballots as required by federal law, 52 U.S.C. 20302, is imminent. See R.C.
3511.04(B). In these circumstances, our prudential policy against addressing
arguments not raised by the parties is not a barrier to addressing and remedying a
clear mistake before it is repeated again. The alternative is to stay silent and allow
the board of elections to continue to deny ballot access based on this court’s
erroneous statement of law. In the words of Chief Justice Thomas J. Moyer, writing
for the court in State ex rel. Huebner v. W. Jefferson Village Council, 75 Ohio St.3d
381, 385, 662 N.E.2d 339 (1996), such an interpretation would not “foster[ ] the
goal of providing citizens with access to the ballot, a foundation of our democracy.”
{¶ 36} Despite the majority’s misapplication of Article II, Section 1f of the
Ohio Constitution, here the board of elections properly refused to place the charter
amendment on the ballot, because the Toledo city council had not passed an
ordinance placing it on the ballot. Rather, Toledo’s clerk of council submitted the
petition—not an ordinance—directly to the board of elections. This error resulted
from the clerk’s attempt to comply with the Toledo City Charter, Chapter 1, Section
5, which provides:
Any amendment to this Charter may be submitted to the
electors of the City for adoption by resolution of the Council, two-
thirds of the members thereof concurring, and shall be submitted
when a petition is filed with the Clerk of the Council setting forth
the proposed amendment and signed by not less than ten percent of
the electors. * * * It shall be the duty of the Clerk to notify the
election authorities of the adoption by the Council of a resolution
for submission of a proposed amendment, or of his or her
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determination that a sufficient petition for submission has been filed
with him or her; and the Clerk shall request the election authorities
to provide for an election as aforesaid.
The charter calls for the council to pass a “resolution” to amend the charter on its
own initiative. However, when petitions are filed seeking an amendment, the
charter requires the clerk to submit the amendment to the board of elections if the
clerk finds the petitions to be sufficient—without council passing an ordinance
instructing the board to place the charter amendment on the ballot. The Toledo City
Charter is therefore inconsistent with the procedure required by Article XVIII,
Sections 8 and 9. See Commt. for the Charter Amendment, 97 Ohio St.3d 100,
2002-Ohio-5302, 776 N.E.2d 1041, at ¶ 32.
{¶ 37} Mandamus will not lie in this case, because until the Toledo City
Council passes an ordinance, the board of elections has no duty to place the charter
amendment on the ballot. State ex rel. Beard v. Hardin, ___ Ohio St.3d ___, 2018-
Ohio-1286, ___ N.E.3d ___, ¶ 34 (lead opinion). “Because the council has not
passed [an ordinance approving the placement of the amendment on the ballot],
relators have no claim against the board of elections.” Id.
{¶ 38} Moreover, in contrast to the dissenting opinion’s argument that this
court should address whether 2016 Sub.H.B. No. 463 (“H.B. 463”), which amended
R.C. 3501.11 to require a board of elections to examine an initiative petition,
violates the separation-of-powers doctrine, the plain language of Article XVIII,
Sections 8 and 9 of the Ohio Constitution is controlling, and there is no need to
consider whether the amendments enacted by H.B. 463 apply.
Conclusion
{¶ 39} “[T]he public is not under the illusion that we are infallible. [There
is] little harm in admitting that we made a mistake * * *.” Dickerson v. United
States, 530 U.S. 428, 464, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (Scalia, J.,
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dissenting). But recognizing an error in a prior decision is only the first step; sooner
or later, we also have to rectify it. As United States Supreme Court Justice Antonin
Scalia explained,
the respect accorded prior decisions increases, rather than decreases,
with their antiquity, as the society adjusts itself to their existence,
and the surrounding law becomes premised upon their validity. The
freshness of error not only deprives it of the respect to which long-
established practice is entitled, but also counsels that the opportunity
of correction be seized at once, before state and federal laws and
practices have been adjusted to embody it.
South Carolina v. Gathers, 490 U.S. 805, 824, 109 S.Ct. 2207, 104 L.Ed.2d 876
(1989) (Scalia, J., dissenting). We therefore should overrule bad precedent at the
earliest opportunity to avoid detrimental reliance on it. This is especially true when
the bad precedent resulted from inadvertence and runs counter to the plain language
of the Ohio Constitution and almost a century of settled caselaw construing it.
{¶ 40} This case brings us to that crossroads, because it is now apparent that
there are two irreconcilable lines of case authority interpreting the Ohio
Constitution’s procedure for amending a municipal city charter. One line of
authority dates from 1927 and holds that Article XVIII, Section 9 of the Ohio
Constitution governs the amendment of a municipal charter. The second line of
authority began in 2015 and applies caselaw construing Article II, Section 1f of the
Ohio Constitution, pertaining to the right of initiative, as if that provision were the
constitutional authority for amending a charter. Rather than resolve the confusion
in our law, the majority preserves it for another day.
{¶ 41} Contrary to statements in our recent decisions, Article XVIII,
Section 9 of the Ohio Constitution—and not Article II, Section 1f—sets forth the
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specific procedure for amending a municipal charter and requires a municipality’s
legislative body, upon submission of a sufficient petition, to pass an ordinance in
order to place a proposed charter amendment on the ballot. Because there is no
evidence here that the Toledo city council passed such an ordinance, the Lucas
County Board of Elections was ultimately correct in refusing to place the charter
amendment on the ballot for the November 2018 election, and relators have failed
to establish that they have a clear legal right to issuance of a writ of mandamus
against the board of elections.
{¶ 42} For these reasons, I concur in judgment only.
O’DONNELL and DEWINE, JJ., concur in the foregoing opinion.
_________________
FISCHER, J., dissenting.
{¶ 43} I respectfully dissent and would hold that portions of 2016 Sub.H.B.
No. 463 (“H.B. 463”) are unconstitutional for the reasons stated in my separate
opinion in State ex rel. Khumprakob v. Mahoning Cty. Bd. of Elections, ___ Ohio
St.3d ___, 2018-Ohio-1602, ___ N.E.3d ____, ¶ 42 (Fischer, J., concurring in
judgment only).
I. The Constitutionality of R.C. 3501.11(K) Is Ripe for Review
{¶ 44} As I have previously discussed, I believe that R.C. 3501.11(K)
contains language raising separation-of-powers concerns. See, e.g., State ex rel.
Bolzenius v. Preisse, ___ Ohio St.3d ___, 2018-Ohio-3708, ___ N.E.3d ____, ¶ 24
(Fischer, J., dissenting). In the instant case, the parties directly argue the
constitutionality of R.C. 3501.11(K)(1), and it is high time that this court addresses
those arguments, which it has failed to do on multiple occasions. See State ex rel.
Flak v. Betras, 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, ¶ 17
(“Because the matter may be properly resolved under our pre–H.B. 463 caselaw,
we leave consideration of the constitutionality of the new enactment for another
day”); Bolzenius at ¶ 14 (“Because we have already found that the board had the
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authority to exclude the proposal from the ballot under our pre–H.B. 463 caselaw,
we need not reach the constitutionality of H.B. 463 in this case”).
II. The Court Could Interpret R.C. 3501.11(K) in a Manner that Does
Not Violate the Separation-of-Powers Doctrine
{¶ 45} In this case, relators, Bryan Twitchell, Julian C. Mack, and Sean M.
Nestor, argue that the Board of Election’s action violates the separation-of-powers
doctrine and that this court cannot allow the General Assembly to transfer a “take-
no-prisoners veto power” from the judicial branch to the executive branch.
{¶ 46} “Courts must liberally construe statutes in order to avoid
constitutional infirmities.” State ex rel. Thompson v. Spon, 83 Ohio St.3d 551, 555,
700 N.E.2d 1281 (1998), citing State ex rel. McGinty v. Cleveland City School Dist.
Bd. of Edn., 81 Ohio St.3d 283, 288, 690 N.E.2d 1273 (1998). Theoretically, the
court need not go so far as to find the statute unconstitutional. It is possible that
R.C. 3501.11(K) could be found constitutional by applying a nondeferential
standard of review to those determinations made pursuant to the statute by the board
of elections. We already use a nondeferential standard in other areas of law when
analyzing a purely legal question.
{¶ 47} In a mandamus case such as this, we review an election official’s
decision to exclude a ballot measure from the ballot for an abuse of discretion. See
State ex rel. Walker v. Husted, 144 Ohio St.3d 361, 2015-Ohio-3749, 43 N.E.3d
419; State ex rel. Coover v. Husted, 148 Ohio St.3d 332, 2016-Ohio-5794, 70
N.E.3d 587. In this case, the majority determines that the board of elections did not
abuse its discretion when it rejected the ballot measure on the grounds that the
proposed amendment to the city charter created a new cause of action and conferred
jurisdiction on the common pleas court to hear that new cause of action. We have
long held, however, that we review questions of law de novo. See In re J.V., 134
Ohio St.3d 1, 2012-Ohio-4961, 979 N.E.2d 1203, ¶ 3.
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January Term, 2018
{¶ 48} We have applied this de novo standard of review in cases in which
we review legal determinations made by executive agencies. For example, in cases
in which we review decisions made by the Board of Tax Appeals (“BTA”), we
consider legal issues de novo. Akron City School Dist. Bd. of Edn. v. Summit Cty.
Bd. of Revision, 139 Ohio St.3d 92, 2014-Ohio-1588, 9 N.E.3d 1004, ¶ 10-11. We
“will not hesitate to reverse a BTA decision that is based on an incorrect legal
conclusion.” Gahanna-Jefferson Local Schools Dist. Bd. of Edn. v. Zaino, 93 Ohio
St.3d 231, 232, 754 N.E.2d 789 (2001). In these and many similar cases, we have
implicitly accepted that the BTA’s initial determination of a purely legal question
does not violate the separation-of-powers doctrine.
{¶ 49} I accordingly encourage the court to consider whether we should
apply a de novo standard of review when reviewing a legal determination made by
a board of elections pursuant to R.C. 3501.11(K).
III. Conclusion
{¶ 50} Thus, although I dissent in this case, I believe there may be common
ground upon which this court can come to a consensus in the future regarding the
constitutional issue that is presented, but left unresolved, in this case.
_________________
Terry J. Lodge and Jensen Silvis, for relators.
Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,
Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for
respondents.
Chad A. Endsley, Leah F. Curtis, and Amy M. Milam, urging denial of the
writ for amici curiae Ohio Farm Bureau Federation and Lucas County Farm Bureau.
Barrett, Easterday, Cunningham & Eselgroth, L.L.P., David C. Barrett Jr.,
Carolyn Eselgroth, and Amanda Stacy Hartman, urging denial of the writ for amici
curiae Ohio Soybean Association, Ohio Corn & Wheat Growers Association, Ohio
Poultry Association, Ohio Cattlemen’s Association, Ohio Dairy Producers
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Association, Ohio Pork Council, Ohio Sheep Improvement Association, and Ohio
Agribusiness Association.
Porter, Wright, Morris & Arthur, L.L.P., and L. Bradfield Hughes, urging
denial of the writ for amici curiae Affiliated Construction Trades Ohio Foundation,
Ohio Chamber of Commerce, Ohio Oil and Gas Association, Ohio Chemistry
Technology Council, and American Petroleum Institute.
_________________
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