# State ex rel. Board of Education v. Board of Education

> Ohio Supreme Court · December 28, 1988 · 40 Ohio St. 3d 136

URL: https://www.frixlaw.com/law-library/cases/6761317

## Case

- **Full name:** The State, ex rel. Board of Education for the Fairview Park School District v. Board of Education for the Rocky River School District
- **Court:** Ohio Supreme Court
- **Decided:** December 28, 1988
- **Citations:** 40 Ohio St. 3d 136; 532 N.E.2d 715; 1988 Ohio LEXIS 435
- **Precedential status:** Published
- **Opinion:** Dissent by Douglas
- **Judges:** Brown, Douglas, Holmes, Locher, Moyer, Sweeney, Wright
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6761317

## Opinion text

Douglas, J.,
dissenting. In the past, from some quarters, including some members of the majority herein, there have been cries of anguish that this court should never engage in “judicial legislation.” Our decision today involves such activity in its most extreme form. The majority is not just filling a legislative gap or creating a new remedy or cause of action where one does not exist but is needed. The majority, instead, simply ignores the dictates of R.C. 3311.24 as though the statute did not exist.
As the well-reasoned opinion of the court of appeals states, “* * * once a petition, sufficient on its face, was presented to the Rocky River School Board and it was determined to be suf *141 ficient, R.C. 3311.24 places a mandatory duty upon the School Board to forward the petition to the State Board of Education. The discretion vested in the Board is limited to the formal sufficiency of the petition. * * *”
Such a holding would in no way act to the detriment of those persons wishing to withdraw their signatures. Any signer of a transfer petition has the right to withdraw his or her signature at any time before official action is taken on the petition. State, ex rel. Wilson, v. Bd. of Edn. of Shelby Cty. School Dist. (1957), 166 Ohio St. 260 , 2 O.O. 2d 88, 141 N.E. 2d 289 . Certification of the sufficiency of the petition on its face is not an official action on the petition. By today’s decision, the majority gives to the very body affected by the petition the power to determine its validity as well as its sufficiency. This is contrary, I believe, to the legislative intent and specifically, R.C. 3311.24.
Accordingly, I respectfully dissent.
Sweeney, J., concurs in the foregoing dissenting opinion.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6761317. Public record. Not legal advice.