State ex rel. Syx v. Stow City Council (Slip Opinion)

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

ex rel. Syx v. Stow City Council, Slip Opinion No. 2020-Ohio-4393.]

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. 2020-OHIO-4393

THE STATE EX REL. SYX, LAW DIR., ET AL. v. STOW CITY COUNCIL ET AL.

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

may be cited as State ex rel. Syx v. Stow City Council, Slip Opinion No.

2020-Ohio-4393.]

Elections—Amendments to city charter—Mandamus—Relators’ claim that city

council was required to place proposed amendments to city charter on

ballot barred by doctrine of laches—Relators did not establish a clear legal

right to have proposed amendments placed on ballot or a clear legal duty

on part of city council to place amendments on ballot—Writs denied.

(No. 2020-1058—Submitted September 9, 2020—Decided September 11, 2020.)

IN MANDAMUS.

__________________

Per Curiam.

{¶ 1} The relators in this case are (1) Jaime M. Syx, Law Director of the

city of Stow, (2) the city of Stow on its own behalf and on behalf of its 2020 Charter

Review Commission (collectively, “the commission”), and (3) the seven individual

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members of the commission. The respondents are (1) the Stow City Council, (2)

the seven individual members of the city council, and (3) the Summit County Board

of Elections (“the board”).1

{¶ 2} Relators seek a writ of mandamus ordering the city-council

respondents (collectively, “the council”) to hold an “administrative vote” on nine

amendments to the Stow City Charter that were proposed by the commission and

to issue an ordinance certifying the amendments to the board for placement on the

November 3, 2020 general-election ballot. In the alternative, relators seek a writ

ordering the board to accept the proposed amendments directly from the

commission itself. We deny the writs.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 3} The Stow City Charter provides for the composition, every five years,

of a seven-member charter-review commission that “shall, in meetings open to the

public, review the municipal Charter, and, no later than August 1 of the same year,

recommend to Council such amendments, if any, to th[e] Charter as in its judgment

are conducive to the public interest.” Stow City Charter, Sections 20.01 and 20.02.

The charter further provides, “Upon approval by two-thirds of Council, Council

shall submit to the electors all such proposed amendments to this Charter in

accordance, in each instance, with the provisions of the Constitution of Ohio.” Id.

at Section 20.03.

{¶ 4} On July 15, the commission submitted nine proposed charter

amendments to the council. Syx avers that she prepared a written memorandum for

the council advising it that (1) it has an administrative duty to pass an ordinance

conveying the proposed amendments to the board for placement on the ballot, (2)

1. The members of the commission are John Baranek, Deborah Matz, Charles Obendorf, Alan

Narvy, Wendy Supple, John Moyer, and Jennifer Snyder. The members of the Stow City Council

are Sindi Harrison, Jeremy McIntire, Dennis Altieri, Mario Fiocca, Steve Hailer, Cyle Feldman, and

Christina Shaw.

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it has the authority to review the proposed amendments only as to their form, i.e.,

to determine whether they fairly and accurately presented the question to be voted

on, and (3) it lacks the authority to alter the proposed amendments.

{¶ 5} Nine ordinances were submitted to the council, each presenting one

of the proposed charter amendments to the board for placement on the November

3 ballot. At its August 6 regular meeting, the council voted to amend the text of

each proposed charter amendment contained within the ordinances.

{¶ 6} The council then voted on the ordinances as modified. None of the

ordinances received the five votes (representing two-thirds of the seven-member

council) required to pass. Therefore, the council forwarded none of the proposed

charter amendments to the board.

{¶ 7} On August 28, relators filed the instant complaint seeking a writ of

mandamus ordering the council to do the following:

[H]old an administrative vote on all nine Commission Amendments,

in their original form, at the next regular Council meeting

immediately following this Court’s order to do so, and issue an

ordinance in accordance with the results of the vote, and certify the

same to the Respondent, Summit County Board of Elections for

their review for placement on the November 3, 2020 general

election ballot, forthwith.

In the alternative, relators seek a writ of mandamus ordering the board to accept the

proposed charter amendments directly from the city of Stow on behalf of the

commission for placement on the November 3 ballot, without the approval of the

council.

{¶ 8} Sua sponte, this court set a briefing schedule that was more

expeditious than the schedule set forth in S.Ct.Prac.R. 12.08, because the deadline

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for the Ohio Secretary of State to approve the form of ballots is September 14, 2020,

see Am.Sub.H.B. No. 166, Section 735.11, and the deadline for the preparation of

ballots under the Uniformed and Overseas Citizens Absentee Voting Act

(“UOCAVA”), 52 U.S.C. 20302, is September 18, see R.C. 3511.04. The case is

now fully briefed.

II. ANALYSIS

{¶ 9} We deny the writs on the basis of the doctrine of laches, as well as

relators’ failure to establish the existence of a clear legal right to the requested relief

and a clear legal duty on the part of respondents to provide it.

A. Laches

{¶ 10} “The elements of laches are (1) unreasonable delay or lapse of time

in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or

constructive, of the injury or wrong, and (4) prejudice to the other party.” State ex

rel. Polo v. Cuyahoga Cty. Bd. of Elections, 74 Ohio St.3d 143, 145, 656 N.E.2d

1277 (1995). “The question whether laches has barred a claim in mandamus rests

in the court’s sound discretion.” State ex rel. Carver v. Hull, 70 Ohio St.3d 570,

577, 639 N.E.2d 1175 (1994).

1. Knowledge of the Injury and Unreasonable Delay

{¶ 11} In elections cases, relators must act with the utmost diligence. State

ex rel. Citizens for Responsible Green Govt. v. Green, 155 Ohio St.3d 28, 2018-

Ohio-3489, 118 N.E.3d 236, ¶ 16 (lead opinion). The date upon which the council

failed to submit the commission’s proposed charter amendments was August 6.

The very next day, the commission voted to file this action. Yet, despite the fact

that Syx had already prepared a written memorandum for the council providing the

legal opinions that underlie relators’ arguments in this case, relators did not file

their complaint until three weeks later, on August 28. Under those circumstances,

the delay was unreasonable. See, e.g., State ex rel. Landis v. Morrow Cty. Bd. of

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Elections, 88 Ohio St.3d 187, 189, 724 N.E.2d 775 (2000) (applying laches to 22-

day delay).

2. Absence of an Excuse for the Delay

{¶ 12} In their merit brief, relators assert that the delay was due, at least in

part, to Syx’s desire to wait for an opinion that the council had sought from outside

counsel regarding alternative interpretations of the Stow City Charter. However,

as the council points out and relators acknowledge, the decision to retain outside

counsel had to be approved by the mayor of the city of Stow. The council asserts

that the mayor did not sign the outside-counsel agreement until August 31—after

this lawsuit had been filed. In their reply brief, relators concede that they “had no

idea when Council officially retained outside legal counsel.” We therefore reject

relators’ claim that their delay in filing this action was justified by Syx’s

expectation of an impending opinion from outside counsel.

{¶ 13} The only other excuses relators present for their delay in filing this

action are the high number of personal and professional obligations of the attorneys

in Syx’s office. However, that is not a valid excuse for delay in an expedited-

election case:

[T]he committee asserts that its delay was excusable because the

exhibits in the case are voluminous and its attorney had to juggle

this matter with other cases and priorities. This assertion ignores the

fact that a similar argument could likely be made in every election

case and, if successful, would swallow the doctrine of laches.

Citizens for Responsible Green Govt. at ¶ 22. We therefore determine that relators

have not presented a valid excuse for their delay.

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3. Prejudice

{¶ 14} “Prejudice is not inferred from a mere lapse of time.” Polo, 74 Ohio

St.3d at 145, 656 N.E.2d 1277. However, “when a relator’s unreasonable delay in

filing a mandamus case causes the matter to become an expedited election matter

when filed, that delay is presumed to constitute prejudice for laches purposes.”

Citizens for Responsible Green Govt., 155 Ohio St.3d 28, 2018-Ohio-3489, 118

N.E.3d 236, at ¶ 25. That is because expediting an election case “restricts

respondents’ time to prepare and defend against relators’ claims, or impairs boards

of elections’ ability to prepare, print, and distribute appropriate ballots because of

the expiration of the time for providing absentee ballots.” State ex rel. Willke v.

Taft, 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536, ¶ 18.

{¶ 15} This case would have been automatically expedited under

S.Ct.Prac.R. 12.08 even if relators had filed their complaint on the day the council

voted on the ordinances. But as the council notes, relators’ delay nevertheless

prejudiced it because the delay brought the case so close to the statutory deadlines

for finalizing ballots that this court was forced to further expedite the case. The

council argues that relators’ delay “caused prejudice to Respondents by making this

‘expedited elections case’ an emergency * * *.” (Emphasis sic.) We agree.

{¶ 16} Under S.Ct.Prac.R. 12.08, respondents would have had five days

after the service of the complaint to file their answers and three days after receiving

relators’ merit brief and evidence to file their own briefs and evidence. By contrast,

our sua sponte order of August 28 provided respondents with only one business day

to file their answers to the complaint and only one and one-half days after the filing

of relators’ merit brief and evidence to file their own briefs and evidence. This

schedule—which was necessitated by the September 14 deadline for the secretary

of state to approve the form of ballots and the September 18 deadline for the board

to prepare ballots under the UOCAVA—provided respondents with significantly

less time to prepare and defend against relators’ claims than they would have had

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under the already expedited schedule set forth in S.Ct.Prac.R. 12.08. Relators’

delay thereby prejudiced respondents. See Willke at ¶ 18.

{¶ 17} Relators also argue that the council can act on election matters only

at a regular council meeting, citing Section 4.09(f) of the Stow City Charter. The

council’s next regular meeting is September 24. If we were to issue a writ of

mandamus, the council would be faced with a choice to either vote on an election

matter at a special meeting—which relators aver would violate the charter—or to

submit the proposed charter amendments to the board after the statutory deadlines

for approving the form of the ballot and preparing UOCAVA ballots. That would

also constitute prejudice. See State ex rel. Vickers v. Summit Cty. Council, 97 Ohio

St.3d 204, 2002-Ohio-5583, 777 N.E.2d 830, ¶ 18 (“If relators had acted more

promptly, [the passage of the statutory deadline to have absentee ballots printed]

might have been avoided and any potential prejudice to the county in its statutory

obligation to absentee voters would have been minimized”); see also Willke, 107

Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536, at ¶ 18. The doctrine of laches

therefore bars relators’ claims.

B. Clear Legal Right and Clear Legal Duty

{¶ 18} To be entitled to a writ of mandamus, relators must establish “a clear

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

grant it, and the lack of an adequate remedy in the ordinary course of the law.”

State ex rel. Commt. for Charter Amendment Petition v. Maple Hts., 140 Ohio St.3d

334, 2014-Ohio-4097, 18 N.E.3d 426, ¶ 17. Relators have not established the

existence of a clear legal right to the requested relief or a clear legal duty on the

part of the council or the board to provide it.

1. The Council

{¶ 19} Relators argue that (1) the council has a duty to hold an

“administrative vote” on the commission’s proposed charter amendments in their

original, unmodified form, (2) an administrative vote means that the council may

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review the proposed amendments only as to their form, and (3) the council’s review

of the form involves only determining whether the proposed amendments’ text

fairly and accurately presents the question to be decided by the voters. Relators

also allude to a purported right of the commission to have its proposed amendments

reach the ballot. Relators argue that the plain language of the charter prohibits the

council from modifying the commission’s proposed charter amendments or

rejecting those with which it disagrees.

{¶ 20} Section 20.02 of the Stow City Charter provides that the commission

shall “recommend to Council such amendments, if any, to this Charter as in its

judgment are conducive to the public interest.” (Emphasis added.) Section 20.03

provides, “Upon approval by two-thirds of Council, Council shall submit to the

electors all such proposed amendments to this Charter in accordance, in each

instance, with the provisions of the Constitution of Ohio.” (Emphasis added.)

Neither the charter nor the Ohio Constitution imposes a clear legal duty on the

council to submit the commission’s proposed charter amendments to the electors

or grants the commission a clear legal right to determine what amendments the

council submits.

{¶ 21} The express language of the charter refers to the commission’s

proposed amendments as “recommendations” and requires their submission to the

electors only upon “approval” by two thirds of the council. The charter does not

state that the council’s approval is limited to the form of the amendments or that

the council must approve the recommendations without modification. Relators

argue that their interpretation of the charter must prevail or else Section 19.01 of

the charter, which allows the council to submit its own proposed charter

amendments to the electors upon the approval of two-thirds of the council, would

swallow Section 20.03. Relators further argue that the council has violated Section

4.18 of the charter, which prohibits the council from abolishing any commission

that the charter has created. But nothing in Section 19.01 or Section 4.18 is

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inconsistent with the commission serving as an advisor for the purpose of making

recommendations—as Section 20.02 expressly provides—that two-thirds of the

council may or may not approve under Section 20.03.

{¶ 22} With respect to the Ohio Constitution, “[t]he ‘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, 97 Ohio St.3d 100, 2002-

Ohio-5302, 776 N.E.2d 1041, ¶ 31, quoting Billington v. Cotner, 25 Ohio St.2d

140, 146, 267 N.E.2d 410 (1971). Article XVIII, Section 9 of the Ohio Constitution

provides only two procedures by which proposed charter amendments may reach

the ballot: “upon petitions signed by ten per centum of the electors of the

municipality,” and “by a two-thirds vote of the legislative authority.” Under

Section 4.01 of the charter, all legislative power in the city of Stow is vested in the

council. Therefore, as the council points out in its merit brief, Article XVIII,

Section 9 grants neither the mayor, the clerk, nor any other municipal officer or

body the authority to approve proposed charter amendments for submission to the

electors. Accordingly, the charter cannot grant the commission the authority to

determine what proposed amendments will reach the electors, subject only to

approval by the council as to their form, without impermissibly adding to the

prescribed procedures set forth in Article XVIII, Section 9.

{¶ 23} Relators’ arguments are primarily based not on the charter or the

Ohio Constitution but on three of this court’s decisions, all of which are inapposite:

State ex rel. Rosch v. Cuyahoga Cty. Bd. of Elections, 42 Ohio St.2d 364, 328

N.E.2d 793 (1975), State ex rel. Kittel v. Bigelow, 138 Ohio St. 497, 37 N.E.2d 41

(1941), and State ex rel. Schuck v. Columbus, 152 Ohio St.3d 590, 2018-Ohio-1428,

99 N.E.3d 383.

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{¶ 24} In Rosch, we held that the Broadview Heights City Council had

properly submitted proposed charter amendments to the electors by way of an

ordinance passed without three readings, because the council’s duty was

administrative. Id. at 366. However, the Broadview Heights City Charter lacked

the “upon approval by two-thirds of Council” provision at issue here. Id. at 364,

fn.1. Moreover, the narrow issue in Rosch was whether the council had used a

proper procedure to pass the ordinance—not whether the council had been required

to pass the ordinance.

{¶ 25} In Kittel, we considered a city council’s determination of the

sufficiency and validity of petitions to submit a charter amendment to the electors.

Kittel at 503. Our opinion in Kittel does not speak to the standard under which a

council must review charter amendments proposed by a charter-review

commission. See id.

{¶ 26} Finally, in Schuck, we considered whether the city of Columbus had

complied with a provision in its charter that specifically required an accurate

summary of proposed charter amendments to be submitted to the electors. 152

Ohio St.3d 590, 2018-Ohio-1428, 99 N.E.3d 383, at ¶ 12. However, the Stow City

Charter contains no similar provision. These cases are inapplicable to the facts

presented here.

{¶ 27} At bottom, relators’ arguments appear to rely on a misallocation of

the burden of proof. Relators argue that when the Stow City Council in 2019

amended Section 20.03 of the Stow City Charter, it could have added language

clearly stating that the council had the discretion to reject or modify charter

amendments proposed by the commission with which it disagreed. Relators posit

that because the added language does not clearly provide such discretion, the

council cannot interpret Section 20.03 as granting it those powers. However, in a

mandamus case, the relator has the burden to show the existence of a legal right

and a legal duty that are clear. Maple Hts., 140 Ohio St.3d 334, 2014-Ohio-4097,

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18 N.E.3d 426, at ¶ 17. Section 20.03 requires the council to act if two-thirds of

council give their “approval” of the commission’s proposed charter amendments.

To the extent that Section 20.03 fails to clearly specify the parameters of the

required approval, it is relators’ mandamus claim—not the council’s interpretation

of the charter—that we must reject.

2. The Board

{¶ 28} Relators concede that “[t]he Board of Elections does not have a duty

to place the Commission Amendments on the ballot until Council fulfills its duty,

first.” Accordingly, we reject relators’ mandamus claims against the board as

unripe. See State ex rel. Dunn v. Plain Local School Dist. Bd. of Edn., 158 Ohio

St.3d 370, 2020-Ohio-40, 143 N.E.3d 488, ¶ 18 (claim against board of elections

not ripe when duty to place issue on ballot arose only after school board’s

certification of the issue, which had not yet occurred).

III. CONCLUSION

{¶ 29} Based on the foregoing, we deny the writs.

Writs denied.

O’CONNOR, C.J., and FRENCH, FISCHER, DONNELLY, and STEWART, JJ.,

concur.

KENNEDY and DEWINE, JJ., concur in judgment only.

_________________

Jaime M. Syx, Stow Law Director, and Callie J. Channell, Deputy Law

Director, for relators.

Roetzel & Andress, L.P.A., Stephen W. Funk, Justin Markey, and Emily K.

Anglewicz, for respondents Stow City Council, Sindi Harrison, Jeremy McIntire,

Dennis Altieri, Mario Fiocca, Steve Hailer, Cyle Feldman, and Christina Shaw.

Sherri Bevan Walsh, Summit County Prosecuting Attorney, and Raymond

J. Hartsough and John Galonski, Assistant Prosecuting Attorneys, for respondent

Summit County Board of Elections.

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