The State Ex Rel. Abernathy v. Lucas County Board of Elections.

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

ex rel. Abernathy v. Lucas Cty. Bd. of Elections, Slip Opinion No. 2019-Ohio-201.]

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. 2019-OHIO-201

THE STATE EX REL. ABERNATHY v. LUCAS COUNTY BOARD OF ELECTIONS.

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

may be cited as State ex rel. Abernathy v. Lucas Cty. Bd. of Elections, Slip

Opinion No. 2019-Ohio-201.]

Elections—Prohibition—Writ of prohibition sought to compel board of elections to

remove a proposed charter amendment from the February 26, 2019 special-

election ballot—Writ denied.

(No. 2018-1824—Submitted January 14, 2019—Decided January 23, 2019.)

IN PROHIBITION.

__________________

Per Curiam.

{¶ 1} In this expedited election case, relator, Josh Abernathy, seeks a writ

of prohibition to compel respondent, the Lucas County Board of Elections, to

remove the Lake Erie Bill of Rights (“LEBOR”),1 a proposed amendment to the

1

For an explanation of the LEBOR, see State ex rel. Twitchell v. Saferin, __ Ohio St.3d __, 2018-

Ohio-3829, __ N.E.3d __, ¶ 2 (plurality opinion).

SUPREME COURT OF OHIO

Toledo City Charter, from the February 26, 2019 special-election ballot. We deny

the writ.

Background

{¶ 2} On December 4, 2018, the Toledo City Council passed Ordinance

497-18. The ordinance declared that the clerk of council had received sufficient

petition signatures to submit the LEBOR to the voters and certified the measure to

the board of elections for placement on the February 26, 2019 special-election

ballot. Abernathy submitted to the board of elections a written protest in which he

made two arguments: (1) the LEBOR was “legally ineligible” to appear on the

ballot because its provisions exceeded the authority of the city of Toledo to enact

and (2) this court’s prior decision in State ex rel. Twitchell v. Saferin, __ Ohio St.3d

__, 2018-Ohio-3829, __ N.E.3d __ (plurality opinion), that the LEBOR was

ineligible for the ballot foreclosed its placement on the ballot under the doctrine of

res judicata.

{¶ 3} After holding a hearing on Abernathy’s protest, the board members

voted to deny the protest and place the LEBOR on the ballot. In doing so, two

board members made clear their belief that the LEBOR was “on its face

unconstitutional and unenforceable” and “beyond the authority of the City of

Toledo” but stated that they were obliged to vote to place the measure on the ballot

by this court’s recent decision in State ex rel. Maxcy v. Saferin, __ Ohio St.3d __,

2018-Ohio-4035, __ N.E.3d __.

{¶ 4} On December 26, 2018, Abernathy filed this action for a writ of

prohibition. Because the action was filed within 90 days of the February 26, 2019

special election, the case was automatically subject to an accelerated schedule for

the submission of briefs and evidence. S.Ct.Prac.R. 12.08(A)(1) and (2). The

parties have filed their briefs and evidence in accordance with that expedited

schedule. We granted Bryan Twitchell, Julian C. Mack, and Sean M. Nestor leave

to intervene on behalf of the committee in support of the LEBOR. And we received

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an amicus brief in support of Abernathy from the Ohio Farm Bureau Federation,

the Ohio Corn & Wheat Growers Association, the Ohio Pork Council, the Ohio

Soybean Association, and the Ohio Dairy Producers Association.

Legal analysis

{¶ 5} To obtain a writ of prohibition in an election case, a relator must show

that (1) the board of elections exercised quasi-judicial power, (2) the exercise of

that power was unlawful, and (3) the relator has no adequate remedy in the ordinary

course of the law. State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106

Ohio St.3d 346, 2005-Ohio-4758, 835 N.E.2d 336, ¶ 27. If all three elements are

proved, then a writ of prohibition will issue. State ex rel. Finkbeiner v. Lucas Cty.

Bd. of Elections, 122 Ohio St.3d 462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 40.

{¶ 6} Because this is an expedited election matter, the third prohibition

element is easily satisfied. Abernathy does not have an adequate remedy in the

ordinary course of the law because “given the proximity of the election, an

injunction would arguably not constitute an adequate remedy because any

‘appellate process would last well past the election.’ ” State ex rel. Thurn v.

Cuyahoga Cty. Bd. of Elections, 72 Ohio St.3d 289, 292, 649 N.E.2d 1205 (1995),

quoting State ex rel. Smart v. McKinley, 64 Ohio St.2d 5, 6, 412 N.E.2d 393 (1980);

see also State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63,

2006-Ohio-1292, 846 N.E.2d 8, ¶ 22 (holding that the relators in that case lacked

an adequate remedy “given the closeness of the election”).

{¶ 7} However, the second element necessary for relief in prohibition is not

present here because, as we recognized in Maxcy, a board of elections has no legal

authority to review the substance of a proposed charter amendment and has no

discretion to block the measure from the ballot based on an assessment of its

suitability. __ Ohio St.3d __, 2018-Ohio-4035, __ N.E.3d __, at ¶ 13, 18-19.

{¶ 8} Municipal-charter amendments are governed by Article XVIII,

Section 9 of the Ohio Constitution, which provides that charter amendments “may

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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 amendment, shall be submitted by such

legislative authority.” This constitutional language vests the municipal legislative

body with sole authority to determine whether the petition satisfies the legal

requirements for submission to the voters. “ ‘Inasmuch as the Constitution requires

the submission to be made by legislative authority, it follows that that authority

need not make the submission unless satisfied of the sufficiency of the petitions and

that all statutory requirements are fairly met.’ ” State ex rel. Semik v. Cuyahoga

Cty. Bd. of Elections, 67 Ohio St.3d 334, 335-336, 617 N.E.2d 1120 (1993), quoting

State ex rel. Hinchcliffe v. Gibbons, 116 Ohio St. 390, 395, 156 N.E. 455 (1927).

{¶ 9} Therefore, as we stated in Maxcy, once the municipal legislative body

passes an ordinance placing the proposed charter amendment on the ballot, “the

duty of the board [of elections] is to simply add the proposed charter amendment

to the ballot.” Maxcy at ¶ 19. A board of elections has no discretion to keep a

proposed charter amendment off the ballot because “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.’ ” Id., quoting Semik at 337. Once

council passed the ordinance to place the LEBOR on the ballot in accordance with

Article XVIII, Section 9 of the Ohio Constitution, the board had no power to keep

the proposed charter amendment off the ballot.

{¶ 10} Because Abernathy’s claim fails on the second element he must

satisfy to obtain a writ of prohibition, we need not address the remaining element,

whether the board’s exercise of authority was quasi-judicial. We deny Abernathy’s

request for a writ because the board’s decision to put the proposed charter

amendment on the ballot was not unlawful.

{¶ 11} Alternatively, Abernathy and amici curiae contend that the board of

elections was affirmatively barred from placing the LEBOR on the ballot by the

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January Term, 2019

doctrine of claim preclusion. This petition in support of the LEBOR first came

before the board of elections on August 28, 2018, when the board voted four to zero

to refuse to place the proposed charter amendment on the November 6, 2018

general-election ballot on the ground that it contained provisions beyond the

authority of the city to enact. Twitchell, Mack, and Nestor filed a complaint in

mandamus seeking an order compelling the board to place the LEBOR on the

ballot, and we denied the writ. Twitchell, __ Ohio St.3d __, 2018-Ohio-3829, __

N.E.3d __, at ¶ 1 (plurality opinion). In light of Twitchell, Abernathy argues that

the board “was barred from considering the re-assertion of the right to place [the]

LEBOR Amendment on the ballot, as this claim had already been adjudicated in

Twitchell.” But as we have discussed, the board had no power to keep the proposed

charter amendment off the ballot for any reason, including claim preclusion.

{¶ 12} The board of elections performed its ministerial duty by placing the

LEBOR on the ballot. Abernathy is not entitled to a writ of prohibition to undo that

action.

Writ denied.

KENNEDY, FRENCH, and DEWINE, JJ., concur.

FISCHER, J., concurs in judgment only, with an opinion.

STEWART, J., concurs in judgment only, with an opinion joined by

O’CONNOR, C.J.

DONNELLY, J., not participating.

_________________

FISCHER, J., concurring in judgment only.

{¶ 13} I respectfully concur only in the court’s judgment denying the writ

of prohibition sought by relator, Josh Abernathy. As an initial matter, I agree with

the judgment reached in the lead opinion that respondent, the Lucas County Board

of Elections, was not barred from placing the Lake Erie Bill of Rights (“LEBOR”)

on the ballot by any preclusive doctrine. I write separately, however, because on

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all other issues before the court in this case, it is sufficient for the court to determine

that the board of elections did not clearly disregard applicable law.

{¶ 14} As the lead opinion correctly recites, “to obtain a writ of prohibition

in an election case, a relator must show that (1) the board of elections exercised

quasi-judicial power, (2) the exercise of that power was unlawful, and (3) the relator

has no adequate remedy in the ordinary course of the law.” Lead opinion at ¶ 5.

For us to determine whether the board unlawfully exercised power, i.e., exercised

power that was unauthorized by law, “we must determine whether the board acted

fraudulently or corruptly, abused its discretion, or clearly disregarded applicable

law.” State ex rel. Brown v. Butler Cty. Bd. of Elections, 109 Ohio St.3d 63, 2006-

Ohio-1292, 846 N.E.2d 8, ¶ 23; see also Stutzman v. Madison Cty. Bd. of Elections,

93 Ohio St.3d 511, 513, 757 N.E.2d 297 (2001); Rust v. Lucas Cty. Bd. of Elections,

108 Ohio St.3d 139, 2005-Ohio-5795, 841 N.E.2d 766, ¶ 8; Wellington v.

Mahoning Cty. Bd. of Elections, 117 Ohio St.3d 143, 2008-Ohio-554, 882 N.E.2d

420, ¶ 38; State ex rel. Tremmel v. Erie Cty. Bd. of Elections, 123 Ohio St.3d 452,

2009-Ohio-5773, 917 N.E.2d 792, ¶ 15; State ex rel Murray v. Scioto Cty. Bd. of

Elections, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, ¶ 32; State ex rel.

Brecksville v. Husted, 133 Ohio St.3d 301, 2012-Ohio-4530, 978 N.E.2d 157, ¶ 10,

17.

{¶ 15} Here, there is no allegation that the board acted fraudulently or

corruptly. Additionally, pursuant to State ex rel. Maxcy v. Saferin, a board of

elections has no discretion to block a proposed charter amendment from the ballot

once the proper legislative authority has passed an ordinance placing that proposed

charter amendment on the ballot. __ Ohio St.3d __, 2018-Ohio-4035, __ N.E.3d

__, ¶ 19. Maxcy is the law on this issue, and pursuant to Maxcy, the board had no

discretion to abuse.

{¶ 16} The pivotal issue in this case is whether the board “clearly

disregarded applicable law.” It did not. The applicable law is this court’s decision

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January Term, 2019

in Maxcy: the board had a duty to place the proposed charter amendment on the

ballot when the legislative body of the municipality, the Toledo City Council,

passed the relevant ordinance. In abiding by Maxcy, the board did not clearly

disregard applicable law.

{¶ 17} Whether the board exercised quasi-judicial power in placing the

LEBOR on the ballot is not self-evident; the record reflects that the board actually

held a hearing, a quasi-judicial activity. I am far from certain that the board’s

choice to hold a hearing sits within the board’s purely ministerial role. Regardless,

there is no need to engage in a protracted analysis regarding the board’s exercise of

quasi-judicial power because, in a case such as this, a court will not issue a writ

when the board of elections did not clearly disregard applicable law. Additionally,

there is no need for this court to engage in a discussion regarding the merits of the

court’s reasoning in Maxcy—Maxcy is the applicable law.

{¶ 18} Because Abernathy has failed to show that the board of elections

clearly disregarded applicable law, I concur in the judgment denying the writ.

_________________

STEWART, J., concurring in judgment only.

{¶ 19} Although a municipal legislative authority exercises quasi-judicial

authority in determining the sufficiency of petitions proposing an amendment to a

city charter, see State ex rel. Patton v. Myers, 127 Ohio St. 95, 98, 186 N.E. 872

(1933), a “board of elections has nothing but a ministerial role under the

Constitution” in this situation. State ex rel. Semik v. Cuyahoga Cty. Bd. of

Elections, 67 Ohio St.3d 334, 337, 617 N.E.2d 1120 (1993). Therefore, a board of

elections’ actions in placing a proposed city-charter amendment on the ballot “are

not quasi-judicial, and [a] writ [of prohibition] cannot be allowed.” Id., citing State

ex rel. O’Grady v. Brown, 48 Ohio St.2d 17, 20, 356 N.E.2d 296 (1976).

{¶ 20} Respondent, the Lucas County Board of Elections, exercised no

quasi-judicial power when it placed the Lake Erie Bill of Rights (“LEBOR”) on the

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ballot after the Toledo City Council passed an ordinance to submit the LEBOR to

the voters. At all times, the board acted in a ministerial capacity by placing the

LEBOR measure on the ballot because the board made no deletions from or

alterations to the measure. Relator, Josh Abernathy, has thus failed to establish the

first element required to obtain a writ of prohibition because he has not shown that

the board exercised any quasi-judicial power.

{¶ 21} As stated in the lead opinion, the elements for obtaining a writ of

prohibition are that “(1) the board of elections exercised quasi-judicial power, (2)

the exercise of that power was unlawful, and (3) the relator has no adequate remedy

in the ordinary course of the law.” (Emphasis added.) Lead opinion at ¶ 5, citing

State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346, 2005-

Ohio-4758, 835 N.E.2d 336, ¶ 27. The lead opinion bypasses the first element

required to obtain a writ of prohibition and relies solely on discussing the second

element, concluding that Abernathy failed to show that the board of elections’

exercise of power—quasi-judicial power—was unlawful. To reach this conclusion,

the lead opinion must have implicitly determined that the board of elections

exercised quasi-judicial power because the way the second element is worded

indicates that it should be considered only in progression from the first—the

analysis is sequential. The word “that” in the second element applies to quasi-

judicial power, so it is pointless to consider whether the board of elections acted

unlawfully unless the board is first found to have exercised some form of quasi-

judicial power. Yet both precedent and the facts of this case show that the board

acted in a ministerial, not a quasi-judicial, capacity.

{¶ 22} This brings us to State ex rel. Maxcy v. Saferin, __ Ohio St.3d __,

2018-Ohio-4035, __ N.E.3d __, a case that has no application here. Maxcy says

that once the municipal legislative body passes an ordinance placing a proposed

charter amendment on the ballot, “the duty of the board [of elections] is to simply

add the proposed charter amendment to the ballot.” Id. at ¶ 19. The lead opinion

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January Term, 2019

determines, in essence, that the board here did not exercise quasi-judicial power,

because the board had no authority to exercise quasi-judicial power: “Once council

passed the ordinance to place the LEBOR on the ballot in accordance with Article

XVIII, Section 9 of the Ohio Constitution, the board had no power to keep the

proposed charter amendment off the ballot,” lead opinion at ¶ 9. This is a tautology:

even if the board had no authority to exercise quasi-judicial power, it could still

have done so, albeit erroneously. The lead opinion thus fails to answer an essential

predicate question regarding the manner in which the board acted. Maxcy is

irrelevant to this action because it would apply only in the event that the board had

refused to add the proposed charter amendment to the ballot or had exercised some

sort of quasi-judicial authority that was unlawful.

O’CONNOR, C.J., concurs in the foregoing opinion.

_________________

McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo,

Derek S. Clinger, and Ben F.C. Wallace, for relator.

Julia R. Bates, Lucas County Prosecuting Attorney, and John A. Borell,

Kevin A. Pituch, and Evy M. Jarrett, Assistant Prosecuting Attorneys, for

respondent.

Terry J. Lodge, for intervening respondents.

Bricker & Eckler, L.L.P., Bryan M. Smeenk, Anne Marie Sferra, and Maria

J. Armstrong, urging granting of the writ for amici curiae, Ohio Farm Bureau

Federation, Ohio Corn & Wheat Growers Association, Ohio Pork Council, Ohio

Soybean Association, and Ohio Dairy Producers Association.

_________________

9