State ex rel. McCann v. Delaware Cty. Bd. of Elections (Slip Opinion)
118 N.E.3d 224
Ohio2018Background
- Harlem Township trustees rezoned 13.28 acres; residents circulated a referendum petition to submit the rezoning to voters in November 2018.
- Petition used secretary-of-state form 6-O and consisted of multiple part-petitions; petitioners submitted 183 signatures and the board initially verified 146.
- Part-petition No. 2 contained two circulator-statement pages signed by circulator Herman E. Berk Jr.; Berk signed the statements but left the blank for the number of signatures unwritten; another circulator, Bonnie Perry, later wrote "28" in the blank in Berk’s presence.
- The board rejected some part-petitions but accepted No. 2 and certified the referendum with 127 valid signatures (116 required).
- Protestors challenged the board’s decision; after a hearing the board denied the protest and this Court expedited a prohibition action to remove the referendum from the ballot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a part-petition is invalid under R.C. 3501.38(E)(1) if the circulator did not personally write the number of signatures in the circulator-statement blank | Protestors: Part-petition No. 2 is invalid because the circulator did not indicate the number himself; someone else wrote the number, so statutory strictness was violated | Board: Berk authorized and witnessed Perry writing the number in his presence; statute requires the circulator to "indicate" the number, not necessarily to handwrite it himself; secretary-of-state form text is not a statutory gloss | Court: Part-petition No. 2 failed strict compliance because the circulator did not himself complete the required blank; board abused its discretion in accepting it; writ granted to remove referendum from ballot |
| Whether deference to the secretary of state’s form/interpretation controls statutory meaning | Protestors: Secretary’s form and directive require completion of the circulator statement by the circulator, supporting invalidation | Board: (Implicit) secretary’s form ambiguous; actual conduct sufficed; no need to apply form rigidly | Court: Gave weight to the secretary’s form and instructions (noted deference), but majority rested disposition on statutory strictness as interpreted with the form; concurrence urges plain-language resolution without deference |
| Whether paperclips vs. staples in attaching part-petitions required rejection | Protestors: Board policy required staples; paperclips rendered petitions invalid | Board: Board accepted or rejected individual part-petitions as it deemed appropriate | Court: Did not decide—writ granted on other ground, remaining arguments not reached |
| Whether protestors had an adequate remedy at law or need for prohibition | Protestors: Election proximity makes remedy at law inadequate; relief via prohibition appropriate | Board: (Implicit) board’s quasi-judicial action was proper and not unlawful | Court: Found quasi-judicial action, no adequate remedy at law, and unlawful exercise of discretion—writ appropriate |
Key Cases Cited
- State ex rel. Rust v. Lucas Cty. Bd. of Elections, 108 Ohio St.3d 139 (2005) (purpose of circulator-number requirement is to prevent additions after signing)
- State ex rel. Ditmars v. McSweeney, 94 Ohio St.3d 472 (2002) (election statutes are mandatory and require strict compliance)
- State ex rel. Commt. for the Referendum of Lorain Ordinance No. 77-01 v. Lorain Cty. Bd. of Elections, 96 Ohio St.3d 308 (2002) (strict compliance with petition form requirements)
- State ex rel. McCord v. Delaware Cty. Bd. of Elections, 106 Ohio St.3d 346 (2005) (standards for prohibitory relief against boards of elections)