State ex rel. Rose v. Lorain County Board of Elections

Cook, J.,

dissenting. Because the majority opinion permits what the statute and decisional law forbids, I must respectfully dissent from the majority’s decision to grant the writ.

As the majority notes, even Rose’s attorney characterized Rose’s conduct as electing to use his “right to amend the petition” and resubmit the eleven part-petitions “as amended.” (Emphasis added.) “Amend” is defined as “to put right,” “to change or modify in any way for the better,” or “to alter * * * formally by modification, deletion, or addition.” Webster’s Third New Interna *236 tional Dictionary (1986) 68. Therefore, Rose’s “amendment” is simply another word for alteration, correction, or addition — actions that are expressly precluded by the plain language of R.C. 3501.38(1). The majority has recast Rose’s amendment as merely a withdrawal and refiling. This characterization, however, relies upon semantic distinctions to vitiate long-standing requirements.

Under R.C. 3501.38(1) and (K), the board of elections could have considered only the first petition filed by Rose in assessing sufficiency. The second petition and the resubmitted petition consisting of the papers included in the first and second petitions were either improper amendments or additions to the first petition, as prohibited by R.C. 3501.38(1), or were filed at different times following the first petition, as prohibited by R.C. 3501.38(K).

The majority cites the axiom that it is the general duty of courts to liberally construe municipal referendum petitions to permit rather than to preclude the exercise of the power of referendum. Christy v. Summit Cty. Bd. of Elections (1996), 77 Ohio St.3d 35, 40 , 671 N.E.2d 1, 5 . But given the clarity of the language of the statutory provisions at issue here, we need not look to interpretative rules. See State ex rel. Wolfe v. Delaware Cty. Bd. of Elections (2000), 88 Ohio St.3d 182, 186 , 724 N.E.2d 771, 774 . The majority’s construction contravenes the statutory language by allowing relators to amend and refile petitions that R.C. 3501.38(I) and (K) prohibit. This view thwarts the statutory scheme. Now, no set of petitions can be held to constitute an “instrument” under R.C. 3501.38(K) until the last second of the last day that constitutes the filing deadline. Until that time, the majority would have any prior filing remain subject to continual withdrawal and refiling.

The majority permits “alterations, corrections, or additions” after filing by characterizing what occurred here as a “withdrawal.” This approach diminishes the finality that the statutory scheme attaches to filed petitions. This diminished legal significance seems irreconcilable with provisions of R.C. 3501.38 that emphasize the act of filing as the point at which the rights of petition circulators and signers change. R.C. 3501.38(G), for example, provides that “[t]he circulator of a petition may, before filing it in a public office, strike from it any signature he does not wish to present as a part of his petition.” (Emphasis added.) Similarly, R.C. 3501.38(H) provides that “[a]ny signer of a petition may remove his signature therefrom at any time before the petition is filed in a public office * * * [but] no signature may be removed after the petition is filed in any public office.” (Emphasis added.) If the prior filing is not considered filed, or, as the majority states, “there is nothing before the public office and, therefore, there is nothing to be acted upon,” then petition circulators or electors may arguably strike specific signatures from the petitions at will following “withdrawal.” The majority would disagree, as shovlm by its continual use of “unaltered” to describe the refiled *237 petitions. But the majority cannot have it both ways. On the one hand, the majority deems a petition that has been filed and then withdrawn as subject to R.C. 3501.38(I)’s prohibition on alterations, corrections, or changes, which applies only to filed petitions. On the other hand, the majority at the same time regards such a petition as not filed in order to avoid conflict with R.C. 3501.38(K)’s mandate that “[a]ll separate petition papers shall be filed at the same time, as one instrument.”

This majority opinion will also generate confusion regarding R.C. 3501.38(A). That section ties decisions as to qualifications of electors to “the date when the petition is filed.” Thus it becomes unclear under the majority’s new construction of these election laws which filing should be used: the first filing, which the majority has controlling some portions of R.C. 3501.38, or the final filing, which constitutes the filing that “counts” for the one-instrument requirement. Would the majority have separate petitions that are filed and then withdrawn evaluated for purposes of determining qualified electors whenever they are first filed— despite R.C. 3501.38(K)’s clear mandate that “[a]ll separate petition papers shall be filed at the same time”? If the final filing date should be used, the statute is rendered arbitrary in the application of its provisions, with electors and election officials left to guess what applies when.

The single filing that R.C. 3501.38 appears to contemplate would resolve this confusion; something is either filed or it is not. The multiple-filings construction that the majority adopts illogically recognizes the withdrawn petition as filed for every purpose save the requirement that all petition papers be filed at once.

Accordingly, I would hold that the board of elections neither abused its discretion nor clearly disregarded applicable law in denying relators’ demand to place the referendum issue on the November 7, 2000 election ballot. Only relators’ first petition was properly before the board of elections, and that petition included insufficient valid signatures to warrant submission of the referendum issue to the electorate. I would therefore deny the writ and leave well-established precedent undisturbed. This holding would not jeopardize the right to referendum; it would just require that the right be exercised in proper legal form.