State ex rel. Maxcy v. Saferin (Slip Opinion)

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

ex rel. Maxcy v. Saferin, Slip Opinion No. 2018-Ohio-4035.]

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-4035

STATE EX REL. MAXCY 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. Maxcy v. Saferin, Slip Opinion No.

2018-Ohio-4035.]

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

proposed charter amendment on the ballot for the November 2018 ballot—

Article XVIII, Sections 8 and 9 of the Ohio Constitution require a municipal

legislative authority to submit a proposed charter amendment to the

electors by ordinance—Because city council did not enact an ordinance

submitting the proposed amendment to the board of elections, relators did

not have a clear legal right to have the board of elections place the

proposed amendment on the ballot—Writ denied.

(No. 2018-1242—Submitted September 25, 2018—Decided October 4, 2018.)

IN MANDAMUS.

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SUPREME COURT OF OHIO

KENNEDY, J.

{¶ 1} In this expedited election case, relators, Rebecca C.S. Maxcy, David

Ball, Sandy Bashaw, and Sean M. Nestor, seek a writ of mandamus to compel

respondents, the Lucas County Board of Elections and its members, Bruce Saferin,

Brenda Hill, Joshua Hughes, and David Karmol, to place a proposed charter

amendment on the November 6, 2018 general-election ballot. Because the

submission of the proposed charter amendment to the board of elections did not

follow the specific procedure outlined in Article XVIII, Sections 8 and 9 of the

Ohio Constitution—which require the legislative body of the municipality to pass

an ordinance instructing the board of elections to place the proposed amendment

on the ballot upon submission of a sufficient petition—we deny the writ.

BACKGROUND

{¶ 2} On August 7, 2018, relators submitted part-petitions in support of a

proposed amendment to the Toledo city charter. Titled “Keep the Jail in Downtown

Toledo,” the proposed amendment would

(1) require that any new or renovated jail, correctional facility, prison, justice

complex, correctional treatment facility, detention center, work release, “or

other building that houses criminals or accused criminals, within the City of

Toledo limits,” be located in the Downtown Overlay District, as defined in the

Toledo Municipal Code;

(2) declare it unlawful for any corporation or government to violate the rights

secured by the amendment;

(3) declare that any corporation or government that violates any provision of the

amendment “shall be sentenced to pay the maximum fine allowable under State

law for that violation”; and

(4) authorize the city of Toledo, or any resident of the city, to enforce the

prohibitions of the amendment through an action in the Lucas County Court of

Common Pleas, and to recover all costs of litigation, including attorney fees.

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{¶ 3} The petition’s first page contained the following language:

To the Council, the legislative authority of the City of

Toledo, Ohio:

We, the undersigned, qualified electors of the City of

Toledo, Ohio respectfully petition the legislative authority to

forthwith provide by Ordinance, for the submission to the electors

of the City of Toledo, the following proposed amendment to the

Charter of the City of Toledo * * *.

(Boldface sic.)

{¶ 4} On August 13, 2018, the Lucas County Board of Elections verified to

the clerk of the Toledo city council that relators had submitted a sufficient number

of petition signatures to qualify the measure for the ballot. Relators allege that

“[o]n or about August 14, 2018, the Clerk of Toledo City Council, pursuant to his

responsibility under § 5 of the Toledo Municipal Charter, instructed the [board] to

put the Proposed Amendment on the November 6, 2018 ballot for a public vote.”

Section 5 of the city charter reads:

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.

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{¶ 5} On August 28, 2018, the board voted four to zero to refuse to place

the charter amendment on the ballot on the ground that it contained provisions

beyond the authority of the city to enact by initiative.

{¶ 6} On August 31, relators filed this action seeking a writ of mandamus

to compel the board to place the proposed charter amendment on the November 6,

2018 ballot. The relators allege that

the [board] engaged in unconstitutional pre-election review of the

substance of the Proposed Charter Amendment and voted

unanimously to reject the Proposed Amendment from the ballot

ostensibly because the Proposed Charter Amendment contains

provisions beyond the power of the City of Toledo to enact and that

the Ohio Supreme Court “requires” the Proposed Amendment to be

stricken.

{¶ 7} Respondents admitted in their answer that the board “examine[d] the

proposed initiative–the Downtown Jail Initiative–in accordance with its obligations

under Title 35 of the Ohio Revised Code and as set forth by this Court in State ex

rel. Flak v. Betras, 152 Ohio St.3d 244, 95 N.E.3d 329 (2017).”

{¶ 8} The parties have filed briefs and evidence in accordance with the

calendar for expedited election cases in S.Ct.Prac.R. 12.08.

LAW AND ANALYSIS

The amendment of a city charter is controlled by Article XVIII, Sections 8 and 9

of the Ohio Constitution, not Article II, Section 1f

{¶ 9} The right to amend a municipal charter differs from the right of

initiative to enact a municipal ordinance, and the two rights are addressed in

separate articles of the Ohio Constitution. The procedure to amend a municipal

charter—a matter concerning the structure of a municipal government—is set forth

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in Article XVIII, Sections 8 and 9 of the Ohio Constitution. In contrast, Article II

deals generally with the legislative power, and Section 1f of Article II reserves the

right of initiative to the people of each municipality and states that “such powers

shall be exercised in the manner now or hereafter provided by law.”

{¶ 10} Article XVIII, Section 9 is a specific provision; Article II, Section 1f

is general. “Special constitutional provisions relating to a subject will control

general provisions in which, but for such special provisions, the subject might be

regarded as embraced.” Akron v. Roth, 88 Ohio St. 456, 461, 103 N.E. 465 (1913).

Article XVIII, Sections 7, 8, and 9 provide specific procedures for amending a

charter, while Article II, Section 1f does not. If the framers of the Ohio Constitution

had intended Article II, Section 1f to control the amendment of a municipal charter,

there would have been no need to provide a separate constitutional provision

specifically addressing the procedure for amending a municipal charter. To hold

that Article II, Section 1f controls would be to render Article XVIII, Section 9

superfluous.

{¶ 11} Moreover, because Article II, Section 1f states that the power of

initiative “shall be exercised in the manner now or hereafter provided by law,”

municipalities could alter the requirements set forth in Article XVIII, Section 9 for

the amendment of a charter. For instance, Section 75, Toledo City Charter, states

that petitions for ordinances proposed by initiative must contain signatures “equal

in number to twelve percent (12%) of the total number of votes cast for all

candidates for Mayor at the most recent general municipal election at which the

Mayor was elected.” But this court has held on multiple occasions that Article

XVIII, Section 9, read in pari materia with Article XVIII, Section 14, provides that

“the number of valid part-petition signatures necessary to establish a right to the

placement of a proposed amendment of a municipal charter before the voters * * *

is ten percent of the electors of the municipality based upon the total number of

votes cast at the last preceding general municipal election.” State ex rel. Huebner

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v. W. Jefferson Village Council, 75 Ohio St.3d 381, 384, 662 N.E.2d 339 (1995).

See State ex rel. Wilen v. Kent, 144 Ohio St.3d 121, 2015-Ohio-3763, 41 N.E.3d

390, ¶ 5; 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, ¶ 24. “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.” State ex rel. Twitchell v. Saferin, ___ Ohio St.3d ___, 2018-Ohio-

3829, ___ N.E.3d ____, ¶ 32 (Kennedy, J., concurring in judgment only).

{¶ 12} Despite the fact that relators seek to amend the Toledo city charter,

implicating Article XVIII, Sections 8 and 9, they present arguments as if they are

exercising their right to initiative under Article II, Section 1f. Related to that

assertion is relators’ argument that 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 “to determine whether the petition falls within the scope of authority to

enact via initiative,” violates the separation-of-powers doctrine. Those arguments

are no doubt tied to this court’s recent jurisprudence regarding the amendment of

municipal charters.

{¶ 13} We acknowledge that the board relied on our recent decision in Flak,

152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d 329, which confused the law by

stating that a county board of elections has authority to determine whether a charter

amendment exceeds the scope of authority to enact by initiative. Flak failed to

recognize that the people’s authority to amend a municipal charter arises only from

Article XVIII, Section 9, not from Article II, Section 1f, and that caselaw construing

the right of initiative afforded by Article II, Section 1f does not apply to the review

of a proposed charter amendment. In Flak, we mistakenly conflated our

jurisprudence regarding the amendment of municipal charters under Article XVIII,

Section 9 of the Ohio Constitution with our jurisprudence regarding citizens’

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exercise of the right to initiative under Article II, Section 1f. See Twitchell at ¶ 17

(Kennedy, J., concurring in judgment only). As we discuss below, boards of

elections have no authority to review the substance of a proposed municipal-charter

amendment; therefore, Flak should no longer be relied on as authority to the

contrary. And because R.C. 3501.11(K)(2) expressly applies to initiative petitions

and the amendment of county charters but does not mention the amendment of

municipal charters, its constitutionality should be addressed in a case involving a

county charter or a municipal ordinance proposed by initiative.

{¶ 14} The dissent frets that we should not apply constitutional provisions

specifically addressing the amendment of a municipal charter to a case involving a

proposed amendment to a municipal charter, because the parties have not argued

that Article XVIII, Section 9 and caselaw construing that provision are controlling.

But the parties can be forgiven for failing to brief this issue, because this court’s

short line of cases, beginning with Flak, mistakenly diverted from what had been

settled law. Our inadvertence is not entitled to the protection of stare decisis. And

while briefing would be helpful, it is impractical or impossible here given the

compressed timeframe of an expedited election case. 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 boards of elections to continue to deny ballot

access based on this court’s erroneous statement of law rather than simply return to

our near-century of jurisprudence regarding how to address proposals for the

amendment of municipal charters. See, e.g., State ex rel. Hinchliffe v. Gibbons, 116

Ohio St. 390, 395, 156 N.E. 455 (1927). If the dissent were able to present a

genuine question of how Article XVIII, Sections 8 and 9 apply rather than merely

attempt to sow confusion to justify reaching a constitutional issue that is not before

us, we would be hesitant to proceed without briefing. But here, we stand on the

rock of our case precedent providing the rule of decision.

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Article XVIII, Sections 8 and 9 of the Ohio Constitution require the legislative

authority to submit a proposed charter amendment to the electors by ordinance

{¶ 15} Relators seek to amend the city charter of Toledo. Article XVIII,

Section 7 of the Ohio Constitution authorizes a municipality to “frame and adopt

or amend” a charter form of government. Article XVIII, Section 9 sets forth the

specific procedure for amending a municipal charter and provides:

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.

{¶ 16} This court has consistently recognized that petitions containing

signatures from “ten per centum of the electors of the municipality setting forth any

such proposed amendment,” Article XVIII, Section 9, Ohio Constitution, triggers

the duty of the legislative authority to submit the proposed charter amendment to

the electorate. Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, at

¶ 22; State ex rel. Commt. for Charter Amendment Petition v. Avon, 81 Ohio St.3d

590, 592, 693 N.E.2d 205 (1998); Morris v. Macedonia City Council, 71 Ohio St.3d

52, 54, 641 N.E.2d 1075 (1994). Contrary to the dissent’s tortured, nonsensical

reading of the provision, Article XVIII, Section 9 has always been read to mean

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that there are two methods to put a proposed charter amendment on the ballot—by

a two-thirds vote of the legislative authority and by petitions signed by 10 percent

of the electorate. This is both the literal interpretation and the only plausible

interpretation, and it is telling that the only authority mustered by the dissent is

caselaw directly contradicting its position.

{¶ 17} Article XVIII, Section 9 requires that charter amendments are

submitted to the electors in the same manner as in Article XVIII, Section 8, which

provides for submitting to the electors the question whether a charter commission

should be chosen to frame a charter. 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.’ ” Although the dissent expresses manufactured

confusion over the extent of Section 8’s application to charter amendments, this

court has been clear as to which procedural requirements from Section 8 apply to

charter amendments under Section 9:

Article XVIII, Section 8 of the Ohio Constitution imposes

two relevant time requirements on municipal legislatures when they

receive petitions for charter amendments.

(1) If the petition contains a sufficient number of valid

signatures, the legislature must “forthwith” provide by ordinance for

the submission of the proposed amendment to the electors.

(2) The ordinance must require that the matter be submitted

at the next regular municipal election if one will occur no more than

120 days, and no less than 60 days, after passage of the ordinance.

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(Footnote omitted.) State ex rel. Commt. for Charter Amendment Petition v. Maple

Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 3-5.

{¶ 18} “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.’ ” State ex rel. Commt. for the Charter Amendment, City Trash Collection v.

Westlake at ¶ 31, quoting Billington v. Cotner, 25 Ohio St.2d 140, 146, 267 N.E.2d

410 (1971). 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.)” Westlake at ¶ 23, quoting State ex rel. Commt. for Charter

Amendment Petition v. Avon, 81 Ohio St.3d 590, 592, 693 N.E.2d 205 (1998).

{¶ 19} And once the legislative body of the municipality passes an

ordinance placing the proposed charter amendment on the ballot, the duty of the

board is to simply add the proposed charter amendment to the ballot. 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).

Relators failed to allege or prove that Toledo city council passed an ordinance

submitting the proposed charter amendment to the electors

{¶ 20} Relators focus this case on the role of the board in refusing to put the

charter amendment on the ballot. But this case turns not on the action of the board,

but the inaction of city council, so the board’s reasoning in reaching its decision is

not at issue; without an ordinance instructing the board to place the proposed

amendment on the ballot, the board lacked the authority to add the proposed charter

amendment to the ballot. The legislative authority has the duty—enforceable

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through a mandamus action—to enact an ordinance to place the matter on the ballot.

Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 24.

{¶ 21} In this case, there is neither allegation nor evidence that the city

council passed an ordinance instructing the board to place the proposed amendment

on the ballot. Rather, in an attempt to comply with the procedure set forth in Section

5 of the Toledo City Charter, the clerk of the city council submitted the petition

directly to the board. But that provision conflicts with the specific procedure set

forth in the Constitution requiring the passage of an ordinance by the legislative

authority, and in such a conflict, the constitution prevails.

When the amendment provisions of a charter conflict with

constitutional charter amendment provisions, the Constitution

prevails because “[t]he paramount authority must prevail over the

subordinate authority.” State ex rel. Hinchliffe v. Gibbons (1927),

116 Ohio St. 390, 395, 156 N.E. 455; State ex rel. Semik v.

Cuyahoga Cty. Bd. of Elections (1993), 67 Ohio St.3d 334, 335-336,

617 N.E.2d 1120; [State ex rel. Huebner v. W. Jefferson Village

Council], 75 Ohio St.3d [381] 383-384, 662 N.E.2d 339 [(1996)].

Westlake, 97 Ohio St.3d 100, 2002-Ohio-5302, 776 N.E.2d 1041, at ¶ 32.

{¶ 22} In their petition for an amendment of the charter, relators properly

called on the “legislative authority to forthwith provide by Ordinance, for the

submission to the electors of the City of Toledo, the following proposed amendment

to the Charter of the City of Toledo.” The city council failed to fulfill that duty in

the first instance, but relators have not named it as a party in this mandamus action

or sought a writ compelling it to comply with that duty. And the board of elections

had no duty to place the proposed charter amendment on the ballot unless and until

the city council passed an ordinance instructing the board to do so.

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{¶ 23} Accordingly, the board of elections’ decision not to place the

proposed charter amendment on the ballot was correct; its reasoning was not.

Relators are not entitled to relief in mandamus

{¶ 24} 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 a respondent to provide it, 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. Article XVIII, Sections 8

and 9 of the Ohio Constitution require the legislative authority to submit a proposed

charter amendment to the electors by ordinance. Because the Toledo city council

failed to pass an ordinance submitting the proposed charter amendment in this case

to the electors, the Lucas County Board of Elections was without authority to

exercise even its ministerial duty to place the proposed amendment on the ballot.

Because the proposed charter amendment was never properly before the board, we

cannot say that relators had a clear legal right to their requested relief or that the

board had a clear duty to provide it. Therefore, mandamus does not lie against the

board, and relators have not sought a writ compelling the city council to submit the

proposed charter amendment to the electors by ordinance.

{¶ 25} Accordingly, we deny the writ.

Writ denied.

O’DONNELL, FRENCH, and DEWINE, JJ., concur.

FISCHER, J., dissents, with an opinion joined by O’CONNOR, C.J., and

DEGENARO, J.

_________________

FISCHER, J., dissenting.

{¶ 26} I respectfully dissent. I would address the constitutional issue

actually raised, briefed, and argued by the parties in this case, and I would hold that

a limited portion of 2016 Sub.H.B. No. 463 (“H.B. 463”) is unconstitutional for the

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reasons stated in my separate opinion in State ex rel. Flak v. Betras, 152 Ohio St.3d

244, 2017-Ohio-8109, 95 N.E.3d 329, ¶ 54 (Fischer, J., dissenting).

{¶ 27} The majority opinion may in many ways undermine the rights that

are guaranteed to Ohioans under their own state constitution. First, the majority

opinion applies a provision of the state constitution that may address only referenda

in municipalities (and thus is potentially irrelevant to this case) to, in effect,

eliminate the right of initiative for citizens of a municipality, even though that right

is specifically reserved to the electors. Second, the majority opinion further

confuses the law involving Ohioans’ state constitutional right of initiative and the

roles of and relationships among boards of elections, municipalities, and electors.

Third, the majority opinion could undermine state constitutional provisions

invoking separation of powers and judicial review and authority, as well as free

speech. And it is troubling that the majority opinion might undermine all these

constitutional protections for the citizens of Ohio by using a legal theory that was

never briefed, never argued, and never even mentioned in any of the filings in this

case.

{¶ 28} This court has previously sua sponte ordered additional briefing on

an issue that came to light after the initial briefing was complete. See, e.g., Dodd

v. Croskey, 140 Ohio St.3d 1406, 2014-Ohio-3708, 14 N.E.3d 1052. The court

could order additional briefing on the issue, which is raised for the first time in the

majority opinion. The court could also set an expedited timeline for such briefing.

The court has not done so. The majority opinion thus decides an issue of great

constitutional importance without the benefit of briefing or argument. The majority

actively takes an unrequested action that could well deny the people of Ohio some

of their unique and coveted state constitutional rights.

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I. The Proposed Amendment Was Properly Submitted to the Board of

Elections

{¶ 29} The issue whether Article XVIII, Sections 8 and 9 of the Ohio

Constitution control in this case has not been raised or briefed by the parties. In

fact, those sections of the Ohio Constitution are not mentioned in any of the briefs

or filings. Because issues regarding Article XVIII, Sections 8 and 9 of the Ohio

Constitution were not raised or briefed, we should be hesitant to decide this case

based on those sections, for justice is far better served when we have had the benefit

of briefing and argument before we make a final determination. State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 19; 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). Furthermore,

“ ‘it is not generally the proper role of this court to develop a party’s arguments.’ ”

Snodgrass v. Testa, 145 Ohio St.3d 418, 2015-Ohio-5364, 50 N.E.3d 475, ¶ 31,

quoting In re Application of Columbus S. Power Co., 129 Ohio St.3d 271, 2011-

Ohio-2638, 951 N.E.2d 751, ¶ 19. As more fully explained below, by deciding this

case on a question that was not briefed, the majority opinion creates analytical

problems in resolving this case. Hence, the court should not countenance this

action.

{¶ 30} Assuming arguendo that a question regarding Article XVIII,

Sections 8 and 9 is properly before us, my review of those provisions casts

significant doubt upon the majority opinion’s conclusion. Article II, Section 1(f)

of the Ohio Constitution reserves the initiative and referendum powers to the people

of each municipality on questions within the legislative control of municipalities.

The Ohio Constitution clearly distinguishes the power of initiative from the power

of referendum. See Article II, Section 1(g). The initiative power—the “first” power

reserved to the people in Article II—is the power of the people to propose a

constitutional amendment or law directly to the electorate. See Article II, Sections

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1(a) and 1(b), Ohio Constitution. The referendum power—the “second” power

reserved to the people in Article II—is the power of the people to order that a law

passed by a legislative body be submitted for electors’ approval or rejection. See

Article II, Section 1(c), Ohio Constitution.

{¶ 31} In expressly reserving both the power of initiative and the power of

referendum to the people of each municipality, the Ohio Constitution emphasizes

that they are distinct actions. But Article II, Section 1(f) does not limit its

reservation of the power of initiative solely to the power to enact municipal

ordinances. Thus, unlike the majority opinion, I read Article II, Section 1(f) as

applying to all questions that may be controlled by legislative action, including the

ability to propose charter amendments.

{¶ 32} The distinction between the power of initiative and the power of

referendum is important to keep in mind when reading Article XVIII, Sections 8

and 9.

{¶ 33} Given the lack of briefing on the question of how to interpret the two

sections, we are unable to give full and fair consideration to how they may interact.

However, my analysis of the issue reveals more than one plausible reading of those

provisions. And the majority opinion’s interpretation of those sections could

effectively eliminate the power of the people to amend municipal charters via

initiative.

A. Article XVIII, Section 9 May Apply Only to Referenda

{¶ 34} I disagree with the majority opinion’s conclusion that there is only

one plausible reading of Article XVIII, Section 9. The majority opinion relies on

decisions in which this court has interpreted Article XVIII, Section 9 to provide

two methods to put a proposed charter amendment on the ballot; however, I do not

find these cases to be either conclusive or persuasive.

{¶ 35} Article XVIII, Section 9 provides that charter amendments “may be

submitted to the electors of a municipality by a two-thirds vote of the legislative

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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.” (Emphasis added.) If the word “and” in this provision

is interpreted literally, the process for amending a municipal charter set forth in

Section 9 would always be premised upon legislative action. Under this literal

reading, in order for an amendment to a charter to be submitted to the electorate,

the amendment first would need to be approved by a two-thirds vote of the members

of the municipality’s legislative authority. Only if the legislative authority

approves the amendment by a two-thirds majority would it be submitted to the

electors, upon 10 percent of the electors signing petitions to put the amendment on

the ballot.

{¶ 36} But this literal interpretation of Section 9 as allowing the voters to

accept or reject the amendment only after the legislative authority has already acted

would create only the right to referendum. Indeed, Section 9 specifically describes

this process of approval as a “referendum vote.” Article XVIII, Section 9 (“A copy

of said charter or any amendment thereto shall be certified to the secretary of state,

within thirty days after adoption by a referendum vote”).

{¶ 37} If one adopts this literal reading, neither Section 8 nor Section 9 of

Article XVIII addresses the power of the people to amend a municipal charter by

initiative. Section 9 specifically provides that amendments “may be submitted to

the electors of a municipality by a two-thirds vote of the legislative authority

thereof.” (Emphasis added.) The use of the permissive “may,” rather than the

mandatory “shall,” indicates that other avenues may exist for amending municipal

charters. Pursuant to a literal reading of the word “and,” Sections 8 and Section 9

set forth processes pertaining only to the power of referendum, not to the power of

initiative, and thus those sections are irrelevant to this case, which involves an

initiative petition. Therefore, under this literal reading of those provisions, relators’

petition was properly submitted to the board of elections.

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{¶ 38} The majority opinion rejects this literal interpretation, deeming it

implausible based on this court’s previous decisions; however, adopting the

majority opinion’s reasoning either requires this court to insert the phrase “there

are two methods to put a proposed charter amendment on the ballot” as the opening

clause of Article XVIII, Section 9, or to replace the word “and” with the word “or.”

The power to amend the Constitution is reserved to the people of Ohio. Article II,

Section 1 of the Ohio Constitution. This court must therefore refrain from adding

words to the Constitution or changing the words already contained in it. See State

ex rel. Ganoom v. Franklin Cty. Bd. of Elections, 148 Ohio St.3d 339, 2016-Ohio-

5864, 70 N.E.3d 592, ¶ 24 (O’Connor, C.J., concurring).

{¶ 39} I also do not agree that this literal interpretation of Article XVIII,

Section 9 would render it superfluous. Under this literal reading, Article II, Section

1(f) reserves the right to amend municipal charters by initiative. This literal reading

would give full effect to Article XVIII, Section 9, for that provision specifically

outlines the procedure to use when municipal charters are amended through the

separate power of referendum. Holding that Article II, Section 1(f) reserves the

right to amend by initiative does not diminish the effect of Article XVIII, Section

9 on the procedure for amending by referendum.

{¶ 40} While it is possible that the majority opinion’s interpretation is

correct, the majority opinion’s reasoning is unpersuasive. I am quite hesitant to

reach the majority opinion’s conclusion without any briefing and this court’s full

consideration of the issue.

B. Article XVIII, Section 9 May Apply to Both Initiatives and Referenda

but Does Not Require Initiative Petitions to Be Submitted by Municipal

Ordinance

{¶ 41} A second plausible reading of Article XVIII, Section 9, treating

“and” as the functional equivalent of “or,” would provide that charter amendments

“may be submitted to the electors of a municipality by a two-thirds vote of the

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legislative authority thereof, [or], 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.” Under this analysis, Article XVIII,

Section 9 would allow the amendment of city charters by either initiative or

referendum, thus honoring Article II, Section 1(f)’s reservation of both initiative

and referendum powers to the people of a municipality.

{¶ 42} Pursuant to this reading, a charter amendment would need to be

submitted to the electors by a legislative authority when ten percent of the electors

have signed petitions in its favor. It is unclear what constitutes submission by a

legislative authority. The majority opinion would require the legislative authority

to enact a municipal ordinance. Article XVIII, Section 9, however, contains no

language requiring that an ordinance be enacted.

{¶ 43} Reliance upon our cases requiring submission by ordinance seems

dubious, at best. State ex rel. Hinchliffe v. Gibbons, 116 Ohio St. 390, 156 N.E.

455 (1927), for instance, was premised upon the wording of Cleveland’s city

charter, which specifically required submission by ordinance. Id. at 391. In State

ex rel. Blackwell v. Bachrach, 166 Ohio St. 301, 143 N.E.2d 127 (1957), we stated:

The very plain wording of Section 9, Article XVIII, places

the duty to submit a proposed amendment to the electors upon the

council and the council alone. It provides further that the

submission shall be governed by the requirement of Section 8,

Article XVIII, that the council shall provide by ordinance for the

submission to the electors. It is clear that once a petition for a charter

amendment containing sufficient valid signatures is filed with the

council, the only body or person thereafter charged with any duty of

submitting the question to the electors is the city council.

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(Emphasis deleted.) Id. at 306.

{¶ 44} Despite the assertion in Blackwell to the contrary, however, Section

9 does not require that submission occur by ordinance. The provision does state

that “[t]he 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.” But Section 9 cannot be subservient to the entirety of Section

8; otherwise, an amendment could not be submitted until 15 people were elected to

frame a new charter, those 15 people actually framed a new charter, and the new

charter was submitted and approved by the voters. Instead, one could read the

phrase “shall be governed by the requirements of Section 8 as to the submission of

the question of choosing a charter commission” as meaning that only the procedural

requirements for submitting the question of choosing a charter commission would

apply to amending the charter, specifically, that the amendment should “be

submitted to the electors at the next regular municipal election if one shall occur

not less than sixty nor more than one hundred and twenty days” after submission

of the initiative petition. Otherwise, the legislative authority “shall provide for the

submission of the [amendment] at a special election to be called and held within

the time aforesaid.”

{¶ 45} If the court were to adopt this interpretation of Article XIII, Section

9, it would find that the submission of the initiative petition to the board of elections

in this case was proper. Relators’ initial request for city council to pass an

ordinance presumably relied upon a questionable line of decisions that were based

upon the wording of certain city charters. Instead of passing an ordinance,

however, upon receiving the initiative petition, the clerk of Toledo’s city council, a

representative of Toledo’s legislative authority, instructed the board of elections to

put the proposed amendment on the ballot. This action complied with my second

plausible reading of Article XVIII, Section 9 of the Ohio Constitution, and it also

followed the specific instruction of Section 5, Toledo City Charter, which does not

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require passage of an ordinance before an initiative petition is submitted to the

board of elections (unlike the Cleveland charter at issue in Hinchliffe). Under this

interpretation of Article XVIII, Section 9, Toledo’s municipal charter is not in

conflict with the Ohio Constitution.

{¶ 46} Significantly, at least some of the decisions relied upon by the

majority opinion that require a city council to pass an ordinance before an initiative

petition to amend a city charter may be placed on the ballot arise under different

charter requirements than Toledo has. Indeed, some of the cases cited in the

majority opinion show that the particular city charters at issue contained language

requiring city-council action before an initiative petition could be placed on the

ballot. Hinchliffe, 116 Ohio St. at 391, 156 N.E. 455; 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, ¶ 25-26; State ex rel. Commt. for Charter Amendment

Petition v. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 18.

In other cases cited in the majority opinion, it is not clear whether city-council

action was required by the city charter at issue in the case. See, e.g., Morris v.

Macedonia City Council, 71 Ohio St.3d 52, 641 N.E.2d 1075 (1994); State ex rel.

Commt. for Charter Amendment Petition v. Avon, 81 Ohio St.3d 590, 693 N.E.2d

205 (1998). Given the factual distinctions either present or possibly present in these

cases, we should be cautious about applying those decisions in this case without

briefing.

{¶ 47} I reiterate that I make no ultimate decision on the proper

interpretation of Article II, Section 1(f) and Article XVIII, Sections 8 and 9 today.

Instead, given the lack of briefing, the parties’ acceptance of the statutory authority

of the board of elections to have received the proposed amendment, and the

plausible readings of the Ohio Constitution permitting the submission of the

proposed amendment to the board of elections, I would not treat Article XVIII as a

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barrier to this court addressing the separation-of-powers issue presented to us by

the parties.

{¶ 48} I would also caution that the majority opinion’s interpretation of

Article XVIII could limit the initiative power reserved to the people of each

municipality in Article II, Section 1(f). This decision could lead to an interpretation

that all actions to amend a municipal charter—even citizen initiatives—must first

be approved by “a two-thirds vote” of the legislative authority of the municipality,

thus creating a situation in which municipal legislative authorities may have veto

power over any proposed initiatives to amend a charter.

{¶ 49} Pursuant to a literal interpretation of the language of Article XVIII,

Section 9, a municipal legislative authority is under no obligation to submit to the

board of elections every charter amendment submitted to it. Because Section 9

requires a two-thirds vote of that legislative body in order for a proposed

amendment to be advanced, the majority opinion’s reading of the Ohio Constitution

could allow a perfectly reasonable and lawful amendment to be kept from the ballot

solely because a minority of the municipality’s legislative authority disagrees with

it. Such a situation, in which a legislative authority is given unchecked authority

to prevent citizens from exercising express constitutional power, is untenable and

unconstitutional.

{¶ 50} Because Article II, Section 1(f) of the Ohio Constitution expressly

reserves the power of initiative to the people of municipalities, and because nothing

in Article XVIII expressly constrains that power, I would hold that the language of

Article XVIII, Sections 8 and 9 of the Ohio Constitution do not resolve this case or

render it unnecessary for us to consider the constitutionality of the amendments to

R.C. 3501.11 contained in H.B. 463, which was the issue that was briefed at length

by the parties and is ripe for review. This court’s delay in reaching this issue simply

creates more confusion for the citizens of Ohio.

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II. The Constitutionality of R.C. 3501.11(K) Is Ripe for Review

{¶ 51} Because relators’ petition is an initiative petition, it is subject to R.C.

3501.11, which expressly requires a board of elections to “[e]xamine each initiative

petition” (emphasis added) to determine whether it constitutes a valid exercise of

the initiative power. As I have previously discussed, R.C. 3501.11(K) contains

language raising separation-of-powers concerns. See State ex rel. Twitchell v.

Saferin, ___ Ohio St.3d ___, 2018-Ohio-3829, ___ N.E.3d ____, ¶ 44 (Fischer, J.,

dissenting). The need to address these concerns is highlighted by the frequency

with which they have been argued before us. Id. The parties actually briefed that

issue in this case.

{¶ 52} The importance of addressing those concerns is further underscored

by a recent decision by the United States District Court for the Southern District of

Ohio. That court found that R.C. 3501.11(K) allows a board of elections—part of

the executive branch—to determine disputed legal and constitutional issues, thus

potentially blocking initiatives from the ballot without providing those parties a

right to judicial review. The court then held that this procedure unreasonably

infringes on the First Amendment rights of parties aggrieved by the rejection of an

initiative petition. Schmitt v. Husted, S.D.Ohio No. 2:18-cv-966 (Sept. 19, 2018).

The federal district court further held that no legitimate state interest is protected

by a lack of appellate review. Id. Given the uncertainty regarding the

constitutionality of the amendments to R.C. 3501.11 made by H.B. 463, this court

needs to address the constitutional issues, which are squarely before us in this case.

III. Conclusion

{¶ 53} As detailed in my separate opinion in Flak, I would hold that

pursuant to State ex rel. Youngstown v. Mahoning Cty. Bd. of Elections, 144 Ohio

St.3d 239, 2015-Ohio-3761, 41 N.E.3d 1229, the board of election’s role in

processing initiative petitions does not extend to evaluating the substantive ballot-

worthiness of a proposal. Flak, 152 Ohio St.3d 244, 2017-Ohio-8109, 95 N.E.3d

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329, at ¶ 54 (Fischer, J., dissenting). Pursuant to that opinion, I would also hold

that R.C. 3501.11(K)(2) is unconstitutional, but only to the limited extent that it

incorporates R.C. 3501.38(M)(1)(a). Id.

{¶ 54} I respectfully dissent and would grant the writ of mandamus. The

board of elections has no authority under the Ohio Constitution to reject a charter

amendment on the ground that it contained provisions that were beyond the scope

of the power of referendum or initiative. That authority is reserved for the judiciary

alone.

O’CONNOR, C.J., and DEGENARO, J., concur in the foregoing opinion.

_________________

Warner Mendenhall, 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.

_________________

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