State ex rel. Walker v. LaRose (Slip Opinion)

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

ex rel. Walker v. LaRose, Slip Opinion No. 2021-Ohio-825.]

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. 2021-OHIO-825

THE STATE EX REL. WALKER ET AL. v. LAROSE, SECY., ET AL.

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

may be cited as State ex rel. Walker v. LaRose, Slip Opinion No.

2021-Ohio-825.]

Elections—Mandamus—Writ of mandamus sought to compel secretary of state,

county board of elections, and city to change ballot language of a local

issue on the May 4, 2021 primary-election ballot or to strike issue from the

ballot entirely—Secretary of state and city not proper respondents for relief

sought—Board of elections did not abuse its discretion or disregard

applicable law in approving ballot language for local issue under R.C.

3505.06—Writ denied.

(No. 2021-0264—Submitted March 12, 2021—Decided March 17, 2021.)

IN MANDAMUS.

__________________

Per Curiam.

SUPREME COURT OF OHIO

{¶ 1} In this expedited election case, relators, Patricia A. Walker and Ralph

E. Jocke, seek a writ of mandamus compelling respondents, Ohio Secretary of State

Frank LaRose, the Medina County Board of Elections (the “board”), and the city

of Medina (the “city”), to change the ballot language of a local issue on the May 4,

2021 primary-election ballot. Alternatively, relators seek a writ of mandamus

ordering respondents to strike the issue from the ballot entirely.

{¶ 2} We deny the writ. Neither the secretary of state nor the city is a proper

respondent for the relief relators seek. And the board did not abuse its discretion

or disregard applicable law in approving the ballot language challenged by relators.

I. Background

{¶ 3} This case arises out of the city’s efforts to move the Medina Municipal

Court to the Medina County courthouse building and citizen opposition to those

efforts.

{¶ 4} The Medina County courthouse consists of an original building

constructed in 1841, several additions constructed starting in 1873, and an

expansion constructed in 1969. In 2019, the city passed an ordinance authorizing

city funds to be used for a joint courthouse project with Medina County. The city

and county had agreed to design, plan, and build a courthouse that would house the

Medina Municipal Court and the Medina County Court of Common Pleas.

{¶ 5} Walker states in her affidavit that she formed the Save Your

Courthouse Committee (the “committee”) in 2019 due to residents’ concerns that

the joint courthouse project would demolish part of the 1841 courthouse structure

and all of the 1969 portion. Relators further contend that many of the city’s

residents have urged the city to expand the Medina Municipal Court at its present

location instead of moving it to the Medina County courthouse.

{¶ 6} After the committee unsuccessfully sought to place a courthouse

initiative on the November 2019 election ballot, see State ex rel. Save Your

Courthouse Commt. v. Medina, 157 Ohio St.3d 423, 2019-Ohio-3737, 137 N.E.3d

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1118, relators and the committee successfully placed a nearly identical initiative on

the November 3, 2020 ballot. The initiative submitted to the city’s electors stated:

Without a majority vote of the qualified electors who are

residents of the City of Medina, Ohio, (“the City”), the City shall

not:

1) authorize, appropriate or spend any funds for, or

2) use any city resources to carry out, or facilitate carrying

out, any demolition or construction activity (whether internal or

external) at the Medina County Courthouse or any structure located

on the east side of the Medina Public Square including, but not

limited to, 72 through 99 Public Square, Medina, Ohio.

This restriction shall have the effect of law and shall be

effective for a period of five (5) years.

The initiative (sometimes referred to as “Issue 7”) passed with 62 percent of the

vote.

{¶ 7} Despite the passage of the initiative, the city moved forward with the

courthouse project. On December 30, 2020, the Medina City Council held a special

meeting to consider Ordinance No. 222-20, which proposed for submission to the

city’s electors a request to approve relocation of the municipal court to the 1969

courthouse. The issue approved by the city council stated:

The City of Medina, Ohio, is authorized to appropriate and

expend funds and use city resources to locate the Medina Municipal

Court inside of the Medina County 1969 courthouse located at 93

Public Square so as to preserve the 1969 courthouse as a court

building located on the east side of Medina Public Square.

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SUPREME COURT OF OHIO

The city council passed Ordinance No. 222-20 at the December 30 special meeting.

The ordinance also provided that the issue would be submitted to city electors at a

special election, appearing on the May 4, 2021 primary-election ballot.

{¶ 8} The city filed Ordinance No. 222-20 with the board on January 26,

2021, requesting placement on the May 4 ballot. The board prepared ballot

language for the proposed ordinance and transmitted the ballot language to the

secretary of state’s office on February 3 for approval under R.C. 3501.05(J). The

secretary’s office approved the ballot language on February 17. The language

reads:

Proposed Ordinance

City of Medina

Ordinance No. 222-20

A majority affirmative vote is necessary for passage.

Shall the City of Medina, Ohio, be authorized to appropriate

and expend funds and use city resources to locate the Medina

Municipal Court inside of the Medina County 1969 courthouse

located at 93 Public Square so as to preserve the 1969 courthouse as

a court building on the east side of Medina Public Square?

O YES

O NO

(Boldface sic.)

{¶ 9} Prior to the secretary of state’s approval of the ballot language,

relators filed a letter with the board on February 12, stating their position that

Ordinance No. 222-20 required more than a majority affirmative vote for passage

at the May 4 election. Relying on the language of the courthouse initiative passed

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January Term, 2021

in November, relators contended that the ordinance required “a majority vote of all

of the people who live in Medina City and who are qualified to vote in the [May 4,

2021] Primary in order to pass.” Relators presented the same argument at a board

meeting on February 16. When the board declined to change the language relating

to the number of votes required for passage of Ordinance No. 222-20, relators filed

a protest with the board on February 19, reiterating their objection to the language

approved for the ballot. In their protest, relators proposed that the following

language be approved:

The City of Medina, Ohio is authorized to appropriate and

expend funds and use City resources to locate the Medina Municipal

Court inside of the Medina County 1969 Courthouse located at 93

Public Square. This partially overrules Issue 7 that was passed on

November 3, 2020. A majority of the qualified electors who are

residents of the City of Medina, Ohio is necessary for passage.

The board sent relators’ protest to the secretary of state but took no other action on

it. The language for Ordinance No. 222-20 on the May 4 election ballot remains

the same as that approved by the board on February 3 and the secretary on February

17.

{¶ 10} Relators filed this action on February 26, seeking a writ of

mandamus to compel respondents to amend the ballot language for Ordinance No.

222-20 as relators requested. Relators argue that (1) the approved ballot language

inaccurately states that only a majority affirmative vote is required for passage and

(2) the ballot language should be amended as they request because the approved

language is unlawfully persuasive and contains no title for the proposed ordinance.

In the alternative, relators request a writ of mandamus directing respondents to

remove Ordinance No. 222-20 from the May 4 ballot because the ballot measure

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did not include a title when it was filed with the board. We set an expedited

schedule for respondents to answer and for the parties to file their evidence and

briefs. ___ Ohio St.3d ___, 2021-Ohio-555, ___ N.E.3d ____. The parties have

submitted their evidence and have fully briefed this matter for our decision.

II. Analysis

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

and convincing evidence that (1) they have a clear legal right to the requested relief,

(2) respondents have a clear legal duty to provide it, and (3) relators do not have an

adequate remedy in the ordinary course of law. State ex rel. Linnabary v. Husted,

138 Ohio St.3d 535, 2014-Ohio-1417, 8 N.E.3d 940, ¶ 13. Because of the

proximity of the May 4 election, relators lack an adequate remedy in the ordinary

course of law. State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257,

2012-Ohio-4149, 978 N.E.2d 119, ¶ 22.

{¶ 12} For the remaining requirements of a clear legal right and a clear legal

duty, in the absence of any evidence of fraud or corruption, the dispositive issue is

whether respondents abused their discretion or clearly disregarded applicable law

in adopting the ballot language at issue and in allowing the ordinance to be

submitted to the Medina electors. See id. at ¶ 23. Relators do not allege fraud or

corruption in this case.

A. Mandamus Claims Against the Secretary of State

{¶ 13} In neither their complaint nor their merit brief do relators cite a

statute imposing a duty on the secretary of state to amend ballot language for a local

issue or to strike such an issue from the ballot entirely. Though the secretary

acknowledges that R.C. 3501.05(J) directs him to “give final approval to ballot

language for any local question or issue approved and transmitted by boards of

elections,” he argues that his only role for local issues under R.C. 3501.05(J) is to

review and approve ballot language as to form. See State ex rel. Perry Twp. Bd. of

Trustees v. Husted, 154 Ohio St.3d 174, 2018-Ohio-3830, 112 N.E.3d 889, ¶ 15.

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January Term, 2021

The secretary complied with that duty in this case and relators do not argue that

R.C. 3501.05(J) imposes any further duty upon the secretary to review Ordinance

No. 222-20 for content. Accordingly, relators’ requested relief is not proper against

the secretary. See State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd.

of Elections, 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, ¶ 85.

{¶ 14} Rather than dispute that R.C. 3501.05(J) empowers the secretary of

state to review local ballot issues only for form and not for content, relators in their

reply brief cite R.C. 3505.01 and 3501.11(V) as the sources of the secretary’s duty

to revise the ballot language. We need not address these arguments, as they were

raised for the first time in a reply brief. See State ex rel. Murray v. Scioto Cty. Bd.

of Elections, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, ¶ 58. In any

event, relators do not explain how these statutes support a duty on the part of the

secretary to amend the ballot language in the manner they seek.

B. Mandamus Claims Against the City

{¶ 15} As to the city, relators contend that (1) the city’s submission of

Ordinance No. 222-20 for a special election was legally improper, (2) the city

enacted improper persuasive language in the ordinance, and (3) the city failed to

include a title in the version of the ordinance submitted to the board. Relators’

contention that the city’s submission of Ordinance No. 222-20 for the ballot is

invalid does not, however, inform the issue whether they may obtain a writ of

mandamus ordering the city to perform the acts requested. Relators cite no statute

stating that the city has the power, much less a duty, to amend board-approved

ballot language or to remove an issue from the ballot.

C. Mandamus Claims Against the Board

{¶ 16} Under R.C. 3501.11(V), the board has a duty to “[g]ive approval to

ballot language for any local question or issue.” Further informing the board’s duty

in this regard is R.C. 3505.06(D), which provides:

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SUPREME COURT OF OHIO

The printed matter pertaining to each question or issue on

the ballot shall be enclosed at the top and bottom thereof by a heavy

horizontal line across the width of the ballot. Immediately below

such top line shall be printed a brief title descriptive of the question

or issue below it, such as “Proposed Constitutional Amendment,”

“Proposed Bond Issue,” “Proposed Annexation of Territory,”

“Proposed Increase in Tax Rate,” or such other brief title as will be

descriptive of the question or issue to which it pertains, together with

a brief statement of the percentage of affirmative votes necessary for

passage, such as “A sixty-five per cent affirmative vote is necessary

for passage,” “A majority vote is necessary for passage,” or such

other brief statement as will be descriptive of the percentage of

affirmative votes required.

This court has recognized mandamus as an appropriate remedy to compel a board

of elections to amend ballot language to comply with R.C. 3505.06. Cincinnati for

Pension Reform, 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 20, 68.

1. Percentage of votes necessary for passage

{¶ 17} Relators argue that the board’s approved ballot language for

Ordinance No. 222-20 is invalid because it incorrectly states: “A majority

affirmative vote is necessary for passage.” (Boldface sic.) Relators argue that

this language is inconsistent with the initiative passed by city electors in November

2020, which prohibits the city from authorizing, appropriating, or spending funds

or using city resources to facilitate demolition or construction at the Medina County

Courthouse for a five-year period, without “a majority vote of the qualified electors

who are residents of the City of Medina.” (Emphasis added.)

{¶ 18} Respondents do not dispute that passage of Ordinance No. 222-20

would authorize the expenditure of city funds and resources for “demolition or

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January Term, 2021

construction activity” at the Medina County courthouse. Therefore, because of the

“majority vote of the qualified electors” language in the voter-approved initiative,

relators contend that passage of Ordinance No. 222-20 requires an affirmative vote

of a majority of all qualified electors of the city, including electors who do not vote

on the issue at the May 4 election.

{¶ 19} The parties do not cite a case in which this court has decided what

the term “majority vote of the qualified electors” means in a context like this one.

But in Rike v. Floyd, 3 Ohio C.D. 359, 378, 6 Ohio C.C. 80 (1891), aff’d without

opinion, 53 Ohio St. 653, 44 N.E. 1136 (1895), an Ohio circuit court of appeals

decided a dispute relating to the meaning of the phrase “two-thirds of the members

of the whole society,” as used in a church’s constitution. Relying on cases

interpreting election laws from other states, the court of appeals held that the phrase

meant “two-thirds of those members who vote.” Id., citing Carroll Cty. Bd. of

Supervisors v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517 (1884), and Walker

v. Oswald, 68 Md. 146, 11 A. 711 (1887).

{¶ 20} Rike is consistent with cases outside of Ohio in which courts have

interpreted language similar to what is at issue here to mean that a majority of votes

actually cast is sufficient for passage of a ballot measure. In Carroll Cty., the

United States Supreme Court interpreted a Mississippi constitutional provision that

required “assent of two-thirds of the qualified voters of [a] county” to approve

issuance of municipal railroad bonds. Id. at 561. Similar to relators here, the

appellants in Carroll Cty. argued that the “qualified voters” referred to in the

Mississippi Constitution meant “those who have been determined by the registrars

to have the requisite qualifications of electors * * * and not merely two-thirds of

such actually voting at an election for that purpose.” Id. Rejecting the argument,

the Supreme Court held:

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SUPREME COURT OF OHIO

The number and qualification of voters at such an election, is

determinable by its result, as canvassed, ascertained and declared by

the officers appointed to that duty, or as subsequently corrected by

a contest or scrutiny in a direct proceeding, authorized and instituted

for that purpose; it cannot be contested in any collateral proceeding,

either by inquiry as to the truth of the return, or by proof of votes

not cast, to be counted as cast against the proposition, unless the law

clearly so requires. * * * The assent of two-thirds of the qualified

voters of the county, at an election lawfully held for that purpose, to

a proposed issue of municipal bonds, intended by that instrument,

meant the vote of two-thirds of the qualified voters present and

voting at such election in its favor, as determined by the official

return of the result. The words “qualified voters” * * * must be

taken to mean not those qualified and entitled to vote, but those

qualified and actually voting. In that connection a voter is one who

votes, not one who, although qualified to vote, does not vote.

(Emphasis added.) Id. at 565. More than 50 years later, the Supreme Court likewise

noted that election laws providing for approval by a specified majority of an

electorate are generally construed to require only the consent of the specified

majority of those participating in the election. Virginian Ry. Co. v. Sys. Fedn. No.

40, 300 U.S. 515, 560, 57 S.Ct. 592, 81 L.Ed. 789 (1937). “Those who do not

participate ‘are presumed to assent to the expressed will of the majority of those

voting.’ ” Id., quoting Cass Cty. v. Johnston, 95 U.S. 360, 369, 24 L.Ed. 416

(1877).

{¶ 21} Federal district courts considering the issue have followed suit. In

Euwema v. Todman, 323 F.Supp. 167 (D.V.I.1971), a Virgin Islands law authorized

the legislature to lower the legal voting age to 18 years old “if a majority of the

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January Term, 2021

qualified voters in the Virgin Islands approve in a referendum election held for that

purpose.” Id. at 169. In litigation to determine the results of a referendum on the

issue, the court adopted the view that the majority of “qualified voters” meant the

majority of the qualified voters who actually voted. Id. at 171. “To hold otherwise

would be to permit an indifferent minority to prevent a determination of issues and

thus impede or totally obstruct vital governmental processes and interests.” Id.

Accord Alaska Native Assn. of Oregon v. Morton, 417 F.Supp. 459, 467-468

(D.D.C.1974) (interpreting “a majority of all eligible Natives” as used in a federal

statute to mean a majority of those who voted on the issue).

{¶ 22} Courts of our sister states have decided the issue in the same manner.

For example, in Munce v. O’Hara, 340 Pa. 209, 16 A.2d 532 (1940), a statutory

provision allowed any county, city, borough, or township to discontinue the use of

voting machines if a proposition was approved “by a majority vote of its qualified

electors cast at any general election.” Id. at 210. The Pennsylvania Supreme Court

rejected the argument that the statute required a majority vote of all qualified

electors. “[T]he practical working of the elective system necessarily requires that

those who abstain from voting be considered as acquiescing in the result declared

by a majority of those who exercise the suffrage.” Id.; see also Wilcox v. Bd. of

Commrs. of Sinking Fund of Detroit, 262 Mich. 699, 705, 247 N.W. 923 (1933) (“it

is contrary to our system of government to count electors on a question who are not

sufficiently interested to vote”). Accordingly, the court in Munce adhered to the

rule that “where a statute provides for a vote of ‘a majority of the voters,’ ‘a

majority of the legal voters,’ ‘a majority of the qualified voters,’ etc., all that is

required is a majority of those actually voting, unless a contrary legislative intention

and purpose is very clearly expressed.” Munce at 211; see also Chapel v. Allen,

334 Mich. 176, 180-181, 54 N.W.2d 209 (1952); Cashman v. Entwistle, 213 Mass.

153, 155-156, 100 N.E. 58 (1912).

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{¶ 23} Relators do not offer an argument to discredit or distinguish the

foregoing line of case law, much less cite any contrary authority. Relators rely on

R.C. 3519.21, which states that all issues submitted to the electors are approved by

an affirmative vote of a majority of votes cast “[e]xcept as otherwise provided by

law,” and argue that the November 2020 initiative is a law that provides that more

than a simple majority of votes cast is required for passage of Ordinance No. 222-

20. But under the weight of authority discussed above, language stating “a majority

vote of the qualified electors” is not enough to depart from the general rule that a

simple majority of votes cast is all that is required for passage of a ballot issue. For

relators’ argument to hold sway, there must be a “very clearly expressed” legislative

intention that a greater number of affirmative votes is required. Munce at 211.

{¶ 24} In their reply brief, relators argue for the first time that the different

statutory definitions of “qualified elector” and “voter” in R.C. 3501.01 support their

position. R.C. 3501.01(N) defines “qualified elector” as “a person having the

qualifications provided by law to be entitled to vote” while R.C. 3501.01(O) defines

“voter” as “an elector who votes at an election.” Relators argue that this difference

is significant in determining the meaning of “a majority vote of the qualified

electors,” as used in the November 2020 initiative. However, as we noted

previously, we need not consider an argument raised for the first time in a reply

brief. Murray, 127 Ohio St.3d 280, 2010-Ohio-5846, 939 N.E.2d 157, at ¶ 58.

{¶ 25} Under these circumstances, the board’s decision to adhere to the

general rule requiring a majority affirmative vote to be sufficient for passage was

not an abuse of discretion or in clear disregard of applicable law.

2. Relators’ proposed amendments to the ballot language

{¶ 26} Relators also argue that the board abused its discretion and

disregarded applicable law by allowing ballot language that was inappropriately

persuasive and misleading. Informing the inquiry on this issue is R.C. 3505.06(E),

which provides:

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The questions and issues ballot need not contain the full text

of the proposal to be voted upon. A condensed text that will

properly describe the question, issue, or an amendment proposed by

other than the general assembly shall be used as prepared and

certified by the secretary of state for state-wide questions or issues

or by the board [of elections] for local questions or issues. If other

than a full text is used, the full text of the proposed question, issue,

or amendment together with the percentage of affirmative votes

necessary for passage as required by law shall be posted in each

polling place in some spot that is easily accessible to the voters.

{¶ 27} Relators complain that the phrase “so as to preserve the 1969

courthouse as a court building” is misleading because the 1969 portion of the

courthouse is not in jeopardy of being used for any other purpose. Relators further

contend that the phrase is designed to appeal to preservationist voters and is

therefore unlawfully persuasive language. Relators also argue that the board should

be compelled to add the “informational language” they have proposed.

{¶ 28} R.C. 3505.06(E) does not provide a basis for the mandamus relief

relators seek. The statute allows the board to place a summary of an issue—a

“condensed text”—on the ballot in lieu of the issue’s full text. When a board of

elections prepares a condensed text, it must not adopt language that is “in the nature

of a persuasive argument in favor of or against the issue.” Beck v. Cincinnati, 162

Ohio St. 473, 474-475, 124 N.E.2d 120 (1955); see also State ex rel. Kilby v.

Summit Cty. Bd. of Elections, 133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d

590, ¶ 19. In this case, however, the board has not drafted a summary of Ordinance

No. 222-20 for the ballot in lieu of the full text. And relators have cited no case

standing for the proposition that the board must amend allegedly persuasive and

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misleading language when the full text of an issue is placed on the ballot. The

board therefore did not abuse its discretion or disregard applicable law in approving

the ballot language.

3. Title of the proposed ordinance

{¶ 29} Likewise unpersuasive is relators’ claim that the approved ballot

language for Ordinance No. 222-20 lacks a valid title. R.C. 3505.06(D) requires

only a “brief title descriptive of the question or issue below it” and provides

examples that would suffice, “such as ‘Proposed Constitutional Amendment,’

‘Proposed Bond Issue,’ ‘Proposed Annexation of Territory,’ [or] ‘Proposed

Increase in Tax Rate.’ ” The language approved by the board in this case contains

the title, “Proposed Ordinance City of Medina Ordinance No. 222-20.”

(Boldface sic.) By the statute’s plain terms, nothing more is required for the title

to comply with R.C. 3505.06(D).

{¶ 30} Relators rely on State ex rel. Esch v. Lake Cty. Bd. of Elections, 61

Ohio St.3d 595, 575 N.E.2d 835 (1991), for the proposition that the city’s version

of Ordinance No. 222-20 submitted to the board was invalid because it did not

include a title. Esch, however, is inapposite. That case involved an initiative

petition that was circulated without a title for the proposed ordinance, as required

by R.C. 731.31. Id. at 597. R.C. 731.31 applies to initiative petitions circulated for

signatures; it does not apply to the ballot measure submitted by the city in this case.

III. Conclusion

{¶ 31} Relators have failed to show that the secretary of state and the city

are proper respondents for the relief they seek. And they have further failed to show

that the board abused its discretion or disregarded applicable law in approving the

ballot language for Ordinance No. 222-20. We therefore deny the writ.

Writ denied.

O’CONNOR, C.J., and FISCHER, DEWINE, DONNELLY, STEWART, and

BRUNNER, JJ., concur.

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January Term, 2021

KENNEDY, J., not participating.

_________________

Walker & Jocke Co., L.P.A., Patricia A. Walker, and Ralph E. Jocke, for

relators.

Dave Yost, Attorney General, and Heather L. Buchanan and Caitlyn

Nestleroth Johnson, Assistant Attorneys General, for respondent Secretary of State

Frank LaRose.

Baker, Dublikar, Beck, Wiley & Mathews, Tonya J. Rogers, James F.

Mathews, and Gregory A. Beck; and Gregory A. Huber, Medina Law Director, for

respondent city of Medina.

S. Forrest Thompson, Medina County Prosecuting Attorney, and Michael

K. Lyons and Samuel A. Sheffield, Assistant Prosecuting Attorneys, for respondent

Medina County Board of Elections.

_________________

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