State ex rel. Fritz v. Trumbull Cty. Bd. of Elections (Slip Opinion)

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

State ex rel. Fritz v. Trumbull Cty. Bd. of Elections, Slip Opinion No. 2021-Ohio-1828.]

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-1828

THE STATE EX REL. FRITZ ET AL. v. TRUMBULL COUNTY

BOARD OF ELECTIONS ET AL.

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

may be cited as State ex rel. Fritz v. Trumbull Cty. Bd. of Elections,

Slip Opinion No. 2021-Ohio-1828.]

Prohibition and Mandamus—Elections—Action to prevent a special recall election

from being held—R.C. 731.17(B)—The term “majority vote,” at least when

it is applied to council action that is taken by motion, means at least a

majority vote of the council members present at a meeting—A board of

elections has a legal duty to reject a measure that does not comply with

ballot-access requirements and to prohibit its placement on a ballot—Writ

of prohibition denied—Writ of mandamus granted.

(No. 2021-0641—Submitted May 27, 2021—Decided May 27, 2021.)

IN PROHIBITION and MANDAMUS.

__________________

Per Curiam.

{¶ 1} In this expedited election case, relators A. Joseph Fritz, Kathleen M.

King, and Sandra Breymaier seek a writ of prohibition to prevent respondents, the

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Trumbull County Board of Elections and its members, Mark Alberini, Arno Hill,

Ronald Knight, and Diana Marchese (collectively, “the board”), from holding a

June 1, 2021 special recall election on a measure to remove Breymaier from the

city council of Newton Falls. Relators also request a writ of mandamus ordering

the board to remove the recall election from the ballot.

{¶ 2} Relators are not entitled to a writ of prohibition because the board did

not exercise quasi-judicial authority. But we grant relators a writ of mandamus

because the Newton Falls city council has not duly passed a motion to set the recall

election for June 1.

I. Background

{¶ 3} Under the Newton Falls Charter, any member of the city council may

be removed by a recall vote of the city’s electors. Newton Falls Charter, Article

VII, Section 4. The recall process begins with a petition demanding removal of the

city council member. To be valid, the petition must contain a sufficient number of

signatures of Newton Falls electors and be filed with the city clerk. Id. If the city

clerk finds the petition sufficient, she must certify the petition to the council and

deliver a copy of the certificate to the council member whose removal is sought.

Id. If the council member does not resign within seven days after the clerk’s

delivery of the certificate, the council “shall thereupon fix a day for holding a recall

election, not more than ninety (90) days after the date of such delivery.” Id.

{¶ 4} On or about April 8, 2021, a group of Newton Falls electors presented

to King, as clerk of the city council, a petition to recall Breymaier, the council

member who represents Newton Falls’s fourth ward. At that time, the city council

consisted of five members: Adam Zimmerman, John Baryak, Tesa Spletzer, Tarry

Alberini, and Breymaier. King certified the petition as sufficient and delivered a

copy of the certification to Breymaier. Breymaier chose not to resign from her

office. Accordingly, under the terms of the Newton Falls Charter, the council must

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call for a recall election to be held by the voters in Newton Falls’s fourth ward by

July 7, 2021.

{¶ 5} On May 10, 2021, the city council convened a general meeting. At

the time of the May 10 meeting, there were only four city council members present

because Alberini had resigned a week earlier. A motion to schedule a special

election for June 1, 2021, on Breymaier’s recall was on the agenda. The council

voted 2-1 in favor of the motion to set the recall-election date as June 1; Breymaier

abstained due to a conflict of interest. Mayor Kenneth Kline, the presiding member

of the council, declared that the motion had passed.1

{¶ 6} Fritz, the Newton Falls law director, disagreed with Mayor Kline’s

declaration. Fritz informed King that the motion had failed because it had not

received a majority vote of the council members present at the meeting. King

therefore did not deliver or transmit the motion to the board. However, Mayor

Kline sent a letter to the board on May 13, informing it that the council had passed

the motion and requesting that the board schedule an election on Breymaier’s recall

for June 1.

{¶ 7} Upon learning of Mayor Kline’s letter to the board, Fritz sent a written

protest to legal counsel for the board that same day, objecting to the recall election

on the basis that the council had not passed the motion by a majority vote. On May

14, the board convened a special session and voted to set the recall election to occur

on June 1, with early voting beginning on May 18. The board did not provide notice

to Fritz that it would be considering his protest on that day, nor did the board hold

a formal hearing on Fritz’s protest.

{¶ 8} Relators commenced this action on May 17, seeking writs of

prohibition and mandamus to prevent the board from holding the recall election and

ordering the board to remove the recall measure from the June 1 ballot. We set an

1. The mayor of Newton Falls is the presiding member of the council, but the mayor may vote only

in the event of a tie. Newton Falls Charter, Article II, Section 3.

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expedited schedule for the parties to submit evidence and file briefs. __ Ohio St.3d

__, 2021-Ohio-1704, __ N.E.3d __. The matter is fully briefed and ripe for

decision.

II. Analysis

A. Writ of Prohibition

{¶ 9} To obtain a writ of prohibition, relators must prove that the board

exercised quasi-judicial power, that it lacked the authority to do so, and that relators

lack an adequate remedy in the ordinary course of the law. See State ex rel. Keith

v. Lawrence Cty. Bd. of Elections, 159 Ohio St.3d 128, 2019-Ohio-4766, 149

N.E.3d 449, ¶ 5. Quasi-judicial power denotes the authority to hear and determine

controversies “that require a hearing resembling a judicial trial.” State ex rel.

Wright v. Ohio Bur. Of Motor Vehicles, 87 Ohio St.3d 184, 186, 718 N.E.2d 908

(1999); see also State ex rel. Miller v. Hamilton Cty. Bd. of Elections, __ Ohio St.3d

__, 2021-Ohio-831, __ N.E.3d __, ¶ 21-27.

{¶ 10} The board did not exercise quasi-judicial power when it decided,

over Fritz’s protest, to set the recall election for June 1. Relators cite R.C.

3501.39(A) for the proposition that the board was required to conduct a quasi-

judicial hearing on Fritz’s protest. But that statute applies to protests of “any

petition described in” R.C. 3501.38, which are declarations of candidacy,

nominating petitions, or other petitions presented to a board of elections for the

purpose of becoming a candidate or for the holding of an election on any issue. But

Fritz was not protesting a petition; he was protesting the validity of the city

council’s May 10 vote to set a recall election for Breymaier’s council seat on June

1. Accordingly, the board was not required to hold a hearing under R.C.

3501.39(A). And extraordinary relief in prohibition is not available when there is

no statute or other law requiring a board of elections to conduct a quasi-judicial

hearing on a protest. State ex rel. Baldzicki v. Cuyahoga Cty. Bd. of Elections, 90

Ohio St.3d 238, 242, 736 N.E.2d 893 (2000); see also State ex rel. Cornerstone

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Developers, Ltd. v. Greene Cty. Bd. of Elections, 145 Ohio St.3d 290, 2016-Ohio-

313, 49 N.E.3d 273, ¶ 18 (this court declined to issue a writ of prohibition when the

board of elections was not required to conduct a hearing). We therefore deny a writ

of prohibition.

B. Writ of Mandamus

{¶ 11} Relators also ask for a writ of mandamus ordering the board to

remove the recall measure from the June 1 ballot. To be entitled to a writ of

mandamus, relators must establish by clear and convincing evidence (1) a clear

legal right to have the board remove the recall measure from the ballot, (2) a clear

legal duty on the part of the board to do so, and (3) the lack of an adequate remedy

in the ordinary course of law. See State ex rel. Nauth v. Dirham, 161 Ohio St.3d

365, 2020-Ohio-4208, 163 N.E.3d 526, ¶ 11. Because of the proximity of the

election scheduled for June 1, relators lack an adequate remedy in the ordinary

course of law. See State ex rel. Tam O’Shanter Co. v. Stark Cty. Bd. of Elections,

151 Ohio St.3d 134, 2017-Ohio-8167, 86 N.E.3d 332, ¶ 15.

{¶ 12} As to the first two elements, relators must show that the board

engaged in fraud, corruption, an abuse of discretion, or a clear disregard of

applicable law. State ex rel. N. Olmsted v. Cuyahoga Cty. Bd. of Elections, 93 Ohio

St.3d 529, 532, 757 N.E.2d 314 (2001). In this case, the issue before us is whether

the board clearly disregarded applicable law in deciding to conduct the special

recall election on June 1. Extraordinary relief in mandamus is appropriate to keep

a measure from the ballot when there is a “failure to comply with statutory ballot-

access requirements.” Cornerstone Developers at ¶ 22.

{¶ 13} When a “sufficient” recall petition is filed with the city clerk and the

officer whose removal is sought does not resign, the Newton Falls Charter requires

the council to act affirmatively to set the date of the recall election. Specifically,

Article VII, Section 4 states that council “shall” fix the date for a recall election to

occur within 90 days of the date the recall petition was delivered to the officer

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sought to be removed. The question in this case is whether a majority of the council

voted to set the recall election to take place on June 1.

{¶ 14} Article III, Section 9 of the Newton Falls Charter generally provides

that the council shall exercise its powers “by a majority vote.” Relators argue that

a “majority vote” means a majority of the council members who are present at the

meeting. Accordingly, relators contend that the May 10 vote to approve the June 1

recall election was not a majority vote because only two of the four council

members voted in favor of the motion. The board disagrees, arguing that “a

majority vote” under the Newton Falls Charter means a majority of the council

members who voted on the measure.

{¶ 15} Relators are correct. R.C. 731.17(B) provides: “Action by the

legislative authority, not required by law to be by ordinance or resolution, may be

taken by motion approved by at least a majority vote of the members present at the

meeting when the action is taken.” (Emphasis added.) Though Breymaier

abstained from voting on the motion, she was present at the May 10 meeting and is

therefore counted as part of the total number for purposes of calculating a majority.

See State ex rel. Keyes v. Ohio Pub. Emps. Retirement Sys., 123 Ohio St.3d 29,

2009-Ohio-4052, 913 N.E.2d 972, ¶ 25. So under R.C. 731.17(B), three

affirmative votes were required to pass the motion. Keyes at ¶ 18 (a “majority”

always refers to more than half of a defined set).

{¶ 16} R.C. 731.17(B) applies here because the Newton Falls Charter and

codified ordinances incorporate it. Article I, Section 2 of the Newton Falls Charter

provides that the city shall have “all powers of local self-government * * * granted

to municipalities by the Constitution and laws of Ohio” and that such powers “shall

be exercised in the manner prescribed by this Charter, or if not prescribed herein,

by ordinance of the Council.” In turn, the codified ordinances of Newton Falls

specify that all council meetings “shall be conducted in accordance with the City

Charter, the applicable laws of the State of Ohio, and, unless otherwise herein

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January Term, 2021

specified, the rules and procedures outlined in ‘Robert’s Rules of Order.’ ” Newton

Falls Codified Ordinance 121.03(a)(1). When read together, these provisions

dictate that R.C. 731.17(B) applies to votes taken by the Newton Falls council.

{¶ 17} This court construes municipal charters to give effect to all separate

provisions and, whenever possible, to harmonize them with statutory provisions.

See, e.g., State ex rel. Finkbeiner v. Lucas Cty. Bd. of Elections, 122 Ohio St.3d

462, 2009-Ohio-3657, 912 N.E.2d 573, ¶ 31; State ex rel. Commt. for the Proposed

Ordinance to Repeal Ordinance No. 146-02, W. End Blight Designation v.

Lakewood, 100 Ohio St.3d 252, 2003-Ohio-5771, 798 N.E.2d 362, ¶ 20; State ex

rel. Ditmars v. McSweeney, 94 Ohio St.3d 472, 477, 764 N.E.2d 971 (2002).

Therefore, “[i]n the absence of express language in a charter demonstrating a

conflict with a statute, it is the duty of courts to harmonize the provisions of the

charter and statutes relating to the same matter.” State ex rel. Ryant Commt. v.

Lorain Cty. Bd. of Elections, 86 Ohio St.3d 107, 112, 712 N.E.2d 696 (1999); see

also N. Olmsted, 93 Ohio St.3d at 533, 757 N.E.2d 314; Finkbeiner at ¶ 31.

{¶ 18} The Newton Falls Charter contains no express language that

conflicts with R.C. 731.17(B). In Article III, Section 9, the charter states generally

that all the city’s powers are vested in the council, which shall exercise its powers

“by a majority vote.” But the charter is silent as to how a council majority is

determined when one or more members abstain, whether due to a conflict of interest

(as with Breymaier in this case) or otherwise. And if the charter is harmonized with

the Revised Code, the term “majority vote,” at least when it is applied to council

action that is taken by motion, means at least a majority vote of the members present

at the meeting.

{¶ 19} In arguing that only the voting members should be counted for

purposes of determining a majority, the board relies on State ex rel. Shinnich v.

Green, 37 Ohio St. 227 (1881), for the proposition that those who abstain from

voting are deemed to have acquiesced to the action taken by the majority of those

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who do vote. In Shinnich, we determined that action by a city council was validly

taken by a majority of legal voters who voted on a measure, even though the number

of members voting was less than a majority of those present. Id. at 232. Though

Shinnich involved only an organizational matter—i.e., the mode of electing one of

the members to be the clerk of council—the board contends that the principle

applies to other types of actions taken by a municipal legislative body. See, e.g.,

Babyak v. Allen, 106 Ohio App. 191, 154 N.E.2d 14 (9th Dist.1958) (holding that

a six-member village-council vote of 3-2 with one abstention was sufficient for

passage of a zoning ordinance); but see State ex rel. Corrigan v. Tudhope, 41 Ohio

St.2d 57, 60, 322 N.E.2d 675 (1975) (this court declined to extend the application

of the Shinnich rule outside the context of a legislative body’s dispute over the

mode of voting).

{¶ 20} Shinnich, however, does not provide the applicable rule in this case.

Even if we were willing to apply Shinnich outside the context of a municipal

legislative authority’s vote on an organizational matter, the language of R.C.

731.17(B) takes Shinnich’s holding out of play. Because R.C. 731.17(B) applies to

the procedure governing motions before the Newton Falls council, a majority vote

of the members who were present was required for passage of the motion setting

Breymaier’s recall election.

{¶ 21} For these reasons, the Newton Falls council did not pass the motion

to fix June 1, 2021, as the date of the recall election. The motion failed for want of

one vote. The board has a legal duty to reject a measure that does not comply with

ballot-access requirements and to prohibit its placement on the ballot. See State ex

rel. Burech v. Belmont Cty. Bd. of Elections, 19 Ohio St.3d 154, 155, 484 N.E.2d

153 (1985). Accordingly, we grant relators a writ of mandamus ordering the board

to remove the issue of Breymaier’s recall from the June 1, 2021 special-election

ballot.

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Writ of mandamus granted and

writ of prohibition denied.

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

STEWART, JJ., concur.

BRUNNER, J., not participating.

__________________

Calfee, Halter & Griswold, L.L.P., James F. Lang, Nicholas A. Bonaminio,

and Brandon E. Brown, for relators.

Mazanec, Raskin & Ryder Co., L.P.A., John T. McLandrich, and Frank H.

Scialdone; and Dennis Watkins, Trumbull County Prosecuting Attorney, for

respondents.

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