# State ex rel. Lewis v. Rolston

> Ohio Supreme Court · October 1, 2007 · 115 Ohio St. 3d 293

URL: https://www.frixlaw.com/law-library/cases/6791133

## Case

- **Full name:** The State ex rel. Lewis v. Rolston, Fiscal Officer
- **Court:** Ohio Supreme Court
- **Decided:** October 1, 2007
- **Citations:** 115 Ohio St. 3d 293; 874 N.E.2d 1200
- **Precedential status:** Published
- **Opinion:** Concurring in part by Stratton
- **Judges:** Connor, Cupp, Donnell, Lanzinger, Moyer, Pfeifer, Stratton
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Lundberg Stratton, J.,
concurring in part and dissenting in part.
{¶ 24} I agree with the majority’s conclusion with respect to the village council; however, I respectfully dissent from the decision to deny the writ as to the village’s fiscal officer. Because I believe that the relator, William C. Lewis, complied with R.C. 731.32 when he filed a copy of the entire initiative petition with the village fiscal officer’s certification, I would grant the writ of mandamus.
{¶ 25} The majority claims that Lewis himself was required to certify the copy of the proposed ordinance. This implication injects a requirement into the process that does not appear in the statute, because R.C. 731.32 does not require the person circulating the petition to also certify it. The statute merely requires a copy, verified as true and accurate, to be filed with the village clerk. This *298 conclusion upholds precedent: we must “liberally construe municipal initiative provisions to permit the exercise of the power of initiative.” State ex rel. N. Main St. Coalition v. Webb, 106 Ohio St.3d 437 , 2005-Ohio-5009 , 835 N.E.2d 1222 , ¶ 47.
Susan Zurface Daniels, for relator.
Jon C. Hapner, Sabina Law Director, for respondents.
{¶ 26} The majority also concludes that the fiscal officer did not verify the proposed ordinance because she did not prepare it and because there is no evidence that she actually compared the copy with the original. I believe the majority makes a leap in judgment with such an assumption. The fiscal officer’s handwritten statement was that she “hereby attests that the aforementioned original proposed Ordinance is a Certified copy filed in this office on May 17, 2007.” It is irrelevant that no additional evidence proves that the fiscal officer examined or compared the documents, especially here, where a quick review could establish that the copy matched the original document, because the copy was the entire initiative petition.
{¶ 27} I believe there was strict statutory compliance and that no part of the statute was violated. The majority requires more than R.C. 731.32 mandates, and the unsuspecting citizen will not be alerted to an additional requirement. The majority discredits the fiscal officer’s certification because there is “no evidence” that she actually examined the copy. However, there is no statutory mechanism to take evidence on this issue. I believe we should presume that she did her job when she attested to the certified copy. Her written statement attesting and verifying the document is sufficient evidence. There is no legal requirement that one must bring in a third party to prove that a county official is telling the truth by such attestation. Her certification is sufficient for “interested citizens” to be confident of the ordinance’s validity.
{¶ 28} Finally, I believe that the underlying reason for the village’s refusal to certify the petition was the solicitor’s opinion that the proposed ordinance was illegal. This suspected illegality does not bar the fiscal officer from certifying the initiative. “Any claim alleging the * * * illegality of the substance of the proposed ordinance, or actions to be taken pursuant to the ordinance when enacted are premature before its approval by the electorate.” State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 6 , 716 N.E.2d 1114 .
{¶ 29} Consequently, I agree with the decision denying the writ with respect to the village council and with the denial of attorney fees. I respectfully dissent from the decision to deny the writ as to the village’s fiscal officer.
Pfeifer, J., concurs in the foregoing opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6791133. Public record. Not legal advice.